source: Caselaw Access Project

author: By the Court. Woodruff, J.

license: Public Domain

text:
    Albert Storer and Eben S. Stephenson, Plaintiffs and Appellants, v. Charles S. Coe, Defendant and Respondent.
    1. On a bill filed to recover back securities pledged for alleged usurious loans, if all the equities alleged in the bill are fully met and denied by the answer, and the defendant is fully solvent and of sufficient responsibility to answer to all claims the plaintiffs may establish, an injunction granted, ex parte, to restrain the collection or disposition of the securities, should be wholly dissolved.
    2. But the answer is not necessarily to be taken to meet and overcome the allegations in the complaint, merely because it is couched in such terms of denial and explanation of apparently usurious transactions, as if true in their proper and just meaning would show that there was no usury. When the denials and explanations are themselves such as to leave great suspicion that they are untrue or evasive, or, that under cover of words describing commissions and payment for services, usurious exactions have been made by the defendant, the injunction should be continued to the hearing.
    3. A voluntary payment of a mere gratuity by the borrower to the lender, on the return of a sum of money legally loaned, does not necessarily make the next loan between the same parties usurious, nor raise a presumption that it is so. But a long series of successive loans running through a period of fifteen months or upwards, and an invariable payment of large premiums on the return of the money or renewal of the period of credit, is so suspicious as to raise a presumption, that both parties understood that the payment of an exorbitant sum was the condition of the successive loans.
    4. The statement in the answer, that large premiums which were paid to the defendant, were for “ extra trouble,” either in lending the defendant’s own money, or in buying the borrowers’ note, is of no weight in rebutting the charge of usury, unless the answer shows the particulars so as to exhibit an actual and' bona fide sacrifice of time, money, or property, for the borrower’s benefit.
    5. It is competent to show, that an assignment of judgments against third parties, made by the borrower to the lender, was made and received as security for loans, although such assignment is absolute in form. And the truth of allegations in the answer of the defendant, that such assignment was absolute in fact, and on a purchase of the judgments, will be discredited where the whole transaction is such as to render that statement highly improbable.
    6. Where it is manifest that the plaintiffs may suffer loss by permitting the defendant to collect the moneys due upon securities held for loans, which are alleged to be usurious, the Court, if they deem the answer insufficient to overcome the equities in the complaint, should restrain such collection, although it may ap- . pear that the money, if collected, would, be entirely safe in the hands of the defendant.
    (Before Duer, Ch. J„ Bosworth, Hoffman, Slosson and Woodruff, J. J.)
    Heard, October, ;
    decided, October 31st, 1857.
    This case came before the Court, in General Term, on appeal from an order modifying an injunction.
    The plaintiffs filed their complaint, alleging, that from the month of November, 1855, to December, 1856, they had been in the constant habit of borrowing sums of money from the defendant, such loans, or extensions, of some of them, taking place in every month, and that each and every of the said loans were made upon usury, and that the defendant, on the 11th of December, 1856, claimed a balance upon one of such usurious'loans of $14,200, and held the plaintiff’s note for that amount, and claimed a balance of $4000 upon another usurious loan, and that he held various bonds and stocks as collateral security.
    The complaint then alleges, that the defendant lent them some further sums upon usury, and received an assignment of certain two judgments belonging to the plaintiffs, against The High Shoals Mining Company; one for $6166.70, and the other $21,045.02 ; as collateral security. That the plaintiffs are stockholders in the said company, and largely interested to sustain it and prevent a sacrifice of its property by a forced sale, or violent and speedy enforcement of the judgments.
    It then further alleges subsequent payments to the defendant bn account, the giving of notes in renewal, exorbitant charges by the defendant under the name of commissions, or for “ extra trouble that all the loans for which the said collateral securities were specifically pledged, have been repaid with the usurious interest there .on; that the plaintiffs have demanded a return of the various securities, but defendant refiises to return them, and has offered them, together with the said judgments, for sale; and that he claims that he has purchased the judgments, and holds them by an absolute transfer, and threatens to proceed to collect them without delay, or sell them as he shall find for his interest.
    The complaint prays for a surrender of the usurious notes made by the plaintiffs—a return of the bonds and stocks, and an assignment of the judgments against the High Shoals Mining Company, held by the defendant as security, as above stated. And prays, « also, an injunction to restrain the defendant from selling, assigning, or in any manner disposing of the notes, judgments, bonds, stocks, etc., and from collecting the judgments, and for a receiver.
    A temporary injunction, or order, in the nature of an injunction, was granted, ex parte, according to the prayer of the complaint, which, upon the coming in of the answer, and a hearing of the parties, was modified so as to permit the defendant to proceed to collect and enforce the said judgments.
    The opinion of the Court states, with sufficient particularity, the substance of the answer bearing upon the question, whether the injunction should have been continued.
    The plaintiffs appealed from the order, in so far as it modified the previous injunction.

      H. A. Oram, for the plaintiffs, appellants,
    insisted that the equity of the case made by the complaint, was not met by the defendant’s answer, and that the injunction should have been continued in full force.
    That to suffer the defendant to collect or enforce the judgments, would be destructive of the company and its property, destroy all hope of the ultimate collection of the judgments in full, injure the plaintiffs as large stockholders, and, as alleged,.leave them, also, personally liable for the debts of such company.

      Hoffman and Pirsson for the defendant
    insisted that the whole equity of the complaint was denied by the answer, and that the injunction should have been wholly dissolved.
   By the Court. Woodruff, J.

The complaint in this case shows, we think, a very clear case for relief, and entitling the plaintiffs to the interposition of the Court, to restrain the defendant from using the securities in his hands, upon the ground that the transactions between him and the plaintiff are usurious and void. If the facts stated by the plaintiffs are true, the defendant’s exactions were singularly exorbitant and oppressive.

This case, made by the complaint, the defendant seeks, by his answer, to rebut; and if he has fully met the charges of the plaintiffs, so that the case stands before us upon an equal balance of the evidence, or upon the oath of the plaintiffs, fully met, and opposed by the oath of the defendant, then we think the plaintiffs have no reason to complain of the modification of the injunction. Nor in such case, should we have deemed it erroneous to dissolve the injunction altogether, especially since there is no pretence in the complaint, that the defendant is insolvent, or not 'fully able to meet any responsibility the plaintiffs may be able to charge upon him by the final judgment, if rendered herein in their favor. The case, in this aspect, would stand upon the ground, that all the equities of the bill were fully met and denied by the answer, and by a defendant fully solvent, and of sufficient responsibility to answer to all claims the plaintiffs may establish.

It is, however, quite apparent, that the order appealed from did not proceed upon this ground; it contemplates the continued control of the Court over the securities in the defendant’s hands pendente lite, while it permits him to proceed to collect the judgments which it is the purpose of the complaint to reach and recover back.

With the apparent conclusion of the Justice, at Special Term, that the answer does not fully meet and disprove the allegations of the complaint, we concur.

The fact of the payment of very large sums by the plaintiffs, in consideration of the moneys loaned, or as a compensation to the defendant for having furnished to them the money, is admitted. These sums very greatly exceed the legal rate of interest.

The explanation given by the defendant is, in respect to very many of the payments, that they were not made in pursuance of any agreement made at the time of the respective loans, nor at any time previous thereto; but were paid to the defendant by the plaintiffs, voluntarily, at the time of refunding the respective loans, as a mere gratuity for his extra trouble in procuring said loans.

In respect to others, the explanation is, that the premiums were paid voluntarily, as a mere gratuity, without suggesting that the idea of “ extra trouble” entered into the consideration of the parties.

In respect to others, it is said that the premium was paid to the defardant upon his purchasing from the plaintiffs their own notes, as a commission for his “ extra trouble” in procuring the money to emble himself to make such purchase.

We have, then, some fifty transactions, in which the plaintiffs were, in fact, borrowers, and the defendant, in substance, and in most cases in form, the lender, running through a period of about 15 months, in which very large premiums were confessedly paid by the plaintiffs, over and above legal interest.

We think it was the part of the defendant, if these transactions were susceptible of explanation, to have shown their legality by something more specific than the vague generalities by which the answer seeks to defend them.

It is true, that a voluntary payment of a mere gratuity by a borrower to the lender, on returning a sum legally borrowed, does not necessarily make the next loan between the same parties usurious, nor raise a presumption that it is so; but a long series of successive loans, and an invariable payment of large premiums on the return of the money, or renewal of the period of credit therefor, has, at least, a very suspicious appearance, which the suggestion of a gratuity does not remove. The reception of gratuities by the lender from the borrower, in such cases, may be adopting a legal term to express what both parties perfectly understand to be a most exorbitant exaction, and, in truth, a condition of the continuance of favors which succeed each other as fast as the “gratuity,” so-called, is bestowed.

Such is, to our minds, upon a review of the complaint and answer, the nature of the transactions in question.

As to the idea, suggested in some cases, that the premium was for extra trouble, it must suffice to say, that if a lender may, in any case, charge more than legal interest for lending his own money, or for buying of the borrower the borrower’s own note, (upon which question it is unnecessary to speak decisively here,) the lender must, at least, show the facts and circumstances with sufficient particularity to enable the Court to see that there was some just and reasonable ground for such a charge, and some actual trouble taken, or service rendered, or sacrifice made: els3 the Court will be left to the probable inference, that, under circumstances like the present, it was, in truth, a mere cover, called by the name of compensation for “ extra trouble,” when no actual service was in fact rendered.

It is safe to say, that if any such charge can be permitted in any case, it can only be on clear allegation and proof of the actual and bona fide sacrifice of time, money, or property, for the benefit of the borrower, or for his accommodation.

The answer does not, we think, satisfactorily show this.

Without discussing the other particulars further, enough has been said to indicate our view of the effect of the answer, in reference to the matters contained in the account annexed to the complaint.

In respect to the judgments assigned, or caused by the plaintiffs to be assigned, to the defendant, he insists that he holds them by absolute purchase, having only given to them the privilege of repurchasing them within a limited time.

If we were bound to take the language of the writings as conclusive, or the mere words of the defendant’s answer, we must hold that the allegations in the bill, that the defendant took the assignments as security merely, were overcome. We do not so understand our duty. Parties seldom express in terms their design to secure to themselves an advantage, which they know to be illegal; and in weighing the proper effect of the answer, we may, and ought, to look at all the circumstances, and consider as well what is alleged and what is denied, as also what is probable.

The plaintiffs had long been borrowers from this defendant. They had béen long and continuously paying him, for the loans received, large amounts exceeding legal interest. In this state of things, they were anxious to purchase a j-udgment from Mr. Hilton, amounting to $6166.70, the immediate enforcement of which might operate greatly to their prejudice; they had negotiated a purchase, and had paid therefor all the purchase-money except,$2890.13. The defendant consented to advance this, and

now claims that the real understanding was, that for so doing he was to be deemed an absolute purchaser, and entitled to collect and retain the whole sum of $6166.70, although the plaintiffs themselves were, as stockholders, liable for the amount.

And further than this, the claim of the defendant is; that for advancing a further sum of $2726.57, he was to be deemed an absolute purchaser of the plaintiffs’ judgment for over $21,000, (embracing the amount of the first judgment,) subject to no other condition than that the plaintiffs might become re-purchasers, by re-paying, within 30 days, the two sums of $2890.13 and $2726.57, and one of the before-mentioned usurious loans of $4000, amounting to $9616.70, together with a premium or profit thereon of over $3500, for the favor thus extended to the plaintiffs.

The relation of the parties in the previous transactions, the known need of the plaintiffs, the significant fact, that the defendant treated the plaintiffs as debtors, by taking their note for the amount of the defendant’s advances, with the premium aforesaid, seem to us to indicate that, in this transaction the plaintiffs were • borrowers merely, with a degree of probability, at least, not sufficiently explained by the suggestion in the defendant’s answer, that the note was taken as a memorandum, and not with intent to enforce it.

And this view is further supported, by the admitted fact, that when the thirty days expired, the plaintiffs, seeking a further extension for thirty days, were required to give their note for $10,000, although they had paid $7000, thus adding about $4000 to the exorbitant premiums already reserved to the defendant. Indeed, it is apparent, that the defendant has been reimbursed all, and even more, than he has advanced upon the judgments, and yet holds the plaintiff’s note for $10,000, for which these extravagant premiums, to the extent of, at least, $6000, constitute the consideration. The remaining $4000 being alleged to be one of the previous loans, already above referred to, upon, or for which premiums were charged, exceeding the legal rate of interest.

We are not satisfied, that the account of the transaction, by the defendant, is so credible, that upon the mere answer, the injunction should be denied. By whatever name the parties may have, in form, denominated the transactions, they savor strongly of devices to secure to the defendant large premiums on what the parties, in fact, intended as loans of money.

Under these views, it is quite apparent, that the defendant’s" answer has not so fully met and answered the complaint, that the injunction should have been dissolved; and such, we think, must have been the view of the Court, at Special Term, in refusing to dissolve the injunction.

But the Court did modify the injunction, so far as to permit the defendant to proceed to collect and enforce the judgments. We think this modification was made without considering the peculiar relation of the plaintiffs to the company against whom the judgments were recovered ; for it is, we think, clear, that; if the plaintiffs have made a case for an injunction, which is not overcome by the defendant, then the modification should no more have been made than a dissolution ordered, if it is apparent, that the modification will expose the plaintiffs to the very injury which it is the object of the action to prevent.

The judgments are recovered against the High Shoals Mining Company. That company is alleged to be under present embarrassments, which would force it into insolvency, and sacrifice its property, if the judgments should be immediately enforced against them, and as we can readily perceive, such enforcement might render the ultimate collection of the debts impracticable—■ at all events, the plaintiffs, if they establish their title to the relief sought, are most interested in that matter, and they desire that the judgments be not now enforced.

Again, the plaintiffs are large stockholders in that company, and are in that manner greatly interested in sustaining the company, and preventing a sacrifice of its property. In this view, they are largely interested in restraining the immediate enforcement of the judgments, and although, as between them and the company, or its other stockholders, they would have a right to enforce the judgments at once, the plaintiffs have, (if entitled to the relief sought,) a clear right to consider, and determine for themselves, how their interests, as creditors, can be best harmonized with their interests as stockholders, and manage and control the judgments accordingly.

But still further and more conclusively, it is alleged that the plaintiffs, as stockholders in the company, are liable for its debts. Under such a responsibility, the control of these judgments and the preservation of the company from final insolvency, may be of very great moment to the plaintiffs.

If it were a matter of indifference to the plaintiffs, whether the money was or was not immediately collected, or, if both plaintiffs and defendant were alike interested, that the money should be collected, if possible, from the judgment debtor, then there would be obvious propriety in suffering the judgments to be enforced, and the defendant not being insolvent, it would be proper to suffer him to proceed with the collection. But the considerations above suggested, show that protection of the interest of the plaintiffs will not be so attained—to permit the defendant to proceed, is to defeat one of the principal objects of the action.

We conclude, therefore, that the order modifying the injunction should be reversed, and the injunction be reinstated.

The costs of this appeal must abide the event of the suit.


author: Br the Court. Woodruff, J.

text:
    Jose M. Mora, and another, Appellants, v. Dennis A. McCredy, and another, Respondents.
    1. An order, requiring the plaintiff to produce, or give copies of, papers, to enable the defendant to answer the complaint, will not be made when it is manifest that the defendant has no defence, which he cannot set up in due legal form, to raise the proper issues, without the aid of such papers.
    2. Discovery may be ordered, to assist the defendant to facts, without which he cannot frame an answer which will protect his rights in the action itself; but the object for which discovery will be ordered, is not to prevent a defendant from answering untruthfully.
    8. It may be very much desired by a defendant to know, before he answers, what facts the plaintiff may be able to prove, and what admissions or evidence, statements and accounts rendered by him to the plaintiff may contain; and such knowledge might, perhaps, serve as a useful precaution, admonishing the defendant what he may not, with safety to his reputation, aver or deny; 1>ut such considerations are no reasons for compelling a discovery, to enable the defendant to answer.
    (Before Bosworth, Hoffman, Slosson, Woodruff, and Pierrepont, J. J.)
    Heard, Jan. 16th;
    decided, Jan. 23d, 1858.

      This was an appeal, by the plaintiffs, from an order, requiring the plaintiffs to produce accounts and papers, to enable the defendants to prepare their answer to the plaintiffs’ complaint.
    The allegations on behalf of the defendants, upon which their application for a discovery was made, were, in substance, that the action was brought to recover from the defendants the sum of $4719.54, which they had received for the plaintiffs, the same being the proceeds of notes which the defendants, as brokers, had sold or negotiated for the plaintiffs, the sum claimed being1 a bal-. anee, after a long series of heavy transactions, running through a period of several months.
    The defendants allege that this balance, so claimed by the plaintiffs, is retained by them, and is due to them, as and for commissions on their transactions, as brokers for the plaintiffs, and for their services therein.
    The plaintiffs deny the legality of such retention of the money; say this sum is over and above the defendants’ proper commissions, and is now set up without truth, and without any just cause; and they say that this same claim, now made, was once before made, and the same sum was once charged in the account rendered by the defendants in the progress of the dealings, but was, on objection by the plaintiffs, struck out and abandoned, and the defendants’ account settled on a waiver of any such claim ; and that the dealings of the parties thereafter continued, until shortly before this suit was brought; and now the defendants have set it up, without any right, as an excuse for not paying over the balance of moneys in their hands belonging to the plaintiff.
    The defendants state, that from time to time, as the several loans were effected, or sales of notes made, they rendered accounts and statements of the transactions, showing the terms of sale, their charges. for commissions, and the net proceeds, of which accounts and statements they have retained no copies; and they now state, on the advice of their counsel, that it is necessary that they should have copies, or inspection and an opportunity to take copies, before they can safely answer the complaint; and for that production, etc., the motion was made.
    "The motion was heard at Special Term, before Mr. Justice Slosson, and an order made, that the plaintiffs either cause copies to b'e made at the expense of the-defendants, and deliver such copies, under oath, etc., or deposit such accounts and statements with the clerk of the Court, so that the defendants may take copies.
    From this order, the plaintiffs appealed to the General Term.

      Francis H. Dykers, for the plaintiffs (appellants).

      Batallo & Doyle, for the defendants (respondents).
   Br the Court. Woodruff, J.

The only object for which a discovery is now sought, and the only useful purpose which it is claimed such discovery would serve, is to enable the defendants to answer, the" plaintiffs’ complaint.

The complaint is, that the defendants have, as the plaintiffs’ brokers, received, at various times, divers large sums of money, being the proceeds of. the sales of notes entrusted to them by the plaintiffs for sale; and that, on the 19th day of October; 1857, the defendants had in their hands a balance, belonging to the plaintiffs, of $4719.54, being proceeds of such sales, received by the defendants, over and above all commissions for selling, etc.

•The accounts, or statements, of which discovery is sought, can be material or useful for the purpose of answering the complaint, only from their connection with, or relation to, the possible de- ' fences which the defendants may make to the claim.

We cannot learn, from the complaint or affidavits on which the order was made, nor is it suggested by the defendants’ counsel, that there is any defence in this case, unless it consist of one or more of the following, viz.:—

A denial that the money claimed by the plaintiffs was received by the defendants; a denial that it remains in the defendants’ hands; or, what may be equivalent, and perhaps a better answer, an averment that the defendants have paid it over to the plaintiffs ; or, lastly, a claim to set off the defendants’ commissions, or the value of their services rendered to the plaintiffs in negotiating the sales mentioned.

The papers sought may, perhaps, be useful when the defend- . ants come to prepare for trial; but how they are necess'ary to enable the defendants to answer the complaint, is not apparent; it does not appear from the papers, and counsel failed to suggest any reason, why it was deemed necessary.

If the defendants know or believe that they have received the plaintiffs’ money, they can and ought to admit it. If they have not knowledge or information sufficient to form a belief, they are not bound to admit it, but may state the want of such knowledge and information, and this will constitute an issue. .

If they know, or upon information believe, that they have not received the money, they can say so.

If, having received it, they know or believe that they have paid it over to the plaintiffs, they can so state.

And, finally, if they know or believe that the sum claimed, or any part of it, is justly due to them, or that they are entitled to retain it for commissions or for services, there is not the slightest difficulty in averring this in their answer.

It may possibly be true, that in the accounts and statements which the defendants have rendered, they have committed themselves by what is tantamount to an admission that they have no claim to retain this money from the plaintiffs; or there may be other reasons, appearing in these statements, which make the defendants feel it to be dangerous to answer under oath, lest these statements and accounts, rendered by themselves, may convict them of error; but this is no reason for compelling a discovery. Or it may be, that if the accounts and statements were produced, the defendants would be satisfied that their claim could not be established, and so would not think it best to answer at all; but it is not with a view to any such result that a discovery will he ordered. Discovery may be ordered to assist a defendant to facts without which he cannot frame an answer, with safety to his rights; but it is not intended to protect him from answering untruthfully, or to inform him how fully he may have furnished the plaintiff with the means of disproving the answer which he may propose to interpose.

The papers sought by the defendants’ motion, cannot furnish the materials for their answer, though their examination might be a useful precaution, admonishing the defendants not to answer untruthfully, if they were so inclined.

The order appealed from must be reversed.

Ordered reversed.


author: By the Court. Hoffman, J.

text:
    James S. Sluyter, Respondent, v. J. Brice Smith, impleaded, etc. Appellant.
    1. Where the summons in an action is signed by the firm name of two attorneys who are in partnership, and the complaint is served with the summons, signed with the individual name of one of such attorneys only, and all subsequent notices and papers in the action are signed by such individual name of the attorney last named, the Court has the power after judgment to amend the summons by substituting the individual name of the attorney for such firm name.
    /
    2. Where it becomes necessary to amend a judgment, and the judgment record in the particular above mentioned, and also by striking out an award of costs erroneously directed, it is not proper to make an actual obliteration of the record, or an erasure of such parts thereof as are deemed erroneous or intended / to be amended. It should be done by entering an order of amendment in the proper order book kept by the clerk, and appending a copy thereof to the judgment record. It is also proper to mark the passages struck out by the amendment by brackets or lines of distinction, and to refer by an entry in the margin of the judgment to the order of amendment by its date; or the judgment, as amended, may be entered at length if the party so desire.
    3. In an action for the recovery of money only brought against two or more defendants upon an alleged joint contract, if one of the defendants fails to answer, and the others deny the plaintiff's allegation, the plaintiff cannot regularly enter up judgment against the one defendant for the want of an answer, and then proceed to trial and judgment against the other defendants.
    4. In such case he should bring the cause to trial as against all of the defendants to the end that he may, upon the trial of the issues, have one assessment of damages, and one judgment against all of the defendants.
    6. On bringing the cause to trial upon the issues, he may have such assessment, and may have such judgment against the defendant who does not answer, although he fails on the trial of the issues to show that he is entitled to recover against the defendants who have answered.
    6. The right of the plaintiff to sever his action, and take judgment against one of two defendants severally liable, and the construction of §§ 186, 246, and 274 of the Code considered.
    1. Where costs are allowed to the plaintiff on an adjustment by the clerk to which he has no legal right, and which the defendant cannot be required to pay without a violation of the statute, and the Court at Special Term deny a motion to correct the adjustment, an appeal lies to the General Term,
    (Before all the Justices.)
    Heard March 20th;
    decided March 27th, 1858,
    Appeal by the defendant, Smith, from a judgment entered on the 11th of August, 1857, and from an order amending the same, of the 16th of November, 1857.
    The alleged irregularities and errors on which the application was made below, are sufficiently stated in the opinion.
    N. Sanxay, for the appellant.
    D. D. Field, for respondent.
   By the Court. Hoffman, J.

First. As to the order of the 16th of November, 1857.

The defendant, Smith, upon an affidavit of his own, and the judgment-roll, obtained an order to show cause why the judgment of August 11th should not be vacated, for various specified irregularities.

Mr. Justice Duer heard the application, on the moving and opposing papers, and denied the motion to vacate the judgment, but modified it by striking out in favor of the defendant a provision which subjected him to $41, an amount of certain costs. He also allowed an amendment of the summons, by changing the name of the attorneys from Field and Sluyter, to Dudley Field.

The application by this defendant to the Judge at Special Term, was a recognition of his authority to act in the matter, unless it was so plainly coram non judice, that consent could not give jurisdiction.

This was not the case. The application was to the Court, to be relieved from a judgment, and to be let in to defend upon the merits. It was made under the 174th section of the Code.

The correction of the summons was plainly within the power of the Court to make, and was properly made.

The authorities cited as to amending a record are decisive. There is nothing in the Code to prevent their application. (14 John. Rep. 219; 19 Id. 244; 17 Id. 86.)

But we consider that the method of amending pursued in this case, by an obliteration or erasure, even when it leaves the passage legible, is not the proper mode. It should be by appending the order of amendment to the roll, as well as by entering it in the proper book, and by referring in the margin of the entry of the judgment to an amendment as made by an order of such a date. The portions changed or omitted, could be designated by brackets, underscoring or otherwise. Or the judgment may be entered anew as amended.

In chancery, the register was sometimes directed to attend with the decree, and make the alteration in open court, which the Judge countersigned with his initials. (1 Russell’s Rep. 476; 1 Swans. 573, n.)

Ko serious inconvenience can arise in the present case from the course adopted. Certainly it is not a ground for vacating a judgment. But the practice should be such as we have indicated.

Second. As to the judgment of the 11th of August, 1857, and the appeal therefrom, the only question of moment upon this appeal, is this:—•

When there are several defendants in an action, and one does not appear, or answer, and others do so, may the judgment at the trial be taken as to all ? that is, against the one upon his default, and as to the others, upon the pleadings and proofs whether against them, or in their favor ? And may this be done where, as in the present case, the claim is a money demand, and the complaint is not sworn to ?

The defendant contends, that the judgment could only be taken against him under the 246th section of the Code; that it must be entered by the clerk; that it cannot be rendered or directed by the Court.

It may be useful to advert to the former practice, if we have not a definite rule, prescribed in the Code, that is to govern.

In chancery, an order was entered taking the bill as confessed by any defendant, as the complainant became entitled to the order ; but this was only the foundation of a decree as to such defendant, when the case was brought on as to the others. There was no final decree which previously determined the case as to him. The order, taking the bill as confessed, was produced at the hearing, and recited in the decree.

Similar to this, was the practice at common law, of entering a default upon affidavit of service of the declaration and notice of • the rule to plead. A common rule was entered in the clerk’s office. It was the registration of a default. Then followed, in or- • dinary cases, the interlocutory judgment and order, that the jury who should try the issue should also assess the damages against the defaulting defendant.

But I understand the law to be, that except in cases of bills of exchange and promissory notes, provided for in the statute of 1835, (Sess. laws, 248, § 2,) there cannot be a separate final judgment against one of several parties sued, nor until it can be taken against all. (Sec. 4 of the Act of 1832; laws, p. 489.)

The rule was stated in Van Schaick v. Trotter & Dunn, (6 Cow. 599,) that in an action against several, if one pleads to issue, and another suffers judgment by default, damages must be assessed against both at the same time by the jury who try the issue. The j udgment by default is entered as to the one before the issue is carried down for trial. Then the trial proceeds upon the defence as to one, and to try the cause as to the other, assessing the damages as to both or one, as the case may result.

Justice Birdseye, in Catlin v. Latson, (4 Abbott, 248,) has examined the subject with care, and treats this as the settled practice. He notices the Act of 1833, (ch. 271,) dispensing with the entry of an interlocutory judgment, and requiring only the entry of the default for not pleading.

And Justice Harris, in Bacon v. Comstock, (11 How. Rep. 198,) observed, that “the common-law rule was, that the judgment must dispose of all the rights of the parties. There could not be two final judgments in the same action. If the action was against two, and one of them made default, while the other interposed a defence, the plaintiff was required to omit entering judgment against the former, until the issue with the latter had been determined.”

The principal sections of the Code which bear upon this question, are the 246th, the 136th, and the 274th.

The judgment which is provided for under the 274th section, is a judgment after trial, in either of the modes provided in chapters 2, 3, 4, and 5, for the trial of issues of fact or law. By that section judgment may be given for or against one or more of several defendants; or judgment may, in the discretion of the Court, be rendered against one or more, and the suit proceed against the others. This is to be by the order of the Court.

Section 246, which permits a judgment to be entered by the clerk, in an action on a contract for recovery of money, allows it against the defendants, or one of them, in the cases provided for in section 136.

The third subdivision of section 136 applies to the present case. If all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would have been entitled to judgment against such defendants or defendant, if the action had been against them, or him alone.

We may, first, observe that section 246 may be reasonably construed as permissive only, sanctioning the entry of judgment by the clerk, but not prohibiting the entry of it by direction of the Court, upon a trial of the cause as to several defendants.

But again, the third subdivision of section 136, applies to a case where, on the pleadings a separate judgment could be properly taken, and the separate proceeding, under section 246, is in such a case only. Where the contract is several, a several judgment may be had. Where it is joint it cannot be had, except under section 274; and this can only be after trial.

Such is the received construction of section 136. It was so stated by Justice Parker, in the Meohanics' Bank v. Rider, (5 Howard, 412;) and although this was a dissenting opinion, the case being, as to the admissibility of a co-defendant, yet, upon the present question, his view is unaffected by the decison. This is made clear by the fact, that Justice Harris, who delivered the judgment of the Court, decided the subsequent case of Bacon v. Comstock, (11 Howard, 197.) He held that, in an action upon a joint liability against two defendants, it was irregular to enter judgment against one who makes default, before the issues are disposed of as to another who defends. He refers to the 274th section of the Code, as authorizing the Court to do this.

And Justice Birdseye, in Catlin v. Lawson, before referred to, is very clear to the same point. If the suit is upon a joint responsibility, the interposition of a defence by one prevents a judgment against either, until the trial.

Third. The remaining point relates to the costs, which it is said, have been taxed at a sum not warranted by the statute. The bill has been adjusted at $48.

The Code has not provided for a revision of the adjustment of - costs made by the clerk, to whom the duty is confided. (6 Howard, 413.) The practice has been sanctioned by authority, of bringing the subject before a Judge of the court, generally by a motion in the nature of an appeal, at Special Term. (15 Barbour, 132 ; 4 Duer, 681; 10 Howard, 142.)

The rule appears to have been, that an erroneous taxation of costs was not the foundation of a writ of error. (Ibid.) Yet, in the Court of Chancery, an appeal from the taxation by a Vice-Chancellor would lie.

Under the Code, an appeal has been supported, when the allowance made exceeded the amount limited by the statute, although none is permitted for granting or refusing an allowance. (4 Abbott’s Rep. 98.)

In the present case, the question is brought up by an appeal, not only from the judgment, but from an order which, in effect, denied an application to correct the adjustment of costs which were unauthorized by the statute. We think the question is •properly before the General Term.

Then as to the items :—The trial fee of $20 is clearly inadmissible, (11 Howard, 502.) The item of $10 was, also, improperly allowed, (8 Howard, 33.) The cause was not noticed for trial as to this defendant.

After some hesitation, we think, also, that the $15 for proceedings before notice of trial, must be reduced to $10.

The judgment and order appealed from, are, in all respects, affirmed, except that the costs are to be reduced to $13.06. No costs to either party upon the appeals.

Order accordingly.


author: Woodruff, J.

text:
    James C. Willet, Sheriff, Plaintiff, v. The Metropolitan Insurance Co. Defendants.
    1. An answer which first denies all the allegations in the complaint, and then in subsequent paragraphs admits certain of the averments, does not leave it doubtful what allegations are put in issue.
    2. But statements in an answer which are in direct conflict with each other ought not to be permitted to stand; such conflict tends to encumber the pleadings and may often render the real nature of the defence doubtful

      3. In such case, the general denial will be struck out, unless the defendant amends, by so modifying the general denial that it shall not deny allegations afterwards in the answer admitted.
    (Before Woodruff, J.)
    Special Term;
    April 28th, 1858.
    Motion to strike out parts of the defendant’s answer, or to make the answer more definite and certain.
    The alleged defects in the answer sufficiently appear in the opinion.

      A. Vanderpool, for the plaintiff in support of the motion.

      J. B. Varnum, for the defendants in opposition.
   Woodruff, J.

The defendants by their answer first deny each and every allegation in the complaint contained, and then proceed by successive paragraphs, separately numbered, to admit, in terms, many of the averments in the complaint—and then, after setting forth certain other facts, insist that two persons, not parties to the suit, are necessary parties.

The plaintiff moves that the general denial or the specific admissions (one or the others) be struck out as false—or why the answer should not be made more definite and certain in regard to various particulars covered by the general denial, and not otherwise mentioned in the answer.

In regard to this alternative, it must suffice to say that an answer which puts in issue, each and every allegation in the complaint, does not leave it doubtful which allegations are put in issue, and I am not aware that the Court have ever assumed to direct the defendant to answer the separate allegations in detail. On the contrary, the Code permits a general denial, and we cannot therefore say that when such general denial is made we will direct it to be made specific.

The apparent uncertainty respecting the defendants’ answer in this case results from the fact that having first denied all of the plaintiff’s averments, the defendants proceed to admit some, and the plaintiff perceiving thereby that the first denial was insincere in some particulars, feels uncertain whether the defendants will insist upon their denial in other particulars when the trial shall come on. The only mode which occurs to me, by which a plaintiff can avoid this embarrassment, is by verifying his complaint. The defendant will then be compelled to say upon his conscience whether the allegations are true.

There is, however, no propriety in permitting two statements to stand in an answer which are, in terms, in direct conflict with each other. First, a denial of an averment, and second, an explicit admission of its truth. It tends to incumber the pleadings with inconsistencies, and no doubt may often render the real nature of the defence doubtful.

The general denial, forming the first clause of the answer, must be struck out in this case, unless the defendants within ten days amend their answer so that that part of the answer shall not deny the allegations which in the subsequent portion of the answer are admitted.

Costs of the motion to the plaintiff $10—to abide the event of the suit.


text:
    Burton E. Clark v. Thomas S. Thorp, and another.
    1. In a complaint on a bond, given to procure tlie discharge of a warrant of attachment, issued under the Act, entitled, “ Of proceedings for the collection of demands against ships and vessels,” the plaintiffs should, in order to sustain the bond as a statute security, not only aver the facts, showing that such warrant of attachment was duly issued, and that the bond was executed by the defendants, and that the claim of the creditor has not been paid; but also, that the bond was delivered to the officer by whom the attachment was issued, in such wise, that it became his duty to grant a discharge of the warrant.
    2. If such averment be made, it will be presumed that the officer did his duty; that the applicant for the discharge obtained the benefit thereof; and that so the bond became operative in the plaintiff’s favor as a statute security: although it be not averred that the officer approved the security, nor that the discharge was granted, nor that the vessel was released from the custody of the sheriff The acceptance of the bond by the officer would import that he approved of the security.
    3. And, if the warrant was not in fact discharged, nor the vessel released, the defendant must set up such facts as a defence.
    4. But, where the complaint does not aver that the bond was delivered to the officer, nor that he approved of the security, nor that an order for the discharge of the warrant was granted, nor that the vessel has been released from custody, such complaint cannot be sustained upon the bond, regarded merely as a statutory security.

      6. But such a bond is, nevertheless, a valid security, and not a merely voluntary obligation; the seals import consideration; and the condition being the payment to the plaintiff of the claims, etc., exhibited, -which should be established to have been subsisting liens upon the vessel, and a breach of the condition being alleged, the complaint is sufficient, notwithstanding it does not show the full compliance with the statute.
    (At Special Term.
    Before Woodruff, J.)
    June 18th, 1858.
    Demurrer to complaint. The action is brought upon a bond given by the defendants to procure the discharge of a vessel from an attachment, issued under title 8, of chapter 8, of part 3, of the Revised Statutes. (2 R. S. 493.)
    That statute, after providing the claims for which a ship or vessel may be attached, (the same being liens on the ship or vessel ;) the facts to be stated in an application therefor; the officer to whom application shall be made; the warrant to be issued by such officer; the duty of the sheriff in executing the warrant; the exhibition of other claims, if any there be; arid the proceedings under the warrant of attachment—then provides that the owner, etc., may apply to such officer for a discharge of the warrant; and, by § 13, he “ shall execute and deliver to the officer ... a bond to the creditors, ... in a penalty, etc. . . . with such security as shall be approved by such officer, conditioned that the obligors therein will pay the amount of all such claims and demands as shall have been exhibited, which shall be established to have been subsisting liens on such vessel ... at the time of exhibiting the same respectively.”
    And, by § 14, “upon such bond being executed and delivered, the said officer shall thereupon grant his order, discharging the warrant that may have been issued by him.”
    By § 16. “ In the suit upon such bond, the attaching creditors, respectively, shall state, in their declaration, their respective demands, alleging the work to have been done, or the materials or articles furnished, or the expenses incurred at the request of the master, owner, agent, or consignee of such vessel, as the case really was, averring that the claim therefor was a subsisting lien on such vessel, at the time of the exhibition thereof; . . . and shall assign as a breach of the condition of such bond, the nonpayment of the claim of such creditor.”

      The supposed defects in the complaint herein, are stated in the Opinion of the Court.
    The defendants demurred, upon the ground that the facts stated therein were not sufficient to constitute a cause of action; and the particular grounds relied upon are also stated in the Opinion.

      Stewart Bitch and Woodford, for the plaintiff.

      Wm. A. Harderibrooh, for the defendants.
   Woodruff, J.

The action is brought upon a bond given in order to procure the discharge of a vessel which was attached-under, and in pursuance of title 8, of chapter 8, of part 3 of the. R. S. The complaint states all the facts requisite to show the exigency under which, by the provisions of the statute, a bond to procure such discharge was proper. It then avers an application by the owners for an order to discharge the vessel, and that “ thereupon, and in consideration thereof, and for the purpose of procuring said discharge, the defendants did, under seal, and in pursuance of the provisions of the statute above mentioned, make, execute, and deliver to the attaching creditor, the bond set forth in the complaint.

The bond is in due form, and the breach of the condition is sufficiently alleged. It has not been objected before me, on the argument of the demurrer, that in any of the above particulars, the complaint is defective.

It is claimed, however, that the complaint does not aver that the bond was approved by the officer to whom the application for the discharge was made, nor that it was delivered to, or accepted by him, nor that any discharge of the vessel was granted by the officer, or was procured upon, or by reason of the execution of the bond.

The statute requires (§ 13) that the bond, for the execution of which the statute provides, shall be delivered to the officer to whom the application was made, and that it shall be executed by the applicant for the discharge of the vessel, with such security as shall be approved by such officer. And by § 14, “ upon such bond being executed and delivered,” it is made the unqualified duty of the officer to discharge the warrant. If the complaint had averred that the bond had been executed and delivered to the officer, in such wise that it became his duty to grant a discharge of the warrant, I should think that sufficient. It might, I think, for all the purposes, both of pleading and proof, be assumed that the officer did his duty, and if his subsequent refusal constituted any defence to the action, such refusal, and the continued detention of the vessel might be set up by the defendant as an answer to the action. And had the averment been, that the bond' was delivered to the officer, I think, also, that it would not be going too far to say, that as that word is used in the statute, it would import that he received it as a sufficient bond.

But in this complaint there is no averment that the bond was delivered to the officer; that he ever saw it; that he approved of the security; that the steps were taken by the owners upon which it became the duty of the officer to discharge the warrant; that such warrant has been discharged, or that the vessel has ever been released from custody, or that the defendants ever obtained the benefit contemplated by the execution of the bond.

If, therefore, this complaint cannot be sustained without showing that the statute has been complied with, the demurrer must be sustained.

But I think that the complaint may be, and must be, sustained upon another ground. There is no sufficient objection to the bond, as a voluntary undertaking under seal by the obligors to pay to the obligees “ the claims and demands exhibited, which should be established to have been subsisting liens upon the vessel.” Such payment is made the condition of the bond. The seals to the bond import consideration, and of course consideration enough to sustain the bond as a valid, binding security to the plaintiff. The statement in the complaint of the occasion of the execution of the bond does not affect the sufficiency of the consideration thus implied in the sealing and delivery, although that statement shows the motive and object for which it was executed and delivered. Prima facie, the bond is valid and binding. If, in truth, after it was received by the plaintiff, the purpose and object of the bond was defeated, and the vessel was still detained, that must (if it be any defence) be set up by the defendant.

I think the demurrer to the complaint should be overruled, but with leave to the defendant to withdraw the demurrer, and answer the complaint within ten days, upon the usual terms. Ordered accordingly.


author: Opinion of the Court by Woodruff, J.

text:
    Edward P. Fry, (Respondent,) v. James Gordon Bennett, (Appellant.)
    What questions maybe reviewed on appeal from a judgment: Whether the Court have power to extend the time to appeal: How far a notice of appeal may be amended:
    Effect of arguing, on appeal from a judgment, points which can . only be properly considered on appeal from an order denying a new trial.
    Heard in Special Term before Woodruff, J.
    Heard in General Term before Bosworth, Hoffman, Slosson,
    Woodruff, and Pierrepont, J. J. June 19;
    decided June 26,1858.
   Opinion of the Court by Woodruff, J.

See the points decided at Special and General Terms, in the index to this volume, under the title “ Practice—Appeal.”

And see the motions and appeals reported, at length, with the Opinions therein, in 16 How. Pr. R. 885-401.


text:
    The Same, (Respondent,) v. The Same, (Appellant.)
    That an actual written notice of an order or judgment, by act of the prevaling party served upon the adverse party, is necessary to limit the time for appealing.
    That knowledge, otherwise acquired by the adverse party, will not operate to limit his time to appeal, and other points arising on motion to dismiss appeal.
    (Before Bosworth, Hoffman, Slosson, Woodruff, and Pierrepont, J. J.)
    Heard June, 19;
    decided June 26,1858.
   Opinion of the Court by Woodruff, J.

See the points decided in the index to this volume under the title “ Practice—Appeal.”

And see the Motion and Opinion reported at length in 16 How. Pr. R. 402-406; 7 Abbott, 352.


text:
    David Ogden and others v. George Jones and another.
    1. When a lot of land was conveyed, in 1783, to P. by W, 28 feet in breadth in front and rear, by precise boundaries, but the grantor excepted and reserved to himself and his heirs and assigns, forever, one-half of the westerly wall erected or to be erected by P. or any other person holding or claiming under him on the westerly side of the premises adjoining the lot of W. and W. covenanted to pay half the expense of maintaining and supporting such wall; and P. erected a dwelling house on such lot, 28 feet in front, with a westerly wall 12 inches in thickness; and W. afterwards erected a dwelling house on his lot, using such westerly wall as a support therefor.

      Held, that the reservation in the deed in connection with the covenant of W. did not reserve to W. the fee in the ground on which the half of the wall was erected, nor any such property in the wall as entitled him to remove it, or to cut it away, or undermine it, or build upon it, but only the right to use it as a support for his adjoining building.
    2. Neither W. nor his grantee have any right to cut away the front of P.’s house and extend the front of the building on such adjoining lot, over the westerly line of the 28 feet, so as to present to the exterior view a front extending to the centre of such westerly wall.
    3. An injunction will be granted, in such case, to prevent a grantee of W.’s lot from interfering with such westerly wall, in any manner, except by using it as a support for the adjoining building.
    (At Special Term;
    Before "Woodruff J.)
    July, 1858.
    An application was made, in this case, by the plaintiffs for an injunction to restrain the defendants from cutting away a narrow strip of six inches in width from the front wall of the plaintiffs’ house, and extending from the ground to the top of the wall, and from extending the front of a store, in progress of erection, over and in the place of the six inches so cut away; so that the apparent width of the front of the plaintiffs’ building would be six inches less, and the apparent width of the front of the defendants’ building would be six inches greater than heretofore.
    On an order to show cause why an injunction should not be granted or continued, pendente lite, with a temporary restraint till the motion could be heard, the matter was brought to a hearing at Special Term.
    The material facts were these: In 1793, 'James Watson and James Greenleaf were each the owner of one-half of a lot of ground on the north side of State street, 28 feet in width in front and rear, and the said Watson owned a lot next westerly thereof, and the said Greenleaf owned a lot next easterly thereof.
    By several deeds the said Watson and Greenleaf conveyed the said lot of 28 feet to Daniel Penfield, describing it as beginning at the south-east comer of Watson’s lot, and running thence easterly along State street 28 feet, thence northerly 100 feet, thence westerly along Smede’s and Brown’s lot, 28 feet, to said James Watson’s lot, thence southerly along said Watson’s lot to the place of beginning, “ excepting and reserving to the said James Watson and Ms heirs and assigns, forever, one-half of the wall erected or to be erected by the said Daniel Penfield, or any other person holding or claiming under him on the westerly side of the premises adjoining the said James Watson! s lot,” together with, etc. And in the deed from Greenleaf was a similar reservation in his favor, in respect to the easterly wall.
    Watson and Greenleaf then covenanted for themselves and their heirs and assigns, each to pay one-half of the expense of keeping up and supporting said walls, respectively.
    The lot so conveyed to Daniel Penfield, (now No. 4 State street,) 28 feet in width, by sundry mesne conveyances has come to the plaintiffs in this action; and the lot of Watson adjoining, westerly thereof, (now No. 5 State street,) has come to the defendants.
    Penfield, at about the time of the conveyance to him, erected, a brick dwelling house on his lot, having a westerly wall 12 inches in thickness, and showing a full front on State street of 28 feet. Soon after a brick dwelling house was erected on Watson’s lot, for the support of which the westerly wall of Penfield’s house was used as and for its easterly wall.
    These dwelling houses have continued on such lots -until the present time, and now the defendants have taken down the dwelling house on their lot, (No. 5,) and are about erecting a large store-house thereon, and intend not only to use the said westerly wall of the Penfield house (belonging to the plaintiffs) as a support to their said store-house, but to build thereon, arid also intend to cut, and have begun to cut away the front, or six inches of the end of such westerly wall where the same forms part of the front on the street, and to extend the front or stone facing of their store-house over the line of the 28 feet to the centre line of the said westerly wall, so that the apparent front of their store will be six inches wider than the front of their dwelling hduse was, and the apparent front of the plaintiffs’ dwelling house will be reduced to the same extent.
    The injunction, sought to be continued, restrained the defendants from cutting away any part of the front of the plaintiffs’ dwelling house, or of the front end of such westerly wall, and from excavating beneath, or building upon such westerly wall of the plaintiffs’ house.

      Charles Jones, for the plaintiffs.

      Daniel Lord, for the defendants.
   Woodruff, J.

The whole of the lot No. 4 State street, 28 feet in front and rear, was conveyed to Daniel Penfield, by Watson and Greenleaf, and afterwards by Jas. T. Watson, to Jonathan Ogden, under whom the plaintiffs hold the same.

The reservation in the deed from Watson and Greenleaf to Penfield ; the covenant by Watson and Greenleaf, and the subsequent reservation in the deed to Jonathan Ogden, show, 1st. That Penfield was expected to erect, and did, in fact, erect the house upon the lot conveyed to him, covering the whole 28 feet.

2d. That Watson intended to reserve and have a right of property in half of the wall which Penfield should erect—not for the purpose of removal, as of his own absolute property, but to be used and enjoyed where it stood, (and just as Penfield or his grantees should build, keep up, and sustain the same, and not otherwise,) as and for a protection and support to the house on the adjoining lot, No. 5.

3d. That it was intended. and expected, that Watson or his grantees should have a house adjoining, (on lot No. 5,) whose front should begin at the westerly termination of the 28 feet granted, but which should be connected with, and use the end wall as a protection and support thereto; and for that purpose, and for such use, the property in one half thereof, should be vested in Watson.

4th. The wall was not only to be built by Penfield, but was to be kept up, and sustained by him and his grantees, heirs, etc. Watson and his heirs and assigns were bound to pay one half of the expense of keeping up and sustaining the entire wall. But they had, by virtue of the reservation, no right to build, nor any right to interfere with the wall, save only to exercise the limited right which its devotion to the special purpose, above stated, secured to them—and save only to use and enjoy the wall in the manner above stated, he or they had no right to come over the exterior line of the 28 feet at all. They were neither bound nor at liberty even to repair, keep up, or sustain the wall, so long as Penfield and his heirs or assigns were ready and willing to do so. They were to pay him for doing this, to the extent of one half of the expense. If Penfield and his heirs or assigns neglected or refused, they might, doubtless, ex necessitate, perform the work, and seek indemnity; but this they would do, as one of their remedies, upon Penfield’s default, and not because it was a privilege conferred directly by the terms of the deed or the reservation.

5th. That absolute property in the half of the side-wall, in the sense which would entitle Watson to remove it, or any part of it, was not the intention of the parties, nor the true construction of the instruments, is apparent, not only from the fact, that it was a wall to be erected by Penfield, but also from the fact, that it was to be kept up and sustained by him, and his heirs and assigns, while Watson was to pay one half of the expense. And if the defendants are at liberty to insist upon their ownership, as importing any other rights than above indicated, it is obvious to observe, that if their rights, as owners, were to be strictly construed, then no part of the wall on the westerly side will appear on the face of the wall on the front—and no part of the wall on the front of the lot will appear on the face, or outer surface, of the side-wall. There is no more propriety in saying, that six inches in width on the face of the front is half of the end of the side-wall, than there would be in saying, that the like depth appearing on the outer surface of the side-wall is half of the end of the front wall. A diagonal from the corner drawn through the wall, leaving the face of both walls entire, is the strict line of division between them. On a narrow and technical construction of the strict right of property, this view of the line and limit of the reservation would be accurate. But in the view above taken of the practical uses and purposes for which the reservation was made, it is clear, I think, that the defendants have the use of the wall, so that it shall serve as a protection and support to their building, without so rigid a regard to the line last suggested.

But neither view of the subject gives them any right to cut away or remove the front surface for any purpose.

6th. Watson, and under him, the defendants, were to have and use the wall that Penfield and his assigns should build, and did build, and as he or they did build it, and not otherwise, and no other or different wall. They had no right, (so long as Pen-field and his assigns did erect, keep up, and maintain a wall on the westerly side of the lot conveyed to Penfield,) to build any wall, or any part of a wall on the premises conveyed, nor to enter on those premises for any such purpose. They were to take, have, and use the wall Penfield, etc. built, and that only. They cannot go upon, or over the line of the 28 feet, to build under nor over the wall he erected. Nor can they extend the front of their building upon or over any part of the lot granted to Pen-field. If the wall erected, and heretofore sustained, does not now fully satisfy the wishes of the parties, its alteration or extension is a proper subject for negotiation and mutual arrangement.

And finally, the construction above given to the deeds—the reservation and the covenants—is the construction given thereto by the immediate parties and their grantees. The actual erection of the houses in the manner above suggested, and the use and enjoyment thereof for over sixty years, with all the benefits and advantages to the plaintiffs, and their grantors, (if any there be,) in having the front of their house exhibit a width of 28 feet, ought to conclude the parties. Indeed, the very fact, that the defendants now assume to make their front wall extend over the place in contest, is an admission that they are seeking not to use or treat it as a side-wall of the adjoining house, (erected by another,) in which they have an ownership, but to make it a part of their own front wall, and so to exhibit it in external appearance.

The instruments, and the acts, and conduct of the parties under them, for over 60 years, show, I think, not only that the whole land was conveyed, and intended to be conveyed, but that the intent was, from the beginning, that Penfield and his assigns should have a front óf 28 feet, and a building of that width, subject only to a use of one half of the wall on the west side, (which he should erect, and he and his assigns should keep up and sustain,) as a protection and support to the house of Watson and his assigns, which they might erect adjoining, but not in any part upon or over the premises described in the deeds.

And Penfield having so erected his house, and the same having been used and enjoyed, as it now is, for more than 60 years, the front face of the wall in front, is to be protected from encroachment.

These views in like manner compel me to the conclusion that without the plaintiffs’ consent, the defendants have no right to build under nor upon the wall, nor to extend it towards the rear. As it was built, and has been kept up and sustained, they have a right to use it as a support to the house or store which they are now building.

The injunction heretofore granted, must, therefore, be continued.

Ordered accordingly.


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

text:
    David Banks, Receiver, etc. of the East River Bank, Respondent, v. Thomas Maher and John C. McCarty, impleaded with John P. Angevine, Thomas H. Simonson, and Horatio N. Gallup, Defendants and Appellants.
    1. When, pending an action, the whole interest of the plaintiff in the cause of action has been transferred to a third person, the Court, on the application of such third person, may allow him to be substituted as plaintiff.
    2. Although the original plaintiff sues as Receiver of a bank, and his appointment as Receiver is put in issue by the defendant’s answer, the Court, on a motion to substitute, as plaintiff, a person to whom the Receiver’s interest has been transferred, will not investigate and determine such issue, though required to do so by the defendants’ counsel. Such an issue can only be tried and determined on the trial of the action.
    3. Nor will the Court, as the general rule, on a motion made by the plaintiff, after a cause is at issue, and in the orderly course of proceeding, consider the objection, that the complaint does not state facts sufficient to constitute a cause of action.
    (Before Bosworth, Ch. J. Hoffman, Slosson, Woodruff, and Pierrepont, J. J.)
    Heard, October 23;
    decided, October 30, 1858.
    This case comes before the Court at General Term, on an appeal by the defendants, Maher and McCarty, from an order made by Mr. Justice Hoffman, on the 24th of September, 1858, substi-. tuting the “ East River Bank” as plaintiff in the action, instead of “ David Banks, Receiver, of the East River Bank.” The appellants are sued as second indorsers of a promissory note. The complaint alleges the making, indorsement, and delivery of the note to said bank, the appointment of David Banks as receiver of the bank, and that he, as such receiver, is the lawful owner and holder of the note, presentment of it at maturity for payment, its non-payment and protest, and due notice thereof to the indorsers. The answer of the appellants, by denying any knowledge or information sufficient to form a belief, puts at issue the allegations as to the appointment of Banks as receiver, and as to his being, as receiver, the lawful owner or holder of the note, and as to the presentment of the note for payment, and its protest for non-payment, and as to notice of non-payment, and protest to the indorsers. After the cause was at issue, on an affidavit that an order had been made, declaring the bank solvent, "and discharging the .receiver, and directing him to transfer to the bank all property held by him as such receiver, and that he had made such transfer, (which included the note in suit,) and that the bank “ is now the sole owner and holder of said note, and the real party in interest in the action,” the said receiver, and the bank, gave notice of a motion, for leave to substitute the East River Bank as plaintiff in this action, and to continue the same in the name of the East River Bank.”
    The motion was opposed on an affidavit, stating that the appointment and title of the receiver were put at issue, and the belief of the appellant’s counsel, that the appointment was void; and that such motion was made to get rid of that objection. Such, counsel offered to read, in opposition to the motion, the application for the appointment of such receiver, for the purpose of showing, (as he alleged,) that the Justice who made the appointment, had no jurisdiction; which offer was overruled. The motion to substitute was granted, and from that order, the defendants, Maher and McCarty appealed to the General Term.

      T. James Glover, for defendants and appellants.

      E. E. Anderson, for respondents.
   By the Court. Bosworth, Ch. J.

The papers on which the order appealed from was made, show that all the interest of David Banks, as Receiver of the East River Bank, in the note in suit, has been transferred, and the note delivered to said bank, and that said bank is the real party in interest in this action. These facts are not controverted, nor is there any attempt, in any of the papers, to controvert either of these facts. Section 121 of the Code confers power, on such a state of facts, to make the order in question.

On the motion for the order, the Justice before whom it was heard declined to investigate the validity of the receiver’s appointment, and refused to look at the application for his appointment with a view to pass upon the question, whether the officer to whom it was addressed and presented, acquired jurisdiction to appoint a receiver.

We think his refusal furnishes no reason for reversing the order appealed from. Had he pursued the course urged by the appellant’s counsel, and determined the questions which he was urged to consider and determine, the plaintiff would, or might have been deprived of a trial of the issues made by the pleadings, by a court and jury.

The action is one for the recovery of money; the issues joined in it are issues of fact, and must be tried by a jury: § 253. They must be tried in open court, after the action has been duly noticed and placed on the calendar.

On such a trial, the question of the validity of the receiver’s appointment, and of his title, may, it is true, be a pure question of law; but the plaintiff’s right to have it determined on the trial of the action, is as clear and absolute, as if the question were one of fact, and to be determined by the jury alone.

The objection, now urged, that the complaint does not state facts sufficient to constitute a cause of action, even if a plausible one, cannot be taken as an answer to every motion that the plaintiff may make, in the orderly course of proceeding, after the action is at issue on issues of fact. It is no answer to a motion for a commission, or to an application for a discovery, or to any of the ordinary motions made in the progress of a trial. It may be taken at the trial, and perhaps on an appeal from the judgment, though not taken at the trial.

But it is quite clear, that after the action is at issue on issues of fact, the defendant cannot, on motion, obtain an order at Chambers or Special Term, dismissing the complaint, on the ground of such a defect in the "complaint.

We think it would have been improper for the Judge, who heard the motion, to have tried and passed upon the question of the receiver's title. . The appellants suffer no prejudice by his refusal to do so. The issues made by the pleadings are unchanged. The appellants, if no order had been made, would have been compelled to try the same issues that they must now try. Ho objection is made, that the substituted plaintiffs are not abundantly responsible for any costs the defendants may recover.

As we understand the argument of the appellants’ counsel, he does not consider their grounds of defence impaired or affected by the order appealed from, if no change shall be made hereafter in the issues to be tried; but he is apprehensive that they may be prejudiced by some inequitable order affecting the issues that may be made hereafter.

We cannot reverse an order, proper in itself, from any such apprehension. It was a matter in the discretion of the Judge, whether he would make the order or not.

Treating the order as appealable, the views already stated are sufficient to dispose of all objections that have been urged against it. If not appealable—a point on which we do not deem it necessary to express an opinion—neither the appellants, who insist that it is appealable, nor the respondents, who insist that it is not, can be prejudiced by the affirmance of the order, instead of a dismissal of the appeal.

The order must be affirmed, with $10 costs.