text:
    Smith v. Brown.

      At Chambers,

    Jan. 3, 1853.
    An inquest cannot be regularly taken on the first day of a trial term, unless the action is regularly called upon the calendar.
    The rules of the Supreme Court, relative to proceedings at circuits, apply to the trial terms of the Superior Court.
    The defendant moved to set aside the plaintiff’s judgment as irregular, upon the ground that the inquest upon which it was founded had been taken out vf the order of the cause upon the calendar, on the first day of the trial term, on which day a proper affidavit of merits had been subsequently filed.
    The question was, whether the case was governed by the rule of the Supreme Court, which allows inquests to be taken at a circuit in actions out of their order upon the calendar, only upon some day, after the first day of the circuit (rule 12). And-the judges, consulted by Duer, J., were of opinion that the rule ought to be construed as embracing the case, and that in all cases susceptible of such an application, the rules of the Supreme Court, relative to proceedings at circuits, should be construed to apply equally to the trial terms of this court. .

      W. W. Niles, for defendant.

      E. E. Treadwell, for plaintiff.'
   The inquest and judgment were accordingly set aside.


source: Caselaw Access Project

license: Public Domain

text:
    Richardson v. Craig.

      At Chambers,
    Jan. 3, 1853.
    The undertaking to warrant an order of arrest must in all cases "be executed "by the plaintiff, except where the plaintiff is a feme covert, or an infant.
    Duer J., refused to grant an order for the arrest of the defendant, upon the ground that the undertaking on the part of the plaintiff was executed only by a surety, and not by the plaintiff. He held that although, in the discretion of the judge, sureties may he dispensed with, yet the undertaking must in all cases be signed by the plaintiff, and that the terms of § 182 of the Code admitted no other interpretation; and although the plaintiff was proved to be a non-resident, he could not for that reason allow an exception. When the plaintiff is a married woman, or an infant, he inclined to the opinion that the next friend, or guardian, might be reasonably considered a plaintiff, within the meaning of the Code, and an undertaking signed by him, upon that ground, be held sufficient. It was only by this construction that these exceptions could be reconciled with the language of the Code, which he thought was too plain and imperative to allow of any other.

      F. W. Platt, for plaintiff.
   Oakley, Ch. J:, and Campbell and Boswokth, J. J., concurred.


text:
    Cary v. Williams.

      At Chambers,
    Jan. 3, 1853.
    A partner cannot arrest a co-partner upon the allegation of a fraudulent removal of partnership property.
    The plaintiff and defendant were partners, and it appeared by the complaint that the action was brought to recover damages for the fraudulent removal by the defendant of a stock of goods belonging to the firm. An order of arrest was applied for upon affidavits setting forth the fraud.
    Duer, J., refused to grant the order, holding that the action was not maintainable, and that the plaintiff had no proper remedy but in a suit for an injunction and a receiver.
   Approved by the same judges.


text:
    Halsey and another v. Carter.

      At Special Term,
    Jan. 3, 1853.
    A defendant is not bound, in his answer, to set up a demand, which from its nature is a proper subject of a counter claim.
    He may elect to enforce its recovery in a separate suit.
    A defendant has at all times had such an election, in relation to a set-off, or a recoupment of damages, and his rights, in this respect, have not been varied or affected by the Code, §§ 149, 150.
    These points arose, and were so decided by Duer, J., in the aboye case, and upon consultation his decision was approved by all the judges.

      Quere, whether when a counter-claim is set up in the answer, the plaintiff should be permitted to discontinue merely upon the payment of costs ?
   This question was also partially discussed in the same case, but as it was unnecessary to be determined, no- opinion was expressed in relation to it.


text:
    Gilbert and others v. Bulkley and Chaflin.

      At Special Term,
    February, 1853.
    The Court may in the exercise of its discretion exonerate hail after the lapse of more than 20 days from the commencement of the suit against them.
    This was a motion for the exoneration of the defendants, as bail, upon their surrender of the defendant in the original suit, and the payment of the costs of the action. It was resisted upon the ground that more than 20 days had elapsed since the commencement of the suit, and that as no further time had been granted, before the expiration of the 20 days, for making the surrender, the bail were fixed beyond the power of the court to discharge them.
    The judges, however, consulted by Oaklet, Ch. J., were all of opinion, that whatever construction they might have been forced to give to § 191 of the Code, had it stood alone, they certainly possessed the discretion, that was denied them, under the general words of § 174, which authorize the court in its discretion, and upon such terms as may be just, not only to allow an answer or reply to be made, but any other act to be done, after the limited time. The surrender of their principal by the bail, was, in their judgment, an act, -vyhich these general words should be construed to embrace.
   There appearing upon the papers sufficient reasons for thus exercising his discretion, the Chief Justice granted the motion.


text:
    Bates v. Jaines.
    February, 1853
    A notice of a motion cannot be so countermanded by the party who has given it, as to deprive the opposite party of the right of attending on the day specified and having the motion dismissed with costs.

      Mott and Cary, attorneys for plaintiff.

      Genet, attorney for defendant.
   This was so decided by Dube, J, at Chambers, and the decision was approved by the other judges upon consultation.


author: Duer, J.

text:
    Spies and others v. A. Joel and L. Joel.

      At Chambers,

    February, 1853.
    Semble,—That when an assignment made by a debtor, of all his property, for the purpose of satisfying particular debts, contains no provision relative to a possible surplus, the omission is not such evidence of an intent to defraud his creditors as will be deemed sufficient to warrant his arrest.
    If the omission is, upon such an application, evidence at all, it is a presumption only that it raises, and this presumption is conclusively rebutted by showing that the preferred debts exceeded the value of the property.
    This was an application on the part of the defendants to vacate an order of arrest, which had been granted on the allegation that they had disposed of their property, with intent to defraud their creditors (Code, § 178, sub. 5).
    It appeared that before the commencement of the suit they had made an assignment of all their property, directing that the avails should be applied to the payment of all the debts owing by them to certain creditors who were named, but containing no provision relative to the disposition to be made by the assignee of any surplus that might remain after the satisfaction of the debts specified, and this omission was relied on by the counsel for the plaintiffs, as conclusive evidence of a fraudulent intent, making it the duty of the judge to sustain the order of arrest.
    It was, however, conclusively shown by the affidavits on the part of the defendants, that the preferred debts largely exceeded in amount the whole value of the property assigned, and that this was known to the parties when the assignment was made.
   Duer, J.

It may be true,' as the counsel for the plaintiffs has contended, that the court of appeals, by its recent decisions, has settled the law, that the omission in an assignment, giving preferences, of any provision relative to a possible surplus, is evidence of a fraudulent intent, which renders the assignment void under, the statute. But, in my judgment, it is only a constructive fraud which is thus established, for I cannot regard the omission as. evidence j)err se of an actual intent, existing in the mind of the debtor and governing his act; and I am clear in the opinion that it is proof of an actual intent, that in all cases, in which fraud is charged, ought to be required to justify or sustain an order of arrest. The constructive guilt of a debtor, who is innocent in fact, can never be held by me to be a sufficient ground for his imprisonment.

Let it be admitted, however, that such an omission as is now relied on affords some evidence of a fraudulent intent, actually existing ■ in the mind of the debtor, it is undeniable that it is a presumption only that it raises; a presumption which the debtor is competent to meet and repel, and which in the case before me is conclusively repelled. It is proved to my entire satisfaction, that the property assigned will be insufficient to satisfy the debts which are directed to be paid, and that tliis insufficiency was known to the parties when the assignment was executed. It is manifest, that there could have been no intent to defraud the. general creditors by the appropriation of a surplus to the use of the defendants, if not only no such surplus was expected to arise, but it was certainly known that none would exist, and such I am satisfied were the facts. Order vacated, and defendants discharged.

Approved by Oakley, Oh. J., Campbell and Boswobth, J.J.


author: By the Court. Bosworth, J.

text:
    Linden v. Graham.
    Oakley, Ch. J., Campbell and Boswobth, J.J.)
    (General Term,
    Feb. 1853.
    In an action for slander of title, whereby the plaintiff was prevented from .obtaining a loan on the mortgage of the property, or front selling it, it is essential to stating a cause of action, to name the person or persons who refused, for that cause, to loan or purchase. If not named, the oomplaint is demurrable.

      This case came before the court on an appeal from an order made at special term, overruling a demurrer to the 5th cause of action set out in the complaint. The cause of action stated is, the speaking of slanderous .words of and concerning the plaintiff’s title to certain lands, whereby he was prevented from procuring a loan upon a mortgage of the lands.
    This count states, that the plaintiff “ caused application to be made to one Samuel Osgood, being in the business of loaning money for others, and the said Samuel Osgood, but for the grievances hereinafter stated, could and would have procured such money, so applied for, to be loaned to the plaintiff, upon the security of a mortgage upon such lands.” It then sets forth the words spoken, and avers that, by reason thereof, “ the said Osgood, and his various friends and customers, refused to complete and carry out such contemplated loan, to the great damage and injury of the plaintiff.”
    The demurrer assigns for cause,
    1. That this count does not state facts sufficient to constitute a cause of action.
    2. That there is no averment of any special damage therein.
    3. That no person is therein named who promised or intended to make, or would have made, any loan on said properly.
    4. That the not obtaining a loan thereon, is no special damage.

      T. J. Glover, for defendant and appellant.

      H. Brewster, for respondent.
   By the Court. Bosworth, J.

This count does not name any person with whom Osgood was in treaty for a loan, upon the security of a mortgage of plaintiff’s land, and who would have made a loan but for the speaking of the slanderous words.

Words spoken of and concerning the title to property are not actionable per se. Special damage must have resulted, or no action will lie. This must be stated in the complaint. To make such a statement as will constitute a cause of action, the person must be named who was induced not to purchase or make a loan hy reason of the slander.

In Malachy v. Soper et al., 3 Bing. N. C. p. 371, the declaration was defective in the particular assigned for cause of demurrer in this action. After verdict for the plaintiff, the defendant moved in arrest of judgment, on the ground that the declaration did not state any legal cause of action. The court, on full argument, deemed the objection well taken, and arrested the judgment.

Lowe v. Harwood, Cro. Car. 140; Tasborough v. Day, Cro. Jac. 484; Manning v. Avery, 3 Keble, 153; and Cane v. Goulding, Style’s Rep. 169, 170, were cited by the court as authorities fully sustaining their judgment.

We apprehend that, in all actions of slander for words not in themselves actionable, the right to recover depends upon the question whether they caused special damage, and that the special damage must be fully and accurately stated. If the special damage was- a loss of customers, or of a sale of property, the persons who ceased to be customers, or who refused to purchase, must be named; and that, if they are not named, no cause of action is stated. 1 Selden, R. 14, Kendall v. Stone.

In Tobias v. Harland, 4 Wend. 537, which was an action to recover damages for slanderous words spoken of articles manufactured by the plaintiff, whereby divers persons refused to purchase them, the declaration was held bad on general demurrer, because such persons were not named.

It is bad on general demurrer, because proof of the loss of other customers than those named is inadmissible. If none are named, nothing can be proved, and, as a necessary consequence, no legal cause of action is stated. Saunders’ Pie. & Ev. 243 (5); 1 Hall, Sup. Ct. R. 399.

The person or persons who were induced, by the slander, to refuse to purchase, or make a loan, must be called as witnesses. Their declarations are inadmissible as evidence to make out a cause of action. Tilk v. Parsons, 2 Car. & P. 201.

It is obvious that, unless they are named, a defendant will be utterly unable to make any preparation to try the question of special damage.

On both authority and principle, we consider the count demurred to bad in substance, and that the order appealed from must be reversed, and an order entered sustaining the demurrer. In this conclusion the Judge who made the order appealed from concurs. The plaintiff may amend the count on payment of the costs of the demurrer and of this appeal.


text:
    Quin v. Chambers.
    (Before Oakley, C. J., Duer, Paine, Bosworth, Emmet, J.J.)
    General Term,
    March, 1853.
    A demurrer, since the Cede was amended in April, 1852, cannot be interposed to new matter in an answer, unless such new matter constitutes a counter-claim.

    Any new matter set up as a defence, and not constituting a counter-claim, if it do not state facts sufficient to constitute a defence, may be stricken out as irrelevant, or, if the whole answer consist of such matter, judgment may be granted on account of the frivolousness qf the answer.
    This case came before the court on an appeal from an order, declaring a demurrer to part of an answer tó be frivolous, and that the defendant have judgment on account thereof.
    The complaint sought to charge the defendant for the alleged conversion of personal property belonging to the plaintiff.
    The answer, first, denied plaintiff’s ownership, or that the defendant became wrongfully possessed of and converted the property. It next averred that defendant, as and being a constable, took it from the possession of John Connelly, on an execution against him, issued on a judgment recovered against him by William R. Lawrence and others, in the Justices’ Court of the third judicial district, and that the property was in fact Connelly’s. Other new' matter was alleged which it is unnecessary to mention.
    To such of the answer as contained new matter, the plaintiff demurred, assigning for pause that the same does not contain any statement of facts constituting a defence.
    The defendant moved for judgment on the ground that the demurrer was frivolous, and on that motion the order appealed from was made.

      J. D. McGregor, for appellant.

      J. H. Lane, for respondent.
   By the Court. Bosworth, J.

There seems to have been a misapprehension, by both parties, of the existing provisions of the Code in relation to the cases in which a plaintiff may demur. ,

There cannot now be a demurrer to new matter in an answer constituting a defence, unless such new matter sets up a' counter-claim.

The allegation of new matter, not relating to a counter-claim, is not to be replied or demurred to, but is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require.” Code, § 168.

When it contains new matter constituting a counter-claim, the plaintiff may either reply, as to such new matter, by denying the allegations of it, or by a statement of other facts constituting; a defence to it, or he may demur to it for insufficiency. Code, § 153.

The misapprehension has- probably arisen from the fact that while §§ 153 and 168 were amended, § 154 was not modified.

It should have been amended by striking out the word “ defence,” and inserting in its place the word “ counter-claim.” After the amendments, passed on the 16th of April, 1852, took effect, only that part of the answer constituting a counter-claim could be replied to. (§ 153.) ■

A reply to new matter, not relating to a counter-claim, is not now allowed. The Code puts it in issue, and the issue is one of fact, to be tried by a jury. (§ 168.)

Section 154, to be sensible, must now be construed as speaking of new matter to which a plaintiff has a right to reply or demur at his election. , The only new matter to which either a reply or demurrer may be interposed at the election of the plaintiff, is such as constitutes a counter-claim.

• The section must be construed and applied as it would be if the word “ counter-claim,” instead of the word “ defence,” was contained in it.

' The demurrer cannot, properly speaking, be said to be frivolous. It was wholly irregular and unauthorized, as much so as a demurrer to the plea of non assumpsit.

Ho such proceeding is authorized by the Code when an answer sets up a defence, which is not a counter-claim. If an answer contains new matter not relating to a counter-claim, and such new matter does not state facts constituting a defence, the plaintiff must either move for judgment, on account of the frivolousness of the answer (Code, § 247), or to strike out such new matter as irrelevant, if it relates to only one of several causes of action, or constitutes one of several separate defences. (Code, § 160.)

If but a single defence be set up, and that applies to the" sole cause, or to all the parses of action contained in the complaint, and the defence be frivolous, §"243 will enable the plaintiff to obtain a judgment on motion, without the delay of a trial.

"■ If such defence be applicable to one only of several causes of action, or if other defences be also interposed, it can be stricken out as irrelevant, under § 160.

Ho order should have been made on the demurrer. The order appealed from must be reversed. As there has been an entire misapprehension by both parties as to the proper practice, in cases like that before us, and as the irregularity was one which did not, at the time, attract the attention of the court, each party must bear his own costs,


author: By the Court. Duer, J.

text:
    Belmont and others, Respondents, v. Smith, Appellant.
    When a reference has been made of a collateral matter, in«prder to carry a judgment into effect, the report of the referee must be eqnfirmed, upon motion, at special term.
    When exceptions are filed to the report, they must be heard, not as a calendar cause, but as a non-enumerated motion.
    Regularly no exceptions can be filed, not founded upon objections taken before the referee.
    An affidavit of a party setting forth the proceedings before the referee, cannot be received as the ground of a motion for setting aside the report. A special report of the evidence must be obtajned from the referee.

      (Before Doer, Bosworth, and Emmet, J.J.)
    General Term,
    March, 1853.
    A contractor, who under the provisions of his contract with the legal owner, has an equitable title to the house which he is building, is to be deemed the owner, ' under the Mechanics’ Lien Act of 1851.
    The facts sufficiently appear in the opinion of the Court.

      S. Sanxay, for appellant.

      J, Larocque, for respondents.
   By the Court. Duer, J.

This was an appeal from an order of the special term, made by Mr, Justice Emmet, confirming the report of a referee.

The action was brought to compel the specific performance of a contract, by which the respondents agreed to sell to the appellant four lots of land at the northwesterly corner of Avenue A and Twentieth street, in the City of Hew York, and to make him advances to be applied in the erection of buildings thereon, and the appellant agreed, upon the completion of the buildings, to accept a .conveyance, and secure the consideration money and advances by bonds and mortgages; the contract contained a provision, that in case any liens or encumbrances, occasioned by the act or default of the véndee, should exist upon the premises when the deed would otherwise be deliverable, the respondents should not be compelled to make the conveyance, until such liens or encumbrances were removed.

It was alleged in the complaint, that the buildings had been completed in pursuance of the contract; that liens had been created by mechanics and material men,4against the interest of the appellant in the property, under the mechanics’ lien act of July, 1851; and that the appellant, instead of removing such liens and accepting the conveyance, and delivering the bonds and mortgages, in pursuance of his contract, had, upon the completion of the buildings, proceeded to rent the prdperty, remained in possession, and refused to fulfil his contract.

Upon the trial, before Mr.'Justice Campbell, in October, 1852, a judgment was rendered in favor of the respondents, by which the amount due to them was liquidated at upwards of eighteen thousand dollars, and a reference was ordered to ascertain whether any such liens existed upon the property, and the amount of them; and the appellant was required, within fourteen days after confirmation of the report, to procure the discharge of the liens, and to perform his contract, or, in default thereof, the property to be sold, and the amount due to the respondents to be paid out of the proceeds.

The report of the referee having been made, the appellant filed exceptions to it. The Respondents, upon an affidavit that no objections had been taken, or filed, before the referee, moved at the special term to set aside the exceptions and for the confirmation of the report. The appellant, in opposition to the motion, produced, and claimed to read, his own affidavit of the facts, with regard to the liens reported to exist by the referee, but did not procure or produce any report of the evidence upon which the report was made. The judge at special term made an order setting aside the exceptions, and confirming the report; and from that order this appeal was taken.

We think that the respondents’ counsel pursued the right practice in moving at special term for the confirmation of the report, this being a reference of a collateral matter for the purpose of carrying a judgment into effect, and not of the merits of the action. The judgment was final, disposing of all the rights of the parties, and the reference was analogous to that in a litigated mortgage case, where the decree of sale provides for a reference to ascertain the amount due on the mortgage before it is executed; and in such a case the case need not go again upon the calendar, but if exceptions are filed to the report, they are heard as a non-en u merated motion. We think also, that the appellant could not regularly file exceptions to the report, without having interposed objections before the referee, and no provision being made by the law, or the present rules of the court, for such a cause, the practice, under the present nineteenth rule of the Supreme Court, is that of the late Court of Chancery, in respect to proceedings in the master’s office. And manifestly the affidavit of the appellant of the facts upon which he claimed, that the alleged liens should be held not to be encumbrances upon the property, could not be received upon the motion to confirm the report, but the appellant should have procured a special report of the testimony before the referee. The judge at special term was therefore right in setting aside the exceptions, and confirming the report.

But as the appellant might have been relieved at special term upon his affidavit of having mistaken the practice, and possibly might be upon this appeal, it seems proper to consider the ground upon which he claims that the alleged liens are no encumbrances upon his interest in the property. He insists that he is not an owner or contractor within the purview of the' lien law, having entered under a contract to purchase, and never having been invested with the legaVtitle to the property. We are of opinion, however, that his possession under this contract, providing for the erection of buildings, and for his acquisition of the legal title upon their completion, constituted an equitable ownership, upon which the liens of mechamos might properly attach, and that upon the delivery of the conveyance to him by which the equitable would become merged in the legal title, those liens would be paramount to the respondents’ mortgages. The language of the first section of the act is, that the mechanic or material-man, upon complying with its provisions, shall have a lien “ to the extent of the right, title, and interest, at that time existing, of such owner.” And we do not see why this language is not broad enough to embrace an equitable as well as a legal title. We are satisfied that this construction is necessary to give effect to the intention of the Legislature. Houses are now generally built under contracts similar to that which has led to this suit, and in all these cases, unless the contractor is to be deemed the owner, mechanics and material-men would be defrauded of their lien, and the act for their relief become a mockery and a snare.

The order setting aside the exceptions, and confirming the report of the referee, must be affirmed, with costs.

        Ex relatione J. Larocque, Esq.


text:
    John Cook v. T. Stokes Dickerson and Henry Brewster.
    (General Term, before Oaklet, Ch. J., Dues, Campbell, and Bosworth; J.J.)
    April 9th, 1853,
    A judgment is not void, merely because the roll does not contain a copy of the verdict. Nor is it void when two defendants answer separately by different attorneys, and obtain a verdict, and a bill of costs is allowed to each attorney, merely because the judgment is entered in favor of the defendants jointly for the aggregate of such costs. A judgment will not be set aside for irregularity, if the motion is not made within a year after it is rendered. An execution is not void, for the reason that it is issued by an attorney, other than the one by whom the judgment was received; nor will it be set aside for irregularity on that ground alone. The items of costs, as adjusted by the clerk, and the affidavit of disbursements, must be filed, but not incorporated in the roll; they form no part of it.
    Under the Code, an appeal from a judgment, though accompanied with a proper undertaking for the payment of the judgment, and the costs of the appeal, does not per se supersede an execution previously levied on personal property. The language of the Code, as to the effect of such an appeal, is identical with that of the Revised Statutes, relative to the effect of an appeal from a decree of the Court of Chancery. An appeal from the latter, and the giving such security, were decided by that court not to operate as a supersedeas.
    Two separate appeals, from two several orders, were argued together: one was an appeal hy the plaintiff from an order, hearing date March 24,1853, denying a motion made hy him to set aside the judgment and execution being void, and fori irregularity.
    The other was by the sheriff, from an order directing him to proceed and sell the property, which he had levied upon by virtue of the said execution. This order bore date January 29, Í853.
    The action was for an alleged false imprisonment and malicious prosecution. The defendants answered separately hy different attorneys, and on the trial of the cause, on the 11th of April, 1851, the jury rendered a verdict in favor of the defendants. A separate bill of costs, in favor of each defendant, was adjusted by the clerk, on notice to the plaintiff’s attorney.
    On notice to the plaintiff’s attorney, the judge who tried the cause made an order, “ that there he allowed to the defendants in this cause, in addition to the specific costs adjusted in this case, the sum of $125, being the full amount of per centage, on the sum claimed by the plaintiff, allowed by statute.”
    After a motion made at special term by the plaintiff for a new trial had been denied, and the order denying it had been affirmed on appeal to the general term, the defendants perfected judgment; The roll was filed, and judgment docketed, and execution issued thereon to the sheriff of the city and county of Few York, on the 2d of March, 1852, and by him levied on property belonging to the plaintiff.
    Hie judgment was as follows, viz.: “ The verdict of the jury in this cause having been entered, whereby they find in favor of both the defendants, on motion of Henry Brewster, attorney for the defendant Dickerson, and on motion of Isaac Dayton, attorney for the defendant Brewster, it is adjudged that the said defendants do recover against the said plaintiff the sum of three hundred and forty-nine dollars and thirty-seven cents, for their costs and disbursements • by them and each of them expended; this judgment being entered jointly for all the costs of defendants.” The roll, when filed, did not contain the “ verdict,” or in other words, a copy of the minutes of the clerk, at the trial, of the verdict rendered; It was subsequently inserted by the clerk. The execution issued was signed by Brewster alone, as attorney for both defendants. The motion to set aside the judgment and execution, was noticed to be made on the 9th of March, 1853.
    The affidavits, on which the order appealed from by the sheriff was made, showed, that after the execution had been levied, the plaintiff, on or about the first of May, 1852, appealed from the judgment to the Court of Appeals, and gave the requisite undertaking to effect a stay of proceedings, and notified the sheriff of such appeal, and of the undertaking given. On the 28th of September, 1852, the appeal was dismissed. A copy of the rule was served on the sheriff on the 2d of October, 1852, and he was notified to proceed on the execution. Subsequently, he was notified to return the execution. • On the 20th of Movember he returned it. His return was in these words: “ 1 return to the within execution, that under the same I duly made a levy upon the property of the defendant in execution, and before sale thereof I was stayed by appeal duly perfected, from this Court to Court of Appeals, which is still therein pending. In conformity with notice of attorney for plaintiffs in execution, I hereby return the within.” The defendants being informed that the sheriff’s counsel considered the filing of a remitütwr necessary, to the complete termination of the appeal, obtained one to be filed with the clerk of this court, on the 27th of November, 1852. On affidavit of these facts, and on notice of motion to the sheriff, and to the plaintiff, the order of January 29, 1853, was made. A deputy of the sheriff made affidavit, that believing the appeal to the Court of Appeals, and the security given therein, operated as a supersedeas of the execution, he took no further care of the property levied on.

      S. Sanxay, for plaintiff, Cook.

      H. Brewster, for the defendants.

      A. J. Vanderpoel, for the sheriff.
    In support of the motion against the sheriff, Brewster argued as follows:
    In this case the sheriff has returned his execution, stating a levy, and that an appeal stayed proceedings, &c.
    If the proceedings were stayed, the sheriff need not have returned the process; but as he has done so, we claim the benefit of the levy.
    There is now no stay of proceedings. At common law, in a case like this, the writ of Tendiüoni Exponas issued, of course, to complete the execution. (2 Ed. Graham Frac. 406-7; 1 Burrell, 1st Ed. 304; Cowper Rep. 406.)
    This, though supplemental to theji.fa., is sometimes called an execution.
    The Code, § 289, provides for execution, but makes no provision for a case like this.
    We insist that we are entitled to the benefit of the levy, to enforce our priority and lien as of that date, and that the court have abundant power and authority to secure it to us.
    The question is, how this is to be done under our new system?
    1. All process "is the mandate of the court to its officer to carry into effect their judgments, and the process and officer are both under the control of this court.
    2d. The court, according to their practice, have a right to compel the carrying into effect of their judgments and orders in such manner as the statutes, and their rules' and usage authorize.
    The sheriff, however, objects to being required to go on, and insists that the mandate of the execution was superseded by the appeal.
    To this we reply, that the appeal merely stays proceedings, leaving them to go on as soon as the appeal is ended.
    At common law, and by the old statutes, writs of e^ror, with bail, in four days after judgment, did supersede the execution.
    So that, then, if it was issued within the four days, it was at the peril of being set aside, or superseded, within the four days that were allowed to bring error, if bail put in when required. (1 Wendell, 81, and note; Kinne v. Whitford, 17 J. Rep. 34; Blunt v. Greenwood, 1 Cowen, 21; Jackson v. Eden, 7 Cowen, 412; Jackson v. Schauber, Id. 417 and 491; Tidd. Prac. 1070.)
    The Revised Statutes have made two alterations. 1st. As to the time within which writ of error must be brought, in order to stay the collection of the judgment.
    2d. That instead of superseding execution, it did not affect the execution at all of itself, but by section 29, 2 R. S. 596.
    § 30 specifies the effect of the order, which is only to stay the execution, not to supersede it, or set it aside. Delafield v. Sandford, 3 Hill, 473, shows this distinction.
    The marginal note is erroneous, and tends to mislead.
    The case" of Clark v. Clark, 7 Paige, 607, goes entirely on the equitable power of the court to control its process, and direct a supersedeas.
    In Howard v. Pitt, 1 Shower R. 404-5, the court say, granting a supersedeas is a discretionary act, and the court intimated the execution was erroneous, but refused to interfere on motion, and the defendant paid the money. (Allen on Sheriffs, 45, 46, 57, and 81; 1 Burr, Prac. 304; Allen on Sheriffs, 203-4; Tidd Prac. 1060.)
    The sheriff had no right to stay without some mandate .or order. There was none here. (8 Cowen, 192.)
    The judgment is said to be irregular. The sheriff cannot object to irregularity. It is good as to him, unless void. (Parmley v. Hitchcock, 12 Wen. 96; Ontario Bank v. Hallett, 8 Cow. 192; Ames v. Webber, 5 Wen. 547.)
    These informalities by the clerk do not affect the judgment (Renouil v. Harris, 2 Sand. 644-5).
    The judgment .roll is to be made up by the clerk. In the Code, § 264 provides for verdict, &c.; § 278 tells how judgment is to be entered; § 280 for entry in the judgment book; § 281 for the judgment roll; § 283 for execution.
    The court are to be guided by the judgment.
    The costs, as contained in the items, form no part of the roll (Schenectady and Saratoga Plank Road Co. v. Thatcher, 6 How. Prac. Rep. 226).
    This answers, also, the objections of plaintiff.
    It is said, however, that a joint judgment is a prejudice to the plaintiff, as it may be erroneous as to one, and not as to both, and he may be injured as to appealing.
    So far from that being true, the gain is to the plaintiff, and the prejudice, if any, to the defendants, as if it is erroneous as to one, it will be reversed as to both. (Farrell v. Calkins, 10 Barb. S. C. R.; Sheldon v. Quinlen, 5 Hill, 441; Cruikshank v. Gardner, 2 Id. 333, and note, a.)

    The costs are‘adjudged to the party, and if the parties interested choose to enter it jointly, the sheriff certainly cannot complain.
    The plaintiff is also a gainer in the amount of sheriff’s fees, &c.

      Vanderpoel, contra,
    rested his argument upon the following points and authorities: '
    L. The perfecting of the appeal and filing the bond to stay proceedings under sec. 335 of the Code of procedure, released the property from the levy. Code, sec. 335, 337, 339.
    The provisions of the statute, previous to the Code, will be found 2 R. S. p. 596, sec. 27, 29, 30.
    Sec. 12 of the Code prescribes the duty of the court of appeals. Certainly under this section it cannot be pretended that the sheriff must, in case of an affirmance, proceed to sell goods levied upon under the execution issued before the appeal.
    2. The Revised Statutes intended to alter the common law rule, and to relieve both parties from its hardships.
    At common law, no bail was necessary or allowed. The party could sue out a writ of error in four days after judgment, and if he did so, an execution issued within that time was superseded. People v. N. Y. Com. Pleas, 1 Wend. 81.
    Subsequently bail was required and the debtor was allowed four days further time. 3 Bac. Abr. “ Tit.” Error, p. 354; 1 Sailed. 321, 322.
    The English statutes are collected in 1st Harrison’s Dig.Tit. “ Bail in Error.”
    And also, by statute, a special order of the court was made * necessary.
    It will be-observed that the English statutes are very different from our own.
    In England, error can still be brought at any time within 20 years without security, unless a stay is asked; but, to operate as a supersedeas of an execution previously issued, bail must be put in within four clear days after judgment signed, and this because the defendant having so long a time might delay his writ until actually issued.
    The R. S. limited to four days, and rid us of the four day provision, and made other very important and salutary changes.
    3. The practice and effect of this bail has been judicially declared under the Revised Statutes. Delafield v. Sandford, 3 Hill, 473; Wilson v. Williams, 18 W. 581; Sheull v. Campbell, 21 W. 287; Clark v. Clark, 7 Baige, 607.
    We claim this as the effect of the bail and not of the writ, which only removes the record. ,
    In appeals from the Chancellor, no provision for a stay was made after execution issued; there it was usual to move for a supersedeas. 2 R. S. page 686, sec. 82.
    As to practice on writs of error, coram nobis, see 20 Wend.
    The Code has not altered this construction.
    4. By the English practice, the judgment creditor has but one security. Either the bond given to stay execution, or a bond superseding levy if made in four days, or the levy.
    Our statute could not have intended to give a double security—levy and bond.
    The bond with us has a double aspect.—1st. To give a security to the creditor.—2nd. To prevent personal property, the chief value of which depends upon the right to use and to transfei’ it, or which may be perishable, from being tied up.
    The statute was passed to remedy the evils which existed under the previous system. A writ of error being a supersedeas, if sued out in four days the plaintiff sometimes lost his debt by the defendant wasting his goods or becoming insolvent before the judgment was affirmed.
    So on the other hand the defendant was liable to have his goods sold before it was ascertained if the judgment was erroneous, or their value might, greatly depreciate. The plaintiff could only ask an ample security.
    Ror was it right that the property should remain in the sheriff’s custody.
    1. Inconvenience.
    2. The risk and expense to which the officer would be subjected. Moore v. Westervelt, Browning v. Hanford, 5 Denio 586.
    3. Ro answer to say the appeal may be dismissed, and then there is no remedy on the bond. The sheriff must not be subjected to the inconvenience of hasty legislation where his rights were clear before.
    Suppose he levies upon a horse, a flock of sheep, &c. Is he to keep them ? Who is to compensate him ? See page 645 of Q. R. S. as to fees where an execution is stayed or settled before sale, $1,00.
    It is not trae that a fi.fa. is an entire thing, and once commenced must be executed. The defendant is pot discharged to the extent of the goods levied on for it. It is now held that a levy released at the debtor’s request or for his benefit is not a satisfaction. Greene v. Burke, 23 Wend. 490; People v. Hobson, 1 Denio; Ostrander v. Walter, 2 Hill, 329.
   By the Court. Bosworth, J.

The plaintiff insists that the papers attached together and filed, as constituting the judgment roll, were insufficient to make a legal and valid judgment roll, for the reason that it did not contain a copy of the minutes of the trial, or the verdict rendered in the action.

The-judgment itself recited that a verdict had been rendered ' in favor of both defendants. Prior to the making of this motion, a copy of the minutes of the trial had been inserted in the roll,informal in some of its parts, but showing a verdict in favor of the defendants, and that the court, on its being rendered, ordered judgment accordingly.

In Renouil v. Harris, 2 Sand. S. C. R. 641, this court at General Term, decided that a roll, which omitted the answer, was not a nullity, and that it was sufficient to support and give validity to the execution. That it is the' duty of the clerk to enter the judgment and make up the judgment roll, and that if it should be made up defectively, the court, if necessary, would order the defects remedied as of the date of filing the roll. See Clute v. Clute, 4 Denio, 243.

The Revised Statutes, relative to amending pleadings and proceedings, cured such a defect. 2 R. S. 425, sub. 13,14. It is an error, or defect, not affecting the. substantial rights of the plaintiff, and the Code requires the court po disregard such errors, and declares that no judgment shall be reversed' or affected by reason of such error or defect. § 176.

This section is also a conclusive answer to the objection, that the judgment should have awarded to Dickerson separately the costs taxed in his favor, and to Brewster the costs taxed in his favor, instead of awarding to the two jointly the aggregate amount of the costs taxed in favor of each.

This affected no substantial right of the plaintiff. He was adjudged to pay a certain amount of costs, and it did not prejudice any right of his, that has been shown, or suggested, to adjudge that he should pay the whole costs to the two jointly, instead of adjudging that he should pay a parcel of the whole amount to one, and the residue to the other. In addition to this consideration, an order was made on notice to the plaintiff, which directed “ that there be allowed to the defendants in this cause, in addition to the specified costs adjusted in this case, the sum of §125, being the fall amount of per centage allowed by statute on the sum claimed to be recovered by the plaintiff.” ISTo appeal was taken from that order, and the judgment for the amount so allowed must necessarily have been in favor of both defendants jointly. The order seems to contemplate a judgment in favor of the two jointly for their other costs, as the sum of these and of the amount allowed are to be inserted by the clerk in the entry of judgment as an aggregate sum. Code, § 311.

As a general rule, a party who seeks to set aside a proceeding for irregularity, must make his motion, at the first opportunity after the irregularity has taken place, and the attorney must show due diligence in informing-himself of it, Graham’s Pr. 702. In this case judgment was entered on the 2d of March, 1852. The costs were adjusted previously on notice to plaintiff’s attorney. This motion was noticed to be made on the 9th of March, 1853, over a year after the judgment was entered.

The Revised Statutes are peremptory, that no judgment, in any court of record, shall be set aside for irregularity on motion, unless such motion be made within one year after the time such judgment was rendered. 2 R. S. 359.

The day for which this motion was noticed to be made, was more than a year subsequent to that on which the judgment was rendered, and the judgment roll filled. If it be true, as contended, that, in such a case, there must necessarily be several judgments for the costs, then the rendition of a joint judgment, is an error appearing upon the record, and the plaintiff will have the benefit of it, on an appeal from the judgment of this court.

An execution may be issued in the name of an attorney other than the one by whom the judgment was recovered. Graham’s Pr. 356; Code, § 289.

There are many papers embraced in the judgment roll, which should have been omitted. It should not be made to include any papers, or orders except those enumerated in § 281 of the Code. The costs, affidavit of service of the bill, a stipulation, and some orders in no, way involving the merits, or affecting the judgment, should not be contained in it. Besides the fact that by § 281 of the Code they form no part of the roll, if an appeal be taken, the expense of printing unnecessary matter must be incurred, if they are not stricken out, and the papers to be furnished to the appellate court, will be encumbered with extraneous matter.

All papers incorporated into the judgment roll, not required by § 281, to form a part of it, may be detached by the clerk, and any amendments may be made which are necessary to make it conform with precise accuracy to the proceedings that have been had. These may be specified in the order to be entered, and any‘questions respecting them will be disposed of on the settlement of such order.

Heither the judgment roll nor the execution issued thereon is a nullity, nor was there any such irregularity, as in the exercise of a sound discretion, would justify the court in setting either aside.

The order of March 24,1853, appealed from by the plaintiffs, must therefore be affirmed with costs. The only important question arises on the appeal taken by the sheriff from the order of January 29,1853. That question makes it necessary for the court to determine what effect, the taking and perfecting of an appeal, in an action under the Code, and the giving of sdch security as operates as a stay of proceedings, have, upon an execution issued and levied on personal property prior to giving notice of the appeal.

If it merely stays farther proceedings on the execution pending the appeal, the order appealed from is right. If it of itself supersedes the execution, and releases the property from the levy made upon it by virtue of the execution, the order is erroneous.

The plaintiff insists that the former, and the sheriff that the latter is the effect of a perfected appeal and the giving of security for the payment of the debt and costs.

Prior to the Revised Statutes, filing a writ of error and putting in bail within four days superseded an execution issued and levied within the four days. But if the writ was brought and bail put in after the four days had expired, it did not supersede the execution, and courts of law disclaimed the power to make an order superseding it. Blanchard v. Myers, 9 J. R. 66; Kinnie, qui tam, v. Whitford, 17 J. R. 35; Beekman v. Bemus, 7 Cowen, 418; Jackson ex dem. v. Schauber, 7 Cowen, 417; Blunt v. Greenwood, 1 Cowen, 15; Payfor v. Bissell, 3 Hill, 239.

In Jackson v. Schauber,- the proceedings of the plaintiff had been stayed to enable the defendant to bring error, and to prevent the judgment being executed in the mean time. After the lapse of more than four days, and after the execution had been levied, a writ of error was brought and bail put in, and although the court held'that the time might be extended by order beyond the four days, with such effect as would enable the court to give relief, yet it merely stayed all proceedings on the execution, until the further order of the court.

The 2 R. S. 596, §§ 29 and 30, provides that the officer allowing the writ, on proper security being given, may indorse on the writ an order “ staying proceedings on the execution,” if one shall have been issued, and “ that the service of such order shall stay the further execution thereof, at whatever time such order shall have been made or served.”

Ro discrimination is here made between writs of error brought and bail perfected, prior or subsequent to the end of four days from the time of perfecting judgment. The writ, bond and order, and service of the order, may have been designed to be as effective, when interposed after, as before the expiration of the four days. The question is, do they operate as an absolute prohibition against further proceedings on the execution, or merely suspend proceedings upon it, until the writ of error is determined ?

The language is peremptory, that “the further execution thereof,” shall be stayed absolutely and unconditionally, from the time the order is served, no matter when it is served. It shall be executed no further, is the declaration of the statute. Such a construction, would give to the proceedings the same effect in all cases, as was given by prior law to a writ and bail within the four days. A contrary construction would put it out of the power of a party to obtain the relinquishment of a levy in any case, if made prior to the filing of the writ, though filed and bail put in within the four days. Delafield v. Sandford, 3 Hill, 473; Clark v. Clark, 7 Paige, 607.

When the statute declares, “that the service of such order shall stay the further execution thereof” (that is, of thej^./h.) “ at whatever time such order shall have been made or served,” it may well be understood to mean, that the order and service shall be as effectual a supersedeas of the execution after the four days, as filing a writ and perfecting bail within the four days was by the pre-existing law.

The statute was enacted with a knowledge of that distinction. And when it declares that the service of the order shall be as effectual when made after as within the four days, the fair meaning of it would seem to be, that though made after the expiration of four days, it shall supersede the execution and any levy that may have been made under it.

This, however, is not a case affected by the law in relation to a writ of error under the Revised Statutes, but presents the question, as to the.effect of a perfected appeal under the Code. The provisions of the Code, in relation to appeals, are copied from those of the Revised Statutes in relation to appeals from orders and decrees of the Court of Chancery.

The Code (§ 339) like the Revised Statutes (2 R. S. 607, § 86) declares that a perfected appeal, shall “stay all further proceedings in the court below, upon the judgment appealed from, or the matter embraced therein,” except that when the judgment “ directs the sale of perishable property, the court below may order the property to be sold, and the proceeds thereof to be deposited or invested, to abide the judgment of the appellate court.” Code, §342; 2 R. S. 607, §‘89, sub. 1.

In Clark v. Clark, 7 Paige, 607, the Chancellor was of the opinion, that the perfecting of an appeal and the giving of perfect security to pay the judgment appealed from and costs, did not operate to discharge the lien of an execution previously levied, and imposed as terms of an order actually superseding the execution, and directing a restoration of the property levied upon, the payment of the .sheriff’s fees upon the execution, and $12 costs of opposing so much of the motion as asked to have .the execution set aside unconditionally, on the ground that so much' of the motion was improper and could not be granted.

That decision was made with reference to statutory provisions almost identical in terms with those of the Code. If that decision was correct, the order appealed from by the sheriff is not erroneous. According to that decision, the plaintiff was not entitled, as a matter of right, on perfecting his appeal, to have the execution set aside, and his property released from the levy made upon it.

The Chancellor found his authority for setting aside the execution, even upon terms, in the discretion exercisable by that court.

In Burr v. Burr, 10 Paige, 169, the Chancellor affirmed the construction given by him in Clark v. Clark, that an appeal perfected after execution levied does not of itself stay the sheriff from proceeding upon the execution, and terms were imposed as a condition to the making of an order staying proceedings.

Prior to the Revised Statutes, the Court of Chancery, on causé being shown, allowed a respondent, to proceed in the court below, to enforce by execution the decree appealed from, when it was one for the payment of money, unless satisfactory security was then given, to pay the amount of the principal, interests and costs, on the affirmance of the decree. Riggs et al. v. Murray, 3 J. Ch. R. 160; Messionier v. Raumano, id. 66.

The language of the Code, as to the effect of an appeal upon proceedings in the court below corresponding with that relating to appeals from decrees in chancery, and the Court of Chancery having held in Clark v. Clark in 1839, and in Burr v. Burr in 1813, that an appeal with security for the decree and costs did not of itself supersede an execution previously levied, this court cannot adopt a contrary construction, without destroying all confidence in the uniformity of the principles and practice of the courts, regulated ,by statutes identical in their terms, and relating to the same subject matter.

The re-enactment of certain provisions of the Revised Statutes relative to appeals, with a knowledge of the construction given to the latter some ten years previously, without any modification of the clause relating to the effect of an appeal, would seem to be an approval of such construction.

Clark v. Clark and Burr v. Burr, are express authorities in support of the order appealed from by the sheriff, and the order must be affirmed, with $10 costs.


author: Emmet, J.

text:
    Kinkaid and Wife against Kipp and Brown.
    At Chambers,
    April, 1853.
    Where a defendant, in his answer, has stated nothing on information and belief, his affidavit, that his answer is true to Ms knowledge, without adding the words « except as to the matters therein stated upon information and belief, and that as to those matters he believes it to be true,” is a sufficient and proper verification.
    One defendant cannot swear to the want of sufficient information to form a belief on the part of a co-defendant.
   The facts appear in the opinion of the Court.

Emmet, J.

The nature of the complaint does not appear on this motion; hut the defendants answered jointly and severally, that they were at and during the times mentioned in the complaint, owners-of a line of stages or omnibuses, known as Kipp & Brown’s line, and were engaged in the business of carrying passengers for hire in such stages between certain points in the city of Hew York. But as to each and every other allegation of the complaint, they say, “These defendants have no knowledge or information thereof sufficient to form a belief, and therefore they controvert each and every other allegation of the said complaint.”

The verification is as follows : “Solomon-Kipp and Abraham Brown, being severally duly sworn, say, each for himself, that the foregoing answer is true of his own knowledge, except so far as the same alleges a want of sufficient information to form a belief on the pcvri of the other defendant; and that as to such allegation, he believes the same to he true.”

The defect in this verification, as specified in the notice of motion, is, that it is not in the form, or to the effect and purport, prescribed by the statute, and does not state that the answer is true of defendants’ own knowledge, except as to the matters therein stated upon information and belief; and that as to those matters, he believes it to be true.

This objection assumes, that in all cases where a pleading is verified, it is necessary, under the Code, to insert in the verification the exception as to matters stated on information and belief, whether any matters are so stated in the pleading or not. And it may be the common practice to put the verification in that form, indiscriminately in all cases; but I have no hesitation in saying, that in a pleading which alleges or admits nothing on information or belief, it is not only unnecessary, but improper, to put such a senseless exception in the verification. It is improper, because it implies a falsehood, and makes the party swear to such false implication.

The Code (§ 157) does not in terms require that such a verification, as a form, shall be tacked to every pleading, whether it fits it or not; and it would be against common sense and reason to give it such a construction. If a party who, in his answer, has stated nothing on information and belief, thinks it advisable to swear that he believes such statement to be true, he doubtless has a right to do so; but if,'in such a case, he confines himself to swearing that his answer is t/r-ue to his knowledge, he not only complies with the requirements of the Code, but avoids- , what, to say the least of it, is a harmless absurdity.

As the answer in this case does not contain a single statement or admission on information and belief, a verification simply to the effect that the answer was true to the knowledge of the defendants, would therefore have been sufficient. But the verification in this case contains a peculiar exception, in a form and for a purpose altogether different from the exception referred to in § 157 of the Code, and which was inserted in order to guard each defendant from the manifest impropriety of - swearing as to the insufficiency of information to form a belief possessed by the other defendant, as to the matters alleged in the complaint, not answered upon the knowledge of the defendants. The necessity for this exception might have been avoided by using this form of expression in the answer, “These defendants severally say, each for himself, that he has no knowledge or information thereof sufficient to form a belief,” instead of “ These defendants have no knowledge or information thereof sufficient to form a belief;” but as applied to the answer in its existing form, the exception does not impair the verification, and was a proper and conscientious reservation to be made by each defendant.

The motion, therefore, must be denied, but without costs. On questions of this nature arising under the Code, the failing party should incur no such penalty.

Approved upon consultation;


author: Bosworth, J.

text:
    Schneider v. Jacobi.
    (Bosworth, J.)"
    At Chambers,
    April, 1853.
    When a complaint sets up a note and account, and the defendant, after setting up a counter-claim in his answer, serves an offer that the plaintiff may take judgment for a sum named, and the plaintiff recovers a verdict less in amoffnt than the sum offered, with interest from the time of the offer to the date of the verdict, he must pay defendant’s costs from the time of the offer.
    An offer, made in that stage of the cause, its acceptance, and entry of judgment thereon,- extinguish the counter-claim.
    The plaintiff declared on a note made by defendant, for the sum of $78 50 due July 20; 1852, and fot a mahogany chair sold and delivered about thel9th June, 1852, of the value of $18, and claimed judgment for $97 25 with interest from 20th July, ■ 1852. The defendant, in his answer, submitted both the note and the account, and set up a counter-claim on which he claimed to' be allowed $30.
    After serving the answer, and on the 14th September, 1852, the defendant served on the plaintiff an offer that he might take judgment for $68 04. The offer was not accepted.
    The cause was tried on the 9th of March, 1853, and a verdict was rendered for the plaintiff for $69 40.
    The plaintiff insists that he is entitled to recover his whole costs of the action, and the defendant, on the other hand, insists that the plaintiff must pay costs from the time of the offer. The present motion presents that point for decision.

      John Moody, for plaintiff.

      Fancher & Eagan, for defendant.
   Bosworth, J.

The Code provides that “ if the plaintiff fail to obtain a more favorable judgment” (than the one offered), “ he cannot recover costs, but must pay the defendant’s costs from the time of the offer.”

If he had accepted the offer, he might have entered a judgment on the 14th of September, 1852, for $68 04, exclusive of costs. The $68 04, with interest to March 9th, 1853, amounts to $70 32. On that day, he obtained a verdict for $69 40. A judgment for'that sum would be less favorable to the plaintiff by the sum of $0 92, than the one entered upon the offer, according to its terms. He therefore failed to obtain a judgment more favorable than the one offered.

The plaintiff insists, that if he had accepted the offer, such acceptance, and a judgment conforming to the offer, would not have extinguished the counter-claim or set-off, and that he would have been liable to an action in respect of it. That the recovery has extinguished that, and therefore the judgment is more favorable than the offer by the amount of the counterclaim, or set-off so extinguished.

He relies on Ruggles et al. v. Fogg, 7 How. P. R. 324, as an authority in support of the proposition. In that case the offer was served before the answer was put in, and if it had been accepted, would not have extinguished a claim not then interposed in the action.

This case is clearly distinguishable from that. The counterclaim had been interposed before the offer was made, and the offer must' be understood to have been made, with reference to the claims which each had previously set up in the' pleadings against the other, and to be an offer that a judgment for $68 04 might be taken, as being the sum conceded to be due after allowing all just deductions to the defendant. In this case, the defence set up arose out of the transaction, or contract under which the note was given, and I think there can .be no doubt that an offer made, after the answer was put in, that the plaintiff might take judgment for a specified sum, and the acceptance of the offer, and the entry of a judgment according to it, would have extinguished the counter-claim.

The plaintiff is liable to pay the defendant’s costs from the time of the offer.

In deciding this motion, it is assumed that the verdict will be sustained. The propriety of the decisions at the trial was not discussed on this motion, and has no connection with it. If the verdict shall be set aside, the whole judgment will be vacated. If a new trial should be denied, the present order, that the plaintiff pay defendant’s costs subsequent to the offer, will have made the judgment proper in its terms and form.

Approved by the other Judges upon consultation.


text:
    In the matter of John W. Latson, on a Habeas Corpus.
    (Before Emmet, J.)
    April 19, 1853.
    A Surrogate’s Court is a court of record within the meaning of the Eevised Statutes, relative to proceedings as for contempts to enforce civil remedies, áse.
    It has, therefore, the same power as other courts, to punish persons guilty of contempt, and issue attachments for that purpose. But it has no power to enforce by an attachment against the person an order for the payment of money, if the money may be collected under an execution.
    It has, therefore, no power to compel, by such an attachment, the payment of money due from an executor or administrator to the estate.
    Held, therefore, that the prisoner who was held under such an attachment must be discharged.
   Emmet, J.

The return of the sheriff of the city and county of Hew York, to the habeas corpus issued in this case, states that John W. Latson is held and detained by Mm in custody, under and by virtue of an attachment issued out of the Surrogate’s Court of Westchester county.

The attachment, which is part of the return, after reciting certain proceedings before the surrogate of Westchester coimty, in the matter of the estate of Jonathan Purdy, deceased, commands the sheriff to arrest the said Jqhn W. Latson, and bring Mm before the said surrogate, on the 14th April inst., to answer for his misconduct and contempt, in not obeying a certain order or decree, made on the 19th of July last, in the court of the said surrogate, on the final accounting of the said John W. Latson, as administrator, with the will annexed, of the estate of the said Jonathan Purdy, by which he was ordered to pay over certain moneys in his hands, and due from him to the said estate, within ten days from the. date of such order or decree.

. Among the objections made to the return in this case, it was urged (in reference to the sufficiency of this attachment on its face), that surrogates’ courts are not courts of record; and as this attachment is a proceeding as for a contempt to enforce a » civil remedy, and the power of punishing in such cases by fine and imprisonment, is in terms conferred upon courts of .record, by the Revised Statutes (part 3d, chap. 8, Tit. 13, § 1), it may be proper briefly to consider that question.

A Surrogate’s Court, as a court recognised by law, is the creature of the statute. Previous to the revision of 1830, the officers known as surrogates exercised a jurisdiction so undefined, as to create an apprehension that serious questions might arise from it, and to suggest the propriety of constituting surrogates’ courts by law, and of defining and limiting their powers by clear and distinct enactments, They were classified, therefore, as courts of peculiar and special jurisdiction, and their duties were distinctly prescribed by statute (R. S., Part 3d, ch. 2, Tit. 1).

Among the powers thus conferred on them, was that of enforcing all lawful orders and decrees by attachment against the persons of those who should neglect, or refuse to comply with such orders and decrees, which attachment should be in form similar to that used in the Court of Chancery in analogous cases (§ 6, subd. 4).

They were also empowered, in the same manner, to the same extent, and with like effect, as courts of record;

To punish witnesses for disobedience to subpoenas, or refusing to testify (ib., subd. 2);

To exemplify transcripts of them records (subd. 5);

To punish open and direct contempts in court (subd. 6);

And to issue process to, and exact obedience from, all sheriffs, jailors, coroners, or other executive officers (§ 9).

From these provisions it is pretty clear that although surrogates’ courts may not be strictly courts Of record in all their attributes, they can exercise certain powers, only incident to, and characteristic of, such tribunals; one of the highest' of which is the power of punishing.by fine and imprisonment, an authority which Blackstone (3d Comm. 24) asserts, cannot be exercised by any other court than a court of record, adding, that the very creation of a new jurisdiction, with the power of fine or imprisonment, makes it instantly' a court of record.”

I consider the attachment in this case, therefore, in the same light as if it had been issued by a court of record, within the intent of the Eevised Statutes, in relation to proceedings as for contempt to enforce civil remedies, &c. (Tit. 13, ch. 8, part 3d.) Or in other words, that the term “ courts of record,” in § 1 of that Title, embraces any court having the same power as courts of record have, to' enforce its orders and decrees, for the payment of money, by attachment against"the person; and it may fairly be inferred that the Legislature intended to put surrogates’ courts on the same footing, in this respect, with courts . of record, from the fact that the 20th section of the Title, in relation to surrogates’ courts, expressly provides that the 10th, 12th, 13th sections,.and section 16th to the 32d of the Title, in relation to proceedings as for contempt to enforce civil remedies, &c., shall apply to attachments issued by surrogates.'

§ 1 of the Title referred to provides, that every court of record shall have power to punish by fine and imprisonment, or either, all persons (subd. 3), for the non-payment of any sum of money ordered by such court to be paid, in cases where by law execution cannot be awarded for the collection of such sum, &c.

The power of the court to cause the arrest- and commitment of a party, for not paying money ordered by such court to be paid, is here expressly limited to cases Where such money cannot be legally collected by execution.

As the law stood in relation to surrogates’ courts, under the Eevised Statutes, there was no provision for enforcing an order or decree of such a court, for the payment of money by execution. The only mode prescribed for that purpose, was by attachment against the person, under the 4th subd. of the 6th section of Title 1, chap. 2, part 3. The above limitation in § 1 of Tit. 13, ch. 8, part 3d, could, therefore, under the Eevised Statutes, have had no application to the powers of surrogates’ courts in such cases.

But an act was passed concerning the proof of wills, &c., on Hay 16th, 1837 (ch. 460, p. 535), by the 63d, 64th, and 65th sections of which it was provided that after any decree made by a surrogate for the payment of money by "an executor, administrator, or guardian, he should make a certificate, stating the names of the parties against, and in favor of, whom the decree was made, with the amount of debt and costs, directed to be paid by such decree; which certificate should be filed by the clerk of the Supreme Court, and such decree docketed, which thenceforth should be a lien on the lands of the person against whom it was made; also, that execution should issue thereon in the same manner as though the same was a judgment obtained in the Supreme Court, and that if such execution should be issued and returned unsatisfied, the surrogate should, on application, assign the bond given by, such executor, administrator, or guardian, to the person in whose favor such decree was made, for the purpose of being prosecuted.

This was modified by the act regulating liens upon real estate by judgments and decrees, passed April 1, 1844, by which the 64th section of the above act of 1837 was repealed, and as a substitute for it, it was provided that on filing the surrogate’s certificate with the clerk of any county, the same should be entered and docketed as a judgment, and should thenceforth be a lien on all lands, &c., of the party against whom the decree was made in such county, and that execution should be issued thereon in the same manner as if it were a judgment recovered in the Court of Common Pleas of such county.

As the law now stands, therefore, the above limitation does in my judgment apply to the powers of surrogates’ courts, and operates as a prohibition against the issuing of an attachment against the person of any party against whom an order or decree has been made for the payment of money.

. Whether any certificate of the surrogate’s decree in this case has been actually filed, or any judgment docketed, or execution thereon issued, does not appear, nor is it material. It can be done, and therefore execution can be awarded for the collection of the amount ordered to be paid. It is, therefore, directly within the limitation expressly imposed by § 1, Tit. 13, chap. 8, part 3d, upon the power of punishing by attachment for the nonpayment of money.

This case, as presénted by the return, is simply that' of a debt due by an administrator. Whatever the fact may be, it does not appear that he refuses to pay with the ability to do so, or that there are any circumstances of fraud attending his indebtedness, which subject him to a more rigorous application of the law than should be administered to any ordinary debtor who cannot pay.

The debt, it is true, was incurred in the character of administrator, but that trust was committed to him under a bond, with surety, which may be prosecuted for his default, and which affords, therefore, an additional remedy for any party to whom he may be indebted.

The late chancellor decided in the case of Hosack v. Rogers, 11 Paige, 603, that since the passage of the act to abolish imprisonment for debt, a decree against an executor, directing the payment of money, could not be enforced by attachment, and that the remedy was by execution against the property of the executor. And the present surrogate of this county, in the case of Doran v. Dempsey (1 Bradford R. 490), while he asserts the power of surrogates to enforce all lawful orders, processes, and decrees, by attachment, avows that it is entirely in opposition to the spirit and scope of the recent legislation on the subject of civil remedies against debtors, to have recourse to that power to imprison a party for not complying with the requisitions of a decree directing a money payment, unless the-debt has been fraudulently contracted, or the party against whom the decree was made, wilfully retains possession of funds or assets still in his hands, or refuses to pay when he has the means of doing so.

In this case, however, I place my decision distinctly upon the terms of the 1st section of Tit. 13, ch. 8, part 3d, of the Revised Statutes, and upon the limitation contained in the 3d subdivision of that section; and viewing that as a prohibition against the remedy by attachment to enforce the order or decree of a surrogate’s court for the payment of money, for the collection of which an execution can he issued, I am of opinion that no legal cause is shown for the arrest or detention of John W. Latson, and therefore discharge him from the custody or restraint under which he is held, as appears by the return to the habeas corpus.

Düee, J., concurred.


author: By the Court. Oakley, Ch. J.

text:
    Lang v. Ropke.
    (Before Oakley, C. J., Dues, Bosworth, and Emmet, J.J.)
    General Term,
    April, 1853.
    The provision in the R. S. (2 R. S., § 37, p. 309), which made it the duty of the court, in which a judgment had been rendered in an action of ejectment, to vacate the same and grant a new trial upon the application of the party against whom the judgment was rendered, is applicable to actions for the recovery of real property under the Code.
    But it is not applicable, when the judgment has been rendered in a controversy, submitted without action by the agreement of the parties. Code, § 372.
    Not only is such a proceeding not an action, but the provision in the R. S., by its just construction, applies only to a judgment founded on the verdict of a jury-
    So the new trial which the R. S. directs to be granted means a trial by a jury, but there can be no such trial, when the controversy has been submitted, since, by the express words of the Code, the case must then be heard and determined by the court at a general term.
    The court has no power upon a motion, to release either of the parties from the legal effect of their submission, so as to enable them to litigate before a jury, the facts upon which they had agreed.
    When a fraud or mistake is alleged, the court, as a court of equity, may have power to vacate the submission and the judgment, but this relief must be sought in a suit properly instituted for that purpose.
    Application to vacate judgment, &e., denied without costs.
    Ttttk is the case in which judgment was rendered for the defendant in January term, 1852, as reported in 5 Sand. S. C. Rep., p. 363.
    Application was now made to vacate the judgment and for a new trial under the provisions in the title “ Of ejectment,” in the Revised Statutes. The application had been denied at special term, and was now heard upon an appeal.

      W. 0. Noyes, for Sarah Lang, the appellant, insisted that she had a legal right to demand a new trial, ánd the court no discretion to refuse the application. The words of the Revised Statutes are imperative. They declare that the court in which judgment shall he rendered in an action of ejectment, “ at any time within three years thereafter, upon the application of the party against whom the same was rendered, and upon payment of all costs and damages recovered thereby, shall vacate such judgment and grant a new trial” (2 R. S., § 37, p. 309), and the Code “ enacts”, that “ the general provisions of the Revised Statutes, relating to actions concerning real property, shall apply to actions brought under this act, according to the subject matter of the action and without rega/rd to its form.” (Code, § 455.) The section in the R. S. upon which he relied, was a general provision in relation to actions concerning real property. The judgment which the court was required to vacate had been rendered in an action brought under the Code, and the application was made within the period limited by the statute. It was true that the submission of a controversy by the parties, is a novel proceeding, and not in the usual form of an action; but in applying the provisions of the statute, the court was bound by the Code to disregard the form of the action. The Code is imperative as well as the statute.

      T. Hinsdale, contra.
   By the Court. Oakley, Ch. J.

We are all of opinion that it is so far, from being true that we are bound to grant this application, that we have, in reality, no power to grant it. Rot merely is it not our duty, but it is not within our discretion.

We do not doubt that the general provisions in the Revised Statutes to which we are referred are imperative, in all the cases to which they apply; nor that they are applicable to all actions under the Code, for the recovery of real property; but the proceeding in which this judgment has been rendered, is not an action,” and by calling it such, we should contradict the plain words of the Code, which describe it as the submission by the parties, “ without action, of a question in difference, to a court which would have had jurisdiction, if am, action had been brought” (§ 372). It is equally clear that it neither falls within the former technical meaning of an action, nor within the terms of the definition which the Code has given (§ 2).

But could we, without a solecism, give the name of action to this voluntary submission, it is still certain that we could not apply the provisions of the R. S. to the judgment that we are now called upon to vacate. Section 37, in the title of ejectment, which contains the provisions relied on, plainly refers to the section which immediately precedes it, and reading it in this connection, it is manifest that the judgment which the court is directed to vacate, is a judgment upon a verdict, and the nevf trial which it is ordered to grant, a trial before a jury. But the judgment between these parties was not rendered upon a verdict, but.upon a case to which they had agreed, and could we set it aside, we could not direct a trial by a jury, since the language of the Code is positive that the case, so agreed upon, shall be heard and determined by the court at a general term. It would, indeed, be absurd to send the cause to a jury, when the facts having been settled by the parties, questions of law alone would remain to be determined, and these questions which the court, upon full consideration, has already determined.

What we are therefore, asked to dp is not merely to vacate the judgment and order a trial, but to vacate the submission and annul the case to which the parties have agreed, so as to enable the plaintiff to contest before a jury, the facts which she has admitted to exist. It is exceedingly clear, however, that we have no such power, and equally so, that were the submission and case set aside, our jurisdiction would cease. It was the consent of the parties in the form prescribed by the Code, that alone gave us jurisdiction. .Annul that consent and the jurisdiction is gone.

It is not alleged that Sarah Lang agreed to the case and its submission, upon which our judgment was founded, through fraud or mistake. Had the allegation been made, it could not have been listened to upon a motion like the present. In such a case, as a court of equity, we may have power to relieve her, but only in a suit properly instituted and upon a complaint properly framed. The submission of a controversy under the Code, is a contract of a high and solemn nature, and it is only upon the fullest evidence of fraud or mutual error, that a court of equity would ever adjudge it to be void; and then only in a form in which their decision might be reviewed, and if erroneous, reversed.

It is possible, that although more than a year has elapsed, since our judgment was pronounced, we might still, in the exercise of our. discretion, grant a re-hearing, but no such application has been made, nor any reasons for such an exercise of our discretion been suggested; and were the application now made, it is not at all probable that it would be granted. We-see no reason to doubt the propriety of our former decision, and if the judgment then rendered is believed to be erroneous, it is still open to a reversal upon an appeal.

Motion denied.


text:
    Bulkley v. Smith, Brush, and Kettletas.
    April, 1853.
    The provisions of the B. S. relative to the allowance of costs to defendants are repealed.
    In actions for a malicious prosecution against several defendants, the allowance of costs to a defendant, who has answered separately and is acquitted upon the trial, rests wholly in the discretion of the court.
    This was an action for a malicious prosecution, in which the plaintiff had obtained a verdict against the defendants, Smith and Brush; but the jury, under the direction of the Chief Justice, who tried the cause, had acquitted the defendant, Kettletas.
    The plaintiff, in order to exonerate himself from the payment of costs to Kettletas, applied to the Chief Justice for a certificate that there was reasonable cause for making him a defendant. The application was founded upon § 19, ch. 10, Tit. l,»p. 3, of the Revised Statutes.
   The judges, consulted by Oakley, Ch. J., wer.e all of opinion that the provisions in the R. S. relative to the allowance of costs to defendants, were, no longer in force ; and that as the defendants were plainly not united in interest, and Kettletas had made a separate defence, the allowance of costs to him was governed by § 306 of the Code, and therefore rested entirely in the discretion of the court. Ho judgment for costs could be rendered in his favor, unless upon his application, and when this application should be made, the question whether he was properly made a defendant might be considered. The plaintiff’s application was therefore denied. Vide Moore v. Westervelt, 3 Sand. S. C. R., p. 762.


text:
    John E. Florence, by his guardian, v. E. Bulkley, Administrator, &c.
    (At Chambers,
    before Bosworth, J.
    May, 1853.)
    It is not imperative on the court to make an order compelling a non-resident plaintiff to file security for costs.
    When the application is not made until the cause has been referred and noticed for hearing, it will be denied, as unreasonably delayed.
    For the same reason, an application on the part of the plaintiff, which otherwise would have been granted, to be allowed to prosecute in fonaid pauperis, will be denied.
    The defendant moved for an order requiring the plaintiff to file security for costs. The plaintiff moved for an order allowing him to prosecute the action in forma pcmperis.

    The action was commenced in May, 1852. On the 8th of October, 1852, it was referred, on defendant’s motion, to a referee to hear and determine. On the 16th of Hovember, 1852, the plaintiff noticed it for trial for the first of December. On the 18th of Hovember, defendant obtained an order requiring the plaintiff to show cause why he should not file security for costs, and the.plaintiff made an application such as he now makes. While the motions were pending, the original defendant, John Florence, died. Defendant Bulkley was subsequently appointed his administrator, and on the 19th of March, 1853, an order was made concerning the action against the administrator. Both motions were now renewed.

      A. Mathews, for defendant.

      John Anthon, for plaintiff.
   Bosworth, J.

If either motion is granted, the other must necessarily be denied. The plaintiff cannot be required to file security for costs if permitted to prosecute m fornA pauperis ; nor be permitted so to prosecute if required to file such security.

The papers on which each motion is based contain enough, primd facie, to entitle the applicant to - the- order sought. Still I think both should be denied. The defendant was dilatory in moving for security for costs. The action was commenced early in May, 1852, and the first order was obtained on the 18th of ¡November following. The infancy of the plaintiff was known when the action was commenced. Before moving for security, the action had been referred, on the defendant’s motion, and the plaintiff had noticed it for hearing.

It is not imperative on the court to grant the order under all circumstances. (Robison v. Sinclair, 1 Denio, 629.)

It is not necessary for the protection of the defendant. The attorney for the infant is liable for costs to the amount of $100, and no question is made as to the responsibility of the guardian, who is undoubtedly liable, whether the attorney is or not (2 R. S. 621, §§ 7 and 8. Code, 316.)

Unless there are proper grounds for denying the plaintiff’s motion, that of the defendant must necessarily be denied.

I do not understand that the statute imperatively requires permission to be granted to an infant plaintiff, in all cases, to prosecute informdpcmperis, merely because his property does not exceed in value the sum of $20, exclusive of the subject matter in controversy, though it appears he has a good cause of action. Graham, Pr. 915, 916.

The action has been pending over a year. The attorney voluntarily assumed such liability as to costs, as arises from his becoming the plaintiff’s attorney. The guardian, in order to be appointed, was required to satisfy the court that he was able to respond to the defendant for his costs of the potion, and he voluntarily assumed that position with its liabilities. ¡Nothing is pretended to have occurred to justify the court in absolving him from .such liability. The pecuniary condition of the infant, for aught that is shown, is the same as when the action was commenced. The infant, and not the guardian, applies for permission to the plaintiff to prosecute as a poor person. There has been precisely the same delay in making this motion, as that made by the defendant.

I think justice to both parties requires the denial of both. motions, and that there is nothing so peremptory in the statute as to prevent this result.

Both motions are denied without costs of either to either party.'

Approved on consultation.


text:
    The Union Mutual Insurance Co. v. Osgood and Alden.
    At Special Term,
    May, 1853.
    When plaintiffs sue in a name which is appropriate to a corporate body, it is not necessary to aver in the complaint that they are a corporation.
    A demurrer to the complaint on the ground that it contains no such averment will be adjudged frivolous.
    When "the want of a legal capacity to sue does not appear on the face of the complaint, the objection must be taken in an answer; it cannot be raised by a demurrer. , >
    The plaintiffs moved for judgment on a demurrer to their complaint, on account of the frivolousness of the demurrer.
    The causes assigned for demurrer were, that the plaintiff has not legal capacity to sue, because,
    First, that the complaint does not show whether the plaintiffs are a voluntary association or a corporation. Second, that the complaint does not set forth the title of any act incorporating the plaintiffs. •
    Also, that it does not state facts sufficient to’ constitute a cause of action, in that it does not state that the plaintiffs had any power or authority to receive, hold, or own, the promissory note counted upon.

      There was no averment in the complaint that the, plaintiffs are a bpdy corporate.

      Wm. M. Evarts, for plaintiff.

      C. A. Rapallo, for defendant.
   Bosworth, J.

There are two cases in Harrison’s Eeports, and two in Blackford’s, adjudging the precise point; that it is unnecessary to aver that the plaintiffs are a corporation. 3 Harrison’s R. 105, ed. 158, 4 Black. R. 267, 5 ed. 146.

The following cases in this state favor the same proposition: (1 J, C. 132, Bank of the U. S. v. Hoskins, 2 Cowen, 770; Bank of Utica v. Smalley,) and cases cited in the latter in the opinion of the court (4 Sand. S. C. R. 675, The Holyoke Bank v. Hoskins).

It is a general rule that it is unnecessary to aver anything in the complaint that is not required to be proved.

By 2 R. S. 458, § 3, it is provided that a corporation plaintiff created by the laws of this state, need not prove its existence on the trial of the cause, unless the defendant shall have pleaded in abatement, or in law, that the plaintiffs are not a corporation.

If the defendants deem such to be the fact, they can set up in their answer that the plaintiffs are not a corporation. 2 R. S. 458, § 3.

It does not appear on the face of the complaint that the plaintiff is not a corporation. It does not, therefore, appear that the plaintiff has not legal capacity to sue. Unless that appears, a demurrer cannot be sustained which is based on that objection. Code, § 144, sub. 2.

■ The name In which the suit is brought being an appropriate corporate name, the plaintiff will be intended, for all the purposes of the suit, to be a corporation, unless the contrary be averred by plea. 3 Harrison’s R. 105; 2 R. S. 458, § 3; Laws of 1845, chap. 345.

The plaintiff must have judgment on the demurrer, but with liberty to defendants, on serving on plaintiff’s attorney within five days from the service of this order, an affidavit of merits, to withdraw demurrer, and answer in twenty days, on payment of the costs of the demurrer.

Approved by all the judges on consultation,