author: Robertson, Ch. J.

text:
    Catharine Jenkins, adm’x, and Thomas Gr. Wait, adm’r, &c. plaintiffs and respondents, vs. David E. Wheeler, defendant and appellant.
    1. Under an absolute covenant under seal, by the owner of a vessel, to pay the master thereof, as a compensation for taking charge of such vessel as such master, on a voyage from New York to Australia and back, a certain sum “ per month for each and every month,” without any condition that such payment should depend upon the completion of the voyage, or the vessel’s ability to perform it; HeM that the failure of the owner to have the vessel properly fitted for the voyage, by which such voyage was defeated, or any subsequent occurrence beyond the master’s control, which broke it up, would excuse him from performing it, and not impair his right to compensation during his Actual service as master of such vessel.
    2. If, in such a case, there is no qualification in the covenant of the owner’s liability, so as to make it depend upon the earning of freight by the vessel, the failure to earn it will not deprive the master of compensation,
    3. The phrase that “ freight is the mother of wages ” is not universally true, even in regard to seamen’s wages. Still less does it affect the compensation of the master of a vessel, which is not properly wages. His rights rest solely upon the terms of his contract, with which the earning of freight has nothing to do.

      4. Neither by the common or maritime law can any act of misconduct of the master, which does not go to the whole consideration for the promise to pay him—such as breaking up the voyage, or rendering it entirely unprofitable— deprive him entirely of his pay.
    5. Hence, where, in an action by the master, to recover his compensation, the court left the determination of the question whether “ the voyage was broken up by reason of the negligence, unskillfulness, fault or fraud of the captain,” to the jury, and instructed them if they found in the affirmative to find a verdict for the defendant, hut to deduct the amount of certain damages from any sum due the plaintiff, as well as damages caused by deviations from the original route, although they might not have contributed to the vessel’s loss, and even for any neglect to send home books and documents necessary to substantiate claims for insurance; Held that this was as favorable a charge for the defendant as he was entitled to.
    6. Where there was abundant evidence to show the unseaworthiness of a vessel at the time of her departure from New York, in the deficiency of spars, rigging, small boats, ballast and water, and evidence was offered, to show damage done to the vessel by a storm she encountered; of her being unfitted thereby, to go to sea from an intermediate port; of the unprofitableness of repairs, and the impossibility of procuring funds there for that purpose; of her survey, condemnation and consequent abandonment to the underwriters; and a sub- ' sequent sale of such vessel under the decree of a court of admiralty, in a suit brought by the crew for their wages; Held that all the facts which such evidence tended to prove must be assumed to have been found by the jury. If so, they perfectly justified the desertion of the vessel by the master.
    7. Where the efforts of a master of a vessel to raise money for repairs at an intermediate port were proved; Held that for that reason, as well as on account of the difficulty of procuring repairs at such port, and their exceeding, if made, one half of the value of the ship, the captain was justified in abandoning her to the underwriters, and acknowledging, in an action for the wages of the crew, that they were due.
    8. A refusal of the judge to charge absolutely, as matter of law, that certain deviations were fatal to the master’s right of recovery, was correct, and that the instruction given, which left the propriety of such deviations as a matter of fact for their consideration, was all the defendant was entitled to.
    9. All connection by the master, as such, with the vessel, ceases with its sale at an intermediate port. Any subsequent agency as to its proceeds, or the cargo or business connected with the voyage, ceases with his departure from such port, on his return home.
    10. After such sale he does not act as master, but as mere agent, with probably diminished services and responsibility. For such services he is only entitled to a reasonable compensation. He cannot recover pay for the time spent on a voyage home.
    (Before Robertson, Ch. J., and Garvin, J.)
    Heard November 14, 1866;
    decided April 8, 1867.
    This action was 'brought by the original plaintiff therein, (O. N. Jenkins,) now deceased, against the defendant (Wheeler) to recover the aggregate amount of a certain monthly-compensation ($150) agreed by the defendant by a covenant under his seal to be paid by him to the plaintiff for taking charge of a vessel, (the bark Peytona,) on a voyage from New York to Australia and back as her master, according to the •instructions then given to him by a third person, (Mr. Pelletier.) Such instructions contained minute directions as to a great many matters, such as the treatment of passengers ;
      stopping at the cape of Good Hope ; sales of liquors ; collection of bills ; preparations for the return voyage ; consignees ; care of the vessel; mistakes in bills of lading ; return cargo ; the crew ; the proceeds of the outward cargo and surplus provisions ; but nothing affecting the merits of this case. Indeed, the object of such instructions was stated therein “ to be not to bind down” the plaintiff “ to positive orders.” A postscript to them requested the plaintiff to keep Mr. Pelletier advised of any action or intended action by him.
    The vessel in question was built sharply on the keel, and was of about two hundred and seventy tons burden. Her iron ballast having been taken out of her, before sailing, she went to sea without enough, having one hundred and fifty passengers on board, and also a condenser for making fresh from salt water. After being out about two weeks, she deviated from her intended voyage and put into the port of Bahia (on the Northeasterly point of South America) to procure supplies of water, provisions and ballast, of which she was short. At that port some passengers died and others were taken on board, increasing the total number. Several passengers (Huff, Bridgman, Bailey and Thomas,') lent the plaintiff a certain sum ($1964) at that port, to enable him to procure supplies for and refit his vessel, and it was employed by him for the purpose. The bond which he executed to secure the re-payment of such loan was made payable with maritime interest in six days after such vessel arrived at Australia.
    After leaving Bahia such vessel was retarded in her course by head winds. Her water and provisions again failed, and she deviated a second time from her route to stop at Gape Town, at the cape of Good Hope, on the coast of Africa, in order to procure more supplies. After some stay there, for that purpose, and taking more passengers on board, she again sailed for her destination ; but meeting with a violent storm which carried away her rudder, some of her spars and part of one of her masts, and caused her to leak badly, she deviated' a third time from her route and put into Port Louis in the island of Mauritius, as the nearest port of a civilized country which she could reach.
    At such port the former plaintiff being unable to obtain money to refit such vessel and enable her to pursue her voyage, abandoned her to the underwriters and offered her for sale by the commercial agent of the United States, at that place, as their agent. Upon which, the obligees in the bottomry bond before mentioned, took proceedings therein, in an admiralty court, and caused such vessel to be seized by its process. But, two months after the commencement of suoh suit, and before any decree therein, the crew of such vessel libelled it in the same court in a suit to recover their wages. Under a decree of sale by such court in the last suit the vessel was sold and the proceeds paid into court. The former plaintiff was subsequently defaulted finally in the suit of the holders of the bottomry bond, but not until the very day such proceeds were so paid into court. After remaining six months at Port Louis endeavoring to settle the affairs of the vessel and get away, the plaintiff returned to New York, where he arrived at the end of an additional five months.
    The answer set up as defenses four matters, First. Mere agency for others by the defendant, in executing the covenant in question and the plaintiff's knowledge of that fact. Second. Various delinquencies of the plaintiff, as master, whereby the owners lost the ship and cargo. Third. The failure of the plaintiff to take such vessel to Australia and bring her back. Fourth. The failure of such vessel to earn any freight. Such answer also controverted certain allegations in the complaint as to a storm encountered by the vessel in question, its consequences, the plaintiff's diligence and skill in navigating her, and the proximity to Por Louis to the place of such storms, and also certain others as to the condition of the vessel on arriving at such port: the propriety and fact of abandoning her \ the seizure of her under the proceeding to enforce payment of .the bottomry bond, and the plaintiff’s defense of such suit. It averred that such vessel was not liable to seizure for non-payment of such bond, because it was not payable until six days after her arrival in Australia, and denied either that the plaintiff ever exercised or continued to exercise proper care in saving and protecting such vessel and cargo, or only remained so long at Mauritius as was necessary. And controverted his readiness to complete the voyage of the ship had she not become unseaworthy.
    The delinquencies of the plaintiff set up in the answer as causes for forfeiting his right to compensation, were as follows:
    1. An omission properly to use a water condenser on board.
    2. Putting into the port of Bahia.
    3. Taking in more passengers at that port so as to exceed the legal number, and incurring the risk of her forfeiture thereby.
    4. Putting into Cape Town and taking in, while there, more passengers.
    5. Omitting to defend the action on the bottomry bond.
    6. General neglect of duty, whereby such vessel was lost to the owners.
    7. Abandonment of such vessel and voyage before her arrival at Australia.
    None of the pleadings referred to any sale of the vessel, or any suit by the crew for wages, or any neglect of the plaintiff in defending any suit, except that the complaint alleged, and the answer denied, that the plaintiff defended the suit on the bottomry bond, to the best of his means and ability.
    The second officer of the vessel, afterwards promoted to be her first, (Grant,) testified that “she did not have water enough on board,” on sailing from New York. “She had too many passengers ; she was not fitted in regard to having spare spars or boats ; she had only two small boats, and one was in a bad condition.” “ She was light ” in respect to ballast, “which affected her very much in sailing.” They “could not carry much sail on her in a strong breeze; if they did, it threw her on her beam ends.” A passenger (Harris) also testified, that “ she laid over very much on one side.” A shipmaster (Webster) testified that “she was pretty sharp, and had not a great deal of room down below ; * she was leveled off with pig iron; the bottom part was filled with it, but it was taken out before she went to sea.” Grant also testified that they had “ pretty bad weather * * along first out; this blow lasted from twenty-four to thirty hours.” She commenced to leak some before “they arrived at Bahia.” He further testified that they directed their course to that place “ as soon as they got short of water,” when the passengers were put on short allowance, upon which they might have remained at sea thirty or thirty-five days longer. The vegetables on board only lasted a month after their departure. When they put the passengers on short allowance, three water casks below were empty, and the water of most of those on deck had been used out. Half of the contents of two water tanks below were gone, and only three casks remained filled with water. Harris testified further that they had a very long passage from Bahia, having mostly head winds, and went into Cape Town for water and fresh provisions, on the urgency of the passengers, who were apprehensive on account of the length of the voyage. Grant testified that they had calms on that part of their voyage, and light variable winds, and put into Cape Town for want of water. None of this testimony was contradicted.
    According to the statement of Harris, the vessel encountered heavy winds after leaving Cape Town, and lost her rudder. According to that of Grant she had also carried away her spars, jibboom and foretop-gallant-mast, had her boats stove, and lost overboard some spars, leaked very badly, and lay four or five days in the trough of the sea, before the weather suited to get steerage way on her, and she was in a very bad condition for continuing her voyage to Australia. It was as much as they could do to reach Mauritius. They were put on a short allowance of water. This testimony was also uncontradicted.
    A master of a vessel (Webster) testified ■ that Mauritius would be the most proper port to put into if a disaster occurred to a vessel in summer, and she was disabled a week ' after she was out a week from Cape Town. Grant testified “ that Mauritius was the nearest port.” They “ might have gone into Madagascar, but could have done nothing or got nothing if” they “ had gone there. Mauritius was the nearest civilized port.” No testimony was offered to contradict such statements.
    On her arrival at Port Louis, the vessel was surveyed, as was testified to by one of the surveyors, (Captain Winsor,) by himself, the captain of the port (Russell) and the American consul, (Farnham.) She was then in a crippled condition, and required extensive repairs. The rudder was broken ; she needed caulking all over, sails and rigging. The leak was a general one. The surveyors recommended the former plaintiff to land his cargo. Grant testified that it would have cost from ten to twelve thousand dollars to have repaired her, paid. the passengers’ board, and bought the necessary provisions at Port Louis, and that the captain advertised for from ten to twelve thousand dollars on a bottomry bond to repair her. Cajjtain Winsor testified that he also saw the advertisement, but the master “ could not have raised money to pay for his repairs and materials.” Nobody “ would have lent the money and taken the vessel.” It would not “ have been expedient for him to have done so, for * the repairs, &c. would have cost more than she was worth, and with all those passengers, she could not have gone to sea, without being put in a very good condition.” Grant further stated, there was no possibility of the captain’s raising money in the position in which he was. There was no contradictory testimony upon any of these points.
    Harris (the passenger) testified that the captain published a notice in the newspapers in Port Louis, announcing the abandonment of the vessel to the underwriters, for want of means to prosecute the voyage, in consequence of which she was to be sold, which notice was signed by the American commercial agent at such port, (Farnham.) Grant corroborates such statement, and there was no testimony to contradict it. A statement in a letter from the United States consul (admitted in evidence by consent) alleged that on the ninth of September, 1853, a notice was published, stating that an act of abandonment of the vessel had been made by the master, and in the same month part of the cargo of the vessel^ being damaged, was sold. All of which was uncontradicted. The vessel was seized on admiralty process in September, 1853, and a suit was instituted in November, Í853, by several of the crew of such vessel, and, as appears by the record of the court, of admiralty in which it was brought, read in evidence by consent,) the captain appeared to such action “ pursuant to a warrant of arrest served upon him by the marshal of the court,” and signed an admission that it was “ utterly impossible for him to pay the several sums specified, which he confessed to be lawfully due to such seamen.” Upon which a decree of sale was made in such action, and such vessel sold for about $9500 in November or December, 1853, and the. proceeds paid into court.
    The captain remained in Port Louis after selling part of the cargo and storing the rest, trying to arrange his business and get home, for which he left in May, 1854, and where he arrived in October, 1854. He demanded of the commercial agent who was acting as consul, to whom he had previously surrendered them, his log-book and other papers, which were refused. Harris (the passenger) testified that the first time the condenser was tried, before the deviation to Bahia, it wouldn’t work, and the attempt was made two or three days in succession. They couldn’t get much. About half a ban-el altogether. “ The inside” of it “had become incrusted with salt, and the whole apparatus * * so warped, that it would not operate.” Another witness, (Williams,) a shipmaster introduced by the defendant, testified (on his cross-examination) that condensers •“ were made too thin, and so small that,” in a gale of wind, they would “ teem over” and have “ no water in one end; ” also, that “ the salt collected in them, and they required cleaning once a week.” * “ In hard weather, when the ship rolled, they would not condense,” and when “ she lay over, they would not have water in their bottoms, and would crack by the heat.” And further, that he would not trust one, that held seventy or eighty gallons.
    •The defendant’s counsel requested the court to instruct the jury, that if the defendant is responsible for the captain’s wages, under the agreement in question, he is entitled as against the plaintiff or his intestate to all the rights of owner of the vessel called the Peytona.
    He also requested him to instruct the jury that the plaintiffs could not recover in either of the following cases :
    I. If the defendant, when he signed the agreement mentioned in the pleadings, was an agent only, and not a principal or beneficially or personally interested, and signed said agreement as such agent, and not otherwise, and the same was at the-same time well known to Jenkins.
    II. If full performance of the agreement in question, on the part of Captain Jenkins, was not prevented by inevitable accident, or the act of God, or of the defendant, and that such agreement was not fully performed.
    III. If Jenkins deviated from the direct and usual route, from New York to Australia, without necessity.
    IV. If the master, with the ship and cargo, remained in the ports either of Bahia or Cape Town a longer time than was absolutely necessary for him to obtain the supplies necessary.
    V. If, during either of the deviations, any damage or'injury occurred to either ship or cargo.
    YI. If the storm which caused the damage to the ship and cargo was encountered in consequence of either of the before mentioned deviations.
    VII. . The want of water was no excuse for any deviation, if the condenser was capable of producing water enough for the persons on board and was a proper and usual machine for vessels of the class and in the trade of the Peytona.
    VIII. If the port of Port Louis in Mauritius was not the nearest and best port or harbor to make, after the vessel met with the disaster of the Cape of Good Hope.
    IX. If the master was guilty of any violation or disregard of his instructions or duty, tending to the injury of the owners or subjecting their property to unnecessary hazard.
    X. If Capt. Jenkins failed to account for the proceeds of the sale of the vessel at Mauritius.

      XI. If the master did not avail himself of all means in his power to defend the vessel from seizure and condemnation, either on the bottomry bond, or for seaman’s wages, but by his default, neglect ór confession permitted judgment of condemnation to pass against the vessel.
    And the counsel for the defendants further requested the. court to instruct the jury that the master was guilty of violation of duty in the following contingencies :
    I. If he offered the ship or cargo for sale in the Island of Mauritius, without necessity.
    II. If he omitted to take all the measures in his power for the protection of the avails of the ship and cargo for the owners.
    III. 'If he omitted to transmit in due season to the owners the proper evidence of an abandonment to the underwriters of the ship or cargo.
    IV. If he omitted to render to the defendant or the owners, an account of the proceeds of the bottomry bond, and of the moneys received from passengers or from ship and cargo.
    V. If he omitted to forward to the owners a due account of the proceedings on the seizure in the island of Mauritius.
    And thereupon the court instructed the jury that the plaintiffs were entitled to recover of the defendant one hundred and fifty dollars a month from February 8, 1853, to November 25, 1853, and for such further period of time as would be reasonably required for Captain Jenkins to return to New York from Mauritius, by .the first usual mode of conveyance that presented itself after November 25, 1853, with interest on the aggregate amount from February 14, 1855, unless the voyage had been broken up through the unskillfulness, negligence, fault or fraud of Captain Jenkins, in which event the defendant would be entitled to a verdict. Or unless some damage' had accrued to the defendant from the fault, negligence, unskillness, or fraud of the captain in the line of his duty.' But if they found, either that the captain could not procure sufficient means to repair the vessel, or if he could, that it was not for the best interests of the owner to have the repairs made at Mauritius, then the captain was justified in abandoning the vessel and advertising her for sale. In either of those cases the- bottomry bond and the • seamen’s wages became due, and neither the abandonment nor advertisement for sale, nor the proceedings in court or the sale of the vessel, afforded any excuse for non-payment of the captain’s wages.”
    The judge further instructed them in substance; that if, taking “ into consideration the age, character, condition and value of the vessel and the cost of repairs,” and the other facts proved “in the case, means could have been raised for making those repairs at Port Louis, and it was for the best interest of all parties interested in such ship and cargo, that such repairs should have been made at Mauritius, that disposed of the case in favor of the defendantbut even if they came to the contrary conclusion, they would still find a verdict for the defendant, if both the captain deviated, without just cause, from the proper course for the prosecution of his voyage, or remained longer than was necessary, and those things contributed to the final disaster, although not otherwise. That they were to • decide, whether any deficiency of water or ballast existed, and if so, whether, in the judgment of prudent men, such deficiency was sufficient to warrant such deviations, and in determining that, they would consider the fact of the presence of the condenser on board, its condition and capacity. If “ in good working order, and capable of supplying fresh water for the passengers, and they were in general use in 1853, the captain was bound to know how to use it, and there could have been no necessity for putting into port to obtain water.” But the condition and capacity of the condenser in question, and the generality of use of such condensers was for them to consider.
    He further instructed such jury in substance, that although they might find for the plaintiffs, upon the impracticability of repairing at Mauritius and the necessity of deviating on the voyage, they should still determine, whether any and what damage had occurred to the owners by the fault, negligence or unskillfulness of the captain, and deduct the amount from what he would otherwise he entitled to recover. That if the deviations complained of were unavoidable, the defendant was not entitled to damages therefor. But even if not so, and although they might not have contributed to the encounter' with the gale, yet if any other damages accrued therefrom, except the loss, they were to be deducted. That no damages could he brought against the captain, for any thing that occurred after the discovery of his inability to procure money to make repairs at Mauritius, and the unprofitableness to the owners of making them.
    He further instructed the jury, that if the captain neglected, without any excuse, to send on the proper means of information to entitle the owners to recover their insurance, then, whatever damage they might find the owners suffered by reason of that neglect, they should deduct from the amount stated in the beginning of such charge, as that which the plaintiffs were entitled to recover, and that they should inquire whether there was any reason why he could not send it on. To which last instruction the defendant excepted, and also to such portion of such charge as related to the time for which the wages were recoverable. On the ground that if recoverable at all, they could not be recovered for a longer period than from the inception of the contract sued on to the breaking up of the voyage.
    The judge, before whom the issues were tried, then'declined to comply with the several requests on the part of the defendant’s counsel to instruct' the jury, otherwise than he had already done. To which refusal in regard to each request, the defendant’s counsel excepted, and also to all parts of such charge which varied from the instructions so requested. '
    The jury found a verdict for the plaintiffs for $5285, for which judgment was entered. A motion was made for a new trial at special term, on a case, and denied; from which denial, as well as such judgment, an appeal was taken to the general term and such appeals were heard together.

      J. W. Edmonds, for the appellant, defendant.
    I. It was competent to prove that the defendant contracted as agent, and not as principal.
    1. The mere appearance of absolute ownership does not affect the question of the defendant’s liability.

      (a.) The registry of the vessel is not evidence of ownership. (Leonard v. Huntington, 15 John. 302. Myers v. Willis, 18 Com. Bench, 886. S. C. Ex. Ch. 36 Eng. L. and Eg. 380.)
    (5.) An absolute bill of sale of a vessel may be proved by parol to be only a mortgage. (Champlin v. Butler, 18 John. 169. McIntyre v. Scott, 8 id. 159. Ring v. Franklin, 2 Hall, 1. Birkbeck v. Tucker, Id. 121.)
    (c.) The holding the legal title does not itself make a party liable as owner. (Hesketh v. Stevens, 7 Barb. 488.)
    2. The liability for supplies for a vessel is always on the party on whose credit they were furnished. (Jennings v. Griffith, 1 Ry. & M. 42. McIver v. Humble, 16 East, 169. Young v. Brander, 8 id. 10. Abbott on Shipping, 32, 33, 40, 51. Leonard v. Huntington, 15 John. 298. Wendover v. Hogeboom, 7 id. 308. Thorn v. Hicks, 7 Cowen, 697 Trewhella v. Rowe, 11 East, 435. 1 Pars, on Mercan. Law, 113, 115. Macy v. Wheeler,. 30 N. Y. Rep. 231. Myers v. Willis, 36 Eng. Law and Eg. 380.)

      (a.) Primarily and presumptively the liability is on the owner, or the party making the contract. Because, from those facts it is to be presumed, that the supplies were for the benefit and on the credit of such owner or contractor. But it may always be proved that some one else is the party benefited, and when it is so proved, the liability is fastened on such party. Sometimes this liability is on the owner or master, hut if the creditor has acted on a special promise from either, the other is discharged. (Leonard v. Huntington, 15 John. 302. Champlin v. Butler, 18 id. 169. 1 Pars. on Mercantile Law, 113, 115. Annett v. Cairstairs, 3 Camp. 354. Abbott on Shipping, 40, 51.)

      (b.) The error of the judge consisted in his ruling that because Wheeler was a nominal contractor, he was therefore liable, and could not be discharged by any thing showing for whose benefit the service had been performed. The - true rule of law is thus absolutely reversed.
    3. This ruling was doubtless founded on the idea that an agent, though his agency be disclosed, can yet make himself personally responsible by contracting in his individual name. This may be so where there is an absence of evidence as to what was actually intended, and where the .court is left to presume an intent to be personally liable, from an individual contracting. But it is never so, where there is clear evidence that there was no such intention. Here, as elsewhere, the true question and the controlling one is, For whose benefit and on whose credit was the contract made ? (Colvin v. Holbrook, 2 N. Y. Rep. 129. Foster v. Hoyt, 2 John. Cas. 327. Blossom v. Griffin, 13 N. Y. Sep. 569.)

      4.. One of the grounds on which the judge held the defendant liable, viz. ownership or legal title in him, entirely fails in this case, for the defendant was not the owner ; he was merely mortgagee.

      (a.) The evidence offered was that Wheeler merely held the legal title for Overman & G-runer to secure them for their advances to Pelletier.

      (b.) It was competent thus to show that a bill of sale of a vessel, absolute on its face, is in fact a mortgage. (Abbott on Shipping, 52, 7th Am. ed. McIntyre v. Scott, 8 John. 159. Champlin v. Butler, 18 id. 169. 3 Cowen & Hill’s Notes, 1432, 1433. Ring v. Franklin, 2 Hall, 1. 4 Kent’s Com. 142. Birkbeck v. Tucker, 2 Hall, 121. 3 Greenl. Ev. 63, 64.)
    (c.) Till the mortgagee takes possession he is not liable as owner. (Chinnery v. Blackburn, 1 H. Bl. 117, n. Smith on Mer. Law, Am. ed. 179, note 185, n. Sing v. Franklin, 2 Hall, 1. 3 Kent’s Com. 135. Duff v. Bayard, 4 Watts & Serg. 240. Weber v. Sampson, 6 Duer, 358. Manning y. Dunn, 14 Barb. 583. Stedman v. Fiedler, 25 id. 605.)
    5. The whole matter, then, resolves itself into this question : Which shall govern—the rule that the liability rests on him for whose benefit and on whose credit the contract was made ; or the rule that such liability may be presumed from the fact of nominal ownership and individual contracting by one confessedly a mere agent ? The cases establish very clearly the principle that the actual fact of credit and benefit shall predominate over the presumption. (Paley on Agency, 318, 369, 378. Owing v. Gooch; 2 Esp. 567. Kidson v. Dilworth, 5 Price, 564.) “ Shall he be permitted to proceed against a mere agent merely because that agent has put his name on the instrument to satisfy a formality, &c. ? It is impossible.” (Trueman v. Loder, 11 Ad. & Ellis, 589; cited approvingly in 24 N. Y. Rep. 61. Champlin v. Butler, 18 John. 169. 1 Pars, on Mer. Law, 113. Abbott on Ship. 32, 33, 40. McIver v. Humble, 16 East, 169. Young v. Brander, 8 id. 10. Jennings v. Griffith, 1 Ry. & Moody, 42. Hussey v. Allen, 6 Mass. Rep. 163. Trewhella v. Rowe, 11 East, 435. Colvin v. Holbrook, 2 Comst. 129. Cutler v. Thurlo, 20 Maine Rep. 213. Duff v. Bayard, 4 Watts & Serg. 240, Annett v. Cairstairs, 3 Camp. 354.)
    6. Wheeler could not be made liable unless he was either actual owner, or had contracted individually to bind himself. The presumption arising from the face of the papers might have shown him to be both. But it was competent to rebut that presumption by proof that he was actually neither, and that Jenkins knew it. The error of the court was in refusing to.admit the evidence, thus permitting the presumption to override the fact. The true course to have pursued was to admit the evidence and submit to the jury what was the intention of the parties as to Wheeler’s personal liability.
    II. Captain Jenkins had no right to recover wages of any one.
    1. The voyage was an entirety, and, unless fully performed, no wages were earned. (McMillan v. Vanderlip, 12 John. 165. Reab v. Moor, 19 id. 337. Sickels v. Patterson, 14 Wend. 259. Monell v. Burns, 4 Denio, 121. 1 Pars, on Contracts, 522, note l. Webb v. Duckingfield, 13 John. 390. Hernaman v. Bowden, 3 Burr, 1844. Cunningham v. Jones, 20 N. Y. Rep. 486.)

      2. Freight is the parent of wages ; and where no freight is earned, no wages are payable. (2 Pars. Mar. Law, 588, 591. Lady Dunham, 3 Hagg. Adm. 196. 1 Pars. Mar. Law, 158, 452.) Abbott (on Ship. 506, 511, 9th ed.) says the rule extends to all the officers ; but, in 1856, the English courts said it did not apply to the master. This is not law with us. (See Johnson v. Wissman, 5 Leg. Obs. 18.)
    III. The master’s wages were forfeited by his malconduct . or breaches of duty. And that whether such breach of duty arose from incompetency, ignorance or design. (Abbott on Ship. 7th Am. ed. 119, n. 167, 131, n. 1. Stone v. Ketland, 1 Wash. C. C. Rep. 142. Purviance v. Angres, 1 Dall. 180.)
    1. If any injury or loss happen to ship or cargo by reason of his negligence or misconduct, he is personally responsible. (Abbott on Ship. 167.)
    2. That responsibility is as well to his employer as to owners of cargo or passenger, and is commensurate with the injury done.
    3. The malconduct of the master in this case consisted of the following acts and omissions : The deviation by going into Bahia being four hundred miles out of due course, and two weeks in time. Delay of twenty-eight days in Bahia. Taking in more passengers at Cape tfown, and thus hazarding the ship by violating the law. Deviation of eight hundred and fifty miles in touching at the Cape. Delay at the Cape fourteen to sixteen days to take in water.. Total of three months’ delay, and thus encountered the 'storm. . In not learning to use the condenser. In going to Mauritius, which ■ had so bad a reputation, and was one thousand seven hundred miles out of the course. In offering ship for sale, and thus subjecting the owners to all the consequences of breaking up the voyage. In neglecting to defend against the proceedings on the bottomry, whereby the bond was improperly made to be due. (Abbott on Ship. 150. Pope v. Nickerson, 3 Story, C. C. R. 465, 488, 503. Willard v. Dorr, 3 Mason, 161.) In confessing judgment for wages, whereby the ship was sold for wages not due. (Abbott on Ship. 638. Dunnett v. Tom

      hagen, 3 John. 154. 3 Kent’s Com. 188. Porter v. Andrews, 9 John. 350.) In not obtaining proceeds of ship and cargo, or rendering any account of them. In not forwarding insurance papers, whereby three-fifths of the insurance was sacrificed. In not selling goods to make repairs. (3 Story’s C. C. R. 465.)
    4. The effect of such malconduct was: By the deviations and delays, hazarding insurance, and increasing the hazards and expense of the voyage. (2 Pars. Mar. Law, 287, 297, 302. Abbott on Ship. 361-363.) By going into Mauritius, and so managing matters there as to cause or permit the ship to be sold. (1 Pars. Mar. Law, 406, 409, 434. Abbott on Ship. 368, 372.) By rendering no account, and omitting to take proper care of the cargo, causing it all to be forfeited and lost. (Abbott or Ship. 167, 170, n. 365.) By neglecting to forward account of loss, whereby the owners were compelled to settle an insurance of $51,000 for $20,000. (Abbott on Ship. 167, 367, ».)
    5. Upon this state of things the rule of law is, that if the jury believed that the injury done by the master’s misconduct was greater than the amount of his wages, he could not recover. The judge refused so to charge, though requested.
    6. On the contrary, he so charged the jury that they were not permitted to find against the plaintiff, unless they should find that his conduct had caused the loss of the ship, or the breaking up of the voyage.
    7. It is insisted for the defendant, that he was entitled to the verdict in either of two events, viz. if the jury should find that the misconduct of the master had annulled the agreement or had inflicted upon the owners damage equal to the amount of his wages.
    8. The voyage might have been broken up by the disaster at sea, which compelled the vessel to put in at Mauritius. Yet, the ruling below would permit the master to recover his wages, though, before that disaster, his conduct had endangered the insurance and subjected the vessel to forfeiture, under our navigation laws, and though, after that disaster, he had so acted as to permit the ship and cargo to be sold, without any account ever being rendered to the owners for the avails of either.
    IV. All the considerations, thus far, on this point are on the milder idea that, it was a defense, that the injury inflicted by the malconduct of the master was greater than his wages. But it is not intended to 'waive the point of the rescission of the contract of hiring. On the .contrary, it -is insisted that such malconduct put an end to the contract.
    1. The deviations forfeited the insurance of vessel, cargo and freight. Such deviation was not necessary, but resulted from the master’s neglect to learn to use the condenser. (2 Pars. Mar. Law, 278, 297.)
    2. They greatly lengthened the voyage, and subjected the owners to a large increase of expenses, such as wages and passengers.
    2. By taking in more passengers at Cape Town, the master hazarded the forfeiture of the vessel. (3 Story, Laws of U. S. 1722. Laws of U. S. 1819, ch. 170.)
    4. By his action in the libel suits he suffered the ship to be sold, and the proceeds to be wasted.
    5. By omitting to make proper returns he deprived the owners of the power of recovering their insurance.
    6. Each of these was a violation of his contract, which was, that he would act according to the instructions of Pelletier, and for the best interest of the bark and owners.
    7. And for those violations the owners or parties in interest, whoever they are, in person or by their agent, had a right to regard the contract as at an end. ' This is always so when' one party fails to perform his part, or disables himself from performing it. (2 Pars, on Cont. 191. Tompkins v. Dudley, 25 N. Y. Rep. 272.)
    The general complexion of the case is, that Wheeler, acting as naked agent, without any interest, and dealt with as such by Jenkins, is to be made personally liable for Jenkins’ wages, though he has never made any effort to collect his wages of the known principals, and though, by his conduct, he sacrificed vessel and cargo, and hazarded and impaired the insurance.

      Y. Another error was in allowing Jenkins to recover wages beyond the time of the condemnation of the vessel. If he was entitled to any wages, it was only up to the condemnation of the vessel, viz. 12th November, 1853. After that, for any services in taking care of ship or cargo, he was entitled only to a quantum meruit. (Willard v. Dorr, 3 Mason, 161. Oxnard v. Dean, 10 Mass. 143. Smith v. Tryon, 4 Day, 105. Eaken v. Thorn, 5 Esp. 6. Johnson v. Wissman, 5 N. Y. Leg. Obs. 18.)
    YI. The court erred in refusing to grant a new trial. The court charged, that it was the duty of the master to forward to the owners the papers necessary to recover insurance, and instructed the jury to inquire if his omission to do so had caused damage to the owner in the loss of any amount of insurance, if he had omitted to do so, and if there was any reason for his not doing it. Now it was proved, and not disputed, that he had so omitted ; that, in consequence of that, $30,000 of insurance had been lost to the owners, and no evidence whatever was given of any excuse for not doing so.
    1. The verdict was clearly against the evidence and the charge, and ought to have been set aside.
    2. The court also erred in refusing to permit a question to Wheeler on that subject.

      0. N. Blade, for the-respondents, plaintiffs.
    1, The contract being in writing, under seal, the defendant 'cannot avoid it by parol testimony. (Stanton v. Camp, 4 Barb. 274. Stone v. Wood, 7 Cowen, 453.)
    II. The captain had no defense to the bottomry bond. When he published a notice that an act of abandonment had been made, the bondholders had the right to institute their suit against the vessel. (The Draco, 2 Sumner, 157, 193, The Catharine, formerly the Croxdale, 15 Jur. 232.) The Heligoland, Swabey, Ad. R. 499. 5 Jur. N. S. 1179.) The seamen were also entitled to their wages. (Abb. on Ship. marg. p. 632. The Neptune, 1 Hagg. Ad. R. 227. The Dawn, 26 Am. Jur. 216. The wreck of the Massasoit, 7 Law R. 522.)

      III. It was the duty of the captain to remain at Port Louis so long as it was necessary to attend to the business relating to the vessel, which he did, and returned home at the first opportunity, arriving here October 11, 1855, and he was entitled to his wages up to that time. (Willard v. Don, 3 Mason, 166. Abbott on Shipping, 634.) He should be paid, under his contract, for the whole period. (The Neptune. The ivrech of the Massasoit, supra.)

    IY. The voyage was broken up by reason of the owners improperly fitting the vessel for sea before she left this port, of which the master was ignorant This entitled him to his wages. (Hoyt v. Wildfire, 3 John. 520, 521.)
    Y. The question of negligence was properly submitted to the jury, and their finding is not against the evidence. (Butler v. Murray, 30 N. Y. Rep. 88.) Whether the captain was justified in abandoning the vessel was for the jury. (Ruckman v. Merchants’ Louisville Ins. Co., 5 Duer, 342.)
    YI. Error of judgment on the part of the master, even though loss be thereby sustained by the owners, will not justify a forfeiture of his wages. (The Camilla, Swabey, Ad R. 312. 6 W. Rob. 840. The Thomas Worthinyton, 3 id. 132, 133.)
   By the Court,

Robertson, Ch. J.

The plaintiffs in this case were .entitled prima facie to recover, upon the defendant’s covenant under seal, the monthly stipend of the decedent provided for therein, upon proof of its execution, of the decedent’s services, and his inability to continue them, caused by acts beyond his control. The elaborate argument of the learned counsel for the defendant, as to the absence of any liability of a mere mortgagee in possession of a vessel, for the pay of her master or crew, quite applicable, perhaps, in case of a parol contract of employment, is wholly beside this case. The defendant, if not an owner, became a surety by such covenant, and could avail himself of any privilege to which he was entitled as such, but to no others, except those arising out of the contract itself. It is true, many considerations were admitted into the case upon the trial, as if the contract were only by parol; but as the consequences of its being under seal were not waived, all evidence of the mere agency of the defendant was immaterial, and properly excluded.

So positive a sealed agreement must necessarily control any general rules of law as to the power, rights and duties of masters of vessels, if they in any way conflicted with it. So that the tenability of the objection to the plaintiffs’ recovery upon the ground that the contract was entire, and that they could not recover any thing, because the intestate had not completed the voyage out and back, would be rendered somewhat doubtful by the provision, that his compensation was to be a certain sum “ per month for each and every month.” There is nothing in the covenant itself to make such payments depend upon the completion of the whole voyage, or the captain (the original plaintiff) take upon himself the risk of her ability to perform it. At all events, any such omission by the defendant to have such vessel properly fitted for such voyage, as might ultimately be the cause of defeating it, or any subsequent occurrence beyond the plaintiffs' control, which broke it up, would excuse him from performing it, and still leave him a right of compensation during his actual service.

There is no qualification in the defendant’s covenant making his liability to depend upon the earning of freight by the vessel, and therefore the failure to earn it did not deprive the plaintiff of compensation. Hor would he lose it in case of an ordinary employment of him by parol. Like most proverbs, the proverbial expression, that “freight is the mother of wages,” is not universally true, even in regard to seamens’ wages, (The Massassoit, .7 Law Rep. 522 ;) still less does it affect the compensation of the master, which is not properly wages. He is not supposed to trust to either vessel, cargo or freight, and therefore has no lien upon either for his pay. Indeed not even for his advances, in England, (Smith v. Plummer, 1 Barn. & Ald. 575 ;) although otherwise as to freight, in this state, (Van Bokkelin v. Ingersoll, 5 Wend. 315;) but not on the ship. (Ship Grand Turk, 1 Paine C. C. 73.) Even his contract is held in England, not to be a subject of admiralty jurisdiction, (Ragg v. King, 2 Stra. 159 ;) although' a different rule is adopted in this country. (Willard v. Dorr, 3 Mason, 161.) The stimulus to duty of ordinary seamen, by making their wages depend upon the success of the voyage in earning freight, is not needed in the case of a master. •Sufficient safeguards for his vigilance and fidelity are found in his greater intelligence, skill and experience, as well as his character and position, which makes him fear a loss of reputation, to say nothing - of his being generally able to respond in damages for any injury caused by his neglect or ignorance. His rights rested solely on the terms of his contract, with which the earning of freight had nothing to do.

It will hardly be necessary to consider any question of damages for which the captain was liable, short of a forfeiture of his pay. For, in the first place, it is not clear that the defendant, being a mere surety, could recoup such damages, which might be the subject of a separate action by the owners ; in the nest place, no claim thereto is made by the answer, nor was the presiding judge requested to submit the question of them to the jury. Although, in fact, he did instruct them to deduct from any amount due the plaintiffs, any damages to which the owners were entitled by reason of the captain’s misconduct, particularly by-the deviations from the destined voyage, the failure to repair at Port Louis, and neglect to send back proper information to enable the owners to recover the amount of insurance, if they were the result of it.

The learned judge, however, left it to the jury generally to say whether the voyage was broken up by reason of the negligence, unskillfulness, fault or fraud of the captain,” and if they go found; he instructed them to find a verdict for the defendants; besides directing them to deduct the amount of certain damages from any sum due the captain. He even went so far as to say, that they were to deduct therefrom damages caused by deviations from the original route, although they might not have contributed to her irltimate loss, provided they went beyond the value of the vesseland even for any neglect to send home books and documents necessary to substantiate claims for insurance. This was certainly as favorable a charge for the defendant as he was entitled to. For neither by the common or maritime law, could any act of the master, which did not go to the whole consideration for the promise to pay him,- such as breaking up the voyage or rendering it entirely unprofitable, deprive him absolutely of his pay.

In this case the justification presented of the master’s nonperformance of his contract, consisted of the condition to which the vessel was reduced by a storm, after leaving Cape Town, and his inability to have her repaired at Port Louis, in which he was compelled to seek shelter ; and his consequent compulsory abandonment of her there to the underwriters. Her sale, under the libel by the seamen, was a mere consequence of the same combination of circumstances. . The statement in the complaint, and the evidence of the seizure of the vessel, in order to satisfy a 'bottomry bond, was wholly immaterial upon the question of justification of the master’s conduct.''

Much of the evidence on the trial was upon matters not appearing in the pleadings, and upon issues hardly raised by them. Evidence was admitted of an insufficient equipment of the vessel on her departure from New York, which was nowhere alleged in the pleadings, but was the first moving cause of her final loss ; this led to evidence as to the condenser and its availability. Perhaps the answer tendered such issue by alleging the needlessness of the deviation to Bahia, and claiming that such deviation caused the encounter with the storm and subsequent deviation to Port Louis, with all their consequences. The evidence, however, as to the impossibility of procuring at Port Louis the necessary means of repairing such vessel, the costliness of such repairs, and the sale of her under the decree for seamens’ wages, with proof of all the proceedings in admiralty, although not warranted by the pleadings^ seems to have been admitted by tacit consent. These matters were undoubtedly material to the parties’ rights, as involving the propriety of the captain’s course, and the pleadings, if necessary, may be made to conform to the material facts established by such evidence.

There was abundance of evidence on the trial to show the unseaworthiness of the vessel on her departure from New York, in the deficiency of spars, rigging, small boats, ballast and water. An insufficient supply on board of the last would not be made up by having a condenser : which might get out of order as it did in this case. If it was in working order, the constant use of it might be proper to repair the consumption, in order to meet extraordinary contingencies, and a knowledge of its use might be requisite in a skillful captain. But no question of that kind could arise in this case, since the machine became useless, until which time it was worked properly. The abandonment and sale of the vessel, caused immediately by the storm, and indirectly by the deviation to Bahia, is, therefore, ultimately to be attributed to the original deficient equipment of the vessel. And there is no room for dispute on that subject, from the evidence.

There was opposing evidence offered to outweigh the evidence given on the trial, of the damage to the vessel in question by the storm encountered by her, of her being rendered unfit thereby to go to sea from Port Louis on her destined voyage; of the unprofitableness of repairs to her there, and the impossibility of procuring funds for her there for that purpose; of her survey by the captain of the port, assisted by three other shipmasters, her condemnation and consequent abandonment to the underwriters ; the attempt at selling her thereafter, and subsequent sale under the decree of the court of admiralty in the suit by the crew for their wages. All the facts, which such evidence, therefore, tended to prove, must be assumed to have been found by the jury. If so, they form a perfect justification of the desertion of- the vessel by the plaintiff.

The sale of the vessel under the decree in admiralty, of course would only have formed such justification, in case it was inevitable; that is, if no legal resistance could have been made to it, or any proper resistance offered was overruled by the positive decision of the court. If the voyage was terminated, even although by the master’s misconduct, the seamen would probably be entitled to their wages, and the remedy of the owners would be against him only, since there was still a right to freight pro rata itineris. But if such voyage was terminated by necessity, a fortiori, they would be entitled to their wages, and the question of necessity might therefore arise in such a case. (Abb. on Ship. 632, marg. p. The Neptune, 1 Hagg. Ad. R. 227. The Dawn, 26 Am. Jur. 216.) So far as the shattered condition in which she arrived at Port Louis is concerned, the plaintiff is exculpated, as I have shown, by the finding of the jury. It only remains to be seen whether she could have been repaired and sent to sea upon her voyage.

Efforts of the plaintiff to raise money for repairs were proved, and the defendant failed on a cross-examination of the witnesses to shake their statement or show that money could have been raised at that place for the purpose. For that reason, as well as on account of the difficulty of procuring the repairs and the unprofitableness of them as they would exceed half the value of the ship, the captain was justified in abandoning her to the underwriters and acknowledging in court that the wages of the crew were due.

I do not find any errors in the admission or rejection of evidence on the trial, or giving or withholding any instruction from the jury. The refusal to charge absolutely, that as matter of law the deviations were fatal to the plaintiff’s right of recovery was correct. The instruction given, which left the propriety of such deviation as matter of fact for their consideration, was all the defendant was entitled to. The refusal also to permit the jury to decide whether Port Louis was the nearest and best port or harbor to which to navigate the vessel after her disaster was also proper, when the only evidence on the subject was, that it was the nearest civilized port, and even if Madagascar was nearer, “nothing could have been done or got there.” The refusal also to charge that the want of water was no excuse for any deviation if the condenser was capable of producing water enough for the persons on board, was also proper, since there was uncontradicted evidence in the case that it was out of order, incrusted on the inside with salt and the whole apparatus so warped as not to be capable of working. The instruction that if such condenser “ was in good order and of sufficient capacity to supply water,” and they were “'in general use in 1853, the captain was bound to know how to use it and there was no necessity to put into any port to obtain water” embraced every point necessary to be submitted.

The abandonment of the vessel and consequent termination of her voyage growing out of her crippled condition and want of means to repair her, took place before any seizure of her under admiralty process.

Making the proper .intendments to sustain the verdict, it must be assumed that they found under the instructions to them, the following facts :

First. That the first deviation to Bahia was caused by a. want of water or ballast, or both, and that such want of water was caused by an original insufficient supply, which ' deficiency could not be remedied by the use of the condenser. And that the stay at such place was not unreasonable.

Second. That the stopping at Cape Town was due to a similar failure of water, and the stay there was not unreasonably long.

Third. That the putting into Port Louis was rendered necessary by the injury received from the storm encountered.

Fourth. That the expense of repairs at Port Louis would have exceeded half the value of the vessel, and the plaintiff could not, with due diligence, have obtained funds to pay for such repairs, and her abandonment to the underwriters became thereby necessary.

Fifth. That the termination of such voyage by the abandonment of such vessel, and its acceptance, was not caused by any default on the part of the master.

Some questions seem to have been.raised on the trial growing out of the evidence adduced to establish a liability of the captain for damages for neglect after the sale of the vessel; the first being that he did not defend the suit brought by the holders of the bottomry bond. The breaking up of the voyage entitled them to recover therein, notwithstanding the delay provided for therein, until after the arrival at Australia. (The Draco, 2 Sumn. 157, 193. The Catharine, 15 Jur. 232. The Heligoland, 5 id. N. S. 1179. Swab. Adm. R. 499.) Another ground of complaint was that the plaintiff did not send to the owners information and documents necessary to enable them to recover insurance. The facts of such transmission and of any excuse for its omission were submitted to the jury. The question of damages by any act or omission of the plaintiff was also submitted to the jury generally as a subject of deduction from Ms claim, although no allegation of such damages was contained in the answer. And they evidently found against it. But no special question of damages from an omission to forward information or documents, was submitted to the jury as supposed in the points for the defendant.

I am compelled to differ with the learned judge, before whom the cause was tried, in regard to the period of time, for which the plaintiffs ought to have recovered the compensation of the decedent represented by them. Of' course all connection by him with the. vessel, as its master, ceased with its sale, and any subsequent agency as to its proceeds, or the cargo, or the business connected with the voyage, ceased with his departure from Mauritius. After such sale he did not act as master, but as a mere agent, with probably diminished services and responsibility. For such services he was only entitled to a reasonable compensation. (Johnson v. Wissman, 5 N. Y. Leg. Obs. 18. Willard v. Dorr, 3 Mass. Rep. 161. Oxnard v. Dean, 10 id. 143. Smith v. Tryon, 4 Day, 105. Eaken v. Thorn, 5 Esp. 6.) But the difficulty in this case is to determine what allowance shall be made. The rendering of such services, when left in a distant port remaining necessarily without means, unable to make any new bargain for his pay, and obliged to look after the' sale and proceeds of the vessel, as was required in this case, would seem prima facie to entitle the captain to a continuance of the same pay as if at sea, and make it incumbent on the owner to prove any diminution in value and its extent. This, however, would not extend to the time of a voyage home," although he might be perhaps allowed his expenses, but of them there is no proof in this case, and perhaps also any enforced stay even after the affairs of the ship were settled. Most of the cargo appears to have remained unsold until the master’s departure for Hew York, in May, 1854, requiring of course some attention from him until then. The plaintiffs are not entitled to recover any pay beyond that time with interest until the time of trial.

The judgment must be affirmed without costs, if the plaintiffs consent to reduce the verdict and judgment, by deducting the decedent’s pay from May, 1854, to the time of his arrival in Hew York; otherwise it must be reversed, and a new trial granted.

       This case has been lately substantially affirmed in the Court of Appeals, except as to the time of compensation,.


source: Caselaw Access Project

license: Public Domain

text:
    A. Speirs Brown, plaintiff and appellant, vs. Frederick G. Richardson, impleaded, &c. defendant and respondent.
    1. An action against two defendants, upon a joint and several contract as joint, cannot be made an action upon it as several, unless one of the defendants is stricken from the record as a party, or has a defense personal to himself. A several appeal by one defendant will not divide the action into two.
    2. Under the Code, any one or more co-plaintiffs or co-defendants may appeal alone, without notice to any one but the opposite party and the clerk; and such appeal by one will not prevent the other from appealing.
    3. Although one of several joint defendants, may waive any defense made by him, he cannot waive that of his co-defendant; the plaintiff -has, therefore, a right to insist that the issues in the action shall be tried as against both together.
    4. In case of joint defendants, until one of them is wholly out of the action as a defendant, and all the issues against him are disposed of, any judgment in favor of either party is irregular. Until then he has a right to appear at every trial of the issues.
    5. If one of two defendants is entirely out of the action as such, his co-defendant has no right to avail himself of any enforced navment by the former, of the amount recovered by. a judgment subsequently reversed, unless the party so paying has done something to give his co-defendant that right and waive restitution.
    (Before Robertson, Oh. J., and Garvin and McCunn, JJ.)
    Heard February 4, 1865;
    decided May 27, 1865.
    This was an appeal by the plaintiff from a • judgment rendered at special term in favor of the defendant Richardson, alone, upon a trial of the issues in this action before a judge of this court, without a jury. The action was originally brought upon a joint and several contract made by the two defendants, Richardson and Woods, for the delivery of merchandize ; answers were put in by both defendants severally, setting up several defenses ; no steps were taken to compel them to unite in their defense; the action was tried formerly upon such issues, and a verdict rendered in favor of the plaintiff, against both defendants jointly,. and judgment was entered in favor of the plaintiff against them both for the amount recovered, and costs. The defendant Richardson appealed alone from such judgment to the general term of this court, by which, the same was affirmed, and he again appealed alone from such judgment of affirmance to the Court of Appeals, which court reversed the same and the original judgment, and sent the case back for a new trial. Ho steps were ever taken to compel the defendant Woods to join in such appeal-or be precluded from any other ; or to sever therefrom ; but after the first appeal by Richardson to the general term of this court, execution was issued by the plaintiff against the defendant Woods ; an application was made by the latter to stay proceedings on such execution to this court, which denied the motion; and the execution being returned unsatisfied, supplementary proceedings thereon were taken by the plaintiff against Mr. Woods, and he was compelled to pay the amount of such judgment, including, of course, the costs.
    After the judgment of the Court of Appeals, and the payment of such money by the defendant Woods, the defendant • Richardson applied to this court for leave to set up such payment by supplemental answer, which was granted to him without any condition as to abandoning his former answer. The defendant Woods did not join in such application, nor did he abandon his original answer ; and the action was never tried as to him.
    • This action was tried before a justice, without a jury, as regarded the defendant Richardson alone, who, as well as the plaintiff, waived a jury. In the decision of the court there were no findings of fact in regard to the original cause of action, or the defenses put in by both defendants in their original answers, nor did it appear that any evidence was introduced in relation thereto on the trial, but only as to the payment by the defendant Woods of the former judgment in the action ; that was found, and judgment thereupon rendered in favor of the defendant Richardson alone. There was no evidence in the case of any waiver by Woods of his right of restitution for the enforced payment by him ; nor does it appear by whom the trial was forced on, against the consent of the other.
    From such judgment the present appeal was brought.

      F. J. Fitjiian, for the plaintiff, appellant. '
    J". Ooolc, for the defendant Richardson, respondent.
   Robertson, Ch. J.

This action presents a singular state of proceedings therein. One of two joint defendants has been compelled by the plaintiff to pay a judgment recovered by him therein against both, and the other defendant, after a reversal of such judgment upon his several appeal, seeks to obtain the benefit of such payment by a supplemental answer. It will not be necessary to consider the question, whether one of two joint defendants can waive the right of restitution possessed by the other in consequence of having been compelled to pay a judgment since annulled. The questions involved will be found to relate entirely to the regularity of the proceedings.

The first question is whether the defendant Richardson could bring the cause to trial alone against the plaintiff. It is clear that the original judgment, being joint, was reversed against both parties. (Richards v. Walton, 12 John. 434. Cruikshank v. Gardner, 2 Hill, 333. Sheldon v. Quinlen, 5 id. 441. Harman v. Brotherson, 1 Denio, 537. Smith v. Huestis, Hill & Den. Sup. 236. Moulton v. Norton, 5 Barb. 286.) The action was upon the contract as joint, and could not be made one upon it as several, unless one of the defendants was stricken from the record as a party, or had a defense personal to himself. The second appeal of Richardson did not divide the action into two. Before the Revised Statutes, summons and severance was necessary in case of an appeal by one of several defendants. (Bradshaw v. Callaghan, 8 John. 558.) A writ of error under those statutes might be quashed when brought by one of several parties, unless the party not joining were absent or incapacitated, or had refused, on being served with a notice, to join therein, (2 R. S. 592, § 7;) and the party not joining, on such notice, was precluded from bringing any other writ. Under the Code, any one or more co-plaintiffs or co-defendants may appeal alone, (Mattison v. Jones, 9 How. Pr. 152; Code, § 323,) and no notice is required by it to any one but the opposite party and the clerk. (Code, § 327.) In this case no advantage was taken of the non-joinder, nor was the defendant Woods precluded from appealing, by the appeal taken by his co-defendant.

The cause therefore remaining to be tried upon the original issues, and the plaintiff being liable to restitution to the defendant Woods, the case was to be tried as if no payment had been made, unless such payment by Woods was adopted by the defendants as a payment of the debt, and the right of restitution waived. The defendant Richardson alone moved for leave to set up by supplemental answer such payment; and, as I have before stated, it is not necessary now to decide whether he alone could waive restitution for the enforced payment by Woods ; the only question being on the regularity of the judgment appealed from. It is plain that if Richardson could not waive the right of restitution of Woods, the plaintiff may be obliged to repay the latter what has been erroneously. forced from him and yet recover nothing in this action against either of the parties, since there can be but one trial in it, and one judgment.

The supplemental answer of the defendant Richardson, and leave granted to him to put it in, probably did not destroy his former answer. The use of the term “ supplemental,” in the Code, (§ 177,) shows that it was intended to leave the previous pleading to remain ; the term is borrowed from equity practice, which is more, liberal, and therefore the corresponding allowance of the prior pleading to remain, may also be supposed to be adopted with it, (Slauson v. Englehart, 34 Barb. 198.) A plea puis darrein continuance was more rigorous, and was the only plea in the case, under the early rigid rule of the common law, that there could be but one plea, issue or defense in a cause ; which was never changed as to such pleas. The court may compel a party applying for leave to file a supplemental pleading, to elect to substitute it in place of the previous one, but unless it does so, both remain. (Bate v. Fellowes, 4 Bosw. 638.)

"But although Richardson might waive his own original defense, he could not waive that of his co-defendant; and the plaintiff was entitled to insist that the action should be tried against both, or neither. There is no evidence that Woods is out of the action as a defendant, and until he is, and the issues against him are disposed of, any judgment in favor of either party is irregular. Until the defendant Woods is either out of the action or disposed of by the judgment, he has a right to appear at every trial of the issues. If he is out of the action, clearly the defendant Richardson has no right to avail himself of the enforced payment by him of the judgment, unless he has done something to give him that right and waive restitution, which does not appear by the record in this case.

I am of opinion that the trial was a mi's-trial or incomplete, and the judgment should be reversed for irregularity, and a new trial had between the plaintiff and both defendants ; unless one of the latter is struck out as a defendant by leave of the court; and that no costs should be given on the apppeal.


text:
    George Miller et al. plaintiffs and appellants, vs. Shelto Freeborn, defendant and respondent.
    Where a defendant has set up in his answer counter-claims against the plaintiff, and on the trial the complaint is dismissed, on his motion, the plaintiff having excepted to such dismissal, has a right to insist that such counter-claims shall be passed upon by the jury in the action, and that the defendant, after having made the issue, shall not be allowed to withdraw it, so as to reserve the right of bringing a new action for the same cause.
    (Before Robertson, Ch. J., and Garvin and MoCunn, JJ.)
    Heard February 9, 1865;
    decided May 27, 1865.
    Appeal from a judgment dismissing the complaint, entered at the trial, and from an order denying a motion for a new trial.

      8. E. Gonable, for the piaintiffs, appellants.

      O. E. Bright, for the defendant, respondent.
   By the Court,

Robertson, Ch. J.

The complaint in this case seeks to recover the residue of the price of a certain number of barrels of apples, sold at a certain price each, and the expense of storing and handling them. The answer sets up, by way of defense, the non-delivery of some of such barrels of apples ; also, as a counter-claim, damage by reason of such non-delivery, and, as a like counter-claim, the abstraction by the plaintiffs, after the delivery of the whole quantity, of a number of barrels of apples, and their application of them to their own use, which last number was the same as that alleged not to have been delivered. The plaintiffs replied to such answer, not directly controverting the facts therein stated, but denying every portion of it which alleges that they are indebted to the defendant, in any sum, for any cause whatever; also denying, generally, that they have failed to comply with any agreement made between them and the defendant, or that the defendant has suffered any damage from their failing to comply with any agreement; and alleging, generally, that they have fully kept all agreements made between them and the defendant concerning the sale and delivery. This, however, in the absence of a motion to render it more definite, probably, put in issue the non-delivery of the missing barrels, set up in the answer, but left the allegation of the abstraction and appropriation of some after the whole had been delivered, unanswered.

Upon the trial, the learned judge, before whom the case was tried, dismissed the complaint, simply upon the motion of the defendant, who, so far as he was concerned, probably thereby waived all claim for what he set up as a counter-claim; but the plaintiffs, who excepted to the dismissal of the complaint, had a right to insist that such counter-claims should be passed upon by the jury in this action, and that the defendant, after having once made the issue, should not he allowed to withdraw it, reserving the right of bringing a new action for the same cause. (Fabricotte v Laumitz, 1 Code Rep. N. S. 121. Farmers’ Loan and Trust Co. v. Hunt, Id. 1. Hammond v. Baker, Id. 105.) An offer, under section 395 of the Code, made and accepted after a counter-claim, extinguishes the cause of action under such counter-claim. (Schneider v. Jacobi, 1 Duer, 694.) One trial in an action must dispose of all the issues, but that was not done in this case.

Without reference to the defect of proof, on the part of the plaintiffs, of the delivery of the full number of barrels of apples sold, I think that no such trial of all the issues in this cause which the plaintiffs had a right to have tried, took place, as warranted the judgment;' and it should he reversed, in order to have a trial of all such issues, with costs to abide the event.


author: Barbour, J.

text:
    Mary H. Pennell, plaintiff and respondent, vs. Edwin Wilson, defendant and appellant.
    In an action of an equitable nature, where the entire question of costs will be in the discretion of the court, and may be adjudged upon the final hearing, no direction as to costs ought to be made by the general term, on awarding a new trial, because of the insufficiency of the evidence.
    (Before Barbour, Monell and Garvist, JJ.)
    Heard March 13, 1865;
    decided May 27, 1865.
    Motion by the respondent to modify an order of this court, made at a general term, directing a judgment to be reversed, and awarding a new trial, 'with costs to abide the event.

      J. W. Gerard, for the appellant.

      John Heiuitt, for the respondent.
   JBy the Court,

Barbour, J.

This is an action brought to reform an agreement for the sale of lands, and was tried before a justice of this court, without a jury. At a late general term the court, upon an appeal, directed the judgment to be reversed, and awarded a new trial, with costs to abide the event, upon the sole ground that the evidence given upon the trial was insufficient to authorize such judgment, and an order to that effect was accordingly settled and entered. A motion is now made, on the part of the respondent, to so modify that order as to charge the appellant with the costs.

It has long been the practice in this state, in cases in which judgments have been set aside and new trials directed, in actions at law, because of the insufficiency of the evidence to warrant the verdict, to charge the appellant with the costs. (Jackson v. Thurston, 3 Cowen, 342, Goodyear v. Ogden, 4 Mill, 104. Bank of Utica v. Ives, 17 Wend. 501. Ward v. Woodburn, 27 Barb. 354.) Ho similar practice, however, ever obtained in the Court of Chancery, where the entire question of costs was determined by the court upon a final hearing on the merits; nor, since the adoption of the Code of Procedure, has a like rule been extended to actions of an equitable nature.

We think that in cases like this, where the entire question of costs will be in the' discretion of the court, and may be adjudicated upon the final hearing, no direction as to. costs ought to be made by the general term, on awarding a new trial, because of the insufficiency of the evidence.

The order in question will be amended accordingly.


author: McOunu, J.

text:
    William H. Swift et al. plaintiffs and appellants, vs. James R. Dey, defendant and respondent.
    1. The principle of all the cases of trade-marks is, that if persons of ordinary-understanding purchasing the article would he placed on their guard, and would be led to inquire, whether they were being deceived by the article they were pur-chasing, that fact is sufficient for the court to refuse its interference.
    2. For the purpose of sustaining a motion to punish for a contempt in violating an injunction as to trade-marks, it should appear clearly that the ordinary mass of customers, paying that attention which such persons usually do in purchasing, would be easily deceived by the label used by the defendant.
    (Before Robertson, Oh. J., and Garvín and McCunn, JJ.)
    Heard February 11,1865;
    decided May 27, 1865.
    In this case the controversy is in regard to a trade-mark on match boxes. The plaintiff obtained an injunction pending the suit against the defendant, and after the injunction was served the defendant changed his trade-mark materially, and continued his business with the new label.
    The plaintiff believing, notwithstanding the change, that the use of the new label was an infringement on his mark, moved the court to punish for contempt. The motion was denied at special term, by Robertson, Oh. J. and from that denial this appeal is taken.
    The following ooinion was given at special term:

      Robertson, Oh. J. The only practical principle in relation to the law of what is called trade marks, apparently settled in the case of Partridge v. Menck, (2 Sandf. Ch. 622; S. C. 2 Barb. Ch. 101; 1 How. App. Cas. 547,) is that upon which the leading opinion in the court of last resort places its decision, which is, that the possessor of a trade mark, which contains a misrepresentation calculated to impose on the community, is entitled to no protection. The same principle was subsequently applied by this court in the case of Fetridge v. Wells, (4 Abb. Pr. 144.) The learned chancellor and vice-chancellor, in the first case referred .to, decided by ocular inspection that there, was a perceptible difference between the labels in controversy, which was enough to put purchasers on their guard, and one opinion in the Court of Appeals held nearly the same language with a very slight distinction as to the degree of the differences. Such a difference, it is evident, must be in all cases a question of fact, unless it is so palpable as not to be susceptible of being overlooked on the most casual glance. It is much more easy, of course, in any case to recognize a difference, however minute, after it is pointed out, than to discover it by the ordinary inspection bestowed by purchasers. It would hardly be a fair test of a counterfeit that, after its errors or deviations from the original were known, it could not be mistaken for it. ' The proper question should be, not differences, but points of resemblance ; not the utmost vigilance of purchasers, but ordinary observation. The value of the goods to be sold, and the intelligence of the persons dealing in and consuming them, besides other circumstances, are also to be taken into account in determining the adaptability of a simulated trade-mark to deceive purchasers. It is eminently, therefore, a question of fact, to be submitted to the practical experience of a jury, whether, in a particular case, a resemblance was likely to deceive the community. There is no article of more general consumption, less value, or more frequently bought by ignorant or careless purchasers, than friction matches—none, perhaps, where their degrees of excellence are more widely apart. In such a case, the general appearance of whatever is adopted as a trade-mark must control; because it is the unwary, and not the wary, who are to be protected, as most likely to be taken in by its counterfeit.
    The simulation in this case consists in the use of the same words with similar devices to those employed by the plaintiffs Other words, it is true, are also employed, marking a distinction if observed ; but they are not so prominent and striking as to control or modify the general impression produced by the general appearance. In the cases of Coffeen v. Brunton, (4 McLean, 517,) and the Amoskeag Manufacturing Company v. Spear, (2 Sandf. 599,) the names of two labels were entirely different, yet the defendant was enjoined from using similar labels. In the latter case, the chief justice (Duer) thought that mere change of words should have ho effect, not only because, from their position, they “ might escape the attention of the purchaser,” but even if seen and read might not alter the impression “the general resemblance of the matches was calculated to produce.” And in the former, Judge McLean makes such resemblance of the language in the body of the label and printed directions for the use of the article, as to make it appear to be the same, the test of the wrong done. With the exception of the place of manufacture and the manufacturers’ names in this case, the distinctive printed words are small, not noticeable, except by close scrutiny, and not apt to be remembered, unless carefully conned over, or committed to memory. Whereas, the lozenge shaped borders or frames enclosing the words “ Parlor Match,” as well as the design or strip subdivided into compartments, on which the word “ State ” is printed in both, very nearly resemble each other, and can only be distinguished by minute comparison. The word “ Diamond ” is also printed on both, in large type. The most striking features in both being, then, the words “ Parlor Match,” enclosed within the lozenge before mentioned^ the word “ State,” the design or strip on which it is printed, and the word “ Diamond ” in large type, they most readily impress themselves on the minds of, and are remembered by casual purchasers.

      There is hardly sufficient affirmative evidence before me to rehut the evidence of the defendant, as to the use of the words “ Parlor Match,” to designate matches having no sulphur, prior to the plaintiffs’ employment of them. But even if there was, they seem to indicate sufficiently the quality or place of using the matches, instead of their origin, to bring them within the rule laid down in Corwin v. Daly, (7 Bosw. 222,) and cases cited therein, and therefore not proper subjects to have their use prohibited.
    Besides any inferences to be drawn from the appearance of the labels, there is positive testimony of the attempted resemblance being successful in deceiving; some persons—a circumstance taken into consideration in the Amoskeag Manuf. Co. v. Spear, (ubi sup.) in determining an adaptability to that purpose. The use of the word “ Diamond,” or “ Diamond State,” seems to have been adopted first by the plaintiffs as part of a trade-mark, and, as they do not indicate any' thing respecting the quality or use of the article, are entitled to he retained for their exclusive use.
    The patent taken out by the' author of the design of the label in this case, whereof the plaintiffs are assignees, cannot affect the jurisdiction of this court to protect their right to use such design to designate the wares sold by them, against the use by others of similar designs to designate wares sold by the latter. If they had actually bdught their labels from the plaintiffs, such purchase would give them no authority to employ them to pass off their matches as those of the plaintiffs. A patented design may be adopted as a trade-mark by consent of the patentee, and thereby its use by others for the same purpose prevented. There is no rule, however, which makes the test of the infringement of such rights the same in both cases. The defendants may be liable in both the federal and state courts ; in the former for imitating the design, in the latter for passing off, by means of such design, spurious wares as being the plaintiffs’, and the cause of. action would clearly clearly not he the same.
    The injunction must, therefore, be continued against the employment by the defendants of the words “Parlor.Match,” inclosed in a lozenge shaped frame or design, similar to that in the label of the plaintiffs, in any label used by them in the sale of matches ; and also of the word “ Diamond,” or the words “ Diamond State,” in any label used to designate such matches, and of any strip or border on their labels similar to that on which such word “ State ” is printed in the labels of the plaintiffs ; and from selling any matches with labels having such prohibited insignia of ownership thereon. The costs of motion, fixed at ten dollars, are to abide the event of the action.

      H. White, for the appellant.

      G. Jones, for the respondent.
   By the Court,

McOunu, J.

In order to enable the court to determine the question understandingly, the original label of the plaintiff and the one used by the defendant are presented in the papers, so that an ocular demonstration might be entered into, and I am satisfied, from a careful inspection of both labels, that there is not the slightest resemblance between them. In the case of Partridge v. Menck, (2 Sandf. Ch. 622,) the chancellor and vice-chancellor held, that if the difference in the label was so slight as to put purchasers on their guard, or prompt an inquiry in their minds, an injunction could not be maintained.

I cannot believe that the second labél used by the defendant was meant by him to be an invasion of the plaintiff’s trademark, or intended to mislead or deceive ;- besides-, I am satisfied, from an inspection of the two labels, that the most ordinary mind, seeking to purchase the matches of the plaintiff, would see, at a glance, that the defendant’s label was not intended to deceive them in purchasing the article. The great principle laid down, and applied in all the cases of trademarks is, that if persons of ordinary understanding purchasing the article would be placed on their guard, and would be led to inquire whether they were being deceived by the article they were purchasing, that fact is sufficient for the court to refuse its interference.

This is the doctrine established by Lord Chancellor Cottenham, in the case of Spotswood v. Clark, (10 London Jur. R. 1043,) and by the chancellor of this state, in the case of Partridge v. Menck, cited above: and by still later decisions it remains the established law of this state.

Eor the purpose of sustaining the motion for contempt, it should have appeared clearly that the ordinary mass of customers, paying that attention which persons usually do in buying the article in question, would be easily deceived. This not being the case in this instance, the order denying the motion for contempt was correct, and should be affirmed, with costs.


text:
    John C. Sullivan, plaintiff and respondent, vs. George Frazee and Ellen M. Robbins, defendants and apellants.
    1. The non-residence of the defendant in this state, and the service of a summons upon him in another state, and not in the city of New York, in an action in this court, when set up in an answer, require a judgment for the
    ' abatement of the suit, or the dismissal of the complaint. If not denied, ■ they are admitted, and there is no issue, either of fact or of law, in the case, to be tried.
    2. An appearance by putting in an answer protesting against the exercise of jurisdiction, is not such an appearance as waives the objection to the jurisdiction of the court.
    3. Nor is the mere subscription of an answer with the name of an attorney such an appearance as to waive any objection to the jurisdiction.
    (Before Robertson, Oh. J., and Garvin and McCunn, JJ.)
    Heard February 14, 1865;
    decided May 27, 1865.
    Appeal from a judgment ordered at a special term, on a trial before a justice of this court without a jury. The action was in the nature of a creditors’ suit. It was brought by the plaintiff, a judgment creditor of the defendant Erazee, after the return of an execution unsatisfied, to have the property of Frazee applied to the payment of such judgment; and to that end to set aside a chattel mortgage executed by said Frazee to his co-defendant Ellen M. Robbins, alleged to have been made to hinder, delay and defraud the creditors of Frazee; and for the appointment of a receiver, &c.
    The defendants answered separately. Frazee alleged, in his answer,

      First. That his co-defendant, E. M. Robbins, was not a resident of the state of New York, but resided at Hartford, in the state of Connecticut; and that the said Robbins had not been served with the summons in this action within the city of New York ; and claimed .that the court had no jurisdiction of the person of said E. M.- Robbins.

      Second. That the defendant Robbins, not having been served with the summons in this action within the city of New York, and not residing. in said city, and the court not having jurisdiction of the person of said defendant, there was a defect of parties defendant.

      Third. The defendant Frazee also denied that the mortgage mentioned in the complaint was executed fraudulently, or to defraud the plaintiff or any of this defendant’s creditors, and alleged that it was made for the sole purpose of securing the payment by said defendant Frazee of the rent of the premises mentioned in the complaint, hired by him of said Robbins for the term of three years, and which rent such defendant had obligated himself to pay.
    The defendant Robbins put in an answer, signed by “ D. H. McDonnell, defendants’ attorney,” in which she alleged that she was not a resident of the city of New York; that she resided at Hartford, in the state of Connecticut,' and that she had not been served with the summons in this action in the city of New York, but was served at Hartford, in Connecticut; and she claimed that this court had no jurisdiction of her person.
    On the trial, the defendant Robbins, by her counsel, read as evidence the admission of the plaintiff’s attorney, that she was not a resident of the city of New York at the commencement of the action ; that she resided in Hartford, Connecticut, and had not been served .with the summons in this action, in the city of Hew York ; but was served at Hartford, Connecticut, and still resided there. The defendant Robbins did not enter upon the trial of the action on the merits. The defendant Erazee moved to dismiss the complaint, on the grounds, 1st. That there was a defect of parties defendants. 2d. That the mortgage was made for a valuable consideration, to secure the payment of an existing obligation, and not for future advances. The motion was denied, and the defendant Erazee excepted. The case was then closed, and the justice, by his decision, found the following facts:

      First. That the mortgage referred to in the complaint, made and executed by the defendant George Erazee to the defendant E. M. Robbins, was made within the state of Hew York, and with intent to hinder, delay and defraud the creditors of the said George Erazee, and that the same is fraudulent, unlawful and void as against the plaintiff, in this action.

      Second. That the plaintiff recovered a judgment against the defendant Erazee, for #64.50, on the 6th day of June, 1863, in the justice’s court, for the 7th judicial district, in the city of Hew York, which was afterwards duly docketed in the office of the clerk of the county of Hew York, and afterwards execution was duly issued thereon, to the sheriff of said county, and by him returned unsatisfied on the 3d day of September, 1863. That the amount due to the plaintiff from the defendant Erazee, for principal and interest upon said judgment, is #67.50. •

      Third. That the property upon which said mortgage is made, is household furniture, situate, in the house numbered 277 West Thirty-sixth street, in the city of Hew York. That the defendant Erazee is the owner of a- lease of said premises, made to him for the, term of three years, by the defendant E. M. Robbins.
    As matters of law, the justice found,

      First. That the defendant Erazee was indebted 'to the plaintiff in the sum of $64.50, with interest from the 6th day of June, 1866.

      Seeond. That the chattel mortgage upon the furniture of the defendant Frazee, was made to hinder, delay and defraud the plaintiff, in the collection.of his judgment, and is void.

      Third. That the plaintiff was entitled to have a receiver appointed, of the said -mortgaged property, and of the lease of said Robbins to said Frazee, to take possession of said property, and of said lease, and sell the same and apply the proceeds thereof to the payment of the amount due the plaintiff, with costs of the action.
    Judgment was rendered accordingly, in favor of the plaintiff, with costs ; from which both defendants appealed.
    ' jD. T. Walden, for the appellants.

      W. Stanley, for the respondent.
   By the Court,

Robertson, Ch. J.

In this case one of the defendants (Robbins) was not a resident of this state, and was served with a summons in the state of Connecticut only, and not in this city. She sets up those facts alone in her answer, and claims that this court has, therefore, no jurisdiction of her person. The answer is signed by an attorney of this court. The plaintiff proceeded to a trial before a justice of this court without a jury. Ro reply was put in to such answer, nor was any evidence introduced on such trial to disprove its allegations. The Code permits a defendant to demur when it appears on the face of the complaint that the court has no jurisdiction of the person of the defendant, (§ 174, suhd. 1;) and, when that does not appear on the face of the complaint, to take the same objection by answer, (§ 147 ;) such objection, however, is not waived, notwithstanding it may not be taken in either mode. (§ 148.) A voluntary appearance of a defendant is equivalent to personal service of the summons upon him. (§ 139.)

The facts contained in the answer of such defendant formed a good reason for the abatement of the suit, or dismissal of the complaint. If not denied, they were admitted, and there was no issue of either fact or law, in the case, to be tried. (§§ 249 to 254.) If they constituted no defense, the plaintiff’s remedy was under section 246 or 247. The defendant seems to have .taken no part in the trial, except to prove the allegations of her answer.

The Code evidently assumes the right of the defendant to appear in the action, and put in an answer for the purpose of objecting to the jurisdiction of the court. The voluntary appearance which is made equivalent to a personal service of the summons, under the 139th section of the Code, is such an appearance as is a submission to the jurisdiction of the court. Some one must appear for a party in order to object to the jurisdiction, and such party is not bound to wait until a final judgment in order to move to set it aside. An appearance merely by such a document as an answer which protests against the exercise of jurisdiction, is surely not such an appearance as waives the objection. (Avery v. Slack, 17 Wend. 87, per Cowen, J.) The voluntary .and general appearance which waives all objections, is that mentioned in the 11th general court rule.

In the case of Mahaney v. Penman, (4 Duer, 603,) the action was upon a judgment obtained in the court of a sister state, (Virginia,) and one of the defenses set up was that this court had no jurisdiction of the person of the defendant, but for what reason was not stated ; another defense set up was that the court in the sister state had no jurisdiction over the person of the defendant, to render the judgment it did. The only inquiry was in reference to the jurisdiction of that court; nothing was said about the service of any process in the action in this court. The decision only extended to the effect of a voluntary appearance in the former court. Other defenses upon the merits also were joined with such undisclosed objection to the jurisdiction of this court, and possibly where a party mingles a defense on the merits with such an objection, or in any way calls upon the court to decide on any other question, or appeals to its favor, he submits himself to the jurisdiction. (Cooley v. Lawrence, 5 Duer, 605. Quin v. Tilton, 2 id. 648. Kelsey v. Covert, 15 How. 92.) Everyone who acts as an attorney in an action for another, is bound to indorse and subscribe his name, (general court rule 16,) on papers served by him in order to procure service upon him of other papers. (Code, § 414.) So that the mere subscription of the answer with the name of an attorney, was not such an appearance as to waive any objection to jurisdiction.

The complaint should have been dismissed as to the defendant Robbins, for want of jurisdiction, but without costs, this court having no power to make such a judgment in her favor. This court had power to act, however, upon the complaint, as in a creditor’s action, property being discovered belonging to the defendant Frazee, to wit, the lease of the premises in 36th street and the chattels mortgaged to the defendant Robbins. The former defendant has, at all events, an equity of redemption in, and possessory right to, such chattels, and the receiver may, on taking possession of them, deem it proper, as he has a right, to commence an action to get rid of the claim of the defendant Robbins.

The judgment must, therefore, be modified in these respects, as to the last named defendant, without costs, and affirmed as to the defendant Frazee, without costs to either party,