text:
    Levi A. Lincoln, plaintiff, vs. Abby Lincoln, defendant.
    1. Where the defendant, in an action for an absolute divorce on the ground that the defendant was a married woman at the time the plaintiff married her, has appeared and answered, denying her previous marriage, such issue may be referred, with the consent of the.parties; but it should be a reference to hear and determine the issues, and not to take the proofs and report them to the court.
    2. The latter species of reference is only proper when there is a default in answering.
    3. Such irregularity would necessarily render the judgment irregular; but the irregularity may be waived by the appearance of the defendant before the referee without objecting.

      4. An order of reference may be granted for the purpose of determining a disputed fact arising upon a motion.
    5. It is erroneous to permit either party, in an action for a divorce, to testify on his or her own behalf. But if the examination of a party does not appear to relate to any material subject investigated by the referee, the error of admitting him or her as a witness furnishes no sufficient ground for refusing to confirm his report.
    6. It is only when the decision of a referee is unsupported by evidence, or is palpably against the weight of evidence, that it will be disturbed.
    7. The distinction between void and voidable marriages is clear. If the facts exist which render a marriage null ab initio, no decree dissolving the contract is necessary; although for the quiet and relief of- the parties, and the good order of society, such a decree is proper. It has therefore been made a ground of divorce, by statute. (2 JR. & 142, § 20, sub. 2.)
    (Before Monell, J., at Special Term,
    November, 1866.)
    Motion to set aside a judgment.
    This action was brought for an absolute divorce, on the ground that the defendant was a married woman at the time the plaintiff married her. The allegation of such marriage was denied by the defendant. The issues were referred by the consent of both parties to a referee, who was ordered to take the evidence and to report the same to the court, with his opinion thereon. Both parties appeared before the referee, but before all the testimony was taken, the defendant procured an order from the court, requiring the plaintiff to show cause why a commission should not issue to examine witnesses residing in 'Providence, R. I., The order also stayed the proceedings before the referee. The stay of proceedings was subsequently revoked upon the ex parte application of the plaintiff. The plaintiff then went before the referee, without notice'to the defendant, gave some additional evidence, and obtained a report that the facts alleged by the plaintiff were substantially proven; and the court thereupon entered judgment in favor of the plaintiff, dissolving the marriage. The defendant had no notice of any of these proceedings.
    A motion was afterwards made to set aside the judgment and for leave to- the defendant to be let in to defend the action. Such motion was founded upon the alleged irregularity in the proceedings, and also upon the affidavit of the defendant, in which she stated that Read (to whom it was alleged she was married previous to her marriage with the plaintiff) had, at the time of her marriage with him, a living wife; which rendered her marriage with Read void; and that, therefore, her contract and marriage with the plaintiff was binding and lawful. Upon this motion an order was made referring it to a referee, to take proof and to report the same to the court, with his opinion thereon, whether William H. Read, mentioned in the complaint, at the time of his marriage with the defendant, had been previously married to one Sarah Wakefield, or any other woman; and whether said Read had a wife living at the time of his said marriage with the defendant; and whether such previous marriage was in force at the time of his said marriage with the defendant. Both parties appeared before the referee and produced witnesses, who were examined in respect to the questions referred. The plaintiff and defendant each offered himself and herself as a witness in his and her own behalf, and were received- by the referee, notwithstanding objection thereto. The referee reported the evidence to the court, with his opinion thereon, to the effect that said Read was, in October, 1855, married to one Sarah Wakefield; that the marriage between the defendant and Read took place in August, 1856; that Read had a wife living at the time of his marriage with the defendant, and that his marriage with Sarah Wakefield was previous to, and was in force at the time of, his marriage to the defendant.
    The order of reference further directed that if it should appear from the referee’s report that Read had been previously married, and had a wife living at the time of his marriage with the defendant, then that the judgment theretofore entered, dissolving the marriage of the plaintiff and defendant, should be set aside and vacated.
    The motion now is to confirm the report of the referee and to vacate the judgment.

      Edwin James and Thomas Dunphy, for the defendant.

      W. R. Stafford, for the plaintiff.
   Monell, J.

The first order of reference was, I think, irregular. The defendant had appeared and answered, denying her previous marriage. Such issue could he referred with the consent of the parties-; but it should have been a reference to hear and determine the issues, and not to take the proofs and report them to the court. The latter species of reference is only proper when there is a default in answering. (Rule 86.) Such irregularity would necessarily render the judgment irregular. But the irregularity may be waived by the appearance of the defendant before the referee without objecting. (Renouil v. Harris, 2 Sandf. S. C. R. 641.)

The second reference was to determine a disputed fact upon a motion, and was therefore proper and regular. (Code, § 271, sub. 3.) It was erroneous to permit the defendant to testify in her own behalf. She was objected to as incompetent, and under the decisions of this court she could not be examined. The referee appears to have regarded the judgment as restoring her competency. I do' not think it had such effect. The examination of witnesses before a referee was for the purpose of ascertaining whether such judgment was valid, or should be vacated; and its functions as a judgment were, therefore, suspended. But as the examination of the defendant does not appear to relate to any material subject investigated by the referee, he having excluded all of her evidence relative to the previous marriage of Bead, the error of admitting her as a witness furnishes no sufficient ground for refusing to confirm his report. It was equally erroneous to admit the plaintiff to be examined on his own behalf. His testimony was material upon the question of the identity of Bead. But as the defendant has hot excepted, the objection cannot now be taken.

I have examined the testimony taken by the referee, and the only doubt there can be is as to the identity of William H. Bead. The proof of the marriage of a William H. Bead with one Sarah Wakefield is conclusive. On the question of identity the evidence is conflicting. But there is no such preponderance against the conclusion of the referee as would authorize the court to withhold its confirmation of his report. It is only when the decision of a referee is unsupported by evidence, or is palpably against the weight of evidence, that it will be disturbed. (Hoogland v. Wight, 7 Bosw. 394. Woodruff v. McGrath, 32 N. Y. Rep. 255.)

A further objection by the plaintiff to the confirmation of the referee’s report was, that until a judgment of a court of competent jurisdiction, annulling and declaring void her previous marriage with Bead, the defendant was not capable of contracting a legal marriage with the plaintiff. The distinction between void and voidable marriages is clear. If the facts exist which render a marriage null ah initio, no decree dissolving the contract is necessary. (1 Bishop on Divorce, § 277.) Although for the quiet and relief of the parties, and the good order of society, such a decree is proper. (Wightman v. Wightman, 4 John. Ch. 343.) And it has therefore been made a ground of divorce by statute. (2 R. S, 142, § 20, sub. 2.)

Ho error having been committed by the referee, which can affect the conclusions to which he has arrived upon the evidence before him, his report must be confirmed, and the defendant let in to defend the action; for which purpose the first order of reference will be vacated and the cause restored to the calendar for trial, with liberty to either party to apply to the court to frame such issues, to be tried by a jury, as may be proper.

It having been represented to me that shortly after the judgment of divorce the plaintiff was again married, I shall, for the protection of-the rights of the second wife, who may have married the plaintiff in ignorance of such divorce, allow the judgment to stand, until the trial of the issues is had; when, if it shall appear that the defendant was under no disability when she contracted marriage with the plaintiff, the said judgment must be vacated and set aside; otherwise to remain in full force and effect.

So much of the motion as asks that the plaintiff be ordered to pay the referee’s fees and counsel fees, must be denied; without prejudice, however, to a renewal of such motion upon affidavits of the plaintiff’s ability to pay the same, and that no allowance for alimony or counsel fees has heretofore been made, or, if made, that the same are inadequate.

The order on this decision to be settled on five days’ notice to the plaintiff’s attorney.


source: Caselaw Access Project

author: Monell, J.

license: Public Domain

text:
    The Glenville Woolen Company vs. Ripley.

      1. Where a sheriff, after the levy of attachments by him, commences an action in the name of the defendant in the attachment suits, under section 238 of the Code, against a debtor of the defendant, to recover the debt due from the former to the latter, and the defendant in such action admits the canse of action, but claims a set-off thereto, which the referee' decides to allow, and is about to render judgment against such defendant, in favor of the sheriff, for the balance, the attaching creditors ought not to be brought into that action as parties, on motion, and cannot he substituted as defendants for the purpose of determining their respective-priorities.
    2. The only proper course for the defendant, to avoid further litigation, is to allow the action to go to judgment and pay the judgment, leaving the creditors to litigate as they may he advised, for the fund.
    (Before Monell, J., at Special Term,
    November, 1866.)
    The controversy in this case was between different contending creditors of the G-lenville Woolen Company, a foreign corporation, the nominal plaintiff. The two contestants were Messrs. Consinery & Craig, and Messrs. Jasper, Corning & Co. The last named commenced their suit in October, 1855, and obtained therein an attachment against the property of the Woolen Company, which was served upon the defendant, Ripley, with the view of attaching the debt due from him to such company. In that suit they recovered judgment in Eebruary, 1856, (for $166*3.78.) Consinery & Craig commenced their suit against the defendant in December, 1855, in which they procured an attachment which was served on Ripley, hut did not obtain judgment thereon until December, 1863, (for $31,339.81.) Upon that judgment an execution was returned unsatisfied, and,-, upon supplemental proceedings thereupon instituted, a receiver of the property of the Woolen Company was appointed.-.
    After the levy of one or both attachments by service on Ripley, the sheriff, under section 238 of the Code, commenced this action, in the name of the company, to recover from the defendant the debt due from him to it. The defendant admitted the cause of action, but claimed a set-off thereto. The question was tried by a referee, who decided to allow the set-off, and was about to render judgment against the defendant in favor of the sheriff for the balance, which the defendant was ready to pay. A motion was made thereon to have Consinery & Craig and Corning & Co. made parties to the action, for the purpose of determining their respective priorities; it being conceded that the defendant had no further interest in the question.
   Monell, J.

The priority of the contesting creditors cannot be determined upon this motion; a motion for some other relief, or possibly an action for such purpose, may be necessary. Should the money due from the defendant come into the sheriff’s hands, he will hold it under one or both of the attachments, upon which the question will properly come up, whether Corning & Co.’s attachment and execution, or the receivership under the Consinery & Craig judgment, will have the preference. The sheriff, for his own protection, could interplead the creditors or apply to the court for instructions, or the latter could probably themselves become the actors and have the question determined by motion or action. The 122d section of the Code is wholly inapplicable to this case.

It would not be proper to bring the creditors into this action as defendants, as that would leave the defendant still a party, and postpone the payment by him of an admitted sum, until the determination of a controversy between his co-defendants, which might continue for many years.

The only course for the defendant, therefore, if he wishes to avoid farther litigation, is to allow the action to go to judgment, and then to pay the judgment, leaving the creditors to litigate as they may be advised, for the fund.

I am satisfied that the attaching creditors ought not to be made parties to the action, and cannot be substituted for the present defendant. And I cannot see any difficulty, on payment to the sheriff of the amount due from the defendant, in settling the rights of such creditors, by motion or otherwise.

The motion must be denied.

      Affirmed at general term, on appeal, December 7, 1867,


text:
    Charles Webb et al., plaintiffs, vs. Wallace P. Groom et al., defendants.
    1. Re-arguments of motions, upon the same facts, are only to be allowed where it appears that the justice, in disposing of the motion, has overlooked, mistaken or misapprehended some material fact; or has decided it upon some question of law not presented by counsel. They are not allowed merely for the purpose of introducing the consideration of facts not in existence at the time the motion was decided.
    2. Thus where a motion to vacate an order of arrest and attachment was granted, upon affidavits disproving any fraudulent intent on the part of the party arrested, a re-argument of such motion will not be granted merely upon the ground that certain subsequent acts of the defendant tend to establish the alleged fraud,
    (Before Monell, J., at Special Term,
    November, 1866.)
    Motion for leave to re-argue a motion.

      Mr. Dykers, for motion.

      'Mr. Stafford, opposed.
   Monell, J.

The defendants were arrested and held to bail, for an alleged fraudulent disposition or intended disposition of their property. An attachment for the same cause was also granted. A motion to vacate the order of arrest and attachment was granted upon affidavits disproving any fraudulent intent. A motion for a re-argument of that motion is now made, upon the allegation that certain acts of the defendants, since done, tend to establish the alleged fraud.

Re-arguments of motions are only allowed, where it appears that the justice deciding the motion has overlooked, mistaken or misapprehended some material fact; or has decided upon some question of law, not raised or argued by counsel. I am not aware that they have ever been allowed to let in facts not in existence at the time the motion was decided. In the analogous case of motions for new trials on account of newly discovered evidence, the evidence must have existed at the time of the trial, hut its existence was unknown to the party, and could not with reasonable diligence have been discovered.

In this case, the acts now sought to be made available were done long after the motions had been decided, and of course could not have had any influence whatever upon the decision ; and it would be opposed by the uniform practice of the court, as well as unsupported by any principle, to open a case already decided' to let in such new facts.

The only remedy under the circumstances, is to make a fresh application for the provisional remedies founded upon the new facts.

The motion must be denied, with $10 costs.


text:
    Charles F. Moulton, plaintiff, vs. Gustave de ma Carty, defendant.
    1. Where a trust to receive the rents and profits of real estate and apply the same to the education and support of an individual, is created, the interest of the cestui que trust in the trust itself is not assignable by him. The surplus of the rents and profits, only, can be reached by creditors. The only question in such a case, so far as the rights of creditors is concerned, is whether there is any surplus, beyond the sum necessary for the support of the cestui que trust.

    2 In determining what sum is necessary for the support of a cestui que trust, it is proper to take into consideration his station in life, and the manner in which he has been reared and educated, his habits, and the means he may have beyond the trust fund to aid in his support. He is entitled to be supported in his accustomed manner of living, and is not bound, so far as his creditors are concerned, to contribute to such support by his labor or otherwise.
    (Before Monell, J., at Special Term,
    November, 1866.)

      D. Marvin, for the plaintiff.

      H. Hendrickson, for the defendant.
   Monell, J.

The 57th section of the Eevised Statute relating to uses and trusts, (1 R. S. 729,) provides that when a trust is created to receive the rents and profits of lands, * * * the surplus of such rents and profits, beyond the sum that may be necessary for the education and support of the person for whose benefit the trust is created, shall be liable in equity to the claims of the creditors of such person in the same manner as other property. Another section (63) provides that no person beneficially interested in a trust for the receipt of the rents and profits of lands can assign, or in any manner dispose of, such interest

Under the provisions of the statute, it has been held that the court could direct the setting apart of an annual sum out of the surplus income, if there be any, to be applied towards the debts of the cestui que trust. (Sillick v. Mason, 2 Barb. Ch. 79. Scott v. Nevius, 6 Duer, 672. Genet v. Foster, 18 How. Pr. R. 50.)

The surplus only can be reached, the interest in the trust itself being unassignable.

The only question, therefore, is whether there is any surplus beyond the sum that may be necessary for the support of the defendant.

The annual income of Ma Carty from the trust varies.. As testified to by Mr. Schermerhorn, the acting trustee, it does not exceed five thousand dollars, and is sometimes much less than that sum.

In determining what sum is necessary for the support of the defendant, it is proper to consider his station in life, and the manner in .which he has been reared and educated, his habits, and the means he may have to aid in his support. (Silleck v. Mason, supra.)

The defendant states, in his affidavit, that he is the son of a wealthy southern planter; was educated in New Orleans and New York, and for eight years resided in Europe. That he was educated to no business, and has never engaged in any, except for a short time. His father died in 1832, possessed of a large estate, which was lost through the knavery of an agent. Mr. Craven in his testimony says his (Ma Carty’s) standing in society is excellent, and that he knows him to be a gentleman of education and refined tastes.

Considering the habits, education and station in life of Ma Carty, the dependencies of a wife and two children, and that he is not engaged in any business, I cannot believe that the income he derives from the trust estate is more than adequate to his support. Indeed, he states that during the last year it has been insufficient. He has a right to be supported in his accustomed manner of living, and is not bound to contribute to such support by labor or otherwise. (Scott v. Nevius, supra.)

From all the facts before me, I am satisfied that the defendant ought not to be deprived of any part of the income derived from the trust estate, which in my judgment, during the continuance of the present high prices and very largely increased expenses of living, will barely afford him a comfortable support.

The injunction must be dissolved.


text:
    Mary Ann Halsey, adm’x &c., plaintiff, vs. Luther C. Carter, defendant.
    1. A party who has appeared by attorney cannot, while the retainer continues, appear on the record in person. A notice, signed by a defendant in person, while he has an attorney, may therefore be disregarded.
    2. Section 273 of the Code of Procedure, as amended in 1866, allowing, “ either party ” to serve notice upon the opposite party that he elects to end a reference, does not require that such notice should come from the-party, instead of the attorney.
    3. The court will refuse to set aside a referee’s report, merely upon the ground that it was not made within sixty days after the final submission of the case to him, and that the defendant had given notice of his election to end the reference, in the exercise of its discretionary power to enlarge the time of taking any proceeding in an action, where the effect of setting aside such report would be to send back for a fifth trial an action commenced fifteen year’s previously, and three times tried before such reference, the last of which trials lasted several years.
    (Before Monell, J., at Special Term,
    November, 1866.)
    Motion to set aside the report of a referee for having been made more than sixty days after the final submission of the case to him, and after notice of the election of the defendant to end the reference.

      J. W. Edmonds, for the motion.

      A. Boardman, opposed.
   Monell, J.

I think the proofs in this case establish that the action was finally submitted to the referee for his decision, -more than sixty days before notice of the defendant’s election to end the reference. But the notice should have been by the attorney. A party who has appeared by attorney cannot, while the retainer continues, appear on the record in person. (2 R. S. 276, § 11.) It is proper, therefore, to disregard the notice signed by the defendant in person while he had an attorney.

It was claimed by the defendant’s counsel that the words “ either party,” in the 273d section of the Code, required that the notice should come from the party, and not from the attorney. I do not think so. Having appeared by attorney, all notices and papers used in the progress of the action must be subscribed by, and in the attorney’s name. Besides, in every part of the Code where aright is given, the same words are used, thus—“ either party ” may give notice of trial, (§256;) and “ eitherparty”'may except to a decision, (§268.) So, a notice of appeal must be served on “ the party,” Rule 4, Court of Appeals.. (Tripp v. De Bow, 5 How. Pr. 114.)

But even if the notice was regular, I should not hesitate in this case to exercise my discretionary power, by relieving the plaintiff from the consequences of the referee’s omission.

The court has the power to enlarge the time within which any proceeding in an action must be had, (except the time within which an appeal must be taken,) (Code, § 405,) and may do so, even after the time has expired. (Clapp v. Graves, 9 Abb. 20. Sheldon v. Wood, 14 How. Pr. 18.)

It appears that this action was commenced more than fifteen years since, and has been three times tried, the last trial lasting several years. The case has been- contested, and, as is represented, has been carefully considered by. the referee. Under such circumstances, I should be very reluctant to set aside his report, except for the most substantial reasons. The effect of which would be to require a fourth trial of the action.

If the referee has committed any error, it can be corrected on appeal from his judgment.

The motion must be denied, with $10 costs.


text:
    Frederick Deiz, plaintiff, vs. Chester Lamb, defendant.
    1. An agreement or license, by tbe proprietor of a hotel, giving permission to another to occupy any portion of the public streets, as a stand for his coaches, is a nullity. Hotel proprietors have no right to the exclusive use of the streets in front of their premises; and any obstruction of them, in their free use, would be a public nuisance.
    2. The streets belong to the public at large,' for passage over them; no person has the right to obstruct such passage, by leaving coaches or other vehicles standing upon the highway. Hotel proprietors, having themselves no such right, can confer none upon others.
    3. But up agreement by the proprietor of a hotel, with, and license to, another, allowing the latter to place the name of the hotel upon his coaches—such arrangement to continue so long, only, as the parties are mutually “satisfied”— is a valid contract, which will subsist until terminated by a notice from either party. Continuing the use of such name, by the licensee, after the license has ceased, or is terminated, may be restrained by injunction.
    4. The proprietor of a hotel, and his licensee, may each claim the protection of the court for any violation of his individual rights by a third person; the pen- ■ dency of a suit by such licensee, for the injury he has sustained, is no bar to an action by the hotel proprietor.
    (Before Monell, J,, at Special Term,
    November, 1866.)

      Motion for an injunction.

      Edwin James and Thomas Dunphy, for the plaintiff

      A. E. Lawrence, for the defendant,
   Monell, J.

The contract between the defendant and Rosenstein terminated upon the sale by the latter to Deiz, the plaintiff, and the license to place the words “ Prescott • House ” upon the defendant’s coaches was thereby revoked.

The new arrangement made between the plaintiff and defendant was to continue so long, only, as the partiés were mutually “satisfiedand hence, could be terminated on notice from either party. The defendant admits s.uch a notice was given before the commencement of this action. .

So far as the agreement or license gave permission to the defendant to occupy any portion of the public streets, as a stand for his coaches, it was a nullity. Hotel proprietors • have no exclusive right to the use of the streets ,in front of their premises; and any obstruction by them, in their free use, would be a public nuisance. The streets belong to the public at large for passage over them, and no person has the right to obstruct such passage, by leaving coaches or other vehicles standing upon the highway. And hotel proprietors having themselves no such right, of course can confer none upon others. '

The agreement, however, and license to the defendant to place the words “ Prescott House ” upon his coaches, was a valid contract, which subsisted until it was terminated by notice. And the question is, whether continuing the use of such words, after the license had ceased, can be restrained.

I regard the question as settled by three cases, one of them in this court. (Stone v. Carlin, 3 Mo. Law Rep. 360. Howard v. Henriques, 3 Sandf. 725. Marsh v. Billings, 7 Cush. Mass. Rep. 322.)

In the last case the proprietors of the Revere House authorized the plaintiff to keep coaches at certain railroad depots, to convey passengers to. such house, and to put on his coaches, and on the caps of his drivers, the words “ Revere House.” A similar authority had been given to the defendant, but which had expired. It was held, that the plaintiff had the exclusive right to use the words “Revere House,” as indicating and holding himself out as having the patronage of that establishment for the conveyance of passengers, and that the use by the defendants of the same words for the purpose of falsely holding themselves out as having such patronage, was a. fraud upon the plaintiff, and a violation of his rights, for which he could maintain an action. And in Howard v. Henriques, (supra,) under an analogous state of facts, this court restrained, by injunction, the defendant from using the words “Irving House” upon his coaches and the badges of his servants.

These actions, it is true, were brought by persons holding contracts with the hotel proprietors. But Campbell, J., says, in Howard v. Henriques, that the hotel proprietor might also have an injunction. The rights,of the proprietor and of his licensee are similar, though the injury is different, being confined to the loss of patronage to his coaches in the one case, and to the loss of patronage to his hotel in the other. Each, therefore, may claim the protection of the court for any violation of his individual rights. The pendency of the suit of Peppard & Co. against this defendant is, therefore, no bar to this action.

The cases to which I have referred, as well as Christy v. Murphy, (12 How. Pr. 77,) are an answer to the proposition of the defendant’s counsel, that the plaintiff must establish in a court of law that he has sustained injury, before he can invoke the aid or protection of a court of equity. ‘ Indeed, courts of equity will always interfere to prevent wrongs; while courts of law can only give redress after the wrongs have been committed.

Upon an examination of the facts of this case as proven or admitted, and of the law applicable to such facts, my conclusion is that the plaintiff is entitled to an injunction as demanded in Ms complaint, and should have judgment accordingly, with costs.

The findings to be prepared by the plaintiff’s attorney, and served on the defendant’s attorney, with five days notice of settlement, before me.


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

text:
    Benjamin T. Hoogland, plaintiff and respondent, vs. Benjamin J. H. Trask, defendant and appellant.
    1. Where, upon an issue made by the denial in a reply, that the defendant was the owner and holder of a promissory note of the assignors of the plaintiff set
    , up in his answer as a defense by way of set-off, otherwise than by receiving the same in order to procure it to be discounted at a bank, and to pay over the proceeds to the makers, and subsequently agreeing to procure the same to be returned, if the makers would give him another note, for a smaller amount, for the same purpose, and receiving such last mentioned note from them, without returning such first mentioned note, no evidence was given by either party, on the trial; Held that the production .by the defendant of the note set forth in his answer would have been prima faete evidence that he was the owner for a valuable consideration, and have thrown upon the plaintiff the burden of proving that it was obtained under the circumstances mentioned in the reply.
    2. Where one .becomes the legal owner of a claim, by assignment thereof, it is immaterial to the debtor, whether he receives the money upon it in his own right, or as trustee. He therefore cannot move to dismiss a complaint because a plaintiff who is an assignee has omitted to set out the assignment, specially, therein, or has stated that he was a trustee, and is therefore precluded from suing except as trustee.
    3. Under a general exception to a direction to a jury, on a trial, to find for one of the parties, the non-submission of any questions of fact to the jury is no ■ ground of objection when no request has been made to submit such questions of fact to the jury.
    (Before Robertson, Ch. J., and Monell, J.
    Heard October 18, 1866;
    decided December 31, 1866.)
    This was an action brought to recover ($2500) money lent by a firm (Hoogland & Van Pelt) to the defendant, the claim for which had been assigned to the plaintiff". Such loan and assignment were averred in the complaint. The answer denied both, and set up as a defense a set-off of two claims against the assignors of the plaintiff’s claim before the assignment to him; one for the price of a vessel, the other on a note of theirs, due before such assignment. The reply denied the purchase of the vessel, and also that the defendant was the owner and holder of the note mentioned in the answer, otherwise than by receiving the same in order to procure it to be discounted at a bank, and to pay over the proceeds to the makers. Such reply also alleged that the defendant subsequently agreed to procure the same to be returned, if the makers would give him another note for a smaller amount, for the same purpose, which they did, but such note was not returned. It was not alleged whether such first note was discounted or not, or what became of it.
    On the trial, one of the plaintiff’s assignors (E. Hoogland) testified that the defendant on a certain day applied to him for a certain sum of money, ($2500,) for which he gave him his check, which was paid. On the day previous such witness had applied to the defendant for a loan of a like sum, when the latter gave him a check of a third person (W. S. Bailey) for such amount, which he. stated would be good next day. Such check never was paid, although presented, and the defendant promised the witness to make it good, but never did. The drawer (Bailey) had no funds in the bank on which it was drawn, at its date, or for a long time after-wards.
    An assignment for the benefit of creditors was then offered in evidence, to the admission of which the defendant’s counsel excepted. This instrument was an assignment by the members of the firm of Hoogland & Van Pelt to the plaintiff of all their property.
    The defendant’s counsel then moved to dismiss the complaint, upon the ground that the plaintiff had not sued as trustee, which motion was denied, and an exception taken to such denial.
    The defendant’s counsel then offered certain papers from the files of the county "clerk, where they had been filed, for the discharge of the plaintiff and one of his assignors, (Van Pelt,) as insolvents, from their debts, and proved the signature of the plaintiff to various documents belonging thereto. The present claim was not mentioned in any of such papers. They were 'excluded as evidence, to which an exception was taken.
    No evidence was given on the trial as to the note, or purchase of a vessel, alleged in the answer, nor was such note produced.
    The defendant’s counsel requested- the court to charge the jury that a third person, (Mrs. E. Hoogland,) respecting an assignment to whom of the claim of the plaintiff on Hoogland & Van Pelt, some testimony had been given and stricken out because such assignment was in writing, was a necessary party to the action; also that the plaintiff could not recover under the complaint, because he did not bring the action as trustee. Both of which requests were refused.
    • Two questions were put on the trial, oh behalf of the defendant, and excluded, to which the defendant’s counsel excepted. One to the plaintiff, as follows: “Suppose this claim now sued is collected, to where does the money go?” The other was not insisted on at the argument.
    The court directed the jury to find a verdict for the whole amount, ordering judgment to be suspended, and the exception’s heard in the first- instance at general term. To both of which directions exceptions were taken for the defendant.

      Beebe, Dean & Donohue, for the defendant, appellant.

      W. E. Curtis, for the plaintiff, respondent.
   By the Court, Robertson, Ch. J.

Upon the issue made by the answer and reply, as to the note mentioned therein, no evidence was adduced on the trial. The production of the note by the defendant would have been prima facie evidence that he was the owner for a valuable consideration, and have thrown on the plaintiff the burden of proving that it was obtained under the circumstances , mentioned in the reply.

The refusal to dismiss the complaint because the plaintiff did not set out the assignment, or state that he was a trustee; the rejection of the insolvent discharge papers of the plaintiff" and Van Pelt; the exclusion of the question as to the destination of the money collected; the refusal to charge that Mrs. Hoogland was a necessary party, or the plaintiff precluded from suing except as trustee; and the direction to find a verdict for the amount claimed, were all correct.

The plaintiff became the legal owner of the claim by the assignment, and it was immaterial to the defendant whether he received the money in his own right or as trustee. The insolvent papers only tended to establish that neither the plaintiff nor Van Pelt claimed that the amount set down in such assignment as due to the former was so due. Even if the assignment had been wholly gratuitous, it did not affect the plaintiff’s claim, unless the defendant had a good set-off of claims upon Hoogland & Van Pelt. The assignment by the plaintiff of his claim against the latter to his mother, even if proved, would not have invalidated the assignment to him of the claim in question, although it might have explained why such claim was not mentioned in his insolvent papers. She was no more a necessary party than any other cestui que trust. The question as to the destination of the money was one of law, and immaterial. There was no request even to submit any question of fact to the jury, and their non-submission is no ground of objection, under a general exception, to a charge to find for either party. (18 N. Y. Rep. 558.)

There was nó evidence that the advance to the defendant had any thing to do with the Bailey check. If it had had, there was some evidence tending to show fraud. From the whole case, therefore, it appears that the direction for an absolute verdict was correct. There must be judgment for the plaintiff on the verdict, overruling the exceptions. •


author: Robertson, Ch. J.

text:
    David Elsten, plaintiff, vs. Andrew Schilling et al., defendants.
    In order to relieve a lessor from the obligation of a covenant contained in a lease by him to give the lessee therein a new lease of the demised premises at the end of the term, therein mentioned, provided he had not previously “ disposed of” such premises, it is not necessary that he should have sold them. Any disposition which deprives him of the right of control over them, would be sufficient for that purpose under such a covenant. Of course a collusive parting with them would not be sufficient.
    (Before Robertson, Ch. J., at Special Term.)
    Heard December 7, 1866,
    Decided January 7, 1869.
    This was an action by the lessee against the lessor, to enforce a covenant to give anew lease, at the expiration of the term, contained in a lease.

      S. B. Cushing, for the plaintiff.

      S. B. Egan, for the defendant Schilling.
   Robertson, Ch. J.

By thevterms of the former lease, the defendant Andrew Schilling was "bound to give the plaintiff a new lease, only in case such defendant had not “ disposed of ” the premises before the expiration of such first lease. The plain meaning of this was, that if the defendant Andrew Schilling did not so retain the control of such premises as to be able to make his lease to the. plaintiff effectual for any purpose, he was not bound by his covenant. It was not necessary for that purpose that he should sell the premises; he might give them away, provided there was no secret agreement to return them • to him. It appears from the testimony of both Andrew and Frederick Schilling, that the former gave such premises to the latter, as an advancement to put him on a footing with other children to whom advancements had been made. This he had a perfect right to do, and thereby divest himself of all interest in such premises, so as to render a lease by him utterly nugatory. There does not appear to be any thing suspicious in the transaction. The time selected for the gift was just before the end of the lease, when the holder of a mortgage was pressing for payment, and no sale could be made of the premises, while subject to the plaintiff’s claim. He refused to purchase, and the defendant Andrew Schilling provided for his son, and enabled him to sell the premises and pay the mortgage. There must therefore be judgment for the defendant, dismissing the complaint with costs.

The defendant can draw and present findings of fact and a judgment to be signed.


text:
    Rachel Unger, plaintiff, vs. The Forty Second Street &c. Railroad Company, defendants.
    A motion to dismiss the complaint, under the 27th rule of court, can only be made after an issue of fact has been joined in the action. The 4th subdivision of section 274 of the Code, relates only to actions against several defendants, where the plaintiff fails to proceed against the defendant or defendants served.
    (Before Monell, J., at Special Term,
    January, 1867.)
    Motion to dismiss the complaint, for want of prosecution.
   Monell, J.

This was a motion to dismiss the complaint for want of prosecution. After the service of the summons and complaint, the defendants obtained an order staying the plaintiff’s proceedings until the payment of the costs of a former suit between the parties, and extending the time to answer for twenty days after such costs should have been paid. The costs have not been paid, nor the stay of proceedings vacated, and the defendants have not answered the complaint.

A motion to dismiss, under the 27th rule of court, can only be made after an issue of fact has been joined in the action; and the 4th subdivision of section 274 of the Code, relates to actions against several defendants,-where the plaintiff fails to proceed against the defendant or defendants served.

There being no provision in the Code or in the rules of court applicable to this motion, it must be denied.


text:
    Edward H. Gillilan, survivor &c., plaintiff, vs. Henry G. Norton et al., defendants.
    1. A lessor cannot enforce the specific performance in equity of a covenant not to underlet, when he has the right, by the terms of the lease, or otherwise, to re-enter. In such a case he must proceed at law; or he may waive the right to enter, and recover damages for the breach. ■ ,
    2. Equity will not interfere and give redress, where there are adequate remedies at law. In that respect the fusion of law and equity, by the Code, has not changed the rule.
    3. A covenant, however, in a lease, not to use the demised premises for a purpose extra-hazardous on account of fire, is a subject of equitable cognizance; and a continuing breach of it will be enjoined, in order to avoid a multiplicity of actions.
    4. Lessees who have underlet demised premises, in violation of a covenant contained in their lease, are responsible for the acts of their tenant. Therefore the use of the premises by such tenant for an extra-hazardous purpose is a violation of the covenant of the former not to use the premises for such a-purpose. A court of equity may not only interfere to prevent a continuance of such a violation, but may also compensate the party prejudiced, in damages, for any injuries sustained by such violation; it being a well settled prin-
    . ciple-that a court of equity, having acquired jurisdiction of the subject matter of an action, for any purpose, may retain jurisdiction of it to do justice between the parties. It may therefore also aspess such damages as the lessor has sustained, and give judgment therefor.
    6, To make the restraint effectual, in such a case, it is necessary to enjoin all persons engaged in violating the covenant; not only the lessees, but all others who, under them, by their authority, consent or direction, are assisting in the breach of their covenant. The action, therefore, so far as equitable relief is concernid, is properly brought against the lessees and their tenants jointly. This does not produce, a misjoinder of actions; there being but one course of action, namely, the breach of the lessees’ covenant, all the persons so made defendants are necessary parties to enable the plaintiff to obtain adequate relief • in the premises.

      6. Although there may not he a joint judgment for damages, against all the defendants, in such an action, because there is no privity of contract between . the under-tenants and the plaintiff, (the lessor,) and there cannot he a reeovery, against them, of damages for the breach of the lessees’ contract, yet there is no difficulty in pronouncing separate judgments. The power to do so is in express terms given by the Code, (§§ 118, 274,) and is constantly exercised by courts, even in actions at law.
    7. The original lessees and their under-tenants may be joined, as defendants, in • such an action—the lessees, for actually or tacitly permitting the premises to be used for an extra-hazardous purpose, whereby the plaintiff has sustained damage; and the under-tenants for being the active agents in producing the breach; and in such an action all the defendants are sought to he restrained.
    (Before Monell, J., at Special Term,
    January, 1867.)
    Demurrer to complaint.
    T-he complaint alleges a lease to the defendants Norton and Studley of-the first floor and basement of the buildings Nos. 100 and 102 Liberty street, with a covenant on the part of the lessees to use the premises for the storage and sale of India rubber goods, and that the same should not be used for any purpose deemed extra-hazardous on account of fire; that they would not assign the lease, or let or underlet the premises, without the written consent of the plaintiffs, and would yield up the premises at the end of the term in good condition. There was a right to reenter upon a breach of any of the covenants.
    ' The complaint then alleges that the defendants Norton and Studley, without the consent of the plaintiff, have underlet the basement and cellar of No. 102 Liberty street to the defendants George and Henry Leach, who are in possession thereof, using the same for the storage and sale of hardware; and in like manner have underlet the basement and cellar of No 100 Liberty street to the defendant William H. Disbrow, who is in possession and using the same for the storage and sale of carriages, and the stabling and sale of horses! That he has erected stalls therein, with mangers and racks, and other fixtures for the accommodation of horses, and has placed therein quantities of hay, straw, grain, &c., for food for horses, and is daily bringing into, and keeping in the basement of said No. 100 Liberty street numbers of horses; that the floors, walls and ceilings are injured by the urine from the horsesj and the offensive smells caused thereby; that the use of said building for stabling horses is injurious to the reputation of both said buildings, so that their value is diminished, and they cannot be let to as good advantage as otherwise they might be. That the occupation of said basement of No. 100 is also a violation of the covenants of the lease, being used for a purpose deemed, extra-hazardous, thereby increasing the rates of insurance by at least $300 a year.
    The relief demanded is, that the defendants may pay the plaintiff" the damage to said buildings, a,nd that they may be restrained from all violations of the covenants of said lease, or from underletting the premises without the plaintiff’s consent, and from occupying or using the premises, or any part, for any business deemed extra-hazardous ; that the defendant Disbrow be specially enjoined from using the basement of No. 100 Liberty street for stabling horses, &c., and that all or any of the defendants, who have made any alterations to or in said premises, may restore the premises to their former condition. The complaint also asks for costs against all the defendants.
    The defendants Norton and Studley demur to the complaint, alleging, first, that several causes of action have been improperly united, and second, that the.complaint does not state facts sufficient to constitute a cause of action.

      Dan Marvin, for the plaintiff.

      W. F. Allen, for the defendants Norton and Studley.
   Monell, J.

The ground or cause of complaint against the defendants Norton and Studley, is a breach of their covenant not to underlet 'without the permission of the lessors, and not to use the premises for a purpose deemed extra-hazardous on account of fire. The covenant not to underlet was broken-by the letting of one of the buildings to Leach Brothers, and of the other to Disbrow. The other-covenant was broken by the use the premises let to Disbrow were put to by him, which, it is alleged, is a use deemed extra-hazardous.

A lessor cannot have relief in equity for a breach of a covenant not to underlet. If he has the right, by the terms of the lease or otherwise, to re-enter, he must proceed at law; or he may waive the right to enter, and recover his damages. Equity will not interfere and give redress where the remedies are adequate at law; and, in this respect, the union of law and equity by the Code has not changed the rule. All the plaintiff’s remedies for a breach of the cove-' nant not to underlet, are therefore at law.

But it is claimed that the other covenant is one of which a court of equity will take cognizance, and will enjoin a continuing breach to avoid multiplicity of actions. The , covenant is, not to use the premises for a purpose deemed extra-hazardous on account-of fire, and is substantially the • same as a covenant not to use the premises for any purpose or business other than such as is designated in the lease.

This court has frequently restrained a lessee from using demised premises in opposition to his covenant. (Howard v. Ellis, 4 Sandf. S. C. R. 369. Dodge v. Lambert, 2 Bosw. 570. See, also, Steward v. Winters, 4 Sandf. Ch. 587.) And a mere recital, in the lease, of the purpose for which the premises are let, has been held to constitute a covenant. (DeForest v. Byrne, 1 Hilt. 43.)

Horton and Studley, having underlet in violation of their covenant, are responsible for the acts of their tenant; and therefore the use of the premises by such tenant, for a purpose deemed extra-hazardous, was a violation of their covenant, a continuance of which violation a court of equity may interpose to prevent; and not only to prevent, but to compensate in damages for any injury sustained. For it is a settled principle that a court of equity, having acquired jurisdiction of the subject matter of the action, may make complete reparation to the parties. (Story’s Equity Juris. §§796,797.)

. It being competent for the court, in this case, to restrain the continued violation of the lessees’ covenant, it may also assess such damages as the lessor has sustained, and give judgment therefor.

The objection that the facts stated do not constitute a cause of action, is not, therefore, in my opinion, well taken.

The remaining ground of demurrer is, that there is an improper joinder of actions.

The alleged misjoinder of actions against the defendants Norton and Studley, I have already disposed of by showing that a lessor may obtain relief in equity, restraining a continued violation of a covenant, and also for damages.

But it is claimed that the relief demanded against the under-tenants will require a different and separate judgment, and that a cause of action which will authorize a judgment against them, cannot be united with a cause of action against their immediate landlord.

To make the injunction effectual, it was necessary to enjoin all persons engaged in violating the covenant; not only the lessees Norton and Studley, but all others who, under them, by their authority, consent or direction, were breaking their covenant: and the judgment, if the action shall be sustained, will perpetually restrain each and all of' the defendants alike. It was necessary, therefore, to prosecute not only the' lessees of the plaintiff, but all persons holding under them; otherwise the latter would be under no' restraint. So far, then, as concerns the equitable relief, the action is properly brought against the- lessees and their tenants, and -there is not, in my opinion, any misjoinder of actions. There is, indeed, but one cause of action, namely, for the breach of the -lessees’ covenant, and all the persons made defendants were necessary parties to the plaintiffs’ obtaining adequate relief in the premises.

It is suggested, however, that there cannot be a joint judgment for damages against all the defendants. That is probably so. There is no privity of contract between the under-tenants and the plaintiff, and there cannot be a recovery against them of damages for the breach of the lessees’ contract. But I cannot see any difficulty in pronouncing separate judgments. The power to do so is in express terms given by the Code, (§§ 118, 274,) and is constantly exercised by the courts, even in actions at law.

Taking the case, then, as presented by the complaint, it is this. The defendants Horton and Studley have broken their agreement with the- plaintiff, by actually or tacitly permitting the premises to be used for a purpose deemed extra-hazardous, whereby the plaintiff has sustained damage. The active agent in causing or making the breach is the defendant Disbrow, and we are asked to restrain all the defendants.

In respect to uniting Horton and Studley and Disbrow in the same action, I see no objection. It may be, however, that a cause of action is not shown against the other defendants. But it is not necessary to examine that question, as it is not made a ground of demurrer.

I think the plaintiff must have judgment upon the demurrer, with costs.

The defendants may have leave to withdraw their demurrer and answer in twenty days, on payment of the costs.


text:
    James E. Conor, Joseph Cahn et al., plaintiffs and appellants, vs. Herman Hernstein, defendant and respondent.
    1. In order to render one an assignee of a judgment, it is at least necessary that he should have agreed to become such, and have furnished the necessary sum before the assignment is delivered and the money paid to the attorney for the assignor.
    2. The execution by a creditor of an assignment of a judgment in1 blank, and subsequently by agreement with the judgment debtor, filling it up with the name of a third person, will not legally make the latter an assignee, where the real debtor has, under the coercion of a levy, actually paid the amount to the judgment creditor. Such debtor cannot take a blank assignment after such payment, so as to make any one assignee whom he may afterwards select for the purpose.
    3. A judgment cannot so be kept alive after being satisfied in law.
    (Before Robertson, Ch. J. and Garvin, J.)
    Heard November 5, 1866;
    decided February, 1867.
    This was an appeal from -an order denying a motion on behalf of one of the plaintiffs (Cahn) to set aside an execution upon a judgment for costs, obtained by the defendant against him and others, issued by an alleged assignee thereof, (L. Russell.) The motion was originally made upon affidavits, and the justice by whom it was first heard directed a reference to a referee, to examine witnesses respecting the question whether another of the plaintiffs (Aaron S. Solomons) had not paid such execution, and to' report the testimony, with his opinion thereon, to the court. Such referee took such testimony and reported the same to the court, with his opinion, not only that such plaintiff Solomons did not pay such judgment, but that a third person (Russell) had purchased and taken an assignment of it, and was its true owner. Ho mention was made, in the order appealed from, of the affidavits upon which the motion was first made. After reciting the reference and report, it merely declared that upon reading the latter, the non-payment of such judgment by the plaintiff Solomons, and its purchase by and assignment to Russell, satisfactorily appeared to the court by such report.

      An execution had been issued upon such judgment two days after it was recovered, and levied upon the interest of the plaintiff Solomons in a firm of which he was a member, (ISTewman & Solomons.) A motion made on his behalf to set aside such judgment and execution was, on the 28th of June, denied, about one o’clock in the afternoon. At that time a sale of the interest so levied on was advertised for the following morning. The defendant’s attorney refused to countermand such execution and sale, unless the whole amount due was paid before three o’clock of that day. The attorney of the plaintiff Solomons then drew an assignment of the judgment in question, leaving the name of the assignee blank, and delivered it to the defendant’s attorney to procure the same to be executed by his client, which he did on the same day.
    On that day also, before three o’clock, the attorney of Solomons procured from him the check of his firm (Uewman & Solomons) for the amount due on such judgment, having previously paid costs and sheriff’s fees, and paid it to the' attorney for the defendants, who thereupon delivered to him such assignment in blank. Russell was at some time applied to by Solomons to b.ecome assignee of such judgment, and his name was inserted in the assignment as such, and he refunded to Solomons the amount paid by him. Russell testified, on his cross-examination before the referee, that this was on the 29th or 30th of June, which was after the assignment was executed. He had previously testified, on his direct examination, that he had brought to his notice to become assignee ten or twelve days before making some motion, which he did not specify; he could not speak positively. Also, that on the the 28th of June he met Isaacs, the attorney for the plaintiff Solomons, in the street, and told him he might draw the assignment in his name and attend to it for him. He refunded the amount paid on the 30th of June before he went to see about the assignment at the office of Isaacs. The defendant’s attorney testified that he handed the assignment to Solomons the day after it was executed; that Russell’s name was not in it when • it was executed, and that it was left blank at the request of Solomons. He did not think Russell’s name was then mentioned. Isaacs also did not recollect having mentioned Russell’s name before he gave the check. Solomons, in giving such check to his attorney, stated that he lent it to Russell, who was not present. It was impossible to have found Russell in time to pay such money before the hour fixed. Russell testified that when Solomons wanted him to purchase the judgment, he told him that it would be necessary to pay some costs, and Russell, in reply, told Solomons if he were not on hand, to pay it, and he would refund it. He also, after stating that Solomons asked him to “purchase the assignment,’’ on the 29th or 30th of June, said that “it was in the hands of Mr. Isaacs, It was at Isaac’s pffiee,” where he “called in special relation to that matter;” also that after paying Hewman' & Solomons the amount paid by them, which was on the 30th of June, he asked where he “could see the '¡paperf and Solomons said “it was with Isaacs.”
    G. W. Stevens, for the plaintiff Cahn, appellant.

      W. S. Arnoux, for the defendant, respondent.
   By the Court, Robertson, Ch. J.

The order of reference made in this case did not dispose of the original motion, nor did it authorize the referee to decide any thing bearing on its merits. It only authorized him to take testimony and report his opinion as to one fact, to wit, payment by the plaintiff Solomons of the judgment in question. He, however; thought proper to pass upon another fact beyond the scope of his authority, to wit, a purchase of such judgment by the claimant Russell. The original motion, therefore, still remaining pending and undetermined, the order appealed from was made, based, as appears by its recital, solely on the report of the referee, without regard to the original affidavits, and reciting that the facts, as found or stated by the referee, “satisfactorily appeared” to the court from such report. It was evidently an oversight or error to pass upon the merits of the motion without considering all the papers upon which it was founded. That alone would justify the vacation of the order appealed from, accompanied • by a direction that the motion be reheard on all the papers. But as we have before us all the evidence upon which it could be reheard, it is not improper for us to examine it upon its merits, and make whatever order should properly have been made at special term.

As this case turns on the question whether Russell became virtually assignee of the judgment in question at the time of the delivery of the assignment of it to Mr. Isaacs, and the payment by the latter of the same amount as was due on it to the defendant’s attorney, it is necessary to scrutinize the testimony bearing on that question. In order to render Russell such assignee, it was at least necessary that he should have agreed to become so, and to have paid the necessary sum, before the assignment was delivered and the money paid to the defendant’s attorney; since from such agreement alone could have been derived any authority possessed by Isaacs to borrow the money for Russell from golomons, to pay it to the defendant’s attorney, and take the assignment in Russell’s name. Taking .an assignment in blank, and subsequently, by agreement, filling it up with Russell’s name, would not legally make him an assignee after the real debtor had, under the coercion of a levy, actually paid the amount. The latter could not take a blank assignment so as to make any one assignee whom he after-wards should select for the purpose. The judgment could not so be kept alive after being satisfied in law.

I think the weight of the evidence before us establishes that it was not until after the payment of the amount of the judgment to Adams, and the execution of the assignment, that Russell agreed to become assignee.

[After scrutinizing other evidence upon the time when Russell agreed to become assignee, the court proceeded.]

I think it, therefore, very clear that although there may have existed an intention to procure an assignee, the decision of the motion came by surprise, so that the plaintiff Solomons had no time to procure the assent of Russell to become assignee, although he may have believed that, as a friend, he would become so; that the assignment was accepted and executed in blank, with the design of filling it up with the name of whoever might become assignee in case Russell declined; that Solomons, believing he retained the right of transferring the judgment by means of the blank assignment, requested Russell to by it, and not the judgment, informing him that the paper was at the office of Mr. Isaacs; that Russell did so by refunding the money Solomons had paid, and afterwards, first seeing Mr. Isaacs casually in the street, asked him to make him the assignee, and then called on him for the paper. This reconciles all the apparent contradictions in the testimony.

How far any one is authorized by law to insert a name in a blank assignment, after it had been acknowledged before an officer without it, so as to make the assignor covenant, under seal, with a person whom he did not know would be the assignee, as to the amount due on such judgment, it is not necessary now to decide; nor is it necessary to pass upon the effect of the exceptions in the assignment, or the actual levy upon the property of Solomons. It is enough that at the time of the payment of the judgment by him, no one had agreed to become assignee of it and' pay the purchase money therefor.

The order appealed from must therefore be reversed, and the execution issued in favor of Russell, the supposed assignee, set aside.


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

text:
    William Hicenbothem, plaintiff and respondent, vs. Abraham Lowenbein, defendant and appellant.
    A plaintiff has a right to consider two simultaneous injuries to property one cause of action; and if he does nothing to separate them, in his complaint, but alleges that they were done at the same time, if they are of the same character, and the defendant has treated them in his defense as one cause of action, there is no reason for separating them, at the trial, or in the verdict or judgment.
    (Before Robertson, Ch. J., and Barbour and Jones, JJ.)
    Heard June 14, 1866;
    decided April 1, 1867.
    This was an appeal from an order denying a motion made on "behalf of the defendant. (1.) To amend the verdict rendered in the action, or the entry thereof in the minutes, and give the defendant judgment according to such amended verdict. (2.) To have the costs of each party adjusted in his favor; to compel the plaintiff to enter judgment for such costs, and after offsetting such costs and the amount óf the verdict against each other, allow execution for the excess to the party entitled thereto. (3.) For general relief. The complaint contained four numbered paragraphs: One, setting out the peaceful occupation by the plaintiff* of certain premises, with a workshop thereon, containing certain chattels. The next, the violent throwing by the defendant of such chattels into the street and injuring them. Thirdly, the expulsion by the plaintiff of the defendant on the same occasion from such workshop, and his conversion of it (not being a fixture) to his own use.
    The answer, besides controverting all the facts -set out in the complaint, (except the possession by the plaintiff of the premises in question,) set up two defenses to what it termed “ the cause of action ” in the complaint, to wit, the issuing of a warrant of dispossession of the plaintiff, his unlawful and the defendant’s rightful possession, and the performance of the acts set out in the complaint in pursuance of such warrant and right.
    On the trial, the defendant’s liability for the removal of the property alleged in the complaint to have been injured, was made to depend upon the jury’s belief of his interference with the officer executing the warrant, and for the conversion of the building, upon the jury’s opinion of its capability of being removed without injury to the freehold.
    According to the affidavits of the foreman of the jury himself, (Platt,) of the acting clerk of the court, (Reid,) two witnesses, (Welsh and D. Hicenbothem,) and the plaintiff’s counsel, which substantially coincided, such foreman, after announcing that the jury had agreed, stated that they found for the plaintiff “for the conversion of the shop, and valued it at forty dollars.”- Upon being asked if they intended to allow interest on that sum, the jurors answered affirmatively, and it was then computed at twenty-eight dollars. The plaintiff’s counsel then claimed such verdict to be a general one for the plaintiff, and the court directed it so to be entered. The acting clerk then so entered it, and asked such jury if that was their verdict, and they assented thereto. Two of the jury (Capin and Roome) deposed that the verdict rendered was a general verdict for the plaintiff, for the value of the workshop ($40) and interest (28.) The foreman of such jury and five of the jurors, (Miler, Judson, Terry, Haydoek and JPolhamus,) and three witnesses, ( Welsh, and W. and R. Hicenbothem,) deposed that nothing was said by them, or any one, as to rendering a verdict for the defendant.
    The affidavit of the defendant’s counsel, (Mr. Dyett,) stated that the jury, upon being asked for their verdict, said “we find.that the building belonged to the plaintiff, and that it was worth forty dollars, and as to the rest of the case we find no damages.” That the plaintiff’s counsel claimed interest on such value, and while the foreman was calculating it the defendant’s counsel claimed that the verdict “ should be for the plaintiff as to the first cause of action, and for the defendant as to the second cause of action.” That the court assented thereto, and directed the clerk so to enter it, who entered it as a verdict “ for the plaintiff on the first count, damages sixty-eight dollars, and for the defendant on the second count, and so read it to the presiding judge, who added, at the suggestion of the plaintiff’s counsel, “ a general verdict for the plaintiff for sixty-eight dollars,” which was entered by the clerk, and the whole read by him, when, on the suggestion of the deponent, the word “count” was'altered to “cause of action.” This affidavit was corroborated by that of the defendant and his attorney, (Mr. Morrison.) Seven of the jurors (Alburtus, Mahr, 1lay-dock, Polhamus, Corbett, Clarkson and Judson) stated in their affidavits, read on behalf of the defendant, that the verdict as rendered by such jury was for the defendant upon the alleged ground or cause of action for the removal of or injury to the propertyfrom the premises in controversy, and for the plaintiff for the detention of the workshop and its value. Four of the jurors so deposing, (Judson, Terry, Hay-dock and Polhamus,) in an affidavit subsequently made by them, state that they did not mean in such prior affidavits to be understood as swearing that they had rendered a verdict for the defendant, but merely that their verdict was for the conversion of the workshop; One juror (Miller) stated that in the jury room they agreed to find a verdict for the defendant for the property alleged to have been injured, but subsequently stated in another affidavit that the verdict rendered was a general verdict for the plaintiff.

    An addition procured by the defendant’s counsel on the day after the trial to be made by the clerk to the original minutes, as entered, was stricken out by order of the justice before whom the action was tried, upon hearing counsel for both parties. In the order made thereupon it is recited, that “ The jury in this action having found a verdict for the plaintiff, and having assessed the damages at the sum of $68, without any further or other finding, but pursuant to the instruction of said justice having stated that the said damages were for the conversion of the workshop mentioned in the com- ■ plaint in this action, whereupon the said justice directed the clerk to enter upon his minutes a general verdict for the plaintiff for the said sum óf $68.” The affidavit of the counsel for the plaintiff (Mr. Shaffer) stated that in order to avoid a new trial, in case of appeal, he asked the court to request the jury to state, in case of their finding for the plaintiff, for what the damages were awarded by them.”
    The present motion was then made and denied, with costs, from which denial an appeal was taken.

      A. R. Dyett, for the defendant, appellant.

      C. Shaffer, for the plaintiff, respondent.
   By the Court, Robertson, Ch. J.

The evidence in this case seems to me so clearly to preponderate against the finding by the jury formally of any verdict in favor of the defendant, that independently of any personal knowledge on the subject, the court at special term was justified in refusing to change the minutes. The jury were undoubtedly in his favor as to the injury to the chattels removed from the premises in question, but were restrained from so expressing themselves by the instruction of the court, that their verdict was equivalent to a general one for the plaintiff. The defendant is therefore not entitled to any relief, unless the complaint contains two causes of action, and the defendant was deprived of a verdict upon one in his favor by the action of the court. Even, however, if there were two causes of action, if there were no question of costs, the court ought not to grant a new trial, since no objection was taken at the time to such direction of the court. (Pentz v. Sackett, Hill and Denio’s Supp. 113.) The answer in this case speaks of but one cause of action in the complaint, and put in two defenses to all the acts alleged in the complaint, jointly. The complaint sets forth the destruction of some, and the simultaneous conversion of other personal property of the plaintiff. Possibly the plaintiff might have commenced two separate actions for the goods injured and the chattels carried away as formerly, an action of trespass and one of trover; but both could properly come in under the head of “ alia enormia ” in an action of trespass “ de bonis asportatis.” Possibly, also, the defendant by his defenses might have divided them, by showing that the chattels converted were lawfully in his own possession when he converted them, or their possession not obtained by the same trespass, in committing which he threw the goods in the street; The plaintiff has not taken any ordinary mode of earmarking the different unlawful acts claimed by the defendant to be separate causes of action, although the nineteenth general court rule requires them/to be separately stated and plainly numbered, if intended to be separate. \ The mode of separating causes of action seems to be very indeterminate. (Hall v. McKechnie, 22 Barb. 244.) As the plaintiff had a right to consider two simultaneous injuries one cause of action, and has done nothing to separate them in his complaint, but has alleged they were done at the same time, as they are of the same character, and the defendant has treated them in his defense as one cause of action, I think there was no reason for separating them at the trial in the verdict or judgment.

The order was correct, and should be affirmed, with costs.

Jones, J.

When a verdict, either through fraud, mistake or negligence, is rendered contrary to the fact, the court may interfere and correct the verdict, so as to accord with the fact. In no other case can it interfere, except to set aside the verdict, and either render judgment absolute the other way or grant a new trial, upon a motion for a new trial or on an appeal from the judgment entered on the verdict.

The only question then presented in this case is, whether the record of the verdict accords with the fact. The affidavits clearly show that when the jury returned into court, after having retired to consult, they in the first place announced their verdict as follows: “ We find a verdict for the plaintiff for the conversion of the shop, and' value the same at $40.” Upon being asked whether they intended to allow interest on that sum, they said, “we do,” and thereupon, computed the interest and found it to be $28. The presiding judge then directed the clerk to enter the verdict as a verdict for the plaintiff for $68. The clerk did so enter it, and then said to the jury, according to the invariable practice of all courts of record: • “ Gentlemen of the jury, hearken to your verdict as it stands recorded. Tou say you find a verdict for the plaintiff, and assess his damages at $68, and so say you all.” The jury then assented to this record as being a correct record of the verdict which they, under the instruction of the court as to the effect of the verdict first announced, rendered. It follows that the subsequent alteration of the rendered verdict, by the clerk, was wholly unauthorized, and that the subsequent striking out of the alteration, and denial of the motion to re-insert it, were correct.

It is unnecessary here to consider whether the judge was correct in deciding that the verdict as announced was in legal effect a general verdict for the plaintiff. That decis-, ion was made in the course of the trial, and can only be reviewed in the same manner as a decision admitting or excluding evidence. I say the decision was made in the course of the trial, for the trial continues up to and until the verdict is récorded; and the decision in question was made before the verdict was recorded. Whether that decision can be reviewed without an exception having been taken to it; and if it cannot, whether the defendant can by some other motion put himself in a position to review that decision, are questions which do not properly arise on this appeal.

With the denial of that part of the motion which seeks to have the verdict as now recorded amended, the rest of the motion falls.

The order should be affirmed, with costs,


text:
    Catharine Gori, plaintiff and appellant, vs. Alfred C. Smith, Jun., defendant and respondent.
    1. An order for an allowance in addition to costs is appealable.
    2. A motion for such an order cannot be made without some evidence by affidavit or otherwise showing moneys actually expended, or liabilities incurred, by the party; or time and labor consumed by Ms counsel or servants; the time spent on the trial; the number of trials and postponements and of arguments at a general term; and whether a long account was involved, and the like; so that the grounds of the decision may appear, on an appeal.
    (Before Robertson, Ch. J., and McCunn and Jones, JJ.)
    Heard March 12, 1866;
    decided April 1, 1867.
    This was an appeal from an order allowing the defendant five per cent on the amount of the plaintiff’s claim. The only papers produced on the appeal, as those on which the motion was heard, were the pleadings in the action. The order did not recite that any papers were used on the motion. It was made by the justice before whom the action was tried, after hearing counsel on both sides. The complaint claimed twenty thousand dollars damages for non-completion of a contract for the purchase of lands, and the defendant, in his answer, besides setting up a defense, set up a counter-claim for twenty thousand dollars damages for non-performance of such contract by the plaintiff, on which the plaintiff took issue by a reply.

      J. F. Daly, for the plaintiff, appellant.

      D. F. Hatch, for the defendant, respondent.
   By the Court, Robertson, Ch. J.

The Court of Appeals having held in the case óf The People v. The N. Y. Central Railroad Co., (referred to in S. C. in 30 How. Rep. 149,) that an order for an allowance in addition to costs was appealable, it becomes necessary that the facts on which the motion for them is made should be presented'in such a mode as to have them passed upon by an appellate court on appeal. The principle announced was, that “an order which peremptorily and finally charged a party with the payment of a sum of money more than he ought to pay, affected his rights not merely in form but substance also.” In the same case, upon its return to the Supreme Court, it was suggested by that court (ubi sup.) that parties claiming any additional sum ought to furnish the court with some specific facts, such as moneys actually expended, or liabilities incurred by them, or time and labor consumed by their counsel or servants, the time consumed on the trial, the number of trials and postponements, and of arguments at a general term, and whether a long account was involved or a reference had. The presiding justice (Brown) added, that without them the court could not “ form an intelligent and satisfactory estimate of the sum to be awarded as a compensation and indemnity for the unusual and extraordinary character of the litigation.” The special term order was reversed in that case, simply because it was supposed to cover services after the entry of judgment in that court.

The 52d general rule -of court, it is true, provides that the application can only be made to the court before which the .trial is had or the judgment rendered. This has been supposed to mean the judge, but without reason ; it is evidently meant to exclude appellate courts only, as judgment is rendered by a court, not by a judge, and “which” does not properly apply to a person. But even if it did mean the judge, the only object was to enable him to determine the proper amount, as to which his discretion is final.' (Cook v. Dickenson, 5 Sandf. 663. Dickson v. McElwain, 7 How. Pr. 139.) It could never mean that such a motion was tó be determined solely upon the judge’s own personal knowledge alone. In which case neither the ■counsel making nor the one resisting would know on what facts to argue, nor would the grounds of the decision appear. On an appeal, unless a statement was made by the judge before whom the motion was made, of what he considered to be facts in the case, the appeal would be nugatory, and the making of such statements would lead to unseemly contests between the bench and the bar, as to what had taken place on the trial or in the action.

I think, therefore, such motions cannot be made without some affidavits containing facts of the kind suggested . in the case first cited, (People v. Central Railroad, ubi sup.) so that the grounds of the decision may appear on an appeal. In the present case nothing of the kind appears; it does not even appear by the papers before us that a trial has been had, or in whose favor judgment has been rendered, or what disposition was made of the defendant’s counter-claim. After such counter-claim was made and replied to, the plaintiff could not discontinue without the defendant’s consent, (Cockle v. Underwood, 3 Ruer, 676,) nor could the defendant withdraw his counter-claim without the plaintiff’s consent. If it was litigated and the defendant was defeated, it would be hard to charge the plaintiff with any part of the allowance for that branch of the litigation, and it would be equitable to take it into consideration in .fixing the allowance to the defendants. In any event, I think the order was made on insufficient papers, and should be reversed, without costs on the merits, with privilege to renew on other papers. A separate motion was made to dismiss the appeal upon the ground that the order was not appealable; that motion must be denied, with seven dollars costs to the plaintiff.


author: By the Court, Garvin, J.

text:
    Sarah F. Hogle, plaintiff and respondent, vs. The Guardian Life Insurance Company, defendants and appellants.
    1. The term “ assured,” in a policy of life insurance, obtained by the person whose life is insured, for the benefit of another, is to be construed as intended to designate the person for whose benefit the policy is obtained, and not him whose life is insured.
    2. Hence, notwithstanding the loss is, by the terms of the policy, payable “ to the assured, his executors, administrators and assigns,” the person for whose benefit the insurance was effected, can maintain an action upon the policy; she being the real party in interest.
    3. In such a case the question whether the person for whose benefit the policy is obtained has an insurable interest in the life of the person insured does not and cannot arise. '
    4. Any person has the right to insure his own life, though he does it for the benefit of another; and he may have the loss payable to the assured, or to his own assignee or appointee.
    5. A policy of insurance effected by a person upon his own life may be disposed of as the insured sees fit.
    6. Where an applicant for insurance upon his own life, stated, in his application, that he had never had any “serious illness,” except a fever, seven years before; Seld that this was to be deemed the mere expression of an opinion as to the character of a more recent illness, and was neither a warranty nor a misrepresentation.
    7. A statement made by the applicant, in answer to a question put by the examining physician, as to the condition of certain internal organs, will not be deemed a misrepresentation, where it appears that the insurers did not rely upon what the applicant told the physician, but on the physician’s report, as embodying his professional opinion, not the applicant’s statements.
    8. The finding of a referee upon the question of fact as to the serious character of an illness, founded on conflicting evidence, should, like the verdict of a jury, be regarded as conclusive.
    (Before Monell, Garvin and Jones, JJ.)
    Heard —, 1868;
    decided May —, 1868.

      Appeal from a judgment entered upon the report of a referee.
    The case shows that on the 6th of September, 1866, Effingham H. Warner, sixty-six years old, insured his life for the benefit of his daughter, (the plaintiff,) with the defendants, for the sum of $10,000. In 1866 Warner had an attack from which he was quite sick. On the 30th of August he presented himself to the physician of the Equitable Insurance Company for re-examination, (having before been examined and passed by him in the spring of 1866.) He was passed, and took a policy of $10,000 for the benefit of his wife. On or about the 6th of September, 1866, when and before Warner applied to the defendants for insurance, he was examined by Dr. McFarland, one of the defendants’ examining physicians, and he declined to certify to his good health, and refused to pass him. An insurance agent had him examined by another of the defendants’ examining physicians; that physician passed him, and the defendants insured him for $10,000. The insured was taken sick in November, 1866, and never recovesed. He died in February, 1867.
    ■ It is claimed that the deceased incorrectly answered questions 21,10,12 and 15. It is also claimed by the defendants that the August sickness was a serious illness. The referee reported in favor of the plaintiff, for the amount of the policy, less the amount of a note given for a part of the premium, upon which report judgment was entered.
    It is not claimed that Warner incorrectly answered any of the interrogatories put to him, when examined for this insurance, in regard to the particulars of his health, history, &c., excepting that numbered 21, which is, “Have you ever had any,serious illness or personal injury?” “No—fever seven years ago.” The other answers to 10,12 and 15 were made by the medical examiner of the defendants, after an examination of Warner; and the examiner states that Warner answered the questions put by him, which answers he, the examiner, adopted as his own, in his report to the company.

      Livingston K. Miller and Wheeler H. Peckham, for the appellants.

      Mr. Walden, for the respondents.
   By the Court, Garvin, J.

This action is brought by the daughter of E. H. Warner, who himself procured his life to be insured for $10,000. The defendants insist that inasmuch as the loss is payable to the assured, his executors, administrators and assigns, the plaintiff cannot maintain this action. The parties are bound by the contract found in the policy. The defendánts agree, in consideration of the premium paid and to be paid, to insure him in the sum of $10,000, for the period of his natural life.

Sixty days after notice and proof of his death, the defendants. agreed to pay the assured, his executors, &c., the sum assured. It is expressed on the policy to be for the plaintiff’s benefit. If “ assured” means the plaintiff, she can maintain this action. The objection is put upon the language of the policy and its legal import. Let us see. It is for her benefit. No one can recover the sum assured until after his death. Subsequent to that event he cannot sue. The fruits of the contract are solely hers. Upon these facts she certainly can maintain the action, unless there is some legal rule which prevents it. She is the party in interest. The meaning of the term “ assured” is to be derived from "the connection. In reinsurance it is applied to the party that has already taken a risk as- insurer ; not to the assured in the original policy. (Carrington v. The Commercial Ins. Co., 1 Bosw. 152.) In this case, not to the person whose life is insured, but to the plaintiff, for whose benefit it was made. The father made the contract. The daughter was to have the fruits. Thus in terms it must refer to the plaintiff, and cannot be applied to the deceased. But it is said Ms,” immediately following “ assured,” qualifies and controls the meaning. This is plausible and ingenious, and upon the argument made some impression upon my’mind. But I think it is overturned both by reason and authority. In Church v. Hubbart, (2 Cranch, 187,) the objection was taken that the action was brought in the name of John B. Church, Jr., when the contract was made with John B. Church. Justice Cushing, who tried the case at circuit, says: “ From the evidence, it is plain the policy was for the son; the property of ship and cargo is proved to be in the plaintiff;” thus establishing the principle that where there are divers persons answering to the description of the assured, the policy is applied to the interest of the party for whom it was intended. (1 Phillips on Insurance, § 411.) It is also laid down in Reynolds on Life Insurance (§ 22) that the “ assured” is the person who is to receive the benefit of the insurance. We must therefore assume that the promise was to pay the plaintiff, which brings the case within all the authorities. The contract was with Warner, whose life was insured for her benefit, and the promise is to pay her. The action is properly brought in her name, (Lawrence v. Fox, 20 N. Y. Rep. 268;) but whether this is so or not, the plaintiff is the real party in interest, and can maintain the action. {Code, § 111.) The insurance was effected by Warner. He applied for it, paid the premium, took all the initiatory steps for proving it. It was delivered to Warner, and nothing is clearer than that Warner could make the loss payable to whom he pleased. He did so, making it payable to her. Therefore the question of whether she had an insurable interest in the -life of her father does not and cannot arise. Any person has a right to insure his own life, though he does it for the benefit of another. (Rawls v. The American Mutual Life Ins. Co., 27 N. Y. Rep. 282.) . He may have the loss payable to the assured, or to his own assignee or appointee ; and whichever be the form, Ms interest in Ms own life is the same. There is therefore no question as to the plaintiff’s interest in his life. . That question does not arise. (13 N. Y. Rep. 31. 23 id. 516.) * A policy of insurance effected upon one’s own life may be disposed of as the insured sees fit. It is not material that the . beneficiary, appointee or assignee have an interest in the life of the insured, at the inception of the policy. A valid policy, once made, it so remains, if the conditions are complied with. (20 N. Y. Rep. 32.) On the termination of the life, the sum insured is payable absolutely. (27 id. 290.)

This brings us to the main question in the case, and the one which the defendants urged, upon the argument, with great firmness and resolution. It is claimed by the defendants that Warner misrepresented the facts as to his August sickness, and untruly represented that certain of his organs properly performed their functions. These -misrepresentations are based upon a statement made by Warner to the company, in his application, that he had never had any serious illness, except fever seven years before, and that the functions of the abdominal and urinary organs were properly performed. The last statement, was made in answer to a question put by the examining physician.

It can hardly be said, in regard to the last statement, that it was a misrepresentation, taking into account all the evidence in the case. The company did not rely upon what Warner told the doctor, but on the doctor’s report, which is supposed to embody his opinion, not the patient’s statements. The defendants could have put the questions and taken Warner’s answers, but their object and design was to obtain a professional opinion. As such, his answers must be taken and regai’ded by us. It was the doctor’s duty to make such personal examination of Warner as to satisfy himself he was answering to the defendants. This we must presume he did. He was in the defendants’ employ, and was bound conscientiously—as he doubtless did—to discharge his trust. The doctor says (after describing his height and complexion) “ he had a healthy appearance, and was a well preserved man of his age. If he had been feeble, I should have remarked it, and should have examined as to its causethus showing that the doctor did more than take his mere answers, and was satisfied to answer as he did. This statement must be referred to the general condition of the specified organs, not to occasional and temporary derangements of the system, which are common to all. The very next question is in a form which, if addressed by the doctor to Warner in regard to the point under consideration, would have elicited a history of any and all difficulties of the organs in question, showing that question 10 was only intended to call for general information from the doctor, by the company, and not the past and present history of the functions referred to. But it appears as a matter of fact that the doctor was told at this interview that Warner had had colic. It is difficult to see how the physician could have been misled in his opinion, by the answers made to him by Warner, or the company in any way deceived. .

Again; was the August illness serious? Certain facts are not disputed. The statement was made by' Warner that he never had any “ serious illness,” (except of a fever, seven years before;) that he was ill in August, 1866; made the statement in September following, and died February 16, 1867. But where there is such abundant medical testimony to sustain the - interpretation given by the referee to the character of the August illness, taken in connection with the reasoning which must occur to the common mind for not regarding such an illness serious, we should be hardly justified in disturbing the judgment upon the ground that it was misrepresented. As a question of fact, the finding of the referee must be regarded as conclusive. It is true there is evidence on the part of the defendants of a -character which, taken alone and unanswered, would be entirely controlling against this view of the case; but the decision of the referee, like the verdict of a jury," should' not be disturbed, when founded upon conflicting evidence. There must be an end of litigation, and questions of fact can only be settled by adhering to this rule.

As to Warner’s answer in regard to the character of the August illness, it was the mere expression of an opinion, and was neither a warranty nor a misrepresentation. The sickness was recent, and therefore remembered; but if he did not consider it serious, it, in his opinion, did not call for an affirmative answer. Many persons do not call an illness serious which does not utterly prostrate them, for. the time being; if they are able to be about their house, are up from bed every day and dressed; more especially is it so with those whose business is in doors.

This may have been, and doubtless was, the opinion of Warner. In this opinion he is confirmed by his family physician, and several physicians who have testified upon the trial. We must therefore hold that Warner fully answered all the questions put to him; and having done so, he was not bound to go any further. (27 N. Y. Rep. 295.)

We think the cause has been well tried, and the judgment should be affirmed, with costs.

MEMORANDUM.

In the case of Johnson v. The Bank of North, America, (5th, Boh, 554,) it should have been stated that Moneil, J., dissented.