text:
    WILLIAM H. GARNER, Appellant, v. DARIUS R. MANGAM, et al, Respondents.

      ‘Order for hearing of exceptions at general term—when may be made.— Motion to vacate order—irregularity must be specified.

    .It is not irregularity for the trial judge at the same time that he denies defendant’s motion for a new trial on the minutes, to order the exceptions to be heard in the first instance at general term, there being but one motion, viz.: for a new trial.

      .It seems, that a motion that the exceptions be heard in the first instance at general term, may be made after the denial of a prior motion for a new trial on the minutes upon exceptions.
    "Upon a motion to set aside an order for irregularity, the order to show cause must, under rule 37, specify the irregularity, even if it appear in the affidavit.
    Before Speir and Russell, JJ.

      Decided November 22, 1880.
    Appeal from an order made by Judge Sedgwick, denying a motion to vacate and set aside an order made by the late Chief Judge Curtis, directing that exceptions be heard in the first instance at the general term, and judgment on the verdict meantime' stayed.
    The action was tried before the late chief judge and. a jury in February, 1880. The verdict was for the plaintiff. Thereupon a motion was made on behalf of the defendants, to set aside the verdict, and for a new trial upon the minutes. The hearing of this motion was set down for-a later day. On the argument of the motion it would seem that the chief judge expressed Ms unwillingness to grant a new trial upon theminut.es, but concluded that there was enough doubt in the case to justify an order that the exceptions be heard in the first instance at the general term. Although two orders were entered—one denying the motion for the ñew trial upon the minutes, and another directing the exceptions

      to be heard in the first instance at the general term— they were both the result of one motion, heard at one time; both bear the same date and were entered at the same time. The point presented by the appellant is, that when the judge had decided and denied the motion to grant a new trial upon the minutes, his powers, under sections 999 and 1,000 of the Code, were exhausted, and he had no authority of law then to make the order which is the subject of this appeal.

      James S. Greves, attorney, and Alexander Thain, of counsel, for appellant, among other things, urged :
    —I. In actions tried before the court and a jury there are but three ways of moving for a new trial: 1. Before the trial judge, upon his minutes ; or, 2. At special term, upon a case, or case and exceptions ; or, 3. At general term, upon exceptions, or case and exceptions; and these motions, so fa.r as the exceptions taken at the trial are concerned, are precisely the same, the choice being only of the forum in which the motion shall be made (Code Civ. Pro. §§999, 1,000; 3 Wait Pr. 420, 421, 423, 434; Morange v. Morris, 12 Abb. Pr. 164, where the practice in such cases is stated at length).
    II. In the nature and design of these three remedies it clearly appears that they are alternative, not cumulative (Graham Pr. 638 ; Laws 1833, c. 271, § 4).
    The first remedy was not known to the common law (3 Wait Pr. 421; Wilcox v. Hoch, 62 Barb. 509). It was created by statute, and by no correct construction of the statute had the learned justice the power, after he had heard and denied the motion for a new trial upon the exceptions, and entered an order thereon,-to' then direct the same exceptions to be heard, in the first instance, at the general term. As to the meaning of the phrase, “in the first instance,” see Watson v. Scriven (7 How. Pr. 9); Taylor v. Harlow (11 How. Pr. 288); Morange v. Morris (12 Abb. Pr. 167); Grah. Pr.
      637, 638; Laws 1833, c. 271, § 4. Clearly, from the above authorities, the exceptions taken at the trial cannot be heard and determined in the first instance before the trial judge, and also, in the first instance, at general term. This has been distinctly held by the supreme court, general term, third department, Board-man and Bookes, JJ. We quote from the MSS. opinion of Boardman, J.:—“A motion was made by defendant for a new trial upon the minutes, and denied. At the same time an order was made that the exceptions should be first heard at general term. This practice is irregular, and the latter order is a nullity” (Byrnes v. Delaware & Hudson Canal Co., 7 N. Y. Week. Dig. 549).

      Huntley & Bowen, attorneys, and Richard H. Huntley, of counsel, for respondents Mangam and Pratt.

      Ernest T. Fellows, for respondent Chandler.
   By the Court.—Horace Russell, J.

—The sections of the Code which control this matter are as follows :

“ Sec. 999. The judge presiding at a trial by jury may, in his discretion, entertain a motion made upon his minutes at the same term to set aside the verdict and grant a new trial upon exceptions, or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence or contrary to law.”

“ Sec. 1,000. Upon the application of a party who has taken one or more exceptions, the judge presiding at a trial by jury may, in his discretion, at any time during the same term, direct an order to be entered that the exceptions so taken be heard in ithe first instance at the general term, and that judgment upon the verdict be suspended in the meantime. At any time before the hearing of the exceptions, the order may be revoked or modified upon notice, in court or out of court, by the judge who made it; or it may be set aside for irregularity by the court at any term thereof.”

1. It is claimed that the granting of the order that the exceptions be heard in the first instance at the general term, after denying the motion for a new trial on the minutes, was an irregularity. If it be granted that the power to grant a new trial upon the minutes and the power to direct exceptions to be heard in the first instance at the general term are not cumulative, but alternative, which is the theory of the appellant, still there was no such irregularity in regard to this motion as would justify the reversal of the order made below. It is a very common thing, on motions and on trials, for the court to refuse the relief sought and to grant other relief. And to hold that the action of the trial judge, in this case, was irregular, would be to decide that the action of judges in all such cases was irregular. In many such cases, the party moving was -entitled to only one remedy, and that, perhaps, not the remedy for which he moved, or the judge had a discretion which of two remedies to grant. A motion for one remedy did not necessarily preclude the judge, in refusing that, from granting the other. Here the chief judge, upon hearing a motion for a new trial upon his minutes, simply said : “ No, I will not grant that motion, I will order your exceptions to be heard in the first instance at general term.” The course pursued in this case by Chief Judge Curtis was exactly the same as that of the trial judge in Ross v. Harden (42 Super. Ct. 438).

A technical argument is made about the words “in the first instance,” in which it is urged that the judge,having heard the motion upon his minutes, it was a solecism amounting to an irregularity to afterward order the exceptions to be heard “in the first instance” at the general term. This argument is based on the assumption that the words “in the first instance” necessarily have no other meaning than “for the first time,” whereas, considering the context and the effect of an order granted under section 1,000, they might well be construed as if the words were “before entry of judgment.” Speaking technically, the exceptions are first heard when first made—when the objection is argued—during the progress of a trial. While, practically, a motion for a new trial upon the minutes and a motion that a judge direct exceptions to be heard in the first instance at the general term may be on the same grounds, technically they are not —at least, they are not necessarily. A motion for a new trial upon the minutes may be upon exceptions, or because the verdict is for excessive or insufficient damages, or contrary to the evidence, or contrary to the law (§999, Code). Whereas, upon exceptions directed to be heard in the first instance at general term, nothing else can be considered but those exceptions. On such an argument an appellant would not be permitted to present anything to the general term except what was distinctly raised by exception. He could not raise the question that the verdict was excessive or insufficient, or against the evidence. So, as it does not appear by the separate order printed in the appeal papers that the motion for a new trial upon the minutes was made only with reference to the exceptions taken during the trial, non constat, but that it was made on the ground, that the verdict was against the evidence, or was excessive, or that it was contrary to the charge of the judge, and the denial of a motion made upon the judge’s minutes upon such ground certainly would not bar the right a.nd power to direct exceptions to be heard in. the first instance at the general term. As this objection is purely technical, it must stand or fall by technical constructions. The only restriction upon the' power of the trial judge to entertain a motion for a new trial upon his minutes, is that the motion shall be' made' during the term of the trial, and the only restriction made by section 1,000 upon the power of the judge to direct exceptions to be heard in the first instance at the general term, either of his own motion or on the application of a party, is that such order shall be made at the term during which the case was tried. There is nothing in the language of the Code which would prevent these motions being made separately and successively (though they were not in this case), and there was no irregularity in the trial judge’s ordering the defendant’s exceptions to be heard in the first instance at the general term, at the same time that he denied a motion for a new trial upon the minutes. .

2. There is another ground on which the order denying the appellant’s motion should be sustained. The motion to set aside was for an irregularity. The order to show cause, on which the motion was heard, did not specify the irregularity complained of, as required by rule 37. It was not sufficient that the grounds of irregularity were specified in the affidavit (Montrait v. Hutchins, 49 How.Pr., 105).

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

Speir, J., concurred.


source: Caselaw Access Project

author: By the Court.—Horace Russell, J.

license: Public Domain

text:
    ANDREW KNAUER, et al., Respondents, v. THE GLOBE MUTUAL LIFE INSURANCE CO., Appellant.

      (Receiver of corporation pendente lite—effect of appointment of.—Default —power of general term to direct entry of order opening.

    'It is not necessary that the receiver pendente lite, of a corporation should be substituted as defendant in an independent action brought against the corporation prior to his appointment, in order to enable the plaintiff therein to proceed to judgment.
    Upon an appeal from an order denying a motion to open a default, the general term may, on reversal, direct the entry of such order opening the default as the special term should have granted.
    In this' case, the court held that the default should be opened as matter of favor, the receiver having been guilty of no laches.
    Before Sedgwick, Ch. J., and Russell, J.

      Decided November 22, 1880.
    Appeal from an order denying a motion to open a default.
    The action was begun in September, 1878, its object being to set aside an insurance policy for fraud, and to recover moneys paid on account thereof. The answer denied any fraud, and alleged that the plaintiffs acted with full knowledge of all the facts and circumstances in reference to the matters complained of. Issue having been joined, the case was on the calendar of this court at the May term in 1879, and went over at the request of plaintiffs’ counsel. On the first day of June, the attorney-general, with the leave of the supreme court, began a suit to have the defendant judicially declared insolvent, and a receiver of its effects appointed. On On the 17th of June, James D. Fish was appointed receiver pendente lite, and duly qualified as such. This case was on the calendar in June, but was not tried on account of the illness of the judge. Being again on the calendar in October, the attorneys for the defendant notified the attorneys for the plaintiff that a receiver of the defendant had been appointed, and claimed that thereby proceedings were stayed until the receiver should be substituted as a defendant. The receiver was not substituted; but on the 17th day of October the plaintiffs took judgment by default for the sum of $1,054.07. The receiver, asserting that he had only recently heard of this judgment by default, petitioned this court in December to open the default and allow him to come in and defend. The receiver’s counsel, upon his appointment, were not the counsel of the company, but since he learned of the default in this case, he retained the counsel of the company to continue to act.

      Sewell & Pierce, attorneys, and Robert Sewell, of counsel, for appellant.

      Bushnell & Albright, attorneys, and Samuel Jones, of counsel, for respondents.
   By the Court.—Horace Russell, J.

This default seems to have been permitted in part because the defendant’s attorneys believed that the appointment of a receiver of their client’s property made it necessary, before plaintiffs could proceed with their action, that the receiver should first be substituted as a defendant; but more because their client’s property having been taken away by the court, so that it was somewhat uncertain whether or not they would be compensated for their services, they did not choose to continue the defense until some satisfactory understanding on that point was arrived at.

1. It was not necessary that the receiver should be substituted as a defendant before the plaintiff’s action could proceed to judgment. A receiver, pendente lite, does not absolutely, and in all respects, supersede the corporation. The corporation was in extremis, but it was not dead. Until it was dissolved the suit against it could proceed even to judgment (In the Matter of Waterbury, 8 Paige, 380; Kincaid v. Dwinelle, 59 N. Y. 552 ; Potter on Corporations, 845-847 ; Meckles v. Rochester B’k, 11 Paige, 118 ; N. Y. Marbled Iron Works v. Smith, 4 Duer, 362; People v. Manhattan Co., 9 Wend. 351; Attorney-General v. Atlantic Life, 74 N. Y. 183). The plaintiffs’ proceedings were therefore regular.

2. I am of opinion that the default ought to have been opened as a matter of favor. The defendant’s attorneys were not the attorneys of the real party in interest, i. e., the receiver, at the time the default was taken; and a receiver—an officer of the court—ought not to be prevented from protecting his trust on account of their mistake of or a misunderstanding with them. The answer discloses a good defense to the action. The case is peculiar in its nature and ought to be openly litigated; and whether or not the attorneys of the corporation were guilty of laches, the receiver has been guilty of none, such as to justify the court in refusing to aid his efforts to protect the property committed to his care.

The order appealed from should be reversed and the motion granted, upon the payment of the costs for the trial of an issue of fact, and the disbursements of the trial term, and also disbursements up to and including entry of judgment and the costs of opposing this motion below—the judgment to stand as security —without costs of appeal to either party. And as this court has power to make the order which the special term should have made (Griffen v. Helmbold, 72 N. Y. 437), let such an order be entered.

Sedgwick, Ch. J., concurred.


author: By the Court.— Horace Russell, J.

text:
    GEORGE S. DIOSSY, Respondent, v. CHARLES D. RUST, Appellant.

      Bill of particulars—when allowed.

    Plaintiff having sued defendant, an attorney, for the conversion of a certain draft and the moneys collected thereon, claiming title thereto by assignment from one D., defendant in his answer alleged that the draft was received by him under an agreement with D., by which he was to collect the sum due thereon and credit D. with the net amount collected, on account of moneys which he alleged were due to him from D. for professional services and otherwise, and on account of divers contracts, &c., assumed by him for D. In another subdivision of his answer, he further alleged that said agreement having been carried out, D. had executed and delivered to him a general- release of and from all claims.

      Held, that plaintiff was entitled to a bill of particulars of defendant’s , first defense, notwithstanding the fact that another of the defenses relied on was a general release.
    Before Speir and Russell, JJ.

      Decided November 22, 1880.
    Appeal from an order directing the defendant to serve a bill of particulars.
    The plaintiff, claiming to be the owner, by assignment from one Doody, of a draft for $1,000, drawn to the order of Doody by one Patrick Brennan, upon one Henry Heyman, on November 1,1876, and duly accepted by Heyman, sues, alleging substantially a conversion of the draft and of $800 collected upon it by the defendant, who is an attornéy. The assignment of the draft to the plaintiff is alleged to have been made September 27, 1877. The defendant, among other defenses, alleges that the draft was put in his hands for collection by Doody, the owner, upon the agreement between Doody and himself that he should place the proceeds, above the expense of collection, to the credit of Doody, on account of divers moneys then and theretofore owing to him by Doody, and on account of contracts, liabilities and obligations then and theretofore assumed by him for Doody ; that Doody was largely indebted to him for professional services (to the amount of at least $1,100). In another subdivision of his answer the defendant alleges that he having performed all the conditions on his part, to be performed by said agreement, by applying the money coming to him as he was directed by his agreement with Doody, Doody released and discharged him from every obligation growing therefrom, and “growing out of any other matter or thing from the . beginning of the world.” The plaintiff demanded a bill of particulars. It was not furnished. Thereupon a motion was made before the late Chief Judge Curtis for a bill of particulars, or that the answer be made more definite and certain. The order granted directed the defendant to grant a bill of particulars :

      First. As to the contracts, liabilities and obligations alleged in the answer to have bpen assumed by the defendant for Doody, and of the moneys stated to be due from Doody to the defendant.

      Second. Of the time, place and amounts of the indebtedness mentioned in the eleventh paragraph of the answer—that is, “a large indebtedness from said Doody to this defendant, and this defendant at said time was largely obligated and liable for certain matters to outside parties for said Doody.”

      Third. As to the moneys mentioned in the twelfth paragraph of the answer as having been paid by the defendant, &c.; and,

      Fourth. As to • the indebtedness for professional services.
    From that order the defendant now appeals to this court.

      Hall & Blandy, attorneys, and Charles Blandy, of counsel, for appellant.

      Erastus New, for respondent.
   By the Court.— Horace Russell, J.

This appeal is prosecuted on the theory that, because the answer alleges a release, it cannot be material to inquire into the previous transactions between the defendant and the plaintiff’s assignor, and, therefore, no bill of particulars was necessary or proper. This theory might be very well if a general release were the only defense set up by the answer (Fullerton v. Gaylor, 7 Robt. 551; Powers v. Hughes, 39 Super. Ct. 487; Watts v. Watts, 2 Robt. 685; Gee y. Chase Mfg Co., 12 Hun, 630; Drake v. Thayer, 5 Robt. 701).

But it is not the only defense. The answer here sets up other defenses, which are very general and indefinite. As to them a bill of particulars was properly ordered (Beecher v. Tilton, 59 N. Y. 176, and cases above cited).

The order is affirmed, with $10 costs, and disbursements.

Speir, J., .concurred.