text:
    GILBERT G. YOUNG, Plaintiff and Respondent, v. THE PACIFIC MUTUAL INSURANCE COMPANY, Defendant and Appellant.
    In an action upon a marine policy to recover as for an actual total loss, the insured must establish the physical extinction of the property insured or the extinction of its value, arising from the perils insured against. Total loss of value to the owner is equivalent to a total physical loss (Wallenstein®. Columbia Ins. Co., 44 2V". 7. 204).
    The evidence in this case falls wholly short of establishing a total loss, for the reason that the insured neglected or failed to prove that the portion of the property insured, that reached the port of destination was of no mercantile value at the time of its arrival.
    The party insured having proved the sound and valuable condition of the property at time of shipment, and its subsequent bad condition, raises the presumption that it was injured by the perils it had passed through, and it was incumbent with the insurers to rebut that presumption, by showing that the"property was not injured by any of the causes or perils insured against.
    In this case the insured failed to do this, but the plaintiff also failed to prove that the property injured was" of no mercantile value, after its arrival, and having sued for a total loss, should not recover because of this failure of proof on his part.
    Before Monell, Freedman and Curtis, JJ.

      Decided March 30, 1872.
    Appeal from a judgment and order.
    The action was upon a policy of marine insurance to recover, as for a total loss, the value of seventy casks of ale, shipped on board the brig “Ballot Box” at the city of New.York, to be carried by sea to the port of Galveston, in the State of Texas. The subject insured was among the memorandum articles and insured “ free of partial loss.”

      The vessel proceeded on. her voyage, and on endeavoring to enter the harbor of Galveston, stranded, and subsequently became a total loss. Some of the casks containing the ale, about twenty-three, were got out of the vessel, and ten casks were tendered to the consignees, but were rejected, as the contents of the casks were alleged to be worthless.
    The answer of the defendants claimed that the loss was partial. That the casks of ale tendered were the same as those shipped and insured, and that the tender was made in specie, and the ale was in the same casks as when shipped, and were strong, sound, and in good order.
    It was undisputed that the vessel was lost by the peril of the' sea, on the night of ¡¡November 23, 1868. Some time in December following, some of the casks were got out of the hold and offered to the consignees. Previous to rescuing the ale, and within three days after the wreck, the vessel and cargo were sold, and the net proceeds remitted to the Board of Underwriters at the city of Hew York. At the sale, one Heidenheimer became the purchaser of the vessel and cargo as they were. Subsequently he succeeded in rescuing a part of the cargo, including the twenty-three casks of ale. The vessel was totally lost. A little more than a month after the stranding, one Sorley, acting under instructions from the defendants, purchased of Heidenheimer ten of the casks and tendered them to the consignees.
    The action was tried throughout, down to the close of all the evidence, upon the theory that the loss was partial, and that, to establish a right to recover, it was necessary to show an abandonment of, and an acceptance by the defendants, of the subject insured.
    A large amount of testimony had been taken on commission, and a further large amount of oral evidence was given at the trial, all of it designed to show that the defendants had accepted the abandonment. To prove this, it was endeavored to show, that one Hunt, residing at Galveston, was acting as the agent of the defendants, having been appointed by the Board of Underwriters’ resident agent at Galveston, to act for the several insurance companies who were parties to the appointment; and it was attempted to connect the defendants with such an appointment, to the extent of binding them by the' acts of Hunt. Under the order of Hunt, who acted under his appointment from the Board of Underwriters, the vessel and cargo was sold and the proceeds remitted.
    An objection appears to have been taken by the defendants at one time to the evidencé, on the ground that the issue, namely, partial loss and abandonment, was an immaterial issue, unless some portion of the subject insured, at least, existed in specie'. But no decision appears to have been made by the court, further than excluding some of the particular evidence objected to, on other grounds. Numerous objections were made by the defendants to portions of the evidence on other grounds, and numerous exceptions taken to the rulings of the court.
    At the close of the plaintiff’s evidence in chief, the defendants moved to dismiss the complaint on the following grounds:
    The contract is free from partial loss. The plaintiff has failed to show total loss, but claims to have abandoned the property to E. P. Hunt, and that he accepted the abandonment.
    There is no evidence to show that Hunt was the agent of the defendant, or had any authority to accept an abandonment; but, on the contrary, the evidence of the plaintiff shows that Hunt was agent of a voluntary association of gentlemen calling themselves the Board of Underwriters.
    At the time of Hunt’s appointment, it was proved by the plaintiff’s witnesses that the defendant was not in existence, not having been incorporated.
    There is no evidence that the defendant ever appointed Hunt their agent for any purpose, or that he ever acted for them.
    The authority delegated to Hunt forbade any acceptance of an abandonment. The Board of Underwriters had no authority either to insure, issue policies of insurance, or accept abandonments. Therefore, they could not delegate such authority to any one else.
    The ale was warranted, by the terms of the policy, “free from damage or injury from dampness, change of flavor, or being spotted, discolored, musty or mouldy, except caused by actual contact of sea water with the articles damaged, occasioned by sea perils.”
    The plaintiff has failed to show any contact of the ale with sea water.
    Ho abandonment of this property was ever made to the defendant, nor accepted by it.
    The plaintiff has failed to .prove facts sufficient to constitute a cause of action.
    The motion for nonsuit was denied, and exception duly taken by- defendant’s counsel.
    The plaintiff gave some evidence tending to show that the ale, when shipped, was good ale, heavy stock ale, suitably put up in proper casks, and was altogether in good- condition ; and then gavs further evidence that when taken from the wreck it was spoiled.
    Under the warranty by the insured, contained in the policy, that the subject should be free from damage “from dampness, change of flavor, or being spotted, discolored, musty or mouldy, except caused by actual contact of sea water,” the defendants gave evidence tending to show that the casks, when taken from the wreck, were sound, tight and in good condition.
    The' plaintiff, relying upon the sufficiency of his proof of abandonment as for a total loss, and its acceptanee by the defendants, called no witness to prove the condition of the ale when rescued from the wreck. He read a deposition of a Mr. Lee, which had been taken conditionally on behalf of the defendants, who testified, that he saw some of the ale at Mr. Heidenheimer’s, but long after—more than a month after it had been taken from the vessel. He described it as being at that time a very inferior article, sour, like the settlings of the vats the brewers keep their ale in. He saw only three casks. Thought it was not of much value. Didn’t see anything it could be used for; might be used by a vinegar maker. Thought it could not be sold in the condition it was in. It was not merchantable at all. This was substantially all the evidence of the condition of the ale on the .part of the plaintiff. Sorley, a witness fox the defendant, and who made the purchase of the ten casks tendered to the consignees, examined the ale a month after it was taken from the vessel. He says it tasted sour; was milky,' looking thick, opaque, not clear, as ale is generally. Had a somewhat disagreeable taste or odor, besides being sour to the taste—not the sourness of vinegar, nor of old ale. It was very sour, and emitted an unpleasant odor.
    Lozier, another of defendant’s witnesses, examined the ale on January 8 and 10, 1869. He says its condition was very bad. If it was ale at all it was of very poor quality. It was very sour and disagreeable, and quite thick—not as sour as vinegar, but more sour than ordinary acid ale. It was not what is called tart ale, neither was it vinegar, but a mixture—a sour thick mixture—not fit for drinking purposes.
    Le Due, another of defendant’s witnesses, examined some of the ale about the same time as the other witnesses, and said the ale was bad, unmerchantable, sour, and of no value as ale.
    ■At the close of all the evidence the defendants renewed their motion to dismiss the complaint upon the following grounds:
    I. It being in evidence that the casks in which the ale in question arrived in Galveston were sound, tight, and in good condition, but that the ale had turned sour, the plaintiff has failed to show that the sea water ever came in contact with the ale in question, and produced the souring and loss ; or that the immersion of the ale in question did produce the souring and consequent loss of the ale ; or that such immersion did set in motion the internal tendencies which produced the souring ; and he has failed to show that the loss of the ale by souring was caused by any of the perils insured against.
    II. The plaintiff has failed to show that the perils insured against were the proximate cause of the loss.
    III. If the loss is not within the policy, the alleged abandonment to Hunt is worthless, and the plaintiff has no cause of action.
    IV. The plaintiff has failed to show any extinction of the ale, either physical or as to value, arising from the perils insured against.
    V. The plaintiff has failed to show that in consequence of the perils insured against, the articles insured could not have been brought from the place of the wreck to Galveston, so as to arrive in specie.

    VI. The plaintiff has failed to show any power in the master to make the alleged abandonment.
    VII. The plaintiff has failed to show that the person to whom he alleges the abandonment was made had power to accept the alleged abandonment.
    VIII. The plaintiff has failed to show any valid abandonment of the articles insured.
    . IX. The plaintiff has failed to show facts sufficient to constitute a cause of action.
    The motion was denied, and defendant’s counsel excepted.

      The defendants’ counsel requested the court to charge the jury the same propositions, substantially, as contained in their motions to dismiss the complaint, and other propositions relating to the question of abandonment, and also the following.
    The plaintiff has failed to show that the ale was damaged by actual contact with sea water; and the plaintiff has failed to show that it cost more to rescue and forward the ale than it brought at its destination.
    The rule that a loss of memorandum articles is total if it costs as much to rescue and forward them as they are worth at the port of destination, is not applicable to this case, because it is not shown that the deterioration, if any, is the result of a peril insured against, but that the true rule in this case would be .that to make the loss total, the cost of rescuing and forwarding it should equal the value of sound ale of the same quality at the port of destination.
    That losses originating in the internal qualities of articles insured are not within the policy, and that the souring of .the ale is not in itself a sea peril, and also that the souring of the ale is not included in the term “other perils,” specified in the policy.
    That the burden of proof is on the plaintiff, to show that the souring of the ale was caused by stranding, or other sea perils, or that such stranding or other sea perils set in motion the tendencies which produced that result, and that, in order to sustain the allegation of the complaint, that the loss was occasioned by perils of the sea, it must be shown that those perils were the proximate cause of the loss, which the plaintiff has failed to show.
    All of which requests were refused except so far as they were included in the charge.
    The court thereupon remarked, and held that there was no question of abandonment involved in the case, but that all the evidence tending to prove an abandonment of the ale to the underwriters must be laid out of view as irrelevant, and then charged the jury as follows.
    The following was the charge :—
    “ G-entlemen of the Jury: To entitle the plaintiff to. recover, you must be satisfied from the evidence that the ale was totally lost within the rules which I now state.
    “ The casks which were sunk with the vessel, and not recovered, must be considered as wholly lost.
    “Those goods which . were recovered from the wreck must be held to have been wholly lost, if they were in such a condition, caused by the perils insured against, as to be of no mercantile value.
    “ If you find that this ale jn question was totally lost within these rules, the plaintiff will be entitled to your verdict, provided you are satisfied from the evidence that the loss was the direct and immediate consequence of the wreck of the vessel, and was not the result of the defécts or inherent qualities of the ale itself.
    “But if you arrive at the conclusion, either that the goods were not totally lost, or that such loss was not directly occasioned by the wreck of the vessel, the defendant will be entitled to a verdict in its favor.”
    The defendants excepted generally to the refusal to charge as they had requested.
    The jury gave the plaintiff a verdict for the amount claimed.
    There was no exception to the charge.
    A motion was made for a new trial upon the judge’s minutes, which was denied.
    The defendants appealed from the judgment and order.

      Mr. John McDonald, and Mr. Townsend Scudder, for appellants.

      Mr. Erastus Cook, for respondent.
   By the Court.—Monell, J.

— The only questions, which in my judgment, it was proper to investigate on the trial of this action were:—First. Was the damage to the ale from any of the causes mentioned in the warranty; or was it caused by actual contact of sea water % Second. Was there a total loss of the subject insured ?

These questions were submitted to the jury, and they have answered them .favorably to the plaintiff.

Upon the first question the burthen, I think, rested upon the defendants of showing that the damage was from some inherent defects or qualities of the ale itself, and not from actual contact of sea water.'

The plaintiff having shown the sound condition of the ale at the time of shipment, it was incumbent on the defendants to rebut the presumption arising upon such proof, by showing that the ale was not injured by any of the causes insured against.

The defendants attempted this rebuttal, and the examination of. one or two experts, and of the several witnesses who- testified to the condition of the ale, a month or more after it was rescued from the wreck, was designed to furnish evidence upon which the jury could say, that the ale became sour, bad and unmerchantable, after it was taken from the hold of the vessel and brought on shore.

It was, therefore, a proper question for the jury. There was evidence on each side, and it would have been error to have taken the question from the jury. The first motion, therefore, to dismiss the complaint on the ground of the plaintiff’ s failure to show any contact of the ale with sea water was properly overruled; and as the other grounds of that motion related wholly to the question of abandonment, which was ultimately taken from the jury, they need not be examined.

Upon the second question, namely, was there a total loss of the subject insured, the defendants having shown, as I think they did show, that the casks when they came from the wreck and when offered to the consignees, were in sound condition, were full, without leakage, well hooped and in fine condition, the burthen then rested on the plaintiff to establish that the contents of the casks were of no mercantile value.

The only issues to which the evidence was intended to apply, were, the supposed actual abandonment, and' the warranty. The plaintiff, therefore, did not deem it necessary to do more than to furnish evidence in support of those issues. He, accordingly, called no witness to testify as to the condition of the ale, but read merely the evidence of one of the defendants’ witnesses, who had examined the ale, more than a month after it was taken from the vessel. Subsequently, however, depositions of other of defendants’ witnesses were read for the defense, and oral testimony given, in which the condition of the ale, one or Mo months after it came on shore, was described. But it is perfectly evident that all the evidence of the condition of the ale so furnished by the defendants, and which was the only evidence in the case on that subject, was offered to show, that the defects were inherent in the ale itself, and were not produced by sea water; and that neither party intended or supposed that such evidence would or could be used to establish a constructive total loss.

That the plaintiff had no such thought, is evident from the fact that he directed all his evidence to proving the abandonment, and procured none on any other issue in the case, doubtless being satisfied, that upon the warranty the burthen was upon the defendants. And it cannot be supposed that the defendants went into an investigation of the condition of the ale for any other purpose than to show that the damage was within the insured’s warranty.

At the close of the evidence, the learned justice decided that there was no question of abandonment involved in the case, and directed that all evidence tending to prove an abandonment should be laid out of view as irrelevant, and then left it to the jury to determine whether the ale was in a condition caused by the perils insured against as to be of no mercantile value.

One of the grounds of the motion to dismiss the complaint, and which was among the requests to charge, was that the plaintiff had failed to show any extinction of the ale, either physical or as to value, arising from the perils insured against.

It seems to me that this is a substantial ground of objection.

As we have seen, the burthen was upon the plaintiff to establish a total loss by showing an extinction of the subject insured ; or that, by reason of damage by perils of the sea, it was of no mercantile value. The rule, making total loss of value to the owner equivalent to a total physical loss, is now firmly established by the recent case of Wallenstein «. Columbia Ins. Co. (44 A. T. 204\ where my views in the same case (3 Bobt. 528; are sustained, although my judgment was reversed.

It was doubtless competent for the jury to look at any evidence which had been given on the trial, without regard to the party who had offered it, and also without regard to any specific purpose'for which it may have been offered ; and if it was found sufficient to support the verdict no error would be committed.

But I am satisfied, that taking all the evidence, and giving to it its broadest and most comprehensive effect, it falls wholly short of establishing a total loss, by failing to show that when the ale reached the port of destination it was of no mercantile value.

According to the evidence, the vessel was wrecked on November 23, and was, with her cargo, sold on the 28th of the same month to Heidenheimer, who succeeded in raising twenty-three casks from the hold, which he placed in a shed, on his premises, where they remained for about four weeks and until sold to Sorley.

There was no proof that any examination of the contents of the casks was made, until about and after the sale to Sorley, which was a month after the casks were landed ; and'those examinations were made with a view of discovering whether the ale had been injured by sea water, and for no other purpose.

Hunt and the captain, one or both, and it is not material which, had possibly, by the sale of the vessel and cargo, put it out of the power of the plaintiff to make an earlier examination into the condition of the contents of the casks, or, indeed, any examination whatever, at any time after the casks came on shore. But the defendants are not to be made responsible for the plaintiff’s being thus deprived of the power of inspecting the ale; nor can it excuse his furnishing such proof as was required to show a total loss of value at the time the ale was landed, unless the evidence was sufficient to make Hunt the agent of the defendant, either by original appointment, or subsequent ratification of his act.

We are, therefore, of the opinion that the evidence to establish a constructive total- loss was insufficient, and the motion to dismiss the complaint ought to have been granted.

Judgment and order reversed, and new trial granted,. with costs to the appellants to abide the event.


source: Caselaw Access Project

author: By the Court.—McCunn, J. Sedgwick, J. (concurring.)

license: Public Domain

text:
    NICHOLAS QUACKENBOS, Plaintiff and Appellant, v. ALEXANDER EDGAR, Defendant and Respondent.
    The breach of a contract by one contracting party gives to the party with whom he contracts a right of action, at law, for the recovery of damages, and such damages are the direct pecuniary loss resulting to the plaintiff from the breach of the agreement (Sedgw. on Bam. 206: 2 Pars, on Oon. 432).
    The fact that the premises, the repairs of which were the subject matter of the contract, were the property of another person than the one who contracted for the work and materials, the defect of, and the damages from which, was the cause of complaint, does not alter the above general rule. The question is, Has the plaintiff who contracted for the work suffered damage from the breach of the contract ? If so, he is entitled to recover.
    A tenant, or a stranger to any interest in the premises, may contract with another person for work and materials to be furnished, for repairs or improvements upon the realty, and suffer damage by a breach of the contract. It matters not that the landlord or the owner of the premises suffered damage also by the breach, and might recover therefor, for a party to the contract who has suffered damage by its breach can always recover the same. In such case he is the real party in interest to the extent of the damage he has suffered, and the question as to whether another party or parties has suóh an interest that they might also recover, although not a party to the contract, should not be considered so far as to affect the general question.
    Plaintiff occupied a house that was the- separate property of his wife, and undertook to repair the same and put it in order, and entered into a contract with a plumber for work and materials on the same, who violated his contract, and by the breach thereof the ceilings and other parts of the house were injured and destroyed, and the damage was repaired by the plaintiff at an expense of several hundred dollars, and he brought suit on the contract to recover damages for the breach of the contract.

      Meld, that he could recover.

      Before McCunn, Curtis and Sedgwick, JJ.

      Decided March 30, 1872.
    Case and exceptions sent to the general term for hearing in the first instance.
    The facts appear from the opinion of the court.

      D. M. Shaw, for plaintiff.

      Philip Malone, for defendant.
   By the Court.—McCunn, J.

The action is by-plaintiff to recover damages in consequence of the breach of a contract made by defendant with plaintiff to do plumbing work.

The defendant agreed to do the work and furnish materials for plaintiff, work to be done in a workmanlike manner. Plaintiff alleges that defendant did not perform his contract, but did the work unskillfully and negligently, to his, plaintiff’s damage offline hundred and thirty-three dollars.

The defendant’s answer admits the contract, but denies that the work was unskillfully performed, or that the plaintiff sustained damage. Defendant also alleges a counter-claim. To this counter-claim a reply was filed. It appeared ou the trial that material damage was done to the house in consequence of leakage from defective work-; that defendant had left a joint in an unfinished state on Saturday afternoon ; the water rose on that night and on Sunday the house was much injured. The house was owned by the wife of plaintiff, but the plaintiff had undertaken to put it in order, and made all the expenditure for that purpose.

On motion the court dismissed the complaint, on the ground that the action had been brought by the wrong party. We think this error.

Where a contract is made, and a breach of that contract takes place, and injury arises in consequence of that breach, the party sustaining the injury can offset that injury against any sum due on the contract. This is familiar learning (Sedgwick on Dam. 206). It would be absurd to compel a party to pay on the contract, and leave him to his remedy by separate suit for damages arising on that very contract. Prior to the Code, in actions for work and services, the employer could always recoup damages sustained through the negligent or unskillful manner of the work (Stell v. Hall, 20 Wend. 51, 52 ; Ives v. Van Epps, 22 Id. 155 ; Batterman v. Pierce, 3 Hill, 171, 175). And all breaches of contracts giving a claim for recoupment or a counter-claim constitute causes of action which the employer may enforce by action against the employee (Vassear v. Livingston, 13 N. Y. 252; Halsey v. Carter, 1 Duer, 667; Gillespie v. Torrance, 25 N. Y. 306; Seldek, J., pp. 309, 310, 311). In all cases where the. court nonsuits, the facts proven must be deemed established in favor of plaintiff. The plaintiff here established a breach of contract on the part of defendant, and in consequence he showed he had sustained pecuniary loss. This he was entitled to offset, and his not being allowed to do so was error. The judgment should therefore be reversed. It is of no consequence who owned the house.

Sedgwick, J. (concurring.)

I think there should be a new trial. The plaintiff made the case that the defendant had contracted to do for him, and furnish to him, work and materials, in and about certain plumbing, and had contracted that the work should be done in a sound and workmanlike manner. Proof was given tending to show that work had been done under the contract, but in an unskillful and unworkmanlike manner. Proof also was given to show that this breach of contract resulted in more than nominal damage to the plaintiff. The plaintiff, in giving his case, produced testimony that the work done by defendant was in a house occupied by plaintiff, but owned by his wife, and that the leaking from the plumbing work, done in this negligent and unworkmanlike manner, damaged the house in various respects, and that the plaintiff repaired these damages at a cost to him of certain amounts proved.

When the plaintiff rested, the defendant moved to dismiss the complaint on the. ground that the action had been brought by the wrong party, the title to the house being in the wife. This motion the court granted.

There was no testimony given to show that the plaintiff was under such a duty to anybody to repair the house, that the amounts paid by him for such re-' pairs may be considered in fact the measure of damages directly from the breach of the contract. That may depend upon circumstances, of which no evidence was given on the trial. As the case stood, he was not entitled to recover these amounts as damages. But there was evidence given of damage more than nominal, and the plaintiff had a right to take a verdict from the jury as to the amount of compensation he was entitled to.


author: By the Couut.—McCunn, J.

text:
    CHARLES C. WEHRUM, Plaintiff and Respondent, v. GEORGE KUHN, Defendant and Appellant.
    The rules governing courts in granting new trials considered and stated:

      First. In a case where evidence not material to the verdict was. improperly received, or material evidence rejected during the trial.

      Second. If the referee has misapplied the law, or adopted erroneous conclusions of law.

      Third. If the referee is pecuniarily or otherwise interested in the litigation.

      Fourth. Case of misconduct or mistake on the part of the successful party in the entry of judgment.

      Fifth. If the damages awarded be glaringly excessive or palpably insufficient."

      Sixth. In ease the verdict or report was obtained by surprise or manifestly against the weight of evidence.
    None of these causes can be taken advantage of in this case.
    The referee, upon a conflict of testimony, found a compromise settlement and accounting between the parties, wherein the defendant agreed to pay plaintiff two thousand dollars, and he found as a conclusion of law judgment for that sum, and Ms conclusions should not be disturbed.
    It is the sound policy of the law to permit parties to settle and adjust disputed facts between themselves.
    The compromise or settlement of even a doubtful claim, when procured without deceit (such deceit as would vitiate a contract), concludes the parties {Ohitty on Cont. p. 41 and notes; McGee ®. Badger, 30 Barb. 246; Hoge ®. Hoge, 1 Watts, 216; Bussell ®. Cook, 3 Sill, 504).
    Before McCunn, Curtis and Sedgwick, JJ.

      Decided March 30, 1872.
    Appeal from a judgment entered upon the report of a referee.
    The facts and points of the case appear in the opinion of the court.

      Warren G. Brown, for respondent.

      Banks & Perry, for appellant.
   By the Couut.—McCunn, J.

This was an action for money on an account stated. The complaint sets out three causes of action: 1. It sets forth a claim for wof6, labor and services. 2. It sets out a claim for one-third of the of defendant’s as per agreement. 3. It sets forth a claim for borrowed money ; and the fourth and last clause of the complaint alleges that plaintiff and defendant had an accounting and settlement between each other, and upon such accounting and settlement a compromise was agreed upon, whereby defendant agreed to pay plaintiff two thousand dollars in full of all claims and demands. The complaint asks for judgment for over seven thousand dollars. The case was referred, and the referee, after diligently and, we think, carefully examining all the facts and circumstances, found that the compromise, wherein defendant agreed to pay plaintiff two thousand dollars in full settlement, amounted to an accounting and settlement between the parties, and that they should be respectively bound thereby, and awarded judgment for plaintiff for two thousand dollars and interest.

We think this was correct. The evidence establishes a long account between the parties, some of which may, and was, disputed by the defendant, and to establish the items he offered proof. Some of this proof plaintiff tried to rebut, but all these questions were fully before the referee. The referee passed upon the truth of the facts elicited, and we cannot, therefore, disturb his findings. The rules governing courts in granting new trials are nearly as follows: First, if evidence material to the verdict, during the progress of the trial, be improperly received or rejected ; second, if the referee has misapplied the law ; third, if he is pecuniarily or otherwise interested in the litigation, he is disabled; fourth, if the successful party has been guilty of gross misconduct, or a mistake has been made in entering judgment; fifth, if the damages awarded be glaringly excessive or palpably insufficient. It is also deemed a good reason for granting a new trial on the issues, if it appears that the verdict or report was obtained by surprise, or that the report was manifestly against the weight of evidence and was perverse. None of these causes can in any way be taken advantage of in this cause.

It is the sound policy of the law to permit parties to settle disputes and adjust disputed facts between themselves. Here was a plausible and, perhaps, proper claim made by plaintiff for a very large amount. It was disputed by defendant. The parties came together, and defendant first offered one thousand dollars; this was refused. He then offered two thousand dollars ; this was accepted. Now, the compromise even of a doubtful claim, when procured without deceit (such deceit as would vitiate a contract), concludes the parties (McGee v. Badger, 30 Barb. 246 ; Hoge v. Hoge, 1 Watts, 216; Russell v. Cook, 3 Hill, 504).

The exceptions to the referee’s report should be overruled, and judgment should be affirmed.


author: By the Court. — McCunn, J. Sedgwick, J. (concurring).

text:
    ALBERT D. FILLEY, Plaintiff and Respondent, v. WINTHROP S. GILMAN, and Others, Defendants and Appellants.
    One Charles W. Johnson as the attorney of plaintiff and others, re-received from one John B. Caldwell a draft of one thousand four hundred and fifty-eight dollars and twenty-nine cents, made by the firm of Nolan & Weary, upon "the defendants at sight, payable to the order of plaintiff.
    Johnson indorsed the name of plaintiff upon the draft and sold the same to the firm of Warren, Hussey & Co., through their agent, Joseph A. Thatcher, receiving the value thereof in money from Thatcher, and delivering him the draft. At the time of the negotiation and sale of the draft by Johnson he exhibited to Thatcher Ms power of attorney, that he claimed contained authority to indorse and sell the draft, and Thatcher examined it. This power of attorney authorized Mm to receive from Caldwell certain moneys, and effects in his (Caldwell’s) hands, and under the same he had received this draft, payable to the order of plaintiff, but it con-Í tained no authority .to sell or to indorse the draft, or in any manner to change or exchange or dispose of the effects he received from Caldwell under the power.

      Meld, that the draft became and was the property of the plaintiff from the time the same was delivered to Johnson, and the power of the latter in reference to it was confined to the simple act of delivering or transmitting the same to the plaintiff.
    The indorsement being without authority, it passed no title, property or interest, in the same to Warren, Hussey & Co., and defendants were liable to pay the sum to the plaintiff.
    Written instruments creating a power must be strictly construed, and the authority therein given not extended beyond that clearly given in terms or beyond what is absolutely necesssary for the exercise of the power (Story on Agency, § 68).
    Before McCunn, Curtis, and Sedgwick, JJ.

      Decided March 30, 1872.
    Appeal from a judgment entered upon the report of a referee.
    The facts in the case appear in the opinion of the court.

      F. E. Mather, for respondent.

      John L. Cadwalader, for appellants.
   By the Court. — McCunn, J.

This action is brought by plaintiff, as payee, against defendants, as drawees and acceptors, to recover the amount of a draft for one. thousand four hundred and. fifty-eight dollars and twenty-nine cents. In July, 1867, George H. Filley,K brother of plaintiff, died in Montana, leaving property there ; also leaving in Connecticut, respondent and others, his brothers and sister. In October, 1867, the plaintiff with such others made an open letter of attorney to P. D. Barnhart, authorizing "him for them to have, demand and receive from any person or persons then holding, or who might thereafter hold any of the estate, money, property or effects, belonging to them or to.either of them, as heirs or heir at law of the late George H. Filley. This power authorized substitution. In May, 1868, Barnhart made a letter of substitution to Charles W. Johnson, in which he describes and “fully sets forth the business to be done” by Johnson. In September, 1868, plaintiff and others made another written instrument for the sole and exclusive protection of John B. Caldwell, administrator of the estate of George H. Filley. That instrument declared that if said Caldwell would pay to said Johnson, as the heirs’ attorney, the moneys and effects which have come to his hands as administrator belonging to the heirs of the estate of said George H. Filley, that they would release and discharge said Caldwell from all liability to them as heirs of said estate; and they authorized said Johnson as their attorney to demand and receive from said Caldwell, as such administrator, the moneys and effects of deceased. To this extent, and to this extent only, did they ratify the substitution of Johnson. On January 8, 1869, Johnson received for plaintiff the draft in dispute. On January 20, 1869, Johnson indorsed and sold said draft to Warren, Hussey & Co., through Joseph A. Thatcher, their agent." This Johnson had no right to do ; and Thatcher had no right to purchase it, because he, Thatcher, knew that Johnson was but a substitute under the letter of power, and that said letter of power limits the business to be done and performed by the attorney. March 31, 1869, defendants were informed that plaintiff claimed to be the rightful owner of said draft, and demand was made on the defendants that the draft or the amount thereof be paid. They refused, and this action is brought.

The only question in the case is, Had Johnson authority from Filley the plaintiff, to indorse the draft ?— and the evidence of any such authority in respect to said draft must be found, if anywhere, in the letter of power to Barnhart. Written instruments authorizing a power must be strictly construed, and this authority not extended beyond that given in terms or beyond what is absolutely necessary for carrying the authority given in terms into effect (Story on Agency, § 68). How the authority in this case is shown by Exhibit Ho. 1.

It was to act for him concerning a particular object, namely, “to have, demand andreceive from any person or persons now holding or who may hereafter hold any of the estate, moneys, property or effects, belonging to plaintiff as heir at law of the late George I~L Filley.” Such was the power given to Barnhart, and the instrument' substituting Johnson does not or could not express or imply any greater or different authority (Story on Agency, 120).

Johnson acquired no authority from Barnhart; he acquired it through Barnhart. Hence' Johnson’s authority could not exceed the authority of him who conferred it. Barnhart’s authority was special, namely, as the attorney for the principals, in their names to demand and receive their parts and shares of the estate of the deceased Greorge H. Filley; and clearly Johnson had no authority not given to Barnhart. In no case can general language be construed as authority to indorse a draft or make a note or draw checks (Farmers’ & Mechanics’ Bank v. Butchers’ & Drovers’ Bank, 16 N. Y. 144).

Thatcher saw the power in this case, and as between one dealing with an attorney as such and the principal, the former is chargeable with knowledge of the legal effect of the authority ; because he is presumed to have been on his guard and to have seen the power. This is is almost elementary learning (Horth River Bank v. Aymar, 3 Hill, 262, 276 ; Homer v. Tysen, Id. 279 ; Farmers’ & Mechanics’ Bank v. Butchers’ & Drovers’ Bank, 16 N. Y. 140, 144). Sale of Texasu bonds (Hodge v. Combs, 1 Black, 192, U. S. Court). Making a promissory note (Rossiter v. Rossiter, 8 Wend. 494). Accepting a bill of exchange (Hogg v. Smith, 1 Taunt. 347; Hay v. Goldsmith, Id. 349, 350 ; Murray v. East India Co., 5 B. & Ald. 204, 210, 211; Holtzinger v. Corn Exchange Bank, 1 Sweeney's S. C. 64). The Holtzinger case was argued in the court of appeals February 7, 1871, which court has affirmed the judgment of this court.

When defendants received said draft (February 2, 1869), and transferred the amount thereof from the credit of the drawees to the credit of Warren, Hussey & Co., the defendants accepted this draft and became liable to plaintiff.

Judgment affirmed, with costs.

Sedgwick, J. (concurring).

The proof shows that Howlan & Weary, for value, drew their bill of exchange on the defendants to the order of the plaintiff, and delivered it to the attorney of the plaintiff. Thereupon the plaintiff became the owner of the bill and entitled to its possession.

The attorney without authority indorsed the bill with the name of the plaintiff. The attorney then delivered it to third parties, and in time it was presented to the defendant for acceptance and payment. It may be true that the defendants had made no engagement or contract which bound them to the plaintiff to accept or pay it. Although not so bound, they were not authorized to use the plaintiff’s property for their own purposes. They paid the bill—it not being indorsed by the plaintiff, and used it, it must be concluded from the facts of the case, as a voucher to the drawers, that money had been paid by the defendants on their account. This was a conversion of the plaintiff’s property. This property was a bill, which was, before acceptance, an engagement by the drawers with the plaintiff, that the drawees would accept and pay the bill, and that, if they did not, he would pay it. The engagement was presumed and was proved to be of the value of the face of the bill.

That the defendants acted with entire honesty, there is no doubt, but they were bound, if they paid, to pay to no one but to the plaintiff or his order, and were bound not to take into their possession the plaintiff’s property in derogation of his title to it.

I therefore concur in the decision of the presiding judge.


author: By the Court.—McCunn, J.

text:
    JAMES A. HAYDEN, Plaintiff and Respondent, v. GEORGE De METS and ALBERT HARNICKELL, Defendants and Appellants.
    The tender of a warehouse receipt is sufficient tender where the subject in dispute is ponderous or incapable of a personal delivery (26 Bari. 372 ; 5 J. B. 835; Story on Sales, §§ 311, 312).
    Notice of a party to a contract for the purchase and sale of specific property, that he would not be able to take and pay for the property contracted for by him is a waiver of any right to a delivery or tender (Burge ». Korp, 5 Bolt. 1).
    The exception to the whole charge of the judge in bulk is too general and broad for consideration, even if some portion is erroneous (Haggard v. Morgan, 1 Seld. 422
    Before McCunn, Curtis and Sedgwick, JJ.

      Decided March 30, 1872.
    Appeal from a judgment.

      The facts and points of the case appear in- the opinion of the court.

      Mr. John R. Platt, for respondent.

      Mr. John Slosson, of counsel.

      Mr. D. M. Porter, for appellants.
   By the Court.—McCunn, J.

The action is for the price of fifty thousand pounds of copper sold by plaintiffs to defendants, deliverable on a certain day at buyer’s option. The contract is admitted. When the day for performing the contract arrived, the plaintiff tendered the copper to defendants by handing them the storage receipts, and demanding payment. He also offered to deliver the copper if required. -It is quite true that a tender must be free from all condition ; the property must be unincumbered, and the title perfected in the defendants. An offer to tender where the plaintiff is not in this condition is inoperative. But all these conditions were complied with in this case.' Indeed, the defendants made no objection to the tender or any objection of any kind, but replied that they were unable to pay, and asked for thirty days’ extension of the contract, which the plaintiff refused to give. Moreover, the ténder was twice made, first by the broker and next by the plaintiff in person. Again, the question of tender was submitted to the jury, and this fully disposed of it.' It is well settled that the tender of a warehouse receipt is sufficient tender where the subject in dispute is ponderous or incapable of a personal delivery ; and in this case a tender of the warehouse receipts, and offer to indorse them over, we hold was a sufficient delivery under this contract (26 Barb. 372 ; 5 J. R.. 335; 4 Seld. 508; Story on Sales, §§ 311, 312). But over and above all this the plaintiff offered to make an actual delivery of the copper if defendant required it. In this case the defendant notified the plaintiff that he would not be able to pay for the property, and such a notice is a waiver of any right to a delivery or tender (Burge v. Korp, 5 Robt. Supr. C. R. 1). The exception to the charge is made to the whole charge in bulk. This is too broad, even if any part is erroneous (Haggard v. Morgan, 1 Seld. 422).

The judgment should be affirmed, with costs.


author: By the Court.—Freedman, J. Barbour, Ch. J.

text:
    JOHN PATTEN, Plaintiff and Respondent, v. WILLIAM J. STITT, et al., Defendants and Appellants.
    I. Remittitur from court of appeals.—Power of the court below upon.
    1. The court below is not confined to rendering a judgment simply adopting the judgment of the court of apneals as its own.
    3. The court below must carry into effect the judgment of the court of appeals, and take such further proceedings as may be necessary for that purpose, prior to the entering of judgment on the remittitur.
    3. Gonstruction of judgment of court of appeals by court below.

      a. In order to determine whether any further proceedings are necessary to be taken to carry into effect the judgment of the court of appeals, the, court below is authorized to examine into, and determine upon, the effect of the provisions in such judgment.
    4. Costs of special and general term, when, allowed by the cour below, although the judgment of the court of appeals contains a clause, “ without costs to either party.”

    1. Allowed to plaintiff whose complaint was dismissed on the trial, with costs, when the judgment on such dismissal has been reversed by the general term and a new trial ordered, with costs to abide th$ event, and the court of appeals (defendant having stipulated under section 11) has in all things affirmed the general term order granting a new trial, and has rendered judgment absolute for the plaintiff for part only of the relief demanded in the complaint, and without pi'ejudice to the respective rights of the parties in respect of a pa/rt of the relief demanded, and without costs to either party.

      a. This, although the action was one for equitable relief.
    Before Barbour, Ch. J., Monell and Freedman, JJ.

      Decided May 4, 1872.
    The history of this case is as follows : The action was brought to restrain the defendants from using the rear wall of the plaintiff’s building, by placing beams or timbers therein, and from building upon or occupying a certain piece of land in the rear of such wall. Upon the report of a referee, judgment was entered dismissing the complaint.
    On appeal to the general term, the court determined that the judgment should be reversed, and a new trial had, with costs to abide the event.
    The record of this determination was in form as follows :
    “It is Ordered, that the said judgment so appealed from be, and the same is hereby in all things reversed upon questions of fact as well as upon questions of law, that the order of reference be vacated, and that a new trial be had, with costs to the appellants to abide the event.” •
    On appealing to the court of appeals, the defendants stipulated, under section 11 of the Code, that if the decision there should be against them, the court might render an absolute judgment in favor of the plaintiff; and a judgment was there rendered in the following words: “This action having been duly argued by the counsel for the respective parties, it is ordered and adjudged that the. order granting a new trial be affirmed, and judgment absolute for the plaintiff restraining the defendant from inserting beams, &c., in the walls of plaintiff’s building, and without prejudice to the claim of either party to the land and premises in dispute, and without costs to either party.” Upon remittitur from the court of appeals, a judgment was entered in this court, at special term, on the application of the plaintiff, ex parte, making the judgment of the court of appeals the judgment of this court, and perpetually enjoining and restraining the defendants from inserting beams, &c., into the plaintiff’s building, and directing that the plaintiff have execution against the defendants for three hundred and sixty-seven dol Iars and seventy cents costs (being for all costs and disbursements of plaintiff up to and including the argument at general term); but no special reservation of the rights of the parties, or either of them, was made in that judgment. The defendants then moved, on notice, at special term, to strike from the judgment the provision in regard to costs, and to insert in lieu thereof the words, “without costs.” That motion was denied, and the defendants brought this appeal from the order thereupon .entered.
    C. M. Marsh, attorney, and Thomas L. Ogden, and Samuel E. Lyon, of counsel for appellants, argued :—
    I. When the cause was brought to the court of appeals, there was no judgment below in any respect favorable to the plaintiff or awarding costs to him. 1. The judgment upon the trial before the referee was in favor of the defendants. 2. The order of the general term from Which the appeal to the court of appeals was taken, was hot a judgment, but simply an order of reversal, and for a new trial, with costs to the plaintiff to abide the event, -and the event of the action, as pronounced by the court of appeals, in its final determination of the rights of the parties, was the failure of the plaintiff in the main part of his suit, while obtaining a small part of the relief demanded, but expressly without costs, and the order of the general term was only affirmed so far as related to a new trial.
    II. The judgment of the court of appeals does not award costs to the plaintiff directly or by implication, but expressly orders that he shall not have them. It is distinctly “ without costs to either party.” To supply any limitation or exception is to alter the meaning and language which are free from ambiguity (See Macgregor v. Buell, 17 Abb. Pr. 31).
    . III. The construction put by the appellants upon the judgment pronounced' by the court of appeals, is exactly in accordance with the uniform and established rule that in equity cases, no costs whatever are to be awarded to either party, where the claimant succeeds in part, and fails as to the residue of his claim. The language used by the court should be construed accordingly, and should not, by a strained construction, be made to violate well established principles of equity (Ten Eycke v. Holmes, 3 Sandf. Ch. 428 ; Spencer v. Spencer, 11 Paige, 299).
    IV. The court of appeals has complete control over the whole subject of costs in an action, in which it is called upon to render judgment absolute. The right to control costs is included in and necessary, to the full exercise of the powers conferred on the court of appeals by section 11 of the Code. Certainly any order of the general term for costs, can be modified or reversed by the court of appeals.
    V. .The mere omission of the court of appeals to award costs below to the plaintiff, would be fatal to his claim, unless he is entitled to them as a matter of legal right, and can urge such claim after the cause has been finally determined, and the judgment remitted to this court to be enforced.

      "VI. The plaintiff is not entitled to costs, as a matter of legal right under section 304'; of the Code but this, being a suit for an injunction, and of an equitable character,' falls within section 306 of the Code, and costs may be allowed or not to either party,. in the discretion of the court. Section 304 must be construed in connection with sections of the Code previously cited, and not as giving a party an absolute right to costs beyond the control of, and. inconsistent with powers conferred on, the court of appeals ; nor can it be presumed that this section was intended to include actions of an equitable nature, and to take costs in such actions out of the discretion of the court (Barker v. White, 3 Keyes, 617; Staiger v. Schultz, Id. 614 ; Van Riper v. Poppenhausen, 43 N. Y. 68 ; Daniels v. Lyon, 5 Seld. 549 ; Clarke v. Tunnicliff, 38 N. Y. 58). From the cases cited above, it will be seen that the court of appeals construes section 304 of the Code so as not to include, contrary to the intent of the legislature, actions the costs of which are regulated by other special statutory provisions, or suits in equity, the costs in-which have always been in the discretion of the court.
    VII. Moreover, there has not been a “recovery ” by the plaintiff within the meaning of section 304. 1. Obtaining an injunction is not a “recovery.” The term “ recovery ” implies a judgment for something tangible and substantial, and not the mere obtaining relief of a negative character. 2. The recovery under the section must be one resulting from, and involving a decision of the claim of title. “When the section speaks of a recovery in an action where a claim of title arises, it means that such claim of title shall arise on the entire pleadings, and that the recovery shall be in hostility to such claim.” See rule as stated per Mr. Justice Weight, in Burhans v. Tibbits (7 How. Pr. 75). The partial relief obtained by the plaintiff is entirely independent of the claim of title; which arose on the pleadings, and is declared so to be by the judgment of the court of appeals, which is distiuctly “ without prejudice to the claim of either party to the lands and premises in dispute.” 3. This action is not of a description in which there could have been a recovery of real property. The language of Judge Rapallo, in delivering the opinion of the court of appeals in this case, is conclusive on this point. He says: “ The land within that space (the space between the hotel wall and the boundary line between the lands of Patten and Fiedler, being the land in the possession of the defendants as tenants of Fiedler) whatever it inay be, is in the possession of the defendants, and this is not the proper form of action for its recovery. The complaint is framed wholly for equitable relief by injunction, and was triable by the court. It prays that the defendants be restrained from occupying, using or building upon the space of ground, the title to which is claimed by the plaintiff. Such relief cannot be granted. The plaintiff, being out of possession, must establish his title in an appropriate action. Such an action is properly triable by jury, and the relief to which the plaintiff will be entitled in establishing his title, is a judgment for the possession of the land. An injunction against occupying the land in dispute cannot be substituted for an action of ejectment.”
    YIII. The order or judgment of the special term of the superior court does not correctly recite the judgment of the court of appeals, for it omits the words ‘ ‘ without costs to either party.” This is a vital defect, as it follows from the omission that what is recited as the judgment of the court of appeals, and made the judgment of the superior court, is not the judgment of the court of appeals, but substantially differs from it.
    IX. The superior court had no power to render any other judgment than one simply adopting that of the court of appeals as its own. It could not grant any costs not allowed by the court of appeals (Macgregor v. Buell, 17 Abb. Pr. 31).
    X. This court cannot now question, in this action, the power of the court of appeals to render judgment “ without costs to either party.” The court has assumed such power, and ordered judgment accordingly, and it is res adjudicata between the parties. The plaintiff had an opportunity to present his claim for costs before the court of appeals in the argument, and the determination of the court of appeals on that point is final.

      C. & S. T. Jones, attorneys, and Charles Jones, of counsel for respondents, argued:
    I. The appeal from the judgment must be dismissed. 1. The judgment is a judgment of the court of appeals, and the general term of this court cannot review it. 2. Section 348 of the Code enumerates the cases where an appeal may be had to the general term. “ An appeal upon the law may be taken to the general term from a judgment entered upon the report of referees or the direction of a single judge of the same court in all cases and upon the fact when the trial is by the court or referees.” (a.) The appeal in this case is from a judgment of the court of appeals. (5.) That this court has no jurisdiction of such an appeal is shown by the fact that neither the Code nor the rules provide any means for making such an appeal. Buie 41 «recognizes the' fact that the only cases where appeals can be taken to the general term are those set forth above (“or to review by appeal or otherwise a trial by jury, by the court or by referees ”). 3. The fact that the judgment making the judgment of the court of appeals the judgment of this court was made by a judge of this court does not affect the question. (a.) The judge'had no discretion ; he was bound to enter the judgment; his act was merely ministerial; he acted, not as a judge of this court, but as an officer of the court of appeals, obeying its mandates, and that court should correct his errors (if any were made) (Macgregor v. Buell, 17 Abb. Pr. 31; Griswold v. Havens, 16 Id. 413).
    II. The appeal from the order should be dismissed. 1. The motion was to amend or alter a judgment of the court of appeals. That could not be done by this court, and the motion was properly denied, (a.) The judgment was entered in this court in obedience to the mandate of the court of appeals. That court then should correct all errors in its judgment, if there be any. 2. The only objection to the judgment was, that too much costs were allowed. This, however, was not a motion for re-adjustment. 3. The only ground on which the defendants could possibly appeal from this order, is found in subdivision 3 of section 349 of the Code, but even that will not sustain an appeal, for the order dpes not in itself affect a substantial right, (a.) The judgment of the court of appeals, as entered, gave the costs to which defendants object. The order • 'id not give them, nor did it refuse them ; it simply efused to alter a judgment of the court of appeals lready entered. (5.) The judge was bound to refuse he order; he had no discretion, for any order pretendng to alter the judgment would have been null and oid.
    III. If the defendants are entitled to any relief they ave mistaken their remedy ; it should not" have been y motion in this court or by appeal from the judgent, but by motion in the court of appeals. 1. The ling of the remittitur does not take away the authority f the court of appeals (Palmer v. Lawrence, 5 N. Y. 55). 2. Had defendants made their motion in the urt of appeals that court would have requested this urt to return the remittur, and this court would have mplied with the request (Selden v. Vermilya, 3 Sandf. 5; Bogardus v. R. Manufg. Co., 1 Duer, 593; urray v. Blatchford, 2 Wend. 221). 3. The court which gave the decision is plainly the one to interpret it, if it require interpretation.
    IY. If, however, this court should hold that the appeal is proper and can be heard here, then the order and judgment appealed from must be sustained. 1. The decree of the court of appeals was for judgment affirming the order of the general term, and giving judgment absolute against defendants, without costs. 3. The decree must be construed as to its meaning with regard to the power of the court. 3. The court of appeals had no power to deprive the plaintiff of costs at trial term or at general term, inasmuch as a claim of title to real property arose on the pleadings, and was certified by the court to have come in question on the trial (Code, § 304). 4. It is doubtful if even the costs of the appeal in the court of appeals were in the discretion of that court (Code, § 306). The court did not here order a new triai, for it gave judgment absolute for plaintiff, nor did it reverse in part and affirm in part a judgment, for the only judgment below was a dismissal of complaint, and that was re^ versed. The plaintiff, however, has accepted the conrt’s construction as to the costs of appeal, and has, not claimed them.
    Y. Though it cannot be doubted that a claim o: title to real property arose, the defendants may objee that it did not necessarily arise. 1. The Code doei| not require that it shall necessarily arise (sec. 304)! 3. But if that is the meaning of the section, then in thii case it necessarily arose, (a.) The defendants inserte beams into the rear wall of plaintiff’s building, ciar ing that one-half of it, and all the land in the rear of i belonged to them. (6.) The plaintiff, claiming owne: ship of the wall, the ground it stood on, and part of thj ground in the rear of it, brought an action for an i: junction. (<?.) The reieree below decided that defen ants were owners of one-half of the wall, {d.) Th| court of appeals examined the question of title, and actually decided that the whole wall belonged to plaintiff, and gave him an injunction.
    VI. The only question now remaining to be considered under section 304 of the Code is, Was there a recovery ? 1. The plaintiff in his complaint asked that < “the defendants, their servants and agents, be perpetually enjoined from using in any manner the rear wall of the said hotel building, and from placing beams or timbers therein.” 3. The judgment of the court of appeals is, that “judgment absolute be rendered for plaintiff, restraining the defendants from inserting beams, &c., in the wall of plaintiff’s building.” 3. As to the other matters which were put in the complaint, they did not belong to it, and he had a recovery of everything to which he could possibly be entitled in this action.
    VII. The construction of the judgment of the court of appeals, considered with regard to their powers, clearly shows that the intention of the court was to deprive the plaintiff of the costs of that court only. 1. From the fact that the court would otherwise transcend its powers. 3. From the fact that the court orders that the order of the general term be in all things affirmed, and gives judgment absolute for plaintiff, (a.) The order of the general term gave costs to plaintiff to abide the event, and that order was affirmed. (5.) The event was a judgment absolute in favor of the plaintiff.
   By the Court.—Freedman, J.

I concur with the learned chief justice that this court is not absolutely bound, upon the filing of a remittitur, to render judgment by simply adopting the judgment of the court of appeals as its own, but that the record and proceedings in the appellate tribunal are remitted to be proceeded upon in this court according to law. But I do not think that the court of appeals has, by its judgment, disposed of the entire action and all the questions involved therein, and absolutely determined that neither of the parties is entitled to any costs as against the other. The judgment entered upon the report of the referee dismissing plaintiff’s complaint with four hundred and seventeen dollars and ninety-seven cents costs to the defendants, having been reversed, upon appeal, by the order of the general term, which directed a new trial, with costs to the plaintiff to abide the event, and the court of appeals having, on defendants’ appeal from said order, affirmed the same in all things and further ordered and adjudged that judgment absolute be renderedffor the plaintiff restraining the defendant from inserting beams, &c., in the walls of plaintiff’s building, without prejudice to the claim of either party to the land and premises in dispute, and without costs to either party, I am clearly of the opinion that the words ‘ ‘ and without costs to either party” refer only .to the costs of the appeal to the court of appeals, and that plaintiff is entitled to the costs secured to him by the general term order upon the event of his final success.

The next question, .therefore, is whether, upon plaintiff’s ultimate success, which has now been attained, such order covers the costs of the action and of the appeal to the general term, or of such appeal only.

In Koon v. Thurman (2 Hill, 357), Judge Cowen says, such a rule means the costs of the motion for a new trial as well as the costs of the trial itself. That may mean, however, the costs of the second trial, and not of the first trial. But in Goshing v. Acker (2 Hill, 391), it was held that a party ultimately successful will have costs of the trial below, on the principle that the appellate court gives such judgment as the court below should have given, and that such judgment carries costs.

On the same principle it has been held that when the favor of a new trial is granted on payment of costs, the costs meant to include the costs of all such proceedings as are vacated, in order that a new trial may be had (Ellsworth n. Gooding, 8 How. Pr. 1; North v. Sargeant, 14 Abb. Pr. 224). According to the principle of these decisions the order referred to covers all the costs which have been taxed.

This court, in carrying into effect the judgment of the Court of appeals, had the right to dispose of this question of costs, and the disposition, as made, should not be disturbed.

The judgment and order appealed from should be severally affirmed, with costs.

Monell, J., concurred.

Barbour, Ch. J.

(Concurring in abone opinion in some respects, but dissenting as to others, and from the conclusion arrived at).—The appellant’s counsel is in error in supposing this court' is absolutely bound upon the filing of a remittitur, to render a judgment" simply adopting the judgment of the court of appeals as its own, and that it has no power except that. The record and proceedings in the appellate tribunal are remitted to the superior court, “ there to be proceeded upon according to law.” They are remitted in order that the judgment of the court of dernier resort may be carried into effect; and if, to accomplish that object, it becomes necessary that further proceedings be had in the court below prior to the entry there of a judgment on the remittitur, that will be done. So, in the case of Rogers v. Patterson (4 Paige, 418), after the "emittitur was sent down from the court of errors, and even after a judgment thereon was entered in chancery "n the usual form, the suit was revived on petition, and he executors of a complainant who had died during he appeal were brought in as parties. In pronouncing the decision the chancellor said:—“ There must be a decree of this court to carry into effect the decree of the court for correction of errors . . . “the terms of the decretal order to correspond, as near as may be, with the decree of the court of errors, adapting such decree to the suit as it is now to stand revived,” &c. So, too, in Quackenbush v. Leonard (10 Id. 131), where a female complainant had married after the decree in chancery had passed, and, pending an appeal therefrom, the chancellor held that the decree of the appellate court, although made after the marriage, was not void, and that it must be carried into effect in the court of chancery, after the proper parties were brought in; and he directed that the husband of the woman, and she, herself, by her new name, be made parties complainants by bill of revivor.

As the absolute judgment at special term dismissing the complaint, with costs to the defendant, has never been reversed, affirmed, or modified, by a judgment of this court at general term, and as the court of appeals determined nothing, in terms, in regard to that judgment, it is possible that the judge at special term would have directed the insertion of such a provision in the judgment, upon remittitur, as would have relieved the plaintiff from such former adjudication, in order to carry into effect the intention of the appellate court, if his attention had been called to that question. For, although it is apparent from the fragment of Judge Fapallo’s opinion which is printed with the appellant’s brief, and what appears in the judgment itself, that the court intended to reserve to the plaintiff the right to bring and maintain his action of ejectment, precisely as he might have done if there had been no judgment against him upon that question in this action, yet the judgment of the court of appeals did not contain all the provisions necessary to effectuate that intention.

Be that, however, as it may, there can be no doubt that the court of appeals designed, by its judgment, to dispose of the entire action and all the questions involved therein. It, therefore, had a right to adjudicate in respect to costs; and as neither party had fully succeeded, a direction was given in that regard which accorded with the well-known rule. The court of appeals, therefore, having adjudicated, upon the determination of the entire action, that neither of the parties was entitled to recover costs, it follows that the learned judge at special term erred in awarding costs to the plaintiff, and in permitting the same to be inserted in the judgment.

The order appealed from should, therefore, be reversed, and an order entered directing the provision in the judgment which awards costs to the plaintiff, to be stricken therefrom, and the words “ without costs” to be inserted in place thereof. The appellants are, of course, entitled to their costs of this appeal.


author: By the Court.—Freedman, J. Monell, J. Barbour, Ch. J.

text:
    THE STAR FIRE INSURANCE COMPANY, Plaintiff and Appellant, v. HENRY H. GODET and Others, Defendants and Respondents.
    I. Order, Entry of.—What Re-opens.
    1. A peremptory direction by the judge who made it, to appear before him for a re-settlement.
    2. Until the entry of another order upon the judge’s decision on the application for a re-settlement, there is no order remaining in force or effect.
    1. This, although the judge, in deciding the application for a re-settlement, refuses to disturb the order first entered,

    3. Appeal from order in such cases.—Time for.

    1. Consequently the time to appeal does not begin to run until the entry of an order on the application for a resettlement, embodying the provisions of the one re-Qpened and service of notice thereof.
    II. Motion tjnnecessaby.
    1. May be denied for that cause only.

      a. Therefore a motion to vacate a re-opened order, and to have the same re-entered as of the date of the re-entry, -will be denied. .
    Before Barbour, Ch. J., Monell, and Freedman, JJ.

      Decided May 4, 1872.
    This action was brought upon an undertaking, given under section 187 of the Code, in an action wherein the plaintiff herein was plaintiff, and Henry H. Grodet principal, was defendant, and executed by Henry H. Grodet, as and Henry T. Grodet and C. N. Van Zandt, sureties.
    The complaint herein alleges that a judgment had been recovered against the defendant in that action, and an execution against his person had been issued, and that .he had not rendered himself amenable thereto. Before an answer was put in, the sureties surrendered their principal to the sheriff, and gave notice to the plaintiffs’ attorney that they would apply to the court, at special term, to exonerate such sureties from all further liability upon the undertaking; and that motion was heard on May 10,1871, the counsel for the plaintiffs and defendants, respectively, being present, and arguing the same—the plaintiffs’ counsel claiming that the motion ought not to be granted, or, if allowed, that it should be only upon payment by the defendants of the costs of the action. On the same day an order was entered by direction of the court, without notice of settlement, granting the motion without conditions. On May 15, the same judge gave to the plaintiffs’ attorney a chamber order directing the attorneys for the defendants to “appear before him, at chambers, on the 17th, for the purpose of resettling the order granted in exoneration of the defendants’ liability on the undertaking prosecuted in this action and on the latter day that matter was argued, the judge reserving his decision. Mo decision was announced, however, until August 33, when the papers were returned by the judge, with his endorsement thereon, stating that he could not disturb the order already entered. The plaintiffs’ attorney thereupon requested the judge to permit an order to be entered in accordance with that decision, which request was refused. On September 11, the plaintiffs, upon papers showing the foregoing facts, and an affidavit of the plaintiffs’ attorney, stating, among other things, that he “ deemed the order to exonerate the bail so subversive of the rights and interests of the plaintiffs that unless it was radically modified on a resettlement, he intended to appeal therefrom, and that the time for appealing expired while the question of resettlement remained undecided,” moved at special term, before another judge, that the order entered on May 10 be vacated, and that the same be re-entered as of the date of such re-entry. He also moved, at the same time, and on the same papers, for an order directing that the answer (which set forth, among other things, the surrender of the judgment debtor and the order exonerating his sureties,) be set aside. Both motions were denied, and the plaintiffs appealed from the order thereupon entered.

      George N. Rathbun and H. Z. Hayner, of counsel for appellant, argued:
    I. The order appealed from involves the merits of the action, and affects a substantial right. It is therefore appealable (Code, § 349). 1. The defendant’s answer, if the order exonerating the bail be allowed to stand, in legal effect, turns the plaintiff out of court mulcted with the costs of an action commenced in good faith on a good cause of action after failure of the bail to comply with the undertaking —no very great encouragement to pursue a remedy against bail expressly given by section 190 of the Code. 2. The validity of the surrender is involved, which is vital to the defense set up. Nor does it affect the right of appeal from the special to the general term, that the subject matter of the order involves a question of discretion. Section 349 of the Code, regulating such appeals, differs in that respect from section 11, regulating appeals from the general term to the court of appeals. In the former, suitors are entitled to the discretion of the whole court, not alone to that of the special term (Matter of Duff (in court of appeals), 10 Abb. Pr., N. S., 416 ; People v. N. Y. Cent. R. R. Co., 29 N. Y., 418).
    II. The original order of exoneration was erroneous, and should not have been granted in the form in which it was entered. It violates long and, well-established rules of practice, and works great injustice to the plaintiff. It presents the first instance on record in this State, when a plaintiff in an action commenced against bail, strictly in pursuance of a statute, making that his only remedy (Code, § 190), is brought to a stand by an order exonerating the bail from all liability on their undertaking, without making any provision for the costs of the action, or for its discontinuance.
    III. The motion to set aside the answer of defendants, and to vacate the order exonerating the bail, and for re-entering the order on the determination of the resettlement was improperly denied at special term. 1. Because the time to appeal from the order of exoneration expired while the judge held its re-settlement under advisement, and it was the judge’s action or non-action, not any laches or fault of plaintiff, that deprived the plaintiff of a strict right, viz : the right of appeal. See Hubbard v. Copcutt (in court of appeals), 9 Abb. Pr. N. S. 289. 2. It was the only mode of compelling the entry of an order from which the plaintiff could appeal, and thus bring up in review the legality of the order complained of. lb. »
    IY. The order for resettlement in legal effect opened, vacated and annulled the order exonerating the bail, so that until the order on the judge’s determination of the resettlement be entered, the bail is not exonerated.
    Y. The judge’s memorandum on the papers before him on resettlement “ that he could not disturb the order entered at first on motion of Mr. Ely,” cannot have the effect of restoring the order, for he had already disturbed it by ordering its resettlement, and it was thereby in legal effect opened, vacated and annulled.
    YI. The defendants had no right to set up in their answer an order in bar of the action which was either opened, vacated or annulled. 1. The answer was false, as there was not in either case such an order in existence. 2. Even if it should be held that the order of exoneration was revived by the determination of the judge, that he could not disturb it, it was not so revived until long after the answer was put in. The order clearly was not in force at the time it was set up in the answer. 3. If the order of exoneration was only suspended until the judge’s determination of the re-settlement he had ordered, it was irregular to use it as a defense in bar while it was so suspended. 4. But it was not suspended only, nor did the judge’s determination of the resettlement revive or restore its validity. It was opened by the order of resettlement, and until an order on that determination be entered the order of exoneration has no force or effect whatever. 5. The only defense set up in the answer is the exoneration of the bail by virtue of the opened order, and if that be void or illegal, or if it was inoperative when used in the answer, the answer is irregular and should be set aside.

      VII. The plaintiffs are regular throughout,—the defendants are not, and they are legally subjected to a remedial action, but the remedy is so applied by the special term, that the plaintiff is or will be punished with defeat, and the payment of the costs of the litigation, and the defendants who are in default are (or if the error is not corrected will be), rewarded with a verdict and the recovery of their costs. The general term of this court will most assuredly correct this error and direct the proper order" to be entered.
    VIII. In addition to the points taken in the body of the printed case against the validity of the surrender, we submit that the mode in' which the surrender was effected in this case was wholly illegal and unauthorized. 1. Before failure to comply with the undertaking the mode of proceeding is specifically provided for in section 188 of the Code, and the difficulty with the defendants is that they have proceeded under this provision after failure to comply with the undertaking. 2. After failure to comply with the undertaking the bail may be exonerated by death df the principal and in various other ways, or by his surrender to the sheriff of the county where he was arrested, within twenty days after the commencement of the action against the bail, or within such time as may be granted by the court (Code, § 191). But for the surrender under this provision the Code has not pointed out the mode—and therefore leave must be granted on application to the court for such surrender. 3. The surrender is a proceeding in the action, and the plaintiff is therefore entitled to the usual notice before any steps are taken to effect it. 4. A surrender after the commencement of the action, but within twenty days thereafter is ex gratia (Baker v. Curtis, 10 Abb. Pr. 279), and being so, leave must necessarily be granted.
    IX. The affidavit of H. H. Gfodet, tending to show that he had always rendered himself amenable to the process of the court, cannot be regarded in the case, because: 1. The return of the sheriff, non est, cannot be impeached collaterally—the sheriff’s return must be taken as true (7 Wend. 352 ; 19 Abb. Pr. 282; 17 Wend. 317; 1 Daly, 95). 2. If the return be false the bail have their remedy against the sheriff (McArthur v. Pease, 46 Barb. 423).

      Ely & Smith, attorneys, and Moses Ely, of counsel, for respondent, argued:
    I. Whether the original order' should be resettled rested in the discretion of the judge who made it. That it was entered without notice of settlement, could under no circumstances affect its validity. And this particularly as it was not ■a complicated order, and followed the notice of motion.
    ■ II. The judge having refused to change the order as originally entered, it could have been of no moment to plaintiffs that an order should have been entered upon such refusal. Such an order would not have affected a substantial right, and would not have been appealable (Code, § 349).
    III. The same may be said of the order now appealed from, even if the court had power to grant a different order on the motion (which we deny). Whether it wduld grant or deny the motion was discretionary, and its refusal is not subject to review on appeal.
   By the Court.—Freedman, J.

The order of May 15, 1871, requiring defendant’s attorneys to attend before the justice making the same, on May 17, “for the purpose of resettling the order of May 10, granted in exoneration of the defendants’ liability on the undertaking prosecuted in this action,” was not merely an order to show cause, or equivalent to a notice of motion," but an absolute direction to appear for the purposes of a resettlement; and as the questions arising under the same were argued and the judge took the papers and reserved his decision, the order of May 10 became thereby re-opened for farther consideration, and until the rendition and .entry, in the form of another order, of the said judge’s final decision, it stands without force or effect.

The subsequent indorsement made upon the papers by the said judge over his initials, to the effect that he cannot disturb the first order, is not sufficient to restore the latter to life, fío order is complete, so that an appeal can be taken from it, until it is entered and the motion papers are filed (Smith v. Dodd, 3 E. D. Smith, 215).

Even in the case of a formal order it has been held that the written direction of the judge at the foot of the order, “Enter this,” will not suffice for the purpose of appeal, but actual entry must be made (Whitaker v. Desfosse, 7 Bosw. 678).

The order in this case should be reentered in conformity with the decision made by the judge who ordered it to be resettled, and a copy of it served. And as the court never allows a party to be prejudiced by its own delay, the thirty days, within which an appeal may be taken under section 332 of the Code, must be deemed to run from the time of the service of the written notice of such order, after re-entry (Bowman v. Earle, 3 Duer, 691).

If I am correct in these views, it follows that plaintiff’s motion, made at a special term held by another judge, so far as it prayed for the vacation of the order of May 10, and for its re-entry as of the date of such re-entry, was properly denied as an unnecessary application.

Upon the other branch of the case I will point out, although my associates express no opinion upon it, that the Code substantially re-enacted the law in regard to exonerating bail as it stood at the time of the adóption of the Code (2 Rev. St. 380, as amended by chap. 231 of Laws of 1845 ; Levy v. Nicholas, 19 Abb. Pr. 282; S. C., 1 Robt. 614). Under the former practice the bail could, as a matter of right, at any time pending the suit, or before the return of the ca. sa. against their principal, surrender him in their discharge, and could plead the render in any action against them.

The court also, as matter of favor, allowed the bail a further time, after the return of the ca. sa. In such case, if the plaintiff proceeded against the bail by action of debt, the bail had eight entire days in full term, next after the return of the process against them, wherein to render their principal; or where the suit against them was by declaration, eight days after the service of the declaration. And after the expiration of the eight days allowed ex gratia, the bail could, in a proper case, obtain a further extension. Any allowance, however, of further time, after the return of the ca. sa., being mere matter of favor, could not be pleaded, but the bail could have the full effect of it upon the motion. Pleas by bail in bar of the suit brought against them were regulated by the statute, but a render after suit was not permitted to be thus pleaded.

In analogy to that practice which is still in force so far as it is not inconsistent with the provisions of the Code, a surrender by bail of their principal, under section 191 of the Code, within twenty days after the commencement of the action against them, or within such further time as may be granted by the court, cannot be set up as a defense, by way of answer, to defeat plaintiffs’ cause of action, which has fully accrued before the surrender. Whatever relief the bail may be entitled to' by reason of such surrender, whether in the shape of a discontinuance of the action against them upon or without terms, or otherwise, must be applied for and obtained on motion and on notice to the plaintiff (see Hayes v. Berryman, 21 How. 143; Davidson v. Taylor, 12 Wheat. 604). Consequently, the court, at special term, had the power to grant, and perhaps might have granted, provided the application had been regular, that part of plaintiffs’ motion which prayed for the setting aside of the answer alleging, as a defense, the fact of the surrender after the commencement of the action. But the denial of such relief does not constitute error in this case (1), because the .application was not distinctly made on the ground here suggested, and (2) because, although made on the ground of irregularity,^plaintiffs’ notice of motion did not state the irregularity complained of, as required by the rule. Upon an appeal from an order denying a motion to set aside proceedings for irregularity, if the irregularity is not stated in the notice of motion, the appellate court may presume that the motion was denied for such defect in the notice (Lewis v. Graham, 16 Abb. Pr. 126).

For these reasons the order appealed from should be affirmed, with costs.

Monell, J.

I concur in affirming the order on the ground first stated in the foregoing opinion, namely, that the order of May 10 was in fieri by reason of the order of the 15th. Upon the decision of the motion on the last order, it became necessary to re-enter the first order. That not having been done, the last motion was unnecessary. It is still in time to enter such order, when an appeal from it can be taken within the proper time.

Barbour, Ch. J.

(concurring in the result, but dissenting from the grounds on which the court puts it) The motion to set aside the answer must have been founded upon section 152 of the Code, which authorizes the striking out of sham and irrelevant answers. The facts set up in this answer were sufficient, if true, to constitute a defense to the action, and they were fully proven by the papers read upon the motion. The principal debtor had been surrendered to the sheriff, and an order had been made exonerating the sureties ; and that order had not been countermanded or vacated. The pleading, therefore, was neither sham nor irrelevant.

Cases may be supposed, probably, where a party would be held excusable for his omission to take bis appeal from one order in due time,’ because he had obtained an order directing a resettlement, or a re-i argument, and had, at least, reasonable ground for believing that he would then be entitled to an essential modification or change of such original order. If, for I instance, a palpable error had been committed in drawling up and settling the original order in this case, [either in form, or because it was so drawn as to be too [inexact, or to contain more or less than had been [decided by the court, that, probably, would have been [sufficient to entitle the plaintiff to rely upon his motion cor a resettlement, and to excuse his failure to appeal, but, although the order of the judge at chambers required the defendants to show cause why the order of Ike court should not be resettled, and only that, it is pot pretended by the plaintiff’s counsel that such order Ivas irregular in form, or inexact in its terms, or that it liffered in any manner from the decision of the court. |o, too, if the plaintiffs ha$ obtained an order directing the defendants to show cause at a special term of the lourt why the original motion should not be reheard |r re-argued there, and had shown by his papers that pine important question to which the attention of the lourt was directed, had been left undetermined, or that ■une recent decision of importance, not then known to lie court or counsel, had been found, it may be that le pendency of such order to show cause would have Irnished such an excuse for the plaintiffs’ omission to appeal as would have justified the court in directing the original order to be vacated and again re-entered, in order to afford the plaintiffs another opportunity to appeal. But, although the papers before us seem to intimate that the plaintiffs’ counsel supposed he had a right to treat the order to show cause why the order should not fee resettled, in some sort, at least, as an order for a reargument, he ought to have considered, first, that an order of a judge at chambers providing for a resettlement before him of another order of the court, was not an order for a rehearing before the court; and, secondly, that a judge, sitting at chambers and not as a court, had no power to hear or reheai a motion which belonged to the court alone to determine, or to modify or change any order made by tin court and entered of record. The plaintiffs, therefore were wholly without excuse, as I understand it, fo: their failure to appeal from the first order in due time and, for that reason, the court was right in denying their motion to vacate such order and re-enter th same.

The order appealed from should be affirmed, wit costs.