author: By the Court, Robertson, Ch. J.

text:
    James F. Smith, plaintiff and appellant, vs. George R. Spalding et al. defendants and respondents.
    1. The decision of a motion is not to be considered as a res judicata. Motions may be reheard on leave, on special occasions, but not on the same facts. The granting of leave to renew a motion rests in the discretion of the court, although on the rehearing it may be bound to take the same view of the facts as the judge who first heard the motion." Such an order is not appealable.
    2. A mere oral decision of a court is of no avail without an order making it a record.
    3. An order is the only judicial mode of determining a motion; and it is dangerous, in any case, to rely on affidavits of parties, as to what a court has decided.
    4. A motion to vacate an order of arrest, does not embrace a motion to reduce the bail, although it includes an application for further or other relief. The questions involved in the two motions, are entirely distinct, and dependent on different facts.
    5. Where, on the rehearing of a motion, new facts are produced, which are amply sufficient to make a new case, the discretion of the court is properly exercised in rehearing it.
    (Before Robertson, Ch. J. and Barbour and McCunn, JJ.)
    Heard May —, 1864;
    decided-, 1864.
    Aeter the order of arrest was obtained, in this case, an order was obtained by the defendants, calling upon the plaintiff to show cause why such order should not be set aside, “ or for such further or other order as to the court will he meet and proper;” On the return of that order, the parties appeared, and were heard. The order made on such hearing, after reciting an order ‘ to show cause why the order of arrest in this action should not he set aside, directs that such order be vacated as to two of the defendants, but denies “ the motion so far as relates to the defendant Spalding.” It says- nothing of any order, or motion, to reduce the bail. Subsequently, on the sáme and other papers, an order was made to show cause why the defendant Spalding should not have leave to renew his motion to discharge him from the order of arrest, or why the amount of bail required of-him should not be mitigated, or why such other order, or relief, as might be proper, should not be granted. On showing such cause, an order was made granting such leave, and modifying the order of arrest so as to reduce the amount in which such defendant was held to bail to the sum of five hundred dollars.

      P. Y. Gutter, for the plaintiff, (appellant.)

      T. H. Rodman, for the defendant, (respondént.)
   By the Court, Robertson, Ch. J.

It is now claimed that no fact appeared upon the face of the papers upon which the' last motion was made, different from those-, on which the first motion to vacate the order of arrest was denied, or that if there were any, no. excuse is given for not furnishing them on the first- motion. This, of course, raises the question of the propriety .of the grant of leave to renew the prior motion, or, perhaps, rather, to vacate the previous order made on such motion. It is undoubtedly true, as a general rule, that summary applications by motion cannot be made over again on the same facts, any more than a case can be tried repeatedly. (Fenton v. Lumberman’s Bank, Clarke, 360. Mills v. Thursby, 11 How. Pr. 114.) Hew matter, however, which has come to the knowledge of the party, or happened since the making of the first order, provided' it'be not mere cumulative or additional evidence of the same kind, (Ray v. Connor, 3 Edw. 478,) is enough. (Willet v. Fayerweather, 1 Barb. 72. Cazneau v. Bryant, 6 Duer, 668.) Slight variations in the form of the motion, or the character of the relief asked for, seem to be sufficient (Bounell v. Henry, 13 How. Pr. 142; Frost v. Flint, 2 id. 125,) to allow a substantial renewal. In Snyder v. White, (6 How. Pr. 321,) it is said the decision of a motion is never regarded as “ res judicata;” but that, as a matter of orderly practice, leave must first be obtained to renew it. And in White v. Munroe, (33 Barb. 650; S. C. 12 Abb. 357,) it was held that even on the same papers, a motion might be reheard, but only on special occasions^ such as the prevention of a failure of justice— for instance, when the order is unappealable. In the court of last resort, after a decision is made, even upon the merits, a reargument may be had, so long as they have not parted with the control of the case, (Hoyt v. Thompson’s ex’r, 19 N. Y. Rep. 207; Rule 28 Court of Appeals,) and a rehearing is granted in inferior courts, where the circumstances call for it. (Bank of Geneva v. Reynolds, 20 How. Pr. 18.) But in cases of renewal of motions, the decision of the judge on the previous motion, on controverted questions of fact, ought to be respected. (Skinner v. Oettinger, 14 Abb. 109; Union Bank v. Mott, 6 id. 315.) Leave to renew seems to have such, effect upon the original order as to prevent the hearing of an appeal therefrom while the order giving leave remains in force. (Peel v. Elliott, 16 How. Pr. 483.) If, therefore, the decision of a motion is not to be considered, as a res judicata, as held in Snyder v. White, (ubi supra,) and there are special occasions in which they may be reheard on leave, as held in White v. Munroe, (ubi supra,) a grant of leave to renew would seem to rest entirely in the discretion of the court, although on the rehearing it may be bound to take the same view of the facts as the judge who first heard the motion. If so, it would seem not to be an appealable order.

But in fact the last order does not dispose of the motion, to renew which, it recites that leave had been granted. It merely reduces the amount of bail; while the previous order does not expressly dispose of any motion to that effect, but merely denies the motion to set aside the order of arrest. It is true, the affidavit of the plaintiff states that the motion to discharge the order of arrest was denied, after argument, as appeared hy a copy of the order made therein, annexed to such affidavit '; and that the counsel for the defendant Spalding “ then moved the court to reduce the bail, which motion was also denied.” Construing this strictly, it would appear that the latter motion was not denied until after the order was made denying the former. But it does not appear how it was denied. Ho order is before us denying it, which is the only mode of judicially determining such a motion. A mere oral decision, if it ever took place, is of no avajl, without an order making it a record. The plaintiff seems never to have sought to make it a record by amending the original order, or procuring a new order to be entered. It is very dangerous, in any case, to rely, on affidavits of parties as to what a court has decided ; even counsel being sometimes mistaken. In this case the motion appears to have been heard on the 17th of last February, and the order was made five days afterwards. It is not probable that a motion to reduce the bail was made, or argument had thereon, after such order was made, or that the plaintiff was present when the decision of the court was made. We are not, therefore, at liberty to assume that the motion to reduce the bail was actually made and decided, even if we could go behind the record. The maxim of the civil law fully applies to such a case : “ Definitiva sententia quce condemnationem vel absolutionem non continet pro justa non habetur.” Hor can I find, from the papers before us, that such objection was taken on the hearing of this motion to reduce the bail. For aught that appears, it may have not been presented, and therefore waived as an estoppel, which are not a favorite of the law. But it may be said that the motion to reduce the bail is embraced in a motion to discharge the order of arrest, and that the original order to show cause includes an application for further or other relief. But the questions involved in the two motions are entirely distinct, and dependent on different facts; that on the motion to discharge being whether the party arrested has been guilty of conduct subjecting him to arrest at all, and that on the reduction of bail being as to the amount of injury sustained by the plaintiff, and the amount of bail necessary to -secure the' defendant’s appearance to respond to the judgment. (Baker v. Swackhamer, 5 How. Pr. 251. 3 Code Rep. 284.) They are also spoken of in the Code as separate motions. (§ 204.) It would not follow, from a mere notice of motion for further relief, beyond discharging the order, that it was made and denied in reference to all relief which could be granted. It appears to me to be very clear that the order reducing the bail, at least, was not rendered irregular or erroneous by any previous judicial disposition of a similar motion of record.

But even if it were requisite that the order denying the motion to vacate the order of arrest should be vacated, and liberty given to renew it upon new facts, before a motion could be heard to reduce the bail, there were additional facts in such affidavits beyond what was before the court on the previous occasion. In the first place, the defendant denies, specifically, the various representations wherewith he was charged in the plaintiffs affidavit, on which the order of arrest was obtained ; also an explanation of the original cause of the difficulty between the parties ; a denial of any conspiracy between the defendant Spalding and his co-defendants ; the resumption of the possession of some, at least, of the goods in controversy, by the plaintiff, since the defendant’s arrest; the fact that three quarters ofjfche goods belonging to the firm did not consist of goods bought of the plaintiff, and were acquired since; a denial of the defendant’s insolvency; the conversion of the goods bought of the plaintiff into money, and the excess of the value of the firm’s assets beyond the value of the property sold by the plaintiff; the sale of the goods of the firm by the plaintiff and his son, since this action was begun, to persons of doubtful credit; the incompetency of the plaintiff's son to manage the business ; the action brought by his wife, the plaintiff’s daughter-in-law, for a dissolution of the partnership ; a denial that the defendant drew from the assets of the Arm the sum charged in the plaintiff’s affidavit. These were amply sufficient to make a new case, and some of them. were facts which occurred after the first motion was made, and the discretion of the court would not have been improperly exercised in rehearing either motion, on such facts. The. novelty of the facts is apparent from the plaintiff’s deeming it necessary to deny them in the affidavit of four pages of printed matter. . ■ .

Lastly, in regard to the merits. The plaintiff sold a stock of goods to the defendant Spalding and his son’s own wife, on representations by the former, as to his property^ which are claimed to be. false;. Such sale was conditioned upon the payment by the vendees of a bond executed by them, according to its terms. Such bond was conditional to pay a certain sum in ten years, with interest quarter-yearly. The goods were sold to become part of a partnership stock, to be sold and disposed of by the vendees in a regular course of business. ■ The defendant paid two quarters’ interest, and executed a mortgage on his undivided half of the goods to his co-defendant, Usher, who took possession thereof. Other goods were added to the stock. According to the defendant’s affidavit, the plaintiff retook possession of all the goods, including what had never belonged to him. The only denial of this is the plaintiff’s affidavit that the goods secured by him- were worth only a blank sum, and that only a part of the goods so removed were recovered by him. It certainly was an . extraordinary sale of goods for the purpose of carrying on business by the vendees, which required them to be kept ten years, or until the purchase .money, with ten years’ interest, had been paid.. The plaintiff also had another action pending for the same cause of action, if what is claimed to be the cause of action in this case can be discovered without any complaint. If such other action be to rescind the contract and reclaim the goods, and this is for mere damages in having temporarily deprived the ' plaintiff of the' possession of his goods, without any data to estimate them, he having got possession of the goods, it is impossible for. this court to determine. that five hundred dollars' is not a reasonable sum. for which to exact bail to secure the defendant's being present to respond to any judgment.

Upon every ground, the order appealed from should be be affirmed, with costs.


source: Caselaw Access Project

author: McCunn, J.

license: Public Domain

text:
    Van Syckels, et al. plaintiffs, vs. Theodore Perry, defendant.
    1. The court cannot allow an amendment of the complant, the effect of which would be to introduce a new cause of action. The right of amendment is limited to the subject matter for which the action was originally brought.
    2. An amendment will not be allowed, the effect of which would be to enable the plaintiffs to recover the half of a claim which they have purchased since the commencement of the action, and which they could not have recovered as the action was originally framed.
    "3. Nor will an amendment be permitted for the purpose of introducing a new cause of action, instead of the one laid in the complaint—a cause of action barred by the statute of limitations.
    (Before McCunk, J. at special term,
    June —, 1864.)
    This was a motion for leave to amend by substituting the name of a different person as plaintiff, in place of the actual plaintiff, and otherwise amend the complaint. The action was brought to recover the sum of §16,538.58, being the value of a cargo of wheat sold in October, 1856, arid shipped on board the ship Winfield Scott, then lying in the port of Baltimore and bound to the city of London.
    The cause was reached in its order bn the calendar, a partial trial was had, and after considerable testimony had been taken, it was discovered that one of the plaintiffs, who at one time was owner of one half the claim, had assigned his interest in that half to his father, and that consequently he was an improper party to the action. It also appeared on the trial that the cargo shipped by the Winfield Scott had been paid for, or nearly so. On this state of facts the plaintiffs rested. A motion was thereupon made by the defendant's counsel for a nonsuit, upon the facts disclosed, and in order to defeat that motion, the counsel for the plaintiffs moved to amend the complaint. Under the circumstances these learned justice who presided at the trial, declined granting a nonsuit, but intimated that the plaintiffs’ counsel might withdraw a juror and apply for such amendment at special term. A juror was accordingly withdrawn, and the case went over.

      Wm. J. Niles, for the plaintiffs.

      S. G. Courtney, for the defendant.
   McCunn, J.

A motion is made by the plaintiffs for leave to amend by substituting the name of Albert J. Yan Syckel, the person to whom the value of one-half of the cargo was assigned, as plaintiff on the record, in the place and stead of Elbridge Yan Syckel, the original owner of that half value; and second, by allowing the plaintiffs to set up- a new allegation in their complaint, and in that allegation claim to recover, in addition to the value of the cargo of the Winfield Scott, the value of a cargo shipped on board the ship Capitol, lying also in the port of Baltimore, and bound for the city of Liverpool.

The court cannot allow an amendment, the effect of which is to introduce a new cause of action. The amendment is limited to the subject matter for which the action was originally brought.

In the case of Davis v. The Mayor, &c. of New York, (4 Kern. 506,) where an action was brought by a taxpayer of, the city of New York, to prevent the construction of a railway in Broadway, the court at the trial, on a motion to amend, held that the name of the attorney-general might be added as a party plaintiff, and then gave judgment for the relief prayed for; the Court of Appeals reversed this ruling, upon the ground that the Code did not authorize such an amendment.

In the case of Coffing, President, &c. v. Tripp, (1 How. Pr. 115,) an application was made to amend the complaint by substituting different plaintiffs in the action, in those early stages of pleading under the Code. Beardsley, J. in rendering the opinion of the court, stated that there could be no precedent found for such an amendment, and most unfortunately for the plaintiffs, I have been unable to find any even at this late day.

In Wright v. Storms, (3 Code Rep. 138,) upon a motion for leave to amend the complaint, Edwards, J., said, to allow the amendment would be, to all intents and purposes, the inauguration of a new suit, and I do not think that it was the intention of the Code that the power of amendment should be exercised to this extent.” How, i.n regard to the claim for the wheat of the ship Winfield Scott, the plaintiffs only owned one half of the value of that cargo, when this action was commenced. The owner of the other half was not a party to the suit at all. Of course the plaintiffs could only recover their own half in any event, leaving the owner of the other half to bring a new suit to recover the remaining half. They could not indeed recover at all, if the defendant chose to raise the objection that the owner of the other half interest should be joined in the suit. (Coster v. The N. Y. and Erie R. R. Co., 6 Duer, 43, 46.) If he did not raise the objection, the plaintiffs could recover their own half; (Code, §§ 144, 148 ;) but, of course, they could not recover the half which belonged to some one else.

The effect, therefore, of the proposed amendment, as to the Winfield Scott’s wheat, would be to enable the plaintiffs to recover the half of that claim which the moving papers show they have purchased since the commencement of the action, and which they could not recover, under any circumstances, as the action was originally framed.

As to the second amendment, I would say, that it is, in fact, the introduction of a new cause of action, instead of the one laid in the complaint —a cause of action against which the statute of limitations has run, and has become a complete bar.

To allow the second amendment would be to deprive the defendant of a legal defense, that is, of the statute of limitations. The. effect of the amendment sought, is to institute a new suit. The defendant has a vested and absolute right under the statute of limitations. These rights cannot be divested by an original action, nor should they be divested indirectly by adding a new count and giving it a relation which overreaches the defendant’s rights. It seems to me that by allowing this amendment, we are indirectly depriving this defendant of all lawful benefit under the act. The rule is well established, and has often been acted upon in the English courts, and in the courts of this country, that, where the statute of limitations has attached, such an amendment will not be allowed. (Willink v. Renwick, 22 Wend. 608.)

It will be seen by the papers used on this motion, that the purchase of the cargo of the ship Winfield Scott and that of the cargo of the ship Capitol were separate and distinct transactions, several days having elapsed between the purchases ; that no running account, or account current of any kind, had ever existed between the parties. On the contrary, as each of the cargoes was purchased, it was disposed of solely on its own merits, without any regard to the other cargo. This being the case, and as this second amendment would amount to a new and separate cause of action, and as that cause of action has been barred by the statute of limitations, this amendment cannot be allowed.

The motion to amend must be denied, with $10 costs of the motion.


author: Monell, J.

text:
    James Webb, plaintiff, vs. James Helion et al. defendants.
    In an action by one partner against his co-partner, for a dissolution of the part-ship, partly upon the ground of his fraudulent sale of partnership property to a third person, it is proper to make the fraudulent vendee a party; as the sale may, in such action, be adjudged fraudulent and void, and the vendee be compelled to account for it, or its value.
    (Before Monbh,, J. at special term,
    June, 1864.)
   Monell, J.

I have no doubt that, in an action by one partner against his co-partner for a dissolution of the partnership, it is proper to make the fraudulent vendee of the partnership property a party to the action. Hor is there any doubt that such sale, may, in such action, be adjudged fraudulent and void, and the vendee be made to account for it, or its value.

Fraud is peculiarly cognizable by courts of equity, and they will always seize upon it in appropriate cases to prevent wrong or injury. The objection, that it is multifariousness in pleading, to unite two causes of action, is not sound. If the partnership property has been conveyed in fraud of the partnership rights, the vendee, if a party to the fraud, must account for the property ; and he can only do so in the action between the partners. One partner cannot, at law, sue to recover partnership property which has been fraudulently sold by one of the partners. Resort, in such a case, must be had to equity.

This question was substantially decided in the late court of chancery, by the late Vice Chancellor Sandford, ([Hayes v. Heyer, 4 Sandf. Ch. 485,) where an amendment of the complaint was applied for, making the assignee of a part of the partnership property a party, for the purpose of having.such property applied towards the payment of the partnership debts, and the amendment was allowed. And in this court an order of arrest was refused where it was sought to arrest one partner at the suit of the other, for a fraudulent removal of the property, Dueb, J. saying that the remedy was by a suit for an injunction and receiver. And Oollyer (ora Partnership) says, (§ 643,) the defrauded partner may perhaps have a remedy in equity hy suit in his own name, against his partner and the person with whom the fraud was committed.”

I am satisfied, in this case, that the injunction should be continued, and that a receiver should be appointed. The denial of the defendant O’Kane is not sufficient to overcome the facts sworn to by the plaintiff, which gave rise to a ■ well grounded suspicion that he was a party to a fraudulent transfer of the property.

The motion to continue the injunction, and for a receiver, must be granted.


author: Robertson, Ch. J.

text:
    Benjamin M. Livermore, plaintiff, vs. Thomas Rhodes, defendant.
    Where a debtor refuses to pay his note, on demand, and on being told by the holder that he will be sued, threatens that if he is sued, he will turn over all his property, and that the holder “ will not get a cent,” the property of the debtor is liable, on such threat, to an attachment.
    (Before Robertson, Ch. J. at special term,
    September —, 1864.)
    Motion to discharge an attachment granted under section 229 of the Code of Procedure. In the affidavits upon which the attachment was issued, it was alleged that the defendant, on being informed, after his refusal to pay a note held by the plaintiff, tha't he would be sued, threatened that if he was sued, he would turn over all his property, and that the plaintiff would not get a cent. This the defendant denied.

      Thomas Sadler, for the motion.

      Hendrickson & Whipple, opposed.
   Robertson, Ch. J.

The defendant does not attempt to explain, but altogether denies, the expressions imputed to him. They evidence an intention (whether from anger, or any other cause, is immaterial) to dispose of property so as to baffle the plaintiff in the speedy collection, of his debt, which, of course, could only be done by illegal" means. (Gasherie v. Apple, 14 Abb. 64.) Cases in which the only threat was to make merely a lawful assignment, are inapplicable. Two witnesses, who are disinterested, in addition to the plaintiff, prove the use of the language charged; and it is only denied by the uncorroborated evidence of the defendant. His responsibility, character and conduct cannot disprove his utterance of such words. They might show them to be the result of excitement, but the words are denied instead of being explained..

The motion to discharge the attachment must be denied, with #10 costs.


text:
    James Griffith, plaintiff, vs. Ann Brown and another, defendants.
    A warrant of dispossession in summary proceedings to recover the possession of land, will be stayed by injunction, where it appears that the possessor summoned had not time to arrive at the court room, before the hearing, after the service of the summons.
    (Before Robertson, Ch. J. at special term,
    October —, 1864.)
    Motion to continue an injunction restraining the defendants from executing, or procuring to be executed, a warrant issued by a justice of a district' court, in the city of Hew York, in summary proceedings under the statute, to remove a tenant who was holding over. The summons was issued September 13, 1864, at 11 o’clock, a. m. returnable at 2 o’clock, p. m. of the same day, and was given to the officer, for service, immediately after it was issued. The officer retained the process until about twenty minutes past 1 o’clock, when he served it by leaving it with a person of mature age, on the premises, during the tenant’s absence. The proceeding was called at 2, p. m., and judgment entered, and a warrant issued at half past two. The tenant ■ arrived at the court house about fifteen minutes after the warrant was issued.

      E. Haines, for the plaintiff.

      David McAdam, for the defendants.
   Robertson, Ch. J.

It is possible the proof of service of the summons, without showing the time of it, may have been sufficient to confer jurisdiction on the magistrate to issue a dispossessing warrant. At all events, injustice in that respect could not be corrected on certiorari, as nothing appears on the record as to the time of the service of the summons, or the possibility of the tenant’s reaching the courtroom after such service. If the magistrate has an arbitrary right to fix the time of appearance, and the delivery of a summons to a person, to be served, is the issuing of it, within the meaning of the statute, no •similar right is given to the person receiving the summons to diminish" as he pleases the time within which the tenant has a right to appear, by delaying its service until too late. If due proof of service, in order' to comply with the statute, may be made simply by proving a delivery of the summons at some time during the day, sufficient time should be afforded to the party served, after the proof is made, to attend in order to be heard, particularly where the service is not personal. The law could not have intended such a mockery of justice as to expel a party, in possession, without an opportunity of being heard. The magistrate might, if the improper issuing of the warrant of dispossession was made known in time, withhold it, or possibly might'recall it, if so improvidently issued; but I do not find any authority in the statute for reconsidering his decision made on the exparte evidence of the landlord. For an evil under color of legal proceedings, which has no other remedy, an injunction order must be the proper one. Whether the dilatory service of the summons is to be considered a fraud on the law, or the judgment given by the magistrate in the absence of a party who has not had time to arrive at the court room before the hearing, after service of the summons, is to be considered as a surprise, I think the right of enjoining may be exercised. The cases of Valloeton v. Seignett, (2 Abb. 121,) and Cure v. Crawford, (1 Code Rep. N. S. 18,) seem to sustain the first view, and that of Forrester v. Wilson, (1 Duer, 624,) the second.

Of course, staying proceedings on the first warrant, now issued, will not prevent a new application to dispossess. Neither party will be at liberty to use such adjudication on such second application.

It is possible, of course, that the plaintiff might have reached the court room in time for the hearing, if the summons had been served upon him personally an hour before the time for appearing; but that was too short, apparently, to enable the party on whom it was served to carry it to him, and for him to find a legal adviser and get to the place of hearing in time. He appears to have used all diligence to reach there in time, and failed.

The motion must be granted, with ten dollars costs to the plaintiff, to abide the event of the suit.


author: By the Court, Monell, J.

text:
    John Scudder, plaintiff, vs. Catharine Gori, impleaded, &c. defendant.
    1. The costs of an action are to be taxed according to the fee bill existing at the time of the verdict, or the dismissal of the complaint ¡ and this notwithstanding proceedings thereon are stayed.
    2. On a motion at special terin for a new trial, upon a case, costs are to be granted as upon an appeal from a judgment.
    (Before Robertson, Ch. J. and Monell and Garvin, JJ.)
    Heard October —, 1864;
    decided-, 1864.
    The complaint in this action was dismissed by the judge, at the trial, on the 22d of May, 1862. The further proceedings were stayed by the order of the justice who tried the cause, until a case could be made and settled, and a motion for anew trial could be made and decided. The motion for a new trial was made at a special term, and denied at the May term, 1864. Judgment was thereupon entered against the plaintiff, for costs, the costs being taxed under the the law existing May, 1864.
    Upon an appeal from the taxation, the justice at special term decided that the costs must be adjusted according to the fee bill as it existed at the time of the dismissal of the complaint (i. e. May, 1862,) and that the application at special term, on a case for a new trial, was a motion, the costs of which are regulated by section 315 of the Code.
    From this decision the defendant appealed to the general term.

      R. B. Roosevelt, for the appellant.

      S. W. Judson, for the respondent.
   By the Court, Monell, J.

I am constrained to adhere to the case in this court, (Moore v. Westervelt, 14 How. Pr. 279,) which holds that the costs must be adjusted according to the Code as it existed at the time of the verdict, as respects all items prior to that date. It is there said that the “ recovery ” which gives the right to costs, mentioned in the statute, means the. verdict,” and not the judgment. This decision was made at general term, in July, 1857, and no amendment of the Code affecting this question, has since been made, Crary v. Norwood, (5 Abb. 219,) decided about the same time, holds the same way. Whether these cases were well considered, and supported by authority, is not for us to inquire. Uniformity of decision upon questions of this nature, as well as respect for the opinions of eminent judges comprising a former general term of this court, require that we should regard the decision as binding upon us.

The right to costs being fixed by the verdict, (or, in this case, by the dismissal of the complaint, which in principle is the same thing,) the question is not affected by the stay of proceedings. The right to costs had become complete before the stay, and they must be adjusted in accordance with the then ■existing law.

The 5th subdivision of section 307 of the Code as it stood in 1852, (then sub. 6,) gave to either party, on appeal, except to the Court of Appeals, a prescribed rate of compensation, but declared that its provisions should not apply to appeals from orders. At that time, under section 349, an appeal could be taken from an order granting or refusing a new trial, but no costs, except a motion fee, could be given. In 1857 the 307th section was amended by adding to the 5th subdivision, “ and the same costs shall be- allowed in cases ordered to be heard in the first instance at general term.” In 1858 the subdivision was further amended, so that the same read, “ and the same costs shall be allowed on -application for judgment upon special verdict, or upon verdict subject to the opinion of the court, as for a new trial on a case made, and in cases where exceptions are ordered to be heard in the first instance at a general term.” In 1862 the section was again amended by striking out the word “ as ” and inserting the word “ or,” so that it should read “or for a new trial on a case made.”

The amendment of 1858 was difficult of construction. The word “ as ” conveyed no idea of what was intended. Whether on application for judgment upon a verdict subject to the opinion of the court, the same costs were to be awarded as were given on a motion for a new trial on a case, or whether the word “ as ” was to be construed into, as by subsequent amendment it was changed into “ or,” it was difficult to determine. The latter liberty was taken by a judge at special term, in Jacket v. Judd, (18 How. Pr. 385, 393.)

My construction of the statute as it now stands is, that the legislature intended to give the same costs as given on an appeal from a judgment, in the four cases, viz : First, on application for judgment upon a special verdict; second, upon a verdict subject to the opinion of the court; third, upon an application for a new trial on a case made; and fourth, on exceptions ordered to be heard at a general term, without reference to the place where the application is to he made. In two of the four cases, viz. application for judgment upon a special verdict, and for a new trial on a case, the. application must be made at special term, and cannot be made at general term. (Code, § 265.) The other two, viz. verdict subject to the opinion of the court, and exceptions, must go to the general term, and cannot be heard at special term. (Id.) When the first two cases are carried to the general term,' it can only be by appeal from the judgment upon the special verdict, or from the order granting or refusing a new trial.

Certainly the exception of cases mentioned in section 349 can have no application to motions for judgment upon a special verdict; and unless it was designed to give to that class of cases the-costs prescribed by section 307, although made at special term, then so much of the amendment was .utterly useless. The literal reading of the section is, that the parties shall have the same, costs as are allowed on appeal, on an application for a new trial on a case made. As such application must be made at special term, it follows that the costs-of an appeal are to be awarded at the special term. If the application for .a new trial on a case stood alone in the section, I might be inclined to yield to the opinion that it was simply intended to take those cases out of the exception of appeals from orders. But the section includes, and places in the same condition, applications for judgment upon special verdict, and it is quite clear that the costs on such motions are the same as on an appeal. If the judge, in Jackett v. Judd, (supra,) had not emphatically said that only motion costs were, allowable on a motion for a new trial at special term, I could adopt the .whole of his subsequent reasoning, as illustrating the view I, have taken of the question. But that learned judge did not notice thati motions-for judgment upon a special verdict,- or for-a new trial, on a case, can only be made at special term, and, ,therer fore, unless it was intended to give the costs tit -special: term, they cannot be given at all. While he admits that it was inr tended to give the same costs as on an appeal from a judgment in-the four cases mentioned, he confines the right to award the costs to the general term; whereas in two of the cases, the motions cannot be made at general term at all. Neither view is free from difficulty. The section is inartificially drawn, ambiguous, and capable, perhaps, of either construction ; and, with other judges, I can frankly say, I am not entirely satisfied with either. There is as much reason for giving these costs at special term as to confine the right to those at general term, if the motion could be made there. The motion at special term involves the preparation of the case, and frequently as elaborate and solemn argument, as at general term, and it would seem to require similar compensation.

My conclusion is, that upon a motion for a new trial upon a case made at special term, the parties are entitled to the same costs as upon an appeal from a judgment.

The taxation appealed from must be readjusted upon the principles here stated.


text:
    Cadwell, plaintiff vs. Goodenough et al. defendants.
    Assuming the court to have the power to order a bill of particulars, after the issues in a cause have been referred to a referee to hear and determine, it will not be exercised to interrupt a trial actually proceeding before him.
    (Before Moncrief, J. at special term,
    October —, 1864.)


author: Monell, J. Robertson, Ch. J. McCunn, J.

text:
    George Bowman, plaintiff vs. William M. Tallman, defendant.
    1. A stay of proceedings, for the purposes of an appeal, is not violated, so as to enable the respondent to issue execution upon the judgment appealed from, by a decision of the appeal announced orally and entered on the minutes. To supersede the stay there must be a formal judgment, entered by the clerk.
    2. The issuing of an execution after such decision entered on the minutes, and before the entry of a judgment, is at most a mere irregularity, and as such. a motion to vacate it must be made promptly. Such a motion, made several months after the levy of an execution upon the defendant’s property issued upon the judgment entered, although he had appealed from it, to the Court of Appeals, was held too late.
    (Before Robertson, Ch. J. and Monell and McCunn, JJ.)
    Heard November —, 1864.
    Appeal from an order setting aside an execution and the levy made thereon.
    On the 22d of February, 1864, the plaintiff recovered a judgment against the defendant William M. Tallman. On the same day an appeal was taken by the defendant, from the judgment, to the general term of this court, and an undertaking to stay proceedings upon the judgment was filed. The appeal was argued in the general term, and on the 28 th of •May, 1864, the general term orally announced its decision, affirming the judgment. The entry in the minutes made by the clerk is as follows : After the names of the judges comprising the court, and the title of the cause, “ Judgment affirmed with costs.” On the 30th of May, 1864, the plaintiff issued an execution on the judgment of February 22, 1864. A formal order affirming the judgment was duly entered on the 31st of May, 1864, on which judgment of affirmance was entered on the 2d of June, 1864. On the 8th of June, 1864, the defendant appealed to the Court of Appeals, giving the proper undertaking to stay proceedings. On the 5th of October, 1864, the defendant gave the plaintiff notice of a motion that the execution be vacated and set aside “as irregular, illegal and void," on the ground that at the time of its issuing, the judgment had not been affirmed.
    The motion was granted at special term, and the plaintiff appealed.

      G. Bowman, plaintiff, in person.

      E. T. Gerry, for the defendant.
   Monell, J.

I am inclined to think that when the execution issued, the stay upon the judgment was not removed. The effect of giving the undertaking on the appeal to the general term, was to stay all further proceedings upon the judgment apealed from, (Code, § 339 ;) and an execution could not, regularly, issue until after the decision of the general term affirming the judgment. The mere oral announcement of a decision by the judges sitting in the general term, and the mere entry of such decision in the minutes of the clerk, is not such a judgment of the general term as will authorize action under it. I think a formal judgment which embraces the decision, and which becomes a permanent record of the court, must be entered by the clerk, and that such a judgment only, removes the stay of proceedings. (Lentilhon v. Mayor, &c. 1 Code Rep. N. S. 111. S. C. 3 Sandf. 721.)

There was, however, á valid judgment to support the execution. Its effect and operation and the right of the plaintiff to enforce it by appropriate process, was merely suspended, pending the appeal; and it was an irregularity, in the conduct of the proceedings to ■ enforce it, to issue an execution, until after judgment of affirmance had been duly entered. But it was an irregularity merely. Mr. Tidd (1 Tidd’s Pr. 512,) says : An irregularity in practice may be defined to be the want of adherence to some prescribed rule or mode of proceeding ; and it consists in omitting to do something that is necessary for the due' and orderly conducting of a suit, or doing it in an unreasonable time, or improper mannerand he mentions the entering of judgment before the time to plead has expired ; the service of an execution after its return day, " &c. &c. as instances of irregularities.

The long and uniform practice of the court has required that motions to vacate process or proceedings irregularly issued or taken in a cause, shall be made at the first opportunity after the irregularity has been discovered ; otherwise the irregularity will be deemed to be waived.

The execution in this case was issued on the 30th of May, 1864, and as the defendants’ attorney states in his affidavit, was on the same day levied on the defendant’s property. Tet the defendant omitted to take any steps to procure the execution to be set aside, until the 5th of October, more’ than four months after it was issued. I think he. was too late, and should be deemed to have, waived the irregularity ;• especially, as the judgment of affirmance was entered in due form on the 2d day of June. And the defendant appealed therefrom on the 8 th of June, with knowledge of the irregular issuing of the execution.

The order appealed from should be reversed.

Robertson, Ch. J.

The Code terms every direction of a court or judge .not included in a judgment “ an order (§ 400;) but it would be a matter of little practical consequence, whether the determination of a court at general term, upon an appeal from a judgment at special term, should be designated as an order or a judgment, were it not that the same section, (just cited,) requires an order to be entered in toriting. Only “ the final determination of the rights of the parties in action ” can be a judgment, which is required to be entered in the “judgment book ” kept by the clerk, ( § 279,) and to specify clearly the relief granted, or other determination of the action. (§ 280.) A copy of it is to form part of the “judgment roll,” along with the pleadings, verdict, report, exceptions, case, and certain other papers affecting it. ' (§ 381, sub. 3.) In case of a.judgment at general term, upon a verdict at special term, where directed to be subject to the opinion of the former, and in that case only, it being as reviewable. on appeal as if exceptions had been actually taken on the trial. (§ 333,) “ questions or conclusions of law, together with a concise statement of the facts upon which they” arise, are required to be filed with such judgment roll. (Id.) The general term is expressly authorised to render a. technical ■judgment only in such a case, and when exceptions taken at a trial are reserved to be heard by it in the first place. (§ ’265.) The Code recognizes the grant or refusal of a new trial by an order, (§ 11,) and extends the appellate jurisdiction of the Court of Appeals to such order as “ an actual determination ” by.the general term. (Id.) Although the determination of the Court of Appeals therein is termed distinctively a “ judgment.” (Id.)

These various provisions of the Code,, seem to make a decision of a court at general term, affirming or reversing a judgment of the same court at special term, according to the nomenclature of such Code, a mere “order.” The technical “motion” (§ 401, sub. 1,) disposed of thereby, (Id. § 400,) being an application ” to vacate the judgment, and grant a new trial. The judgment mentioned in sections 19 and 38 of the Code, probably, were intended to embrace every kind of decision; since otherwise less than the number of judges specified in suph section might grant or refusé an order for a new trial. In this case, therefore, the decision of the general term was a mere order, and should have been entered as such in writing, before it could take effect. It is not necessary; therefore, to consider its effect if it had been a judgment, arid merely orally announced. Such announcement would unquestionably, in such a case, authorize the reduction .of the decision to form and justify a settlement and allowance of its written record subsequently, although all the judges who made it' should then not be members of the court. And in such case, such record, when made, would relate back to the time of such announcement.

The stay of proceedings in this case was by statute, and not by a special order of the court. In the latter case, the defendant’s remedy might have been confined to a motion for an attachment for disobedience of such order. In the former it is irregular to proceed, and the proceedings may be set aside as void. The order at general term, affirming the judgment, at special- term, related back to the time of pronouncing the decision. The anticipation of it by issuing the execution was a mere irregularity; the levy of such execution on the- day it was issued "was notice of its issuing. I fully concur, therefore, in the views of my brother, Monell, in considering the right to move to set it aside waived, by five months delay in making the motion. The order appealed from should, be reversed, without prejudice to a motion by the defendant, to stay proceedings on suitable terms.

McCunn, J.

I agree, fully, with the chief justice, and with Justice Monell, that the order appealed from in this case should be reversed; but I differ with them, widely, in my reasoning, in arriving at this conclusion. I believe the theory or practice laid down by the learned counsel for the plaintiff is the correct practice.

The learned justice who heard the case below, misapprehended the fact, in assuming that no judgment roll was filed till June 2, 1864 ; for the judgment roll in the case was undoubtedly filed in February, 1864, and the execution fully refers to this judgment, and its entry. He was mistaken, therefore, in his reason for granting the motion. He evidently based it on the supposition that a new judgment had been entered up for costs, at general term; for he certainly did not refer to the original judgment, which was affirmed ; because to that judgment the execution, which the defendant is now moving to set aside, fully and completely refers.

The practice is well settled, that where a judgment is affirmed, it does not add .to or modify the original judgment; it remains as when entered up originally. The rule is simply to enter up a new judgment for the costs; so that, in fact, there are two judgments in the case — the original judgment, and the judgment for costs. Supposing no costs or disbursements had been allowed to either party, on this appeal, certainly no second judgment would have been entered. All that could have been done, under such circumstances, was to obtain from the clerk at general term, a certified copy of the order affirming the judgment; and the filing of that with the clerk of the court in which the judgment was first entered, is all that would be necessary. (2 Tiffany & Smith’s Pr. 153.)

This was all done by the plaintiff in this action; and this, I hold, was all he was required to do. After the court had determined the case, it must give effect to its determination as of that date, and all orders concerning the same must be as of that date. (Willson v. Henderson, 15 How. Pr. 90. Crawford v. Wilson, 4 Barb. 504.) The judgment of affirmance, when entered, must refer back to the day and term when it was pronounced. (Bank of Rochester v. Emerson, 10 Paige, 359.)

As to this judgment, (the judgment below,) the plaintiff cannot take any proceeding on the same, founded on the act of the general term. This execution is founded on the original • judgment alone; and whatever rights or liens are acquired by a levy under it, must be treated as vested rights. (Matter of Berry, receiver, 26 Barb 55.)

It was held in the case of Jackson v. Varick, (7 Cowen, 413,) that on a case and bill of exceptions, the prevailing party may take effect and advantage of the decision the moment it is announced.

I am not insensible to the value of the arguments which have been advanced to us by the learned counsel for the defendant. These arguments raise one of the many difficulties I have found in the case. They do not, however, affect my view as to the conclusions we should arrive at.

The order appealed from should be reversed ; but I do not concur with the learned chief justice, that it should be reversed with privilege to renew, &c. I agree with Justice Monell, that the order should be reversed unconditionally, and with costs.

Order reversed.


author: Barbour, J.

text:
    Mortimer Livingston, receiver of the General Mutual Insurance Company, plaintiff, vs. David Olyphant et al. defendants.
    A receiver, substituted in the place of one who has died, who moves for leave to continue in his own name as such receiver an action begun by the latter, by supplemental complaint, after it has become barred by the statute of limitations, may he required, as a condition of granting the relief sought, to assume the onus prolandi.

    (Before Babboub, J. at special term,
    December, 1864.)

      "Motion by A. M. Lawrence, the substituted receiver in this action, for permission to continue the action by supplemental complaint, in his own name, as receiver.

      H. S. Anderson, for the motion.

      D. D. Lord, opposed.
   Barbour, J.

This action was brought in April, 1855, to recover, the amount of a promissory note, alleged in the' complaint to have been made to The G-eneral Mutual Insurance Company, in December, 1853, by the defendants, then composing the firm of .Olyphant & Sons, and payable eight months from'date. . ' ■ '

The defendants, by their. % answer, alleged that the note in question was given to secure the premiums, thereafter to, be earned by the company, upon an open policy of insurance for $20,000, and further averred that n.o premiums had, in fact, ever been earned, nor any risk indorsed upon the policy, but that the said policy had, by mutual agreement between the company and the assured, been returned by the latter and canceled.

In August, 1857, the plaintiff, Livingston, died. In November, 1857, an order was made by the Supreme Court, directing that Alexander M. Lawrence be appointed receiver of the company, upon his executing a bond with sureties, as therein required'; and, subsequently, but at what time does not appear in the papers before me, such bond was given by Lawrence, who thereupon became the' receiver of the company. There is no evidence that the defendants were informed of ■the appointment of Lawrence as receiver, until some time -within the present year. ...

The receiver Lawrence now moves, upon an affidavit and his proposed suplemental complaint, setting up the death of the plaintiff of record, and his own appointment, as above, for permission to continue the action by supplemental complaint, in his own name as receiver.

Ten years, it will be seen, have elapsed since the note became due and payable, and more than seven since the death of the plaintiff of record. Most, if not all, of the delay in the progress of the cause which has occurred subsequent to the death of Mr. Livingston, must be attributed to those who ought to have assumed the position of plaintiff. The defendants, certainly, are not chargeable with the whole, if any of -it. For as the functions of the attorney for the plaintiff of record ceased upon the death of his principal, notwithstanding the operation of a special statute prevented the abatement of the action, and the defendants had no knowledge, until some time during the current year, that Mr. Lawrence had become the receiver in Livingston’s stead, even if that fact existed, there was no means, prior to the amendment of the 121st section of the Code, in 1862, by which the defendants could have terminated the suit, or accelerated its progress.

By the fault or negligence of the parties whose interests are now represented by the promovant, therefore, the suit has been permitted to sleep for a period long enough to bar a recovery in an action upon a promissory note, under the statute of limitations ; a statute which, as Justice Story says in Bell v. Morrison, (1 Pet. 360,) was designed, not merely to raise a presumption of payment of a just debt from lapse of time, but to afford security against stale demands after the true state of the transaction may have been forgotten, or become incapable of explanation by the death or removal of witnesses;” and I can perceive no reason why the principles of that statute ought not to be applied to such a case as this, so far, at least, as may be necesssary to protect, fully, the rights of the party not in fault, whose evidence may have become lost by the delay. It is easy to see, from the nature of the case, that it may be extremely difficult, if not impossible, for the defendants, after the lapse of so many years, to prove all the facts necessary to establish their defense, and yet, they ought not, merely upon that presumption, and in the absence of a statute conferring an absolute right, to be permitted to stop the progress of an action in which their rights are fully protected and secured.

I think that may be done in this case, by casting the onus 'probandi upon the plaintiff; and that will operate no injustice to him. It will, probably, be as easy for him as for the defendants to prove the consideration of the note; and if the witnesses have now forgotten, or are dead, it is right and equitable that he whose fault has occasioned the loss of the testimony, should suffer the consequences.

An order will, therefore, be entered granting the specific relief asked for in the notice of motion, without costs, provided the receiver Lawrence, and his attorney, shall, at the time of such entry, or within five days thereafter, file with the clerk, and serve upon the defendants’ attorney, a stipulation consenting that judgment be rendered for the defendants, unless the plaintiff shall prove, upon the trial, what the consideration of the note was; and if such consideration was the underwriting of an open policy, then, unless he shall further prove that some and what premiums had been earned at the time of the commencement of the action; and further providing that in case such stipulation shall not be filed and served within five days after the entry of the order, this motion be denied, with $10 costs,

The order may be settled before me, if necessary, on two days notice,


text:
    Simmons vs. Simmons.
    1. In an action for a divorce, an order will not be granted referring the action to a referee “to try ami determine the issues therein,” though the attorneys for the respective parties sign a stipulation consenting to such order.
    2. The court ought not, in any case, to neglect its obligation as the guardian of the rights of married women, so far as to delegate the power to hear and determine the issues upon a careful consideration of the evidence to others.
    (Before Barbour, J. at special term,
    December, 1864.)
    Motion for the appointment of a referee to hear and determine.
   Barbour, J.

This is an action brought by the wife against her husband, for a divorce a vinculo, and for alimony. A motion is now made for the appointment of a referee to hear and determine, which application is founded upon a written stipulation of the attorneys of the respective parties, consenting that “ this action may be referred to a referee to try and determine the issues therein’’

As the Code now stands, a report of a referee upon the whole issue, is to stand as the decision of the court, and judgment may be entered thereon, by the attorney, without any examination or confirmation by the court. (Gode, § 272.)

It may well be doubted whether, under the peculiar wording of this stipulation, the proposed referee would have any power to award alimony to the plaintiff, notwithstanding he should arrive at the conclusion that the offense complained of had been committed, and that a judgment of divorce ought to be granted. It will not be necessary to consider that question, however, inasmuch as I am entirely satisfied upon other grounds that the order asked for would, be improper. It has long been the practice of the court to refer actions of this class to referees to take and report the proofs, with their Opinion thereon. This reserves to the court the power of determining in divorce cases, in which there is no answer denying the charges of the complaint, or when a jury trial has been waived, whether the offense complained of has been committed, and, also, what, if any, alimony should be awarded.

Upon a careful examination of the statutes and practice, both before and since the adoption of the Code, and on consultation with my brethren, I am satisfied that the court ought not, in any case, to divest itself of its power, and its obligation as the guardian of the rights of married women, to hear and determine the issues, upon a careful consideration of the evidence.

The motion must, therefore, be denied.


text:
    Thomas Butler, plaintiff, vs. George W. Niles, defendant:
    1. After the trial of the issues in an action, an adjudication was made by a justice of this court, at a special term, allowing the plaintiff flee days after notice thereof, to sign and file a stipulation containing certain matters, and in case the
    « plaintiff should refuse to sign such stipulation, it was adjudged that the com- ' plaint should be dismissed, &c. Held that this adjudication, not being final until the expiration of five days after it was "pronounced, there was not, at the time it was, made, a final determination of the rights of the parties, from which on that day an appeal could have been taken; and that consequently it was irregular to file a judgment record in the action the same day.
    2. That in analogy to the old common law practice, the direction was a judgment nisi, or according to the equity practice, a decretal order, not & final decree.

    3. Seld, also, that after the expiration of the time given to the plaintiff, and noncompliance with the direction, no further action on the part of the court or of any judge thereof, was necessary; the defendant becoming entitled, by the very terms of the order, to judgment of dismissal.
    4. An order extending the time for the plaintiff to sign and file a stipulation • which he has omitted to do, “ in furtherance of the justice of the case,” rests in ' the discretion of the court; and as it involves no substantial right, is not renewable upon appeal. It does not belong to either of the classes of orders which, according to the Code, may be re-examined at the general term.
    (Before Moncrief, Garvin and McCunn, JJ.)
    Heard December, 17, 1864.
    This is an appeal from an order made by Chief Justice Eobertson, enlarging the time for the plaintiff to make and file a certain stipulation, for five days.

      A. R. Dyett, for the appellant, (defendant.)

      D. M. Porter, for the respondent, (plaintiff.)
   By the Court, Monell, J.

On the 9th November, 1863, •after a trial of the issues in this action, a direction and adjudication was made by a justice of this court, sitting at a special term, without a jury, which, among other things, allowed the plaintiff five days, after notice thereof, to sign and file a certain stipulation, and in case the said plaintiff shall decline or refuse to sign and file such stipulation,” it was adjudged that the complaint be dismissed, &c. It seems a judgment record in the action was filed the same day. This was irregular. There was not, on the 9 th November, 1863, a final determination of the rights of the parties to the action, from which, on that day, an appeal could have been taken to the general term. The adjudication was not final until the expiration of five days after it was pronounced. In analogy to the old common law practice, the direction was a judgment nisi, and to the equity practice which would call the adjudication a decretal order, not a final decree. (1 Hoff. Ch. Pr. 560.)

After the expiration of the time given to the plaintiff, and non-compliance with the direction, I am of opinion no further action, on the part of the court, or of any judge thereof, was necessary. The defendant became entitled, by the very terms of the order, to judgment of dismissal. The justice who tried the issues either had made such a direction on the 9 th November, 1863, as finally to pass upon them, or he had not: if the former, there remained nothing for such justice to do; if the latter, then the proceedings had before him were a mistrial, and neither he nor any other justice could supply the defect; there could not necessarily be a new trial. The application to set aside or open the judgment, upon the allegation that two judgments had been given, as a ground of irregularity, must have been denied, because the justice, before whom the motion was made, and under which the order of 5th August, 1864, was entered, treated the application as if a stay of proceedings had been ordered, and finding proper occasion therefor, “ permitted” judgment to be entered. There was no adjudication of the issues in the action by the learned justice who disposed of the motion, under his order of August 5, 1864. Whether or not, upon the merits, some relief might, and should, have been given, depends upon the inquiry, first, whether the court had the power, and second, if it had, whether the case as presented by the plaintiff warranted its exercise, and what was done was fairly within its limits. The Court of Appeals, in The New York Ice Co. v. The North Western Ins. Co., (23 N. Y. Rep. 357,) said: It is suggested in the opposing papers that the judgment had become perfect and final before the motion was made,” and did not see the force of the suggestion. The judgment was perfect as soon as pronounced and entered. It would become final when the time for appealing should expire; * * It thought the power of the court (below) to modify or amend the judgment, could not he questioned. Even, if the time for appealing had expired, that court was by no means prepared to admit that this potver would be lost. At all events, so long as the judgment was subject to an appeal, it was subject to such corrections and modifications as the court, which pronounced it, might, in its discretion, think proper to make. The administration of justice would be extremely imperfect if this power did not exist.

If the power did exist, it is difficult to understand why its exercise should be questioned, the court having passed upon the matters of fact presented, and adjudicated upon their sufficiency, and it appearing that relief had been given to a party whose fault or omission was excusable, and intended to do justice to both parties as directed in the adjudication upon the trial. As the time within which the plaintiff could make and file his application had expired, “justice plainly required,” under the circumstances detailed in the papers, that he should be put in the same, or a similar, situation as at the trial, and as it was not done within the time limited at the time of the trial, “ it was just that the omission should be supplied after-wards.” Again, following the decision just freely quoted, we are of opinion that the general term had no right to entertain the appeal at all from the order made at special term. That order, in its substance and nature, simply allowed “ an opportunity for the plaintiff to sign and file his stipulation, which he had omitted to do in furtherance of the justice of the case.” “ Such orders rest in the discretion of the court which makes them, and they involve no substantial rights, and they are not reviewable upon appeal.^ They do not belong to either class of orders which, according5 to the Code, may be re-examined at the general term.” (§ 349 Code.) The learned judge, at the trial, could, with the same justice and propriety, have ..given three hundred, instead of five days, within which the stipulation should be signed and filed, and hence there was no substantial right of the defendant overlooked, or injustice done to him, when the time actually allowed having expired, and in the opinion of the court sufficient excuse was given for the omission to comply within such time, a further day was allowed within which justice should be extended to the parties in the action.

The order must be affirmed.


text:
    Laura E. Bolton and Angelina T. Arthur, plaintiffs, vs. Elizabeth M. Taylor et al. defendants.
    A plaintiff who does not reside in the city of New York, may, though a resident of the state, be required, on commencing a suit in the Superior Court of the city of NeV? York, to file security for costs.
    (Before Robertson, Ch. J., and Monell and McCunn, JJ.)
    Heard November 19,1864;
    decided December 31, 1864.
    Mrs. Arthur, one of the plaintiffs, resides in the state of Iowa; her co-plaintiff, Mrs. Bolton, resides at Staten Island, in the county of Richmond, FT. T. On the 27th of September, 1864, an order was granted in this action on the application of the defendants, requiring the plaintiffs to file security for costs. From that order the plaintiffs appealed.

      Lord & Bolton, for the appellants.

      Matthews & Swan, for the respondents.
   By the Court, Monell, J.

The language of the statute (2 R. S. 620, § 1,) is that “when a suit shall be commenced in any court, for a plaintiff not residing within the jurisdiction of such court, or for several plaintiffs who are all non-residents, the defendants may require the plaintiffs to give security for costs.”

The question arising upon this appeal must be regarded as settled, in this court, by a long line of decisions, (Gardner v. Kelly, 2 Sandf. 632; Blossom v. Adams, 7 N. Y. Leg. Obs. 314; Hicks v. Payson, 7 Abb. Pr. 326; Phenix v. Townshend, 2 Code R. 2,) unless the acts of 1840, 1844 and 1847, in respect to issuing executions into other counties, and the collection of interlocutory costs, can be regarded as enlarging the jurisdiction of the court by implication.

.. All the cases cited hold that the jurisdiction is territorially limited to the city of New York, and a plaintiff who does not reside therein may be required to give the security. The acts above referred to were not, however, noticed in any of the cases. The acts of 1840 and 1844, (Laws of 1840, p. 334, ch. 386, § 29; Id. 1844, p. 91, ch. 104, §§ 6, 7,) provide for the docketing of the judgments of this court in any county in the state, and for the issuing of executions thereon to the sheriff of such county, giving to the court the same jurisdiction and power over such dockets as is possessed by the Supreme Court. The act of 1847, (Laws of 1847, p. 491, ch. 390, §§ 2, 3,) relates to the payment and collection of interlocutory costs. The object of the statutes of 1840 and 1844 was to provide a more speedy and inexpensive mode of collecting judgments recovered in the local courts than by actions upon such judgments.

There is nothing in the language of the statute which indicates an intention to alter or enlarge the jurisdiction of such courts, either over the persons or the parties, or the subject matter of the litigation. This court, like the common pleas and county courts, has no original jurisdiction. Its powers are conferred upon it by statute, and it can exercise no other than such as are expressly given, or are necessarily incident to their performance. The act organizing the court, (Laws of 1828, p. 141, ch. 137,) prohibited the sending of any process into any other county, except the process of subpoena, and attachment for disobedience thereof. Although the jurisdiction. of the court, over the persons of defendants, has been enlarged in specified cases, by subsequent legislation, I am not aware of any statute which has removed the original prohibition against sending its process into other counties, except the acts before referred to, concerning executions. And in respect to executions to collect interlocutory costs, it will be seen that there is no provision, applicable to this court, for sending them, into another county. This court in 1843, in Kane v. Van Sandt, (1 N. Y. Leg. Obs. 266,) denied an application for an order directing the sheriff of Queens county to bring into this court moneys collected under an execution issued out of the court upon a judgment docketed in that county. It was denied, under a doubt of the power of the court to enforce obedience to the order by attachment. The effect of the act of 1840, as conferring the power incidentally, was considered, and the power very much doubted. The court say: “ The omission of the legislature to provide expressly, in the recent act, for the enforcement, by attachment,.of an execution issuing out of a county court, to the sheriff of another county, may have been intentionally made, in view of the serious inconvenience which would result from the exercise of such a power by the numerous county courts in the state.”

The case of Frees v. Ford, (6 N. Y. Rep. 176,) was decided in 1852, where it is held that a county court is not a court of general jurisdiction ; and that to all such courts the rule universally applies, that their jurisdiction must appear on the record—such courts having, by statute, jurisdiction of actions where all the defendants reside in the county.

Courts therefore of limited jurisdiction can exercise no power not conferred upon them by statute, nor can they send their process, when not expressly authorized to send it. And it cannot, I think, be said, that because provision is made for enforcing their judgments in other counties, their jurisdiction is thereby enlarged by implication, as it clearly is not by any express words.

But if I had any doubt on the question, I should, without approving of the reasoning of Justice Bosworth, in Hicks v. Payson, (7 Abb. 326,) agree with him that it is our duty to conform to the decisions already made by this court.

The order appealed from should be affirmed, with $10 costs.


author: By the Court, Monell, J. Robertson, Ch. J. (dissenting.)

text:
    George, the Count Joannes, plaintiff and respondent, vs. Horace H. Day el al. defendants and appellants.
    An appeal does not lie from an order granting a motion for judgment on account of the frivolousness of a demurrer to the complaint, under section 247 of the Code.- The defendant can only appeal after judgment is entered for damages and costs, when the decision made at.the special term may he reviewed upon that appeal. Robebtson, Ch. J. dissented.
    (Before Robertson, Ch. J. and Monell, and Garvin, JJ.)
    Heard October 15, 1864;
    decided December 31, 1864.
    Appeal from an order made at a special term.

      George D. Curtis, for the defeüdant, appellant.

      Joannes, plaintiff, respondent, in person.
   By the Court, Monell, J.

This is an appeal from an order¡ The defendant demurred to the complaint. The plaintiff moved for judgment on account of the frivolousness of the demurrer, under section 247 of the Code; The motion was granted, and the defendant appealed.

The order does not overrule a demurrer, and an appeal cannot, therefore, be taken, under subdivision 2, of section 349, of the Code. Uor does it-come within subdivision 4, of the same section. In this class of cases “judgment ” is ordered against the demurring party, and judgment must accordingly he entered, the demurrer and order for judgment forming a part of the judgment roll.

The “ order ” appealed from is not a judgment. The plaintiff’s damages must he assessed, and costs adjusted, when a judgment in form, as upon a failure to answer, is entered by the clerk. This has not been done in the case before us ; and the appeal is therefore without authority. (Harris v. Hammon, 18 How. Pr. 123. Briggs v. Bergen, 23 N. Y. Rep. 162.)

We have not looked into the merits of the demurrer, as we cannot entertain the appeal from the order. When judgment is entered, the defendant can appeal and have the decision at' special term reviewed upon that appeal.

The appeal must be dismissed, with $10 costs.

Robertson, Ch. J. (dissenting.)

The first question tó be disposed of on this appeal, is whether the adjudication appealed from may be reviewed as an order and is therefore appealable under section 349 of the Code before judgment is completed, or only under section 329, when it accompanies the judgment upon an appeal therefrom. In any event it is reviewable on appeal in the same mode. (Briggs v. Bergen, 23 N. Y. Rep. 163.) It was obtained on a motion under the 247th section of the Code, and not on the trial of an issue of law upon a hearing. There is no good reason why such a decision upon a mere motion should not be as immediately appealable as if it were made upon the argument of the demurrer as an issue of law. Indeed, in two cases, (Witherhead v. Allen, 28 Barb. 661; Lee v. Ainslie, 1 Hilt. 277,) such a decision is held to be a determination of an issue of law. As, however, a motion is defined to be “ an application for an orderf (Oode, § 401, sub. 1,) the former would seem to be more properly an order, and as such appealable, because it overruled a demurrer. (Code, § 349, subd. 2.) The possibility of mistake by the court; the extent of the prejudice to the party against whom the decision is made ; and the materiality of an early determination in the action of the issues, if any, to be tried, is as great in one case as in the other.

Until 1852, no appeal lay from an adjudication overruling or sustaining a demurrer. The party prejudiced by it was obliged to wait until a formal judgment was entered, after an assessment of damages under sections 269 and 246 of the Code. In that year an amendment of the 349th section was passed, allowing an appeal to be taken from an order “ sustaining or overruling a demurrer.” Ho change was then made in regard to the phraseology of any former provision of the Code, respecting a decision upon the argument of a demurrer as an issue of law. Such decisions were neither declared to be an order, nor allowed to be made upon a motion. There was, therefore, more reason for believing such amendment was intended to. apply to decisions upon a motion for judgment summarily on the ground of the frivolousness of a pleading than upon the tenability of a demurrer on argument, under sections 252 and 253.

Numerous decisions have held that any decision on a demurrer was appealable from as an order, before judgment was completed, (Nolton v. The Western R. R. Co., 10 How. 97; Nellis v. DeForest, 6 id. 413; Reynolds v. Freeman, 4 Sandf. 702; Phipps v. Van Cott, 15 How. 110. Ives v. Miller, 19 Barb. 197; Witherhead v. Allen, 28 Barb. 661; Lee v. Ainslie, 1 Hilt. 277,) whether such demurrer extended to the whole complaint, or leave was given to amend or not. Others hold the same principle, with, however, the qualification that the demurrer must be to part of the complaint only, or leave to amend must be reserved, in order to allow an appeal from such decision as an order. (Bowman v. Central R. R. Co., 10 How. 210. Cook v. Pomeroy, Id. 103. Ford v. Turner, 5 Duer, 684.) In Martin v. Kanouse, (2 Abb. 390,) in which the appeal was from a decision pronouncing an answer frivolous as an order, although it also “ declared an appropriate judgment on the whole case,” and judgment had been entered on it, the general term of the Supreme Court of this district refused to dismiss the appeal on motion, notwithstanding a strong impression expressed on its part that the appeal should have been from the judgment, because the original decision rendered judgment on the whole case. The whole weight and current of authority in such a case as the present is in favor of the appealability of such a decision as that be-, fore us as an order.

In the case of Briggs v. Bergen, (ubi supra,) before cited, it was held that a pleading ordered to be struck out under the 152d section of the Code, could form no part of the record returned on an appeal to the Court of Appeals from the decision of a general term, and that such appeal would not Jie from such order, because it was before judgment, and did not determine the action under the second subdivision of section 11 of the Code. And a distinction was pointed out in that respect between such case and a decision upon the frivolousness of a demurrer, in which such decision would form part of the record on an appeal. But it did not attempt to pass upon the question whether an adjudication such as the present could be appealed from as an order. I cannot, therefore, look upon such adjudication as any thing but an order or mandate, and not a judgment, until the time for amendment under it passed, or the damages were assessed against the defendant; and therefore, as such order, appealable. Of course, this view does not affect the question whether, if such order be affirmed on the present appeal, such affirmance is a subject of appeal until the judgment is completed.

It is necessary, therefore, to investigate the sufficiency of the demurrer. [After some remarks upon that subject, which the views of the majority of the court render it unnecessary to insert here, the chief justice concluded.]

The order made at special term should be reversed, with costs, with liberty to the plaintiff to amend upon their payment.

Appeal dismissed.


author: Robertson, Ch. J. Monell, J. Moncrief, J.

text:
    John Denham and others, ex’rs, &c. appellants, vs. Benjamin M. Stilwell, respondent.
    Although a complaint, in addition to alleging a sale hy the plaintiffs, by virtue of a power in a will, of several lots of land to the defendant, at public auction, his payment of ten per cent of the purchase money, and failure to pay the residue, a tender of a conveyance to him and demand of such residue; also alleged that the defendant having refused to pay such residue, on the ground of a defect in the title, the question of its validity was submitted to an arbitrator, the defendant agreeing to pay the unpaid residue of the purchase money, with interest, and the arbitrator’s fees, in case he should decide such title to be good, and the plaintiffs agreeing to repay the defendant the sum paid by him, with interest, and such arbitrator’s fees, in case he should decide the title not to be legal, and that such arbitrator decided that the title was good; SeU, on demurrer, that the complaint stated but one cause of action, which was a good one, upon the award.
    (Before Robertson, Ch. J. and Moncrief and Monell, JJ.)
    Heard January 16, 1864;
    decided December 30, 1864.
    Appeal from an order made at a special term, allowing a demurrer to the complaint.
    The complaint alleged,

      First. That in or about the month of March, 1861, Thomas Gumming departed this life, leaving his last will and testament, bearing date the tenth day of January, 1861, whereby he authorized and empowered his executors, therein named, among other things, to sell and dispose of the real estate of which he should die seised ; that the plaintiffs were appointed by said will executors thereof; that on or about the first day of April,
    1861, the said will was duly proven before the surrogate of the city and county of Hew York, (that being the county where the said Thomas Gumming resided at the time of his death,) as a will of real and personal property; and that on the same day letters testamentary thereon were duly issued by said surrogate to the plaintiffs, who duly qualified as such executors, and took upon themselves the execution thereof.
    That the said Thomas Gumming, at the time of his death, was lawfully seised and possessed, in fee simple, of the equal undivided one half part of certain lots of land situate on the northerly side of 114th and 116th streets, in the Í2th ward of the city of Hew York, and which were bounded as follows: [Describing them.] That, under and by virtue of the power and authority given to the plaintiffs in and by said last will and testament, they, on or about the thirtieth day of October, 1862, by E. H. Ludlow, auctioneer, proceeded to sell and dispose of the said lots of land and premises at public auction, at the . Merchants’ Exchange salesroom, Ho. Ill Broadway, in the city of Hew York. That at such sale the defendant became the purchaser of the said undivided half of said lots of land and premises, for .the price or sum of twenty-three hundred and thirty-five dollars. That, by the terms and conditions of such sale, ten per cent of the purchase, money was to be paid on the day of sale, and the balance thereof on the twentieth day of November, 1862, when the deed for said lots of land and premises was to be delivered. That the defendant paid on said thirtieth day of October, 1862, ten per cent of the purchase money of said lots, as required by said terms of sale; but that on the twentieth day of November, 1862, he was not ready to complete said purchase. That on the twenty-eighth day of April, 1863, the plaintiffs tendered to the defendant a conveyance of the undivided half of said lots of land and premises, duly executed by them as such executors as aforesaid ; also, a quit-claim or release executed by the widow and the children and devisees of said Thomas Gumming, deceased, and demanded from him payment of the balance of said purchase money, to wit, the sum of two thousand one hundred and one dollars and fifty cents; but that the said defendant wholly refused to pay the same or any part thereof.

      Second. And the plaintiffs further showed, that the said defendant having refused to pay the balance of the purchase money for said lots, as thereinbefore mentioned, upon the ground that the title of said Thomas Gumming to said lots of land was defective, on or about the first day of May, 1863, the defendant and the plaintiffs made and entered into an agreement in writing, whereby they agreed that they would submit the question as to the validity of the title to said lots to William Mitchell, Esq. of the city of New York, counsellor at law, and would abide by his decision. And in case he should decide that the title to said lots was good and valid, that the said defendant would immediately pay the balance of said purchase money, with interest thereon, from May 1,1863, and would also pay the fee of said William Mitchell,' Esq. And in case the said Mitchell should decide that said title was not good and valid, that the plaintiffs should repay to said defendant the money already paid by him, with interest thereon from May 1, 1863, and also the fee of said Mitchell. That, in pursuance of said agreement, the plaintiffs and defendant did submit the question as to the validity of the title to said lots to said William Mitchell. And that, on or about the thirteenth day of J une, 1863, the said William Mitchell made and rendered his decision, in writing, that the title to said lots was good and valid; that the objections thereto were not good; and that the defendant should be - compelled to complete his purchase. That the plaintiffs paid to said William Mitchell the sum of fifty dollars, that being the amount of his fee ; but that the defendant, notwithstanding such decision, still refuses to pay the said balance of the purchase money, or the said sum of fifty dollars, so paid to the said William Mitchell, for his fee as aforesaid.
    : Wherefore, the plaintiffs demanded judgment against the defendant for the sum of two thousand one hundred and fifty-one dollars and fifty cents, with interest on the sum of $2101.50. from May 1, 1863, and on the sum of $50, from June 13, 1863.
    The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute á cause of action.
    ■ The court, at special term, allowed the demurrer; and the plaintiffs appealed.

      W. McDermott, for the plaintiffs, (appellants.)

      J. L. Burrill, for the defendant, (respondent.)
   Robertson, Ch. J.

If I were satisfied that the complaintj in this case, by any fair legal construction of its language, .contained two alleged causes of action,- as numbered first and second, separately stated and distinguished by appropriate words, (Benedict v. Seymour, 6 How. Pr. R. 298,) I should also be satisfied that the statement of each was demurrable; one, because a party cannot recover in an action at law for the price, of land, without tendering a conveyance for it on the day fixed by the contract, and the other as wholly unintelligible, without some reference to the former, which it does not make. But I am .convinced, on full reflection, that there is but one cause of action stated, or intended so to be, and that occupies the whole complaint.

Numbering causes of action, besides stating them separately, is not required by the Code, but only by a rule. (19.) Consequently, an omission is a mere irregularity, the remedy for which is to return the pleading, (Corbin v. George, 2 Abb. 466,) or move to set it aside for irregularity, (Blanchard v. Strait, 8 How. Pr. R. 85,) or at most to strike out all allegations not pertaining to a single cause of action. (Benedict v. Seymour, ubi sup.) When inserted, they do not necessarily designate separate causes of action.

The Code requires the construction of pleadings,' to determine their effect to be liberal, in order to accomplish substantial justice. (Code, § 159.) A construction of a pleading, which should so divide it as to make one part an insufficient statement of a cause of action, and the other unintelligible, when, by uniting them, a good cause of action would be made out, would not comply with such rule. The demurrer, in this case, objects to the whole complaint, that it does not contain facts sufficient to constitute a cause of action. It would seem to be illogical to sustain it, if the complaint did contain such facts. How far a demurrer can be taken in such form, even if two counts, in a declaration avowedly separate, contain, together, facts enough to constitute a cause of action, has not, so far as I have been able to ascertain, been adjudicated. All other causes of demurrer mentioned in section 144 of the Code, except the third, of course apply to the whole complaint as an entirety. The complaint is required to contain a plain and concise statement of facts constituting a cause of action, (§ 142.) But the plaintiff is authorized to unite several causes of action in the same complaint, which are required to be separately stated, (§ 167.) Surely, the demurrer ought to be to the statement of each separate cause of action as insufficient. The rule that there can be no demurrer to a demurrer, is abrogated when the causes of demurrer are forbidden by statute.

There is no technical mode of distinguishing and separating causes of action. (Hall v. McKechnie, 22 Barb. 244.) The proper mode of doing that has been held to be, to commence the statement of each cause of action with words adapted to separate and distinguish it from others. (Benedict v. Seymour, ubi sup.) A mere number (second) and the words “ and the plaintiff further shows,” as in this case, are not so distinctive. The latter was the common commencement of every allegation in a bill in equity. Such words cannot be construed to mean any thing more than the commencement of an additional allegation, particularly where the effect of a more extended construction would be to destroy a complaint containing one good cause of action by dividing it into two parts, neither of which contained enough facts to constitute a good cause of action. If each of such parts had in this case contained a statement of a good cause of action, a motion to strike out one for not being separately stated would be more sustainable than a demurrer to each as being separately stated. The whole idea of there being two causes of action stated separately rests safely on the insertion of the word “ second,” which forms no part of the allegations. If that were struck out, there would be no room for an argument.

Of course, in this view, the allegations of a tender, demand and refusal are superfluous. The contract to buy the premises in question formed part of the consideration of the new conditional agreement to pay the purchase money, if and when the referee should decide the title to be good. The defendant's liability arose out of his promise, not the award. It was not an arbitration, strictly, but the reference of a collateral fact, whose determination created of itself no new obligation. (Elmendorf v. Harris, 5 Wend. 516. Duffield v. Whitlock, 26 id. 55.) The determination by such referee that the defendant should be compelled to complete his purchase exceeded his authority, but did not make the decision as to the title void, because not. necessarily connected with or affecting it. (Nichols v. The Rensselaer Mut. Ins. Co., 22 Wend. 125.) No demand was therefore necessary on the making of the decision, which might have been necessary in an award. (Same case.) The facts so set forth, in my view, constitute a good cause of action.

The order appealed from should be reversed, and judgment rendered for the plaintiff, with liberty to the defendant on paying the costs at special term, to put in answer in twenty days.

Monell, J.

I concur in the opinion that there is but one cause of action set out in the complaint. The plaintiffs claim to recover on the “ promise ” of the defendant to pay the balance of the purchase money, and the referee’s fee, in case the referee should decide that the title to the lots was good and valid. All that part of the complaint numbered “First,” and which may be denominated the “inducement” or conveyance to the action, was necessary to render the statement of the plaintiffs’ right to recover upon the promise clear and intelligible. Under the forms of pleading before the Code, it was usual, in a variety of actions, to state the inducement or the matter from which the cause of action originated. Thus in assumpsit for a wager, it was usual to state the matter from which the wager originated, before setting forth the wager and non-payment of it. In debt on a bail bond, it was necessary to state the delivery of the writ to the sheriff and the arrest, before stating the bond and breach. So in an action upon an award, the declaration usually stated the differences between the parties, before stating the submission. In the case before us, the statement of the sale of the. lots, the purchase by the defendant, the tender of the deed, and the refusal of the defendants to accept it, were necessary to make the promise clear and to furnish it with a sufficient consideration to support it. Upon all these facts taken together, there is enough, in my opinion, to constitute a cause of action to recover upon the defendant’s express promise to pay.

Ho subsequent tender of a deed was necessary. The refusal of the defendant to pay after the decision of the referee that the' title was good, made the action complete on the promise, and as there is nothing, in the agreement of submission to the referee, that a deed should be delivered on payment of the purchase money, nor any such condition annexed to the promise, the plaintiffs are not obliged to allege any tender, in their complaint, The defendant must be left, therefore, to claim, by way of defense, that upon payment of the balance of the purchase money, the plaintiff's shall execute and deliver to him a deed of the lots, or to set up by answer any other defense he may have.

I concur in reversing the order at special term, upon the terms mentioned in my brother Robertson’s opinion.

Moncrief, J.

"Viewing the complaint as an entirety, and void as containing two separate and distinct causes of action, it seems to me there can be no question that the demurrer should have been overruled.

The demurrer alleges that the complaint does not state facts sufficient to constitute a cause of action, and thus concedes that it is to be considered as the statement of a single cause of action. (Gode, § 145.)

This view, however, does not accord with the points of the counsel for either of the parties, and may probably be said to have first occurred to the chief justice, presiding upon the argument of the appeal, On behalf of the defendant it was insisted that the action was for relief and not as the summons and the prayer of the complaint would indicate, an action upon a contract; and the counsel for the plaintiffs argued, assuming that the complaint contained two distinct causes of " action, and that the “part marked ‘second’ states a complete cause of action on contract.”

The statement may be considered as a narrative of the transactions connected with the subject of action, (Gode, § 167,) and the complaint therefore good, upon demurrer.