text:
    MARY POWERS, Individually and as Executrix, etc., Respondent v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Revivor, general order for by Court of Appeals after argument, effect of

    This action was originally brought by George J. Leslie, as trustee for Frances A. Leslie, as plaintiff, and the first trial resulted in a judgment for the plaintiff.* Pending an appeal by defendant to the Court of Appeals from this judgment, both George J. Leslie and Frances A. Leslie died. Frances A. Leslie left a will whereby she devised all her real and personal estate to Mary Powers and appointed her sole executrix. Thereafter Mary Powers (pending said appeal) moved in the Court of Appeals, ' the attorney for the former plaintiff making the motion, for an order to . “ revise and continue the cause in the name of Mary Powers individually ■ and as executrix, etc.” The motion was opposed by the defendant-appellant. The court ordered that the motion be granted and that “ this cause is revived and continued in the name of Mary Powers individually and as executrix, etc., as plaintiff and respondent therein in the place and stead of George J. Leslie.” Reid, that the order of the Court of Appeals was a final adjudication between the parties; that the executrix had succeeded to the rights of the former plaintiff and that the Court of Appeals had jurisdiction to make it, and was conclusive evidence of such succession on a subsequent trial of the action.

      Note.—This judgment was reversed by the Court of Appeals (120 N. Y. 178). The question considered in above opinion arose on the re-trial of the action.

      Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided March 3, 1891.
    Appeal by defendant from judgment entered upon verdict of jury and from order denying motion for a new trial made upon the judge’s minutes.
    The facts sufficiently appear in the opinion and the head note.

      Davies & Rapallo, attorneys, and Julian T. Davies and Brainard Tolles of counsel for appellant, on the question considered in the opinion, argued :—
    Mary Powers has no capacity to maintain this action, never having been substituted as plaintiff in this court. When the order of the Court of Appeals substituting Mary Powers as respondent in that court was offered in evidence on the trial of this action defendants’ counsel objected to it as incompetent, improper and immaterial in this action. At the close of the plaintiff’s case a motion was made to dismiss the complaint on the ground that the (acting) plaintiff had no legal capacity to maintain the action. The order of the Court of Appeals could only have been made under section 1299 of the Code of Civil Procedure. That section defines the only instance where i.t is proper to apply to appellate court for an order of substitution, viz.: where an appeal is taken from one court to another, an application for an order of substitution as prescribed in sections 1296, 1297 and 1298 must be made to the appellate court. The sections referred to relate only to substitutions, for the purpose of conducting the appeal. Section 1296 refers to substitutions for the purpose of taking an appeal. Section 1297 refers to substitutions upon motion of the adverse party, for the purpose of enabling an appeal to be heard. Section 1298 relates to the disposition of appeals where the proper representatives of the deceased party fail to make an application for substitution within three months. When, therefore, the order in question was made by the Court of Appeals, all that was determined by it was that Mary Powers was a proper person to be heard in that court in support of the judgment. This was a very natural conclusion, inasmuch as she was the only person who applied for leave to be heard, and her application was ex parte with respect to other possible claimants to the cause of action represented by the judgment. The order of the Court of Appeals did not, therefore, obviate the necessity of proceeding under section 757 of the Code, in order to determine who was actually vested with the title to the cause of action and to the control of the general conduct of the cause upon the granting of a new trial. In Rose v. Hawley, 118 N. Y. 502, which was an appeal from an order granting a new trial in an action of ejectment, in which plaintiff had a verdict, a motion was made in the Court of Appeals by an alleged purchaser of plaintiff’s' interest on an execution sale to be substituted as appellant, and the motion was resisted by the original appellant. The same division of the Court of Appeals which made the order in the case at bar granted the motion in Rose «. Hawley so far as to allow the applicant to be heard in that court, upon the express ground that the order applied for affected only the conduct of the appeal in that court, and could not operate as an adjudication of the applicant’s title to any portion of the cause of action. This decision is in accord with the general rule that the function of an appellate court is solely to determine the correctness of judgments at the time they are rendered, and that all its acts are to be taken as having reference to that end. It is incredible - that the legislature intended to impose on an appellate court the duty of determining upon the merits the course of devolution of title to judgments after they are entered. A very brief consideration will show, how impossible it is to give such a construction to section 1299. Appeals may be taken to the Court of Appeals from interlocutory judgments and orders, and such appeals do not necessarily involve the staying of proceedings in the court below. Code of Civil Procedure, § 199. Suppose an appeal were taken to the Court of Appeals from an order striking out a demurrer as frivolous, and, pending the hearing of the appeal, one of the parties were to die. Can it be supposed that all proceedings in the court below would be compelled to await the determination by the Court of Appeals of the question of who was to be heard on the subject of the frivolity of that pleading ? Undoubtedly a motion for substitution under section 1299 would have to be made in the appellate court. But such a motion would relate only to the conduct of the appeal, and all matters affecting the general conduct of the action would have to be determined in the court of original jurisdiction. It was intimated in Smith v. Zalinski, 94 N. Y. 519, 524, that in a common law action a right to a jury trial existed as to every question of fact (including questions relating to any alleged successorship' in title to the cause of action), and that upon a motion for substitution in such an action the court should, if either party demanded it, order supplemental pleadings to be served, so that the issue might be tried, like the other issues, by a jury. It is obvious that this relief could not be granted by the Court of Appeals upon an application under section 1299, and it is therefore apparent that an order under that section in a common law action cannot be conclusive upon the question of title to the cause of action, but only upon the prima facie right to be heard upon the appeal in that court. Section 194 of the Code provides that “ the judgment or order of the Court of Appeals must be remitted to the court below, to be enforced according to law.” The order in question has never been remitted to this court by the Court of Appeals, and has never been adopted by this court or made the judgment of this court. It is not to be found upon the records of this court and forms no part of the judgment roll. There is to-day no suggestion in the judgment roll of the death of George J. Leslie, and no reason appears from the judgment roll for entering judgment in the name of Mary Powers as plaintiff instead of between the parties designated by the pleadings.

      Roger Foster, attorney and of counsel, for respondent, on the question considered in the opinion, argued :—
    The order of the Court of Appeals conclusively established the fact that the present plaintiff had acquired the cause of action held by the original plaintiff.
   Per Curiam.

The action was begun by George J. Leslie, as plaintiff. He obtained judgment and the defendant, after affirmance at general term, appealed to the Court of Appeals. The plaintiff died during the pendency of that appeal. On the application of the present plaintiff, the attorney who was the attorney of the former plaintiff moved in the Court of Appeals “ to revive and continue the cause in the name of Mary Powers, individually and as executrix, etc.” The motion was approved by defendant’s attorney. The court ordered that the motion be granted, and this cause is revived and continued in the name of Mary Powers, etc., as plaintiff and respondent therein, in place and stead of said George J. Leslie.”

On the trial evidence was given as to the succession of the present plaintiff to the rights of George J. Leslie. No attention will be given to this evidence excepting that part of it that consisted of the order of the Court of Appeals already referred to.

On the trial the defendant’s counsel objected that Mary Powers, held no capacity to maintain this action, never having been substituted as plaintiff in this court. This is contrary to the meaning of the order, plainly expressed, and this order is final between the parties on the assumption that the Court of Appeals had power to make it. A different conclusion would not be valid, for the Court of Appeals is the final judge of its- own jurisdiction. The adjudication between the parties is final. Smith v. Zalinski, 94 N. Y. 519. It was necessarily involved in that adjudication that the plaintiff had succeeded to the rights of the former plaintiff. On the trial and the argument of the appeal nothing was based upon the fact that the plaintiff sues on an original right as well as on one derived from the former plaintiff.

It is said that giving such an effect to the order deprives the defendant of the constitutional right to a trial by jury on the issue of whether the plaintiff succeeded to the rights of George J. Leslie. But the defendant has had a trial by jury, and on that trial any competent evidence of a former adjudication was admissible, and must have its legal qualities and conclusiveness recognized. So that the question is, whether the fact that at the time of the arguing of the motion in the Court of Appeals the defendant could maintain the position that its right to a jury trial prevented that court rightfully making any order, excepting one of substitution, for the purpose of determining the appeal. But the court has finally decided this by making the order as it was made. It does not appear that there was a demand for a jury trial as to the particular matter.

The other questions in the case have heretofore been passed upon, and the judgment and order are affirmed, with costs.


source: Caselaw Access Project

author: By the Court.—Dugro, J.

license: Public Domain

text:
    MARY J. ROSEVELT, Respondent v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Negligence—Action for damages for personal injuries sustained, in consequence of the negligence of the defendant.

    The injury alleged was, in part, of the arm of plaintiff. A physician who had attended the plaintiff testified in her behalf, that when he last examined her arm she had persistent pain on its motion. Defendant’s request to strike out this testimony on the ground that it involved the assumption that there was pain “now," was properly denied. A fair interpretation of the answer of the witness shows that it did not involve the assumption claimed.
    A question put on behalf of the plaintiff to same witness was, “You examined her (plaintiff) a few days ago and she told you, while you were examining her, that she was suffering from pain in that arm ? ” This question was objected to upon the ground that the witness could not testify as to the plaintiff’s having pain, and upon the ground that it involved an assumption that there was pain at the present time. Held, that the question was not objectionable upon the grounds stated.
    A question as to the permanency of the injury was objected to on the ground that such permanency was not alleged in the complaint. Held, that this objection was properly overruled as there was no necessity for such an allegation in the complaint.

      Held, that defendant’s proffered evidence as to the extent of the injury to tiie car in which plaintiff was a passenger, was properly excluded. It had no relevancy to the plaintiff’s injuries or to the force of the collision as described by the plaintiff.
    Before Sedgwick, Ch. J., and Dugro, J.

      Decided March 9, 1891.
    Appeal from a judgment and an order denying a motion for a new trial.

      William G. Bussey, for respondent.

      Davies & Rapallo, for appellant.
   By the Court.—Dugro, J.

The action is for damages for personal injuries sustained in consequence of the negligence of the defendant. The injury alleged was, in part, of plaintiff’s arm. A physician who had attended the plaintiff testified in her behalf, that when he last examined her arm she had persistent pain on motion. Defendant’s request to strike out this testimony upon the ground that it involved the assumption that there was pain “now,” was properly denied. A fair interpretation of the answer shows that it did not involve the assumption claimed.

- A question put on behalf of the plaintiff was, “You examined her (plaintiff) a few days ago and she told you while you were examining her that she was suffering from pain in that arm?” This question was objected to upon the ground that the witness could not testify as to the plaintiff’s having pain, and upon the ground that it involved an assumption that there was pain “at the present time.” The question was not objectionable upon the grounds stated. ' The answer was unobjectionable, except as not responsive.

' A question as to the permanency of the injury was objected to as not having been alleged in the complaint.This objection was properly overruled, as there was no necessity for such an allegation in the complaint. Curtiss v. The Rochester & Syracuse R. R. Co., 20 Barb. 282 ; affirmed, 18 N. Y. 534.

The exclusion of defendant’s proffered evidence as to the extent of the injury to the car in which the plaintiff was a passenger, was proper, for the extent of the injury to the car, of itself, had no relevancy to the plaintiff’s injuries or the force of the collision described by the plaintiff.

I have examined the other exceptions in the case and find none of value. The judgment and order should be affirmed.

Sedgwick, Ch. J., concurred.


text:
    JOHN REILLY, et al., as Executors, etc., Appellants v. RUFUS DODGE, et al., Respondents.

      Indemnity bond to sheriff touching acts of deputy.

    This action was brought upon a bond of indemnity, executed by the defendants, in the penalty of $10,000, and conditioned to save harmless the plaintiffs’ testator as sheriff touching the acts of the defendant Dodge, as deputy sheriff. The plaintiffs’ case and the amount of defendant’s liability were substantially admitted by the pleadings and admissions of counsel, unless the affirmative defence set up was established, namely: That on November 28, 1877, the defendant McDermott notified plaintiffs’ testator that he declined being surety for defendant Dodge from that date. That thereafter Dodge procured a new bond to be executed bearing date December 1, 1877, which bond was delivered to plaintiff’s testator, and substituted for and in the place and stead of the bond sued upon, and thereupon defendants were Released, etc. Held, that there is no evidence in the case that the plaintiffs’ testator, Bernard Reilly, was notified, prior to the commission of the acts complained of, that defendant Mc-Dermott declined longer to be a surety for defendant Dodge. Service of a notice to that effect upon the under-sheriff November 28,1877, was not service upon the sheriff. Section 56, Art. 5, Tit. 2, Chap. 3, Part 3, Revised Statutes does not apply to a notice given by a surety. The notice of the surety is not required to be served on the sheriff as such. If valid for any purpose, it can only be made so by service upon the person indemnified individually, and not as an official, for in legal effect the bond was to Bernard Reilly and not to Bernard Reilly as sheriff. The acceptance of the new bond. February 5, 1878, certainly discharged the sureties of the former bond, but this discharge was operative only from the date of the acceptance of the new bond. The action of the under-sheriff in notifying Dodge to get another bondsman, and that he should receive no new business, did not operate to prevent Dodge from exercising the office of deputy sheriff by virtue of the process given to him and did not release the sureties from their obligation, and it was, in fact, while he was exercising the office that the acts complained of were committed and before the new bond was accepted. The sureties were liable generally upon the bond and the plaintiffs were entitled to judgment accordingly.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided April 6, 1891.

      Appeal from a judgment entered upon the report of a referee dismissing the complaint, with costs.

      Frederick Hemming, attorney, and Henry Thompson of counsel, for appellants.

      Louis M. Doscher, attorney for respondents Dodge and Sauer.

      W. W. Westervelt, attorney for respondent McDermott.
   By the Court.—Dugro, J.

There is no evidence that the plaintiffs’ testator, Bernard Reilly, was notified prior to the commission of the acts complained of that McDermott declined longer to be a surety. Service of the notice upon the undér-sheriff was not service upon the sheriff. Section 56, Act 5, Title II, Chap. Ill, Part III, Revised Statutes, does not apply to a notice given by a surety. The notice of the surety is not required to be served on the sheriff as such. If valid for any purpose it can only be made so by service upon the indemnified individually, and not as an official, for in legal effect the bond was to Bernard Reilly not to Bernard Reilly, as sheriff.

The acceptance of the bond of February 5th certainly discharged the former sureties, but this discharge was only, operative from the date of the acceptance of the later bond.

The condition of the bond in suit is that if the defendants keep harmless Bernard Reilly, touching the execution of such orders, etc., as shall be delivered to the defendant, Rufus Dodge, during the time the said Dodge “ shall or may, by virtue of the warrant aforesaid, use or exercise the * * office of deputy sheriff,” the bond shall be void, otherwise not, etc.

The action of the under-sheriff in notifying Dodge that he should receive no new business, did not operate to prevent Dodge from using and exercising the office of deputy sheriff by virtue of the warrant, for it was in fact while he was exercising the office that the acts complained of were committed. The exercise of the office of deputy by Dodge, was always more or less controlled by the sheriff, and always properly limited by the business assigned him.

It was stipulated that if the sureties should be determined to be generally liable upon the bond, the amount of the recovery should be the sum of $985.02 with interest from June 6, 1885; the liability of the defendant Dodge to follow the stipulation as to amount.

The sureties were liable generally upon the bond, and the plaintiffs were entitled to judgment accordingly.

Judgment reversed, order of reference vacated and a new trial ordered, with costs to abide the event.

Sedgwick, Ch. J., and Truax, J., concurred.


author: Per Curiam.

text:
    DAVID SEARS, et al., Respondents v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

      Will directing a division into shares—Direction accomplished by a partition action—Jury trial, xohen not a constitutional right.

    By the will in the ease at bar the testator directed that his estate, real and. personal, should be divided into five shares, and devised to each of his three sons one of such shares in fee, one other of such shares he devised to his executors in trust upon the following trusts, among others, to receive the rents thereof and apply them to the separate use of his daughter Sabina Redmond during her life, and devised the fee over on her death, the persons to take depending on the happening of one of three events in the will specified; the remaining share he devised to his executors in trust upon the following trust, among others, to receive the rents thereof and apply them to the separate use of his daughter Emily E. Hoyt during her life and devised the fee over on her death, the persons to take depending on the happening of one of the three events specified in the will, one of which events was the death of such daughter leaving children or grandchildren living at her death without having by her will or an instrument in the nature of a will made any devise, direction or appointment as to such share, in which event he devised such share in fee to her child or children then living and to the child or children then living of every child of hers who should then be dead, as tenants in common, the child or children of a deceased child to take the same share which his, her or their parent, if living would be entitled to. The testator died in 1842.
    In 1876, one of his sons commenced a partition action, making all persons in esse, having any interest, partie.s. Such proceedings were had that a decree of sale was made. Before the sale two of the persons named in the will as executors (one of them having qualified) divided the real estate whereof the testator died seized into five parcels as nearly equal in value as possible, and assigned one of such parcels to each share devised; and arranged to bid in at the sale at the valuation they had placed on them the pieces assigned to each parcel for the benefit and on account of those respectively interested in the share to which the parcels were respectively allotted. Thi» arrangement was in effect carried out at the sale; and the premises in question were bid in at the sale by Goold Hoyt as trustee under the will of Goold Hoyt, deceased, for Emily E. Sears (Emily E. Hoyt having married David Sears) and her children, and the same were by the referee conveyed to him as such. Thereafter Mrs. Sears died, without having made any devise, direction or appointment by will or instrument in the nature thereof, of the share so devised in trust by the said will of Goold Hoyt, deceased. The plaintiffs are the only children who survived her. She had two other children who died before her intestate. She left no grandchildren. Her husband died before her. Held, that the setting off directed by the will was accomplished by the partition action; that' Goold Hoyt 2d, as trustee under the will of Goold Hoyt, deceased, for Emily E. Sears and her children and heirs took the property conveyed to him by the referee as such trustee in severalty for the purposes of that trust; and that Mrs. Sears having died the legal estate of the trustee ceased, and the fee vested in the plaintiffs.
    This action was for both legal and equitable relief in respect of the same cause of action. Held, that the ease presented was not one of right triable by jury under the constitution.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided April 6, 1891.
    . Appeal by defendants from judgment entered upon findings and conclusions made at special term.

      This action is brought to restrain defendants from maintaining, adding to, constructing or operating its road along, adjoining or in front of certain premises abutting on a certain street and to recover damages for injuries done in the past to certain easements appurtenant to said premises by the obstruction of light, air and access, and by the emission from the locomotives run on the road of great quantities of cinders, soot, ashes and other obnoxious material which enter the premises and make the occupancy thereof unhealthy and disagreeable, or if defendants should be permitted to continue the use of its railroad structure it should be on condition of their paying in addition to damages in the past the sum of fifty thousand dollars.
    The plaintiffs claimed title to the premises in question as heirs of Emily Esther Hoyt, wife of David Sears, who derived title through the will of her father Goold Hoyt who died seized and possessed of the premises ; her present source of title being a deed from Goold H. Redmond who claimed under a deed from Henry S. Hoyt, dated September 20th, 1883, in which the grantor describes himself “ as sole surviving executor of and trustee under the last will and testament of Goold Hoyt.”
    Goold Hoyt died July 22d, 1842, leaving a widow, Sabina Hoyt, and five children, viz.: Henry S. Hoyt, Goold Hoyt, 2d, Lydig M. Hoyt, Sabina E. Redmond and Emily E. Hoyt, the mother of the plaintiffs. He left a last will and testament dated April 19th, 1841, by which after making sundry specific devises and bequests not affecting the question involved in the case at bar, he directed that “all the residue of my real and personal estate shall be divided into five shares as hereafter directed.” He then made the following devises and bequests. He devised one of the five shares to his son Henry S. Hoyt, his heirs, executors and administrators. He .made a similar devise and bequest of one other of the five shares to his son Goold Hoyt. He made a similar devise and bequest of another of the five shares to his son Lydig M. Hoyt. He then gave, devised and bequeathed “ one other share or fifth part of my said residuary real and personal estate to my executors, in trust, to receive the rents, issues and profits thereof, and to apply the same to the separate use of my daughter Sabina, wife of William Eedmond during her life, free from the control, debts and engagements of her present or any future husband; ” and gave the same in fee after the death of such daughter to such one or more of her children and descendants, and on such shares or portions as she by her last will and testament or instrument in the nature thereof (which she, whether married or unmarried, was thereby authorized to make) shall devise, direct or appoint, and for want of such directions and appointments, and so far as the same shall not extend, he gave the same in fee, after the death of such daughter to her child or children then living, and to the child or children then living of every child of hers who shall then be dead, as tenants in common, the child or children of a deceased child of such daughter to take the same shares which his, her or their parent, if living, would be entitled to, and if such daughter should have no child or descendants her surviving then he gave said share in fee, after her death, to her heirs-at-law.
    He then made a devise and bequest similar to the one last above of the remaining one fifth share for the benefit of his daughter Emily E. Hoyt, her children, descendants, grand-children and heirs-at-law.
    He then gave his trustees directions as to the keeping of the real estate devised in trust in repair, paying taxes, assessments and insurance thereon and rebuilding in case of destruction by fire out of the rents, issues and profits thereof and also as to leasing the same.

      He then authorized the trustees “ to sell and convey in fee the real estate included in the shares held in trust.” And gave directions as to the investment of the proceeds of the sales and also of the personal property included in such shares.
    The will then contained the following item :

      “ Item. It is my advice to my children that after payment of all charges, debts and legacies the income of my estate be divided among all the persons entitled thereto but that the final settlement and partition of the estate to be made on or before the expiration of ten years from my decease.”
    It then contained directions as to charging against his children any advances he may have made to them.
    The will then contained the following items:
    “Item. Whenever my residuary estate shall be divided into five shares as aforesaid each of said shares shall be held in severalty, and as to such of the said shares as are devised and bequeathed in trust as aforesaid, I direct that the accounts respecting them be kept separate.
    “ Item. I authorize my executors to make partition of any real estate which at the time of my death I shall be seized of or entitled to as tenant in common with any other person or persons, and to execute proper deeds. and conveyances to carry such partition into effect, and to pay or receive money for equality of partition.
    “ Item. I authorize my executors at any time before partition thereof shall have been made as before directed, to sell, change or invest any part of my personal estate and also to sell all or any part of the real estate whereof I may die seized, except that which is situate in the city of New York, at public auction or at private sale, for cash or on credit, or partly for cash and partly on credit, and on such terms as they may think expedient, and to execute conveyances in fee to the purchasers, and also to execute conveyances for land contracted to be sold by me, or by my authority, and the money and proceeds arising from said sales shall go and be disposed of in the same manner as the real estate sold would have gone and been disposed of if no such sale had been made.
    “ Item. All the powers, authorities, estates and trusts hereby given to my executors, I do hereby give to such one or more of them as take upon himself or themselves the execution of this my will and to the survivors and last survivor of them.
    “ Item. I appoint my sons Henry S. Hoyt, Goold Hoyt and Lydig Monson Hoyt, and my son-in-law William Redmond, executors of this will.”
    There are" other clauses in the will which in no aspect are material to the questions involved in this action.
    The will is recorded in the office of the surrogate of the county of New York, in liber 85 of wills, page 343.
    Letters testamentary were granted to Goold Hoyt, 2d, August 9th, 1842, and he continued as the sole executor and trustee until his death about 1882.
    In 1860, the testator’s widow died. In 1849, his daughter (Emily E.) married David Sears, Jr. Sabina E. Redmond died in 1870. Lydig Hoyt died in August, 1868, In the year 1876, Henry S. Hoyt and wife instituted an action of partition in the Supreme' Court against Goold Hoyt, individually and as executor and trustee under the said will, and all other persons interested in the real estate of the testator, who were then in esse and such proceedings were had therein that by a decree dated November 28, 1877, the said real estate was adjudged to be sold by Henry J. Scudder, referee.
    Mr. Redmond testified that an made in 1877 (before the partition sale under arrangement was the decree above mentioned), between the different members of the family by which the property was divided between them; that Mr. Henry Hoyt and Mr. Goold Hoyt, who wrere the executors under the will of his grandfather, and himself divided all the real estate as nearly as they could into five parcels (that being the number of shares in which the testator Goold Hoyt directed his estate to be divided into), and allotted to each of the five shares devised by the will of Goold Hoyt one of such parcels; that in making the division they took all the different buildings and divided them into five; that there were fifteen or twenty different pieces of real estate; that each share got at least one or more pieces; that they valued each of those pieces for the purpose of making up the shares; that then they arranged that at the partition sale each parcel should be bid off for the benefit of those interested in the share to which it had been allotted, each, piece of property in each of thfe five allotted shares to be bid off at the valuation they had placed on them; that the piece of property in question like the others was bid off at the valuation, and in itself constituted one share ; that there were no biddings in opposition to them at the exchange; and that the partition sale was purely formal.
    At the partition sale the piece of property now in question was struck off to Goold Hoyt as trustee under the last will and testament of Goold Hoyt, deceased, for Emily E. Sears and children for $100,000. Other pieces of property .were struck off to Henry S. Hoyt for prices aggregating $100,000. Other pieces of property were struck off to Goold Hoyt individually for prices aggregating $100,000. Other pieces of property were struck off to Geraldine S. Hoyt as trustee under the will of Lydig M. Hoyt, he having died leaving a will devising his share in his father’s property in trust. The aggregate sums bidden for these pieces was $100,000. The remaining pieces were struck off to those interested in the share devised in trust for Sabina E. Redmond, she having died without making any devise or appointment of the share. The sums bid aggregated $100,000. Thus the arrangement made before the sale was carried into effect. Thereafter the referee who made the sale under the partition decree conveyed by deed, dated June 10,1878, the premises in question to “Goold Hoyt as trustee ■under the last will and testament of Goold Hoyt, deceased, for Emily E. Sears’ children ” pursuant to the terms of sale.
    In 1882, Goold Hoyt, 2d, having died, Henry S. Hoyt qualified as executor and letters testamentary were issued to him. In 1883, Henry S. Hoyt as sole surviving executor of and trustee under the last will and testament of Goold Hoyt, deceased, for a valuable consideration conveyed to Goold H. Redmond the premises which had been conveyed by said referee to Goold Hoyt, 2d, as trustee under the last will and testament of Goold Hoyt, deceased, for Emily E. Sears and children, and Goold H. Redmond conveyed the same to Mrs. Sears.
    The plaintiffs are the only surviving children of Mrs. Sears who died intestate in March, 1888, leaving no grand-children. She had two other children, both of whom died before her intestate. David Sears, the husband of Mrs. Sears, died in 1873.
    There never was any conveyance of these premises from Goold Hoyt as trustee, etc., to any one, and there never was any appointment of a .new trustee by the supreme court to execute the trust, if any, created by the deed to him as trustee.

      Davies & Rapallo, attorneys, and Edward C. James of counsel, for appellants, after referring to the . provisions of the will set forth in the statement of the case and the other matters therein set forth, argued on the questions contained in the opinion:—

      I. The will, having clothed the acting executor, Goold Hoyt, with a valid power in trust to make partition of the testator’s real estate, such partition could only be made by the due execution of said power, as directed by the testator, and the adverse partition action instituted by Henry S. Hoyt, and the proceedings taken therein were not a due execution of such power, but a nullity. Henderson v. Henderson, 113 N. Y. 1, 13; Cook v. Platt, 98 Ib. 35; Woodward v. James, 115 Ib. 346, 357.
    II. The deed from. Henry J. Scudder, referee, to Goold Hoyt as trustee, etc., for Mrs. Sears, did not convey the title to the premises in question, but was ineffectual for any purpose. Such referee could not create a trust in the lands of the testator, or fix upon any particular parcel of such land, the trust or estates, which the will provided should attach to the one-fifth to be divided and conveyed for Mrs. Sears by the act-, ing executor, under his powers in trust conferred for that purpose.
    III. The deed from Henry S. Hoyt, as sole surviving executor of and trustee under the will of Goold Hoyt, to Goold H. Redmond, dated Sept. 20, 1883, purporting to convey these premises, was ineffectual for any purpose, because, as executor and trustee, he had no power to convey real estate of the testator situate in the city of New York; and, as trustee for Mrs. Sears, he had no title to this particular lot, because it had never been set apart for her, or charged in severalty with the trust for her, as provided in said will; and also because whatever title Goold Hoyt had acquired therein, under said referee’s deed, if any, had vested at his death in the Supreme Court (3 R. S. (7 ed.) p. 2183, § 68); and also because such deed of Henry S. Hoyt was in subversion of such alleged trust.
    IV. The deed from Goold H. Redmond to Emily E. Sears, of the same premises, was also void for the same reasons.
    V. The interest of Emily E. Sears, at the time of her death, in the premises in question, was exactly what it had been immediately after her father’s death, to wit: a naked title to one undivided fifth part as heir-at-law of her father, subject to be divested by the due exercise of the powers in trust to partition and convey conferred by said will upon the executors, and subject to the powers of management and control conferred by said will upon the said executors until such division. Chamberlain v. Taylor, 105 N. Y. 185, 192; Henderson v. Henderson, 113 lb. 1. It was error, therefore, to allow these plaintiffs as the heirs-at-law of Emily E. Sears to maintain this action, either as taking directly from her by descent, through the Eedmond deed, or by purchase as remaindermen under the will of their grandfather. These premises in question have never been lawfully set apart, divided, or conveyed so as to become the separate property of the plaintiffs, or of their mother and her trustee, and plaintiffs are not entitled to the judgment appealed from. The defendants have the right to raise this objection and have it allowed, if well taken. They have already been victimized in one case by paying the executors and then being compelled to pay the heirs-at-law because of the defect of the executors’ title, and they do not mean to be caught a second time in a like fix if they can avoid it. Mitchell v. Met. El. Ry. Co., 31 N. Y. State Reporter, 625.
    VI. At the opening of the trial of this action the defendants demanded a trial by jury on the ground that this was an action for a nuisance. The court denied the motion, and defendants duly excepted. The defendants, also, demanded a jury trial on the issue of past damages, on the ground that they were entitled to it by the Constitution and the Code. The court denied the motion, and the defendants duly excepted. The plaintiffs claim in this complaint that the railroad subjects their property to a continuing nuisance, and their prayer is in effect that the nuisance be abated or. enjoined, and that the defendants pay damages. A private nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements or hereditaments of another. Heeg v. Licht, 80 N. Y. 579, 582. A plaintiff cannot deprive a defendant of his right to trial by jury of an issue of fact in an action for a nuisance, as provided by § 968 of the Code, by putting his action in the form of an equity suit and asking for an injunction. Before the adoption of the present Constitution, the existence of an alleged nuisance and the amount of damages were both inquired of by jury, and the constitutional guaranty of trial by jury applies to such an action as one of the cases in which it has been heretofore used. Hudson v. Caryl, 44 N. Y. 553; Dorr v. Dansville, Gaslight Co., 18 Hun, 274; People v. Met. Tel. Co., 31 Ib. 596, 600. The plaintiff, by bringing his equity action thereby waives his right to trial by jury, but he cannot thereby deprive the defendant of such right. Duncan v. Associates, etc., 71 N. Y. 334, 340. But, if this is to be treated as an action, not for a nuisance, but simply to enjoin continuing trespasses, and to recover past damages, then it was error to refuse the defendants’ claim for a jury trial of the issue of past damages. Jefferson v. N. Y. El. Ry. Co., 33 State Rep. 916. In the case just cited, Justice Daniels says that a motion for a jury trial in one of these elevated railroad equity cases, was properly denied, because “it was addressed to the whole case, and not merely to that part of it which included the damages allowed ” (Ib. 117). Here the motion was addressed solely to the trial of the issue of the past damages. We respectfully submit that this motion should have been granted as a matter of right.

      G. Willett Van Nest, attorney and of counsel, for respondents, on the questions considered in the opinion, argued:
    I. This partition made by the executor would have been effectual by itself, for the fee passes by the terms of the will itself. Corbin v. Jackson, 14 Wend. 619 ; Wood v. Fleet, 36 N. Y. 499; Per Kent, C. J., 4 Johns. 207, 212.
    II. In order to have the sanction of the court a partition suit was brought to which all those interested in the estate were made parties. The judgment in that partition suit absolutely settled the rights of all the persons interested, in the estate by repeated adjudications of the courts. Jordan v. Van Epps, 85 N. Y. 427; Brooks v. Davey, 109 Ib. 495; Howell v. Mills, 56 Ib. 226; Blakely v. Calder, 15 Ib. 617; Brevoort v. Brevoort, 70 Ib. 136 ; Griffin v. Long Island R. R. Co., 102 Ib. 452; Patrick v. Shaffer, 94 Ib. 430; Cromwell v. Hull, 97 Ib. 209; Reed v. Reed, 107 Ib. 545. (A.) These premises remained then in the hands of Goold Hoyt, as executor and trustee, under the will for the benefit of Mrs. Sears. It appears by the partition suit that all the other real estate owned by the testator went to his other heirs as provided by the will. The referee made a deed conveying the interests of all these heirs to Goold Hoyt of the city of New York as trustee under the last will and testament of Goold Hoyt, deceased, for Emily E. Sears and children, and thereby the partition suit served its sole purpose in excluding the other children of the testator from all interest in this property. This sale by the referee gave further recognition to the partition made by the executor as testified to by Mr. Redmond, and established these premises as the part of the trust estate held before by him as tenant in common, and thereafter as of the entire title to this parcel under the provisions of the will. By the very terms of the will this estate is devised to these plaintiffs. These remainders vested in these plaintiffs on the division by the executors. Provost v. Provost, 70 N. Y. 141. The counsel for the defendants contended at the trial that a trustee should be appointed by the Supreme Court to make a conveyance to these plaintiffs. It is quite well settled that on Mrs. Sears’ death the trust estate terminated, for the will provided then for the vesting of the remainder in possession, and the Supreme Court cannot appoint unless a trust estate remains unexecuted. Nicoll v. Walworth, 4 Den. 385 ; Norton v. Norton, 2 Sandf. 296; Jarman on Wills, p. *292, n. 2; Colie v. Jamison, 4 Hun, 286. (B.) Even if an estate is devised to trustees to pay the income to A. for life, and on his death to convey to C. the trust ceases on the death of A. and the estate immediately vests in C. without a conveyance, under the Statute of Uses. Miller v. Wright, 109 N. Y. 194, 199-200; Matter of Livingston, 34 Ib. 556; Bruner v. Meigs, 64 Ib. 516; Manice v. Manice, 43 Ib. 368; Vanderpoel v. Loew, 112 Ib. 180; Stevenson v. Lesley, 70 Ib. 512; Van Brunt v. Van Brunt, 111 Ib. 178. The legal title is of course in the trustees until the death of the life tenant, just as the legal title is in a life tenant where property is devised to him for life and on. his death to others. The legal title is always, however, vested in the remaindermen by the Statute of Uses on the termination of the life estate, whether that estate be confided to the care of trustees or of the life tenant himself. Perry on Trust, § 351; 1 R. S. 725-731, contained in Vol. 4, pp. 2434 -2440 of 8th ed., commencing at § 34 on p. 2434. (C.) To the claim that a trustee should be appointed it is only necessary to add that it is quite well settled that the Supreme Court can only appoint a trustee where it is shown that the trust is unexecuted at the time of the application. In re Waring, 99 N. Y. 114; Laws 1882, Ch. 185 ; Code C. P., § 2818. Mr. Hoyt was not the surviving trustee. His brother H. S. Hoyt succeeded him.
    • III. In the foregoing we have assumed the validity of the contention of the defendants that the deed by Henry S. Hoyt as executor did not pass the title to Mr. Redmond and consequently to his grantee 'Mrs. Sears, the mother of the plaintiffs. We cannot, however, agree with that contention. Henry S. Hoyt being appointed trustee by the testator, became such in legal effect in 1882. Robertson v. McGeoch, 11 Paige, 640 ; Codding v. Newman, 3 T. & C. 364; 63 N. Y. 639; Code C. P. §§ 2639, 2642; Judson v. Gibbons, 5 Wend. 224, 227; Williams v. Conrad, 30 Barb. 526. This is an appointment under the will and it is unnecessary to claim that it was made under § 2818 of the Code. He had done nothing to decline the appointment. His acceptance was all that was necessary to constitute him trustee. Perry on Trusts, § 260; Earle v. Earle, 93 N. Y. 104; Hill on Trustees, 214, 215; Cummins v. Cummins, 3 Jones & Labouche, 64 ; Ward v. Butler, 2 Molloy, 533. Frequently an executor or trustee does not accept at once. On becoming trustee he acquired all the interest in the property which he would have acquired earlier by force of the will, which provides. “ Item. All the powers, authorities, estates and trusts hereby given to my executors, I do hereby give to such one or more of them as take upon himself or themselves the execution of this my will and to the survivors and last survivor of them.” On being appointed executor by the surrogate he became the successor of his brother, Goold Hoyt, who had died, and he acquired the premises in suit, also under the very terms of the referee’s deed, which expressly stated that the conveyance was to the executor, to have and to hold him, “ his successor and assigns.” He was successor and also an assign under the terms of the will, under which this property - was conveyed.

      Apart from this deed he acquired, as we have contended, under the terms of the will itself, an estate in trust in these premises the moment they became divided by himself . and his brother. The will gave authority to sell the real estate held under the trust. He sold to Goold Redmond for a valuable consideration, who conveyed to .Mrs. Sears, the mother of the plaintiffs.
    IV. The case seems so clear that it has only been argued at this length because the counsel for the defendants showed such reliance on his position. If there is any substance in that position, it is still well settled that the plaintiffs, being the real parties in interest, can sue. Hubbell v. Meedbury, 53 N. Y. 98.
   Per Curiam.

It is claimed by the learned counsel for the appellant that the plaintiff did not show title to the land, appurtenant easements to which have been taken, as the complaint charges. The supposed defects in the title, as claimed, arise from the non-compliance with certain of the provisions of the will of one Hoyt, from whom the title comes.

If the land is a part of a share, described in the will, which was to be set off to the trustee for the mother of the present plaintiff for her life, then under the will the plaintiff took the remainder in fee at her death. This setting off was accomplished by the partition suit, to which all persons who could question plaintiff’s title to the land were parties. These parties having received in lieu of undivided interests the whole of the fee of the other parcels of land cannot claim that they have an undivided interest in the land conveyed by the referee to Hoyt as trustee for plaintiff’s mother. The mother having died, the legal estate of the trustee then ceased.

The defendants have not a right to a jury trial in this case as the action is for equitable relief. “ Where a plaintiff brings an action for both legal and equitable relief in respect of the same cause of action, the case presented is not one of right triable by jury under the constitution, Cogswell v. N. Y., N. H. & H. R. R. Co., 105 N. Y. 319.

Judgment affirméd, with costs.


author: By the Court.—Sedgwick, Ch. J. Truax, J. (concurring).

text:
    JOHN MORRISON, Respondent, v. THE PRESS PUBLISHING COMPANY, Appellant.

      Libel—Malice actual, and malice in law.

    In this case the court charged that there was malice in the libel, that contained such matter as this: “A woman pointing her finger at Morrison said, with much feeling, that man could not violate my sister’s honor, had her black-listed in the factory, and she a widow with five children.” Held, that this being false and published without justification, it was malicious. And the malice inferred from such a publication, is malice in fact, or actual malice. The falsity of the libel is sufficient proof of malice to uphold exemplary damages, and plaintift’s right to recover them is within the discretion of the jury.
    In the present case the trial court held that there was no actual malice in the sense of spite or ill-will or revenge. Held, that this ruling was not inconsistent with recklessness, an indifference to the rights of the plaintiff, an intentional disregard of the consequences of the libel. The doing of any unlawful act without just cause, or a wrongful act purposely done, is malicious. As the presumed existence of malice of this kind remained, the defendant was not exempted from liability to exemplary damages.
    The composer of the libelous article was a witness for defendant, and he was allowed to testify that two other articles that appeared in the same newspaper that contained the libel, were composed by him, and these articles were admitted in evidence. Held, that there was no error in this. The articles contained nothing that was likely in itself to bias the jury against the defendant or to distract their attention from the issue, and they did contain reference to the plaintiff which showed that the witness knew him and had every means of ascertaining from him the truth of the matters contained in the libel. A recklessness and indifference to rights were elements of malice, and the court was right in admitting the articles as relevant to the question of malice.
    A witness for plaintiff testified as to his good general reputation, prior to February 19,1888. On his cross-examination he was allowed to testify as to hearing at the time referred to, of stories derogatory to plaintiff, but was not allowed to testify to like stories that he heard subsequent to that time. Held, that it was not a part of a cross-examination, and defendant had no right, as a part of his defence, to prove the matters inquired into.
    The defendant attempted to show in mitigation of damages, that some years prior to the publication of the libel an affidavit charging plaintiff with the circulation of stories attacking the chastity of women was published in another newspaper in the city of New York, and the questions were ruled out and the defendant excepted. Held, that the exception was not well taken. The evidence sought was not the best evidence of the affidavit, nor was this the proper way of proving that plaintiff had circulated such stories even if that fact was material to the issue. The proposed evidence did not tend to rebut the presumption of malice, for it did not appear that defendant knew of this affidavit and its publication at the time it published the libel concerning the plaintiff, nor was it material to or admissible under the issues, to prove that other persons had published and circulated libelous statements concerning the plaintiff. It is not the law of this state, that a defendant can show that the plaintiff’s reputation was so bad that defendant’s libel did not injure it.
    The defendant’s counsel requested the trial judge to charge to jury that in fixing the amount of the damages to be awarded plaintiff, the jury must bear in mind that the defendant did not state that the plaintiff was guilty of the charges alleged, but that he was charged with certain offences, etc. Held, that it was not error for the judge to refuse to charge as requested. The defendant cannot escape responsibility for libeling the plaintiff by showing that the libeling was done on the authority of some other individual.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided April 16, 1891.
    Appeal by defendant from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial.

      Lowrey, Stone & Auerbach, for appellant.

      Joshua M. Fiero, for respondent.
   By the Court.—Sedgwick, Ch. J.

Several of the exceptions taken upon the trial were too general in form to be valid or to admit of review. The others will be examined.

The action was for damages for libel. The court charged that there was malice in the libel, and to this the defendant excepted. The libel contained such matter as this : that “ a woman, pointing her finger at Morrison, said, with much feeling, that man could not violate my sister’s honor, had her black-listed in the factory, and she a widow with five children.” As this was false and published without justification, it was malicious. And the malice, which is inferred from such a publication, is malice in fact, or actual malice.

There was an exception in the following words: “I except to what the court said with regard to the exemplary damages in this case, especially in view of the ■ fact, that the court held that there was no actual malice proven. The court thereupon said— “ as I define actual malice.” The part of the charge that referred to actual malice, as defined by the court, was “But as a definition of what the counsel intend to convey by actual malice, is that the defendant was not actuated by any spiteful or revengeful feelings, that he had at the time no particular feeling of ill-will towards this plaintiff when making the publication. There does not seem to be evidence in the case which would warrant that. The proof of malice in the case, and proof upon which malice rests, is the proof of. the fact of the libelous publication itself. That is, of course, evidence of malice, and as it is admitted to have been made, malice is proven.”

The falsity of the libel is sufficient proof of malice to uphold exemplary damages, and plaintiff’s right to recover them is in the discretion of the jury. Bergmann v. Jones, 94 N. Y. 51. In that case a charge was upheld, that in an action of libel, the plaintiff gives evidence of malice whenever he proves the falseness of the libel, that it is then a question for the jury to say whether it is of such a character as to call for punitive or exemplary damages, and that the question is not taken from them because the defendant gives evidence which tends to show that there was in fact no actual malice.

In Samuels v. Evening Mail Association, 75 N. Y. 604, there was an approval of the law as given in the dissenting opinion in the same case. 9 Hun, 288. That ease avers that upon proof of the falsity of the libel the plaintiff is entitled to exemplary damages in the discretion of the jury. But when the defendant gives evidence tending to prove the absence of actual malice, then the jury should pass upon the question as one of fact whether such malice existed in the publication. Of course the meaning of this is, that if the defendant gives evidence tending to disprove entirely the malice, which is presumed from the fact of the libel to have existed, there should be no exemplary damages. This result does not follow if the evidence tends to disprove only a part of the malice which is presumed. There will' be left that malice which the jury may think calls for exemplary damages.

In the present case, the court held that there was no actual malice in the sense of spite, or ill-will, or revenge. This, however, was not inconsistent with recklessness, an indifference to the rights of the plaintiff, an intentional disregard of the consequences of the libel. Voltz v. Blackmar, 64 N. Y. 444; Millard v. Brown, 35 Ib. 297. The doing of any act without just cause, or a wrongful act purposely done, is malicious.

As the presumed existence of malice of this kind remained, the defendant had not an exemption from liability to exemplary damages. Accordingly, the court, after charging that there could be no damages on account of defendant’s ill-will or spite to plaintiff, was correct in saying, You may give him in addition, as exemplary damages, such an amount as you deem proper and warranted by the evidence. The exception should be overruled.

The composer of the libelous article was a witness for defendant. He was allowed to testify that two other articles, that had appeared in the same newspaper that contained the libel, were composed by him. And these articles were admitted in evidence. There was no error in this. They contained nothing that was likely in itself to bias the jury against the defendant, or to distract their attention from the issue. And they did contain references to the plaintiff which showed that the witness knew him and had easy means of ascertaining from him the truth of the matters contained in the libel. As recklessness and indifference to rights were elements of malice, the court was correct in admitting the articles as relevant to the question of malice.

The testimony of witnesses Levy and Mullane, as to their knowledge of plaintiff’s reputation, were such that it was, at least, a question of fact for the jury whether they knew that reputation, and their testimony as to it was admissible.

A witness of plaintiff testified as to the good general reputation of the plaintiff before the 19th of February, 1888. On cross-examination he was allowed to testify as to his hearing at the time referred to, stories derogatory to the plaintiff. He was not allowed to speak as to stories subsequent to that time. It was not a part of a cross-examination, and the defendant had no right as a part of a defence to prove the matters inquired into.

The judgment and order are affirmed, with .costs.

Truax, J. (concurring).

The defendant attempted to show in mitigation of damages, that some years prior to the publication of the alleged libel by the defendant, an affidavit charging the plaintiff with having circulated stories concerning the chastity of women employed in a certain carpet factory, was published in another newspaper in the city of New York.

In one instance the attempt was made by asking the plaintiff on cross-examination if a certain affidavit (the affidavit above referred to), did not charge him with having circulated stories concerning the chastity of girls in a carpet factory. This question was ruled out and the defendant excepted.

The exception was not well taken. The evidence sought to be elicited was not the best evidence of the contents of the affidavit, nor was this the proper way of proving that plaintiff had circulated such stories, if that fact were material to the issue. ' Nor did this evidence tend to rebut the presumption of malice on the part of the defendant, for there is nothing to show that defendant was aware of the affidavit, at the time it published the libel concerning the plaintiff. Hatfield v. Lasher, 81 N. Y. 246.

Nor was it proper to show that other persons had, before the publication of the libel by the defendant, published and circulated libelous statements concerning the plaintiff. In the first place, the publication alluded to was made some four years prior to that of the defendant, and the fact that such a publication had been made did not tend to show that the damage suffered by plaintiff by the publication of the libel by the defendant was not necessarily attributable to the act of the defendant. And it is not the law in this state that the defendant, in an action for libel, can show that the plaintiff’s reputation was so bad that defendant’s libel did not injure it. Hatfield v. Lasher, supra, and cases there cited; Prescott v. Tousey, 50 Super. Ct. 12.

On the trial the court asked a witnes what plaintiff’s reputation in the community in which he, the plaintiff, resided, was, and the witness answered, that among laboring men with whom he, the witness, associated, plaintiff’s reputation was bad. This answer was stricken out as not responsive, and defendant excepted. The answer was not responsive, and it was not error for the court to strike it out. But even if it was error, the error was cured, for immediately afterwards, in answer to another question, the witness said that plaintiff’s general reputation in the community was bad.

The defendant called witnesses to show that plaintiff’s general' reputation at the time the libel was published by the defendant, was bad. The plantiff, in rebuttal, called witnesses to show that at the time of such publication his general reputation was good. On cross-examination one of these witnesses said that he had heard among laboring people and members of laboring organizations (the plaintiff was prominent in labor organizations), stories derogatory to plaintiff’s character. The witness was then asked what these stories were generally. This question was ruled out, and the defendant excepted. No error was committed.

It may be that defendant would have had the right to show what plaintiff’s reputation was, but it is doubtful if it had the right to show what his character was. It is also to be noticed that the question applied to stories affecting the character of the plaintiff, told, as well after the publication of the alleged libel. as before, while the witness on the direct-examination had limited' his testimony to the plaintiff’s reputation at the time of the publication of the alleged libel. There were two other exceptions to rulings of a like kind, but for the reason last stated they were not well taken.

The trial judge charged that there was malice in the publication, and to this the defendant excepted, but the judge also charged that the evidence would not warrant the jury in finding that there was actual malice toward the plaintiff; that in publishing this article, which was libelous, the law infers malice,— that is, malice in law, existed. He then defined actual malice as distinct from malice in law, to be such malice as attached to an act when committed by a revengeful or spiteful disposition. This was, in effect, charging that while there was no actual malice shown, still the jury could infer malice from the mere fact of the publication of such a libel. It was not error so to charge. In this case malice was proved when the publication was proved. Fry v. Bennett, 5 Sand. 54.

This court declared in the case above cited, that when a publication was libelous upon its face the law implied that it was published with a malicious intent, and that malice in such cases is a conclusion of law which the plaintiff is not required to prove and which the defendant is not allowed to deny. Under the authority of this case it would have been error for the trial judge to submit the question of the defendant’s malice to the jury, and the fact that the trial judge charged that there was no proof of actual malice is immaterial. What the trial judge meant was, that there was no proof of malice outside of the malice that the law inferred from the mere fact of the publication of the libel, and for this malice in law the jury might, under the Samuels case, award exemplary damages.

The defendant gave no evidence that tended to show that there was in fact no actual malice; but even if it had given such evidence the trial judge did not err in charging not that the jury must, but that it might give exemplary damages.

The case was one within the rule laid down by Judge Davis in Samuels v. The Evening Mail Association, 9 Hun, 288, entitling the plaintiff to exemplary damages. The publication was grossly libelous, was negligently and recklessly made, and made without any regard to. the rights of the plaintiff.

The last alleged error to which our attention has been called by counsel for defendant, relates to a request of the defendant to charge that in fixing the amount of damages to be awarded the plaintiff, the jury must bear in mind that the defendant did not publish any statement that the plaintiff was guilty of the charges which were said to have been made against him, but merely that he was charged with certain of-fences, and they can award only such damages as would result from the publication that Morrison had been charged with the offences, and not with such damages as might flow from the publication of a statement that Morrison was guilty of the charges. It was not error for the judge to refuse to charge as requested. The defendant cannot escape responsibility for libeling plaintiff by showing that the libeling was done on the authority of some other individual. Dole v. Lyon, 10 Johns, 447.

The judgment and order appealed from are affirmed, with costs.


author: By the Court.—Freedman, J. Sedgwick, Ch. J. Ingraham, J. (dissenting).

text:
    VINCENT A. WITCHER, Respondent v. THE TRIBUNE ASSOCIATION, Appellant.

      Order for examination of plaintiff before trial relative to matters pertinent to the issues under the Oode—Jurisdiction of the court to make such an order.

    It appeared from the papers read on this motion, that the plaintiff is not a resident of this state but resides in the state of Virginia; that he has not been within this state since the commencement of this action and does not intend to come here before trial. Held, that the court possesses no inherent power to order the examination of a party before trial at the instance of an adverse party. The jurisdiction is purely statutory and depends solely upon the provisions of the Code. Therefore, whenever it appears that the party sought to be examined is a non-resident of the state, the court may require proof of the ability of the applicant to make service of the order within the state, and in the absence of such proof the court may decline to make what appears to be a useless order. In the present case no such proof was adduced, and, moreover, it affirmatively appeared that service of the order cannot be made within the state. Irrespective, therefore, of the question of the good or bad faith of the application, this order was properly refused. There is no power in the court to require the plaintiff, who is a resident of another state, to come to New York from such state for the sole purpose of being examined.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided April 16, 1891.
    Appeal from order of the special term denying defendant’s motion for an order that the plaintiff appear and submit to an examination as a party before trial, and that in the event of the plaintiff’s failure to appear ■for examination as directed, the trial of this action be stayed.

      Sackett & Bennett, attorneys, and Henry W. Sackett of counsel, for appellant.

      Maltby, Bayne & Marshall, attorneys and Howard B. Bayne of counsel, for respondent. •
   By the Court.—Freedman, J.

The application of the defendant for an order directing the plaintiff to appear and submit to an examination before trial as a witness on behalf of the defendant, was made on notice to plaintiff’s attorneys, and on the hearing affidavits were read on both sides. The court was, therefore, in the position in which it would have been, if an order for the examination had been previously granted expiarte and the plaintiff had moved, on affidavits and on notice to the defendant, for the vacation of the order.

In such a case it has been, ever since the decision of Levy v. Loeb, 44 N. Y. Super. Ct. 291; affirmed 75 N. Y. 609, the practice of this court to require that the papers in support of the application shall fully establish, by facts and circumstances, the necessity and materiality of the examination sought and the good faith of the application, and then to exercise a sound discretion as to whether upon all the facts disclosed the examination shall or shall not be had. This practice is also sanctioned by the decision of the court of appeals in Jenkins u. Putnam, 106 N. Y. 272. Of still greater importance is the question of jurisdiction whenever the power of the court is challenged in an important particular.

In the case at bar it was shown in the moving affidavit as well as by the affidavit read in opposition, that the plaintiff is not a resident of this state, but resides in or near Riceville in the state of Virginia. It was also shown by the opposing affidavit that the plaintiff has not been within this state since the commencement of the action and that he does not intend to come here before trial, if then.

Section 873 of the Code of Civil Procedure expressly provides that service of the order for the examination of a party must be made within this state, and section 886 prescribes that if the person to be examined is a resident of the state, he shall not be required to attend in any county other than that in which he resides, or where he has an office for the regular transaction of business, in person, and that if he is not a resident, he shall not be required to attend in any other county than that wherein he is served with a subpoena, unless, for special reasons stated in the affidavit, the order otherwise directs.

The court possesses no inherent power to order the examination of a party before trial at the instance of an adverse party. The jurisdiction is purely statutory and depends solely upon the provisions of the Code. Whenever, therefore, it is made to appear that the party sought to be examined is a non-resident, the court may require proof of the ability of the applicant to make service of the order within the state, and in the absence of such proof the court may decline to make what appears to be a useless order.

In the present case no such proof was adduced, and, moreover, it affirmatively appeared that service of the order cannot be made within the state. Irrespective, therefore, of the question of the good or the bad faith of the .application, the order was properly refused for the reason stated. If it had been made ex-parte, and the plaintiff had moved for its vacation upon affidavit showing that he is a non-resident and that service cannot be made upon him in this state, the court would have been bound to vacate it under the decision of the general term of this court in Dunham v. The Mercantile Mut. Ins. Co., 44 N. Y. Super. Ct. 387; S. C. 6 Abb. N. C. 70. There is no power in the court to require the plaintiff as a resident of another state to come to New York from such state for the sole purpose of being examined.

The case of Dudley v. The Press Publishing Co., 53 Hun, 347, does not call for a different conclusion. It does not appear that Dudley was shown to be a nonresident. The claim was that he had left the state of New York, and thus prevented service of the order. Moreover, he had not moved to vacate the order for his examination which had been granted ex-parte. It was for these reasons that the order denying the motion of the plaintiff in that case to vacate or limit an order extending the defendant’s time to answer, was affirmed, and from the opinion delivered on that occasion it seems that the court was not called upon and did not consider the effect of sections 873 and 886 of the Code of Civil Procedure.

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

Sedgwick, Ch. J.

I concur. The appellant’s counsel disclaimed any intention to maintain a right to an order of the ordinary kind for an examination before trial of a party.

Ingraham, J. (dissenting).

The examination of a party before trial, at the instance of the opposite party, is regulated by the Code. Section 873 provides for granting such an order. It is there provided that the judge to whom the affidavit required by section 872 of the Code is presented, must grant an order for the examination, and that the order must require the person who is to be examined to appear before the judge for the purpose of taking the examination at a time and place therein specified. There is no provision as to notice of the application, and the usual practice is to apply ex-parte, but there is no reason why a party should not give notice that he intends to apply to a judge of the court at a time and place named in an order requiring the opposite party to appear and be examined, and the fact that notice was given does not deprive the party making the application of his right to the order. If the affidavit on which the application was made complied with section 872 of the Code, the judge to whom the application was made was bound to grant an order requiring the plaintiff to appear before him and submit to an examination at a time and place therein named. I think the affidavit on which the order was applied for was sufficient.

The provisions of section 872 were complied with, and it is clear that the examination of the plaintiff was material and necessary and that the defendant intended to read the deposition upon the trial of the action. The judge to whom the application was made should, therefore, have granted an order for the examination of the plaintiff. The balance of the relief asked for was properly denied. It did not appear but that the plaintiff would appear and submit to an examination if he was ordered to do so by a judge of the court. It is true he was a nonresident, but until an order was duly granted and evidence was presented to the court that he could not be served and had refused to appear, no order of the court should be made, staying the proceedings, until he should so appear.

It is not intended to intimate an opinion as to whether or not the court should grant an order staying proceedings until the plaintiff should appear and submit to an examination already ordered, but until an order has been granted and the plaintiff has failed to appear, there was no foundation for an application to the special term of the court for such an order. There can be no doubt as to the power of the court to stay proceedings in an action in case of the disobedience of its order, whether such a stay would be granted or not in the sound discretion of the court.

I think the order should be reversed so far as it refused to grant an order for the examination of the plaintiff, and affirmed so far as it denied thé defendant’s motion for a stay of proceedings, without costs of this appeal to either party.


author: By the Court.—Ingraham, J.

text:
    JOHN BROOKS LEAVITT, Respondent v. LEWIS S. CHASE, Appellant.

      Contract—Trial before referee—Findings must be sustained by the evidence.

    This action was brought to recover for legal services rendered by plaintiff to defendant, and the substantial questions contested before the referee are questions of fact. The determination of the appeal required an extended examination of the extremely voluminous briefs of the respective counsel, as also the great amount of testimony before the referee. The court concluded that no good purpose would be served by extended reference to the testimony and the points raised thereon, which were fully con- . sidered in the conclusions reached.
    There was a sharp conflict of evidence as to the agreement under which the plaintiff performed the services. Whether it was under the agreement made October 1,1882, or whether that agreement had been abrogated and the services performed without a special contract as to the compensation. The decision of the referee depended upon whether he believed the testimony of the plaintiff, or that of the defendant, corroborated by the testimony of the plaintiff’s brother who had been connected with plaintiff in business and now appears as attorney for defendant.

      Held., (1) That, in such a conflict, the question was one for the referee to decide, and his conclusion in the premises must be sustained by the court. (2) That the other questions of fact, passed upon by the referee in his findings in favor of the plaintiff, were sustained by the evidence, and upon no question did the evidence so greatly preponderate in favor of defendant as to justify the court in a reversal of the judgment on the ground that the conclusions reached by the referee were against the weight of evidence. (8) That the questions having been left to the determination of the referee, and he having found the disputed questions of fact in favor of the respondent, upon evidence which is sufficient to sustain his findings, and no principle of law having been violated that requires a reversal of the judgment, it is affirmed.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided April 16, 1891.
    Appeal from a judgment entered upon the report of a referee.

      Leavitt & Leavitt, attorneys, and Robert G. Ingersol of counsel, for appellant.

      Theall & Beam, attorneys, and Austen G. Fox of counsel, for respondent.
   By the Court.—Ingraham, J.

The action was brought to recover for legal services rendered by plaintiff to defendant. The substantial questions litigated before the referee are questions of fact, and the determination of the appeal has required an extended examination of the extremely voluminous briefs and a large portion of the testimony before the referee.

There was a sharp conflict of evidence as to the agreement under which the plaintiff performed the services. Whether it was under the agreement made October 1, 1882, or whether that agreement had been abrogated, and the services performed without a special contract as to the compensation to be paid, depended upon whether the referee believed the testimony of the plaintiff, or that of the defendant, corroborated by the evidence of the plaintiff’s brother who had been connected with plaintiff in business but who now appears as attorney for the defendant.

It was conceded that a letter had been written by plaintiff to defendant in December, 1883, which would abrogate the agreement of October, 1882. Defendant, however, claims that that letter had been withdrawn and the agreement of October, 1882, reinstated. That question was for the referee.

The other questions were passed on by the referee in favor of plaintiff, and his findings were, I think, sustained by the evidence. It is, however, clear that the evidence did not so greatly preponderate in favor of the defendant as to justify the court in reversing the judgment on the ground that the conclusions arrived at by the referee were against the weight of evidence.

I have arrived at this result after extended examination of the case, but no good purpose would be sub-served by a reference to the testimony which has led me to that conclusion.

The questions of law presented are not important and do not require extended consideration. After the agreement of October, 1882, was made, it cannot be said that the relations that existed between the plaintiff and his brother were such as authorized plaintiff’s brother to bind him by special contracts made for him. The referee has found that the plaintiff and his brother were not partners, and that finding is amply sustained by the evidence. Plaintiff’s brother was not. an attorney, and the contract was made with the plaintiff alone.

Under the circumstances as they appear, even admitting that the referee believed the plaintiff’s brother and the defendant as to agreements that they made between themselves as to the compensation to be paid to plaintiff for services he was to render, I think the referee was justified in finding that those agreements were not binding upon the plaintiff unless communicated to and ratified by him, and such knowledge of the agreements or ratification was expressly and strenuously denied by the plaintiff.

The question having been left to the determination of the referee, and he having found the disputed questions of fact in favor of the respondent upon evidence which is sufficient to sustain the finding, and no principle of law having been violated that requires a reversal of the judgment, I think the j udgment' should be affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.


author: By the Court.—Sedgwick, Ch. J. Freedman, J., Freedman, J.

text:
    GEORGE P. DELISSER, Appellant v. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Respondent.

      Summons—Appeal from order selling aside the same and all proceedings therein.

    The summons in this action was duly served on defendant, but no com- . plaint was served with it. Defendant appeared for the sole purpose of moving, and did move, the court to set aside the service of the summons on the ground that this is an action to recover a penalty or forfeiture given by statute; that a copy of the complaint was not delivered to the defendant with the copy of the summons served, and that there was not ' indorsed upon the said copy of the summons a reference to the statute giving said penalty as required by section 1897 of the Code. The motion was founded upon the copy of the summons served and on an affidavit of one of the attorneys of the defendant, to the effect, that he is informed and believes that this action is to recover a penalty under the provisions of chapter 185 of the Laws of 1857, as amended by chapter 415 of the Laws of 1886.

      Held, that the only legal evidence of the contents and claims of a complaint is the complaint itself, and it is the only evidence of what is the object of the action. No amount of evidence as to the intent of an attorney or party can show the object of an action, for that intent cannot make the object, or if it be properly made, change it. While it is true that the affidavit was without effect inasmuch as it averred the object of the action upon information and belief without giving the source of information, it would have been defective if it had given the source and did not show what the complaint was, or the nature of some proceeding in the action which would legally determine its nature.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 4, 1891.
    Appeal from an order made at special term setting aside the summons in this action and all proceedings therein.

      Henry Wehle, attorney and of counsel, for appellant, on the question, considered, argued :—
    I. The motion is unauthorized by the Code. The summons was regularly served and is regular on its face. There is no provision in the Code nor any rule of practice which authorizes the setting aside of such process.
    II. The motion is unfounded in reason or necessity. The object of the endorsement, provided in § 1897 of the Code, is to apprise the defendant of the fact that the action is brought to recover a penalty under a certain statute. Prussia v. Guenther, 16 Abb. N. C. 230. The endorsement is not designed as an independent benefit for defendant. If he has notice the necessity of the endorsement ceases. Townsend v. Hopkins, 9 Civ. P. R. 257 ; Cox v. N. Y. Central R. R., 61 Barb. 615. The court below held that the affidavit submitted on this motion was sufficient to prove that the action was for a penalty; if that be so, then the condition of affairs as presented by the moving papers is, that of its own volition the defendant comes in court and declares that the object of the endorsement provided in § 1897 of the Code has been accomplished by means other than said endorsement; that the notice designed to be conveyed by the endorsement has been received by it.
    III. The affidavit is insufficient. The general rule of practice is that facts cannot be proven “ on information and belief ” unless reasons are assigned why the best evidence is not produced. The exception to this rule is that where a party seeks to institute proceedings or to obtain an order in aid of the process of the court, affidavits “ on information and belief ” are permitted; but in the case at bar it is sought to invalidate the process which is regular upon its face. The exception, therefore, does not apply. The better rule is not to admit the exception. Manken v. Pape, 65 How. 453.
    IV. The defendant has not proven that the summons is irregular. The affidavit contains no averment that the plaintiff has not another cause of action beside his claim for a penalty, for the prosecution of which the- summons in its present form can be used. The affidavit states “ that defendant’s attorney is informed and believes that this is an action to recover a penalty.” Assuming that plaintiff at the time of issuing the summons did intend to prosecute thereby his claim for a penalty, he would have a perfect right to alter his purpose and to prosecute by means of this summons any other cause of action which he may have. The defendant does not say that plaintiff’s claim for a penalty is the only cause of action which he has against defendant. Where an attempt is made to set aside a process of the court on the ground that facts not appearing on the face thereof make it irregular, it should be proven that no other circumstances exist which would make the summons regular. Defendant has to establish not only the fact that by reason of the penalty claim the summons was rendered irregular, it has also to negative the existence of any fact which would authorize the use of the summons in its present form ; and that defendant has not done in the affidavit. First Baptist Church v. N. & S. R. R., 6 Barb. 313.
    V. The defendant has mistaken its remedy. The practical effect of § 1897 of the Code is to prevent entry of judgment on default for a penalty, unless the summons contains the endorsement or the complaint is served with it. If a judgment had been entered on the summons in its present form, the judgment would have been irregular and defendant could have moved against it. To recover a penalty, the summons in its present condition is entirely unavailing. When plaintiff attempts to use it for this purpose, then and not before the defendant can invoke the court to prevent such a use. The right of the defendant to object to the summons is limited to its use to enforce a penalty; the order made by the court strikes out the summons entirely. The plaintiff may have any number of causes of action other than for penalties.

      Page & Taft, attorneys and of counsel, for respondent, on the questions considered, argued :—
    I. An action under the Act of 1857, as amended by the Act of 1886, is an action to recover a penalty or forfeiture given by a statute within the meaning of section 1897 of the Code. That section provides, as follows : “ In an action to recover a penalty or forfeiture, given by a statute, if a copy of the complaint is not delivered to the defendant with a copy of the summons, a general reference - to the statute must be endorsed upon the copy of the summons so delivered, in the following form : ‘ According to the provisions of,’ etc., adding such a description of the statute as will identify it with convenient certainty, and also specifying the section, if penalties or forfeitures are given, in different sections thereof, for different acts or omissions.” In the case of Cox v. The New York Central Railroad Company, 61 Barb. 615, the question was before the court in an action similar to this one, upon, a motion to set aside the summons because it was not endorsed. Although on appeal the order of the special term setting aside the summons was reversed on the ground that the complaint was served with the summons, yet it was assumed by the general term that an action to recover such a penalty was an action in which an endorsement upon the summons was requisite, and reference is made to the case of Bissell v. The New York Central Railroad Company, a similar action, which was subsequently reported in 67 Barb., at page 385, and the court said: “ That case was properly decided, as there was no compliance whatever with the requirements of the statute when the action was commenced. No notice whatever was given to the defendant touching the nature and character of the action at the commencement thereof in that case.” In the Bissell case the motion was to set aside a judgment which had been entered in a suit which was commenced by the service of a summons only, without any endorsement. A motion had been made to set aside the -service of the summons on the ground that there was no endorsement upon it, and this motion was denied at special term, but, on appeal, the order of the special term was reversed, and an order entered setting aside the summons. The court at special term, upon the motion to set aside the judgment, said, at page 388, that it conclusively appeared that the general term in the Cox case “ held that the provisions of law requiring the endorsement of a summons by a reference to the statute giving the penalty in this class of actions must be complied with.” The decision of the special term in this case was affirmed at general term. See page 393. In Young v. Greg, 9 Civil Procedure Reports, 262, the court, in a case to recover a penalty, held that the omission to endorse the summons was irregular, and said, “ I am clearly of the opinion that the summons in this case is defective in not specifying the section in its reference to the statute of 1857, and because of this omission the justice got no jurisdiction of the person of the defendant.” See also on this general subject the following cases : People v. Bull, 10 Jones & Spencer, 19 ; Abbott v. The N. Y. Central, etc., R. R. Co., 1 Sheldon, 278; Avery & Lathrop v. Slack, 17 Wend. 85; Thayer, et al., etc., v. Lewis, 4 Den. 269 ; Andrews & Harkness v. Harrington, 19 Barb. 343; Marselis v. Seaman, 21 Ib. 319; Perry & Finehout v. Tynen, 22 Ib. 137 ; The Board of Commissioners of Saratoga County v. James Doherty, 16 How. Pr. 46; Cox v. N. Y. Central & Hudson River R. R. Co., 61 Barb. 615; Sprague v. Irwin, 27 How. Pr. 51; Sawyer & Briggs v. Schoonmaker, 8 Ib. 198; Prussia v. Guenther, 16 Abb. N. C. 234; Reed v. Loucks, 61
      How. 436 ; Schoonmaker v. Brooks, 24 Hun, 553; Mayor v. Eisler, 2 C. P. Reps. 125; People v. Walters, 15 Abb. N. C. 461.
    II. The motion made was the proper way to raise the question. A similar motion was made in the Bissell case, and though it was denied by the special term, the order of the special term was reversed and the summons set aside by the general term.
    III. The allegation in the affidavit of Henry W. Taft, upon information and belief that the suit was for a penalty, was sufficient. In the nature of the case no one would have positive knowledge as to that fact except the plaintiff himself and his attorney. The defendant had no way to ascertain it except by serving a notice of appearance and demanding a copy of the complaint. This would be a general appearance and waiver of the objection raised upon the motion. The plaintiff could have made his own affidavit denying the allegation of Mr. Taft if it were not true. His omission to make such a denial should be considered as a practical admission of the facts alleged. Pratt v. Stevens, 94 N. Y. 387.
   By the Court.—Sedgwick, Ch. J.

I concur with Judge Freedman in the principle upon which he has proceeded in his opinion, but think there should be an absolute reversal. My ground for this view is, that the only legal evidence of the contents and claims of a complaint is the complaint itself, and it is the only, evidence of what is the object of the action. No amount of evidence as to the intent of an attorney or party can show the object of an action, for that intent cannot make the object, o.r if it be properly made, change it. The same remark is true in view of the provision that a judgment be taken by default when complaint is not served with the summons. The object of the action is then first ascertained by the proceedings upon application to the court.

While it is true that the affidavit was without effect inasmuch as it averred the object of the action upon information and belief without giving the source of information, I think it would have been defective if it did give the source and did not show what the complaint was, or the nature of some proceeding which would legally determine the nature of the action.

The authorities show that it is not too late for a defendant so situated to move as soon as the proceedings of the action show the object of the suit.

The order appealed from should be reversed with ten dollars costs, and the motion below denied with ten dollars costs.

McAdam, J., concurred.

Freedman, J.,

concurred, but held that the order of denial should contain leave to the defendant, upon payment of costs, to renew the motion upon further proof, in the following opinion :—

Freedman, J.

The summons having been served on the defendant, and no copy of the complaint having been served with it, the defendant appeared for the sole purpose of moving, and did move, to set aside the service of the summons on the ground that this is an action to recover a penalty or forfeiture given by a statute ; that a copy of the complaint was not delivered to the defendant with the copy of the summons served, and that there was not endorsed upon the said copy of the summons a reference to the statute giving said penalty as required by § 1897 of the Code.

The motion was founded on the copy of the summons served and on an affidavit of one of the attorneys of the defendant to the effect that he is informed and believes that this action is to recover a penalty under the provisions of chapter 185 of the Laws of 1857, as amended by chapter 415 of the Laws of 1886.

The defendant pursued the proper practice, and if the affidavit had sufficiently stated the sources of the information of the attorney and the grounds of his belief, the defendant would have been entitled to have the service of the summons set aside as prayed for. But the sources of such information and the grounds of such belief were not. disclosed. The affidavit contained nothing beyond the bare statement that the affiant was so informed and so believed. It, therefore, contained no competent evidence upon which the process of the court, which was regular upon its face, could be set aside, and the plaintiff was not. called upon to deny under oath something which had not been sufficiently shown.

Moreover, the order as made is too broad. It sets aside the summons in this action' and all proceedings therein.” It is only the service of the summons that can be set aside upon the presentation of the proper proof.

The order appealed from should be reversed with ten dollars costs and disbursements, and the motion in the court below denied with ten dollars costs, with leave to the defendant, upon payment of such costs, to renew the motion upon further proof.