text:
    Kanouse v. Martin.

      An appeal from a judgment of this court to the court of appeals, is a new suit, within the meaning of the code of procedure in respect of costs ; and the costs recoverable on an appeal taken under the code, are to be taxed according to its provisions.
    Where such an appeal is dismissed with costs, for want of prosecution, the respondent is entitled to recover twenty-five dollars, together with his disbursements.
    Where an appeal is dismissed with costs on motion, (the cause not having been argued on the merits, or dismissed on being called on the calendar,) the appellant is not entitled to the fee of fifty dollars for argument prescribed by the code, nor to the term fee given for attending when the cause is not reached, the suit being dismissed at the first term.
    Nov. 6, 1850.
    Motion to correct the adjustment of costs made by the clerk, on two appeals taken by Kanouse, to the court of appeals, from a judgment of this court. The circumstances appear in the opinion. The clerk taxed on the first appeal, twenty-five dollars, besides disbursements. On the second; appeal, in addition to this, he taxed a fee of fifty dollars “ for argument,” and ten dollars for a term fee for attending at the term when the suit was dismissed. ,

    The appellant moved to correct the adjustment,

      A. S. Garr, for the appellant.

      J. M. Martin, for the respondent.
   Mason, J., (after advising with Sandford and Duer, J. J.)

The first question to be determined is, by what law are the costs of the appeals in this suit to be regulated.

It is contended by the plaintiff in error, that as the original suit was brought long before the passage of the code, the costs are to be adjusted under the former law, although the appeals were not brought until the present year. And in support of this position, it is argued that the code, by the eighth section, is declared to relate to civil actions commenced after the first day of July, 1848, except when otherwise provided therein; that a writ of error, and by analogy an appeal, is not an action; and that none of the provisions of the code relating to costs, except section 315, are applied to existing suits; that therefore none of the other provisions on that subject, can have any application to the present case.

I think that there are several answers to this argument. In the first place, by section 323, writs of error in civil actions are abolished, and the only mode of reviewing a judgment or order in a civil action, is by appeal. If the writ of error itself is taken away, it would seem that the attornies fees for prosecuting it, must fall to the ground. If the proceeding itself, which is the principal, is abolished, the compensation for conducting it, which is a mere incident, cannot remain. Secondly, although an appeal, or writ of error, in some aspects, may not be deemed a new action, but only a proceeding in an action already existing, yet in other respects it is a new suit. When judgment is perfected in an inferior tribunal, the suit, properly speaking, is at an end. The subsequent proceedings in the same court are only for enforcing the judgment. On an appeal, a writ of error, new proceedings are commenced before a different tribunal, for the purpose not of carrying that judgment into effect, but of defeating or reversing it. The defendant if he appeals, now becomes the plaintiff, and the costs under either layv are entirely different from those prescribed in the courts below. The fee bill itself under the old law was framed on the idea that a writ of error or an appeal was a new proceeding, since a retaining fee was allowed, and new and different rates of compensation fixed. An appeal from a vice chancellor to the chancellor, under the old system, was considered a new proceeding so as to allow of a new retaining fee, although the original suit and the appeal were both in tire same court.

The 8th section of the code referred to by the appellant’s counsel, appears iiowever to decide the question. It declares in so many words, that the several titles except the first four, relate to actions in the supreme and other courts specified, and to appeals to the court of appeals ; recognizing the distinction taken by the counsel between actions and appeals ; that is not only to actions brought after July 1848, but to appeals also brought after that time, without reference to the time when the actions may have been brought. It does not say to appeals to be brought in those actions, but to appeals generally, so that we cannot confine the operation of any of the provisions of thp code respecting appeals or the costs therein, to appeals in suits brought after July 1848, without a plain violation of the statute.

The next question is, what charges are allowed on these appeals.

The first appeal was dismissed for want of prosecution, with costs.

The respondent claims the sum of twenty five dollars besides disbursements. This is the statutory allowance for costs on appeal to the court of appeals before argument, and the only allowance. The respondent is entitled to this or nothing.

The second appeal was dismissed with costs of the appeal and ten dollars costs of the motion.

The same item of twenty five dollars must here be allowed. and the ten dollars specially given by the court. But nothing more.

The statute allows “for argument fifty dollars,” hut the cause was not argued, nor was the appeal dismissed when the cause was called in its order on the calendar, in which case if the respondent had appeared and been ready to argue, he would on default of the appellant, have been entitled to this fee. (Reed v. Child, 41How. Pr. R. 125; Slade v. Warren, 1 Comst. 431.) But the appeal was dismissed on motion, and the allowance of ten dollars costs of the motion, excludes the, idea of the allowance of the argument fee.

Neither is the charge of ten dollars for a term fee allowable. That is given as a compensation for attending the court, and waiting for the call of the cause, and is only chargeable when the cause continuing on the calendar, is not reached or is postponed. Here, the cause was dismissed, and the respondent dis-. charged from his attendance.

The sum of sixty dollars must be deducted from the amount as adjusted by the clerk on the second appeal, and the adjustment of the costs on the first appeal is confirmed. No costs allowed to either party on this motion.


source: Caselaw Access Project

author: Sandford, J.,

license: Public Domain

text:
    Gallagher v. Egan and others.
    In a foreclosure suit, the court will permit the plaintiff, oh receiving his debt and costs, to dismiss his suit, without paying costs to junior incumbrancers, who have appeared to protect their rights. So as to the mortgagor, personally liable for the debt, who has conveyed the mortgaged premises subject to its payment.
    Where a sheriff serves with the summons, a notice of the objects of a suit for foreclosure, the plaintiff may tais for such service, as a necessary disbursement, the sum of thirty-seven and one-half cents, in addition to the sheriff’s fee for serving the summons.
    The sheriff is entitled to only one fee, of twelve and one-half cents, for returning a summons with his certificate of service.
    Nov. 11, 1850.
    Application by the plaintiff for leave to discontinue her hurt, on receiving her debt, interest and costs, without paying Costs to the defendants, all of Whom had appeared in the cause. The suit was for the foreclosure of a mortgage. The defendants, Power, Egan and Cassidy, were the mortgagors, personally liable for the debt, who had subsequently Conveyed the premises to the defendant Sandford, who assumed the payment ‘of the mortgage. The defendant McBarron was a judgment Creditor of Sandford. He received the amount of his judgment, after he appeared in this suit. The owner of the equity of redemption offered to pay the plaintiff’s debt, interest and costs-; hut the 'ether 'defendants refused to suffer her to discontinue, Unless she paid their costs.
    A further question arose in reference to the taxation -of Costa, which is stated in the decision.

      J. M. Mason, for the plaintiff.

      J. T. Doyle, for McBarron.
    J. H. Power, for Power and others.
    S. P. Nash, for Sandford.
   Sandford, J.,

after advising with all "the other iltisticeS cl 'the Court, decided with their concurrence, as follows :—The allowance of costs to the defendants cn discontinuing a 'suit for the foreclosure of a mortgage, before judgment, appears to rest in the discretion cf the court. The provision in the revised -'statutes to which I was referred, (2 R. S. 613, -§ 1,) is repealed •by the code cf procedure. Section 305 of the code, Is confined to the actions mentioned in section "304, which doe’s not apply to foreclosure suits, as is shown by the language of Section 308. The provision in ¡Section 322, is limited to the plaintiff’s Costs Cn a settlement before judgment.

The allowance -of costs being thus discretionary, there is no possible reason for granting Costs to the mortgagors. It is their •debt which the plaintiff is to receive on discontinuing. If 'the Suit went-to a decree, -and -there were-a -surplus, they Could hot obtain their costs, either out "of the surplus or against the other defendant.

As to McBarron, though it was proper for him to appear, i< was not necessary ; and the case of The Merchants Insurance Company v. Marvin, (1 Paige, 557,) is an authority against granting him costs in this case.

A question was argued, in reference to the sheriff’s fees charged in the plaintiff’s costs. The vieWs of the sheriff Were presented by one of the counsel, and we have considered the matter. The sheriff charged in respect of each defendant, the following fees, viz.:—Serving the summons, fifty cents; serving notice of the objects of the Suit, (which was attached to the summons,) fifty cents; returning the summons, thirteen cents ;• mileage, six and One-fourth cents; and, certificate of service of the notice, thirteen cents. The parties object to the certificate and return as a double charge for the same service ; and to the charge for serving the notice, as being a part of the duty included in serving the summons, and if not, then that no fee is provided for it by law.

There is no fee allowed by law for the sheriff’s certificate of Service, by that designation. This certificate is in fact his return, ahd the statute gives him twelve and a-half cents for returning a writ. The returning a writ, embraces as well the sheriff’s statement of his acts under it, as the delivery of the writ to the clerk or attorney. The return and certificate are therefore to be charged as one service, at twelve and a-half cents.-

The notice of the objects of the suit, in our view, is not a part of the process by which the suit is commenced. The plaintiff may serve such a notice, or a copy of the cotnplaint, With the summons. He is not bound to serve either. The sheriff therefore does not serve the notice as a part of his official duty in serving process, and the fee for serving the summons does not cover the service of the notice'. The law provides no specific fee for this service, whether made by the sheriff or by an unofficial person. We learn that in practice, these notices are now usually served by the sheriff, for the reason that every other person serving them, must make ah affidavit that he knew the party served to be the person mentioned and described in the summons as the defendant therein. In foreclosure cases, it is necessary to serve such notices, under section 130 of the code; and the expense necessarily incurred in serving them, appears to be a reasonable disbursement which ought to be allowed to the plaintiff. Whether the service be made by the sheriff, or by any other person, is unimportant. When made by the former, the compensation for it is not allowed as sheriff’s fees. It is given for an unofficial act, which could be done by any other person equally as well. The amount of this compensation, we think in analogy to the fee formerly allowed by statute for the same service in the late court of chancery, should be thirty-seven and a-half cents ; and that sum will be taxed in future in this court, when shown to be a necessary and reasonable disbursement. No charge for the certificate of service will be allowed. It ought to be, and usually is, included in the certificate of the service of the summons; but if separately made, it will be paid for in the allowance for serving the notice.

Order accordingly.


author: By the Court.—Freedman, J.

text:
    JASPER P. ROE, Plaintiff and Respondent, v. CHRISTINA ROE, Defendant and Appellant.
    I. DIVORCE A VINCULO.
    1. Witness. Party defendant. Act of 1837, ch. 887.
    1. Incompetent as a witness for any purpose other than proving the fact of marriage.
    II. EVIDENCE.—HANDWRITING.
    1. Comparison, proof of by.

      a. What ma.y he compared.

    1. The writing of the document in dispute alleged to havo been written by a witness on the stand may be compared ' with the writing of words contained in said document written hy such witness while on the stand.

      %. Experts, proof by.
    1. They may testify to the condition and appearance of the words, and of the letters, and characters, contained in the writings, and point out, and explain similarities and differences.
    1. Objections to evidence by an expert.
    1. What not maintainable on appeal,

      a. An objection at the commencement of his examination, to questions designed to show his business, his ability, knowledge, and skill, on the ground of immateriality, is not.

      6. A general objection “to this class of evidence” to questionshaving such design in view is not.
    1. If subsequent questions and answers exceed the limit to which an expert can testify, further and specific objections should be interposed.
    Before Freedmar and Sedgwick, JJ.

      Decided August 3, 1875.
    This was an action for a divorce a vinculo matrimonii. On the trial the plaintiff called the alleged paramour, and in the course of the direct examination showed him a letter and asked him whether he wrote it. The court instructed the witness he might decline to answer whether he wrote the letter or not. The witness declined to answer on the ground that his answer would criminate himself. On cross-examination, defendant’s counsel asked him to write a' little, whereupon the witness wrote the address and first line of the letter in question. Thereafter plaintiff called as a witness, Henry M. Parkhnrst, when the following evidence was given by him, objections taken, and rulings made:
    “I have, for a long time, been engaged in the business of writing and seeing other people write.
    Q. And examining handwritings and comparing them %

    [Objected to as immaterial. Objection overruled. Defendant excepts.]
    A. I am familiar with handwriting, and differences of handwriting.' [Defendant’s counsel objects to this class of evidence. Objection overruled. Defendant excepts.] I have no doubt, whatever, that the letter, which I have in my hand, and that sentence, which was written by the witness here, were written by the same person, in the same hand ; I form this opinion, somewhat. from the general appearance, but more particularly, from the peculiar forms of the letters and their peculiar connections; some of the letters are made different in the two, but there are very remarkable peculiarities which are identical in the two, and many of them ; I have no doubt upon the subject at all$ I have no doubt the superscription upon the envelope is the same handwriting.”
    Plaintiff then read the letter, its envelope, and the slip written on by the former witness on the trial, in evidence.
    The letter had a tendency to prove the adultery charged.
    After the plaintiff had rested, defendant’s counsel called the defendant as a witness on her own behalf; and evidence was given, objections raised, and rulings made, as follows :•
    “ I am defendant. I saw a man named Henry Miller once ; I forget the day of the month I saw him ; it was in April; it was at the time Mr. Jessee was there; that was the only time ; I never saw him but once ; I never bought any prize packages, and I didn’t know what he was doing ; I never received any letter.”
    [Mr. Hirsoh jn-oposes to ask the witness whether she ever had any adulterous intercourse, with Henry Miller. Objected to as incompetent. Objection sustained. Mr. Hirsoh stated that he proposed to examine the witness as to what took place, in the presence of herself and Mr. Roe, at the time Mr. Jessee went there with the plaintiff. Objected to. Objection sustained. Exception by defendant.]
    . The court also struck out all the evidence of the defendant, to which ruling the defendant excepted.
    There was in addition to the testimony of the paramour, a great deal of circumstantial evidence in support of the charge of adultery.
    The court below found in favor of the plaintiff ; and judgment of divorce a vinculo was thereupon entered in his favor.

      • From the judgment, defendant appealed.

      Samuel Hirsch, attorney, and of counsel for appellant, urged:
    I. It has been uniformly held in.actions of this kind that while to authorize a divorce for adultery, direct testimony of the commission of the crime is not required, yet the proximate facts must lead, by fair inference, to a necessary conclusion—a conclusion so far inevitable that the supposition of innocence, can not by any just course of reasoning, be reconciled with it (17 Abb. Pr. Rep. 48, anonymous ; Mulock v. Mulock, 1 Edw. Rep. 14; Hart v. Hart, 2 Ed. 207; Turney v. Turney, 4 Id. 566 ; Banta v. Banta, 3 Id. 295). The complaint itself is defective in not stating the acts of adultery with sufficient certainty (Pramagiori v. Pramagiori, 7 Rob. 302 ; also Wood v. Wood, 2 Paige Rep. 108). Where the evidence of adultery in an action for divorce depends on the testimony of defendant’s paramour, unsupported by other evidence, no decree will, be granted ; he is regarded as an accomplice, and his testimony subject to the objection of an accomplice (5 Rob. 611).
    II. There is no proof of any adultery at .any time ' such as would warrant a decree for divorce (Myer v. Myer, 48 Barb. 114; Hamburger v. Hamburger, 46 How. 346; Ferguson v. Ferguson, 3 Sand. 307; Trust v. Trust, 11 How. 523). There can also be no decree for adultery committed after the filing of the bill. In this action the bill is filed or the action commenced April 11, 1873, the very day of the alleged meeting. The finding of fact in respect to the adultery is April 12, and after the.commencement of the action (Ferrier v. Ferrier, 4 Edw. 296).
    III. It was error to allow thé witness Parkhurst, as an expert, to swear to the letter of Miller by mere comparison of the letter with a paper written by Miller, and marked for identification (Jackson v. Phillips, 9
      Cow. 94; Wilson v. Kirkland, 5 Hill, 182 ; People v. Spooner, 1 Johns. 343; Bar v. Coleman, 13 Barb. 42; Tillford v. Knott, 2 Johns. Chan. Cases, 211; Jackson v. Van Duzeu, 5 Johns. Rep. 144 ; Haskin v. Stuyves ant, Anthon. Nisi Prius, 132 ; Van Wyck v. McIntosh, 14 N. Y. [4 Ker.] 439).
    IV. The testimony of the defendant should not have been stricken out, and she should have been allowed to give the evidence offered, (a.) Such admission would not necessarily have been in contravention of the provisions of the act of 1867 (Laws of 1867, ch. 887, § 2 ; §§ 388 and 399 of Code; Wehrkamp v. Wiilets, 1 Keyes, 250; Shoemaker v. McKee, 19 How. 86; March v. Potter, 30 Barb. 506; Chamberlain v. People, 23 N. Y. [9 Smith] 85; Rivenburg v. Rivenburg, 47 Barb. 419). In this case, special attention is asked to the dissenting opinion of Judge Balcomb (1 Greenleaf on Evidence, 287, § 254).

      Garretson & Mayo, attorneys and of counsel for respondent, urged:
    I. As to the adultery, the law-does not exact, in cases of this nature, such precise and incontrovertible proof as it requires in many other actions. The direct fact need not be proven. It may be inferred from circumstances that lead to it as a necessary conclusion (N. Y. Sup'r Court, Ferguson v. Ferguson, 8 Sandf. 307, citing Lord Stowell in Loveden v. Loveden, 2 Hagg. Consis. Rep. 1).
    II. The statute making parties to actions competent as witnesses does not apply to cases brought by husband or wife, the one against the other, for divorcement on the ground of adultery. The defendant’s testimony was properly excluded (Smith v. Smith, 15 How. 165; Sweet v. Sweet, Id. 169 ; C. v. C., 25 Id. 432).
    III. The letter purporting to have been written by Henry Miller to the defendant was written by him to her. The testimony of Henry M. Parkhurst refers to a comparison of the writing called for by the defendant’s counsel from Henry Miller on the examination of that witness, with the letter in proof and appearing at large in the case. The rule which in this state rejects proof of handwriting of a paper sought to be put in proof by comparing it with the handwriting of another paper proven to have been written by the same person, applies solely where it is attempted to compare the handwriting of the paper sought to be introduced with that of one which is immaterial to the issue (Van Wyck v. McIntosh, 14 N. Y. [4 Ker.] 439). Such is not this instance. Here a portion of the very letter itself is introduced by the defendant’s counsel, and the evidence is perfected by a comparison of what was so written with the same paper in its entirety.
   By the Court.—Freedman, J.

The evidence fully sustains the finding that between the 1st day of May, 1872, and the 12th "day of April, 1873, the defendant did commit adultery with one Henry Milier. Direct testimony of the commission of the offense is not necessary, but circumstatial evidence which by fair inference irresistibly points to that conclusion is sufficient. Tested by this rule the facts testified to by the witnesses Maria Palmer, Celia Denning, Walker, and Henry Lewis, all of whom were properly admitted, would be sufficient even without the testimony of the paramour. The learned chief justice who tried the case below, had these witnesses before him, and not only heard their testimony, but also observed the manner in which they gave it. He was therefore even in a better position to judge of their credibility than the court at general term can be. Their testimony was not shaken or impeached, and aside from such contradictions upon collateral points as usually appear between the testimony of witnesses testifying to successive occurrences. it bears no intrinsic marks for which it could be discredited. As a whole it is wholly incompatible with defendant's innocence, and no inference other than that of criminality is possible from it.

The testimony of the defendant was properly excluded. Before the act of 1867 (ch. 887 of Laws of 1867), she would not, under the Code, have been a competent witness in her own behalf in an action for divorce (Rivenburgh v. Rivenburgh, 47 Barb. 419), and that act, though making the husband or wife of any party to an action as competent a witness on behalf of such party as any other witness, expressly provides that nothing therein contained shall render any husband or wife competent or compellable to give evidence for or against the other in any action or proceeding instituted in consequence of adultery, or in any action or proceeding for divorce on account of adultery, except to prove the fact of marriage.

The first objection to the testimony of the expert on the question of handwriting is wholly untenable, and the second too general in its character. The authorship of the letter alleged to have been written by the paramour to the defendant, and claimed to have been found by the plaintiff in defendant’s possession, was materia], and a comparison of the handwriting of that letter with the few lines written by the paramour on the witness-stand at the request of the counsel for the defendant was to a certain extent permissible. The expert could properly testify to the condition and appearance of the words and of the letters and characters contained in these writings, and to point out and explain similarities and differences. If by subsequent questions and answers this limit allowed by law was transcended, a farther and specific objection should have been interposed. A genera] objection taken at the beginning “to this class of evidence,” or “on the ground of immateriality,” is not enough.

The judgment should be affirmed.

Sedgwick, J., concurred.


author: By the Court.—Curtis, J.

text:
    ELIZA PAYNE, as administratrix, &c., of WILLIAM D. PAYNE, deceased, Plaintiff and Appellant, v. THE FORTY-SECOND STREET AND GRAND STREET FERRY RAILROAD COMPANY, Defendant and Respondent.
    I. CARRIER OF PASSENGERS.
    1. Negligence of cabbies.—What is necessaby to establish.
    1. Something more must be shown than a probability that the carrier was negligent; there must be some element of moral certainty and exclusion of reasonable doubt.

    1. Example of a case not falling within this rule.

      a. The case is stated in the opinion as shortly as it is possible to state it.
    II. EVIDENCE.
    1. COMPBOMISE, OFFEB OF, NOT ADMISSIBLE IN EVIDENCE.
    1. This, though the party sued was the one whoxmade the offer, and before mahing it had investigated the matters out of which the suit arose, and at the time of making it, neither admitted nor denied his liability.

    Before Curtis and Sedgwick, JJ.

      Decided August 3, 1875.
    Appeal by plaintiff from a judgment. The facts sufficiently appear in the opinion.

      Tracy, Olmstead & Tracy, attorneys; C. E. Tracy
      and G. W. Ellis, of counsel for appellant, urged :
    I. The circumstances detailed in evidence show that the “ break-up,” testified to by the witness MoDermot, was for the purpose of allowing the boy to alight, in accordance with a request to the drivers to stop the car; no other reason or motive for stopping was proved ; the car, however, was continued in motion afterwards for over half a block and the width of Eighteenth street, and the boy evidently was thrown from the car while standing on the platform waiting for the car to stop. These facts would have justified a finding of negligence in the drivers, and entitled the plaintiff to have the question submitted to the jury (Mulhado v. Brooklyn City R. R. Co., 30 N. Y. 370 Mettlestadt v. Ninth Avenue R. R. Co., 4 Robt. 377). “That there is more hazard in leaving a car while in motion, although moving ever so slowly, than when it it is at rest, is self-evident. But whether it is imprudent and careless to make the attempt depends upon circumstances ; and where a party, by the wrongful act of another, has been placed in circumstances calling for an election between leaving the cars or submitting to an inconvenience and a further wrong, it is a proper question for the jury whether it was a prudent and ordinarily careful act, or whether it was a rash and reckless exposure of the person to peril and hazard.” — Per Allen, J. (Filer v. N. Y. Central R. R. Co., 49 N. Y. 51).
    II. “A common carrier, in offering to take passengers, must give free ingress and egress, and is liable for any damage which may occur to such passengers from his negligence in not securing them from risk, when approaching or leaving the carriage” (Wharton, on Negligence, §§ 652, 821; Crocheren v. Ferry Co., 1 Supreme Ct. R. 447; Filer v. N. Y. Central R. R. Co., above). The carrier becomes liable for an injury occurring to one taking a dangerous position, notwithstanding rules and notice, if with his acquiescence (Smith v. Terry Co., 5 Supreme Ct. R. 689).
    III. The car was overloaded, and if the jury should find that that contributed to the accident, defendant was guilty of negligence, and is liable accordingly (S. L. 1860, Ch. 515). “ Every person while violating an express statute, is a wrong-doer, and as such is ex necessitate negligent in the eye of the law.” Per Davis, J. (Jetter v. N. Y. & H. R. R. Co., 2 Keyes, 154 ; Beisegel v. N. Y. Central R. R. Co., 14 Abb. N. S. 35; Ryan v. Thompson, 6 Jones & Spencer, 133 ; Israel v. Clark, 4 Esp. 259.) In such a case the defendant can excuse his default only by proof of concurring circumstances beyond his control. No such proof was offered (Wharton on Negligence, § 128); Sheridan v. Brooklyn, &c., R. Co., 36 N. Y. 39).
    IV. More care towards the young is required than towards others. . . . In the case of young persons, the jury are not bound to require the same demureness -and caution as in the case of an older person (O’Mara v. Hudson R. R. R. Co., 38 N. Y. 449 ; Haycroft v. L. S. & M. S. R. Co., 5 N. Y. Supreme Ct. Rep. 51; Wharton on Negligence, § 637). It is the duty of a street railway company to provide vehicles which insure security to their passengers, and not to suffer their passengers to occupy unsafe places upon the vehicles (East Saginaw, &c., R. Co. v. Bohn, 12 Am. Law Reg. 745).
    V. The case is not one in which there was any question of contributory negligence (Johnson v. Hudson R R. R. Co., 20 N. Y 65; Willis v. L. I. R. R. Co., 34 Id. 670, 679). The death of the boy silenced the witness who could have given direct evidence of the negligence of the defendant, and the plaintiff was therefore entitled to the verdict of the jury upon such circumstantial evidence as could be offered. It is said in Gee v. R. R. Co. (8 Q. B. 161): “In considering what -evidence ia sufficient to call for an answer, I think that you must look at the means the plaintiff has of proving more.”
    VI. At most, this question, if presented at all, should have been submitted to the jury as a question of fact (Maugam v. Brooklyn R. Co., 38 N. Y. 458; Downs v. N. Y. Central R. Co., 47 Id. 83).
    VII. If the boy was in fact pushed off by the driver, then the defendant was liable, for no evidence was offered to show malice or willful misconduct on the part of the driver causing the injury to the boy. Malice or misconduct can not be presumed (Wharton on Negligence, § 128 ; Higgins v. Watervliet Turnpike Co., 46 N. Y 25 ; Wharton on Negligence, § 425).
    VIII. The evidence offered by plaintiff of an offer by defendant to satisfy the claim, the subject of this action, before suit brought, was erroneously excluded. An exception was duly taken (Boss v. Ackerman, 46 N. Y. 210 ; Green v. H. R. R. Co,, 32 Barb. 34).

      Ely & Smith, attorneys, and Moses Ely, of counsel for respondent, urged:
    I. The mere statement of this case is enough to condemn an application for a new trial. It surely can require no argument to show that no course was left to the learned judge at trial term but to grant the nonsuit asked.
    II. The offer rejected was (briefly) to prove that the president of defendants sought and had an interview with plaintiff, and offered her money in settlement, and neither admitted nor denied the liability of his company; and the rejection was proper, (a.) Such was not an admission of any fact by the president. (5.) There was no offer to prove, nor will it be presumed, that it could have been proved, that even an express admission by the president that his company was (o blame would bind defendants. Such an admission can hardly be supposed to be within the scope of his agency for the company (First National Bank a. Ocean National Bank (in court of appeals). See Daily Register, of April 12, 1875.
   By the Court.—Curtis, J.

The pleadings concede that it was the defendant’s duty, as a common carrier, to receive passengers and deliver them at such points on its railroad as they 'should wish to enter or leave its cars. The deceased, a boy of twelve years of age, was a passenger in one of defendant’s cars, occupying a seat in the front part of the car. The platforms and passage-way were- crowded with passengers. The rear platform was so full no one could get on or otf. At about Twentieth street the boy went towards the front of the car, and out upon the platform. When the car passed the lower corner of Nineteenth street and reached about the middle of the block, there was a break-up, as if breaks were being applied to the car, and when the corner of Eighteenth was almost reached, there was a jerk and an immediate stoppage of the car. The boy was found lying injured near the hind wheel of the car, his head not quite up to the upper Eighteenth street crossing. From this injury he died. There was snow on the side of the street from eighteen inches to three feet, which had been swept from the track and down to which it slanted, and the boy was lying between the snow and the side of the car.

The only witness who testified as to seeing how the injury occurred said, that he saw him on the instant of his coming down; it was all a flash ; that he was pushed off or fell off nolens volens ; that he could not say whether he was pushed or fell; that it came to his mind that may-be he was not holding on and the shook of the car threw him ; that so far as he knew he may have been jerked off, or pushed off; and that he did not know how it was done ; that he saw the boy stand-, ing perfectly still, and that he made no motion as if going to jump from the car.

This evidence fails to show that the boy’s injury was caused by any act or neglect of the defendants, or of their servants. He may have been pushed off, or jerked off by their carelessness, or he may have accidentally slipped or fallen from the car as he was preparing to alight when it should stop, or he may have jumped from the car without making any motion as if going to do so. If bare probabilities are considered it is difficult to see what they tend to show, and in this case the circumstances proved are insufficient to establish negligence on the defendant’s part after he came out on the platform. It does not appear that the movement of the car was unusual when the brakes were applied to stop it, as it approached Eighteenth street. If it had been left to the jury to find whether the injury occurred through the carelessness of defendant's servants, and they had found that it did so occur, there is no evidence in the case sufficiently direct or positive to sustain such a finding. There must be something more shown than a probability of defendants’ negligence ; there must be some element of moral certainty, and exclusion of reasonable doubt. Justice requires that it should be proved that defendants committed the wrong, before they can be adjudged liable.

It was the duty of the railroad company in carrying passengers, in view of their condition, age, sex, or infirmity to exercise care and judgment in receiving and delivering them. This is a part of the consideration they render for the fare paid by the passenger. If it is disregarded, and the passage-way and rear platform are crowded with passengers, the only mode of egress left is by the front platform, and that mode selected by the deceased seems to have been both natural and reasonable under the circumstances.

On the trial the counsel for the plaintiff. offered to prove that the president of the defendants, after causing this accident to be investigated, sought and obtained an interview with the plaintiff; and thereat, before this action was commenced or contemplated, or counsel was consulted by the plaintiff, the said president endeavored to settle the matter with the plaintiff, and offered to pay the plaintiff a sum of money in settlement thereof, and did not then or since question or deny the liability of the defendant.

The counsel for the defendant objected to the introduction of any such evidence, the objection was sustained, and the plaintiff’s counsel excepted.

The offer is not to prove that the president of the defendants admitted or denied their liability, even if he had the power to bind them by such admission. It is an offer to show that the president proposed to pay the plaintiff a sum of money, in the course of negotiations for a settlement of the plaintiff’s claim. The court properly excluded it. It is the policy of the law to favor the settlement of variances and controversies. The welfare of the community is protected by it. The admission of this class of testimony, would tend to prevent compromises and settlements of differences (Waldridge v. Kennison, 1 Esp. R. 143 ; Turner v. Railton, 2 Id. 274 ; Williams v. Thorp, 8 Cow. 202 ; 1 Green. Ev. § 192).

The judgment appealed from, should by affirmed with costs.

Sedgwick, J., concurred.


author: By the Court.—-Curtis, J.

text:
    MOLSON’S BANK OF MONTREAL, Plaintiff and Respondent, v. CHARLES N. HOWARD, impleaded, Defendant and Appellant.
    I. BILL OF EXCHANGE. —PROMISE TO ACCEPT.
    1. Telegbam.
    1. R. S. part 2, chap. 4, title 2, § 8. A promise to accept under this section may be transmitted by a telegram wi'itten and sent by the promissor.

    2. Unconditional—What is under the statute.
    1, Time the bill is to run need, not be specified—e. g. “To A—Wilt accept twenty-five gold or three thousand currency, on usual time, B,” is an unconditional promise, the time of drafts drawn in previous transactions of the same kind, hetmeen the parties being proved.
    H. MARSHALLING ASSETS.
    1. Can not he marshalled in an action to which all persons who claim to, or may possibly, be interested in the marshalment are not parties.

      а. Semble.— One who discounts an acceptance can not be deprived of his recovery against the acceptors, because he holds collateral security from the drawer, and the state of the accounts between the acceptors and drawer is such, that if the acceptors pay the acceptance, the drawer will he indebted to them in a sum equal to a part, or the whole of, or exceeding the value of the collateral.
    б. Bona-fide holdeb fob value befobe maturity of accepted bill of exchange is entitled to recover in a suit against the acceptor, without reference to the equities between the original parties.
    Before Curtis and Sedgwick, JJ„ .

      Decided August 3, 1875.
    Appeal from an order denying a motion for a new trial and from a judgment.
    The action was brought to charge the defendants as acceptors of a draft for three thousand dollars, upon a written promise to accept, under the statute. On April 8, 1874, at their banking house in Montreal, tho plaintiffs, a Canada banking corporation, in their usual course of business, at the request and for the account of the drawers thereof, discounted a draft or bill of exchange bearing date on that day, and drawn by Niven & Co., at Montreal, on the defendants at New York, at thirty days after date, for three thousand dollars. The proceeds of such discount, two thousand six hundred and eight dollars and forty cents, gold, were passed to the credit of Niven & Co., in account, and were used by them (pro tanto) in retiring their own acceptance of defendant’s draft for three thousand dollars, which matured on that day, and which was held by the plaintiffs as agents of the Mechanics’ National Bank of New York, for collection. The money received by the plaintiffs, in payment of Niven & Co.’s acceptance, was at once remitted by plaintiffs to the said Mechanics’ Bank. The plaintiffs discounted and cashed the draft in suit on the faith of defendants’ telegram, the original whereof was subscribed by Howard, and transmitted by him over the line of the Atlantic and Pacific Telegraph Company, to Niven & «Co., at Montreal.
    The telegram was as follows :
    “N. Y. Aprils, 1874.
    “To Niven & Co., Montreal, Ca. :
    “Will accept twenty-five gold or three thousand currency on usual time. Nothing new.
    “ C. N. Howard & Co.”
    The.defendants are commission merchants in the city of New York, and the draft in suit was drawn by Niven & Co., as one of a series of drafts against consignments of merchandise previously forwarded by them to the defendants for sale. The usual time at which such drafts were drawn was thirty days.

      It also appeared on the trial that at the time of the non - acceptance of the draft on Howard & Co., the subject of this action, there stood to the credit of said Niven & Co. on the books of the bank, eight hundred and seventy-four dollars in gold, and that in fact the bank then held that amount of money to the credit of said Niven & Co., and upon receipt of notice as aforesaid, held said sum of eight hundred and seventy-four dollars as security for the payment of the draft, the subject of this action, and then and ever since had refused to pay over saidsum to said Niven &Co., or said assignee, and that since the making of said draft, the said Niven & Co. had become bankrupt and insolvent, and had taken the benefit of the bankrupt laws in Canada.
    Charles N. Howard, one of the defendants, testified that he thought defendants had about fifteen hundred dollars of the drawers’ to apply upon this acceptance.
    A verdict for three thousand one hundred and seventy-seven dollars and fifty-five cents, was rendered under the direction of the court.
    Prom the judgment entered on such verdict, as well as from an order denying his motion for a new trial, the defendant Howard has appealed to the general term.

      Sandford, Robinson & Woodruff, attorneys, and Charles F. Sandford, of counsel for respondent, on the points discussed by the court, urged:
    I. Telegraphic authority to draw has been held by the court of appeals to be “an unconditional promise in writing to accept” (Johnson v. Clark, 39 N. Y. 216, 218). “Nor was it in the power of the defendants to revoke their promise after the plaintiffs had parted with their money on the faith of it.”
    II. The court properly directed a verdict for the full amount of the draft, and the defendants’ exception to such ruling is untenable. (1.) The defendants in this action can not be permitted to set off, against their liability to plaintiffs, a claim of Niven & Co., or of the assignee in bankruptcy of Niven & Co., against the plaintiffs, notwithstanding that the defendants, upon payment of their acceptance, may have a good canse of action against that firm (Smith v. Van Loan, 16 Wend., 659). It is the right of Niven & Co., or of their assignee, to have the fact of their indebtedness (if any) to defendants ascertained and determined in a suit to which they are, respectively, made parties. (3.) It is not pretended that the gold held by plaintiff, as collateral to the draft in suit, has been applied, pro tanto, in payment. That gold is still claimed by Niven & Co. and their assignee in bankruptcy, as due from the plaintiffs to them. Plaintiffs retain it, notwithstanding such claim, but merely as security for the payment of the draft in suit. The fact that plaintiffs claim to hold the gold as security by no means establishes (heir right so to do, and warrants no presumption of such right in favor of defendant. If, for any reason, Niven & Co. are not liable to plaintiffs as drawers, and there is no evidence tending to establish such liability, or if, under the bankrupt law of Canada, plaintiffs’ title thereto can not be sustained, the gold may be recovered of plaintiffs, even though this court, in this suit to which Niven & Co. are not parties, shall decide that the defendant is entitled to be credited with its value. No amount of security, in the hands of the plaintiffs, received by them from drawers who are only contingently liable, can avail to prevent or diminish a recovery against acceptors primarily liable.

      Tracy, Olmstead & Tracy, attorneys, and C. E. Tracy, of counsel for appellant, on the points discussed by the court, urged :
    I. This evidence did not make out a case of an “unconditional promise in writing,” within the meaning of the statute, and defendants’ motion for a nonsuit was improperly denied. The telegram did not specify the particulars of the draft to be drawn, neither amount in money, nor time, nor any standard by which the particulars could be determined (Barns v. Howland, 40 Barb. 3d8).
    II. The amount of gold in hands of plaintiff should, as claimed by defendant, have been first applied on the draft The claim was disallowed, and the justice directed a verdict for the plaintiff for the full amount of its claim (Ex parte Kendall, 17 Ves. 520; Dorr v. Shaw, 4 Johns. Ch. 20; Cheeseborough v. Millard, 1 Johns. Ch. 412; Evertson r. Booth, 19 Johns. 486 ; N. Y. Ferry Co. v. N. J. Co., Hopk. 460 ; Purdy v. Doyle, 1 Paige, 558, 560 ; Maurice v. Bank of England Cases, Temp. Talbot, 218; Wilder v. Keeler, 3 Paige, 171 ; Averill v. Loucks, 6 Barb. 470 ; Cowperthwaite v. Sheffield, 3 N. Y. 243; Besley v. Lawrence, 11 Paige, 581; De Peyster v. Hildreth, 2 Barb. Ch. 109 ; Greller v. Hoyt, 7 How. P. 265 ; Ingalls v. Morgan, 10 N. Y. 179 ; Hadley v. Chapin, 11 Paige, 245 ; Chester v. Kingston Bank, 17 Barb. 271 ; Hawks v. Hinchcliff, Id. 492 ; Marsh v. Oneida Central Bank, 34 Id. 298 ; Gihon v. Stanton, 9 N. Y. 476).
   By the Court.—-Curtis, J.

The plaintiff, a bank

in Montreal discounted the draft at the drawers’ request in the ordinary course of business, paying them the face thereof, less interest and one eighth per cent, commission. The draft was drawn against consignments of produce by the drawers to the defendants for sale.

The defendants on April 8, 1874, telegraphed from Hew York to the drawers, Hlven & Co., in Montreal, that they would accept three, thousand currency on usual time. Their previous transactions of the same kind had been on thirty days’ time. The draft in suit was so drawn. The telegram was an unconditional promise in writing to accept the bill before it was drawn, and it is by statute made an actual acceptance in favor of the party, who upon the faith thereof receives it for a valuable consideration (2 R. S. 768, § 8).

This telegram was produced and given to the plaintiff* when the draft was discounted. The writing and sending of it by the defendants was proved on the trial. The statute requires the promise to be in writing, but is silent as to the mode of communicating it to the party cashing the draft upon the faith of it. When it is in writing and thus acted upon its mode of conveyance, whether by telegraph, mail, or otherwise affects no rights, and such effect must be given to it as manifest justice and the exigencies of commerce call for in this class of communications.

It appeared on the trial, by a stipulation on the párt of the plaintiff, that when the defendants refused to accept the draft in suit, there stood to the credit of Niven & Co., on the books of the bank, eight hundred and seventy-four dollars, gold, and that, in fact, the bank then held that amount to the credit of Niven & Co., and upon receipt of notice of non-acceptance, retained the gold so held, as security for the payment of the drafts; that, since the making of said draft, Niven & Co. have become bankrupt and insolvent, and that plaintiffs have, ever since, refused to pay over said sum, either to them or to their assignee in bankruptcy.

The value of this with interest was admitted to be on the day of the trial one thousand and fifty-seven dollars and eighty-eight cents.

The defendants excepted to the ruling of the court disallowing their claim, that this amount of gold in the hands of the plaintiff should be first applied on the draft. The ground of this claim by the defendants was that this draft was an over-draft, and if accepted and paid by them, they would be subjected to loss. The amount of this deficiency is not very clearly shown. Prom the correspondence it appears that during the thirty days the draft- had to ran the defendants held and sold considerable amounts of produce that had been consigned to them by the drawers. The defendant Charles Ñ. Howard alone testifies on this point. It is as follows :

“ Q. On April 7, 1874, what was the state of the account or of the transactions between Niven & Co. and Howard & Co.?
“A. They had made shipments and drawn drafts against ns, and on March 7, or early in March, they made some drafts on shipments which we thought excessive.
“ Q. At the time of those drafts, had yon any funds ?
11 A. We had goods that were not realized upon ; as afterwards these goods were realized upon.
“Q. What would they net in your hands ?
“A. They would be worth nearly one-half of what this draft would be at the time'; I have not the figures exactly in my mind that were to the credit of Niven & Co.
“ Q. Had you any previous acceptances ?
“ A. We had; the result shows that we had something to apply on this draft; after we got through the accepted drafts, we bad something to his credit; on March 7, he made a draft, and I declined to accept it; but he said he would make further shipments, and I accepted them ; but on the 16th, not getting the account, I made a draft on him for three thousand dollars, which it seems they used.
“ Q. How much did your house have against the acceptances ?
“ A. I can not tell; I think about one thousand five hundred dollars, as against these acceptances; as soon as they got notice that I declined to accept, they stopped his account and reserved this amount, and they claim it to apply on this draft.”

This defendant has a supposition that his house, had about fifteen hundred dollars against the acceptances, but as he does not or can not tell what funds or goods of the drawees they had, and says that he can not tell how much his house bad against the acceptances, it is not worth while to speculate as to what was the condition of the account, when the only party to it before the court does not know and can not state it with any reasonable certainty.

But even supposing there was evidence showing that, Niven & Co. were at that time indebted to the defendant, and what was the amount of it, there would still bo a- difficulty in this form of action, in which Niven & Co. are not parties, in undertaking to pass upon their account with the defendants, or adjudicate in respect to it in any way. Niven & Co.' have a right to be heard before such action can be taken. This courtwonld have to assume, in their absence, that they owed the defendants at least the amount of the value of the gold, and then to hold that this fact entitled the defendants to be credited with the value of the gold, so belonging to Niven & Co. or their assignee in bankruptcy, and upon which the plaintiff claim's a lien.

The cases of Door v. Shaw (4 Johns. Ch. 90); Cheeseborough v. Millard (1 Id. 412) ; N. Y. Ferry Co. v. N. J. Co. (Hopk. 460), and others cited on the part of the defendants are in support of the doctrine presented by Lord Eldon in Ex parte Kendall, (17 Ves. 590), to the effect, that if A has a right to go upon two funds and B upon one, having both the same debtor, and the funds are the property of the same person, A shall take payment from that fund to which he can resort exclusively, so that both may be paid. But it must be observed that in all these cases, all the parties in interest were brought before the court. All the facts bearing upon the rights-of each were allowed to be presented, and as in Averill v. Loncks (6 Barb. 480), the court would not pass upon questions where this had not been done. Where parties go into equity for an administration of accounts, and securities, and liens, and to be substituted in the place of those holding col-laterals, on such terms as may be adjudged equitable, the rights of all parties may be protected. But this is very different from the present case.

If Niven & Co. or their assignee in bankruptcy had consented to the application of the gold to the payment of the draft in suit, it would apparently have inured to the defendants’ benefit, but it appears to be otherwise, and if the plaintiff can not hold it, as against the assignee under the bankrupt law of Canada, it might have to pay it again, though this court in this case where Niven & Co. are not parties, should hold that the defendant is entitled to be credited with its value.

It is desirable to avoid all such complications, and to embarrass the machinery of mercantile transactions with the fewest possible restrictions.

There seems to be no good reason why a plaintiff, discounting an acceptance because he received collateral security from the drawers, who are only contingently liable, should be deprived of his recovery against the acceptors, who are primarily liable, because of the state of the accounts between the acceptor and the drawer. The holder bona fide and for value of an acceptance before maturity in a suit against the acceptor is entitled to recover from the acceptor, without reference to equities between the original parties (Smith v. Van Sloan, 15 Wend. 659 ; Gtihon v. Stanton, 9 N. Y. 476 ; Marsh v. Oneida Bank 34 Barb. 298 ; Schepp v. Carpenter, 51 N. Y. 602; Johnson v. Clark, 12 Id. 218).

There was no question at the trial to submit to the jury, and the court properly directed the jury to find a verdict for the plaintiff.

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

Sedgwick, J., concurred.


text:
    LOUISE DOUAI WEHLE, Plaintiff and Respondent, v. WILLIAM C. CONNOR, Sheriff, Defendant and Appellant.
    I. AMENDMENT TO ANSWER—BY SETTING UP MATTER ALLEGED TO CONSTITUTE A FURTHER DEFENSE.

      Í. Motion fob—What may be considered upon.
    1. Whether the'matter constitutes a defense or counterclaim.

      a. If it does not, the motion may be denied, and the order of denial will not be reversed on appeal.
    II. SHERIFF.
    1. Execution, non-bettlrn of, action fob.
    1. What will not constitute a defense.

      a. The facts; that warrants of attachment had been issued to, and were then held by the sheriff against the property of the judgment creditor: "that he had served copies thereof on tho judgment debtor, with a notice that, lie levied upon and attached all goods, chattels, and credits in his hands belonging to the judgment creditor, and upon all dei>ts due the judgment creditor from the judgment debtor, and that he had received from the judgment debtor a certificate under the warrant that he was indebted to the judgment creditor in tho amount of the judgment, and that such judgment remained in full force and effect; will not constitu'e a defense.

    1. Excuse fob sheriff.—Semble —If the court sees fit to stay the proceedings or to direct that the money be retained in the sheriff’s hands after he had collected tbe amount out of the property attached, or to order it to be paid into court, an excuse may arise for a sheriff omitting to execute and return the execution.

      Before Curtis and Sedgwick, JJ.

      Decided August 3, 1875.
    Appeal from an order denying defendant’s motion for leave to interpose the portion of the proposed emended answer entitled “second defense,” on the-ground that such portion does not constitute a defense.
    The action is brought against the sheriff to recover damages for the non-return of three executions in favor of the plaintiff. More than twenty days after answering, the sheriff moved for leave to amend bis answer, and set up a second defense. This motion was denied on the ground that the proposed amendment tailed in. constitute any defense or counter-claim, and the defendant appealed. The proposed “ second defense ” of the amended answer, which is disallowed by the order-appealed from, alleges that the execution debtors in an action commenced by them against this plaintiff, and other parties in two several actions commenced by them against this plaintiff, on November 19, 1874 (six weeks'after the issuing of executions), caused warrants of attachment under the Code to be issued against the property of the plaintiff in this action to the defendant,, as such sheriff, copies of which the defendant alleges were served upon the judgment debtors, with a notice-endorsed thereon, that he levied upon and attached ah? goods, chattels, and credits in their hands belonging to s lid plaintiff, and upon all debts due her from them, and that said sheriff “thereafter” received from them, a certificate under each warrant, showing that they were indebted to the plaintiff in the amount of the three judgments, upon which he had the executions, and that said judgments, and each of them, then remained in full force and effect.

      Brown, Hall & Vanderpoels attorneys, and Almori

      Goodwin and A. J. Vanderpoel, of counsel for appellant, urged:
    I. The attachments received by the sheriff against the property of the plaintiff, and served by him upon the judgment debtors, were properly served, and became thereby a lien upon all moneys ■collected, or to be collected by the sheriff upon the .judgments, and are pro tanto a defense to this action. (!) a. It is not necessary to question the proposition that when a sheriff receives money in payment of an •execution in favor of a judgment creditor, he can not levy on the money so in his hands on an execution :against such creditor. That is the rule as laid down in Turner v. Fendall (1 Cranch, 41); Baker v. Kenworth (41 N. Y. 215), and other cases cited by the plaintiff in •the argument below. Those cases hold that money in the hands of the sheriff, under such circumstances, is :not the property of the plaintiff, and his interest in it is merely a chose in action. Under an execution, choses -in action are not subject to levy (Ingalls v. Lord, 1 Cowen, 240; Ransom v. Miner, 3 Sandf. 692). b. The case at bar is distinguishable from all the cases relied .upon as supporting the plaintiff’s position, in the fact that the processes issued to the’ sheriff against the judgement creditor, and under which he seeks to defend, are -warrants of attachment. Under attachments, choses in ■action may be levied upon in the manner prescribed by the Code, and as was actually done in the present case (Code, §§232, 234, and235). c. The proposed defense sets up, not that the sheriff has undertaken to attach moneys in his own hands, but debts due to the party against whom the attachments are issued, and there ■.can be no question that under the certificates set forth an the answer such attachments have acquired a perfect lien as against the parties giving the certificate. (2) a. There is another very marked distinction also to be ^considered. The reasoning of the court in Turner v. Fendall (supra, p. 48), upon which all the later cases depend is, that “the sheriff, not having brought the money into court, but having levied an execution while in his hands, has not sufficiently justified the non-payment of it to the creditor; ” and further, that “if the payment of damages should be against equity, that was not a subject for the consideration of the court of law which rendered the judgment.” The principle of these decisions, we submit, is that it is not the duty, nor is it the privilege, of the sheriff to decide upon the equities or rights of the parties in such cases, b. Now, where an execution against the judgment creditor is in the hands of the sheriff at the same time that he has money in his hands, made on an execution in favor of such creditor, the rights of all the parties may be properly determined under the provisions of § 294 of the Code (Baker v. Kenworthy, 41 N. Y. 215). c. But under an attachment the sheriff1*is not called upon nor has he any right to turn over what has been paid or realized upon an attachment. The command of the writ is “to attach and safely keep ” sufficient property of the defendant until the further order of the court, by judgment or otherwise. The plaintiff issuing the attachment can take no step under section 294 of the Code until judgment has been obtained, and is left without an)’ remedy whatever, unless the lien of his attachment is preserved.
    II. W hile 'prima facie the measure of damages in an action for non-return is the amount of the execution, this may be reduced by showing that the judgment debtor had no property out of which the execution could have been made, or by showing that the interest of the plaintiff1 in the execution is less than the face thereof. (1) Anything which attacks the judgment or the plaintiff’s interest in it is a defense to the sheriff in such cases, e. g., that the plaintiff has heretofore assigned the judgment. (2) In the present case the law has stepped in and made an assignment of the plaintiff’s interest in these judgments to the extent of these attachments, the amount of which is at present undetermined—an assignment subject, of course, to bo set aside by the ultimate defeat of the plaintiffs in those attachments. (3) The cases in which it is said that the only defense the sheriff can set up in an action for non-return is that the judgment debtor has no property, viz., Ledyard v. Jones (7 N. Y. 550); Bowman v. Cornell (39 Barb. 69), are cases in which there was no dispute as to the validity or amount of the judg- . ments or of the executions issued upon them,
    III. Under the Code, a partial defense may be pleaded, such as facts in mitigation of damages, part payment, etc., and the proposed defense comes within this class (Bush v. Prosser, 11 N. Y. 347; Loosey v. Orser, 4 Bosw. 391; Foland v. Johnson, 16 Abb. 285; Hynd v. Griswold, 4 How. 69 ; Williams v. Hayes, 5 Id. 470 ; Houghton v. Townsend, 8 Id. 441).
    IV. If the right of the defendant to interpose the proposed defense in this case be doubtful, it should be allowed, so that the question may be properly disposed of by the court of appeals, and that cannot be properly done under an appeal from this order.

      Charles Wehle, attorney and of counsel for respondent, urged:
    I. As between the sheriff and the execution debtor there was nothing due from the latter to the plaintiff in this action if the sheriff had made the levy required by law. If however, he failed to make the levy, it is his own negligence, which caused damage to the plaintiff, and hence it can not be pleaded by him as a defense.
    II. If the sheriff had done his duty by making the levy immediately upon the receipt of the execution, the title to the property levied upon by him, or tho proceeds of its sale (if sold), would have immediately vested in the plaintiff, and the service of the attachmenfc, issued six weeks afterwards, could not have affected her title to that property or money ; hence the proposed second defense is founded upon the theory that the sheriff has failed to do his duty, and the court was correct in excluding it (Roth v. Wells, 29 N. Y. 489; Swezey v. Lott, 21 Id, 481; Hewland v. Willets, 9 Id. 173. See also Hathaway v. Howell, 54 Id. 97).
    III. A result of the levy of an execution upon property is, that when once taken by a sheriff or other officer, who is the bailee of the law, property is then in custodia leg is., and can not be interfered with by a private person, or by another officer acting under the authority of a different court or jurisdiction. They are in the custody of the law until the proper time for their sale, and for a reasonable time thereafter. During this time they are beyond the reach of seizure by any other execution, attachment or other writ, even for taxes, though they remain in the possession of the very party who is liable to pay taxes. The possession of the officer is the possession of the court by whose command that officer seizes them, and that possession can not be interfered with by any other court (Van Loane v. Kline, 10 Johns. 135 ; Hartwell v. Biswell, 17 Id. 128 ; Dubois v. Hartcoart, 20 Wend. 41 ; Pullian v. Osborne, 17 How. [U. S.] 471 ; Freeman v. How, 24 Id. 450; Herman on Ex. § 173). Hence the proposed defense is irrelevant, and was rightly overruled and excluded.
    IV. Money collected on execution not being liable to levy, an officer, who applies such money in satisfaction of an execution in favor of a creditor of the execution plaintiff, is liable for the same to such execution plaintiff. If the sheriff has collected the money on these executions, such money does not become the goods and chattels of the plaintiff until paid out to her, and while it remains in the hands of the sheriff he could not apply it to the satisfaction of another execu- . tion against the former plaintiff, and consequently it can not be attached under the Code, as the attachment is merely a security for the execution to be issued upon the judgments (Baker v. Kenworthy, 41 N. Y. 215 ; Muscott v. Woodwarth, 14 How. 477 ; Carroll v. Cone, 40 Barb. 220 ; Code, §§ 232 and 237).
    Y. There is no excuse shown in the excluded portion of the answer why the sheriff has not returned the execution within the time required by law ; no inability to collect, or insolvency of the defendants in the execution is averred, nor can it be pretended that the attachments operated as a stay (Crocker on Sheriffs, § 442 ; Code, § 290 ; 2 R. S. Elm. Ed. 458; Code, § 149 Swezey v. Lott, 21 N. Y. 481 ; Bowman v. Cornell, 39 Bard. 69 ; Humphrey v. Hathorn, 24 Id. 278 ; Ledyard v. Jones, 7 N. Y. 550).
    VI. Assuming the warrants of attachments to have been issued and levied in-good1 faith, yet if the sheriff had made return of the executions within the time required by law, the plaintiff in this action, by bonding-the attachments at any time after appearance, would have been entitled to receive the money made on the-executions, which can not be done now by reason of the sheriff’s failure to return (see Code, §§ 240, 241 ; Hathaway v. Howell, 54 N. Y. 97).
   By the Court.—Curtis, J.

The following provision of the statute points ont concisely and clearly the duty of a sheriff in regard to the execution of process. and Ms liability for its violation :

“Every sheriff or other officer, to whom any process shall be delivered, shall execute the same according to the command thereof, and shall make due return of his proceedings thereon, which return shall be signed by him. For any violation of this provision, such sheriff or other officer shall be liable to an action at the suit of the party aggrieved, for the damages sus tained by him, in addition to any other tine, punishment, or proceedings, which may be authorized by law” (2 R. S. 440, §77).

By this statute an action is given to the creditor against the sheriff for not returning the execution. By this omission it is settled, that the sheriff becomes-liable for the debt, unless he shows some sufficient reason, but he may show in mitigation "of damages,, that the defendant had no property on which the-execution could be levied (Swezey v. Lott, 21 N. Y. 484).

It is to be considered whether the proposed defense is a sufficient excuse for the sheriff.. It is the duty of the sheriff with an execution to execute the process in the most effectual manner. Asan agent he is bound to proceed with that degree of diligence which persons of common prudence are accustomed to use about their own business and affairs (Tomlinson v. Rowe, Hill & Den. Sup. 410). There is no reason assigned by the-sheriff for delaying a levy under the executions for forty-two days after he received them. As an excuse for his subsequent omission to levy and return them, he sets up the warrants of attachment then issued. The law looks with disfavor upon delays and want of good faith on the part of officers charged with the execution of process.

The. provision of the statute above cited, is but the affirmance and amplification of the rule as to their liability that had grown up at common law. But supposing it to be the case that these attachments had not originated directly or collusively from the execution debtors, but that they were issued while the sheriff was proceeding to levy unipr the executions, with the ordinary diligence of a man engaged in collecting his own debt, would they furnish a sufficient reason why the sheriff should desist from proceeding further with the executions.

It is clear that the goods of those defendants, as against themselves, were bound from the time of the--delivery of the executions to the sheriff to be executed (2 R. S. 365, § 13; Roth v. Wills, 29 N. Y. 489). The law does not contemplate that the execution debtors •ran discharge this lien of the executions by suing out a warrant of attachment against their execution creditors, or that the sheriff is not to proceed under the executions because attachments may come into liis hands and be levied on the debts due to the execution •creditors. The duty of the sheriff is to proceed and make the money under the executions. There is no reason why he should not, and on the other hand his •delay or his omission to proceed might lead to the loss of an opportunity to collect the debt from the execution debtor, and deprive both the execution creditors .and the attaching creditors of any remedy.

The .sheriff is simply the officer of the court charged with the execution of its process, and it is no part of his office to exercise a judicial discretion as to when, and under what circumstances, he will or will not execute it and make his return. Whether the attachments in the present case were properly issued or not, it was his duty to lev)7 under the executions, and to vollect them if possible, and pay to the plaintiff the amount, unless the court saw tit to stay the proceedings. or to direct that the money be retained in the sheriff’s hands after he had collected the amount out of the property attached, or to order that it be paid into court. In some such way, an excuse may arise, for a sheriff omitting to comply with the provisions •of the statute, but it is difficult to see how a sufficient excuse can arise from his undertaking, unauthorized!/ .and upon his own discretion, not to execute process (Paige v. Willett, 39 N. Y. 34, 35).

The order appealed from should be affirmed, with ¿costs.

Sedgwick, J., concurred.


text:
    FRANCIS W. HOLBROOK, Receiver, &c., Plaintiff and Appellant, v. SOLOMON ORGLER, impleaded with HERMAN AHRENDORFF, Defendant and Respondent.
    Head-Note to Decision
    op
    General Term.
    I. SUPPLEMENTARY PROCEEDINGS-CODE, §§ 394-398.
    1. Receiver, no power to appoint.

      a. In proceedings instituted under § 394 of the Code, after issue, but before return of execution, this court has no power to appoint a receiver.

    1. § 398 does not give power in such a case.
    Before Curtis and Sedgwick,- JJ.

      Decided August 3, 1875.
    Head Note to Decision,
    op
    Special Term.
    7. SUPPLEMENTARY PROCEEDINGS.
    1. Mariné court—power op.
    1. The marine court and its judge, have, in respect to judgments recovered in that court, all the powers and authority enumerated in and conferred by chapter 3, title 9, part 3 of the Code (supplementary proceedings), f

      a. Transcript, filing of—This does not divest or affect such powers and authority,

    Before Monell, Ch. J.

      Appeal from a judgment dismissing the complaint.
    On July 21, 1874, John Pullman and Samuel C. Pullman recovered in the marine court of the city of Mew York, a judgment in their favor against said Herman Ahrensdorf for the sum of two hundred and eighteen dollars and thirty-two cents, and filed and docketed a transcript of said judgment in the office of the clerk of the city and county of Mew York, where said Ahrensdorf then resided, and issued an execution against the property of said Ahrensdorf to the sheriff of the city and county of Mew York, where said Ahrensdorf then resided, directing him to levy and collect the amount of said judgment, with interest from July 21, 1874, beside his fees.
    Before the return of this execution, one of the justices of the marine court made an order dated July 31, 1874, in proceedings supplementary to execution, pursuant to § 294 and § 298 of the Code of Procedure, whereby the plaintiff was appointed receiver of all the property, debts, equitable interests, rights, and dioses in action of said Herman Ahrensdorf. The execution which had been issued was not returned until September 17, 1874. The plaintiff herein brought this action as such receiver.
    Issue was joined by answer of defendant Orgler to the complaint, and was tried before a single judge at special term.
    On the trial, defendant Orgler, among other things, claimed that plaintiff could not sustain his action because (1) the marine court had no power to appoint a receiver ; (2) plaintiff’s appointment as receiver under § 294, the execution not having been returned, and the judgment debtor being no party to it, was invalid.
    The court at special term dismissed the complaint on the second ground, holding the first to be untenable.

      The following opinion was delivered :
    Mokell, Ch. J.—“ The power of a justice of the marine court to make an order for the examination of a judgment debtor, and in that proceeding to appoint a receiver of the debtor’s property, must depend upon the construction and force to be given to the 7th section of the act of 1874, entitled ‘ An act in relation to the marine court of the city of New York’ (Laws, 1874, chap. 545).
    “Previous to the passing of that statute, there was no such power.
    “ The section referred to provides that, 1 In all cases where judgments shall be recovered in said court, all proceedings supplementary to execution on said judgments, under- the provisions of the Code, if had in the city of New York, shall be had and completed in the= said marine court, in the same manner and with like effect, in every particular, as now allowed by law in other courts of record, and all provisions of law relating to such proceedings shall apply to said marine court as fully as they now apply to any other court of record.’
    “Under that statute the marine court may entertain these supplementary proceedings, unless deprived of jurisdiction by the effect of filing a transcript of the judgment in the county clerk’s office.
    “The 68th section of the Code, which was made applicable to the marine court, provided that, upon filing a transcript with the clerk of the county, the judgment shall be ‘ enforced in the same manner, and be deemed a judgment of the court of common pleas.’
    “ That section was also made applicable to justices’ and other inferior courts of cities, not of record.
    “The marine court at that time was not a court of record, except for certain purposes (Huff v. Knapp, 5 N. Y. 65 ; Porter v. Bronson, 29 How. Pr. 292), but by the act of 1872 (Laws, 1872, chap. 629), it is declared to be a court of record for all purposes. That act also provides that the judgments of the court docketed with the county clerk, shall have the same effect as a lien, and be enforced in the same manner as the judgments of the court of. common pleas. It will be seen that the words, ‘ and be deemed a judgment of the court of common pleas,’ are omitted : and the repealing clause of ‘ all acts and parts of acts inconsistent with this act,’ is an express repeal of the 68th section of the Code as respects the marine court.
    “The act of 1874is still broader. Section 12 provides that the judgments of the court may be docketed with the county clerk, and shall thereupon have the same effect as a lien, ‘and be enforced in the said manner as any other judgment of said court,’ thus changing it from ‘the same manner as judgments of the court of common pleas,’ and leaving it with the marine court to execute its own judgments in all cases.
    “ This change in the statute was not noticed in matter of Lippman (Daily Register, January 13, 1875), nor was it necessary that it should be, as the judgment in that case had not been docketed with the county clerk.
    “It is quite clear, therefore, I think, that under the last statute, the marine court is given power to execute Its own judgments in the same manner that other courts of record may do ; and whether docketed with the county clerk or otherwise, an execution may issue from such court, and no longer need be issued, as is understood to have been the former practice, out of the court of common pleas.
    “ The Code regulating proceedings supplementary to an execution, has been held to apply to justices’ judgments which had been docketed in the county clerk’s office, which covered the judgments of the marine court which had been docketed in like manner; and the officer authorized to make the order was a judge of the court of common pleas. When the section of the Code was enacted, and down to the act of 1874, the marine court judgments, after docket in the county clerk’s office, were in effect judgments of the common pleas, and the judges of that court had exclusive jurisdiction.
    ‘ ‘ But as it was competent for the legislature to relieve the marine court from the operation of the 68th section of the Code, and give it control over its judgments, in respect to the manner of executing and enforcing them, it was equally competent to extend its jurisdicdiction to these supplementary proceedings.
    “This has been done, and the marine court, under the act of 1874, is given the same power over its judgments and the manner of executing them, as is possessed by other courts of record ; and the only effect of docketing in the county clerk’s office is to make the judgment a lien on real property, as provided in section 282 of the Code in respect to the judgments of other courts.
    “Another objection is, that the court can not appoint a receiver until after the return of the execution unsatisfied.
    “The 294tli section allows the examination of a third person alleged to have property of the debtor, before the return of the execution ; and the authority to appoint a receiver is given by the 298th section. The 299th section provides that if the per-son examined claims an interest in the property adverse to the judgment debtor, such interest shall be recoverable only in an action against such person by the receiver.
    “Thereare several decisions affecting this question.
    “In Kemp v. Harding (4 How. Pr. 178) the appointment of receiver was made upon an examination under section 294, but without notice to the debtor, who appealed from the order, and the general term of the fifth judicial district held, that to authorize the appointment of a receiver in section 298 of the Oode, the proceedings should be against the debtor to reach his property generally, and not, under the 294th section, of third persons as to property of the debtor in their hands, and that without such personal proceeding against a debtor, a receiver could not be appointed. That case has been approved in Baker v. Johnson (4 Abb. 437), where it was held that a receiver, appointed without an order for the examination of the judgment debtor, could have no authority to sue. And in Sherwood v. Buffalo, &c. R. R. Co. (12 How. Pr. 136), it is said, the proceeding under section ' 294 is merely in aid of the principal proceeding against the judgment debtor, and must be had in connection with it, and can not be resorted to independently of any proceeding against the debtor.
    “In Darrow v. Lee (16 Abb. Pr. 215) it was held by the general term of the common pleas, that until the return unsatisfied of an execution, a receiver can in no case be appointed.
    “In Andrews v. Gienville Woollen Co. (11 Abb. N. S. 78) it is held that ‘ section 294 does not authorize the appointment of a receiver, and that a receiver can not be appointed under section 298 of a particular debt or particular article of the debtor’s property.’
    “These are sufficient to show the current of decision setting strongly against the power to appoint a receiver, except upon an order for the examination of the judgment debtor; and I think they are sufficiently uniform to serve as a safe guide in determining the objection to the plaintiff’s right to sue in this case.
    “The proceeding supplementary to the execution is similar to, if not a substitute for, the late creditor’s bill, which could not be filed until all legal efforts to collect the judgment had been exhausted. Hence, in all cases it was necessary to show that an execution upon the judgment had been issued and returned unsatisfied.
    l£ So here, the remedies at law must be exhausted against the debtor’s property, and then he may be proceeded against to make discovery of his property, and the other proceeding is merely ancillary to such principal proceeding.
    ££íhe want of power in the judge to appoint a receiver, upon an examination under section 294, is vital to the plaintiff’s right to sue, and the objection is available by the defendant in this action.
    ££ The defendant must have judgment, dismissing the complaint, with costs.”
    Judgment dismissing the complaint having been rendered, defendant Orgler appeals.

      J. S. & C. H. Smith, attorneys, and of counsel for appellant.

      D, & T. McMahon, attorneys, and Dennis McMahon, of counsel, for respondent.

       This is an affirmance of one of the propositions held at special term.
      Tho principle of the decision includes as well proceedings instituted under that section, after return of execution. The facts, however, do not call for so broad a decision, but only for one to the effect stated in the head-note.

       Neither of these propositions was passed on by the general term.

   By the Court.—Curtis, J.

The proposition contended for by the appellants is substantially this, that after issuing and before the return of an execution upon an affidavit that any person has property of the judgment debtor or is indebted to him in an amount exceeding ten dollars, a judge may appoint a receiver of all the property, debts, equitable interests, rights and choses in action of the judgment debtor, with all the powers of a receiver to take possession, hold and dispose of the same, precisely as though appointed under a creditor’s bill, or in proceedings supplementary to execution after the return of an execution unsatisfied.

It might be harsh and oppressive, while, an execution is in the sheriff’s hands that will be satisfied by a levy and sale, or by the efforts of the judgment debtor to meet it, that without waiting for the return of the process and simply upon the affidavit above referred to, a receiver with such powers should be appointed, and competent among other acts to subject the property of the judgment debtor to the burden and expenses of a great variety of litigations. The jurisdiction of the court of chancery in reference to creditors’ bills, defined and confirmed by the Eevised Statutes, was limited to those cases, where the execution had been returned unsatisfied. The creditor was compelled to exhaust his legal remedies, before resorting to a court of equity.

It may well be doubted whether the framers of the Code intended to change this rule. It is evident that they sought to simplify and abridge the former proceedings to obtain payment after the return of an execution unsatisfied ; and if they had intended to establish the new remedy of appointing a receiver, and obtaining satisfaction priorto the return of the execution unsatisfied, it is but just to presume, that they would have used some language manifesting such intention. A careful examination of the provisions of the Code upon which the appellant bases this claim, fails to disclose any such language.

So far as this question has come before the courts for consideration, it seems to have been held, that there was no power to appoint a receiver, except when an order for the examination of a judgment debtor had been first obtained (Weyman v. Childs, 44 Barb. 403; The Ocean National Bank v. Olcott, 46 N. Y. 18; Darrow v. Lee, 16 Abb. Pr. 215 ; Kemp v. Harding, 4 How. Pr. 178 ; Andrew v. The Glenville Woollen Mill, 11 Abb. N. S. 82).

No order for the examination of the judgment debtor had been obtained in the present case, and consequently there was a want of power in the judge to appoint the receiver. He is therefore without legal capacity to act as such. The answer places his authority to'so act its issue. The objection was available and duly taken, by the defendant, and is one that is fatal to the plaintiffs capacity and right to sue. It becomes unnecessary to consider the remaining questions raised by the appeal.

The judgment appealed from, should be affirmed,, with costs.

Sedgwick, J.s concurred.