text:
    DeReguie, plaintiff, vs. Lewis, defendant.
    1. The Code of Procedure does not provide for any other undertaking, in an action for the claim and delivery of personal property, than that to he taken and approved hy the sheriff, however inadequate the amount for which it is' given.
    2. The defect of the want of a stamp, upon an undertaking, can he cured upon an exception to the undertaking.
    (Before Moncrief, J. at chambers,
    March —, 1865.
    Motion to set aside the proceedings of the plaintiff, or amend the. undertaking, in an action for the claim and delivery of personal property.
   Moncrief, J.

Aside from the question of the actual value of the property taken, as to which there is a conflict of allegations, I am constrained to deny the application to set aside the proceedings of the plaintiff, or amend the undertaking, &c.

There is no provision in the Code entitling a party to have any other than the undertaking approved by the sheriff, however inadequate the amount for which it is given ; and if the court has equitable power over its suitors to such an extent as to compel it, a case is not made for its exercise. It was said by a very learned judge, upon directing a new undertaking in a larger sum than that given to the sheriff, that an unscrupulous plaintiff may take personal property of any value, however large, by giving an undertaking in any sum, however small.” This is not satisfactory reasoning. The defendant can sustain no injury by the averment of a lesser sum than the real value of the property claimed, as the Code provides that he may retake it, (§ 211,) and the plaintiff cannot assert or obtain judgment for a greater sum ; so that, in fact, the defendant would be the gainer by the error, or attempted wrong.

It was held in Manley v. Patterson, (3 Code Rep. 89,) that the only remedy for the defendant was an action against the sheriff, where sham security was taken. The defect, if it be one, of a want of stamp upon the undertaking, can he cured upon exception to it. (Note to Smith, &c. v. McFall, 18 Wend. 521, 523.)

The affidavit described the property with sufficient certainty to enable the sheriff to take it; if the affidavit did not do so, he might have refused to execute the requisition. (Dewitt v. Morris, &c. 13 Wend. 496.)

The motion must he denied.


source: Caselaw Access Project

author: Moncrief, J.

license: Public Domain

text:
    Matthew Hale Smith, plaintiff, vs. William H. Trafton, defendant.
    1. The question whether facts set up in mitigation are or are not such as should be admitted to be given in evidence for that purpose, can only be determined by the presiding judge, upon the trial.
    2. Whether or not the plaintiff is sufficiently apprised by the contents of the answer, of circumstances to be introduced by the defendant in mitigation of damages, depends upon the question whether at the trial if the evidence offered in its support is admitted, he will be taken by surprise, and therefore be unable to proceed with such trial.
    3. The allegation of matter in mitigation of damages, in an answer, is not material; it requires no reply, is not the subject of demurrer, and not being set up as a defense, but as a notice, merely, a motion to make such matter more definite and certain, cannot be entertained.
    (Before Moncrief, J. at special term,
    March 9, 1865.)
   Moncrief, J.

The question whether the facts set up in mitigation are or are not such as should he admitted to he in evidence in mitigation, must he determined by the presiding judge upon the trial.

Whether or not the plaintiff is sufficintly apprised hy the matter set up in the answer (in mitigation of damages) necessarily depends upon the question whether he can affirm at the trial that if the evidence offered in its support is admitted he will be taken hy surprise and will be unable to proceed with the trial of the action.

The allegation of matter in mitigation of damages is not material, (5 Sand/. 54 ;) it requires no reply, and is not the subject of demurrer. (Newman v. Otto, 4 Sandf. 669.) It is not set up as a defense, but as a notice merely. In Maretzek v. Cauldwell, (2 Rob. 715,) Robebtson, Ch. J. held that a motion to make such matter more definite and certain could not be entertained—affirmed on appeal, at general term.

This is decisive of the present application, which must be denied with $10 costs to the defendant.


text:
    John H. Johnson, plaintiff, vs. Patrick Casey, defendant.
    An injunction dissolved on the grounds: 1. That the affidavit and papers on which it was granted were illegible. 2. That the injunction had not been served on the defendant personally. 3. That the papers had not been filed, as required by the rules of the court.
    (Before Monell, J. at special term,
    March —, 1865.)


author: Robertson, Ch. J.

text:
    George, the Count Joannes, vs. Stephen R. Fisk.
    After the plaintiff, in an action for a libel, has, upon the defendant’s failing to appear^ procured an order for the assessment of damages by a sheriff’s jury, he cannot move to vacate that order, and have the damages assessed by a jury before a judge of the court; if the probability of complicated questions of law arising in the case,' or the existence of any incapacity on the part of the sheriff to "act, or any difficulty in regard to mitigating circumstances be shown, and nothing new appears to have been discovered, rendering it proper that the change should be made.
    (Before Robertson, Ch. J. at chambers,
    April 3, 1866.)
   Robertson, Ch. J.

This is an action for a libel, in which, the defendant having failed to appear, the plaintiff procured an order to assess damages by the sheriff’s jury. He now moves to vacate that order, and have the damages assessed by a jury before a judge of the" court. No complicated questions of law are shown to arise in the case, or any incapacity on' the part of the sheriff to act, or any difficulty in regard to mitigating circumstances, such as were held to warrant a trial before a judge in Dillaye v. Hart, (8 Abb. Pr. 394,) and Cazneau v. Bryant, (6 Duer, 670.) The question in regard to the right of challenge to jurors, if tenable, might be raised in every case of assessment by a sheriff’s jury. For any misconduct by the sheriff or jurors, the remedy is by application to set aside the assessment. It is very doubtful whether the right of challenge may not exist in case of the execution of a writ of inquiry. The Revised Statutes seem to provide for the holding "of a court by the sheriff, in such cases, (2 B. S. 286, §§ 47, 58 ;) and if so, he must have a right to exercise judicial powers as to the subordinate questions arising in the course of the assessment, as well as the preservation of order and the punishment of witnesses for disobyeing a subpoena. That statutory provision did not exist at the time of the decision in Tillotson v. Cheetham, (2 John. 63,) holding that the sheriff’s duties were entirely ministerial, and that, therefore, no right of challenge existed. Nothing new appears to have been discovered by the plaintiff since he obtained his original order, rendering it proper that a change should be made in the direction of this action, and the reasoning in Carnean v. Bryant, is conclusive upon that point.

The motion must be denied, with $7 costs.


text:
    Edward Matthews, plaintiff, vs. The Chicopee Manufacturing Company, defendants.
    1. The .sole ground of the effect of a release to one of several joint contractors or wrongdoers, in discharging all is, that it is in presumption of law a satisfaction. Whenever the" instrument creating the release is in such a form, or accompanied hy such restrictions, as to repel sttch presumption, it does not necessarily discharge all the parties.
    2, When a release in form to a joint debtor of wrongdoer is accompanied by the . reservatiop of the liability of his associate in the contract or tort, it is as plainly the intention of the releasor not to abandon his claim against the latter as it is to relinquish the right of proceeding against the releasee, if he can do so without prejudice to his claim against both.
    3. Both purposes can only be accomplished by restricting the right of proceed- " ing against the releasee to actions directly against him, because that will still leave the right of proceeding against the other party. And this can only be done by construing the words of present release as executory and a covenant against actions; leaving the releasee to his right of action for damages-thereon, in case he is prejudiced by a subsequent suit brought against him, and his associates.
    4. The .plaintiff executed a release to the members of a firm who, it was alleged, were joint tort feasors with the defendant; if any tort was committed by him, containing the following reservation: “It being expressly understood and
    ■ agreed that I "do not hereby release or prejudice any claim, suit or demand, which I may have against any other person or persons or corporation, for any matter or thing arising out of, or connected with,” &c. “ or for any other matter or thing whatsoever.” Held that the release did not have the effect to discharge the defendant, or to prejudice the plaintiff’s claim against him for matters arising out of, or connected with, the transaction referred to.
    5. A release, given after issue is joined in an action, can only properly be the subject of a supplemental answer, and not of an amendment of that originally put in.
    (Before Robertson, Ch. J. at special term,
    April 28, 1865.)
    Motion for leave to amend an answer by setting up á release., ¡

      D. Lord, for the motion.

      E. Pierrepont, opposed.
   Robertson, Ch. J.

The release claimed by the defendant to have been delivered by the plaintiff to the members of the firm of Q-orham, Gray-& Co., who, it is alleged, were joint tort feasors with the defendant, if any tort was committed by him, contains a peculiar reservation of the plaintiff’s rights against third parties. Such'reservation is in the following words: It being expressly understood and agreed that I do not hereby release or prejudice any claim, suit or demand which I may have against any other person or persons, or corporation, for any matter -or thing arising "out of, or connected with, or relating to, any shipment or consignment to said Gorham, Gray & Co. of cotton in 1862, in which I had any interest, or relating to any conversion or sale or disposition by them, or any other person, of any cotton in said year, in which I had any interest, or for any other matter or thing whatsoever.”

Whenever covenants not to sue, and releases of debtors, or even a bond of indemnity against debts, (Clark v. Bush, 3 Cowen, 151,) produce the same result in the end, although by a circuity of action, the technical distinction between them has always been disregarded. (Cuyler v. Cuyler, 2 John. 185. Phelps v. Johnson, 8 id. 54. Brown v. Williams, 4 Wend. 360.) Although it has been observed in cases where the debt was from two jointly, (Harrison v. Close, 2 John 448; Rowley v. Stoddard, 7 id. 207; Catskill Bank v. Messenger, 9 Cowen, 37; Chenango Bank v. Osgood, 4 Wend, 607; Couch v. Mills, 21 Wend. 424; Hosack v. Rogers, 8 Paige, 229,) or one of the parties was liable as surety, (Brown v. Williams, 4 Wend. 386,) except that in the latter case a consent by the surety would retain his liability, (Seymour v. Minturn, 17 John. 169,) which one, by a joint debtor, would not do. (Bronson v. Fitzhugh, 1 Hill, 185.)

But the effect of instruments containing words of release in presentí of the releasee, with a provision reserving the responsibility of another, liable either jointly or as surety, has been a subject of judicial consideration at various times, and different views entertained. It is plain that full effect cannot be given to all parts of such an instrument literally. If it is an absolute release, it is a satisfaction of the claim, and necessarily discharges the liability of any other person, either jointly or as surety therefor. If it reserve the liability of that other, it cannot he a release. At first courts were inclined to reject the latter reservation as repugnant to the first, or releasing it. But subsequently, on the principle of attempting to reconcile all parts, so as to carry out the apparent object of the parties, “ ut res magis valeat, &c. they have given effect to the words of present release as being merely executory or a covenant. The sole ground of the effect of a release to one of several joint contractors or wrongdoers, in discharging all is, that it was in presumption of law a satisfaction, (Bronson v. Fitzhugh, ubi supra; Rowley v. Stoddard, 7 John. 207. Catskill Bank v. Messenger, ubi supra; Hoffman v. Dunlop, 1 Barb. 185; Parsons v. Hughes, 9 Paige, 591,) and wherever the release was in such a form, or accompanied by such restrictions, as to repel such presumption, it did not necessarily discharge all.

Where, then, a release in form to a joint debtor or wrongdoer was accompanied by the reservation of the liability of his associate, in the contract or tort, it was as plainly the intention of the releasor, not to abandon his claim against the latter, as it was to relinquish the right of proceeding against the releasee, if he could do so without prejudice to his claim against both. Both purposes could only be accomplished by restricting the right of proceeding against the releasee, to actions directly against him, because that would still leave the right of proceeding against the other party. And this . could only be done by construing the words of present release, as executory, and a covenant against actions, leaving’ the releasee to his right of action for damages thereon, in case he was prejudiced by a subsequent suit against him. Such was substantially the reasoning and decision in the recent case of Price v. Barker, (1 Jurist, N. S. 775,) and in the cases upon the authority of which it was decided, and which overrule all previous cases to the contrary. I am fully satisfied with the authority and reasoning of those cases, and do not consider myself at ’liberty to go behind them, as I have not been able to find any late case holding a different doctrine.

The release in question, having been given after the issue was joined in this action, can only properly be the subject of a supplemental answer, and not of an amendment of that originally put in. In such case, the court is bound to be satisfied that the defense is a good one; Morell v. Garelly, 16 Abb. 269; and I have preferred to place my decision nakedly upon the ground of its insufficiency as matter of law, so as to enable the defendant, at once, to have any error in that respect corrected on appeal, rather than examine any question of fact addressed to the discretion of the court where my decision might be final.

The motion must therefore be denied, with $10 costs.


text:
    Adelia M. Boubon, plaintiff, vs. James W. Boubon, defendant.
    1. Good cause for granting alimony in an action for a limited divorce, must be shown, It is not a matter of course.
    2. Mere allegations of abandonment, generally, and of a neglect or refusal to support, are not sufficient to warrant a grant of alimony, where they are denied. The applicant is bound to set forth the facts and circumstance which constitute the supposed abandonment, in order to enable the court to decide whether it ever occurred.
    8. A wife who, without any assigned cause, quits the home provided for her by her husband, and goes to live elsewhere, without offering to return, or to live with him, has no right to alimony.
    (Before Robertson, Ch. J. at special term,
    April 28, 1865.)
    Motion for alimony, in an action for a limited divorce.

      I. K. Furlong, for the motion,

      C. F. Wetmore, opposed.
   Robertson, Ch. J.

Limited divorces are not favored. (Van Veghten v. Van Veghten, 4 John. Ch. 501.) They divest the husband of responsibility for the wife’s debts and she cannot well he sued for theln. Alimony in an action for such divorce is not a matter of course a good cause must be shown. (Worden v. Worden, 3 Edw. 387.) The statute requires both abandonment and a neglect or refusal to support, (2 R. S. 147, § 57, sub. 3. Ahrenfeldt v. Ahrenfeldt, Hoff. Ch. 497,) and it also requires that the hill of complaint shall specify particularly the nature and circumstances on which” the plaintiff “relies, and shall set forth times and places with reasonable certainty.” An allegation of abandonment generally and of a neglect or refusal to support; although, perhaps, ' sufficient to sustain the bill except against a motion to make make more definite and certain, is not sufficient whereon to found a motion for alimony where it is denied. The applicant is bound to set forth the facts and circumstances which constitute the supposed abandonment, in order to enable the court to decide whether it ever occurred. In the present case, so far as any voluntary separation took place, the plaintiff without any assigned cause abandoned the home provided for her by her husband; and went to live elsewhere ; up to that time it is clearly proved that he suitably provided for. She also resisted his taking charge of their child to provide for it. She has never done any thing to repair her first fault of quitting that home. The only allegation of refusal to provide, is generally that the defendant has not done so, although often requested so to do ; when, where or how is not alleged. Under the circumstances she was bound to seek him out, offer to live with him, and demand a home. She has no right to select her place of residence and ask for alimony, because unable to accommodate herself to those with whom her husband requires her to reside, unless there is some palpable and definable objection to their character ór conduct.

The motion must be denied, with $7 costs.


text:
    William Mulry plaintiff, vs. John H. Collett, defendant.
    1. To sustain an order of arrest, a plaintiff is bound to make out his case, beyond a doubt.
    2. The affidavit on which an order of arrest was granted, stated that the plaintiff delivered to the defendant $3000, wherewith the defendant promised to purchase certain bonds of the United States, and deliver them to the plaintiff; and alleged a failure to do so, and that the defendant was insolvent. The defendant, in his affidavit, alleged that he had previously borrowed money of the plaintiff, and furnished him with United States bonds at one per cent less than the market value, and without charging commissions ; that the plaintiff lent him the sum in question upon the same terms of furnishing bonds of the United States, at one half per cent below the market price, and without any commission ; and that such omission to charge it, and such deduction from the price, was to be the defendant’s compensation for procuring and delivering such order. That the plaintiff knew, at the time, that such bonds could be purchased at the subscription price. This statement was corroborated by other evidence.

      Meld, that the statement of the defendant, corroborated by the testimony of another witness, being diametrically opposed to that of the plaintiff, it was not a proper case for an order of arrest.
    (At special term,
    April —, 1865,
    before Robertson, Ch. J.)
   Robertson, Ch. J.

This is a motion to discharge an order of arrest. The affidavit on which the order was granted states that the plaintiff delivered, at different times, between the 17th and 27th of January, the sum of three thousand dollars, wherewith the defendant promised to purchase certain bonds of the United States, and deliver them in a week or ten days from the time of giving the first of the checks on which such money was obtained. That the defendant has not delivered such bonds, and has only paid SHOO of such sum, and is insolvent.

■ The defendant, in his affidavit on which he moves to vacate such order, states that prior to the. 17th of January, he had borrowed money of the plaintiff, and furnished him with United States bonds at one per cent less .than the market value, and without charging commissions for purchasing them ; and that the plaintiff dent him the sum in question upon the same terms of furnishing bonds of the United States, within ten or fifteen days, at a half per cent below the market price, and without any commission; and such omission to charge it, and such deduction from the price, was to be the defendant’s compensation for procuring and delivering such bonds. That at that time the plaintiff knew that such bonds could be purchased at the subcription price. This statement is corroborated by the affidavit of S. B. Cushing, Esq. as to admissions to the same effect by the plaintiff.

The plaintiff’s rebutting affidavit denies that he delivered such money for any other purpose, to the defendant, than to purchase such United States bonds, for which he was to receive forty-five dollars, including his commission, and also denies that he agreed to lend such sum for any time to the defendant. A memorandum is annexed to such affidavit, in the defendant’s handwriting, containing the words and figures “ $5000 10-40 bonds at 101|-, ch. 5075,” which the plaintiff states was delivered to him by the defendant as the price at which U. S. bonds could be subscribed for. Five notes from the defendant to the plaintiff, at different dates, between the 31st of January and the 24th of February, are also appended, none of which refer to the transaction in question, except one of the 4th of February, 1865, which states, if the bonds come in, the defendant will send them to the plaintiff’s house, and one of the 17th of the same month, in which he promises, if he has the bonds, to call at his house that evening. This affidavit is very deficient in stating the dates of such transactions.

A plaintiff is bound to make out his case beyond a doubt, to sustain an order of arrest. Here the plaintiff’s statement is diametrically opposed to that of the defendant’s, who is corroborated by the testimony of another witness. According to the plaintiff’s statement, he expected the bonds he desired, to be purchased at par, and to be delivered in eight or ten days. He delivered his money in three installments, with an interval of a week between. Why he did not retain the whole of it until the defendant was ready to pay the whole of the bonds, did not appear. The plaintiff does not claim to have delivered the different sums to purchase different amounts of bonds. If the amount mentioned in the defendant’s memorandum was the cost of the bonds, it is clear the plaintiff had not paid enough, and if the commission of $45 was to be added, it was $120 too little. If the bonds were to be purchased, the plaintiff could hardly expect they were to be bought at par; and if so, it would have been time enough to have given the money after the contract was made. Subscribing for the bonds was an entirely different thing, and it is not alleged that the money was given for that purpose. If it had been, the plaintiff! probably would have taken means to ascertain that the subscription had been made. Previous contracts of loan had been made on similar terms, and the money in all cases was allowed to lie for some time in the hands of the defendant, before the bonds were to be delivered, and no reason is assigned by the plaintiff for such forbearance.

The motion must be granted, with $10 costs.


text:
    Peter R. Strong, plaintiff, respondent, vs. Mary E. Strong, defendant, appellant.
    1. Every thing should be excluded from issues to be tried, in an action for a divorce, except "what will affect the decision. Both parties are bound to point out the particular circumstances intended to be established, with reasonable precision as to time and place, as well as person. Therefore an issue, whether the plaintiff was guilty of adultery at any time, generally, before the commencement of the action, with a person mentioned in the defendant’s answer, should not be included among those to be tried, where there is no reference in the allegation in the answer of the commission of such adultery, to either time or locality by which to identify the offense charged.
    2. That is not one of “ the facts contested by the pleadings ” in the action, which the statute authorizes to be tried as an issue.
    (Before Robertson, Ch. J., and Barbour and McCunn, JJ.)
    Heard May 16, 1865.
    Appeal from an order settling additional issues in an action for a divorce on the ground of' adultery.

      E. T. Gerry, for the defendant, appellant.

      EL. A. Gram, for the plaintiff, respondent.
   Robertson, Ch. J.

The appeal in this case presents the question whether the learned justice who settled the issues was warranted in refusing to permit an issue whether the plaintiff was guilty of adultery, at any time before the commencement of this action, with the person mentioned in the defendant’s supplemental answer, to be tried at the same time with the others. It is very evident that the jurors who are to try such issue might answer that question in the. affirmative, without at all agreeing as to the occasion of the offense. No issues ought properly to be tried except what will affect the decision; and both parties are bound to point out, with reasonable pre- . cisión, the particular circumstances intended to be established, by time and place as well as person. The statute, as well as the authorities, require this. (Codd v. Codd, 2 John. Ch. 224. Wood v. Wood, 2 Paige, 109. Bokel v. Bokel, 3 Edw. 376. 2 Barb. Ch. 256.) The other issues in the case are fully as wide as the defendant was entitled to. The 12th' and 13th of such issues cover all the time between the first of September, -1861, and the first of May, 1864, and every where in the city of New York; the 14th covers all the time from the first of May, 1864, to the 16th of January last, and the same area of locality. Such issues correspond with the allegations in such answer. There is no allegation in such answer, of a commission of the offense named in such rejected issue, with the party, therein named, except generally, without reference to time or locality. It consequently is not one of “ the facts contested by the pleadings ” in this action, which the statute authorizes to be tried as an issue. (2 B. 8. § 145.)

The order appealed from should be affirmed, with costs.


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

text:
    John Philipe et al. trustees, &c. plaintiffs and respondents, vs. Edwin James, defendant and appellant.
    1. A defendant who relies upon a discharge in bankruptcy in another country as a bar to the action, or on a certificate of a commissioner in bankruptcy, under the act of 7 and 8 Vic. ch. 70, entitled “ An act for facilitating arrangements between debtors and creditors,” must set forth in his. answer, 1. The statute under which the alleged proceedings were had and certificate granted; 2. Such prior proceedings as warranted the granting of the certificate, with particularity, besides pleading the certificate.
    2. If no certificate has been granted, but enough has been done to extinguish the plaintiff’s cause of action, all the material facts relied upon as producing such extinguishment, or the defendant’s actual discharge from liability by legal proceedings, must be pleaded.
    3. If the certificate has been granted, it must be pleaded, and other jurisdictional facts' be alleged, which, if true, authorize the granting of it.
    4. An answer, in such a case, to be sufficient, must set forth the nature of the proposal made by the defendant, on the presentation of his petition, to enable the court to see that it was a discharge from liability; and whether it was for the future payment of his debts, or for their compromise only, and not in the alternative; and must specifically allege that notice of a second meeting was given to the plaintiffs. A mere allegation of notice “ to said creditors and their agents and solicitors,” following a statement of the assent of a majority of creditors to the defendant’s proposal, is insufficient.
    6. The purpose of the act being, as stated in its title, mere to " facilitate arrangements between creditors and debtors,” not to discharge insolvents, no one can be entitled to a certificate under it until the final meeting of creditors, and discharge of the temporary trustee, after the debtor’s proposed compromise has been carried out.
    (Before Robertson, Ch. J., and Garvin and McCunn, JJ.)
    Heard February 15, 1865;
    decided May 27, 1865.
    The defendant was sued by the plaintiffs as trustees under a deed made by him, in England. He answered, admitting the alleged contract, and setting up certain proceedings in bankruptcy, in England. The answer alleged the presenting of a petition to the court of bankruptcy, with the concurrence of, and signed by, one third in number and value of the defendant’s creditors ; that the court appointed a trustee, to whom he surrendered all his estate; and set forth the other and further proceedings there taken in accordance with the said act, which, as the defendant alleged, entitled him to receive a certificate from the said court, discharging him from his debts. It did not allege that such a certificate was granted nor that he was examined in respect to the matter of said petition, by a commissioner in bankruptcy; or that such commissioner directed a meeting of all the defendant’s creditors, or that any meeting of them was held; or that the requisite or any number of creditors agreed to accept any arrangement or composition.
    The plaintiffs moved, at special term, for an order to compel the defendant to make his answer more definite and certain. The chief justice, before whom the motion was made, granted the application, rendering the following opinion :
   Bosworth, Ch. J.

Where a defendant relies upon a discharge in bankruptcy in another country, as a bar to the action, or, as in this case, upon a certificate of a commissioner in bankruptcy, under the act, 7 and 8 Vic. ch. 70, entitled An act for facilitating arrangements between debtors and creditors,” he must set forth in his answer: First. The statute under which the alleged proceedings were had, and certificate was granted. (Holmes v. Broughton, 10 Wend. 75. Monroe v. Douglas, 5 N. Y. Rep. 417.) That was not done in this case, and the answer is therefore defective. Second. The answer, besides pleading the certificate, must set forth, with particularity, such prior proceedings as warranted the granting of the certificate. If no certificate has been granted, and enough has been done to extinguish the plaintiff’s cause of action, the material facts relied upon as affecting the extin-r guishment, or the defendant’s discharge from liability, must be pleaded.

If a certificate has'been granted, it must be pleaded, and other facts be alleged which, if true, authorize the granting of it. (Thomas v. Robinson, 3 Wend. 267, 617. Loudo v. Sampson, 2 Smith, 659. 1 Chitty’s Plead. 514, 515. 3 id. 913. Barnes v. Harris, 3 Barb. 603. Ayres v. Govill, 18 id. 260. Alcard v. Wesson, 14 Eng. L. and Eq. 360. 16 Barb. 481.)

The motion must be granted.

The defendant then put in an amended answer, in which, after alleging the presentation of the petition, he stated that in the petition was set forth a proposal which was the only proposal this defendant could make, for the future payment or the compromise of such debts and engagements, and which proposal was truly and bona fide made, and which this defendant was then ready and willing to carry out and fulfill. And this defendant further says that more than one third in number and value of his said creditors assented to such proposal. And the said petitioner further prayed that such proposal should he carried into effect, under the superintendence and control of the said court, and that he, the said petitioning debtor, should, in the meantime, be protected from arrest by order of the said court, which said petition is on the files of the said court in bankruptcy, at London, in England." That the commissioner in bankruptcy approved of the proceedings, and found that the proposal to that effect was reasonable, and proper to be executed under the direction of the said court. And the said commissioner did direct a meeting of all the creditors of the said petitioning debtor to be convened, and duly appointed a time and place for that purpose.

That at such meeting of creditors, where this defendant was not present, nor was he required by law to be present, but was represented by his attorney and solicitor, the major part in number and value of his said creditors, whose debts exceeded twenty pounds, did assent to the proposal of the said petitioning debtor. This defendant cannot set forth the date or time when the second meeting of the said creditors was called by the said president, but is informed and .believes that such meeting was duly called and held, and that due notice was given to the said creditors, in the same manner and form as for the first meeting; but he states that at said second meeting one third in number and value of the creditors of the petitioning debtor were present, either in person or by an authorized agent. * * * That at such second- meeting of the creditors, three fifths in number and ■ value of all the creditors then present did agree, resolve and accept such arrangement as was assented to at the first meeting, and that the terms thereof were reduced into writing, and that the same were duly signed, and that the same were binding and of full force against the plaintiffs in this action, both at law and in equity, under the powers and provisions of the hereinbefore recited act, and that their agents and solicitors had due notice, under the provisions of the said act, of the several meetings of creditors held as before mentioned. This defendant further states, that within fifteen days after the passage of the above resolution and agreement to accept his proposition, the same was submitted to the commissioner acting in the matter of the said petition, who decided and ruled the same to be reasonable and proper to be executed under the direction of the court, and caused the same to be filed and entered of record therein.” And the defendant further alleged that “ he fully complied with all the provisions of the said act, and became entitled to receive a certificate from the said court, discharging him from his debts and liabilities, as fully and effectually as if the same were a certificate of conformity under the statutes relating to bankrupts. That this defendant not having applied for the said certificate, does not plead the same as a bar or extinguishment of the debt of the plaintiffs for which this action is brought, but answers and says, that the plaintiffs are not entitled to maintain this action against him ; that the plaintiffs, who were then creditors of this defendant in respect of the same debt for which this action is brought in this court, were bound by the arrangement made and entered into by the creditors, and the necessary majority of the same, under the provisions of the act under which the petition was presented to the court of bankruptcy in England; that the plaintiffs are not entitled to maintain this action against this defendant until all the proceedings taken in the said court of bankruptcy in England are vacated and annulled ; that the plaintiffs are not entitled to maintain this action against this defendant until the estate, effects, and property ceded. and given up by this defendant for the plaintiffs with the other creditors of this defendant are restored and returned to him ; that the proposal and arrangement made and entered into with the creditors of this defendant, under the powers and provisions of the said act, are binding in law upon the plaintiffs, until the same is reversed and annulled by the said court; that under the provisions of the said act, the said arrangement is an accord and satisfaction in law of all damages sustained by the plaintiffs, by the breaches of covenants, by this defendant, contained in the deed upon which the action is brought, and which have accrued up to the time of the commencement of this action.”

J. W. Ashmead, for the appellant.

Isaac Van Winlcle, for the respondent.

The statute referred to was annexed to the answer, and set forth at length.

The plaintiffs demurred to the answer. Judgment was given for the plaintiffs, at special term, on the demurrer, with leave to the defendant to amend by alleging that he had obtained a certificate of discharge, or that the plaintiffs had participated in property delivered to the registrar or official assignee, if so advised. From this order the defendant appealed.

By the Court, Robertson, Ch. J.

The statute under which the defendant claims to have been released from all responsibility to the plaintiffs, (7 and 8 Vict. ch. 70,) was made for the benefit of insolvents, who were not traders, and subject to the English bankrupt acts. Proceedings thereunder can only be instituted by the insolvent himself.

Their object is a forced discharge of the debtor by part of his creditors, who are reluctant, on the adoption by a certain proportion of all of them, of terms of composition or compromise offered by him, modified by them, and sanctioned by the court in which the proceedings are taken. As to those creditors, therefore, who have not expressly assented to such discharge upon such terms, either at the meetings held for the purpose, or by receiving part of the debtor’s estate, under such compromise, it is an involuntary discharge of their claims by operation of law, and none of the features of an accord and satisfaction belong to it. The statute is very similar in all respects to the allowance of a concordat by the French civil Code, (Articles 505, 516,) except that the latter may be compulsory. In the nature of the petition under, it, and objections allowed thereto, it also resembles our insolvent act.

Such English statute provides for the making by the insolvent of such proposal as he is able to make for the future payment or compromise of his debts and engagements,” (§ 1,) and for several meetings of his creditors for the acceptance or modification of such proposal, and to secure the certainty and mode of its being carried into effect, before any official certifir cate or protection, similar to that given by the statutes of bankruptcy, is to be given by the officer before whom such proceedings are had. A certain proportion of' creditors in number and value (one third) are required to sign such petition. (§ 1.) The first of such meetings is to be convened by order of the commissioners to whom the application is made, (§ 2,) and the second by the president of such first meeting, appointed by such commissioners, (§ 3 ;) in casé at such meeting a majority of all the creditors in number and value, or a certain proportion in numbers or value, (nine tenths,) whose debts exceed a certain sum, (£20,) assent to such proposal, or a modification thereof. (§ 4.) The second meeting is required to have the same proportion of creditors in number and value ■present as was required to sign the petition, to make their proceedings of any avail. (§ 5.) A “ resolution or agreement adopted at such second meeting to accept the arrangement or composition assented to at the first meeting, if reduced to writing, and signed by a certain proportion of the creditors in number and value then present, (three fifths,) or a certain other proportion in value or in number to those whose debts exceed a certain sum, (£20,) is declared, if confirmed as therein required, to be binding upon the insolvent and all his creditors who had notice of both such meetings. (§ 5.) Such “ resolution or agreement ” is required to be submitted to the acting commissioner within a certain time, and he, in case he “ think it reasonable and proper to be.executed under the direction of the court,” is to cause it to be filed and entered of record. (§ 6.) An indorsement by him on a certificate of such filing, of a protection of the debtor from arrest, is to have that effect, except in certain cases of fraud committed by him. (Id.) A like protection from arrest may be given by such' commissioner on the presentation of the petition. (§ 7.) Such commissioner may also, in case of any difficulty in the execution of such resolution or agreement, convene special meetings of the creditors, at which, if one third of them in number and value are present, or, if the commissioner approve of their action, a majority of those present may," by resolution, confirm, alter, or annul the whole, or any part of such prior resolution or agreement with like effect as if part thereof. (§ 11.) It is not until the last meeting of creditors after such resolution or agreement is carried into effect, and the creditors satisfied according to its tenor,” and when the trustee appointed by the court has fully performed his trust, that the commissioner is to give a certificate of the filing of the petition, and the making and performance of the resolution or agreement of creditors, which is to be as operative as a certificate of conformity under the statutes of bankruptcy. (§§ 12, 13.) During the period between the second meeting and such final meeting, the insolvent may be brought before the commissioner, and examined touching his property and his creditors. (§ 10.)

It would be rather difficult to plead the agreement assented to at the first and second meetings of the creditors, if either altered, amended or annulled at a special meeting called under the 11th section, as an accord and satisfaction, or any other defense. There is nothing in the statute releasing the debtor from liability upon the adoption of such first agreement, although he may be thereupon protected from arrest. It is very evident, the words in the 5th section, “ shall thenceforth be binding and of full force,” mean nothing more than that such resolution shall have such force as is given to it by such statute, not only against those assenting to it, but also those who were notified of such meetings ; otherwise it would be inconsistent with the power of altering or annulling it given by the subsequent sections.

The very able discussion by the learned judge who delivered the opinion of the court in the. Matter of Bonaffe, 23 N. Y. Rep. 185, et seq.) of the entire dependence of the^Fect of the concordat, under the. French Oodeof Commerce, n discharging the debtor from his debts, on its terms, is just1,8 applicable to the compromise offered under the statute in gestión.

The answer in this case does hot even setl0r*b. the nature of the proposal .made, by the defendant on the presentation of his petition, so that this court can see that it was a discharge from liability; nor whether it was for "the future payment, or for the compromise of his debts, but only in the alternative ; nor does it allege that any notice of the second meeting was given to the plaintiffs, but only to “ said creditors,” which follows a statement of an assent of a majority of creditors to the defendant’s proposal, and to their agents and solicitorswhereas the statute in question, by its’4th section, clearly provides only for personal notice, unless a substituted notice is ordered. No appointment of a trustee, or surrender to him of property, is alleged in such answer.

The answer claims that the defendant was entitled to receive a certificate of compliance with the statute, discharging him from liability, as under the bankrupt act, whose terms, however, it entirely omits to state. That could not be ascertained, except by the judicial declaration of the commissioner, after a performance of the terms of the compromise, and a discharge of the trustee, and no alteration of the terms of the original proposal, by any general meeting of creditors, or a special one ordered under the 11th section of the act. The purpose of such act-being,-as stated in its title, merely to “ facilitate arrangements between creditors and debtor’s,” not to discharge insolvents, no one could properly be entitled to such certificate until such final meeting of creditors and discharge of the trustee, after the proposal for compromise had been carried out. I do not perceive that the language of the opinion delivered before, inthis court, sanctions any interpretation of the English statute as axthorizing an extinguishment of the debt, by the mere aPpro-ation of the debtor’s proposal; by the court, after the second meeting. The withholding of such certificate until the final settixnent, and giving no effect to any of the proceedings until that ;s conclusive as to the purport of the statute.

How far t’L amendment allowed would better the defendant’s defense, is noxriecesgary deficit As it stands, it is-insufficient, and ths’udgment, -therefore, must be affirmed, with costs.- -


author: Monell, J.

text:
    The Rector, Churchwardens and Vestrymen of Trinity Church, plaintiffs, vs. Alvin Higgins, defendant.
    1. It is not necessary to recite expressly in the resolution of the common council, or in any part of the proceedings directing the widening of a street, in the city of New York, that in the opinion of the mayor and common council the improvement is necessary, or desirable for public convenience or health. The common council, by entertaining the application, and passing the resolution, necessarily exercise the discretionary power given by the statute, and are presumed to have formed an opinion of the necessity or desirableness of the alteration.
    2. When a court has jurisdiction, every intendment is in favor of the regularity and sufficiency of the subsequent proceedings. Especially will it be presumed that the court obeyed the mandate of a statute governing the proceedings.
    3. Although upon the breach of a covenant by a lessee to pay all taxes and assessments which shall be imposed on the premises during the term, a right of action may accrue to the lessor at once; unless he has actually paid the assessment, he can recover only nominal damages.

    (Before Monell, Gabvih and Jomes, JJ.)
    Heard February 16, 1866;
    decided March 12,1866.

      This was an action for damages for a breach of covenant by the defendant, which covenant was contained in a lease to him by the plaintiffs. In 1855 the plaintiffs leased to him certain premises on Eeade street in the city of Eew York, for a term of twenty-one years. The defendant covenanted with the plaintiffs therein that he would “ pay and discharge all taxes and assessments which should during the term be imposed on the premises.” Subsequently two assessments for widening Eeade street, amounting to $4875, were imposed upon the premises, which were not paid by either party. The action was to recover the amount of such assessments and interest thereon, and was tried before Chief Justice Eobertsoh and a jury.
    The following exceptions were taken by the defendant’s counsel, on the trial, to evidence offered.

      First. To proceedings for the widening of Eeade street prior to certain resolutions of the common council in May and October, 1856, on the ground that each ordinance was the definitive action of the mayor, aldermen and commonalty on its subject matter, and previous proceedings were not admissible in aid of, or to vary or enlarge the resolutions.

      Second. To those resolutions, by reason of their being defective in not stating that the proposed widening was, in the opinion of the common council, necessary or desirable for the public convenience or health ; also to evidence, previously given, as not showing or being competent to show that the common council did so deem it.

      Third. To an order of April 17, 1858, appointing new commissioners, on the ground that all previous proceedings were irregular. -1. That the papers do not show that the commissioners first appointed were appointed according to the provisions of section 2, of the act of April 20, 1839, which requires one of the commissioners to be nominated by the corporation of Eew York, one by parties interested, and the third by the court; whereas the three commissioners appointed were all nominated by the corporation counsel. 2. That the report of the first commissioners mentioned in that order of April, 1858, was not produced. 3. That the second set of commissioners were not appointed in the manner prescribed by the second section of the act. 4. That a new set of commissioners were appointed instead of supplying the vacancy mentioned in the order, the failure of one commissioner to act, not rendering the appointment of a new set necessary. 5. That the first appointment and the, proceedings under it were void, and rendered necessary a new resolution of the common council and new proceedings throughout. 6. That the nominations on the part of the mayor, &c. were not made by act of the common council, but by the counsel to the corporation.

      Fourth. To the orders and proceedings for the widening of Reade street from Broadway to Duane and Chatham streets, on the same grounds stated in respect to the proceedings for widening from Broadway to Washington. And also to a refusal to dismiss the complaint upon the ground that the plaintiffs did not show they had paid the assessments, or that they were damnified by the same.
    The court directed a verdict for the plaintiffs for the amount claimed, to which direction the defendant excepted.
    Judgment was suspended, and the exceptions were directed to be heard in the first instance at the general term.

      A. W. Bradford, for the plaintiffs.
    I. In respect to the proceedings in the common council prior to the passage of the resolutions of 13th May, 1856, and 23d October, 1856, they are part of the whole proceedings, and although each resolution was the definitive action on its subject matter, the prior measures may be taken to show the legislative intent, not to vary, enlarge or aid the resolution, but to complete the whole record, as pleadings afford the means of rightly construing the judgment of a court. They are public proceedings of a legislative character, connected with the immediate subject, and explanatory of the action had upon them.
    1. These proceedings show most clearly that the whole ground upon which the measures were proposed and adopted was, that they were “ necessary or desirable for the public convenience or health.”
    2. This is indicated by the petitions and the remonstrances. The issue was taken on this very question. The defendant himself was one of the petitioners who initiated the movement in respect to widening Eeade street from Broadway to Washington street, and the petition signed by him and others places the measure on the ground that the business interests in that section of the city rendered such widening “ highly desirable and necessary.”

    3. It is also further shown by the reports of the committees to whom the documents were referred. The committee in the board of councilmen reported, “ the street is now a nuisance, narrow, dirty and unhealthy. Widening the street would almost instantly remove all these objections, and make the street a pleasant and commodious thoroughfare. The great increase of the business of our city demands further accommodations, and the central locality of Eeade street makes it particularly desirable for business purposes. The convenience of the community will be greatly promoted by a broad and pleasant avenue from Broadway to the Erie railroad depot.” The committee then recommended the adoption of the resolution, which was passed. The committee in the board of aldermen report, that “ the report of the committee of the board of counT oilmen is full and explicit, and your committee concur with the opinions therein expressed ; they therefore recommend a concurrence with the board of councilmen in the adoption of the resolution,” which was thereupon unanimously adopted. In respect to the widening of Eeade street from Broadway to Centre street, the petitions set forth that “ thé improvement asked for in connection- with the proposed widening of Eeade street from Broadway to the Hudson river, and the extension of Chambers street from Chatham street to James slip, will be of great public utility, as it would afford direct and spacious communication from the Horth river,” &c. There were several remonstrances, on the ground that the proposed improvement was not required. The committee of the board of councilmen reported that they were “ of opinion that the proposed improvement will greatly enhance the value of the adjoining property, and, taken in connection with the widening of Reade street, between Broadway and Hudson street, will be of great public utility,” and that they deemed “ that the necessity of the said improvement is apparent to all, from the inadequate means of access to the western section of the city.”
    Which report was adopted. Subsequently, another remonstrance having been received, the committee reported, that they had considered the subject, and that “ it is unnecessary for them to reiterate their opinion as to the public as well as to the private advantages to be gained by our citizens.” The committee of the board of aldermen reported, that “ confident that the opening would be equally a source of public and private advantage,” they recommended a variation of the plan, in order to reconcile various interests. This was adopted by both boards.
    II. But it is not necessary that.the resolutions, with or without the proceedings, should show that the proposed widenings were, in the opinion of the common council, necessary or desirable for the public convenience or health.
    1. The ordinance will be referred to the statute which confers the authority, and its passage is a full and sufficient declaration of the judgment of the corporate body as to the necessity or utility of the proposed action.
    2. It is like an act of the legislature, or a judgment of a court, where the reasons for the action are not given, but must be implied.
    3. It was expressly stated in the petition for the appointment of commissioners, that the corporation deemed it necessary, or desirable, for the public convenience or health, that this improvement should be made. This is an assertion of the fact quite as formal and obligatory as if contained in an ordinance.
    III. The orders of June 21, 1856, January 13, 1857, and 17th April, 1858, were regular. The reports of March 5,1859, and March 12, 1859, were regular. The commissioners first appointed by the order of June 21,1856, were duly'appointed.'-

      1. The second section of the act of April 20, 1839, does not require one of the commissioners to be nominated by the corporation of New York, one by parties interested, and the third by the court, but requires that the corporation shall nominate three persons, of whom they shall designate one who shall be appointed. The parties interested may present the name of one or more persons, which names shall form a list, out of which, if a majority in interest "shall agree upon the name of one, that person shall be appointed/ if a majority do not agree, then the court shall appoint one orjt of such list. After which the court shall appoint one out of all the names presented by the corporation and the parties interested.
    2. .The objection, as stated, viewed strictly, must fail, based as it is upon an erroneous view of the statute ; but if it were intended to apply to the appointment, and not the nomination of the"commissioners, the answer is: First. That as to the appointments made by the order of June, 1856, it does not appear there were other nominations from which the court could select, than those named, by the corporation counsel; and as to the" order of January 13, 1857, it does appear affirmatively that there were no nominations by parties interested. Second. As to the commissioners under the order of April, 1858, it does appear that one was nominated by the corporation and two by the parties in interest. If it be said there is no sufficient proof of parties in interest, then all may be. taken as from the nomination of the corporation.
    The act of the corporation counsel, in a matter relating to á legal proceeding duly authorized, is the act of the corporation for all purposes incidental or necessary to such proceeding. His nomination of commissioners is the nomination of the corporation. The resolutions expressly authorize him to make the necessary application to the Supreme Court for .the appointment of commissioners.
    IV. There is nothing in the objection that the report of the first set of commissioners is not produced. It is not required by the statute, or any rule of law "or equity. The report was
      rejected, and its contents are entirely immaterial. There was such a paper, and it may have been filed.
    V. The first report was signed by two only of the commissioners ; one of the commissioners had failed to attend, and refused to act. All three of the commissioners were bound to act, though two only might sign the report. (§ 178 of Law of 1853.) It was in the power of the court to refer the report back for revisal to the same commissioners, or “ to new commissioners to be appointed by the said court, to reconsider the subject matter thereof,” who may return the same revised and corrected, or “ a neiu report.” In this case, new commissioners were appointed', who made a new report. The failure of one commissioner to act led to the rejection of the report, and then it was the duty of the court to refer to the same commissioners, or to new commissioners. The latter order was taken, and the language of the act calls for all the commissioners to be either the same, or all new.

    VI. Even if the first appointment and proceedings were void, there would be no need of a new resolution of the common council, and new proceedings throughout. The case was in court on regular statutory notice, and judicial error, if there were any, after the petition in due form, would not require a new resolution or new petition.
    VII. The court having obtained jurisdiction duly, and the statutory notices been duly made, and the action of the commissioners being- conformable to law, if there was judicial error, it was the subject of appeal, and cannot be collaterally questioned.
    VIII. It was not necessary for the plaintiffs to pay the assessment before suit brought. The cause of action arose on proof of the assessment. The breach of covenant arose on failure to pay. The defendant admits that he has not paid the assessments, and that the same are outstanding and unpaid. The damage follows the ownership of the plaintiffs and the breach of the covenant, which, if performed, would have exonerated the land from charge.

      The covenant is not a covenant against liens, in the nature of a warranty, but an absolute agreement to pay. (Juliand v. Burgott, 11 John. 6. Clough v. Hoffman, 5 Wend. 499. Tillotson v. Boyd, 4 Sandf. 516. Bleecker v. Ballou, 3 Wend. 263. 1 Chitty’s Pl. Covenant, vol. 1, p. 131. The Mayor, &c. of New York v. Cashman, 10 John. 96.)
    The measure of damages will be the amount of the assessments and the interest.

      S. P. Nash, for the defendant.
    I. The act of 1813, § 177, under which the proceedings were instituted, provides, that whenever it shall, “ in the opinion of. the mayor, aldermen and commonalty, 5«" * * be necessary, or desirable for the public convenience or health,” to straighten alter, &c. any street in any part of the city, it shall be lawful for the said mayor, aldermen and commonalty to order and direct the same to be done. This is the grant of power, a power quasi judicial; (Mills v. The City of Brooklyn, 32 N. Y. Rep. 489,) and the resolution or ordinance by which it is exercised should, on its face, show that the improvement was, in the opinion of the mayor, aldermen and commonalty, “necessary or desirable for the' public convenience or health.” The resolutions by which the improvement in question was authorized do not show this condition. ■
    That the jurisdiction so conferred is special, and cau only be exercised in strict conformity with the language of the grant. (See Striker v. Kelly, 7 Hill, 9; Sharp v. Speir, 4 id. 76.)
    That the ordinance should show on its face the judicial conclusion which justified' its passage. (See Fisher v. Beeker, Brayt. 75; Meeker v. Van Rensselaer, 15 Wend. 397; 2 Ph. Ev. (Edwards’ ed.) 155; 2 C. & H. notes, 1012; Gilbert v. Col. Turnpike Co., 3 John. Cas. 107; approved in Dyckman v. Mayor of New York, 1 Seld. 434, 440.)
    II. The commissioners were not shown to have been appointed according to the provisions of the act of April 20, 1839, § 2, which provide that one commissioner shall be appointed from the nominees of the corporation, one from those of the owners, and the other by the court. It is claimed, however, that this provision is superseded by section 7 of article 1 of the constitution of 1846. But it seems quite manifest that the requirements of the act of 1839 can be fully carried out without impairing the effect of this article, which was intended to obviate objections raised under the former constitution, that damages could only be ascertained by juries.
    III. If the first appointment was irregular, all the subsequent proceedings were void. The appointment of new commissioners, therefore, by order of April 17, 1858, was of no validity.
    This appointment was also irregular in appointing a new set of commissioners. A complete report had been signed by all the commissioners, but on simply showing that one of them had not acted, the report, without any examination of its merits, was set aside, and an entirely new board constituted. This was not in compliance with the act, which expressly provides that action by two of the commissioners is effectual. (§§178, 188.) _
    _ IY. The plaintiffs have not shown that they have paid any part of the assessments in question. Until they have done so, they cannot maintain an action against the defendant. They should, at least, show that the city corporation has threatened to enforce the assessments. It may well be that, conscious of the irregularities alleged, they will not- enforce them, and the mere fact that they are apparent liens, does not give the plaintiffs a right of action. Where there is a covenant against liability, the plaintiff may recover as soon as the liability is incurred, but in this case the defendant, if compelled to pay the plaintiffs, would still be liable to the city corporation. (Stanard v. Eldridge, 16 John. 254. Gilbert v. Wiman, 1 Comst. 550.)
    Y. Judgment should be entered for the defendant; but if it is given for the plaintiffs, it cannot exceed the assessments and seven per cent interest.
   By the Court,

Monell, J.

None of the objections to the proceedings instituted for the widening of Reade street, were well taken. .

It was not necessary to express, in the resolution, or in any part of the proceedings directing the improvement, that in the opinion of the mayor, &e, it was deemed necessary or desirable for public convenience or health. The common council in entertaining the application and passing the resolution, necessarily exercised the discretionary power given by the statute, and are presumed to have formed an opinion of the necessity or desirableness of the alteration.

Under a somewhat similar provision in the state constitution, which prohibits the granting of special charters, except where, “ in the judgment of the legislature,” the object cannot be obtained under- a general law, it was held that it was not necessary to express such judgment in a special charter. (People v. Bowen, 21 N. Y. Rep. 517.)

The objection that the commissioners were not appointed according to the act of April 20, 1839, even if tenable, is unsupported by evidence. The court having jurisdiction, every intendment is in favor of the regularity and sufficiency of the subsequent proceeding. Especially will it be presumed that the court obeyed the mandate of the statute. (People v. Mack, 1 Park. Crim. Rep. 567. Stafford v. Williams, 4 Denio, 182. Butler v. The Mayor, 1 Hill, 489.)

But the evidence shows, if it shows any thing on the subject, that the commissioners were appointed in accordance with the statute referred to.

Two only of the first commissioners acted. One wholly declined to act. Those two, under the provisions of sections 178, 188 of the act of 1813, (2 R. L. 1813, 408,) went on and completed the assessment, when it was discovered that the provision in the act of 1813, authorizing two commissioners to'act, had been repealed by section 7, of article 1, of the state constitution. The report of the two commissioners was therefore void; and the appointment of new commissioners was entirely regular.

But we think the plaintiffs can recover only nominal damages.

The action is founded upon the -breach of a covenant to pay an assessment. The omission of the defendant to pay was a violation of his covenant, and a right of action at once accrued to the plaintiffs.

A broken covenant to pay money can be satisfied only by damages. To the extent that the covenantee is injured he can be recompensed.

Until, therefore, the plaintiffs have paid the assessment, they can have nominal damages only. The mere imposition of a burthen upon the lands, which, if not removed, might affect the interest of the reversioners, is not such an injury as will enable the latter to recover at law, and as damages, the whole sum imposed.

In all the cases that I have found, where the action was brought to recover upon a covenant to pay taxes, &c. with a single exception, the payment hy the plaintiff, has been averred and proved. (Oswald v. Gilfert, 11 John. 443. Kearny v. Post, 1 Sandf. 105. Trinity Church v. Cook, 21 How. Pr. 89.)

In Bleecker v. Ballou, the declaration averred notice to the defendant, a requirement to pay the assessment, and the defendant’s refusal. The defendant demurred, and the court gave judgment for the plaintiff. The only question argued or decided was whether the assessment came within the covenant. The question of damages was not involved. In that case, however, the lessor’s interest had been sold to satisfy the assessment.

Where the lessor seeks to enter for covenant broken, actual payment is not necessary. Such were the cases of Jackson v. Harrison, (17 John. 66,) and Garner v. Hannah, (6 Duer, 262.) But I do not know of any case where it is held that in an action upon the covenant, for its breach, the lessor can recover more than nominal damages, unless he has himself paid. ■ And to allow it, would overturn all the established rules of damages in such actions.

Whether a court of equity can compel the lessee to pay, is a question not now properly before us. The complaint demands no such relief; and it would not he right for the appellate court tq conform the pleadings to the proofs, as that would change the whole cause of action. If done at all, it should be doné at special term, where the question properly belongs.

I am of opinion that the exceptions should he sustained, and a new trial ordered, with costs to the defendants to abide the event.


text:
    Charles F. Livermore et al. plaintiffs and respondents, vs. Newton St. John, defendant and appellant.
    1. Upon an application by a defendant, by petition, for a discovery of the contents of a letter written to him by the plaintiff, and his answer thereto, written on the same paper, which are in the plaintiff’s possession, where such petition shows that they contain evidence that the plaintiff has no legal demand against the defendant, a discovery of them will be granted, when the allegation is not controverted hy the plaintiff.
    2. A letter, and an answer thereto, resemble a conversation; so that if a part is given in evidence, by one party, the other party is entitled to have the whole introduced.
    (Before Momim, Garvin and Jobes, JJ.)
    Heard February 5, 1866;

    decided March 12, 1866.
    The defendant presented his petition to this court, duly verified, setting forth that an action had been brought against him by the plaintiffs, for the breach of a contract, for the sale hy him to them of certain United States demand notes ; that the complaint alleged that before the time of jjerformance arrived, the defendant made a further agreement with the plaintiffs to pay them a certain sum in cash, and a further sum whenever he should be able to pay the same; and that the first mentioned contract was thereupon given up. The petition farther stated, that a letter was written hy the plaintiffs to the defendant dated November 12, 1864, to which the defendant immediately wrote an answer on the same paper, and sent both to the plaintiffs, and did not preserve a copy of either.

      The petition then alleged, that the said letter of the plaintiffs “ contained evidence that the plaintiffs then had no legal demand against your petitioner, and the letter sent in answer there, contains evidence to the same effect.”
    The petition prayed for a discovery of said two letters.
    It appeared, on the motion, that the plaintiffs had made discovery of the letter of November 12, 1864, written by them to the defendant, but refused to discover the answer thereto. ■
    The motion was denied at special term, and the defendant appealed.

      Charles Tracy, for the appellant.
    I. The letter written by the defendant is material to his defense, and to his preparation for trial. It was written immediately upon the receipt of the plaintiffs’ letter, was in answer thereto, and was written upon the same paper. They contain evidence that the plaintiffs at that time (November 12,1864,) had no legal claim or demand on the defendant.
    II. The statements of the defendant’s petition, to that effect, not being denied by the plaintiffs, who could deny them if not true, are to be taken as fully established, for all purposes of the motion. (Union Bank v. Mott, 9 Abb. 106, 109.)
    III. And are confirmed by observing the course taken by the plaintiffs in respect to all the documents. At first the plaintiffs refused to discover any of them. After being served with the petition, they furnished one. And still later, just before the day noticed for the motion, furnished another. But they withhold to the last the third, evidently deeming it the most important of the three for the defendant. (Whitney v. Sterling, 14 John. 215. Jackson v. MeVey, 18 id. 330. Barber v. Lyon, 22 Barb. 622.)
    IV. Parties may use their own letters in evidence, if written in reply to letters received from the opposite party, especially if written as immediate answers. They are like answers in conversation. The fact that the letter was written by the defendant, does not exclude it; it having been written to and received by the plaintiffs. A party may often put his own letter in evidence at the trial, which has great effect by relation to letters that precede or' follow it. (Roe v. Day, 7 Carr. & Payne, 705.)
    V. The letter being admissible on the trial, the question as to whether it contains such evidence as to make it necessary for the defendant to have a copy before going to trial, must be determined, in the absence of the letter itself, by the sworn papers used on the motion. The petition and affidavit show that this letter is necessary for that purpose. There is nothing to oppose this showing, although the plaintiffs furnished an affidavit on another point. (Lefferts v. Brampton, 24 How. 257, 261, 262. Pegram v. Carson, 18 id. 519, 521.)
    VI. The proceedings of the defendant by petition conform to the Revised Statutes and the rules of court; and the notice added to the petition gives him the benefit of the provisions of the Code in such cases. (2 R. S. 199, §§ 21-24. Rules of Supreme Court, 14, 16. Code of Procedure, § 388. Gould v. McCarthy, 11 N. Y. Rep. 575.)

      E. R. Robinson, for the respondents.
    • I. The discovery was properly denied, because : (1.) The petition does not show that the letter contains evidence relating to the merits.

      (a.) It does not state the contents of the letter, nor any part thereof, or contain any suggestion with respect to them, so as to enable the court to determine their materiality. The general allegation, that the petitioner is advised by his counsel, and believes that his own letter “ contains evidence that the plaintiffs then had no claims against him,” is entirely insufficient. (Per Robertson, J. Woods v. DeFiganiere, 1 Rob. 681, 687.) “It is not enough that the party believes, or is advised that the paper contains material evidence. Facts must be shown to support such belief.” (Per Monell, J. Morrison v. Sturges, 26 How. Pr. 177. See also Hoyt v. The Am. Exc. Bank, 1 Duer, 652; Cassard v. Hinman, 6 id. 695; Pegram v. Carson, 18 How. Pr. 519; S. C. 10 Abb. Pr. 340.)
    (2.) The petition does not show that the defendant does not possess the means of proving, by other 'competent evidence, that “ the plaintiffs then had no legal claim against- him,” An ability to prove the same matters by living witnesses is not negatived. Some allegation of this nature is indispensable. (Per Hoffman, J. in Pegram v. Carson, supra, p. 346. Woods v. De Figaniere, supra, p. 688.)
    (3.) The petition does not show that the letter contains evidence relating to the merits which the petitioner- could ever use. It shows exactly the reverse, viz. that the letter was written by the petitioner himself, and could not, therefore,- be given by him in evidence. (Towle v. Stevenson, 1 John. Cas. 110.) It does not appear from the petition that the plaintiffs’ letter, to which the letter in question is alleged to be a reply, would be evidence in the defendant’s favor. Even if it would, that would not make the defendant’s reply to it, evidence in the defendant’s own favor. It is an exception to the general rule, unsupported by authority, and a monstrous proposition, that the mere circumstance of writing to a man gives him the privilege not only of using the letter written him, but of manufacturing written evidence in his own favor. The letter, if evidence at all, is evidence for the plaintiffs alone, and a discovery for the purpose of the trial has never yet been extended to the papers which the other side alone can use. (See authorities cited, supra, and also Strong v. Strong.) The counsel on the other side may say that it would become evidence for the defendant in case the plaintiff put his own letter in evidence, to which this is a reply. True; but the plaintiff has no right to put his own letter in evidence ; it is not competent evidence for him ; and the counsel, on the other side, has no right to assume that he would do what he has no right to do. In Poe v. Day, (7 C. & P. 705,) a letter from the plaintiff to the defendant was read by the plaintiff, and the court allowed the defendant to read his reply. Here the proposition is, that the defendant may first read the plaintiffs’, own letter, and then read his own reply, making the plaintiffs’ letter, read by himself) the basis on which he may introduce his own declaration.

      Eo one would be safe were this allowed. As soon as a man receives a letter, no matter how trivial, he would immediately proceed to answer it at length, so as to create evidence in his own favor.
   By the Court,

Monell, J.

I was inclined on the argument, to think that enough did not appear in the petition, to enable the court to judge whether the letter sought to be discovered, contains evidence legally relating to the defense. Its contents were not stated or attempted to be described, and the bare statement that it contains evidence, to the effect that the plaintiffs had no legal claim against the defendant, is perhaps a legal conclusion which may be drawn from tire contents of the letter, when it shall have been produced. But it did not put the court in possession of any fact. In cases where a discretionary power is lodged in a court, the exercise of such power must have a foundation of facts; and the mere assertion of a fact, without the history or detail of circumstances upon which it is based, is not generally deemed sufficient. It is a mere assertion of a conclusion derived from a detail of circumstances which are not stated.

In this case, however, the allegation is not upon information and belief, but positive that the paper contains evidence showing, or tending to show, that the plaintiffs have no legal claim against the defendant. Besides, the allegation is not controverted by the plaintiffs, who, if the fact was otherwise, could have denied it on the motion. Therefore, for the purposes of the motion, I shall regard the allegations in the petition as sufficient, if. otherwise the defendant is entitled to the discovery.

The letter of which discovery is sought, was written by the petitioner to the plaintiffs, in answer to a letter written by the latter to the former ; and it is objected that such a letter cannot be given in evidence by the defendant. It is true that the statute contemplates a discovery of such documents or papers only, as a party would be permitted to produce in evidence in his own behalf on the trial. (Meakings v. Cromwell. 1 Sandf. 698.) Books or papers which would not he evidence for him, • and only evidence against him, are not, it seems, the subjects of discovery; although in one case, (Powers v. Elmendorf, 4 How. Pr. 60,) it is held that such discovery may be had when one party desires to ascertain what documentary evidence his adversary has upon which he is relying to sustain himself upon the trial.

It is not disputed that if, in any aspect the case may assume, the letter in question may become competent evidence for the defendant, it is proper it should be discovered to him.

There are many cases where the acts and declarations of a party may be proved in his own behalf; such as acts of avoidance or disaffirmance ; or an acceptance of, or a refusal to accept an offer. In these cases, where the thing to be avoided or disaffirmed, or the offer which is to be accepted or refused, is proved, the other party may always give in evidence his act or declaration to disprove the case made against him, It is upon the same principle that the whole of a conversation or declaration may be called for by .a party who is sought to be charged by a part only. These principles are too familiar to need illustration.

Presumptions are frequently raised against a party by his positive act as well as by his silence. The payment of an account is presumptive evidence of its correctness against the party paying; and even the retaining an account for a considerable time, implies its acceptance, and is sufficient to make it an account stated. (Lockwood v. Thorne, 11 N. Y. Rep. 170.)

It is not difficult to conceive a number of instances where, in this case, the paper sought to be discovered may be material and competent evidence. Suppose the plaintiffs* letter to the defendant should be offered, to show a notice necessary to be given; or, an offer of some kind ; or the assertion of some material fact. From the silence of the defendant, on the receipt of such a letter, every legal presumption would arise against him, and it might become highly important, as well as eminently proper, that he should be allowed to remove such presumption, by the proof of his act of disavowal.

The declarations of a party cannot, as a general thing, be used in his own behalf, but when made in the presence and hearing of the other party, they are always admissibl e. (Thomas v. Mills, 4 E. D. Smith, 75. Jewett v. Banning, 21 N. Y. Rep. 27.) A letter and an answer thereto, is not unlike a conversation. If part is given in evidence by one party, the other party is entitled to have-the whole given. (Bronson v. Wiman, 8 N. Y. Rep. 182.)

I do not think there is. any reason in this case, for refusing to exercise the powers of the court to compel a discovery of the letter of the defendant now in the possession of the plaintiffs. It may be competent evidence for the defendant on the trial, and he ought not to be deprived of such evidence by the mere arbitrary refusal of the plaintiffs to produce it.

For these reasons I am for reversing the order.

Order reversed.