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

text:
    William F. Drake et al. plaintiffs and respondents, vs. Stephen H. Thayer et al. defendants and appellants.
    1. Where the “claim”-of the plaintiffs purported to consist solely of money advanced generally to one of the defendants, and not of certain fictitious sums alleged in the complaint to have been entered in the books of the plaintiffs, by such of the.defendants as had previously been their clerks; Held that no specification of the latter sums, or any thing relating to them could properly form any part of a bill of particulars of the claim of the plaintiffs.
    2. A statement of “ the nature, character and purpose ” of entries of moneys alleged never to have been advanced, cannot form any part of a bill of particulars of money actually advanced; and even if inserted in it, could not perform the office of one, either by limiting the generality of a complaint or indicating the particular entries -intended.
    3. Where the complaint has already shown the general nature, character and purposes of such entries, to order a repetition of the same matter in a bill of particulars would be useless.
    4. The objection, that however novel, out of place, irregular or unsupported by prior allegations, a requisition on the plaintiffs to discover all the contents of their books relating to certain entries therein, or their views of the nature, "character and purpose of such entries, contained in an order for a mere bill of particulars, may be, it must be enforced, unless appealed from, is purely technical, and must be treated as such.
    5. An order for a bill of particulars should not require the plaintiffs, besides giving the particulars of what they claim to be the false representations of the defendants, -which are the basis of the action, to state in a bill of particulars extrinsic facts not bearing on their nature, character or purpose.
    6. The office of a bill of particulars is merely to limit the generality of a complaint, and prevent a surprise on the trial; but not to furnish evidence.
    (Before Bobektsoií, Ch. X, and Gabviií and McCunif, JX)
    Heard October 7, 1867;
    decided March —, 1868.
    This was a motion for a re-argument of an appeal from an order made at special term, denying an application by the defendants for a further bill of particulars of the plaintiffs’ claim in this action which should show “the nature, character and purpose of items and amounts given in ” a previous “ bill of particulars as credited ” to one of the defendants, (J. H. Biglow.) Such motion was founded .on the appeal papers; the order of the general term affirming that appealed from; the opinion of the court delivered on the hearing of such appeal; and an affidavit of the attorney for the defendants, stating that such order “resulted from a palpable and vital misapprehension of the material facts before the court; and on which the same were predicated.”
    The action was one for damages caused to -the plaintiffs by being induced to pay-certain moneys to the defendant Biglow, by means of certain fraudulent entries in their account books to his credit, in their account therein with Mm made by the other defendants who were their clerks, employed and confided in to make true entries therein, and also by means of a fraudulent omission by them to make certain other entries therein to his debit; which ought to have been made. Which entries and omissions were claimed to have been made in pursuance of a fraudulent conspiracy entered into by some of such defendants, with the defendant Bigelow to defraud the plaintiffs, which was known to the rest of the defendants and concealed by them from the plaintiffs for the same purpose. By a reliance on which entries, and in consequence of which omissions, the plaintiffs were induced to pay such sums of money to the defendant Biglow.
    The complaint alleged the existence, in January, 1864, of a firm, consisting of one of the plaintiffs, (Albert Drake,) and one James Drake,, doing business in the city of Eew York as stock and specie brokers, who were employed by the defendant Biglow in numerous transactions in buying and selling stocks and gold coin for. him to a. large amount. That, sums earned by such firm for commissions on such transactions to a certain amount (¡$108.07) were omitted to be entered in the account of the defendant Biglow in the account books of such firm, by the other defendants, in pursuance of such conspiracy.
    The complaint further alleged that the plaintiffs, together with the said James Drake, in June, 1864, formed a limited partnership for dealing in stocks and gold coin, wherein they were general and he was the special partners. That four of the defendants (Thayer, Gferner, Quinn and Persiam) were in their employment as clerks in December, 1863, another (Walter) in their employ in May, 1864, and the sixth (Halsted) in January, 1865, and they so continued until May, 1865. That by reason of the extent of the business of such firm, the keeping of the books and accounts of such firm, and making of purchases and sales by such firms were entrusted to such defendants, so employed as clerks; great confidence was reposed in them; and the plaintiffs relied upon the accounts kept by them with the defendant Biglow in such books. That a few days previous to the 4th of May, 1865, it appeared by the account so kept by such defendants with him in their ledger, that the plaintiffs owed .him $10,000, which they paid him, believing that they owed him that sum ; when they did not. That in like manner, on such 4th of May, 1865, they paid him a certain balance appearing due on such books, ($1256.21,) and in like manner they had previously paid him other sums of money so charged.' At its fifteenth folio such complaint alleged that since May 4, 1865, Biglow was credited on the ledger.of the plaintiffs with various sums not paid by him to such firm, and with which he was not entitled to be credited, amounting, with the omitted sums, to over ten thousand dollars ($10,151.25.) It also alleged, in a subsequent part, that some of the defendants who were the clerks of the plaintiffs, with the aid of the others, made contracts in the name of the plaintiffs, as brokers, for the purchase and sale of stocks and gold 'coin, which they entered in some of the books of the latter, but not in their ledger, as made for Biglow, and paid for that so bought with the money or checks of the plaintiffs, and received the price of that so sold in their name, deposited it to their credit in a bank, and passed any profit on such transactions to the credit of Biglow. Such complaint demanded as relief the payment of $10,259.32, with interest from May 4, 1865, which sum of money the plaintiffs claimed to have been their damages by the acts of the defendants therein set forth. The summons gave notice of applying for the relief demanded in such complaint, and not of judgment for the sum claimed.
    Upon an affidavit of the attorney for the defendants, setting forth, among other things, that they were entitled to “ a copy of the plaintiffs’ account specifying the items and particulars of the plaintiffs’ claim in this action-, and showing the nature, character and purpose of the entries of the sums alleged infolio 15 of the complaint to have been credited to the defendant Biglow,” an order was granted to show cause “why the plaintiffs should not furnish the defendants’ attorney a copy of the plaintiffs’ account, specifying the items or particulars of the plaintiffs’ claim in this action as specified in ” such affidavit, or why the defendants should not have other relief. Upon such cause being shown, an order was made requiring the plaintiffs to deliver, within a certain time after service of such order,, (ten days,) “ a bill of particulars of their claim in this action, as specified in said order to show cause, specifying the items and particulars of said claim, giving the dates and amounts thereof, and showing the nature, character and purpose of the entries of. the sums alleged in folio 15 of the complaint.” Upon that order the plaintiffs served upon the defendants’ attorney three lists of items, with dates and amounts therein, verified by the oaths of such plaintiffs, that they contained the particulars of their claims. The heading of the first thereof was “ Bill of particulars of amount of commissions earned by the firm of I. M. Drake & Co. on purchases and sales of stocks, &c. for the account of L. H. Biglow, and omitted to be charged against him,’.’ of the second, “ Bill of particulars of amounts credited to L. H. Biglow on the books of Drake Brothers, but never in fact paid to said Drake Brothers,” and of the third, “ Bill .of particulars of amounts earned by the firm of Drake Brothers on purchases and sales of stocks, &c. for the account of L. H. Biglow, and omitted to be charged against him, including tax on sales not deducted from the amount of sales.” The-first contained eighteen items stated to be of gold or stock purchased, with the dates and amounts. The second, of seventy-two items of “ cash ” credited, with their dates and amounts; and the third, thirty-seven items of what is stated therein to be purchases and sales of gold coin and shares in a mining company. After the receipt of such lists, an order was made by one of the justices of this court, upon an affidavit of the attorney of the defendants of their insufficiency, requiring the plaintiffs within a certain time (five days) after service of a copy of it, to give a further bill of particulars of their claim, showing the nature, character and purpose of the items, given in “ the hill of particulars served,” as credited 11 to the defendant on the hooks of the plaintiffs’’ orto “ show cause on a certain day why the same should not be furnished.” Upon cause being shown on such order, the motion was denied, and from the order so denying it, an appeal was taken, upon which the same was affirmed, with costs.
    Four grounds were assigned for the denial of such motion at special term, by the justice who denied it, in an opinion delivered by him:
    1st. That the plaintiffs’ “claim” consisted solely of money advanced to the defendant Biglow, and not of the fictitious sums alleged in the complaint to have been entered in the books of the plaintiffs by those defendants who were their clerks.
    2d. That a statement of “ the nature, character and purpose ” of entries of moneys which were never advanced, could not form part of a bill of particulars of money advanced, and even if inserted in it, could not perform any part of the offices of one, either by limiting the generality of a complaint, or indicating the particular entries intended.
    3d. That the complaint had already shown the general nature, character and purposes of such entries, and to order a repetition of it in a bill of particulars would be useless.
    4. That the lists of items served identified the entries intended, with sufficient definiteness and certainty to enable the defendants to prepare to meet on the trial of the issues, the allegations in the complaint.
    The order appealed from, was affirmed mainly upon the grounds, that there was no objection made to the first and third parts of the bills of particulars, and that the nature and character of the items in the third part appeared by it and by the complaint.

      W. Howard Wait, for the appellants,

      J. 0. Garter, for the respondents.
   By the Court, Robertson, Ch. J.

The objection made in this case, on behalf of the defendants, that however novel, out of place, irregular, or unsupported by any prior allegations, a requisition on the plaintiffs to discover all the contents of their books relating to certain entries therein, or their views of the nature, character and purpose of such entries, contained in an order for a mere bill of particulars maybe, it must be enforced, unless appealed from, is purely technical and must be treated as such. Assuming such doctrine to be law, and that a court cannot refuse to enforce an order once made by it however frivolous, or however useless or impossible a compliance with it may bo, notwithstanding the maxim “lex non cogit ad vana aut impossibilia,” the defendants are not entitled to its benefit in this case. The first order for a bill of particulars not only, pursuant to the order on which it granted requires one to be furnished of the claim of the plaintiffs, but also as additional relief, that it should show the nature, character and purpose of certain entries in the ledger of the plaintiffs. The second abandons all further demand for the particulars of the claim of the plaintiffs or of any charges alleged to be omited from their books, and is confined to requiring that the nature, character and purpose of certain items in a bill of particulars rendered in consequence of the first order, and relating entirely to credits in such ledger to the defendant Biglow, should be shown in an additional “bill of particulars ” as it is called. The exigency of such second order of course cannot be extended beyond that of the first. Both are confined to entries and items of false representations, as they are claimed to be, and not to those of any actual transactions. Of course neither can require the plaintiffs, besides giving the particulars of what they claim to he false representations, which form the basis of their action, to state bill of particulars extrinsic facts bearing on their nature, in a character or purpose. The assumption, that the entries in the ledger of the plaintiffs, by which they allege themselves to have been deceived, must have been founded on prior entries in a day book or journal, specifying the details of some transactions, out of which the supposed credit given to the defendant Biglow in such ledger arose,_ is entirely unwarranted. There is no .evidence before us of even the existence of such books, much less of any entries in them; nor can any presumption be raised from the pleadings, that the plaintiffs know any thing more of the nature, character or purpose of such entries in their ledger, than they have given in their complaint and second part of their bill of particulars; and recourse must be had to some other proceeding than an order for a bill of particulars, in order to ascertain if they possess such knowledge, and compel them to disclose it. The office of such a supplemental statement as a bill of particulars, is merely to. limit the generality of a complaint, and prevent a surprise on the trial, but not to furnish evidence. I cannot understand the purpose of the entries in this case, (under the pleadings,) to be any thing else than a deception of the plaintiffs; their character to be other than a mere credit to the defendant Biglow, of a sum of money not due to him, without specifying.from what it arose; or their nature, to go beyond a mere entry in an account book of the plaintiff. The terms of the order are of the most general kind, and the plaintiffs have complied with it in the same way. If the defendants desire more precise details, they should have procured one more specific.

It is very true that the plaintiffs may be bound to prove on the trial, that they did not owe the defendant Biglow, the money they paid him, and which was credited to him on their books. But they are not bound to disclose how they mean to prove it, or with what transactions, or of¡ what nature, the false entries in their ledger are connected, if any such transactions are claimed by the defendants to have occurred, hi or will they be either entitled, or bound to elect on the trial whether they will treat any actual transactions as their own or Biglow’s-. The evidence introduced must alone determine whose it was, and whether its occurrence sustains the allegations of the complaint or not.

The distinction taken at special term by the court, between an action for the moneys falsely charged in the books of the plaintiffs, and one for money obtained on the faith of those charges, was therefore vital on the question of the nature of the plaintiffs’ claim, of which the defendants were entitled to the particulars, and it did not deserve the term “metaphysical,” sneeringly applied to it in the points for the defendants. Nor was the suggestion by the court, that the plaintiffs had already characterized in their complaint the entries in their books as false, and stated they were intended to deceive, and thus already given their general nature, character and purpose a “ subterfuge ” as it is indecorously called in such points. Nor have I been able to discover that the material facts before this court at general term, were palpably and vitally misapprehended by it. The motion for a re-argument must therefore be denied, with costs.


source: Caselaw Access Project

author:
      Jones, J.
      Barbour, J.

license: Public Domain

text:
    Clark B. Wheeler, plaintiff and appellant, vs. Elisha Ruckman, defendant and respondent.
    1. On the taxation of costs in the absence of positive evidence that a particular witness was not necessary, proof that at every trial he was actually sworn and examined, and the oath of the party that he was necessary, are sufficient prima facie to establish that he was so.
    2. If a witness attends, either by virtue of a subpoena, or upon a special request, a liability to pay his legal fees attaches, which, if he was necessary, will entitle the party for whom he attended to have their amount taxed in his bill.
    3. A statement in an affidavit, that a witness, “in pursuance of a subpoena for that purpose attended this court as a witness for the plaintiff,” in certain months designated therein, and “that the distance from his residence to “the place of trial by the usual route which he traveled for the purpose of attending this court as a witness as aforesaid ” was a certain number of miles; is to be construed as meaning that the witness attended in each of the months ■ specified, in pursuance of a separate subpoena for that occasion.
    4. The affidavit of a witness, that he attended in one month and year, when the cause was reached and partly tried; in another, when the cause was tried; in a third, when the cause was on the day calendar, although not reached; in a fourth, when the cause was reached, partly tried and then put off for the term on the adversay’s motion; in a fifth, when the cause was on the day calendar, although not reached; and in a sixth, when the cause was tried, is prima facie evidence to a taxing officer that the attendance of such witness in ■ each of the months named was necessary.

      6. When a witness lives at such a distance as not readily to admit of his return every day to his home, the charge for attendance fees is not necessarily to be limited to those days only when the cause is on the day calendar.
    6. The practice which has grown up in the city of New York among the profession and been tolerated by the court, not to subpoena witnesses until there is a reasonable expectation of the cause being reached for trial, merely requires a party to use reasonable diligence and judgment in ascertaining when a cause may be expected to be on the day calendar, and in having his witnesses in attendance when the cause is called for trial. Per Jones, J.
    7. When a cause is reached and postponed by order of the court, on the application of the defendant, the costs and disbursements of the term depend . wholly on the express disposition thereof, made in the order of postponement. If that is silent on the subject of costs, none are given or taxable.
    8. It seems a witness is entitled- to his fees for attendance on Saturdays and Sundays, when the" court does not sit, as well as for other days in the week, during the sitting of the court.
    9. Where the affidavit of a witness, after setting forth his residence, and that in pursuance of a subpoena for that purpose, he attended the court as a witness for the plaintiff, in divers specified months, alleged “ that the distance from his said residence to ” the place of trial “ by the usual route, and which he traveled for the purpose of attending this court as witness as aforesaid, is ” a certain number of miles; Held, that the only proper and reasonable construction which could be put upon such allegation, was, that the witness traveled only once from his residence to the place of trial, for the purpose of attending as a witness. »
    10. Held, also, that although for that once the plaintiff might otherwise have been allowed to charge travel fees, yet he could not when it appeared that for one of the terms he was not entitled to tax any costs or disbursements; and the affidavit did not show that the occasion on which the witness traveled was not, to attend at such term.
    11. In order to entitle a party to include in his costs, travel fees for witnesses, he must show by affirmative and clear evidence that he is entitled to them. It is not sufficient for that purpose to rely on affidavits, which do not definitely and clearly show his right, but leave it to the court to infer from them that upon some.strained construction in some possible event he may be entitled to tax some fees of that kind. Per Jokes, J.
    (Before Barbour, Garvin and'Jokes, JJ.)
    Heard December 10, 1866;
    decided October 21, 1867.
    Appeal from an order, made at a special term, denying a motion for re-adjustment of the plaintiff’s costs.

      O. P. Sahermerhorn, for the appellant..

      J. G. Dimmiek, for the respondent.
   Jones, J.

The taxation made by the clerk, as corrected by the order appealed from, (which corrections were in the appellant’s favor,) was affirmed on the argument in all respects, except as to the disallowance of the charges at folio 7 for witness fees, the correctness of which disallowance was the only matter reserved for consideration.

On such affirmance, at the argument, the court held, among other things, that there were two separate actions, the one commenced in 1855, which resulted in a dismissal of the complaint; the other commenced (after such dismissal) in December, 1857, or January, 1858, which resulted in a verdict for the plaintiff; that the costs and disbursements in the first suit could not be'taxed by the plaintiff as costs and disbursements.in the second suit, and that the plaintiff was not entitled to tax witness-fees for his own attendance as' a witness. This claim for witness fees, thus narrowed down, is for those of H. Hill Wheeler in the second suit, and is divisible into two parts ; one for the fees of daily attendance, the other for traveling fees.

There are several objections raised to the allowance of these fees. Some of the objections apply to both classes of the fees; others to the attendance fees alone, and others to traveling fees alone.

The objections will be considered in this order.

It is objected that the plaintiff cannot tax either of these classes of fees, because’ it does not appear that the witness was a necessary one. The plaintiff swears that the witness was a necessary one, and it appears that, at every trial, the witness was actually sworn and examined. This, in the absence of any thing tending to show that he was not necessary, is amply sufficient to establish that he was a necessary witness.

As to the attendance fees, it is objected that it does not appear that the plaintiff has paid or became liable to pay them.

If the witness attends, either by virtue of a subpoena or of a special request, a liability to pay his legal fees attaches. (Wheeler v. Lozee, 12 How. Pr. R. 446.) In this case the witness swears: That, in pursuance of a subpoena for that purpose, he attended this court, as a witness for the plaintiff, in the months of December, 1862, January, 1863, December, 1864, February, March and April, 1865. ■ That the distance from his residence to this city, by the usual route, which he traveled for the purpose of attending this court as a witness, as aforesaid, is 334 miles.” The affidavit might, it is true, have been couched in more explicit terms, but I am unable to perceive how any other construction can be put on it, but that he attended at each of the months specified in his affidavit, in pursuance of a separate subpoena for each month.

The criticism, that from the use of the word subpoena in the singular number, it follows that there was but one subpoena, is unsound, when the context of the affidavit is taken into consideration. If the criticism be sound, then we have a man swearing that, in pursuance of a subpoena for the month of December, 1862, he attended court in April, 1865, an absurdity so gross that its commission is incredible. Giving to the sentence the natural import, according to the rules of grammatical construction, which is that the word subpoena applies to each of the months, this absurdity is avoided.

But it is objected that it does not appear that his attendance was necessary at the various times at which he attended. He says he attended in the following months; in December, 1862, when the cause was reached and partly tried. He. again says he attended in January, 1863. That month the cause was tried; in December, 1864, when the cause was on the day calendar, although hot reached; in February, 1865, when the cause was reached, partly tried, and put off for the term on the defendant’s motion; in March, 1865, when the cause was on the day calendar, although not reached; in April, 1865, when the cause was tried. These are all the months in which he says he attended ; arid it is manifest that his attendance in each of these months was necessary.

But it is again objected, that it does not appear that it was necessary to have his attendance at the several terms for the number of days charged for, because it does not appear, that the cause was on the ■ day calendar for all those days.

The affidavits show, that in December, 1864, the cause was on the day' calendar, on ten different days, and in March, 1865, on the day calendar for the like number of days.

The witness swears,that he attended on all these days, except two, in March 1865; and he does not say he attended on any other days in those months.

With reference to several months, (December, 1862, January, 1863, February, 1865, and April, 1865,) the affidavits do not show that the cause was on the day calendar for the days for attendance on which fees are charged. I do not imagine, however, that when a witness lives at a distance, the charge for attendance fees is to be limited to days when the cause is actually on the day calendar. , That may be the case where the witness resides in the same place where the court sits, and can be subpoenaed on one day to attend the next, as is intimated in Ehle v. Bingham, (4 Hill, 595.) Even if this be the rule as to city witnesses, (a proposition which, notwithstanding the intimation in Ehle v. Bingham, I much doubt, although it is not now necessary to pass upon it,) still it cannot apply to the case of a witness residing at a distance. If it is to apply to such latter witness, then the court must hold that a party is-justified in delaying the subpoenaing of such witness until the day before that on which the cause is on the day calendar, since, until that day, he cannot, with any certainty, know on what day the cause will be on the day calendar; and, as a necessary consequence, it must be held, that if the cause is reached the first day it is on the day calendar, the party whose witness. he is to be, on showing that on the day previous he sent to subpoena the witness, but that he does not yet know whether.the witness has been subpoenaed or not, and, if he has been, that it will require several days for him to arrive at,the court house, is entitled to have the cause set down for a subsequent day or term ; and, on such subsequent day, upon showing that the witness had left his residence, and gone out of the state before he could be subpoenaed, he would be entitled to have the cause go off for the term. Such an excuse has never been considered sufficient ground for putting off a trial. On the contrary, it is held that a neglect to take steps to procure the attendance of a witness until so late an hour as to prevent his reaching the court in time, was such laches as to call for a denial of a motion for postponement; and such has been the constant practice of the courts.

In other parts of the state, where the whole calendar is called through every term, and the circuits do not generally last more than one or two weeks, and witnesses generally, reside at a distance, a party upon receiving or giving notice of trial, in order to use due diligence, is required to take immediate measures to subpoena his witnesses for the first day of the term, and to keep them in attendance until the cause is tried, or called and postponed.

In this city, owing to the number of causes on the general calendar, and the fact that a cause may, therefore, be on such calender from three to ten terms, (according to the court in which the cause is, although the delay is not now probably one quarter as great as it was five or six years ago,) a practice grew up among the profession, and was tolerated by the court, not to subpoena witnesses until there was a reasonable expectation of the cause being reached for trial. Under this practice the rule has become somewhat established in this city, that a party is required to use reasonable diligence and judgment to ascertain when the cause may be expected to be on the day calendar, and to have his witnesses in attendance when the cause is called for trial. This is substantially the rule laid down by this court, m Curtis v. Dutton, (4 Sandf. 719,) Judge Sandford giving the opinion, and all the other justices concurring. I am aware that the case of Vence v. Speir, decided in-this court; (18 How. Pr. 168,) holds the doctrine that witness fees for a ■ witness residing at a distance, can be taxed only for the days on which the cause is on the day calendar. The learned judge who gives the opinion in that case, supports his position, however, by no reasoning, and the authorities he cites, among them the case from 4th Sandf. are not in point. Even if his opinion was better sustained by authority, it is a special term decision, and not necessarily binding on a general term. As I cannot approve of it, I decline to follow it. Testing this cause by the rule, which according to my views before expressed is applicable to it, I think the plaintiff entitled to the fees-in question.

[The learned judge then analyzed the evidence as to the necessity and propriety of the" attendance of a witness at various terms of the court on divers days, and after holding that the plaintiff was entitled to charge for his attendance, proceeded.]

It is said there is a charge made for. Saturdays and Sundays ; but on examination I do not find any such charge; but even if there was, I am inclined to think that it would be correct both upon principle and 'authority. (Muscott v. Runge, 27 How. Pr. 85.) It is urged that the charge for attendance fees cannot be allowed, because the charge in the bill of costs is too general. I think the objection would have been good if it had befen taken before the taxing, officer, but it was not. The form of the objection taken was, that the affidavit of attendance was defective. The dis-allowance of these fees must consequently have been on this ground; as the affidavit is sufficient to the extent of $ 16.50, .that sum must be allowed. With" reference to the travel fees, it is objected that the affidavit does not show that the witness traveled from his residence to tlie court house, for the purpose of attendance as a witness, more than once, and that it does not show for which term he so traveled; therefore it may have been for the February term, 1865, and that consequently these fees cannot be taxed. The objection is sound. The witness, after setting forth in his affidavit his residence, and that in pursuance of a subpoena for that purpose, he attended this court as a witness for the plaintiff, in divers specified months, then says : “ That the distance from his'said residence to this city by the usual route, and which he traveled for the purpose of attending, this court as witness as aforesaid, is 334 miles.” The proper grammatical construction of this sentence is this. That the distance' from his said residence to this city, by the usual route, is 334 miles, which distance he traveled for the purpose of attending this court as" a witness as aforesaid. How, he does not in terms swear that he traveled more than 334 miles for the purpose of attending court. The fact that he attended at various terms, in pursuance of a subpoena, does not tend to show, that he came from his residence each time for such purpose, or that he was subpoenaed at his residence. Non constat but that although he attended in pursuance of a subpoena in each month, yet- that on all but one occasion he was in the city on other business, and was there subpoenaed. If there is any thing in the affidavit tending to show that the witness traveled more than once for the purpose of attendance, it must be the use of of the above words in italics, “ as aforesaid.” To what these words refer may be considered doubtful. They may simply refer to' so much of the previous statement which alleges that he attended as a witness “ for the plaintiff' in this- action,” or they may refer to his attendance at each ■of the months at'which he states he attended. But as the only number of miles which he in express terms states he traveled is 334, and as the fact of his having attended several times, by virtue of a subpoena, is not inconsistent with the fact that he traveled from his residence only once for the purpose of such attendance, it is more probable that the words “as aforesaid ” refer only to the capacity in which he ttonded, to wit, “ for the plaintiff in this action,” and not to the times .at which he attended. In the event of perjuries being assigned on this affidavit, that construction would be given to the language which would comport rather with innocence than guilt. An affidavit of such an evasive character as this, upon which, if it should afterwards appear that the witness had in fact made but one journey for the purpose of attending as a witness, it is, to say the least, doubtful whether perjury could be assigned, is totally insufficient to justify a taxation which would compel the opposite party to pay a large sum for the travel fees'of other alleged journeys. The only proper and reasonable construction to put on this affidavit therefore, is that the witness traveled but once -from his residence to this city for the purpose of attending as a witness. For this once the plaintiff might, perhaps, be allowed travel fees, were it not that it appears that for one of the terms, to- wit, February, 1865, the plaintiff is not entitled to tax any costs or disbursements ; and the affidavit does not show but that the occasion on which the witness traveled was to attend at such February term.

A party, to place himself in a position to tax for travel fees for witnesses, must show affirmatively and clearly that he is entitled to them. It will not do to draw his papers in such a way as, without definitely and clearly showing his right, to leave it to the court to draw from his statements the inference that in some possible event he may be entitled to tax some fees. I am, consequently, of opinion that the disallowance of witness’ travel fees was correct.

The insufficiency of the affidavits as to the travel fees, was called to the plaintiff’s attention before the taxing officer, and although it was then easy for him, if his claim was an honest one, to correct his affidavits and state specically where he subpoenaed the witness; on how many diffei-ent occasions he subpoenaed him; and the particular terms for attendance at which the witness traveled from his residence to this city, yet he refused so to do. He does not now stand in a position to have a further opportunity granted him'to make such correction.

Having come to the conclusion that the plaintiff is enti-, tied to tax $16.50 attendance fees, and it appearing that the clerk has made an arithmetical error against the plaintiff* of $104.94, the order appealed .from, should be modified ,so as to restore to the bill of costs, and allow the plaintiff the sum of $16.50, for attendance fees of witnesses, and to adjust the costs at $543.81, and it should be in all other respects affirmed.

The course pui-sued by the plaintiff’s attorney in this case has been such as to call for animadversion by the court. . He first started with making out a bill of costs so indefinite and confused as to be wholly at variance with the usual course pursued. Then when his attention is called to the fact that the defendant claimed there were two suits, and that he had included in the second suit, costs of the first, he refused to comply with the request of the taxing officers to make such a separation as would enable him, if he determined that there were two suits, to tell which of the charges were in the first suit. He then, when he moved for a re-taxation, made that, motion on affidavits stating matters which did not appear before the taxing officer. These various irregularities have imposed on this court more labor than was necessary in picking out of the mas§ of papers those portions which "were applicable to the points fo be discussed and considered.

The order appealed from should be modified in the manner above suggested, and in other respects affirmed, without costs to' either party.

G-abvih, J. concurred.

Barbour, J.

The affidavit" of H. Hill Wheeler states that he attended in,court in this action six several terms, to wit, in December, 1862; January, 1863; December, 1864; and February, March and April, 1865, traveling from his residence, a distance of 334 miles, each time, for that purpose, and that he was actually sworn and examined as a witness in December, 1862; January,. 1863; and April, 1865. The plaintiff’s own affidavit shows that the cause was on the daily trial calendar for each of the days in December, 1864, and March, 1865, upon which H. Hill Wheeler says he was in attendance as a witness; that such person was a very necessary, material, and important witness for him, and that the disbursements charged in the bill, were actually made or incurred. ' .

I see no reason why the plaintiff has not established by these affidavits, that the attendance • of this material and necessary witness, not only at the three terms when he was sworn and testified, but "during the two at which he was present while the cause was on the day calendar, was necessary and proper; and as the charges for those disbursements were separately and properly set forth in the hill of costs, it appears to me they should be allowed. But there is not sufficient evidence to prove that the cause was upon the day calendar for February, ■ 1865; or that the attendance of the witness at that term was necessary; and it follows that the charge of travel fees for that term was properly disallowed.

So, also, the taxing officer was quite right in refusing to allow the charge for disbursements to that and other witnesses for their daily attendance in court. For the bill does not state the number of days which each witness attended, nor does it even disclose the names of the witnesses. Indeed, with the exception above mentioned, I am unable, upon a very careful examination of the whole matter, to find that any item has been improperly disallowed by the order appealed from.

The clerk, however, seems to have committed an error of $104.94 in footing up and subtracting from the bill, the amount of the items disallowed by him. That amount, together with the sum of $133,60, being the disbursements for five journeys of the witness H. Hill Wheeler, should be added to the bill or settled by the order appealed from on readjustment, and such order should be modified accordingly.


author: Robertson, Ch. J.

text:
    Wm. Chalmers, plaintiff vs. James Wright et al. defendants.
    1. The title which a possessor of lands must claim in order to avoid the deed of an owner out of possession must arise, either from a written instrument, either professing, on its face, or agreeing, to convey some title or interest in the land in question, executed by some person holding adversely to such owner, who therein assumes to have the legal title so to convey, which is actually binding upon such person, or else from some judgment, decree or executed process of some court.
    2. At the time of the conveyance of certain premises to the plaintiff, the defendant claimed to hold them under proceedings for foreclosure; a sale to a third person, accompanied by an attornment of the occupants and tenants, to him; a deed from such third person, conveying the premises in fee to a fourth person; and a lease and deed from that person to the defendant in fee simple. Meld that such third person, by the sale to him and the attornment of the tenants, meyely took the place of the'mortgagee, unless the proceedings to foreclose were effectual; and that such sale and attornment did not cut off the right of the owner to convey.
    3. Attornments may be made to mortgagees, after a forfeiture of the mortgage, but only in such cases, or else .with the landlord’s consent, or pursuant to a judgment or decree.
    4. Mere possession by a mortgagee, so long as there is a right to redeem, is not adverse to the mortgagor’s rights.
    6. An absolute conveyance ih fee simple, by a mortgagee in possession, and a claim of title under it, though sufficient to bar an action, after twenty years holding under it, yet as it is also available merely to assign the mortgage to the grantee, and give him only the,same right of possession.as the mortgagee, it cannot be such a title, as to render void a deed from the owner out of possession to a third person.
    ■6. It is not necessary to rely on the affidavits filed, in a statutory foreclosure, as proof of the regularity of the steps taken for such foreclosure; since it may be supplied aliunde by other evidence.

      7. The statute (2 JR. S. 546, § 2, suhd. 3,) which requires copies of the notice of sale in foreclosure proceedings, in order to preclude persons having a subsequent lien, to be served on them either personally, “ by leaving the same at their dwelling house,” or by mailing it twenty-eight days before the time of sale, “ properly folded and directed to such persons at their respective places of residence,” does so in order to enable such notice to reach the parties interested ; and affidavits of such service should state, enough to show) by their mere inspection, and to enable the court to see and determine, that the proper measures were taken to accomplish that end.
    8. An affidavit of service of notice of sale on several persons, by mail, stating that on a day specified, the affiant served “ a copy of such notice on each.of ” the persons named, “ by depositing the same in the post office of the city of New York, properly folded and directed, to each of” such persons “at their respective places of residence in the said city of New York,” without specifying any place of residence, or mode of folding or directing, and that the affiant put a “proper postage stamp on each of said letters,” without otherwise mentioning its character, held to he insufficient proof of service by mailing under the statute, and therefore the proceedings to foreclose the right of redemption of the owner of the premises to be ineffectual for that purpose,
    (Before Robertson, Ch. J.
    at special term, February —, 1866.)
    This action was brought by the plaintiff claiming to be owner in fee of a piece of land in the city of. New York, in order to redeem it from a mortgage executed in 1856, .by the then owner of the land in fee, {Nislet,) to a Mr. McFarland. Such mortgage contained a power of sale, and became due in July, 1858. In October, 1859, a foreclosure of it was begun by advertisement, under which in January, 1860, it was sold by the mortgagee to a Mr. Simpson, to whom the tenants in possession forthwith attorned. In November, 1860, Simpson conveyed the premises to a Mr. Eassie, of whom in May, 1862, the defendant Wright became a yearly tenant, but Eassie conveyed the premises in fee to him by deed with warranty, in May, 1863, In December, 1860, the same premises were sold to a Mr. Bull under an execution against Nislet upon a judgment obtained in 1858, and conveyed to him in November, 1863. He in the same month conveyéd them subsequently to the plaintiff.
    The only evidence of such foreclosure produced on the trial, consisted of a copy of a notice, with four affidavits annexed, produced from the files of the' clerk of the county of New York. . Such notice was dated in October,' 1859, and signed with the name of the mortgagee, (McFarland.) It recited the mortgage to him, describing the premises therein, stated its date, its record in a certain book and page in the register’s office, with a power of sale contained in it, and the amount due upon it; and gave notice that such mortgaged premises would be sold at the Merchants’ Exchange in the city of New York, at noon on a certain day thereafter, in January, 1860. The first of such affidavits appended purports to be made by a person who states therein that he was “ foreman in the office of” a public newspaper printed and published in the city and county of New York, called The Shipping and Commercial List, in which the notice, of which a copy was annexed, was published for twelve weeks successively, once a week for each week, prior to the time specified in such notice for the sale of such premises, the first time on the 2d of November, 1859, and the last on the 18th of January, 1860. The second of such affidavits stated the place, time and- mode of sale and the name of the purchaser; and was made by the auctioneer 'conducting the sale. The jurat to the third of such affidavits was signed by a person styling himself u Not. Pub.” It contained proof of posting the notice of which a copy was annexed, “ in a proper and substantial manner ” on the outward door of the City Hall of the city of New York, being the building in.which the county court was held. It also stated that the affiant in December, 1859, served “ a copy of such notice on each of” certain persons named therein, including the present plaintiff, the mortgagor, (Nisbet,) and several other parties,” by depositing the same in the post office of the city of New York, properly folded and directed to each of “ such persons at their respective places of residence in the said city of New York.” No place of residence or mode of folding or directing was specified in such affidavit. It also stated that the affiant put a “ proper postage stamp on each of said letters,” but without otherwise mentioning its character. The last of such affidavits was merely the usual one of affixing a .copy of such notice in the proper book in the New York county clerk’s office, and entering therein the time of filing the same, signed by the then county clerk.

      J. Townshend, for the plaintiff.

      T. Darlington, for the defendants.
   Robertson, Ch. J.

The defendants take the ground in this case, preliminarily, that even if the mortgage in question were never foreclosed, the plaintiff is n.ot entitled to any relief, because at the time of the conveyance to hint from the purchaser at the sheriff’s sale under execution, (Bull,) the defendant "Wright had possession of the premises in question, claiming under a title adverse to that of the plaintiffs’ grantor, within the meaning of the statute against champerty. (1 R. S. 739, § 147.) It becomes, therefore, necessary to examine what the nature of the title and the claim under it must be, by which, under that statute, all conveyances by the rightful proprietor while he is out of '' possession, are rendered void.

The case of Crary v. Goodman, in the Court of Appeals in this state, (22 N. Y. Rep. 170,) has finally established the existence of a marked distinction between “title” claimed generally so as to start the running of the statute of limitations, (2 R. S. 294, § 9; Code, § 82,) and “ a title ” under which the possessor of lands must claim adversely in order to avoid deeds by the owner out of possession under the champerty act; and the reasons for such distinction therein assigned are'very satisfactory. Indeed in the former-statute the word title may now be considered simply as synonymous with right, but in the latter, as being a specific mode of acquiring it by deed, 'descent, operation of law, judgment or decree. •

The true nature of the title under which it is necessary for a possessor of lands to claim in order to defeat conveyanees by the owner-out of possession may best be illustrated by examining what has been rejected or'received as such. Thus, while conveyances of land, by a mere purchaser of it from one who occupied it without color of title,' to a grantee, who took possession -of it under such deed; (Jackson v. Elston, 12 John. 452;) an equitable title arising merely from a contract to convey, (Jackson v. Foster, 12 John. 488; Briggs v. Prosser, 14 Wend. 227;) sheriff’s deeds on execution against one claiming title by devise; (Northrop v. Wright, 7 Hill, 476, 488;) and unauthorised conveyances by a trustee; (Bradstreet v. Clarke, 12 Wend. 602, 674;) or by a committee of a lunatic, (he being a tenant in common with others "in his own right,) 'after the death of the lunatic-; (Clapp v. Bromagham, 9 Cowen, 530;) have been held sufficient to avoid conveyances by the true owners out of possession ; neither a deed not covering the land in question, (although claimed to do so;) (Crary v. Goodman, ubi supra; Jackson v. Loyd, pier Woodworth, J., 1 Cowen, 286; Enfield v. Cay, 7 N. H. Rep. 457; Hale v. Glidden, 10 id. 397; McKinney v. Kenny, 1 A. K. Marsh, 460;) nor a quit claim without a valuable consideration paid; (Jackson v. Frost, 5 Cowen, 346; Jackson v. Hill, 5 Wend. 532;) although no covenant be necessary; (Northrop v. Wright, ubi supra;) nor a deed from one who claims only an easement; (Jackson v. Mancius, 2 Wend. 357;) nor a defeasible agreement to convey; (Jackson v. Johnson, 5 Cowen, 74;) nor a conveyance void for fraud or want of authority in the attorney undertaking to execute it as such, (Livingston v. Peru Iron Co., 9 Wend. 512,) would be sufficient for that purpose,

These authorities, therefore, show that the title of a possessor of lands, in order to avoid the deed of. an owner out of possession, must arise either from a written instrument-professing on its face or agreeing, to convey some title or interest in the land in question, by some person holding adversely, who therein assumes to have the legal title to convey, and which is actually obligatory upon such person, or else from a judgment, decree or executed process of some court. In this case the defendant Wright claimed to hold, at the time of the conveyance to the plaintiff, the premises in question only under the proceedings for foreclosure; the sale to Simpson, accompanied by the attornment of the tenants to him; a deed, with full covenants, conveying a fee simple to Eassie ; the lease of the latter to such defendant; and subsequent deed to him in fee simple. Simpson, -by the sale to Mm and the attornment of the tenants, merely, took the place of the mortgagee. Unless a proceeding to foreclose be effectual, attornments to persons entering without title cannot commence an adverse possession. (Jackson v. Delancey, 13 John. 537.) Attornments by tenants, while holding under their leases, can neither originate nor continue an adverse possession against their landlords; (Corning & Winslow v. Troy Iron Factory, 34 Barb. 485; S. C. 22 How. Pr. 217;) nor can tenants acquire any adverse possession against their landlords, until twenty years after their lease is ended, or they have ceased to pay rent. (2 R. S. 294, § 13. Code, § 86.) Attornments may be made to mortgagees, after a forfeiture of the mortgage, (1 R. S. 744, § 3;) but only in such a case, or with the original landlord’s consent, pursuant to a judgment or decree. (Id.) Mere possession by a mortgagee, so long as there is a right to redeem, is not adverse to the mortgagor’s rights. (Borst v. Boyd, 3 Sandf. Ch. 501.) The sale and attornment to Simpson did not, therefore, cut off the right of the owner to convey.

The sale by the sheriff to Bull did not come within the statute, being by legal proceedings, (Tuttle v. Jackson, 6 Wend. 213; Hoyt v. Thompson, 5 N. Y. Rep. 320;) and that the latter might have initiated proceedings to redeem. The only question that remains is whether the conveyances by the defendant Wright, to Eassie, by a mortgagee iú possession, and the possession by the latter, constituted a .title adverse to that of the. plaintiff at the time of the conveyances to him by Bull. Notwithstanding the regret expressed by.Lord Ch. J. Hale, in Roscarrick v. Barton, (1 Cha. Ca. 220,) thereat, a mortgagee*™ possession is but the bailiff of the mortgagor, an d can do no more than a bailiff or steward. His possession is that of the mortgagor; and therefore he can acquire no title wherewith to commence an adverse possession. (Pleak v. Chambers, 7 B. Monro, 565. Nicholls v. Reynolds, 1 Ang. 30.) Every advantage obtained by him while in such possession is for the benefit of the. mortgagor. (Holridge v. Gillespie, 2 John. Ch. 30. Slee v. Manhattan Co., 1 Paige, 48.) A -fine levied by him does not bar the mortgagor, because the estates of the latter and the conusor of the fine are the same, (Kennedy v. Daly, 1 Sch. & Lef. 380;) nor does'one levied by his grantee. (Story v. Windsor, 2 Atk. 631.) Where a mortgagee in possession was disseised, and his disseisor levied a fine with proclamations, it was held tha^ the mortgagor was not barred," until five years after tender by him to the mortgagee of the amount due, because he could not enter until then. (Stowell v. Lord Zouche, Plow. 373. 2 Bac. Abr. 532. Shep. Pr. Conv. 74, 79.) And in no ease can a party having possession, which is consistent with another’s right, render such possession adverse, except by some notorious act, which ma/lbe supposed to have reached the knowledge of the owner out of possession. (Sharpe v. Kelley, 5 Denio, 431.) An absolute conveyance in fee simple by a mortgagee in possession, and a claim of title under it, may be sufficient to bar an action, after twenty years; but-as it is also available to assign the mortgage to the grantee, and give him the same right of possession as the mortgagee, it cannot be such a title, as to prevent the owner out of possession from conveying to a third person.

The plaintiff, therefore, being entitled to redeem the premises, unless the mortgage was properly foreclosed, it becomes necessary to’ consider the proof before me of the steps taken for the purpose. It was not necessary to rely on the affidavits filed, as proof of such steps having been properly taken, since it may be derived aliunde from evidence. But in this case the only evidence offered consisted of such affidavits; in which the affiants take upon themselves to decide that the statute was complied with in some particulars, and not to leave it to a court to pass upon it. The statute; (2 B. S..546,) requires, (by'the third subdivision of its second section,) that copies of the notice of sale, in order to preclude persons having a subsequent lien, be served on them, in one of three ways; personally, or by leaving the same at their dwelling house, or by tnailing it, twenty-eight days before the time of sale, “properly folded, and directed to such persons, at their respective places of residence.” This is required to insure the delivery of such notice to the parties interested, and the affidavits should state enough to enable the court to see and determine that proper measures were taken to accomplish that end. It is not the province of every one who may deposit such notices in the post o,ffice to determine that it has been properly done, and it would be impossible for the party supposed to be notified to disprove it, after the death of the person depositing such notices. It'has been held that proper service, by mail, under the Code, of a notice, is by sending a letter by mail, containing the required information, properly addressed. ( Vassar v. Camp, 14 Barb. 341.) As the statute, as to foreclosing mortgages, requires the notice itself to be folded and directed, it has been held that the direction must be on the notice itself; if the envelope is unsealed, a direction on the latter is not - sufficient. (9 Abb. 66, n.) "What the person who made the deposit in the post office understopd by properly folding and directing, does not appear. He may not have complied with the statute at all. I think, therefore, the evidence of proper service by mailing was defective, and the proceedings to foreclose the plaintiff’s right of redemption were ineffectual for that purpose.

The defendant, by the conveyance to him became assignee of the mortgage, and succeeded to all the rights of the mortgagee. He is to be allowed for all necessary repairs put upon the premises by himself or prior owners of the mortgage, (Moore v. Cable, 1 John. Ch. 385;) also for permanent improvements, put upon the premises without actual notice of the judgment and sale under which the plaintiff claims, (Benedict v. Gilman, 4 Paige, 58,) and in accounting for the rents .and profits, he is not to be charged with any part of them, which arose from such improvements made without such notice. (Bell v. Mayor, &c. of New York, 10 Paige, 49.) There must be a reference, therefore, to take the account between the parties.

Ho tender was necessary, as the plaintiff does not claim that the lien of the mortgage was dicharged. As the defendants claimed under an adverse title, they are not entitled to any costs, (Vroom v. Ditmas, 4 Paige, 526;) nor is the plaintiff, who comes into court for a favor. (Brockway v. Wells, 1 Paige, 617. Benedict v. Gilman, 4 id. 58.) The judgment must be without costs.