text:
    JABEZ ELVERSON, et al., Plaintiffs and Respondents, v. JACOB VANDERPOEL, Defendant and Respondent.
    LANDLORD AND TENANT.
    Summary Proceedings to recover the Possession op Lands.
    Where a landlord and tenant agree that the landlord may, without opposition, institute proceedings under the statute to recover the possession of the leased premises, on the ground of the non-payment of rent, and may recover the same, and that after such recovery the landlord shall collect the rents from the under tenants, and account and pay over the same to his former tenants, deducting the rent due to him on the original lease, with a reasonable compensation for such collections; and such agreement was executed and carried into effect by the parties, for their mutual convenience and advantage, for a period of years, in case the landlord finally refuses to continue to fulfil the agreement, and claims the original lease to have been annulled by the summary proceedings, and his estate in the premises restored thereby, a court of equity will compel the landlord to restore the possession of the premises to the tenant, and to execute and deliver to him a lease of the premises, on the same terms as the original lease, and to account for the rents and profits of the leased premises during the period that he neglected and refused to account to the tenant for the same.
    TESTIMONY BE BENE ES8E.

    The statute authorizing the examination of a witness de 5ene esse (2 I?. 8. 392), and the subsequent provision or amendment thereto (2 B. 8. 398, § 8), must be construed as requiring such notice to be given as will enable the party to be present at the examination, either in person or by attorney, nor is it necessary that the notice shall be served personally upon the party.
    Before Sanford and Curtis, JJ.

      Decided May 1, 1876.
    In the case at bar, the parly appeared on the examination by his attorney, and cross-examined his witness. If a party after such an appearance desired to prevent the reading of the testimony of the witness on the trial,on the ground that sufficient notice had not been given to him personally to enable him to attend, he should have moved the court promptly for au order to suppress the testimony, that the opposite party might be able to secure the testimony of the witness in some other way, before or at the trial. His objection at the trial comes too late to affect the same.
    Appeal by defendant from an interlocutory judgment requiring him to surrender the possession of land and premises at the corner of Madison Avenue and Thirtieth Street, in the city of New York, formerly demised by him to one Lauriston White ; to execute and deliver to the plaintiff a lease of such premises ; and to account for the rents and profits thereof, received by him since May 15, 1878.
    The defendant also moves for a new trial on the case, pursuant to section 368 of the Code.
    The judgment appealed from was rendered at special term, January 6,1876, after a trial before Judge Speir, without a jury.
    The action was brought to set aside and avoid a judgment obtained by defendant in summary proceedings, to recover the possession of land, whereof plaintiffs were dispossessed by a warrant issued in such proceedings. Also to secure the restitution to the plaintiffs of possession of the demised premises, and the execution by defendant of a new lease for the unexpired portion of the term.

      The complaint alleged such proceedings to be a mere fraudulent device, contrived for the purpose of enabling the plaintiff, as lessor, to get for himself the possession and control of the demised premises, free from the lease which he had executed, and to have such lease, with the rights, title, and interest of the plaintiffs therein cancelled and annulled ; that at the time of taking such proceedings, the defendant stated and represented that he would, after the issuing of a warrant, hold the premises to the use of the plaintiffs, and account to them as owners of the lease, for all rents and profits collected by him from under tenants, and pay and apply such rents to their use; that subsequently to the issuing and execution of such warrant, he did for a time pay over certain balances, reserving to himself the rent accruing to him under the original lease, and compensation for his services in collecting, but afterwards ceased making such payments, and refused to recognize any right or interest of the plaintiffs in the premises, claiming to hold them absolutely, in his own right, free from any claim of the plaintiffs, or either of them, and insisting that the original lease from himself to White, whereof the plaintiffs were assignees, had, by virtue of such summary proceedings and warrant of dispossession, been cancelled and annulled.,
    The court found the facts to be substantially as charged, and rendered judgment in accordance with the prayer of the complaint, directing a reference to take and state the account with respect to the rents and profits received by defendant.

      De Witt C. Brown, for appellant.

      Albert Stickney, for respondent.
   By the Court.—Sanford, J.

The conclusions of law, arrived at by the learned judge before whom this cause was tried, seem to have been fairly and properly deduced from his findings of fact; and although exception was taken by the appellant to such conclusions, and each of them, it was not urged on the argument, nor is it contended in the brief submitted by his counsel, that they involved legal error, except in so far as they may be shown to have been based upon findings of fact, either contrary to, or unsupported by the evidence in the case. Where material findings of fact are contrary to undisputed evidence, or are wholly unsupported by proof, they must of course be rejected, and conclusions of law deduced from and depending upon them, will, in such case, be deemed erroneous and fall with them. But when evidence is conflicting, the findings of the court or a referee, like the verdict of a jury, will be sustained, unless the preponderance of adverse proof is such as to warrant the inference of an obvious mistake, or of bias, partiality or intentional wrong. In this case, some of the material facts found are undisputed ; with respect to others, there is conflict and contradiction; and there are findings, not material, which, perhaps, the evidence in some degree fails to support. The defendant’s motion for a new trial calls upon us to pass the whole case in review, as well upon questions of fact as of law. After a careful examination of every evidence, I have arrived at the conclusion that all the finding of fact, essential to the maintenance of the judgment, is fully sustained, either directly or by necessary inference and by competent proof. It sufficiently appears that the plaintiffs, as assignees of the defendant’s lessee, were interested in and held the legal title to the demised premises; that White, the original lessee, acted as their agent and attorney, in the collection of the rents from under tenants ; that by arrangement with him, the defendant became himself the direct recipient of such rents, which were largely in excess of the rent accruing under his own lease ; that from October, 1872, until after the summary proceedings were instituted, under and by virtue of which he claims to have resumed possession, and to have acquired back his former estate, he collected and received such rents from the under tenants, and accounted therefor, from time to time, deducting the ground rent due to himself, and a compensation for his services in effecting such collection, and paying over the balance to White, as agent and attorney of the plaintiffs; that in the latter part of May, or early in June, 1873, some embarrassing relations existed between White and his creditors, which occasioned annoyance to defendant. An order had been made for the examination of defendant before a referee, as to any property of White in his hands, and suits had been threatened for the enforcement of liens and other claims on the building which White had erected, on the demised premises, prior to the transfer of the lease to the plaintiffs. Under these circumstances, it was proposed that summary proceedings should be instituted by the defendant, as in case of default for nonpayment of rent, and that any future annoyance of the like character should in this way be avoided. The evidence is conflicting as to whether the proposition emanated from White or from the defendant. The negotiations were conducted partly by correspondence, and partly through Mr. Sheldon, who had long been the attorney and counsel of the defendant, as well as of White, and who then occupied that confidential relation towards both of them.

White testified that defendant requested him to see Sheldon, and arrange it in some way ; that he thereupon called on Sheldon, who suggested a dispossession by summary proceedings as the best means of relieving defendant from annoyance; that he objected, on the ground that it would place himself and his friends entirely in the defendant’s power, but on Mr. Sheldon assuring him that defendant would do nothing to injure him or his friends, he finally consented. On the other hand, the defendant testified that White referred him to Sheldon, and that Sheldon advised the dispossessing proceedings, promising that he should have no trouble in the matter. “I shall take the proceedings to dispossess the tenants,” he said, “and you make new leases to the under tenants, collect the rents, as you have done, and pay the balance over to me,” he acting for Mr. White. Both sides agree in this, that the dispossessing proceedings were not originally intended to give defendant any right to the surplus rental in excess of the amount to which he was entitled under the original lease, and that defendant, as well after the execution of the warrant as before, was to account for and pay over such surplus to the lessee or his assigns. But on June 10, 1873, the defendant wrote White, assuring him that any movements, he (the defendant) might make, would be for his interest, and would do him no harm. Again, under date of June 13, he acknowledges White’s letter of the 11th, which he fails to produce, and adds : “ 1 have succeeded in collecting the entire rent due this month; have deducted ten dollars from the entire amount, and handed the balance to Mr. Sheldon as the agent of those who hold the lease, leaving my rent unpaid, so as to enable me to dispossess next Monday, cutting off these leases, &c. . . . You will always be treated right by me.” Yours truly, “Jacob Vanderpoel.”

The summary proceedings were thereupon instituted, and the defendant was thereby reinstated in possession of the demised premises, ostensibly as of his former estate. But, from that time until the spring of 1874, he continued to collect the rental accruing from under tenants, and after reserving to himself his ground rent, the taxes, his commissions for collecting, and the expenditures made by him for repairs, to pay over to Sheldon, for White as agent of the plaintiffs, “ ownsrs of the lease,” the surplus remaining of the amo ant thus collected. On February 28, 1874, he stated the account, by crediting himself with his ground rent, the taxes, and other items above specified, as well as with the several payments made by him to Sheldon, on account, after October 1, 1873, and charging himself with the rents collected by him from under tenants during the same period. The account thus stated is settled and balanced by crediting him, under date of February 27, 1873, with his check to Sheldon, for one hundred and eighty-five dollars and thirty-eight cents. That check was produced by him, and put in evidence by the plaintiffs, and it appears to have been drawn to his own order, and then endorsed by him to the order of Sheldon, “in full for all matters pertaining to Madison Avenue and Thirtieth Street to this date.” Sheldon endorsed the check over to White, who received it, on account of the rent of those premises, as he had previously received other checks of 'Vanderpoel, also charged in the same account stated. As late as April, 1874, a correspondence occurred between White and the defendant, in which the latter recognized his obligation to account for the rents of the property collected by him, and treated White as the representative of the parties owning the lease. On the 9th of that month, replying to White’s letter of the 8th, requesting him to make up his bill to Mr. Elverson, one of the plaintiffs, on all he had against the property, that the whole matter might be settled up, he wrote that he would do so with pleasure, and send a full statement upon the completion of certain work which he was then doing, and he promised, in future, to remit any surplus direct, and not through Sheldon as had theretofox* been done.

The evidence in the case is very voluminous and fully establishes the invalidity as against the plaintiffs, of the summary proceedings to dispossess. The findings of the court are in accordance with the evidence, in all essential particulars. It is true that in the teruh finding, which relates to the summary proceedings instituted by defendant, the affidavit of default in the payment of rent is stated to have been made by him ; and the eleventh finding is to the effect that, in said affidavit, the defendant falsely alleged and swore that said rent was unpaid. The record of the proceedings was not produced at the trial, or, at least, is not contained in the case, and it nowhere appears, unless by inference, that the affidavit referred to was made by the defendant personally. It is of course wholly immaterial whether the affidavit was made by the defendant, as landlord, or by some one acting on his behalf. It was quite unnecessary for the purposes of this case to aggravate the wrong done by the defendant in attempting to deprive the plaintiffs of their property, without compensation, by imputing to him the commission of perjury, as one of the instrumentalities through which the wrong was sought to be perpetrated. Such an affidavit must necessarily have been made by some one, and as the proceeding appears to have been instituted by the defendant, and prosecuted at his instance and by his direction, the inference was a natural although perhaps not a necessary one, that it was made by himself. The evidence does not conclusively establish this fact, but the character of the proceeding itself as a fraud upon the plaintiffs is wholly unaffected by this question. The defendant is seeking to take an undue advantage of these proceedings, which were permitted and consummated without opposition, on the faith of his assurances that no harm should ensue therefrom. This he should not be permitted to do, quite irrespective of the question whether the affidavit, upon which the summons on such proceeding was issued, was made by Mm or by some one else, acting as his agent and on his behalf. His attempt to retain the property for his own exclusive use, and to prevent its enjoyment by the plaintiffs, is iniquitable and unconscionable. It involves a breach of that trust and confidence which he had himself solicited, and which was reposed in him by the agent of the plaintiffs. I am, therefore, of the opinion, that the error of the learned judge, if it be one, in finding that the affidavit in question was made by the defendant, does not call for a reversal of the jndgment, and that such finding may be wholly disregarded and rejected without affecting the final result.

Exceptions were taken, during the progress of the trial, to the admission, but none to the exclusion, of testimony. Possibly irrelevant, immaterial, and even incompetent evidence, may have been received, under defendant’s objections. If so, no harm can be deemed to have ensued, if, upon the evidence to which no objection was made, the final result must have been the same. It was urged that the deposition of Elverson, taken de bene esse, ought not to have been received, for the reason that sufficient notice was not given to enable the defendant to attend upon his examination. I do not think that the statute is to be construed as requiring such notice to be given as will enable the adverse party to be present, in person, in all cases, upon the examination of a witness, de bene esse, oras requiring such notice to be served personally upon him. His counsel attended and subjected the witness to a searching cross-examination. Under these circumstances, it would, in my judgment, have been error to exclude the deposition. The statute provides that the time of taking-the examination shall be fixed with reference to the exigency of the case, and as “ the residence of the adverse party, or Ms attorney will allow, in order to afford sufficient opportunity to attend ” (2 R. S. 392, § 3). The subsequent provision (2 R. S. 398, § 8), that the reading of the deposition may be prevented by the party against whom it is to be used, upon satisfactory proof that sufficient notice was not given to enable him to attend, must be construed in connection with what precedes, and as referring to the attendance of the party, either in person, or by attorney. Besides, if the defendant desired to prevent the reading of the deposition, on this ground, he ought to have moved promptly for an order to suppress it, in which case the plaintiffs might have been able to secure the attendance of the witness again, or, at all events, to have obtained his testimony by commission. It was for the interest of the defendant that the deposition should be taken orally rather than by commission (Jackson v. Kent, 7 Cowen, 59); and as opportunity was not only afforded, but availed of, for his attendance by counsel and for a full oral cross-examination, he ought not to be heard in derogation of the notice.

I think the evidence of Sheldon’s authority to rep-res nt the defendant, in all matters relating to the summary proceedings, quite sufficient to warrant the admission in evidence of his conversations with White in reference thereto. As White testifies, he was requested by defendant to see Sheldon, and arrange in some way. The verbal arrangement made in pursuance of this direction, was properly received in evidence. The testimony of White, as to what Sheldon said about the execution of the new lease, after the dispossessing proceedings had been taken, is quite immaterial, and could not have affected the result. If it be wholly rejected and disregarded, the case for the plaintiffs is still abundantly established. Indeed, the documentary evidence in connection with defendant’s- own testimony, is all that is needed to show that he has acted in bad faith. I am of opinion that the rulings of the court upon questions of evidence were correct, and that no tenable exception was taken thereto; but, however this may be, there is ample evidence in the case, to which no objection or exception was taken, to support the judgment, and all the essential findings and conclusions upon which it depends. I am satisfied that the judgment accords with the justice and equity of the case, and ought not to be reversed.

Judgment affirmed, with costs.

Curtis, J., concurred.


source: Caselaw Access Project

author: By the Court.—Sanford, J.

license: Public Domain

text:
    STAR FIRE INSURANCE COMPANY, Plaintiff and Respondent, v. ANSON S. PALMER, et al., Defendants and Appellants.
    TRUSTEES, AND THEIR DUTIES.
    Pledge, and its incidents.
    Pleadings and practice.
    A trustee charged with the management and disposition of trust property, cannot become the purchaser thereof, at a sale under the trust agreement. Such purchases are null, ipso jure, and may be avoided by the cestui que trust, at his option, and irrespective of the question, as to whether the bargain was advantageous or detrimental to either party.
    Nor can such trustee purchase as the agent, or for the benefit of a third party (See cases cited in the opinion).
    Upon the rules and principles laid down in the foregoing propositions and the cases cited, the court held in the case at bar,
    That an agent of the trustee, charged as such agent, with the disposal of the property, and the execution of the trust, could not become the purchaser of the trust property at the sale thereof. Nor could he purchase the same for a third party, for in his ease, as in that of his principal, there is a conflict between duty and interest, inclination and obligation.
    Before Curtis and Sanford, JJ.

      Decided, May 1, 1876.
    In the case at bar, a defease was established by the proofs, but it was unavailing, because it was not pleaded in the answer, and the judgment was sustained for that reason.
    Appeal from a judgment for three thousand one hundred and ninety-two dollars and thirteen cents, in favor of plaintiffs, entered upon a verdict rendered by direction of the court, after a trial before Hon. Gilbert M. Speir, J., and a jury, January 14, 1876.
    The action was brought to recover two thousand seven hundred and twenty-nine dollars and seventy-two cents, with interest, alleged to be due on a promissory note for four thousand five hundred dollars, made by defendants to the order of the plaintiffs, for which certain shares of stock were pledged as collateral security, and upon which the defendants were allowed certain credits, including the sum of four hundred and eighty-four dollars, realized by the plaintiffs upon an alleged sale of such shares for defendants’ account.
    The answer, by way of counterclaim, denied that the plaintiff caused the stock to be sold, and that such sale netted the sum of four hundred and eighty-four dollars, except as thereinafter stated ; and alleged that the plaintiff purchased the said stock through its president. It further alleged that the value of the said stock was two thousand five hundred dollars, and claimed judgment against the plaintiff for that amount.
    The facts of the case, as they appeared in evidence, are sufficiently stated in the opinion of the court.

      Field & Deyo, for appellant.

      Osborn E. Bright, for respondent.
   By the Court.—Sanford, J.

The doctrine is well settled, and has the sanction of reason as.well as authority, that a trustee, charged with the management and disposition of trust property, can never be permitted to become the purchaser thereof. Such purchases are null, ipso jure, and may be avoided by the cestui que trust, at his option, irrespective of the question, whether or not the trustee has made a bargain advantageous to himself, or to the detriment of the beneficiary (Davoue v. Fanning, 2 Johns. Ch. 252; Wormley v. Wormley, 8 Wheat. 441; Hawley v. Cramer, 4 Cow. 717). Nor can a person thus incapacitated by fiduciary relations from purchasing on Ms own account, buy, as the agent, or for the benefit, of a third person (Exp. Bennet, 10 Ves. 381 ; Hawley v. Cramer, ut supra). It would seem to follow that an agent of the trustee, charged, as such, with the execution of the trust, would be disqualified, equally with the trustee himself, from becoming a purchaser on his own account, at a sale conducted by him in the capacity of agent for such trustee. There is, equally in Ms case and in that of his principal, a conflict between duty and interest. As agent for the vendor, he ought to obtain the highest possible price ; as purchaser, it is for his interest to secure the property at the lowest. In his case, as in that of his principal, inclination and obligation are almost certain to be at variance. Emptor emit quam minima, vendor oendit quam máximo potest If the principal cannot purchase, neither should the agent, who is clothed with the authority and charged with the duties devolving upon that principal, be permitted to do so. As against his principal, he could not retain the benefit of his purchase, neither should he do so as against his principal’s cestui que trust. Indeed, I think his principal, at the instance, or in the interest of a cestui que trust, is bound to exercise his right of rescinding. It has even been doubted whether the attorney for an execution creditor can, without the assent of his client, become the purchaser of property sold under execution, notwithstanding that he has no authority to purchase on his client’s behalf (Beardsley v. Root, 11 Johns. 464; Hawley v. Cramer, 4 Cow. 717). As against the judgment debtor, to whom he is under no allegiance, and whose interests he is not bound to protect, and between whom and himself no confidential relation exists, it was said, in Hawley v. Cramer (ut supra), that with the assent of his client, there can be no doubt of the 'right of the attorney to purchase for his own account. But it was there intimated that in cases where the client himself is not permitted to purchase, the like prohibition might with propriety be extended to the attorney or agent. Thus, inasmuch, as assignees in bankruptcy are precluded from becoming purchasers of the bankrupt’s effects, the same rule is applied to the solicitor for the commission, who acts as their agent in ih management of the estate (Exp. James, 8 Vesey, 352). These general principles are substantially conceded by counsel for the respondent. Applying them to the circumstances of this particular case, we find that the defendants, as pledgees of certain shares of stock held by them as collateral security for the payment by defendant of the note in suit, and as such pledgees, charged with a trust in favor of the defendant as respects the sale of such shares, effected such .sale through the intervention uf their president, one Nicholas C. Miller, who, as their agent, made demand of payment, put the matter in the hands of counsel to prepare the proper papers for the sale, delivered the stock certificates to the auctioneers for sale, gave notice to the defendant, attended the sale, and himself became the purchaser in his own name and for his own account.

There can be no question that the plaintiffs could not have purchased the shares on their own behalf, or, that, purchasing, they would still have stood in the relation of pledgees, and would have acquired no better title than that which they already possessed. The shares would still have remained subject to redemption by payment of the debt. Upon the principle and under the authorities above cited and invoked, it is difficult to perceive why any discrimination should, be made in this respect between the plaintiffs themselves, and their president, who acted as their agent in effecting the sale. I think there can be no doubt, that in equity, upon a proper complaint filed in a suit to which the defendants and their president were both made parties, such a sale would be set aside, and redemption allowed, or a re-sale ordered. It is, however, insisted, that even if this be so, the defendant is not entitled to r.^diess in the present suit, because his answer sets up no defense, and is in fact demurrable, as not containing facts sufficient to constitute a counterclaim. I am of opinion that this view of the case is correct. The answer admits the facts constituting the cause of action and merely denies the allegations of the complaint with respect to a sale of the shares, and the amount realized therefrom ; it avers that the defendants purchased the stock through their president, and that its value is two thousand five hundred dollars. If such were the facts, the plaintiffs would not be chargeable by way of set-off or counter-claim with the value of the stock. They would have the right to recover the full amount due on the note, and upon payment thereof, the defendant would be entitled to his shares. But the right of action on the note is not affectdd by the fact that the plaintiffs hold collateral security for its payment, and the defendant is not entitled to have the value of such securities deducted from the amount recoverable thereon. The creditor, upon non-payment of the note, has an instant right of resort to his personal remedies against the debtor and may collect the full amount by judgment and execution. He is not compelled, in the first instance, to resort to the stock as to a primary fund.

I am constrained to hold that the answer sets up no defense, and is insufficient as a counter-claim, and that the plaintiffs were entitled to judgment thereon. But had they taken judgment thereon it should have been for the full amount due on the note, and the defendant in such case would have been entitled to his collaterals upon payment of such judgment. The proofs, however, establish a defense not set up in the answer. It appeared from the evidence that the defendants have caused or permitted the shares, held by them as collateral to the defendant’s note, to be transferred absolutely and for a good consideration to their president, Nicholas C. Miller, to be held by him in his own right; that the title thereon stands in his name, and that the certificate thereof is in his possession. Their action in so doing was in violation of their duty as pledgees. By thus causing or permitting the stock to be transferred, they put it out of their power to perform their trust. They ceased to be able to surrender the collateral on payment, of the debt. Such transfer constituted a misappropriation or conversion of the pledge, which renders them liable to the defendant for its value. Such liability might have been asserted by way of recoupment or counter-claim in this action (Stearns v. Marsh, 4 Denio, 227). But the answer contains no averment of the facts upon which such liability arises, and a defense, although proven, is unavailing if not pleaded (Field v. The Mayor, &c., of New York, 2 Seld, 179).

The evidence offered by the defendants with respect to the value of the shares, was therefore properly excluded. It was irrelevant and immaterial to any issue before the court. Had the misappropriation or conversion of the stock by the plaintiff's, been averred in the answer, evidence of value would have been pertinent. In the absence of such averment, it was inadmissible.. The defendants not only tail to assert the liability of the plaintiffs, founded on the fact of such transfer and sale, but expressly deny that any sale has ever been made. They cannot both disaffirm the sale and hold the plaintiffs responsible for it.

In assumpsit on the note, under the old system of pleading which existed before the Code, an unauthorized or illegal sale or conversion of the pledge need not have been specially pleaded, but would have been admissible in evidence under the plea of non assumpsit. The defendant could in such case have recouped the full value of the pledge (Stearns v. Marsh, 4 Denio, 227). But if the same rule were now applicable, there is nothing in the defendant’s answer equivalent to the plea of non assumpsit. The plaintiffs’.cause of action is substantially admitted, because in no way denied, and no affirmative defense or sufficient count-.rclaim is set up. On the case made by the pleadings and proofs, I am therefore of opinion that the plaintiffs were entitled to recover, and that as no error appears to have been committed, the judgment should be affirmed, though 1 am far from determining that the defendant is not entitled to relief in some other form of proceeding.

Judgment affirmed, with costs.

Curtis, J., concurred.


text:
    ALFRED H. WILMONT, Plaintiff and Respondent, v. CORNELIUS M. MESEROLE, Impleaded, &c., Defendant and Appellant.
    LIS PENDENS.
    Action affecting tub title to real property.
    In actions affecting the title to real property, notice of Us pen-dens may be filed, &c. (Code, § 132).
    Before the amendment to this section of the Code, providing for the cancellation of a lis pendens, it was held that the court could not rightfully remove or cancel a Us pendens (Pratt v. Hoag, 5 fitter, 631). The amendment subsequently made authorized cancellation, at any time after the action was settled, discontinued, or abated.

    The specification of particular cases in which cancellation may be effected, necessarily excludes all others, and therefore, a Us pendens, duly filed in an action affecting the title to real property, can only be cancelled, when that action has been settled, discontinued, or abated (Mills ». Bliss, 55 IF. 7. 139). The amendment applies only to such notices as are authorized by the section , i. e., in actiors affccfingtbe title to real property.
    In the case at bar, the action was brought for the purpose of procuring the avoidance or cancellation of record of an assignment of a lease of lands, executed by plaintiff to defendant. The lease was for a term of thirteen years, from May 1, 1867.
    Held by the court, that this was an action affecting the title to real property, and the Us jendens was properly filed under this section (t'hde, § 132)
    In the case at bar, judgment in favor of defendants was rendered after a tria! at special tero , an i the complaint dismissed, and this judgment was subsequently affirmed at general term, January 10, 1876; and notice of the same served on same day upon the.plaintiff’s attorney, and no appeal had as yet been taken to the court of appeals.

      Held, that this court had no power to order the Us pendens can-celled, because this action had not been settled, discontinued, nor abated, and did not fall within the cases provided for in the 132d section of the Code; thus affirming the decision of the court below.
    Before Curtis and Sanford, JJ.

      Decided May 1, 1876.
    Appeal from an order, made at special term, denying defendant’s motion for an order, directing the clerk of the City and County of New York to cancel of record, a notice of Us pendens, filed in this action.
    The action was brought on or about July 1, 1874, for the purpose of procuring the avoidance and cancellation of record of an assignment of lease, executed by plaintiff to defendant. On that day, the plaintiff filed in the office of the clerk of the City and County of New York, a notice of the pendency of the suit. The lease transferred to defendant by such assignment, was for a term of thirteen years from May 1, 1867, and will, therefore, not expire till May 1, 1880.
    Judgment in favor of defendants was rendered, after a trial of the action at special term, in November, 1874, and the complaint was thereupon dismissed, upon the merits, with costs. Such judgment was affirmed on appeal to the general term, January 10, 1876, and on the same day notice of the entry of such judgment was given to the plaintiff’s aítornej'. No appeal to the court of appeals has hitherto been taken.

      Charles M. Da Costa, for appellant.

      Charles Meyer, for respondent.
   By the Court.—Sanford, J.

In actions affecting the title to real property, notices of Us pendens may be filed, and subsequent purchasers and incumbrancers are bound by all proceedings taken after the filing of such notices, to the same extent as if made parties to the action (Code, § 132). In Pratt v. Hoag (5 Duer 631), it was held by this court at special term, that the right accorded by this section is absolute and unqualified, and that the court cannot rightfully interfere to remove from the files of the clerk of the county, a paper in proper form, regularly filed, under the authority of the statute. Since that decision was rendered, the Code has been amended by adding to section 132, a provision, to the effect that notices authorized by this section may be cancelled by the court, at any time after the action shall be settled, discontinued, or abated. The specification of particular cases in which cancellation may be effected, necessarily operates to exclude all others ; and the doctrine laid down in the case above cited, is confirmed by the amendment, subject to the specified exception. A regular notice of Ms pendens, duly filed in a proper action, can, therefore, only be cancelled when the action shall be settled, discontinued, or abated (Mills v. Bliss, 55 N. Y. 139). The amendment applies only to such notices as are “authorized by the section ;” that is, notices filed “in actions affecting the title to real property.” If, therefore, this action affects the title to real property, the provision in question affords no authority for vacating it, because the action has neither been settled, discontinued, or abated. If the action does not affect real property, the provision is inapplicable, because the notice was not “authorized by this, section.” Whether regular or irregular, the notice cannot be cancelled, by virtue of this provision of the Code. But an unauthorized notice, filed in an action not affecting the title to real property, is a nullity. In Mills v. Bliss (above cited), it'was intimated that such a notice might possibly be removed from the files, as a cloud upon title, by order of the court, in its discretion, but this question was not before the court in that case, and was not decided.

In this case, the motion to cancel-the notice, or remove it from the file, was denied upon the ground that the action affects the title to real property, that the notice was regular and properly filed, and that the court has, therefore, no power to interfere with it. I am of opinion that this view is correct.

By the provisions of our statute, estates for years are declared to be estates in lauds (1 R. S. 722, § 1). They are designated as “chattels real” (Ibid. § 4). In The Mayor, &c., v. Mabie (13 N. Y. 151), the court of appeals held, that a grant of wharfage for a year was not a conveyance of real estate within the meaning of the statute prohibiting the implication of covenants, in such conveyances (1 R. S. 738, § 140); and the learned judge who prepared the opinion in that case, intimated that the result would have been the same, if the question had arisen upon a lease, for years, of land. But the term “real property” employed in section 133 of the Code, is not necessarily synonymous with “real estate,” as used in the Revised Statutes. Indeed, the latter phrase is differently defined, on different occasions and for different purposes, in the statutes themselves, and it is for this reason, and on this ground, that the restricted signification, which excludes leases of land from the statutory prohibition with respect to implied covenants in conveyances, was given to the term in the case of the Mayor, &c., v. Mabie, above cited. Its signification is enlarged or restricted with reference to the particular connection in which it is employed. Thus, in the recording acts, it is expressly declared to embrace all chattels real, except leases for a term not exceeding three years (1 R. S. 762, § 36). In Agate v. Gignoux (1 Robt. 278), a rent charge reserved by a lessee of real property under a sub-lease made by him for a term exceeding one year, with the right of re-entry for breach of covenant, was held to be an estate or interest in land, within the meaning of the statute of frauds (2 R. S. 134, 135, §§ 6, 8); and it was said that the words, “estate or interest in land,” as used in that statute, embraced every species and title to real property known to the law. Whatever technical meaning may be given to the word “real estate,” in the different provision of the Revised Statutes, above referred to, the term, “real property,” as used in the section of the Code, now under consideration, is sufficiently comprehensive to include all estates in land; and as estates in land are expressly declared to include estates for life, for years, at will and by sufferance, as well as estates of inheritance, I am at a loss to perceive any reason why all such estates should not be deemed to be included in the generic designation of “real property.” It has long been the practice to file notices of Us pendens in suits for the foreclosure of mortgages upon leasehold estates, and I am not aware that the sufficiency of such notices, as a protection against purchasers and incumbrancers, pendente lite, has ever been doubted. The views expressed in the opinion of the court, at special term, on. denying the motion, seem to me conclusive, and I am, therefore, of opinion, that the order appealed from should be affirmed.

Order affirmed, with costs,

Curtis, J., concurred.


text:
    HENRY ROUSSEL, Plaintiff and Respondent, v. THE ST. NICHOLAS INSURANCE COMPANY, of the city of New York, Defendant and Appellant.
    demurrer.
    The action was upon a policy of insurance, whereby the defendant agreed to make good any loss or damage by fire, to the amount of two thousand five hundred dollars, on the steam tug propeller, for the period of one year.
    The complaint averred that said policy made such loss payable to plaintiff, and was obtained in the names of S. W. Morris and A. C. Lewis. That the consideration for the policy was paid by plaintiff, who at the time had a chattel mortgage on said vessel, to secure the payment of two thousand five hundred dollars, due to plaintiff, from the owners of the vessel, which at the date of the policy was overdue, and by its terms, plaintiff was entitled to the possession of the vessel ; that defendant gave the policy to secure plaintiff against loss or damages by fire to the extent of plaintiff's interest, namely, two thousand five hundred dollars, the fact of such interest being well known to defendant ; that said vessel was at the time in the possession of said Morris & Lewis, who were the owners of the same, subject to plaintiff’s interest or lien. The complaint then alleged the facts of the fire, the loss, and the notice and proofs of loss, to the defendant, in accordance with the policy, and the refusal of the defendant to pay. It also alleged that the fire was not causedby any of the “accepted” risks contained in said policy.
    Defendant demurred, on the ground—•
    1. That plaintiff had not legal capacity to sue. 3. That there was a defect of parties in the omission of Morris and Lewis, the parries insured. 3. That the complaint does not contain facts sufficient to constitute a cause of action.
    The court overruled the demurrer, holding the following conclusions of law :
    As mortgagee of the steam tug, the plaintiff had an insurable interest in her (Phil, on Insurance, 4164; Traders Ins, Co, v. Roberts, 9 Wen. 404).
    The complaint avers the interest to have existed at the time of effecting the insurance, and the legal presumption is that it continued to the time of the loss (Bank of Auburn «. Roberts, 44 N. 7. 192).
    Before Curtis and Sanford, JJ.

      Decided May 1, 1876.
    What is necessarily implied need not in terms be alleged.
    The action was well brought by the plaintiff, in his own name. He was the real party in interest.
    At common law, if an instrument be not under seal, the party for whose sole benefit it was evidently made may maintain bis action thereon, although the engagement be not directly to, or with him (1 Ohitty PL, 5; Schermerhorn v. Vanderheyden, 1 J. B. 139).
    The owner of the equity of redemption of property insured in a similar policy cannot recover while the mortgage is unpaid, for the reason that the mortgagee has the absolute right to recover the loss (Ennis d. Harmony Fire Insurance Co. 3 Bos. 517).
    In contemplation of law, there is created a privity of contract between the promisor and the party who alone has the beneficial interest in the performance of the promise.
    Morris and Lewis were not necessary parties to the action. The controversy before the court can be determined without prejudice to any right of theirs, and a complete determination ,can be had without their presence (Code § 122).
    The use of the word “ accepted ” for “ excepted ” is manifestly a mere orthographical error, by which the defendant has not been misled. Such mistakes may be corrected at any time, and should be disregarded. They do not make the complaint demurrable.
    This is an appeal from an order made at Special Term, December 6, 1875, overruling* a demurrer to the complaint.
    The action is upon a policy of fire insurance, made by defendants on the 15th day of March, 1875, whereby they agreed to make good any loss or damage by fire, to the amount of two thousand five hundred dollars, on the steam tug propeller “Matt White,” during the period, of one year.

      The complaint avers “That said policy of insurance made such loss or damage payable to Henry Roussel, this plaintiff, and was obtained in the names of S. W. Morris, and A. 0. Lewis. That the' consideration for said policy was paid by Henry Roussel, this plaintiff, as was well known to the defendant, when said sum was accepted by it. That at the time aforesaid this plaintiff held a chattel mortgage on said property to secure a payment of two thousand five hundred dollars, due from the owners of said property to this plaintiff, which chattel mortgage was, at that time, overdue, and by the terms of which mortgage this plaintiff was entitled to the immediate possession of said property, and this defendant gave the policy of insurance as aforesaid on said property, with the intention to secure against loss or damage by fire, to the extent of two thousand five hundred dollars, the interest which this plaintiff held in such property as aforesaid, the fact of such interest to this plaintiff in said property being well known to the defendant.
    “That at the time of such insurance, S. W. Morris and A. C. Lewis, aforesaid, were in actual possession of the property thus insured, and were the owners of the same, subject to the plaintiff’s interest as mortgagee, as aforesaid; that is to say, the said Morris and Lewis, had the right of redeeming said property, and obtaining undisputed ownership of the same upon payment of the sum aforesaid, due as aforesaid to this plaintiff.
    “ That on the 20th day of June, 1875, a fire occurred, by which the property thus insured was destroyed, and a loss incurred to an amount exceeding the sum aforesaid, of two thousand five hundred dollars; to wit, to an amount of at least three thousand and fifty-five dollars.
    “That said fire originated at about twelve o’clock midnight, on said 20th day of June, 1875, while said boat was lying in the harbor of New York, and that said fire was not caused by any of the accepted {sic) risks in said policy contained.
    “ That immediately after the aforesaid fire and loss the defendant was duly notified of the same, and soon thereafter, and more than sixty days before the commencement of this action, formal proof of .loss was delivered to and left with the defendant, both by and in behalf of the said Morris and Lewis, and by and in behalf of this plaintiff.
    “ That the defendant has refused and still refuses on its part to perform the conditions on said contract of insurance. That the full sum of two thousand five hundred dollars, as aforesaid, remains due and unpaid.”
    The defendant demurred, on the ground, “1. That plaintiff had not legal capacity to sue. 2. That there was a defect of parties in the omission of the names of S. W. Morris and A. C. Lewis, the parties insured. 8. That the complaint does not contain facts sufficient to constitute a cause of action.”
    The court, at special term, overruled the demurrer, and ordered judgment for the plaintiffs with costs, but with leave to the defendant to withdraw the demurrer, and put in an answer within twenty days, on payment of costs.

      John Hewitt, for appellant.

      Edward D. McCarthy, for respondent.
   By the Court.—Sanford, J.

As mortgagee of the steam-tug, the plaintiff had an insurable interest in her (Phil. on Ins. 41, 64; Traders’ Ins. Co. v. Roberts, 9 Wend. 404).

The complaint expressly avers such interest to have existed, at the time of effecting the insurance. The legal presumption .is that such interest continued until the time of the loss (Bank of Auburn v. Roberts, 44 N. Y. 192). But the defendant insists that the complaint should have averred the existence of an insurable interest, at the time of the loss, and that the absence of an express aveiment to that effect cannot be aided by inference or intendment, nor by presumptions or conclusions of law. The rule, however, is well settled, that what is necessarily implied need not be in terms alleged. The averment of the plaintiffs’ lien, and that defendants gave the policy on the property with the intention to secure against loss the interest which plaintiff held in such property (the fact of such interest being well known to defendant), is admitted by the demurrer. If denied, it would be snstiinel by the production and proof of the mortgage an 1 policy, and such proof would throw upon the defendants the burthen of showing that the plaintiff’s int-rest had ceased, at the time of loss. Whatever must be proved should be averred, but the averment, while it should be commensurate with, need not exceed the required proof.

The action was well brought by the plainti.r in his own name. He was the real party in interest (Code, § 111). At common law, if an instrument be not under seal, the party for whose sole benefit it is evidently made, may maintain his action thereon, in his own name, although the engagement be not directly to or with him (1 Chitty's Pl. 5 ; Schermerhorn v. Vanderheyden, 1 J. R. 139). In Ennis v. Harmony Fire Insurance Company (3 Bosw. 517), it was held that the owner of the equity of redemption could not recover upon a similar policy, while the mortgagee remained unpaid, and for the reason that the mortgagee had the absolute right to recover the loss. In contemplation of law, there is created a privity of contract between the promisor and the party who alone has a beneficial interest in the porfor na i ce of the promise.

Morris and Lewis are not necessary parties to the action. The controversy between the parties before the court, can be determined without prejudice to any rights of theirs, and a complete determination of the controversy can be had without their presence (Code, § 122).

The misuse of the word “accepted” for excepted in the allegation that the fire was not caused by any of the accepted risks, is manifestly a mere orthographical error, by which the defendants have not been misled. Sncb mistakes may be corrected at any time, and should be disregarded. They do not render pleadings demurrable.

The order appealed from should be affirmed, with costs.

Curtis, J., concurred.


author: By the Court.—Sedgwick, J.

text:
    DAVID WITOWSKI, et al., Plaintiffs and Appellants, v. MATTHEW T. BRENNAN, et al., Defendants and Respondents.
    sheriff.
    His Responsibility in regard to the care and custody op
    GOODS AND PROPERTY, SEIZED AND HELD BY HIM UNDER PROCESS.
    The sheriff and his deputy, making the levy or seizure, are jointly liable, although there was no personal interference or action by the sheriff. No doubt exists as to the liability of the deputy (Waterbury ®. Wcstervelt, 9 N. Y. 604).
    In the care and custody of the property seized, the duty of the sheriff is at least that of a bailee for hire (Moore «. Weatervelt, 27 IV. Y. 239).
    The burden of proof should in principle he the same as in an action against warehousemen for loss of goods deposited with them (Coleman ®. Livingston, 36 Superior Court R. 32; afterwards affirmed by court of appeals).
    Before Sedgwick and Speir, JJ.

      Decided June 5, 1876.
    Undoubtedly, as in the case last cited, if the defendants show by uncontradicted testimony, that the loss happened after the use of due care to prevent it, the court should direct a verdict for the defendants.
    In a case where proof does not show the manner of loss, proof of care on defendant’s part, to justify a direction for a verdict in his favor, must show affirmatively and exhaustively, that the care was used against the risk of loss of every kind, from the beginning to the end of the custody.

    In the case at bar, that proof was not given, and the court erred in directing a verdict for the defendants.
    There was such a conflict of evidence as to the care, that the question should have been submitted to the jury.
    The action was against the sheriff and one of his deputies, for the value of certain property seized by the sheriff, through his deputy, under an order of attachment against the property of one of the plaintiffs, a partner in a firm composed of the plaintiffs, and not returned to the plaintiffs after the attachment had been vacated, and also for damage to such of the property seized as was returned. ,
    The sheriff did no personal act in levying on, or in taking charge of the property. The deputy did all that was done under the process. The property levied upon was the stock in business of the plaintiffs and the fixtures in their store. The stock was clothing and materials for clothing. On December 24, 1873, the deputy seized all the goods at the store, and put one Hart in charge. The plaintiffs gave evidence to show that at this time, the stock was in good order and in a saleable condition. An inventory was forthwith taken ff the stock by the deputy. In the stock was a piece of velvet, of twenty or twenty-two yards; of the value óf more than three dollars and seventy-five cents a yard. While the deputy remained at the store, a clerk of the plaintiff's’ remained with him, to look after the interests of the plaintiff. On December 27, the parties in charge of the store, locked it up, and left, to take a n eal at an eating-house near by. They returned about half-past seven o’clock in the evening, and found that a fire had happened in the building, on the floor above the store. Water from the engines had come through the ceiling of the store, and dropped on a part of the stock. The plaintiffs, or one of them, in making proo of loss to the insurance company, had given his affidavit, that damage was done to two hundred and thirty-one vests, six hundred and twenty-nine pairs of pantaloons, and seven hundred and eighty-one coats, in the amount of two thousand eight hundred and sixty-two dollars. Appraisers of the loss had been appointed, by consent. One of them was a witness for plaintiff, on the trial. By him, it was shown that the water had damaged one hundred and five vests, three coats, and one hundred and seventy-seven pairs of pantaloons, in the amount of three hundred and ninety-three dollars, and the loss was- settled on this basis. At the time of the fire, a patrol had broken into the store, and removed the goods from the window to another part of the store. On January 8, the deputy began to remove the goods in carts. The plaintiffs’ witnesses swore, that it was raining when the goods were taken away, and that the sheriff’s men came in, and “took the goods up like rags, and fired them on the wagons anyway,” and “ that they just took the goods right up like hay, and chucked them right in the wagons.” The deputy sent the goods to an auction room, and there they remained until about January 24, 1874. The auctioneer made a list of the goods as he received them, and gave a receipt for them to the deputy. Neither this list, nor the receipt was produced on the trial. One of the plaintiffs testified, that in the auction room, the goods were lying in about twelve feet space, and “ was piled up to the ceiling just like rags, and with all kinds, stove pipes and all kinds of counters were laid on the top of it.” The plaintiffs received the goods from the auctioneer after the attachment was vacated, and evidence was given by them, to show that the goods came to no damage from them, in the removal from the auction room to their own store.
    In order to establish their claim, that a great number of coats, jackets, pairs of pantaloons and vests, were taken and not returned, evidence was given that the plaintiffs compared the number of articles received from the auction room, with lists contained in their own stock book. The books were not so verified on the trial, as to show, prima facie, that they set out the stock on hand, at the time of the levy. The plaintiff, therefore, failed to show that any goods taken were not returned, excepting the piece of velvet and a quantity of trimmings. Enough proof was given as to these not being returned, to call for a verdict of the jury on this point.
    Testimony was given for plaintiff, that the stock on its return was in a damaged state, being, in parts of it, soiled, torn and mussed; that it was not merchantable, and was lessened in value twenty-five or thirty per cent. One of the witnesses testified that the stock “was soiled, dirty, mussed up or jammed up, and some of the linings torn and some of the bindings also torn and dirty, and had the appearance of having been roughly handled, not taken care of; we thought that twenty-five per cent., was a very low estimate for the damage of the stock.”
    The defendants gave evidence that contradicted the plaintiff’s witnesses as to the care with which the goods were removed from the store, the state of the weather at that time, and the manner in which the goods were stored at the auction room. All persons who had taken part in the levy, in the making of the inventory, in the guarding of the goods, in their removal, and in their storing at the auction room were examined as witnesses, and gave evidence that they respectively acted with care and prudence in their conduct. No evidence was given tending to show that the piece of velvet referred to had ever been delivered to the auctioneers, nor did any evidence given account for the loss of the velvet.
    At the end of the testimony for the plaintiff, the judge dismissed the complaint as to the deputy on the ground that he was liable to the sheriff only, and not to the plaintiff, and at the end of the whole case the judge held that the defendants had shown affirmatively that they had used the required degree of care, in respect of the goods, and that there was no conflict, on that issue, to be submitted to the jury, and the judge directed the jury to find for defendant, Brennan, sheriff.

      Mr. Elliott, for the appellants.

      Mr. Green, for the respondents.
   By the Court.—Sedgwick, J.

In Waterbury v. Westervelt (9 N. Y. 604), Judge Dentó was of opinion, that in an action like the present, the sheriff and his deputy were jointly liable, although there had been no personal interference by the former. No doubt was made as to the liability of the deputy, although Judge Parker thought the evidence abundantly proved the personal interference of the sheriff. Judge Deeio sustained the recovery on the allegations of the complaint, that the defendants made knowingly an excessive levy, and that a portion of the goods remained in their hands unsold, which they converted to their own use, except a small part which they returned to the plaintiff in a damaged state. Upon the reasoning of Judge Denio, and the cases cited by him, I am of opinion that the deputy in this case was liable, if at all, with the sheriff, and that the judgment must be alike against the two.

I am of the opinion that the plaintiff wholly failed to show that any part of the stock taken by the sheriff was not returned, excepting there was proof, upon which to go to the jury, that the piece of velvet and bundle of trimmings had been taken, and not returned. The burden of proof was then placed upon the defendant, in case the jury should find that these articles had been taken and not returned, to account for the loss by showing that it had happened against the use by the defendants of the care of an owner (exercising ordinary precaution) of such goods, under like circumstances. The duty of the defendants was at least that of a bailee for hire (Moore v. Westervelt, 27 N. Y. 239). The burden of proof should in principle be the same as in action against warehousemen, for loss of goods deposited with them (Coleman v. Livingston, 36 Superior Ct. Rep. 32 ; afterwards affirmed in the court of appeals).

Undoubtedly, as in the case last cited, if the defendants show that the loss happened, after the use of due care to prevent it by uncontradicted and indisputable evidence, the court should direct a verdict for the defendants. In the case last cited, the court held that a verdict should have been' so directed. The peculiarity of that case, was that the evidence showed the manner of the loss beyond doubt; viz., by burglary. In the present case, the defendant’s evidence did not account for the manner of loss, but on the other hand, there was some appearance of denial by defendants that the articles had been taken by him. In a case where the proof does not show the manner of loss, proof of care on defendant’s part to justify a direction in his favor, must at least show exhaustively, that the care was used against the risk of loss of every kind, from the beginning to the end qf the custody. A relaxation, but for a few minutes, of strictness enjoined bylaw, where the loss might have happened, will be sufficient to leave the defendants responsible, in spite of ample proof of care at times, and in contingencies when ,the proof does not show the loss to have happened. In the present case, I do not think the exhaustive proof was given. The evidence was of a general kind, that care was used in keeping the goods from loss. The testimony in some instances was specific, but for the most part it referred to the conduct of the keepers, through spaces of time of greater or less duration. The keeper, the cartmen, and their assistants, gave testimony as to their own vigilance. The inferences to be drawn, were essentially unlike those to be drawn from testimony as to the construction and fastenings of buildings. In the present case, it was not matter of law that the witnesses did what they said they did, and without their general impeachment, the jury was bound to examine the weight of their evidence. An omission of duty might be from forgetfulness. The very same forgetfulness might be the cause of a witness not recalling the omission, or the facts that would show the omission. The jury was not bound by any testimony that, in its substance, was a matter of opinion. Yet necessarily, in the testimony of the witnesses, their opinion was mixed in their description of the facts. Beyond this the credibility of the witnesses was involved. To justify taking the construction of testimony from the jury, there must be absent the circumstances to which a jury look in determining if a witness is unbiassed. There was here a peculiar relation between the defendants, and some of the important witnesses which the jury would have been bound to look at. I do not consider the case as if the duty of the sheriff or the deputy was performed, in the exercise of ordinary diligence in selecting competent servants. This subject was not considered upon the trial, and, in fact, no proof was given as to the exercise of this kind of diligence. If such were the claim of defendants, I think the court could not have passed upon it as a question of law.

In looking at the proof as to the kind of care exercised against the risk of damage, I am of opinion that there was such a conflict as to the manner in which the goods were removed, the weather during the time of removal, and the manner in which they were stored at the auctioneer’s, that the case should have been submitted to the jury on this point. It does not appear that the damage done by the fire, could necessarily have accounted for the condition of the stock after it was returned. The plaintiff’s witnesses gave evidence that the loss from the fire was small. The plaintiff was at liberty to ask the jury to rely on this, even against his own sworn proof of loss under the policies of insurance, that the damage was large. There was a great deal of testimony to show that after the return, the stock was found damaged to twenty or thirty per cent, of its value. The plaintiff, and his witnesses, had sworn that the stock was a saleable one before the fire. They also swore, that in whatever they did to it, before it was found so damaged, they did nothing which injured it, or would account for its being injured. In kind, this proof was valid in favor of the plaintiff, as was the defendants’ evidence on the same points in the defendants’ favor. The aid of the jury should have been asked to settle this difference as to the facts. If the jury found that the goods were damaged when in the defendants’ custody, to a serious extent, that was an important fact in determining whether the defendants had used the care that was sworn to, on defendants’ part.

On the whole case, I think it would be best to have the jury pass upon the facts.

The judgment is, therefore, reversed, and a new trial granted, with costs to appellant, to abide events.

Speir, J., concurred.


text:
    THE BLACKSTONE NATIONAL BANK OF BOSTON, Plaintiff and Respondent, v. JOHN H. BOGART, Defendant and Appellant.
    REFERENCE.
    In an action on a promissory note, the defendant in his answer sets up a defense, that the note was held by the plaintiff only as security for an antecedent indebtedness, secured by various kinds of property, real and personal, in value of forty-two thousand dollars, &c., and continuing the answer claims, that if the plaintiff be adjudged to have any interest in che note, “that the plaintiff render a full and true account of all the collateral securities, applicable to the payment of the note, and that under the direction of the court, said securities be applied to the payment of the claim of the plaintiff.”

      Held, that a reference might be granted on motion of the plaintiff, in this action. The prayer of the defendant for the application of these collateral securities, if granted, would certainly involve the examination of a long account, and possibly a complicated one.
    A reference may be granted, although the only necessity for the examination of a long account upon the trial, would arise from the nature of an affirmative defense in the way of a counter-claim (Maryot v. Thayer, 39 Sup'r. Gt. 417).
    The fact that such an affirmative defense takes the shape of an equitable cause of action, used as a defense (as in the case at bar), does not take the case out of the meaning of § 271 of the Code, in its first subdivi ion,
    Before Sedgwick and Speir, JJ.

      Decided, June 5, 1876.
    Appeal by defendant from order of reference.
    The complaint is wx % promissory note.
    The answer makes, 1. ¿Vhat for the purpose of this appeal is to be taken as a legal defense. 2. Upon allegations that the defendant was an accommodation maker, and for other reasons averred connected with the transfer of the note, the answer alleges that the plaintiff holds the note only as security for an antecedent indebtedness, and has in its hands other securities for that indebtedness ; these securities are vaguely described in the answer, but are numerous, consisting of bonds of a railroad, stock in a corporation, an undivided interest in land, a bond secured by mortgage upon land, a quantity of diamond jewelry, a pew in church, and other securities of the estimated value of forty-two thousand dollars.
    The answer demands judgment that the complaint be dismissed, and that the plaintiff be adjudged to deliver up said note to plaintiff, but if the plaintiff be adjudged to have any interest in the note, “that the plaintiff render a full and true account of all the collateral securities by it applicable to the payment of the note, and “that under the direction of this court, said securities be applied, as in equity and good conscience they ought to be applied, to the payment of the claim of the plaintiff.”
   By the Court.—Sedgwick, J.

It appears by the answer, that the securities held by the plaintiff, are pledged for several debts. I think the learned, judge made no mistake in determining that the application of the securities to the payment of these debts would certainly involve a long account, and possibly, a very complicated one. In Maryott v. Thayer (39 Sup'r. Ct. p. 417), it was decided that a reference might be granted, if there were no other objection, although the only necessity for a long account upon the trial would arise from the nature of an affirmative defense by way of counter-claim. The fact that such an affirmative defense takes the shape of an equitable cause of action, used as a defense, does not take it out of the meaning of section 271 of the Code, in its first subdivision, unless an order of reference would invade some constitutional right of the defendant. Such a case as the present could not have occurred before the constitution of 1846, for then the equitable defense, alleged in the present answer (its validity as a defense not being in question on this appeal), could not have been interposed.

If the defense had not been made, the defendants’ right to a jury would have been clear. If he had chosen to make his equitable defense the subject of an action in equity, he, of course, would have had no right to a jury, but I understand the learned counsel for the appellant to claim, that he has by reason of the affirmative nature of his defense, a constitutional right to have it tried by the court. If the issues are thus classified, the defendant would have a right of jury trial as to part, and of trial by the court as to a part. If the defendant had brought an action in equity, the court would have power to refer it, so far as the provisions of section 271 are concerned, if it would involve the taking of a long account. Actions at law must be founded upon contract, to permit referring the issues. Actions in equity, are not subject to a limitation of that kind, but the counsel for appellant, suggests the doubt whether the constitution of 1846, and the amend-meat of 1847, has not preserved to litigants the right to have, in equity cases, an adjudication upon the facts by the court. Before the constitution of 1846, the testimony was taken before masters, &c., but the adjudication was ty the chancellor or vice-chancellor. It is a constitutional provision that testimony in equity, shall be taken in the same manner as at law. I should be very reluctant.to come tc>such a conclusion, and it does not seem to me, necessary to examine it, for the reason that the defef 7-i.ifc had not brought an action in equity, but lias mad' ills plea in an action at law.

The action is subject to the provisions that govern actions at law. . The action is upon a contract, and to try the issues will require the examination of a long account. On the theoiy of the answer, if the plaintiff is entitled at law~to recover, he will not be at liberty to enjoy this legal right, if the defendant proceeds to show that other securities will pay the antecedent indebtedness. It is but an incident of the action, that the defendant may proceed, if he be successful, to affirmative relief in his behalf. The practice in relation to this incident should be subordinate to the rules that govern the principal issue.

The order should be affirmed, w ith ten dollars costs, and the disbursements to be t^xed.

Speir, J., concurred.


author: By the Court. —Sedgwick, J.

text:
    BERTHA CAHEN, Plaintiff and Respondent, v. THE CONTINENTAL LIFE INSURANCE COMPANY OF NEW YORK, Defendant and Appellant.
    LIFE INSURANCE.
    Application Polict.

      Physician prohibited from disclosing any information he may have acquired in attendance upon a patient, that was necessary to enable him to prescribe.

    In the case at bar, a policy of insurance was issued to plaintiff, May 31,1872, on the life of Albert Cahen, her husband, on the joint application in writing of plaintiff and said Albert Cahen, in which Albert Cahen stated that he had not “ during the last seven years, any sickness or disease; ” * ‘ that no physician had attended him for such a sickness and also “ that he had not been subject to cough.”
    The defendant, before October 2, 1872, had assumed and taken this risk, by an agreement with the Empire Co. On October 2, 1872, the defendant made its policy, in lieu of the former one, that was surrendered, which referred to the original application in these words: “which applications and representations apply to and are made a part of this policy, and warranted true by the assured,” &c., &c.; and in another place the policy stated “that if the declaration made by or for the assured in the application for said Empire policy, or any part thereof shall not have been discovered to be in any respect untrue, within one year from the date hereof, the same shall be considered incontestible by the company; provided, however, that in case the said declaration, or any part thereof, shall at any time be discovered to be wilfully and fraudulently untrue,” &c., then this policy shall be null and void.

      Held, by the court, that by the true construction of the policy, the application and the statements therein were warranted to be true on October 2, 1872, and covered all time previous to that date. So that the fact that on June 1, 1872, the said assured had a cough, and had sickness ' and disease, for which a physician was consulted, affected the policy; and evidence of the fact was relevant, and should be admitted, and receive due and full consideration in the determination of the case, provided there be additional proof, that the statements were wilfully and fraudulently made.
    Before Curtis and Sedgwick, JJ.

      Decided June 5, 1876.
    Declarations made by the assured as to his physical and mental feelings, that would show the existence of a malady at the time of making the application, that had been warranted against, were admissible in evidence, also the admission of the plaintiff, that the assured had made such declarations, was competent testimony against her.
    The statute (2 5. 8. 406, § 73, Edmonds' Ed. 422), that prohibits disclosures by a physician, makes peremptory rule, that is not terminated by the death of the patient, but as, the rule was made for the benefit of the patient, he may waive it; but until there is such a waiver, the law is as plain as words can be, that the physician shall not be allowed to testify.

    Appeal by defendant from judgment, entered on report of referee.
    The action was upon a policy of insurance, issued by defendant upon the life of Albert Cahen, for the benefit of his wife, the plaintiff. The premiums were payable by her.
    Upon the trial it appeared, that May 81, 1873, Albert Cahen made in writing jointly with the plaintiff, an application for insurance, to the Empire Mutual Life Insurance Company. In this application, Albert Cahen stated he had not “during the last seven years any sickness or disease,” that no physician had attended him for such a sickness, and also that he had not been subject to cough. Upon this, and on the same day, May 81, 1873, the Empire Mutual Insurance Company issued a policy. The terms of this policy were not put in evi ence. The plaintiff paid the premium on this policy.
    Between June 1, 1872, and October 2, 1872, an agreement was made in writing between the defendant and the Empire Company in regard to an assumption by the former of the risks taken by the latter in the course of its business. The testimony on this subject was oral, and objected to, and the nature of the agreement did not appear in evidence.
    On October 2, 1872, the defendant made its policy, in consideration of premiums paid and to be paid by plaintiff upon the life of Albert Oahen. This policy began, “This policy witnesseth that the Continental Life Insurance Company, in consideration of the representations made to the Empire Mutual Life Insurance Company, in the application for Policy No. 13,346, of said comp ny surrendered, which application and representations apply to and made a part of this policy, and warranted true by the assured, and of the sum,” &c.
    On this policy was endorsed a credit, which had been given by The Empire Company to the plaintiff, as of a loan made under May 31, 1872, one hundred and eighteen dollars and fifty-seven cents.
    On September 29, 1873, the defendant received from the plaintiff eighty-nine dollars and seventy cents, for premium due last day of September, 1873, insuring ten thousand dollars for four months ending on January 31, 1874, at noon, or within thirty days thereafter.
    The defendant’s policy contained a provision, viz. : “ that if the declaration made by, or for the assured, in the application for said Empire policy or any part thereof, shall not have been discovered to be in any respect untrue, within one year from the date hereof, the same shall be considered incontestable by the company, provided, however, that in case the said decíaration, or any part thereof, shall at any time be discovered to be wilfully and fraudulently untrue, or said, premiums shall not have been paid, as above specified, then, and in such case, this policy shall be null and void.”
    There was evidence that on June 1, 1872, the day after the policy was made by the Empire Insurance Company, Albert Cahen was in poor health, and had a cough ; that on June 5, 1872, a physician was called to attend him. There was testimony by declarations of the plaintiff, that Albert Cahen had the disease of the kidneys, called diabetes. The physician attended him for about three months. He died about November 13, 1873, of the disease of the kidneys.
    The defense was that by the true construction of the policy, the applications and the statements therein were warranted to be true on the 2nd October, 1872, when the defendant’s policy was made, and the answer averred that their statements in reference to Albert Cahen not being subject to cough, and not having had any sickness or disease within seven years prior to the application, and as to a physician having been consulted by him within that time, “were willfully and fraudulently untrue, and that the same were discovered to have been willfully and fraudulently untrue prior to the 2nd day of October, 1873.”
    The referee by whom the case was tried, found in favor of plaintiff, and the defendant appeals from the judgment entered on the report

      William C. Whitney, for appellant.

      Lewis Sanders, for respondent.
   By the Court. —Sedgwick, J.

The language of the policy that the application and representation made on May 31st, 1872, to the Empire Company, by the assured, “apply to and are made a part of this policy, and warranted true by the assured,” is explicit. A resort to extrinsic circumstances could not be allowed to change its plain meaning. Nor do the facts, adverted to by the learned counsel for the respondent, for the purpose of unfolding the real meaning, in fact tend to show that the intent of the parties was that the application and its representations were to be tested, by its truth or falsity, on the day of its date, May 31, 1872. These facts are that the first policy of the Empire Company was surrendered, that the assured or the plaintiff made no direct application for the present policy, but some agreement was made, the terms of which are unproved, in reference to the assumption by the defendant of the outstanding risks of the Empire Company, and that the defendant received as part consideration, a note which had been credited on the first policy. These facts combined, do not make it improbable or unreasonable that the defendant should refuse to insure a life as to which the occurrences of the preceding five months had changed the chances of its duration. In May, 1872, the Empire insured in view of probabilities, based upon facts represented to be true, by the assured. In October, 1872, the defendant, about to insure, for the premium charged by the Empire, would naturally base its calculations upon the continuance of the facts represented to the Empire. If, in the mean time, the assured had been subject to cough, or had a sickness or disease, for which a physician was consulted, the defendant was not called upon to consider these actual facts, nor was it likely that it would, as having the same relation to its insurance that the non-occurrence of them before May 30, 1872, had to the policy of the Empire Company.

But the contract speaks for itself. The representations contained in the application to the Empire were made part of the policy, in this case. The representation, therefore, was, that on October 2,1872, the defendant had not been attended by a physician within seven years, &c., &c.

It does not seem to be a material fact, even if it were the case that the plaintiff, or her husband, did not apply to the defendant for this policy. The limitations of the general obligation, must, of course, have effect.

The referee, however, took the other view, that the representations of the application, were to be examined, as if finally made on May 30, 1873, when the policy of the Empire was issued upon it, and based his conclusion upon that position. It is not necessary to give attention to the specific exceptions, that relate to this. They were such, that clearly the conclusion of the referee, that the defendant was liable, is not supported by the facts found by him.

It was conceded by the learned counsel for the appellant, that the defense could only be sustained by proof that the representations were willfully and fraudulently untrue. By a special clause, the policy was not made void by the mere falsity of the representations, unless that falsity was discovered by the defendant, within one year from the date of the policy. As it was not proven to have been discovered within that time, the defendant undertook to prove that the representation was willfully and fraudulently false. No attention was given on the trial, or on this appeal, specifically to the inquiry, as to the possibility of showing that the application was willfully and fraudulently false on October 2, 1872, when it was made part of the policy in action, if as matter of fact, the plaintiff, oilier husband, did not then know of the particular form or mode of taking out the policy. Nevertheless, there was testimony in the case, on which the referee could have found that the parties did know the form and mode, and the defendant did give, and offer evidence to show, that the parties did know, that the contents of the representations were not true.

The policy was based upon a consideration paid, and to be paid, by the plaintiff, and its amount was payable to her. It may be granted then, that the declaration of the husband, would be hearsay testimony, as to the plaintiff, and incompetent in this case, to the same extent as hearsay testimony is in any case. But the limitations of the general rule are to be observed, and the declarations are admissible, when the fact of the making of such declaration tends to prove any material issue, and when to establish that fact competently, it is not necessary that the person making the declaration be under oath, and subject to cross-examination.

In this case, the policy was issued upon the representations made by both the plaintiff and her husband.

If there was willful falsity as to these, on the part of the husband, the policy would be avoided, although the plaintiff was innocent of willful falsehood.

The defendant, therefore, had the right to give evidence of declarations made by the husband, as to his having at the time of the declaration, such bodily and mental feelings, as would of themselves, or by help of other testimony, show the then present existence of a disease or malady which had been warranted against, within the proper space of time. Also, the admission by the plaintiff, that the deceased had made such declarations, was competent against her.

The declarations of the deceased could not be used beyond this, to show he was subject, or had been subject to the disease; but if testimony had been given, either of the kind indicated, or in some other competent mode, which tended to prove the existence of the disease, then I am further of the opinion, that it was competent to give testimony that the deceased had said that he had had such a disease, for the-purpose of showing his knowledge, and means of knowledge of the facts, at the time of the making of the application. This is relevant to the question of willful falsity.

If these propositions be correct, certain exceptions of the defendant should be sustained. By defendant’s case, the deceased was shown to be, on June 1, 1873 (the day after the Empire policy was made), very weak and suffering from a cough. Dr. Henngler was then called in. Evidence was given to show that the assured was then attacked by diabetes. The defendant’s counsel asked of a witness, “Were you after-wards informed by Mr. Gahen (the deceased) as to the result of the doctor’s investigation?” The question was overruled. We think it was competent, as it tended to show the deceased’s knowledge of the existence of a serious malady as to which competent testimony beyond his own declarations was given. We have deemed that the representations were warranted true on October 3, 1873. The deceased then represented that within seven years he had not had a sickness or disease for which a physician had attended him. In the effort to show that this representation was willfully false on the part of the deceased, it was proper to show his knowledge of the facts before that time, and the character of the facts, as to the impression they were likely to make on his mind. For like reasons, the defendant should have been permitted to show what the plaintiff had told a witness as to the doctor discovering the character of the disease, in a certain way. A witness was asked, after showing that a doctor was in attendance upon the assured, in the summer of 1873, “ what did he (the assured) say was the matter with him?” The question was overruled. Although this may not have been competent to show the disease, it was competent for the purpose of showing that the facts were so deeply impressed on the mind of the deceased, that a false statement made thereafter, as to them, would probably be willfully false. There were other exceptions of the kind, which it is not necessary to notice, as what has been said is applicable to them. The rulings of the referee on these points were doubtless affected by the view he had, that the representations were only warranted true on and before the time the Empire Company made its policy.

In the course of the trial, the defendant offered the deposition of Dr. Henngler, already named as the doctor who attended the deceased in the summer of 1872. The plaintiff objected to the admission of the testimony, on the ground of the statute (2 R. S. 406, § 73 [Edmond’s Ed. 422]), “No person duly authorized to practice physic or surgery shall be allowed to disclose any information, which he may have acquired in attending any patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him, as a surgeon.” I am of opinion that the referee properly excluded the deposition. The counsel for appellants argues that the death of the patient annuls the applicability of the statute. The argument is, that the privilege of preventing the disclosure of a professional communication, is personal to the party making it; and the decease of the party entitled to avail himself of it, puts it beyond the possibility to assert the privilege. I do not feel the force of this. The impossibility of asserting a privilege might be caused by other things than death ; for instance, insanity. The true position is, that the statute makes a peremptory rule, but as the rule is made for the benefit of the patient, he may waive the right given to him. Until there is such a waiver, the law is as plain as words can be, that the physician shall not be allowed to testify. Nor do I think, that if the physician gained his knowledge in the presence of a wife of the patient, or of a person nursing the patient, or of an assistant, the physician should be allowed to testify. It is not like the case of the statute forbidding evidence by parties of declarations of deceased persons, under certain circumstances. That rule has regard to the credibility of the testimony as to the declarations. In the present case, the statute seeks to give to a sick man a security that what he says to his doctor shall not be testified to unless by his consent. The presence of third parties could only be used, as allowing the doctor to testify, because such presence was a waiver of the secrecy which is the patient’s protection. It should not be deemed a waiver, however, whenever their presence is in aid of the sick man, because then it does not appear that declarations made before them evince that the patient was willing to renounce the secrecy secured by the statute.

The counsel for respondent argues that by uncontroverted testimony, the defendant has waived the defense made, viz.: the avoidance of the policy, because it appears that an instalment of premiums was received, after the time the answer alleges the defendant came to the knowledge of the alleged falsity of the representations. I cannot, come to this result. The answer says the defend mt came to a knowledge of the falsity within a year before October 2, 1873, but there is nothing to bind the defendant to any particular time of the year. It may have been the first of October, or the last of September, and the premium was paid as early as September 29. After coming to a knowledge of the falsity, nothing was done by the company in affirmance of the policy. The lapse of time, thereafter, was not, at least, sufficiently great to make a waiver as matter of law, even if mere lapse of time was sufficient to sustain a finding that the defendant had waived the avoidance of the policy, as to which there was no argument on the appeal,

The judgment should be reversed, the order of reference set aside, and a new trial had, with costs to appellant, to abide event.

Curtis, J., concurred.


author: By the Court.—Speir, J.

text:
    HOMER A. MOREHOUSE, et al., Plaintiffs and Appellants, v. ISRAEL YEAGER, Defendant and Respondent.
    Before Sedgwick and Speir, JJ.

      Decided June 5, 1876.
    An order obtained ex parte, requiring a defendant to file Ms answer within ten days, or that Ms defense be deemed abandoned, may be vacated or modified by the judge making the same, ex parte or upon notice and a hearing.

      Wm. R. Baldwin, for appellant.

      Stilwell & Swain, for respondent.
   By the Court.—Speir, J.

An appeal from an order denying a motion made by the plaintiff to set aside an order theretofore granted by a justice vacating a previous order made by him.

An order was obtained ex parte requiring the defendant to file his answer within ten days, or that his defense be deemed abandoned. The affidavit on which this order was granted did not disclose the fact, that the action had already been tried and judgment entered thereon. Upon discovering this fact, the justice who granted the order upon application vacated it; but without prejudice to the plaintiffs, to make a motion upon notice to the defendant requiring the tiling of such answer. The plaintiffs did not avail themselves of this privilege, but moved before another justice to vacate the order which had been first made. The appeal is put upon the ground that the learned judge who made the first order, had no power to vacate it. All the facts were not disclosed when this first order was made entitling the applicant to have it granted. In such a case, there can be no question that the judge had the right to vacate it, and he did so without prejudice to the plaintiff’s right to apply upon notice for an order of like effect and get it. This he failed to do.

The motion must be denied with costs of motion below and on the appeal.

Sedgwick, J., concurred.


author: Speir, J. Sedgwick, J.

text:
    NELLIE EUGENE GILLOTTE, Plaintiff and Appellant, v. ANNA M. JACKSON, et al., Defendants and Respondents.
    Before Sedgwick and Speir, JJ.

      Decided, June 5, 1876.
    The proceedings of a court of justice are of too grave a character to be impeached or set aside, except upon responsible and trustworthy grounds.
    An affidavit that alleges upon information without disclosing the sources of the information, that a judge had improperly received a communication from a jury after charge and retirement, and had made answer to the same, and that said answer and communication was unlawful and prejudicial to the interests of the defendants, &c. &c., is insufficient to authorize the verdict of said jury, and the judgment entered upon the same, to be set aside, and a new trial to be had in the action.
    It not affirmatively appearing what answer was made by the judge, to the communication from the jury, the presumption is that the answer was one that was proper and lawful in the premises, and within his discretion and the lawful exercise of his duties.
    This is an. appeal from an order made at special term, setting aside a verdict for five thousand dollars, and granting a new trial.

      George W. Lord, for appellant.

      Samuel G. Courtney, for respondent.
   Speir, J.

The action was brought to recover damages for malicious prosecution and false imprisonment. 'I'lte complaint claimed five thousand dollars. The motion to set aside the verdict was made solely on the affidavit of one of the defendants, Anna M. Jackson, that after the jury had been charged, and had retired to their rooms for deliberation, they sent a communication to the judge, inquiring if the jury could find a verdict for the plaintiff in the sum of fifteen thousand dollars or twenty-five thousand dollars; that the justice communicated his answer to the jury, and that the communication and answer were without the consent or knowledge of the counsel or parties in the action. The affidavit does not state what the answer was which the judge returned to the jury.

A preliminary question is raised by appellant’s counsel, that the defendant does not state the source of her information, or that she had or could have from the nature of the case, any personal knowledge of what transpired after the jury retired. That the inference, in the absence of any statement showing how she obtained her knowledge, was that it was derived from some third party, and that the verdict of the jury, solemnly and deliberately rendered, should not be set. aside by, or upon a mere hearsay affidavit.

If the information was obtained from any of the jury, or from some third person to whom it had been revealed, and the fact so stated, it is, I think, pretty clear that the court would not have entertained the motion. The proceedings of a court of justice are of too grave a character to be impeached or set aside, except upon responsible and trustworthy grounds.

The weakness of the defendant’s case, consists in the fact that it does not affirmatively appear what answer was made to the communication of the jury. How can the court act upon the motion unless it appears what the judge said ? He cannot prevent the jury from making inquiry. To set aside the verdict would be acting upon the supposition that the judge had been guilty of exercising a discretion not permitted by law, while it does not appear what answer he made fco the inquiry. In such a case, the presumptions are all the other way. The position he is called to fill, his experience and impartial conduct, are supposed to be guards enough against the improper exercise of discretion.

What is the discretion referred to, in the cases on this subject? It must be, I think, a legal discretion, a species of discretion which is authorized by law, without which justice cannot be administered. This definition reconciles all the apparent contradictions which are supposed to exist in the reported cases. In the case last reported (Watertown Bank and Loan Co. v. Mix, 51 N. 7. 561), Mr. Justice Johnson points out the distinction. He says, “thereought to be no communication between the judge and the jury after they have gone from the bar to consider of their verdict in relation to the oral evidence, or his instructions to them, unless it take place openly in court, or with the express assent of the parties.”

All the cases referred to by that experienced and discriminating judge, in his opinion, refer to communications relating “to oral evidence, or instructions on the law governing the case.” In the case of Plunket v. Appleton, lately decided by this court, the learned judge recognizes the distinction by repeating the rule in terms thus laid down.

The answer, whatever it was, is not made known. We are at liberty to guess what it was. He may have stated to them he had no answer to make. He may have stated that it was improper for him to answer, that they must come into court for instructions. Or he may have said, “ Ho.” Then it would have been in all respects the case of Thayer v. Van Vleet (5 Johns. 111), in which the very distinguished judges of that day say, “ there was in the case no semblance of abuse.” There was no exercise of discretion here, but the discharge of a duty imposed upon the court. The communications from the jury are often of that kind which ought not to be made known to the bar. The case before us is of that kind. To have announced to the bar the inquiry whether the jury could find against the defendant twenty-five thousand dollars, whilo the plaintiff’s claim was only five thousand dollars, would have been to announce the result of the case before the verdict was published. This would have been, in my judgment, a better ground of appeal, than that under consideration. The relations existing between the trial judge and the jury, necessarily demand a large share of discretion in many matters, others than those arising from the evidence, or the law governing the case. It is the daily experience of those attending courts, that there are very many inquiries which the. jury have the right to make of the presiding justice, which he has no right to communicate to the bar, or the public. These will be readily suggested to the minds of any one conversant with legal proceedings, and to say that there is no discretion allowed in such cases, is neither wise nor sensible. Applying the rale, as now limited and confined by the court of last resort, I think the order appealed from should be reversed, with costs.'

Sedgwick, J.

I concur. The omission of defendant’s affidavits to show what the answer was, or that she had not the same knowledge or information as to the answer that she had as to the question, is sufficient, with the nature of the question, to establish that the defendants were not, in fact, injured.