text:
    WILLIAM H. BEARD, Plaintiff and Appellant, v. JAMES P. SINNOTT, Defendant and Respondent.
    When the case does not contain any of the evidence, but the findings of facts only, it is to be assumed that there was no evidence from which any other fact could be found ; and when in such a case the conclusions of law have been excepted to, the question to be determined is, whether such conclusions are warranted by the findings of fact (Stoddard v. Whiting, 46 W. T. 27).

    A sale of real estate under an execution lawfully issued, even after the expiration of ten years from the recovery and docketing of the judgment, is a good and valid sale as against the defendant in the execution.
    Although the judgment has ceased to be a lien upon the real estate, and although the rights of bona fide purchasers, mortgagees, creditors, etc., may intervene and attach at any time before the sale, yet if they do not, such real estate is still defendant’s property, and may be sold if in his legal possession.
    Section 282, and Subd. 1, of § 289 of the Code; and §§ 1 and 2, Art. 1, Title 4, Chap. 6, Part 3, of the Revised Statutes (2 J3.8. 359), considered as to whether they are in conflict or in harmony with each other.

      Before Mouell, Curtis, and Sedgwick, JJ.

      Decided June 29, 1872.
    Appeal from the judgment of a referee.
    The action was to recover the possession of a lot of land in the city of New York.
    The referee found the following facts.
    1. That on the third day of October, 1851, one Oliver Johnston, of the city of New York, was seized in fee simple of the premises.

      2. That on the third day of October, 1851, the Bowery Bank, of the city of New York, recovered a judgment, in the Superior Court of the city of New York, against Johnston, for the sum of nine hundred and four dollars and seventy-nine cents ($904.79), in an action commenced in said court in or about August, 1851; that such judgment was on the same day duly docketed in the office of the clerk of the city and county of New York ; and thereupon, and on that same day, an execution against the property of the judgment debtor, to satisfy such judgment, was issued to the sheriff of the city and county of New York, which execution was afterwards, —namely, on the 15th day of December, 1851—re-turned wholly unsatisfied.
    3. That on the 10th day of October, 1852, Johnston died intestate, and without issue; and was, at the time of his death, an inhabitant of the city and county of New York; and that on the sixteenth day of November, 1852, the surrogate of that city and county issued letters of administration upon his estate.
    4. That on the 25th day of September, 1861, an assignee of the foregoing judgment so obtained by the said Bowery Bank of the city of New York against Johnston, and which then remained of record and unsat isfied, duly filed a petition to the surrogate of the city and county of New York—the said surrogate being the surrogate who had jurisdiction to issue letters of administration upon the estate of Johnston—for leave to issue execution upon the said judgment so recovered against said Johnston ; and the said surrogate, upon sufficient cause shown, thereupon granted the prayer of said petition, and made an order granting permission to issue execution on said judgment.
    5. That under and pursuant to the order and permission of said surrogate, an execution on said judgment was thereupon—to wit: on the 30th day of September, 1861—issued and delivered to the sheriff of the city and county of New York, commanding the said sheriff to satisfy the said judgment out of the personal property of said judgment debtor; and if sufficient personal property could not be found, then out of the real property belonging to such judgment debtor on the day when the said judgment was docketed in said county—namely, the 3d day of October, 1851—or at any time thereafter.
    6. That under and pursuant to the execution so issued to him on said judgment under the order of said surrogate, the said sheriff, on the 15th day of November, 1861, sold at public auction, in said city, to one Thomas Haskins, after giving the notice prescribed by law, all the right, title, and interest which Johnston had on the 3d day of October, 1851, or at any time thereafter, of, in, and to the lands and premises described in the complaint in this action, and executed to said Haskins ; and on the 25th day of November, 1861, duly filed in the office of the clerk of the city and county of New York, two certificates of such sale—the premises having been sold by him in parcels—and that afterwards,—namely, on the 18th day of February, 1863—the premises not having been redeemed from such sale, the sheriff duly executed, acknowledged, and delivered to Haskins two certain deeds of conveyance, bearing date on said last-mentioned day, whereby the sheriff granted and conveyed to Haskins all the right, title, and interest which Johnston had on the said 3d day of October, 1851, or at any time thereafter, of, in, and to the lands and premises aforesaid, and which are described in the complaint in this action.
    7. That after the delivery to him of the sheriff’s deeds, Haskins entered into possession of the premises ; that he executed a mortgage thereon to one John Johnson, of Brooklyn; that Johnson afterwards commenced an action in the Supreme Court against Haskins for the foreclosure of the mortgage, and the sale of the premises ; that in such action the premises were, on the 22d day of April, 1868, adjudged to be sold under the direction of a referee ; that afterwards—to wit: on the 19th day of May, 1868—the premises were duly sold, under said judgment of the Supreme Court, to said John Johnson, of Brooklyn; and that after such sale—to wit: on the 10th day of June, 1868—the referee duly executed and delivered to Johnson a deed of conveyance of said premises; and that Johnson subsequently entered into possession of the premises.
    8. That afterwards—to wit: on the 19th day of February, 1869—Johnson, and Helen S., his wife, being in possession of the premises, duly executed and delivered a warranty deed of conveyance thereof to the said defendant, James P. Sinnott, for a valuable consideration ; and that afterwards—to wit: on the 27th day of February, 1869—Haskins and his wife also executed and delivered to Sinnott a release and quit-claim deed thereof; and thereupon Sinnott took possession of the premises as the owner thereof.
    9. That the plaintiff is heir at law to the extent of one-half the estate of Oliver Johnston, the deceased judgment debtor, and claims said premises as such heir at law, and not otherwise.
    tlpon the foregoing facts, the referee found as conclusions of law:

      1. That the sale of the premises by the sheriff of the city and county of Hew York, under and by virtue of the judgment recovered by the Bowery Bank of the city of blew York, and the execution issued thereon, as aforesaid, was valid and regular in all respects; and that the subsequent conveyances of the premises by the sheriff to Thomas Haskins were also valid and regular in all respects, and that they operated to convey the premises to Haskins in fee simple.

      2. That the defendant, Sinnott, by the conveyances made to him by John Johnson and wife, and Thomas Haskins and wife, became the owner of the premises in fee simple.
    3. That the plaintiff in this action was not, at the time of the commencement thereof, and is not now entitled to the possession of the premises, or of any part thereof, or to any interest or right therein.

      Mr. John Townsend, for appellant,
    presented the following points : I. The right to sell land under an execution, is one derived from statute ; it is only by showing that the provisions of the statute have been complied with, that the existence of the right can be proved (Townshend v. Wesson, 4 Duer, 356).
    II. To enable the party to sell the real estate of the judgment debtor under an execution, the judgment must be a lien upon the estate at the time of the sale (Willard on Real Estate, 455, ed. 1861; Graff v. Kipp, 1 Edw. Ch. 619 ; Little v. Harvey, 9 Wend. 157; Tuffts v. Tuffts, 18 Wend. 621, 625).
    III. A judgment which never became a lien, and a judgment which has ceased to be a lien, are identical. Ho sale can be had on a judgment which never became a lien (Townshend v. Wesson, 4 Duer, 356). (a). And therefore no sale can be had on a judgment which has ceased to be a lien. The sale is to enforce the lien: the lien having expired, there is nothing to enforce. It is like a mechanic’s lien, which, if suffered to expire, cannot "be enforced (Grant v. Vandercook, 8 Abb. Pr. N. S. 445).
    IV. In the case now "before the court, the judgment ceased to be a lien on the 2d or 3d of October, 1861. By the Code, section 282, the judgment is a lien for “ten years from the time of docketing the same.” This provision differs from the Revised Statutes (2 Rev. Stat. 359), which provided, “From and after ten years from the time of docketing, every such judgment shall cease to bind .... such property .... as against purchasers in good faith,” etc. In the case of a judgment under the Code, it is a lien for ten years only. Under the Revised Statutes, the judgment was a lien so long as it continued unsatisfied, with a provision for the lien ceasing at the end of ten years, against certain parties only. (a). The action by the Bowery Bank having been commenced after the Code took effect, the proceedings therein, and the effect of the judgment as a lien, are governed by the Code (Code, § 8).
    Decision of Judge Robinson, MS.
    V. The death of the defendant intermediate the judgment and the execution, did not extend the lien of the judgment beyond the ten years prescribed by Code, section 282. The Revised Statutes (2 Rev. Stat. 368, § 27) provide, that if a party die after judgment rendered against him, but before execution issued thereon, the remedy on such judgment shall not be suspended by reason of the non-age of any heir of such party ; but no execution shall issue on such judgment until the expiration of one year after the death of the party against whom the same was rendered. The only events which can extend the lien of the judgment are those mentioned in section 282, namely, the judgment creditor being restrained by injunction or other order, or by appeal (Pennsylvania Bank v. Creon, 2 Rawle, 224; Fryhoffer v. Busby, 17 Serg. & R. 121; Lesher v. Gillingham, Id. 123).

      VI. The provisions of law not in conflict with chapter 1 of title IX. of the Code (§§ 283-291), relating to executions and their incidents.....apply to executions prescribed by that chapter (Code, § 291).
    That a judgment shall be a lien for twenty years, conflicts with a provision that a judgment shall be a lien for ten years.
    VII. The judgment debtor having died after the execution returned unsatisfied, no proceedings to enforce the judgment could be taken, until the judgment was revived or the heirs summoned, pursuant to section 376 of the Code. Thó law of 1850, ch. 225, provides an additional preliminary to the issuance of an execution against the estate of a deceased judgment debtor, but has not dispensed with the proceedings provided by section 376 of the Code. The execution was irregular and void, as against the heirs (Marine Bank of Chicago v. Van Brunt, Court of Appeals, April, 1872 ; Wood v. Moorhouse, 45 N. Y. 368).

      James P. Sinnott, for respondent,
    urged: I. Section 3, of Article 1, Title 5, Chap. 6, of the Revised Statutes, enacted, that the lands and real estate of every person against whom a judgment should be docketed, should “be subject to be sold upon execution to be issued on such judgment” (2 Rev. Stat., Edmonds, Ed. p. 371).
    Section 291, of the Code of Procedure, enacted :
    § 291. “ Until otherwise provided by the legislature, the existing provisions of law, not in conflict with this chapter, relating to executions and their incidents, the property liable to sale on execution, the sale and redemption thereof, the powers and rights of officers, their duties thereon, and the proceedings to enforce those duties, and the liability of their sureties, shall apply to the executions prescribed by this chapter ” (5 Edmonds' Stat. at Large, p. 83).

      Section 289, of the Code of Procedure, in prescribing the form of an execution, enacted:
    “1. If it be against the property of the judgment debtor, it shall require the officer to satisfy the judgment out of the personal property of such debtor, and if sufficient personal property cannot be found, out of the real property belonging to him on the day when the judgment was docketed in the county, or at ary TIME THEREAFTER.”
    The court will observe that not only is no distinction, based upon the time of the issue of the execution, made between real and personal property, but the execution must direct the sheriff to satisfy the judgment out of the real property, if sufficient personal property cannot be found.
    Now, where an execution has once been issued within five years, and even if it had not been, the right to issue one continues an absolute legal right for twenty years, if the judgment remains unpaid and unsatisfied of record. It is the record of the judgment which gives the right to execution (Lee v. Watkins, 13 How. 178; S. C. 3 Abb. 243; Kennedy v. Mills, 4 Abb. 132; Betts v. Garr, 26 N. Y., 12 Smith, 383).
    • Here, then, we have the right to issue execution within twenty years, and we have the statute requiring us, whenever we do issue the execution, to make it direct the sheriff to satisfy the judgment out of the real ■ property belonging to the judgment debtor at the time of the docketing of the judgment, “or at any time thereafter ; ’ ’ and yet it is pretended • that we cannot touch this real property after ten years.
    It is true that if the creditor waits for more than ten years, and, in the mean time, other judgments have also become liens, the lien of the first judgment becomes ended, as to those other judgment creditors, and the liens of these other judgments continuing, the first judgment becomes a postponed judgment; it ceases to be a senior, and becomes a junior, judgment.
    II. By “the existing provisions of law,” at the time of the adoption of the Code, the lands of a judgment debtor were liable to be sold on execution, notwithstanding that more than ten years had elapsed since the judgment was docketed; and the sale was good as against the judgment debtor, and as against his heirs, and as against his grantees without value (Scott v. Howard, 3 Barb. 319; Ex parte, Peru Iron Company, 7 Cowen, 540; Mower v. Kip, 2 Edw. C. R. 165; Pettit v. Shepherd, 5 Paige, 493 ; Mohawk Bk. v. Atwater, 2 Paige, 54).
    In all these cases, the court holds that, notwithstanding the lapse of the ten years, the property will pass to the heirs, and gratuitous grantees, charged with the lien of the judgment.
    III. The existence of a technical lien is not, however, we insist, essential to the power of selling on execution.
    The power of selling land on execution is one thing; the lien of the judgment by which that power is made efficacious, is quite another.
    To create either the power or the incumbrance, a judgment must be rendered and docketed; which pimply shows, that they are children of the same parent, to wit, the docketed judgment; but surely this does not show that one may not survive the other, but the contrary.
    The Code, in stating what an execution shall contain, does not say that it shall direct the sheriff to satisfy the judgment out of any real property upon which the judgment is a lien; but it says, to satisfy the judgment out of any real property belonging to the judgment debtor at the time of the docketing, or at any time thereafter (Code, § 289).
    How, if, when the sheriff comes to sell, he finds real property belonging to the judgment debtor, and finds that that judgment debtor has still precisely the same interest- in the property which he had when the judgment was docketed, why may not the sheriff sell ?
    IY. The judgment does continue a lien after the ten years, as against the judgment debtor and his heirs.
    It is conceded, we believe—at least it cannot be denied. —that under the Revised Statutes the judgment continued a lien after the lapse of the ten years, as against the judgment debtor, his heirs and gratuitous grantees (3 Barb. 319; 7 Cowen, 540 ; 2 Paige, 54; 2 Edw. ch. 165 ; 5 Paige, 493).
    But the learned counsel for the plaintiff contends that the Code repeals the provisions of the Revised Statutes in that behalf. For this he cites no authority whatever, and his assertion is contrary to every expression of opinion heretofore published on the subject, including his own Annotations to the Code. There is no reported case upon the point.
    The learned counsel for the plaintiff has, in the various editions of the Code which he has so ably edited, cited, under this very section, 282 of the Code, the case of Scott v. Howard, as an authority to show, that the lien of a judgment continued, as against the judgment debtor, after the lapse of ten years.

    Judge Willard, in his able work on Real Estate and Conveyancing, after reciting the provisions of the Revised Statutes on this subject, says, “ the provisions of the Code are substantially the same” (page 153).
    Judge Comstock, in his 11th edition of Kent’s Commentaries, published in 1866, seems to have discovered no substantial change, and treats the provisions of the Revised Statutes as still in force (4 Kent, 435).
    In Tillinghurst and Shearman’s Practice, it is said, vol. 2, p. 719 : “ Whether the provisions of the Revised Statutes on the subject of judgment liens are in force or not, the interpretation put upon them by the courts is the same that would be put upon the Code. And on the same page they cite several cases to show that, as against the judgment debtor and his grantee, without a valuable consideration, the lien of the judgment ‘ continues in force for twenty years at least.’ ”
    In Gerard’s “Titles to Real Estate,” the sections of the Revised Statutes referred to are set forth as existing laws.
    In Willard’s Equity, a whole paragraph is devoted to the lien of judgments, and the provisions of the Revised Statutes in question are treated as continuing in full force.
    Mr. Justice Moeell, in his work on Practice, also lays down the rule, that the judgment continues a lien, except as against bona-fide purchasers, etc. (2 MonelV s TPr. 101).
    Such a universal understanding, by the profession, of a matter involving the title to real estate, will not, and should not, be lightly dissented from by this court, to the disturbance and confusion of titles, bond fide acquired. The argument db inconvenienti ought, in such a case, to be given the greatest force.
    The plaintiff’s counsel cited below the manuscript case of Coe v. Williams, decided by Hon. H. W. RobnsrsoR, as a referee. But that case seems to us not to have the slightest application. The case merely decides that if a junior judgment creditor issues an execution and sells real estate of the judgment debtor, the title of the purchaser will be good, subject to the prior judgment, and that if the ten years are permitted to elapse without a sale under the prior judgment, the title of the purchaser at the sale under the junior judgment will thereupon be released from the prior judgment, and a subsequent sale under the prior judgment will thereupon be void, as to the title of suph purchaser at the sale previously made.

      Y. The provisions of the Revised Statutes and of the Code as the latter stood in 1861, were as follows:

      Oode.

    § 282. On filing a judgment roll upon a judgment, directing in whole or in part the payment of money, it may be docketed with the clerk of the county where it was rendered, and in any other county, upon the filing with the clerk thereof a transcript of the original “docket,” and shall be a lien on the real property in . the county where the same is docketed, of every person against whom any such judgment shall be rendered, and which he may have at the time of docketing thereof, in the county in which such real estate is situated, or which he shall acquire at any time thereafter for ten years from the time of docketing the same in the county where it was rendered.
    But, whenever an appeal, etc. (Voorhies, Code, 8th ed., p. 518).

      Revised Statutes.

    § 3. All judgments hereafter rendered in any court of record shall bind and be a charge upon the lands, tenements, real estate, and chattels real, of every person against whom any such judgment shall be rendered, which such person may have at the time of docketing such judgment, or which'such person shall acquire at any time thereafter; and such real estate and chattels real shall be subject to be sold upon execution to be issued on such judgment.
    § 4. From and after ten years from the time of docketing every such judgment, it shall cease to bind or be a charge upon any such property as against purchasers in good faith, and as against encumbrances subsequent to such judgment, by mortgage judgment, decree, or otherwise (2 Edmonds’ Rev. Stat. p. 371).
    The question here arises, what was the true intention of the legislature, in reference to the lien of judgments, in enacting the Code; and was it such that, by a necessary and inevitable implication, the foregoing provisions of the Revised Statutes were repealed ?

      To ascertain this, we must look, not only to this section, "but to the entire act called the Code; and not only to that, but to the whole body of legislation on the same subject matter.
    In Bwabris on Statutes, pp. 145, 146, recently published and edited, with notes, by Mr. Justice Platt Potter, the following rules of interpretation are laid down, fortified by the highest authorities:
    “Where there is a discrepancy or disagreement between two statutes, such interpretation should be given, that both may, if possible, stand together ” (McCartee v. Orphan Asylum Society, 9 Cow. 437).
    16 In the construction of a statute, every part of it must be viewed in connection with the whole, so as to make all its parts harmonize, if practicable, and give a sensible and intelligent effect to each. It is not to be presumed that the legislature intended any part of a statute to be without meaning” (Ogden v. Smith, 2 Paige 384; People v. Draper, 15 N. Y. 532).
    “All statutes in pari materia are to be read and construed together, as if they formed part of the same statute and were enacted at the same time ” (1 Kents Com. 463 ; Smith's Com. § 639 ; 9 Barb. 161; Rogers v. Bradshaw, 20 John. 735; McCartee v. Orphan Asylum, 9 Cow. 437; Rexford v. Knight, 15 Barb. 627).
    Applying these rules to the subject under consideration, we find that section 282 of the Code contains no limitation for the benefit of bond-fde purchasers and encumbrancers, except it be contained in the words “for ten years.” If you omit these words, then § 280 makes the lien perpetual, even as against bond-fde pur chasers ; but by holding that these words of limitation were intended to operate to protect bona-fide purchasers, and were, in effect, but a reiteration, in another form, of the § 4 of the Revised Statutes, then you give a legitimate effect to both, and you make the whole act reconcilable with itself and with the Revised Statutes.

      In the next place, the court will observe that section 282 of the Code leaves unchanged and untouched the ■clause of section 8 of the Revised Statutes reading ‘1 and such real estate and chattels real shall be subject to be sold upon execution to be issued on such judgment /’ ’ while section 289 of the Code requires, that the execution shall direct the real estate to be sold. Why, if any lien be necessary to sustain the power of selling under the execution, the court must hold it to be created here, by necessary and inevitable intendment.
    Can any one read the Code and believe that it was in tended by § 282 that a judgment debtor might make over his real estate to his wife, or bestow it gratuitously upon his nephew, and leave a judgment duly docketed against him unpaid, in the face of § 289, which gives the right to sell this real estate on execution at any time within twenty years, and in the face of § 292, in regard to proceedings supplementary to execution ? If at any time within the twenty years you can discover property —real as well as personal—in the hands of a party who obtained it from the judgment debtor without value, can you not follow it into his hands % Therefore, it must be that the judgment continues to bind and be a charge upon the land as against that judgment debtor and his gratuitous grantee.
    How sections 289 and 292 not only help us to understand the real meaning of section 282, but, being later sections in the same act, they control it, to the extent necessary to give full effect to the power of execution.
   By the Court.—Monell, J.

The case furnished us on this appeal contains none of the evidence taken at the trial. It is made up merely of the findings and conclusions of the referee. The objection, therefore, that it does not appear that the surrogate had authority to allow the issuing of the execution, cannot now be examined.

In. the latest case (Stoddard Whiting, 48 JY. Y. B. 627), the rule is stated to be, that, “ when the case does not contain any of the evidence, but the finding of facts only, it is to be assumed that there was no evidence from which any other fact could be found ; and when the conclusions of law in such a case have been excepted to, the question to be determined, is, whether such conclusions are warranted by the facts found.”

The referee in this case having found that the surrogate, upon sufficient cause shown, made an order granting permission to issue execution upon the judgment; and the surrogate by statute (Laws, 1850, ch. 295) having power to make the order, it will be assumed that there was the requisite evidence before the referee to authorize its being made.

The remaining and important question is, whether the sale under the execution gave a valid title to the purchaser ; and the solution of that question depends upon whether the provisions of the Revised Statutes (2 JR. 8. 359, § 4) respecting the lien of judgments is now in force, or has been changed by the provisions of the Code, so as to destroy the right to sell the real property of the debtor upon execution issued more than ten years after judgment.

The provision of the Revised Statutes, limits the lien to ten years only as against subsequent purchasers and encumbrances; leaving the lien to continue after that period as against the debtor (Mohawk Bk. v. Atwater, 2 Paige, 54; Ex parte, The Peru Iron Co., 7 Cow. 540; Scott v. Howard, 3 Barb. 319). But the section of the Code fixing the lien of judgments, does not contain the exception which is found in the former statute ; but as well against the debtor, and consequently his heirs or devisees, as against subsequent purchasers or encumbrances, the lien by the terms of the statute, it would seem, absolutely ceases after ten years.

The authority given to the surrogate by the Act of 1850 (supra), to allow the issuing of an execution upon a judgment, is confined to judgments which are a lien upon the real estate of the deceased debtor; and the execution is to be issued and executed, in the same manner and with the same effect, as if the debtor was still living, except that a year must elapse after the death.

If, therefore, the judgment could be enforced only in virtue of a subsisting lien, the order of the surrogate was imperative if such lien had ceased to exist. Under the Act of 1813, which was like the provision of the Revised Statutes (1 R. L. 500), it was held (Roe v. Smart, 5 Cow. 294), that the issuing of an execution would not prolong the lien. From which it would seem to follow, that at least the sale must be made within the ten years, if nothing more. At any rate the lien ceases as to subsequent purchasers, etc., after that time (Crozier v. Acker, 7 Paige, 137).

But although the lien ceases, it does not follow that an execution may not issue, and a levy and sale made, of any property of the debtor within the bailiwick of the sheriff.

The omission in the Code ‘1 as against subsequent purchasers,” etc., does not alter the legal effect of the provision. Under either statute the lien would cease after ten years as to such purchasers, etc.; and possibly under the Code, the lien, as a mere lien, would also cease as to the debtor. But the writ of execution is a judicial writ, issued, presumptively, by the court to execute or enforce its judgment. Its form and time of issuing, etc., have been regulated by statute, but the power to issue is inherent in the court (Boote’s Suit at Law, 193), and its mandate is, as respects real property, to make the amount out of the real property of the debtor belonging to him on the day the judgment was docketed, or at any time thereafter.

Being satisfied that the Code has not deprived the creditor of the right to sell his debtor’s real estate at any time while he remains the owner, and that the sale in this case vested the title in the purchaser, I have not found it necessary to see whether the provision of the Revised Statutes is or is not repealed by the Code.

The Act of 1850 (supra) has been held not to be in conflict with the provisions of the Code, giving an action, in lieu of the former scire facias, to revive against heirs and terre tenants (Marine Bk. of Chicago v. Van Brunt, Court of Appeals, April, 1872), but as merely furnishing a cumulative remedy. The order of the surrogate ¿ad the effect of reviving the judgment as against the heirs of the deceased debtor, and as to them the lands became bound from that time.

I think the judgment of the referee was correct, and should be affirmed.


source: Caselaw Access Project

author: The Court.—Curtis, J.

license: Public Domain

text:
    FREDERICK VILMAR, Plaintiff and Appellant, v. WILLIAM SCHALL, Defendant and Respondent.
    Questions in an action already considered and decided by the General Term, will riot be reviewed again, unless for some sufficient reason shown. Objections to the reading of depositions from a commission, on the ground that some of the interrogatories were not fully answered, should be presented to the court as soon as discovered, on a motion to suppress.
    An account book, called a ledger, that does not appear to contain the original entries of a transaction, is inadmissible in evidence when the book of accounts containing such original entries can be produced.
    Before Monell, Cubtis, and Sedgwick, JJ.

      Decided June 29, 1872.
    Appeal from judgment entered on report of referee, and also from the order of reference. ‘

      Charles Wehle and S. H. Roman, for appellant.

      Augustus F. Smith, for respondent.
   The Court.—Curtis, J.

It appears, from the case, that the appeal from the order of reference in this action has "been heretofore heard at a general term of this court, that the question whether this action was referable was then passed upon, and the order appealed from affirmed. There appears to be no occasion for the present General Term to review this decision already-made. To do so, except for some sufficient reason shown, would be a departure from the settled practice of the court. If it were a new question not passed upon by the General Term already, an examination of the pleadings and case would lead to the conclusion that the action was properly referred for trial.

The plaintiff objects that the referee erred in the admission and exclusion of oral evidence, and in the admission of the deposition of Wm. Schall. Three of plaintiff’s exceptions are to the admission of defendant’s letters to plaintiff, which plaintiff’s counsel objects to as incompetent and irrelevant. They are competent evidence as a part of the transaction under consideration, and relevant to the question of accounting before the referee. The remaining exceptions of the plaintiff’s counsel to the rulings of the referee in reference to the admission and exclusion of oral testimony, and in reference to the admission of William Schall’s deposition, do not seem to be well taken.

The plaintiff should have presented his objections to the commission, on the ground that some of the interrogatories were not fully answered, by a motion to suppress.

Where difficulties of this kind are not presented until the deposition is being read at the trial, there is less opportunity to give them careful consideration.

The practice of the court does not favor delay in making these objections until the last moment, and when the opposing party may be surprised and prejudiced. The objection to any grievance in irregularity in the depositions taken under commission, especially where it has been executed in a foreign country, and under all the difficulties and embarrassments liable to there occur, should be easily raised, in order that, if substantial, it might be rectified without imposing unnecessary delay. The plaintiff in the present case fails to show any substantial objection to the deposition, and never applied, so far as it appears in the case, to have it suppressed.

The plaintiff excepted to the exclusion of his ledger by the referee, when he offered it in evidence. It does not appear that the entries in it were original entries, or that the book was entitled to be read in evidence.

A party has no right to insist upon having his ledger read in evidence, even if he does testify that it is a correct record of his dealings with his adversary. His complaint in the action may be the same. The law requires the best evidence of the transactions-, and the ledger of a party is not the book which furnishes it, when his books of account are produced.

The defendants were bankers, and as such performed certain acts and services at plaintiff’s request in procuring and supplying foreign exchange for him.

The commissions charged were the usual and proper commissions charged by bankers for such services. There is nothing in the case tending to show that the charges for commissions by defendants were-made with-any corrupt or usurious design. They should be allowed in the accounting, and were so allowed by the referee.

The plaintiff claims that the referee erred in various refusals to find. He claims that he should have found that the plaintiff deposited certain sums of currency with the defendants as plaintiff’s bankers. He makes also many other requests for the reféree to find.

The referee appears to have passed in his findings substantially, on all the matters upon which he was requested, and to have found in accordance with the evidence.

There is evidence that sustains the finding of the referee that the fifty shares of the stock of the Ninth National Bank were deposited with defendants, not only as security for the loan of $2,000, but as security for plaintiff’s general indebtedness.

It was the misfortune of the plaintiff to be a loser in the transaction passed upon before the referee. It seems to have been from no fault of his, but from the enormous advances in the price of gold during the years 1863 and 1864, owing to the disturbed condition of the country. The defendants do not seem to be censurable for any acts of theirs in reference to the plaintiff. They, from the outset, took measures to protect themselves from having to bear losses by any depreciation of currency. They had a right to do this, and they so framed their contracts with the plaintiff, and took steps to keep secured, in all which the plaintiff at the time acquiesced and agreed. In his losses, he shared in the general calamity, and that he was sanguine was no fault of his.

. The decision of the referee should not be disturbed, and the judgment and order appealed from should be affirmed, with costs to abide the event.


author: By the Court.—Monell, J.

text:
    JAMES O’BRIEN, Sheriff, etc., Plaintiff and Respondent, v. THE MECHANICS and TRADERS FIRE INSURANCE COMPANY, Defendants and Appellants.
    In case of a levy of an attachment upon debts due to the defendant in the action, the execution, or levy, must be madé by leaving a copy of the warrant with the debtor, with a notice showing the property levied upon

      (Code, § 235), and the notice must specify and describe the debt or property of the defendant levied upon. Review of cases upon this point (Orser ®. Grossman, 11 How. Pr. P. 520; Kuhlman «. Orser, 5 Due)', 242 ; Clarke ». Goodrich, 41 AT". Y. 210).
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided June 29, 1872.
    Appeal from a judgment and order.
    The action was upon a policy of insurance made Tby the defendants to one E. S. Chandler, Jr., against loss Tby fire to his property at Belleville, Florida. The property was destroyed Tby fire on the 36th of October, 1868.
    On the 3d of February, 1869, certain creditors of Chandler commenced an action against him in the Supreme Court of this State, in which action they procured an attachment under the 337th section of the Code, and delivered it to the plaintiff, who, as he claimed, attached under it the claim against the defendants arising under the policy.
    The deputy sheriff testified that he served a copy of the attachment upon the defendants, and asked if they had any property belonging to Chandler, and was told that they did not know at that time what property of his was in their possession. He said nothing to the company about a policy of insurance. Ho written or printed notice of any kind was served on the company.
    Ho other evidence was given in respect to the levy of the attachment.
    After giving evidence of the loss, the plaintiff rested, ' and the defendants moved to dismiss the complaint upon the ground (amongst others) that there was no evidence in the case that any levy was ever made upon the policy of insurance issued by the defendant in this action, or upon any claim for money alleged to be due under said policy ; that there was no evidence in the case that any notice was served upon the defendants by the sheriff, specifying that a levy was intended to be made, or was made, under any attachment upon said policy or contract of insurance, or upon any money or debt or demand due or alleged to be due by virtue thereof.
    The motion was denied, and the defendants excepted.
    The jury found for the plaintiff.
    The defendants appealed from the judgment.

      Mr. George W. Parsons, for appellants.

      Mr. William W. Badger, for respondent.
   By the Court.—Monell, J.

We are presented at the threshold of this case with the objection that the sheriff has never acquired the right of the insured under the policy of insurance; and, therefore, has no status to maintain the action.

His right to maintain it of course depends upon the sufficiency of the levy under the attachments.

The Code requires, in respect to debts due to the defendant in the attachment, that the execution of the attachment shall be made by leaving a copy of the warrant with the debtor, with a notice showing the property temed on (Code, § 235).

The deputy sheriff testified that he served a copy of the attachment upon .the secretary of the defendant’s company, and at the same time “ asked if they had any property belonging to Mr. E. S. Chandler, and that the secretary replied that he did not know at that time what property of his was in their possession. Nothing was said about a' policy of insurance ; and it does not appear that even the usual notice, which ordinarily is printed upon the back of the attachment, was served on the defendants.

The cases are uniform that to make a sufficient levy the notice must specify the property levied on.

In. Orser, Sheriff, v. Grossman, 11 How. Pr. R. 520, the action was hy the sheriff to recover a debt due from the defendant to the defendant in the attachment, and it was shown that a copy of the attachment was served with a notice, that he attached “ all property,” etc. It was held not to he a levy, and the complaint was dismissed.

In Kuhlman v. Orser, 5 Duer, 242, a similar notice was held to he insufficient; and a like decision was made in Wilson v. Duncan, 11 Abb. 3. See also Harman v. Remsen, 2 Abb. (N. S.) 272.

The late case of Clarke v. Goodrich, 41 N. Y. R. 210, is directly in point. The levy of the attachment was hy serving a copy and giving a general notice, which was held to he insufficient. The cases of Wilson v. Duncan, and Kuhlman v. Orser are approved, and that of Greenleaf v. Abbott, 19 Abb. 469, repudiated.

Under the authority of those cases, the levy in the present case was wholly insufficient, and the sheriff did not acquire under it any right to maintain this action.

The judgment must he reversed, and a new trial granted, with costs to the appellants to abide the event.


author: By the Court.—Curtis, J.

text:
    DAVID OGDEN, Plaintiff, v. GEORGE A. LATHROP, Defendant.
    To authorize a sale of stock pledged as collateral security, without notice to the pledgor, the stock note or instrument pledging the same, must expressly provide for such a sale (without notice). In its absence the sale of the stock without notice is an illegal act, and an unlawful conversion of the stock, and the pledgor can recover for such wrong.
    In determining which of two innocent parties must sustain a loss, the rule is that one who has suffered himself to be the means or instrument by which the loss has been created, must bear it.
    Every one who suffers himself to be put forward in a transaction must bear the legal consequences of the same; and least of all should he escape, when it appears that he was made the means or instrument for a sinister object.
    Before Freedman, Curtis, and Sedgwick, JJ.

      Decided June 29, 1872.
    The court directed a verdict for plaintiff, and that the exceptions be heard in the first instance at General Term. Judgment to be in. the meantime suspended. The points and facts in the case fully appear in the opinion of the court.

      Ambrose Monell, for plaintiff.

      Wm. G. Choate, for defendant.
   By the Court.—Curtis, J.

The action is brought to recover $3,800 damages for the conversion of fifty shares of the stock of the Columbia Insurance Company.

The answer admits that plaintiff owned the stock in December, 1865, and denies all the other allegations in the complaint, and further sets up that the plaintiff received of Thomas R Foster $112.50, in satisfaction of the alleged liability and damages in the complaint claimed.

It appears the plaintiff owed the Columbia Fire Insurance Company $5,000. The loan was called in the latter part of December, 1865, and the plaintiff called upon Thomas R Foster, vice-president of the company, and said he could raise but $2,500. Foster told him he had a friend, the defendant, who would loan him the money upon his pledging 50 shares of the stock of the company.

The plaintiff thereupon paid $2,500, and gave his note for $2,500, payable May 4, 1866, to defendant’s order, and with it also as collateral a stock note payable at one week’s notice for $2,500, and two "blank transfers of the stock with power of attorney. This took place December 30, 1865, and on the same day he received defendant’s check for $2,500.

The fifty shares of stock were transferred to defendant, who soon after endorsed the stock note to Foster. The stock, while standing in defendant’s name, was sold on the 3d of January, 1866, at auction for $3,776, and the proceeds received "by defendant, and paid "by him to Foster.

The company "became insolvent January 26,1866. May 1,1866, the stock was not worth more than $2.25 a share. Foster then told plaintiff he had got his fifty shares of stock, and could use them, and plaintiff then gave Foster an order to sell them, and Foster endorsed on the stock note a credit of $112.50 as for the stock sold, and the plaintiff took up the note, knowing nothing of the sale of the stock until July, 1867.

The court refused to dismiss the complaint, or to direct a verdict for defendant, but directed a verdict for plaintiff, to each of which rulings the defendant excepted. The court ordered the exceptions to "be heard in the first instance at General Term, and judgment suspended.

This cause has already been "before the General Term, on an appeal from a former trial (1 Sweeny II. 643). We are asked to review the former decision of the General Term on various grounds, but they do not seem to afford sufficient reasons for doing so. Unless a manifestly different case is made at the second trial, it is undesirable to depart from the settled rule in this respect.

For the purposes of this hearing, we must then consider it as already adjudged, that the stock note did not authorize a sale before default without notice to the pledgor. There is no evidence of any such notice, nor is it claimed that such a notice was ever given.

Consequently, the sale of the stock on the 3d of January, 1866, was an illegal act, an unlawful conversion of the stock, and the plaintiff is entitled to his remedy for the wrong.

The question arises, whether the evidence discloses such a state of facts as entitles him to enforce this remedy against the defendant. The defendant was kept in the dark throughout the transaction, and received no benefit from it whatever, and insists that he and the plaintiff are two innocent parties, and that the loss must remain where it falls.

In determining which of two innocent parties must sustain a loss, the rule is, that as between the'two, the one who has suffered himself or his representative to be the means or instrument by which the loss has been created, must bear it.

In the present instance, the defendant allows himself to become the principal in a covert operation. He takes a note in his own name; he becomes the transferer of stock, which the note on its face discloses to be pledged to him as collateral. He transfers that stock. It is sold illegally, and he receives the check for the proceeds. He was bound to take notice of the contents of the stock note which he received, and which recited that these shares of stock had been deposited with him as collateral, and which, by its terms, confirmed the performance of certain acts in reference to that stock, to his, “payee’s, option” and discretion, and that only.

If, with this notice and knowledge, he parts with the stock that is pledged to him, and with closed eyes and ears is led to do or to be the instrument of a wrong to the pledgor, it is but just that he should be made responsible for it. His confidence in Mr. Foster, his not informing himself about the transaction, and his ignorance of his incurring any liability by his acts, or those that he might authorize Mr. Foster to perform for him, do not seem to constitute any satisfactory reason why the plaintiff should, without fault on his part, illegally be deprived of his stock.

Every man who suffers himself to be put forward in a transaction must bear the legal consequences of it; and least of all should he escape when it is for a covert or sinister object. He may have his remedy against Mr. Foster or his estate, but he himself must be answerable to the plaintiff, unless it appears that the plaintiff received the $112.50 of Foster, set up in the answer in settlement and discharge of this demand.

In reference to this branch of the defence, the evidence shows that on the first of May, 1866, the plaintiff being ignorant that the stock had been sold before the failure of the company, and had realized $3,776, Foster told him that he had his fifty shares of stock, and that he could use them in some settlements he had to make. The stock was then worth from $2.00 to $2.25 per share. Plaintiff that day gave Foster an order to sell it, and on that day took up the stock note ; Foster first endorsing on it $112.50, as the sum for which the stock sold.

It is difficult to see how this sum of $112.50, endorsed on the note, constitutes an extinguishment of the plaintiff’s right to the actual proceeds of his stock. The evidence shows that the stock had been sold on the 3d of January previous, for a much larger sum, and that Foster knew of, and participated in, the sale. To claim that it constituted a satisfaction and discharge of plaintiff’s demand, because Foster told the plaintiff on the first of May following, when the stock had become nearly valueless, that he still had plaintiff’s fifty shares, and induced the plaintiff to give him an order for the sale of them, and then endorsed the supposed proceeds, $112.50, on the stock note, is perhaps insisting upon an unwarrantable application of legal principles. If there was, in fact, a misrepresentation made to the plaintiff, or a deception practised upon him to induce him to accept $112.50 as the proceeds of his stock, instead of the actual proceeds, he is not precluded, upon the discovery of the deceit, from enforcing his remedy for the recovery of the real proceeds of it.

Nor is there much force in the claim that the plaintiff ratified "by this the preceding transaction, and looked to Foster alone as the party with whom he was dealing. Where the plaintiff is wrongfully kept out of possession of the facts, and induced to do acts in his ignorance of the facts, that may tend to his prejudice, and to the benefit of those who mislead him, or are instrumental in misleading him, they cannot insist that he shall be bound by those acts (Story on Agency, § 243; Nixon v. Palmer, 8 N. Y. R. 401).

The defendant’s exceptions cannot be sustained, and judgment should be ordered for the plaintiff on the verdict.


text:
    MERRICK G. READE, et al., Plaintiffs and Appellants, v. EUCLID WATERHOUSE, et al., Defendants and Respondents.
    The language of § 321 of the Code makes an assignee of the cause of action after the commencement of the action, “liable for the costs, in the same maimer as if he were a party. ”
    An assignee in bankruptcy, who elects to proceed with an action of his assignor in the State court, is personally liable for costs under this section [Code, § 321). The successful party against such assignee cannot be compelled to seek the fund or estate of the bankrupt for his costs.
    Before Monell and Cubtis, JJ.

      Decided June 29, 1872.
    Appeal from an order made at Special Term by Judge Sedgwick.
    This action was commenced in 1868. In 1869 the plaintiffs were adjudicated "bankrupts, and Albert Smith was appointed their assignee in bankruptcy.
    The cause of action vested in Mm, and he prosecuted the suit to trial in 1872, when a verdict was rendered for defendants, and a judgment entered against the plaintiffs for $794.98 costs, from which he has appealed. Upon plaintiffs’ motion an order was made that he pay the costs, or in default that an attachment issue against him to compel such payment.
    The assignee appeals from tMs order.

      F. R. Condert and J. T. Williams, for appellants.

      John E. Parsons, for respondents.
   By the Court.—Curtis, J.

It is provided by the 321st section of the Code, that “ in actions in which the cause of action shall by assignment after the commencement of the action, or in any other manner, become the property of a person not a party to the action, such person shall be liable for the costs, in the same manner as if he were a party, and payment therefor may be enforced by attachment.”

It seems to be clearly intended by tMs provision of the Code, that when a cause of action in suit becomes the property of a person not a party to the action, such person shall not only be liable for the costs, but also to be attached for non-payment of them.

It is objected on the part of the assignee, that he is the trustee of an express trust, within the meaning of the 317th section of the Code, and not chargeable with costs. That section provides that such costs shall be Chargeable only upon or collected of the estate, fund or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant personally, for mismanagement or bad faith in such action or defence.” This appears to contemplate that the express trust embraced in it shall be snch a one as the State courts have control over, and can make orders in respect to, and exercise the supervision to determine what shall be made chargeable upon the trust estate, and what upon the trustee personally. But the State courts have no such supervision or control over an assignee in bankruptcy, appointed such under the laws of the United States, or the power to direct any disposition of any portion of the trust estate that may come into the assignee’s control by virtue of such appointment. Such assignee, when he avails himself of the State courts to prosecute a suit, knows that the State courts cannot protect him personally from liability to pay the costs of an unsuccessful litigation, by directing them to be chargeable upon the assets in his hands, even though it would be just and right that they should be so charged. He incurs the responsibility of costs with his eyes open, and he must look to the Federal court, under whose authority he is appointed and acts, to protect him, as it undoubtedly would in all reasonable and proper steps.

It is obvious that this assignee in bankruptcy is not, in the purview of the Code, “a trustee of an express trust.” If he was to be held such, it would defeat the very purposes of the provision, and would leave the courts open for the prosecution of suits by a class of persons who, when defeated, would escape the payment of costs, both in person and from the assigned assets, and inflict wrongs which the courts where the suits were prosecuted would be powerless to redress.

It is also urged on the part of the assignee, that the enforcing the payment of these costs by attachment is in effect a violation of the act prohibiting imprisonment for debt, and a return to barbarism.

It may possibly be, that the prosecution of a suit by an assignee in bankruptcy, and which the law presumes he only does with assets in Ms hands to pay costs if he does not succeed, and the subjecting by him of a defendant to great loss and expense thereby, constitutes a very different obligation on the part of the assignee, than that which the legislature had in view when they prohibited imprisonment in cases where a credit had been given arising out of a voluntary contract entered into by the consent of all parties to it. Justice and fair dealing would seem to require that an assignee in bankruptcy, with assets in his control, who subjects a defendant to costs and expenses, and who does not pay what the law requires him to pay the successful defendant—so often a scanty remuneration—should be placed upon a different footing and subjected to more stringent remedies than a simple debtor, to whom credit had been extended in a voluntary contract, and who has exercised no official powers and privileges to create an obligation on his part to pay, or to subject his creditor to disbursements and costs.

There is no collision with the law prohibiting imprisonment for debt, in the remedy sought to be enforced against the assignee. The enforcement of the law-of the State, and that too in furtherance of what is but simple justice, can never be construed as a return to barbarism.

I concur in the views expressed by the learned judge who made the order appealed from, and think that order should be affirmed with costs.


text:
    SAMUEL D. HOVEY, et al., Plaintiffs and Respondents, v. THE RUBBER TIP PENCIL COMPANY, Defendant and Appellant.
    Reasonable counsel fees and expenses and disbursements made or incurred, in obtaining a final decision that plaintiff was not entitled to an injunction that he had obtained in an action, are proper items of damage to be allowed to the defendant, because of the issue of said injunction.

      But it does not follow that the counsel fees, costs, and expenses paid out by the defendant, during the whole litigation including the trial, were paid in obtaining a decision that plaintiff was not entitled to the injunction, especially in view of the fact that plaintiff sought a recovery of damages, and other relief in the action, as well as an injunction, etc.
    A referee who is appointed to ascertain and report damages in such case, ■ must coniine himself to those costs and expenses actually incurred in the dissolution of the injunction, or in obtaining the final decision that plaintiff was not entitled to the same. If he includes all the costs, counsel fees, and expenses in the action, without distinction, it is error.
    Before Curtis and Sedgwick, JJ.

      Decided June 29, 1872.
    Appeal from order denying motion to confirm the report of the referee appointed to ascertain damages sustained by defendant by reason of the injunction.
    At the commencement of the suit, an ex parte injunction was granted upon an undertaking pursuant to section 222 of the Code, that the plaintiffs would pay to the defendant “such damages” . . .' “as it may sustain “by reason of the said injunction, if this court should “finally decide that the said plaintiffs were not entitled “ thereto,” not exceeding five hundred dollars.
    This injunction remained in force until the trial of the action before Mr. Justice Jones, when judgment was recovered by the defendant dismissing the complaint, from which no appeal has been taken.
    An order was subsequently made, appointing a referee to ascertain the damages sustained by defendant by reason of the injunction, who, after hearing proofs, reported “that said defendant is entitled to recover upon “said undertaking, the sum of five hundred dollars “ ($500) as damages sustained by reason of said injunction,” which damages consisted of counsel fees, incurred and expended by defendant, in obtaining a dismissal of the complaint, and which was reasonable in amount.

      The report was filed, and a motion to confirm it heard before Mr. Justice Jones, and December 30,1871, an order was made by him, denying the motion ; from which order this appeal is taken.

      John 8. Washburn, for appellant.

      Ambrose Monell, for respondents.
   By the Court.—Curtis, J.

The complaint in this action, in addition to seeking relief by an injunction, also sets up that the plaintiffs have been injured by the defendant’s acts, and sustained damages to the extent of five thousand dollars, and demands judgment against the defendant to that amount.

It is clear that counsel fees are to be allowed when they have been incurred in a successful motion to dissolve the injunction (Coates v. Coates, 1 Duer, 664).

It also appears that reasonable counsel fees, and expenses paid in obtaining a final decision that the plaintiff was not entitled to the injunction, are proper items of damage to be allowed.

The question for consideration is, whether the counsel fees and costs paid by the defendant during the litigation, including the trial, and which were allowed by the referee, as damages by reason of the injunction, were paid in obtaining a decision that the plaintiff was not entitled to the injunction.

The pleadings and the evidence do not satisfactorily show that such payments were made in obtaining a dissolution of the injunction. The claim for damages made by the plaintiff, was an element in the case, and which, irrespective of the demand for an injunction, had to be met and prepared for. The pleadings in this suit, and the defence of it, so far as it appears in the present proceeding, involved other issues and controversies, than what related simply to the relief sought by way of injunction, and it is apparent that it was defended for other reasons than simply to procure a dissolution of the injunction order. The sums paid as counsel fees by the defendant were not incurred in obtaining a dissolution of the injunction, but in the general defence of the suit. This does not bring them within the rule established in Coates v. Coates, 1 Duer, 664.

. The referee does not find what the services of counsel, if any, in dissolving the injunction were worth, or what sums, if any, were paid for such services ; nor does he find that any fees were paid them, as distinguished from the general fees paid them for services in the general defence of the suit. Neither the referee, nor the court, have the evidence before them, that enables them to decide what was actually paid by the defendant for services to obtain a dissolution of the injunction ; and unless this does appear clearly, it seems to be settled that the defendant cannot sustain a claim to be allowed this as damages (Strong v. DeForest, 15 Abb. 427; Town of Guilford v. Cornell, 4 Abb. 220; Child v. Lyons, 3 Robts. 704; Wilde v. Joel, 15 How. P. 320; Edwards v. Bodine, 11 Paige, 223).

A departure from that rule might in some cases affect plaintiffs oppressively.

There is no reason to think that it was the intention of the legislature, that an unsuccessful plaintiff, because he has as one branch of his relief asked for an injunction, should in addition to the payment to the defendant of the costs and allowances provided by the Code, be mulcted in all the counsel fees paid in the general defence of the suit.

I concur in the views of the learned judge who made the order appealed from, and which should be affirmed with costs to the plaintiff.