author:
Monell, J.
      Garvin, J.

text:
    Eleazer Ayres, plaintiff and respondent, vs. Matthew O’Farrell et al. defendants and appellants.
    1. In an action to recover the rent of a store, where the defendants, who were the tenants, had set up as a counter-claim, damage to their goods during their occupation, by smoke and soot of a furnace erected by the plaintiff, his servants or agents, in the basement of such premises, the exclusion of evidence offered to prove the items of such damage, and the nature and extent of the injury done to such goods, was held to be erroneous.
    2. The case having been sent back for a new trial, on a former appeal, because of the exclusion of similar evidence ; Held that the case was res judicata, on that question.
    8. When a counter-claim is proved, without contradiction, the court should direct the jury to assess the defendants’ damages, if requested to do so, instead of leaving any discretion with them, on the subject.
    4. Where the judge instructed the jury that as to the question of the defendants’ damages, the testimony fixed it beyond peradventure; and the jury, notwithstanding, rejected the counter-claim and gave the plaintiff a verdict for the amount claimed; Held that such verdict was not only against the evidence, but directly against the charge of the judge, and for that reason alone' the judgment should be reversed.
    (Before Babbouh, Mohbll and Gaeyih, JJ.)
    Heard January 11,1866;
    decided February 5,1866.
    Appeal from a judgment, and an order denying a motion for a new trial.
    The action was to recover the sum of $300, being three months’ rent of a store on Nassau street in the city of New York. The complaint alleged the making of a lease to the defendant Matthew O’Farrell for the joint benefit and occupancy of him and the defendant Daniel O’Farrell, who were copartners in trade. That the premises were occupied by the firm until December, 1857, when they made a general assignment of all their partnership property to the defendants Henry O’Farrell and William C. Higgins. That thereupon the assignees and assignors occupied the premises until the end of the term.' The three months’ rent fell due during such joint occupancy.
    The defendants answered jointly, admitting all the allegations in the complaint, except the amount of rent claimed to be due, and set up by way of a defense and counter-claim, that during such occupancy the plaintiff erected an oven furnace, or bakery under the store occupied by the defendants, filling said store with smoke and steam, and injuring their goods, and claimed to recover six thousand dollars as damages. The plaintiff replied to the counter-claim, denying each allegation thereof.
    The case was tried before Justice McCunn and a jury. The defendants gave some evidence tending to show that during their occupancy of the store, an oven was erected in the basement, by the tenant thereof, the plaintiff being there while it was being done. That the smoke and soot coming from the basement damaged the defendants’ goods, some forty and others fifty and sixty per cent. Two of the defendants, who were examined as witnesses, estimated the damage at from six thousand to six thousand five hundred dollars.
    The defendants offered to prove the items of their damage, and also the nature and extent of the damage done to their goods. This evidence was excluded by the justice, and the defendants excepted.
    The justice charged the jury that the defendants had the right to set up the counter-claim as a defense, and he charged them that the plaintiff was sufficiently identified with the premises to make him responsible, and it was for the jury to say what damage was done. He then stated to the jury, “ On the question of damages, the only evidence is that of the two O’Farrells. Ayres has not contradicted it, and the .rule of law is, that when a witness swears to a fact and is not contradicted, it must have weight with the court and jury. So that as to the question of damages, the testimony in the case fixes it beyond peradventure. It is therefore for you to say whether the plaintiff shall have a verdict or the defendants shall have one.” The jury gave the plaintiff a verdict.
    A motion for a new trial was made and denied at special term, and thereupon judgment was entered. The defendants appealed from the judgment and order.

      É. W. Dodge, for the appellants, defendants.

      A. K. Hadley, for the respondent, plaintiff.
   Monell, J.

The evidence offered by the defendants to prove the nature and extent of the damage to.their property was erroneously excluded. It was the precise evidence needed to establish their counter-claim. This case was sent back for a new trial on a former appeal, because of the exclusion of similar evidence, and the case is therefore res judicata on that question.

But the verdict is not only against the evidence, but directly against the charge of the learned justice before whom the case was tried.

The counter-claim was proved, without contradiction, and I think the justice should have directed the jury to assess the defendants'7 damages, rather than leave any discretion with them on the subject. He, however, told them that as to the question of damages the testimony fixed it beyond peradventure. Tet the jury rejected the counter-claim, and gave the plaintiff a verdict for the amount claimed^

For this reason, if for no other, the judgment and order should be reversed, and a new trial ordered, with costs to the appellants on this appeal to abide the event.

Garvin, J.

(after stating the facts as above.) The counterclaim was proved, and without any contradictory evidence was submitted to the jury under an appropriate charge by the court. The parties, by their pleadings, had made the counterclaim a material issue. Without this peculiar answer and issue taken thereon by the plaintiff, it may be very doubtful whether the defendants could have availed themselves of such a defense in this action; and just as doubtful whether the plaintiff could have maintained an action against any of the defendants except Matthew O’Farrell; but upon the issues as framed, and the evidence before the jury without objection and uncontradicted, and without any requests or suggestions to the court to charge the jury from the counsel on either side, we must hold the charge of the court was not in any sense erroneous. The court charged that the testimony as to the question of damages fixed it beyond peradventure. The verdict is directly against the charge of the court, and for this reason there should be a new trial, with costs to abide the event.

Barbour, J. concurred.

New trial granted.


source: Caselaw Access Project

author: The Court,

license: Public Domain

text:
    Thomas E. Bennett, receiver, &c. plaintiff, vs. William Erving, defendant.
    An action will not lie, in this court, to set aside as fraudulent a conveyance to the defendant, of a farm in .New Jersey; the “ subject of the action ” being land in another state.
    (Before Gabviit, J. at special tern,
    May, 1865.)
    This was an action to set aside as fraudulent a conveyance to the defendant, of a farm in new Jersey.
    The defendant’s counsel moved, on the trial, to dismiss the complaint, on the ground that the words “ cause of action,” in section 33 of the Code of Procedure, giving to this court jurisdiction of the actions enumerated in sections 123 and 124, “ when the cause of action shall have arisen, or the subject of the action shall be situated ” within the city of New York, refer to personal actions only, not to those of this character ; and that the “ subject of the action ” being land in another state, the suit would not lie.

      G. W. Stevens, for the plaintiff.

      G. W. Gotterill, for the defendant.
   The Court,

after consideration, granted the motion, and dismissed the complaint.


author: Garvin, J.

text:
    Henry W. Rosebrooks, plaintiff and respondent, vs. William B. Dinsmore, President of Adams Express Company, defendant and appellant.
    1. Proof on a trial of issues in an action, that a portion of goods shipped by the defendants for the plaintiff arrived at their place of destination, where their delivery was refused to an agent of the latter, does not sustain a complaint for neglecting to forward all of such goods from such place of destination to another, to which the defendants were directed to forward them, and for losing and destroying such goods by their negligence, where there is no evidence offered of such direction to change the destination,
    2. Such a variance between the cause of action and that of which the evidence offered might be proof, does not permit the court to conform the pleadings to the proofs, as the two causes of action differ in their whole scope; and the failure of proof is complete under section 170 of the Code of Procedure.
    (Before Mohem,, Garvhí and Joses, JJ,)
    Heard February 12, 1866;
    decided March 12, 1866.
    This action was brought to recover the value of goods shipped for the plaintiff by the defendants, in the fall of 1852, from New York to a consignee (Cantwell) at Harper’s Ferry, Virginia.

      The complaint alleges that before the arrival of the goods at their destination the consignee had left the place, and the defendants were directed to forward the goods from thence to Washington, to the same consignee. That the defendants neglected so to forward the goods, and so negligently acted in the premises that the goods were lost and destroyed. Upon the trial before the referee it appeared that a portion of the goods arrived at Sandy Hook, a place about a mile' from Harper’s Ferry, on the opposite side of the river, and shortly after the consignee demanded the goods there of the agent of the defendants, who refused to deliver them. The referee reported in favor of the plaintiff for the value at Harper’s Ferry, of the goods so demanded, with interest. Judgment was entered on the report accordingly, with costs. From this judgment the defendants appealed. The direction, notice and neglect of the defendants to forward the goods to Washington, as alleged in the complaint, was not proved.

      O, A. Seward, for the defendant, appellant.

      Torrance & Spaulding, for the plaintiff, respondent.
   By the Court,

Garvin, J.

The first question presented in this case for our consideration, is whether the plaintiff was entitled to judgment upon the facts proved, although not upon the cause of action set forth in the complaint; upon which he cannot recover. If the cause of action had been for refusing and neglecting to deliver the goods at Sandy Hook, when demanded, it would have presented a very different question. The goods having been thereafter lost or destroyed, the defendants might have been liable, because part of the arrangement was to forward to an agency nearest the place of destination. This was Sandy Hook, where the goods were detained for the want of a military permit to allow their passage to Harper’s Ferry. Here the consignee elected to take and receive them. This brings us to the question of the plaintiff’s right to judgment ■ under this complaint, upon the facts proved. At the close of the plaintiff’s case, the defendants moved to dismiss the complaint, on the "ground that no contract had been proved as alleged. This is equivalent to saying the cause of action, as alleged in the complaint, has not been proved. If no such question had been raised, and the parties had proceeded without. objection to the evidence, or raising any suoh question, thereby virtually agreeing to try a cause of. action not in the complaint, or covered by the answer, and allowed the evidence to go to the referee without regard to the pleadings, he, no doubt, might have pronounced any judgment which the facts proved authorized, or to which the party was entitled. (Code, § 173.) But where the allegation- of the cause of action or defense to which proof is directed, is “ unproven ” in its entire scope and meaning, and the objection is taken to the admissibility of evidence, showing another ground of action, or the question is raised directly, on motion to dismiss the complaint, it is held under section 170 of the Code to be a failure of proof. (Belknap v. Sealey, 14 N. Y. Rep. 143. 3 Bosw. 250. Id. 615. 10 N. Y. Rep. 363.) The allegation in the complaint of notice and direction to forward to Washington, was not proved, and so the referee has found ; but a demand and refusal to deliver the goods at Sandy Hook was proved. Upon this evidence the referee bases his report. In this we think he errred. The allegation in the complaint was, in its entire scope and meaning, not proved. To allow a conformation of pleadings now to any facts proved, would authorize the plaintiff to recover for a tort, in an action upon a contract. The judgment must be reversed, and a new trial ordered, costs of appeal to the appellant to abide the event.

Order of reference vacated.


author: Monell, J.

text:
    George Greer, plaintiff and respondent, vs. The Mayor, Aldermen and Commonalty of the City of New York, defendants and appellants.

      1. In an action against a municipal corporation, by a tenant for life of land having buildings thereon, to recover damages for injury to the buildings by a mob, it is erroneous, to estimate the value of the plaintiff’s estate therein, by taking the interest upon the pecuniary value of the whole land and premises as income, and multiplying such interest by the number of years, which, according to annuity tables, would be the probable duration of the plaintiff’s life, without making any deduction for taxes, repairs or insurance, or any rebate of interest for present value, of the annual income thus estimated.
    2. Where, through inadvertence, or excusable neglect or mistake of counsel, a case is permitted to go to the jury upon such an erroneous rule of damages, the court will grant relief, by giving such municipal body an opportunity to procure a correction of the error, even after the denial of a motion for a new trial, and the entry of judgment, if the neglect to apply at an earlier day is sufficiently excused.
    3. The standard of measure of neglect, applied to cases against individuals for their own acts or neglect for which they are themselves responsible, is not to be applied to public functionaries representing parties who are made liable for acts or omissions, which they are, or may be wholly ignorant of, and helpless to prevent.
    (Before Mohem,, J. at special term,
    April, 1866.)
    This was a motion by the defendants to set aside, vacate or open the judgment recovered by the plaintiff, in this action, and for a new trial; or that the defendants be permitted to renew their motion for a new trial upon the judge’s minutes, and for a re-settlemént of the case prepared for the appeal, by inserting therein the evidence given on the trial, and for a re-argument thereof. The facts fully appear in the opinion of the court.

      Richard O’Gorman, (counsel to the corporation,) for the motion.

      O. F. Sanford and L. B. Woodruff, opposed.
   Monell, J.

Two actions were brought against the corporation of the city of New York to recover damages for injury to a building on the southeast corner of Broadway and Twenty-ninth street, known as No. 1192 Broadway. In July, 1863, a mob of rioters attacked the building, set it on fire, and it was totally destroyed. One of such actions was brought by the plaintiff, to recover for the injury to his estate in the premises as tenant by the curtesy initiate, and the other of such actions was brought by Ann Greer, the wife of the plaintiff, to recover for the injury to her estate as owner of the fee. The plaintiff's action was tiled by a justice of this court and a jury, and resulted in an assessment of the injury to the plaintiff's estate at $20,520, for which sum, with interest, he ‘.obtained a verdict. A motion was made, upon the justice’s minutes, for a new trial, which was denied. Judgment was thereupon entered, and the defendants appealed to the general term of this court, from both the judgments and the order.

The case made by the defendants for the purpose of presenting the questions of fact'or law to be reviewed by the general term, contained no part of the evidence given on the -trial, and only a single exception, namely, to the allowance of interest. Certain facts were said to have been established, viz. the nature of the plaintiff’s estate ¿ the destruction of the buildings, and the value in money of the injury to the plaintiff’s life estate; but no evidence was furnished to the court to enable it to determine whether the plaintiff’s damages were ascertained upon correct principles, There being no evidence to review, and the only exceptions taken'being considered wholly untenable, the court affirmed the judgment and order. (See ante, 406.).

The action brought by Ann Greer was subsequently tried by another justice of this court, without a jury. Proof was adduced which established the whole value of the property destroyed at and not exceeding $37,400. The age of George Greer, her husband, was ascertained to be sixty-nine. The justice thereupon computed the value of his life estate, upon the principle applicable to life annuities, and deducted such value from the gross value of the property destroyed, and gave judgment in favor of Ann Greer for the remainder. In ascertaining the value of the life estate, the justice computed the interest upon the whole value, {i. e. §37,400,) at six per cent, and multiplied the interest by the number of years’ purchase furnished by the Carlisle annuity tables. Such computation was made pursuant to the directions contained in the 84th rule of the court, prescribing the mode of computation in such cases. The value of Ann Greer’s estate, as the owner of the fee, as thus established, was §23,794. Taking, however, the sum of §20,520, recovered by George Greer, as the value of his life estate, and the sum of §23,794, recovered by Ann Greer, as the value of her estate, we have an aggregate of §44,314, or §6914 more than the entire and highest proven value of the whole property destroyed.

A motion is now made to set aside, vacate or open the judgment recovered in favor of George Greer, and for a new trial; or that the defendants be permitted to renew their motion for a new trial, upon the minutes of the court, and for a re-settlement of the case prepared for the appeal, by inserting therein the evidence given on the trial, and for a re-argument thereof.

Upon this motion it now appears that considerable evidence was given, on the trial ■ of the George Greer suit, which was necessary to enable the jury to ascertain the value of his life estate. And it further appears that the principle adopted for ascertaining such value was by proof of the present value of the rents and profits of the premises, for one year, and multiplying such value by the number of years which, by the annuity tables, would be the probable duration of the plaintiff's life. Ko deduction appears to have been made for taxes, repairs or insurance, the two former of which are chargeable upon the life tenant, nor was there any deduction'or rebate of interest upon the annual rental thus, in effect, paid in advance for the ensuing six or seven years. This motion is' now made upon the ground that, through mistake, inadvertence, error or otherwise, the plaintiff has recovered at least §6914 more than upon any principle properly applicable to the facts of the case, he is entitled to recover.

I do not entertain a doubt that the plaintiff's recovery was too large, and I ■ am, therefore, clearly of opinion, that if no well settled principle of law or of the practice of the court be violated, the defendants ought to have an opportunity to correct the error! The power to do so is given, in express terms, by the 174th section of the Code, which provides that the court in its discretion, and upon such terms as shall be just, may relieve a party from a judgment, order or other proceeding taken against him, “through his mistake, inadvertence, surprise or excusable neglect.” I cannot persuade myself; that the mode .of ascertaining the damages in this case was adopted by the court, or assented to by the counsel for the corporation, upon a full and careful examination of the question. Indeed it does not appear that any question as to the correctness of the rule was raised on the trial, and it seems to have been tacitly assumed that it was the correct rule. I am, therefore, led to believe that through inadvertence, or perhaps, excusable neglect or mistake of the counsel for the defendants, the case was allowed to go to the jury upon what I deem to have been a clearly erroneous rule of damages.

Under such circumstances, I can have no hesitation in opening the case for a re-investigation, if the inadvertence or neglect has been excused. Great laches in seeking relief from mistakes are generally a complete answer to a motion for such relief; and courts will always, and very properly scrutinize closely any attempt to avoid consequences which a party has brought upon himself by his own act; and great delay in applying for relief is always a circumstance of suspicion, and will incline the mind to doubt the good faith of the application. But where there is no reasonable ground to question the integrity of the application, and where no principle of law will be invaded and the neglect is excused, there should be no reluctance to afford relief.

The action was defended by the counsel to the corporation, who is the law officer of the city. The answer of the defendants put in issue all the allegations of the plaintiff's complaint. The action was tried at the May term, in 1865, and evidence, to establish the plaintiff’s cause of action and the basis upon which the jury were to estimate the plaintiff’s damages, given, and the jury were instructed to adopt the rule of damages claimed by the plaintiff, and assented to by the corporation counsel as correct. The case was heard on appeal in the succeeding October general term, and decided at the November general term. The incumbent of the office of counsel to the corporation during these proceedings, was succeeded by the present counsel, on the 1st of January last, and pending suits and proceedings against the corporation at that time transferred to him. There is no evidence that the error now complained of was discovered by the late corporation counsel, who evidently was not aware that any doubts could be entertained of the correctness of the rule adopted, to which he yielded on the trial, no doubt believing it to be correct. The present corporation counsel, when he entered upon his office, found a mass of unfinished litigation, which, with other business constantly accumulating, rendered it impossible to investigate at once all the cases in his office. Yet this motion is made in a little over two months from his assumption of the office. The counsel to the corporation is an independent department of the corporate government, and represents the inhabitants of the county. He has charge of, and is responsible for, the conduct of all suits and proceedings against the city. To him are confided interests of great magnitude and importance. It is his duty, independently of any other department, to defend the city, and the taxable inhabitants thereof against all actions which, in his judgment, cannot be sustained. And it is also his duty, whenever in his judgment the interests of the city and its taxable inhabitants require it, to institute lawful proceedings f'o relieve them from any improper burden. That duty is none the less imperative whether the burden was imposed through mistake of himself, his predecessor in office, or any other department of the city government.

The measure of neglect which is applied to cases against individuals for their own acts or neglect for which they are themselves responsible, ought not to be applied to public functionaries representing parties, who are made liable for acts or omissions of which they are ignorant. The principle of the maxim, Nullum temjpus occurrif regi, in a modified form, is applicable to such a case, namely, that the community, or its representatives, cannot always be supposed to be aware of an unjust invasion of its rights. The corporation of New York has no entire control over its- counsel, he being an elective officer, so as to direct or change him ; and unless the courts can afford them protection or reliefj when brought to their notice, serious losses might fall upon the city treasury by the neglect or delinquency of an irresponsible official.

The several adjudications in this case, which it was so strongly urged should be regarded as concluding the corporation, upon this motion, do not afford, it seems to me, a sufficient reason for withholding the relief they now seek to obtain. I believe an errror was committed on the trial of the action which should not go uncorrected, if the court have power to correct it. And the plaintiff should not object, as I believe he will not, to have his judgment reduced, if he has recovered more than the law awards Mm..

I am, therefore; of opinion that so much of the motion as is necessary to give the defendants the relief they seek should be granted, on terms. The neglect to apply at an earlier day is to my mind sufficiently excused, and the defendants should not be injuriously prejudiced by the delay of a public official, more especially as the plaintiff cannot be injured, except by a short prolongation of his action.

I do not intend, and I mean it shall be so understood, that this decision shall be regarded as a precedent, or as affording any encouragement to relaxing proper attention to the defense of suits against the corporation. In conducting the large law business devolving upon the counsel to the corporation, mistakes and errors are almost inevitable, and more or less delay cannot, probably, be avoided.; but. only in clear cases of excusable negligence, or palpable error, will the courts feel inclined to relieve the corporation from the consequences of mistakes of the city officials. I have come to the conclusion, with much hesitation, however, that the order denying. the motion for a new trial, and the order affirming the same, should be set-aside, the case resettled, and a re-argument ordered. In no other way, without the consent of the plaintiff, can the error complained of be corrected.

An order may be entered that, unless the plaintiff, within twenty days from the entering and service of the order upon this decision, stipulates in writing to deduct from his judgment the sum of $6914 with interest from September 23, 1863, then upon payment by the defendants to the plaintiff, of the costs in the action, since the trial, including the costs of the appeal to the Court of Appeals, to be taxed, and of $10 costs of opposing this motion, the defendants have leave to re-settle the case and re-argue their motion for a new trial at the special term; that the order denying the motion for a new trial on the minutes of the justice, and the judgment affirming such order, be vacated and set aside ; and that until the decision of such motion, all proceedings on the judgment be stayed.


text:
    James W. Culver et al. plaintiffs, vs. David W. Felt, defendant.
    1. A cause not upon the calendar cannot be moved on for trial, and a party not finding the cause on the calendar of the term for which he has received notice of trial, is not bound to examine, from term to term, thereafter, to ascertain if the cause is in a condition to be called up for trial.
    2. Formerly, a notice of trial and a note of issue were both required for each term of the court; the alteration in that respect, in the first judicial district, merely requires one notice and one note of issue, but does not relieve parties from the necessity of placing their causes upon the calendar for the same term for which the trials are noticed.
    3. If the cause is not placed upon the calendar at the term for which notice of trial is given, an inquest cannot be taken at a subsequent term, noon that notice.
    (Before Mohem,, J. at special term,
    April, 1866.)


text:
    Rachel Unger, plaintiff, vs. The Forty- Second Street, &c. Railroad Company, defendants.
    Where,.after service of the summons and complaint, the defendants stay the plaintiff’s proceedings until the costs of a former suit are paid, the defendants cannot move, under section 274 of the Code of Procedure, to dismiss the complaint, if the costs have not been paid, and the stay is still in force.
    (Before Moseii, ¿T. at special term,
    April, 1866.


author: Robertson, Ch. J.

text:
    Charles Goodyear et al. plaintiffs and respondents, vs. Edwin A. Brooks et al. defendants and appellants.
    1. The grant of authority to courts, by section 271 of the Code, to refer actions involving the examination of a long account, is at most permissive, not peremptory, and is intended more for the benefit of the court, than as a right of the parties.
    2. The questions of law which may so be required to be decided are not confined to those arising out of the facts presented by the issues in the case. They may grow out of their very character, and the evidence necessary to their investigation.
    8. Where, in an action to foreclose chattel mortgages, the defense was that the mortgages were fraudulent; Sell that the necessity of proving good faith and honest intent would probably raise difficult questions of law, and, therefore the case was not one which should be referred.
    4, It seems, that proof of an intention on the part of the defendants to apply for the trial of issues by a jury, is not of itself an objection to granting the plaintiff’s motion for an order of reference.
    5. An action for the foreclosure of a mortgage is not in a condition to have all the issues therein referred, while any defendants, against whom the plaintiff seeks a judgment over for a deficiency, have not been served with a summons, or have been served with a notice that no personal claim is made against them, and have not appeared.
    (Before Robertsor, Ch. J., and Barbour and Garvih, JJ.)
    Heard April, 1866;
    decided-, 1866.
    Appeal from a order directing a reference of this cause. The action was brought by Charles, George and George W. Goodyear and Henry Durand, against Edwin A. Brooks and ten other defendants, to foreclose two chattel mortgages, given "by the defendant Brooks to the plaintiffs, to secure the payment of a sum of money claimed to be due to the plaintiffs, a part of it from Brooks, and a part of it from the ■ firm of Church & Brooks. A judgment for a deficiency was only asked for against Church & Brooks. The only defendants who appeared and answered were judgment creditors of the mortgagor, Brooks, (claiming in their answers an interest in, and lien upon, the property alleged to be covered by the mortgages, under executions issued by them against the property of Brooks,) and the sheriff of the city and county of New York, by whom such executions were levied. These defendants also claimed, in their answers, that the mortgages were fraudulent, illegal and void.
    The plaintiff, upon the affidavit of one of his attorneys stating that the trial of the action would involve the examination of a long account; that the claim of the plaintiffs, secured by the mortgages was made up of numerous transactions had by the plaintiffs as brokers of the defendants, the items of which were very numerous, and that there were numerous items of credits, the examination of which was necessary to ascertain the amount due, obtained an order from a justice of this court, at special term, referring the issues in the action to a referee, to hear and determine the same.
    The defendants, in an affidavit made by them to oppose the motion, alleged that the mortgages were fraudulent; that the defendants had a good defense ; that the issues would involve much contradiction, questions of veracity, and various questions of fraud; and that it was the intention of the defendants, as soon as the action should be at issue with respect to all the defendants, to move that the issues of fact be sent to a jury for trial. They further alleged, on belief, that if, on the trial, the issues should be found in favor of the defendants, no examination of an account would be necessary ; that the trial would involve the decision of difficult questions of law; and that the action was not at issue with respect to all the defendants.

      The court made an order directing the issues to be referred to Christopher Pine, Esq. to hear and determine the • same; and the defendants appealed.

      Oram & Robinson, for the appellants.

      George H. Paine, for the respondents.
   By the Court,

Robertson, Ch. J.

The necessity of deciding difficult questions “in the investigation” is expressly-excepted from the grant of authority to courts to direct references of all the issues in an action to a referee to be tried, in case their' trial requires the examination of a long account. {Oode, § 271.)

The grant itself is, at most, permissive, not peremptory, and evidently intended more for the benefit of the court, than as a right of the parties, since it is allowed to exercise the power on its own motion. The questions of law which may be so required to be decided, are not confined to those arising out of the facts presented by the issues in the case ; they may grow out of their very character, and the evidence necessary to their investigation. In this case the questions of law, in regard to the good faith and honest intent of the chattel mortgages héld by plaintiffs, may be very simple, and yet offers of evidence may raise very difficult ones. The answer, in this case, besides charging generally, that such mortgages were executed with intent- to interfere with the collection by the other de- ■ fendants, of their claims against Brooks, alleges an entire want of consideration for them, secrecy in their execution, and a continued possession of such chattels by the defendant Brooks, after such execution. This, which is not denied in any paper before us, throws on the plaintiff the burden of proving good faith and honest intent in executing such mortgages. (2 R. S. 137, § 4.) And although such intent is made by the statute a question of fact and not of law, such good faith is not; the statute intended by it something besides the intent, and was evidently designed to cover cases where, although the mortgagee had an honest debt, and his sole desire was to secure it, he allowed himself and it, to be knowingly used to keep other creditors at- bay.

But even if the statute meant precisely the same thing, by “good faith” and “intent not to hinder, delayer defraud,” courts have made out of matters appearing on the face of _ an instrument, questions of law as to fraud. And even if the only questions on the main issues were questions of fact, in addition to determining such questions as to the good faith and intent, yet, the relevancy of evidence offered and its sufficiency to establish them, when in issue, may present difficult questions of law. • ■

The mortgagee, of course, cannot introduce every thing he thinks proper, by way of proof of his honesty. Whatever is offered must have some legal, direct bearing on the questions at issue. A just debt to be secured, undoubtedly lies at the bottom of such proofs, but the mere necessities or convenience of the mortgagor have been held not to be sufficient, alone, to go to a jury as evidence of such honesty of intention. (Doane v. Eddy, 16 Wend. 523. Randall v. Cook, 17 id. 53.) Eo rule has, however, been established as to any other circumstances. The fact that a jury is to pass upon the evidence of circumstances showing good faith, does not render the question of its admissibility less difficult of solution, or take away the necessity of the regulation of its admission by an experienced judge, instead of a referee, who is only required to possess the skill necessary to examine a long account. The fact, that referees may and often do possess equal skill and experience, does riot alter the theory and object of the statute to leave litigation to the determination of ordinary tribunals created for the purpose, unless there is special necessity for the use of others. Unless the plaintiff in this case can prove his good faith and honest intent, he must fail at the trial, and the introduction of evidence for the purpose will most probably raise difficult questions of law.

I am not prepared to say that proof of an intention on the part of. the defendants to apply for a trial of special issues in the action by jury, as provided in the 254th section of the' Code would, of itself, even if proved, render an order for a trial by a referee of all the issues erroneous, because I see no obstacle to authorizing such mode of trial, notwithstanding such order of reference.

The latter may in all cases be applied for and obtained immediately after issue joined, or any time afterwards; the - former may be done upon a notice given ten days after issue joined, beside which full time is allowed for the settlement of such issues, if granted. (Gen. Ct. Rule, 33.) If the motion to refer can cut off that right, then the mere intent to apply ought to be sufficient to require the order of reference to be made conditional, unless such application be made within some specified time; but I cannot think the granting absolutely of an order of reference cuts off that right. If such issues were of a kind, that their determination would dispose of the case, so as. to render unnecessary the taking of an account at all, the rule would apply that the examination of a long account being unnecessary, a reference would be equally so. (Graham v. Golding, 7 How. Pr. 260. Keeler v. Plank Road Company, 10 id. 11. Cameron v. Freeman, 18 id. 310; S. C. 10 Abb. Pr. 333.)

I think, however, there is another objection in this, case to a reference of all the issues. While the plaintiff has joined as a cause of action with his claim under the chattel mortgages, a personal liability of the defendants Brooks and Church for moneys advanced, he only prays for judgment against them for any deficiency in the amount so claimed, after applying the proceeds of the mortgaged property in satisfaction; but as appears by the affidavit of the attorney for the defendants he has served upon the defendant Brooks, besides a summons, a notice that no personal claim is made against him, while he has not served any summons at all on the defendant Church. Even, therefore, if the plaintiff could proceed in this action against the defendants, Brooks and Church, to recover judgment against them under the' 136th section of the Code, notwithstanding his notice that he made no personal claim against them, and if a judgment for a deficiency in an action for the foreclosure of a mortgage comes under the section last named, I do not see how the action is in a condition to have the liabilities of such two defendants determined on the trial of all the issues therein before a referee, so as to have judgment and execution against the joint property of Church and Brooks. Assuming also Church to be a proper party to an action, to which, the defendants who are creditors of Brooks are made parties, merely as having subsequent claims to that of' the plaintiff upon the mortgaged chattels, and that the determination of his liability, or its amount, must be simultaneous with that, of the rights of such defendants, since there can be but one trial and judgment in the action, it is not very clear how such trial can be had, or judgment given, until Church has been brought before the court. The first subdivision of such 136th section is a mere re-enactment of a previous statutory provision, (2 R. S. 377, § 1,) and could hardly have been designed to reach further than it did. Although possibly by the reduction of forms of action, and jurisdictions of courts to one, comprising equitable as well as legal forms and jurisdictions, joint liabilities may be embraced by it, it could not have been intended to extend to cases, where an action for such liability was joined with one, where other causes of action were to be passed upon, other equities settled and relief given besides such joint judgment. Section 375 of the Code permits an entirely new litigation of the liability of joint contractors not served, involving of course the question of the validity of the mortgages. There is no good reason for omitting to serve a party, if a resident, personally, or if absent, by publication, where the defendants have equities as between each other, except in an action on a joint liability, where the recovery is of a simple judgment for the amount due upon it against joint contractors. The only reference that could have been ordered in this action, if Brooks and Church had been the sole defendants, and the former, having alone been served with the summons, had not appeared or answered, would have been one to take an account or proof of some particular fact necessary to enable the court to give judgment. (Gode, § 246, subd. 2.) As there can be but one trial and judgment in the action, any referee., as a substitute for the court or a jury, must assess the amount due from Brooks and Church as part of such judgment; yet no authority to do so is given him by the order of reference in question. Besides, the referee can only try the issues made by the pleadings in the action, and has no authority to determine equities between the defendants, under section 274 of the Code, or dispose of the costs.

There is no reason why any property held jointly by Church and Brooks, therefore, should be charged (under an execution) with the costs of the litigations respecting the validity of the mortgages given by the latter. While Church remains a party on the record, and is not brought in, the cause must be considered as not at issue as regards him, and, therefore, not in a situation for a reference to dispose of all the issues. (Jansen v. Tappen, 3 Cowen, 34. Dutcher v. Wilgus, 2 How. Pr. 180. Burnham, v. DeBevorse, 8 id. 159. Ward v. Dewey, 12 id. 193. Powell v. Finch, 5 Duer, 666. Hawkins v. Avery, 32 Barb. 551.)

Eor these reasons, the order appealed from should be reversed, without costs, to either party,


text:
    Eliza J. Brown, plaintiff and respondent, vs. Ebenezer H. Brown, defendant and appellant.
    1. An equitable action for the admeasurement of dower is sustainable, under the Code of Procedure, Courts of equity have always had jurisdiction, concurrently with courts of law, in such actions.
    2. If it be also an action of ejectment for the recovery of dower, there is no difficulty in the junction of the two. Courts of equity have always administered other equities in conjunction with such admeasurement.
    S. Where the court, in an action to recover dower, adjudges that the plaintiff is entitled to dower, it may appoint a referee, to admeasure the plaintiff’s dower, and assess her damages by loss of rents and profits, instead of the three freeholders formerly required in an action at law for dower.

      4. Where a referee is appointed for the purpose of admeasuring and assigning dower, &c. and the defendant appears and litigates before the referee the matters referred, without appealing from the order of reference, or filing exceptions to the report, he thereby waives the right of appeal from such order of reference, and every objection except a want of jurisdiction.
    6.. On appeal, also, such an error in the proceedings as admeasuring dower by one person, instead of three, (required to be) freeholders, should be disregarded, as not affecting the substantial rights of the defendant.
    6. A widow is entitled, as dower, to one third, of the land according to its value at the time of its alienation by the husband; and is not to be allowed for any increase in value since, or any improvements. But the improvements may be assigned as a part of the dower, provided they are not taken into account in admeasuring the dower; although, if an assignment be otherwise practicable, they should not be included in it.
    7. Where a referee has exercised his discretion in assigning improvements as a part of the plaintiff’s dower, which decision has been passed upon by a judge at special term, such decision should not be disturbed, on appeal.
    8. In this case it was held that the taxes before the six years to which the inquiry of valuation of the premises, &c. was limited, were properly excluded by the referee, as was also the rate paid for the use of the Croton water by the defendant. Also any amount paid for ornamental work, or repairs to the additions or improvements.
    (Before Robertson, Oh. J., and Barboüb and Garvin, JJ.)
    Heard April 9, 1866;
    decided June 30, 1866.
    This was an action under the Code, (in the nature of a suit in equity,) to recover the plaintiff’s dower in twelve lots of' land and a dwelling house at Harlem, conveyed by her husband in his life time to the defendant, and occupied by the alienee at all times thereafter.
    The complaint alleged these facts, and that the plaintiff had demanded her dower, and the défendant refused to assign it to her. The prayer of the complaint was that the plaintiff’s dower might be assigned and admeasured to her, and that she might be put in possession, and that she might be paid one third the rents of the premises, and that she might have such other relief as was proper.
    The answer admitted the conveyance to the defendant by the plaintiff’s husband, and the defendant’s occupation of the premises, but averred a release of dower.
    The trial took place at special term without a jury, before Hon. John M. Barbour, justice. The plaintiff proved the allegations in her complaint. The defendant offered no defense. The plaintiff claimed that the following were the facts in. the case:
    . On the 20th day of December, 1854, William H. Brown, the husband of the plaintiff, conveyed to the defendant certain lots of land lying between 125th and 126th streets and the 7th and 8th avenues, and a dwelling house thereon. On the 27th of October, 1855, William H. Brown died. The plaintiff never released her dovrer in the premises. Shortly after her husband’s death, she demanded of the defendant that her dower be assigned to her, &c. The defendant refused. The premises in question consisted of twelve lots, six fronting on 125th street, worth $1900 each, together $11,400, and six fronting on 126th street, worth $800 each, together $4800. The dwelling house, exclusive of improvements put upon it by the defendant, was worth $3500, and the other buildings, &c. were worth $400, making together $20,100, of which the widow’s one third was $6700. The improvements added to the dwelling house were worth, at the time of the hearing, $800, making it worth, in its improved state, $4300. The referee assigned this house to the widow, together with three of the inferior lots worth $2400, making the whole amount of the value of the property awarded her equal to $6700, to be held by her during life. The rents for the period inquired of, amounted to $3900, which were reduced by repairs and taxes, &c. to $2037.56, of which the plaintiff was entitled to one third, or $679.15.
    The plaintiff offered evidence of. the value of the premises and of the rents, with a view to having the plaintiff’s dower assigned and mesne profits awarded by the court. The court, however, (although admitting the evidence) declined to adjudicate upon these matters, further than to decide that the plaintiff was entitled to dower and a portion of the rents, and to direct a reference to ascertain them.
    The judgment directed a reference to Daniel P. Ingraham, Jr. to ascertain and report to the court what was proper dower for the plaintiff, &c. and to take and report to the court an account of the rents and profits for six years, prior to the entry of the judgment, exclusive of the profits arising from improvements, and deducting taxes and necessary repairs. The reference being had, the referee made his report, assigning three lots of land and the dwelling house in question, to the plaintiff as her dower, and reporting a small amount, $679.15, due her for her share of the rents of the property during the period in question. The defendant excepted to this report. The exceptions were argued at special term, and the report remitted to the referee for specific findings upon some minor matters. An additional report was made by the referee, and after further argument, the report was in all things affirmed, and final judgment entered accordingly.
    Appeal was taken from the judgment, by the defendant. The exceptions which were taken by him on the trial before the court, and on the hearing before the referee, together with the exceptions filed on the conclusions of law and fact of the court, and the reports of the referee, were the subject of review on this appeal.

      R. W. Andrews, for the appellant, defendant.
    I. The widow is only entitled to damages, or rents as damages, from the time of demand of dower. Such damages are not to be estimated on any improvements made after death of the husband. (3 R. S. 5th ed. 33, §§ 20, 21.) The justice, therefore, erred in finding that the plaintiff was entitled to one third of the rents from October 27, 1855.
    II. The justice erred in sending the proceedings to a referee to assign dower. There are two methods prescribed by statute to recover dower : Ejectment, (3 R. S. (5th ed.) 592;) or proceedings by petition to the Supreme Court, county court, or surrogate, for admeasurement of dower, (3 R. S. 5th ed. 791;) In both cases the statute expressly provides that • “ three reputable and disinterested freeholders ” shall be appointed commissioners to admeasure dower. (3 R. S. 5th ed. p. 598, § 48, dec.; p. 792, § 13.) Neither of these provisions is inconsistent with the Code of Procedure, and both still exist. There can be no question as to the continuance of the action of ejectment. The other proceeding by petition is a “ special statutory remedy, not heretofore obtained by action,” and saved by section 471 of the Code. The referee has attempted to get round these provisions of the statutes by taking “ the deposition of three disinterested freeholders,” as he reports.
    III. The referee erred in setting aside for the widow the dwelling House. All the improvements made by the defendant were upon the house. By giving the house to the plaintiff she gets all these improvements, and the defendant gets only vacant lots, without any allowance to him for the improvements.
    IV. The referee erred in finding that the only amount paid for taxes by the defendant was $52.94. The evidence shows that the -defendant paid the taxes of 1857 and 1859, and the Croton water taxes of 1857, 1858, 1859, 1860, 1861, 1862 and 1863. The referee also erred in striking out the evidence of payment of Croton tax. This tax was a lien on the property for the non-payment of which the property might have been sold.
    V. The referee should have allowed payments for insurance. -Insurance was necessary for the preservation of the property, and as much for the benefit of the plaintiff as of the defendant.

      A. Mathews, for the plaintiff, respondent.
    I. This is an equitable action to have dower assigned to the plaintiff. The complaint, and its prayer, is framed in the manner of a bill in equity, and is a proper mode of proceeding. (1 Story’s Eq. Juris. §§ 624 to 632. Swaine v. Perine, 5 John. Ch. 482. Badgley v. Bruce, 4 Paige, 98. Townsend v. Townsend, 2 Sandf. 711. Code of Procedure, § 468.)
    1. The Eevised Statutes have not affected the equitable remedy for dower. They abolished only the legal writ of dower, and substituted therefor the legal action of ejectment. (2 R. S. p. 343, § 34, and p. 303, § 2, subd. 2.)

      2. The plaintiff properly recovered rents and profits, as well as assignment of her dower in the same action. (1 R. L. p. 57, §20 p. 60, § 1. 1 R. S. p. 742, §§ 19, 20, 21. Code of Procedure, § 167, subd. 5.)
    3. If there be any technical error, the court should disregard it. (Code of Procedure, § 176.)
    II. The judgment was proper in form, and the exceptions thereto immaterial. (Hughes’ Equity Draughtsman, 827. Swaine v. Perine, 5 John. Ch. 482. Williams v. Cox, 2 Edw. 178. Stilwell v. Doughty, 2 Brad. Surr. 311.)
    III. This being an Equity case, the exceptions taken upon the hearing before the referee after judgment, are not to be considered with the same strictness as in a bill of exceptions in an action at law. The judgment will not be reversed for technical error. It is enough if it is substantially right. (Forrest v. Forrest, 25 N. Y. Rep. 511.)
    IY. The report of the referee was in all respects just, and warranted by the facts proved before him. So far as there was any conflict of evidence, his findings, and those of the court at special term, upon matters of fact, are conclusive. (Cohen v. Dupont, 1 Sandf. 262. Mazetti v. New York and Harlem R. R. Co., 3 E. D. Smith, 98. Pearson v. Fiske, 2 Hilton, 146. Skinner v. Oettinger, 14 Abb. 109. Brooks v. Christopher, 5 Duer, 216.)
    1. The referee was bound to estimate the value of the property at $20,000 to wit: Six lots on 125th street, (No. 437 to 442,) . . . $11,400 Six lots on 126th street, (No. 399 to 404,) . . . 4,800 Dwelling house, (exclusive of “improvements,”) . . 3,500 Other buildings &c., (exclusive of such improvements,) .............. 400
    Of which the widow's share was one third, ($6,700.) The testimony of the plaintiff’s three witnesses furnished the only reliable criterion for determining their value, which was opposed only by that of the defendant in person, whose opinion is unreliable; he valued only the house and buildings, and did not controvert the valuation of the lots.

      2. In setting apart a portion of the property, worth $.6,700, to the widow, the referee had a right to divide as he thought proper, and gave her a life estate in that which will be available to her. The vacant lots would he useless to a life tenant. The defendant can easily keep his property by paying the widow a fair equivalent. (2 R. S. 490, § 13. White v. Story, 3 Hill, 543.)
    Adopting the estimates of the three disinterested witnesses, the widow was entitled to have set apart to her the Dwelling house valued at.........$3,500 Improvements at............ 8Ó0 And three lots on 126th st., valued at..... 2,400 Making in all,....... $6,700
    Even upon the estimates of the defendant himself) the widow would have, at least, Jhe house, the two lots upon which it stands, and one of the adjoining lots.'
    3. The referee, for the like reasons, was hound to adopt the testimony of the three disinterested freeholders, as to the value of the rents, during the period required by the order of reference, (from October 28, 1857, to October 28, 1863,) as follows : Rent of dwelling for six years, exclusive of the increased rent by reason of improvements, ($700 per year; equal to) $4200.
    4. Erom this amount, the referee deducted all the “taxes,” imposed on the premises (for the- six years) between October 28, 1863, which had been paid by the defendant. But he could not deduct the penalty added by extraordinary interest for defendants’s delinquency in not paying during the time allowed by law for that purpose, nor. could he deduct “ Groton water rates,” which are not “ taxes.” He also allowed for repairs necessary to “keep the premises in ordinary tenantable condition,” He could not allow for matter ornamental or matter of taste, nor for repairs to “ gas fittings’•’ or “plumbing,” being part of the defendant’s
      additions and “ improvements,” and allowed as such in the valuation thereof.
    5. It rested in the discretion of the referee, subject to approval of the court at special term, to determine the amount of land, &c. to be set apart as the widow’s dower, and this matter is not properly the subject of review upon appeal. (Forrest v. Forrest, 25 N. Y. Rep. 514.)
    V. There was no error of law in the report, and the exceptions thereto are not well founded.
    VI. The questions of fact arising before the referee were fully canvassed before the court at special term, upon the argument of the exceptions to the report. Its decision is conclusive as to all matters of fact. (Osborn’s adm’x v. Marquand, 1 Sandf. 457.)
    VII. There was no error of the referee in the admission or exclusion of testimony to the prejudice of the defendant.

      Points on the question of assignment of dower, and of mesne profits.

    I. If there was any “irregularity” in the judgment as respects the reference ordered in the judgment, it has been waived by the parties.
    1. More than “ a year ” elapsed between the filing of the judgment and the giving the notice of appeal, or making this application. (2 R. S. p. 359, § 2.)
    2. The parties have proceeded with the reference until it was completed, and the defendant has had the benefit of the delay. (Forrest v. Forrest, 8 Bosw. 653. S. C. 25 N. Y. Rep. 514. Claflin v. Farmers and Citizens’ Bank, Id. 296.)
    II. If there were any defect in the proceeding before the judge at special term, in matter of form, or in any respect other than touching power or 'jurisdiction, then, as neither party complains of it, and the “substantial rights” of neither partyare affected thereby, the court must disregard it. (Code, § 176. 2 R. S. p. 425, § 78. Whitehead v. Pecare, 9 How. Pr. 35. Bedford v. Terhune, 27 id. 422.)

      III. The court can indulge in no presumption which will tend to invalidate the judgment. The party obtaining the judgment is entitled to every presumption necessary to sustain it. Numerous cases illustrate the extent of this clear rule of appellate courts. (Otis v. Spencer, 16 N. Y. Rep. 611. Viele v. B. and T. R. R. Co., 20 id. 184. Hoyt v. Hoyt, 8 Bosw. 521.)
    “It is incumbent on the appellant to take care so to present the facts upon which the case depends as to show affirmatively that an error has been committed. The court will presume nothing in favor of the party alleging error.” (Carman v. Pultz, 21 N. Y. Rep. 551. Lewis v. Jones, 13 Abb. 427. Grant v. Morse, 22 N. Y. Rep. 323. Heroy v. Kerr, 8 Bosw. 204. Richardson v. Dugan, Id. 212. Lee Bank v. Satterlee, 17 Abb. 13.)
    IV. The judgment of the court at special term was final and complete in all respects; having disposed of all the issues and left no judicial function unexhausted in the justice who tried the cause.
    1. The reference to admeasure the dower by metes and bounds and take the account of the rents, was merely a ministerial matter subject to the subsequent affirmance of the court. The judgment was final, and became complete when the report was confirmed, and is identical in all its characteristics with those pronounced final and approved in form by this court, and the Court of Appeals. (Swarthout v. Curtis, 4 Comst. 416. Lawrence v. Farmers’ Loan and Trust Co., 15 How. 57.)
    2. The same form of decree was usual in chancery proceedings before the Code. (Mills v. Hoag, 7 Paige, 18. Johnson v. Everett, 9 id. 639.)
    3. The cases where courts have held judgments incomplete, not final, and amounting to a mistrial, have been where the court failed to determine all the issues presented by the pleadings, and are wholly distinguishable from this case. (See Buchanan v. Cheseborough, 5 Duer, 238; Griffin v. Cranston, 1 Bosw. 281; S. C. 5 id. 658; O’Brien v. Bowes,
      4 id. 657; Chamberlain v. Dempsey, 14 Abb. 241; S. C. 15 id. 1.)
    4. If this was not a final judgment, then it was merely an interlocutory order as respects the reference, and the appeal, therefore, should be dismissed upon the notice served, because not taken within the thirty days allowed by law. (Lawrence v. Farmers’ Loan and Trust Co., 15 How. Pr. 57. Cotes v. Carroll, 28 id. 436.)
    Y. The court at special term, had power and authority in this case, being an equitable action to recover dower, to direct a reference to set it out, and compute the amount due for mesne profits.
    1. By the constitution of this state the legislature has power “ to alter and regulate proceedings in law and equity.” (Constitution of N. Y., art. 6, § 6, &c. Phillips v. Gorham, 17 N. Y. Rep. 272.)
    2. By the judiciary act of 1847, section 77, this court has power given it to refer to a referee all matters formerly referred to a master in chancery. (4 R. S. Edm. ed. 568, § 77. Knickerbacker v. Eggleston, 3 How. Pr. 130.) It has full chancery jurisdiction, and the rules and principles governing courts of equity apply to proceedings in equitable cases in it. (Forrest v. Forrest, 8 Bosw. 656, and 25 N. Y. Rep. 510.)
    3. Under the Code, (§§ 468 and 469,) all rights of action may be prosecuted in the manner provided by it. In case an action cannot be had under it, “ the practice heretofore in use,” may be adopted so far as necessary. Where consistent with it the former “rules and practice of the courts,” in civil actions, “ continue in force subject to the power of the respective courts to relax, modify or alter the same.” So also by the rules of court, (rule 93,) where no provision is made by statute, or the rules of court, the proceedings in suits like this must be “ according to the customary practice as it heretofore existed in the Court of Chancery.” By virtue of these provisions various ancient rules of practice and modes of proceeding in law and equity have been retained, both by the Court of Appeals and the inferior courts ; and the prior practice is held to he “ abolished only in a qualified manner!’ (Hastings v. McKinley, 8 How. Pr. 175. Averill v. Patterson, 10 id. 87. Miles v. Clarke, 2 Bosw. 711. Palmer v. Palmer, 13 How. Pr. 364. Bank of Genesee v. Patchin, 3 Kern. 314. Washington Life Ins. Co. v. Lawrence, 28 How. Pr. 435.)
    4. Whether then we regard this as a case of reference under the judgment, to set out this dower, and to take the account of these rents as specifically provided for by the Code or not, there can be no question of the power of the court in the premises to act, either under the Code or under the former practice. Every referee appointed under the authority of the Code, has “ generally-the powers vested in a referee by law,” before the Code. (Code, § 421.) This reference falls precisely within the provision of the Code, (§ 271, subd. 2,) for “ carrying the judgment into effect.” (Elmore v. Thomas, 7 Abb. 72. Ketchum v. Clark, 22 Barb. 319. Forrest v. Forrest, 8 Bosw. 656. Same v. Same, 25 N. Y. Rep. 510.)
    If this should be even doubtful or erroneous, there can be no question of the propriety of this reference under the former equity practice. (Swaine v. Perine, 5 John. Ch. 482. Townsend v. Townsend, 2 Sandf. 711.)

      5. • The prayer of the complaint was for equitable relief. The court had power to grant “ any relief consistent with the case made by the complaint and embraced within the issue.” (Gode, § 275.) The judge tried and decided every issue, and the reference was ordered merely as a customary mode of administering the relief to which the court adjudged the plaintiff to be entitled. The court decided the plaintiff entitled to dower and rents and to a reference to ascertain the quantum thereof. The evidence adduced on the trial was insufficient, -and was not intended to enable the court to determine this. There was no evidence as to improvements on the land — repairs or taxes. The case does not find, or purport to find, that the parties sought to have or could have ha,d these matters determined on the trial. The proof concerning the same should have come from the defendants. They offered no proof whatever. A decision hy the court as to the quantum of dower and rents on the evidence would have been impossible without great prejudice to the defendants. The reference was for their benefit. The court could not survey or set out the dower by metes and bounds. The reference was, therefore, necessary to prevent a failure of justice. Moreover, this court is bound to presume, (if necessary in order to sustain this judgment,) as was the fact, that the parties designedly omitted to offer evidence as to these details, because they preferred to have the quantum of dower and rents ascertained by a reference ordered to carry the judgment into effect.
   By the Court,

Robertson, Ch. J.

It was adjudged in this case that the plaintiff was entitled to dower in certain land at Harlem, in the city of New York, lying between Sixth and Seventh avenues, and running through from 125th to 126th street, (being one hundred and fifty feet wide by about two hundred deep,) and also to one third of the rents of such land (after certain deductions) from a certain day in the year 1855 to the present time, exclusive of any arising from improvements on such premises, made since their alienation. Judgment was rendered that the part of such land which should be set out by a referee, (who was thereby empowered to set the same out for such dower,) should be assigned to the plaintiff for the same, and that the defendant and all claiming under him should deliver possession thereof to her, and that the defendant should pay to the plaintiff, one third part of the rents and profits of such land for six years next preceding the entry of such judgment, to be ascertained by the same referee. Costs and an execution were also awarded to the plaintiff. Upon the report of such referee, duly confirmed, after exceptions heard, judgment has been entered and the roll filed, from which, and such confirmation, an appeal has been taken. The cases of Swartwout v. Curtis, (4 Comst. 416,) and Lawrence v. Farmers' Loan and Trust Co. (15 How. 57,) show such judgment to have been in proper form. It corresponds with forms of decrees formerly made in courts of chancery, (Mills v. Hoag, 7 Paige, 18; Johnson v. Everett, 9 id. 639,) and was not infected with any of the vices of the judgments in Buchanan v. Cheseborough, (5 Duer, 238;) Griffin v. Cranston, (1 Bosw. 281; S. C. 5 id. 658;) O’Brien v. Bowes, (4 id. 657;) and Chamberlain v. Dempsey, (14 Abb. Pr. 241; S. C. 15 id. 1.) In the first of these cases, (Buchanan v. Cheseborough,) a conditional reference was ordered, to ascertain an amount due, after, the general term should pass upon the liability of the defendant, a general pro forma verdict having been taken against him. In the second, (Griffin v. Cranston,) the first judgment (1 Bosw.) left a material issue of the time of cessation of a certain partnership undisposed of, and the second judgment did not purport to determine all the matters in issue. In the third, (O’Brien v. Bowes,) a condition attached to a judgment of dismissal of the complaint, that the plaintiff was not to apply for a trial of the questions of fact by a jury, was held to be repugnant, and rejected as surplusage. In the last, (Chamberlain v. Dempsey,) the amount due on the mortgage sought to be foreclosed was not determined on the' first trial, but on an order of reference made by a different judge, and on a second trial, a judgment, without disposing of the question of costs, was given, and a reference ordered, on which a different judgment was afterwards rendered.

The present action is certainly sustainable as one in a court of equity for the admeasurement of dower, over which such courts always had jurisdiction concurrently with courts of law. (1 Story on Eq. Juris. §§ 624 to 632. Badgley v. Bruce, 4 Paige, 98. Townsend v. Townsend, 2 Sandf. 711.) If it be also an action of ejectment for the recovery of dower, there is no difficulty in the junction of the two. Indeed, courts of equity have always administered other equities in conjunction with such admeasurement, (Swaine v. Perine, 5 John. Ch. 482; Bell v. Mayor, &c. of New York, 10 Paige, 49,) and seem the more appropriate and even exclusive tribunals in some cases of the kind. (Van Dyne v. Thayre, 19 Wend. 162. Cooper v. Whitney, 3 Hill, 95. Balter v. Chase, 6 id. 482. Runyan v. Stewart, 12 Barb. 537.) The facilities for taking an account in a court of equity of the rents and profits, would seem to render an action of an equitable character, or in a court of equity, most proper. But all the boundaries of jurisdiction, and distinctions between causes of action as legal or equitable, being removed, there seems no reason why all the relief to which the plaintiff is entitled should not be given in one action. Indeed, a court of equity when it has gained jurisdiction for one purpose, may retain it for other purposes, although they alone would not have constituted a primary ground of equity jurisdiction. The objection is, therefore, not one of jurisdiction, but of misjoinder of causes of action, and has.been waived by not being taken by answer or demurrer. (Code, §§ 144,148. Bank of Utica v. City of Utica, 4 Paige, 399. Ludlow v. Simond, 2 Caine’s Cas. 1. Truscott v. King, 6 N. Y. Rep. 147.) But although the action may be fairly in this court, and' no objection has been made to an adjudication in it upon all the issues involved, it is said such court cannot use a referee to admeasure the plaintiff’s dower, and assess her damages by loss of rents and profits, instead of the three freeholders formerly required in an action of ejectment for dower, (2 R. S. 312, § 48, subd. 1; Id. p. 310, §§ 36 to 47,) or a special petition, (Id. 489, § 10.) The appointment of three freeholders utider such statute was clearly only a mode of supplying the defects of the machinery of a court of law, after giving judgment, in carrying it out, and to save the necessity of a new action or proceeding. Now, however, the only ordinary proceeding in á court to enforce or protect a right, or prevent a wrong, is, in the most general terms, an action.” (Code, § 2.) It can have but one form. (Code, § 69.) Every distinction between actions at law and suits in equity, and their forms, is abolished. (Id.) Every court, therefore, whether exercising legal or equitable jurisdiction in such proceeding, now possesses the former powers of both courts of law and equity to investigate disputed questions, by every mode peculiar • to either, and to make its judgment as to the rights of parties effectual. The Code expressly declares that all rights of action given or secured by existing laws, may be prosecuted in the manner provided by” it. (§ 468.) Every court has power, where an answer is put in, to grant relief consistent with the case made by the complaint, and embraced within the issue. (Id. § 275.) The court, in this action, had power, therefore, to admeasure and enforce the plaintiff’s right of dower, if it determined that she had' any under the case made. What part of the land the plaintiff was entitled to as dower, as well as the amount due her for her share of the profits withheld, were specific questions of fact involved in the issue made by the pleadings, and were, therefore, proper subjects of reference, and their determination was necessary to carry the judgment into effect. (Code, § 254.) There surely could be no doubt of the power of the court, in such an action, to admeasure the dower itself, if it had sufficient materials before it, after acquiring jurisdiction over the subject. If so, it could transfer the inquiry to a referee to aid in ascertaining it. The defendant waived every objection, except a want of jurisdiction, and even a right of appeal from the order of reference, by litigating before the referee without such appeal, and by filing exceptions to the report. (Combs v. Wyckoff, 1 Cai. 147. Forrest v. Forrest, 8 Bosw. 653. S. C. 25 N. Y. Rep. 510. Claflin v. Farmers and Citizens’ Bank, Id. 296.) On appeal, also, such an error in the proceeding as admeasuring the dower by one referee instead of three, (as it does not appear that he was not a freeholder,) should be disregarded, as not affecting the substantial rights of the defendant. (Code, § 176.)

The plaintiff, of course, was only entitled to one third of the land, according to its value at the time of its alienation in 1854 to the defendant, under the statute of 1806, (1 R. L. 1813, 60, § 1,) and the Revised Statutes, (1 R. S. 740, § 1; Id. 742, § 17; 2 id. 490, § 13,) and was not to be allowed for any increase in value since, ( Walker v. Schuyler, 10 Wend. 481,) or any improvements. (Coates v. Cheever, 1 Cowen, 460.) Ho evidence was given of any change in its value up to the time of the inquiry before the referee, of any improvements put upon the premises, except upon the house. Exclusive of the 'improvements the house could hardly have been worth as much at the time of the trial as at that of the alienation. Omitting the house, the relative value of the lots remaining to those assigned to the plaintiff must, most probably, have c'ontinued the same between those dates. The use of the house at its present valuation, including the cost of improvements made by the defendant therein, was assessed to make up the value of one third of the premises, exclusive of the valuation of the improvements in the house assigned to her for dower. There is no rule of law forbidding absolutely the assignment of such improvements as part of the dower, provided they are not taken, into account in admeasuring the dower, although if an assignment he otherwise practicable they are not to be included. (2 B. S. 490, § 13, subd. 2. Coates v. Cheever, 1 Cowen, 460. Bell v. Mayor, &c. New York, 10 Paige, 49, 72.) Such improvements could not well he separated from the house. The propriety of the exercise of the discretion of the referee in that respect was passed upon at special term and his decision should not he disturbed. (Forrest v. Forrest, ubi supra.) The other provision of the same statute (2 R. S. 490, § 13, subd. 2,) was complied with by deducting from the lands allotted for dower the value of the improvements.

Taxes, before the six years to which the inquiry was limited, being before October, 1857, were properly excluded, as was the rate paid for the use of Croton water by the defendant. Any amount paid for ornamental work or repairs to the additions or improvements was properly excluded. There was no evidence that the defendant insured the plaintiff’s interest in the premises or any thing more than his own; whether either he or she could have recovered, if he had so insured is doubtful, (DeLonguemare v. Tradesmen’s Insurance Company, 2 Hall, 589,) he was not entitled, therefore, to any premiums of insurance paid, unless shown to have been-for the plaintiff’s benefit. Eo errors of fact have been shown to have been committed by the referee.

The judgment and order confirming the report must, therefore, be affirmed, with costs.


text:
    Wm. W. Wright et al. plaintiffs and appellants, vs. Israel Ritterman, defendant and respondent.
    1. The pendency of an action upon contract, for goods sold and delivered, will not prevent the bringing of an action for the conversion of the same goods. The plaintiff' may have two remedies, in such a case; and an adjudication in an action brought to obtain either, whether for or against him, may be a bar to the other; but at any time previous to such an adjudication, he may discontinue the first action and proceed with the second.
    2. The general rule, however, is that no man shall be twice vexed by an arrest for the same cause of action.
    3. Where a defendant has been discharged from imprisonment under an order of arrest, by due course of law, he ought not to be re-arrested, and imprisoned a second time, for the same cause, though in a different form of action.
    (Before Robertson, Oh. J., and Monelb and Garvin, JJ.)
    Heard May 14, 1866;
    decided June 30, 1866.
    The defendant, on the 26th of September, 1865, falsely and fraudulently represented to the plaintiffs, with intent to cheat and defraud them, that he was worth the sum of $10,000, and on the faith of that representation they sold him and he obtained from them, a bill of goods amounting to nearly four thousand dollars.
    The plaintiffs, on the 14th of September, 1865, commenced an action in the Supreme Court for goods sold and delivered, and obtained an order of arrest for the defendant, whereon he was held to bail in the sum of $4000. Upon this order he was arrested and imprisoned. The defendant made and served his answer on the 14th of December, 1865, containing a general denial of the plaintiffs’ complaint. The action in the Supreme Court is still pending. Being imprisoned and confined under and by virtue of the aforesaid order of arrest, the defendant applied to his honor the city judge, by petition, for exoneration of his person from imprisonment, and on the 14th of February, 1866, he was released and discharged under the provisions of art. 5, title 1, part 2, ch. 5, of the Revised Statutes. After his release and discharge, and on the same day, an action was commenced in this court against him, for fraudulently converting the plaintiffs’ goods, wherein an order of arrest was issued and the defendant thereupon arrested and re-imprisoned, it being for the same transaction for which an action upon contract was brought in the Supreme Court; the action in this court being for a tort. A motion was made to vacate the order of arrest, before a justice of this court, and granted upon the ground that pending an action upon contract, for goods sold and delivered, no action can be maintained for the conversion of the same goods. The plaintiffs appealed from that order.

      0. Bainbridge Smith, for the appellants.
    1. An old English rule of court prescribes that a “defendant should not he holden to bail a second time for the same cause of action.” (Petersdorf on Bail, 131. 10 Law Lib. p. 72.) Nemo debet bis vexari pro eadem causa. Therefore where a defendant was arrested on a new writ, pending a prior action wherein he had been previously arrested for the same cause, the court discharged him on common bail. (1 Tidd’s Pr. Am. ed. and Notes, 1856, 175.) In the case at har, the defendant was discharged from imprisonment by the insolvent act before he was arrested on the order of arrest made in the second action. The act, of which the defendant took the benefit, does not exempt debtors from imprisonment in actions for tort. (2 R. S. 4th ed. 30. Kennedy v. Strong, 10 John. 289. S. C. 14 id. 128. Hayden v. Palmer, 24 Wend. 364. 24 id. 128.)
    II. Under the English rule and the maxim cited there were exceptions. Such as after a non pros. (1 Strange, 439 ;) or nonsuit for not sufficiently proving the execution of a bond, (Barnes, 73;) or failure (on the ground of variance) in a former action, (1 Chit. 273 ;) or where the plaintiff became bankrupt before interlocutory judgment, (15 East, 631;) or where after suing out common process, a bailable writ was issued for the same cause, before discontinuing the first action., (6 Term R. 616; 1 Chit. 276; 13 Price, 8;) or where the bail had been forsworn. (2 Strange, 1216.)
    III. So, in the case at bar where the defendant has commited so gross a fraud, the court should not seek to discharge him, but .endeavor to uphold the order of arrest, unless it violates some positive rule of law.
    IV. The court, at special term, seems to have discharged the defendant upon the ground, that the plaintiffs, having elected to sue upon the contract, could not afterwards sue the defendant for the tort, while the first action was pending. This is farther than any case in this country has ever gone, and, it is" submitted, cannot be supported by principle or authority.
    The principle of election of remedies or waiver of right to an action is not applicable; nor does it arise in a case like the one at bar, because no judgment was recovered in the first suit, and until verdict or judgment, the plaintiffs had a right to discontinue. (Bank of Beloit v. Beale, 7 Bosw. 611, 626, 630. Sanger v. Wood, 3 John. Ch. 416;) and the first suit could be discontinued at any time before the reply is due, or within the time to serve it, if one were necessary. (Marston v. Lawrence, 1 John. Cas. 397. Averill v. Patterson, 10 N. Y. Rep. 500. Beals v. Cameron, 3 How. Pr. 414.)
    V. If the plaintiffs’ present action can be maintained, the order vacating the order of arrest must be reversed. That is the foundation, upon which the court at special term vacated the order. The action is one, in which the plaintiffs are entitled to an order of arrest, and execution can issue against the defendant’s person. (Code, § 288.) The fraud is self-evident, and is not denied. He does not swear that he intends to plead the former action. Is it right for the court to anticipate that he would; and if he should so plead, he would find the former action discontinued, and if it were not, the right to discontinue after plea is available to the plaintiffs.

      B. F. Sawyer, for the respondent.
    I. The second order of arrest in this action was granted after the defendant had obtained his discharge under the insolvent act, the action in which it was issued, being for a cause existing previous to such discharge. This is, of itself, sufficient to vacate the order of arrest. (3 R. S. 5th ed. p. 104, §§10,11.)
    II. The question of the good faith or regularity of the discharge cannot be raised on this motion. (Reed v. Gordon, 1 Cowen, 50. Dresser v. Shufeldt, 7 How. Pr. 85. Noble v. Johnson, 9 John. 259. Russell v. Packard, 9 Wend. 431. Wall v. Thorn. 14 Abb. Pr. 292, n. Rich v. Salinger, 11 id. 344. Stuart v. Salhinger, 14 id. 291, and n.)

    III. The discharge in the present case .exempted Ritterman from imprisonment upon orders of arrest issued in actions sounding in tort, brought after, but upon causes existing before, such discharge. '
    1. At common law, the body of the debtor was not liable to execution for debts, except at the suit of the king. Otherwise in actions for tort, and Coke gives the reason. (Winchester’s case, 3 Coke, 12, and numerous cases cited in notes. 3 Black. Com. 414.)
    2. This distinction is preserved by the Code with an extension of the remedy to certain cases besides those of technical trespass vi et armis. The order of arrest was intended as a method of securing the presence of the debtor, in the event of judgment being rendered against him, so as to enforce it against his person. The old rule of the common law prevailed until 1862, that he cannot be charged in execution, unless this order of arrest had issued before judgment. (Code, §§ 179, 288.) As to election of remedies, see Morris v. Rexford, (18 N. Y Rep. 552.)
    3. The courts uniformly hold, even under the old practice, that an insolvent discharge operates as well upon debts ex delicto as upon those ex contractu, even in regard to executions against the person, issued after the discharge, for torts
      committed previously, and have disposed of objections urged in nearly the same language as those now made. (Luther v. Deyo, 19 Wend. 629. Ex parte Thayer, 4 Cowen, 66. Hayden v. Palmer, 24 Wend. 364, 366. Deyo v. Van Valkenburgh, 5 Hill, 242.)
    4. It is no answer to say that the debt is fixed by the judgment and the cause of action is merged in it; and that the amount claimed in suits for torts being unliquidated, are not technically “ debts ” until reduced to judgment.
    (1.) The object of the order of arrest, as shown, is to detain the person of the debtor until execution can issue against him.
    (21.) It is absurd to contend that a man may be held on an order of arrest issued after his discharge under the insolvent act, when no execution against his person, issued on such judgment, could imprison him while that discharge was in force.
    (3.) The Revised Statutes, which must be regarded as still in force, contemplated no such artifical distinction. By the term “ debt ” was meant whatever the law would compel the insolvent to pay, whether certain or not. In other words, it exempted his person from imprisonment for a legal liability to a third party to pay him money. The amount is only a question of computation. (3 R. S. 5th ed. p. 104, § 10. Andrews v. Murray, 9 Abb. Pr. 8, 14, Newell v. The People, 3 Seld. 124.)
    (4.) Indeed, if the cause of action exists in any of these suits, and no defense exists, the whole question is the amount of damages. The “debt” exists and is merely rendered certain by the judgment; •“ absente obligations absente jure actionis.” (Riley v. Byrne, 2 Barn. & Ad. 779.)
    (5.) If, therefore, the “debt” exists, though prior to judgment in an unliquidated form as to amount, it is covered by the express language of the statute; which, in exonerating the insolvent from imprisonment draws no distinction as to time, whether before or after judgment. (3 R. S. 5th ed.
      104, § 10.) On a motion, the recitals in a discharge are conclusive. (Wall v. Thorn, 14 Abb. Pr. 292, note.)

      5. It was not necessary that a judgment should be entered, to entitle the defendant to be discharged from his imprisonment. The act, section 11, under which the discharge was granted, provides for his release upon mesne process. That is upon any and all processes inferior or less than that on a final judgment. That section of the statute is without force or meaning if not applicable to the case of the defendant.
    6. If the defendant was released by virtue of his discharge from imprisonment in the first action, it was clearly wrong and illegal for the plaintiff to change merely the fiorm of action, and in another court obtain a second order of arrest, for the purpose of evading the force and effect of his discharge.
    Y. The first action and order of arrest was still pending when the second action was commenced, and an order of arrest obtained for the same cause and subject matter. This, of itself, is fatal to the plaintiffs. (See Groshon v. Lyon, 16 Barb. 461, anonymous case, Goldsboro, 30, anno. 28 Eliz.)

    1. Where there are two proceedings pending between the same parties for the same cause of action, the proceedings first commenced are a bar to the last. It matters not that the prior proceeding is not an action, but was instituted by the petition of the new party, who sets it up as a bar.
    2. The principle governing such cases, is, that if full relief can be had in the one suit, no others shall be allowed. And it is the intention of the Code now, as it was of the law before, that if there is a decree made, under which all persons interested may come in and obtain their rights, effectually, no other action shall be allowed.
   By the Court,

Garvin, J.

It is contended in this case, on the part of the respondent, that the pendency of the suit in the Supreme Court establishes that even if the debt was fraudulently contracted, the plaintiffs, by bringing their suit in the Supreme Court, have affirmed the contract and should be held to abide by that, as an election of their remedy, and not be allowed to bring an action for the conversion of the goods. If the first action had proceeded to judgment, there can be no doubt the plaintiffs' cause of action would have been gone forever, both upon contract and tort. But until judgment, it is quite clear if the defendants pleaded the pendency of a former suit for the same cause of action, the plaintiffs could reply a discontinuance of such former suit, which would be a good replication. (Averill v. Patterson, 10 N. Y. Rep. 501, 502.) Until the judgment the plea is to the form of the remedy, in abatement of the action ; but after judgment, it is in bar of the right of recovery. (Nicholl v. Mason et. al. 21 Wend. 339.) In either of these forms' of action, the defendant could be arrested at the commencement of the suit, and, if judgment was recovered against him, imprisoned upon the execution. Thus, as a matter of interest to the defendant, it could make no difference which form of action was pursued by the plaintiffs in the first instance.

Upon the facts disclosed in this case the plaintiffs had two remedies; and an adjudication upon either, either for or against the plaintiffs, would have been a bar to the other ; but until such adjudication, I see no reason in principle or authority which would preclude a discontinuance of the first action and a resort to the second. (7 Bosw. 611.) It is, however, quite another question whether, if a party hold the defendant to bail by order, in an action upon contract, upon which he is arrested, imprisoned and exonerated by due course of law from such imprisonment, he can. pursue the same course of arrest and imprisonment in the second suit; especially where the statute declares that the person of such insolvent shall forever thereafter be exempted from imprisonment for any debt due at the time of making such assignment, or contracted for before that time. (2 R. S. 30, § 10.) This claim was á debt; so treated by the plaintiffs, in the first action, (though, as it is alleged, fraudulently contracted,) therefore falling directly within the provisions of chapter 5 of 2 Revised S tatutes, 30, § 10.

This is a proceeding for the benefit of an insolvent debtor-—■ not an insolvent imprisoned in execution in civil causes ; but the case of an insolvent debtor in prison in any suit or proceeding founded upon any contract or liability due at the time of his assignment. (2 R. S. 31, § 11.)

The plaintiffs say this was a debt, bring their suit upon the contract, for goods sold and delivered, obtain an order of arrest upon the ground that the debt was fraudulently contracted, and instead of going for a conversion of dhe goods, insist upon a recovery on the contract. We think the defendant was properly discharged by the city judge from imprisonment under the order of arrest, and that the case falls directly within the statute.

But if the discharge is void, then the order of arrest in this court should have been vacated for the reason, that the first order remained in full force. A defendant should not be imprisoned or held under two orders of arrest at the same time, founded upon the same transaction, or cause of action. Both these actions are for the same cause, though the forms of action-are different.

Assuming the discharge to be valid, can the defendant ■ be arrested a second time for the same cause of action ? The general rule is that a man shall not be arrested a second time for the same cause, ( Wells v. Gurney, 8 B. & C. 769,) although the second arrest be in a different form of action. (3 East, 309. 8 Taunt. 24. 3 D. & R. 189.)

It is true, it has been held that if the plaintiffs’ attorney has misconceived his form of action, he may discontinue, and nold the defendant in another action for the same cause, (14 John. 347;) provided the discontinuance did not arise from any laches on the part of the plaintiffs, and the second arrest do not appear to be vexatious ; but that is not this case. It is a legal maxim that no man shall be twice arrested for the same cause. This applies to the same jurisdiction, and is conceded to be the general rule. We think it a safe rule, and one that is reasonable and easy of application, that where a defendant has been discharged from imprisonment under an order of arrest, by due course of law, he should not be re-arrested and imprisoned a second time for the same cause, though in a different form of action.

The order made at special term should be affirmed, with costs. ■


author: Barbour, J. Robertson, Ch. J.

text:
    William H. Delany, plaintiff and respondent, vs. James E. Brett et al. defendants and appellants.
    1. The justices of the Superior Court have authority to issue attachments against vessels, under the act of 1862. (Laws of 1862, p. 957.)
    2. There is no necessity for filing, under that statute, a specification of the lien, unless the vessel has left the port where the debt was contracted.
    8. However irregular the attachment issued against a vessel may have been, the bond given for the purpose of procuring the discharge of the vessel will not he void, by reason of snob irregularity. The execution of such bond is a waiver of irregularities.
    4.. In the absence of any evidence to the contrary, the court is bound to assume that the justice who issued the attachment performed his duty by receiving from the applicant the undertaking required by the 7th section of the statute, previous to issuing such warrant.
    (Before Robertson, Ch. J., and Barboto and Jones, JJ.)
    Heard June 14, 1866;
    decided June 30, 1866.
    This • action was brought upon a bond, given to discharge an attachment against the brig Laura Buss. The attachment was granted by Hon. A. L. Bobertsoit, on application of the plaintiff, on the 28th of September, 1864. The application did not set forth that any specification of the lien or claim had been filed. The action was tried on the 23d of May, 1865, before Hon. Justice Monell and a jury, and a verdict rendered in favor of the plaintiff for $102.86. When the plaintiff rested his case; a motion was made for a dismissal of the complaint ; which motion was denied, and the defendants’ counsel excepted.

      Beebe, Dean & Donohue, for the appellants.

      Emerson, Goodrich & Knowlton, for the respondent.
   Barbour, J.

The objection of the appellants that the attachment against the vessel in this case was not allowed by an officer authorized by law to perform the duties of a justice of the Supreme Court at chambers, is untenable. The statute expressly declares that the chief justice and each of the associate justices of the Sxiperior Court shall be, and are, authorized to perform all the duties which the justices of the Supreme Court out of term, are authorized to do and perform, by any statute of this state. (3 R. S. 5th ed. p. 359, § 17.)

It was not necessary that the application for the attachment should state in what place the specification was filed. For, the act does not require the filing of a specification at all, unless the ship shall have left the port where the debt was contracted, before such application is made ; and, in this case, she still remained there.

If the specific objection to the attachment, because of the failure of the plaintiff to prove that an undertaking had been given, had been stated to the court, upon the motion of the defendant to dismiss the complaint, it is quite probable that the defect in the proofs in that regard might have been supplied, if the plaintiff had deemed it necessary. As the question was not raised and passed upon at the trial, there is no decision upon the point which we have power to review. Independent of that, however, we are bound to assume, in the absence of evidence to the contrary, that the justice who issued the warrant of attachment, performed his duty, by receiving from the plaintiff the undertaking which is required by the seventh section of the act, previous to issuing such warrant.

The judgment must be affirmed, with costs.

Robertson, Ch. J.

However irregular the attachment may have been in this case, the bond was not void. (Ring v. Gibbs, 26 Wend. 502. Franklin v. Pendleton, 3 Sandf. 572. S. C. 7 N. Y. Rep. 508.) The only proper questions on the trial were as to the nature and amount of the plaintiff’s claim, and whether it was a subsisting lien. (Same cases.) The execution of the bond was a waiver of irregularities.

■ The justices of this court have authority to issue such warrants. (Renard v. Hargous, 3 Kern. 259.) There was no necessity of filing a specification of the lien, unless the vessel had left, the port, (Laws of 1862, 957, § 2,) and there was no proof that she had done so. The warrant recites that an undertaking was given; the defendants did not prove the contrary and every intendment must be made against them.

I concur in affirming the judgment, with costs.