text:
    Abraham F. Fowler, Plaintiff and Appellant v. William Burns et al., Defendants and Respondents.
    1. An injunction can only be granted where it appears by the complaint that the plaintiff is entitled to the relief demanded, and where, also, it appears by affidavit that sufficient grounds exist therefor.
    2. The affidavit may be so drawn, by a reference to the complaint, as to incorporate its allegations in and make them a part of it. When so drawn, and sufficient to authorize, and an injunction is granted thereon, it is granted on an affidavit. It is a misuse of words to say, in such a case, that it is granted on a verified complaint, though the affidavit be merely a verification of the complaint, in the form prescribed by the Code.

    3. A defendant may move to vacate it either upon the complaint and affidavits on which it was granted, or upon affidavits on his part, with or without answer.
    4. If he move upon papers other than those upon which it was granted, it is indispensable that he move on affidavits.

    5. If he has put in answer, so verified, whether by the usual verification, or by a separate formal affidavit annexed to, and by reference incorporating the answer and its allegations into the affidavit, so as to make them part of the affidavit, and he moves upon the answer, thus verified, to dissolve the injunction, he moves upon affidavit, and the plaintiff may oppose the motion by affidavits in addition, to those on which the injunction was granted.
    6. An injunction cannot be granted on an unverified complaint; and one issued upon sufficient grounds cannot be vacated by an unverified answer.
    7. The denials and allegations contained in it, in order to enable a defendant to move upon it to dissolve an injunction, must be so authenticated by a positive oath, as to make them in substance and effect part of the affidavit which authenticates them.
    8. When the defendant moves to dissolve upon an answer thus authenticated, he moves upon an affidavit within the meaning of the Code; and the motion may be opposed by new affidavits on the part of the plaintiff.
    9. This is so, whether the answer merely denies all the allegations of the complaint, or in addition to that, contains new matter.
    10. A complaint and answer are pleadings, and whether verified or not, perform offices as such. But they are none the less affidavits and entitled to be used as such, when their allegations are in such form, and are so verified, that by the verification the truth of the allegations is positively affirmed.
    (Before Bosworth, Ch. J., and Hoffman, Woodruff, Moncrief and „ Robertson, J. J.)
    Heard October 20,
    decided November 10, 1860.
    Appeal by the plaintiff, from an order vacating an injunction. The facts are fully stated in the opinion of the court,

      A. IL Hadley, for Appellant.

      C. D. Miller, for Respondents.
   By the Court. Woodruff, J.

—The complaint in this case, alleges that the plaintiff was on the 25th of April, 1860, the owner of certain articles of furniture consigned to Wm. and Thomas Burns, doing business as commission merchants, under the name of “Burns Brothers,” for sale; that Burns Brothers being insolvent, made a general assignment to their brother, the defendant James Burns, for the benefit of their creditors, and among other property assigned and delivered to him the said property of the plaintiff; that 'the plaintiff as soon as he was notified of the assignment, informed the assignee that he was the owner of the said property, and forbade the sale thereof by him; that the said assignee, nevertheless, sold and delivered the property, claiming to dispose of the proceeds according to the provisions of the said assignment; and .that the plaintiff has reason to fear and does fear that he will distribute the same among, the creditors of Burns Brothers; and that the said assignee is insolvent. Upon these allegations, the plaintiff prays an injunction to restrain such distribution, and that the defendants pay over to the plaintiff the value of the property, and for other relief, &c. The allegations in the complaint are positive, and not stated on information or belief, and the complaint was verified in the usual manner by the plaintiff's affidavit.

An ex parte injunction having been granted, the defendants served their answer; the averments and claims in which were stated as of the positive knowledge of some or one of the defendants, and which was in the usual form, verified by the affidavit of all of the defendants; and, thereupon they moved, upon the complaint and answer, that the injunction order be vacated. On the hearing of the motion, the plaintiff offered to read an affidavit in opposit tion tq the motion, and his affidavit was rejected, it being-decided by the justice, at special term, that, on a motion by the defendants upon such complaint and answer, the r-‘ plaintiff could not read affidavits in opposition thereto, and the motion was thereupon granted. The plaintiff has appealed to the general term from the order dissolving-the injunction.

It will suffice to say, of the contents of the answer, that it denied that Burns Brothers were commission merchants,—or that the plaintiff ever owned the property mentioned in the complaint,—or that he ever consigned it, or any part of it, to the said Burns Brothers for sale, on commission or otherwise; and alleges that the firm of Burns Brothers were the sole owners thereof; that they purchased the same in October, 1859; it admits the insolvency of Burns Brothers, and their assignment, and that James Burns has sold the property at auction, and intends to apply the proceeds according to the trusts in the assignment, by paying the debts of Burns Brothers, and denies that James Burns, the assignee, is insolvent; and, in short, it fully meets the case made in the complaint, and, if unexplained and uncontradicted, overcomes the equities shown thereby. The affidavit offered by the plaintiff explained the contradiction between the complaint and the answer, and tended to sustain the allegations of the plaintiff.

If the affidavit was properly rejected, the motion to vacate the injunction order was properly granted in conformity with well settled rules governing the subject.

The important question upon the appeal before us, thére- . fore, is whether, when a motion to vacate an injunction order is made by a defendant upon the verified complaint and his;verified answer, 'the plaintiff may oppose the same by affidavits on his part.

Under our former system of practice in the Court of Chancery, it was settled that in ^uch case a plaintiff could not read affidavits. (1 Johns. Ch. R. 211; 2 Id. 202; 4 Id. 26; 1 Paige R. 164; 4 Id. 111.) It was therefore the practice to annex to the bill of complaint such affidavits as the plaintiff desired and expected to rely upon to sustain his injunction, and thus by anticipation meet and ° overcome any case which he supposed the defendant might make by his answer.

Under the impression produced by long familiarity with the Chancery practice, the provisions of the Code were approached and examined by the bench and the bar, and several decisions were made, to the effect that when the defendant■ moved on the complaint and answer, the plaintiff could not oppose the motion by new affidavits.

The' section to which this construction was given is the two hundred and twenty-sixth, which, reads as follows :

“If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which-the injunction was granted.”

It has been repeatedly held, that an answer duly verified is not an affidavit on the part of the defendant, within the meaning of this section, and that opinion was expressed by myself as early as 1855, in The Merrimack Company v. Garner, (4 E. D. Smith, 387,) following in this particular, Servoss v. Stennard, (2 Code Rep. 56,) Hartwell v. Kingsley, (2 Sandf. S. C. R. 674,) and a decision of the general term of this court there referred to.

In some of the early cases it was held that an injunction could not properly be granted upon the complaint, when verified in the ordinary manner prescribed by the Code, but that an affidavit must be made in some form more positively authenticating- the allegations therein; and also, that on the motion to dissolve, the answer verified in the ordinary mode could not be deemed an affidavit, and be used to rebut the case made by a complaint sustained by a proper affidavit. (Benson v. Fash, 1 Code Rep. 50 ; Roome v. Webb, Id. 114 ; Millikin v. Cary, 3 Id. 250.)

More recently, it was held by the general term of the Supreme Court of the first district, in Blatchford v. The New Haven Railroad Co., (7 Abbott, 322,) that if the plaintiff, in the verification of the complaint, swears positively to the facts stated therein, it is sufficient to authorize the granting of an injunction. But the opinion seems to hold, that the word affidavit, used in the 226th section of the Code, cannot be construed to mean “answer;” and, therefore, that when the defendant does not use an affidavit or affidavits on his behalf, the plaintiff is precluded from opposing his motion by new affidavits. In Minor v. Buckingham, (8 Abbott, 68,) and in Powell v. Clark, (5 Abbott, 70,) the question whether the plaintiff could oppose the motion to dissolve by new affidavits when the defendant moves on his answer, is said to depend upon the contents of the answer ; and if it contain new matter, not in mere denial of the plaintiff’s allegations, the plaintiff may read affidavits on the motion.

On the other hand, in Roome v. Webb, (1 Code R. 114,) where it was held by Justice Parker that a complaint, verified only according to the requirements of the Code, was not sufficient to authorize an injunction, and that an answer thus verified was not sufficient to support a motion to dissolve, it was also held that apositive verification of the allegations in the complaint would make it sufficient; and. that if the defendant moved on an answer thus verified, the plaintiff may oppose the motion by affidavit.

In Hascall v. Madison University, (1 Code R. N. S. 170,) it was held by Justice Gridley that when the motion is founded on the complaint and a verified answer, the plaintiff may oppose by affidavits. And to the like effect is Krom v. Hogan, (4 How. Pr. R. 225 ;) Schoonmaker v. The Reformed Dutch Church, (5 Id. 265 ;) Hollins v. Mallard, (10 Id. 540 ;) and Jaques v. Areson, (4 Abbott, 282.)

So much diversity of opinion has existed on the subject, that we have deemed it proper to examine. the question, and, aided by the discussion since had of the subject and the opinions of other courts, inquire whether the decision of this court, made soon after the Code was passed, was correct; and that examination has led us to a conclusion that the decision made herein at special -term, though made in conformity with the early decision of our own court, is not in accordance with the true meaning of the Code.

And, first, it is proper to say, that we do not think that this question depends upon the manner in which the complaint or the answer is verified. If they are not verified at all, then, plainly, the plaintiff cannot have an injunction on his complaint; and if the-plaintiff have, in a proper manner, shown himself prima facie entitled to an injunction, an answer, not verified, will be of .no service to the defendant on a motion to dissolve the injunction.

If the complaint be verified and may be treated as an affidavit, the fact, that the verification is in the form prescribed by the Code for verifying pleadings, is not a conclusive objection to the granting of an injunction. The form of the allegations in the complaint must be regarded; and if reading the allegations, in connection with the verification, enough is sworn to to show that the plaintiff is entitled to the injunction, it may be granted. • It would, we think, be unwise to say of the ordinary verification, that, when read in connection with the complaint, it may not, pringa facie, establish the plaintiff’s case and warrant an injunction, whatever the allegations in the complaint may be. Like observations in respect to an answer are pertinent, if that may be used as the ground of a motion to dissolve an injunction.

But, without dwelling upon the mere forms by which the plaintiff may establish the facts stated in the complaint, it is clear that he cannot be entitled to an injunction, unless those facts are authenticated in a mode amounting, in substance, to a positive oath. And if an answer can be used, and is relied upon, as a ground for dissolving the injunction, the facts stated, or the denials made, must be authenticated in like manner.

Next, we observe that we do not perceive that the question depends at all upon the character of the answer or its contents. The Code, in declaring when the plaintiff, on a motion to vacate the injunction order, may and when he may not oppose the same by affidavits or other proofs, suggests no such test. If the defendant moves on affidavits, the plaintiff may so oppose the motion, and not otherwise. The right does not depend upon the particular facts on which he relies, but simply on the question whether he urges his motion on the ground that the case made by the plaintiff is not sufficient, or attempts to destroy that case by proofs on his own behalf; i. e., whether he relies on the weakness of the plaintiff’s case or on the strength of his own.

The view we have taken of the true construction of all the sections of the Code relating to the subject, hereinafter stated, will, we think, show that the distinction taken between an answer which goes merely in denial of the plaintiff’s case and one which sets up new matter, is unnecessary and unwarranted.

Assuming, then, that the plaintiff has, by his complaint and the verification thereof by other affidavits, shown himself prima facie entitled to the injunction, and that the defendant moves to dissolve upon the complaint, and an answer sufficiently authenticated, can the plaintiff oppose the motion by affidavits ?

At the hazard of going over the same ground that has been already traversed by others in the cases above referred to, I deem it proper to review, briefly, the sections of the chapter relating to this subject which bear pointedly on the question; premising that the titles or headings of the various sections are part of the enactment itself.

First. Section 219 declares “m what cases” an injunction may be granted. (1.) Where the case made by the complaint, if true, entitles the party to the relief demanded, and such relief consists in the restraint sought. (2.) Where, during the litigation, it shall appear that the defendant is doing or threatens to do some act which calls for such interference, &c. The third case is not material to this discussion.

Section 220 declares “at what time it may be granted,” viz., at the time of commencing the action, or at any time afterwards, before judgment. And herein follows the indispensable condition upon which, and upon which alone, the court' or judge has any authority to grant the order, to wit, “ upon its appearing satisfactorily to the court or judge, by the affidavit of the plaintiff, or of any other person, that sufficient grounds exist therefor;” and, it is added, “a. copy of the affidavit must be served with the injunction.”

Now, whatever the case made by the complaint may be, there is no warrant whatever for an injunction order, unless it satisfactorily appear by affidavit that the grounds therefor exist. No other section enlarges the authority; and without an affidavit no order can issue. An affidavit must be presented to the court or judge; and a copy of that affidavit must be served on the defendant.

The obvious truth of this construction has led the courts to say that, within the meaning of this section, a complaint maybe treated as an affidavit; though in Millikin v, Cary, (3 Code R. 250,) it was held that, when verified in the ordinary form, it could not. (See Minor v. Terry, 6 How. 211 ; Smith v. Ross, Id. 124 ; Penfield v. Wehb, 8 Id. 87 ; Levy v. Ely, 15 How. 395 ; Woodruff v. Fisher, 17 Barb. 224.)

Concurring in the result thus stated, it is more simple, and will tend less to confusion, to call things by their right names, and to adhere to what has been stated to be the only rule prescribed by the Code, and to the indispensable condition above stated. The complaint is a pleading in the cause; with or without verification, it is a pleading, and has its appropriate office. It is not an affidavit; and there is neither reason'nor propriety in calling it an affidavit for any purpose. It may be annexed or prefixed to an affidavit. That affidavit may, by reference to its allegations, be made to incorporate them in the affidavit; but it is the affidavit upon which the application must be made. When any paper is annexed to an affidavit, and by the affidavit it is sworn that the statements in such paper are true, the whole is an affidavit. If the affidavit, annexed to the complaint, also serve the purpose of verifying the. complaint so as to require the defendant to also verify his anstver, the whole may be called a complaint and verification; but for the purpose of being used on an application for an injunction, it is an- affidavit. In other-words, the plaintiff must apply for an injunction by affidavit. He may save himself the trouble of transcribing the allegations in his complaint by annexing his complaint to an affidavit, which shall refer thereto and amount to an oath, that the allegations are true; and so, what is in itself bpt a pleading, shall .be in fact a part of the affidavit itself by incorporation therein.. And it still remains true, that the injunction is granted on its appearing by affidavit, and not in any other manner—by affidavit in fact, and not by construction — that sufficient grounds exist therefor.

This criticism I am aware is in no wise material, except for the purpose of simplicity in the discussion, and clearness in- showing that the Code is, in this respect, simple and consistent in all its provisions on the subject. To say that the complaint may be treated as an affidavit will confuse, unless it is understood that it must be so incorporated in an affidavit, by reference, as to become a part of it; and then" the whole does in fact become one affidavit. . The circumstance that the paper so annexed is a pleading in the cause, does not make the whole any the less one affidavit.

I pass, next, to the motion to vacate or modify the injunction, (§§ 225, 226,) and here the Code is no less explicit. The application may be made in either of two modes.

First, upon the complaint and the affidavits upon which the injunction was granted. There is nothing in this, showing that an injunction can be granted upon the complaint ; nor anything inconsistent with the views already expressed. It may be very material to examine the complaint, to see whether it states a cause of action, or whether it has stated a case, within the 219th section, and just as material whether the complaint is verified or not; but on the question, whether the facts relied upqn as sustaining the injunction are properly sustained by proof, (that is, whether the condition upon which alone the court or judge was warranted in granting the injunction was complied with,) the affidavit or affidavits alone are to be consulted. If such affidavits contain by formal statement all the necessary facts, they are sufficient. If, they are drawn so as to avoid needless repetition, by embodying the allegations of the complaint therein by reference, they are ■ affidavits still, and alike sufficient. Both questions may, therefore, arise on such a motion : Does the complaint state a cause of action, and a proper case ? and do the affidavits sustain the case upon which an injunction is claimed ?

Second. The defendant may move, upo?i affidavits on his part, with or without the answer. Here the Code consistently prescribes that the proofs shall be affidavits. It permits the defendant to move—not upon his answer with or without affidavits,-but upon affidavits. He may use his answer as auxiliary to his motion or not, as he pleases; but there is nothing to warrant the idea that he may move on his answer as such. That, like the complaint, is a pleading. But, as has been shown in relation to the allegations in the complaint, so in relation to the averments and denials in an answer; they may be made to form a part of his affidavit or affidavits. And, as before, it is not necessary that the words thereof should be repeated by actual transcription into the body of the affidavit. The answer, or any part of it deemed material, may be so annexed to, and sworn to, by the affidavit that it becomes incorporated therein by reference, and the whole will form one affidavit; and again, as before, the fact that it may also serve all the purposes of, and be in fact one of, the pleadings, does not make the whole, when so authenticated, any the less one affidavit. In such case, the defendant does not move on the answer alone, nor on the answer used as an affidavit; but he moves on an affidavit with the answer.

Under the views thus stated, the verification of the complaint and the verification of the answer may or may not be a sufficient affidavit to obtain the order, or on which to move to vacate it.

The point before us is, and I think it has been sufficiently shown, that the plaintiff must apply for the injunction by affidavit, and however he may incorporate the allegations of his complaint therein, it is still an affidavit. And the defendant, if he moves to vacate upon any papers on his part, must move on affidavit and has no warrant for moving on anything on his part without an affidavit, and though he embody the answer therein, it will and must be an affidavit still.

The next section (§ 226) then provides that if the application by the defendant be made upon affidavits on his part, the plaintiff may oppose the saíne by affidavits or other proof in addition to those on which the injunction was granted.

If the construction given to the language of the previous sections is correct, the result is inevitable. The defendant cannot move on his answer without an affidavit. In whatever mode his affidavit is constructed, and though it be a mere oath that the facts stated in his answer are true, it is an affidavit. And therefore, of necessity, if the defendant reads on the motion what alone, by the previous section, he is authorized to read on his own part, the plaintiff is at liberty to read affidavits in opposition to the motion.

The Code has treated of complaint and answer in this entire chapter as pleadings. It has described the proofs to be used in obtaining or in vacating an order for an injunction as affidavits, and when the defendant presents such proofs as the ground of a motion to vacate the order, the plaintiff may produce and read new or further affidavits.

The fact that this court has held otherwise, and that there has been much diversity of decision, has led me to a somewhat prolix discussion, and it may be to a repetition of what has been more concisely said by other judges, who, in the cases above referred to, have come to the same conclusion.

It follows that the rejection of the affidavit offered by the plaintiff at special term was • erroneous. We might, perhaps, having that affidavit bdfore us, proceed to dispose of the motion on the whole merits appearing from all the papers; but possibly had the judge received the affidavit, the defendant might have shown that good reason existed for allowing him to produce further proofs, or for withdrawing his motion, or for taking a denial with leave to renew. We deem it most prudent and best calculated to do justice, to reverse the order, with leave to the defendant to renew-his motion. The costs of the motion at special term, $10, to be costs in the cause and abide the event of the suit.

Under the circumstances, the costs of the appeal should also be costs in the cause and abide the event of the suit.

Ordered accordingly.


source: Caselaw Access Project

author: By the Court. Woodruff, J.

license: Public Domain

text:
    Justus S. Redfield, Plaintiff and Respondent v. William J. Middleton, Defendant and Appellant.
    1. A mere agent cannot prosecute a suit in his own name for the benefit of his principal.
    2. A defendant will not be restrained from prosecuting a business, to an interest in which he has agreed to admit the plaintiff at'a future day, (viz.: January 1,1864,) merely because the defendant insists that he is prosecuting it solely on his own account, and that when that day arrives the plaintiff will not have any right to participate in such profits.
    3. The fact that the defendant is insolvent furnishes no ground, in such a case, for an injunction, it not appearing that his circumstances have changed since the alleged agreement was made.
    4. An injunction, pendente lite, should not be granted on light grounds, nor in doubtful cases.
    6. Where the right is not clear, or the danger great, or the apprehended mischief irreparable, the injunction should not be granted until the rights of the parties are ascertained and settled upon full proof on the final hearing and the right to it is 'established.
    (Before Bosworth, Ch. J., and Hoíbm, Woodrüee, Monoriee, Robertson and White, J. J.)
    Heard November 10,
    decided November 17, 1860.
    Appeal by the defendant from an order granting an injunction and directing the appointment of a receiver. The facts sufficiently appear in the opinion of the court.

      F. JV*. Bangs, for the Defendant, (Appellant.)

      Richard Wynkoopj for the Plaintiff, (Respondent.)
   By the Court. Woodruff, J.

—Before considering the allegations which are claimed to charge upon the defendant conduct which ought to be restrained by injunction, or inquiring how far those allegations are met and overcome by the defendant, it will be useful to notice that there are but two persons who are parties to this action. The suit is prosecuted by the plaintiff, in no representative character known to the law. By reason of his having received, from the author, “the advance sheets” of two of the works of Richard C. Trench, and his having put them in the hands of a stereotyper, and ordered plates thereof upon his own credit, (which plates have, under an alleged agreement with the defendant, come to the possession of the latter,) and for the further reason that the defendant refuses to be bound by the said agreement, the plaintiff demands that the defendant deliver to him the plates and the books printed therefrom; that he be enjoined from selling or disposing thereof; and that a receiver be appointed, pending the action.

The plaintiff, in this, does not profess to be prosecuting the action on the behalf of Richard C. Trench; his complaint is in his sole name, and for the protection of rights which he claims to have himself acquired.

If, upon the facts alleged, it appeared that Richard C. Trench had any interest in the controversy, the action is not, in respect of that interest, in a form which can be entertained. A mere agent cannot, in his own name, prosecute a suit for the protection of his principal, and he could not before the Code was enacted.

Viewed simply as a suit for the benefit of Trench, the action cannot be prosecuted by the plaintiff. He is not prosecuting it, and cannot prosecute it as next friend of Trench, nor under any supposed representative character.

What was heretofore the rule of Chancery practice, is now the rule by statutory enactment. Every action must be prosecuted in the name of the real party in interest.

And, finally, on this point the complaint does not show that Trench has any such interest in the matter in controversy as would sustain an order for an injunction and receiver on his behalf, if he were named as a party plaintiff; the allegations of the complaint remaining as they now are. The only intimation in the complaint that Trench has any concern in the matter is the statement “that said sheets were sent to this plaintiff, for the advantage of said Trench and of plaintiff.”

That statement is altogether too vague and indefinite to be made the ground of the harsh and summary interference of the court, by an injunction and receiver. If. it might answer as a mere pleading to invite an issue and (if facts enough were proved) sustain a recovery, or put the defendant to a motion to make the complaint more definite, it comes far short of the 'requisites of an affidavit warranting a preliminary injunction, without which no such injunction can be properly granted. (Code, § 220 ; Fowler v. Burns, Ante, 637.) It- suggests no idea that irreparable mischief to the rights of Trench is likely to be done. It does not show what advantage to him was contemplated or expected from his sending the advance sheets' to the plaintiff; whether it was increased reputation or pecuniary profit is not stated; if it was the former, it is not shown that his reputation will not be as largely increased by the defendant’s issuing and sale of his works as it will be if the same is done by the plaintiff; and if pecuniary profit is expected, it is not shown how that is to arise, or that the plaintiff is by agreement or otherwise bound to make any return to him of profits or compensation in any form.

Without discussing, therefore, the question whether Trench had or has any interest in the advance sheets mentioned, which, being regarded as in substance an author’s manuscripts, a court of equity might protect, the claim to an injunction cannot be sustained by the allegations in the present complaint, upon his title to protection, because an agent cannot maintain the action on his behalf; if he could, the allegations do not show that he is in any such danger of injury as to require that protection; and the action does not purport to be brought on his behalf or for his benefit; if it did, it would be unavailing, because it should be prosecuted in his own name.

If a case for an injunction is made out, and the order can be sustained upon the plaintiff’s papers, it must be because they show that the plaintiff, Mr. Eedfield, has rights which the defendant has violated, orris about to violate, in such wise as to call for summary interference and protection.

Assuming, for the purpose of examining the case' made by the plaintiff, that the affidavits which he was permitted to read on the motion at the special term were properly received, they contain no new or additional facts: they tend only to sustain the allegations in the complaint, which, in this part of our inquiry, may be assumed to be true. .

Treating the complaint as incorporated in and as forming part.of the plaintiff’s affidavit, annexed thereto, and to be in all respects true, upon what does the plaintiffs’ ■ title to an injunction rest ?

. He avers that in January, 1860, he and the defendant agreed that the defendant would enter into the business .of book publishing. He does not aver that this part of the agreement has not been performed by the defendant, or that he threatens or is about to discontinue that business.

He avers that he (the plaintiff) was to contribute to that business his contracts with authors, his knowledge of the business, his influence with authors, and with the trade and men of other business related to publishing, and the good-will of his former business. He does not state whether any or how much of this agreement he has performed on his own part. All that he states "he did in that respect is, at most, permitting the defendant to pay for and .receive from the stereotyper the plates of the works in controversy. '

He states that he (the plaintiff) was to give, in addition, his time and personal attendance to that business. There is no averment that he has performed this stipulation by devoting any time or attention thereto whatever. '

He alleges that, for the foregoing, the defendant was to pay to him a salary, to be subsequently agreed upon as to amount. He not only does not state that he rendered the service, but he does not state that ■ the amount has been agreed upon, or that he has offered his services, or that he has not been paid for his services, if any have been rendered entitling him to a salary.

He does aver that the defendant agreed that, on the first of January, 1864, he would give to the plaintiff or to his appointee one-half of the business and of the stock and other properties appertaining thereto; and he does state that the defendant now refuses to be bound by his agreement. The whole averment showing such refusal will be presently noticed; but, in regard to the averment itself, it is obvious that the agreement stated is not to give to the plaintiff anything at present beyond the salary. It is not to give him any interest in or share of the profits of the business accruing before January 1st, 1864. It is at least doubtful whether the agreement, as’ stated, is not too indefinite and obscure to admit of any enforcement; or if it be not liable to that objection, then whether it means anything more than that the defendant will carry on the business of book publishing, using therein the aids which the plaintiff agreed to give to him for that purpose, and on the 1st of January, 1864, admit the plaintiff to a participation in that business, sharing with him the stock and property then invested therein. It would be difficult to say that the language imported anything more advantageous than this to the plaintiff, if it will bear even that construction. Still less can it be said that in the mean time the business was not to be carried on for the defendant’s exclusive profit.

Whatever be deemed the construction of this part of the agreement, it is clear that the plaintiff could claim nothing under it until January 1, 1864.

What, then, is the alleged breach of the defendant’s agreement ?

First. “ The defendant refuses to employ the plaintiff as aforesaid.” It has been already suggested that the plaintiff states no offer to serve him, or that he has rendered any~service; and if the agreement be such that the defendant is liable thereon to pay the plaintiff a salary, or what his services are reasonably worth, an action will lie therefor; and so far as the plaintiff’s claim is for services, or a refusal to employ, distinct from, and exclusive of, his title to ultimate participation in the business, it in no aspect furnishes a ground for applying to a court of equity for relief peculiar to that jurisdiction.

Second, “ The defendant refuses to be lov,nd by the' said agreement, and to allow to him (the plaintiff) or to his appointee the said prospective interest in said business, and is now carrying on the same for his own exclusive profit; and alleges his right so to do.” The defendant is, then, carrying on the business which he agreed to carry on. He is in no fault in this respect. No right has yet been acquired by the plaintiff in that business or its profits. If the profits, meantime, are to be solely for the defendant’s benefit, then he is rightly carrying it on for his present profit exclusively; and if, on the first of January, 1864, the accumulations of the business are to be divided, it is then, and only then, that the plaintiff can call for them; and it will only be on a refusal, at or after that time, to make such a division, that the plaintiff can allege that the defendant has broken this clause of the agreement. All that is now true is,«at most, that the defendant states that when that time shall arrive he will not perform his agreement.

When that time comes the plaintiff, if his agreement be valid and sufficient, can enforce it. He can then compel a division, if he then be entitled to it. It would, we think,, be an extraordinary interference if the court now say to the defendant, you shall not carry on the business because you have declared that when your liability to account, and permit the plaintiff to share it, shall accrue, you will not perform your agreement.

This is not a case in which a defendant is about to do, or threatens to do, something in violation of the plaintiff’s rights which he ought to be restrained from doing. We are not asked to restrain him from refusing to divide with the plaintiff in 1864. When the plaintiff becomes entitled to that division, he may be entitled to a decree, compelling it. We do not see the. propriety of restraining the defendant from carrying on any part of that business merely because he has said that in 1864 he will .not perform his agreement to divide. If bound as alleged, he will perhaps change his mind, and do voluntarily what he is bound to do ; if not, he can then be compelled to do it.

But the plaintiff states that the defendant is irresponsible ; and it is urged, therefore, that the plaintiff’s rights are in danger on that account. A defendant’s insolvency does unquestionably sometimes furnish a ground for equitable interference for a plaintiff's protection, but this complaint makes no case. The plaintiff’s allegations tend to show an arrangement for carrying, on a present business and for a future partnership — and the averment is that the defendant is irresponsible.

It is not stated that he is any .less responsible than he was when the agreement was made — it is not stated that even now he owes any debts. The arrangement seems to have contemplated the carrying on of an already established business, or making use of the good-will of such a business in the expectation of making it valuable to the plaintiff in 1864, and the defendant has entered upon and is carrying on the business, and there is no pretense that it is not just as wise and just as safe to permit him to continue it as it was when the arrangement was made.

This review of the alleged agreement and of the alleged breach thereof, (if breach it can be called,) shows', we think, that the allegations forming the general scope and purport of the plaintiff’s case furnish no sufficient ground for an injunction.

Do the allegations relating to the publication of the two works of Trench show that the plaintiff’s acts in.relation thereto justify an injunction or receiver ?

In the first place, if the plaintiff’s allegations be taken to be true and be construed most favorably to himself, the publication of those works will form a part of the very business the defendant agreed to carry on and which he is carrying on, and the observations already made, showing that he ought not to be prohibited carrying on that business, apply directly to this question; and it might, perhaps, bet sufficient to dispose of it on the grounds already • stated.

But there are on the face of the complaint other reasons why the defendant ought not to -be enjoined against publishing those works, or at least why the plaintiff has no title to such an injunction.

According to the statements in the complaint, the defendant, with the consent of the plaintiff, and in pursuance of the alleged agreement, has received the stereotype plates of the two works of Trench, and given his note therefor; has caused books to be printed therefrom and bound, and has them now in readiness, and is about to offer them for sale.

Now, irrespective of the plaintiff’s title to be' paid the salary which he alleges the defendant agreed to give him, it is not apparent that the plaintiff will be in any manner injured by permitting the defendant to go on and carry out the purpose for which he paid for the plates and caused the books to be printed and bound. If, tinder the alleged agreement, the plaintiff can at any time claim any benefit from the publication and sale of the books thus printed, he cannot until 1864. Until then the defendant was, by the agreement, entitled to use the plates and publish books and retain the proceeds.

And in this view, it is obvious the plaintiff does not strengthen his case by any agreement founded on Trench's supposed interest in such publication. If that interest is simply in the reputation he may gain thereby, then, as already suggested, it is not apparent that his reputation will not be promoted as well by a publication and sale of the works by the defendant as by the plaintiff. And if that interest is a supposed right to share the pecuniary profit derivable from the sale of the books, -then the plaintiff, according to his own showing, had bargained away to the defendant all that, profit, or had, in any view of the subject, postponed any claim to such profit until 1864. If in this he betrayed any confidence reposed in him by Trench, he cannot make his own violation of duty a reason for invoking the interference of this court on Ms own behalf to prevent the defendant’s doing what it was intended he should do, and in order to do which he has paid for the plates, and has caused the books to be printed and bound.

The defendant having, with the assent of the plaintiff, invested his money or credit, or both, in- the books, we .think an injunction restraining his selling them, and an appointment of a receiver to take them from his hands, should not be granted, except upon a very clear case of danger to the plaintiff of some loss for which there will not be adequate redress in the ordinary modes of administering justice, or some fraud on the part of the defendant is shown.. No such danger, we think, appears by the plaintiff’s complaint, and no such fraud appears which is sufficient to require such summary interposition.

So that if all the facts alleged in the complaint are admitted, it is, to say the least, very doubtful whether the plaintiff has stated a case which will sustain an order for an injunction and receiver.

The only circumstances prominently presented by the affidavits read by the plaintiff in support of the case made by the plaintiff’s original affidavit, on wMch the order to show cause was granted, are the facts that the plaintiff procured the plates on his own credit; that he has offered to return the note given therefor by the defendant, and pay the expenses incurred in the paper, printing and binding the two works of Trench; and that the defendant has, sinde the complaint herein was sworn to, admitted that the plaintiff was to have an interest in the business after three years.

The arrangement which the plaintiff states he made in or about January, 1860, was that he was to contribute to the defendant’s business his contracts with authors, his knowledge of the business, his influence, and the good-will of his former business, and his own time and personal attendance; and yet, “in and about the months of January to June, 1860,” he received the advance sheets in question, and instead of placing them in the hands of the defendant, to be published as a part of the business, the plaintiff himself, in his own name and on his own credit, proceeded to have them stereotyped, without naming the defendant in the matter.

The indication is that the plaintiff in this was not very prompt to perform the agreement on his part, or that the agreement had not then been made.

The offer made .to return the note and refund his disbursements on account of the works amounts to nothing, unless the plaintiff is upon other grounds entitled to restrain the defendant from publishing and selling the books.

And the defendant’s admission that the plaintiff was, by the arrangement, to have an interest in the business after three years, may be useful in establishing his right when the time to enjoy it arrives, but does not show that any present right has been violated. .

In this, to say the least, doubtful condition of the plaintiff’s case upon his own papers, we have the affidavit and .answer on the part of the defendant. He unequivocally denies that any such agreement as is stated by the plaintiff was ever made by him.

The existence, of the agreement is, of course, at the very foundation of the plaintiff’s claim, even if it is conceded that such agreement, and what is alleged as a breach, would entitle him to the injunction. But the answer and affidavit fully meet this averment.

The defendant admits that in the month of October, (in which month this action was commenced,) he and the plaintiff came to an agreement that the latter should be employed in the defendant’s business at a salary of $1,500 per annum, and avers that the plaintiff accepted such employment, but for a number of 'days prior to the commencement of this action, he has wholly neglected and refused to render any service whatever.

And in relation to the plates of the two books referred to, he says the plaintiff, before they. were completed, declared that the plates were for any one who would pay for them; and that the defendant subsequently, in September, consented to take them, and give his note for the cost of the manufacture, and that the plaintiff and the stereotyper called together and delivered to him the bill therefor, and he gave his note; and the whole tenor of the- affidavit is that, as between the plaintiff and the defendant, the latter is the owner of the plhtes and of the books printed thereupon at his expense, and entitled to publish and sell the books; and the defendant further denies that he is irresponsible.

Without entering further into a comparison of the papers, and determining the case upon a nice consideration of the weight of the testimony, it may suffice to say that the case of the plaintiff is very far from being clear on the question of title to any claim, upon the facts shown. Still less is it apparent that the rights of the plaintiff are in any such immediate peril as calls for the interposition of this court by an injunction and receiver, which, obviously, may be highly prejudicial to the defendant, and the refusal of which cannot, as we perceive, be seriously, if at all, injurious to the plaintiff; and, so-far as appears, the plaintiff’s remedy, if the defendant has made the agreement in question, and should at the end of three or four years refuse to perform it, will be adequate, without an interference now, the tendency of which is to break up the very business in which the plaintiff claims a right to participate when the period shall arrive.

We do not wish so far to determine the merits on this'1 appeal as to say that the plaintiff may not, when the proofs are taken, establish a case which shall entitle him to recover back the stereotype plates and have an account of the profits which may accrue from publishing the books, but an injunction pendente lite should not be granted on light grounds nor in doubtful cases. We have often taken occasion to say that granting injunctions, where the right is not clear, or the danger great, or the apprehended mischief irreparable, is dangerous in a high degree. It often involves a determination disastrous to the party enjoined on a mere motion, on which it is impossible that the proofs can be so taken and considered as to be a safe guide in the administration of justice. In all such cases the injunction should not be granted until the final hearing upon the full proofs, when the rights of the parties may be ascertained and settled.

For these reasons, the order enjoining the defendant and appointing a receiver should be reversed. The defendant’s costs of the motion at special term, fixed at $10, and the costs of the appeal to the same amount, to be part of his costs in the cause, and abide the event of his recovery of costs herein.


author: By the Court. White, J.

text:
    Pinckney, Plaintiff, and Respondent v. Childs et al., Defendants and Appellants.
    1. Where, pending an action at issue against several persons as makers and indorsers of two promissory, notes, amounting to the principal sum of $1,800, a written agreement is made between the plaintiff and certain of the defendants, by which nine promissory notes for the sum of $200- each, payable at intervals of three months, were given and accepted for the notes in suit, and such defendants were to serve, and did serve an offer, in writing, withdrawing their answers and allowing judgment to be taken against them “ for $1,973.60, without costs, subject to the covenant for a stay of proceedings,” contained in said written agreement, to the effect that the plaintiff would not enter judgment on said offer until after sixty days from the maturity of either of said notes and a failure to pay it, and where, upon a failure to pay the fourth of said nine notes within sixty days after its maturity, the plaintiff entered up a judgment on said offer for the sum of $1,600.80, and issued execution thereon; held, that the judgment was unauthorized and irregular, and should be set aside.
    2. That the 385th section of the Code does not provide for entering a judgment upon an offer, unless it be unconditional, and leaves no facts to be ascertained and determined, to authorize the entry of a judgment.
    (Before Boswobth, Oh. J., and Woodbüit, Monobiee, Bobebtson and White, J. J.)
    Heard November 24,
    decided December 8, 1860.
    Appeal by the defendants from an order denying a motion to set aside a judgment against them in favor of the plaintiff.

      William Pinckney is the plaintiff, and the defendants are Henry H. Childs, Seneca Durand, Anthony Arnoux and a Mr. Dougherty. The facts are fully stated in the opinion of the court.

      William Fullerton and W. H. Arnoux, for Appellants.

      W. D. Vreeder, for Respondent.
   By the Court. White, J.

—This action was commenced in December, 1857, to recover the amount of two promissory notes held by the plaintiff, one for the sum of one thousand dollars, and the other for eight hundred dollars. The notes were made by the defendants, Childs and Dougherty, who were partners, and were dated in January, 1857, and made payable on demand. They were duly indorsed by the two other defendants, Arnoux and Durand, and delivered to the plaintiff.

The relief demanded in the complaint was a judgment for eighteen hundred dollars, with .interest from January, 1857. The defendants, Arnoux and Durand, answered and alleged as a defense, that the plaintiff had been guilty of laches, and had not presented the notes, and demanded payment of the makers, when he was required and ought to have done so.

On July 1st, 1858, the parties to the action came to an arrangement, and made an agreement in writing, setting forth that the defendants, Arnoux and Durand, had withdrawn their answer, and had given to the plaintiff an offer in writing, allowing him to take judgment for nineteen hundred and seventy-three dollars and sixty cents, without costs; and further, setting forth that the plaintiff had accepted nine promissory notes made by the defendant Childs, to the order of the plaintiff, each note being for the sum of two hundred dollars, and dated May 24th, 1858. The notes came due respectively at successive intervals of three months; the first one falling due twelve months from May 24th, 1858, and the others falling due thereafter in succession, one every three months.

The plaintiff stipulated in the agreement referred to, that he would suspend proceedings, and would not enter judgment in the action upon the defendants’ offer in writing, until default was made in the payment of some one of said nine notes, and until the same remained unpaid for the space of sixty days after it fell due; and he covenanted that upon the payment of said nine notes at maturity, or within the said sixty days after maturity, he would release and discharge the defendants, Childs, Arnoux and Durand, from all claims and demands in said action; and it was stated in said agreement that the defendants, Childs, Arnoux and Durand, relinquished all right to interpose any defense whatever to said action. The defendants’ withdrawal of their answer, and offer to allow judgment to be taken against them, is in these words:

Title of action. Please take notice, that the above named defendants,-Henry H. Childs, Seneca Durand and Anthony Arnoux, hereby severally withdraw the answers by-them made in the above entitled cause, copies of whichl have been heretofore served upon you, and the said defendants hereby offer to allow judgment to be taken against them for the sum of one thousand nine hundred and sixty-three dollars and sixty cents, without costs, this offer being subject to the covenant for a stay of proceedings,, entered into between the parties hereto.
“Dated July 1, 1858.
“Yours, &c.
‘WM. HENRY ARNOUX,
Attorney for said Defendants.
“To Taggard & Pinckney,-Esqrs.,
“ Attorneys for Plaintiff.

The three first of the nine compromise notes were paid. The fourth note matured on February 27,1860, and was not paid. The defendant Childs, the maker of the note, alleges in his affidavit, that when the sixty days next after the' maturity of this note'’ were about to expire, he looked for the note for two days, but could not find it, and he intimates that the plaintiff kept it designedly out of his reach. This intimation is not contradicted by the plaintiff’s affidavit; but it does not appear that the defendant had, at any time before the expiration of the sixty days next succeeding its maturity, made inquiry of the plaintiff respecting the note.

On May 1st, 1860, the plaintiff, upon filing the above mentioned offer and acceptance, and a copy of the written agreement respecting the nine compromise notes, entered judgment against the defendants for the sum of one thousand six hundred dollars and eighty cents, and issued execution, which was levied on the property of the defendant Arnoux.

On May 3d, 1860, the defendants gave notice of a motion to set aside the judgment, and to compel the plaintiffs to accept payment of the fourth note. That motion was argued, and denied in June, 1860.

On July 26th, 1860, the defendants tendered to the plaintiff the whole amount of the remaining unpaid notes of the nine compromise notes; which tender the plaintiff refused to accept. Thereupon, the defendants again moved in October, 1860, to set aside the judgment, alleging, as an irregularity, that it was entered for more than was due on the nine compromise notes. The motion was denied, and from the order denying it, the present appeal has been taken.

The offer of the defendants,, upon which the plaintiff entered judgment in this action, is not within the 385th section of the Code. That section prescribes an unconditional, unqualified offer, upon which the clerk can enter judgment without further proof or inquiry. In this case the offer was made expressly subject to the provisions of another instrument or agreement, and dependent upon the question whether or not" a default had been made in the payment of certain promissory notes other than those mentioned in the complaint; matters which could only be determined by testimony, by judicial action, which the clerk, a mere ministerial officer, could not take. The judgment is therefore not irregular only, but void, and should be vacated.

A preliminary objection to this motion was made by the plaintiff on the argument of the appeal, on the ground that a former motion (the motion of June, 1860, above referred to,) had been made by the defendants, to vacate the judgment in question, and had been denied, and that leave to renew the motion had not been given. It appears by the order appealed from that this preliminary objection if made at the special term was waived, and that the motion was heard on its merits. It cannot, therefore, be urged now on the appeal.

The order appealed from must, therefore, be reversed, and the judgment in the action and the execution issued on it be vacated and set aside, provided the defendants stipulate not to sue the sheriff for the levy made by him under the execution.

Neither party will be allowed costs on the original motion, or on the appeal.

Ordered accordingly.


author: By the Court. Hoffman, J.

text:
    The President, &c., of Lee Bank, Respondents v. John B. Kitching, Appellant.
    1. It is no defense to an action on bills of .exchange, brought by an indorsee against the acceptor, that the defendant accepted the bills for the accommodation of the drawer, relying on an assurance from the drawer that the bills would be secured and paid, and that the payee had provided means therefor; that in fact the said payee did place in the hands of the plaintiff, when the bills were discounted, property or funds to cover such bills, which the plaintiff still holds; and that both the drawer- and the defendant (acceptor) were insolvent when the plaintiff discounted the bills, and the .discount was made entirely on the faith and credit of the security so furnished by the payee.
    2. Such allegations in the defendant’s answer, in such an action, coupled with a claim that the defendant should not be required to pay the bills until the securities held by the plaintiff have been applied thereto, and asking that before judgment against the defendant, the plaintiff may be ordered to make such application, will be struck out as irrelevant. (Code, § 160.)
    3. What answers or defenses forming parts of an answer, and what matter in an answer or defense forming part thereof, or of a defense therein, maybe treated as irrelevant, and what are sham and frivolous, considered by Hoffman, J.
    (Before Hoffman, Woodruff, Moncrief, Robertson and White, J. J.)
    Heard December 22,
    decided December 29, 1860
    Appeal from an order, made at special term by Mr. Justice Moncrief, striking out part of an answer as irrelevant.
    The action is brought by the plaintiffs as indorsees of two bills of exchange, drawn by Pierre C. Kane, payable .to the order of Mrs. Edith Kane, against the defendant as the acceptor thereof.
    The answer first denied the delivery of the bills to the payee, and the indorsement to the plaintiffs for value, and alleged that the defendant received no consideration for his acceptance.
    Then followed the allegations which were struck out by the order appealed from, as follows, viz. :
    “And this defendant, further answering, says, that when he accepted the said drafts Pierre C. Kane was his debtor, and that he accepted them merely for said Kane’s accommodation, and to enable him to raise money from the Lee bank, and upon the faith of an assurance received from said Kane, upon the authority of Mrs. Edith Kane, that she had provided the means for their payment, and had placed property or funds in the hands of the said bank, to the extent of 15,000 dollars, to cover these and other drafts to that amount; and that defendant’s said acceptances would therewith be provided for at their maturity.
    “And this defendant further says, that the said Edith Kane did, as he is informed and believes, in fact furnish such security for the purposes aforesaid at said Pierre C. Kane’s request, and that the said, bank now holds the same; and that, upon the receipt thereof, the said bank discounted the said acceptances at the request and for the benefit of the said Pierre C. Kane; and that, at the time of such discounts, this defendant and the said Pierre C. Kane were both insolvent, and such facts were well known to said bank; and that said bank discounted the said acceptances entirely upon the faith and credit of the security so furnished by Mrs. Kane.
    “And this deponent.further says, that when he accepted the said several drafts, he relied upon the arrangement hereinbefore set forth to provide for their payment by Mr. and Mrs. Kane, and that if he now should be obliged to pay the same, he would be remediless in the premises; and he respectfully submits to this honorable court that, under the circumstances of this case, it would be inequitable and unjust to compel him to pay the said acceptances, or either of them, until after the said bank shall have first applied the securities, so as aforesaid placed in its hands, towards the payment thereof; and he therefore prays that, before final judgment shall be entered herein, the plaintiffs may be ordered to apply the said property, so placed in the hands of said bank, or the proceeds thereof, in payment of his said acceptances; or that he may have such other and further relief in the premises as shall be equitable and just.”
    The defendant moved to strike out this part of the answer as irrelevant and redundant.
    Upon that motion, the part of the answer above stated was struck out as irrelevant. The defendant appealed from the order.

      John JV*. Taylor, for the Appellant, argued—
    I. The answer is neither redundant nor irrelevant.
    II. ' The defendant is only a surety for Kane, the debtor; and the plaintiffs are bound to exhaust their remedy against the property of the debtor, placed in their hands for payment, before calling upon the surety. (Story Eq. (§ 638-641.)

      F. C. Bliss, for the Respondent.
    I. It is no defense that the bills were accepted for the accommodation of the drawer; not even if- the plaintiff had notice thereof when the bills were discounted, which, in this case, is not averred. Such an answer is held frivolous. (Pettigrew v. Chave, 2 Hilt. 546 ; Pierson et al. v. Boyd, 2 Duer, 33 ; Smith v. Knox, 3 Esp. 46 ; Bank of Ireland v. Beresford, 6 Dow. 237.)
    II. The defendant, as acceptor, stands in the same position as maker of a note.- If the plaintiffs took collateral security, they took it to protect themselves, and have a right to exhaust their remedy against those who stand to them in the relation of principal debtor before resorting to the collateral security. (Wright v. Simpson, 6 Vesey, 713 ; Hayes v. Ward, 4 Johns. Ch. 123 ; Schroeppell v. Shaw, 3 Comst. 446, and cases supra.)

    III. The defendant, as between him and the plaintiffs, is principal debtor, and not a surety. (DeZeng v. Phyfe, 1 Bosw. 336 ; Pierson v. Boyd, 2 Duer, 39 ; Dean v. Hall, 17 Wend. 214 ; Seabury v. Hungerford, 2 Hill, 80 ; Hall v. Newcomb, 3 Id. 233, and 7 Id. 416 ; Spies v. Gilmore, 1 Const, 324 ; Pearce v. Wilkins, 2 Id. 471.)
    IY. Matter in a pleading is irrelevant which has no bearing on the subject in controversy, and which cannot affect the decision of the court; and the test is, whether the averments tend to constitute a cause of action or defense. (Ingersoll v. Ingersoll, 1 Code R. 102 ; Fabricotti v. Saunitz, 1 Id. new series, 121 ; Averill v. Taylor, 5 How. Pr. R. 476 ; Martin v. Kanouse, 2 Abb. 330.)
    Y. Irrelevant or redundant matter may be struck out on motion. (Code, \ 160.)
   By the Court. Hoffman, J.

—By the answer, which is now under consideration, an accepted bill of exchange is sought to be freed from liability because the holder, who discounted it, had securities placed in his hands by the indorser, and is averred to have discounted the bill entirely on the faith and credit of such security. In other words, he would not have discounted it unless he had possessed such securities. There is not a word in this to show that he meant, much less agreed, to discount it, without having a right to resort to the acceptor. Proof of such an agreement would not be allowed. That the acceptance was an accommodation acceptance is unimportant. The liability is the same as if it had been based on funds. There is no equity whatever to compel the holder to suspend proceedings on this discounted acceptance until he has exhausted other securities in his possession. The case seems to us too clear to need further, argument, or the citation of any authorities.

The only question raised, which requires notice is, whether the motion to strike out was the appropriate remedy.

By section 152, sham and irrelevant defenses may be stricken out on motion.

I have always considered that irrelevancy in this and the 160th section meant the impertinency of the old Chancery system. That was, either prolixity or needless details of material matter, or something out of which no cause of action or defense could arise between the parties in the particular suit.

Cases of both classes are cited in 1 Hoffman’s Ch. Pr. 280-282. Beaumont v. Beaumont, (5 Mad. R. 51,) is a striking case of an answer, setting forth the details of prices and particulars in an auctioneer’s catalogue, certainly not immaterial, but clearly superfluous. Corbett v. Tottenham, (1 Ball & Beatty, 59,) is an instance of the other class. Lord Manners said, “I do not think the plaintiffs are bound either to reply to these charges in the defendant’s answer, or to go into evidence to disprove them, and, therefore, they ought not to remain on the record.”

This distinction is adverted to in Bowman v. Sheldon, (5 Sandf. Sup. Ct. R. 660.) In various cases, irrelevancy under the Code is treated as matter which does not tend to constitute a cause of action or defense; matter which, even if true, cannot affect the decision of the court in the case. (Stewart v. Bouton, 1 Code R., N. S. 404 ; Averil v. Taylor, Id. 213 ; Clark v. Harwood, 8 How. 470 ; Edgerton v. Smith, 3 Duer, 614.) . The 160th section appears to relate to cases in which, in the same pleading, or in a distinct separate part of a pleading, irrelevant matter is mingled with pertinent matter. Franklin v. Keeler, (4 Paige, 382,) furnishes an example of this.

But section 152 refers to an answer or a defense which, in its entirety, is either sham or irrelevant. I read the section thus: That a sham answer or defense, and an

irrelevant answer or defense, may be stricken out on motion. The received definition of a sham answer is its falsity. It may be material and pertinent, and yet be stricken out as sham. (The People v. McCumber, 18 N. Y. R. 316.) It need not, of course, be both sham and irrelevant.

The case of Kurtz v. McGuire, (5 Duer, 660,) is an example of one portion of an answer being stricken out as irrelevant where it would have constituted a cause of action, but could not be made available in that suit as a defense, not giving a right of set-off, and not constituting a counter-claim.

Slack v. Cotton, (2 E. D. Smith, 398,) is an instance of a distinct defense being stricken out as sham under the 152d section.

In Hecker v. Mitchell, (5 Abbott, 453,) there was a motion for judgment under section 247 on the ground of the frivolousness of the answer. But there were two defenses set up; one of which was, as pleaded, available; the other was frivolous. Mr. Justice Woodruff, while denying the motion as made for judgment, ordered the second defense to be stricken out, under the prayer for other relief.

The redress which a plaintiff can have under section 247 by a judgment for frivolousness can, of course, only be where every part of the answer is such.

The authorities referred to seem to show that the ability of the plaintiff to demur (under • section 153) to one or more of the defenses set up in an answer, does not preclude a motion under section 152. A motion for judgment Under section 247 is a summary demurrer to an answer in cases in which a demurrer will lie. And so the motion to strike out part of an answer may be regarded as a summary demurrer to that part, as giving a concurrent mode of relief.

Justice Harris, in Stewart v. Bouton, (1 Code R., N. S. 404,) says: “This motion to strike out irrelevant matter is analogous to a demurrer, and should be decided upon the same principle. If matter cannot be made the subject of a material issue, it should be struck out.”

There are authorities to show that a demurrer will not lie to irrelevancy in a pleading. But it will be found that they are cases in which irrelevant matter has been inserted in the statement of some substantative cause of action or defense with material matter. Such.was the case in Watson v. Husson, 1 Duer, 251, and Welch v. Hazelton, 14 How. 97. They do not, therefore, support the proposition that a demurrer would not lie in a case like the present, nor could such a proposition be sustained under the clear language of section 153. They leave the question, whether the motion under section 152 may not also be resorted to, unaffected.

The order should be affirmed.

Order affirmed with costs. .


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

text:
    Robert D. Livingston, Receiver, Plaintiff and Appellant v. Maria E. Hammer (impleaded), Defendant and Respondent.
    1. The Code permits any material allegation of a complaint to be put at issue, by an answer that the defendant has no knowledge or information thereof sufficient to form a belief as to its truth.
    2. When any material allegation of a complaint is thus controverted, the answer cannot be treated as frivolous, or held bad on demurrer, merely because such allegation is of the recovery of a judgment, or of some other fact, the truth of which can be ascertained by inquiry.
    3. If the answer is believed to be sham, the remedy is a motion, on affidavits, to strike it out as sham.

      4. An answer is not frivolous, merely because it denies the several allegations of a complaint conjunctively, instead of denying them disjunctively.
    6. Where, in an action on an undertaking given in an action of claim and delivery, to procure a return to the defendants of property taken from them in such action, the complaint alleges, “ that on or about the 21st day of January, 1860, judgment was duly rendered and docketed in favor of the plaintiffs against the defendants therein, for $612.64, damages and costs, * * and the said judgment now remains of record, outstanding, and wholly unpaid, not vacated or otherwise discharged;” an answer which merely alleges that defendant “has no knowledge or information sufficient to form a belief whether judgment was entered on the 21st of January, 1860, in said action', * * for said sum of $612.64 damages and costs,” is frivolous.
    6. Though not entered on the 21st, it may have been, and the answer does not deny that it was entered on or about that day, (which is the allegation in the complaint,) and remains of record, in full force, unpaid, and in no way vacated or otherwise discharged.

      7. It is not essential to a right of action on such an undertaking, that an execution has been issued on the alleged judgment, and returned unsatisfied.
    (Before Bosworth, Ch. J., and Hoffman, Woodruff, Monorief, Kobertson and White, J. J.)
    Heard December 15,
    decided December 29, 1860.
    This is an appeal by the plaintiff from an order denying a motion, made by him, “for judgment for plaintiff on the ground of the frivolousness of the answer” of the defendant, M. E. Hammer.

    The order was made on the 31st of August, 1860, on a notice of motion for that day, dated the 24th of August, 1860.
    The complaint is on an undertaking executed in an action of claim and delivery of personal property, then pending in this court, in which the present plaintiff was plaintiff, and F. Stoessel and Maria Stoessel were defendants.
    The undertaking was executed by said Ferdinand and Maria, and by said Hammer and one Valentine Eush, in order to procure a return to F. and M. Stoessel of certain personal property which the sheriff had taken at the instance of the plaintiff, and under proceedings in that action had by the plaintiff for that purpose. By it, those signing it “ do undertake and become bound to 'the plaintiff in the sum of $1,200, for the delivery of the said property to the plaintiff, if such delivery shall be adjudged, and for the payment to him of such sum as may for any cause be recovered against the defendants ” in that action. » . The complaint in this suit alleges the commencing of that action ;• proceedings in .it authorizing’ the sheriff to take and deliver to the plaintiff therein certain personal property specified; the execution and delivery of the undertaking in question to the sheriff; the return thereupon of the said personal property to F. and M. Stoessel by said sheriff; the recovery by the plaintiff of a judgment in that action for $612.64 on the 21st of January, 1860, against F. and M. Stoessel; the issuing .of an execution thereon against the property of F. and M. Stoessel, and the return of the same unsatisfied, and prays judgment for $612.64, and interest from the 21st of January, 1860. •
    The allegation in the complaint, as to the recovery of the judgment, and its being in force, is in these words, viz: “That on or about the 21st day of January, 1860,
    judgment was duly rendered and docketed therein, in favor of the plaintiff, against the said Ferdinand & Maria, for $612.64 damages and costs of said action, and a transcript of said judgment was on the same day duly filed and docketed in the office of the clerk of the city and county of New York; an execution upon said'judgment, against the property of said Ferdinand and Maria, was on the 23d day of January, 1860, duly issued and delivered to the sheriff of New York, who afterwards duly returned the . same wholly unsatisfied, and the said judgment now remains of record, outstanding and wholly unpaid, not vacated, satisfied or otherwise discharged, and the whole amount thereof, $612.64, together with interest thereon from the 21st of January, 1860, still remains due thereon to the plaintiff.”

      Mary E. Hammer, in her answer, “ says that she is not indebted, upon the undertaking mentioned in the complaint herein, in the sum of $612.64, as alleged in said complaint.
    “Defendant further answering says: she has no knowledge or information, sufficient to form a belief, whether judgment was entered on the 21st of January, 1860, in the above mentioned court for said sum of $612.64, damages and costs, in favor of the plaintiff herein, against the defendants, Ferdinand and Maria Stoessel,” nor whether execution was issued and returned, as alleged in the complaint.
    She further says, that said undertaking was made and executed without any consideration of any nature or kind therefor.
    The plaintiffs motion for judgment on account of the frivolousness of this answer was denied, and from the order denying it the plaintiff appealed to the general term.

      A. K. Hadley, for Appellant,

      C. A. May, for Respondents.
   By the Court. Bosworth, Ch. J.

—The appellant’s counsel insists that the answer is frivolous, for the reason that "a defendant cannot be allowed to remain willfully ignorant of what he has the means of knowing, and answer a complaint by stating the absence of knowledge or information sufficient to form a belief as to the truth of its material allegations, when the court can see, upon the face of the complaint, that he has the means of knowing whether they are true or not; that the defendant in this case had only to examine the records of the court, or have the attorney who prepared her answer do so, in order to ascertain the truth of the averments which she has attempted to put at issue.

He cites 1 Code R., N. S. 204; 1 Abb. 187; 3 Sandf. S. C. 139; 12 How. Pr. 37 ; IE. D. Smith, 555.

On a motion for judgment, on account of the frivolousness of an answer, the only question is, does it deny any material allegation of the complaint or set up any defense ? For all the purposes of that motion, it is to be assumed to be true. If it be sham, that is to be shown by affidavit on a motion to strike it out as sham. (Brown v. Jenison, 3 Sandf. 732 ; Hull v. Smith, 8 How. Pr. R. 150 ; Nichols v. Jones, 6 How. P. R. 358.)

That a defendant has no knowledge or information sufficient to form a belief whether the allegations of a complaint are true, is of no consequence as an abstract proposition, and, of itself, is no defense. But when a defendant is permitted by statute to put any or all of the material allegations of a complaint at issue by such a form of pleading, an answer which does that is sufficient in. form; and a plaintiff cannot have judgment on the ground that it is frivolous, on a motion made under \ 247 of the Code, nor upon a demurrer to it for insufficiency.

Assuming the allegation, that judgment was duly rendered and docketed on or about the 21st day of January, 1860, as containing by implication an averment that the judgment was duly entered in the judgment book, and assuming the statement in the answer to be a denial that judgment was entered on the 21st of January, 1860, the answer does not deny that it was entered abo.ut that day; nor that it was duly rendered and docketed about tfiat day ; .nor that it now remains of record, wholly unpaid, not vacated, satisfied or otherwise discharged.

A judgment may be duly rendered, and a judgment roll be filed, containing a copy of the judgment, and the judgment be docketed, although the judgment has not been entered in the judgment book; .and yet it does not follow that this irregularity can be made available, either byway of pleading or evidence, in an action on the undertaking.

But it is not necessary to sustain this view, in order to reach the conclusion that the answer is clearly frivolous.

The case of Hance v. Rumming, (1 Code R. 204 ; S. C. 2 E. D. Smith, 48,) was a motion on affidavits to strike out the answer as sham. The' judge who made that decision would not hold, the present answer frivolous, merely because it-denied "any knowledge of information sufficient to form a belief whether the alleged judgment was recovered, if he adhered to the views expressed by him in Wesson v. Judd, (1 Abb. Pr. R. 254.)

The ground on which the decision was placed in Shearman v. The New York Central Mills, (1 Abb. R. 187,) viz., that it denied the allegations of the complaint conjunctively, and not disjunctively, has since been held by the Court of Appeals to be untenable. (Wall v. Buffalo Water Works Co., 18 N. Y. 119.)

The case in 12 How. Pr. R. 37, favors the appellant’s views, as to the rule for which he contends. The general observations, made in 1 E. D. Smith, 555, and 3 Sandf. 169, may be assumed to be sound ; and still the question will remain, if the answer be sufficient in form to put material allegations of the complaint at issue, whether the plaintiff’s only remedy, if it be supposed to be false, is not a motion to strike it out as sham.

A sham answer may be sufficient im form, and usually is ; and when that is believed to be its character, the plaintiff, if he wishes to avoid the delay of a trial, must get rid of it on a motion to strike it out as sham. On that motion, the defendants can be heard on affidavits • and they may present facts which will defeat the motion.

The Code has prescribed the form of an answer, and makes it sufficient to put material allegations of the complaint at issue. And when, by observing that form, it puts some of the allegations of the complaint at issue, the plaintiff cannot have judgment, either on a demurrer to it or on a motion under 247 of the Code, unless he is entitled to judgment, admitting those allegations to be untrue.

He cannot have judgment on such a motion, when he could not upon a demurrer to the answer. And he cannot succeed on a demurrer to an answer which controverts, in a manner allowed by the Code, an allegation of the complaint, proof of which is essential to establish a cause of action.

A motion, under § 247 of the Code, is in substance, and practically, a summary demurrer, (5 Duer, 654,) and admits the allegations of the answer, for the purposes of the motion itself, to be true.

The only remaining question is, whether the answer is frivolous.

The complaint states that a “judgment was duly rendered and docketed on or about the 21st of January, 1860; that a transcript of it was duly filed the same day; and that the said judgment now remains of record, wholly unpaid, not vacated, satisfied, or otherwise discharged.”

The only notice of these allegations taken by the answer, (construing the answer most favorably for the defendant,) is a denial that the judgment was “ entered on the 21st of January, 1860.” The complaint, in terms, says nothing of the judgment being entered.

The Code requires the judgment to be entered in the “judgment book,” (§ 280,) and directs that “a copy of the judgment” shall form part of the judgment roll; (^ 281;) which judgment roll must be filed before the judgment can be docketed. The fact, that the judgment has not been entered in the judgment book, does not necessarily make the judgment void; and on a motion to set aside the judgment roll, the court, if justice required it, would permit the judgment to be entered nunc pro tunc. (9 How. Pr. R. 86 ; Calkins v. Packer, 21 Barb. 275 ; Code, §§ 174, 176.)

For, whether a judgment was entered on the 21st of January, 1860, or not, it may have been entered about that time, either on the 20th or 22d. The answer, at most, denies that it was entered on the 21st of January. It may not have been entered on that day, and yet be true; as the complaint alleges that it was duly rendered docketed on or about that day, and still remains of record, not satisfied, vacated, or otherwise discharged, and wholly unpaid.

Assuming the word “entered,” as used in the answer, to have been designed to include the giving of judgment by the court, and a direction to enter it, as well as the entry of it in the judgment book; and the answer to be a denial, in a mode authorized by law, that this was done on the 21st of January, 1860, still it is admitted by the answer that such a judgment as the complaint describes was duly rendered and docketed, and a transcript of it duly filed; and that said judgment now remains of record, outstanding, and wholly unpaid, not vacated, satisfied, or otherwise discharged. That this judgment was not given and perfected on the 21 st of January, is of no consequence ; and a denial that it was done on that precise day puts at issue no material allegation of the complaint.

If so, a cause of action is admitted; if the allegations of the issuing of an execution, and of its return unsatisfied, are immaterial.

The undertaking is absolute and unconditional to pay to the plaintiff such sum as may for any cause be recovered against F. and M. Stoessel.

The recovery of judgment fixes the liability of the undertakers, and there is.no other condition to be complied with by the plaintiff as a pre-requisite to the right to sue them on the undertaking. (In the matter of Negus, 7 Wend. 499 ; N. Y. Central Ins. Co. v. Safford, 10 How. Pr. R. 347 ; Ball v. Gardner, 21 Wend. 270 ; Harris v. Hardy, 3 Hill, 393 ; Robinson’s Practice, vol. 2, chap, x.)

The judgment, even though it may not be in the alternative form required by the Code, is not void; it is merely erroneous, but conclusive until reversed or otherwise vacated. (Gallarati v. Orser, 4 Bosw. 94.)

The fact that M. E. Hammer received no consideration for signing the undertaking, does not affect the question of her liability. It is a statutory security; and her liability is according to its terms. (Gibbons v. Berhard, 3 Bosw. 635 ; Thompson v. Blanchard, 3 Corns. 335.)

The allegation that she is not indebted upon the undertaking in the sum of $612.64, is not responsive to any allegation in the complaint; and the uncontroverted allegations establish her liability for that amount.

If this view of the answer be correct, it neither controverts any material allegation in the complaint, nor sets up any new matter constituting a defense; and the order appealed from should be reversed, and judgment ordered for the plaintiff.

It is proper to, state, however, that on the argument of the appeal it was assumed that the answer controverted the allegation of the recovery of the judgment, if it was permissible to the defendant to controvert that fact, by saying she had no knowledge or information in regard to it sufficient to enable her to form a belief whether it was as the complaint averred it to be; and the court, intimating very decided views adverse to the counsel for the appellant, the respondent’s counsel was not heard, and expressed no desire to be heard. But we think the ánswer, on looking at its terms, so clearly frivolous, that any argument in its support must be necessarily unavailing.

Order reversed, and judgment ordered for the plaintiff.


text:
    E. M. Whitaker et al., Plaintiffs and Respondents v. Felix Desfosse, Defendant and Appellant.
    1. An order made "by a judge is not appealable until it is entered. That there is at the foot of it a written direction of the judge to enter it, makes no difference.
    2. But where an appeal has been argued without any objection or suggestion that the order has not been entered, the court will not assume that it has not been entered, but will decide the appeal on its merits.
    3. Whether a default should be excused, and the sufficiency'of the excuse, are matters of judicial discretion, and the decision of a judge thereon is not ' the subject of an appeal.
    4. An order directing a reference is appealable, when made in a case where a reference is not authorized by law.
    5. To authorize the ordering of a reference compulsorily, it must appear from the papers on which it is granted that some or one of the issues will require the examination of a long account.
    6. Where there is conflicting evidence before the judge "as to that point, his decision is final, and cannot be reviewed.
    7. Where the only evidence is an affidavit that the action is brought to recover the sum of $162, for goods sold and delivered, enough is not shown to confer authority to make the order.
    8. An order of reference will be treated on appeal as having been compulsorily made, where it recites that the motion was opposed, and there is nothing in the papers showing that it was assented to, although the order contains directions affecting the proceedings, otherwise than by referring the cause.
    (Before Hoffman, Woodbuff, Moncbief, Robertson and White, J. J.)
    Heard January 19,
    decided February 16, 1861.

      This purports to be an appeal from an order made “ at special- term at chambers,” by Mr. Justice Moncrief, on the 12th day of November, 1860, by which the plaintiffs were relieved from their default in not bringing the cause to trial at the October term, and vacating and setting aside “ the default, * * dismissing the complaint, &c.,” and ordering that the action be referred to Ambrose L. Pinney, Esq., as sole referee.
    O. A. House, for Appellant.

      Philip Levy, for Respondents.
   By the Court. Woodruff, J.

—It does not appear, by the papers submitted on this appeal, that the order appealed from has been entered. What purports to be an order, bears no date; it does not purport to be an order of the court; it is only authenticated by the words “ Enter this. Jas. Moncrief.” In short, it is a mere direction of the justice to enter the same as an order. From such a direction, no appeal will lie; nor have we any jurisdiction to review it. It is neither an order of the court, nor an or-" der of a judge, hut a direction, upon compliance with which alone it becomes an order. From orders which are such in form, when made by a judge, no appeal will lie, unless, nor until, they are entered with the clerk. Still less will an appeal lie from an order, merely because a judge has given a direction to enter it. (Code, § 350 ; Smith v. Dodd, 3 E. D. Smith, 215 ; Snyder v. Beyer, Id. 235 ; Nicholson v. Dunham, 1 Code R. 119 ; Marshall v. Francisco, 10 How. Pr. R. 147.) No such point was suggested on the argument of the appeal. The counsel treated the appeal as in this respect regular, and it is possible that the apparent error arises from the furnishing to the court copies made from the draft of the order, instead of a copy duly certified. We have, therefore, considered the appeal, and if there be such an irregularity that no jurisdiction has been acquired, counsel will doubtless again call it to our attention.

If the order had been entered, no appeal would lie from • that part of it which excuses the plaintiffs’ default and vacates the dismissal of the complaint. So far as the papers disclose the facts of the case, the plaintiffs were under an order to proceed to trial at the October term, or that in default thereof their complaint be dismissed. They did not so proceed to trial. Whether they should be excused, .and whether their excuse was sufficient, were questions in no wise affecting the merits of the action nor any substantial right of the defendant. They were questions to be disposed of according to the discretion of the judge, as matters of mere practice. In this respect, the motion was like a motion to open a default and give leave to answer, or granting or refusing leave to reply after the time for replying is past—from which no appeal lies. (Bolton v. De Peyster, 3 Code R. 141 ; Mead v. Mead, 2 E. D. Smith, 223 ; Thompson v. Starkweather, 2 Code R. 41 ; 1 Com. 43 ; Gale v. Vernon, 4 Sandf. 704 ; Jacobs v. Marshall, 6 Duer, 689.)

As to that part of the order which directs a reference, it is equally well settled that an order which directs a o reference of an action which the court has power to refer is not appealable. (Gray v. Fox, 1 Code R., N. S. 334 ; Upsdell v. Root, 3 Abbott’s Pr. R. 142 ; Bryan v. Brennon, 7 How. Pr. R. 359 ; Dean v. Empire State Mut. Ins. Co. 9 Id. 69 ; Smith v. Dodd, 3 E. D. Smith, 348.) And on the other hand, an order which directs a reference in a case in which a reference is not authorized by law, is appealable. (Cram v. Bradford, 4 Abb. Pr. R. 193.)

In Gray v. Fox, Edmonds, Justice, says that where the action is one in which the court has power to refer,- and in which the only question for review is whether the judge at special term erred in deciding that it would involve the examination of a long account, the order deciding the question is not appealable, but under the statute is final. This seems to us an extreme view of one side of the question, and would make the decision at special term final, and not subject to review in any action in which the examination of a long account may be necessary, although the judge at special term refers it, without even prima facie proof, that such an examination will be required. The section of the Code under which references are ordered, provides that “ the court may upon the application of either party, or of its own motion, * * * direct a reference, * * where the trial of an issue of fact shall require the examination of a long account on either side.” In Keeler v. The Poughkeepsie, &c., Plank Road Co., (10 How. Pr. R. 11,) Dean, Justice, says: “a reference can only be compelled when the court can see that the trial of the cause must necessarily involve the examination of a long account.” This seems to us an unwarranted limitation of the power to refer. We think it sufficient, if it appear that the trial of any one of the issues will involve such an examination; although the determination of some other issue may render it unnecessary to try the first named issue at all; as where there are two issues, one on an allegation of fraudulent settlement, and the other on the state of the accounts settled. Here, if the fraud be not established, no account will be examined, and so (as in the case cited) the court cannot certainly know, before the trial, that the trial of the cause “must necessarily” involve the examination of any account; and yet I have no doubt óf the power of the court to order a reference in that class of cases. And whether in cases of that description the whole of the issues should be referred or the taking of the account merely, and whether the account shall be taken before the trial of the other issues or after, are in the discretion of the court, to be governed by the particular circumstances of each case. . Sometimes evidence of the actual state of the accounts may tend to establish the fraud alleged in procuring the settlement; or in a claim to recover an insurance, taking an account of the actual loss may be important in determining an issue on a charge of fraudulent exaggeratión in the claim and proofs of loss, vitiating the policy. (Smith v. Dodd, supra ; Mills v. Thursby, 11 How. 113 ; Palmer v. Palmer, 13 Id. 363 ; Jackson v. De Forest, 14 Id. 81 ; Sheldon v. Wood, 1 Code R., N. S. 118.)

But it is nevertheless clear, we think, that it should appear that the trial of some or one of the issues in the action will require the examination of a long account, and that, unless that appear, the power to order a reference of the action for trial is wanting.

If, however, there is any,evidence laid before the court at special term that such an examination will be required, and that evidence is uncontradicted, or if there is a conflict of proofs created by counter affidavits, then the determination must be held final and conclusive, and this is' the meaning and intent of the cases.

In the present casé, the motion below was brought on to be heard pursuant to an order which required the defendant to show cause, founded on all the pleadings and proceedings in the cause, and also on affidavits therein referred to. The affidavit, of a copy of which we are furnished by the appellant, states that the action is brought to recover the sum of $162 for goods sold and delivered. The order appealed from purports to have been made “ on reading and filing the affidavits,” and does not mention the pleadings as having been used or referred to.

We have therefore, according to,the papers furnished us on "the argument of the appeal, no evidence whatever that the trial of the action will require the examination of a long account, except the statement that the action is brought to recover $162 for goods sold and delivered. The trial of such an action may or may not require such an examination; it will depend upon the items of the account and the nature of the issues made by the pleadings. If the items aré numerous and are alleged to have been sold at different times, and the answer denies the sale and delivery, then such an examination will be necessary, and so, also, if there be a counter-claim or set-off of numerous items in the answer.. But if the sale is of a single article, or several articles in one. sale, or if the answer admits the sale but alleges payment or other single ground of defense, then the taking of an account will not be necessary. (Stewart v. Elwell, 3 Code R. 139 ; Swift v. Wells, 2 How. Pr. R. 79 ; Miller v. Hooker, Id. 171.)

, Indeed we cannot say that, on the papers before us, the mere statement that the action is for goods sold and delivered is, prima facie, evidence that the taking- of any account will be required on the trial; and if not, then, upon that statement alone, no case was made which showed that the action is one which the court has power to refer without the consent of the parties-. The case was not made out at all which the Code describes as warranting a reference. It was not made to appear that the trial would require the examination of any account, nor were any facts shown which presented that question for judicial determination. If in any sense the making of the order was an adjudication that such an examination will -be required, then we say that it was not an adjudication upon a question raised by the papers or proofs before the judge, but it was made without any evidence sufficient to be the ground of any •judicial determination; it was not a decision of a question' raised by allegation on one side and denial on the other, and so inviting the decision of the judge upon the point as a question of fact, but it proceeded upon an assumption of the fact, when no proof was.produced to show that it existed, and when, if it did not exist, the judge had. no power to make the order.

We think, therefore, the odder appealed from, so far as it directed a reference, was' made when it did not appear that the action was one which, the court had power to refer, and that the order was .therefore appealable; and not only appealable, but for the foregoing reasons was erroneous, and should be reversed.

In thus disposing of this appeal,, it is just to say that, from the statements of counsel on the argument, and from the statements of Mr. Justice Moncrief, by whom the order was made, who has referred to the minutes, we learn that the order originally made was, so far as it directed a reference, made by consent of the counsel for the parties respectively appearing on the motion, and upon his understanding from them, that the case was a proper case for a reference, and that all parties were entirely willing that it should be referred. The order was accordingly drawn and entered, containing an explicit recital that the reference was by consent of the counsel for the parties respectively. Had the order remained in that form, it is obvious that it could not have been reviewed on appeal. But, after the decision of the motion, and the entry and service of the order, the defendant’s attorney moved to strike out of the order the recital that it was made by consent, and made an affidavit that he did not so consent, or in substance to that effect. To this motion the plaintiffs’ attorney made no opposition, and did not even attend; and by default the defendant’s attorney obtained an order striking out the recital above named, and leaving the order of reference to appear as if made on a contested motion, and. in spite of the defendant’s objection. From the order, as thus amended, the present appeal is taken; and we find ourselves constrained to consider its legality as it now appears, viz: as an order made in the face of objection.' The neglect of the plaintiffs’ attorney to attend to the motion to alter the order, and to lay the facts before the court as they appeared to the judge who made the order, has placed the plaintiffs under the necessity of sustaining an order in the form in which it now appears, and for the reasons above given has made it necessary for us to reverse an order which the judge, at special term, did not intend to make, and would not have made.

• The order appealed from must, so far as it directs a reference of the action, be reversed; in other respects it must be affirmed without costs on the appeal to either party.

Ordered accordingly.