text:
    Wolfe et al. vs. Brouwer.
    1. The plaintiffs entrusted the defendant with their acceptances of his drafts to be procured by him to be discounted, and to return the proceeds to the plaintiffs; for which he was to receive a commission: Held, that by placing in his hands written' contracts by them in the form of instruments negotiable by delivery, the plaintiffs made the defendant their agent to transfer the same before their maturity, to any one, in good faith, and for a valuable consideration ; so that any person who took them from him became the lawful owner of them, and entitled to recover from the plaintiffs thereon, to the value of the consideration advanced.

      2. Held, cdsó, That such drafts had no vitality, and were not binding on the plaintiffs, until so transferred. That if the authority so given was limited by private instructions to procure them to be discounted by one person alone, and the defendant transferred them to another, he would be liable as an unfaithful agent, for violating his instructions, to the extent of any pecuniary damage suffered by the plaintiffs thereby. But' that if such other person advanced the same thing or value as was intended by the acceptors to be received from the party designated, the damages, if any, would be merely nominal.
    3. That the passing of such acceptances, therefore, for value and in good faith to a third person by the agent, although a fraud on his principals, was not a conversion of them to his use, so as to make him liable for their value, or, in other words, to the extent to which they would be damnified by being obliged to pay them.
    4. That the real cause of action consisted in the plaintiffs’ agent making them liable for the drafts against instructions, or limitations of authority. And the fact that such agent received the proceeds and applied them to his own use, did not compel the transferee to prove for what, and the mode in which he received them.
    6. That whatever such agent received, on the misapplication of such drafts, he received for the plaintiffs, and as their agent, in a fiduciary capacity, and was bound to transfer to them; and for not delivering it over might be held to bail. But he was not liable for the conversion of the drafts eo nomine to the extent of the liability impos.ed by his act on the plaintiffs.
    6. Although an order of arrest ought not to be granted on assertions made on information only, stated generally, yet if such allegations are not met by a denial on a motion to discharge from arrest, they will be taken to be true.
    (Before Robertson, Ch. J.
    at special term, February —, 1866.)
    Motion to discharge the defendant from arrest, or to reduce the amount of bail.
   Robertson, Ch. J.

The plaintiffs entrusted the defendant with their acceptances of his drafts, amounting to seven thousand dollars, to be procured by him to be discounted at a certain bank, (the Grocers,) and to return the proceeds to the plaintiffs, for which he was to receive a commission.' By placing in his hands written contracts by them, in the form of instruments negotiable by delivery, they made him their agent to transfer the same before their maturity to any one, in good faith, for a new and valuable consideration ; so that any one who so took them from him became the lawful owner of them, and entitled to recover from the plaintiffs on them to the value of the consideration advanced. They had no vitality, and were not binding on the plaintiffs until so transferred. If the authority so given was limited by private instructions, to procure them to be discounted by one person alone, and the defendant transferred them to another, he would be liable as an unfaithful agent for violating his instructions to the extent of any pecuniaiy damage suffered by the plaintiffs thereby. But if such other person advanced the same thing or value as was intended by the acceptors to be received from the party designated, the damages, if any, would be merely nominal. The passing of such acceptances, therefore, for value and in good faith to a third person by the defendant, although a fraud on his principals, was not a conversion of them to his use, so as to make him liable for their value, or in other words, to the extent to which they would be damnified by being obliged to pay them. They could not bring any action against the party who so received such drafts, for conversion, which they could do if they were illegally transferred to them. Until after such new value was received, and the transfer of ownership completed, the plaintiffs were not liable for the draft's, and therefore the real cause of action consists of their agent making them liable therefor against instructions or limitations of authority. The fact that such agent received the proceeds and applied1 them to his own use does not alter this state of things. Such a fraud does not compel the transferee to prove'for what, and the mode in which he received them. (Case v. Mechanics’ Banking Association, 4 N. Y. Rep. 166.) Of course whatever such agent received on the misapplication of such drafts, he received for the plaintiffs, and as their agent in a fiduciary capacity, and was bound to transfer to them. And for not delivering it over might be held to bail. But he is not liable for the conversion of the drafts eo nomine to the extent of the liability imposed by his act on the plaintiffs. The defendant is, therefore, liable to be held to bail. The only remaining question is the amount.

Although, perhaps, the order of arrest ought not to have been granted on assertions made on information only, stated generally, yet it is to a certain extent a matter of discretion with the officer granting the order, how far he relies on'the statement of the party making the assertion; for even if he furnishes the name of his informant, and states his means of knowledge, it would still be but hearsay, but if such allegations be not met by a denial on a motion to discharge from arrest, they must be taken to be true. ( Union Bank v. Mott, 9 Abb. 108.) In this case the draft for two thousand dollars has been passed by the defendant to a third person for value, so as •prima fade to make the plaintiffs liable for the whole amount. He does not state what he has received, and one of the plaintiffs swears he has received nearly the whole amount. The bail may therefore be reduced to $2500, with $7 dollars costs of this motion to the plaintiffs, to abide the result.


source: Caselaw Access Project

author: Robertson, Ch. J.

license: Public Domain

text:
    The Northern Bank of Kentucky, plaintiffs, vs. John Wright and Albert T. Yenni, defendants.
    Where, in an action brought against two defendants, as joint debtors, the summons is served on only one, who appears, no appearance being entered for the other, the judgment should be entered against both defendants, but directing the amount recovered to be made of the joint property of both, arid the individual property of the defendant served.
    (Before Robertson, Ch. J. at special term,
    February —, 1866.)
    Motion to vacate an order vacating a judgment as to one of the defendants.
   Robertson, Ch. J.

The order made in this action, which the present motion seeks to vacate, was that the judgment against the defendant Yenni be vacated. The judgment roll and affidavits before me show that the suit was brought against the two defendants, as joint debtors, and that process was served only on the defendant'Wright. The judgment does not profess to be entered upon any appearance for the defendant Tenni, and the notice of appearance . annexed to the roll is only fon his co-defendant Wright. There must be some mistake, therefore, in supposing there was a notice of appearance given for both defendants. If there was, the attorney for Wright has deposed that his authority to appear for Tenni came from Wright alone. If there ever was a partnership between the defendants, upon which I do not undertake to pass; it was dissolved before such notice of appearance (if any) was given, and in such case the attorney who appeared was unauthorized by the defendant not served, and this would have entitled the defendant Tenni to have had any default opened, and to have put in a defense.

The statute (Code, § 136) permits a party to sue persons as joint debtors, and in case of non-service of a summons upon any, to enter a judgment against all the defendants jointly indebted, to be enforced against their joint property. The order how under review, cuts off this right on the part of the plaintiffs, and was evidently made through inadvertence. It must, therefore, be modified, by allowing the judgment to stand against both defendants, but directing the amount recovered to be made of the joint property of both defendants, and the property of the defendant served. As a condition of such amendment, the plaintiffs must pay the costs of this motion, fixed at $10. If they fail-to make such amendment, and pay such costs, the motion must be denied, with like costs.


text:
    Albert Speyers, plaintiff, vs. Henry Torstritch, defendant.
    On an application for an order to compel the production of books, papers and documents, enough must be stated to justify the presumption that entries relating to a specified subject matter, and tending to prove some claim or defense exist. The documents required should be specifically stated, in order that the court may judge whether they are evidence. The mere affidavit of the party, or his counsel, to that effect, which assumes the office of the court, is not sufficient.
    (Before Robertson, Ch. J.
    at special term, February —, 1866.)
    Motion for an order to compel the production of books, &c.
   Robertson, Ch. J.

The Revised Statutes permit an enforcement of the production of books, papers and documents in the possession of an adverse party relating to the merits of a suit or a defense therein, (2 R. S. 199, § 21,) but the court is to be governed by the principles and practice of the court of chancery in prescribing the cases and proceedings for such discovery. (Id. § 22.) The Code extends this to books, papers and documents containing evidence relating to such merits and defense. It is held in the case of Hoyt v. American Exchange Bank, (1 Duer, 652,) that enough must be stated to justify the presumption that entries relating to a specified subject matter, tending to prove some claim or defense, exist. The documents required should be specifically stated, (Jackling v. Edmonds, 3 E. D. Smith, 539,) in order that the court may judge whether they are evidence. The affidavit of the party or his counsel to that effect is not sufficient. (Pegram v. Carson, 18 How. 519.) In this case the petition does not state what the entries are, but merely generally that such books, documents and entries contain entries of purchases and sales of gold not entered in the account rendered to the plaintiff, and that the plaintiff will be able to prove from the insertion or omission of entries showing purchases and sales'of gold by the plaintiff on his own behalf and on behalf of others, and the comparison of such entries, that the plaintiff did not buy and sell the gold in question for the defendant. This is not sufficient under either the Revised. Statutes or the Code. If it were, it is met by an equally general denial of the existence of such entries. (Hoyt v. American Exchange Bank, ubi supra.) The defendant is not entirely remediless, as he may still subpoena the plaintiff to produce such books.

The motion is denied, with $7 costs.


text:
    Terence McGune, plaintiff, vs. Courtlandt Palmer et al. defendants.
    1. The "injury” intended by the 219th section of the Code, the production whereof entitles the party exposed to it, to an injunction, is not that accomplished by judicial proceedings and forms of law, unless abused.
    2. An action by a landlord, or a new tenant, against a lessee in possession, to recover possession of the land, or summary proceedings before a magistrate for that purpose, do not constitute such an injury.
    3. The making of a parol lease by the owner of land constitutes a legal title in the lessee, which he is entitled to defend against all the world, by all the means the law permits for the defense of property against an arbitrary assailant ; and constitutes a complete barrier to all attempts legally to eject him, before the legal termination of the lease.
    (Before Robertson, Ch. J.
    at special term, February —, 1866.)
   Robertson, Ch. J.

The plaintiff in this case alleges in his complaint the making by the defendant Palmer of a parol lease to him of the premises in controversy, until the 1st of May, next. This constitutes a legal title in the plaintiff, which he is entitled to defend against all the world, by all the means the law permits for the defense of property against an arbitrary assailant. It would necessarily be a complete barrier to all attempts legally to eject him, until the termination of the lease. The lease alleged to have been granted by the defendant Palmer to the defendants McMahon and Lane, does not confer on either of them additional power to annoy the plaintiff. The “ injury intended by the 219th section of the Code, whose production entitles the party to be injured to an injunction, is clearly not intended to be that accomplished by judicial proceedings and forms of law. ( Woodworth v. Lyon, 5 How. Pr. 463.) An action to recover possession of the land by the landlord or his new tenants, or summary proceedings before a magistrate, do not constitute such an injury. And there is no allegation of threats of violent ejection without forms of law; even if a court of equity, and not a criminal court or a police magistrate, were the proper authority to afford redress. It is not a question of doubtful right, upon the plaintiff’s own showing, and if it were, the injunction could only be granted until there should be a trial of the ' right at law. Mere trespasses, even when injurious to the subject matter of an action, and against which the possessor of it could not always guard, unless productive of irreparable injury, or a multiplicity of suits, or creating a nuisance, were formerly not subjects of an injunction order. (Mogg V. Mogg, 2 Dick. 670. Norway v. Rowe, 19 Vesey, 147. Stevens v. Beekman, 1 John. Ch. 318. Jerome v. Ross, 7 id. 315. N. Y. Printing Company v. Pitch, 1 Paige, 97. Hart v. Mayor of Albany, 3 id. 213.) The power of injunction in common law actions, (Reubens v. Joel, 3 Kern. 488,) added by the latter clause of the 219th section of the Code, may have enlarged -such jurisdiction, but could not extend to trespasses extending to taking possession of the land in controversy, and excluding the plaintiff. The law intended, by creating tribunals to transfer the possession of- land to the owner quietly when held against his consent, without right, by a tenant, after the termination of his interest, to dispose of any questions as to such tenancy and termination summarily. And that, too, upon the ground that the injury of a transfer of possession was not irremediable if wrongly made; and for errors in any proceedings thereon an ample remedy is furnished by certiorari. ■■

The complaint in this case must/ therefore, be dismissed, with costs.


text:
    Supp vs. Keusing.
    1. A parol lease of premises, from the owner, is a perfectly good defense to any proceedings to eject the lessee summarily, or to an action to recover the possession of the land.
    2. Against unlawful violence the tenant has the protection of magistrates and the police, if unable to resist it by himself alone. A court of equity is not a proper tribunal to prevent or redress such wrongs.
    (Before Robertson, Ch. J.
    at special term, February —, 1866.)


text:
    Lane vs. Borst.
    1. It is the duty of a referee before whom all the issues in an action are tried, to insert in his report,'when required, his findings of facts and conclusions of law. The facts so required to be found, should be those forming part of the issues presented by the pleadings, and not those merely evidentiary of them.
    2. Where the defense was that the defendant delivered the note sued on to one C., to be discounted at a bank, for the benefit of the defendant,’ which was not done by him, and that the plaintiff was not the holder and owner of such note for a bona fide consideration before it became due; Sold, that the defendant had a right to have those questions specially passed upon, in the report; and that the referee-might be, therefore, directed to amend his report by inserting therein his findings upon them, to wit, the delivery of the note by the defendant to C., and its purpose; the acquisition of the ownership of such note by the plaintiff, before its maturity; and the bona fides of the consideration given by him therefor.
    (Before Robertson, Ch. J.,
    at special term, February —, 1866.


text:
    Tripler vs. Ehehalt.
    Additional evidence to support a point which was the subject of inquiry and testified to, on the trial—such as the degree of injury to the plaintiff in an action for an assault—is substantially cumulative; and a new trial will not be ordered on the ground of its discovery since the trial; particularly where the fact to be proved was within the knowledge of a witness examined on the former trial.
    (Before Robertson, Ch. J.,
    at special term, February —, 1866.
   Robertson, Ch. J.

J. The present motion is for a new trial, upon the ground of newly discovered evidence. The action was for an assault and battery; the plaintiff testified that he was 'so much injured by the attack complained of as to be unable to work for some time afterwards. The evidence claimed to be newly discovered is that one of the witnesses examined on the trial, (Hager,) knew, and could ■prove that the plaintiff was at work the next day, and not so seriously injured, and that the defendant was ignorant thereof. The severity of the injury to the plaintiff was therefore, a subject of inquiry and testified toon the trial. It has long been settled that such a fact is not a subject upon which newly discovered evidence is allowed in order to warrant a new trial. (Halsey v. Watson, 1 Qai. 24. 8- 'C. Col. § C. Ca. 160.) It is substantially cumulative evidence. (People v. N. Y. Superior Court, 10 Wend. 286. Brisbane v. Adams, 1 Sandf. 195.)

The motion must be denied, with $10 costs.


text:
    Weeks vs. Merritt.
    1. Want of service of the summons, in an action, is not a mere irregularity, but affects the jurisdiction, and is not affected by the statutory limitation of two ' years, against motions to set aside for irregularity.
    2. The court is bound to consider the service as made at the time stated in the proof of it, after a motion to set a judgment aside, founded on it for want of service, has been denied; and if such service appears therein to have been more than ten years ago, and no excuse is offered for the laches in not applying before, a motion to open the judgment and let the .defendant in to defend will be denied.
    (Before Robertson, Ch. J.
    at special term, February —, 1866.)


text:
    Hazlett et al. vs. Gill.
    The right of a party to change his attorneys is an absolute right; except that where a substitution is permitted, the lien of the former attorneys on any papers, for whatever sum is due to them, will be preserved.
    (Before Robertson, Ch. J.
    at special term, February —, 1866.)


text:
    Wolf vs. Trochelman.
    A change of attorneys, in an action, should only be by order of the court, and can only be made upon such terms as may be just; which, in special cases, may involve the payment of the attorney’s costs. CeneraHy the client has a right to change his attorney at his pleasure.
    (Before Robertson, Ch. J.
    at special term, February —, 1866.


text:
    Anonymous.
    Where the evidence of adultery, in an action for a divorce, rests on the unsupported testimony of the defendant’s paramour, the case will be referred back to the referee for further evidence; the testimony of the paramour being subject to the same objection as that of any other accompBce, (2 Msh. on Mar, and Div. 8, § 644, and cases cited in notes 2, 3 and 6.)
    (Before Robertson, Ch. J.
    at special term, February —, 1866.)


text:
    Lynch vs. Andrews.
    1. The service with an answer, served out of time, of the only notice of appearance for the defendant given in the action, indorsed thereon, may, where such notice waives an advantage of the defendant detrimental to the plaintiff’s proceedings—such as a misnomer—so far operate to render such an appearance contingent on the acceptance of such answer as served in time, as to render the retention of both a waiver of such irregularity, notwithstanding a verbal notice at the time of such service, and a subsequent written one, of a refusal by the plaintiff’s attorney to receive such answer; particularly where the latter has availed himself of such appearance by serving notice of assessment of damages on the attorney,
    (Before Robertson, Ch. J.
    at special term, February —, 1866.)


author: Jones, J.

text:
    Peter R. Strong, plaintiff, vs. Mary E. Strong, defendant.
    1. Counsel fees and alimony are generally to be allowed to a wife in an action for a divorce against her when in her answer she either denies her guilt or sets up affirmative defenses, such as forgiveness, of recrimination, under oath, or does both. But the court may refuse either, in the exercise of a sound discretion, when satisfied that the wife is altogether in the wrong, or has no reasonable ground of defense.
    2. The disagreement of a jury upon a previous trial of issues' framed in an action for divorce, takes the case out of the rule applicable to motions before trial for alimony, that the failure of the wife, either to aver her innocence under oath, or, if she has set up affirmatively as a defense, recriminatory charges on information and belief which are denied on oath by the husband, to support them by testimony of others who know the facts, deprives her of the right to alimony and counsel fees.
    3. Not only does such disagreement take the case out of the rule last mentioned, but it brings it within that other rule, which obtains on motions of this character, even when made before trial, to wit, that although a wife may be unable to verify recriminatory charges in her answer, even on information and belief, yet if she produce either positive affidavits of their truth by those who know the facts constituting such charges, or affidavits establishing them beyond question, alimony and counsel fees will be allowed, notwithstanding a denial by the husband of the charges against him under oath.
    4. A party in contempt of a court is not in a position to ask a favor of it; but the fact of his being in contempt of one court will not prevent his asking a favor of another one.
    5. It is very doubtful whether a charge against a party, in ex parte affidavits, (even although not denied) of having willfully disobeyed a prior order of the court in the same action, will justify such court in withholding a favor from such party, since it seems that to induce a court to withhold a favor on the , ground that the applicant is in contempt, such party must have been adjudged by the court to .be in contempt. Per Joses, J.

      6. A motion for alimony and counsel fees if granted, will not necessarily or gen- ■ erally be qualified by the condition that the defendant consent to a reference. A wife should not be forced to forego her right of a trial by jury, simply because she applies for alimony and counsel fees.
    (Before Jones, J.
    at special term, June 16, 1866.)
   Jones, J.

J. I think it may he regarded as a general rule that when an action for divorce is brought against the wife, and she in her answer either denies her guilt or sets up affirmative defenses, such as forgiveness, or recrimination, or does both, counsel fees and alimony will he allowed her; unless the court is satisfied that the wife is altogether in the wrong or has no reasonable ground of defense; in which case the court in the exercise of a sound discretion may refuse counsel fees and alimony.

The nunerous cases cited on the argument do not impugn this general rule. Some of these cases merely show what matters the courts have considered to. be sufficient to show that the wife is altogether in the wrong, or has no reasonable ground of defense, while others show that under the circumstances detailed in them, the court will hold that the wife has a reasonable ground of defense, and that she is not altogether in the wrong.

Thus some of the cases hold, that if the wife do not deny her guilt under oath, or do not either swear positively to the allegations constituting her affirmative defenses, or prove those allegations by the oaths of persons having positive knowledge thereof, then the court will say that either the wife is altogether in the wrong or has no reasonable ground of defense. Other of these cases hold that if the wife denies her guilt, under oath, or positively swears to the allegations in her answer constituting affirmative defenses, then although affidavits may be produced contradicting her oath of innocence, or contradicting her positive oath as to the affirmative defenses, then the court will be satisfied, either that she is not altogether in the wrong, or that she has a reasonable ground of de- ■ fense. One case intimates that although the wife may not be able to swear to her innocence, and may be able only to swear on information and belief, to the allegations constituting .her affirmative defenses, yet if she produces the positive affidavits of those who know the facts constituting such affirmative defenses, then the court will be satisfied that she has a reasonable ground of defense.

In the present case, the defendant, by her original answer, denies her guilt and sets up as an affirmative defense, forgiveness by the plaintiff. This answer is not sworn to. By the supplemental answer she sets up as an affirmative defense, adultery committed by the plaintiff. This answer hag the usual verification required by the Code. By this verification she does not swear positively that the recriminatory charges made by her are true of her own knowledge. Indeed, the affidavit which she made, on which to found her motion for leave to file a supplemental answer, clearly shows that the only knowledge which she had of these recriminatory charges was from information givén by others, which information she' believed to be true.

She has never sworn to her innocence, nor to forgiveness by the plaintiff.

From this statement it is evident that if this application had been made before issue upon the comptaint, answer and supplemental answer, it must have been denied, under the authority of the cases cited on the argument.

The question now presents itself whether the fact of atrial having been had by a jury, on issues framed, which resulted in a disagreement, can under any circumstances take the case out of the rule which obtains on motions before trial, that if a wife neither swears to her innocence, nor, having set up as an affirmative defense recriminatory charges on information and belief, which are denied on oath by the husband, brings to support those allegations affidavits of witnesses who know the facts, alimony and counsel fees will be denied.

I think it can, and not only that, but can bring the case within that other rule which obtains on motions of this character, made before trial, viz. that although a wife maybe unable to swear to her innocence and may be able to swear in her answer to recriminatory charges on information and belief only, yet if she bring the positive affidavits of those who of their own knowledge know the facts constituting the recriminatory charges, alimony and counsel fees will be allowed, although the husband denies the charges against him under oath.

If the evidence adduced at] the trial, and its effect on the jury, is such as to show the court that there was positive evidence in support of the ■ criminatory charges, given by witnesses who of their own knowledge knew the fact, and the jury disagreed, then the wife, on motion after judgment, stands in the same (if not a better) position that she would on a motion made before trial, founded on the affidavits of the witnesses, embodying therein the matters testified to by them on the trial.

The defendant in this case occupies this position. There was affirmative evidence adduced in support of the recriminatory charges against the plaintiff, by parties who professed to know the facts of their own knowledge. That matter was litigated, as well as all others. The jury disagreed. Throwing out of consideration the card of the jurors, (which being a mere ex parte statement not under the sanction of ah oath, should have no influence in the decision of this matter,) it is impossible to say on what issue the jury disagreed, or how they stood. For aught the court judicially knows, they disagreed on the issue of the recriminatory charges, and on that stood eleven for the defendant against one for the plaintiff. In such a case the court cannot say she has no reasonable ground of defense.

But it is urged that the story told by the witnesses who swore in support of this defense is too improbable to be believed. Yet at least two of the jurors, who were sworn well and truly to try the issues and give a true verdict according to the evidence, not only considered it probable, but believed it to be true. It cannot be assumed that they were recusant to their oath. On the contrary, it must be assumed that such was their honest opinion. The fact that ten jurors believed otherwise can have but little weight. Men’s minds run in different channels. Although the minds of these ten were so differently constituted from the minds of the two, as to lead them to a different conclusion, yet I cannot undertake to say that, on the next jury summoned from the inhabitants of this large city, the minds of the whole twelve may not be constituted, so nearly alike to the minds of the two, as to lead them to the same conclusion that these two arrived at.

I do not intend to express any opinion oh the question whether the bare disagreement of a jury on the issue of the guilt or innocence of the wife, she never having denied her guilt under oath, would be sufficient to satisfy the court either that she was not entirely in the wrong, or that she had a reasonable ground of defense.

It is urged that the defendant is in contempt of the Supreme Court, and that as the granting of the motion is a matter of favor, it should not be granted while she is so in contempt. I do not so understand the doctrine on this subject. I understand it thus: if a party being in contempt of a court asks that same court for a favor, the court will 'not grant it; and on this ground, a court will hot allow a party to say I contemn your authority; I will act in open disregard and defiance of it, and while defying you, I will ask you, whom I thus contemn and defy, to grant me a favor. The reason of the rule does not apply when the favor is asked of one court while the' contempt is against another.

The authority of the court in which the favor is asked, has not been defied. I think, moreover, that it is very doubtful whether the bare fact that a party is charged in qx parte affidavits (although there is no denial of them) with having willfully disobeyed an order of the court will be: sufficient to induce that court to withhold a favor from such party. I am inclined to the opinion that to induce a court to withhold a favor on the ground that the applicant is in contempt, such party must have been adjudged by the court to be in contempt.

It is insisted that if the motion is granted it should be on condition that the defendant consents to a reference. I see no reason why a wife should be forced to forego her right of a trial by jury simply because she wishes to be provided with means to conduct her defense and to be supported pending the litigation.

I have come to the conclusion that counsel' fees and alimony should be allowed. As, however, the defendant’s counsel, on the argument, expressly waived and abandoned that portion of the motion which asked for alimony, and declined to receive it, I shall not order it. The court will not thrust on a party a favor which he does not ask, but expressly declines.

With respect to the amount to be allowed for counsel fees, I am of opinion, under all the circumstances, that the sum of $1000 should be allowed, with liberty to the defendant to move to increase it, on further affidavits showing more positively and clearly the extent of the plaintiff’s interest in his father’s estate, whether he realizes any thing therefrom, and if so, how much.

Let an order be entered directing the plaintiff to pay to the defendant, or her counsel, Messrs. McKeon & Geery, $1000 towards the expenses of defending this action, with liberty to the defendant to move to increase the amount on further affidavits showing more clearly and positively the extent of the plaintiff’s interest in his father’s estate; whether he realizes any thing therefrom; and if so how much. Eo costs of this motion to either party. The order to be made without imposing any conditions on the defendant.


text:
    William G. Zimm, plaintiff, vs. Israel Ritterman, defendant.
    1. Excepting to bail, taken by the sheriff, is an “ act to be done,” within the meaning of section 174 of the Code, permitting the court, in its discretion, “ to allow an answer or reply to be made, or any other act to be done,” after the time limited by the Code for doing it.
    2. If the sheriff has been prejudiced by the neglect to except, that is a matter to be shown in opposition to the motion, to influence the discretion of the court.
    3. When leave to except is given, after the time for excepting has expired, it will be on terms, and reserving any right of the sheriff to set up the neglect to ' except in time in any action against him.
    Before Robertson, Ch. J.
    at special term, June 30, 1866.)
   Robertson, Ch. J.

This, is a motion, on behalf of the "plaintiff, for leave to except to certain sureties, accepted by the sheriff of the city and county of Eew York, as bail for the defendant: By a mistake of the clerk of the attorney for the plaintiff, an exception was only served on the attorney for the defendant, and the omission is excusable if the court, has any power to relieve the plaintiff. The Code provides that “ the plaintiff", within ten days ” after service of a copy of the undertaking on him, “ may serve upon the sheriff a notice that he does not accept the bail, or he shall be deemed to have accepted, it, and the sheriff shall be exonerated from all liability.” (§ 192.) This is a clear and positive exemption, by statute, of the sheriff from all liability after ten days from the time of serving a copy of the undertaking, and the court has'no power to restore it, unless by some positive statute. The 405th section of the ' Code provides that “ the time within which any proceeding in an action must be had, after its commencement, (except the time within which an appeal múst be taken,) may be enlarged upon an affidavit;” while an answer or reply may be allowed “to be made, or other act to be done, after the time limited ” by the Code for doing it. (§ 174.) This, however, has been held not to apply where application must be made to the court for relief within a given time. (Coon v. Knapp, 13 How. 175. Van Benthuysen v. Lyle, 8 id. 312.) In such a case as that before me, the plaintiff is allowed ten days in which to except, and the sheriff is only discharged in case of his failure to do so in that time. This appears to me to be an act to he done within a limited time, and must come within the' 174th section of the Code. If the sheriff has been prejudiced by the neglect, that is a matter to be shown in opposition to the motion, in influencing the discretion of the court. It is true the sheriff is not a party to the action, but a mere officer, and that excepting to bail is not strictly a proceeding in it, but affects only a collateral, provisional remedy. But the words of the Code are general, u any other act to he done,” and the time limited by it, and there seems to be room for an exception. With some hesitation, therefore, I must pronounce in favor of granting the plaintiff the favor asked, on condition of paying $10 costs to the attorney for the sheriff, and giving notice within five days after knowledge of this decision, without prejudice to any right of the sheriff to set up such neglect to except in any action against him.


author: Monell, J. Barbour, J. (dissenting.)

text:
    Amos Woodruff, plaintiff and respondent, vs. Patrick Dickie, defendant and appellant.
    1. Referees are no longer in all respects mere officers of, or entirely under the control of the court. They become, by appointment, an independent tribunal, possessiúg such powers as are given by statute; and their decisions are reviewable only on appeal from their judgments. JPer Mohebl, J.
    2. Referees now possess all the powers of the court in regard to amendments of pleadings; and their allowance or disallowance of an amendment can only be reviewed, if at all, in the manner other decisions of the same kind made by the court are reviewed, viz. on appeal. Barbouk, J, dissented.
    3. The power of the court to allow amendments to pleadings has not been enlarged by the Code of Proceedure.

      4. Neither at common law, nor under any statute previous to the Code, did the courts ever claim the power to allow an amendment to an existing pleading, by the insertion of a new and different cause of action or defense.
    6. Section 173 of the Code of Proceedure, which allows an amendment of pleadings “ by inserting other allegations material to the ease," does not extend the power of the court over amendments setting forth a new cause of action or defense.
    6. As regards the allowance of amendments of pleadings, a judge presiding at the trial of a cause even with a jury, possesses all the powers of the court on motion at special term, and can allow them in the same manner, and with the ■ like effect, as the court sitting in any other organized form for the administration of justice.
    (Before Babbour, Monell and Garvin, JJ.)
    Heard January 13, 1866;
    decided July 14, 1866.
    Appeal from an order denying a motion made at special term, for leave to amend the answer.
    This action was brought to recover the last of several installments claimed to be due upon a contract for building a store, and also for extra work done thereon. The complaint set out the contract, which provided, among other things, that alterations or additions might be made, which were to be paid for; that the'building should be finished by the 1st of November, and in default a deduction of $60 a day might be made out of the last installment; that the work should be done according to the plans and specifications of the architect named, in a good, workmanlike and substantial manner, and of good, proper, and sufficient materials; and that the last installment of the contract price should be paid on completion of the building. The answer admitted the contract, and that alterations were made, but paid for as done. Denied performance of the contract on the part of the plaintiff, and alleged that he was not entitled to recover the last installment.
    The action was referred to a referee, to hear and determine all the issues. While the trial was pending before the referee, the defendant moved the referee for leave to amend his answer. The proposed amendments were allegations that the building was not erected in accordance with the contract and specifications; nor in a good,' substantial and workmanlike manner. That • the plaintiff used in the construction thereof, materials of an inferior quality, and in less quantities than required by the contract. That the plaintiff failed to finish the building by the 1st of November, whereby the defendant was entitled to deduct from the last installment the sum of sixty dollars a day for every day thereafter. That by reason of the failure of the plaintiff to complete said building by the time aforesaid, the defendant had sustained damages. That the plaintiff used in the construction of. said building a large quantity of brick belonging to the defendant, the value of which the defendant claimed to recover from the plaintiff. The defendant demanded an additional “judgment against the plaintiff for the damage sustained by him as aforesaid, and for his counter-claim.”
    The referee denied the motion; whereupon the defendant moved before Mr. Justice Monell, at special term, for leave to amend his answer in the manner before stated.
    The justice denied the motion, and the defendant appealed.
    J. Townshend, for the appellant, defendant.

      L. A. Lockwood, for the respondent, plaintiff.
   Monell, J.

"When this case was before me at special term, I entertained the opinion, and so held, that by recent amendments of the Code, referees possess all the powers of the court in granting amendments of pleadings; and that the referee in this case, having- denied the application made to him to amend the answer, his decision, if reviewable at all, could only be reviewed on .appeal from the judgment. A more careful examination of the subject, since the argument of this appeal,' has confirmed my opinion.

The power of the" court to allow amendments to pleadings has not been enlarged by the -Code. The act concerning amendments and jeofails, passed in 1788, and incorporated, into the revised laws of 1813, (1 R. L. 117,) gave the same general power; and the Revised Statutes, (2 R. S. 441, § 1,) allowed amendments, either in form or substance, for the furtherance of justice. The 173d section of the Code, is not more comprehensive than either of the statutes referred to; and the only part of the section which it is claimed enlarges the power, is in allowing other allegations,. “ material to the case,” to be inserted. (Beardsley v. Stover, 7 How. Pr. 294.)

Neither at common law, nor under any .of the previous statutes, did the courts ever claim the power to allow an amendment to an existing pleading, by the insertion of a new and different cause of action or defense. (Sackett v. Thompson, 2 John. 206. Heneshoff v. Miller, Id. 295. Trinder v. Durant, 5 Wend. 72. Williams v. Cooper, 1 Hill, 637.) In Trinder v. Durant, it is said that the Revised Statutes, which in broad terms give the power, were not intended to change the practice which before was usual as to amendments. Under the' Code, however, in a few cases, it had been held that the court has power to allow as an amendment, the insertion of a new cause of action. (Beardsley v. Stover, sup. Troy and Boston Railroad Co. v. Tibbits, 11 How. Pr. 168. Union Bank v. Mott, 11 Abb. 42.)

The clause of the Code which allows an amendment, “ by inserting other allegations material to the ease,” does not, in my opinion, extend the power over amendments setting forth a new cause of action or .defense. What is the “ case ?” Is it not the facts stated in the pleading, as constituting the cause of action or defense ? Clearly it is. Then the allegations proposed to be inserted, must be material to the “ ease ” already made; and not merely material to another and wholly different case. An amendment is the correction of some error or mistake in a pleading already before the court, and there must, therefore, be something to amend by; whereas, the insertion of facts constituting a new cause of action or defense would be a substituted pleading, and not an amendment of an existing pleading.

The cases referred to, furnish no satisfactory reason for hdlding such an amendment to be within the power'of the court to grant. In two of the cases, (Troy and Boston Railroad Company v. Tibbits, and Union Bank v. Mott,) it is in effect merely assumed that the court has the power; in the other .case, (Beardsley v. Stover,) a criticism is attempted on the above section of the Code, which it was thought would aid in interpreting the statute, and cover the point decided. The amendment of that section in 1851, added the w-ords to the last clause “when the amendment does not change substantially the claim or defenseand it was said, that such amendment was restricted to the power to conform the pleadings to the facts proved. The limitation in the last clause to amendments which do not change the claim or defense, neither in terms, nor by implication, enlarges the power as to other amendments; and as there is nothing in the section increasing the power beyond that which had previously been exercised by the court, the decisions prior to the Code should prevail. This is expressly recognized in Corning v. Corning, (6 N. Y. Rep. 97, 105;) Walter v. Bennet, (16 id. 250;) Whitcomb v. Hungerford, (42 Barb. 177;) Davis v. Mayor, &c. of New York, (14 N. Y. Rep. 506.) In the last case, the power to amend is discussed, and it was held, that the court has not the power to add new parties.

It is provided by the statute that referees “ shall have the same power to grant adjournments, and to allow amendments to any pleading, * * * as the court upon such trial, upon the same terms and with the like effect.” (Code, § 272.) A distinction has been attempted to be drawn between the powers.of the court while sitting in different branches of the same tribunal; and it is said that a judge at the trial, has not the same power to grant amendments, as is possessed by the court. (Cases cited supra; and per Gray, J., Everett v. Vendryes, 19 N. Y. Rep. 439.) The Oode ■ makes no such distinction; nor can there be such a distinction under the present organization of the courts. The 173d section gives the power of amendment to '■‘■the court.” It does not mean the court sitting in hanlc, or'at special term, but the court however constituted, while exercising any functions as a court. Has it ever been doubted that a judge sitting at nisi prius may allow an amendment of a pleading? I think not. Tet the Code gives power to the court only, and not to the judge. Has a judge, at a special term held for hearing motions, any greater power than a judge at a special term for the trial of actions with a jury? Certainly not. All issues are triable at a special term, either with or without a jury; and in either case the same general functions are exercised. A court requires merely the presence , of a competent number of judges, and a clerk; that constitutes the judex or incorporeal being called a court. It is well settled that unless the statute in conferring a power makes a distinction between the powers of a judge and the court, no distinction can exist. (Smeeton v. Collier, 1 Exch. Rep. 459.) All the powers of the court may be exercised by a single judge while sitting as a court, except where the power is confined to the court as a collective body. A single judge may hold a circuit or special term. He can preserve order, punish contempts, hear and decide cases. He does this under the power given to the court, and not to him as a judge thereof. And all statutes conferring jurisdiction, give it to the court, and not to the members composing the tribunal. In the cases referred to, the question is rather assumed than considered.

In Woodruff v. Hurson, it was held that the amendment contemplated a new defense pro tanto, and was not allowable. Everett v. Vendryes was put on the same ground; and the remark of the judge that the application to amend “at the trial,” was properly denied, amounts to nothing. \

In N. Y. Marbled Iron Works v. Smith, (4 Duer, 362,) it was doubted if the court had the power to allow an amendment at the trial, letting in an entirely new defense. But the point was not decided, as the court held that the granting or refusing leave was discretionary, and not the subject of an exception. And in Robbins v. Richardson, (2 Bosw. 248,) a similar doubt is suggested. In none of these cases, or any of the cases I have found, with a single exception, is any reason furnished for the supposed distinction; and the suggestion or doubt thrown out was not necessary for the decision of that case.

It is enough that the court may amend any pleading; and that the power is not limited to any branch or part of the tribunal. Convenience may require the adoption of a practice designating the place where all applications to the court may be made. But the statute makes no such designation ; nor does it make any distinction in the power, or the right to exercise it between the different branches of the court.

In the case of The Union Bank v. Mott, (18 How. Pr. 506,) the learned justice, who decided that case at special term, was of the opinion that the 170th section of the Code, alone, gave power to allow amendments at the trial. That section, in conjunction with the one immediately preceding it, has reference to variances between the pleadings and proofs, and authorizes the court to direct the facts to be found according to the evidence, (in other words to disregard an immaterial variance,) or, to order an immediate amendment of the pleading. Nothing is said in either section about this being done at the trial, and although questions of variance will naturally, and perhaps exclusively, arise on the trial, there is nothing, that I can find, to prevent the court from allowing an amendment under that section, at any other time. Besides, the power to conform the pleadings to the facts proved, under section 173, must usually be exercised at the trial. In Cayuga County Bank v. Warden, (2 Seld. 19, 27,) an amendment at the trial under section 149, now section 173, of the Code was sustained. And in Davis v. The Mayor, &c. of New York, (supra,) the amendment was made at' the trial, under section 173, and was disallowed only because there was no power to add parties.

In view of all these sections, therefore, there is not, in my opinion, any doubt, that as regards the allowance of amendments of pleadings, a judge presiding at the trial of a cause with a jury, possesses all the powers of the court, and can allow them in the same manner and with the like effect as .the court, sitting in any other organized form. If I am correct in this, then the words used in the 272d section, giving to referees the same power, “ as the court upon such trial,” would seem to be unnecessary, inasmuch as the court has no other, greater or less power “ upon the trial,” in respect to amendments, than at special term, or. in bank, or otherwise.

Referees are no longer officers of, or under the control of, the court. They become by appointment an independent tribunal, ■ having such powers as are given by statute, and their decisions are reviewable only on appeal from their judgments.

The legislature has from time to time increased the power, and added to the dignity of this tribunal; and it was the plain intention of the legislature, it seems to me, that it should possess-all the powers, and exercise all the functions of a court, independently, and without accountability to any other tribunal; and that its decisions should be subject to review only on appeal.

In this view, notwithstanding the peculiarity of the language of the 272d section, I am of the opinion that referees now possess all the powers of the court; and their allowance or disallowance of an amendment can only be reviewed, if reviewable at all, in the manner other decisions are reviewed, on appeal. •

I am in favor, therefore, of affirming the order, but without costs to either party, as the question is new,

The effect of this affirmance will leave the appellant at liberty to renew his motion to the referee, under this exposition of his power to allow the amendment.

Garvin, J'. concurred.

Barbour, J. (dissenting.)

So far back as our knowledge extends, it has been the general practice and tendency of all common law courts to follow precedents and adhere to rules established by decisions. Ho sound jurist finds fault with this; for, although, as we all feel and know, erroneous decisions have, from time to time, been made and. followed, such general practice has, on the whole, worked beneficially, and has created and established the beautiful science of the law now contained in our books. Occasionally, however, it has been found that a strict adherance to technicalities and precedents has so worked injustice to parties, that the legislature has been compelled to relieve them and the courts by a relaxation of the rule. Such was the case at the time of the enactment of the statute of jeofails, in the time of the 3d Edward, (14 Edw. 3, st. 1, ch. 6;) by which a party, on coming into court and suggesting or acknowledging that he had, by oversight or mistake, failed (j-ai-faille, fr.) to conform to the strict rules of law, in his pleading or proceeding, was permitted to amend .the same; or, rather, in practice, to have such error disregarded. (3 Black. Com. 407. 1 Saund. Pl. 228, n. 1. Cheetham v. Tillotson, 4 John. 499.) And see, also, Stats. 32 Hen. 8, c. 30; 18 Eliz. c. 14; 21 Jac. 1, c. 13; 16 Car. 2, c. 8; 4 Anne, c. 16; 9 Geo. 4, c. 55; 3 and 4 Will. 4, c. 42, § 23; Halhead v. Abrahams, (3 Taunt. 80.)

In our state, at an early day, the legislature enacted that “ The court in which any action shall be pending, shall have power to amend any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered therein.” (1 R. L. 117. 2 R. S. 424, § 1.)

In construing that statute, and putting it in operation, our courts held that, when one of the parties amended his pleading, the other was entitled, if such change made it necessary and proper, to plead de novo. (Webb v. Wilkie, 1 Caines, 153. Pease v. Morgan, 7 John. 468.) The principle of the rule thus established was incorporated in the Revised Statutes of 1830, as follows: “If such amendment be made to any pleading in matter of substance, the-adverse party shall be allowed an opportunity, according to the course and practice of the court, to answer the pleading so amended.” (2 R. S. 424, § 2.)

The language of the two short, consecutive sections of the statute in question is so concise ' and plain as to leave no room for doubt that it was the intention of the legislature to vest in the courts almost unlimited power, in the exercise of a sound judicial discretion, to allow amendments to pleadings, in furtherance of justice, by introducing new matter, of the' same general class, saving, however, the rights of the opposite party; and the very numerous decisions found in the reports show that such has been the construction which the courts have given to the act. Thus we find that in Turner v. Dexter, (4 Cowen, 555,) the defendant was permitted, on motion, to add to his plea of non est factum, in an action upon covenant, a notice of special matter'to be given in evidence as a defense. The court said that though there was a doubt whether the defendant could avail himself of the new matter at law, it would not, on applications to amend, inquire into the merits of the amendment further than to see that it was not plainly frivolous. So, too, in Harris v. Wadsworth, (3 John. 257,) the plaintiff was permitted, in an action on a covenant of seisin, to amend by adding a count on a covenant for quiet enjoyment, contained in the same deed. In Graham v. Woodhull, (1 Caines, 497,) where the defendant was sued for slander in saying -that the plaintiff was perjured, and had pleaded in justification a perjury before a master in chancery, he was allowed to amend by adding another perjury before a city recorder. In Vermilya v. Beatty, (2 How. Pr. 57,) leave was given to the defendant to amend his plea of the general issue, by adding a plea ne unques executor. (See also Bank of Chilicothe v. Dodge, 2 How. Pr. 42, and Frost v. Flint, 3 id. 14.) But, in Coit v. Skinner, (7 Cowen, 401,) leave was refused to the defendant to amend by pleading the statute of limitations, upon the ground that such amendment would not be in furtherance of justice, because*contrary to equity; and so in Jackson v. Varick, (2 Wend. 294,) and Wolcott v. McFarlan, (6 Hill, 227.) So, too, in Williams v. Cooper, (1 Sill, 637,) an amendment to a declaration' in slander, setting up the uttering of other words, and constituting another cause of action, was refused by the court, because such new cause of action was barred by the statute of limitations, and the plaintiff did not, originally, intend to declare upon it; and in Trinder v. Durant, (5 Wend. 72,) leave to amend a plea in abatement was denied, upon the ground that a plea in abatement was not amendable. But I find no case in which an amendment setting up a new cause of action, or a new defense -of the same nature or class has been refused without some similar special reason, making it unjust to grant the relief.

I see no reason for supposing that the provisions of the Revised Statutes touching amendments, have been abrogated, or, in any degree, impaired by the Code. They have not been repealed in terms; nor, in my judgment, are they inconsistent with the enactments of the Code upon the subject. (See Code, §§ 173, 468.) It is true that a subsequent statute, making a different and repugnant provision upon the subject, is not to be construed as an explanatory act, but as a repeal of the former, upon the ground that leges posteriores, priores contrarias abrogant. (Columbian Manufac. Co. v. Vanderpoel, 4 Cowen, 558. Dash v. Van Kleeck, 7 John. 477.) But repeals by implication are disfavored by the law; and are only allowed where inconsistency and repugnancy are plain and unavoidable. ( Vin. Abr. 525, pl. 132. Dwar. on Stat. 674. McCartee v. Orphan Ass. Soc. 9 Cowen, 437. Mayor of New York v. Walker, 4 E. D. Smith, 258.) Indeed, it appears to me that the provisions of the Code are merely cumulative. (See further, Williams v. Potter, 2 Barb. 316. Bowen v. Lease, 5 Hill, 221. People v Deming, 13 How. Pr. 441. Van Rensselaer v. Snyder, 9 Barb. 302. Livingston v. Harris, 11 Wend. 329. S. C. 3 Paige, 528. Harrington v. Trustees of Rochester, 10 Wend. 547. Donaldson v. Wood, 22 id. 395.)

Be that as it may, however, I think it was the intention of the legislature, in the passage of the Code, to make, at least, as liberal provisions for the allowance of amendments as had theretofore existed; and that it did not design to deprive courts of any portion of the powers they had posséssed, in that regard, under the statutes referred to, for more than five hundred years.

It is true that the notes of the commissioners of the Code, which accompanied and formed a part of their report to the legislature, are not, absolutely, controlling authorities in the interpretation of its provisions. (Forrest v. Forrest, 10 Barb. 46.) But, like the preamble to an act, or the petition on which it was obtained, (see Jackson v. Gilchrist, 15 John. 89; Constantine v. Van Winkle, 6 Hill, 177; Furman v. The Mayor, &c. 5 Sandf. 16,) those notes may well be taken into view in considering such intention.

In their note, heading the chapter “ Of mistakes in pleadings and amendments,” the commissioners say: “To that class of objectors who assert that the pleadings Ave propose will sometimes prevent a party from proving the real state of his case, when it was imperfectly known to him at the commencement of the action, or imperfectly explained to his counsel, we present these sections as an answer. Ho person, under our system, need be turned out of court, or lose his remedy, for variance of any kind. The first three sections—(sections now numbered 169, 170 and 171)—pro-vide for variances discovered at the trial; and the rest pro vide a means of amendment of the most liberal character; as liberal, indeed, as we could devise.” In view of this, it is impossible to believe that the commissioners designed to diminish the powers which courts then had under the existing law; and as the entire chapter was enacted, substantially, as reported, we may, I think, safely and reasonably assume that the legislature adopted the intentions and opinions of the expert and able lawyers to whom had been confided the duty of drawing up and presenting a new and entire system of practice.

The 173d section of the Code declares that “ The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, * * * * by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case ; or, when the amendment does not change, substantially, the claim or defense, by conforming the pleading to the facts proved.” [It may here be remarked that the words, “ when the amendment does not change, substantially, the claim or defense,” were contained in the sentence as reported and originally enacted, but were stricken out in 1849, and in 1851 reinstated.]

Except for the possible ambiguity arising from the use of the word “ case,” in this section, it can hardly be doubted that its language, alone, independent of the evident design of the legislature, as above suggested, is sufficiently broad and comprehensive to confer upon the courts all the powers, at least, that they possessed under the Revised Statutes touching amendments; and, upon careful consideration and reflection, I am satisfied that the employment of that word, in its connection, does not change the result. For, as I understand it, the word “case,” is neither technically nor properly applicable to pleadings raising issues. A complaint, for instance, alleging certain facts, with an answer denying them, does not constitute a “ case; ” but it is only when such facts are admitted or proven that a “ case ” is made; and it may then be submitted and determined. Ror could the legislature have designed to use the word in the sense of a “ case ” made by the pleadings, or either of them. For, if so, as a pleading consists of “ material allegations,” and no others, that would be the “case” intended; and there could be no case unless the allegations were sufficient to constitute one. How, then could allegations, material to that case, be added ? ' I think the legislature intended to ■use the word “ case ” in the sense in which it is popularly undérstood as applied to the general subject matter of the difference between the parties; and that they designed to authorize the insertion, on motion, by way of amendment before trial, of any material allegations, of the same class, that might properly have. been embraced in the original pleading, and which the party had omitted to include through mistake, oversight, ignorance of the facts, or even want of skill, leaving the question of terms and conditions as fixed by the Revised Statutes, or subject to the direction of the court. This opinion seems to be justified by a current of decisions and opinions, all running in one direction. For instance, in Jackson v. Saunders, (1 Code Rep. 27,) the plaintiff was permitted to amend his complaint by substituting a cause of action on special contract for a common count; in Keese v. Fullerton, (Id. 52,) a new and material averment was inserted; in Merchant v. N. Y. Life Ins. Co. (2 Sandf. 669,) the amount claimed in an action on contract was allowed to be increased by an amendment; in Chapman v. Webb, (1 Code Rep. N. S. 388,) the plaintiff was permitted to insert an allegation of fraudulent representations in a complaint for goods sold and delivered; in Beardsley v. Stover, (7 How. 294,) the. defendant had leave, on terms, to amend his answer by inserting, by way of recoupment, a claim founded upon contract, for $4000, not in the original answer; and in Harrington v. Slade, (22 Barb. 161,) the defendant was allowed to set up a new and independent defense. ' •

In the latter case, which was decided at a general term of the Supreme Court, held by Justices Allen, James, Rosekrans and Paige, on an appeal from the order granting leave, Judge Paige said: “Under the provisions of the Revised Statutes and the Code, it is the duty of the court to allow amendments, in furtherance of justice, upon such terms as shall be just and proper. Whenever, therefore, the court can now see that justice would be furthered by an amendment of the pleadings and proceedings in an action, it should grant the amendment, if asked for, upon terms just to the opposite party.” The language of Judge Harris a sound and careful jurist—in Troy and Boston R. R. Co. v. Tibbits, (11 How. Pr. 168,) is still stronger. He says: “ I regard it as very much a matter of course to allow any party to shape his own pleadings to suit himself; and, for that purpose, to permit him, at any time before trial, to amend his pleadings so as to present his own views of the questions to be litigated, upon such terms as may be deemed equitable. There is now no restriction upon the power of the court to allow such amendments, even though the effect be to change entirely the whole cause of action, or the grounds of the defense.” The same ruling, and for similar reasons, was made by Judge Brady, of the common pleas, in Daguerre v. Orser, (3 Abb. 86.) See, also, Van Ness v. Bush, (14 id. 36;) Bacon v. Comstock, (11 How. 197.) The last paragraph of Judge Harris’ opinion, above quoted, should, doubtless, be taken with the qualification that the amendment should not turn the action into one of a different class or nature; as that cannot, usually, if ever, ‘ be done in furtherance of justice. (See Morris v. Rexford, 18 N. Y. Ref. 557; Lane v. Beam, 19 Barb. 51; Andrews v. Bond, 16 id. 633; Ransom v. Wetmore, 39 id. 104.)

But the court cannot, properly, upon the trial, authorize an amendment which constitutes, or purports to constitute, a new cause of action, or a new and distinct defense. For, not only does section 2 of the chapter “ of amendments ” of the Revised Statutes give an absolute right to the opposite party to answer such amended pleading, if still in force, as I think it is, (2 R. S. 424, § 2,) hut, under the Code itself, independent of the statute in question, he is entitled to twenty days consideration, after the service of a pleading calling for an answer or reply, or to which he may demur, and may, within that time, interpose such answer, reply or demurrer, or move to strike out, or to make the same more definite and certain. (Code, §§ 153, 160.) These rights of the opposite party, saying nothing of the propriety of allowing him time to prepare for opposing the motion, are quite inconsistent with the idea that the legislature designed to confer upon the court, or tha+ it has, power to allow amendments of that character, in the midst of a trial before it. (See, upon this general subject, Union Bank v. Mott, 10 Abb. 372; N. Y. Marb. Iron Works v. Smith, 4 Duer, 362; Waldheim v. Sichel, 1 Hilt. 45; Robbins v. Richardson, 2 Bosw. 248; Code, § 173, and Codifiers’ note to chap. 6.)

Nor, certainly, has a referee any greater power in this regard than is possessed by the courts. So the Code declares, by necessary implication, at least; (§•§ 173, 272;) and to that effect are the decisions. (See Woodruff v. Hurson, 32 Barb. 557, and cases last cited.) Indeed referees have no powers except such as are expressly conferred upon them by the statute; and no power is there given them to allow amendments, except upon the trial, and in cases in which it might there be done by the court itself. It appears to me erroneous to suppose that a referee is to be considered, in any degree, as substituted in place of the court, in regard to general jurisdiction. For all purposes, except the trial, and such things as the Code expressly authorizes him to do upon such trial,- the jurisdiction remains in the court; (Mathews v. Jones, 1 E. D. Smith, 429; Holmes v. Slocum, 6 How. 218;) and, even in regard to that, the acts of' the referee may, in some instances, be reviewed, and his proceedings controlled by the court, on motion, and while the reference is still pending. So it was held in Union Bank v. Mott, (19 How. 114;) and, again, in Billings v. Baker, (6 Abb. 213,) where the referee had refused to permit amendments to "be made. (See, also, Cooley v. Huntington, 16 Abb. 384, note.) So, too, the time for making the report may he extended; (Livingston v. Gidney, 25 How. 1;) and, it can. hardly he doubted that, for palpable misconduct, the court has power to remove a referee, on motion, at any time; or that it may direct a commission to be issued, or grant an injunction, pending a reference, or, for sufficient cause, stay proceedings thereon.

Eor these reasons, I am of opinion: First. That a referee has no power, upon a trial before him, to allow a party to amend his pleading by inserting a new and distinct cause of action or ground of defense, omitted by the fault of such party, which calls for an answer or reply. Second. That notwithstanding an action has been referred to a referee to hear and determine, the court has power, and, when in furtherance of justice, it is its duty, on motion, to authorize such an amendment, by its order, on such terms as shall be just.

In the case before us, the amendment sought to be introduced by the defendant constituted a new and distinct ground of defense, by way counter-claim; and, for that reason, the motion so to amend was properly denied by the referee.

But the affidavits which were read before the court at special term, upon the motion there made to amend, sufficiently prove, I think, that the facts constituting this new .ground of defense were not fully known even to the defendant himself, when the original answer was put in. Be that, however, as it may, it is quite apparent that the new facts which the defendant asked leave to insert in his sworn answer by way of amendment, constitute a good and sufficient ground of defense; and the evidence taken without objection upon the trial tended to prove that such facts were true.' "We may safely assume, therefore, that, the proper allegation, in that regard, ought to have been inserted in the original pleading, and must have been omitted through the ignorance, oversight, or want of skill, of the defendant or his attorney; and there can be no doubt that justice would have heen furthered by allowing the proposed amendment on terms. The learned judge erred, therefore, in denying the motion.

The order is appealable, inasmuch as it affects a substantial right; (Union Bank v. Mott, 11 Abb. 42; Johnson v. McIntosh, 31 Barb. 267;) as well as for the additional reason that the motion was denied because of a supposed want of power to grant it. (McElwain v. Corning, 12 Abb. 16. Russell v. Conn, 20 N. Y. Rep. 81.)

The order appealed from should be reversed, with costs of appeal; leaving the defendant to renew his motion, if he shall be so advised.

Order affirmed.


text:
    Denzer vs. Mundy.
    1. An attachment cannot be sustained against the property of a debtor upon an allegation of the removal of the property of such debtor from his store by a‘ third person claiming to be his assignee, merely because there is no assignment filed in the clerk’s office, although a general charge of a fraudulent assignment by the debtor, to cheat and defraud Ms creditors, is sworn to.
    2. The mere allegation of a belief of the plaintiff of the fraudulent intent ofrthe defendant in removing such goods, which removal he is superintending, or of a fraudulent assignment in general terms, does not furnish grounds for judicial action.
    3. A neglect to record an assignment within the statutory period fixed therefor, does not make it fraudulent.
    (Before Robeetsob, Ch. X at special term.)
    Heard August 21, 1866;
    decided August —, 1866.


text:
    Joseph A. Cutter, receiver, &c. plaintiff, vs. Peter Reilly et al. defendants.
    1. Where, in an action brought by a receiver appointed in supplementary proceedings, to set aside a conveyance of real estate 'made by the judgment debtor, to a third person, the defendant succeeds on the trial, the judgment creditors of the debtor, who are not parties to the action, and took no part in its prosecution, are not liable for the costs of such action.
    2. The law making parties in interest liable for costs was not intended to apply to actions brought in the name of sheriffs, receivers, clerks or other officers of the court; although third parties might be interested in the recovery; unless the action was brought on the sole suggestion and urgency of such parties, and was virtually conducted by them; especially if the action be brought by direction of a court.
    (Before Robertson, Ch. J.
    at special term, August —, 1866.)
    An action was commenced on or about the month of January, 1863, by the above named plaintiff, as receiver of all the property of Peter Reilly, one of the above named defendants. The plaintiff, Joseph A. Cutter, was appointed such receiver in proceedings supplementary to execution, had in a certain action wherein Peter Woods and John Woods were plaintiffs and Peter Reilly was defendant, and wherein a judgment in favor of said Peter Woods and John Woods, and against the said Peter Reilly had been entered, for $91.09. The above entitled action was brought to set aside certain conveyances of real estate made by the said Peter Reilly, as fraudulent and void, as against creditors. At the time of bringing the action, the said Peter Woods and John Woods were judgment creditors of said Peter Reilly, and it was alleged that they were beneficially interested in any recovery which might be had in said action. The action was tried before Justice McCunn, in January, 1864, who found for the defendants herein, dismissing the complaint with costs against the plaintiff, and deciding that said conveyances were not fraudulent and void as against creditors; The defendants’ attorney, upon notice to the plaintiff, caused the costs of the defendants herein to be taxed at $50.65, and a judgment therefor to be duly entered with the clerk of this court, and a transcript to be filed and docketed with the clerk of the city and county of New York. On or about the 7th of August, 1866, an execution was issued upon said judgment to the sheriff of the city and county of New York, for the collection thereof, which execution was subsequently returned by the sheriff unsatisfied, for want of property of the defendants to satisfy the same.
    Upon a statement of these factSj an order was made by Justice Barbour, on the 27th of August, 1866, requiring said Peter Woods and John Woods, creditors as aforesaid, ' to show cause at a special term of this court on the 30th-day of August, 1866, why they and each of them should not be made liable for the costs recovered as aforesaid, against the plaintiff, and the payment of the same enforced by attachment, together with the costs of the motion, &c.

      D. M. Porter, for the plaintiff.

      8. Tuttle, for the defendants
   Robertson, Ch. J.

This is a motion to compel judgment creditors to pay the costs of the defense of a suit brought by a receiver appointed in a supplementary proceeding taken by them on execution against a judgment debtor. The Code (§ 321) provides that a person of ^hom a cause of action shall become the property after the commencement of an action upon it, shall be liable for the costs, in like manner as if a party; and thé Revised" Statutes (vol. 2, p. 619, § 44,) and the Laws of 1849, (chap. 390,) provide that a person “beneficially interested” in the recovery in an action brought in the name of another, shall be as much liable for costs as a plaintiff.

In the case of Whitney v. Cooper, (1 Hill, 632) it was held that persons holding a mortgage or lien were included in such definition. It was also held, therein, that an action might be brought by a person so as to charge him with its costs by retaining an attorney, directly or indirectly, or engaging to pay his expenses, but it must be by some positive action. In Colvard v. Oliver, (7 Wend. 497,) it was held that a cestui que trust came within the statute. In the case first cited, however, the court consider the statute as intended to cover all cases where the interest of the party sought to be charged would be protected against the nominal assignee". In the case of Miller v. Franklin, (20 Wend. 630,) it was held that a person, to whom a verdict had been assigned as collateral security, was not liable for any costs; and (as the court strongly intimate) not even if he had taken part in the prosecution. In Bliss v. Otis, (1 Denio, 656,) and Giles v. Halbert, (2 Kern. 32,) it was held that an interest to any extent in a recovery, accompanied by interference and management of the • suit, made the party interfering liable.

There is no evidence in this case of any interference by the. judgment creditors in the suit, either by directing it to be brought or subsequently taking any active part in, or management of, it. This alone would be sufficient to exempt them from liability as having brought it, particularly as they were not the only parties interested. The receiver had an interest in his commissions and costs, and was liable to any other parties for their share of any of the proceeds of any judgment.

But I think the law was not intended to apply to cases of actions brought in the names of sheriffs, receivers, clerks or other officers of the court, although third parties might be interested in the recovery; unless the action was brought at the sole suggestion and urgency of such parties and was virtually conducted by them. Especially where an action was brought by direction or leave of the court. The case of Wheeler v. Wright, (23 How. Pr. 228,) is directly in point, and must govern this case.

Motion denied, with $7 costs.


text:
    Martha Booth vs. Samuel Barnes.
    At special term, August, 1866.
    Before Robertson, Ch. J.
    Where a defendant is in close custody at the'time of entering up judgment against him, but admitted to the jail liberties within three months thereafter, and is again surrendered into close custody by his bondsmen, he is not entitled to be discharged from custody upon the ground of the failure of the plaintiff to charge him in execution, (2 22. 8. 556, $ 88,) until three months after his surrender.
    2). O'Brien, for the defendant.
    21 Cushing, for the plaintiff.
    Decided August 31, 1866.


text:
    Mary Doyle vs. Frank O’Farrell.
    At special term, August, 1866.
    Before Robertson, Ch. J.
    Delays in bringing on the trial of issues, caused by frequent promises of the defendant to settle, are not a good ground for dismissing the complaint for want of prosecution.
    2?. Brown, for the defendant.

      O. A. Some, for the plaintiff.
    Decided August 15, 1866.


text:
    Jeholada J. Eagleston, president, &c. vs. Nathan A. Son.
    At special term, August, 1866.
    Before Robertson, Ch. J.
    Where a defendant is known as well by one name as another, he may be sued and arrested by either, and it is' immaterial by what name he was known to ■the plaintiffs in the action.

      W. C. Traphagen, for the defendant.

      Chu/roUU §■ Wooclbury, for the plaintiff. _


text:
    Rosina Graley, plaintiff vs. James Graley, defendant.
    "1. Where the defendant in an action for a divorce is imprisoned for the nonpayment of alimony, he can be relieved from imprisonment only under the provisions of the Revised Statutes relating to proceedings for contempts in civil actions, &c. (2 12. S. 538, § 20.)
    2. The defendant, on a motion for a discharge from imprisonment, and for a reduction of the amount of alimony, may be discharged on paying the amount due for alimony for which he was committed, and the amount accrued during his imprisonment. And the order for alimony may be at the same time reduced.
    (Before Robertson, Ch. J.
    at special term, September 10, 1866.)


author: Monell, J.

text:
    Humphrey H. Swift et al. plaintiffs, vs. John E. Wylie, et al. defendants.
    1. There is no authority for one justice of this court to vacate an order made by another justice, except upon notice to the parties who have a right to be heard. But such an order cannot be disregarded, and it seems it can be corrected only upon appeal, or by the same justice who made it, upon a motion before him for that purpose.
    2. Where an order, settled ex parte, which set aside a referee’s report and denied a motion to vacate the order of arrest, also vacated a provision in the order of reference extending the time to answer until some time after the report should be confirmed, and the plaintiff perfected judgment immediately for want of an answer, and issued execution, the court, on motion, opened the judgment and let the defendant in to defend; on the ground that had' the vacating order been settled on notice to the defendants, and the attention of the justice been called to all the provisions of the order of reference, he would not have vacated the extension of the time to answer, but would have given the defendants a reasonable time to set up their defense.
    (Before Monell, J.
    at special term, November, 1866.)
    Motion by the defendants to open a judgment, and that they be let in to defend.
   Monell, J.

The order made in this ease in June, 1865, referring the motion to discharge from arrest to a referee, to hear and determine, provided that the time to answer should be extended until some time after the referee’s report should be confirmed.

The exceptions to the referee’s report having been heard and decided against the defendants, an ex parte order upon such decision was directed to be entered by the justice who heard the exceptions, setting aside the referee’s report, and denying the motion to vacate the order of arrest. The order also vacated so much of the order of reference as extended the time to answer. Immediately on entering the last mentioned order, the plaintiffs perfected judgment for want of an answer, and issued execution.

The motion now is, to vacate such order, or to have the same resettled, and to open the judgment and let the defendants in to defend.

Upon the decision sustaining the exceptions to the referee’s report, it was competent for the justice making such decision also to decide the original motion, and therefore so much of the order as sustained the exception and denied the motion to discharge from arrest, cannot be vacated by me on this motion. The only remedy for. the parties aggrieved is by an appeal to the general term. It was not, however, competent for the justice to vacate the provision extending the time to answer, contained in the order of reference. Eo appeal was taken from that order; and there is no authority for one justice to vacate an order made by another justice, except upon notice to the parties who have a right to be heard. (Code, § 324. Peek v. Yorks, 24 How. Pr. 363.) But such an order cannot, I think, be disregarded ; and it is probable it can be corrected only upon an appeal, or by the same justice who made it, upon a motion before him for that purpose.

In this case, however, enough appears to authorize me to grant the defendants all the relief they desire, without disturbing the order made upon deciding the exceptions to the referee’s report.

The defendants ask to have the judgment opened, and they let in to defend. I have no doubt if the order referred to had been settled upon notice to the defendants, and the attention of the justice been called to the provision contained in the order of reference, he would not have vacated the extension of time to answer, but would have given the defendants a reasonable time to set up their defense, which would have obviated the necessity for the present motion.

Under such circumstances, I think the defendants should be relieved, and that they should be allowed to defend the action; more especially as they have been deprived of an opportunity of being heard at a time when their rights .could have been protected, and now swear to merits.

The judgment was entered and execution issued subsequent to and form no part of the order, and upon a proper state of facts, it is competent for me to relieve the defendants from them; and in like manner, upon being satisfied there is a meritorious defense, to open the case for a trial.

The judgment and execution must be set aside. I see no reason for letting them stand, as security or otherwise. The defendants should, it seems to me, be placed precisely where they stood before the entering of the order overruling the referee’s report.

The defendants must also have ten days from the entering of the order on this decision, to serve their answer. .


author: By the Court, Garvin, J.

text:
    In the matter, &c. of Georgina E. Beers, &c. John T. Hendrickson, appellant, vs. Georgina E. Beers, respondent.
    1. Only a party to the record, or a person having some legal or equitable interest in the caneelment of a judgment, is entitled to apply to the court in which it has been recovered to vacate or order it satisfied of record, and such application must be founded on recognized legal or equitable grounds. A mere stranger, without any personal equity therefor-, who does not show any personal injury to arise from its continuance is not entitled to such relief,

      2. If such judgment be a lien upon the property of a third person, all parties interested in such judgment, or its continuance, must be brought before the court by action, or notice of the application, whether the object be to vacate the judgment or relieve such property from its lien.
    3. Where a judgment entered to stand as security, has been assigned to third persons, who hold it as security, the plaintiff has an interest in the judgment, upon which he has a right to be heard, or at least notice and opportunity to be heard, before the court can satisfy it of record.
    (Before Robertson, Ch. J, and Garvin, J.)
    Heard November —, 1866;
    decided-.
    This was an application by motion, to cancel two judgments made by a party on whose lands they were a lien, upon the ground that they had been paid, although not a party in the action in which they had been recovered.
    Those two judgments were recovered in this court, against the defendant; the first in June, 1858,. for $1754.78, and the other in February, 1860, for $2155.67. Subsequently, the defendant became the owner of a lot in Twenty Second street in the city of New York, to which the applicant has acquired title. The first judgment was obtained by default and assigned to Messrs. Callaghan & Miller, (then substituted as attorneys for the plaintiffs.) Afterwards, (on the 13th of July, 1858,) the default was set aside, leaving the judgment to stand as security, and the case was referred to a referee to hear and determine all the issues. The referee made' his report, upon which the second judgment was entered. Upon appeal taken, to the general term from the last judgment, it was affirmed. On the 10th of July, 1860, upon such judgment of affirmance, judgment was entered at the general term against the defendant for $2059.15; which was paid and .satisfied of record on the 23.d of May, 1862, the satisfaction piece being executed by Mr. Miller, one of the attorneys for the plaintiff. The first two judgments have never been satisfied of record, and -are now a lien of record against and upon the lot in 22d street. Callaghan, the surviving partner of Miller, one of the plaintiffs, has refused to satisfy or execute satisfaction pieces of said judgments. Such surviving attorney for the plaintiffs made advances individually to the plaintiffs on the first judgment, and alleged that he held the same as his property from the time of the assignment, to the time of the application to discharge the judgment.. It did not appear that any application was ever made to Callaghan, for the discharge of this judgment, until the 10th day of September, 1866, and then only on the part and in behalf of Georgina E. Beers.
    Upon these facts the court made an order that the surviving assignee execute a satisfaction of the first two judgments, and from this order an appeal was taken.

      J. S. Bosworth, for the appellant.

      Simon Stern, for the respondent.
   By the Court, Garvin, J.

There are several reasons why the order appealed from in this case should be reversed. The motion is not made by the defendant, nor has the plaintiff any notice of the application, but it is made by a party who has no equities, so far as appears in the case, and there is no evidence before me but that there may be other persons who have an interest in sustaining the judg-' ment and keeping it on the record, to protect them or their title. This of itself, would be a sufficient answer to such an application. Neither of the parties to the record are in court, and there is no evidence before us that it has not been agreed that the first judgment shall stand as it is, a lien upon lands, for the protection of the rights of others. Before the court can interfere and cancel these judgments, the application should be made by some party to the record or having some interest based upon such legal or equitable considerations as the court can recognize. Certainly a stranger to a judgment cannot with any propriety ask the court to vacate or order it satisfied without furnishing some reason therefor. If this judgment is a lien upon property held, by Georgina E. Beers, she must by action or motion bring before the court all those who are or may be ^ interested, and ask the court to avoid the judgments, or declare them invalid, or discharge the lot in question from their operation and effect.

This case is clearly distinguishable from any case to which our attention has been called. In this case there is no pretense that any or either of these judgments have been paid in full. It is alleged by Beers, the attorney, that he paid Miller “the sum agreed upon,” in full payment and satisfaction of said judgments. He does not state the amount paid, one dollar. Or a less sum paid, would justify this statement in the affidavit. If the whole amount of the-judgments was paid, there can be no doubt the defendant’s attorney would have made it appear. Several years have elapsed since the entry of the last judgment, and nearly two years before any satisfaction was entered upon the récord. The first judgment was to stand as security. The wisdom of that provision in the order opening the default is apparent now, and whether the defendant’s'attorney knew its effect and the plaintiffs’ attorney, Miller, failed to appreciate it, does not appear. The last judgment may be, and probably was, not the judgment which regularly ought to have been entered; but whether by entering such judgment the lien obtained by the first judgment, (which was to stand as security,) was lost, we are not called upon now to express, any opinion. I think it is quite clear before we can dispose of and pronounce finally upon the rights of property and equities of the parties to these judgments, they should have an opportunity to be heard in open court. The evidence before us is, that the assignees of the judgment held the first judgment as security. If this is so, the plaintiff has an interest in the. judgment, upon which he has a right to be heard, or at least notice and opportunity to be heard, before we can satisfy it of record. This I - understand to be the purport of nearly all the cases cited on the part of the respondent. In Briggs v. Thompson, (20 John. 294,) the full amount of the judgment was paid, and notice was given by the defendants to the plaintiff, of motion for an order directing satisfaction. The motion was granted. Here both parties to the judgments were before the court, and had an opportunity to be heard. The case of Lee v. Brown and others, (6 John. 133,) was an application in behalf of Brown, for an order that the clerk note satisfaction. The court directed an order to show cause at the next term, why satisfaction of the judgment should not be entered upon the record, notice to be given to the attorney of record, and notice posted in the clerk’s office. It appeared the judgment was paid; that the plaintiff and his agent were out of the country, and one of several defendants was dead; another was out of the state; yet the court required notice before a final order for satisfaction. In the case of Baker v. Judges of Ulster Common Pleas, (4 John. 191,) the court say the discharge of the defendant from arrest under a ea. sa. issued upon a judgment recovered on the same day the defendant had been discharged under the insolvent act was regular, on the ground that the judgment and discharge under the insolvent act were contemporaneous, and he had no opportunity to plead his discharge, but the insolvent discharge released his body only from imprisonment upon an execution against his person issued upon any judgment recovered upon debts existing at the time of presenting his petition. However this may be, it has nothing to do with this case.

The other cases have no bearing upon the case before us. Most of the questions of this nature which were formerly settled by action, are now settled by motion, a more cheap and expeditious remedy; but whether by action or motion, no one ever heard of disposing of the equities of the parties, and settling all their rights, without notice to the parties to the judgment and all others having any interest therein, and giving them an opportunity to be heard.

This order should be reversed, with costs, without prejudice to the rights of any and all parties interested to make such motion, or take such action, as they shall be advised, upon due notice.


text:
    John C. Walkenshaw et al. survivors, &c. of Hermann A. Slucher, on behalf of themselves and all other creditors of the firm of “John G. Perzel,” electing to come in, &c. plaintiffs, vs. John G. Perzel, defendant.
    1. A notice of motion served cannot be withdrawn or countermanded, without payment of the costs of the motion.
    2. But where a motion as originally noticed was, 1st. For leave to add parties defendants; and, 2d. For an injunction and a receiver; Meld that these motions were distinct, and that the first part of the motion might be withdrawn, leaving the second part still pending, without payment of the costs of the motion.
    3. New parties cannot be added to the action without amendment of the summons ; and the summons cannot be amended, of course, under section 172 of the Code, but leave of the court must be obtained under section 173.
    4. A plaintiff' may obtain leave to amend the summons under a general prayer contained in his notice of motion, “ for such other order or relief as the court shall see fit to grant.”
    5. When a party asks leave of the court to bring in new parties, he necessarily includes in that request a further request for leave to make such amendments in the pleadings and proceedings as will show the necessity of their being made parties, and to take such steps as shall be requisite to bring them into court.
    6. Provision may be made in the order allowing new parties to be brought in,'for the amendment of the summons and complaint, the service of the summons upon the new parties, and the service of the amended complaint upon those who were already parties, specifying in detail the proper proceedings to pursue; or it may simply allow them to be brought in, and the necessary amendments to be made to the summons and complaint, leaving the plaintiff to thereafter conduct the proceedings regularly, at his own peril.
    Before Jones, J.
    at chambers, December 12, 1866.)


text:
    Christian Burns vs. Patrick O’Rourke.
    At special term, December, 1866.
    Before Robertson, Ch. J.,
    A pleading which sets up mere partial intoxication or weakness of mind at the • time of executing an instrument, in order to avoid its obligations, is not sufficient unless some circumstances of fraud or undue influence are added. The intoxication must be so complete as to deprive the party of the use of his reason, or the mental infirmity must amount to senile demency, to constitute hy themselves a defense.

      JP. J. McCahill, for the defendant.

      I. S. Washburn, for the plaintiff.


text:
    The Madison Avenue Baptist Church, plaintiffs, vs. The Baptist Church in Oliver Street, defendants.
    1. In a petition of a religious corporation to a court for leave to sell its real estate, allegations that the receipts and income of such corporation are insufficient either to provide for the payment of its liabilities, or to meet current expenses are not to be deemed untrue, merely because although it appeared that the current expenses and interest account of the corporation ran behind its receipts and income, at the rate of $3000 per year, a great part of the indebtedness of the corporation was held by members of the church, who never called for interest upon such indebtedness; provided they never released their right to claim such interest.
    2. An allegation in such a petition that a plan, or the terms of a projected union, (of two religious societies, who were plaintiffs and defendants,) have been agreed on by a committee composed of members appointed by the corporate bodies respectively, is not to be deemed so untrue, as to deprive the court of jurisdiction, because it appeared that one body at a corporate meeting adopted and ratified, separately, the action of its committee appointed to confer with the committee appointed by the other, which had previously agreed on the plan in question. In such case the plan of union is to be considered as if, without the intervention of any committees, it had been proposed in the first instance at such corporate meeting, and adopted.
    3. To constitute a corporate meeting, whose acts and resolutions shall be binding, there need not be present a majority of all the corporators. Where the corporators are indefinite, such of them as assemble pursuant to a regular call for a meeting, will constitute a quorum for the transaction of business, and a majority of that quorum can pass resolutions binding on the body itself.
    4. The fact that some persons were present at a corpprate meeting who were not corporators, will not vitiate the proceedings of the meeting, unless it appear that such persons voted, and that their votes were necessary to carry the resolutions which were claimed to be passed.
    5. Whether the pew hirers of a religious body were more or less numerous than was stated in such a petition is immaterial; since any allegation as to the consent of the pew hirers might have been stricken out of the petition without affecting the jurisdiction of the court.
    . 6. Where, although possibly a majority of the whole number of the corporators of the plaintiffs may not have affirmatively authorized the proceedings, the evidence does not show that more than four or five objected; a resolution having that effect, passed at a corporate meeting, is ample authority-for the trustees to make the application; they having under that authority, passed a resolution directing the application to be made. It is unnecessary to show an authority originally by a majority of the whole number of corporators.
    (Heard before Jones, J.
    at special term, October, 1866;
    decided January, 1867.)