text:
    CHARLES F. HOLTZ, Plaintiff and Respondent, v. HENRY G. SCHMIDT and EMIL CUNTZ, Defendants and Appellants.
    A court has power to compel, by a subposna duces tecum, the production by a party of his books or papers; and upon their production the court will be in a position to decide upon- their introduction in evidence, and as to the competency of such evidence as they provide.
    A court or referee should not in the first instance order the production of the books and papers as in this case, and on the failure of such production on a motion to punish the witness for ■ his disobedience, hold that the witness was not subject to punishment on the ground that such production would not entitle the plaintiff to inspect the books at the trial. The inspection alone could determine that question.
    A party cannot be compelled by order to produce his books to obtain evidence of a secondary character, where it appears that evidence of a better character, to the same facts, could have been obtained from other sources, and from the testimony of living witnesses.
    The application must show that the discovery is needed, and necessary ; and certainly that cannot be the situation when it appears there are other and better means of obtaining the same evidence.
    Before Monell and Spencer, JJ.

      Decided December 31, 1871.
    Appeal from an order granting an inspection, &o., of defendants’ books.
    During the trial of this action by a referee, the defendant Schmidt was subpoenaed, duces tecum, to pro dnce the books of account of the defendants. Failing to produce them, a motion was made to punish the witness for the disobedience, which motion was denied by the referee, on the ground that the production of the books, for the purpose indicated by the plaintiff, at the trial, would not entitle the plaintiff to inspect them.
    A motion was then made, upon the petition of the plaintiff, to the special term, for an order for an inspection, &c., of the books, and an order for such inspection, &c., was there made, from which this appeal was taken by the defendants.
    The order contained the following:
    “ It is ordered and adjudged, that said plaintiff and his said attorneys, or either of them, during twenty days from and after the entry and service of this order, have inspection at the store of the defendants, in New York city, during the usual business hours, of their delivery books, cash books, sales books and ledgers, containing entries relating to sales made by the.defendants in the years 1867, 1868 and 1869, of wines and liquors, such as mentioned in the complaint, and that said plaintiff have permission to take copies from said books containing entries of sales made by defendants to the plaintiff, and John Linneman, Park & Tilford, and Acker, Merrill & Co., and showing the prices, quantities and qualities of the wines and liquors sold, and the discounts and allowances on such sales, and that the said defendants verify the same when made : and it is further ordered, that in case of the non-compliance of the defendants with the requirements of this order within the time aforesaid, the answer of the defendants be stricken out.”

      Mr. Charles Tracy, for appellants.

      Mr. Charles Wehle, for respondent.
   By the Court.—Monell, J.

The referee was probably premature in deciding that the production of the books at the trial, would not entitle the plaintiff to inspect them. The proper course would have been, to have compelled the production of the books, and then to have determined as to their competency as evidence.

I took occasion in Central National Bank v. Arthur, 2 Sweeny, 194, to fully examine the question of the power of the court (and the referee now has the same power as the court), to compel, by subpoena .duces tecum, the production by a party of his books or papers, and the conclusion in that case was that the. court had the power. Upon their production, the referee would have been in a position to decide upon their competency, and Ms decision could have been reviewed only on appeal.

The form or order in which the referee met the question, however, is not material, and he may have been entirely right in the decision he made as to the incompetency of the evidence ; but I think the ground upon which he placed his decision was erroneous. The books of a tradesman are always competent evidence against himself, but that does not make it proper to always admit them in evidence. They may be excluded where it'does not appear that they bear any relation to the subject of the controversy. But if they do, arid contain admissions or other evidence against the party, they are certainly competent. Therefore, the referee was, I think, in error in supposing that the only use of the defendants’ books, in this action, would be to assist the witness in giving his testimony.

But I think they should have been produced in obedience to the subpoena, and, when produced, it would have been time enough to have decided upon their competency. Had this view of Ms powers been taken by the referee, the motion which resulted in the order appealed from, would have been unnecessary. And we, think the party should .again go before the referee with this enunciation of the views of the court.

But there is a fatal objection to the order itself.

The object sought for was, to obtain evidence of sales'made by the defendants to the plaintiff and others named in the order. There was no allegation that the evidence could not be obtained from other sources. In- ’ deed it is quite clear that it could have been. The • plaintiff knew of and could testify as to the sales to himself ; and the other persons named were competent as witnesses to testify, as to the sales to themselves. It is indispensable that the petitioner, upon these applications, should show that this discovery is needed ; and it cannot be, if there are other means of obtaining it (Pegram v. Carson, 10 Abb. Pr. 340, 346).

The order should be reversed, with costs.


source: Caselaw Access Project

author: By the Court.—MoCunn, J.

license: Public Domain

text:
    MORRIS RAPHAELSKY, Plaintiff and Respondent, v. JAMES LYNCH, Sheriff, &c., Defendant and Appellant.
    A motion for a new trial on the grounds of newly-discovered evidence, may be made after judgment.
    The practice in this regard, considered and reviewed.
    • Statement of the principles settled in regard to granting new trials on the ground of newly-discovered evidence.

      a. The testimony must have been discovered since the former trial. ' "
    5. It must be such as could not have been obtained with reasonable care and diligence before.
    c. It must be material to the issue •

      d. It must go to the merits of the case, and not to impeach the character of-former witnesses.

      e. It must not be merely cumulative to the evidence on former trial.

      f. The facts must be strong, and the party offering them free from laches or neglect.
    The rules of the supreme court of 1799, denying new trials after judgment, and their effect, and their evasion and non-enforcement,—considered.
    The act of 1882 (laws of 1832, ch. 12) authorized motions for new trials on the ground of newly-discovered evidence, after judgment, and practically repealed the rules of 1799. From 1832 to the enactment of the Code in 1848, the practice was based upon this statute. *
    After the enactment of the Code, the question arose as to whether the act of 1882 was not repealed by the provisions thereof.
    All the decisions reviewed, including Folger ». Fitzhugh, 41 A. T. 228, and as a conclusion therefrom,—Held, that the act of 1832 is now in full force and effect, and is not inconsistent with the provisions of the Code, and that motions for new trials, upon the ground of newly-discovered evidence, will be entertained and decided by the court after judgment in the action.
    Before Barbour, Ch. J., and Jones and McCunn, JJ.

      Decided December 31, 1871.
    Appeal from an order of the special term, denying a motion for a new trial on the ground of newly-discovered evidence, made after judgment had been entered in the action. The points on the appeal, and the facts that formed the basis of this decision, fully appear in the opinion of the court.

      Brown, Hall & Vanderpoel, for defendant and appellant.

      Paris G. Clark and John S. Woodward, for plaintiff and respondent.
   By the Court.—MoCunn, J.

This is a motion for a new trial, on the ground of newly-discovered evidence. The controversy arose about a quantity of tobacco which defendant, on January 7, 1864, levied on, as sheriff of the county. Plaintiff undertook to prove that, some few days before the levy by the sheriff, the property had been transferred to him through the assignment of warehouse receipts. The testimony, although very much shaken by a severe cross-examination, was believed at the time by the jury, and they found a verdict for nearly five thousand dollars for plaintiff. Affidavits are now presented to us, showing that newly-discovered evidence exists, and that that evidence will show this suit to be a conspiracy on the part of the plaintiff and others, and that their design was to use this court to enable them to carry out their fraud against the sheriff. I need not say, that if such a conspiracy exists, or has existed on the part of the plaintiff, as is shadowed forth in the affidavits, it is the duty of this court to intercept it at once.

■ The following principles are settled in regard to granting new trials on the ground of newly-discovered evidence. The testimony upon which the motion is based must have been discovered' since the former trial. It must be such as could not have been obtained with reasonable care before; it must be material to the issue ; it must go to the merits of the case, and not to impeach the character of former witnesses. It must not be cumulative,—the facts must be strong, and the party offering them free from laches. The affidavits presented with the case here show that the facts contained therein were discovered since the trial. They show a conspiracy to enable suit to be brought against the sheriff; and these facts were not discovered until a quarrel took place, after the trial, between the plaintiff and the party from whom he claimed title and the witness on the trial. It could not (the testimony) have been obtained until some of the conspirators disclosed the facts, because it was their secret,—known to them alone—and could not be reached by physical industry. It is material, because it (the new evidence) shows that the plaintiff never owned a dollar’s worth of the property sued for; and it does not'impeach any of the witnesses, because none of them swore to this conspiracy before. It (the evidence now offered and.set up in the affidavits) is not cumulative, for the reason that no proof of any kind was offered by defendant going to show this conspiracy: The defendant is free from laches, because he applied to the court the instant the conspiracy was discovered. In fact, the testimony now sought to be introduced is very material, and not cumulative. It relates to a point upon which no testimony was given on the trial: it relates to the vital point in the case, “ title in plaintiff,.” It is true that Raphaelsky says he bought the property on the fourth, but he does not say that the bill of sale and warehouse receipt were signed and indorsed on the fourth. It was the indorsement of the warehouse receipt and the signing of the bill of sale which gave him the title, and if these were not executed before the attachment by the sheriff, no matter whether dated back or not, his action fails. He says he bought the goods on the fourth. He then had reference, no doubt, to the date of the bill of sale and the indorsement of the warehouse receipt, which were both ante-dated, and not to the actual time of the transaction. They (the receipt and bill of sale) were dated on the fourth ; but the affidavits now presented clearly show that this was a false date, and that the bill of sale and the indorsement on the warehouse receipt were gotten up after the sheriff’s levy, and that they were ante-dated, so as to bring the date before the sheriff’s levy under the attachment. The question as t© the time when the bill of sale and indorsement of the warehouse receipts were actually signed never came up on the trial. It was supposed, at the time of trial, that they were executed on the fourth. It never entered the minds of any one that this was a conspiracy, and (about the date of these instruments) that the papers were dated back. It now appears, by the - wife of the person whose property the tobacco was, and from other reliable proof, that all the^papers were a fraud. We must reasonably conclude that the jury, had they had before them the facts contained in these affidavits, disclosing the newly-discovered evidence attached to the case in this cause, their verdict might have been affected by them, and they might have found for the defendant. These facts had not been disclosed at the time of the trial, but were discovered some time after; and as soon as they were discovered application was made at once. There is, therefore, no laches imputable in not giving them in evidence. If the sheriff’s affidavits be true, he is placed here under great difficulties. When an officer of the law is under real disadvantage, and is at a loss how to act, the court must endeavor to help him as far as possible away from the difficulties; at the same time, it must see that no wrong is done the other party. In regard to the law governing this case;—I would say: First, as to the obsolete rules of 1799, denying new trials after the entry of judgment, and without stay for that purpose: The court, in many instances, in construing the rules of 1799, laid them down so rigidly that in many cases suitors found unreasonable difficulties in their way,—difficulties and inconveniences worse than those which the rules were intended to correct. Indeed, these stern rules (1799) were so disregarded to that extent, and so lightly considered and put in force down to 1833, that in many cases the rule was forgotten, and motions were often made, and granted, for new trials after judgment, with out even a knowledge of the rule being in existence (Roosevelt v. Fulton, 7 Cow. 107.) The sound maxim of policy is, that a greater evil should be avoided for a less, and a less good should give way to a greater. The rules of 1799 were so harsh and oppressive, that the courts acting under them seldom or ever enforced them during a period of thirty-three years. They skillfully or intentionally avoided them; and after years of experience, finding that the rules worked badly, so, at the solicitation of the courts, the legislature, in 1832, passed an act under which a new practice was inaugurated, and this statute allowed the granting of new trials after judgment, and even after execution was issued and money collected (Laws of 1832, ch. 12). It must be borne in mind, that no former act had fixed the rules and ¡ practice. These rules of 1799 were simply adopted by the court without the aid of the legislature, and such rules were always relaxed where good faith was shown by the parties. From 1832 until the adoption of the Code, in 1848 and 1849, an express statute (Session Laws 1832, ch. 12), and the rules of the court passed in conformity therewith, authorized motions for new trials on newly-discovered evidence after judgment. Such motions were constantly made at special term, held every three months, and if judgment had been entered and collected, it was set aside and restitution ordered. Under the Code of 1848 and 1849, a new system was inaugurated. It was a mooted point whether new trials could be granted, the doubt being created by the provision of the Code of 1849, section 265, as to judgment becoming final after four days; but even then it was held, that if a formal stay was merely granted within the four days, a motion might be made any time after judgment. 2 Sandf. 681. Under the Code, however, of 1851 and 1852, the four-day provision contained in section 265 of the Code of 1848 and 1849, and the provisions for a stay, were dropped entirely; and as the Code now stands there is nothing prohibiting such motion; so that the Code is in harmony with the act of 1832 and with the old rules and practice established thereunder. I say in harmony with the. act of 1832, because section 389 of the Code of 1848, and section 469 of the present Code, provide that the then existing (present) rules and practice of the court, that were consistent with that act “shall continue in force, subject to the powers over the same of the respective courts as they now exist” ; and as this section of the Code is now in force, it must follow that ' the practice of allowing motions for new trials after judgment, and without a stay, established by the act of 1832 is in full force and effect and applies to our present practice, and that the rules of 1799 do not apply. On the contrary, the rules of 1799 were wholly abrogated by virtue of the act of 1832, so that they do not now exist at all. Such was the practice laid down by Mr. Justice Slossoít, of this court, in the case of Benedict v. Coffee, 3 Duer, 669. That learned judge says: “ The entry of judgment does not prejudice the motion for a new trial on the ground of the verdict being against evidence,” &c. “The terms of this rule (Rule 8 of the Superior Court), plainly imply that such a motion may be made, notwithstanding the entry of judgment. And we find nothing in the provisions of the Code inconsistent with it.” This rule was also established in Maloney v. Dows, 18 How. Pr. 27, and in Allego v. Duncan, 20 Id. 210. It has been stated in the learned opinion below (on this motion) that the decisions in this court since the Code, were uniform against granting motions for a new trial after judgment. My learned brother must be in error in this regard, because I find (as I have just cited) that Mr. Justice Slosson (3 Duer, 669) in a case immediately in point held that the entry of judgment does not prejudice a motion for a new trial. The case in 2 Bandf. 681, in fact, decides the question in the way I contend, but only in a more indirect form, because there a new trial was ordered, and that after judgment. The cases in 4 Bosw. 503, and 5 Id. 73, and 7 Id. 400, and 26 How. Pr. 199, cited in the learned opinion below against our views, were decisions made under the impression that the rules of 1799, in the absence of anything to the contrary in the Code, were in full force and effect, and the very learned judges in deciding those cases, unintentionally no doubt, ignored or leaped over the decisions of sixteen years, decisions made under the acts of 1832 and the rules framed thereunder, which expressly gave the right to make these motions for leave at any time without a stay, and without a motion for that purpose, and which act still stands in full force and effect. Hay more, as I have before stated, that act absolutely abrogated the rigid rules of 1799, so that it seems that the learned judges deciding the cases above mentioned, utterly ignored or had forgotten the laws of 1832. Again: my learned brother, in deciding this motion below, fell into another error in saying that only one case is to be found in the supreme court exhibiting a contrary doctrine to his views. With the very highest regard for that learned brother’s research and attainments, I beg to be permitted to call attention to three cases in that court: the case of Messerall v. Powell, 6 How. Pr. 294; Tucker v. White, 22 Id. ; Tucker r. White, 28 Id. In all of them are to be found learned opinions (opinions by the court) indicating and establishing a different doctrine. I find also in the common pleas, Maloney n. Dows, 18 How. Pr. 27, a very able opinion of Chief Justice Daly. That learned judge shows conclusively that the act of 1832 is now in full force and effect. “The Code,” Judge Daly says, has made no material change (from the laws of 1832) as to the cou,rse of procedure where the object is to obtain a new trial.” But the four cases cited from the supreme court in the learned opinion below, do not, in my opinion show that this question has been decided in that court adversely to our views ; because in three cases out'of the four the motions were actually heard and decided, and new trials granted on the merits, notwithstanding the dicta of some of the judges on this question of practice; and the other, 15 Johns. 353, was decided under the old rule of .1799, and before the laws of 1833 were passed. And in the case of Gurney v. Smithson, in supreme court, the reasoning of the learned judge in that court and his decision were based on false premises, having entirely overlooked the fact that the practice under the act of 1833 prevailed for sixteen years immediately preceding the enactment of the Code.

We now come to the most important case yet cited (Folger v. Fitzhugh, 41 N. Y. 338), a decision which we now must follow implicitly. Mr. Justice Grover wrote the opinion holding that a motion could be made for a new trial after judgment, and four others of those learned men (Masox, Murray, Daxiels, and Huxt) concurred, and Mr. Justice Woodruff held that the supreme court had inherent power and control over its own judgments ; and certainly this view of Mr. Justice Woodruff amounted to the same thing. It was in fact holding that the court could grant new trials after judgment. The- othe; two learned judges, James and Lott, dissented. Mr. Justice James writing a short opinion dissenting from the practice of granting new trials after judgment; Mr. Justice Lott saying nothing on this subject. So that we have six judges holding in that case that the courts below have the power to grant new trials after judgment, and that they have inherent control over their own judgments; and certainly the court can only have inherent control for the purpose of seeing manifest justice done, and correcting errors and relieving suitors from oppression, wrongs or mistakes, or misfortunes, where justice requires it, by granting relief in the way of new trials, or otherwise after judgment. I repeat that. the right to grant new trials after judgment came up in the Folger v. Fitzhugh case, was fully and ably discussed, and that six of the judges held beyond a peradventure that the court had a right to grant new trials after judgment; and that only one of the judges (James) dissented from that view, Lott, J., being silent on the question ; and the dissent of Justice James was placed, as I learn, on mere technical grounds of practice. The learning displayed and the law laid down in this case (Folger v. Fitzhugh) by the court of last resort is the humane, sound and correct rule. It brushes away all technicalities, it settles the question, and places the rights of injured suitors beyond the reach of technical and uncertain minds. The decision in that, case (Folger v. Fitzhugh) has made this sound rule definite, certain and notorious ; at the same time it avoids delay and saves large expense and time to the parties. All the decisions to the effect that a motion for a new trial cannot be made after judgment and without a stay are based upon the technicalities of the old practice of 1799, and are not in harmony with the spirit of modern jurisprudence. There is no reason in such a rule, and its enforcement would sometimes work great injustice, as the case at bar fully illustrates. The enforcement of such a rule would practically prevent the granting of new trials on the ground of newly-discovered evidence. How can a defendant move for a new trial when he is ignorant of the facts which justify it or render it necessary ? Newly-discovered evidence, to be available for such a motion, must of necessity have been discovered after trial, as in this case. Here the plaintiff based his right to recover on a bill of sale and on the indorsement or transfer of a warehouse receipt from Solomon, dated January 4, 1864, and he, plaintiff and his witnesses, swore on the trial that the said bill of sale and receipts were executed on the day they bore date, January 4, 1864, and upon the sole strength of such swearing the plaintiff recovered. It is now clearly shown by proof, to my mind reliable, that the witnesses perjured themselves, and that no sale took place until days after the sheriff had attached the tobacco; that the bill of sale and warehouse receipts were both ante-dated so as to make them read and take effect before the attachment and levy. How, in the name of justice, would it be right to deprive the sheriff, a public officer acting in the line of his duty, of an opportunity to show the truth of the statements contained in his affidavits % The order at special term should be reversed.

Babboub, Ch. J., and Jones, J., concurred.

Note.—This court at general term in May, 1873 (Ludington v. Miller, opinion of Judge Monell), decided again, that a new trial on the grounds of newly discovered evidence may be granted after judgment. The learned judge, in his opinion, cites and follows the decision of the court of appeals, in Tracy v. Altmyer, 46 N. Y. 598.


author: By the Court.—Freedman, J.

text:
    JAMES E. LYON, Plaintiff and Respondent, v. THOMAS M. ISETT et al., Defendants and Appellants.
    I. Supplemental Pleadings.
    1. By whom allowed.

    By the court only; not by the ref wee before whom the cause may be on trial.
    3. When allowed.

    Always when the sufficiency of the pleading is matter of doubt. a. Thus a bankrupt discharge permitted to be pleaded to a complaint containing, among other allegations, averments belonging exclusively to an action of tort.
    II. Bankrupt Discharge.—Complaint.
    1. Form of complaint containing averments belonging exclusively to an action of tort, to which a supplemental answer, setting up a discharge in bankruptcy, was permitted to be filed.

      Before Jones, McCunn and Freedman, JJ.

      Decided December 30, 1871.
    Appeal 'from an order at special term denying defendant’s motion to be permitted to plead, by supplemental answer, their discharge in bankruptcy obtained since joinder of issue in the action.
    The complaint was as follows :
    “ James E. Lyon, the plaintiff, complains of Thomas M. Isett, John Kerr, and Watson B: Farr, defendants, who were at the times hereinafter mentioned caxrying on the business of bankers and brokers at the city and county aforesaid, under the firm name and style of Isett, Kerr & Co., and shows to this court that on or about September 1, 1866, the defendants became the brokers of the plaintiff, at the city aforesaid, and then and there undertook and promised to do and perform the business of the plaintiff in a faithful and proper manner.
    “ And plaintiff alleges that between the said September 1,1866, and July 1, 1867, he was lawfully possessed of thirty United States coupon bonds, commonly called ten-forty bonds, each of the denomination of one thousand dollars, and twenty-eight thousand one hundred and seventy-five -shares of the capital stock of the Consolidated Gregory Company, a corporation duly organized, of the par value of fifty dollars per share, and being so possessed thereof did, between said dates, place and deposit the same in the hands of defendants as plaintiff’s said brokers, at the city aforesaid ; and the said defendants have not delivered said bonds and stock to the said plaintiff, or any part or portion thereof, though often requested so to do.
    “And defendants did heretofore, to wit, on July 1, 1867, being in possession, as aforesaid, of said bonds and stocks, unlawfully and fraudulently convert and dispose of the same to their own use, to the plaintiff’s damage of one hundred and seventy-five thousand dollars.
    Wherefore, the plaintiff demands that the defendants be adjudged to pay to the plaintiff the sum of one hundred and seventy-five thousand dollars damages, with interest thereon from July 1, 1867, as compensation for the said wrongful acts, besides the costs of this action.”
    At the time of the motion the trial of the action was pending before a referee.
    The motion was denied on the ground that the suit being in tort for the wrongful conversion of the property in the complaint mentioned, no recovery can be had therein, except in tort, and therefore said discharge • would not, in any event, be a bar or properly pleaded as a defense herein.
    From the order denying the motion, the defendant appealed to the general term.

      Messrs. Peabody & Baker, attorney, for appellant, and Charles A. Peabody, of counsel,

      urged: First. It may be said, and probably will be, that the discharges are not applicable, as discharges from the claims sought to be enforced in this suit. The answers to this objection are several. 1. This is not the place to try that question. There is a suit pending, in which a recovery may be had against the defendants. Whether the discharge sought to be pleaded herein will bar or discharge that cause of action, is a question not to be considered here further than perhaps to see that it may by possibility have that effect. 2. If the discharge should not bar the plaintiff’s action, it would be harmless, and it should be allowed to be pleaded, and the question of its effect .discussed and decided on the trial of the action on the merits. The effect of matter pleaded as defense, its sufficiency or insufficiency is to be determined after it is pleaded and on the record. This is one of the issues in the cause to be tried. 3. It is only properly tried in the suit, and after it is pleaded. It is only in this manner that a decision on the subject can be reviewed on appeal to the courts of review. The decision made in this manner is embraced in the final judgment, is subject to review like other questions embraced in the final judgments. '4. The sufficiency of the matter pleaded may be tried by demurrer, like that embraced in any other answer. Demurrer lies to such a plea, like any other (Goddart v. Brown, 15 Abb. 191; Guild v. Parsons, 16 How. 389). This shows that the sufficiency is not to be tried on a motion.

      Second. It is submitted that by the terms of the bankrupt act, all debts “ except those created by fraud or embezzlement,” or by the defalcation as a public officer, or while acting in a fiduciary character, ” are barred by the discharge in bankruptcy. United States Bankrupt Act, §§ 33 and, 34. The claim in this suit is not embraced in either of these classes. It is plain that this claim comes within section 34, which says, that the discharge shall “release the bankrupt from all debts, claims, liabilities and demands, which were or might have been proved against his estate” (except those above mentioned); for the claim in this suit certainly might have been proved, and in point of fact was proved against his estate (§§ 33, 34).

      Third. Whether the discharge will be a bar to the recovery depends on what the recovery would have been, but for the discharge—what the judgment would otherwise have been for, and that can only be determined in the result of the trial. It must be allowed to be pleaded in order to try the question whether it is properly a bar or not.

      Fourth. The form of the pleadings does not determine whether the discharge would be effectual in the case. Nothing is more common than a departure on the trial from the issues embraced in the pleadings. 1. The complaint in this case, it is true, alleges a tort, but nearly all the facts alleged would be equally applicable to a recovery on contract. Forms of action are abolished, and the nature of the action and recovery depend on the facts proved or admitted. 2. Plaintiff in this action seeks to recover the value of certain securities belonging to him, He alleges they have been wrongfully sold and converted by the defendants. Suppose it should turn out that his case is sustained by the evidence in all respects except the tortious character of the sale? All the averments of the plaintiff in other respects being proved, is it certain, from a mere inspection of the pleadings (for that is all there is before the court), that the plaintiff could in no event recover a part of the value of the securities or the sum received for them? This certainly would depend on the manner in which the trial is conducted, and cannot be determined by a mere inspection of the complaint. 3. In a case like this, if the sale was not tortious, or being sb, was afterwards adopted by the owner and the tort waived, but the proceeds had not been paid over or accounted for, how can any one, not prophetically inspired, foretell that in the mode of conducting the trial, things will not take such a turn that a recovery may be had of some part of the proceeds or value of the securities as on contract express or implied ? 4. If such a recovery be possible, this defense by supplemental answer must be allowed, or else irremediable inj ury will be done. Connaughty v. Nichols, 42 N. Y. 83, was an action of tort for conversion in the nature of trover. The facts were proved except the tortious conversion, which was not proved. The plaintiff was allowed to recover the amount as on contract—implied. The provision of the Code and the decisions on them were cited and carefully examined (Wright v. Hooker, 10 N. Y. 51; Olcott v. Carroll, 39 N. Y. 436 ; Emery v. Pease,- 20 N. Y. 62 ; Butterworth v. O’Brien, 24 How. 440 ; Goff v. Edjertqn, 18 AM. 381; Hall v. Hall, 38 How. 97). The summons was for relief, and not on contract, but all was overlooked as being unimportant. So ih Gordon v. Hostetter, 37 N. Y. 99, which was trover. The court (Poetes, J.) say, “If we had arrived at a different conclusion on this point (the question of tortious conversion) we should hold the verdict good as for moneys had and received.” The court of appeals have long acted on the rule that the course of the trial permitted by the parties overrides the pleadings entirely, and that recovery might be had outside of them and almost without regard to them. 5. This case was partly tried when the discharge was obtained. It was not possible therefore to shape the trial with reference to this defense. Who can tell that it had not already taken such a course that a recovery in contract would be proper whatever the pleadings may have been. The supplemental answer is a substitute for the plea of jpuis darrein ■ continuance, and any defense which could have been pleaded puis darrein should be allowed to set up by supplement answer (Drought v. Curtis, 8 How. Pr. 56; Morell v. Gavelli, 16 Abb. 269. It is almost a matter of course to allow a supplemental answer to be filed at any time before the trial. In most of the cases it seems to be considered quite so' (Bate v. Fellows, 4 Bosw. 639 ; Hoyt v. Sheldon, 4 Abb. 59 ; Radley v. Houghtaling, 4 How. 251; Madisonavenue Baptist Church v. Baptist Church in Oliver-street, 2 Robt. 642 ; Stewart v. Isidor, 5 Abb, Pr. N. S. 69). The plea puis darrein, for which the supplemental answer is a substitute, was a matter of course, and could not be rejected (Sandford v. Sinclair, 3 Den. 269 ; 2 Wil. 138). And this, even after the jury are called (Brown v. Beardsley, 3 Cai. 172). It is a matter of course to allow a defendant discharged in bankruptcy to put in that defense, unless complainant will stipulate to take no personal decree against him or his subsequently acquired property, or will consent to dismiss his bill with costs (Scott v. Grant, 10 Paige, 485). A discharge must be pleaded if the party have opportunity, and if neglects to so the court will not afterward relieve him on motion (Price v. Peters, 15 Abb. 197).

      Eldridge & Johnson, for respondents.
   By the Court.—Freedman, J.

A supplemental pleading can be allowed only by the court, on motion. It should not be allowed at the trial (Garner v. Hannah, 6 Duer, 262). Consequently, section 272 of the Code, which confers upon referees the same power to allow amendments to any pleadings, and to the summons, as the court possesses upon the trial, does not apply to this case.

The cases and the manner in which a supplemental answer is to be allowed are prescribed by section 177 of the Code, and the practice is, upon a case being made within the terms of that section, to grant the order almost as a matter of course. If the sufficiency of the proposed answer is a matter of doubt, the court will not prejudge the matter on such motion, but permitted the defense to be made upon such terms as are deemed just (Hoyt v. Sheldon, 4 Abb. 59; S. C., 6 Duer, 661; Palmer Murray, 18 How. 545 ; Morell v. Garelly, 16 Abb. 269; Stewart v. Isidor, 5 Abb. N. S. 69).

The defendants Kerr and Farr were not only regular in their application, but, it seems to* me, made out a sufficient case within the terms of section 177 (as amended in 1866) and the principle established by authorities above cited.

The complaint, it is true, alleges a conversion in general terms;' but it also sets forth sufficient facts upon which, when proved, plaintiff may fall back and recover as upon contract. This precise point has been determined by the court of appeals in Conaughty v. Nichols, 42 N. Y. 83. The effect and applicability of the discharge in bankruptcy will depend, therefore, rather upon the proof at the trial, than upon the form of the complaint.

The order appealed from should be reversed and the defendants Kerr and Farr severally permitted, upon payment of ten dollars, to plead, by way of supplemental answer, their respective discharges. Such permission should also be conditioned to be without prejudice to the proceedings already had before the referee.


text:
    FRANCISCA KLEIN, Plaintiff and Appellant, v. GEORGE KLEIN, Defendant and Respondent.
    Divorce from Bed and Board.—Complaint in.
    1. Immaterial and irrelevant allegations, what. are.

      a. Allegations of scandalous, indecent and licentious acts committed -with and on certain females other than plaintiff, unaccompanied wich averments that such acts and .conduct either led plaintiff to apprehend personal injury to herself, or gave her pain, or affected her body, mind, health, or feelings.

      b. Whether such allegations would be material and relevant, even if so accompanied,—Query.

    3. Indefiniteness.

      a. Contraction of veneral disease.
    The court will not require the time and place of such contraction to be given.
    Before Jones, McCunn, and Freedman, JJ.

      Decided December 30, 1871.
    Appeal from a special term order, requiring a com* plaint in an action for a separation from bed and board to be made more definite and certain, and striking out certain allegations..
    Tlie complaint was as follows :
    “The plaintiff, complaining of the defendant, shows to the court:
    “ 1. That the plaintiff is the wife of the defendant, and that plaintiff was married to defendant at the city of Coblentz, in Germany, on or about May 6, 1847.
    “II. That, subsequent to said marriage, the plaintiff and defendant became residents and inhabitants of this State, and that they have been and remained residents therein at the city of Hew York for more than one year; and that the plaintiff is, at the time of exhibiting this her complaint, a resident in said city and State.
    “III. That at various times and places during their said marriage, the defendant has treated the plaintiff in a cruel and inhuman manner, and has been guilty of such conduct as renders it unsafe and improper for her to live with him.
    “ First. That defendant at various times during their said marriage has, by reason of improper and licentious conduct on Ms part, become affected and diseased with what are commonly known as venereal diseases. That defendant has, by cohabitation with the plaintiff at various times, communicated said diseases to the plaintiff, causing her great suffering and pain, and endangering her life; and that plaintiff has been obliged to expend large sums of her own money and earnings in curing herself of said diseases ; that defendant furnished little or no money or assistance for said purpose, and that plaintiff is still suffering from the effects of said sickness; that defendant has furthermore contaminated and in

      fected the children of plaintiff and defendant with the said diseases ; that plaintiff has had by defendant during their marriage seven children, and six of said children have died from diseases communicated as aforesaidby the defendant; and that plaintiff has beenobligedto expend large sums out of her own money and earnings in procuring medical attendance for said children, and that little or no money or assistance was furnished by defendant for that purpose, and as plaintiff believes, the defendant is still injected with said diseases.

      ‘■‘■Second. And, further, that the defendant, at various times and places, has conducted himself towards the female servants and employees of the ^amily in a scandalous and licentious manner, and has been guilty of such treatment towards them as to bring disgrace upon the plaintiff and the family of the plaintiff.

      “ That, on or about the month of October, 1864, one Amelia Wirtz was employed by plaintiff as a servant in her family ; that during the time of her said service., and at the then residence of plaintiff and defendant., at No. 701 Broadway, in the city of New Torlc, the defendant treated the said Amelia Wirtz in a scandalous, cruel and licentious manner, and in such manner as- to bring disgrace upon the family of the plaintiff, and that thereby the said Amelia Wirtz was forced and compelled to leave their said residence.

      “ That, in or about the month of April, 1866, one Mary Finnegan was employed by plaintiff as a servant in plaintiffs family / that during the time of her said service, and, on or about the time aforesaid, and at the residence of plaintiff and defendant, No. 701 Broadway, in the city of New Torlc, the defendant treated the said Mary Finnegan in a scandalous,
      cruel and licentious manner, by throwing her down, tearing her dress, and in other ways and in such manner as to bring disgrace upon the family of the plaintiff, whereby the said servant was forced and compelled to leave their said residence.

    “ That, in the latter part of the year, 1867, one - Clara Bameau was employed by plaintiff as a servant in her family ; that during the time of her said service, and at the residence of plaintiff and defendant, at No. 244 Bowery, in the city of New TorTc, the defendant treated the said servant in a scandalous, cruel and licentious manner, by throwing her down tearing off her dress, and stifling her, and in other ways, and in such manner as to bring disgrace upon the family of the plaintiff, and that by said treatment said servant was forced and compelled to leave their said residence; and, further, that as plaintiff is informed and believes, the defendant has at various other times at their residences in the city of New TorTc treated other servants employed in the family of plaintiff and defendant in a scandalous, licentious and disgraceful manner. And, further, that for more than one year previous to the time of exhibiting this complaint, the defendant has comported and behaved himself with one Kate Gross, or Catharine Gross, in a scandalous and licentious manner. That, to the neglect of the plain tiff, his wife, the defendant became the intimate associate of the said Catharine Gross. That defendant has been seen freguently during the time aforesaid in company with the said Catharine Gross at various public places, festivals and assemblies, and that at said places, festivals and assemblies the defendant has'behaved himself publicly with the said Catherine Gross in a scandalous and licentious manner, in the view of others, by indecent familiarities with the body
      ___ and person of the said Kate Gross or Catharine Gross ; that the defendant has neglected the plaintiff, his wife, to associate with the said Kate Gross or Catharine Gross.

      “ That, furthermore, defendant has introduced the said Catharine Gross into the residence of plaintiff and defendant at No. 93 East Houston-street, in the city of New TorTc, at unreasonable and late hours. That at their said residence, in the presence of the plaintiff, and, in view of the servants of the family in the rooms and bed-rooms of their said residence, the defendant has behaved himself with the said Catharine Gross in a grossly indecent manner.

      “That in the early part of April, 1870, the defendant behaved himself with the said Catharine Gross in an indecent manner in presence of a member of their household by indecent familiarities with the body and person of the said Catharine Gross.

    “ That at various times, between July 30 and August 22, 1870, during the absence of plaintiff from the city, the defendant, at the city of New TorTc, publicly and intimately asssociated with the said Catharine Gross / and during that time defendant behaved himself inan indecent manner at the residence of plaintiff and defendant, and tooTc indecent familiarities with the person of the said Catharine Gross in an improper and indecently familiar manner.”
    “ IV. That at various times during their married life, the defendant has treated the plaintiff in a cruel and inhuman' manner, notwithstanding the protests of the plaintiff, by forcing her to comply with his desires to a cruel and unreasonable extent, when she was unable to endure it, and in consequences of which the plaintiff has severely suffered in health. That more particularly during the past year, and especially during the month of October therein, the defendant forced and compelled the plaintiff as aforesaid against her will to a cruel and unreasonable extent. That owing to peculiar circumstances, said treatment was particularly dangerous, and that in consequence thereof the plaintiffs life was endangered and she suffered severely in health, and has not yet fully recovered.
    “ V. That at various times during their married life, and more especially during the last year, the defendant has applied to the plaintiff abusive and injurious epithets, and has .used towards her abusive and injurious language, intended to disgrace the plaintiff, his wife.' That defendant has repeatedly applied to her the word “ whore,” and other disgraceful epithets, disregarding the feelings of the plaintiff, and has further declared his intention of persisting in his aforesaid disgraceful conduct with others, notwithstanding the protests of the plaintiff.
    “ VI. That from the time of their said marriage and during the whole of their said married life the plaintiff has been obliged by her own labor to support her children, herself, and in great measure the defendant in this action. That the plaintiff has since and during her removal to the city of Yew York, organized and carried on a business in said city, at 93 Houston-street. That all the money and most of the labor necessary for commencing and conducting said business have been furnished by plaintiff and the son of plaintiff and defendant. That said money was the individual earnings of the plaintiff. That defendant has at certain times when entrusted with the management of certain portions of said business, and the collection of certain claims due to the plaintiff in her business as aforesaid, squandered and appropriated to himself the moneys collected thereupon, and has on various occasions returned to the plaintiff but a- small part of the moneys collected by him on her account as aforesaid. That the plaintiff has paid all the expenses of the household out of her own earnings, and that defendant has furnishecl nothing towards the same, and that plaintiff has uniformly paid all the bills owing on account of said business, and that defendant never furnished anything towards payment of the same. That when defendant has been at times entrusted with any of said business he has neglected and refused to attend to the same on various occasions to the considerable loss of the plaintiff, and that defendant to the neglect of said business has spent his time in the disgraceful manner hereinbefore specified, with other persons and at various places. That in the year 1862, the plaintiff out of her own money, earning and labor, advanced sufficient capital to organize .and carry on a business at the city of Washington, D. C., and that plaintiff by her own work, labor and money, paid for all goods necessary thereto, that defendant was entrusted with charge of said business. That, as plaintiff believes, said business was successful, but that defendant squandered the proceeds thereof and appropriated them to his own use, returning little or nothing to the plaintiff from said proceeds, and that plaintiff was obliged to pay by her own money and labor all the bills due and owing at the city of Hew York, on account of said business.
    “ That on October 5,1870, the defendant abandoned the house of the said plaintiff, and has not since that time returned. That on the day aforesaid the defendant brought with him and introduced into the house three suspicious, all ill-looking persons, with the intention of alarming the plaintiff, and plaintiff was obliged to call others into the said house for her protection, and that thereupon defendant took from said house all his personal property, and has not since returned to or resided with this plaintiff. That since the defendant has abandoned the house as aforesaid he has refused and neglected to provide in any'way for plaintiff’s support or maintainancé, and that she is entirely dependent moon her own labors for her support.

      “That as plaintiff is informed and believes the defendant is possessed of an income of about forty-three hundred dollars per year.
    “Whereupon the plaintiff prays that a separation from bed and board forever, may be decreed between the said plaintiff and defendant,' and that the defendant may be compelled by the judgment of this court to make a proper and suitable provision for the support and maintenance of the plaintiff, and that the plaintiff may have such other or further relief as to the court may seem just and right, with costs of this action.”
    The special term order struck out of the complaint all that part which is printed in italics; and directed that so much of that portion of the complaint which is contained between the words “First. That,” and the words “said diseases,” as remained after striking out the words in italics should be made more definite and certain by making it read as follows:
    “That the defendant (insert date), by reason of sexual intercourse with other person than the plaintiff, contracted a disease he communicated to the plaintiff, stating in like manner any other time or time at which the defendant contracted and communicated said disease.”
    And further directed that the clause numbered IV. be made more definite and certain by stating at what time or times, and what place or places the defendant lorced the plaintiff to comply with his desires to a cruel and unreasonable extent.
    The plaintiff appealed to the general term.

      N. Gano Dunn, attorney and of counsel for appellant, made the following points:
    I. That portion at special term which requires the plaintiff to state at what time or times the defendant contracted the diseases mentioned is unreasonable. It is from the nature of the case impossible that the plaintiff should have information as to such dates. The revised statutes required only that the plaintiff should set forth times and places with resonable certainty.
    II. An allegation, setting forth improper conduct of the defendant with the female servants of the family, and with other females, is proper in a complaint for limited divorce. Such conduct is an outrage on the feelings of the wife, and comes within the definition of cruelty. It is furthermore such conduct as renders it improper for the wife to live with the husband. Cruel and inhuman treatment need not consist of injury to the person of the plaintiff (Smith v. Smith, 2 Phill. 207; Popkin v. Popkin, 1 Hagg. Ecc. 768 ; Durant v. Durant, Id. 733; Bihin v. Bihin, 17 Abb. Pr. 19; Bishop on Marr. & Div. 725, 726, 732).
    III. The allegation of such conduct on the part of the defendant in this action, as set forth in the complaint, is sufficiently definite as to times, places and circumstances.
    IY. S<5 much of the said order as requires the plaintiff to state at what time or times the defendant contracted the diseases mentioned in the complaint, and so much of said order as strikes out the third allegation of the complaint, should be reversed.

      F. Sherman Smith, attorney for respondent.

      James M. Smith, of counsel.
   By the Court.—Freedman, J.

This is an action for a separation from bed and board. By the common law a court- of equity had no jurisdiction to decree a separation or limited divorce (Perry v. Perry, 2 Paige, 501). The j urisdiction is created, and the cases in which an action for a separation or limited divorce may be brought, are defined by statute (2 Rev. Stat. 146 ; 3 Rev. Stat. 5 ed. 237). To constitute cruel and inhuman treatment by the husband of the wife, or such- conduct on his part towards her, as may render it unsafe and improper for her to cohabit with him, within the meaning of these terms as used in the first two subdivisions of section 51 of the statute, bodily injury or acts of personal violence are not necessary (Bihin v. Bihin, 17 Abb. Pr. 19); but the treatment or conduct must at least be such as to create a reasonable apprehension of bodily hurt, and the causes for such apprehension must be of sufficient importance (Whispell v. Whispell, 4 Barb. 217; 2 Kent Com. 126).

The statute also prescribes that the complaint in every such case shall specify particularly the nature and circumstances of the case on which plaintiff relies, and shall set forth times and places with reasonable certainty. These specific allegations present the matter upon which issue is to be joined. To be issuable, however, every circumstance thus alleged must be material in establishing some ground recognized by the statute.

The allegations, which were struck out of the complaint in this action, charged the defendant with great particularity with a series of scandalous, indecent and licentious acts committed with and upon certain females other than the plaintiff. As the action is not for a divorce on the ground of adultery, but for a separation merely, these allegations are immaterial, unless they tend to aid at least in establishing some specific ground mentioned in the first two subdivisions of the section of the statute referred to. Standing entirely by themselves, they have no such tendency, and there is no averment of any fact or circumstance in connection with which they might have become important. It is not charged that the conduct complained óf led plaintiff to apprehend personal injury to herself; she does not complain that it gave her pain. Mo effect upon either the body or mind of the plaintiff, her health or feelings is alleged. . The only injury stated is the disgrace which such conduct brought upon the. plaintiff and her family. No decree for separation can be based upon that. Frequent intoxication may bring disgrace, but cannot be made to work a separation. Nor do occasional outbursts of passion, from whatever cause, so long as they do not threaten bodily harm, present a ground for a limited divorce (Mason v. Mason, 1 Edw. 278). The allegations referred to were, therefore, properly stricken out.

That portion of the order, however, which requires the plaintiff to make the complaint more definite and certain by stating at what time or times, and at what place or places the defendant contracted the diseases in the complaint mentioned, is too broad, and must be modified so as to require the plaintiff to set forth the time or times and at what place or places the defendant communicated the said diseases to the plaintiff.

As thus modified, the order appealed from should be affirmed.

Jones, J., concurred.


author:
By the Court.—Barbour, Ch. J.
      Monell, J. (Dissenting).

text:
    AMMI T. BUTLER, et al., Plaintiffs and Appellants, v. THE EVENING MAIL ASSOCIATION, Defendants and Respondents.
    The defendants, publishers of a daily evening newspaper, known as The Evening Mail, are the successors of Charles H. Sweetzer in that enterprise, and plaintiffs furnished printing paper for use in their business, to recover payment for which they bring this action.
    The account on plaintiff’s books stands in the name of Charles H. Sweetzer, Evening Mail, and was commenced and continued for some time previous to defendants becoming such publishers. After the change, in answer to plaintiffs’ inquiry as to the change in the account on their books, Sweetzer told plaintiffs there was no necessity for a change, as he was the principal stockholder and the manager of the corporation, and, in fact, he was the Evening Mail Association, &c,, and plaintiffs continued the account on their books under the same name. Held, by the referee, and sustained by the court, that the sale of the paper was made and the credit given to Sweetzer and not to defendants, and plaintiffs could not recover in the action.
    See dissenting opinion by Mohell, L, reviewing Meeker v. Claghorn, 44 H. T. 349.
    Before Barbour, Ch. J., and Monell, and Jones, JJ.

      Decided December 31, 1871.
    Appeal from a judgment entered on a report of a referee.
    The facts fully appear from the opinions.

      James M. Smith, for appellants.

      Henry H Anderson, for respondents.
   By the Court.—Barbour, Ch. J.

This case comes before us on appeal, by the plaintiffs, from a judgment entered against them upon the report of a referee, in an action for the recovery of a balance alleged in the complaint to be due and owing to the plaintiffs by the defendants in an account for printing paper sold and delivered. The answer contained a full denial of the alleged purchase and indebtedness.

Upon tbe trial it appeared that prior to March 16, 1868, one Charles H. Sweetzer had been in the habit of purchasing paper from the plaintiffs which was charged to him; that on March 16 a joint stock association was formed between Sweetzer and several other persons for the purpose of printing and publishing books and newspapers; that, shortly after the association was formed, Sweetzer informed one of the plaintiffs of that fact, and further stated that it was not ne cessary for them to make any change in the keeping of the account, as he was the largest owner of the stock, and, in reality, “ he was the association and the association was him;” that the paper, as delivered, was thenceforward charged by the plaintiffs on their books to Sweetzer, and receipted for, usually, as delivered to him, and that payments were made, from time to time, upon the account, in Sweetzer’s checks. Evidence was also given by the plaintiffs tending to prove that the paper in question was used by the association in the publication by them of their newspaper, The Evening Mail.

The referee’s conclusion that the evidence was not sufficient to entitle the plaintiffs to a recovery seems to have been correct. When Sweetzer, who was the acting agent of the defendants, told the plaintiffs that he and the association were one inasmuch as he was the principal stockholder, and that the account might be continued in his name, it is quite possible the plaintiffs had a right to elect whether they would recognize him as their debtor in the credits to be given, or the association ; and the fact that they charged the goods, to the former, took his receipts therefor, and received his checks in payment upon the account, is pretty strong evidence that the credit was given to Sweetzer, and not to the association. Let that be as it may, however, it is enough to say that the evidence is of such a character ■that two persons of equal judgment, but with differently constituted minds, might honestly arrive at opposite conclusions as to the person to whom the credit was given. It was the province of the referee to determine that question of fact; and his finding is as much a finality as the decision of a jury would have been. We cannot properly say, upon the evidence before us, that he erred;

The judgment should therefore be affirmed, with costs.

Monell, J. (Dissenting).

The referee put his decision upon the ground, that the credit was given to Sweetzer and not to the defendants, but I do not think the evidence sustains his conclusion.

Prior to March, 1868, Sweetzer had been publishing The Evening Mail on his own account, and had purchased the paper, upon which it was printed, of the plaintiffs. In March the defendants’ association was formed, under general incorporating laws. Sweetzer communicated the fact of such formation to the plaintiffs, and that he was secretary, treasurer and general manager of the company. He continued to purchase paper of the plaintiffs, which was delivered to the defendants, and upon which their newspaper was printed.

So far it is quite clear the defendants were liable. The purchases were made by the defendants through their agent, and they had the benefit of the purchase. But shortly after the company was formed, and while the purchase of paper was continuing to be made, in a conversation between Sweetzer and the plaintiffs, the latter inquired (with reference to changing the account on their books) if it was worth while to change the account. They said they had it on their books “ Charles H. Sweetzer, Evening Mail,” and asked him if it was necessary to make any change. He said it was not; it might just as well stand as it was; that he was the principal owner of the stock, and virtually the association, and the association him. The plaintiffs replied that if that was so, it was not worth while to scratch out and make bad-looking work on the books. Sweetzer said it made no difference.

This is all the evidence which goes to sustain the referee’s conclusion, and it falls far short, in my judgment, in showing that Sweetzer was taken as the principal debtor. It does not indicate any intention on the plaintiff’s part to give the exclusive credit to Sweetzer, or that they would look alone to him for payment. The reason assigned was, a disinclination to deface their books; and they concluded not to do so, because Sweetzer told them it was not necessary, and would make no difference.

In the previous dealings between the plaintiffs and Sweetzer, the account was kept, and the goods charged, under his name, appended to which were the words,. “Evening Mail.” On the formation of the company he told them they need not change the account' (i. e., the heading), as it would make no difference. Sweetzer was the defendants’ agent, and having informed the plaintiffs of the change in the proprietorship of the paper, he did not design to become personally responsible for its debts. And when he told the plaintiffs, that the manner of keeping the account would make no difference, he merely meant that a change upon their books was not essential; and he did not mean, and the plaintiffs in acquiescing did not intend, that Sweetzer should be individually liable.

That the parties so intended is apparent from the whole course of dealing, and although some of the bills were made out in the name of Sweetzer alone, they were, doubtless, so drawn in consequence of his assurance, that there was no occasion to change the form of the account. I have not found any evidence directly tending to show that exclusive credit was given to Sweetzer. That which might be derived from the manner of keeping the accounts is stripped of its consequence by the explanations given.

The case of Meeker v. Claghorn, 44 N. Y. (5 Hand), 349, strikingly illustrates the view I have stated. The goods, in that case, were charged to Shall, who it was claimed was the defendant’s agent. The court say : “In all cases where the principals seek exemption on the ground that the credit was exclusively given to their agent, this should clearly appear, and they have the affirmative to show it, the natural presumption being, in all cases, that credit is given to the principal rather' than to the agent. It is sufficient to say, that there is no conclusive evidence that the credit was given by the vendors exclusively to the agent, and that they intended to look to him solely for their pay. It is true, that upon the ledger and day-book of the vendors the articles were charged to Shall, and while this furnishes strong evidence that they were furnished upon his credit, it does not show it conclusively. The plaintiff gave some explanation tending to weaken the effect of this evidence, and its weight under all the circumstances of the case was for the referee.” And that court refused to disturb the finding.

The taking of collateral security from Sweetzer was proper, and strengthens the belief, that the plaintiffs did not look upon Mm as their original debtor. The proof also is clear that the notes and mortgage were mere collaterals and not payments.

It is not disputed, that the defendants received and used the paper purchased for them by Sweetzer; and I should require strong proof of an intent on the part of the plaintiffs, to wholly ignore the defendants, and to only know Sweetzer in the transaction, before allowing the defendants to reap the fruits of their agent’s dealings, and then escape payment on the plea that the credit was given to their agent and not to themselves.

Removing from the case, therefore, all mere technicalities and rigorous rules of law, the simple question to be answered is, shall the defendants, who have received and used for their own emolument the plaintiffs’ property, not pay for it?

I am in favor of reversing the judgment.


author: Br the Court—Jokes J.

text:
    ISRAEL LEWIS, et al., Plaintiffs and Respondents, v. ARCHIBALD G. ROGERS, impleaded, Defendant and Respondent.
    I. Negotiable Paper.—Bills op Exchange.—Promissory Notes. —Value, Parting with, what is.
    1. The mere suspension of the right of action on a past due debt is.

      a. Such suspension is ¿aused by the mere receipt, by the creditor, of the time note of a third person indorsed by the . debtor on account of the past indebtedness, without any express agreement that said note should be taken either in payment and satisfaction, or as collateral.
    ’II. Examination op witnesses on trial.
    1. Questions, what not improper as calling for conclusions of law, or operations of the mind.

      a. When one of the inquiries on the trial is as to the intent with which the witness did an act, then a question seeking for the operation of the mind is proper.

      b. When, in an action on a note of C., given by B. to the plaintiff, it becomes necessary for the plaintiff to prove that he parted with value on the faith of it, he may, after showing that between the receipt and maturity of the note he sold and delivered goods to B., be asked, “Were the supplies furnished by you to B. after the delivery and before the maturity of the note furnished on the note or not? ”
    1. Even if such question calls for an operation of the mind, it is proper.
    3. But it calls for a fact, and is therefore proper.
    3. Leading questions.

    The allowance or exclusion of leading questions is in the discretion of the trial judge.
    Present, McCunn and Jones, JJ.

      Decided December 30, 1871.
    This is an action against the maker and indorser of a promissory note, which was as follows:

      “ New York, December 11, 1869. .
    “Four months after date I promise to pay to the order of D. Woodhouse, Esq., five hundred dollars, at 4 and 6 Pine-street. Value received.
    “Arch! G. Rogers.
    Indorsed, “D. Woodhouse.”
    The maker, who alone answers, sets up as a defense that at the time he made and delivered the note the said Woodhouse agreed, tor a valuable consideration, to renew the said note by extending the time for the payment thereof beyond the time of terms therein mentioned, and for a further and like term; that he (the defendant) has been and was ready and willing to keep the agreement on his part, and caused a new noté for principal and interest properly executed to be tendered to the plaintiffs, which they refused to accept; that the action is prematurely brought; that the note was not indorsed to the plaintiffs for a valuable consideration, but, on the contrary thereof, was received by the plaintiffs for, and on account of, and to secure a pre-existing debt.
    On the trial before a referee it was proved that said Woodhouse, being indebted to plaintiffs in three hundred and eight dollars for goods sold and delivered by them to him, George Lewis, one of the plaintiffs, applied to him for payment. He said he had no money, but had something as good as money. He took out the note in question and told George to take it, and he took it. Nothing was said about trading out the balance. Nor was anything said about receiving the note either in payment or satisfaction of the debt, or as collateral security.
    The plaintiffs, after receiving the note, sold and delivered to Woodhouse goods amounting to the difference between the debt of three hundred and eight dollars and the amount of the note, and sixty dollars over and above the note.

      It was also proved that defendant Rogers, being indebted to Woodhouse, which indebtedness was by agreement to be paid in notes at eight months, Wood-house applied to him to make notes at four instead of eight months, to which Woodhouse consented, on condition that the four months’ notes, when due, should be renewed by other notes at four months. Thereupon Rogers gave Woodhouse two notes, dated December 11, 1869, one for two hundred dollars and one for five hundred dollars. And Woodhouse executed and signed a written instrument by which he agreed to cause these notes to be renewed before maturity for another prior of four months, and that they should not be put in the market for sale or loan, but should only be discounted at bank.
    At the maturity of the note in question Rogers made a new note for the same amount, adding the interest for four months longer, and gave it to Woodhouse to give to the parties holding the one in suit.
    There was conflict of evidence as to whether Wood-house tendered the new note before protest of thb old or not. There is no finding of fact on this.
    Mr. Woodhouse testifies that he gave plaintiff the note in suit by mistake ; that he held another note of Mr. Rogers for five hundred dollars which was not subject to renewal, and that was the one he intended to give plaintiff. There is no finding on this.
    It was shown on the trial that plaintiffs had not at any time before the maturity of the note any knowledge, information, or notice of the agreement or arrangement between Woodhouse and Rogers, nor any cause to suspect the existence of such arrangement.
    In the’course of the trial George Lewis was asked this question :
    Before the maturity of the note did he (Woodhouse) obtain any supplies on that note ?

      The question was objected to. Objection overruled, and defendants excepted.
    He was also asked:
    Were the supplies furnished by the plaintiff to defendant, Woodhouse, after the delivery of the note in suit and before the maturity thereof, furnished on the note or not ? which was objected to. Objection overruled, and defendant excepted.
    The referee reported in favor of the plaintiff for the full amount of the note.
    From the judgment entered on the report, the defendant appeals.

      Wm. Kronberg, attorney and of counsel for appellant, urged,
    I. The defendant Rogers having protected himself by taking a written agreement securing to him the right of renewing the note for another and additional term, these two papers, executed at the same time and in reference to the same subject matter, are to be taken together as one paper.
    This is so against these plaintiffs, unless they are to be protected by the rule applied in favor of the party who is a bona fide holder for value.

    In the first instance, the production of the note is sufficient for plaintiffs case; he is presumed to be the lawful owner, and to have received it in the due course of business and for value (1 Denio, 367; 1 Sandf. 37 ; 15 Barb. 285).
    It is, however, a mere presumption that so aids the plaintiff; a mere presumption, potent if undisturbed, is a slight thing and easily got rid of. Thus, for instance, if the defendant proves that the note was lost, stolen, perverted to an improper use, or the like, all the cases agree that this shifts the burthen of proof over on the plaintiffs, and obliges them to show that they took the note in the due course of business and parted with value.

      2. This parting with value is a vital and substan

      tial thing, and precisely what the words themselves import (Rosa v. Brotherson, 10 Wend. 86).
    Where a creditor receives the transfer of a negotiable note in payment of a precedent debt, he takes it, though transferred before maturity, subject to all equities existing between the original parties (Cardwell v. Hicks, 23 How. Pr. 281).

      A person who takes a note which- is fraudulent in its inception without knowledge of the fraud, and pays for it partly in cash and partly by discharging a precedent debt, is a bona fide holder for value only to the amount . of the cash paid (Farrington v. The Franklin Bank, 31 Barb. 187. Cases collected).
    It has been remarked that there is a conflict of authority in the decisions of the courts of this' State as to what constitutes a bona fide holder of negotiable paper for value; but it is believed that, with one or two exceptions, the cases can be harmonized and brought within well-established principles. And it is. well settled that where a note is transferred simply as collateral security for a precedent debt, the holder is not a holder for value, so as to cut off any defense existing in favor of the maker.
    The leading case in this State on the point is Codington v. Ray, 20 Johns. 637.
    That case was followed by Wardell v. Howell, 9 Wend. 170.
    Thus, it is only where the holder of negotiable paper received it before maturity in good faith, without notice of any equities between the original parties, and on the strength of it parted with property—gives up a valuable right or incurred liability, or received it in full payment of a precedent debt—he is a bona fide holder for value, so as to cut off any defense existing in favor of the maker. This principle was expressly decided in the affirmative in Bank of Salina v. Babcock, 21 Wend. 499: Weltheimer v. Meyer, 33 Barb. 215; Brown v. Leavitt, 31 N. Y. 113 ; Pratt v. Coman, 37 Id. 440 ; Traders’ Bank v. Bradner, 43 Barb. 379.
    3. The note in this case was (no settlement) turned out simply as security, no proof that it had been received in full payment of the debt, the indebtedness not canceled, but, on the contrary, it appeared that plaintiffs supplied defendant Woodhouse with meat to an amount exceeding the amount of the note by sixty dollars.
    In Bank of St. Albans v. Gfilliand, notes received “in full satisfaction” and the “indebtedness canceled,” and the decision has been followed by every well-considered case involving the same question since decided in the State.
    In Bank of Sandusky v. Scoville, plaintiff discounted the note and applied the proceeds to extinguish a precedent debt.
    In Young v. Lee the note was received in payment of a note due in a few days, which was “surrendered” on receipt of the new note, and the decision of the cases bearing upon this question attach great importance to the terms “ satisfaction,” “ canceled,” “surrendered,” “extinguished,” “given up,” &c.
    In Bright v. Judson, 47 Barb. 39, the reported note states “it is not enough that new paper should have been received in payment and satisfaction of the old, the old paper must be absolutely surrendered before maturity to the person from whom he receives the new paper.” These are almost verbatim the words of one of the learned justices who wrote opinion in the case.
    4. The referee erred in finding that the note in question was received in payment and satisfaction of a previous bill of about three hundred and eight dollars, &c.
    This finding is not supported by the evidence, no agreement, understanding or arrangement that the note should be taken in payment or settlement of the debt. Defendants’ exception well taken.

      But for that error he would ■. probably have reached a different conclusion: nothing short of an express agreement to receive the note of a third party in payment of a demand operates as a satisfaction and discharge of the debt. Call v. Sackett, 1 Hill, 516; Waydell v. Luer, 3 Denio, 410.

      But it is otherwise if there is-no agreement. Van Eps v. Dulage, 6 Barb. 244.
    Plaintiffs, receiving the paper for security merely for an antecedent debt, are not bona fide holders for value.

    Am. Ex. Bank v. Carliss, 46 Barb. 19, to constitute a bona fide holder the paper must be received in absolute payment of the antecedent debt, so that the liability of the debtor is discharged.
    Traders’ Bank v. Bradner, 43 Barb. 379, and it cannot be doubted that had the note been taken in absolute payment of the debt, and the debt been canceled, plaintiffs would have been regarded as holders for value.
    This was the substance of the defense of defendant Rogers, set up in his answer and substantially proven: the note and the agreement both go together, belong together, and which as a gainst a bona fide holder of the note who had in due course of business parted with value for the note, that agreement goes for nothing ; it is vital and effectually binding against any holder of the note not a bona fide holder, not having parted with value—why not?
    The holder has taken the note without parting with value, and therefore, as the cases say,- subject to the equities existing between the parties. .

      Therefore subject to the agreement.

    Stedwell v. Territt, 4 Bosw. 520, is an instance in which a note or acceptance became connected with and affected by another instrument.
    The judgment should be reversed and order of reference discharged.

      Lewis O. Corbet, attorney and of counsel for respondents, urged,
    I. The plaintiffs received the note in suit from Woodhonse in payment and satisfaction of a precedent debt. 1. Whether a note was taken absolutely as payment or not is a question of fact for the jury (Johnson v. Weed, 9 Johns 310 ; Noel v. Murray, 13 N. Y. 168). a. The referee distinctly finds that the note in suit was so taken. 2. It is prima facie evidence of satisfaction (Story on Prom. Notes, § 404).
    • II. The taking of a promissory note of a third party in payment and satisfaction of a pre-existing or precedent debt, constitutes the person so taking it a bona fide holder. (New York Marbled Iron Works v. Smith, 4 Duer, 377).
    " The law, at least in this court, must be considered as settled that the satisfaction of a precedent debt is as truly a valuable consideration for the transfer of a negotiable bill or note as the advance in cash of its amount at the time of the transfer.
    See also White v. Springfield Bank, 3 Sandf. 225; Bank of Salina v. Babcock, 21 Wend. 499; Bank of Sandusky v. Scoville, 24 Id. 115; Young v. Lee, 12 N. Y. 551; Bowles v. Rowland, 40 Barb. 369; Gould v. Segel, 5 Duer, 260 ; Bank of St. Albans v. Gilliland, 23 Wend. 311, 20 Johns. 646; Purchase v. Mattison, 3 Bosw. 310.
    . In Brown v. Leavitt, 31 N. Y. 113, the court say: “A further discussion of the question might lead to a suspicion that the law was in doubt on the point.
    New York State Bank v. Fletcher, 5 Wend. 87, Marcy, J., “I take the law to he that it inpayment if expressly accepted as such.”
    III. The plaintiffs delivered to said Woodhonse, at the time of receiving the note, and before the maturity thereof, merchandise to the amount of one hundred and ninety-two dollars, the balance of said note, which constituted a present sale.

      IV. Where the note of third party is taken from a debtor by a creditor at the time a debt is contracted, the presumption is that it was agreed to be taken in payment of such debt (Young v. Stahelin, 34 N. Y. 258 ; Noel Murray, 3 Kern. 171; Whitbeck v. Van Ness, 11 Johns. 409; Rew v. Barber, 3 Cow. 280 ; Breed v. Cook, 15 Johns. 241; Soffe v. Gallagher, 3 E. D. Smith, 507.)
    V. The acceptance of a note made by a third person on a precedent debt, suspends the creditor’s right to sue upon his original claim until the maturity of the note (Putnam v. Lewis, 8 Johns. 389 ; Pratt v. Coman, 37 N. Y. 441; Smith v. Applegate, 1 Daly. 91; Youngs v. Stahelin, 34 N. Y. 258.)
    VI. The acceptance of such a note on time, though not received as an absolute payment of the original debt, suspends the right of action on the original debt until the note becomes due, and this constitutes a sufficient consideration to make the plaintiffs dona fide holders of the note in suit (Pratt v. Coman, 37 N. Y. 441; Traders’ Bank of Rochester v. Bradner, 43 Bard. 379; Bowles v. Rowland, 40 Bard. 369.)
    VII. Assuming, for the purposes of this argument, that the plaintiffs did not receive the note in payment or satisfaction of said indebtedness, then it must be admitted that they received it as security.

    VIII. A person taking a note of a third party as security for a pre-existing debt, is a holder for a valuable consideration, entitled to protection against all the equities between the antecedent parties (Bank of New York v. Vanderhorst, 32 N. Y. 553; Young v. Lee, 2 Kern. 551; Spencer v. Ballou, 18 N. Y. 327 ; Boyd v. Cumming, 17 Id. 101; Mohawk Bank v. Corey, 1 Hill, 513; Bank of Rutland v. Buck, 5 Wend. 66 ; Stettheimer v. Myer, 33 Bard. 215; Heywood v. Watson, 4 Bing. 496; Percival v. Frampton, 2 C., M. & R. 180; Bramah v. Roberts, 1 Bing. N. C. 469.)
   Br the Court—Jokes J.

In the case of Pratt v. Coman, decided by the court of appeals (consisting of Ward Hunt, Ch. J., Martin Grover, Lewis B. Woodruff, Thomas W. Clerke, Theodore Miller, William J. Bacon, Henry Wells, and Charles Mason, Judges), the action was brought on a nóte made by defendant Coman, dated June 4, 1859, for three thousand dollars, payable six months after date, to the order of Mr. Agnew, and by him indorsed to the plaintiff. The defense was that Agnew by false representations induced Coman to buy certain stocks, in payment whereof he gave the note in suit.

The case was tried before a referee, who found that the note was procured by fraud, and that Agnew indorsed the note to plaintiff before maturity; that Agnew being indebted to the plaintiff in a large sum of money, for which the plaintiff held Agnew’s overdue notes, the plaintiff gave up to Agnew such overdue notes, and received therefor the note in suit and new notes made by Agnew for the balance, and that the plaintiff took the note in suit without notice of any defense; he also found that the said notes so due from Agnew to the plaintiff were surrendered by the plaintiff to Agnew, and this note of defendants, with Agnew’s indorsement, was delivered by Agnew to plaintiff on account of so much and as part of said indebtedness, and the note or notes of Agnew given for the balance; that no agreement was made at the time that the note in suit should be a payment of so much or any part of said indebtedness, nor was anything said on the subject, the transaction being simply a surrender of the old notes and the indorsement over of this and the giving of the other notes. On these facts the referee held that the plaintiff was not a dona fide holder for value, and gave judgment for defendants, which was affirmed by the general term. The court of appeals reversed the judgment, holding that the plaintiff was a bona fide holder for value. The learned judge who delivered the opinion of the court, placed the decision on two' grounds.

1. That the giving up toAgnew of his note and taking the note in suit for it was evidence of the intention of the parties to cancel the note; and whether it operated to discharge the pre-existing debt or not was immaterial, as it certainly operated to cancel the negotiable paper of the plaintiff, which was parting with value sufficient to constitute the plaintiff a bona fide holder.

2. That if a creditor, having a debt due him, receives from his debtor on account thereof the time note of a third person, payable to and indorsed by the debtor, without any express agreement that such note should be taken either in payment and satisfaction or as collateral, he parts with value, because he relinquishes his right to enforce the payment of his debt presently, and suspends his power to collect it until the note so received should mature.

The point involved in the first ground is that the . cancellation of prior overdue negotiable paper of the debtor, extinguishing a right of action thereon, is a parting with value.

•That involved in the second is that a suspension of the right of action on the original indebtedness, caused by the receipt of a time note of a third party, indorsed by its debtor, is also a parting with value.

Each of these points was fatal to the defense, and the decision (under the doctrine of James v. Patten, 6 N. Y. 9) must be taken as an authoritative adjudication on both. •

It will be observed that the learned judge, in course of his reasoning on the second ground, uses this phrase, “And the plaintiff, at the time of surrendering the old note, having the right to enforce its payment presently;” but, by this incidental allusion, he did not make, or intend to make, such surrender an element in Ms decision of the second ground, for it is obvious that the right of action was as fully suspended without the surrender as with it j moreover, the learned judge had previously held the surrender to work an extinguishment, and in this part of the argument, relative to the suspension and its effects, he cites with approval the case of Burns v. Rowland, 40 Barb. 368, cited from p. 374, where no element of surrender existed, and yet the suspension was held to be a parting with value.

The facts of this case bring it within the second point adjudicated by the court of appeals. The plaintiffs were consequently bona fide holders for value, and thus the defense is excluded.

The questions which were allowed under defendant’s exceptions were properly allowed. If they are to be regarded as calling for the operation of the mind, still, as to some extent the question is as to the intent in parting with the goods, they can be sustained by the principle of the case of Seymour v. Wilson, 14 N. Y. 567.

But I think they rather call for a fact, and are admissible under the doctrine of Sweet v. Tuttle, 4 Kern. 465, which case held that the question, “On the part and behalf and for whom were the services performed f ’ was proper.

As to their leading character, it is in the discretion of the trial judge either to allow or exclude leading questions.

In this aspect of the case, the matters suggested in the statement, as not having been passed on by the referee, are immaterial.

Judgment affirmed, with costs.