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

text:
    Francis Colton, plaintiff, vs. Edward S. Jones, defendant.
    1. The introduction in a complaint, of an averment of a forcible entry upon the plaintiff’s premises, in the same statement with an allegation of an unlawful carrying away of property of his, under the present forms of proceeding in an action, does not prevent a recovery for the latter; although there be no evidence offered of such forcible entry.
    2. Although an unlawful taking was never necessary to sustain an action for the conversion of goods, such as trover, but an unlawful detention was sufficient, and such conversion may be part of a series of successive wrongful acts of the defendant, beginning with a forcible entry on tho plaintiff’s premises; it is not only separable from the others as a separate cause of action, but may be joined with one for such forcible entry, in the same action, without being necessarily merged in it.
    3. Trespass de bonis asportatis could always as a separate cause of action he joined with trespass guare clausmn fregit, and if the absence of force as a necessary ingredient in an action of trover prevented it from being joined with the latrer, the objection was entirely technical.
    3. Such objection is overruled definitively in Xovett v. Fell, (op. of VerplaneTc, sen. 22 Vend. 369;) if it were not, it would be done away with by the 167th section of the Code of Procedure, which, among the classes of causes of action enumerated therein as capable of being joined, specifies those for “injuries with or without force.” Those words do not subdivide the class, but embrace all cases of torts, whether forcible or not.
    4. The remedy for an omission to state separately, in a complaint, causes of action which may be joined, is not by demurrer, motion to strike out, or compel the plaintiff to elect between them; much less by an objection on the trial, but by a motion to make the complaint definite and certain, so that the defendant may know whether he has one or two causes of action against which to contend.
    (Before Robertson, Ch. J., and Jones and McCunn, JJ.)
    Heard June 9, 1868;
    decided July —, 1868.
    This was an action brought to recover damages for a "forcible entry on the plaintiffs premises and carrying away his goods.
    It appeared on the trial, that the plaintiff hired the premises in question, on the 24th of September, 1866, from one Townsend, whose tenant he was, Townsend hired the room from the defendant’s mother, and was her tenant. His lease expired on the first day of December, 1866, when Townsend quit and surrendered the keys and possession to Mrs. Jones. The plaintiff testified that he hired from Townsend up to May 1st, which the latter denied, and testified that the plaintiff knew of the terms of his hiring from the defendant’s mother, and took the room from him, precisely as he did from her. The plaintiff, however, did not claim that he hired until May 1st, from either Mrs. Jones, or the defendant, or that either of them assented to Townsend’s letting the room to him to that date, but that after Townsend left, in answer to a suggestion of the plaintiff, that Townsend’s leaving would not prevent his remaining until May 1st, the defendant said, “ if they got another occupant of the room, who was willing, it would be agreeable to him; but he would like to rent the room,” to which the plaintiff assented. The defendant rented the room subsequently, to another tenant. After the goods were removed from the room by the defendant, (i. e. after the alleged trespass for which the action was brought was committed,) the plaintiff demanded the goods from the defendant, upon which there was a conflict of evidence, as to whether the defendant absolutely refused to give them up, or refused to do so unless the storage on them was paid. The judge ruled and charged the jury that the only question was that of damages. The defendant’s counsel excepted to this ruling, and requested the court to charge the jury:

      Mrst. That under the agreement between Jones and Townsend, (as testified to by Townsend,) the latter ought to leave at the end of any month; and if the jury should believe that Townsend notified the plaintiff of that agreement, when he underlet to him, and the former surrendered the premises, the rights of the plaintiff as his undertenant also ceased, and he thereafter had no right to the possession of the premises as undertenant of Townsend. The judge refused so to charge. The defendant excepted.

      Second. That if the jury believed that Townsend surrendered the premises to his landlord, and the plaintiff was notified thereof, and thereupon the agreement testified to by the defendant, as to the storage and removal of the goods, was made, the defendant after letting the premises to another tenant, and after notice to the plaintiff to remove the goods, had a right himself to remove the goods without liability for damage unless he injured the goods in removal, and the defendant was not, nor was Mrs. Jones obliged to take any legal proceedings-to get possession. The court declined to so charge, and refused to submit any question to the jury, except that of damages. The defendant’s counsel took exception.

      Third. That if the jury believed the plaintiff promised to pay storage, as testified to by the defendant, the latter had a right to detain the goods until the storage was paid, provided they also believed • that when the demand was made on the defendant, he stated, as testified by him, that the plaintiff could not have the goods until the storage was paid. ■ The court refused so to charge, and the defendant’s counsel took exception.

      Fourth. That if the jury believed that subsequently the plaintiff agreed to pay $8 a month storage for the goods, as - testified by the defendant, the defendant’s mother, for whom he was acting, had a lien for that storage on the goods in question, and had a right to detain them until the storage was paid. Same ruling and exception.

      Fifth. That if the defendant rightfully entered and removed the plaintiff’s goods from the premises in question, this action, in the form in which it was brought, could not be maintained even if the defendant subsequently wrongfully refused to let the plaintiff have his goods. The court refused so to charge, and the defendant’s couneel excepted. Other facts appear in the opinion of the court. The judge charged the jury that the only question for them to consider was the amount of damages which the plaintiff was entitled to recover from the defendant. In determining that, they should be governed by the evidence before them, and not by any judgment of their own, as to the value of the goods. At the same time they had a right to look at all the testimony as affecting the credibility of the witnesses; and if satisfied that the evidence furnished on the part of the plaintiff was not credible, it was their duty to disregard it. The only evidence given by the defense as'to the value was that of Mr. Brown, who-did not seem to be acquainted with this specific kind of property, but had dealt in cots of a similar kind. They should take his testimony into consideration, and at the same time scrutinize the evidence of Mr. Colton, for the purpose of ascertaining whether his testimony was to be credited; and then render a verdict for such an amount as they should find to be the value of the property, at the time a demand was made by the plaintiff for its delivery.
    The jury found a verdict for the plaintiff for $1153.
    The court ordered all the exceptions to be heard in the first instance at the general term,' and that judgment be in the meantime suspended.

      Mr. Brinsmade, for the plaintiff.
    I. The defendant was in no way justified in entering the plaintiff’s premises and throwing out his goods, for non-payment of rent or holding over.
    1. The defendant was a stranger, and himself testifies that he had no authority from the landlord to take this extraordinary mode of dispossessing a tenant. Bo rent had been demanded, and it did not appear when the same became due, or that possession had been demanded.

      2. Even if the landlord had a.lien upon his tenant’s goods for the rent of the premises occupied, the removal of the goods destroyed it. (Reed v. Darrow, 2 Edw. Ch. 412.)
    3. Even if the defendant had the right to throw out the plaintiff’s goods into the street, or into the public hall of the b uilding, his subsequent taking of the goods upon his own premises, and his refusal to deliver possession, constitute a clear conversion, for which there can be no legal justification. He had no lien upon the goods for storage and labor, as claimed by him; for to constitute such a lien, there must be either an express agreement'of the parties, or it must be implied from their mode of dealing. (Trust v. Pirsson, 1 Hilt. 292.) (a.) A warehouseman has.no lien upon goods in his possession, unless deposited with him, or brought to him, in the regular course of his business. (Rex v. Humphery, McClell. & Y. 173. Naylor v. Mangles, 1 Esp. 109.) (b.) A finder of a chattel has no lien upon it, for any expenses he may be at, in taking care of it for the owner. (Nicholson v. Chapman, 2 H. Black. 254.) Nor an agistor upon cattle which he dispastures. (Jackson v. Cummins, 5 Mees. & W. 342.) Nor a stable keeper for the keep of a horse. (Wallace v. Woodgate, 1 C. & P. 575.)
    H. It is not claimed that there was any common law lien, but that there was an agreement, as to storage, between the parties. The court held that the conversation between the parties, as testified to by the defendant himself, did not amount to an agreement as to storage, so as to entitle the defendant to a lien therefor. If this conversation did not constitute an agreement, then the defendant is deprived of every justification for his refusal to deliver the goods on demand, and judgment must be rendered for the plaintiff on the verdict.

      A. R. Dyett, for the defendant.
    I. The court erred in refusing to charge the first request. The plaintiff’s tenure, as between him and the defendant, was precisely that of Townsend. Although the judge, in his charge, seemed to confine the question of damages to the value of the goods, he improperly refused to instruct the jury, as he should have done, that the plaintiff could not recover damages for trespass in removing them, and that the defendant’s justification in his answer was proved. The defendant had a right, after the expiration of the tenancy, to remove the plaintiff’s goods, without any legal proceedings, and the plaintiff could recover no damages therefor. (Hyatt v. Wood, 4 John. 150. Ives v. Ives, 13 id. 235. Gault v. Jenkins, 12 Wend. 488. Estes v. Kelsey, 8 id. 555. Jackson v. Morse, 16 John. 197, at p. 200.)
    II. The court erred in refusing to charge the second request. (Cases cited under last point.) That introduced the element of the agreement between the plaintiff and defendant, testified to by the defendant, and not denied by the plaintiff, unconnected with the question of lien for storage. Under that agreement, (if the tenancy had not already ended,) the defendant’s tenancy ended as soon as the room was rented to a newr tenant. (Niblo v. Post, 25 Wend. 284, 285. People v. Schackno, 48 Barb. 551.) The same remark applies to this as to the last request. The evidence as to the value of the goods was conflicting, and it is impossible to say that the jury gave no damages for the trespass in removing the goods.
    III. The judge erred in the ruling upon the second request, and in refusing to charge the third and fourth, requests. It was a question for the jury whether there was such an agreement. The defendant had sworn to it positively, and the plaintiff had not denied it. If that agreement was made, it was an agreement for storage, and gave the defendant’s mother a lien therefor. (Schmidt v. Blood, 9 Wend. 268.) The defendant, therefore, not only had the power, but it was his duty, as her agent, to refuse possession of the goods until the lien was discharged.
    IV. The judge erred in refusing to charge the 'fifth request. He, in effect, thereby decided that the plaintiff might recover for the conversion of the goods in question, subsequent to the removal of them, although the defendant was justified in such removal. This was erroneous. .
    1. The action was what, before the Code, was trespass quare clausum fregit. The complaint professed to state but one cause of action. The statement in it of the conversion of the goods, is incident simply to the principal trespass by unlawful entry upon the plaintiff’s premises, and removing the goods, and dependent upon that trespass, and connected with it, as a part of that cause of action, and covers only the conversion incident to the carrying away of the goods. It is not an independent cause of action. When the principal trespass is justified, the whole cause of action fails.
    2. The only issue before the jury was that principal trespass and its justification in the answer. That justification being proved, the defendant was entitled to a verdict. This was always the rule, and it was this rule alone which permitted, in a declaration in trespass, q. c. f. a statement of the conversion of personal property; for although trespass q. c. f. and trespass d. b. a. could be joined, yet a count in trespass could not be joined with a count m trover. (4 Blackf. 181, 287. 3 Term. R. 292. Cooper v. Bissell, 16 John. 146. Chitty’s Plead. tit. “ Joinder of Counts and precedents of declarations in trespass. 17 Pick. 236. 10 Georgia Rep. 384.) Mor can they now, (Code, § 167,) because, (a.) They require different places of trial, (§ 123, subd. 1, and § 125; (b.) do not' both belong to the same class; one is with force; the other is without force. ¡For one, trespass would be the proper remedy; for the other, trover; (c.) not separately stated; and this shows the pleader only intended one cause of action, and the form of the complaint deprived us of the right to demur, and of any objection to a want of separate statement. (d.) ¡Nor did they arise out of the same transaction. The cause of action for which this verdict was rendered, was distinct from that in the complaint. The latter was a trespass vi et armis, and complete when the goods were removed by the defendant into the hall of the building, ¡February 14, (the day stated in the complaint.) The former was a conversion without force, and the subject of a count in trover before the Code, and arose, as testified to by the plaintiff, after this removal, and four days subsequent thereto, ¡February 18, when the plaintiff demanded the possession of the goods, and had no existence until the demand and refusal. These causes of action were, therefore, essentially distinct.
    3. It was not a case of variance, but of failure of proof. (Code, § 171, 2 Comst. 500. Pettit v. King, Selden’s Notes, Nos. 5, 36. 3 E. D. Smith, 408. 1 Hilt. 45. 10 How. 321. 1 Kern. 368. 1 Abb. 237. 16 N. Y. Rep. 250. 39 Barb. 104. 21 How. 289. 5 Duer. 389. 3 Bosw. 250. 7 Abb. 193. 17 Barb. 274. 28 id. 441. 24 How. 237. 19 N. Y. Rep. 39. 33 Barb. 246. 30 id. 389. 4 Duer, 318. 6 Barb. 308, 309. 3 Bosw. 456.) Nor could the court amend the complaint, either at or after the trial; (18 How. 506; 10 Abb. 372; 2 Bosw. 248;) and the defect cannot now be amended, by “ conforming the pleading to the facts proved,” because the amendment would change “substantially the claim” of the plaintiff, within the proviso of section 173. (11 How. 170. Daguerre v. Orser, 3 Abb. 86.)
    V. A new trial should be granted ;.or, as this last point presents an insuperable objection to the plaintiff’s recovery, judgment should be rendered for the defendant.
   Robertson, Ch. J.

The learned judge, before whom the issues of fact in this action were tried, charged the jury, “ that the only question for them to consider was the amount of damages, and that they should “ render a verdict for *. * the value of the property, at the time a demand was made by the plaintiff for its delivery.” He thus confined them to giving damages for the trespass charged in the complaint, of taking away and converting the property therein mentioned, and withdrew from their consideration all other matters charged in the complaint.

The counsel for the defendant requested the judge to charge the jury, “that, if the defendant rightfully entered and removed the plaintiff’s goods from the premises,” the “ action in the form in which it ” was brought, could “not be maintained, even if the defendant subsequently wrongfully refused to let the plaintiff have his goods.” Which request was refused, and an exception taken to such refusal. Construing such request strictly, it would be answered by section 69 of the Code of Procedure, which provides that, after it took effect, there should be “but one form of action,” which should be “ denominated a civil action.” That provision destroyed that incubus upon the administration of substantial justice, called “the form of the action,” which was sustained by fine spun distinctions, and hemmed in suitors seeking to enforce or protect their rights, or redress wrongs done to them, with technicalities at every stage of their proceedings, and finally tripped them up, by a motion in arrest of judgment, even after a verdict in their favor. Assuming, however, that the objection was aimed at the complaint, and not at the action, the question is then presented,'whether the. plaintiff was, under the present mode of proceedings, to be prevented from recovering tbe value of his property, unlawfully carried away, because, although he established the fact, he had inserted the allegation that the defendant carried it away and converted it, in the .same statement with allegations of a forcible entry on the plaintiff’s premises, constituting a separate cause of action, which he could not prove.

It is assumed in the argument, against the plaintiffs’ right so to recover, that .the allegation of the taking away and converting the plaintiffs’ property, is what formerly would have been considered a statement of a cause of action in trover, as it was termed, a species of the form of action called case, applicable only to injuries without force. I think this is a mistake. In the old action- of trover, the subject of dispute was not the mere right of possession; it embraced the question of ownership also ; so that the defendant could set up title in a stranger, as a defense, (Schermerhorn v. Van Volkenburgh, 11 John. 529,) for in it the plaintiff was obliged to admit in his declaration, that the defendant’s first possession was lawful, by being required to allege that he accidentally found the goods which he after-wards converted.' But in an action of trespass for unlawfully taking and carrying away goods, title in a third person only constituted a defense, when authority from him to the defendant was coupled with it. (Aikin v. Buck, 1 Wend. 469. Demick v. Chapman, 11 John. 132. Cook v. Howard, 13 id. 276.) So that the technical objection is not tenable, that formerly an allegation of taking and carrying away goods contained in a declaration in which a trespass quare clausum fregit was set forth, was only available to enhance the damages for such main cause of action and could not be introduced therein by way of a separate cause of action as a trespass de bonis asportatis, so as to have a separate recovery upon it if the forcible entry could not be proved. Both were trespasses, and could therefore always have been joined in the same action, and a recovery had for either alone. Perhaps where the mere conversion of the goods alone, without an unlawful taking, was set forth, the question of aggravating the damages of a forcible entry would be alone involved, but I do not find any precedents of such a form of pleading, or any decisions upon them. In the case of Cooper v. Bissell, (16 John. 146,) there was a separate count in trover, and the court held that its joinder with one in trespass was fatal, even on error, at the same time expressing its regret that the rule was so. This doctrine was subsequently overturned in the case of Lovett v. Pell, (22 Wend. 369, opinion of Verplanck, sen. 374.) Formerly, therefore, if was at most a mere question of misjoinder of actions and not of any such subordination of the injury caused by carrying away the goods to that caused by breaking into the place of their deposit, as that the former must share the fate of the latter in the same suit, whatever it was. Such technical obj ections to the misj oinder of actions are mostly done away with by the Code of Procedure, which (§ 167) enumerates seven classes of causes of action that may be joined. The- only restrictions are that they affect all the parties to the action, and do not require separate places of trial; and are, of course, to be separately stated. One of those classes (the third) is, “ Injuries, with or without force to person and property, or either.” The words, “ with or without force,” in the alternative in such section, being intended to include all kinds of wrongs, whether accompanied by force or not, formerly called torts, and not to subdivide the class. In other words, the section was intended to abolish the absurd rules so difficult to be stated and constantly shifting, by which an injured party was put to the expense and trouble of bringing two suits instead of one, against a wrongdoer, for two different violations of law to his injury. (See opinions and cases cited as to fluctuations and uncertainty of rule, Brown’s Actions at Law, p. 559; Law Library, vol. 45.) So that even if the cause of action presented by the allegation in the present complaint, already alluded to, had been merely equivalent to a cause of action in trover,the plaintiff would not be prevented from recovering separately damages for it merely because it is joined in the same statement with a cause of action formerly the subject of an action of trespass, merely because their joinder was formerly prohibited.

As the taking forcibly and carrying away personal property, thus forms a good separate cause of action from that of unlawfully entering the plaintiff’s premises to get it, why should the insertion of the allegation of such taking and carrying away in the same statement with that of such unlawful entry, prevent the plaintiff from recovering damages for the former, even if the latter was not proved ? It certainly would not be merely because the conversion, which may accompany such seizing and carrying away, ever has been, or must be considered an indivisible part of the same act of trespass with such entry; for a defendant was always liable for the trespass of merely taking the goods, even if he immediately restored them. (Price v. Helyar, 4 Bing. 597.) Their conversion was admissible merely as an aggravation, as their restoration was, in mitigation, of damages. (Bac. Abr. Trespass, E, 669, 674.) "Whereas an action for the conversion of the goods, such as one in trover, does not require any unlawful taking, but does a detention of the goods. Such conversion, therefore, forms no inseparable part of a series of trespasses, beginning with that of forcibly entering the plaintiff’s premises, and a claim for it is capable of being joined with one for such trespasses. What technical rule then is there left to compel the plaintiff to commence a new suit for the injury which he has proved in this, as he has alleged it in the complaint? For the objection must be entirely a technical one.

Ho one will venture to deny that, if the plaintiff had inserted before his allegation of the carrying away and converting his property, that he alleged it as a separate cause of action from the illegal entry on his premises, he could have recovered for it, even if he had failed in proving the latter. The defendant had notice by the complaint that the plaintiff meant to endeavor to prove it, and he was bound to be prepared to disprove it. Ho harm was done to him by the omission of the few words necessary to state a separation. The Code, it is true, provides that the several causes of action, which maybe joined, shall be separately stated, but the remedy is not by lying in wait until the trial to make the objection, nor by demurrer or motion to strike out either cause of action, or to compel the plaintiff to elect between them, because he has a right to join them; but by a motion to make the complaint definite and certain, so as to know whether the plaintiff means to rely on both or only one of the causes of action, and if so, which. (Wood v. Anthony, 9 How. 78.) The plaintiff would then have had an opportunity to amend his complaint by inserting the magic words, which would divide the causes of action into two. The court has even a discretion on such a motion to let a complaint stand where it is more convenient that several causes of action should be included in one statement, so as to make them the quasi items of one claim, (Adams v. Holley, 12 How. 329,) and several cotemporaneous trespasses may equally be so considered, without losing all because one is not proved. At all events, it is to be determined before the trial; otherwise we are retrograding into a more narrow and technical system of forms of proceeding than existed before.

The first and second requests of the defendant to the learned judge to charge the jury upon certain points were rendered immaterial by confining the damages to the value of the property detained. The third request is founded wholly upon some supposed evidence of an agreement for storage. I think the learned judge was right in holding there was not enough evidence of such an agreement to go to the jury. The defendant saying to the plaintiff that they “would expect rent” for the place in question, and the latter’s replying that he would pay the same as he had been paying Mr. Townsend, if the former “ would let him store his goods ” there, and “ as soon as he (the defendant) found a tenant, he (the plaintiff) would move them out,” does not tend to establish an agreement for storage, but for hiring ly the month, at the pleasure of the defendant.

I do not find any errors in the decisions on the trial, and am therefore of opinion that the exceptions should be overruled and judgment given for the plaintiff on the verdict.

McCunn, J.

I fully concur in the opinion of the chief justice. The defendant was not justified in entering the plaintiff’s premises and taking possession of his goods for non-payment of rent; no rent was demanded, and it does not appear that any was due, but even if it were due, the landlord’s lien for it has long since been abolished. After the defendant had placed the goods-in the hall of the building, his subsequent bringing them upon his own premises, and refusal to deliver possession when demand was made, constituted a conversion for which there was no legal j ustification. To my mind this constituted a cause of action without proof of any trespass.

It is preposterous on the part of the defendant to contend that he had a lien for storage. Ho evidence to support such a claim can be found in the case. For the purpose of recovery in this action it was not necessary to prove a trespass, or a tortious taking. It is enough to prove possession by the-defendant and then a demand and refusal to deliver the goods, to sustain it.

I therefore concur with the chief justice in affirming the judgment.

Jones, J. dissented. (See his opinion, post, p. 669.)


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    William Morris Deen and Maria Cozzens Deen, (by Thomas W. Pittman, guardian,) and Elizabeth Ward Deen, plaintiffs, vs. Abram M. Cozzens, defendant.
    1. Where a fund or estate is given in trust for infants, with a valid limitation over upon the death of such infants, the court has no power to break in on the carpus of the gift, for the support, maintenance or advancement of the infants.
    2. If, upon such a trust, the trustee has not only broken in upon but exhausted the corpus of the fund, such corpus will be regarded as still in existence, because no court has jurisdiction to authorize the breaking in on it, or right to ratify the act of the trustee in so doing.
    3. A woman, in contemplation of marriage, placed certain securities and stocks in the hands of a trustee, upon trust to convert and invest them, and from the income pf the fund and the accumulations thereof, to pay to the creator of the trust such sums as she might deem necessary for her support during her life, and the support and education of her children, and at her decease * * * to continue the payment of the income, or so much of the income and principal as would be necessary for the support and education of the children of the marriage, until they should respectively arrive at the age of twenty-one years; and whenever either of them should reach that age, to pay to such child one equal share of the principal fund as it should then exist; but if any one of such children should die under twenty-one years of age, leaving issue, such issue to stand in the place and receive the income and share of such deceased child. And in case all the children of the marriage should die before attaining the age of twenty-one years, without leaving issue, then said fund to be paid to the right heirs of the creator of the trust, provided she was then also dead) bnt if fhe iyife should survive the children, then a competent income was to be paid to her during her life.

      Meld, that the interest of the infants was contingent on their arriving at twenty-one years age. That such of them as should die before coming of age, leaving lawful issue, had. no right to the estate; for in that event, the estate was given to their issue, and not to them. And that it was impossible to say that either of the infants would ever be entitled to any part of the capital; for if they should both die under twenty-one years of age, leaving issue, the estate would go to their issue; and if both should so die, leaving no lawful issue, the estate would go the right heirs of the creator of the trust.
    4. Seld, also, that the children being still living, and minors, the trustee must be considered as having in his possession the capital of the fund; and that the court had no authority to make any allowance, out of the capital of the fund, to such infant children, for their support and maintenance, there being no income which it could direct to be paid, the same having been already applied by the trustee according to the trust. The trustee was therefore directed to pay the principal of the trust fund into court, to abide the litigation, and subject to the further order of the court.
    6. The trustee having neglected to keep the fund invested, as directed by the trust, and having mingled it with his own funds, and used it, and claimed to have appropriated the whole of it in a manner not authorized, although for the benefit of the cestuis que trust; Seld that although this was done by the trustee through a want, of proper understanding of his duty, and with a good intent and not through dishonesty or want of fidelity, yet that one who had so failed properly to understand his duties, and by reason of such failure had exposed the fund to the hazard of being lost by his insolvency; who had in fact allowed the corpus to be eaten' up, and kept the fund still exposed to hazard of loss by reason of business vicissitudes, and also exposed by entangling litigation in case.of his decease, should not be retained as trustee, Per Jones, J.
    (Before Jones, J. at special term,
    February —, 1867.)
    This was an application by the plaintiffs (some of whom were Iminors) as cestuis que trust, to compel the defendants to apply a portion of the principal of the trust fund in his hands for their support.
    The action was brought against the defendant as trustee of the plaintiffs, for an account of the profits of the trust fund, and for other purposes. A motion was made in it, to compel him to pay the trust fund into court, and for other relief, upon a petition of the plaintiffs. Such petition set forth that one of the petitioners, (Elizabeth W. Deen,) about the first of January, 1850, prior to and in contemplation of marriage with her deceased husband, (Wm. B. Deen,) placed in the hands of the defendant a certain sum ($14,821) to be held on certain trusts; that afterwards, in fulfillment of said marriage engagement, on the 24th day of January, 1850, she intermarried with said Wm. B. Been and afterwards bore him two children, the plaintiffs Wm. M. Been and Maria C. Been, who are still alive and are co-plaintiffs and co-petitioners with their mother. That on the 8th day of ¡November, 1854, the said defendant executed a declaration of trust whereby, after reciting the foregoing facts; that the trusts aforesaid had never been reduced to writing; and that Mrs. Been had required from him a declaration of the trusts upon which said funds were held by him, the said trusts were declared to be as follows: that said trust funds then, (to wit, on the 8th of ISTov. 1854,) consisting of sundry railroad bonds and stocks of the nominal value of $27,500, standing in the defendant’s name, were held by him upon trust to convert the said funds and invest them in securities in which they then were, or in other securities as the defendant might deem advisable and best, and from the income of the fund and the accumulations thereof,, whenever in his opinion the occasion should arise to require it, to pay to Mrs. Been such sums, semi-annually or oftener, as she might deem necessary for her support, during her life and the support and education of her said children, and at her decease or re-marriage, in case the said Wm. B. Been should die before her, to continue the payment of the income of said fund, or of so much of the income and principal as would be necessary for the support and education of the children of Mr. and Mrs. Been, until they should respectively arrive at 21 years of age, and the annual balances of said income over and above the sum that should be needed for the aforesaid purposes, to invest to the uses aforesaid; and whenever the said children should respectively arrive at the age of 21 years, to pay to each one so arriving at that age one equal share of said principal fund as it should then exist, according to the number of children that should then ■ be living, hut if any one of such children should before arriving at 21 years of age die, leaving issue, such issue to stand in the place and receive the income and share of such deceased child. And in case all the children of Mrs. Deen should die before attaining the age of 21 years, without leaving issue, then said fund to be paid to the right heirs of the said Mrs. Deen, provided the said Elizabeth were also dead; but if said Elizabeth should survive said children, then a competent income to be paid to her during her lifetime, in the discretion of said trustee or his successor.
    The petition further alleged that Mr. Deen left no property or means of support for the petitioners, other than such trust fund; that the defendant has never accounted with the petitioners, and has neglected and refused to communicate to them any information in regard to such fund, its amount, its investment, or the trusts on which he held said fund; that the petitioners only obtained a copy of the declaration of trust by accident; that he artfully and persistently produced on the petitioners’ minds the impression that they were dependent on his charity for the means of support; that he allowed them money, not by regular installments, nor proportionably to their necessities, hut according to his pleasure and caprice, and by reason of such irregular and insufficient supply of money they were frequently reduced to serious embarrassments and humiliating extremities; that the defendant frequently threatened to deny them any allowance whatever, and at times refused to furnish them funds, or to discharge their necessary indebtedness; and that being advised of the intention of the petitioners to take legal steps against him, he refused absolutely and definitively either to supply them money, or to defray the charges of their support. And that by means of such refusal, the petitioners are deprived of all sources of subsistence. That the defendant never gave any security for the performance of the trust; was largely engaged in speculations, and liable at any moment to a reverse of fortune; that he had not invested the fund-in real estate or government securities, and kept the trust fund separate and distinct from his own funds; but without the sanction of any order of court had mingled the same with his own money and hazarded it in enterprises for his own profit; that by reason of such misapplication the petitioners were in imminent peril of losing their only means of subsistence; that the defendant never procured an order of the court authorizing him to invade or expend the principle of the fund, and that on the third day of April, 1866, the defendant admitted he had abalance of the fund in his hands.
    The petition then prayed that the defendant might be ordered to pay over the trust fund as the court might direct, and that in the meanwhile so much of said fund, and in such manner as the court might direct, should be appropriated to the necessary support of the petitioners.
    The defendant, in opposition to this petition, produced his own affidavit, wherein he deposed that although the nominal value of the securities mentioned in the declaration of trust was $27,500, yet that the actual value thereof was far less; that prior to October, 1857, he had sold those securities, and realized from the sale only $13,463.73. That he had paid for the support and maintenance of the petitioners^ between the 8th of ¡November, 1854, and February 4th, 1867, various sums, amounting to $28,185.04. That he never withheld from the petitioners information in regard to the trust fund, its investment, or the terms and conditions of the trust, or endeavored to produce on them, or either of them, the impression that they were dependent on his charity for the means of support; but that on the contrary the amount of the trust fund, the circumstances under which he became possessed of it, and the trusts on which he held it, have .always been well known to the petitioner, Mrs. Deen, and there never was, on his part, the slightest attempt at concealment. That he never improperly withheld from the petitioners any payments which ought properly to have been made, or ever threatened so to do; nor did he by reason of notice of an intention on the part of the petitioners to institute legal proceedings, refuse to supply them any money or defray the charges of their support; hut that the whole of the trust fund having been exhausted in the support of the petitioners, he has refused and does refuse to accede to Mrs. Deen’s apparently limitless demands; that the last two payments he made her were: 1867, January 3. Cash, W. Hodges, hotel bill, $609.27 <£ “ “ Cash, bill of Perry house, . . 199.50 and during the year 1866, he paid her, in divers sums, the aggregate amount of $3702.90. That his payments were made in regular installments, but have been of irregular sums, for the reason that all his efforts to induce Mrs. Deen to confine her expenditures within the income of said trust fund, or to a regular allowance, have proved ineffectual. That he has never given any security because he never was requested to do so; that no specific investment of the trust fund was made, and that he kept the same himself, merely holding himself chargeable therefor, as a debtor, and allowing seven per cent interest; but that the irregular manner in which Mrs. Deen called for money, and her habit of encroaching upon the capital, rendered the maintenance of the fund in specific investments extremely inconvenient, if not impracticable. That he did not hazard the trust fund in speculations for his own profit, nor was it ever in peril of loss, for always while he has held it, his pecuniary responsibility for it has been without question. That he never largely engaged in speculations, go as to be liable at any moment to a reverse of fortune, but on the contrary thereof, his pecuniary condition, is not at all hazardous or questionable; and that whatever interest the petitioners have in the trust fund is not now in jeopardy; that in the administration of the trust and his efforts to induce Mrs. Deen to restrain her expenditures within some reasonable bounds, he has been subjected to great annoyance; and that he has no desire to continue to be trustee of said fund, if any there be, but is "willing to tender his resignation, in the Supreme Court.
   Jones, J.

The allegations contained in the petition of the plaintiffs naturally lead the mind to the conclusion that the defendant held a large trust fund, but obstinately and without cause refused to apply the income accrued from the fund to the legitimate purpose of the trust, so that the beneficaries of the trust were by reason of such obstinate and unlawful refusal now starving and homeless, and so obliged to come into court to compel the trustee to perform the duties imposed on him by the trust.

The affidavit of the defendant dispelled this idea, and showed that instead of having harshly and unfeelingly refused, without cause, to apply according to the provisions of his trust the income of the trust fund to the support of the beneficiaries, he has under the pressure of importunities by one of the petitioners, advanced for the support of the petitioners almost not only the whole amount of the accrued income, but also the whole amount of the principal of the fund, and at least an additional sum of $4000 of his own money. The facts in the case show that the defendant’s conduct, instead of being such as should subject him to the strictures insinuated in the petition, was that of a generous nature, operated on by the importunities of a woman. His conduct was not strictly legal, but it was consistent with very natural and honorable feelings, and not actuated by motives of dishonesty. It may be urged that he should have continued to act generously, and make advances; but there is a limit even to generosity, and I think that limit had been reached. The defendant, after having exhausted the trust fund, and advanced at least $4000 out of his own pocket, was constantly called upon to make more advances; but when the persons to whom he had made the advances, sought to make him liable over again by reason of his dereliction from the strict line of legal duty and re-apply to their future use that trust fund of $13,403.93, which he had already applied to their use, I cannot consider him as morally much to blame for refusing to make further advances which the petitioners would not have allowed him, on account of this sum which they sought to hold him liable to pay over again.

It may be suggested that the defendant, in making these liberal advances, was morally culpable, because in doing so he induced, in the minds of the petitioners, the belief that they were entitled to a larger property than they really owned, and thus led them to live in a way, and make expenditures commensurate with such belief. The petitioners could hardly make such a suggestion, in face of their allegation in the petition that he strove to make them believe that they had no property, but were objects of his bounty. There is, however, a further answer to the suggestion. It can hardly be supposed that a wife would not be aware of the ante-nuptial settlement made for her benefit, and the amount of it; and the proof in this case shows, to my mind, that Mrs. Been had such knowledge. Although women are not generally credited with the possession of much financial ability, yet any woman of ordinary intelligence must surely know that the interest of $15,000 will not justify a yearly expenditure of $5000 or $3000, or $2000, or even $1200; and that when she makes such expenditures she is impairing the capital. I conclude, therefore, that in this case Mrs. Been knew she was exhausting the capital, and was not led to the belief that she and her children were entitled to any larger property than the fund which she knew to have been settled on her and them.

It does not appear to what purposes the money was applied by Mrs. Been. We must, therefore, be content to assume that it was mostly applied, as was natural, to give her children that health and education which would fit them to become useful members of society, and earn by means thereof, not only a livelihood, but a competency. This undoubtedly was a paramount object; and the application of the principal of a trust fund to such purpose, (when there are no remainders over,) has been sanctioned by the court of chancery, as eminently proper.

I have deemed it necessary to make these observations upon the facts as presented by the petition, and the defendant’s affidavit, before passing to the legal points.

The petitioners’ counsel, on the argument, abandoned the theory of the petition, and founded his argument upon the facts admitted by the defendant’s affidavit; to wit, the declaration of trust, its provisions, and the facts that the capital of the fund had been broken in on and exhausted for the support and maintenance of the petitioners without an order of court, authorizing it; that the trust fund had never been kept separate from the defendant’s own funds, and had never been kept invested ; that the defendant had ceased making payments to the petitioners; and that the petitioners were without the present means of subsistence.

The motion made in behalf of the petitioners may be divided into two branches :

1. To have the corpus of the fund paid into court.

2. To have an allowance made by the court out of the corpus, for the support and maintainance of the petitioners.

It will be more convenient to consider the second branch first.

In the argument of this branch, the petitioners’ counsel claimed that as the defendant had, without the consent of a court of competent jurisdiction, broken in upon and exhausted the corpus of the fund, the court must regard him as still holding the fund, and the fund being in existence has power to break in on it for the maintenance and support of the petitioners. The defendant’s counsel claimed that if the corpus was broken in upon, for purposes to which the court would have lent its sanction, it will now ratify the voluntary act of the defendant, and that consequently, before it can be known how much of the corpus still remains, it is necessary there should be an accounting to ascertain to what extent the court would have authorized the breaking in on it.

In the view which I have taken of the case, the whole corpus must be regarded as still in existence, for the reason that no court has jurisdiction to authorize the breaking in on it. This view disposes of the claim of the defendant for an accounting.. For if the court has not authority to authorize such breaking in, it has no right to ratify the act of the trustee-in so doing. It likewise disposes of the claim of the petitioners to have the court make an allowance out of the corpus.

I have come to this view upon the authority of two cases decided by Chancellor Walworth, in the late court of' chancery. (Matter of Davison, 6 Paige, 136.) In the matter of Ryder, (11 id. 185,) cited with approbation in The matter of Turner, (10 Barb. 552, 557.) These cases hold that where a fund or estate is given to an infant, with a valid limitation over upon the death of such infant, the court has no power to break in on the corpus of the gift for the support, maintenance or advancement of the infant.

In the matter of Ryder, an infant, (supra,) the grandmother of the petitioner, by her will, gave to the mother of the petitioner the rents and profits and income of her real and personal estate, with remainder to her surviving children and to the issue of such as should have died, leaving issue at her death. The court held that even with the consent of the mother they could not appropriate any part of the capital of the fund to the support and maintenance of her children; saying, among other things, “the children have only a contingent interest, and such of the children as may happen to die in the lifetime of their mother will have no right to the estate, even if they should leave issue; for the estate in that event is given to their issue, and not to them. It is impossible to say that either of the children now in existence will ever be entitled to any part of the capital.”

These remarks apply with great pertinency to the case at bar. Here, the interest of the infants is contingent on their arriving at twenty-one years of age. Such of them as die before coming of age, leaving lawful issue, have no right to the estate; for, in that event, the estate is given to their issue, and not to them. It is impossible to say that either of the infants will ever be entitled to any part of the capital; for if they should both die under twenty-one years of age, leaving issue, the estate would go to their issue; if both should so die, leaving no lawful issue, the estate goes to the right heirs of the creator of the trust.

Even if I had doubts of the soundness of these decisions, (which I'have not,) still, at special term, I would be bound to follow them, until they are reversed either by the Court of Appeals or by a general term of this court, or of the Supreme Court.

Upon the first branch of the motion, the trustee, therefore, must be declared to have in his possession the capital of the fund, amounting to $13,403.93. And it must also be declared that the court has no authority to make any allowance out of the capital of the fund, to the petitioners, for their support and maintenance.

There is no proof now before me to charge the trustee with the difference between $14,821.85 and $13,403.93.

There is no income which the court can direct to be paid; for all the income which has, or by possibility could have accrued, up to this time, has been applied by the trustee according to the trust.

"With reference to the second branch of the motion, that must depend upon whether there is sufficient cause for the removal of the trustee. This is among the issues of fact to be tried, and I do not propose to outstrip the trial; but it seems to me that under the circumstances there is sufficient cause to induce the court to take charge of the fund during litigation.

The defendant has neglected to keep the fund invested, as directed by the trust, mingled it with his own funds, and used it, and claims to have appropriated the whole of it in a manner not authorized, although for the benefit of the cestuis que trust, blow, although this was done by the defendant through a want of a proper understanding of his duty, and with a good intent, and not through dishonesty or want of fidelity, yet one who has so failed properly to understand his duties, and by reason of such failure has exposed the fund to the hazard of being lost by his insolvency, has in fact allowed the corpus to be eaten up, and keeps the fund still exposed to hazard of loss by reason of business vicissitudes, and also exposed to entangling litigation in case of his decease, should not be retained as trustee.

I am aware that Hill, in his work on Trustees, page 202, (192,) says : “ A failure by a trustee in discharging the duties of his office from mistaking, or misunderstanding his duty, will not of itself be a sufficient ground for removing him.” In support of this he cites Attorney General v. Coopers’ Comp. (19 Vesey, 192.) But Judge Story, in his work on Equity Jurisprudence, (vol. 2, § 1289,) gives a somewhat different exposition to the case in Vesey. In his view of that case all that it. decides is that “It is not every mistake or neglect of duty, or inaccuracy of conduct of trustees which will induce courts of equity to remove them.” But, in the language of Judge Story, “such acts or omissions must be such as to endanger the trust property or to show * * * a want of proper capacity to execute the duties, or * ,*

On this branch of the motion, I think the defendant must pay the principal of the trust fund to the extent of $13,403.93 into court to abide this litigation, and subject to the further order of the court.

I regret to be obliged to come to this conclusion. It operates harshly on the defendant, and the petitioners’ counsel will probably claim that it operates harshly on them. But the law is clear, and it is better for the courts to administer the law as settled than to endeavor to subvert it to meet sporadic cases of hardship arising out of violations of it.

Let an order be settled conformably to this opinion, on two days’ notice.


author: McCunn, J.

text:
    Nelson Smith, plaintiff, vs. The Mayor, &c. of the City of New York, defendants.
    1. The provision in section 10 of the act of the legislature, of May 4, 1866, for the levy of taxes in the city of New York, that no judgment should be entered “ hy default or otherwise ” against the corporation of the city of New York, “ except upon proofs in open court, that the amount sought to he recovered, still remains unexpended in the treasury, to the credit of the appropriation to the specific object or purpose under the claim sued for,” is repugnant to section 10, article 1 of the constitution of the United States, and is therefore void, as respects a claim for services performed for the city under a contract made prior to the passage of such act.
    2. The 10th section of the act of May 4, 1866, is also void, as being in conflict with section 10, article 3, of the constitution of the state of New York, which ordains that “ no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.”
    (Before McCunn, J. at special term,
    February 21, 1867.)
    Motion for judgment on a frivolous answer.
   McCunn, J.

By this motion, which is in the nature of a demurrer to a plea, the plaintiff demands judgment as on a frivolous answer. The ground of the action is a claim for services rendered by the plaintiff, an attorney and counselor to the corporation of the city of Hew York, during the years 1866 and 1867. The answer propounds for defense that there is no money in the treasury of the city of Hew York to the credit of the appropriation for the specific object or purpose on which the claim set forth in the complaint is founded. The defendants do not dispute their contract with the plaintiff, nor do they deny that he has faithfully discharged all his obligations under the contract. The allegations of the complaint are, therefore, taken to be true, and the only question is as to their sufficiency in law to warrant a judgment for the plaintiff. . The answer interposed by the defendants raises a single issue, which is whether the law of May 4,1866, commonly called the tax levy, be in respect to the subject in controversy a constitutional and obligatory enactment. The particular provisions under discussion are in these words: “ The mayor, aldermen and commonalty of the city of Hew York shall not be liable upon any contract made or expenditure authorized, or liability incurrred by any board, department or officer of said corporation for any object or purpose which is not expressly authorized by this act, nor for contract made or expenditure authorized, or liability incurred by any board, department or officer of said corporation for any object or purpose named in this act, beyond the amount appropriated to such specific object or purpose; and no judgment in actions upon contract shall be entered, by default or otherwise, in any court, against said corporation, except upon proofs in open court, that the amount sought to be recovered in said judgment still remains unexpended in the city treasury to the credit of the appropriation to the specified object or purpose upon which the claim sued for is founded.” The contract on which the plaintiff bases his claim, appears by the record to have been made before the 4th day of May, 1866, the date of the passage of the law in question, and to have been partially performed before that period. How, if it were necessary to the decision of this motion, it might be contended, and I think successfully, that the clause in controversy (the act of May 4, 1866,) is repugnant to section 10, article 1, of the constitution of the United States; and is, therefore, as to the contract in question, void and of no effect. This proposition I have already discussed in Wood v. The Mayor, &c. decided at special term, June, 1866, and the arguments and authorities adduced in that case need no repetition on the present occasion. I will merely add that the judgment then entered has since received abundant confirmation by all the courts of this city.

But the application before me may be disposed of on another and perhaps more satisfactory ground. By section 10, article 3, of the constitution of Hew York, it is ordained that no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.” Hence, if a private or local bill embrace more than one subject that is not expressed in the title, in either event the bill conflicts with the constitution and is a nullity. (The People v. Hills, 35 N. Y. Rep. 449.) The title of the tax levy law of 4th May, 186.6, is “ An act to enable the board of supervisors of the county of Yew York to raise money by tax for the use of the corporation for the city of Yew York, and in relation to the expenditure thereof.” That the tax levy law (the act of May 4, 1866,) is a local bill within the effect of the constitutional prohibition, is sufficiently obvious in its very nature. But, in the Sun Mutual Insurance Company v. The Mayor, &c. (4 Seld. 241,) we have an express adjudication of the point; for in that case the Court of Appeals distinctly determined that the act to enable the supervisors of the city and county of Yew York to raise money by tax, was a local bill.” Yow, I take it to be apparent, from the terms of the title above quoted, that the bill embraces more than one subject; and still more it is evident that the subject involved in this controversy is not expressed in the title. In this view a doubt might be entertained as to the constitutionality of the entire enactment ; but for the purposes of this section, it will suffice to determine the validity of the tenth section, the clause in debate. The true and proper subject of the tax levy law (act May 4, 1866,) is to enable the supervisors of Yew York to raise money for the use of the city. Whether the appropriation of the money so raised be not a different subject, may admit of serious question. That the particular provision before us, (§ 10 of May 4, 1866,) whereby the general law of the state is repealed pro tanto and the established rules and practice of the courts essentially modified; that this important provision, constituted a substantive and independent subject, different in nature and object from the characteristic purpose and import of the bill is too plain for judicial discussion. Yor is it less evident and indisputable that this special and exceptional subject is not “ expressed in the title of the bill ” embracing more than one subject; and the subject involved in this motion not being expressed in'the title the bill is inoperative, at least as to that subject, which is foreign to the legitimate scope and object of the enactment. (The People v. McCann, 16 N. Y. Rep. 60. Williams v. The People, 24 id. 405. The Mayor, &c. v. Colgate, 2 Kern. 140. Sun Mutual Insurance Company v. The Mayor, vide supra.) In this last case, Chief Justice Davies employed the following language: “It would be impossible to devise a title more calculated to mislead or throw off suspicion or inquiry as to the real subject of the act. To sanction such a procedure would be to override and nullify a clear, plain and mandatory provision of the constitution.” I cordially approve of the language of a member of the court for the correction of errors, (4 Hill, 418,) where he said: “ To maintain the constitution is our first duty, and if the legislature has, for any cause, encroached upon that sacred instrument, or if any erroneous construction has been given to it, we are imperatively called upon to declare its meaning and to assert its supremacy.” I hold that section 10 of the act, May 4, 1866, being unconstitutional and void, affords no answer to the present action.

The plaintiff must have judgment.


text:
    Eleanor F. Bishop, plaintiff, vs. Nathaniel C. Bishop, defendant
    1. An action, either at law or jn equity, cannot be discontinued by a mere notice; an order of discontinuance must be entered, on the allowance of a judge.
    2. Such allowance is always given as matter of course, in cases, where the party would have been- entitled, under the practice prior to the Code, to enter a rule or order of discontinuance, of course.

      3. The proper method of taking advantage of the pendency of a previous suit ■ for the same cause, is by demurrer or answer. If the objection is not so taken, it is waived.
    4. This method is pointed out by the Code, and is the same as that which existed, at law and equity, before the Code.
    6. A motion to stay proceedings in an action until the costs of a former action are paid, will not be granted while such action is still pending; for’until it is ended, in some way, the defendant is not entitled to costs, nor is the plaintiff liable to pay any.
    (Before Jones, J. at special term,
    February —, 1867.)
    This was a motion for a stay of proceedings in this action until a prior action, between the same parties, for the same cause of action, in another court, should be ended.
    In September, 1866, the plaintiff commenced an action against the defendant in the Supreme Court, by J. W. Billings, Esq. as her attorney. In that action, as in this, B. W. Townsend appeared as attorney for the defendant. A motion was made in that suit for alimony and counsel fees, which was denied with costs, to the defendant therein. Subsequent to the decision of that motion, differences arose between the plaintiff and her attorney, Mr. Billings. Mr. Billings gave a consent for substitution in that action to another attorney, (Mr. Birdsall,) but subsequently repossessed himself of it. Ho order of substitution was ever entered, or notice of the entry of such order served.
    In December, 1866, the plaintiff) in person, gave notice to the defendant’s attorney of the discontinuance of. the action in the Supreme Court, which was returned with a written refusal to receive it. In the same month, three days afterwards, the plaintiff commenced an action in the common pleas, against the defendant, by C. E. Birdsall as her attorney, for the same cause as the action in the .Supreme Court. In the same month, and four days after the commencement of this last action, (December 31,1866,) she, in person, gave notice of the withdrawal of her former discontinuance in person of the Supreme Court action, and on the same day gave notice of discontinuance of the common pleas suit. Ten days after this, (January 10, 1867,) the plaintiff renewed her notice to the defendant’s attorney, of discontinuance of the Supreme Court action. The defendant, then, on notice to Mr. Billings as the plaintiff’s attorney in the Supreme Court action, had his costs in that suit taxed, and demanded payment thereof from said Billings, but the same have never been paid.
    On the same day on which the last notice of discontinuance of the Supreme Court action was given, (January 10, 1867,) the plaintiff, by C. E. Birdsall, commenced this action, in this court, for the same cause as the actions in the Supreme Court and common pleas.
    Ueither of the notices of discontinuance of the Supreme Court action were signed by the attorney of record of the plaintiff, nor was any order of court, granting leave to the plaintiff to discontinue, obtained.
    Upon affidavits showing these facts, the defendant now . moves for an order staying all proceedings in'this action until the Supreme Court action be settled or ended, or for such other or further order as to the court may seem meet.
   Jones, J.

It is clear that the Supreme Court action is not discontinued, but is still pending. An action cannot be discontinued by a mere notice, but an order of discontinuance must be entered. (Averill v. Patterson, 10 N. Y. Rep. 500.) It is true that the case just cited was ah action ■ at law, while this is one in equity. But the decision in that case proceeded on the ground that before the Code, an action at law could not be discontinued without entering a rule for discontinuance, and that the former practice still obtained, under the Code. Prior to' the Code, a bill in equity could not have been dismissed by the complainant, except on motion. (Hoff. Ch. Pr. vol. 1, p. 327.) True, this motion, (except when it was desired to dismiss without costs,) was one of course. But it was a proceeding in court, and was required to be evidenced by an order entered as of course in the register’s office in the same manner as, at common law, a discontinuance was required to be evidenced by a rule entered as of course in the common rule book kept in the offices of the clerks of the court in which the action was pending.

This former practice of the court of chancery, by force of the 469th section of the Code, and the 90th rule of court, is still prevalent.

Prior to the Code there was no substantial difference between the modes of discontinuing an action at law, and a suit in equity. The difference was merely in the nomenclature, and in the mode in which the rule in one case, and the order in the other, was to be entered.

By the abolition of the court of chancery, and the disuse of common rule books, these differences no longer exist, but all actions, whether in law or equity, are now to be discontinued only by an order entered on the allowance of a judge. The disuse of the common rule books, has created the necessity of obtaining an allowance of a judge to the order. That, however, is always given, as matter of course, in cases where the party would have been entitled, under the practice before the Code, to enter a rule or an order of discontinuance, of course.

The action of the plaintiff in the Supreme Court, then, being still pending, the question is, whether the defendant can take advantage of the pendency of that suit, by motion to stay the plaintiff’s proceedings in this suit until that suit is ended; or to compel her to elect in which one she will proceed.

In Cummins v. Bennett, (8 Paige, 79,) the chancellor laid down the doctrine that the regular way to take advantage of the pendency of a previous suit for the same cause, was by plea, and that such was the settled practice in England. (See also 1 Daniel’s Ch. Pr. 721.) This practice has not been changed, but, on the contrary, has been recognized and adopted by the Code of Procedure. Subdivision 3 of its 144th section provides, that “ The defendant may demur to the complaint, when it shall appear, on the face thereof, * * that there is another action pending between the same parties for the same cause.”

Section 147 provides: “When any of the matters enumerated in section 144 do not appear upon the face of the complaint, the objection may be taken by answer.”

Section 148 provides: “If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except * * *.”

Here is a mode pointed out in which advantage may be taken of the pendency of another action for the same cause. That mode is the same as the one which existed, both at law and in equity, before the Code. (See Burrows v. Miller, 5 How. Pr. 51; Hornfager v. Hornfager, 6 id. 279.) I see no reason why that practice, thus established, should be disregarded; more especially as the provisions of the Code imply that the objection in question must be taken by demurrer or answer, and if not so taken, is waived.

There is a class of cases where a plea of a former suit pending, would be bad, and yet the plaintiff should not be permitted to proceed with both suits at the same time. In those cases, therefore, there being no other remedy, the court allows one by motion. This case, however, does not fall within that class!

I was .asked, on the argument, to stay the proceedings in this court until .the costs in the Supreme Court were paid. If that action were ended, so that the defendant was entitled to costs therein, I might grant the defendant’s request. The difficulty is, that that action is still pending, and, until it is ended in some way, the defendant is not entitled to costs, nor is the plaintiff liable to pay any. hToi can I stay the proceedings for the purpose of compelling her to do something which she is not bound to do.

The motion must be denied, but without costs.


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    John A. Zerega, et al. plaintiffs, vs. S. H. Benoist, defendant.
    1. This court has no jurisdiction whatever in an action of the class mentioned in subdivision 2, of section 33 of the Code, unless the defendant is a resident of the city' of New York, or, if non-resident, is personally served with a summons within the city.
    2. If the defendant is a non-resident, and has not been served with a summons, at the time of the levy of an attachment upon his property, the court, at that time, has no jurisdiction either of the subject matter or the person of the defendant. The writ of attachment has no validity, and the levy under it is wholly void and unauthorized.
    3. But inasmuch as under the decision in Gould v. Bryan, (3 Bom. 626,) a warrant of attachment so issued becomes valid and operative the moment the summons is personally served, it cannot be set aside on the ground of want of jurisdiction, but only the levy made under it, and all proceedings had on such levy.
    4. The jurisdiction conferred upon the New York Superior Court by section 33 of the Code is not extended by the operation of section 8, or any other provisions of the Code.
    6. The presentation of an affidavit, under section 229 of the Code, containing the matters therein required to be stated, is necessary to give the court power and jurisdiction to issue a warrant of attachment. The entire omission of any one of the allegations required to be sworn to, for that purpose, is not a mere irregularity which can be amended nmo pro tuno, but produces a failure of jurisdiction which cannot be remedied by amendment. '
    6. Hence if the affidavit omits to state the grounds of the cause of action, the warrant of attachment will be set aside, on motion.
    7. A motion to vacate a warrant of attachment may be made after judgment has been entered.
    8. Placing a defendant, upon opening his default, in the condition of allowing the judgment to stand as security, does not preclude him from moving to set aside an attachment.
    (Before Jones, J. at special term,
    February —, 1867.)

      This was a motion on "behalf of the defendant to set aside an attachment, which was issued against his property, on the ground of his non-residence. The attachment was delivered to the sheriff with the summons, but i.t was levied on property of the defendant some three or four days before the summons was served on him. The affidavit on which it was issued stated that the defendant was a nonresident and the plaintiffs had commenced an action in this court by the issue of a summons herein, but did not state that the summons had been served on the defendant; nor did it state the grounds of the plaintiffs’ demand. A judgment was taken against the defendant, by default, for not answering. A motion was made to open the default, which was granted, on condition (among others) that the judgment should stand as security.

      H. Barnard, for the plaintiffs.

      Sewell & Pierce,,for the defendant.
   Jones, J.

This action is one of those mentioned in the second subdivision of section 33 of the Code. In that class this court has no jurisdiction whatever unless the defendant is a resident of the city of Hew York, or, if non-resident, is personally served with a summons within the city.

In this case, the defendant being a non-resident, and not having been served with summons, at the time of the levy of the attachment, the court at that time had no jurisdiction either of the subject matter or the person of the defendant. It follows that the writ of attachment was at that time of no more validity than if the judge had never signed it, and the levy under it was wholly void and unauthorized.

This is necessarily the result of the second subdivision of section 33, unless the jurisdiction conferred by that section is extended by the operation of section 8, or some other provisions to be considered. I think there is no real extension created by those sections. Section 8 reads thus: “ This act is divided into two parts. The first relates to the courts of justice and their jurisdiction. The second relates to civil actions commenced in the courts of this state * * * * and is distributed into fifteen titles. The first four relate to actions in all the courts of the state, and the others to actions in the Supreme Court, the county courts, the Superior Court of. the city of Yew York, the court of common pleas for the city and county of Yew York, mayors’ and recorders’ courts of cities, and to appeals to the Court of Appeals, Supreme Court, county courts and Superior Court of the city of Yew York.”

Title 7 under part 2 is entitled, “ Of provisional remedies in civil actions.” Section 227 (which is one of this title) provides that “In an action for the recovery of money * * * * against a defendant who is not a resident of this state, * * * * the plaintiff at the time of issuing the summons, or at any time afterwards, may have the property of such defendant or corporation attached in the manner hereinafter provided, as a security for the satisfaction of such judgment as the plaintiff may recover.” This being the first section of that chapter, 4, the other sections contained in that chapter prescribe how a warrant of attachment is to be obtained, and the proceeding to be had thereunder.

It is clear that sections 8 and .227 do not expressly extend the jurisdiction of this court to cases where the defendant is a non-resident and has not been served with summons in the city of Yew York. If there is any such extension of jurisdiction, by those sections, it must be by implication. The argument upon which such implication, if it exists, rests, is this: By section 227, in an action against a nonresident, an attachment of his property is authorized at the time of issuing the summons. This section having by section 8 been made applicable to the Superior Court, it follows that that court can, in an action against a nonresident, issue an attachment against his property before he has been served with summons in the city of blew York. The Superior Court, then, having this power, must necessarily have jurisdiction of an action against a non-resident without his being served with summons in the city of blew York; since it would be absurd to say that a court has power to issue a process in an action of which it has no jurisdiction.

To this argument there are several answers. One is' that by section 8, section 227 relates only to civil actions when commenced in the Superior Court. Thus before section 227 can apply in any manner to the Superior Court, an action must have been commenced therein. As an action against a non-resident of the city can in no manner be commenced therein until service on him of a summons within the city, section 221 can have no application to such an action before that event takes place.

Another answer is that sections 8, 33 and 227 are parts of the same act. The whole act and all its provisions, must be so construed as to give effect, if possible, to all the language used in it. Section 33 expressly limits the jurisdiction of this court to certain cases. If section 227 is to be construed as extending the jurisdiction, then the language of section 33 is utterly inefficient for any purpose. According to the ordinary rules for interpreting statutes, courts will not construe a statute so as to produce such a result, unless the language is so clearly antagonistic as to leave no door open for an escape. That is not the case here. Section 227 may well be held to apply only to those actions of which the court wherein they are pending has acquired by some act necessary for the purpose, jurisdiction,” or has it generally.- Another answer is that statutes are to be construed according to the intent of the legislature, which is to be gathered from a view of the whole act in connection; sometimes from its preamble, sometimes with a consideration of the mischief previously existing, which the statute was enacted to remedy, and sometimes from other matters.

In looking at all the provisions of the Code of Procedure, it is apparent that its general scope is first to define the jurisdiction of the courts, which is done in part first; and then to prescribe certain rules which should govern the various courts in the commencement and prosecution of actions of which they have jurisdiction; which is done by part second. To suppose that a section in part two, merely prescribing a remedy to be had in an action after it is commenced, as well as the mode of obtaining it, gives jurisdiction to commence an action in a court, from exercising jurisdiction, over which that court has been by part first expressly restrained, is manifestly contrary to the general scope and design of the Code.

I am aware that the legislature, -in 1866, amended section 227 by adding, and for the purposes of this section, an action shall be deemed commenced when the summons is issued, provided,” &c. This amendment, however, does not aid the plaintiffs in their position that the court had jurisdiction to issue the attachment in question. The amendment arose in this way. Under the construction given by the Court of Appeals in Kerr v. Mount, (28 N. Y. Rep. 659,) to section 227, as it stood before its amendment, no court, not even the Supreme Court, which had general jurisdiction, irrespective of the residence of the defendant, or the place of service of summons, had jurisdiction to issue an attachment until the defendant had been brought into court by either personal or substituted service of summons. To cure this defect, the amendment was passed.

The remarks heretofore made as to sections 8, 33 and 227, apply equally to this amendment. The amendment but adds to the previously existing regulations of practice one more, which, like the former ones, only become operative when the court has jurisdiction over the action.

I am aware that this court has held, at general term, in Gould v. Bryan, (3 Bosw. 626,) that an attachment against the property of a non-resident defendant may be issued, and accompany the summons into the hands of the sheriff, and may be served after the summons has been duly personally served, and that an attachment so issued and served is regular and valid. In the present case, however, the attachment was served before the defendant was served with summons.

As from the views above expressed, the court, at the time of the levy of the attachment, had no jurisdiction over the action, and no jurisdiction to issue the attachment, such levy under it was void and unauthorized, and must be vacated. Under the decision in 3 Bosw. 626, upon the service of summons on the defendant, the warrant would have been valid and operative. Consequently the warrant itself cannot now be set aside, on the ground of want of jurisdiction, but only the levy made under it, and all proceedings had on said levy.

The defendant, however, insists that the attachment should be vacated, on the ground that the affidavit on which it issued does not state enough to give jurisdiction. Section 229 provides that the warrant may be' issued whenever it shall appear by affidavit that a cause of action exists against the defendant, specifying the amount of the same, and the grounds thereof, &c. The presentation of such an affidavit, containing the matters therein required to be contained, is necessary to give the court power and jurisdiction to issue the warrant. The entire omission of one of the allegations required to be sworn to, is not a mere irregularity, which can he amended nunc pro tune, but constitutes a defect of jurisdiction, which cannot be remedied by amendment. In the present case, the affidavit wholly omits to state the grounds of the cause of action. This statement is very material. It is required for the purpose of enabling the court to ascertain whether the cause of action is such as that a warrant can issue. For this omission the warrant must be set aside.

The plaintiffs, however, contend, that even if the above grounds are, or if either one of them is, sufficient to set aside the warrant, yet the defendant cannot avail himself of them, because, firstly, judgment has been entered; and, secondly, the defendant’s default was opened, and he let in to defend, on condition that the judgment should stand as security.

There is no statute, in express terms, requiring a motion to vacate a warrant of attachment to be made before judgment. ¡Nor can I perceive that any such limitation can be implied from the various provisions of the Code. I do not stand alone in my inability in this respect; but the court, in Thompson v. Culver, (15 Abb. 97,) shares it with me.

I have been referred to the case of Spencer v. The Rogers Locomotive Works, (13 Abb. 180,) as holding that an attachment cannot be vacated after judgment. That case, however, simply decides, that where there is a valid and regular attachment, an undertaking, under sections 240 and 241, will not be allowed to be substituted in its place after judgment, for the reason that, in such case, the lien gained by the .plaintiff by the levy of the attachment, becomes, after judgment consummated, a right to satisfaction out of the specific property attached established. The reason is wholly inapplicable to eases where, in consequence of the attachment being void for want of jurisdiction, the plaintiff never gained any lien.

The only remaining point to be considered is, whether placing a defendant, upon opening Ms default, in the condition of allowing the judgment to stand as security, precludes him from setting aside the attachment.

If the motion to open that default had been made on the ground of irregularities on the part of the plaintiff, no such condition would have been imposed. But the motion was founded on affidavits admitting the plaintiff’s regularity, but excusing the default, and showing a good defense on the merits. This is a motion that appeals solely to the favor of the court. In such cases, it is the general practice of the court to impose, as a condition of granting the favor, that the judgment shall stand as security, for the purpose of giving to the plaintiff the benefit of any lien which he may have acquired by his vigilance and regularity.

The question, whether this attachment should stand as security, was not before the judge who granted the motion to open the default, and he has not passed on it.. If it had been before him, in the shape in which it has been presented to me, I must assume he would not have directed the attachment to stand; since to allow a void process to stand, would be contrary to the principle upon which a valid and regular judgment is allowed to stand.

The cases of Hall v. Stryker, (27 N. Y. Rep. 596;) Rinchey v. Stryker, (28 id. 45;) Chaine v. Wilson, (8 Abb. 78;) and Barry v. Bockover, (6 id. 374,) cited by the plaintiff’s counsel, seem to me to have no bearing on the principles involved in this, motion. Ketchum v. Ketchum, (1 Abb. N. S. 157,) is sufficiently answered by Thompson v. Culver, (15 Abb. 97.)

Motion granted, with costs.


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    North vs. Platt.
    The court will not, in a common law action, in and by an order of reference, give the referee power to compel the production of books and papers.
    (Before Jones, J. at special term,
    February —, 1867.)
   Jones, J.

I am asked to insert in an order of reference to be made in a common law action, a provision giving the referee power to compel a production of books and papers.

On the argument, I seriously doubted the propriety of inserting such a provision. Counsel, however, insisted that the practice had been sanctioned by several reported cases. I, therefore, took time to consider the question. Since the argument of the motion, the counsel has cited two cases, (Frazer v. Phelps, 3 Sandf. 741; S. C. in 4 id. 682.) The case of Frazer v. Phelps, was an action in equity for an account. The sole point decided in 3 Sandford, when the case first came before the court, was that a referee to whom all the issues in an action have been referred, has not authority to order a production of books by either party, when there is no provision to that effect in the order of reference. The questions as to the propriety of inserting such a provision in an order of reference, and as to the effect of it if inserted, did not arise, and consequently were not decided.

Subsequent to the decision in 3 Sandford, an order having been made, amending the order of reference, by inserting therein such provision, an appeal was taken from the order so amending the order of reference, and it was urged that the insertion of such a provision was improper. The court sustained the order on the express ground that the action in which it was made was an action in equity for an accounting; that the rules and practice which, prior to the Code, obtained in the court of chancery relative to such actions, and the proceedings therein, still applied to the same class of actions brought under the Code; that according to such rules and practice of the court of chancery, the master to whom it was referred, to take the account, was invariably invested by the order with power to compel the production of books, and that consequently it was proper to invest a referee appointed under the Code, in such an action, with the same powers with which a master in chancery would, prior to the Code, have been invested, by the court of chancery, on a reference to him in & similar action. The court, however, distinctly declined to pass upon the question as to whether, in a pure action at law, such authority could be conferred on the referee.

As, prior to the passage of the Code, it was never dreamed of that a court of law had any power to confer such an authority on a referee appointed to hear and determine; and as the Code has made.no change in this respect; and as no authority holding that a court of law has such power, has been submitted, I must decline to insert in the order of reference the provision asked for.

I am also requested by the defendant to appoint three referees. There is nothing so peculiar about the nature of this action, and of the defense, as to call for saddling either party with the inconvenience and expense of three referees.

Reference ordered to St. Clair Smith as such referee, to hear and determine, with $10 costs, to abide the event.