author: By the Court. Bosworth, J.

text:
    Carroll v. New York & New Haven Railroad Co.
    (Before Campbell, Bosworth, and Emmet, J.J.)
    Dec. 13, 14, 1852;
    Feb. 26, 1853.
    A passenger injured by two trains of cars, running in opposite directions, coming in collision, is entitled to recover, although at the time of the collision in an apartment of the baggage car, if .lawfully there; notwithstanding he knew the position to be much more dangerous, in the event of such a collision, than a seat in the passenger car, and that too, though the result may demonstrate that he would not have been injured if he had been in a passenger car.
    In that case, his imprudence or want of care does not contribute to cause the accident, which occasioned the injury.
    A passenger, in selecting his seat, if lawfully in the one selected, owes no duty to a raih'oad company requiring him to select one with a view to diminish the hazards that may attend an act of gross negligence, on the part of their agents, in the running of the trains; nor does any indiscretion in selecting it exonerate the company from-liability for injuries resulting from a collision, caused by the gross negligence of their agents.
    If a collision thus occurs, a passenger who is injured’ by it may recover, if, as between him and the company, it was lawful for him to be where he was at the time of the collision, as his being there did not tend directly or remotely to produce the act or occurrence which caused the injury.
    He had not failed to perform any duty owing by him to the company, and, as between him and it, he was not guilty of any negligence.
    At a Special Term of the Superior Court of the City of Hew York, held at the City Hall, in said city, on the 12th day of March, 1853. Present, Hon. John Duer, Justice.
    The People of the State of Hew York, ex rel. Thomas E. Davis and Courtlandt Palmer, against . Oscar W. Stdrtevant.
    A writ of attachment having heretofore issued out of and under the seal of this court, directed to the sheriff of the city and county of Hew York, against the above named Osear W. Sturtevant, for contempt in .disobeying an injunction granted in the action pending in this court, of Thomas E. Davis and Courtlandt Palmer, as plaintiff, against the Mayor, Aldermen, and Commonalty of the city of New York, as defendants; and the said Sturtevant having been, by virtue of said attachment, attached by said sheriff, and having personally appeared in court; and interrogatories, specifying the facts and circumstances alleged against said Sturtevant, having, by order of this court, been filed, and a copy thereof served on said Sturtevant; and he having been required to answer, and having answered the same; and several affidavits and papers touching the said contempt having been produced and read; and counsel, as well for the said relators as the said Oscar W. Sturtevant, having been heard, and mature deliberation being thereupon had:—
    It is now here considered and adjudged that the said Oscar W. Sturtevant has been and is guilty of the misconduct alleged against him in the proceedings, and that such misconduct was calculated to, and actually did defeat, impair, impede, and prejudice the rights and remedies of the said plaintiffs, Thomas E. Davis and Courtlandt Palmer, in their said action against the Mayor, Aldermen, and Commonalty of- the city of New York, and that the said Davis and Palmer have, by reason of the said misconduct, been put to a large amount of costs and expenses, to wit, the sum of one hundred and two dollars and twenty cents.
    And it is further considered and adjudged, that the said Oscar W. Sturtevant for his said misconduct be imprisoned in the common jail of the city and county of New York, for the period of fifteen days; and further, that a fine of three hundred and fifty-two dollars and twenty cents be, and the same is hereby imposed upon the said Oscar W. Sturtevant, for his said misconduct, and that he stand committed to the common jail of the city and county of New York until the said fine be paid.
    And it is further considered and adjudged, that the sum of one hundred and two dollars and twenty cents, part of the said fine, be paid over to the said Davis and Palmer, or their attorneys, to satisfy their said costs and expenses in the premises; and that the residue of the said fine be paid to the clerk of this court, to be disposed' of according to law, and that a warrant issue to carry this judg ment into effect.
    Appeal from, a judgment in favor of the plaintiff for $4,000. The judgment was entered upon the verdict of a jury, and the cause was now heard upon exceptions taken on the trial.
    The action was for injuries to the person of the plaintiff occasioned by the negligence of the defendants, and was tried before Mr. Justice Campbell and a jury, on the 3d of May, 1852.
    It appeared in evidence, that, on the 25th of October, 1851, a collision took place on the ¡New Haven Eailroad between two trains of cars belonging to the defendants, and that the plaintiff, who was a passenger in a baggage car of one of the trains, had one of his legs broken, and was otherwise severely and dangerously injured.
    The principal defence was that the defendant was guilty of negligence in talcing his place in the baggage car, as the defendants had forbidden that passengers should be so carried^ and had caused a printed notice to that effect to be posted up in the car. It was also insisted, that, as the defendant was carried gratuitously, the Company was not liable, there being no contract between the parties. The printed notice, which was produced and read, purported to be a copy of a resolution of the Directors of the Company, passed in August, 1849, declaring that thereafter no passengers should “ be permitted to ride in that portion of any baggage car which is used for stowing and distributing baggage.”
    It was, however, proved on the part of the plaintiff, that he was in a part of the car used as a post-office, and not for stowing baggage; that several other passengers were also there, and that no objection was made to their being there, either by the conductor or by any other servant or agent of the Company. It was also proved that passengers were frequently transported in the baggage cars.
    When the evidence was closed, the counsel for the defendants moved for a dismissal of the complaint. The motion was denied, and the counsel excepted.
    The judge then charged the jury as follows:
    The rule of law is, that a carrier is bound to use the utmost care and diligence in the conveyance of passengers. In this case, if the plaintiff were carried as a free passenger, that circumstance would vary the liability of the defendants in a slight degree.
    The question of gross negligence of the defendants is not raised in the answer as to the act of the defendants. It is admitted.
    (To this instruction the defendants’ counsel duly excepted.)
    Where an injury occurs, if both parties are guilty of negligence, the plaintiff cannot recover. The law cannot measure degrees of negligence. The negligence of the plaintiff, however, must concur directly, not remotely, in producing the accident or injury.
    (To this charge, as to the plaintiff’s negligence, the defendants’ counsel duly excepted.)

      The plaintiff here did not contribute to produce the collision itself; and there was not, therefore, such negligence on his part 'as will defeat the action.
    (To this instruction the defendants’ counsel duly excepted.)
    My view of the law is, that even if the plaintiff were in the baggage car, if the injury did not necessarily grow out of that wrongful act, it would not defeat the action; not even if the plaintiff was in the baggage car contrary to the express rules of the company, if the injury did not grow out of his being there.
    (To this instruction the defendants’ counsel duly excepted.)
    It is not certain that the baggage car is the most dangerous place in the train. In some cases it might not be. The passenger cars might be the most unsafe in some instances. The plaintiff might have been in the passenger cars and have been injured, as in the case of a train being run into by a following train.
    But admitting the baggage car was an unsafe place, and the - notice was given, I leave it to you to say whether the notice was intended to prevent persons going into the post-office department of the baggage car, and whether the plaintiff was there with the assent of the conductor.
    (The defendants’ counsel excepted to the submitting this question to the jury.)
    If the plaintiff was there with the assent of the conductor, notwithstanding the notice, he was not in fault, unless he was guilty of negligence, which concurred directly in producing the injury. ..
    (To this instruction the defendants’ counsel éxcépted.)
    On referring to the railroad act of 1850, § 46, it may be a question under that section, whether it means vn the baggage cars. This act has nothing to do with the case, for the defendants. must have complied with it strictly by posting up the notice in the passenger cars.
    The jury will pass upon the following points:—
    First.—-Whether the plaintiff was in the post-office part of the baggage car with the assent of the conductor ? That part of the baggage car was not covered by the notice. I state this as matter of law.

      Second.—Was that part of the car in which the plaintiff was at the time of the collision a part of the car used for stowing and distributing baggage, pursuant to the printed notice of the defendants ? When not so used, the notice, in contemplation of law, did not prohibit passengers going there.
    Third.—Was the plaintiff guilty of any other act than being in the baggage car, which contributed directly to the injury of the plaintiff?
    The defendants’ counsel excepted to submitting to the jury the question of fact stated'in the first of the three special inquiries above stated; and also excepted to the charge of the court as to the effect, or construction, of the notice.
    After the charge, the counsel for the plaintiff moved to amend the complaint by striking the word “ wilfully” therefrom ; which motionwas opposed by defendants’ counsel, and granted by the court.
    (To this decision the defendants’ counsel duly excepted.)
    The jury, after being out for some time, returned to the court-room, and stated that they were unable to agree on an answer to the question of fact in the first of the three inquiries specially submitted to them; whereupon his honor withdrew tbe first of the aforesaid three questions from the jury, who then rendered a verdict for the plaintiff, and assessed his damages at four thousand dollars.

      A. Hamilton, jr., and J. T. Brady for the appellants, the defendants,
    insisted that the exceptions to the judge’s charge were well taken, and that a new trial ought to be granted upon the following grounds:—
    I. The plaintiff did not pay for his passage, but was carried gratuitously. The defendants are not therefore responsible for the injury to him, unless occasioned by their gross neglect.
    II. The reply admits, and the proofs show, that the plaintiff was not in the proper place for passengers. He was in the baggage car. If he had not been, he would not have been injured. The facts as to this not being in dispute, the law declares that the plaintiff was not free from fault, and he can not therefore recover. ■

      IH. The excuse for the plaintiff being in the baggage car, set up in the reply, namely, that he was there with the assent of the conductor, if proved, does not change the aspect of the case. ■ '

      (a) The mere fact of riding in the baggage car amounted to an assumption by the plaintiff of any danger or responsibility arising from that position. ,
    (5) Ho conductor has a right to permit a passenger to ride in a baggage car; and if he does, his act does not bind his principal.

      (ó) The plaintiff must be presumed to have known that in giving any such permission, the conductor would exceed his authority, just as much as if he had permitted the plaintiff to ride on the engine.

      (d) A passenger on a railroad train has power, and is bound to take reasonable care to insure his own safety. If there be a seat in the passenger cars, he is bound to go there; and if he place himself in a dangerous position, he- must bear the consequences ; and this is true, whether he expose himself to danger with or without the consent of the conductor.
    IV. The plaintiff had notice that he endangered his safety, from the position he occupied, and also the notice affixed in the baggage car. Having this notice, and yet exposing himself to injury, he has no claim for damages.
    V. If the plaintiff, by riding in the baggage car, increased the risk of injury to himself, and this was negligence which contributed to the injury plaintiff suffered, he cannot recover, although he had no agency whatever in producing the collision. (Munger v. Tonawanda R. R., 4 Comstock, p. 349; 5 Denio, 255; Beers v. Housatonic R. R. Co., 19 Conn. 566.
    VI. That the notice given in evidence put up in the baggage car, must be taken to mean that a passenger should not ride in any part of a baggage car which the company used, though only occasionally, for stowing or distributing baggage.
    VH. That affixing the notice in one place in the baggage car was sufficient; and it is wholly unimportant whether the plaintiff did or did not see it, if it was in a conspicuous place.
    "VULL. That if, by riding in the baggage car, the plaintiff was guilty of negligence which contributed to his injury, then the defendants are entitled to dismissal of the complaint, although the conductor may have acquiesced in or consented to plaintiff’s riding in such car.
    IX. The fact appearing from the testimony in the case, that no passenger was injured in the passenger cars, while the persons in the baggage car were either tilled or injured, establishes that plaintiff’s being there did contribute to his injury.

      H. Morrison, for the plaintiff,
    resisted the motion for a new trial, and argued as follows:—
    I. The answer admits, and the evidence, as well as the admission of the defendants on the trial, shows, that the defendants, by their gross carelessness in running their train of cars out of time, and against another of their trains, on a single track, injured the plaintiff.
    II. There is no evidence in the case that the plaintiff was in the baggage car at the time of the collision. All the defendants claim as to this, is, that he was in the post-office, which was an apartment separate from the baggage car.
    III. If he were in the baggage car, he was not there in violation of any notice of the defendants, pursuant to Railroad Act of 1850.
    IY. If the plaintiff were on the baggage car, and not there in violation of any of the notices of the defendants, or of the law, the defendants were not entitled to have his honor the judge charge the jury as required as to any points presented by them.
    Y. The instructions of his honor the judge to the jury, “ when an injury occurs, if both parties are guilty of negligence, the plaintiff cannot recover. The law cannot measure degrees of negligence. The negligence of the plaintiff, however, must concur directly, not remotely, in producing the accident or injury,” were correct, and stated with a careful precision and nicety exactly applicable to the case in point. (Raisin v. Mitchell and others, 4 Carr & Payne, p. 613; Bridge v. The Grand Junction Railway Co., 3 Mees. & Wels. R. p. 245. See Opinion of Park, B., p. 248. Smith v. Pelah, 2 Strange, R. 264; Bird v. Holbrook, Moore & Payne, R. vol. i., p. 607
      Hice v. Kugler, Wharton’s R. vol. vi., p. 336; Marriott v. Stanley, Manning & Granger, vol. i., p. 569; 2 Stephens’ N. P. 1016, Am. edition of 1844; Clay v. Wood, 5 Espinasse’s R. p. 44; Wayde v. Lady Carr, Dowling & Ryland R. vol. ii., p. 555; Chaplin v. Haws and others, Carr & Payne, vol. iii., p. 255; Boss v. Litton, Carr & Payne, vol. v., p. 407.)
   By the Court. Bosworth, J.

The plaintiff was injured by two trains running in opposite directions coming in collision. Both trains belonged to the defendants, and were controlled by their agents. The collision resulted from their gross negligence. The plaintiff was, at the time of the collision, in the post-office apartment of the baggage car. It was a much more dangerous location, on the happening of such a collision as took place, than a seat in the passenger cars, and he knew this fact. The conductor acquiesced in his riding in the baggage car: he was, therefore, lawfully in that car; that is, he was not a trespasser by being there. His being there did not tend, directly or indirectly, to produce the collision which injured him. If he had been in either of the passenger cars, the collision would have taken place; but if he had been in a passenger car, he would not have been injured, unless the collision had been productive of consequences to him not suffered by any one in a passenger car.

The collision was not caused, directly or indirectly, immediately or remotely, by his being in the baggage car; but the injury to himself resulted from the fact that he was in that car when it occurred, and- he knew when he took his seat in it, that, if a collision took place between that and another train running in the opposite direction, the position was one of much more danger than a seat in either passenger car.

Was that a negligence on his part contributing to produce the injury within the meaning of the rule, that, “ whenever it appears that the plaintiff’s negligence or wrongful act had a material effect in producing the injury, or contributed towards it, he is not entitled to recover % ” Ho care on the part of the plaintiff could have prevented the collision; no vigilance on his part, after there were any grounds for apprehending a collision, could have saved him from injury. The collision, therefore, was wholly without any fault or negligence on his part, and by the collision he was injured.

It was the duty of the defendants to employ the most scrupulous care and attention, to prevent a collision of their trains running in opposite directions. The plaintiff was under no obligation to the defendants to select a location, with a view to avoid the possible consequences of their neglect of that duty. A neglect of that duty would be generally regarded as imminently perilous to all the passengers on board. Whatever may be believed to be the relative safety, under such circumstances, of those occupying the passenger cars, probably but very few, if any, would take a passage in a train which they knew it was morally certain would come in collision with one going, at the usual running speed, in an opposite (Erection.

The defendants, at the time of the collision, were not in the lawful exercise of their rights. It was their duty, at all events, to so run their trains that such a collision should not occur. Where an injury is inflicted on a passenger directly and solely by such a collision, if the notices specified in Chap. 140, § 40 of the Session Laws of 1850, p. 234, are not at the time posted up as prescribed by that act, the injured party may-recover, even though he be in the baggage car, if there with the knowledge and without objection from the conductor. The fact that there was accommodation for him in the passenger cars will not exempt them from liability in such a case, though the actual results of the collision may demonstrate that, on that particular occasion, he would not have been injured if hq had been, at the time of the collision, in the passenger cars.

The defendants’ counsel requested the court to charge the jury, “ if they believed that the plaintiff, by riding in the baggage car, increased the risk of injury to himself, and this was negligence which contributed to the injury plaintiff suffered, he cannot recover, althóugh he had no agency whatever in producing the collision.”

The judge refused to instruct the jury in these terms, but charged them that

“The plaintiff here did nqt contribute to produce the collision itself, and there was not, therefore, such negligence on his part as will defeat the action,

“ If the plaintiff was there with the assent of the conductor, notwithstanding the notice, he was not in fault, unless he was guilty of negligence which concurred directly in producing the injury.

“ Where an injury occurs, if both parties are guilty of negligence, the plaintiff cannot recover. The law cannot measure degrees of negligence. The negligence of the plaintiff, however, must concur directly, not remotely, in producing the accident or injury.”

The difference between the charge as made and as it was requested that it should be made, is this:—

The latter assumes that the defendants, in case of a collision occurring from their gross neglect, are not liable for injuries occasioned to a passenger riding in the baggage car, though occasioned by reason of that car being entirely demolished, if the result demonstrates that he would not have been injured if seated in a passenger car.

Whereas the charge declares the rule to be, that in such a case the defendants are liable if the injured person was in that car with • the assent of the conductor, unless guilty while there, of some negligence which concurred directly in producing the injury.

For instance, if the plaintiff was there with the assent of the conductor, he was where, as between him and the defendants, -he had a lawful right to be; and if, in consequence of the collision, the baggage car was not itself destroyed, but some of the baggage in it was thrown by the collision from the spot where it had been placed, and came in contact with him so as to injure him, the rule that the defendant was guilty of a negligence which contributed directly to his own injury might apply, on the ground that he knowingly and voluntarily selected a place of unusual danger, and the fact of his occupying it concurred directly in producing the injury.

I do not perceive why it may not, with equal force, be answered, that if he had not been in that car, he would not have been injured; and that the gross negligence of the defendants would have caused him no damage if he had been in the car provided for passengers, and in which a proper precaution required him to be seated.

It seems to me that if the defendants are to be held liable in such a case, it must be on the broad grounds, that if a collision of their trains occurs from their gross neglect, by which a passenger is injured, they cannot be exempted from the consequences, on the ground that he was knowingly in a place more dangerous to his safety in the event of such an occurrence than a seat in the passenger cars, if he was lawfully in the place where he was injured. That the defendants are under an obligation to so run their trains that those going in opposite directions shall not come in collision. That it is gross negligence in their officer’s and agents not so to run them. That a passenger is under no obligation to take any extra care with the sole view of preventing or mitigating consequences that may result from such a gross neglect of duty on their part.

But for this gross neglect, there would have been no collision and no injury. The only answer the defendants can make is, our gross negligence would not have injured you if you had been in a car set apart for passengers, which, as was well known, was much the safest place of the two, in the event of our running two trains into each other. The injured party may properly reply, I owed no duty to you requiring me to guard against or to anticipate the possibility of such an act on your part, the non-performance of which can exonerate you from liability to compensate for injuries caused by such a.n act.

In Munger v. Tonawanda R. R. Co. 4 Coms. 349, the plaintiff failed to recover damages sustained in consequence of his oxen being run over by the defendants’ cars, on the ground that the oxen, having strayed on the track, were there without right, and, as to the defendants, unlawfully. The law imposed on them no duty to guard against an injury to others which could arise only from their own wrong, and which they were not bound to anticipate with a view to prevent the consequences of its possible occurrence. In that case, as will be observed on considering it, the fault or negligence of the plaintiff contributed to produce the collision or act which caused the injury. I apprehend that a careful consideration of all the cases on which the defendants’ counsel rely, in support of the rule for which they contend, will show that it is accurately expressed by saying that one party cannot recover from another damages for an injury, when his own negligence or wrong contributed to bring about the act or occurrence which directly caused the injury; and that, if his own negligence or Wrong did not contribute to produce the act which caused the injury, the party doing the act is liable.

In Blyth v. Topham, Cro. Jac. 158, the plaintiff’s mare, straying into a common in which the defendant had dug a pit, fell into it and was killed. It was held that the plaintiff could not recover. The plaintiff had no right in the common; it was his own wrong that the beast was there. She was unlawfully there, and his wrong contribtited to the act which caused the injury, viz. her falling into the pit.

In Bush v. Brainard 1 Cowen, 78, the plaintiff’s cow, in the night-time, went to an open shed, on uninclosed wood-land belonging to the defendant, and drank some maple syrup which the defendant had left there. This Caused her death. The court held that, the plaintiff having no right to permit his cattle to go at large, his own fault or negligence contributed to produce the act which caused the injury, and, therefore, he could not recover.

In Sarck v. Blackburn, 4 C. &P. 297, brought to recover damages for being bitten by a dog of the defendant, which was, at the time, chained in a yard in rear of the defendant’s house, near one of the passages leading to it, and through which the plaintiff was walking when the dog bit him, Tihdal, Oh. J., instructed the jury that “ the question will turn upon the point whether there was a justifiable right to be on the spot.

“If a man puts a dog in a garden, walled all round, and a wrong-doer goes into the garden, and is bitten, he cannot complain in a court of justice of that which is brought upon him by his own act. Undoubtedly, a man has a right to keep a fierce dog for the protection of his property; but he has no right to put the dog in such a situation, in the way of access to 'his house, that a person innocently coming for a lawful purpose may be injured by it. • I think he has no right to place a dog so near to the door of his house that any persoii coming-to ask for money, or on other business, might be bitten.”

A board was placed on the palings, on which was painted, in letters three inches in length, “ Beware of the Dog! ”

The. Court further charged, “ It does not appear to me that this notice is sufficient so as to bar the action, if tjie plaintiff had any right at all to be on the spot, for it seems that he was not able to read.”

In Blackman v. Simmons, 3 Carr and P., 138, the plaintiff sued to recover damages for injuries inflicted by a vicious bull owned by the defendant.

Best, J., in his charge to the jury, said: “ It appears that this bull was not sufficiently secured. If the plaintiff had gone where he had no right to go, that might have been an answer to the action; but the fact is not so. The plaintiff had a right to be where he was.” The defendant was held liable.

In Howland v. Vincent, 10 Met. 371, the plaintiff, in the night-time, went outside of the line of the street, and fell into an excavation dug by the defendant on his own land. The plaintiff was held to be in fault for being where he had no strict right to be, and as the defendant had only done what it was lawful for him to do, the plaintiff failed to recover.

In Cook v. The Champ. Trans. Co., 1 Denio, 91 (100 and 101), brought to recover for buildings destroyed by being set on fire by sparks and cinders escaping from the smoke-pipe of a boat owned by defendants, the defendants insisted in bar of the action that the injury done was attributable, in part, to the negligence of the plaintiffs “ in voluntarily placing their property in an exposed position, and therefore the law would afford them no redress.” (P. 99.)

The court, after discussing the principle and the consequences of upholding it, observed that we must at last “ come to the conclusion that, while a person confines himself to a lawful employment on his own premises, his position, however injudicious and imprudent it may be, is not, therefore, wrongful; and that his want of due care or judgment in its selection, can never amount to negligence, so as thereby to deprive him of redress for wrongs done to him by others.” (Id. p. 101.)

Regligence is a violation of the obligation which enjoins care and caution in what we do. But this duty is relative, and where it has no existence between particular parties, there can be no such thing as negligence in the legal sense of the term. A man is under no obligation to be cautious and circumspect towards a wrong-doer. (5 Denio, 266,7.)

A proper application of the principles of these cases, as well as of others relating to the same subject, leaves the plaintiff’s right to recover free from all reasonable doubt.

He took a seat in the post-office apartment of the baggage car. The position was injudiciously chosen, and may be assumed to have been known to him to have been a far-more dangerous one than a seat in a passenger car. But he took it with the assent of the conductor. He was not there as a trespasser, or wrongfully, as between him and the defendants. So far as all questions involved in the decision of this action are concerned, he was lawfully there. His being there was not such negligence, in the legal sense of the term, as exonerates the defendants from the consequences of injuring him by such culpable negligence as consists in running two trains of their cars so violently into each other as to entirely demolish the car in which he was sitting..

On such a state of facts, the defendants are not at liberty to urge that the plaintiff was voluntarily in an unnecessarily exposed position. The injury was 'caused directly and wholly by the gross negligence of the defendants. The plaintiff was lawfully in the place he occupied, was passive, did nothing, and was incapable of doing anything.

While in this position, the defendants, by gross negligence, imminently dangerous to the lives of all the passengers in the train, caused him severe injuries. He was under no obligation to them to be more prudent and careful than he was, in contemplation of there possibly being such highly culpable conduct on their part as would, in all probability, endanger his life if he remained where he was, and his personal safety on any part of the train.

Skinner v. London, Brighton, and South Coast R. R. Co., 2 L. and Eq. R. 360; 2 McMull, S. C. R. 404; Felder v. Louisville, &c., R. R. Co., 7 Ad. and Ellis, N. S. 377-378 ; Mayn, &c. v. Brooke.

We all concur in the opinion that no error was committed to the prejudice of the defendants, either in refusing to charge as requested, or in the charge as made; and that the judgment appealed from must be affirmed, with costs.


source: Caselaw Access Project

author: By the Court. Duer, J.

license: Public Domain

text:
    Lawrence v. Williams and others.
    (Before Duer, Bosworth, and Emmet, J.J.)
    Feb. 11, 26, 1853.
    When the breach of a covenant in a lease, not to underlet without the consent of the landlord, is alleged, if the fact of underletting is proved or admitted, it is matter of defence, that the consent of the landlord was given, and the burden of proof is cast upon the defendant.
    Where the lease contains a clause of re-entry for the breach of any covenant by the lessee, in an action, by the landlord, to recover possession of the demised premises, it is not necessary to prove an actual entry, before the commencement of the suit.
    Section 25 in the title m the B. S. “Of the action of ejectment,” dispenses with the necessity of such proof, in all cases whatever.
    That section, as it relates not to the form of the action, nor to the nature of the proof to be given on the trial, is one of those general provisions which have not been repealed by the Code.
    Judgment for the plaintiff.
    This was an action by a lessor to recover the possession of the demised premises, upon the ground that the defendant Williams, the lessee, had broken a covenant in the lease, not to underlet without the consent of the plaintiff, and that for such breach, the plaintiff, by the terms of the lease, was entitled to re-enter. The complaint averred á breach of an under-letting by Williams to the other defendants.
    Williams answered separately as follows:
    The said defendant, John Williams, by A. J. Perry, his attorney, separately answering the complaint of the said plaintiff, denies, that in violation of the said covenant, in said indenture contained, and without the consent of said plaintiff, he has under-let the said premises, or some part or parts thereof, to the defendants in said action named, or either of them, and he denies, that as he is advised, he has broken any of the covenants contained in said indenture.
    The cause was tried before the Chief Justice and a jury on the 16th of December, 1852.
    The plaintiff proved an indenture of lease executed by the defendant, containing the covenant of which the breach was alleged, and a general clause of re-entry, and there rested.
    The counsel for the defendant moved for a nonsuit upon the grounds—
    First—That no evidence had been given of the under-letting averred in the coinplaint; and Second—That there was no proof of an actual entry on the premises by the plaintiff before the commencement of the suit.
    The Chief Justice denied the motion, and the counsel excepted to his decision.
    A'verdict was then rendered for the plaintiff, subject to the opinion of the court upon a case, to be heard, in the first instance, at a general term, and with liberty to either party to turn the same into.a special verdict or bill of exceptions.

      J. N. Platt, for the plaintiff,
    insisted that he was entitled to judgment upon the following grounds:—
    I.' The defendant, by his answer, admits that he has underlet the premises, but denies that he did it in violation of the covenant, or without the plaintiff’s consent. The breach of the covenant being thus admitted, the duty of proving the matter in avoidance devolves upon the defendant; nor could the plaintiff be called upon to prove- a negative in the first instance. Hopkins v. Everitt, 3 Code Rep. 150; McMurray v. Gifford, 5 Howard, 14.
    H. It was not necessary for the plaintiff to show an actual entry on the premises before suit brought, because,"
    I. The law does not require it, as it is abolished by express statute. (2 Revised Statutes, 4th edition, page 567, sec. 18, 19, p. 306; Sharp v. Ingraham, 4 Hill, 116.)
    2. The statute expressly forbids the plaintiff either to make a forcible entry, or, having made a peaceable entry, to have kept in possession by force.
    It would be absurd to require in the present • age, before parties can bring actions, acts which are useless and unnecessary-^-productive of no benefit to either..party, and which would occasion breaches of the peace, if attempted; and which will be followed by criminal punishment. (Tillinghast’s Adams on Ejectment, 145, 146, marginal paging. Edition of 1830. Little v. Heaton, 1 Salkeld, 259; 2 Revised Statutes, 4th edition, p. 306.

      L. B. Shepard, for defendant Williams,
    contended that the motion for a nonsuit ought to have been granted; because,
    First.—There was no evidence of a letting or underletting of the premises in question, or any part thereof, by the defendants, as alleged in the complaint.
    The traverse in the answer is a distinct denial of the allegation in the complaint. Code, § 149.
    Second.—The plaintiff did not show any actual entry on the premises before suit brought. 1 Hilliard, Real Prop. 2d Ed., p. 366; Chalker v. Chalker, 1 Connec. R. 79; Lincoln v. Drummond, 5 Mass. R. 321.
   By the Court. Duer, J.

In our opinion, the only reasonable interpretation of the defendant’s answer, is, that it admits the fact of underletting, and denies merely that the act was a violation of his covenant, and without the consent of the plaintiff. The denial that the underletting was a breach of his covenant, as denying a conclusion of law, and not the existence of a fact, must be rejected as immaterial. And if the answer is to be construed as averring that the plaintiff gave his consent to the underletting, this was a matter of defence, the burden of proving which rested upon the defendant. The plaintiff was not bound to prove a negative, and in proving the execution and contents of the lease, gave all the evidence that under the pleadings was requisite to maintain the action. (Mann v. Morewood, 5 Sand., p. 557; Catlin v. Gunter, ante, p. 253.)

The objection that no proof was given of an actual entry by the plaintiff previous to the commencement of the suit, is answered by that provision in the R. S. to which we were referred on the argument (2 R. S. 2d Ed. p. 233, or p. 306), and which we construe as dispensing with the necessity of such proof in all cases whatever. The commencement of a suit for the recovery of the land is now equivalent to an entry at common law, and the right of the plaintiff to enter and take possession is all that he is bound to prove upon the trial. It is this construction, as we read the opinion of Ch. J. Savage, which the Supreme Court gave to the statute in the case -of Siglar v. Van Riper (20 Wend. 414). It is true that the section in the R. S. containing the provision in question is found in the title which treats of the action of ejectment, and that this action, in its name and form, has been abolished by the Code; but the provision relates, not to the form of the action, but to the nature of the proof to be given on the trial, and is, therefore, in our judgment, one of those general provisions which the Code has expressly declared shall be retained (Code, § 455).

Judgment upon the verdict must be entered for the plaintiff.

       The following is the section referred to:—g 25. “It shall not be necessary for the plaintiff to prove an actual entry under title, nor the actual receipt of any profits of the premises demanded; but it shall be sufficient for him to show a right to the possession of such premises, at the time of the commencement of the suit, as an heir, devisee, purchaser, or otherwise,” The words “ or otherwise” were plainly inserted to cover a conditional right of entry, since all other cases are covered by the previous words.


author: Mason, J.

text:
    Leroy v. Halsey.
    (Before Mason, J.)
    Sept. 1851.
    Rules to be observed in examining a judgment debtor.
    The judgment debtor may be cross-examined.
    The facts sufficiently appear in the opinion.
   Mason, J.

The execution in this case having been returned unsatisfied, Samuel F. Halsey, one of the defendants, was brought np under the two hundred and ninety-second section of the Code, to answer concerning his property. To the question, “ Are yon a housekeeper ? ” the defendant answered, “ My wife has a lease of the place on which I reside, and owns the furniture, and I reside with her, she having a separate estate.”

The plaintiff’s counsel objected to the last part of the answer, because not responsive to the question, and because, in stating that his wife has a separate estate, he undertakes to give in evidence a fact which can be proved by written evidence alone.

It is undoubtedly true that a debtor, on such an examination, is not allowed to make evidence for himself by stating matters not called for by the question put to him; but he is allowed to state, in his answer, to such facts as are necessary to enable the court to understand the true position of the thing or matter inquired of. A debtor cannot always give a categorical answer to a question skilfully put, upon a knowledge of the facts, and possibly with a view to involve him in difficulty. Thus, in the present instance, if the defendant should have answered yes ” to the question, his answer unexplained would seem to imply that the establishment in which he lived belonged to himself. If he had said “ no,” his answer might have been contradicted by those who judge only by external appearances; and he might seem to have violated the truth. It was, _ therefore, proper for him to give in his answer the facts, which he has done, so as to bring out what he conceived to be the exact state of the case. The answer, however, thus given, cannot be considered as conclusive, or evenprvmd, facie proof, either that his wife owns the furniture, or that she has a separate estate, or as in any way precluding the plaintiff from making farther inquiries into the subject. It is only to be considered explanatory of his position in the house,—apparently the head, and yet having and exercising no ownership or control. The plaintiff is still at liberty, if he thinks proper, to apply for a receiver, and to have the ownership of the wife, and the fact of her separate estate, examined into, in a proceeding instituted for that purpose; and he is also at liberty to examine the defendant further as to the particulars relative to this alleged separate property, so far as to ascertain whether or not the defendant has any interest in it. In this point of view I consider the next question, to wit, “ Did you purchase any of the' furniture in the house in which you reside ? ” to have been proper. It was not, as the defendant’s counsel contended, an inquiry into the purchase of property which might have been bought a long time ago, and may have been parted with; but the inquiry was limited to property then in the house in which the defendant resided with his wife, and of which he has apparently the possession.

The object of the examination is, to ascertain whether the debtor has any property subject to or exempt from execution, which ought to he applied to the plaintiff’s claim. He is required to appear and' answer “ concerning his property,” that is, the property belonging to him at the time of the examination, or bound by the judgment; and every question tending to throw light on that subject is pertinent. It is not sufficient that the defendant answer generally that he has no property: the plaintiff may prosecute his inquiries, notwithstanding such , an answer. If the defendant is in possession of any property, the plaintiff may ask, when and where and how he obtained the possession, and on what terms he now holds it. If the defendant is not in the possession of any property, he may be asked whether he had any, or was interested in any, a short time previous to the judgment, and what has become of it; and if he answer that he has sold it absolutely, he may be asked what was the consideration of the sale, and what has become of the proceeds, so as to ascertain whether any portion of them is in his hands, or due to him. But if it appear that he has not in his possession, or under his control, any portion of such proceeds, the inquiry respecting such property or its proceeds can go no further. There is in such case nothing for the creditor to receive. If the answers to the questions throw any doubts as to the bona Jodes of the sale, the examination may be thorough on that point; as a fraudulent transfer of property may not afford any protection against a creditor. (Green v. Hicks, 1 Barb. Chan. R. 316, 317.)

It is impossible to lay down any particular rules on this subject, which shall be universally applicable, farther than this, that the whole examination must have, for its single object, to ascertain whether there. is any property of the debtor which ought to be applied to the payment of the plaintiff’s claim; and the extent of the inquiry, in each particular case, must be left to the good sense of the officer under whose direction it takes place, having in view this general .object.

An important alteration was made in this 292d section, in the last amendment of the Code: it is, that in an examination under it either party may examine witnesses in his behalf, and the judgment debtor may be examined in the same manner as a witness. He may, therefore, be examined in his own behalf on the subject matter of the direct examination, his examination and cross-examination being bable to be rebutted, as provided in §§ 393 and 395.

The witness, therefore, must answer whether he purchased any of the furniture of the house in which he now resides; and he will have ample opportunity in his cross-examination, if not before, to explain all the particulars in relation to it.

And, in the future conduct of the examination, the counsel on both sides will be governed by the rules herein above laid down.


author: Bosworth, J.

text:
    Bogardus v. The Rosendale Manufacturing Co.
    Sept. 14, 1852.
    On a demurrer to a bill in equity in the Supreme Court, that court gave judgment for the plaintiff, overruling the demurrer with costs. This court reversed that judgment. The Court of Appeals reversed the judgment of this court, and affirmed that of the Supreme Court at special term, “ with costs.” The words “ with costs” in the judgment of the appellate court, does not, in such a case, mean the costs of that court, but of the court below. A remittitur regularly filed in the court below, will not be taken off after an order has been entered to execute the judgment of the appellate court, without a suggestion from such court, that the remittitur does not conform to its judgment, or has been irregularly issued.
    [The decision, in this case, was made on consultation "with Chief Justice Oaklet, and Justices Doeb and Campbell, and with their concurrence.]
    Tbce defendant demurred to a bill in equity filed by the plaintiff in the Supreme Court. That court at a special term overruled the demurrer, and gave judgment for the plaintiff, with, costs. An appeal was taken to the general term, and while pending, it was transferred to this court. This court reversed the judgment with costs. The Court of Appeals reversed the judgment of this court, and affirmed that of the Supreme Court at special term, with costs. The remittitur was filed in this court, and an order entered that the judgment of the appellate court be made the judgment of this court, and that the plaintiff have execution thereof. The plaintiff claimed that the judgment of the appellate court gave him the costs ' of that court as well as of this court. The defendant apprehending that such a construction of it might be sustained, moves for an order vacating the order entered, on filing the remittitur, and that the remittitm* be taken from the files of the court, to enable him to move the appellate court to correct the remittitur. The affidavits on which the motion is made, state, among other things, that one of the judges of the appellate court informed defendant’s attorney, that the judgment, as actually pronounced, only gave to the plaintiff the costs in the Supreme Court up to and including those of the judgment at special term. They also contained an abstract or statement prepared at the time of the decision, by the same judge, of the judgment-rendered. This statement declared in terms, that the judgment of this court was reversed, and that of the Supreme Court at special term affirmed, “with posts of the court below.”’
    N. E. Mount, Jr., for defendant.

      A. F. Smith, for plaintiff,
   Bosworth, J.

This was an equity suit. It is the uniform practice of the Court of Appeals, as it was of the court for the correction of errors, not to give costs of the appellate court on reversing the decree of a subordinate court in an equity suit. The remittitur shows that the judgment of this court was reversed, and that of the Supreme Court affirmed “ with costs.” It is not stated expressly that it is affirmed “ with costs of the appellate court.” As effect can be given to the words, “ with costs,” without holding them to give, contrary to the settled practice of the appellate court, the costs of that court, it will probably do justice to all parties, and not be an overstrained construction to hold them to mean such costs as are usually awarded, instead of such as are invariably denied, in such cases.

The judgment of the Supreme Court was one which, by its express terms, gave costs. Therefore a simple affirmance of that judgment, though absolutely silent as to costs, would necessarily have given costs of the proceedings in the Supreme Court, prior to, and inpluding the judgment rendered therein, and thus affirmed. The words “ with costs,” can have no meaning, as applicable to the costs given by that judgment.

But by construing them to mean costs of the proceedings in the court whose judgment was reversed, effect is given to the words, precisely as if the remittitur had read “ with costs of the court below.” Such costs are usually given in •such a case.. If the Superior Court had affirmed the judgment of the Supreme Court, the affirmance would have been with costs. The appellate court renders such a judgment as the subordinate court should have done.

I think it proper, therefore, to hold, in this case, that the fair meaning of the words, “with costs” in the remittitur, is the same, as if the words had been “ with costs of the court below.” The papers before me' tend to'show that such was the judgment actually pronounced. Under this construction of the legal effect of the judgment of the appellate court, the motion must be denied, as there is nothing in the moving papers to indicate that the remittitur does not accurately conform to the actual judgment of the court.

It has been decided by this court, upon full consideration, that after a remittitur has been regularly filed, and an order entered to carry into effect the judgment of the appellate court, the order will not be vacated and the remittitur taken from the files, without some suggestion from the appellate court itself, that the remittitur does not conform to its judg- ' ment, or has been irregularly issued. (Selden v. Vermilyea et al., 3 Sand. S. C. R. 683.)


text:
    H. Hersenheim v. Thomas Hooper and Henry Hooper.
    Under § 292 of the Code, a judgment debtor, residing out of the city and county of New York, cannot be required to appear before a judge of the Superior Court to be examined concerning his property, after the return of an execution unsatisfied, notwithstanding the judgment was recovered in that court. In such a case, the order can only be made by a county judge of the county where the debtor resides, after an execution has been issued to that county and returned unsatisfied; and the order must require the debtor to appear in the latter county.
    Chambers, 9th October, 1852.—A judgment was recovered in this court against both defendants. Thomas resided in Kings County.; a transcript was filed and a judgment docketed in that county. An execution was issued to the sheriff of that county, and returned by him unsatisfied. On the affidavit of these facts, an order was made by a judge of this court, requiring Thomas Hooper to appear on a day named, before a judge of this court, in the city of Hew York, to make a discovery on oath concerning his property pursuant to § 292 of the Code.
    Thomas Hooper now moved to vacate the order on the ground that it could be granted only by a county judge of Kings County.

      C. T. Cromwell, for Thomas Hooper.

      Chas. Hen. Smith, for plaintiff,
   Bosworth, J.

The defendant is a,resident of this state, and resided in Kings County, when the execution was issued, and the order was made. Section 292 of the Code is express, that when an execution against the property of a judgment debtor, “ issued to the sheriff of a county where he resides,” has been returned unsatisfied, the plaintiff is entitled to an order from the judge of the court, or a county judge of the county to which the execution was issued, requiring such judgment debtor to appear and answer concerning his property before such judge at a time and place specified in the order, within the coxxnty to which the execution was issued. ' .

The obvious meaning of the Code is, that a resident debtor shall be brought up for an examination only in the county in which he resides. An execution must be first issued to the county where he resides, and the order must require bim to appear at a specified time, and answer within the county to which the execution was issued.

If no judge of the court resides in the county to which the execution was issued, the order must be obtained from a county judge of that county. The order must require the debtor to appear before the judge by whom it is made, and at some place within the county to which the execution was issued, which must be the county where the debtor resides. It was not intended that a judge of this court should have proceedings of this kind conducted before him out of the city and county of New York.

The order, therefore, could not properly be granted by any judge except the county judge of Kings County, and so far as it relates to Thomas Hooper, must be discharged.


text:
    Salter v. Malcolm,
    October 8th, 1852.
   When a'Eeferee reports that nothing is due to the plaintiff, and it appears from his report that the case had not been heard before him, but that his decision was founded upon the default in appearance of the plaintiff and his. counsel on the day appointed for a hearing,—the proper judgment to be entered is a dismissal of the complaint, not an absolute judgment, as upon a verdict. The judgment ought no more to be an absolute bar in such a case, than in that of a nonsuit upon a trial.

So held by Dues, J., to whom the question was referred in the above case; Campbell and Bosworth, Justices, concurring.


author: Duer, J.

text:
    Anonymous.
    A fee of $10, not to be allowed for each time that a cause is noticed before a referee.

      At Chambers, October, 1852. Costs. The plaintiff had obtained a judgment upon the report of a referee and claimed upon the adjustment of costs, before the clerk, $10 for each time that the cause had been noticed for a hearing. The clerk had refused to make the allowance, and by the consent of the attorneys the question was referred to the decision of the judge at chambers.
    It was insisted on the part of the plaintiff that the rejected charge, if not justified by the letter, was within the spirit and meaning of subdivision 8, in § 307 of the Code, which gives $10 to either party for any circuit or term at which the cause is necessarily on the calendar, and is not reached, or is postponed ; and the counsel quoted and relied on the case of Benton v. Bugnall( 1 Code, R. N. S. 229), as an express decision.
   Duer, J.

With all possible respect for the judge who made the decision that has been cited, it is impossible for me to follow it. I cannot say that a day, appointed for a hearing before a referee, is a circuit or term, general or special, or that his private docket, if he keeps any, is a calendar. In order to meet a supposed equity, I cannot stretch a statutory provision to a case which its terms cannot, without violence, be made to embrace. If there is a casus omissus-, the Legislature must supply it.

Even were the terms of the Code so ambiguous, that by a possible construction they might cover the rejected charge, I still should bé very unwilling to allow it. Proceedings before referees, as usually conducted, are sufficiently protracted and expensive, and it is not at all desirable to increase the temptations to delay. I must affirm the decision of the clerk.

Oaklet, Ch. J., and Bosworth, J., concurred.


text:
    Knehue and another v. Williams.
    In an action to compel the delivery of a document in writing, the court will not set aside the proceedings on the ground that the paper, upon its face, has no value, if evidence to prove value may be given on the trial.
    The question whether value can be shown by extrinsic proof is a question of law, which, -when the document is set forth in the complaint, or is annexed, is proper to be raised by a demurrer.
    (Before Duer, J.)
    Oct. 9, 1852.
    A warehouse-entry,"if evidence of the title of its possessor to the goods which it describes, is as properly a subject tif ah action for its delivery as a Certificate of stock or a hill of exchange.
    This, was an action to compel the delivery of a warehouse-entry, of which a copy was annexed to the'complaint. The document was entitled “ Warehouse Entry,” and purported to be an entry at the custom-house of certain merchandise imported by'the plaintiffs; but it was not signed by the collector, warehouse-keeper, or any other officer of the customs, nor was it stated to be assignable.

      JoaoMmsen, for the defendant, now moved to set aside all the proceedings, upon the ground that the entry was not, upon its face, a negotiable instrument having value, and, consequently, was not replevisable.
   Duer, J.

It is a sufficient reason for denying this motion that the plaintiffs, in the affidavits which they were required to make to obtain a delivery (Code, § 207, sub. 1-6), have sworn that the entry has a certain value; and I apprehend that I have no right now to say that this allegation is erroneous or false. It is true that the paper has no value upon its face, and, apparently, can be of no use to any person holding its possession; but I am by no means certain that this defect may not be sup-, plied by evidence upon the trial. I cannot say that it may not, and will not, be proved, that an original warehouse entry is, by the usage of merchants, an evidence of title, 'the possession of which is indispensable to enable the importer to dispose^ of his goods, so long as, the duties being unpaid, they remain in a ' public store; and it may be, that it is only upon the production of this entry, and only to its possessor, that the goods are ever delivered from the warehouse. These suppositions are not excluded by the mere fact that the entry is not signed, since there may be other means of ascertaining its identity and genuineness, of which the counsel and myself are now ignorant. At any rate, the question whether • extrinsic proof may he admitted to show the value of the entry, is regarded by me as a doubtful question of law, which can only be properly raised and decided upon a demurrer. There can be no difficulty in raising the question in that form, since the entry, as a copy is annexed and is referred to, may well be considered as a part of the complaint. At present it is enough to say, that, if the document to which the suit relates has no value, the defendant cannot be prejudiced by its delivery; while the plaintiffs, if it has the value they allege, may sustain an irreparable loss, if their proceedings are now set aside.

I do not understand it to be' denied, that, if the character and value of a warehouse-entry are such, as I have supposed they may be, its delivery may properly be claimed in an action like the present. It is settled, that a bill of exchange and of lading, and a certificate of stock, may be replevied, and between them and an entry, which is a transferable evidence of title, it seems to me no tangible distinction can be stated.

The motion is denied, .but without costs. I cannot say that it ought not to have been made,

       This decision was approved of, upon consultation, by all the judges.


author: Oakley, Ch. J.

text:
    Darby, Administrator, &c., v. Condit.
    (Before Oakley, Ch. J.; Duer and Campbell, J.J.)
    General Term,
    October 16, 1852.
    Security for costs cannot be required of an executor, administrator, or trustee, under § 317 of the Code, as amended in the session of 1852, merely upon the ground that the estate which he represents is insolvent.
    The power given to the court of requiring security from an executor, ¿se., is strictly discretionary.
    Appeal from an order at. chambers, denying, with costs, a motion on the part of the defendant, that the plaintiff should be required to file security for costs.

      E. F. Treadwell, for appellant, said that by the last addition made to § 317 of the Code, the cotirt had power to require security for costs from the plaintiff in all the cases mentioned in the section. The cases mentioned in the section were suits by an executor, administrator, or trustee, he therefore insisted that in all such suits the court was bound, upon motion, to require the security, provided it appeared that the defendant would probably lose his costs unless it were given. Here the affidavits which he had read alleged that the estate was insolvent, and the allegation is not denied.

      Packard, contra.
   Oakley, Ch. J.

The section upon which the defendant’s counsel relies declares in terms that an executor, &c., shall not be personally liable for costs, except for mismanagement or bad faith in the action. Ho mismanagement or bad faith is imputed to this plaintiff. It is not pretended that, should he fail in the suit, it is at all probable that a judgment for costs could be obtained against him. By granting this motion, therefore, in the form in which it is made, we shall render the plaintiff personally liable for costs from which the Code declares he shall be exempt. To render him liable upon a bond or undertaking, when he cannot be rendered liable by a judgment, would be to defeat the intention of the Legislature in his favor. It would be a virtual, though indirect, repeal of the law. We are clearly of opinion, that the discretionary power which is given to the court can only be exercised when it is rendered probable, that a judgment, directing the plaintiff to pay the costs, will be given; and that the security, when required, must, in all cases, be made to depend upon the judgment,—that is, by its terms is not to be valid, unless such a judgment shall be rendered. We are also of opinion, that the security ought not to be required, even when the estate is insolvent, unless it also appears that the plaintiff is himself insolvent. When he is solvent, the judgment will be a sufficient security.

When the Legislature says that the court may ” exercise a certain power, the word “ may ” will, in some cases, be construed as imperative; but never when, as in the present case, the words “ in its discretion ” are added. The power is then discretionary, in the fullest sense of the term. We are not prepared to say in what cases the broad discretion, which has been given to ns by the section under consideration, will be exercised; but we are satisfied that cases in which it can properly be exercised will rarely occur.

The order appealed from is' affirmed, with $10 costs to the plaintiff, to abide the event.


text:
    Alder v. Bloomingdale impleaded with Schmidt.
    (Before Duer, J.)
    At Special Term,
    Oct. 10, 1852.
    The words, “any instrument for the payment of money only,” in § 162 of the Code of 1851, mean an instrument which, on its face, is evidence of the debt which is claimed to be due.

      Hence, when not only the instrument itself, but extrinsic facts, are necessary to be proved to enable the plaintiff to recover, the existence of these facts, as constituting in part the cause of action, must be averred in the complaint.
    A promissory note, in a suit against an endorser, is not an instrument for the payment of money only, since, to enable the holder to recover, a regular demand of payment and notice of refusal are necessary to be proved.

      Hence, a complaint against an endorser containing no averment of these facts, is bad upon demurrer.
    The action was against the defendant Schmidt as the maker, and Bloomingdale as the endorser, of a promissory note for $150. The complaint set forth a copy of the note, and averred that it was duly endorsed to the plaintiff before it became due, but contained no averment that it had been duly presented for payment to the maker, and that due notice of its dishonor by him had been given.
    To this complaint, Bloomingdale, the endorser, demurred.

      G. A. Mayer, for the defendant,
    cited 5 How. Prac. Ca. 6.

      P. T. Joachmsen, contra;
    cited 5 How. Pr. Ca. 109.
   Duer, J.

As it seemed to me that the demurrer raised a new and important question of pleading under the Code, I have consulted my brethren, and they concur in the opinion that I now give.

The case turns entirely upon the construction to be given to a clause, which appears for the first time in the amended Code of 1851. Hence, the two cases of Spelman v. Wader, and Gay v. Paine (5 How. P. Rep. 6 id., p. 107), which were cited on the hearing, have no application, since they were both decided before the clause in question was enacted. In the revision of 1851, it was added to § 162, which provides, that the performance of a condition precedent may be averred in general terms, and the words added are as follows: “ In an action or defence founded upon an instrument for the payment of money only, it shall be sufficient for a party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party, a specified sum which he claims.”

The question now to be determined is, whether a negotiable promissory note, within the true meaning of this provision, and as against the endorser, is an instrument for the payment of money only. If it is, the complaint is sufficient, and the demurrer must be overruled; if it is not, the general rule that a , complaint must set forth all the facts which constitute the cause of action, all which he is bound to prove in order to maintain his suit (Garvey v. Fowler, 4 Sandford, 666), must prevail, and the demurrer, consequently, be sustained.

The words “ an instrument for the payment of money only,” if strictly and literally construed, mean, an instrument which creates no obligation on the part of the person who is sought to be charged, other than for the payment of money; which contains on his part, no other promise, stipulation, or covenant, whatever; but the consequences of this literal construction are so unreasonable that we cannot believe that it expresses truly the intent of the framers of the Code and of the Legislature. A contract in writing for the building of a house between the owner and builder, is, on the part of the owner, an instrument for the payment of money only, although the payments to be made by him, invariably depend upon the completion of the whole or of portions of the work by the builder. Hence, if the clause in question is applicable to such a contract, as it must be, if its literal construction be adopted, it will be sufficient for the builder, in an action against the owner, to set forth in his complaint a copy of the agreement, followed by an averment, that there is due to him thereon from the defendant a specified sum which he claims, without averring the completion of the whole or any part of the work he had stipulated to perform; or to state the proposition in a more general form, it will never be necessary, in an action founded upon a written agreement, to aver, either generally or specially, the, performance of a condition precedent, although the liability of the defendant for the payment of the sum, which is claimed to be due, depends solely upon its performance.

It may be said, that, in judging of the character of an instrument we must look at the stipulations of both the parties, and hence that an agreement which binds either party to the performance of any act, other than the payment of money, is not an instrument for the payment of money only within the meaning of the Code; but this construction by no means removes the difficulty that I feel, in assenting to the construction which the plaintiff’s counsel urged me to adopt. There is a large class of contracts, strictly unilateral, in which the liability, and that a liability for the payment of money, of the only party who is bound, depends alone on the happening of a contingent event, and to all these, according to the argument, this new provision of the Code must be construed to apply. A policy of insurance, for example, contains no stipulations on the part of the assured, and it is only for the payment of money that it binds the underwriter. Hence, in an action upon a policy, if it must be held to be “ an instrument for the payment of money only,” it will not be necessary to aver in the complaint, even the happening of a loss, much less the time when, the place where, or the peril from which it occurred. It will be sufficient to set forth the policy, and to aver that, by force of the instrument, the sum which is claimed is due from the defendants; and these remarks equally apply, not only to every form of insurance, but, with rare exceptions, to every contract of indemnity. That the Legislature meant that the clause in question should be applied to such cases is most improbable, and it is quite incredible, that the authors of the Code meant to sanction a mode of pleading, so loose, and vague, and indefinite, so utterly barren of the information that ought to be given, -as to be, in reality, more objectionable than any of the ancient forms of pleading, which they determined to abolish. A construction that can only be justified by attributing this intention to them or to the Legislature, I cannot hesitate to reject.

Hor is this construction necessary to be adopted, in order to give effect to this new provision of the Code. I am' satisfied that its intended purpose will be fully answered, by limiting it to the cases, in which the obligation created by an instrument for the payment of money only, is not only certain, but simple and absolute; and to effect this, the word “ only ” may well be understood to mean, not merely exclusive of any other promise or stipulation, but free from any condition or contingency. In my judgment, the clause is only applicable, where the instrument set forth in a complaint, is upon its fáce evidence of the debt, which is claimed to be due, evidence, not merely of the right of the plaintiff to recover, but of the liability of the defendant to pay, so that, in all cases, where proof, not merely of the instrument itself, but of extrinsic facts, is necessary to be given, the existence of the facts must be averred in the complaint. It is this construction that was virtually adopted by this court, in the case of Lord v. Cheesebrough (4 Sand. 696), in which it was held that, in an action by the endorsee of a promissory note, against the maker, the transfer and delivery of the note to the plaintiff must be distinctly averred. The very ground of this decision was, that when the right of the plaintiffs to maintain the suit, depends upon something more than the instrument itself, the additional facts must be averred in the complaint. Applying the principle to the case before me, it necessarily follows, that the demurrer must be allowed. The instrument set forth in the complaint, is no evidence of a debt due from the defendant who demurs. A negotiable note, although endorsed, contains no promise of payment on the part of the endorser, since, unless we resort to the contract, which the law implies, the endorsement is nothing more than an order upon the maker of the note, to pay its contents to its lawful holder. Let it he admitted that, the same effect must be given to the instrument, as if the contract which the law implies, were expressed in terms, the contract of the endorser is not, like that of the maker, an absolute promise to pay the note at maturity. It is a promise to pay, provided the payment shall first have been properly demanded of the maker, and due notice of his neglect or refusal shall have been given. Such demand of payment, and notice of dishonor, or a statement of facts by which they are excused, the plaintiff must prove upon the trial, and the facts thus necessary to be proved, as they constitute in part the cause of action, must be averred in the complaint. The averment, according to the decision of the supreme court, in Gay v. Paine, may now be made, in general terms, but in some form, general or special, it is indispensable. I am not prepared to say, that a complaint, in which it is omitted, may not, in some cases, be amended upon the trial, but I must hold, that it is bad upon demurrer.

A single topic remains to be noticed. It was strongly urged by the counsel for the plaintiff, that the new provision in the Code was intended by the Legislature, as a mere re-enactment, with only a necessary change of form, of the former statute, which permitted a promissory note, or bill of exchange, to be given in evidence, under the money counts, provided a copy had been annexed to the declaration, when served, and it was therefore insisted, that in suits upon these instruments, no averment that the Legislature had judged to be unnecessary, ought now to be required. Some force might be justly allowed to those considerations, had the provision in the Code been confined to negotiable paper; but it is not thus limited, and we have no right to narrow the construction of the general terms that are used, nor to give to them any other than an uniform and consistent interpretation. We cannot adopt a rule in relation to negotiable paper, different from that, which all must see, and the counsel admitted, it would be our duty to follow, in an action upon a policy of insurance. The words of the Code include every instrument for the payment of money only. There can be but one proper definition of such an instrument. To all contracts that the definition embraces, the provision must be applied, and to none that it excludes. It has been shown, that it excludes the contract of an insurer, and it must, exactly for the same reasons, exclude that of an endorser.

The defendant is therefore entitled to judgment, but the plaintiff, upon the payment of $10 costs, may amend the complaint, and ten days are allowed him for that purpose.


text:
    Harthouse v. Rikers.
    (At Chambers,
    Oct. 23, 1853.)
    Where, on examination, supplementary to execution, it appeared that the judgment debtor was a public carman, was a house-holder, and had a family for which he provided, and had “ one horse, a harness, and cart,” held that they were exempt from execution, and came within the definition of the word team, as used in the act of 1842, ch. 167
    Judgment was had against the plaintiff for costs of the action. On proceedings supplementary to execution, the examination disclosed that he .was a public carman, was a house-holder, and had a family for which he provided, and had “ one horse, a "harness, and cart,” which were exempt from execution, provided they came within the proper definition, of the word “ team.” Defendant insisted that the cart was not exempt, moved for a receiver, and that the cart be delivered over to the receiver.
   Bosworth, J.

(On consultation with all the other judges of the court.) A team is “ two or more horses, oxen, or other beasts, harnessed together to the same vehicle for drawing, as to a coach, chariot, wagon, cart, sled, sleigh, and the like.— Webster’s Die., unabridged. Team-work is “work done®by a team, as distinguished from personal labor.”—Id.

The object of exempting the team, of a house-holder, was doubtless to enable him to do team-work. Horses, without harness or vehicle, would be of but little service relatively. Morse v. Keyes, 6 How. P. R. 18, 21, concedes that a “ harness” is within the meaning of the word team, but not the vehicle to which the team may he harnessed. This concession seems to be a consequence of the definition given by the court of the word “ team.” The court said: “ A team is said to be two or more horses or oxen harnessed together.” I think Webster’s definition better accords with the common understanding of the meaning of the word.

However inartificial the expression may be, yet the phrase, a one-horse team,” is often used, and expresses a clear idea to the common mind. Unless the word team,” as used in the act of 1842, ch. 157, includes that, then, a single horse, harness, and cart, would not be exempt, though used together by a house-holder as a team, to do team-work, and though necessary for the support of his family.

I think a team, within the meaning of that act, means horses or oxen harnessed to a vehicle, and includes the three, and that though there be but a horse, harness,' and cart, instead of two horses, harness, and a wagon, they are exempt from execution, if of less value than' $150, and are necessary for the owner’s support, he* being a house-holder, or having a family for which he provides.

Under a contrary construction, the act, so far as it exempts a team, would have practically no application to this city. The “ team” of a carman, would not be a team within the meaning of the act.

I think it is exempt from execution, and the motion for a receiver, and that the cart of the plaintiff be delivered to such receiver, is denied. (Vide Hutchinson v. Chamberlin, 11 Leg. Ob. 248.)


author: Campbell, J.

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    Bowman v. Sheldon.
    There may be a reference of any specific question in any action where the taking of a long account is necessary.
    An attorney, who has an action pending ogainst a client foj professional services, may have a reference for the purpose of ascertaining what amount of compensation he is entitled to, as attorney, for services and disbursements in the suits which he has conducted for the defendant.

      (At Chambers.
    Campbell, J.)
    Oct. 28, 1852.
    The reference in such a case will be analogous to the former practice, in relation to the taxation of costs, where the question of retainer and the ultimate right of the attorney to recover is reserved.
    The amount thus reported will not necessarily be the limit of such recovery.
    The facts appear in the opinion of the judge.
    Bowman, in person.

      A. Underhill, for defendant.
   Campbell, J.

(with the concurrence of all the judges). This action was commenced to recover compensation from the defendant for attorney and counsel fees and disbursements in general suits and proceedings in different courts. The plaintiff having been required by the defendant to tax his attorney’s bills, procured the taxation of several of them. On application to one of the justices of the Supreme Court to tax a bill where the costs accrued since the Code, the justice declined doing so, on the ground that there was no authority to tax costs given by the Code, except when they enter into the judgment, and that in such cases they are adjusted by the clerk. For the purpose of obtaining a taxation or adjustment of this bill, and some other bills of small amounts in old suits, the plaintiff now applies for a reference.

It was objected by the defendant that there was now no such thing as taxation of attorneys’ costs as between attorney and client; that the attorney’s compensation depended upon an agreement express or implied; and that an action by him against his client was like all other actions for services rendered, and if the trial of such action would involve the examination of a long account, it must take the usual course, and the whole action and all the issues be referred. To such reference the plaintiff objected, insisting upon his right to try the issues as to his retainer, and the compensation to which he was entitled for counsel fees, before a jury.

The first sub-division of § 271 of the Code provides, that the court may order a reference “ where the trial of an issue of fact shall require the examination of a long account on either side, in which case the referee may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein.” Sow one of the questions of fact in this case is, what amount of compensation the plaintiff would be entitled to for his services as attorney, and for his disbursements in the various suits which he may have prosecuted or defended for the defendant, provided he shall on the trial establish his right to recover. Strictly speaking, now, as between attorney and client, there are no taxable costs. The compensation of the attorney depends upon agreement, express or implied, with his client. But compensation is given to the client, if successful in the litigation, for these very services rendered by the attorney; and in ordinary oases, perhaps, the implied' agreement would be, that the attorney should be entitled to recover the same compensation from his client. I see no difficulty, therefore, in cases like the present, in ordering a reference, for the purpose of ascertaining what amount of compensation an attorney may be entitled to for his services and disbursements, provided he shall afterwards, on the tidal, establish his right to recover. The reference in such case would be analogous to the former practice in relation to the taxation of costs between attorney and client, which only settled the amount, and not the right to recover. As the law now is, such amount may not always be the' limit of the recovery, It may perhaps, on the trial, be enlarged or diminished by the jury. But by such reference, the taking of a long account on the trial would be prevented. The motion for such a reference is therefore granted, but without costs to either party,


text:
    Brewster and others v. Hodges and Peck.
    October 29th,
   The questions raised turned upon the proper construction of § 219 of the Code, and the judges consulted by Campbell, J,, were all of opinion that, upon a motion to dissolve an injunction order granted during the pendency of an action under the last clause of that section, the only question to be considered is, that of fraudulent intent. Affidavits denying the debt sworn to by the plaintiff, cannot properly be received. They were also of opinion, that the effect of the temporary injunction, that can alone be properly granted in such a case, is not to restrain any removal or disposition whatever "of the defendant’s property, but only such a removal or disposition with an intent to defraud creditors. The words of the clause under consideration are, “when during the pendency of an action, it shall appear by affidavit, that the defendant threatens, or is about to remove or dispose of his property with intent to defraud his creditors, -a temporary injunction may be granted to restrain such removal or disposition.”


text:
    Niles v. Lindsley.
    October, 1852.
    Where the claim of title to real property arises on the pleadings, and the plaintiff recovers a verdict, he is entitled to costs of course.
    If the defendant puts the title in issue and compels the plaintiff to prepare to prove it, he cannot relieve himself from the liability, by admitting the title on the trial.
    The only evidence that can be received as to whether or not , the title came in question at the trial,” is the certificate of the judge who tried the cause.
    Tms was an action of trespass upon real estate. The com- ■ plaint alleges that in 1847, and until the time of the commencement of the action, the plaintiff was seized in fee simple and possessed of fifteen lots in the 19th ward of the city of Mew York.
    That in 1850, the defendant unlawfully entered upon the lots and carried away a large quantity of earth, which was itself valuable, and also injured the market value of the lots by defacing them.
    The answer denies any knowledge or information sufficient to form a belief as to the plaintiff’s ownership, and then alleges that the defendant bought the earth, and obtained leave to enter and cart away, from an alleged agent of the plaintiff, whom he paid for the same, and denies that he (defendant) damaged the lots.
    It appears from the pleadings that the plaintiff was not in the actual possession at the time of the trespass.
    The cause came on for trial on the 19th day of October, 1852, before the chief justice, and the plaintiff recovered a verdict for six cents.
    The plaintiff’s attorney noticed his costs for adjustment, when the defendant’s attorney obtained an order to show cause on the 26th' October why an order should not be granted “ directing the clerk not to enter judgment against the defendant for any costs of the plaintiff, but that he adjust the defendant’s costs in the action and enter judgment therefor in his favor against the plaintiff,” »

      E. L. Fancher, for the motion.
    1. ¡No claim of title to real property arises on the pleadings. The defendant did not in his answer make any claim of title to the lots, nor did he dispute the plaintiff’s title; on the contrary, both points of defence raised by the answer, viz. that “ defendant entered by permission of plaintiff’s agentand, 2d, that “ other trespassers, and not defendant, caused any injury that was done,” both necessarily and expressly assume that the title was vested in the plaintiff,
    2. On the trial plaintiff’s title was admitted.
    ¿5. The mere fact that the action was for a trespass on lands, does not entitle plaintiff to costs, There must be “ a claim of title,” or an issue involving a dispute as to title arising on the • pleadings, or called in question at the trial, and a recovery on that question. (Burhams v. Tibbits, 7 How. Pr. R. 74, 77.)
    This was not the case here. Defendant failed to prove the authority of the agent, and plaintiff had a verdict for breaking his close.
    The answer of leave from an agent, and an attempt to prove it, expressly admit plaintiff’s title; then he cannot have costs if he recover less than fifty dollars. (Wickham v. Seeley, 18 Wend. 649.)

      Other authorities' show that plaintiff cannot have, but must pay costs. (Brown v. Moyers, 7 Wend. 495; Chandler v. Day, 10 Wend. 563; Koon v. Mazuson, 6 Hill, 44.)

      W. W. Niles, contra.
    1. A perfect issue, on the question of title, was raised by the pleadings (Code, § 149), and the subsequent allegation that defendant committed the acts complained of, by authority of an alleged agent of plaintiff, does not do away with that issue; for aught the court knows he was agent for plaintiff, who was sub-landlord, or even a tenant of the owner.
    2. The alleged points of defence do not “ assume that plaintiff was owner;” a tenant in actual possession may maintain an action for trespass, &c.
    3. In this case, however, we also sue for an injury to the freehold ; in such case possession is not sufficient.
    We must, therefore, allege and prove title, or fail as to that part of the case.
    4. It is admitted by the pleadings that the plaintiff was not in the actual possession; then he could have no verdict at all except by alleging and proving title.
    The claim of title, therefore, necessarily arose upon the pleadings. The counsel cited 11 Wend. 639 and 19 id. 509.
   Duer, J.

I am inclined to think that the certificate of the justice who tried the cause, is the only evidence I can receive as to whether or not “ the title came in question at -the trial.” I must, therefore, in the absence of that, confine myself to' the pleadings.

I am of opinion that the question of title arises upon the pleadings within the meaning of the statute. It is directly put in issue by the first portion of the complaint and answer. The allegation in a subsequent part of the answer, that defendant went upon the lots by leave of the plaintiff’s agent, does not do away with the effect of that issue. As the plaintiff was ■compelled to come prepared to prove title, the admission of his title by defendant at the trial ought not to deprive' him of his right to costs; and even could I adopt the defendant’s present construction of Ms answer, I tMnk, that having taken issue upon the claim of ownership in the complaint, he is estopped from denying that the plaintiff was bound to prove title upon the trial. If he meant by Ms answer to admit the title, he should not have made the issue.

The motion must therefore be denied with costs.

The Chief Justice, Campbell and Boswobth, Justices, concurred.

       ) & relatione W. W. Niles, Esq.


text:
    Anonymous.
    In an action against husband and wife, for a tort committed by the wife, neither can be arrested.

      At Chambers, October, 1852. Upon an application to Hr. Justice Campbell) for an order of arrest against a husband and wife, in an action for an assault and battery charged to have been committed by the wife alone, he was of opinion that the general words of the Code permitting the arrest of a female for “ a wilful injury to person, character, or property” (§ 178), have not altered the rule of the common law, which exempts a married woman from arrest in all cases whatever; and he was also of opimon that the Code, in its reasonable construction, does not authorize the arrest of the husband in any action founded solely either upon the contract, or tort of the wife. He therefore denied wholly the application.
   The other judges upon consultation approved Ms decision.


text:
    George Bridge v. Ira F. Payson and Thos. V. Rogers.

    (At Special Term,
    Oct. 9, 30: 1852.)
    A denial of the jurisdiction of the court, in an answer, must show, that the court had no jurisdiction when the suit was Commenced. Hence, in an action against joint debtors, commenced before the amended Code of 1851 was in force, an answer denying the jurisdiction of the court, upon the ground, that one of the defendants was a non-resident, and that the summons had not been served upon him, was bad, as showing not an original want oí jurisdiction, but only that all the necessary parties were not yet before the court.
    Tens cause was originally commenced against Ira F. Payson alone, and the complaint alleged a sale of goods to him in the usual form. - ,
    The answer denied the indebtedness, and also alleged that if the defendant was indebted, it was for goods sold to Ira F. Payson & Co., a firm in Michigan, and that the firm was composed of the above defendants.
    On these pleadings the cause was tried, and a verdict rendered' for the plaintiff.
    On a bill of exceptions taken at the , trial the defendant appealed from the judgment to the general term, where the • judgment of the special term was reversed with costs.
    Leave was given to the plaintiff to amend, by making Thomas Y. Rogers a party defendant at any time within twenty days.
    The plaintiff' availed himself of the permission, and the amended complaint was against both defendants for goods sold and delivered in the usual form, and claimed $4561f„, with interest.
    This complaint was verified in Hovember, 1851. In January, 1852, the defendant Payson put in a separate answer to the amended complaint, which contained,
    1st. A denial upon information and belief of the indebtedness. 2d. As a separate defence, that the defendant Rogers resided at Flint, in Michigan, and had not been served with a summons in the city of Hew York, and therefore that this court has no jurisdiction of the action.

      To the second defence containing new matter, the plaintiff replied that Ira F. Payson was a resident within the city and county of Few York, and the summons was served on him, and issued against Thomas V. Rogers, and endeavors made to serve it on him up to May 16th, 1852, and that he could not be found in the city, and that by statute, Payson was bound to answer, and that consequently the court had jurisdiction. This reply* was verified on the 18th day of May, 1852.
    The defendant Payson demurred to the reply, and specified as a ground of demurrer, that the action was commenced before the amendment of the statute referred to, and therefore the reply was insufficient, &c.

      H. R. Pierson,, in support of the demurrer,
    insisted that by the Code of 1849, § 33, this court had no jurisdiction of this action, and that the statute passed after the answer and before the reply, could have no application to this suit. ’

      H. Brewster, contra»,

    made the following points:—
    I. That this being matter in abatement, could not be set up after answering on the merits.
    2. That as a complaint may he served with the summons, the defendant served cannot go out of the complaint and answer mere matters of practice which should properly be raised on motion.
    3. That as to Rogers the suit was not commenced, the service of summons being the commencement, and that as service in May, 1852, would give full jurisdiction, therefore, after the amendment to § 33, in 1852, the suit was correctly in court, and could proceed under § 127 of the Code.

      ) Reported ex relatione H. Brewster, Esq.

   By the Court. Duer, J.

In the view that I have taken of this case, it will not be necessary for me to express my opinion on the question decided in Gardener et al. v. Clark (6 Prac. R. 449), where the Supreme Court held, that the same order of defences obtained now as under the old system of pleading.

Our former decision-in this case, by which I am bound, proceeded upon -the contrary doctrine, namely, that all the defences upon which the party relies, whether operating in abatement or in bar, must be set up in the same answer. (Bridge v. Payson, 5 Sandford, 210.) It is a different question in what order the issues so made are to be tided, and that question is not now raised.

The subject matter of this suit, so far as the nature of the 'action is concerned, has always been within the jurisdiction of this court, and the residence of the parties did not necessarily deprive this court of jurisdiction; for, all that the former Code required in case of non-residence was a personal service of the summons, within the city of Hew York.

There was nothing in the Code that required the service on all the defendants on the same day, or within any specific time, or that the service on the non resident debtor should first be made, and as the complaint may be served with the summons, it cannot show whether such service has been made.

If the defendant who had been served thought there was unreasonable delay in proceeding to serve the other defendant, he could apply, under § 274 of the Code, to dismiss the complaint for want of prosecution.

If the plaintiff chose to bring the case to a final trial, and it appeared that under this statute, such steps had not been taken as vested this court with jurisdiction to dispose of the cause, we have held that the complaint should be dismissed.

But if the right of serving the summons on Thomas Y. Rogers, when he should be found in Hew York, existed at the time the answer of Payson was put in, then the fact that it had not been .yet served, did not necessarily deprive the court of jurisdiction in this particular case, and there is nothing in the answer going to show that the plaintiff had not such right.

By allowing the amendment to bring him in, this court at general term, had previously decided, that it was then in time to make such service as would give the court jurisdiction, and if so, I certainly cannot decide on demurrer, that a delay of twenty or sixty days to find the party, made it too late to take the proper steps thereafter to bring the party within the jurisdiction of the court.

In other words, the proper service by which, and by which alone, the jurisdiction of this court over the persons and subject matter would become perfect, is a matter of practice, and is not the proper subject of defence in the answer. This question must be raised in a different way when the want of due diligence or sufficiency of any excuse can be considered.

This part of the answer being therefore bad, judgment must be rendered for the plaintiff on this demurrer.

This makes it unnecessary to pass upon the question as to the effect upon this suit, of the recent amendment of the Code.

If the service upon Rogers in the city of Hew York, at the time the amendment took effect, would have been effectual to clothe the court with jurisdiction, and I think it would, I incline to the opinion that the amendment, which now makes the service on one joint-debtor in the city sufficient to confer jurisdiction, dispenses with further efforts to serve the absent,party, and confers jurisdiction on the court to determine the cause.

The defendant, however, can hereafter raise the question in such form as he may be advised, and when it comes properly before the court, that point can be determined.

Judgment for plaintiff, on the demurrer, with costs to be allowed, as'costs in the cause;

(Affirmed upon consultation by all the judges.)