author: Per Curiam. Sanford, J.

text:
    JAMES G. PLUNKETT, an Infant, &c., Plaintiff and Respondent, v. WILLIAM K. APPLETON and others, Defendants and Appellants.

    I. TRIAL, OONDTJGT Off.

    1. IRREGULARITY IN.
    1. How reviewed.

      (a) Properly before the trial judge, either on his minutes, or on a case regularly made and settled by him;
    but may,
    under peculiar circumstances, be reviewed before a different judge upon a motion brought on by notice or order to show cause, founded on affidavits.

    1. What constitutes irregularity.
    (a) Written communication to the jury from the judge. When the judge in answer to written queries from the jury sends them written answers without apprising the counsel for the respective parties of the contents of the queries or answers, it is an irregularity for which the verdict will he set aside,

    UNLESS,
    the counsel expressly consent to such course being pursued.
    (1). Foundation oe the principle. It rests on the broad ground of public policy, irrespective of any question as to whether, any injury resulted therefrom, to the party against whom the verdict was rendered.
    (3). Express consent, what does not constitute.

      (a) While a second communication was in the hands of a judge, and before he had answered it (a first one having been received and answered, without tire knowledge of either counsel), the counsel for the defeated party remarked to his opponent, that tho judge appeared to have received a communication from the jury and was writing an answer; to which his opponent replied that either party would have a right to except to such communication as part of the judge’s charge. Therefore neither counsel took any action. Afterwards the judge received a third communication, whereupon, he called counsel to the bench, and after discussion sent word to the jury, that he had no further communication to make to them, but that they might come into court, if they desired. Shortly after, the jury came into court, and without asking for further instructions rendered a verdict. The first two communications were not seen by either counsel, and their precise nature was unknown to the counsel for the defeated party, until after the jury was discharged, and the court adjourned.
    Before Monell, Ch. J., and Sedgwick, J.

      Decided, April 3, 1876.
    Held,

      express consent was not established.

    A motion was made at special term to set aside a verdict rendered herein for defendant, for irregularity in the conduct of the trial.
    The irregularity complained of, consisted in written communications having passed between the jury and the judge, of which the counsel was not apprised.
    The facts suffici nitty appear in the special term opinion.
    At special term an order was made setting aside the verdict, from which the defendant appealed to the general term.

      Prickard, Choate, and Smith, Attorneys, and Wm. G. Choate, of counsel for appellants, urged:
    I. Although the communications in this case were irregular, yet the irregularity is not per se ground for setting aside the verdict, merely for the sake of precedent. Whether the verdict should be set aside, depends on whether the plaintiff may have been injured by the irregularity, and whether he has consented to or waived it.
    1. It is conceded to be irregular for the judge to give the jury instructions privately, without the consent of counsel for the parties to the action, either as to the law or the evidence. Most of the cases oi irregular communications between the court and the jury, in the books, are cases where the communication was made by the court, without the knowledge of tne party complaining, and only ascertained by him after the verdict was rendered (Watertown Bk. v. Mix, 51 N. Y. 558; Merrill v. Nary, 10 Allen, 416; State v. Smith, 6 R. S. 33 ; Sargent v. Roberts, 1 Pick. 337). In these cases, therefore, the question of waiver, or what constitutes consent or cures this irregularity did not and could not arise. There can be no question of the propriety of the rule laid down by Lord Tenterden in Burrows v. Union (3 Car. & Payne, 310), where the jury requested thp court to send them Selwiri’s Nisi Prius, but although the counsel for both parties were willing, Lord Tentebden said that for the sake of precedent the jury should come into court and state their question, and receive the law from the court. And the cases of Merrill v. Nary, and State v. Smith, were cases where, without consent of the parties, the court had, at request of the jury, allowed them to take the statutes to inform themselves of the law. These two cases could not have been otherwise decided, because the jury did not receive the law from the court, but were made themselves judges of the law. The dictum in Watertown Bank v. Mix (51 N. Y. 562), that “there ought to be no communication between the judge and the jury after they have gone from ‘the bar to consider on their verdict, in relation to the oral evidence or his instructions to them, unless it take place openly in court, or with the express consent of the parties,” is unobjectionable as a statement of what is the regular and formal mode of conducting a trial. That dictum is by no means an adjudication or decision that in every case where a communication is made tc the jury by the judge, “ not openly in court, and without the express assent of the parties,” a verdict will be necessarily set aside. Nor is it intended as a decision to that effect by the learned court. In that case there was no assent, express or otherwise. The question, therefore, was not before the court whether, without express assent, such irregularity avoids a verdict, or whether such an irregularity having happened, it can be cured or waived and in what manner. Moreover, the court in that case pointed out as the ground of their decision, that the communication made by the judge to the jury, was calculated to injure the party against whom the verdict was rendered. It was a communication on a material point. The commission of appeals, in their opinion point out that although the communication may have been true, yet the defeated party was, or may have been affected injuriously by it in the conclusions the jury may have drawn from it, and that if the question had been asked by the jury in open court, different and further communications might at the suggestion of counsel have been made.

      2. This court, in the recent case of O’Brien v. Merchant’s Ins. Co. (38 Sup’r. Ct. 482), held that where a paper went to the jury, which was not put in evidence, and without the knowledge of the defeated party, but which contained matters prejudicial to him, the verdict must be set aside, although it did not appear by what agency the paper got to the jury. And speaking of such an irregular communication, the court say, “It has been held' that when the jury were approached in

      such a manner as might have influenced their verdict, it should be set aside.” This is undoubtedly the rule, and in the absence of the question, whether the parties have given a sufficient assent, or have waived the irregularity, the only question is whether the verdict may have been influenced by the irregular communication. And this court so understands the opinion in Watertown Bk. v. Mix, for it cites that case as authority for the above proposition. The other cases cited by the court are cases where the jury had been secretly approached by the party who had the verdict (Reynolds v. Champlain Trans. Co. 9 How. Pr. 14), or by his witness (Nesmith v. Clinton F. Ins. Co. 8 Abb. Pr. 141), clear cases for the application of the rule. The 'case of O’Brien v. Merchants’ Ins. Co. is therefore authority for the proposition that a contract is not to be set aside merely for the sake of precedent because an irregular communication has been made to the jury, and in such case it will not be set aside unless the defeated party may have’ been injured by the effect of the communication. If this is the rule as in the O’Brien case, where the communication was probably from the party or his witness, most certainly it is the rule where the communication is by the court, and without suspicion of intended wrong. This proposition is abundantly supported by decisions in criminal and capital cases (People v. Hartnury, 8 Abb. Pr. 132; People v. Wilson, Id. 137; People v. Carnal, 1 Park. Cr. Cas. 256; Hackley v. Hastie, 3 Johns. 252). The same doctrine is applied to other irregularities, as for instance the misconduct of the jurors. It has been constantly held that such misconduct is not ground for setting aside the verdict unless it appears that it may have influenced the result (Horton v. Horton, 2 Cow. 589 ; Wilson v. Abraham, 1 Hill, 207; Smith v. Thompson, 1 Cow. 221; Shea v. Lawrence, 1 Allen, 167).
    3. It is clear, therefore, that the fact of an irregular communication does not, per se, afford sufficient ground for setting aside a verdict. Hence there being no fixed policy of the law making irregular communications per se fatal, it follows that such an irregularity may be cured or waived by the act of the party, who after-wards seeks to avoid the verdict.
    II. There was in this case a clear waiver of the irregularity by plaintiff’s counsel.
    1. The circumstances stated in the opposing affidavit as to conversation between counsel while the judge had before him one of the two earlier communications, and as to what took place upon and after the receipt of the third communication are not denied. They are assumed to be true by Judge Sanford, and necessarily so, as nothing was shown to the contrary. The act and conduct on the part of the counsel for plaintiff clearly indicating acquiescence in the irregularity, is a waiver, provided the irregularity be one that can be waived.
    It is obvious there were risks to the plaintiff in his insisting on having the jury called in and instructed on the point in question in open court. It appears that the view of the law taken by the judge on the point in question was unfavorable to him. He, therefore, deliberately let go the opportunity of setting the matter right, took his chance of the verdict as the matter stood, and is concluded by the result.
    5. It will hardly be contested that in the conduct of trials, the ordinary rule is that mere silence with knowledge of an irregularity or error concludes a party. The rule as to the necessity of an objection and exception to evidence, however objectionable it may be, to enable a party to avail himself of the mistake in admitting or receiving it, rests on this principle. So does the very strict rule as to exceptions to any part of the judge’s charge. The object of the exception is to call the attention of the court to the supposed omission or mistake, and give him an opportunity to correct it before it is too late.
    6. But it is claimed that this principle does not apply to the irregularity in question; it, is insisted that silence or even acts denoting acquiescence, short of express assenUto the irregularity, does not conclude a party from objecting to this particular kind of irregularity, on grounds of public policy. It must be conceded that the general rule applies to other irregularities in a jury trial (Green v. Bliss, 12 How. Pr. 428; Allen v. Blunt, 2 Woodb. & M. 148).
    7. This pretended exception to the rule in case of this particular irregularity is .supposed to rest on the authority of Taylor v. Betsford (13 Johns. 487). This case is an undoubted authority for the proposition that a communication from the court to the jury, otherwise than in open court, and in the presence of the parties, and without their consent, is irregular. And to this effect it has been repeatedly cited, with approval, and affirmed. The dictum in Watertown Bank v. Mix (51 N. Y. 558), that the assent to the communication should be express, so far as it rests on this decision, is not well founded or borne out by the authorities. It is a mere dictum because there was in that case no pretense of consent. Taylor v. Betsford (13 Johns. 487), and the earlier case of Bunn v. Croul (10 Johns. 239), show that a practice had grown up in justices’ courts, for the justice, after the jury had retired, to visit the jury in their room and talk with them about the case. This practice very justly seemed to the superior courts dangerous and objectionable, and they show a most commendable zeal in suppressing it. The evident effort of the courts was to discourage and break up the practice. The suggestion of the court in Taylor r. Betsford, that no evidence of acquiescence on the part of a party can cure or waive the irregularity, except a precise and formal consent asked for and explicitly given, if that is the meaning of the suggestion, while well enough as a rule to be administered in dealing with the judgments of justices’ courts by the superior courts, to save themselves trouble and keep these inferior courts straight, clearly went beyond the law, since it would, if literally applied, give a party the opportunity by other acts of clear acquiescence, while avoiding a formal consent, purposely to mislead the court into a belief in his acquiescence, and thereby avoid an unfavorable verdict by aid of his own fraudulent practices. All that the court really held on this point was, that mere silence of a party without objection, and with knowledge that the justice was going in to talk to a jury was not enough to show Ms consent. But even as applied to justices’ courts the rule of Taylor v. Betsford has been materially modified in later decisions, so that it has no application to a case like the present, where there are unequivocal acts of acquiescence, though without a formal consent. In Whitney v. Crim (1 Hill, 61), the jury having retired, the defendant told the justice that the jury wished to see him ; whereupon, both parties being present, and neither objecting, he entered the jury room alone. The jury wished to be discharged ; he told them they must make another effort. The plaintiff had a verdict, and Taylor v. Betsford was relied on as entitling defendant to a new trial. B boss on, J. : “What the defendant, in the court below, said to the justice, respecting the wish of the jury, to see him, amounted to little, if anything, short of an express consent that the justice should go into the jury room, and he ought not now to complain of the act. Taylor v. Betsford is an extreme case, and we ought not to go beyond it. This case is distinguishable from that, and we think the defendant’s objection should not prevail.” In Moody v. Pomeroy (4 Den. 115), [1847], the common pleas having on certiorari reversed a judgment of a justice’s court on the precise facts shown in Taylor v. Betsford, the Supreme Courl affirmed, saying Per Curiam: “The ease of Taylor v. Betsford is directly in point, and although it is an extreme case it seems not to have been overruled.” But in the later case of Hancock v. Salmon (8 Barb. 564), Judge Gridley, giving the opinion of the court, carefully reviews Taylor v. Betsford, and gives a meaning and effect to it wholly consistent with the position taken above. And the court say of the rule in Taylor v. Betsford: “We would not relax the rule that has been wisely adopted. It is a safeguard against abuse ; but while we maintain the rule in its integrity, we must see that it is not made a means of misleading justices and involving innocent parties in the consequences of a reversal of judgments, not on the merits, but for the violation of technical rules.” This case is conclusive that the rule in Taylor v. Betsford, as understood and applied by the courts, is not inconsistent even in trials in justices’ courts, with holding parties to the just consequences of a waiver of the irregularity or to a consent not express, where such waiver or assent not express is shown by satisfactory evidence or appears, as in this case, on admitted facts. And the reference to express assent by the commission of appeals, in Watertown Blk. v. Mix, must be understood with the same qualification, especially as in that case there was no pretense of any consent, and the question of the form and nature of the assent requisite was not before the court.
    8. It is not material on this point of waiver that the plaintiff’s counsel did not in fact know the contents of the judge’s communications. He did. not seek to know. He let them pass, whatever they were, and took his chance of a verdict. Hancock v. Salmon, ut supra, is here exactly in point. ¡Nor is it material that there were two messages passed, although he knew at the time of only one. The material fact known to and acquiesced in by him was that the judge was corresponding with the jury. And afterwards when he saw the third communication, he knew there had been two, and his acts then showed continued acquiescence.
    9. On account of this clear waiver by plaintiff’s counsel, the motion should have been denied, even if the communications were material.
    III. The motion should also have been denied, because on the undisputed facts the communications can not have injured the plaintiff.
    IV. It also appears that there have been already had two long trials, the first resulting in a disagreement ; that it is at least doubtful whether the plaintiff can recover at all on his evidence. These facts furnish a sufficient reason why this motion in this form should be denied, and the question raised here determined upon a case made, as is admitted in the opinion to be the better practice.
    If the plaintiff has made out no case, of what importance are the alleged irregularities ?

      Elliott F. Shepard, attorney and of counsel for respondent, urged:
    I. Secret communications on the subject of the action by and between judge and jury, when the latter have retired to deliberate on their verdict, without notice to or consent of the counsel or the parties is illegal and voids a verdict. 1st. It is contrary to the fundamental law. Bill of Rights, § 8. U. S. Constitution, art. 7 (amd’t). 2d. It opens a door to the greatest abuses. If any such communication may be held, then a judge may secretly change his charge, charge on some point before not adverted to, direct a verdict, use his personal influence with the jury for or against either of the parties, bribe or intimidate the jury; and the jury, instead of squaring their verdict to their oaths, may substitute something else in place of their independent discharge of their duty. 31. The parries should not be put to questioning the judge, jurors and officer in charge, or searching the jury room, its tables, floor and spittoons, or to any other exertion out of court, to ascertain whether there has been concealed, indirect, wanton, secret or any other kind of communication or influence brought to bear upon a jury by a judge. 4th. Generally, such exchange of communications would remain unknown to the parties and the injured party not know the cause of his wrong ; in this case, it was discovered by mere accident, and after the fact. 5th. Nor is either party to be put to a new issue, as to whether such secret exchange of communication influenced the verdict. The whole must be above suspicion. 6th. Here, these secret communications did influence their verdict. The facts of the case, without such declarations—the nature and substance of these secret communications —show conclusively that these secret messages did influence their verdict; so the plaintiff was prejudiced without remedy. 7th. Both parties are entitled to be heard on the subject of the charge, and the court is entitled to the benefit of suggestions of counsel—but here both these legitimate conditions of a fair trial were lost.
    II. It has always been ce sured by the courts, and by an intelligent community (Taylor v. Betsford, 13 Johns. 487 ; Moody v. Pomroy, 4 Denio, 115 ; Benson v. Clark, 1 Cowen, 258 ; Bunn v. Croul, 10 Johns, 239 ; Thomas v. Chapman, 45 Barb. 98 ; Sargent v. Roberts, 1 Pick. 337 ; Gholston v. Gholston, 31 Ga. 625 ; Crabtree v. Hagenbagh, 23 Ill. 349 ; Louisiana v. Frisby, 12 La. An. 143 ; Fish v. Smith, 12 Ind. 563; Green v. Tellfair, 11 How. 260 ; Brant v. Fowler, 7 Cow. 562 ; Burrows v. Unions, 5 Carr. & P. 310 ; Morrill v. Nauf, 10 Allen, 416 ; State v. Smith, 6 R. I. 33; Rogers v. Moulthorp, 13 Wend. 274; Tilton v. Beecher (see Abbott's Report); O’Brien v. Merchant’s Fire Ins. Co. 38 N. Y. Superior Ct. 489 ; Watertown Bank v. Mix, 51 N. Y. 558). Were this res novo, this court would make a rule to guard the purity of the jury box, by sustaining the action of both branches of the court below in setting aside this verdict.
    III. The proper practice, which is to move at Special Term to set the verdict aside, has been adopted here (Green v. Tellfair, supra, approved in Caldwell v. N. J. Steamboat Co., 47 N. Y. 299 ; Watertown Bank v. Mix, 51 N. Y. 558).
    IV. The plaintiff neither consented to these clandestine communications, nor waived any objection to them. 1. Consent or waiver were impossible, for nothing was known of these communications until after they had occurred, nor what was their substance until after proceedings, by the respective parties on the trial, were ended. The permission given by the court to counsel to except to the charge, as mentioned in defendant’s counsel’s affidavit, related exclusively to the charge as delivered in court previous to granting such permission. The so-called permission was irregular in itself, for, strictly, the exceptions should be taken before the jury retire, so that the judge shall have the opportunity of modifying or recalling any portion of his charge. Plaintiff’s counsel considered it as a direction to counsel, and conformed to it, by immediately handing to the stenographer his exceptions to the charge, without even reading them to the judge. 2. There is no pretense that plaintiff consented or expressly waived. 3. Defendant did not call upon plaintiff to do either. Plaintiff was not put to any election on either point. 4. No act of the plaintiff or his counsel could annihilate the transaction and its effect. 5. There .was no intention either to consent or to waive. Even a waiver is in the nature of an agreement. There can be neither consent nor waiver without a knowledge of the facts and a consent of the mind. Here neither of these elements were present. 6. Even if the defendant’s counsel had, after the exchange of either the first or second communication, asked the court to call in the jury, and try to correct his own previous error, it would not have affected the plaintiff’s right to relief, nor altered the effect upon the jury of those communications. It is a stronger case than that of improper evidence once admitted, the correction of which by the judge, will not cure its effect. But counsel did not make any such request, nor did the court do it of his own motion. 7. The defendants are estopped, by their course upon first learning of these communications, from claiming that plaintiff either consented or waived.

       Note. The defendant appealed from the general term order to the court of appeals.
      Plaintiff’s counsel on the argument, in the court of appeals, made the fourth point that the order was not appealable, and cited Williamson v. Montgomery (60 N. Y. 648).
      On June 13, 1876, the court of appeals dismissed the appeal. No opinion was written.

   Per Curiam.

The order is affirmed upon the opinion, delivered at Special Term by Judge Sanford, with ten dollars costs, and disbursements to be taxed.

At Special Term.

Sanford, J.

Upon the argument of this motion, 1 was disposed to direct that it be brought on before the judge who tried the cause, upon his minutes of trial, or on a case regularly made and settled by him. In Nesmith v. Clinton Fire Insurance Co. (8 Abb. Pr. 141), this course was suggested-as proper, and the hearing of like motions, before a different judge from the one who tried the cause, was declared to be “ a practice to be discouraged.” But in this case, as in that, the material facts appear not less fully in the affidavits submitted than they would in a case, as they are substantially undisputed. I have, therefore, consented, with the approval of the learned judge before whom the trial was had, though not without embarrassment, to dispose of the motion on the papers presented, and thus save to the parties the expense and delay incident to a further hearing elsewhere. I do so the less reluctantly in that a careful and extended examination of authorities has satisfied me that the question admits of but one solution : and, I may add, that the case above cited is, itself, a precedent for such action.

The cause has been twice tried, the first trial resulting in a disagreement of the jury. Upon the second trial, which commenced on the 10th and was continued until the 13th of January instant, a verdict was rendered for the defendant, which is now sought to be set aside for irregularity.

The action was brought to recover damages for personal injury sustained by the plaintiff, a lad employed by defendants, through their alleged negligence in the faulty construction and management of a lift or elevator, in use at their factory. After the charge of the court had been delivered permission was accorded to the respective parties to take such exceptions thereto, as they might thereafter be advised, and the jury retired to deliberate. The court, thereupon, proceeded with the trial of another case, counsel on both sides remaining in the court room to await the verdict. While engaged in their deliberations, and before a verdict had been agreed upon, the jury addressed to the judge a written communication which was brought in by an officer and handed to him, and to which he responded in writing.

That communication and the response thereto were as follows

Q. “ When Mr. Eckhart notified Mr. Dunn that the elevator was dangerous for the use of boys was Dunn negligent in law in not notifying the Appletons, and were the Appletons thereby made responsible in law?” “ Ans. Appletons were not liable, even though Dunn was notified.”

The attention of counsel does not appear to have been in any way attracted to this correspondence.

A second written communication was subsequently addressed by the jury to the judge, which was in like manner responded to by him as follows :

Q. “If Mr. Dunn "was not a competent superintendent, does that make the Appletous liable?” Ans. “All the evidence was that Dunn and the other servants were competent. I charged that being so, the Appletons were not liable. The jurors must find accord in g to the evidence in the case.”

While such second communication from the jury was in the hands of the judge, and before he had replied thereto, the plaintiff’s counsel, who was sitting near the counsel for defendants, privately remarked to him, that the judge had received some communication from the jury and was writing an answer thereto, and inquired vs hether they ought not to know what it was. To which defendants’ counsel replied that of course either party would have the right to except to such communication as part of the judge’s charge. The judge afterward sent out his answer to the jury, in the presence of counsel, without objection irotn either, and without any attempt, on the part of either, to ascertain wdiat the communications were.

Aiterwards, and when the jury had been out altogether for about three hours, they addressed to the judge a third communication in writing, to the following effect:

Ques. “Does the judge mean by his last communication that the jury are not to consider the competency of Mr. Dunn ? ”

On receiving this inquiry, the judge called counsel on both sides, to the bench, and informed them of its import; whereupon a discussion ensued as to what further communication, if any, should be sent to the jury in answer to the above message from them. This .discussion resulted in the judge’s sending word to the jury that he had no further communication to make to them, but that they might come into court if they desired. Very soon after, the jury came into court, and being interrogated as to whether they had agreed upon a verdict, answered that they had, and thereupon rendered their verdict for defendants.

Counsel for the defendants insists that the instructions contained in these communications were in no respect at variance with the charge as originally delivered, and that during the discussion above referred to, the plaintiff’s counsel made no objection to the judge’s having communicated with the jury as aforesaid. It appears, however, from the moving affidavit on the part of the plaintiff, that the two communications were not seen by, and that their precise nature was unknown to plaintiff’s counsel, until after the discharge of the jury and the adjournment of the court.

• Counsel for defendants now stipulates that exception may be. taken to the said "written instructions, as a part of the charge, and it will be assumed, for the purposes of the motion, as contended by him, that the rules of law, laid down in the said communications as applicable to this case had been on the trial fully and freely discussed and determined by the court as the law of the case, and had been clearly expressed in the charge, as originally delivered.

The course pursued by the learned judge with respect to the final communication received by him from the jury was in accordance with the well settled » and established usage and practice of the common law, as administered in England and in this State. Had it been adopted in the first instance, the proceedings would not have been open to adverse criticism.

In Burrows v. Unwin (3 Carr. & P. 310), which, like the present, was an action on the case for negligence, the jury, after their retirement, sent in a message desiring to have a certain law book sent to them from the library of the court. Lord Tenderden, C. J., asked the counsel, on both sides, if they objected, and they answered that they did not. His lordship, however, observed: “The regular way is for the jury to come into court and state their question and receive the law from the court, and for the sake of precedent, that course should be adopted now.”

The rule thus recognized and from which, on grounds of public policy, his lordship was unwilling to depart, has been so far relaxed by our own courts, as to admit of written instructions being sent by the court to the jury, at their request, if both parties expressly consent; but I have been unable to discover any reported case in which, without such consent, communications of the kind have been sanctioned or countenanced. It has even been held "that such consent must be affirmatively proved and may not be inferred. “ The history of the law,” as was well observed in the case of ‘O’Brien v. Merchants’ Fire Ins. Co. (38 N. Y. Superior Ct. R. 482), ‘1 discloses a struggle for centuries, to prevent juries from being approached by improper communications;” and I think it as essential to the important and effective administration of justice that the opinions and instructions of the court should be openly and publicly imparted, so far as litigants are concerned, as that the deliberations of the jury should be conducted with secrecy and in seclusion. Repeated infractions of this salutary rule in exceptional instances, varied in accordance with the exigencies of each particular case, would gradually fritter it away, and ultimately effect its complete abrogation. It should be permanent a’ d immutable. If trial by jury is to “remain inviolate forever,” every safeguard to its sanctity must be jealously upheld.

In Sergeant v. Roberts (1 Pick. 337), a verdict was set aside, under analogous circumstances, notwithstanding that the course pursued by the court had the sanction of an old local practice. That practice was condemned as “ dangerous to the rights of parties and opposed to the spirit of the common law, which demands that everything given to a jury, in relation to a case before them, should be given in open court, in the presence of all interested or authorized,, for criticism, for suggestion, to guard agai'nst injustice and error, and to afford the means of remedying or correcting them.” Like views were expressed, and a Jike result ensued in Merrill v. Nary (10 Allen, 416), and in Slate v. Smith (6 R. I. 33).

The decisions of our own courts are undeviatingly to the same effect, and mainly upon the ground that “ such a practice would be dangerous ” (Bunn v. Croul, 10 Johns. 248; Taylor v. Betsford, 13 Id. 487).

In the case last cited, the court refused to inquire whether the information given by-the justice was material or had any influence upon the jury. The practice was condemned as dangerous and improper, and one that “ ought to be guarded against ” (see also Rogers v. Moulthrop, 13 Wend. 274; Moody v. Pomeroy, 4 Denio, 115).

The cases of Bunn v. Crowl, and Taylor v. Betsford, were approved in Watertown Bank v. Mix (51 N. Y. 558), where it was said that “ There ought to be no communication between the judge and the jury after they have gone from the bar to consider of their verdict in relation to the oral evidence or his instructions, unless it take place openly in court, or with the express assent of the parties.”

Under this- explicit and authoritative exposition of the law, the verdict must be set a,side, not alone on the ground that the rights of the parties to the particular suit have not been fully protected and preserved, but upon broad grounds of public policy, and because, as was said by this court, in O’Brien v. Merchants Fire Ins. Co., above cited “not to set aside the verdict would establish a precedent which would tend to impair the upright and faithful administration of justice.”

Verdict set aside, and new trial ordered with ten dollars costs of motion, to abide the event, and to be taxed in favor of the successful party, with his costs in the cause.


source: Caselaw Access Project

author: By the Court.—Sedgwick, J.

license: Public Domain

text:
    WILHELMINA WEISS, Plaintiff and Respondent, v. MATHEW J. BRENNAN, Defendant and Appellant.
    Before Monell, Ch. J., and Sedgwick, J.

      Decided April 3, 1876.
    I. FRAUDULENT SALE OR TRANSFER OF PERSON AL PROPERTY, OTHER THAN NEGOTIABLE PAPER. TITLE' OF VENDOR OF SUCH PROPERTY TAINTED WITH FRAUD.
    1. Vendee for a valuable consideration, title of, when
    AFFECTED RY SUCH FRAUD.

      (а) . Notice.—When it appears that he liad previous notice of the fraudulent intent of his immediate grantor or of the fraud rendering void the title of such grantor.
    (б) . What constitutes notice ; Enquiry.

      1. If the facts and circumstances, in the exercise of common prudence, ought to awaken the suspicion of the vendor or grantor, and lead him to inquire, a neglect to inquire is in its consequence the equivalent of positive notice.

      (a). This is constructive notice.

    Appeal from judgment.
    The action was for trespass, in wrongfully taking and converting personal property.

      The defense was that the alleged taking, &c., consisted in the defendant’s levying an attachment against the goods of a firm, Meyers & Lohse, upon the goods in question, and that said Meyers & Lohse, or one of them, had a leviable interest in the goods. The answer contained a general denial, excepting, &c.
    On the trial, it appeared that Meyers and Lohse were retail dealers in house furniture. The plaintiff in the attachment had sold the goods in question, which were house furniture, to Meyers & Lohse about the middle of March. After that, the husband of present plaintiff- bought out Meyers. The business went on by Weiss & Lohse. After that, about April 12, Weiss & Lohse, for the purpose of transferring to the plaintiff (Weiss’ wife) a title, made a bill of sale, of.the business and goods to one Bauer, and at the same time Bauer, made a bill of sale to the plaintiff. Bauer had no rea.1 interest. The plaintiff paid an adequate consideration in money. Through the transactions in evidence, the husband acted as the agent of the plaintiff. The plaintiff in the attachment, the jury would ■ have been at liberty to find, called about the middle of April, and when the credit to Meyers & Lohse had expired, at the store, where the business had been done, to collect his. bill. Weiss, the husband, was sweeping out the store, and on being told of 'the circumstances, said that Meyers had sold out, but that his partner Lohse, was in the back room. There was a conversation then with Lohse, in which the facts of the sale to Meyers & Lohse, were stated. Lohse said he would pay one hundred dollars the next day. The plaintiff in the attachment, went there the next day, and saw Lohse & Weiss, the husband, in conversation. Lohse at once walked out of the store, and would not speak. Weiss, the husband, said the business was sold out to Bauer. Nothing was said about Bauer having sold to the plaintiff. The e facts were disputed by the plaintiff and her witnesses. The jury might have found the existence of other facts, which related to whether the transfer to her was ordinary or unusual in its circumstances.
    The court refused to charge the jury as requested by the defendant, “ that the notice” referring to the fraudulent intent, if it existed, of Lohse, in making the transfer to defraud the plaintiff in the attachment,
    ‘ ‘ required by the statute need not be direct, but if the facts and circumstances, attending a transfer of personal property are such as would put an ordinary man on his guard, and lead him to make inquiries, and he. did not do so, then he is held to have had notice,” and that to refrain from inquiring when the circumstances are such as to put a man of ordinary prudence on inquiry, is in judgment of law want of good faith.
    The defendant excepted. The jury found for plaintiff. This appeal is from the judgment entered upon the verdict.
    Vanderpoel, Green and Cumming, attorneys, and Robert S. Green, of counsel for appellant, urged:
    The circumstances entitled the defendant to go to the jury with the legal effect of such facts and circumstances stated as requested. If in the opinion of the jury such facts and circumstances would have put an ordinary man on inquiry, and none was made, or there was not due diligence in inquiry, in such a case it was more than want of business capacity—it was constructive notice of any defect such inquiry might have developed (Pringle v. Phillips, 5 Sand. 157; Danforth v. Dart, 4 Duer. 101, 106; Baker v. Bliss, 39 N. Y. 70, 74, 76; Whitbread v. Boulnois, 1 Y. & Coll. Ex. 303, 328).

      Kurzman & Yeaman, attorneys, and M. Yeaman, of counsel for respondent.
   By the Court.—Sedgwick, J.

If the plaintiff liad notice of the intent of Meyers or Lolise, in making the transfer to his or her vendor, to defraud the plaintiff in the attachment, the transfer to her was void against him. The rule "in relation to constructive notice applies to such a case, and a vendee is chargeable with a hnowledge of all the facts, that by a proper inquiry, he nrght have ascertained. He proceeds at his peril, if he omits to inquire. If the facts and circumstances, in the exercise of common prudence, ought to aw¿iken his suspicion, and lead him to inquire, a neglect to inquire, is in its consequences the equivalent of positive notice. These propositions are stated to be law in Pringle v. Phillips (5 Sandf. 157). That case related to goods that had been obtained fraudulently from the plaintiffs by the vendor of the defendant. Unnecessarily the court, said the principles in question, were applicable to negotiable paper ; all bough this • application has by many subsequent cases been deemed not to be law, the general application to chattels, and the transfer of other rights than such as relate to negotiable instruments, is n-cognized and acted upon. The case of Danforth v. Dart (4 Duer. 106), reiterates the principle and cites Pringle v. Phillips; Baker v. Bliss (30 N. Y. 76), cites these two cases and says, “ a want of caution and diligence, such as an honest man would ordinarily exercise, is a want of good faith.” The same rule is recognized fully, and succinctly stated in Devoe v. Brandt (53 N. Y. 466). There are very many cases on cognate transactions, which it is not necessary to cite.

There were facts in this case, which would have been properly considered by the jury, had the question been submitted to them, in saying whether the circum stances would have excited a suspicion, in a man of common prudence, that Meyers or Lolise intended to defraud the pi intff in the attachment, and whether, if ordinary investigation had taken place, based upon that suspicion, it would have resulted in showing that the intent was, in some way, to impair the creditor’s rights. Certainly a stock of goods is a better security, when in a debtor’s possession, than is the full value of them in money in the debtor’s pocket. In the present case, the plaintiff’s business was conducted by her husband, and she is chargeable with such knowledge as he had, and such notice as was given to him. I am, therefore, of opinion, that the learned judge should have charged as requested on this subject, by the defendant’s counsel, and that there should be a new trial, the judgment being reversed, with costs to appellant to abide the eyent.

Monell, Ch. J., concurred.


author: Per Curiam.

text:
    EDWIN L. BUTTERFIELD, Plaintiff and Respondent, v. WILLIAM RADDE, Defendant and Appellant.,

    I. EVIDENCE, INSUFFICIENT TO WARRANT A VERDICT.
    1. Stockholder, presumption of defendant’s being, from his being a Trustee.
    (a) Not sufficient to warrant a verdict against him, when there is enough proof to overcome it.

    1. What proof will overcome it. See note.

      Before Monell, Ch. J., and Sedgwick, J.

      Decided April 3, 1876.
    Appeal from judgment and order denying a motion for a new trial, a re-argument having been ordered.

      The facts appear in the report of the motion for re-argument, and the opinion of Chief Justice Mokell thereon, reported in vol. 40, p. 169.

      S. D. Seward, attorney, and D. C. Calvin, of counsel for appellant, and C. M. Earl, attorney, and of counsel for respondent.

      Notes by Reporters.—* This decision neither overrules nor conflicts with the proposition laid down in the bead note to the report of the case in vol. 38, at p. 1. This will" be apparent from a history of the case. The case first came "before the General Term, on appeal by the defendant,'against whom a verdict was rendered, from the judgment entered on such verdict, and the order denying his motion for a new trial.
      The General Term then held (1) that there was conflicting testimony both on the question as to whether defendant was a stockholder, and on that as to (if he was a stockholder) his holding it as collateral security ; that both questions were fairly placed before the jury ; and that there was no ground for disturbing their verdict as not being supported by the evidence. (3) And the trial judge after referring to the law requiring a trustee to be a stockholder, and a by-law of the company providing, “no person shall be a trustee, who is not the owner of at least ten shares in the capital stock of the company,” having charged “ that the legal presumption following these provisions of the statute and by-laws, would be that the defendant was a stockholder. . . the plaintiff does not rest his case on that alone. He has brought what he says is affirmative proof. . . But the presumption itself and the proof given by the plaintiff may be overcome by the testimony on the part of the defendant.” To which charge concerning the presumption that the defendant was a stockholder defendant excepted. Indisposing of this exception, the General Term held as shown in the head note on p. 1, of vol. 38.
      The case involving less than five hundred dollars, defendant moved for leave to go to the Court of Appeals, which was denied (vol. 38, p. 44).
      Another action against another stockholder of the same company, in which the evidence on the above mentioned questions of fact was the same as in this case, having been disposed of in like manner as this one, the defendant therein (over five hundred dollars being involved) appealed to the Court of Appeals, which court reversed the judgment without writing any opinion.
      Thereupon the defendant moved at General Term for a re-argument, which was granted (vol. 40, p. 169).
      On the re-argument the above decision was rendered based on the certificate of the chief justice of the Court of Appeals, referred to in above opinion, which had been obtained subsequent to the decision of the motion for a re-argument.

        It will thus be seen that the reversal by the Court of Appeals and the above decision do not proceed on the ground of error in the proposition of law charged on the trial ; but on the ground that conceding the correctness of that proposition, the evidence in the case, notwithstanding such presumption, did not warrant a verdict against the defendant.
      For the better understanding of the decision of the Court of Appeals, it will be well here to give a summary of the evidence (as it is not contained in any report of the case). The plaintiff, to prove tl^e defendant a stockholder, read in evidence the by-laws, and called one of the trustees, who in substance testified that at a meeting of the board of trustees, held May 3, 1872, at which the defendant, Mr. Koehler, Mr. Seward, Mr. Landesman, Mr. Thalmessinger, and himself were present, a certificate for ten shares was delivered to Mr. Radde, in his clerk’s presence, or to his clerk in his presence, he could not tell which; that he supposed the delivery was made by Mr. Landesman as secretary. The defence called the defendant, who swore that no certificate was ever delivered to him or to his clerk in his presence, and that he never received any certificate ; the defendant’s clerk also swore that he was present during the entire meeting of May 3, that no certificate was delivered to him for defendant, that he saw none delivered to defendant, that he never saw any certificate among defendant’s papers. Mr. Seward swore that he was present during the entire meeting, that no certificate was issued at that meeting, that he saw no certificate made out or delivered to defendant ; and lastly Mr. Koehler testified that no certificates were issued at the meeting of May 3, that they were issued afterwards, and he received one, that he acted as treasurer of the company, that a certificate for twenty shares was made out to defendant, but never delivered to him, that he (Koehler) never signed it, as treasurer, and. that it still remains in his (Kqehler’s) possession. There was no subscription list or paper.
      This evidence the Court of Appeals held insufficient to warrant a verdict against the defendant; the chief justice giving the following certificate:
      “ The judgment in this case was reversed upon the ground that there was not sufficient evidence to establish that defendant was a stockholder.
      S. E. Church, C. J.”

       The same decision was made in the case of Elisha G. Selchow v. William Radde, argued with the above case.

   Per Curiam.

The chief justice of the court of appeals has made a memorandum, that the judgment in Mallery v. Radde was reversed, upon the ground, that there was not sufficient evidence to establish that the defendant was a stockholder. The defect of evidence, in that case, exists in the two present cases. For that reason, the judgments in these cases should be reversed, with costs to appellant to abide event, and a new trial ordered.


text:
    THE STAFFORD PAVEMENT COMPANY, Plaintiff and Respondent, v. JOSEPH A. MONHEIMER, Defendant and Appellant.
    I. PLBADÍNGS, BFFBOT OF.

    1. INVALIDITY OF CONTRACT, SUED ON.
    («.) When it cannot be raised under the answer.
    1. When the answer expressly admits the making and existence of the contract and contains no allegations apprising the plaintiff that the nullity of the contract is meant to be relied on.

      (a). General Denial; whether the illegality could be proved under a general denial, quaere.
    8. FALSE STATEMENTS AND REPRESENTATIONS.
    1. When they cannot be pboved although alleged in the
    ANSWEB.
    («). Under an answer which neither seeks to avoid the contract sued on for fraud, nor contains any allegation of an intent to defraud, nor claims that there was a mutual mistake as to the facts, in respect to which it is claimed that the false statements were made, nor avers that the statements related to material facts, they cannot be proved. 1

    Before Monell, Ch. J., and Sedgwick, J.

      Decided April 3, 1876.
    H. EVIDENCE, INCOMPETENT.

    1. ADMISSION OF, .WHEN NOT CAUSE FOR REFUSAL.

      {a.) Where the fact which the evidence was introduced to prove, is fully established by other uncontroverted competent evidence.

    1: Instance. Where the fact is asserted in the recital in an instrument executed by the party objecting to the incompetent-evidence, and he offers no proof to countervail his admission in the instrument.
    Appeal from judgment.
    The complaint was upon contract made by the de fendant, whereby, for and in consideration of the plaintiff granting a license to the defendant to use certain patents owned by plaintiff, for a certain kind of new and improved pavement for streets, the defendant covenanted 16 to use and employ his best endeavors to obtain contracts for laying said pavement on the streets of the said Metropolitan Police District,” and to pay the plaintiff twenty-five cents for each square yard of pavement to be laid by him.
    The answer admitted that the contract was made as averred in the complaint 'and that the defendant had laid the pavements specified in the complaint, and denied the allegations of the complaint not admitted.
    The answer further alleged that the plaintiff had ‘1 been fully paid any or all sums of money, which have become due” under the said contract.
    There were affirmative defenses, which there was no attempt to sustain upon the trial. The answer also alleged that before the making of the agreement “ certain statements or representations were made to the defendant, by and in behalf of the plaintiff, in respect of the character, value and cost of the pavement, the right to make and use which, was claimed by the plaintiff to be secured by the said alleged letters-patent, which statement and representations were in many respects false and untrue ; that by means of such statements and representations this defendant was deceived by said plaintiff, and induced by said plaintiff to enter into the said contract or agreement with the plaintiff, and that by reason of the said statements and representations and the falsity thereof, the said contract, became worthless to this defendant and impracticable for any beneficial purpose, and that this defendant has been put to great expense and sustained damage thereupon in the sum of $25,000.”
    Upon the trial, the court directed the jury to find .a verdict for plaintiff.

      Gratz Nathan, attorney, and of counsel for appellant, on the points decided, urged:
    The court erred in refusing to' allow the defendant to prove the facts which he offered to show. The plaintiff’s objection that the false representations alleged should have been pleaded specifically has no force. If the plaintiff desired such specification, he might have made a motion for a bill of particulars. Having gone to trial on the pleadings as they stand, he can not now object that the pleading is not specific as to details. The testimony that was excluded was material, not only in support cf the defendant’s counter-claim, but also in bar of a recovery, for if the defendant had proved under such offer the facts alleged, the plaintiff would not have been entitled to any relief in a court of equity. The court would have refused to enforce the covenants of a contract against a party who had been induced to make the contract by the false or fraudulent representations of the plaintiff.

      E. M. Wight, attorney, and Henry Broadhead, of counsel for respondent, on the questions decided by the court, urged :
    I. It would appear that the answer, instead of admitting the contract sued on, should by a defense of non est factum or in some other way raise the issue of the defense of immorality or illegality.
    II. This answer shows no counter-claim. It squints toward a cause of action for fraudulent misrepresentation, but- there is no allegation of that kind in it. It doesn’t even allege false representations of any existing issuable fact. “Certain statements” were made “in respect of tbe character, value and cost of the pavement ; ” and some of these statements were not true, whether it was as to the character of the pavement, not its moral character nor its characteristic construction, which could not be issuable facts ; or whether it was as to its value, which could not be an issuable fact; or as to its cost, which would seem to depend somewhat upon tbe price of lumber; it don’t appear in respect of what representations defendant was deceived. In an action of fraud (and a counter-claim must be a good complaint), the particular fraud is the gist of the action. On a trial an allegation of mistake can not be amended so as to allege fraud and the judgment sustained. And the particular fraud must be proved as laid. In an action to recover the purchase price of a quantity of barley, the answer alleged that plaintiff represented it to be good first quality merchantable barley, and that defendant’s agent who made the purchase relied upon the representation that the barley was not merchantable, which fact was known to the plaintiff. Held, that this answer did not raise an issue of fraud, and evidence offered in proof was excluded (Lifler v. Field, 52 N. Y. 621). But the offer to sustain the insufficient allegations of the counter-claim in the action at bar, was only by proof of the declarations of a deceased officer of plaintiff, whose authority to defraud defendant was not shown (Watson v. Bennett, 12 Barb. 196 ; Ayer’s Case, 25 Beav. 520).
    Both counsel submitted points on the question of the illegality of the contract.
   By the Court.—Sedgwick, J.

The two most important exceptions argued upon this appeal, cannot be examined upon their merits, because they relate to possible defenses, which are not made by the answer. The first is, that the contract was void as against public policy. At the common law, such a defense might have beemmade, under the general issue, although the defendant was at liberty to plead the illegality specially. It is unnecessary to say whether, under our system of pleading, an illegality sufficient to make a contract void, could be proved under a general denial; for the answer expressly admits the making and existence of the contract and there are no allegations which apprize the plaintiff, that the defendant means to rely upon the nullity of the contract. The second is, that the contract became void by its terms, when at the expiration of sixty days the defendant had not procured the contract for paving Seventh avenue. This defense is not made by the answer, nor is it therein alleged to be the' fact, that the contract was not obtained within that time.

Certain assignments of the patent, for the improved pavement, were admitted in evidence, upon objection, without legal proof of their execution. Their admission was no doubt due to a hasty construction (such as has to be made in the hurry of a trial) of the terms of a stipulation. Their admission was harmless, because the recitals of the contract established all and more than could have been proved by the assignments. The contract recited, as a fact, that the patent had been issued and was owned by the plaintiff. There was no defence in the answer asserting that the plaintiff was not owner, and if there had been, no evidence was offered by defendant to countervail hjs admission in the contract.

The defendant placed a witness on the stand and put to him questions for the purpose of showing that the president of the plaintiff made certain false statements and representations, as alleged by the answer and that the allegations of that part of the answer which related thereto were true. This was properly overruled. The answer made the allegations referred to, not for the purpose of avoiding the contract for fraud, but to show damage in the amount specified. No damages could however be claimed, in the absence of fraud, and there was no allegation of an intent to defraud or its equivalent or offer to prove it. Nor did the defence claim that the contract was made upon a mutual mistake, as to the facts which were asserted by that part of the statements which it was generally alleged were untrue. Nor did the defence allege that, that part of the statements said to be untrue related to material facts (Phillipi v. Conklin, 58 N. Y. 683).

There were other exceptions, which it is unnecessary to state, as they were not important, and we think that the judge was clearly right in the rulings as to which they were made.

The judgment is affirmed wi;h costs.

Monell, Ch. J., concurred.


text:
    SAMUEL W. GIBBS, et al., Plaintiffs and Appellants v. JAMES S. HUYLER, Defendant and Respondent.
    Before Monell, Ch. J., and Sedgwick, J.

      Decided April 3, 1876.
    I. EVIDENCE.

    1. HEARSAY, when conversations and declarations not in the presence of the party to be affected, do not fall -within the rule excluding hearsay evidence.

      (a) Where a party in support of his case proves and relies on an act done by the other, the conversation aad declarations by such other party to and with a third party at the time of doing the act which induce it are admissible as characterizing the act.
    1. Series oe acts. So of a series of similar acts, the party being moved to each subsequent one by the issue of the previous one being in accordance with the statements and declarations made at the time of doing the first act. Such statements and declarations, and evidence as to the issue, are admissible to characterize each subsequent act.

      (a) Semble.—This though the party against whom the evidence is offered■, has only proved and relied on the subsequent acts.

    1. The prinr'ple - f res gest.e, not that of inter Alios acta applies,
    n. WITNESS, EXAMINATION OF,

    1. CONTRADICTING YOUR OWN, what does not fall within the rule against.
    (1.) Proving a fact material to the issue to be contrary to what the witness has testified although the testimony was given in response to your’own question.
    Cross-examination. The rule applies as well wit ere you have made a witness your own on cross-examination, as when you call a witness in your own behalf.

      Appeal from judgment, entered on report of referea

      Thos. Darlington, for appellant.

      Alexander Ostrander, for respondent.
   By the Court.—Sedgwick, J.

The action was for goods sold and delivered. The goods were sold to one McCadden, personally. The plaintiff took the burden of proving that McCadden bought as the agent of Huyler, the defendant. The referee found as a fact, that he did not. On the plaintiff’s case, there was sufficient to sustain this finding, and on the whole case there was abundant testimony, leading to such result.

The plaintiff proved, as a part of their opening case, and in corroboration of their main position, that at the commencement of the dealings between McCadden and the plaintiffs, or their predecessors, the defendant Huyler had endorsed four or five promissory notes made by McCadden, in payment, for goods. In defense, the defendant Huyler was asked, in his own behalf, how he came to endorse those notes. The answer was that McCadden had asked him to endorse a note; that McCadden had then said that one of the plaintiffs would trust him, but another would not; that the witnesses objected, but finally endorsed the note, and that note being paid, he endorsed five or six more after that, which were also paid, but finally, after this running on for about two years, he refused to endorse any more. It is well to say, that the plaintiffs showed that after about two years, they took McCadden’s notes without Huyler’s endorsement.

The plaintiffs moved to strike from this answer, the declarations of McCadden made to the witness, and also that the witness refused to endorse. The referee denied the motion, and the plaintiffs excepted. I think the referee was correct. The statements to Hujier were not evidence of the facts stated in them, but the conversation and its character, proved the fact of the defendant endorsing for the accommodation of Mc-Cadden. The plaintiffs said the endorsement shows the agency. The defendant said the manner in which the endorsement was induced shows there was not an agency, so far as an inference from the endorsement goes.

The plaintiffs called on McDowell as a witness, who testified that at the burial of McCadden, Huyler had admitted that he owned all the stock in the store, where business was done ostensibly in McCadden’s name. On cross-examination by defendant, the witness testified that he was the landlord of McCadden, that Mr. or Mrs. McCadden paid the rent, and that the lease was in McCadden’s name. He was further cross-examined as to when, where, and in whose presence, the lease was negotiated or made. In answer, he named several persons, and said that Huyler, this defendant, was one of them. At a later part of the case, the defendant called one of the persons named, and proved by him the making of the lease, but also that Huyler was not present thereat. This last was objected to by the plaintiffs’ counsel, on the ground that defendants had made McDowell their own witness on this subject, and could, therefore, not contradict him. The objection was overruled. The exceptions taken on this subject are not tenable. If McDowell had been called by the defendant, the latter would have been at liberty to show, as an affirmative fact, to rebut the position that McCadden was carrying on business for the defendant, that McCadden had leased the store in his own name, and that Huyler took no part in that. If McDowell had said that Huyler was present, the defendant would not have been precluded from going on by other witnesses to show Huyler had nothing to do with the leasing, and was not present. The only result would have been, that he would not have been at liberty to argue from this difference in the testimony, that it impeached McDowell’s evidence, but the defendant could not be shat out from proving what the fact was.

I would most earnestly complain of the unnecessary labor imposed upon the court, by including in the printed case large masses of unimportant testimony, and long exhibits, which have to be examined, while the examination shows that they can aid neither side, on the appeal.

The judgment should be affirmed with costs.

Monell, Ch. J., concurred.


text:
    STEPHEN BRAGUE, Plaintiff and Respondent, v. THOMAS N. LORD and Others, Executors, Defendants and Appellants.
    I. PA TT.

    (1). Examination of, as against n executor, &c., under § 399 of the Code.
    1. Conversation between the deceased and a third
    PARTY, AT WHICH THE PARTY WAS PRESEET.
    (<*) He can not testify as to such conversation when it appears to be connected with something that passed between him and the deceased.
    (1). Instances falling- under this rule.

      (a) Test mony by the party that at an interview at which he, the deceased, and a third party were present, he advised them to revoke an instrument, does.

      (b) So also does testimony that at an interview between him, the deceased, and a third party (being the executor), the subject of payment for his services, arose, when the deceased, turning his head, toward the witness,-said to the third party: “ We can not tell what we will have to pay, until we know what our lawyers’ charges are.”
    1. This letter is ex parte a communication between the witness and the deceased, unless the witness was to be understood that he did not give a responsive tacit assent of some kind.
    2. What dobs not fall within the bule.
    (as) Value of services.

    When the party has testified to certain specific services performed, and also generally to services rendered, and there is also other evidence as to services rendered by him, and his general employment as attorney to take charge of a certain business in respect to which the services were performed has been established, a question put to him: “From your knowledge of the services that you rendered taking in these specific items which you remember having done, and your general recollection as to what you did do, and the result, what in your opinion would be a fair compensation ?” does not fall within the rule.
    1. The objection that it did, if good, should have been taken when he testified to his services and what he did.

    IT. EVIDENCE.

      Í. INCOMPETENT, RECEPTION OP, EFFECT OF.
    (<t) Reversal of judgment, when not called fob.
    1. When upon the other evidence in the case, the jury would have been bound to find in favor of the party in whose behalf the evidence was received, upon the issue to which it related, and did so find, the reception of such evidence is not cause for reversal.
    III. REWARD, OFFER OF.

    1. Defense to an action brought to recover for legal services rendered on the specific employment of the party offering the reward, that they were rendered relying for compensation upon the promise contained in the offer of a reward.
    1. Evidence, not sufficient to sustain the defense.
    1. Letter written by the plaintiff claiming an interest in the reward, if it should be earned, is not, there being nothing in the letter showing that he based his claim to the reward upon anything done by him as attorney, and for which he claimed in the action.
    Before Monell, Ch. J., and Sedgwick, J.

      Decided, April 3, 1876.
    2. A receipt for a specific sum, stating that it is to be deducted from the first reward to which the plaintiff may be entitled, is not.
    Appeal from judgment.
    The complaint sets out two causes of action, one for services, as an attorney on the employment of Rufus L. Lord, defendant’s testator, and the other for a part of a reward offered by Mr. Lord and Mr. Barron.
    On the trial, the court practically withdrew from the jury the second cause of action.
    The defendants’ answer was a general denial, averring that the reward had been offered, and that whatever the plaintiff did, of the services stated in the complaint, he did solely under the offer of reward and not. otherwise.
    A large amount of bonds and other securities, in part the property of Mr. Barron and in part of Mr. R. Lord, had been stolen. The plaintiff acted as Mr. Barron’s attorney, in the matters attendant upon the loss. After the larceny, Mr. Barron introduced the plaintiff to Mr. Lord. The plaintiff gave evidence to show that Mr Lord thereupon employed him as his attorney, and that under that, he did various things. The exceptions and the evidence pertinent to them, appear sufficiently in the opinion.
    The jury found for the plaintiff.

      John E. Burrill, for appellant

      Samuel Jones, for respondent.
   By the Court.—Sedgwick, J.

The most serious exceptions relate to evidence that the plaintiff, as a witness, was allowed to give of conversations of Lord, the defendant’s testator. Some parts of these conversations were so clearly immaterial that it is not necesasry to specify them here. There were two important matters contained in the evidence. It will be noticed, that Mr. Barron owned a part of the stolen property, and Mr. Lord, the rest. The plaintiff’s claim was that he was employed by them individually, and not jointly. They had given to detective officers a power of attorney to act for them in certain respects. The plaintiff, as a witness, testified, under one of the objections, now considered, that he was present at an interview, at which he advised them to revoke that power of attorney, which was done. This was a personal transaction and communication between the witness and the defendant’s testator, which section 399 of the Code, forbade the witness being examined concerning. In Simmons v. Sisson (26 N. Y. 277), in Lobdell v. Lobdell (36 N. Y. 333); in Hildebrant v. Crawford (6 Lansing), and in the opinion of Judge Johhsoh, in Cary v. White (59 W. Y. 331); the admitting of the testimony was sustained because the transaction or communication, or conversation, was wholly between the deceased and a third party, and personal to them, the presence of the witness not changing its character in this respect. Likewise, it.is true, that the presence of a third party, will not show that what is in fact a personal transaction or communication between a party and a deceased person, is something different. IIor could what was said between the third party and the deceased which appears to be connected with something that passed between the witness and the deceased, be properly given in evidence, by itself. The whole of a conversation or transaction, not a part, is the competent evidence.

The same considerations are pertinent to the subject matter of the other exception. The plaintiff'testified to a conversation when the deceased and his brother were present, when, as the witness said, “the subject of the payment for his services arose,” and that Mr. Bufus L. Lord said to Mr. Thomas Lord, “we cannot tell what we will have to pay, until we know what our lawyer’s charges are—turning to me, we three being together, turning his head towards me.” It is manifest that this as testified to, was in part, a communication between the witness and the deceased, unless the witness was to be understood, that he did not give a responsive tacit assent of some kind.

I am however, of opinion, that the judgment should not be reversed, if the testimony given could not have injured the defendant. It could not have done so, because there was uncontradicted evidence in the case, on which, the jury would have been bound, as matter of law, to find for -the plaintiff, on the issue, as to which the conversations of the deceased related. None of the witnesses were impeached. The inference on this point, to be drawn from their evidence, was not disputable. ■

As to the conversation about the power of attorney, it was in other parts of the case, shown, that the plaintiff drew it, and that Mr. Lord signed, and acknowledged it, and also other evidence, to which attention will be immediately given, showed that this was upon an employment by Mr. Lord. Without the conversation, the jury could have found only these facts.

On the subject of the- deceased employing the plaintiff, as his attorney, a detective officer proved, that his first acquaintance with Mr. Brague, the plaintiff, was made either by an introduction to him at Mr. Lord’s office, by Mr. Lord, or being referred to him by Mr. Lord. The witness was introduced to the plaintiff as Mr. Lord’s attorney, and was there to consult with him, and not annoy Mr. Lord. Mr. Lord preferred to leave it to Mr. Brague. He often went to see Mr. Lord, and each time was referred to Mr. Brague, and consulted with Mr. Brague, how he should proceed. He was directed to consult with Mr. Brague. Mr. Lord would go to a criminal examination in no case, only on the advice of Mr. Brague. Another detective officer swore that he attended to the matter from the first, that Mr. Brague was present whenever the witness had an interview with Mr. Lord and Mr. Barron. Mr. Lord was present a great many times. Mr. Brague seemed to be as much interested for one as for the other. There was no defense that the plaintiff had been employed by Messrs. Lord and Barron jointly. Through the case there was proof of many pieces of business being done by the plaintiff for Mr. Lord to Mr. Lord’s knowledge.

The inference from these things by themselves, is indisputable, in matter of law, that the plaintiff' was employed by Mr. Lord to do those things, for which compensation was claimed in the action. The only possible question as to it, arises upon the defense that Mr. Brague looked only to the reward, and acted only upon the promise contained in the offer of a reward. There were only three facts in the case, on which this doubt could rest. The first was, that there was an offer of a reward. The second, that in two letters given in evidence, the plaintiff claimed that he had an interest in the reward, in case it should be earned. The third was, the terms of a receipt for five hundred dollars paid by Mr. Lord to the plaintiff.

The fact of an offer being made to pay a, reward specifically for the return of bonds, does not in any way modify ilie obligations of the defendant’s testator, under an express or implied promise to pay for services as an attorney, one employed by him. The offer of reward did not in any sense, employ the plaintiff as Mr. Lord’s attorney.

Properly no inference cv.uld have been drawn by the jury, from the plaintiff’s two letters that be based his contingent claim to the reward upon any thing done by him, as Mr. Lord’s attorney, and for which he claimed in the action. They left his claim, unimpaired.

The receipt in evidence was Received from R. L. Lord, Esq., five hundred dollars to be deducted from first reward to which 1 may be entitled.” This, fairly construed supports the plaintiff’s position. Five hundred dollars being paid by Mr. Lord, showed that he owed a debt, upon something different from the offer of reward. He further recognizes that for something done by the plaintiff, he may also be entitled to the reward. The money was not to be returned, but the plaintiff promised to deduct it from the amount of the reward he should become entitled to.

There were some exceptions taken to refusals to charge, in respect to the effect of the evidence as to the reward. As, however, we have deemed that there was not any proof to show that the services charged for were done under the offer of reward, there is no necessity of examining these exceptions. The learned judge instructed the jury that the plaintiff would not be entitled, under the testimony, to any recovery in the shape of reward, or for services done on Mr. Barron’s behalf. The material finding of the jury, was on the value of the plaintiff’s services to Mr. Lord, as his attorney.

1 do not agree with the learned counsel for the defendants, that the plaintiff in testifying to the value of his services was improperly allowed to give the value, based in part upon his own knowledge of what the services were, inasmuch as he must have spoken in regard to personal transactions with the deceased contrary to section 399. The meaning of the question was from his knowledge of the services, as he had testified they were, and his general recollection of those things he had testified he did. The objection should have been taken, if it were a good one, at the time he testified to his services and what he had.

There were objections taken to the introduction of copies of letters, in the absence of the originals and without accounting for them. Probably as no part of the claim was based directly upon the letters, they were collateral in that sense, which dispenses with the introduction of originals (1 Green. § 89). If this be not so, the introduction of the letters, so far as a disclosure of their contents was concerned, could not have influenced the jury to enhance the value of the plaintiff’s services, so far as they showed the return of a great quantity of the stolen property that bad been shown to be the fact by the testimony of other witnesses, and in no part of the case did the plaintiff claim that the measure of his compensation depended upon the amount of the bonds returned. Nor did the contents influence in any way the issue as to the plaintiff’s employment.

I have examined the exceptions with a sense that the merits of the issue were fully and fairly tried before the jury, and have npt been inclined togivegreater weight to them on this appeal, than is due to their practical relations to the result in the verdict.

The judgment should be affirmed with costs.

Monell, Ch. J., concurred.


author: By the Court.—Curtis, J.

text:
    LOUISA DOUAI WEHLE, Plaintiff and Respondent, v. WILLIAM C. CONNER, Sheriff, &c., Defendant and Appellant.
    EXECUTION, RETURN OF.—SHERIFF’S DUTY.
    On the 6th of October, 1874, the sheriff, defendant, received three executions in favor of plaintiff. On the 7th of October, 1874, the defendant made a levy upon property of the judgment debtor named in said executions, sufficient to satisfy the same, yet made no return upon said executions, and the action at bar was brought to recover damages for such non-return.
    On the trial, the defendant proved as a defense, substantially, that six weeks after the issue of these executions, and on the 19th of November, 1874, and after he had made the levy aforesaid, the debtors therein named, commenced an action against the plaintiff, and two other persons also commenced two several actions against plaintiff, and in each of said actions, warrants of attachment were issued against the property of the plaintiff to the defendant as sheriff, and he served copies of the same upon the judgment debtors, named in the executions, with the usual notice thereon; that said defendant received from such judgment debtors, a certificate to each warrant, to the effect that they were indebted to the plaintiff in the amount of the three judgments, the executions upon which, the defendant as sheriff then held, and with which he had made a levy upon the property of said judgment debtors. Upon these facts the defendant claimed that he was excused for the omission to return the executions, or that the plaintiff" was only entitled to judgment for nominal damages.

      Held by the court, that these facts constituted no defense on the part of the sheriff to the action, and afforded no excuse for the omission on his part to return said executions. Held also, that these facts did not establish the conclusion of law that the plaintiff was only entitled to nominal damages, or that upon the proof of said facts, the defendant should have been allowed to go to the jury on the question of damages.
    This case has been substantially decided in this court, and in the court of appeals, on a motion of the defendant to amend his answer, and to plead these facts as a defense (40 Superior Gt. Bep. 24J. The opinion of the court in the case at bar, refers to and gives extracts from the opinion of the court of appeals, in its decision of the appeal of that motion in regard to the duties of the defendant in the premises, and concludes substantially thereupon, that the defendant had no reason to consider how his duty in respect to the executions in question was affected by the issue of the attachmerts to him, until after be had returned the executions, and had the money thereupon to pay to the plaintiff. His duty was plainly to go on and make the money on the executions, and return the same. Any other view would be inconsistent with well established legal principles and rules. The facts present no features analogous to those cases, where the courts have so far relaxed the rule, so as to allow a sheriff to reduce the damages by proof that the judgment debtor had no property from which the execution could have been made.
    Before Curtis and Sanford, JJ.

      Decided, May 1, 1876.
    This is an appeal by the defendant from a judgment for seven thousand five hundred and fifty-eight dollars 'and eighty-five cents, entered upon a verdict directed by the court, in favor of the plaintiff.
    The action is brought against the sheriff to recover damages for the non-return of three executions in favor of the plaintiff. More than twenty days after answering, the sheriff moved for leave to set up as a second defense, that the execution debtors, in an action commenced by them against the plaintiff, and also two other parties in two several actions also commenced by them against this plaintiff, on Nov. 19, 1874 (six weeks after the issuing of the executions in question), caused warrants of attachments under the code to be issued against the property of the plaintiff in this action to the defendant, as such sheriff, copies of which were served upon the judgment debtors, with a notice endorsed thereon that he levied upon and attached all goods, chattels, and credits in their hands, belonging to the said plaintiff, and upon all debts due her from them, and that said sheriff thereafter received from them a certificate under each warrant, showing that they were indebted to the plaintiff in the amount of the three judgments, upon which he had the executions, and that said judgments and each of them, then remained in full force and effect.
    This motion was denied at the special term, on the ground that the proposed answer did not constitute a defense. This order was affirmed at the general term, (40 Sup’r. Ct. 24), and also affirmed by the court of appeals.
    At the trial, the facts proposed to be set up by this amendment of the answer, and other facts, were put in evidence, and the court considering them as not constituting a defense, directed a verdict for the plaintiff. From the judgment entered on this verdict, the defendant now appeals.

      Almon Goodwin and A. J. Vanderpoel, for appellant.

      Chas. Wehle, for respondent.
   By the Court.—Curtis, J.

The defendant contends that the facts in this case, were only partially disclosed on the motion for leave to set up the attachment proceedings, and on the appeals from the order denying that application. The case now shows, what did not then appear, that on October 7, 1874, the day after receiving the executions, the defendant made a levy on sufficient property of the judgment debtor to cover them. This additional circumstance, fails to make apparent any reason or excuse for the omission by the sheriff to comply with the provision of the statute requiring him to return the execution. In the opinion of Church, Ch. J., in the decision of the court of appeals on the defendant’s motion, the duties of the defendant as sheriff in respect to returning tills execution were strongly intimated in this language : “The sheriff was required by statute to return the execution, and the service of the attachment did not dispense with that duty. There was nothing in the attachment, or the statute relating to that remedy to prevent his levying upon property and making the money upon the execution. If the attachment operated at all upon his duty in respect to the execution, it was as to paying over the money to the plaintiff. The attachment law did not prevent the collection of the execution, and the latter process expressly required it,”

This view seems to leave very little room for the defendant to consider how his duty in respect to the execution is affected b.y the attachments, until after he has returned the executions and has the money thereunder to pay to the plaintiff.

The defendant takes the position, that though the attachments and proceedings under them may not have been a defense to the plaintiff’s action, yet that they constituted proper evidence in mitigation of damages. The case does not show that the attention of the court at the trial was called specifically to this, or that there is an exception to any ruling of the court, in regard to it, unless it comes within the scope of the defendant’s request to the court, to charge that the plaintiff is only entitled to nominal damages, and his exception to the refusal of the court to so charge. But assuming it to be in the case, it is difficult to see how it can be made consistent with any rule as to what may be proved in mitigation of damages. For obvious reasons the courts have jealously defined the bounds of the introduction of this class of evidence. It is never available to excuse bad faith, or wilful or wanton violations of the law. To establish as a precedent, that a sheriff when sued for refusing to return an execution, under which he has made an ample levy and one that fully indemnifies him for any possible liability by reason of such non-return, should be allowed to go to the jury with evidence of this in mitigation of damages, would be inconsistent with well settled principles. Such a case presents no features analogous to those which have induced courts so far to relax the rule, that a sheriff may reduce the measure of damages in an action for non-return, by showing that the judgment debtor had no property out of which the execution could have been made. As to the views advanced in reference to the sheriff being a stakeholder, and that though lie may make the money on an execution the first day it is issued, he has a right to hold it until the sixtieth day, or as to any other right he may have other than to diligently proceed with and return the process, the language of Church, Ch. J., in reference to the sheriff’s conduct with this execution, in the opinion above cited, is relevant: “ It was six weeks after its delivery to Mm before the attachments were served, and then he took the responsibility of keeping the execution and neglected to make any return. The sheriff had no such right of his own motion, and without the direction of the court. Such a course nrght prevent the collection of the execution, and also defeat the benefit of the attachment.”

No question is before us as to the validity of these attachments. If the suits in which, they are issued result adversely to the plaintiffs, or if the defendant gives the undertakings specified by the Code, §§ 140, 141, they are discharged. If they are in force, when the money is ready to be paid to the plaintiff on the executions, then if at all, the attachment operates upon the duty of the sheriff in respect to the executions, and then the court may see fit to stay the proceedings, or to direct the retention of the money in the sheriff’s custody, or to order that it be paid into court, protect ing the rights of all parties until their respective interests are determined.

The question that the plaintiff is estopped by her own acts is raised by the defendant. It is argued, that she having succeeded in getting the injunction restraining proceedings on this execution granted in a suit brought against her by the execution debtors set aside, on the ground that the attachments were a valid lien, she is now estopped from saying that the attachments are of no avail. It is a sufficient answer to this, that the sheriff has not so far proceeded in the discharge of his duty under the execution, as, to be in a position to present any question before the court as to the availability of the attachments. But upon a reference to this answer in the injunction suit, it is not easy to discover wherein the validity of these attachments is asserted. She alleges in regard to them that they were ‘ ‘ wrongfully - and fraudulently applied for and obtained,” and also further alleges, “that the said attachments, as this defendant is advised and believes, are utterly void, and are a part and parcel of the conspiracy between the plaintiffs, and the members of the said other two firms, to cheat, defraud, and ruin her, which said conspiracy was commenced on or about the 8th of December, 1869, by the issuing of the said thirteen attachments out of the said marine court, and was, and is continued by means of said three attachments last above mentioned, and by instituting this suit.”

This answer in the suit (and in which there was judgment for the defendant) does not sustain the theory, that she therein so far elected to treat the attachments as binding, that by such act she constituted against herself an equitable estoppel from claiming the full amount of her execution as the measure of her damages! or from claiming under the circumstances anything more than nominal damages. It is true as claimed, no evidence in respect to this alleged estoppel, was presented to the court when certain questions in this case were passed upon by the general term and the court of appeals, but it affords no ground for any different construction being put upon it,. than that arrived at by the learned judge at the trial.

The point is taken, that the plaintiff commenced her action prematurely, and in violation of the injunction in the suit against her. Even if this was so, it is late at this stage of the controversy, and in this way, for the defendant to set this up. The case discloses the existence of one or two injunctions or stays that were soon vacated, but fails to show any such breach on the plaintiff’s part, as is claimed in consequence of the commencement of this suit. The sheriff being also a party defendant in the injunction suit, if prejudiced, might have applied to the court for its discharge, and insisted upon having a proper undertaking to compensate him for any loss he might thereby be subjected to. It is not consistent with the policy of the law, after this long delay on his part, that one of his co-defendants in such injunction suit should be cut off from her remedy in another action after judgment and execution therein, by reason of his setting up that its commencement was an act of disobedience on her part to such injunction. The claim that the sheriff did not have time to advertise six days, and sell property under the levy, by reason of the injunctions, has to be considered in connection with the fact that the levy was made October 7th, 1874, the day after he received the executions, and that the first injunction was issued on the sixtieth day after such receipt. It is apparent, that he had neglected to proceed under his levy, and neither then, nor afterwards, did he take steps to sell; this neglect, db initio, of duty, does not favor the plea that he was prevented by the injunctions from proceeding. The facts disclosed by the evidence in the case fail to show that the plaintiff was entitled to only nominal damages, or that the defendant should have been allowed to go to the j nry, on the question of da m - ages.

The judgment appealed from, should be affirmed with costs.

Sanford, J., concurred.