text:
    ROSWELL L. COLT, Appellant, v. WILLIAM I. OWENS, et al., Respondents.
    I. Damages, Measure of.
    1. SALE OF STOCK, AGREED TO BE PURCHASED AND CARRIED UPON THE GUARANTY OF A THIRD PARTY AGAINST LOSS.
    (a) Upon ail unauthorized sale of the stock the measure of damages of the party for whom the stock was to be carried (he not having made any payment on account of the purchase of the stock) is the difference between the purchase price and tlie price he would have been obliged to pay in the market for the stock within a reasonable time after the sale. Baker 0. Drake. 53 W. T. 311, applied.
    1. Reasonable time. Thirty days after notice to the party for whom the stock was to be carried, is. If during all such period the stock could have been bought for the purchase price or less, no damage, recoverable against the party who was to carry the stock, is sustained.
    1. The guaranty, effect of. Its existence does not bring it within the distinctions pointed out in Baker 0. Drake.
    Before Sedgwick, Oh. J., Speir and Freedman", JJ„

      Decided June 13, 1881.
    Appeal by plaintiff, from judgment entered upon verdict directed by court, for plaintiff, in nominal damages ; and also from order denying motion for new trial, made upon the minutes.
    The defendants were stock-brokers and in consideration of the guaranty of a third person, against loss-in the matter, agreed with the plaintiff to buy and hold for him, subject to his order, certain shares of stock. The shares were bought and held for a time, until the guarantor notified the defendants that he withdrew his guaranty against loss. The defendants notified the plaintiff of that withdrawal and'that they would sell the shares unless the plaintiff gave further security against loss. The plaintiff denied the light of the defendants to assent to the withdrawal of the guaranty, and claimed that the defendants should continue to hold the shares, until the plaintiff should direct their sale. The defendants thereupon sold the shares, under such circumstances, that it was admitted upon the trial that the sale was unauthorized. The only question mooted upon the trial, related to the measure of damages. The testimony showed that on. November 15 the defendants sold the stock at 69% and gave the plaintiff notice that the sale had been made and of the price. For thirty days thereafter the stock could have been bought in the market for that price or less. In the following January, the plaintiff gave an order that the stock be sold. At that time its market value was about 80. The plaintiff claimed that as damages' he was entitled to the difference between the purchase price and the value in January. The court held that he was entitled to the difference between the purchase price and the price he would have been obliged to pay in the market, within a reasonable time after the unauthorized sale. The court considered, that the facts were; that within a reasonable time the plaintiff could have' bought the stock for the price of the unauthorized sale or less, and therefore that the defendants were responsible in but nominal damages.

      Adolphus D. Pape, attorney, and of counsel. for appellant, urged :
    I. It is conceded that the defendants’ sale was unauthorized, and was therefore a conversion. But defendants insist, and the court held, ’ that under the rule of damages established in Baker v. Drake (53 N. Y. 211,) plaintiff was entitled to nominal damages only, and directed a verdict for six cents. Plaintiff insists that this was a misapplication of that rule, for the following reasons : Plaintiff had supplied defendants with an acceptable guaranty, and his rights were the same as though he had paid the purchase- ' money in full. By this unauthorized sale defendants not only deprived plaintiff of the profits of the subsequent rise, but of the guaranty which secured defendants against loss from carrying the stock till that rise took place. This case is therefore distinguished from Baker v. Drake, because in Baker v. Drake the stock was bought on a margin which had been exhausted, and the loss was only of profits ; and it appearing that Baker could have bought back the stock and thereby indemnified himself, it was bis duty to buy it, and not the duty of defendants, because the decline of the stock had exhausted Baker’s margin ; and as Judge Rapallo said : “ But, that where he has paid the purchase-money, i t is unreasonable to require him to pay if the second time, and therefore all fluctuations in price should be at the risk of the vendor who refuses to deliver, while retaining the purchase-money.” The same principle is laid down in the case of Suydam v. Jenkins (3 Sand. 620), and the following cases illustrate and enforce same rule: Paige v. Fowler, 39 Cal. 412; Sturges v. Keith, 57 Ill. 451 ; see also Sedgw. on Damages, 561-623.
    II. The court erred in not allowing the jury to pass upon the question whether the time between the sale and the rise of the stock was sufficiently reasonable to enable plaintiff to indemnify himself. This is a question of fact (see Baker v. Drake, 66 N. Y. 523). There are features in this case which a jury might and should have considered in determining whether the time was reasonable. The defendants destroyed the plaintiff’s guaranty. Their act rendered it inoperative. The plaintiff could not have used it elsewhere for the same purpose. If his margin had been money or collaterals, he could have bought the stock upon it through other brokers. Therefore he was placed in a much more disadvantageous position than though his margin had been transferable and available in other quarters. In Scott v. Rogers (31 N. Y. 682), it is decided that four months was a reasonable time.

      Ely & Smith, attorneys, and Ereling H. Smith,, of counsel, for respondents, urged:
    I. It is a familiar rule of law that it is incumbent upon everyone suffering injury from a breach of contract to lessen the damages as far as he can do so by any acts of his own (Hamilton v. McPherson, 38 N. Y. 73 ; Clark v. Marsiglia, 1 Denio, 317; Dillon v. Anderson, 43 N. Y. 72).231

    II. The law is settled in this State that the only damages a customer can recover from a broker for an unauthorized sale of stocks carried on a margin for speculative purposes, is the advance (if any) in the market price of the stocks, from the sale to a reasonable time after notice thereof is received by the customer (Baker v. Drake, 53 N. Y. 211; Same v. Same, 66 Id: 518). This case changes the rule of damages adopted in Markham v. Jaudon (41 N. Y. 335), and to that extent overrules the latter case.
    III. The transaction in question was a pure speculation on the part of the plaintiff. He did not even have a margin deposited on his stocks and at the time of the sale there was a loss on them of over $500; All the money to pay for them was advanced by defendants. This case therefore comes directly within Baker v. Drake (supra).

    IY. The court would not have been justified in submitting the question to the jury as to whether plaintiff had a reasonable time after notice of the sale to purchase his stocks, before they advanced beyond the price paid for them, viz., $71 per share. The case does not show when they again reached that price, but it was some time after December 18, 1878, and therefore more than thirty-three days after notice of the sale. A verdict against the defendants on this question would have been so palpably erroneous as to have compelled the court to have immediately set it aside.
    Y. The guaranty that plaintiff testifies to, in no way changed the speculative character of the transaction. It was simply a promise by a third person to save the defendants from loss. This promise, in the most favorable view for plaintiff, simply took the place of a cash margin. It in no way made the purchase an investment, or other than a speculative one of the-same description as that in Baker v. Drake.
    VI. The guaranty of Hopper, testified to by plaintiff, not being in writing," was void under the statute-of frauds.
   By the Court.—Sedgwick, Ch. J.

The ruling of' the court is sustained by Baker v. Drake (53 N. Y. 311). The space of thirty days, within which the1 plaintiff might have regained the stock in the market' without loss, is the reasonable time within which he should have acted. It is not meant to say that a less time would not be reasonable.

The learned counsel for appellant argues from the fact that the defendant had security, in the shape of a guaranty from a third person, that certain distinctions' pointed out in Baker v. Drake recognize that its decision does not affect a case like the present. In that case, it was said that ‘1 if the stocks had been paid for and owned by the plaintiff different considerations would arise,” and “that where he has paid the purchase-money, it is unreasonable to require him to pay it the second time, and therefore all fluctuations in price should be at the risk of the vendor who refuses to deliver.” There is nothing in this case to show that the withdrawal of the guaranty or the arrangement between the guarani Gr- and the plaintiff, had taken any part of plaintiff’s; means of buying the stock on his own account. After the withdrawal he had the same facilities for buying-that he was possessed of before it was given. It was proven that he paid nothing for the guaranty and he-was liable to pay nothing. I am of opinion that the; decision of Baker v. Drake should be applied here,

Judgment and order affirmed, with costs.

Speir and Freedman, JJ., concurred.


source: Caselaw Access Project

author: By the Court.—Speir, J.

license: Public Domain

text:
    PHILIP A. FITZPATRICK, Respondent, v LAUREN C. WOODRUFF, Appellant.
    I. Evidence.
    1. PRESUMPTIONS AGAINST A PARTY NOT PRODUCING EVIDENCE.
    (a) None wise, unless it appears that there is evidence which contradicts or explains the evidence adduced against him, or corroborates his own, and that such evidence is peculiarly within his knowledge or power to produce.
    1. Non-calling a witness. In the case at bar the action was brought to recover the sum which plaintiff had paid defendant, on the sale by the latter to the former of certain bonds. The question was as to the terms on which the bonds were sold. The parties themselves were the chief witnesses on this question. Plaintiff testified that he was induced to buy the bonds by defendant’s promise, to take them back on thirty days’ notice, and return the purchase money, with interest, if he should at any time become dissatisfied with them. The defendant’s evidence was in direct conflict with this, and he also testified that plaintiff bad told him that one Sinclair had advised him to buy the bonds. Sinclair was not called as a witness by either party. It appeared in the evidence that Sinclair had been called as a witness on a former trial of the action, and had then testified that he did not remember having advised plaintiff to buy the bonds.
    Held,
    that defendant was not bound to call Sinclair, nor to give any excuse for not calling him.
    Charge. A charge which in various forms instructed the jury that they were at liberty to draw inferences unfavorable to defendant by reason of the non-calling of Sinclair,

      Held, error.

    Before Sedgwick, Oh. J., and Speer, J.

      Decided June 13, 1881.
    This action was tried below by a jury, and a verdict was rendered for the plaintiff. After verdict defendant made a motion for a new trial on the judge’s minutes, which was denied, and defendant excepted. No order was entered denying the motion, consequently the only appeal taken was from the judgment entered on the verdict.
    In December, 1872, the defendant, hearing that the plaintiff had a small amount of money, invited him to purchase some of the bonds of the Erie & Genesee Valley Railroad Company, and in order to induce him to take them, he promised that at any time the plaintiff became dissatisfied with them he would take them back on thirty days’ notice and return his money with interest. The plaintiff knew nothing of the bonds in question, but, being induced by the promise of the defendant, he took $9,000 worth of bonds, paying 90 cents for them and receiving bonds of the par value of $10,000.
    The bonds were subsequently tendered to defendant and the suit was thereafter brought to recover the purchase price.
    The cause was submitted to the jury upon a conflict of evidence as to the terms and conditions upon which the sale of the bonds was made to the plaintiff. The plaintiff and defendant were the chief witnesses as to the facts litigated, before the jury.

      Fithian <& GlarJc, attorneys, and id J. JFitMan, of counsel, for appellant, on the points considered by the court, urged :
    The charge is sought to be sustained upon the authority of Bleecker v. Johnson, 69 N. Y. 309, when an examination of that case shows an entirely different ruling. That case is an authority directly and squarely against the ruling and charge of the judge at circuit, and not for it. That case affirmed only the old and well established common law principle and rule of evidence, viz. : that when two interested parties or witnesses are in direct conflict as to material facts in a case, and it appears that one of such interested parties has within his knowledge, and under his especial control and power to produce, material evidence, oral or written, which ought to, and naturally should, throw light on the direct question at issue, and the party neglect or refuse to produce such evidence, the jury would be warranted in concluding (without explanation) that if such evidence were produced it would make against the party omitting to produce it, and therefore, a 1 ‘ less favorable view ” might be taken of the case of such omitting party. But this case does not come within speaking distance of that rule. Here it was shown affirmatively upon plaintiff’s own showing that Sinclair could swear to nothing whatever in respect to any material question whatever in the case. And this fact was made to appear, not by calling Sinclair, who was alive and within the jurisdiction of the court’s process, but by compelling defendant to give hearsay evidence of what Sinclair had sworn to on a previous trial—thus violating another elementary rule of evidence. And then when the plaintiff had affirmatively and conclusively proven that defendant had not suppressed or withheld any material evidence or omitted to call any material witness peculiarly within his knowledge or control in reference to any issue whatever, material or immaterial, then the court proceeded to charge the jury that they might consider whether a certain collateral question arising on the trial was or not a material question. And if they (the jury) found it to be a material question they might consider and determine whether-a certain witness, if called by defendant, could or would have sworn for or against defendant on the question, although it was affirmatively shown that this same witness had once sworn that he could give no evidence whatever one way or the other on the subject. And then' the jury were told that if they were satisfied tbis witness, if called, would not corroborate the defendant in a matter the witness had once sworn he knew nothing whatever about, the jury would be justified for that reason in “ taking a less favorable view of defendant’s case.” This hardly rises to the dignity of an error in a case of fair doubt—it was a “ comedy of errors.” Of course this charge settled the case. The jury were unable to make the proper discrimination, or extract the mischief from this charge. A verdict for plaintiff was almost a necessary result.

      Alexander B. Johnson, attorney, and of counsel, for respondent, on the questions considered by the court, urged :
    The exceptions to the charge are not well taken. They were questions for the jury, and were properly left to the jury (Bleecker v. Johnston, 69 N. Y. 309).
   By the Court.—Speir, J.

No order having been entered denying the motion for a new trial, and the only appeal taken being from the judgment entered on the verdict, the general term will not interfere with the disposition the jury has made of the facts. The judge properly instructed the jury that the burden of proof was upon the plaintiff, and that to entitle him to a verdict the evidence should preponderate in his favor, and when they should come to consider whether the plaintiff had such a preponderance of facts and circumstances as would be satisfactory to their minds, including the probabilities of the transaction, he should charge as he had been requested by the plaintiff’s counsel, and charged as follows: “ It is for you to determine whether the statement of Mr. Woodruff of Mr. Fitzpatrick’s telling him that Mr. Sinclair had advised him to buy these bonds is a material one, and if you so believe, then you are to consider, whether the failure of the defendant to call Mr. Sinclair as a witness, is not such a circumstance as would justify you, in considering that if he were called, his testimony would not corroborate Mr. Woodruff on that point.” “I also further charge you that, if you believe Mr.. Sinclair, if called, would not corroborate Mr. Woodruff’s testimony in that particular, then you will be justified in taking a less favorable view of defendant’s testimony on that point.” “ And so, in considering this question, you are to remember that Mr. Sinclair was called as a witness on defendant’s behalf, on the former trial, to substantiate this point, and that there is no evidence that Mr. Sinclair is not within the jurisdiction of this court and not within the call of its subpoena.” The defendant’s counsel duly excepted to each of the foregoing paragraphs of the charge. On the cross-examination of the defendant the plaintiff’s counsel asked him this question : “Did he (Sinclair) testify on that trial that he had advised Mr. Fitzpatrick to go and purchase these bonds?” The defendant answered, “He said he did not remember.”

By the rule which imposes upon a litigant the obligation which will contradict or explain circumstantial evidence against him, it must appear that there is evidence which would explain or elucidate the matter in dispute, and that it is peculiarly within the knowledge of the party called upon to produce it. How otherwise can it be said that any presumption whatever can be raised against him ? The charge must have been made upon the supposition that the defendant knew that Sinclair was possessed of facts or circumstances which, if he had been called and put on the stand, would not corroborate the defendant, and that the defendant knew what the facts and circumstances were. How the plaintiff had shown by the defendant on cross-examination, under objection by defendant’s counsel, on the point in question that Sinclair said on this former trial that he did not remember' ■that he had advised the plaintiff to go and purchase these bonds. The omission to call a witness who has no other or better knowledge of the matter in dispute than those who are produced and give evidence, is not suspicious entitling the adverse party to any presumption to his prejudice. The plaintiff having proved by the defendant that Sinclair on the former trial had said that he did not remember that he had advised the plaintiff to buy these bonds, no foundation was laid as .to the materiality of the question ; and the' jury could only be misled. It is true the defendant had testified on his direct examination that Fitzpatrick had told him before the former trial, that Sinclair had advised him to purchase those bonds, but upon Sinclair’s examination he said he did not remember. If the question was found by the jury to be a material one, as they were instructed they might, and ■ the defendant failing to call the witness, they might readily believe- that had he been called, his evidence would have been prejudicial to the defendant, although it had been shown by the plaintiff that the witness could give no evidence one way or the other. For this error in the charge the judgment must be reversed and a new trial granted, with costs to abide the event.

Sedgwick, Ch. J., concurred.


author: By the Court.—Truax, J.

text:
    BENJAMIN WRIGHT, Receiver, Etc., Respondent, v. ELBERT NOSTRAND, et al., Appellants.
    Supplementary Proceedings.
    1. Receiver, order appointing.

      (a) Piling and recording under the code of procedure.
    1. Should be filed and recorded in the office of the clerk of the county where the judgment debtor resides, and in order to vest the receiver with real estate of the judgment debtor, in the office of the clerk of the county where such real estate is situate (§ 298). It is not necessary to record it in a register's office.

    (6) Jurisdiction to make.
    1. When and by whom to be shown.

    In an action brought by a receiver appointed by a judge's order against third persons, he must prove every fact necessary to confer jurisdiction.
    2. Matters necessary to confer.

    1. A money judgment.
    2. An execution issued on a money judgment and returned unsatisfied.
    1. What is not such an execution. One which, in reciting the judgment, leaves the amount, and date of docket, blank, is not.
    3. An order supplementary to execution.
    1. Non-production of, when not accounted for. Not by the testimony of the clerk of the court that he cannot upon search find it in his office. Such evidence does not authorize secondary proof.
    4. That the proceedings supplementary were instituted or carried on by the owner of the judgment.
    1. When such fact does not appear.
    It does not, when a corporation obtained a judgment, and thereafter it was dissolved by judicial action, and a receiver of all its property, &c., was appointed, and there is no evidence that the supplementary proceedings were instituted by the receiver; but on the contrary in the proceedings the corporation appeared to be the owner of the judgment, and the proceedings were carried on as if it had a legal existence.
    5. That the proceedings, from their institution up to the time of the appointment of the receiver, were kept alive by regular adjournments, and that proper notice of the application for a receiver was given.
    Before Sedgwick, Ch. J., Freedman and Tritax, JJ.

      Decided June 13, 1881.

      This is an action brought by the plaintiff, as receiver of Elbert Nostrand, one of the defendants, to set aside certain conveyances made by said Elbert Nostrand to the defendant, John R. Cypert, and by said Cypert and wife to the defendant, Mary A. Nostrand, the wife of the defendant, Elbert Nostrand, on the ground that such conveyances were made in fraud of the creditors of said Elbert Nostrand, and without any consideration having been paid therefor by said Cypert or by said Mary A. Nostrand. Said conveyances were made on February 12, 1874. The judgments in which the plaintiff was appointed receiver were recovered as follows : One in favor of J. E. Arnold, in this court on March 2, 1874 ; one in favor of the Loaners’ Bank, in this court on January 19, 1876, and one in favor of Conrad Poppenhusen and others, in the court of common pleas, on December 26, 1874. The actions in which these judgments were obtained were commenced prior to said 12th day of February, 1874, except the Poppenhusen action. This action, however, was brought on a promissory note made by said Elbert Nostrand on January 15, 1874. Execution was issued to the sheriff of the city and county of New York, the county in which said Elbert Nostrand then resided, on the Arnold judgment on March 4, 1874, and returned unsatisfied, and such proceedings were thereafter had that on July 25, 1877, the plaintiff in this action was appointed receiver of all the debts, property, equitable interests, rights and things in action of the said Elbert Nostrand. The plaintiff, as such receiver, duly filed his bond, and the order appointing him receiver was duly filed in the office of the clerk of the city and county of New York on January 18, 1878, and before the commencement of this action. Said order was not recorded in the office of the register of the city and county of New York.
    Execution was issued on the Poppenhusen judgment, and such proceedings were had that on February 12, 1878, an order was made by said court of common pleas extending the appointment of said receiver to the Poppenhusen judgment. This order was filed in the office of the clerk of the city and county of New York on the same day, but never was recorded or registered in said register’s office.
    Execution was also issued on the Loaners’ Bank judgment, and such proceedings were thereafter had that on January 21, 1878, an order was made by this court extending the appointment of said receiver to said last-mentioned judgment. This order was recorded .in said county clerk’s office on January 31, 1878. It never has been recorded or registered or filed in the office of said register.
    The execution issued on the Arnold judgment contained a number of defects. It recited that the judgment was obtained in the superior court, without specifying what superior court, for the sum of - dollars, and that judgment was docketed on March —, 1874. It commanded the sheriff to return said execution to the clerk of the city and county of New York. It' was witnessed by “Egbert Speir,” one of the justices of this court. It was indorsed with a direc- ' tion to return said execution within sixty days to ‘ ‘ the Culver & Bertrand, plff. attys.”
    The execution, however, did state the amount due thereon, did direct the sheriff to levy and collect that amount, and was returned to the office of the clerk of this court.
    The execution issued on the judgment in favor of the Loaners’ Bank was made returnable to the clerk of the city and county of New York.
    The execution issued on the Poppenhusen judgment recited that the judgment was obtained “in the court of common pleas,” and was made returnable to the clerk of the city and county of New York.

      The defendants objected to the admission of those executions on the trial, on the grounds above specified. The defendants also objected to the admission of the orders appointing and continuing plaintiff receiver, on the ground that owing to the above defects a proper foundation had not been laid, and that it did not appear that any notice of the motion for the appointment of a receiver had been given to the judgment debtor. The order appointing a receiver in the Arnold action was also objected to, on the ground that no proper foundation had been laid for its admission, by proof of supplementary proceedings first instituted in that action. These objections were overruled, and the defendants duly excepted.
    Judgment passed for plaintiff, from which the defendants appealed to the general term.

      Thomas & Wilder, attorneys, and E. P. Wilder, of counsel, for appellants, on the questions considered by the court, urged :
    I. It was error to'admit in evidence the order appointing plaintiff receiver. Mo proper foundation was laid for it by the introduction of the order in supplementary proceedings on which it was or should have been based. Plaintiff’s attorney, Betts, afterwards tried to supply this defect by testifying that the order and examination of the judgment debtor had been handed up to a judge of this court, since which time he, Betts, had never seen them, but he admitted he had caused no search to be made for them among that judge’s papers. It is submitted that this laid no foundation for secondary evidence, much less for dispensing with evidence altogether (see Josuez v. Connor, 7 Daly, 448). This was the order of a judge in a special statutory proceeding instituted before a judge, and not before the court. The order carries on its face no presumptions as to jurisdiction or regularity (Old Code, § 298). Every fact necessary to the order must be proved (Coope v. Bowles, 28 How. Pr. 10; Sackett v. Newton, 10 Id. 561; De Comean v. People, 7 Robt. 498, 501; Dubois v. Cassidy, 8 N. Y. Weekly Dig. 132). And such jurisdiction may be attacked or inquired of collaterally anywhere (Kamp v. Kamp, 59 N. Y. 212).
    II. The order was further objected to, as there was no proof of notice to the judgment debtor of the applk cation for it. The “notice” required by law is a legal notice, given in conformity with the rules relating to other motions. “Notices shall be in writing” (Code of Pro. § 408). Here none whatever was given. The testimony of Betts, at the most, amounts only to this: that he verbally notified Reeve, at the close of the examination of Nostrand, that he would then and there apply for a receiver. Reeve was not a practicing attorney, and had not been for many years. He was not the attorney for Nostrand in that action, and was present with him only as his friend. Besides, he contradicts Betts flatly. As to the insufficiency of such a notice, see Vandeburgh v. Gaylord, 7 N. Y. Weekly Dig. 136; Kemp v. Harding, 4 How. Pr. 178 ; Dorr v. Noxson, 5 Id. 29 ; Barker v. Johnson, 4 Abb. Pr. 435 ; Todd v. Crook, 4 Sandf. 694, 695.
    III. The order appointing plaintiff receiver confers upon Mm no title or capacity to bring this action, because not recorded in the office of the register of New York city and county. In Rockwell v. Merwin (45 N. Y. 166, 168, affirming as correct; the view taken by Mo-. nell, J., in 8 Abb. Pr. N. S. 330, 334), the distinction between the office of county clerk and of the register in the city and county of New York was not taken. The decision is emphatic only upon the necessity of filing and recording. The language of the Code is of course general, and applies to all the counties of the State, except such as are affected by special statutes creating the office of register. This distinction is now insisted on by virtue of chapter 86 of the Laws of 1813.
    IV. The judgment creditor’s remedy at law was not exhausted before resorting to this action. This, for the following reasons : No valid execution was issued on the judgment in favor of J. E. Arnold against Elbert Nostrand, under which the plaintiff was first appointed. The subsequent appointments under the judgments of the Loaners’ Bank and Poppenhusen were mere extensions of the first appointment, and depend for their validity on that, (a) It does not state the amount of the judgment. This is essential (Code of Pro. § 289). (5) It does not state the court in which the judgment was recovered. It speaks of “superior court,” but whether of Buffalo or some other city does not appear (Code of Pro. § 289). If issued out of the wrong court it is utterly void (See Clark v. Miller, 18 Barb. 269). (o) It does not state when the judgment was docketed (Code of Pro. § 289). (d) If is not returnable “to the clerk with whom the judgment is filed.” On its face it is returnable to the clerk of the city and county of New York, and on its back, to the plaintiff’s attorney in that action (Code of Pro. § 290). (e) It is not tested in the name of any judge of this court, but of one “Egbert Speir,” not known to be a judge of any court (See Clarke v. Miller, 18 Barb. 269).
    V. The “ extension” of the appointment of the plaintiff as receiver, under and for the benefit of the j udgment recovered by the Loaners’ Bank is clearly a nullity. It appears that the Loaners’ Bank, at the time these supplementary proceedings were instituted, had ceased to be a corporation, and its property (including, of course, this judgment, for no previous assignment of it to anybody appears in evidence) had passed into the hands of one Wintringham, as receiver. The affidavit on which these proceedings were based was made by a former attorney of the Loaners’ Bank, whose authority, of course, must have terminated with the existence of the corporation, his client (See Amore v. Lamothe, 7 N. Y. Weekly Dig. 212). No authority is shown to have proceeded from Wintringham, the receiver ; no allusion to' him is made in the proceedings; and no notice appears to have been given to him of any motion for the “extension” of plaintiff’s appointment for his benefit; he is not made a party to this action, nor was his request or permission obtained before bringing it.

      H. D. Betts, attorney, and of counsel, for respondent, on the questions considered by the court, urged :
    I. The defendants objected on the trial to the court’s receiving the execution. ■ on the Arnold judgment in evidence, and claim that proceedings supplemental could not be founded on its return unsatisfied. 1st. Because the amount of the judgment was not stated ; 2nd. Because the court was not stated to be the superior court of the city of New York but only the superior court; Sd. Because it did not state the day on which the judgment was docketed in the county clerk’s office ; 4th. Because it directed the sheriff to return it to the clerk of the county of New York. The execution did state the amount due upon the judgment. It did state that the judgment was recovered in the “superior court.” It did state the month and the year in which the judgment was docketed in the county clerk’s office. It was not necessary to direct the sheriff where to return it, and such direction was.mere surplusage (Code of Pro. § 280). The law made it the duty of the sheriff to return the execution to the clerk of this court, and it appears that he did so return it. The sheriff received the execution and executed it, and the plaintiff’s remedy at law was thereby exhausted, and he had a right to proceed in equity. Besides, the execution was valid and the irregularities complained of are at any time amendable nunc pro tunc (Kennedy v. Thorpe, 3 Abb. Pr. N. S. 131; Fake v. Edgerton, 5 Duer, 681; Cutler v. Rathbone, 1 Hill, 204; Peck v. Tiffany, 2 N. Y. 451; James v. Gurley, 48 Id. 163). Like objection to the executions issued on the Poppenhusen judgment was taken because it directed the sheriff to return it to the clerk of the city and county of New York, and the execution issued on the judgment of the Loaners’ Bank for that reason, and because it describes the judgment roll as being filed in the county clerk’s office instead of the office of the tilerk of the court of common pleas. It appears that both of these executions were executed by the sheriff, and by him returned to the proper office, and that the judgment roll in the case of the Loaners’ Bank was filed in the office of the clerk of the court of common pleas ; the irregularities complained of were clearly amendable under the authorities above cited. Besides, all these objections were waived by the appearance of the judgment debtor and his examination without objection in proceedings supplemental to execution (Hobart v. Frost, 5 Duer, 672 ; Union Bank of Troy v. Sargent, 35 How. Pr. 87). And in general, in a statutory proceeding, a party against whom it is taken may waive any particular requirement of the statute intended exclusively for his benefit (Bull v. Trustees of Village of Lockport, 3 N. Y. 197; Williams v. Potts, 2 Barb. 316; Phyfe v. Eimer, 45 N. Y. 102; Wright v. Alden, 3 How. Pr. 213; Whitehead v. Pecare, 9 Id. 35 ; Platt v. Platt, 2 Sup’m. Ct. [T. & C.] 26; Church v. Kidd, 3 Hun, 254; James v. Gurley, supra). All these objections go only to the regularity of the appointment of the receiver, as this action could have been maintained by the judgment creditors, even if no execution had been issued upon the judgment and returned unsatisfied (Baldwin v. Ryan, 3 Sup'm. Ct. [T. & C.] 251; Crippen v. Hudson, 13 N. Y. 161).
    II. The plaintiff, as receiver, succeeds to all the rights of the judgment creditors, represented by him Bostwick v. Menck, 40 N. Y. 383; Barker v. Torrence, 31 Id. 331).
    III. It is claimed by the appellant that the plaintiff could not recover as the representative of the owners of the judgment of the Loaners’ Bank against Nostrand— because at the time the. supplementary proceedings were instituted which resulted in the extension of the plaintiff’s receivership to that - action, the Loaners’ Bank had become insolvent and its assets passed into the hands of a receiver, one Wintringham—and because it does not affirmatively appear that those proceedings were authorized by Wintringham. These proceedings were properly instituted in the action, in the name of the original plaintiffs, they are regular on their face, and the presumption is that they were duly authorized, especially is this so in view of the fact that this action was brought at the request of Wintringham. In any event, to have constituted a defense the burden was on the defendants to show affirmatively that these proceedings were not authorized by him. It was sufficient for the plaintiff to show that he was regularly appointed receiver in the several actions which he represents—but it appears that this action is brought for the real parties in interest and by their request. The order of the court directing the receiver to bring this action is conclusive upon this question.
    IV. The defendants asked the court to dismiss the complaint, because the orders appointing the plaintiff receiver were not filed and recorded in the office of the register of the city and county of New York, claiming that by virtue of the provisions of the act of April 9, 1813, creating the office of register, &c., the orders should be filed and recorded in that office instead of the office oí the clerk of the city and county of New York. The old code (§ 298), which was in force at the time these orders were made, required the orders to be filed and recorded in the office of the clerk of the county in which the judgment roll was filed, upon which proceedings were taken. This was done, and this is all that is required (Rockwell v. Merwin, 45 N. Y. 166 168). The argument of the defense is that the-act of 1813 took from the legislature the power to subsequently direct the filing and recording of a paper in. the office of the clerk of the city and county of New York, and is an absurdity on its face. There is nothing in the act of 1813 inconsistent with the provisions of section 298 of the Code of Procedure, and if there is, the former is repealed by the latter. Besides, the-provisions of section 298 of the old code are for the-protection of third parties, and not for the benefit of the judgment debtor. He has actual notice of the appointment of the receiver, and the constructive notice required by the statute might well be disregarded as to him. It is a well settled principle of law that when a party has actual notice, it is immaterial whether a constructive notice required by a statute is given or not.
   By the Court.—Truax, J.

The motion to dismiss the complaint because the order appointing plaintiff' receiver had not been filed or recorded in the office of' the register of the city and county of New York, was-rightly denied. Chapter 86 of the Laws of 1813 simply directs that any papers therein mentioned, that are-thereafter directed by the legislature to be recorded or registered without specifying the place where they* should be recorded or registered, shall be recorded an d. registered in the office of the register of the city and county of New York, but when any subsequent law specifies the place in which papers shall.be regist*red or recorded, such papers must be registered or recorded in the place so specified. This construction of the act of 1813 makes section 298 of the Code of Procedure consistent with that act. But if the act of 1813 and section 298 of the Code are inconsistent, the former must be considered to have been repealed or superseded by the latter, which is the later expression of the will, of the legislature (People ex rel. Kingsland v. Palmer, 52 N. Y. 83; People ex rel. Navarro v. Van Nort, 64 Barb. 205).

The alleged execution issued on the Arnold judgment contains as many defects as it is possible to put into an execution. It says a judgment was rendered for-dollars and was docketed on the-day of March. It directed the sheriff to collect $604.95, which was the amount of the judgment. There were also a few other mistakes in it, but the one first mentioned is the only one that will be considered. I am of the opinion that this execution gave the sheriff no power to make a levy. If the judgment was rendered for-dollars, the sum of $604.95 could not be due thereon,, and the sheriff had no right to collect that sum. Section 289 of the Code of Procedure, which was in force at the time the execution was issued, directed that “an execution must intelligibly refer to the judgment, stating the court, the county where the judgment roll or transcript is filed, the names of the parties and the amount of the judgment.” Under this provision and similar provisions in other States, it has been held that the execution must exactly follow the judgment and be warranted by it (Reese v. Burt, 39 Ga. 565 ; Highton v. Handlin, 27 Ark. 20 ; Wilson v. Renter, 29 Iowa, 176 ; Jennings v. Pray, 8 Yerg. 85; Kniel v. Graves, 72 Penn. 11, 104; Baur v. Crisman, 29 Mo. 293 ; Farnham v. Hildreth, 32 Barb. 277; Tanner v. Grant, 10 Bush, 362 ; Cutler v. Wadsworth, 7 Conn. 6; Clark v. Miller, 18 Barb. 269). The general term of this court, in Heilner v. Walsh (ante, p. 269), held that, although an execution was not subscribed, either, by the party issuing it, or by his attorney, yet, having on it an indorsement which was subscribed by the attorney, such an indorsement was equivalent to a subscription, and therefore the execution was not void. Heilner v. Walsh also holds that mere defects in the form of an execution might be disregarded, or might be cured by amendment. I am of the opinion that the omission of the amount of the judgment is not a mere defect in the form of the execution, that the court should amend four or five years after the issuing of the execution, although it would have amended the execution on motion made at the proper time. The order appointing plaintiff receiver in the Arnold action should not have been received in evidence. The order was the order of a judge and not of the court, and every fact necessary to sustain the order must be proved. . It carries on its face no presumption of jurisdiction or of regularity. A material fact to give the judge jurisdiction to make the order was the issuing of an order supplementary to the execution. Such an order was not produced. Nor was its non-production accounted for by the testimony offered. There is no law requiring such an order to be filed with the clerk. It is a judge’s order, and the testimony that the clerk said he could not find the order in his office, did not authorize secondary proof of the order (Coope v. Bowles, 42 Barb. 87; De Comeau v. People, 7 Robt. 498, arid cases there cited). Before a judge has jurisdiction to make an order supplementary to the execution there must be a money judgment and an execution must have been issued on that judgment and returned unsatisfied. If a judge has made an order supplementary to the execution, when it is made to appear that no execution has been issued, the order should be vacated or further proceedings under the order should be stopped. The judgment in favor of the Loaners’ Bank was obtained January 19, 1876. On May 3, 1876, a receiver of all and singular the property, assets, choses in action and estate of every description of said Loaners’ Bank was appointed. The corporation on the appointment of the receiver no longer had any legal existence (McCulloch v. Norwood, 58 N. Y. 562). There is no evidence that these proceedings supplementary to the execution were instituted by the receiver of the bank. In those proceedings the Loaners’ Bank appeared to be the owner of the judgment, and the proceedings were carried on as though the bank had a legal existence. Proceedings supplementary to the execution must be carried on in the name of the owner of the judgment (Amery v. Lamothe, 7 Weekly Dig. 212). The supplementary proceedings in the Poppenhusen action were begun on April 9, 1875. The order was made February 12, 1878. It does not appear that the proceedings were kept alive until that day, nor does it appear that any notice of the application for the appointment of a receiver was given to'the defendant or to his attorney. Jurisdiction was lost by the failure to continue the proceedings by regular adjournments (Squire v. Young, 1 Bosw. 690 ; Carter v. Clarke, 7 Robt. 490).

The judgment is reversed and new trial ordered, with costs to the appellant to abide the event.

Sedgwick, Ch. J., and Freedman, J., concurred.


author: By the Court.—Sedgwick, Ch. J.

text:
    ACALUS L. PALMER, et al., Respondents, v. THE GREAT WESTERN INSURANCE CO., Appellant.

      Deposition taken on open commission—refusal of witness to answer upon cross-examination, effect of.

      It seems, that it is sufficient cause to suppress, on motion, a deposition taken on open commissiou, that the witness refused, upon cross-examination, to answer questions which, under certain aspects of the case, might become material and pertinent upon the trial.
    In this case, it appearing that the counsel for plaintiff (on whose motion the commission was issued), did not object to such questions; that plaintiff was obliged to depend upon the witness for proof of loss; that it would be difficult to re-examine him in time for the trial; and that it was probable that the law of the place where the witness might be found, would not compel him to answer; the court directed that the deposition be read upon the trial, and that the trial judge pass upon the admissibility (as relating either to the issues, or to the credibility of the witness), of the unanswered questions, as of that time, and decide accordingly, as to the suppression of the deposition, the rulings of the trial judge to be subject to objection, &c.;—or that plaintiff, at Ms option, submit to an order suppressing the deposition.
    Before Sedgwick, Ch. J., and Van Vorst, J.

      Decided November 7, 1881.
    Appeal by defendant, from an order denying their motion to suppress deposition, taken under commission, issued on plaintiffs’ motion.
    The facts appear in the opinion.

      JEvarta, Southmayd & Choate, attorneys, and Tread-well Cleveland, of counsel, for appellant.

      Goodrich, Deady & Platt., attorneys, and W. TFL Goodrich, of counsel, for respondent.
   By the Court.—Sedgwick, Ch. J.

The commission was executed in St. John, New Brunswick. The ground, claimed to be sufficient for the suppression of deposition was, that the witness had refused to answer some thirty questions, asked on behalf of defendant. The counsel for plaintiff made no objection to the questions. The witness, tor himself, refused, and in most instances, because, in his opinion, the questions did not concern the issues in the action, but concerned his private business. There are two grounds on which the questions might be admissible, upon the trial of the action, if the witness were examined then. The first would be, that they involved matters that affected credibility. The admission of such questions is somewhat in the discretion of the court. Cases may be conceived where it would not be right to suppress the deposition, because questions of this kind were not answered. On the other hand, if might be unjust and make a pernicious precedent, to limit strictly the cross-examination of a witness examined under commission. This appeal will be decided upon other considerations, in a result which will cover these particular matters.

The other ground of admissibility would be, that the question related to the issue itself. It may be perceived that on the trial, the question might be pertinent, if certain other things were proved, or if the court were satisfied that proof as to these things were about to be given. It is impossible to hold that, before such questions should be answered under commission, the party asking them must show that a state of things exits at the time of the deposition, which is only necessary to exist at the trial. Our first inclination is, to hold that it is sufficient cause to suppress, that the unanswered question may be pertinent upon the trial. The case, however, is a peculiar one. The plaintiff seems not to have been at all responsible for the witness having refused to answer, He seems to be obliged, to depend upon this witness for proof of the loss. It may be that it will be difficult to find the witness, at a place where he can be examined for the trial. I speak only from the motion papers. If he be found, it may be that the law of the place will not compel him to answer. It is more important to consider, that perhaps the questions have no pertinency, and whether they have will depend upon the condition of things at the trial.

The conclusion, therefore, is that an order be entered, modifying the order appealed from, so that the denial of the motion to suppress is upon the condition, that the defendant, upon the trial, shall have leave to read, or ask the questions unanswered, as if the witness were upon the stand, and in such course as shall then be approved by the court; and if the court shall hold that none of the questions are admissible upon any legal ground, then the denial of the motion to be absolute ; but if the court shall hold that any of the questions are admissible, as pertinent to the issue, or as relating to credibility, then the denial of the motion is to be of no effect, and the deposition is suppressed; and if any part of the deposition shall have been read, it is, upon proper motion, to be stricken out of the evidence. The ruling of the court at the trial upon these matters to be subject to objection, exception and review.

The plaintiff may, however, at his option, submit to an order of absolute reversal.

Van Vorst, J., concurred.


text:
    GEORGE BELL, Appellant, v. JOSEPH A. DONOHUE, et al., Impleaded, &c., Respondents.

      Actions for same cause pending in this and another State—stay of proceedings—order to elect.

    An action should not be allowed to proceed in a court of this State, while the plaintiff is pursuing the same defendant, for the same cause of action, in a court of another State; this, though in the action in this State are included, as defendants, parties not sued in the other action, provided such difference of parties does not change the case as to the defendant in question.
    In this case, the court directed that the plaintiff elect which action he would first prosecute, and stipulate to stay proceedings in the other.
    Before Sedgwick, Ch. J., and Van Voest, J.

      Decided November 7, 1881.
    Appeal by plaintiff from order directing a stay of proceedings in this action, until the determination of an action in the United States circuit court for the district of California.
    The facts appear in the opinion.

      Lord & Lord, attorneys, and Scott Lord, of counsel, for appellant, urged:
    I. When the parties are not the same, an order to stay should not be granted (People v. Northern R. R. Co., 53 Barb. 98 ; Leavitt v. De Launay, 4 Sandf. Ch. 281). Charging that the action of such company was fraudulent, it must be a party. It appears that the trustees of the New York company, colluding with, the defendants Donohoe and others, refused to take any steps to have it made a party to such foreclosure suit.

      II. The relief sought in the two actions is not the same. In denying a motion to stay an action until another was tried, the court held that it must appear “the entire relief demanded and sought for in this action could be awarded in the other” (People v. Northern R. R. Co., supra; Leavitt v. De Launay, supra).

    III. The pendency of another action for the same cause in another State, though prosecuted by the same plaintiff, is no bar to an action in this State (Williams v. Fitzhugh, 37 N. Y. 444, 451).

      Martin & Smith, attorneys, A. P. Whitehead, and M. W. Devine, of counsel, for respondents, urged:
    I. Where two suits are commenced and the subject of both actions and the parties are the same, and the entire relief sought for in the one can be obtained in the other, the one last brought should be stayed (McFarlan v. Clark, 2 Sandf. 699 ; Atkinson v. Merritt, 1 Id. 667; Burlingame v. Parce, 18 Hun, 149, and cases cited ; McCarthy v. Peake, 18 How. Pr. 138).
    II. The courts of this State will not enjoin the prosecution of a suit in another State ; but where the cause of action is the same in the two suits, and the parties are the same, or practically the same, the court in this State will stay proceedings in the case here, until the case in the other State is discontinued, or determined (Hammond v. Baker, 3 Sandf. 704 ; Nichols v. Nichols, 12 Hun, 428). The gravamen of both actions is an alleged fraud on the Mariposa Land and Mining Company and its grantee, the California Company (this latter company holding the fee of the Mariposa estate), which fraud, it is claimed, affects the validity of Donohoe’s mortgage on that estate. This makes the parties to both suits sufficiently identical within the case of Ritter v. Worth (58 N. Y. 627), though the parties defendant are not the same in the two actions.
    III. It is a well-established rule in this State, that our courts will not, by injunction, restrain a suit or proceeding previously commenced in a court of a sister State, or in any of the federal courts (Mead v. Merritt, 2 Paige, 402 ; Burgess v. Smith, 2 Barb. Ch. 276 ; Schuyler v. Pelissier, 3 Edw. Ch. 191; Hammond v. Baker, 3 Sandf. 704; Minfield v. Bacon, 24 Barb. 154; Williams v. Ayrault, 31 Id. 364).
   By the Court.—Sedgwick, Ch. J.

The plaintiff began an action in the United States circuit court for the district of California. The ultimate relief asked in that, was the same as in this action. The plaintiff’s cause of action involved' a setting aside of a settlement and agreement, between one of the present defendants and a corporation. In the present action, that corporation has been made a party defendant, and also one of the defendants who was not joined in the California action. In the California action the bill was demurred to, but no decision has been rendered, after argument of the demurrer; in this case an answer has been served. I am of the opinion that it would be inequitable and vexatious, to the defendant Donohoe, at least, to allow the present action to proceed, while the plaintiff was pursuing him, for the same cause, in California (1 Dan. Ch. P. 635; citing Durand v. Hutchinson, Ld. Raym. 248). The difference of parties does not affect the case as to him, except that it may be supposed that the action in California could not be successful without the corporation that has been made defendant here. I do not think, in view of the- circumstances that called for the attempt to set aside the settlement referred to," that the plaintiff should, at all events, be stayed here and forced to proceed with the California action. The more equitable course would be to compel him to elect which he will first prosecute to an end, or until it is discontinued, and to stipulate to stay proceedings in the other (1 Dan. Ch. P. 815). The defendants should not have had costs of motion. The order below will be modified by striking out the costs of motion, and by making the stay in this case to continue until the plaintiff shall elect, in writing, which action he will prosecute, at the same time stipulating to stay proceedings in the other action, during the pendency of the former action. The order is not, in any event, to stay the entering of the proper order in the action in California, when the decision as to demurrer shall be made. Neither party to have costs of appeal.

Van Vorst, J., concurred.


author: By the Court.—Sed&wick, J.

text:
    ALICE A. MACER, Respondent, v. THE THIRD AVENUE R. R. CO., Appellant.

      Negligence—pleading—judge's charge—damages—intervening act increasing injury.

    The complaint alleged that the plaintiff “ was in the act of getting off the rear platform thereof (defendant’s car), when, by and through the negligence and want of proper care and attention on the part of the said defendant, by its said servant, the said car vvas suddenly started, and the said conductor struck this plaintiff on the shoulder, and she was thereby, through such negligence and carelessness on the part of said conductor, violently thrown to the ground,” &c. Held, that plaintiff’s claim was wholly based upon negligence of defendant through its servant.
    It appeared that the car was negligently started while plaintiff was alighting, thereby throwing her toward the ground, and that her fall was accelerated by the motion of the conductor’s arm in endeavoring to save her. Held, that defendant was liable for all the injury suffered by plaintiff, though part thereof might have been caused by the intervention of the conductor. It seems, that this would be so, even had it not been within the scope of the conductor’s duty to so intervene.

      The court, at defendant’s request, charged that “no liability results from the commission of an act arising from inevitable accident, or which ordinary human care or foresight could not guard against. ” Reid, not error, as being likely to mislead the jury as to the degree of care necessary, for the court to add: “I leave it to you to say whether this was an inevitable accident or not; i. e., whether the company could not have prevented the accident.”
    The physician who attended plaintiff testified that the injury received by her, which he described, would “ probably exist all her lifetime.” Reid,, that such testimony was competent, as bearing upon the probability of future damages to plaintiff. Curtis v. Rochester, &c. R. R. Co. (18 N. Y. 534), distinguished.
    Before Sedgwick, Cli. J., and Freedman, JJ.

      Decided December 5, 1881.
    Appeal from judgment on verdict for plaintiff, and from order denying motion for new trial made upon the case.
    The action was for damages, alleged to have been caused by the negligence of defendant’s servant.
    The plaintiff was a passenger in a horse-car of the defendant. At her request the conductor of the car stopped it, to allow her to alight. As she was on the plátform, about to step down, and before her foot had reached the step, the conductor, by ringing the bell, started the car ahead, which caused her to fall. While falling, the conductor suddenly thrust out his hand to save her; he did not catch her, but, according to plaintiff’s testimony, the motion of his hand accelerated her fall.

      Lauterbach & Spingarn, attorneys, and John ■ Graham, of counsel, for appellant.

      Nelson Smith, for respondent.
   By the Court.—Sed&wick, J.

The exceptions have been argued very thoroughly and ably. They are too numerous for examination individually; the merits of them all may be determined by reference to general propositions, which will be applicable to classes into which the exceptions may be divided.

There were exceptions that depended for validity upon the proposition that the complaint alleged that the conductor of defendant’s car willfully or intentionally struck the plaintiff. The allegation adverted to occurs in this part of the complaint, namely, that the plaintiff “ was in the act of getting off of the rear platform thereof, when by and through the negligence and want of proper care and attention on the part of the said defendant, by its said servants, the said car was suddenly started, and the said conductor struck this plaintiff on the shoulder, and she was thereby, through such negligence and carelessness on the part of said conductor, violently thrown to the ground,” &c. At the least, there is no allegation as to the quality of the conductor’s act in striking. It is clear that the complaint claims nothing through any willful act, for the only damage that is alleged, is stated to be through “ such negligence or carelessness of the conductor,” and immediately before this is the allegation as to the blow struck by the conductor.

Another class of exceptions involved the proposition that the proof showed that the blow struck by the conductor was malicious, so that his employer, the defendant, would not be liable for it and its consequences. I do not find, in the testimony offered by plaintiff, any facts that would have allowed the jury to find that, what was called the blow, was malicious. The witnesses and the complaint used the words, “ blow” and struck,” in reference to the act of the conductor that is now referred to. These words were chosen, perhaps, because it was difficult to find more appropriate single words to describe a thrusting out of the arm of the conductor to take hold of plaintiff, the result being that the hand went against plaintiff and did not grasp her. The plaintiff did not mean to, and did not describe a malicious blow. None of her testimony was at variance with her answers to certain questions by defendant’s counsel. , For example : “ Q. Did he strike yon ? A. He struck me with his hand. Q. What did he strike you for \ A. He wanted to hold me, I suppose.” Beyond this, the defendant offered testimony on this point from the conductor himself. On direct examination, he said, “ I caught hold of her to prevent her from getting off before the car came to a stand-still, she gave a twist out of my grasp, and fell into the street; I did all I could to prevent her from getting off the car while it was in motion.” This being the evidence, neither the court nor the jury would have been justified in finding that there was malice on the part of the conductor.

Other exceptions were presented, on the hypothesis that the jury might be at liberty to find that the ringing of the bell, which started the car ahead, and which, according to plaintiff’s case, was the first cause of plaintiff’s falling from the platform, was a malicious act by the conductor. This certainly was not incontrovertibly proved, and the defendants were prevented from claiming that' it was the fact, after the evidence of their witness, the conductor, that has already been given, viz., in substance, that what he did, he did without malice. He denies ringing the bell to start the car ahead, but he says that, as plaintiff was about to get off the platform, he did all he could to prevent her. This necessarily implies that he- had no malice, for it is inconsistent with ringing the bell for the purpose of injuring plaintiff.

If the starting ahead of the car was not a malicious act of the conductor, there is no ground for an argument that it was not in the scope of the conductor’s employment as servant of defendants.

Other exceptions rested upon the proposition that, if the plaintiff was injured by the conductor’s effort to save her, or was by such effort injured more than she would have been without it, either the company was not liable at all, or only for what injury or damage was not caused by that act.

These propositions imply that before the effort to save her, the plaintiff was in a dangerous position, that the conductor thought called for interposition by him. The jury have found, on sufficient evidence, that the danger of the plaintiff was caused by the defendant’s negligence. In Sheridan v. Brooklyn City & N. R. R. Co. (36 N. Y. 39), the plaintiff’s intestate, who was a child, had gone upon the front platform properly, so far as the defendants were concerned, and by the express requirement of the defendant. While he was on the platform, another passenger rushed, for the purpose of getting off the car, against the boy, and impelled him Irrom the car. The consequence was the boy’s falling on the ground, and receiving fatal hurt. These facts showed that there was no evidence that the boy would have fallen on the ground, or have been at all damaged, if the other passenger had not pushed him. The court of appeals held, that it was the concurrence of the defendant’s illegal conduct; in placing the deceased upon the platform, with the violence of the other passenger, “that produced the disastrous result. It is no justification for the defendant that another party, a stranger, was also in the wrong.” It will be perceived that in the cited case, there was far more reason than exists in the present case, for asserting that, apart from the consequences of the intervening act, no damage ensued from the negligence of the defendant. Another pertinent consideration is that, if the intervening act was meant to prevent the consequences of defendant’s negligence, there is more reason for making defendant liable for all the consequences, than if, as in the cited case, the act was a substantive tort, if it were necessary to pass upon the point, it should be held, in my judgment, that the intervening act of the conductor, if it were performed in order to prevent the plaintiff falling from the car, was within the scope of his employment. Irrespective of this, the case cited makes, as the answer to the proposition, that defendant would be liable for all the injuries, though it might be that part of the damage came from the effort to save, causing a heavier fall, provided the injuries would not have happened, it it.had not been for defendant’s negligence. If you can segregate the consequences of the conductor’s intervening act, it is still true that they would not have occurred, if there had been no prior negligence on defendant’s part. It may be noticed that, in a true sense, the act of starting the car ahead, and the act of trying to prevent the consequences, were parts of one act by the conductor. The principles adverted to are sustained directly or indirectly by Chapman v. New Haven R. R. Co. (19 N. Y. 341); Barrett v. Third Ave. R. R. Co. (45 Id. 628); Pollett v. Long (56 Id. 201) ; Slater v. Mersereau (64 Id. 138); Sauter v. N. Y. C. & H. R. R. (66 Id. 510).

The court, at request of defendant’s counsel, charged the jury that, “n.o liability results from the commission of an act arising from inevitable accident, or which ordinary human care and foresight could.not guard against.” The court added, 1 ‘ I leave it for you to say whether this was an inevitable accident or not, i. e., whether the company could not have prevented the accident.” It is argued that the last remark was erroneous, because it led the jury to believe that if the company could in any way have prevented the accident, for example, by the use of a greater degree of diligence than the law required, they would still be liable. I do not think that the jury could suppose that the court meant to-charge this. The remark of the court was an explanation of a preceding phrase in the request, “ inevitable accident.” It was intended to refer only to those facts which might make such an accident. It gave a correct definition of inevitable. If the so-called accident was evitable, which it would be if the company could prevent it, the defendant would not be absolved! thereby from responsibility. What degree of care the-company was called upon to use, within its power of prevention, was not alluded to by the request, nor by the counsel. The eleventh request, which the court refused to charge, did not add anything substantial to the contents of the tenth request, which was charged.. The court charged distinctly, at other times, although in other forms, that if the company were free from, blame, they were not liable.

Other exceptions were grounded upon testimony given by a physician, who had attended the plaintiff, and who had testified that the plaintiff had suffered certain injuries, that he described. The question was put by her counsel: “Q. What is the nature of such, an injury, as to its permanency—its character % A. It will probably exist all her life-time.” The question, was objected to. Motions, were made to expunge it,, and the court was asked to direct the jury to disregard, it. The court did charge, that the damages in the future, for which compensation might be assessed, must be such as it was reasonably certain would inevitably result from the injury, but refused to charge that on this point the jury were not at liberty to consider the-evidence from the physician.

In the case relied on by the learned counsel for appellant : Curtis v. Rochester & S. R. R. Co. (18 N. Y. 534), Judge Selden (p. 542) held that the charge of the judge at the trial, taken together, was correct. He was, of the opinion that the charge would be incorrect, if it were confined to the part where it was charged that the jury might consider the “bodily pain and suffering, which the plaintiff was likely to suffer, in consequence of the neglect of the defendant;” but that a modification that was made corrected the error. The modification was that future damages could only be awarded “when it is rendered reasonably certain from the evidence, that such damages will inevitably and necessarily' result from the original injury.” It is clear that the charge went further than was necessary for the protection of defendant, in so far as the terms inevitably and necessarily might be deemed to import more of future certainty than is conveyed by the term “reasonably certain.” Judge Selden held, as to damages, that none could be allowed, except such as are shown by the proof to be, at least to a reasonable ■ degree, certain. As we have said, he did not think that this was charged by referring to pain and suffering which the plaintiff was likely to suffer. The objection was that it allowed damages which were rendered probable only.

The nature of the subject-matter must be considered. An event of the kind in view, cannot be proved to be absolutely certain of occurrence in the future. Whether or not it will occur, depends upon the estimation of certain probabilities as to the future. There may be, and generally are, probabilities against probabilities, and some single probabilities have more weight than others. If the conclusion be that it is reasonably certain that the event will happen, it' is' reached after weighing probabilities, and the judgment is, that after looking at the probabilities for and against, there remains a conclusion that the mind does not doubt that the event will occur, and in view of all things, does not feel called upon to hesitate in pronouncing that it will occur.

In the present case, the evidence of the physician was relevant to the reasonable certainty of the future events. -It specifically referred to probabilities, which, the jury were obliged to consider. There was nothing in his evidence which showed that the probability he referred to, and intended to describe, was not such an one as would satisfy the jury as to what was reasonably certain to happen. If the jury could not rightfully draw the conclusion from his testimony alone, there were other facts in the case, viz.: the plaintiff, her appearance, her wounds, and such things connected with them, as common men, without help of experts, might appreciate, which the jury were bound to consider on the point of reasonable certainty.

I understand that the objection of the case last cited, to damages that are “only likely” or “only probable,” is confined really to evidence as to probability, that may leave the mind in doubt or uncertainty. I am, therefore, of opinion that the plaintiff was entitled to a submission of the testimony to the jury.

There was nothing in the allusion to the facts of the case, made by the judge in his charge, which withdrew, or was likely to withdraw the attention of the jury from the facts in evidence, that were not detailed by him. At the time, he specifically instructed the jury to consider the whole evidence.

As to the reasons urged for a new trial upon the case, including the amount of damages, there is none which would justify granting a new trial.

Judgment affirmed, with costs, and order denying motion for new trial, made upon the case, affirmed with costs.

Speir and Freedman, JJ., concurred.


text:
    ADOLPH WOOLNER, et al., Appellants, v. EDGAR P. HILL, et al., Respondents.

      Contract of sale—construction of—seller’s option—condition precedent— waiver.

    The contract sued upon, after specifying quality, &c., contained the following clause: “ Said alcohol . . to be delivered . . alongside buyer’s vessel, at the rate of five hundred barrels per month from November to April, inclusive, seller’s option, free of expense to buyer, provided name of vessel and number of pier are made known before the arrival of the goods here. Alcohol to be regauged here, actual gauges given and charged for as per custom-house gauger's returns.”—Held, that the notification of the vendors, by the vendees, of the name of the vessel and number of the pier, was ' a condition precedent to the obligation of the vendors to deliver, and this irrespective of the vendor’s duty to furnish gaugers’ returns ; and, further, that there was no obligation on the part of the vendors, to give the vendees notice of the time of the intended delivery.
    It appeared that after the November delivery under said contract, and on December 15, the vendors made an assignment of all their effects for the benefit of creditors. It also appeared that on December 81, a letter from the vendees, demanding the December delivery, and offering to pay therefor, according to contract, upon presentation of gaugers’ returns, was handed to the vendors, who thereupon said, “we accept it.” The vendees also offered to prove that on the same day they requested the vendors to state whether it was “ necessary for them (the vendees) to do anything by way of tender or performance of their contract to keep it alive, or to tender the money or do anything of that kind,” and were told that it was not, —Held, not sufficient evidence to send the case to the jury on the questions whether or not the above condition precedent had been performed, or whether the vendor had waived its performance.
    Before Sedgwick, Oh. J., and Speir, J.

      Decided December 5, 1881.
    Appeal by plaintiff from a judgment of dismissal of complaint by the judge at the trial term, before a jury.

      The action, was brought to recover damages for the non-delivery of twenty-five hundred barrels of alcohol, under the following contract:
    “New York, Sept. 19, 1879.
    “Sold for account of Messrs. Hill, Cunningham & Co.
    “ To Messrs. Woolner Bros.:
    “Three thousand (3,000) barrels alcohol in bond at twenty-nine and a half (39%) cents per gallon, cash, in bankable funds, on delivery. Proof 188 per cent, with corresponding reduction in price, if it falls below, but not to be lower than 186 per cent. Said alcohol to be a prime and colorless article, and to be delivered in prime shipping order alongside buyer’s vessel, at the rate of five hundred barrels per month, from November to April, inclusive, sellers’ option, free of expense to buyers, provided name of vessel and number of pier are made known before arrival of the goods here.
    “Alcohol to be re-gauged here, actual gauges given and charged for as per custom-house gauger’s returns. .
    “Buyers to give export bond as per regulation.
    “Accepted September 19, ’79.”
    In the month of November, five hundred barrels were delivered, under the contract. On December 15, the defendants failed, and made an assignment for the benefit of their creditors.
    On December 31, the authorized agent of the plaintiffs wrote, in this city, to defendants :
    “New York, Dec. 31, 1879.
    “ Gentlemen: I write to inform you, that I am authorized by Messrs. Woolner Bros, of Peoria, 111., to receive for them the five hundred barrels of alcohol,' called for by your agreement with Emil Schultze (said Schultze having duly assigned his said agreement to-Mess. Woolner Bros.), all oí which said alcohol is deliverable, as I understand, this month, and that I hereby demand from you the delivery of the same. Upon receiving from you the usual gauger’s return, showing the number of gallons delivered in each case, I will pay you the purchase price' of said alcohol, in accordance with the terms of said agreement.” On the handing of this letter to one of the defendants, he said, “ We will accept it.”
    Plaintiffs gave evidence tending to show that the plaintiffs’ agents in the city of New York were authorized to receive deliveries under the contract, and were provided and ready with funds to pay for the delivery ; that it was the usual course of business for. a party delivering to present a gauger’s return ; and that no alcohol was delivered or tendered by the defendants.
    On the trial, counsel for plaintiffs offered to prove that an authorized agent of plaintiffs called upon the defendants, at their office in New York, on December 31, and said, that he called in behalf of the plaintiffs, and wanted to know if' it was necessary for them to do anything, by way of tender or performance of their contract, to keep their contract alive, or to tender the money, or do anything of that kind, and that Mr. Hill said to him that it was not.
    This offer had been preceded by a question to the witness on the stand: “ Q. Did you have an interview with any of defendants, and state what occurred. What was said with respect to any waiver of a tender?” This was objected to, on the ground that the complaint was not broad enough to permit that kind of proof. The objection was sustained, and exception was taken. After this, the offer was overruled and exception taken.
    At the end of the testimony for plaintiffs, the defendants made a motion to dismiss, which was granted.

      Albert B. Boardman, for appellants.

      Edward T. Wood, for respondents.
   By the Court.—Sedgwick, Ch. J.

The learned counsel for appellants argued, in the first place, that to enable the plaintiffs to bring the action, it was not necessary to tender the contract price to the vendor, but that it was enough, under the facts of the case, that the vendees were ready and willing to pay. The plaintiffs, by their letter, declared to the defendants their willingness to pay the price in accordance with the terms of the agreement.

Without now adverting to the specific dispute on this point, it will be admitted that a tender of the purchase price will not, of itself, avail, if there be anything else unperformed on the part of the vendees, which is a condition precedent to their right to demand a delivery. The contract bound the defendants to deliver “alongside buyer’s vessel, at the rate of five hundred barrels per month, from November to April inclusive, sellers’ option, free of expense to buyers, provided name of vessel and number of pier are made known before arrival of the goods here.”

The contract clearly makes it the duty of the vendeés to inform the vendors of the name of the vessel and at what place it will be ready to receive the delivery, before the vendors are bound to deliver.

It is argued that, as the defendants had the entire month in which to deliver, they were bound to give the plaintiffs reasonable notice of the time of delivery ; and that any duty on the plaintiffs’ part followed, and was dependent on this notice. However reasonable a provision would be that the vendor should give such a notice of intention to deliver, it is not in the contract or implied by it. If a notice of an intention to deliver were given, it would bind the vendor from the time of the notice, and would restrict the freedom of choice he had bargained for. If he gave notice, say for a day previous to the last day of the month, he could not exercise his option after the previous day and before the last of the month. If he gave notice for the last of the month, he could not exercise his option on an earlier day.

The case of Stokes v. Brown (32 Super. Ct. 457) is •characterized by the prudence of the parties in making provision for this contingency. The vendor had sold oil, to be delivered at his option in certain lots and at certain times, to bulk-lighters at his yard, and it was agreed that five days’ notice should be given to the buyer on each lot. It was held that the giving of such a notice was a condition precedent to the right of the vendor to deliver, or to the obligation of the vendee to receive. It was considered to be sufficient that the vendee was at all times ready to send his lighters and receive and pay for the oil, when he should be required to do so by the vendor’s notice that he would deliver at a certain time.

In this case, however, as we have already said, there was no express obligation on the part of the vendor to give notice of an intended delivery, and there can be no implied obligation, for that would be inconsistent with the express provision of the contract that the vendor might reserve his intention to the latest legal hour of the last day. However, as by the contract, the defendants were not bound to deliver alongside buyer’s vessel,” until the buyer had informed them of the name .of the vessel and the place where it would be ready for delivery, no notice of a proper kind of intended delivery could be given without the information from the buyer.

The rule on this subject is clearly stated in the familiar case of Vyse v. Wakefield (6 Mees. & W. 444; 8 Dowl. P. C. 377 ; 4 Jur. 509 ; affirmed on error, 7 Mees. & W. 126), “that where a party stipulates to do a certain thing in a certain specific event, which may become known to him, or with which he can make himself acquainted, he is not entitled to any notice, unless he stipulates for it, but when it is to do a thing which lies within the peculiar knowledge of the opposite party, then notice ought to be given him.”

It is supposed that the contract makes it the duty of the vendors to furnish to the vendees gaugers’ returns, before the latter can be called on to be ready to perform on their part. However that may be, it does not lessen the duty of the vendees to inform the vendors of the place of delivery and the vessel. It must not be overlooked that, by the legal construction of the contract, whenever or wherever the delivery is to be made, it must be made so as to give the vendees sufficient time to examine the quantity and quality of the goods, before they can be called upon to accept.

For this reason, I am of opinion that the dismissal of the complaint was correct, unless the court was in error in overruling the offer to give certain testimony, which it was claimed tended to show a waiver of any act on the part of plaintiff, which might otherwise have been required of them.

This offer was made, in the first instance, to show a waiver of tender. On this point, we have already said that it was necessary for the plaintiffs to prove more than tender, viz.: that they should have specified the vessel at which delivery was to be made. The offer should, however, be looked at to see if it would have justified the jury in finding that the condition precedent, last referred to, had been performed. I am of opinion that, if the conversation in the offer had been proved, the words used in it were so specific, that the jury would not have been at liberty to find that either party, in fact, alluded to, or intended to refer to the condition precedent. The omission to give notice was not in the nature of performance of the contract on the part of the plaintiff. They were not held to give the notice. There was no obligation to give it. It was only a condition. The parties, evidently, had in mind only what the plaintiff would be bound to do, in respect of such obligations as were contemporaneous with a delivery under the contract.

Nor' do I think that the circumstances of the case presented a question to the jury, as to whether the defendants had waived the particular defense. The remarks of judge Andrews, in Devens v. Mechanics’ & Traders’ Ins. Co. (83 N. Y. 168), are pertinent: “The doctrine of waiver should not be extended so as to deprive a party of his defense, merely because he negligently or incautiously, when a claim is first presented, while denying his liability, omits to disclose the ground of his defense or states another ground than that upon which he finally relies. There must, in addition, be evidence from which the jury would be justified in finding that, with full knowledge of the facts, there was an intention to abandon or not to insist upon the particular defense afterwards relied upon, or that it was purposely concealed, under circumstances calculated, to, and which actually did, mislead the other party to his injury.”

I am of opinion that the judgment should be affirmed, with costs.

Speir, J., concurred.


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    ERASTUS D. BENEDICT, Appellant, v. COURTLANDT P. DIXON and EDWARD LARNED, impleaded with HENRY E. KNOX, Respondents.

      Removal to federal court. — Undertaking on injunction—action having been removed as to certain defendants, order of reference to determine damages of remaining defendants, under injunction, when not granted.—Adjudication as to right to injunction—what constitutes.

    Where an action is begun in a State court, and an undertaking, the obligation of which is to the defendants jointly, is given therein upon obtaining an injunction against defendants, and thereafter such action is discontinued as to certain defendants, and removed to a federal court as to the remaining defendants, which said order of discontinuance is subsequently modified, so as to preserve the rights and remedies of the defendants therein referred to, upon the undertaking, the action in the federal court being pending, and no adjudication as to the right of the plaintiff to an injunction against the defendants therein having been had, an order of reference to determine the amount of damage sustained by the defendants, as to whom the discontinuance was had, should not be granted by the State court.
    But, it seems, that such an order of discontinuance, as modified, if obtained or acted on by plaintiff, is equivalent to an adjudication, as to the defendants therein referred to, that plaintiff is not entitled to the injunction.
    Before Sedgwick, Ch. J., and Van Voest, J.

      Decided December 5, 1881.
    Appeal by plaintiff from an order appointing a referee to take proof of and determine the amount of damages, if any, sustained by the defendants, who are here respondents by reason of an injunction order issued in the action.
    When the action was begun, and when the injunction order was made, there were, beside the present defendants, Dixon, Learned and Knox, two other defendants, Williams and Kernochan.
    The undertaking or undertakings on the injunction order, provided that the obligors “undertake in the sum of $500 that the plaintiff will pay to the defendants so enjoined, such damages, not exceeding the before mentioned sum as he may sustain by reason of the injunction, if the court finally decides that the plaintiff was not entitled thereto ; such damages to be ascertained and determined by the court or a referee appointed by the court,” &c.
    Afterwards, on the ex parte application of plaintiff, an order was entered discontinuing the action as to the present defendants, Dixon, Learned and Knox.
    It appears by an affidavit read below, that after-wards “ the plaintiff, proceeding under act of Congress of March '3, 1875, on the ground of diverse citizenship of parties, procured the removal of the said suit to the United States circuit court, for the southern district of New York ; said removal has never been disputed, but has always been recognized by the defendant’s attorneys as perfectly valid and binding.”
    After the proceeding for the removal taken as referred to, the present defendants, who are here respondents, upon notice to plaintiff, obtained an order modifying the order of discontinuance in, among others, the following respect: “Provided, however, that this order is made without prejudice to the rights and remedies of the said defendants, Learned and Dixon, for damages or an award thereof, under the order of injunction herein granted, &c., and the undertakings given by the plaintiff thereunder or either of them, to be nunepro tune.'1''

    The respondents then obtained, upon notice, the order- of reference, to assess the damages sustained by them, the defendants, Dixon and Learned.

      Lawrence & Waehner, attorneys, and George Bliss, of counsel, for appellant, Benedict, among other things, urged:
    I. By reason of the removal to the United States court, February 7,1881, this court was, June 18, 1881, when the order of reference was made, and still is, without jurisdiction or authority in the premises (Act of March 3, 1875; Dillon on Removal of Causes, 3 ed. 91, and cases there cited). The United States circuit court for this district possesses all the jurisdiction which appertains to the subject of appeal (Act of March 3, 1875; Kerr v. Huidekoper, U. S. Supr. Ct., Apl. 11, 1881, Alb. L. J. July 30, 1881; also Blake v. McKim, U. S. Supr. Ct., May 2, 1881, 23 Alb. L. J. 505-6 ; Barney v. Latham, U. S. Supr. Ct., April 18, 1881, Id. 446-7).
    II. The subject of motion was clearly in the federal court, and it is most extraordinary to claim either that the federal court cannot pass upon the questions involved in the motion, or that an action which has been removed according to law can be straddled partly in one court and partly in the other (Dillon on Removal, 3 ed. 93, and cases there cited).
    III. It nowhere appears that final judgment has been entered, and there has been no final determination of action. The motion for reference must for such reason be denied (Lawton v. Green, 64 N. Y. 326).
    IY. This application should be joined in by all of the original defendants, and is therefore premature until the action has been decided as to the defendants, Williams and Kernochan. Otherwise it might prove that Dixon and Learned would secure the full amount of undertaking, and leave the other defendants remediless (Cunningham v. White, 45 How. Pr. 486 ; Dry Dock, &c. v. Cunningham, Id. 458).
    Y. The opinion of this court, at May term, did not assume further than a right to incidentally correct its own orders. The order of reference now appealed from is a radical violation of the provisions of act of March, 1875.

      EdwardM. Shepard, for respondents.
   By the Court.—Sedgwick, Ch. J.

As I understand Palmer v. Foley (71 N. Y. 106), that case will require a reversal of the order appealed from. The court said, as appears on page 112: “Coming to the conclusion that there has been no breach of the condition of the undertaking, and that the defendant has no right of action thereon, it would be a useless proceeding to direct a conditional ascertainment of the damages sustained'by the defendant by reason of the order, arid encourage him to bring his action upon the undertaking, only to decide then, what we may as well decide now,” &c.

It is clear, from the terms of the undertaking, that the defendants or respondents, Dixon and Learned, have no several cause of action upon it. The obligation is to the defendants jointly, including the defendants Williams and Kernochan, who remain defendants in the United States circuit court, if the action has been removed, with the issue undetermined, as to whether the plaintiff was entitled to an injunction against them. There is no intention of saying that if the defendants all joined in an action on the undertaking, proof of several damage could not be taken. All that is now meant is, that the conclusive obligation of the contract is that the parties liable shall be subjected to but one suit. It is not even intended to hold that, if the event of the action in the circuit court was that the plaintiff was entitled to hold the injunction against the defendants there, that a several action could not be maintained by the present respondents. But there has not been such an event. It may be that the issue will be determined in favor of the defendants. Then the latter will have a cause of action on the undertaking. Then it would be manifest not only that the obligors were to be held in but one suit, but that it was a beneficial right under" the contract, that the damages should be assessed in a manner that would prevent their sum being greater than $500.

It might be conceived as possible under some circumstances, that part of the order might stand, but proceedings under it to be stayed, until the action in the circuit court be determined. It is hardly worth while to attempt this, when we consider that if there has been a valid removal, the injunction bond has been removed under the statute into the national court, and that court has a power to direct how the damages shall be assessed.

Such a conclusion is not satisfactory, but it seems to be necessary, provided the action has been removed. This has not been denied on the argument here, nor, as I understand, was it below.

If, from the fact that the undertaking on injunction must be split up in the way in which it is now supposed to be, to justify a removal, it could be held that the statute of removal was not intended to apply tp a case where the undertaking could not be wholly removed, and if the respondents had an interest in the removal sufficient to justify their interference in that matter, then, ultimately, the respondents might have benefit from the undertaking. The matter of the removal is not before us.

Whether or not there has been, as to the respondents, within the meaning of the undertaking and the Code, a final adjudication that the plaintiff was not entitled to the injunction, is not clear on the authority. The late authorities of Palmer v. Foley, already cited, and Pacific Mail Steamship Co. v. Toel (Court of Appeals, June, 1881), seem to require that there be some adjudication beside an order of discontinuance. It is certain that a final adjudication in a specific sense is not necessary. In the case last cited, all there was in the nature of a final adjudication, beside the ex parte order of discontinuance, appeared in an order setting aside the injunction made on the plaintiff’s application, ex parte. Much cannot be needed, when the effect of a discontinuance upon the preliminary injunction is considered. I am inclined to think that it is enough if the plaintiff takes an order of discontinuance that saves, as in the present case, the rights and remedies of the defendant under the undertaking. Such a provision shows, as much as an ex parte order setting aside the injunction, an assent of a specific kind to the injunction order being deemed finally disposed of. It is said that the order, as modified, is not an act of the plaintiff; but the order, with the provision, appears of record as made on his motion. The facts show that he has acted on it, by continuing the action only against the other defendants.

There were other questions in the case, but they do not call for discussion after the case has been disposed of on the positions already considered. As the costs are within the discretion of the court, in this case they should not be imposed on the respondents.

Order reversed, and the motion made below denied here, without costs.

Van'Vorst, J., concurred.