text:
    W. LEA ROBERTS, Respondent, v. PRANK LESLIE, Appellant.
    I. Causes of action.

    1. Election between, compelling.

      (a) When a complaint, contains two causes of action, resting upon substantially the same facts, in one of which the defendant is sought to be made liable in one character, and in the other in another character, a case is presented where a motion, made at the trial, to compel an election, should be granted.
    1. New trial on ground of refusal to grant the motion.

    As the granting or denying the motion rests, to a large extent, in the discretion of the trial judge, a new trial will not be granted for a particular exercise of that discretion, unless it clearly appears that the appellant was materially prejudiced by it.
    1. Material prejudice caused, when.

      When the number of plaintiff’s claims is by him augmented, and thereby the issues enlarged beyond the real facts, and the claims themselves are of a character which show that defendant had no personal knowledge of them, and (even if an election had been compelled, as prayed for) the remaining claims would still have represented separate and distinct transactions, each having occurred at a different time, and involving a different amount, some of the transactions being renewals of preceding ones, and having to be traced back to their proper origin; but nevertheless being capable of classification under three distinct heads; a refusal to compel an election and a refusal to require the jury to answer specific questions as to each separate cause of action, coupled with a charge by which the jury was instructed to consider all the causes of action as so many independent claims, must necessarily have had the effect of greatly embarrassing the defendant in defending himself.
    H. Debtor, discharge of.

    1. By CREDITOR DEALING WITH SECURITIES.

      (a) A loan was made by R. to L., at his request, upon promissory notes of third parties. Before they matured they were surrendered by R. to W., and in place of them R. took from W. a chattel mortgage on his property (which he afterwards foreclosed), and a policy of insurance on his life, in addition to a previous policy on his (W.'s) life, held by him, R. The loan was originally procured by W., acting as the agent of L., who, it was claimed, as such agent, indorsed the notes to R.; but at the time of the surrender of the notes, W.’s agency and his authority, whatever it may have previously been, had come to an end. The surrendered notes never came to defendant’s hands.
    Held,
    that L. was discharged from liability, whether he be regarded as a loanee or as an indorser.
    (5) R. held three notes made by one Williams to the order of L., and indorsed L. per Henry White. Henry White had been in the employ of L., and it was claimed that he had authority from L. to indorse these notes. After White had been discharged by L., R. came with these notes to L., who denied his . liability. The matter was compromised by a renewal of the notes; two of the renewal notes L. indorsed unconditionally; the third he indorsed without recourse. When this third note came due it was not protested, but was taken up by Williams, he giving, in lieu of it, his note to the order of R. at three months.

      Held,
    L. was not liable upon, or by reason of, said third note.
    Before Curtis, Ch. J., and Freedman, J.

      Decided February 2, 1880.
    Appeal from a judgment entered in favor of the plaintiff upon the verdict of a jury for §4,159.61, and from the order denying a motion for a new trial on the judge’s minutes.

      Thomas Darlington, attorney, and Malcolm Campbell, of counsel, for the appellant.

      Sheldon & Brown, attorneys, and D. C. Brown, of counsel, for the respondent.
   By the Court.—Freedman, J.

This is an appeal from the- judgment, and from the order denying defendant’ s motion for a new trial.

The defendant, at the times mentioned in the complaint, and for several years prior thereto, was the publisher and proprietor of a number of illustrated journals published in the city of New York and containing advertisements.

Henry White, as an employee of the defendant, had charge of the advertising department. He kept bank account in his own name, to which all the collections for advertising were transferred, and every week he handed to the cashier of the defendant his check drawn against said account, and representing not the amount actually collected, but a certain round sum. A large proportion of the advertising was settled for by taking short notes from the advertisers, and these, White, for years prior to the time in question, had been in the habit of indorsing and getting discounted. Their proceeds he turned over weekly to the defendant in the manner stated.

The plaintiff was on friendly terms with the defendant during that period. He visited him frequently both at his house and place of business, wrote for his publications, and received pay therefor. The only notice plaintiff ever gave to the defendant that he was doing this discount business, was in 1871, when he asked the defendant whether he was aware of that fact. The defendant answered that he was not, and knew of no occasion for it; but in conclusion he said: “So far as any paper given you through White is strict busi'ness paper, I will see it paid.” There was evidence that for many years prior to 1874, White also received advertisements for papers other than those of the-defendant, though he only canvassed or solicited for the defendant’s papers, and that in consequence thereof he received notes which had no connection' with defendant’s business, and which he also got discounted in the same manner and through the same channels as defendant’s business paper.

The plaintiff’s claim against the defendant as pleaded, consists of fourteen distinct causes of action. Upon the trial it appeared that each of them was founded upon some transaction not with the defendant personally, but with White, and the question therefore in every instance was whether the particular transaction complained of occurred in the course of defendant’s business as carried on through White, or whether it was an individual transaction on the part of White ; or, in other words, whether or not White had authority, express, implied or apparent, to bind the defendant. It further appeared conclusively at the close of plaintiff’s testimo'ny, that the plaintiff in no aspect of the whole litigation had fourteen causes of action.

The eighth cause, pleaded as a loan, was shown to rest upon substantially the same facts which were relied on to establish the first, in which the defendant was charged as indorsee of a promissory note.

So the second and seventh, the third and sixth, and the fourth and fifth, were respectively shown to have their foundation in substantially the same facts.

Defendant’s counsel thereupon moved that the plaintiff be compelled to elect upon which he would rely, but the motion was denied and defendant duly excepted. The motion was renewed at the .close of the testimony, on both sides, and again denied against defendant’s exception. Defendant then requested that the jury be required to answer specific questions as to each separate cause of action, which reques t was refused, and to which refusal he excepted. The case was finally submitted to the jury under a charge by which they were instructed as to the necessity of proof on the part of the plaintiff as to the authority of White, but by which they were also instructed to consider the fourteen causes of action as so many independent claims, and under this charge the jury rendered a verdict for the plaintiff in the sum of $4,159.61.

Of this disposition of the issues the defendant may justly complain.

The style of pleading adopted by the plaintiff in this case is wholly unauthorized by the Code. Under the former practice the object of inserting two or more counts in one declaration, where there was in fact but one cause of action, was to guard against an insnfficien t statement of the case, where a doubt existed as to the proper mode of declaring, and to provide, if possible, against a variance between the pleadings and the proof on the trial. The Code, by providing that amendments for the correction of insufficient pleadings shall be liberally allowed, not only renders this practice unnecessary, but it expressly requires the pleading of a cause of action to be reduced to a plain and concise statement of the facts constituting the cause of action, without unnecessary repetition. The plaintiff is no longer required to characterize his action by any particular appellation or averment. All he has to do is, to set forth the facts upon which he relies and let them speak for themselves, and this he is required to do without unnecessary repetition. The object is to secure singleness and unity in the.issue.

The motion to compel an election should therefore have been granted, and in the submission of the remaining causes to the jury at" least a proper classification should have been observed. But as these were matters resting, to a large extent, in the discretion of the trial judge, a new trial will not be granted for a particular exercise of that discretion, unless it clearly appears that the appellant was materially prejudiced by it. The case was a peculiar and difficult one to submit to a jury. It really should, by agreement of parties, have been tried by a referee. Hot only had the plaintiff augmented the number of his claims, and thus enlarged the issues beyond the real fact, but the claims themselves were of a character which showed that the defendant had no personal knowledge concerning them. Even if an election had been compelled, as prayed for, the remaining claims, properly sifted, would still have represented separate and distinct transactions, each having occurred at a. different time and involving a different amount. Some of these transactions were renewals of preceding ones, and they had to be traced back to their proper origin. They could have been classified, however, as follows :

1. Claims founded on commercial paper, on which White had used the signature “ Frank Leslie, per Henry White

2. Claims founded on paper purporting, on its face, to represent individual transactions of White, and bearing only his individual name; and,

3. Claims founded on loans made to White.

The bare statement of these facts, without going farther, shows that the denial of the motion to compel an election, and the submission of the case to the jury in the manner in which it was submitted, must necessarily have had the effect of greatly embarrassing the defendant in defending himself.

But it is not necessary to dispose of the appeal solely upon that ground.

Defendant also moved at the close of plaintiff’s evidence for a nonsuit as to each cause of action, and at the close of the whole testimony he moved for the-direction of a verdict upon each cause in his favor, on the ground that the plaintiff had wholly failed to establish White’s authority to bind the defendant in any of the transactions. These motions were denied, and the defendant duly excepted. The exceptions thus taken bring up for review the sufficiency, as matter-of law, of the testimony adduced on the part of the plaintiff in support of each cause of action, and after a careful examination of such testimony I am of the opinion that the learned judge below erred, aside from the causes already referred to, in denying the motions as to the tenth, twelfth, and thirteenth. .

The tenth cause, according to the complaint, is founded upon a loan of §1,895.54, alleged to have been made to the defendant, at his request, in 1874, upon certain promissory notes. The testimony shows that some of these notes were indorsed to the plaintiff, by White, in defendant’s name, that others bore only the individual indorsement of White, and that before they matured they were' surrendered by the plaintiff to White. This occurred after White had been discharged from defendant’s employ, and his authority, whatever it may have previously been, had come to an end. The notes so surrendered never came to defendant’s hands. In place of them the plaintiff took a chattel mortgage on White’s furniture, library, &c., for $2,000, which he afterwards foreclosed, and a policy of insurance on White’s life for $2,000, in addition to a policy for a like amount then already held by him. This was a transaction wholly unauthorized by the defendant and in nowise connected with his business. If the defendant was liable either as indorser or as for a loan on the notes, he had a right to insist upon the preservation of his remedy over against the makers, which was lost by their surrender, and in consequence of which he was discharged. If he was not originally liable, he could not be made so by that transaction.

As to the twelfth cause: The complaint alleges a note by J. David Williams, and indorsed by the defendant, also protest and notice: The testimony shows that originally there were three notes by the same maker, payable to the order of Frank Leslie, and indorsed, “Frank Leslie, per Henry White.” After the discharge of White, the plaintiff, with these notes and others, called upon the defendant, who denied his liability. The matter was compromised between them by a renewal of the notes, two of • which the defendant indorsed unconditionally, and the third of which he indorsed “ without recourse.” The plaintiff accepted these renewals, and the twelfth cause of action is founded upon the note so indorsed without recourse. When that note became due, it was not protested, but . was taken up by Williams, he giving in lieu of it his note to the order of the plaintiff at three months. This last note was the one admitted in evidence under exception. The plaintiff did not pretend to hold or own the one which the defendant had indorsed! If he did hold it, he could not recover on it, because the indorsement was without recourse, and even if that had not been the case, the defendant was discharged as indorser by the plaintiff’s acceptance of the note of the maker on time.

As to the thirteenth cause: This is founded upon a loan of $280, alleged to have been made to White, October 10, 1874, but is the same transaction set forth in the eleventh cause, as a loan of $243.60. The evidence in support of both these causes consists of a due bill dated October 10, 1874, and signed by Henry White in his individual name for $280, on account of notes to be delivered; which amount, on November 14, 1874, whs reduced by a credit to $243.60.

It has also been urged that the testimony was clearly insufficient to carry the case to the jury as to the causes remaining to be considered ; with the exception, however, of the first, second, third, fourth, and eleventh. But as the errors already noticed necessitate a new trial, because it cannot be ascertained with certainty how the verdict was made up, it is not necessary to decide the point or express any opinion upon it.

The judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Curtis, Ch. J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    CHARLES A. CAMERON, Respondent, v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE U. S., Appellant.
    I. Appeal from, interlocutory judgment.

    1. Dismissal of.

      (a) After an appeal from a final judgment entered upon an interlocutory one (no appeal having previously been taken from the interlocutory judgment) had been dismissed, an appeal was, on December 4, 1879, taken from the interlocutory judgment which had been entered March 14, 1879. On motion this ap peal was dismissed.

      H. Final judgment entered on interlocutory one.

    1. Opening so as to permit dependant to answer.

      (a) Defendant had lost his right to review the interlocutory judgment by not properly appealing. •
    1. Motion to open final judgment and allow an answer on the ground that such right of review had been lost through mistake is denied.
    Before Curtis, Ch. J., and Speir, J.

      Alexander & Green, for the appellant.

      Grimball & Turnbull, for the respondent.
    This action was brought for the conversion of an insurance policy. The defendant demurred to the plaintiff’s complaint.. The demurrer was overruled, and an order to that effect, giving leave to the defendant to answer, was entered September 10, 1878. Defendant did not answer, but appealed from this order overruling the demurrer. This appeal was, however, not immediately brought up. Subsequently the plaintiff moved for judgment, and thereupon, on March 14,1879, a judgment for damages was entered, directing that the damages should be assessed by a sheriff’s jury. The inquisition was taken, and upon it and the other proceedings, final judgment was entered by the clerk on March 31, 1879, for $5,625.96. From this final judgment the defendant appealed to the general term, and this appeal from the final judgment, and also the appeal from the order overruling the demurrer, were brought on for hearing at the general term óf May, 1879.
    The general term rendered a decision at the November term of 1879, dismissing the appeal from the order overruling the demurrer, and deciding that the appeal from the final judgment brought up nothing for review, as the notice of appeal contained no notice that any intermediate order or interlocutory judgment would be reviewed, and affirming the final judgment. Opinion by Speir, J. (45 N. Y. Super. Ct. 628).

    Subsequently, on December 4, 1879, the defendant served a notice of appeal from the interlocutory judgment of March 14, 1879 ; and also made a motion at special term to set aside the final judgment and allow the defendant to answer, on the ground that by the mistake, inadvertence, and excusable neglect of the defendant’s counsel, the defendant had lost his right of appeal. The judge, at special term, referred the parties to the general term. At the general term of this court, held in January, 1880, the appeal from the interlocutory judgment was heard, and also the motion of the defendant to set aside the final judgment on ground of mistake of counsel. The plaintiff, at the same general term, moved to dismiss the appeal from the interlocutory judgment.
    Decision was rendered in March, 1880, denying the motion of the defendant, and dismissing the appeal from the interlocutory judgment. .
   No opinion written.


author: By the Court.—Sedgwick, J.

text:
    MARGARET SMITH, Respondent, v. THE BRITISH and NORTH AM. R. M. S. PACKET CO., Appellant.

      Negligence— liability of carriers of passengers for—intervening carnes of injury.

    While the plaintiff, a passenger in one of defendant’s ships, was" lying in her berth, the tier of berths above suddenly gave way, and tilted down towards her, causing great noise and confusion; immediately after, and before she had recovered self-possession, the steward of the ship pulled her from the berth and tried to set her upon her feet; before she was free from his control and firmly on foot, the ship made a lurch which sent her along the floor, against the door on the other side, and back to the floor, thereby causing her severe injury. The negligence pleaded was the defective construction of the berths.

    JSeld, that it was the duty of defendant, as a common carrier of passengers, to use the utmost care and foresight in the maintenance and construdtion of said berths; that the falling of said tier was presumptive evidence of negligence on defendant’s part; that from the time of the falling thereof to the time of the injury of plaintiff, there was a continuous and connected series of occurrences induced or caused by the falling, and the plaintiff never having been placed in a position where she must herself bear the risk of the motion of the vessel, having been deprived of her bodily power to protect herself by the act of defendant’s agent, the defendant is liable for the injuries so suffered by her.
    Before Sedgwick, Speir and Freedman, JJ.

      Decided April 5, 1880.
    Appeal from judgment and from order denying motion for new trial. The action was for damages, for injury alleged to have been caused by the negligence of defendant to plaintiff, while she was a passenger on the defendant’s steamer.
    The facts appear in the opinion of the court.

      Lord, Day & Lord, attorneys, George D. Lord, of counsel, for appellant.

      Henry Stanton, for respondent.
   By the Court.—Sedgwick, J.

The use of ordinary skill, and of materials of- ordinary strength, would enable the builder of the structure that was meant to uphold the berths, to make it secure against the strains and shocks of a sea of not extraordinary violence. These means of this security being at the command of the owners of the steamship, the law presumes that there was negligence, when the berths fell. The circumstances did not appear to be extraordinary, and the presumption is, that the proper means had not been used.

If these propositions may not be placed, although I think they may, upon common knowledge, the testimony of the skilled workmen shows that it would not have required unusual means to prevent an accident of the kind.

There being a presumption of negligence, the defendants were bound to show, by credible and conclusive testimony, that there was no negligence. I do not think they accomplished this. Their evidence as to the general plan, or the sections in general, may have been satisfactory enough, but there was no decisive evidence that this particular section w7as built in a proper way, or in accordance, in its details, with the general plan. It was not shown that the particular section had been suspected, before the accident. The carpenter and steward were dead, but that did nob make it impossible to show by others, that the section had not been repaired.in any part, and that its several parts still remained unbroken and secure. If the length of the platform made its bearing upon the runner secure, or if the runners had not been worn down, that could have been proved. It was at that point that there was a deficiency. If the platform were too short, and the runners broken, ordinary use would probably work the platform too much to one side, or a spring of the platform in ordinary use or from a sudden motion of the vessel, would bring the end of the platform outside of the runners. These were things -that a jury should consider, and their verdict is conclusive.

The learned counsel for the appellants maintained, by an able argument, that the falling of the berths was not the proximate cause of the plaintiff’s injuries. The counsel admitted that this point must be examined on the view of the facts most unfavorable to the defendants. The testimony allows this construction:, the plaintiff, while lying in her berth, was alarmed by the screams of women about her, and for the moment thought that the ship was going down. She did not immediately perceive what was the fact, that the platform above, that held five berths about two and one-half feet overhead, had been tilted down towards her. At once, before she had regained self-possession, the steerage steward pulled her out of her berth, and tried to set her on her feet. The counsel claims that the evidence incontrovertibly shows that he succeeded, and did set her so safely on her feet, and that she had complete control of her body. But the facts allowed the inference that she was not firm upon her feet, or free from the control of the steward, when the ship made a lurch or pitch that sent her along the floor against the door on the other side, from which she was thrown off to the floor. The only injury she received was from her being knocked against the door and the floor.

The argument is that the consequences of the falling of the berth had come to an end, and the plaintiff was in safety, when an independent set of acts began, and if the defendant might be responsible for the last, the complaint makes no claim of that kind. I am convinced that the facts of the case show that from the time the berth fell there was a continued and connected series of occurrences to the time of the injury, induced or caused by the falling. ' The plaintiffs being removed from the threatening situation, under the fallen berths—whether to place her in safety or for the purpose of setting the berths in order—was a natural and probable result of the falling berth, and from that time her position was the result of the negligence of defendant. She never was placed in a position where she must bear the risks of the motion of the vessel, for, by defendant’s acts, she was deprived of her bodily power to protect herself. Her being, by the act of the defendant’s agent, placed in a situation which exposed her to injury, from matters for which, by themselves, the defendant would not be liable, is a legal ground of action (Sheridan v. Brooklyn City & N. R. R. Co;, 36 N. Y. 39).

It is not denied that the law imposes upon the carrier of passengers the duty of carrying them safely, so far as human skill and foresight can go (Carroll v. Staten Isl. R. R. Co., 58 N. Y. 133), or to the utmost care and diligence of very cautious persons (Maverick v. Eighth Ave. R. R. Co., 36 Id. 381, and the cases there cited). It is claimed that this rule is applicable only to such portion of the carrier’s arrangements or machinery as expose passengers to dangers peculiar to the voyage or passage, and not to such as involve dangers that the passenger would be exposed to, in ordinary situations, in the common affairs of life. In this, however, it is my judgment that the structure did expose passengers in berths to peculiar and unusual dangers. It was new in design, and intentionally planned by the defendants to increase their profits by holding a large number of sleeping people. The ordinary construction of beds or cots used on land was departed from, and in its stead loose and changeable parts were employed. This new plan was directly subject to the irregular motions of the ship and also to the unusual incidents of a number of people sleeping upon the berths. The court did not commit error, therefore, in charging “ that it was the duty of the defendants to use the highest degree of care and skill, according to the nature of their business, in the providing of safe and suitable means of transportation and accommodation for these passengers, and in guarding against all injuries to them, from whatever cause, and which might naturally, and according to the usual course of things, be expected to occur.”

The court did not charge that the defendants were -liable for the injuries a passenger might suffer from the rolling and pitching of the ship. His charge was that if the negligence of defendants exposed the plaintiff to injury from the rolling and tossing, the defendants were liable. I think this is correct.

An examination of other exceptions show that they are not valid, but they do not require a detailed statement.

Judgment and order affirmed, with costs.

Speir and Freedman, JJ., concurred.


author: By the Court.—Sedgwick,

text:
    SERAPIO ARTEAGA, Appellant, v. WILLIAM C. CONNER, Sheriff, et al., Respondents.

      Sheriff—liability of, as bail for defendant arrested in civil action— right to re-an'rest defendant.—Valse imprisonment.

    The provision of section SOI, Code of Procedure, making the sheriff liable as bail for a party arrested in a civil action “if bail be not given or justified,'1'1 must be construed as meaning, if bail be not given, or do not justify as provided by the law and practice of the proceeding toward justification, provided in the foi'egoing sections.

    Consequently, if the plaintiff’s attorney consent to a postponement of the justification of defendant’s sureties, though for an indefinite time, the sheriff is not liable as bail, and has no right to re-arrest the defendant, until an actual default has been made by the sureties, and no mere lapse of time will give him this right. In case of such re-arrest, before default, proof of notice by the sheriff to the defendant that he would expect the undertaking to be approved of at once by the judge, on justification, or by the plaintiff’s attorney, affords no defense to an action for false imprisonment, nor does ignorance of the existence of the stipulation postponing justification constitute a defense.
    Before Sedgwick, Speir and Freedman, JJ.

      Decided April 5, 1880.

      Appeal from judgment entered upon the verdict of jury, in favor of defendants, as directed by the court.
    The action was for damages for false imprisonment. In an action of Leitch against the present plaintiff, an order of arrest was made, and under it the present defendant, through his deputy, arrested the present-plaintiff. The plaintiff, giving bail, was discharged by the sheriff.
    The justification of the sureties was adjourned from time to time, by the consent of the attorneys of the-parties in that action, until the attorneys for the then plaintiff consented, in writing, that the then defendant “ have five days after the decision of the motion ta vacate the order of arrest, within which to serve notice of justification.” Some six months after this, no notice being served in the meantime, the deputy of the sheriff sent to the then defendant’s attorneys notice that the bail must justify. On the trial it was considered that the sheriff received no answer to the notice, and was not informed of the true facts of the case. The sheriff assuming to be the bail of defendant, under section 201 of the Code of Procedure, arrested the present plaintiff and remanded him to the custody of the keeper of the common jail, who was made a defendant.
    The court directed the jury to find for defendants, and the plaintiff excepted.

      Nelson Smith & Leavitt, attorneys, and John Brooks Leavitt, of counsel, for appellant, urged, among other things:
    I. Whoever arrests a citizen, not only must do so under some legal authority, but always does so at the peril of any alleged authority being legal (Pratt v. Hill, 16 Barb. 303).
    II. This arrest was made by virtue of section 201 of the Code, which provides that if the bail do not justify, the sheriff himself shall be liable as bail; and that being so, the authorities are that the sheriff may, as bail, take and surrender the defendant in the action, without process (Metcalf v. Stryker, 31 N. Y. 255 ; Sartos v. Merceques, 9 How. 188 ; Seaver v. Genner, 10 Abb. Pr. 256). The sheriff has no greater liability than that of bail (Gallarati v. Orser, 27 N. Y. 324).
    III. It is obvious that the sheriff has not all the rights of bail, because the bail may surrender their principal, the defendant, immediately after they give their bond, if they so choose; but, the sheriff has no right of re-arrest in any event until ten days, and in cases of notice of non-acceptance, twenty days thereafter. The sheriff has no greater rights than the bail. How, will it be pretended for an instant that if bail has been given in an action, and that action has gone on to trial and been tried, and the defendant has paid the judgment or has succeeded on the trial, that the bail have a right to re-arrest their principal, simply because they have not been notified of the status of the case ? The fact of a right to an arrest must precede an arrest. Want of notice is no defense (Deyo v. Van Valkenburg, 5 Hill, 242).
    IV. Bail are sureties, and are entitled to the benefit of the general principle relative to sureties, that dealings between their principal and the creditor, of which they have no notice, or to which they do not consent, discharges their liability (Rathbone v. Warren, 10 Johns. 586 ; Clark v. Niblo, 6 Wend. 237).
    If, therefore, the bail are under no liability in law, they certainly have no right of arrest based only upon that liability, and the sheriff being liable as bail, is to "be measured by the same rule. Any liability on the sheriff’s part was to the plaintiff, and the plaintiff, having given the stipulations extending time for justification, could not have recovered from the sheriff, because she had, if any damage had ensued, contributed to it. It could not be possible for the plaintiff to recover in any action against the sheriff (Dickson v. Frazer, 9 Sun, 191, and cases supra).

    V. The sheriff, however, had notice of this stipulation. On November 20,1876, he sent from his order of arrest department a letter claiming that the sureties had not justified, and requesting that they be approved of at once. The letter was signed by W. H. Quincy, who was his deputy sheriff in charge of the order of arrest department at that time. And the attorneys immediately responded thereto by sending over to his office a copy of the stipulation of July 26. This stipulation and an answering letter were delivered at the sheriff’s office during office hours, at the order of arrest department, with the clerk behind the desk, known to be such by the person making the service. This was sufficient under 2 R. S. 285 (6 ed. vol. 3, p. 447, § 46).
    •VI. If, however, it be held that the sheriff had a right to arrest the plaintiff, in the absence of being notified of the status of the case, and that the foregoing was not notice, then we say that just as soon as the sheriff was notified of this stipulation that he was exonerated ; he was bound to let the plaintiff go, and was liable to him in an action for false imprisonment, for every moment that he detained him thereafter.
    Legal liabilities depend upon all provisions of law in existence at the time of the transactions. One of the provisions of law when this bail bond was given, was that the time for serving notice of non-acceptance of bail, or notice of justification, might be enlarged by an order of a judge (Old Code, § 405 ; Burns v. Robbins, 1 Code, 62 ; 1 Chitty R., first 7 or 8 cases). Another provision was that such time might be enlarged by a stipulation in writing, duly signed (Rule 16). An action of false imprisonment will lie where the process is misused, even though the arrest be lawful (Holley v. Mix, 3 Wend. 350 ; Doyle v. Russell, 30 Barb. 300; Espinasse Dig. 332).

      VII. The arrest and imprisonment were false upon another ground. The onus of justifying an arrest lies upon him who makes it. The law favors the liberty of the subject to such an extent that a plaintiff in an action for false imprisonment need only show the fact of imprisonment (Holroyd v. Doncaster, 3 Bing. 492). What is the justification here % a fancied liability as bail, and power under section 189 given to Erb to arrest plaintiff, be it observed. But the sheriff did not pursue the statute.' He must, if he is liable as bail, take the same steps as the bail. He must either arrest the defendant himself, or indorse a written authority on a certified copy of the bail bond, to any suitable person (Code of Pro. 189). He did not empower Erb by any indorsement on a certified copy of the undertaking, but writes on a separate piece of paper what he calls a remand, and annexes it to the original undertaking. So 'that, even if he had a legal right to make the arrest, having done it in an illegal manner, the action lies.
    Vanderpoel, Green & Cuming, attorneys, and Almon Goodwin, of counsel, for respondent.
   By the Court.—Sedgwick,

No authorities are cited that decide the question on this appeal, and it must be decided upon general principles. The plaintiff in this case, having, after his arrest in the action of Leitch against him, given bail, was entitled (Code Pro. § 187), to his discharge from custody, and the sheriff did discharge him. This discharge was a matter of right, which a prisoner is entitled to enjoy, at any time before execution. There seems to be no reason to think that it may not be exercised repeatedly in the same action, as often as he may, by surrender, or for other reason, be returned to custody.

Under the Revised Statutes, a defendant arrested had. the same right (2 R. S. 348, § 11 et seq.), and upon, his discharge,. the sheriff incurred a direct responsibility to the plaintiff, that the defendant"should put in special bail. If the defendant did not put in special bail, the enforcement of the sheriff ’ s responsibility was begun by entering a rule requiring the sheriff to put in special bail, within twenty days after service of notice of the rule. If the bail were not perfected within this twenty days, upon filing an affidavit of service of notice of such rule, another rule might be entered, that an attachment issue against the sheriff. In the proceedings upon such attachment the plaintiff’s rights were to be enforced, and the sheriff’s indemnity was the right to prosecute the bond given to him by the defendant, and recover all damages he might have sustained by the neglect of the defendant to put in special bail. A noticeable and primary part of this plan is that, so far as the immediate action was concerned, the discharge from custody was final between the sheriff and the defendant, and the plaintiff, thereafter, looked for his remedy in the premises, not to the defendant, but to the sheriff. The Code of Procedure did not disregard this notion of the sheriff’s duty and right, but modified it. It did not change the quantum of responsibility to the plaintiff. It did not lessen the defendant’s right to be discharged. It gave the sheriff a new power of protecting himself against defendant, by making him his bail, and therefore authorized him, under proper circumstances, to surrender or recapture the defendant. By section 186 of the Code of Procedure, the defendant, at any time before execution, shall be discharged from the arrest. By section 193 (lb.) the sheriff or defendant may give to the plaintiff notice of justification of the bail. By section 196 (lb.) if the judge find the bail sufficient, he shall indorse his allowance on the examination, “ and the sheriff shall thereupon be exonerated from liability.” By section 201 (lb.) “if, after being arrested, the defendant escape, or be rescued, or bail be not given, or justified, or a deposit be not made instead thereof, the sheriff shall himself be liable as bail.” But he may discharge himself from such liability by the giving and justification of bail “at any time before process against the person of the defendant to enforce an order or judgment in the action.” By section 203, the bail taken upon the arrest, unless they or other bail justify, shall be liable to the sheriff for damages which he may sustain by reason of such omission.

It is evident that the sheriff had two diverse obligations, one to the defendant arrested, and the other to the plaintiff. These are not altogether correlative, although at certain points they may be. The fact of giving sufficient bail by the, law as it stood before the Revised Statutes; by the Revised Statutes, and by the Code of Procedure, entitled the defendant to be discharged, and the sheriff was indemnified by the sufficiency of the bail. This is an affirmative, positive right, and it should be guarded on grounds of public policy, as well as of private law. The statute should not be, if it can be avoided, construed so as to attenuate it to an insignificant or formal privilege. What is the substance of this right if, immediately after the. discharge, the sheriff becomes bail for him in such a sense that he may forthwith, as other bail may, re-arrest the defendant % I say this only for the sake of construing the statute in other parts. The learned counsel for the respondent did not claim that the sheriff would have such a right. Such being the rights of a defendant arrested, a point must be found when that right is brought, by the law, to an end. Statutes of this kind are to be construed in favor of the defendant, .when it is possible at the same time to give the statutes a complete interpretation. That point is indicated by the words of section 201, “ if the bail be not given or justified the sheriff shall himself be liable as bail.” These words are not full or' explicit, and the implications of the phrase “if the bail be not justified” must be considered. The right of the sheriff to' re-capture, growing from his power as bail, must be shaped and conform to the other equally certain right' of the defendant to remain at large, after he has given sufficient bail. The words refer to the proceeding toward justification prescribed in the previous sections, and mean, if the bail do not justify in it. In a literal sense, the bail do not justify at any time before they are required to justify ; but the real sense is, when they do not justify, as required by the law and practice of -the proceeding, and there must be some default or failure on their part in this regard. It is the common practice to have justification of sureties adjourned from time to time. Does the sheriff have the right to re-arrest, unless the allowance of the judge is given on the day first noticed for justification (See Overill v. Durkee, 2 Abb. Pr. 383). But it is argued that this right of adjournment should not be exercised indefinitely, to the injury of the sheriff' or at his risk. It may be assumed that the sheriff should not be imperiled by an unreasonable delay, but the remedy is to have relief from the consequences and the character of the delay. Certainly, if the delay, although requested by defendant, is consented to by the plaintiff, there can be no inference that the sureties have failed to justify, or that they are not sufficient; and the result, at most, would be that it would be unreasonable and not within the meaning of the statute, for the sheriff to be held by the plaintiff as bail. This would relieve him as bail, and would not authorize an arrest by his power as bail.

The, sheriff must show the sufficient cause of rearrest ; that is, he must show that he has become bail. He must therefore show that the sureties failed,to justify, or that there was a default, in this respect. The mere lapse of time will not show this. This obligation is grounded upon the meaning of section 201, but it arises upon the general duty to show sufficient and legal cause for depriving a man of liberty. In this case, the only justification shown was a remand upon the original undertaking. This was not enough. It only showed that the plaintiff had once given bail and had been discharged. It was necessary to show, in addition, that the sureties had failed to justify. Suppose an undertaking, after the remand, had been offered with the same sureties, what could the sheriff have given as reason for not enlarging the prisoner ? They were presumed to be sufficient, he having once passed upon that. He could not correctly say that they had failed to justify. The sheriff had, or might have done all that the statute required him to do, to relieve himself from responsibility to the plaintiff in the first instance. He would come under responsibility as bail for rthe first time upon the sureties showing their insufficiency, and not justifying. In this case, it is manifest that the plaintiff could never hold the sheriff as bail, so long as they voluntarily adjourned the justification. If this be so, is it possible that he should have no liability as bail to plaintiff, and yet have power as bail to arrest defendant, who is plaintiff here ?

All this implies that the sheriff must take the trouble to keep himself informed of the condition of the proceeding for justification. ' This is necessarily his duty. If he voluntarily acts in the capacity of bail, for the purpose of arresting a man, necessarily, he must show that he is bail. It is his personal and direct interest to do so, and the law has given him specific power to become a party to the proceeding; for he may himself give notice of justification, and if the sureties do not appear and do not justify, he may at once arrest the defendant.

The answer in this case makes the issue, in one form at least, on which the rights of the parties turn. It alleges that the “ said bail neglected to justify as by law required.” There was no such neglect. The facts speak to the contrary.

With these results, it must be held that the notice given by the sheriff’s deputy to the defendant’s, now plaintiff’s attorneys, “that I shall expect the undertaking upon arrest, in the above entitled action, approved of at once, either by the judge on justification or by the plaintiff’s attorney,” had no effect upon the plaintiff’s rights. It did not increase the sheriff’s power and make him bail and authorized to surrender. A failure to answer it did not make it the more efficient. It is not necessary to decide that it could, not be evidence for some purposes, in a supposable condition of affairs.

. When it was admitted in testimony, the facts that appeared in evidence in regard to the reply made by this plaintiff’s attorney, required a submission to the jury whether as matter of fact- that reply reached the deputy who signed the notice. That reply would have informed the deputy that the plaintiff’s attorneys, in Leitch against the present plaintiff, had made a stipulation adjourning indefinitely the notice of justification of the sureties, and therefore the sureties had not made default in justifying. The stipulation was in form a consent that the defendant have five days after the decision of the motion to vacate the order of arrest, within which time to serve notice of his justification of his bail herein.

This reply was not of the kind of notices prescribed by law which must be served either upon the sheriff personally or at the office designated by the sheriff, under the statute. It referred to the personal and private relation of the sheriff to the then defendant. Whatever benefit the sheriff might claim from the notice signed by his agent, the dpputy, he must claim subject to the answer made to his agent. There were facts tending to show that the answer reached the agent, and, at least, that was for the jury to pass upon.

I therefore think that the jury should not have been directed to find for the defendant upon the trial in this action, and that, as the case stood, the damages of the plaintiff should have been assessed.

Judgment reversed and new trial ordered, with costs of the appeal to the appellant- to abide event.

Speir and Freedman, JJ., concurred.


text:
    JOHN WEINMAN, Respondent, v. JOHN DILGER et al., Appellants.

      Appeal—how discontinued.

    An appeal is not discontinued as to the respondent, by the service of a notice of withdrawal, accompanied by a tender of costs to date ; the order of the court is necessary to accomplish this. The respondent in such case may obtain an order that the appeal be declared abandoned ; or he may proceed under General Bale 41, and Buie 4 of this court, if no printed case has been served, and alter the' appeal has been placed on the calendar, move for a dismissal thereof.
    Before Sedgwick, Speir and Freedman, JJ.

      Decided April 5, 1880.
    Motion to dismiss appeal.
    After the respondent had obtained judgment below, the appellant stayed proceedings upon "it, by giving the usual undertaking with two sureties. On their justification, one was held sufficient, and the other insufficient. The appellant obtained further time, in which to serve a new or further undertaking. On the last day of such time, appellant’s attorney served a notice, that “ the notice of appeal heretofore served in this action is hereby withdrawn.” At this time, a proposed case had been served and amendments had been proposed, but nothing more was done, after the notice that appeal was withdrawn; .$50, as costs on the appeal was tendered by the appellant. On notice and on affidavit of these facts, and also that no printed case had been served, an order was made at special term that this case be placed upon the general term calendar. The affidavit asked that it might be placed upon that calendar “in order to dismiss said appeal, in the regular way.”
    The respondent now moves, upon notice, that the appeal be dismissed.

      Hawkins & Cothren, for motion.

      Anderson & Howland, opposing, for surety.
   By the Court.—Sedgwick, J.

The notice that the appeal was withdrawn did not discontinue the appeal. An order was necessary to accomplish that, and the appellant had such rights, that the court; if applied to for an order of discontinuance, might have absolutely denied it or granted it in a modified form. The ordinary practice would have been to obtain an order that the appeal be declared abandoned, for this motion is not strictly grounded on the non-service of printed papers (Rule 41, amending Rule 50 of the general rules, and Rule 4 of this court). This would have been a mere form, inasmuch as the notice of withdrawal of appeal was an abandonment of the appeal by the appellant, although not a discontinuance of it, as to the respondent. The motion should therefore be granted. Of course, this decision does not affect the rights of the surety, if an action be brought against him on the undertaking, except so far as the ipsum factum affects it. Whether or not the dismissal of the appeal now made is within the meaning of the undertaking, will be determined in any action that may be' brought upon it.

The motion to dismiss is granted, with $10 costs of the motion, and the costs of the appeal, to the time of the order directing that the case be put on this -calendar.

Speir and Freedman, JJ., concurred.


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    SAMUEL HATHAWAY, Respondent, v. HENRY RUSSELL, Impleaded, &c., Appellant.
    Accounting, reference in action for.—Interlocutory judgment, entry of, appeal from,. —Practice.

    This action was brought for an accounting by defendant as plaintiff's agent, and was by order sent to a referee to hear and deter- - mine all the issues. After the filing of the referee’s report, which stated, as a conclusion of law, “-that the defendant should he ordered and adjudged to account,” &c., an ex parte motion for interlocutory judgment thereon was made by plaintiff at special term, and an order entered which “ adjudged and decreed that it he referred to the same referee to take and state an account,” &c., and proceeded to specify in detail the manner in which the accounting should be had.

      Meld, that the above conclusion of law is a sufficient order for judgment by the referee, as required by section 1022, Code of Civil Procedure.

      Also held, that the court below clid not exceed its powers by “ ordering more than a simple judgment that defendant account,” &c., the excess objected to being only a correct statement of the mode of procedure in an accounting, which was binding upon the referee.

      It seems, that so far as the rights of plaintiff are concerned,-the above form of judgment is not an adjudication that the reference is to-proceed because the defendant is liable to account.
    Whether the said judgment might have been entered by the clerk, qucere.

    Further held, that exceptions contained in a case made and settled may be hoard on appeal to general term from an interlocutory judgment.
    Upon the facts, held, that the interlocutory judgment should be affirmed, and the reference directed by it should proceed.
    Before Sedgwick and Speir, JJ.

      Decided April 5, 1880.
    Appeal from interlocutory judgment.
    The complaint charged that plaintiff, being the owner of the stock, business and good-will of a printing office, at No. 9 Spruce street, in the city of New York, the defendant became and remained his agent in said business, and had entire charge thereof, as foreman or superintendent; that it was agreed between them that “ defendant was to devote his entire time and his best energies to plaintiff’s business, and was to account faithfully to plaintiff for all profits realized in said busi- ■ ness; that defendant had failed to devote, &c., and failed to account to plaintiff for the profits realized ih the business, but had established on his own account, and without the knowledge or consent of the plaintiff, a printing-office, in the same building, &c., in competition with the business of plaintiff ; that defendant had used for his own benefit in the office established by him the types, stocks and materials of plaintiff ; that defendant had, by means of the premises, made large gains and profits, which in equity belonged to plaintiff, and for which gains the complaint demanded that defendant account.
    The answer put in issue the allegations of the complaint on which the demand for an accounting was based, and made certain admissions, which are referred to in the opinion.
    By order, the action was referred to a referee to hear and determine all the issues.
    The referee proceeded to the trial of the action, and reported that the plaintiff was entitled to an account from the defendant of gains and profits made by him, from the printing, &c., of a journal, called The Church Journal, carried on at No. 9 Spruce street. The plaintiff’s attorney, on the filing of this report, moved at special term for interlocutory judgment. So far as the record shows, this motion was ex parte.

    Thereupon was entered an order reciting that on reading and filing the referee’s report, and it appearing that an accounting of the printing, &c., oí The Church Journal is necessary before final judgment can be entered in this action, on motion of plaintiff’s attorneys, “Adjudged and decreed, that it be referred to the same referee, &c., to take and state an account, &c.” The order proceeds to specify the manner in which the accounting should proceed before the referee.
    After the entry of this order the defendant’s attorney filed exceptions: 1st, to the “form of judgment entered in this action on the 27th day of October, 1879, because it is not in conformity to the referee’s report herein, and is unauthorized as to all that part thereof beyond the directions in the conclusions of law found in said report; 2d, to the entry of any judgment upon said referee’s report, inasmuch as the referee has failed to direct the proper judgment, as required by section 1,022 of the Code of Civil Procedure.
    Afterwards, the defendant gave notice that he appealed to the general term from the judgment of the special term entered upon the referee’s report herein.
    Thereafter, a case, containing the evidence, exceptions and proceedings, was settled by the referee, and this case comes up, with the other papers, on this appeal.

      Gilbert O. Hulse, for appellant.

      Lindley & Lindley, attorneys, and Sutherland Tenney and John Lindley, of counsel, for respondent, among other things, urged :
    The practice pursued respecting the entry of judgment, and the form of judgment herein, is correct. Vide section -994 of Code of Civil Procedure (by which it is implied that this practice should be followed). 1. As to the mode of taking judgment: it is to be entered as by the court at special term (Hancock v. Hancock, 22 N. Y. 568-570; Currie v. Coles, 7 Robt. 3). 2; As to form: See Wiggin v. Gans (4 Sandf. 646); Palmer v. Palmer (13 How. Pr. 363); Mendorff v. Mendorff (1 Hun, 41); Trufaut v. Merrill (37 How. 531); 1 Barb. Ch. Pr., 327; 2 Van Sant Eq. Pr. 194; 3 Wait’s Pr. 338; Breevort v. Warner (8 How. Pr. 321); Ketchum v. Clark (22 Barb. 319); Story v. Brown (4 Pai. 112).

         The several questions,—whether the referee might have proceeded to the accounting under the original order of reference, without a further order; and whether, under the course pursued, the' order for interlocutory judgment should have been mad e, ex parte ; and if not, whether appellant, if aggrieved thereby, should hot have moved to set it aside before appealing, were not before the court. But see Hathaway d. Russell (45 Super. Ct. 538 ; S. T.), note.

       The interlocutory judgment-was entered in form as follows :—
      “ On reading and filing the report of, &c., bearing date, &c., and. filed herein, on, &c., to whom it was referred to hear and determine the issues in this action, and it appearing to the court that an accounting of the printing or the type-setting of The Ohureh Journal newspaper mentioned in the complaint, from in or about, &c., to and until, &c., is necessary before final judgment can be entered in this action ; now on motion, &c., of the plaintiff, it is adjudged and decreed : That it be referred to the same referee, &c., as referee, to take and state an account of all dealings and transactions between said defendant Henry Russell and the said The Ohureh Journal newspaper or the printers or proprietors thereof, with respect to the printing or type-setting of said newspaper, and with respect to any and all profits arising therefrom, from, &c., to and until, &c., and for the better taking and stating of such account, that the defendant Henry Russell produce and file with said referee within twenty days after service of this judgment on him, an account of all the said business transacted by him in and about The Ohureh Journal newspaper, from, &c., to, &c., said account to be stated by them in the form of debtor and creditor columns ; and that plaintiff be at liberty to surcharge and falsify said account so to be exhibited by said defendant, and to that end may cross-examine said defendant as to said account or any item thereof, either orally before said referee or on written interrogatories to be filed with said referee and served on defendant’s attorney within twenty days after said account is filed, and the sworn answers thereto to be filed with the referee within twenty days after the interrogatories are filed: And for the purpose of the oral examination hereinbefore provided for, the defendant Russell shall attend before said referee at such times and places as said referee shall from time to time appoint. And the said plaintiff and the said defendant Russell are to produce before the said referee, upon oath, all books, accounts, deeds, papers, contracts, vouchers and writings in their custody or under their control relating thereto ; and said referee in taking such account is to make all just allowances to the parties as between themselves; and what on balance of the said account shall appear to be due from either party to the other, is to be paid as the said referee shall direct, and the said referee is at liberty to state and report any special circumstances as well as his reasons for allowing or disallowing any allowances which may be claimed. And it is further ordered that the question of costs as well as all other questions are reserved until the coming in of the report and hearing further directions.”

       See Empire Bldg., &c. Association v. Stevens, 8 Hun, 515.

   By the Court.—Sedgwick, J.

The statement of the proceedings discloses that numerons and novel matters of practice are involved. The referee to hear and determine proceeded so far as to determine that the plaintiff was entitled to an accounting as to certain matters. Whether he might have proceeded to the accounting without a further order (Ludington v. Taft, 10 Barb. 447), or whether the referee should have reported as he did, and then an interlocutory judgment have been moved upon notice (Bantes v. Brady, 8 How. Pr. 216), or whether the order entered should have been made ex parte, or whether the appellant, if he be aggrieved by that, should not have before appealing moved to set it aside, or whether, in fact, the so called interlocutory judgment is anything more than an order directing the referee to do what by the first order of reference he was ordered to do, are questions "which have not been brought before the court on this appeal by counsel for either side,—for the reason, it must be-supposed, that if they are not immaterial, the counsel do not wish that the decision of the appeal should turn upon them.

The only points that the appellant’s counsel present on the argument, and that concern the former practice of the proceeding, are two. It is submitted, first, that the referee has failed to order any judgment in his report, as required by law and section 1,022 of the Code of Civil Procedure. I do not see that this is correct, in view of the report “that the defendant should be ordered and adjudged to account, &c.” This certainly is a judgment directed, and if the objection be, that the referee should have proceeded to the accounting and determined if anything were due, the appellant is not harmed, because the order appealed from directs no more than that he shall do so. It is here to be noticed, that the order appealed from, as drafted by plaintiff’s attorney, does not adjudge that the defendant is bound to account, or that the plaintiff is entitled to an account, but it is adjudged, &c., “ that it be referred to the same referee to take account, &c.” So far as an adjudication of the lights of the plaintiff is concerned, this is not a determination that the reference is to proceed because the defendant is liable to account. Ho objection is taken to the order on this ground. The second point is that the court below exceeded “its powers in the judgment entered,” in ordering or decreeing more than a simple judgment, that the defendant account for the profits, &c. The excess, thus objected to, is no more than a description in detail of the correct manner of proceeding in an account. If the order had directed an accounting or an accounting in the usual manner, the referee would have been bound to do as described by the order entered (Wiggins v. Gans, 4 San. 646).

The respondent’s counsel does not claim that the order is not appealable, but that as this is an appeal from an interlocutory judgment, it, by section 1,353, Code of Civil Procedure, must be heard upon a certified copy of the notice of appeal and of the papers used before the court or the judge upon the hearing of the demurrer, application for judgment or motion as the ease requires.” In this case, I prefer not to pass upon this point, applied, as it is, to a court entering a form of judgment, which perhaps might have been entered by the clerk, immediately upon the referee’s report. An examination of the question involves .the construction of several new sections of the Code, as to which the views of counsel were not presented. Both sides have treated the order as if it were an interlocutory judgment, and have joined in the settlement of a case containing the exceptions, and sections 1,349-and 1,350 clearly intend that such exceptions may be heard upon the appeal from the interlocutory judgment (§ 1,336). The merits will therefore be examined.

There were exceptions taken, particularly those that relate to the contents of letters not produced, which might call for decision, if it did not appear, that the facts, without resort to the matters admitted under these exceptions, sustained the conclusion of the referee.

The question was simply whether the defendant received from the Church Journal money which he should, under his agreement with plaintiff, or by reason of his relation to plaintiff, have accounted for and paid over to him.

The answer admitted certain important facts. It admitted that the agreement was that the defendant should manage and superintend the plaintiff’s business, and that defendant should be left in undisputed control of the business. It denied that he agreed to give all his time and talent, but the referee found, on sufficient evidence, that he did so agree. It alleged that the proprietor of the Church Journal applied to the defendant to print that journal, and that defendant immediately, conveyed such proposal to the plaintiff, who declined it. The referee found that such was not the fact. The answer asserted that the plaintiff knew that the defendant was printing the Church Journal, The referee found that the plaintiff was ignorant of this.

The answer admitted that the defendant agreed to and did print, on his own account, the Church Journal in the same building where plaintiff’s printing office was, and that he was in the habit of using plaintiff’s type in printing the Church Journal; and stated in explanation of this, that he used the type of the Church Journal to a greater extent on work done by the plaintiff. The publisher of the Church Journal during the time the defendant printed it, testified that he did not know of any printing material belonging to the Church Journal, except the mail list and the heading of the paper; that it did not have any type or any materials used in printing, and never owned a stick of type. There was proof of the agreement that the defendant should do the type-setting for the Church Journal, and the bills paid to defendant for that averaged $100 a week. There were matters given in evidence which called for explanation from the defendant, but he gave none, and offered no testimony in his own behalf.

On this testimony, I am of opinion that the referee was right in considering that the defendant was bound to do the business of the Church Journal for the plaintiff and not for himself. Indeed the only difference between that and the avowed business for plaintiff, was that he wrongfully did it in his own name. For aught that appears in the case, he might as well claim a right at his option to do for himself, and not for the plaintiff, any other piece of business that offered itself at the plaintiff’s printing office.

The interlocutory judgment should be affirmed with costs, and the reference directed by it should proceed.

Speir, J., concurred.


text:
    THOMAS DOHOVAN, Appellant, v. WILLIAM H. McALPIN et al., Respondents.

      School trustees of New Yorlc city—nature of the several boa/rds, os official bodies—personal liability of members.—Quasi corporations.

    The several boards of. trustees of the common schools of the city of New York, for the respective wards thereof, are, under the statute (Laws 1873, c. 112, § 6), official bodies in the nature of corporations.
    The trustees cannot be held liable .in an action against them personally, for the negligence of workmen employed by the board, upon the theory that the relation of master and servant exists between the trustees personally, and the said workmen ; the board of trustees, as a corporate body, is, in such case, the master.
    The liabilities and duties of members of quasi corporations, and the authorities relating thereto, discussed by the court.
    Before Sedgwick and Freedman, JJ.

      Decided April 5, 1880.

      Motion for new trial on exceptions ordered to be heard in first instance at general term.
    The complaint alleged that the plaintiff was on, &c., a scholar, attending a public school of the city, in the 4th ward ; that five of the defendants were then, &c., “holding the office known as ward trustees or school trustees of said ward, and were charged with the care, custody and safe keeping of said school building and premises, and with the duty of keeping the same at all times repaired, and in a secure, safe and proper condition at all times, for the use of this plaintiff and such other scholars as were lawfully in attendance that the other defendant then, &c., held the office of superintendent of school buildings, and as such was charged, as well as said trustees, with the duty of inspecting said school building and premises at all times, with reference to their condition as to safety, security, or need of repair, and whenever necessary repairs thereon should be made, to join the aforesaid trustees in superintending the same, and seeing that they were properly managed and conducted, with reference to the security of said building and premises, and of the scholars there in attendance ; that on, &c., certain repairs were being made upon the said school building, “ under the orders and directions of the aforesaid trustees, and under the supervision and direction of said trustees and said superintendent, while this plaintiff was lawfully in attendance,” &c. “ That the defendants so negligently, by themselves or their servants and employees engaged in said repairs, conducted and managed or superintended the same, and so negligently kept said premises, that a certain iron grating located in the yard of said building, and on said premises, and covering there a certain hole or pit of many feet in depth, was wrongfully and carelessly lifted or drawn aside from said hole, which was thereby, for the greater convenience of said workmen engaged in said repairs, left open, and suffered to remain exposed and without proper protection, &c. ; that the plaintiff, being entirely free from negligence on his part, fell into said hole or pit, and in consequence was injured, to his damage, &c.”
    The answer was in substance the general issue.
    The counsel for plaintiff, in opening the case to the jury, stated that he should prove that a grating over an opening leading to the cellar of the school building, in charge of the defendants, had negligently been left open by the workmen employed in making the repairs stated in the complaint. The counsel did not offer to prove any personal act of negligence on the part of any of the defendants, or any personal knowledge of this fact that the workmen who were engaged in repairing the school-house had opened the trap-door.
    The counsel for defendants then moved to dismiss the complaint, and the court granted the motion.

      W. C. Whitney and Hugh L. Cole, for respondent.

      Thomas & Wilder, attorneys, and Edward P. Wilder, of counsel, for appellants.
   By the Court.—Sedgwick, J.

The learned counsel did not, on this appeal, discuss the legal character of the office of trustees of common schools of the city of' New York, for the respective wards (L. 1873, c. 112, § 6). The counsel for appellant claimed that if the official body named by the statute were responsible for damage caused by the negligence of the workmen employed by it to repair the school-house, the law made the different individuals who composed the body personally liable. Nor did the counsel for respondent state his views of the legal character of these officers. The argument was, that if the trustees were not a corporation, but merely a board of citizens appointed to a public duty, who serve the public without pay, and who have no funds, out of which it was their duty to see that the repairs on the premises should be safely made, the courts have always placed them under the protection of the rule, that public officers are not held personally liable for the malfeasance or misfeasance of their employees or agents. It is not necessary, as I think, to maintain or deny this proposition in this case ; but the opinion in Bartlett v. Crozier (17 Johns. 439), cannot be used to support it. That case did not involve liability for the negligence of an employee, and it was disapproved in Hover v. Barkhoof (44 N. Y. 113). In the present case, a defense could not be maintained on the ground that the trustees had no funds out of which it was their duty to see that the repairs on the premises should be safely made. They had procured the means, and the work was going on. I think, however, that it is quite clear that the statute makes the trustees either a corporation or a quasi corporation. In this action, they are not sued as the one or the other, and a question is not before us as to the form in which they should be sued, if deemed to be a quasi corporation (Gardner v. Board of Health of the City of New York, 10 N. Y. 409).

It must be admitted, that if they formed a corporation, the individual trustee would not be personally liable for the tort of the corporation. A corporate duty, is not, ipso facto, a duty of a person who is a member of the corporation. There seems to be no reason for enlarging the responsibility of a member of a quasi corporation, as to those matters in respect to which the law has given it corporate powers and duties. As to these matters the law has neither given the individual faculty to exercise the power nor made it his duty to exercise them. There cannot be negligence where there is no power and no duty.

The statute in question, imposes the duty of caring for the school-houses and of repairing them, not upon the individual trustees, severally and jointly, but upon them as an aggregate body. The statute, in places, refers to them as a board and to exercising the statutory power by a majority of their number. It is consistent with this, that each has also an individual official power and duty, and therefore responsibility. A default in respect to this would be personal or individual. Upon the trial it was admitted that there was no individual negligence.

' I do not ignore considerations that would be pertinent to a case that presented the question, if a quasi corporation were liable for its corporate tort, against whom or what an execution might issue. That question has not been argued at all, and it could not be properly argued in this action, that does not purport to be against the corporate body, but only against its members individually.

I do not see that the opinion in Bassett v. Fish (75 N. Y. 303) intimates that in an action against those called in that opinion “trustees of an ordinary school district,” an individual trustee could be liable for what was the sole default of the trustees as a body or quasi corporation. The language makes a discrimination against -such a rule. The opinion says, if the defendants were in the position of the trustees of an ordinary school district, ‘1 we would think that there was enough in the testimony to warrant the jury in charging them all with negligence in the performance of their duty.” It states that the testimony showed that some of the trustees had personal actual knowledge of the unsafe state of the floor of the schoolhouse ; that all knew of the decay of the building, of the need of repair, and had repeatedly talked of it among themselves; and thus the condition of the building was known to them all. It further states that if • the trustees inspected the building, they would have been careless and in fault, if they had overlooked the hole in the floor ; and if they did not go to inspect the building, then they would egregiously fail in doing their duty. Plainly, all the defaults and omissions of duty are considered to be personal and individual negligence. And the reason of the argument is that, if any of them were not guilty at negligence personally, such would not be liable.

Whatever, in such an officer, who is also a member of the aggregate body, may be assumed to be personal negligence—for instance, the violation of a duty of individual vigilance, that the body may be informed of the fact that calls for its action, or of an individual duty of calling the body together on an occasion that requires it, or of moving that joint action be taken, or of beginning a proposed joint action, and then demanding the co-operation of the other members of the body individually, or of using any individual official power —cannot be made the ground of the liability of the defendants here, for it is here admitted that there was no personal negligence on the part of any of the individuals sued.

Nor did the case of Hover v. Barkhoof (44 N. Y. 113) take a different view. In that case, the opinions refer, as the basis of liability, to acts and omissions, in which each of the defendants, individually or personally, shared. It wa's remarked that they refused to exercise their power, and resolved to postpone the performance of their official duty till the following spring ; that there was evidence to show that the bridge was out of repair and unsafe, and that all of the defendants had notice of it, and that the burden imposed upon these officers was not too great. “ All it requires of them is that they shall, with reasonable care and fidelity, discharge the duties which they have solemnly sworn to perform.” This indicates explicitly that the performance of personal duty is all that the law demands.

On the trial, the form of the claim was that the defendants were liable as masters or superiors of the workmen, who opened and left open the trap-door. Following out the view that has been taken, it must be held that the individuals were not the masters of the workmen. The trustees, as a corporate body, was the superior. The individuals could not employ and could not annul the employment. If an individual, as matter of fact, did competently do either, he would do it as representing the board. The relation of one member to the body is not like that of one partner to a partnership. In' such instance each act, by the single partner or by the partnership, is not only for the firm, but for the individual members of the firm.

If the form of the claim be varied, and the liability be placed upon the duty of seeing that the trap-door was not negligently opened, the legal result is the same. By the concession of the case, each member of the board performed his duty in that regard, kept proper watch, made due observation, and did all that he was called upon to do. This inference is not less sound, because perhaps it should also be inferred from these facts, that in such case the corporate body could not have been guilty of negligence. Of course, it is not so decided.

As to the defendant, who was the superintendent of the school building, I do not see how any case can be stated against him, if he is admitted to have been free from any act of personal negligence.

Exceptions overruled, and judgment directed for defendant, with costs.

Freedman, J., concurred.


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    SCHUYLER G. CHADSEY, Respondent, v. WILLIAM H. GUION, Appellant.

      Marine insurance—policy “ free from, particular average”—what necessary to recover under—constructive loss.

    Where the cargo of a vessel is insured, “free from particular average,” it is not necessary that there shall be an actual, total, physical, loss of the thing insured; it is enough if there be a constructive total loss, i. e., such a destruction of all value as amounts, in consideration of law, to a total loss to the owner. But in such case there must be an abandonment of the goods by the insured, to enable him to recover as for a total loss; and notice of such abandonment must be given, while the whole is-in peril, and in a reasonable time; and if the insurers do not accept the abandonment, the owners must hold the property in behalf and for the interest of the insurer. If they hold and use or treat the property as their own, it will amount to a waiver of the abandonment.
    The law and authorities in relation to marine policies, discussed by the court.
    Before Sedgwick and Fbeedman, JJ.

      Decided April 5, 1880.
    Appeal by defendant from judgment and from order denying motion for new trial.
    This was an action upon a policy of marine insurance. A cargo of potatoes had been insured “ free from particular average.” While the canal boat that contained the cargo was moored to the dock, after her arrival at Yonkers, to which the insurance was made, she was sunk by a storm. The cargo was submerged, with the exception, as the testimony left doubtful, of a small part of the cargo. This happened on January 1, and notice of abandonment was given on January 4. On the, trial the plaintiff claimed that the abandonment

      and the preceding circumstances," made a total loss, and also that there was an actual total loss, because the disaster had destroyed totally the value of the potatoes. The jury found for the plaintiff, for the full value of the potatoes.
    On the trial the defendant’s counsel claimed that the facts made no cause of action, and made certain exceptions on points which are passed upon in the opinion.

      Treadwell Cleveland, for appellant, among other things, urged:
    I. There is a conflict between the printed words and the written words ; the latter then govern (Phillips on Ins. § 125, and authorities cited ; 1 Parsons on M. Ins. 65; Burt v. Brewers’ Ins. Co., 9 Hun, 383; Harper 8. New York Ins. Co., 22 N. Y. 444).
    II. It is the established law in this State that under such a form of policy as in the case at bar j;he .insured cannot recover for a total loss of a part, if any part of the subject reaches the port of destinhtion in specie and of value (Wallerstein v. Columbian Ins. Co., 44 N. Y. 204; De Peyster v. Sun Mutual Ins. Co, 19 N. Y. 277; Ralli v. Janson, 6 Ellis & B. 422 Leroy v. Governeur, 1 Johns. Cas. 226; Magrath v. Church, 1 Cai. 196 ; Nelson v. Columbian Ins. Co., 3 Cai. 108 ; Salters v. Ocean Ins. Co., 14 Johns. 138; Moreau v. United States Ins. Co., 1 Wheat. 219; Poole v. Protection Ins. Co., 14 Conn. 46; Biays v. Chesapeake Ins. Co., 7 Cranch, 415 ; Humphreys v. Union Ins. Co., 3 Mason, 429; Buchanan v. Ocean Ins. Co., 6 Cow. 330 ; Bryan v. New York Ins. Co., 25 Wend. 617 ; Moreau v. United States Ins. Co., 3 Wash. C. Ct. 256 ; Burt v. Brewers’ Ins. Co., 9 Hun, 383; Young v. Pacific Ins. Co., 2 J. & S. 321; Arnold on Ins. [Maclachan], 905; 2 Parsons on Ins. 292).

      McDaniel & Souther, attorneys, and Everitt P. Wheeler, of counsel, for respondent, as to the construction of the policy, cited :—2 Parsons Marit. Law? 329 ; Osacar v. Louisiana State Ins. Co., 17 Martinla. R. (5 Ib. N. S.) 3,867 ; Harrison v. Ellis, 7 Ellis & Black. 465.
   By the Court.—Sedgwick, J.

As to cases like the present, of goods insured free from particular average, Wallerstein v. Columbian Insurance Co. (44 N. Y. 222) did not hold that when part only of the goods have been landed after a disaster, the insurer will remain liable, if the part is so damaged as to be without value. It decided that when the ship sank with the coffee on board, there was a total loss of the coffee. The opinion should be referred to, to ascertain whether this was determined on rules applicable to actual or to constructive loss. It was on the latter, probably. The opinion says-: “ While thus exposed to the peril of a total loss, the master abandons the vessel, and notice is given to the underwriter and then proceeds to state that “ the loss of the coffee was total, and the right to recover became fixed, when the abandonment was made. The rescue of a portion of the contents of the vessel, with whatever motive it was done, did not undo what was already done. It could not convert into a partial loss that which, under the circumstances detailed, the law adjudged to be total.” The decision would have been the same if the insurer, by some accident, had been able to land a part of the coffee in a sound state, provided, it may perhaps be reserved, the value of that part was not great enough to show that there was no constructive total loss.

The court did not declare the law to be, that a destruction of all value to the owner was in itself a total actual loss. It said that in cases like the present, the chief question has been, whether there must be an actual, total, physical loss of the thing insured, or whether there may be a constructive total loss; whether there must be demolition or annihilation, or whether a destruction of all value to the owner, and hence a total loss to him, is sufficient. The current of authorities, both in this country and in England, as well as the conclusion of elementary writers, is in favor of the doctrine of constructive loss. This reasoning, of course, involved the necessity of the insured abandoning the goods, to enable him to recover as for a total loss ; and it was said “ the notice of abandonment must be given while the whole is in peril, and in a reasonable time.”

In this case, the burden of proof was upon the plaintiff to show .sufficient facts to make the total loss claimed, and among these, that the abandonment was made at such time that the partial loss was to be deemed total by law. There was no proof to show, satisfactorily, that the notice of abandonment was sent before there had been any goods landed, after the disaster. The testimony seems to show that eighty barrels of potatoes had been landed before the witness Pilleori went to the boat, and before January 4, when the notice was sent.

If the proposition were valid that these eighty barrels must be disregarded, because they had no value after the expense's in regard to them were deducted from their damaged value, the facts would not sustain it. These potatoes were damaged to the extent of one-half of their sound value. The evidence does not show what were the expenses of getting them out of the sunken boat, and which were to be charged to them. Of course, to reduce the value of these eighty barrels, charges cannot be made, which would have to be borne if they were delivered to the owner in a sound state, nor should the whole of the pumping out the boat be borne by this particular lot. This last was to be borne by the whole cargo, if not also by the boat. If the improper charges were not made, as the proof stands, the eighty barrels, when landed, were nearly, if not quite, worth fifty per cent, of the sound value, and the evidence does not show any deduction that should be made.

Moreover, to prove an abandonment, it is not sufficient to prove only a notice of abandonment. In addition, there should be proof of an acceptance of the abandonment, or, in case the insurers do not accept, the owners must hold the property in behalf and for the interest of the insurers. If they hold and use or treat the property as their own, it will amount to a waiver of the abandonment (2 Par. Mar. Ins. 190; Waldens v. Phoenix Ins. Co., 5 Johns. 325). There is no doubt, that very slight facts will show that after a notice the insured held the property as agent or trustee of the insurer, or that, all other things being regular, the holding and the dealing will be presumed to be for the insurers. In the present case, however, the way in which the owners dealt with the property shows that they exercised the dominion of owners in their own right. The careless manner of selling the potatoes, the nature of the contracts they made, and the entire omission to consult the insurers, who were at hand, show this. For this reason, either the abandonment was never consummated, or, if it is assumed to have been, there was a waiver of it by the owners.

As there was no abandonment, there could be no recovery, unless the plaintiff, proved that there had been an actual total loss. On this point, the position most favorable to the plaintiff is, that there was a total destruction of value, by reason of the disaster, taking into account the expenses necessarily incurred that were caused by the disaster. The burden of proof is on the plaintiff, and no such destruction of value was shown. There was no testimony as to what expenses the disaster had caused. There were some vague statements, as to the result of sales, but in these statements it was possible to find the amount of the expenses. The general description of the amount of damage was vague and insufficient. At least, there were one thousand barrels of potatoes taken from Yonkers to New York, and sold in the latter place, at private sale, and the most satisfactory thing said by the person who removed them and sold them, is that he got enough to pay him for his expenses and his time.

It is not necessary to decide that the defendant would or would not have been liable, if there had been an abandonment. The plaintiff could not recover without an abandonment.

The exceptions taken by the defendant’s counsel, at the trial, raised the points that have been examined. It is not necessary to state them in detail.

Judgment and order denying motion for new trial reversed and new trial ordered, with costs of the appeal to appellant to abide the event.

Freedman, J., concurred.


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    ANGUS P. McINTYRE, Respondent, v. FREDERICK RADUNS, Appellant.

      Disoi’derly conduct—breach of peace—right of police officer to arrest.

    A police officer, or other known conservator of the peace, may lawfully interpose to prevent a breach of the peace, and so long as there remains any danger of it the duty of interference continues.
    He has the right to remonstrate against noise and disturbance in the street, and if an assault upon him be attempted for so doing, he may arrest the offender.
    What constitutes a breach of the peace, also the general rights and duties of police officers in making arrests,—considered by the court.

      Before Sedgwick and Freedman, JJ.

      Decided April 5, 1880.
    Appeal from judgment and from order denying motion for a new trial.
    The action was for false imprisonment. The complaint charged that the defendant, being a member of the police force of the city, maliciously and illegally compelled the plaintiff, against his will, to go with him to a police station-house, &c. The answer alleged, that at the time, &c., the plaintiff was acting in a loud, disorderly manner at night, in the public street, and. was guilty of conduct tending to a breach of the public peace and quiet; and upon the defendant’s requesting the plaintiff to cease therefrom, the plaintiff then and there assaulted the defendant, whereupon the defendant caused the plaintiff to accompany him to the station-house. -
    The jury found for the plaintiff.

      Hugh L. Cole, for appellant.

      Richard Busteed, for respondent.
   By the Court.—Sedgwick, J.

The defendant’s counsel, upon the trial, requested the judge to charge the jury that the arrest was legal, under the facts and circumstances as stated by the defendant. ' The learned judge was not of this opinion, and refused so to charge.

The defendant had testified that near the corner of Mulberry and Mott streets, after midnight, he saw the plaintiff in company with a lady, coming up the street very load and noisy, dragging her by the arm along the street; that he went to plaintiff, tapped him on the shoulder, ordered him to be quiet, telling him that it was not a proper way, on the public street, to be making such a noise at that hour of the night; that the plaintiff did not stop ; that he again told them to stop, that it was a bad neighborhood around there ; that the plaintiff then left the lady, turned back, was very excited, and made a blow for the defendant with his fist, stopped, turned again,, and made a second blow for the defendant; that he asked the plaintiff twice to Ikeep quiet, and before the plaintiff was arrested he had struck twice at him. The plaintiff and his witnesses had testified to a state of facts that contradicted the defendant’s evidence, and if their verdict was only that the plaintiff’s testimony was true, the defendant was clearly liable ; but under the charge the jury may have found for the plaintiff, although the facts were .as stated by the defendant.

Under the circumstances sworn to by defendant, the plaintiff would not have been justified in assaulting the officer. The blows would not have been offered in self-defense. The officer, if he were believed, had not arrested or attempted to arrest the plaintiff . He had only mildly and properly cautioned them against noise or disturbing conduct. An assault upon a police officer, when in the discharge of his duty, has been declared to be a misdemeanor by section 22, chapter 569, Laws of 1857. This recognizes the rule of the common law on this subject. “If a man makes assault upon the constable, he may justify to arrest him who made the assault, and to carry him to jail, for breaking the peace, though he himself be party” (Viners’ Ab. “ Constable,” [E.] 7).

If the arrest had been made upon the other facts stated by the officer, there having been no assault, there would have been a question for the jury. The peace officer has a right, and it is his duty to arrest, persons who commit a breach of the peace in his presence. The duty is described by Parke, B., in Howell v. Jackson (6 C. & P. 723): “For if the plaintiff made such a noise and disturbance as would create alarm, and would disquiet the neighborhood, and the persons passing along the adjacent street, that- would be such a breach of the peace as would not only authorize the landlord to turn the plaintiff out of the house, but it would also give the landlord a right to have the plaintiff taken into custody if this occurred in the view of the watchman.” In the case cited, the breach of the peace happened in a public house. The rule stated has. greater force when it is applied to an occurrence in a public street. The officer must take the risk- of the facts justifying him, and in a case like the present it should be left to the jury to determine whether the conduct of the arrested party was calculated to disturb and alarm the neighborhood, to attract a crowd, to lead to disorder or riot. The character of the neighborhood may be considered. It should be proved by competent testimony. A statement of the officer to the arrested party, while he was cautioning him that it was a bad neighborhood, is not proof of the fact. The officer, before resorting to the extreme remedy of arrest, should request the party to cease from noise or misconduct, and should not arrest if the request is complied with. This observation is to be confined to cases like the one here, for there may be breaches of the peace which demand immediate arrest.

A constable or other known conservator of the peace may lawfully interpose upon his own view to prevent a breach of the peace or to quiet an affray (1 East P. C. 303). One great use of police officers is to nip mischief in the bud (1 Bennet & H. L. C. C. 201, citing Rex v. Hems, 7 C. & P. 312). This duty of interference continues while there remains any danger of a breach of the peace, and if remonstrance or mere interference are not sufficient to avert the danger, the officer is justified in arresting the guilty party.

I therefore think there should be a new trial.

Judgment and order denying motion for new trial reversed, new trial ordered, with costs of appeal to appellant to abide event.

Freedman, J., concurred.