text:
    Cazneau, et al. v. Bryant, et al.
    In an action of libel, where the defendant omits to answer, if it be shown to be highly probable that difficult questions of law may arise respecting the construction of the complaint, the legal effect of the default, upon its allegations as to the meaning of the words alleged to be libellous, and respecting the admissibility of evidence in mitigation, the court may, it seems, order the plaintiff’s damages to be assessed'by a jury at a stated Trial Term of the court, instead of directing them to be assessed by a sheriff’s jury.
    But when, after a default in not answering the complaint, a plaintiff moves for an order that his damages be assessed by a jury in open court, and that motion is denied, and an order is entered that they be assessed before a sheriff’s jury, such decision is conclusive in respect to any grounds for the application then existing and then known to the moving party, unless leave he given, in the order which is made, to renew the motion on new or further affidavits. If the decision made was erroneous, it can only be reviewed and corrected on appeal.
    Such a rule does not preclude a party from moving to modify or vacate an order on facts occurring after it is made, or even on facts existing at the time, and discovered subsequently, when no laches can he imputed to the moving party.
    Such a motion should not be granted on allegations which, if true, would reflect discreditably upon the conduct of the adverse party, his counsel and the jury, when the court is satisfied upon all the affidavits that such allegations are wholly unfounded, and that there is nothing in what has transpired warranting the belief that the plaintiff will not have an impartial hearing.
    (At Special Term,
    Jan. 5, 1857.
    Before Woodruff, J.)
    The plaintiff moves for an order that her damages be assessed by a jury before a Judge of the court, at a Circuit or Trial Term, or before a special or struck jury, and that the order directing them to be assessed by a jury before the sheriff be vacated. One of the plaintiffs, being a married woman, brings this action, to recover damages for an article published of and concerning her by the defendants, and alleged to be libellous. The defendants having failed to answer, the plaintiff applied to the court for the relief demanded by the complaint. On that application she moved for an order that the damages be assessed by a jury at a stated Trial Term of the court. This application was denied, and an order made directing the damages to be assessed by a sheriff’s jury.
    The plaintiff issued a writ, directing an assessment before the sheriff, and gave notice of executing the same.
    The plaintiff now moves, upon affidavits tending to show, as she alleges, that she cannot have an impartial assessment before the sheriff’s jury, and without having first obtained leave to renew the application for an order that the writ of inquiry be executed before a Judge at a regular trial of the court, or before a special or struck jury, and that the order heretofore entered be vacated.
   Woodruff, J.

The plaintiffs move that the writ of inquiry, issued upon the default of the defendants to answer, be executed before a Judge at a Trial Term of this court, or before a special or struck jury. The considerations urged by the plaintiffs’ counsel, upon the argument of the motion, would, I think, induce me to prder the writ of inquiry to be executed at the Trial Term if the case was before me upon an original application. (2 Johns. R. 107; 3 id. 153; 13 Wend. 658; Gra. Pr. 7952.)

But it appears by the papers that the same motion was heretofore made, to one of the Justices of this court, and the order refused, because sufficient reasons were not then, in his opinion, shown for a departure from the usual practice of the court. In respect to any grounds of the application then existing and then known to the moving party, this decision is conclusive. The Justices of this court do not separately review each other’s decisions, upon motions of this description, nor entertain a second motion to the same effect as a former, unless upon leave given to renew in the order which it is, in effect, sought to rehear. If the party be not satisfied with the decision made upon the papers before the Judge, he should appeal. (Code, § 323.) If, through inadvertanee, surprise, or for other reasons, he finds that the merits have been improperly or inaccurately exhibited on the hearing, he should procure leave to renew the application upon further papers, and this should be inserted in the order, (12 Wend. 290,) and should not acquiesce in the order and take proceedings under it. If he do thus proceed under the order, bis motion in that regard will be deemed waived.

The consequence of this view of the subject is, that in regard to the alleged unsuitableness of sending an inquiry into the damage sustained by a female, by injury to her character, to a sheriff’s jury, the probability that difficult questions -of law may arise respecting the construction of the complaint, the legal effect of the default upon the allegations in the complaint as -to the meaning of the alleged libellous words, and respecting the admissibility of evidence in mitigation, and all like grounds upon which this motion is urged, I am concluded by the former decision, and however I may deem it a proper case for an assessment before a Judge. I cannot reverse the former order upon any such grounds. The plaintiff acquiesced in the order, issued the writ directing an assessment by the sheriff, and noticed the same for execution.

This, however, would not prevent a motion to modify or vacate, founded on matters arising since the former motion, or matters since then discovered, (no laches being imputable to the plaintiffs.) In the affidavits submitted, the plaintiffs’ attorney does undoubtedly state circumstances which, unexplained, might awaken suspicion that previous conversation had been held with some of the jury attending at the time appointed for the assessment, and this led the plaintiffs’ attorney to postpone the taking of the assessment and make this second application to the court. But these circumstances are not only fully explained, and most clearly exonerate the defendants, and their counsel and the jury, from any imputation of unfairness, but show that there is, in truth, no ground of suspicion. If any inference is warranted by the conversation disclosed, it is rather that there was a bias on the part of one or more of the jurors against, rather than for, the defendants. This, however, I do not think justified by what transpired.

To grant this motion, under such circumstances, would be unjustly reflecting upon the conduct of defendants, the counsel, and the jury, when I do not see, in what transpired, any thing to warrant the belief that the plaintiffs would not have had an impartial hearing.

If any irregularity shall arise, in the taking of the assessment, which works injustice, the party aggrieved will obtain relief. To anticipate this would be to place the court in a situation in which we could not, with propriety, send any case to the sheriff for assessment.

The motion must, therefore, be denied, but without costs.


source: Caselaw Access Project

license: Public Domain

text:
    Wilde v. A. and L. Joel, and Wm. Leeds.
    In ascertaining the damages on a reference upon the discharge of an injunction, the question arises, whether any other allowance can be made for costs or counsel fees, than that which the Code permits to be recovered by a successful party against his adversary ?
    "There may be allowed to the prevailing party, upon the judgment, certain sums by way of indemnity for his expenses in the action, which allowances are in this act termed costs.” The measure of compensation between attorney and client is left to the agreement, express or implied, of the parties. (Code, § 303.)

      Held, that the import of this provision is, that the unsuccessful party shall only be subjected to the charges specified as costs, where the action takes the ordin- . ary course. But where there is a special contract as to damages, (and the injunction bond amounts to this in fact,) it will control; it will afford a new rule of estimate, and is not to be affected by the ordinary rates of allowance.
    Another question, then arises, whether, if cqnnsel fees are allowable, they can only "be allowed when actually paid, as it is the damage sustained which is to be repaid, not any contingent liability ?
    The Code has left the compensation of attorney and counsel to the operation of any agreement express or implied. Counsel can have the same remedy for services rendered, which they possessed before its passage.
    If a party enjoined, has, by reason thereof incurred a liability, and the claim thereon is reasonable, a bond of indemnity would appear to cover such a liability as much as an actual advance; therefore, counsel fees, although unpaid, if reasonable, can be recovered in the shape of damages, in an action upon an injunction bond.
    And then another important question arises, what is the effect of the Code as to the mode of ascertaining damages by an assessment under an order of reference ? What does the report, if confirmed, settle ? Can it be followed by a judgment for payment of the amount ? If it can, as to the principal and party to the action, can it be as to the sureties ? or is the only remedy an action on the undertaking ?

      Held, that under the provisions of the Code on this subject, a reference establishes the amount of damages, so that they become finally liquidated as between the parties. Where there are sureties, that fact shows the propriety of directing notice to be given to them. Legal defences, which are wholly independent, will arise, and may be taken in the action on the undertaking. There is no authority in the Code to order a judgment upon the bond for the amount ascertained by the reference to be payable, even against the plaintiff and obligor. It te, therefore, the safest course to bring an action upon the undertaking.
    Although the provisions of the Revised Statutes, (2 R. S. 190, 195,) which are presumed to be in force, that the Chancellor shall direct the delivery of any bond executed under the provisions of that article to the person entitled to the benefit thereof, for prosecution, whenever tibe condition thereof shall be broken, or the circumstances of the case shall require such delivery, yet the court might well decline the delivery up of an undertaking on file in these cases, (see Code, § 423,) as an inspection of it is all that is necessary, in order to draw the complaint; and upon the trial the clerk can be subpoenaed to produce it in case of dispute. The items disallowed and allowed by the court seriatim, as damages on dissolving the injunction in this case, will be found stated at the conclusion of the opinion. (Reported in 15 How. Pr. R. 329.)
    (At General Term,
    January, 1857.
    Before Duer, Bosworth, Hoffman, Slosson and Woodruff, J.J.)


author: Woodruff, J.

text:
    D. C. Scott, and others v. Samuel Nevius.
    Ho order will be made on the mere motion of a receiver appointed under proceedings supplementary to an execution, that he may sell the estate of the judgment-debtor, when such estate consists only of the debtor’s interest as cestui que trust under a will by which the testator conveys his property to executors in trust, with directions to convert it into money, and divide the money into a eertain number of equal shares, and invest one of said shares and apply the interest and income thereof to the judgment-debtor daring his natural life, and upon his death distribute the principal with all unappropriated income to and among the said judgmeut-debtore,then living lawful issue.
    If the judgment-creditors, or such receiver as representing them, can derive any benefit from the provisions of such a will, it must be by a proceeding to which the executor is a part)’, and in which the benefit sought must be derived, nof from a sale, but from an order in the nature of a sequestration of such portion of the annual income of the fund in question, as is not required for the suitable support and maintenance of the judgment-debtor, taking into view his condition in life, his health and other circumstances, and the condition of his family if any he have.
    The interest of the judgment-debtor is inalienable. If there was already an accumulation of income in the hands of the executors, (which there is not,) so much of it might, probably, be reached by an order in this proceeding, or by a proceeding under section 294 of the Code, as was not necessary for the proper support and maintenance of the judgment-debtor, taking luto view the considerations above suggested.
    But a possible or probable future surplus cannot be anticipated and reached by a proceeding instituted for that purpose, before it has accrued or come into existence But this rule does not prevent a court, on a complaint properly framed, from giving such directions as will secure to a judgment-creditor such portion of the surplus as may remain after appropriating sufficient for the proper support of the debtor, to be ascertained and fixed, upon a reference ordered for that purpose. Motion denied.
    (At Chambers,
    January 7, 1857.
    Before Woodruff, J.)
    The motion made, and the circumstances under which it was made, and the facts on which it was based, are fully stated in the opinion of the Judge by whom it was heard and decided.
   Woodruff, J.

Proceedings supplementary to execution having been instituted herein by the plaintiff, under section 292 of the Code of Procedure, an order of reference was made for the examination of the defendant, and the taking of proofs in relation to the property of the defendant, and by the report of the referee, and the examination taken before him, it appears that a brother of the defendant, Russell H. Nevius, heretofore, on or about November 26th, 1853, died, leaving a last will and testament, by which, among other things therein contained, he devised and bequeathed all the rest and residue of his estate, real and personal, to his executors therein named, to and for the purposes following, that is to say, to sell and convey the real estate in fee'simple, and to convert the personal property into money, and after deducting expenses, etc., to divide the net proceeds of all the said residuary estate into ten equal shares for the purposes of distribution as thereinafter directed.

Among those directions, the will proceeds: “ 35th. I order and direct my executors to invest one other of said shares, and to apply the interest and income thereof to my brother Samuel,” (the above defendant,) “ during his natural life, and upon his death, to distribute and pay over said principal sum, with all unappropriated income, to and among his then living lawful issue, each then living child of his taking one equal share thereof, and the issue of any deceased child of his taking by representation the share their parent would have taken if then living.”

It further appears that the will has been proved, and letters testamentary granted to David H. Nevius, executor. That the estate has been so far converted and distributed, that about $28,000 has been invested on account of that share of which the income is directed to be applied to the use of the above-named defendant; and the executor, on his examination as a witness, testifies that he thinks that when the residue of the estate is converted and distributed, “there will be at least $22,000 more to be invested on the same account.” The undivided portion óf the estate, or a portion of it, is productive, and none of the income therefrom has yet been applied to the use of the defendant; but, as the executor testifies, “it goes into the general fund' of the estate, to be paid over as principal or income hereafter, as he may be advised.”

The income of the $28,000 already distributed and invested is “ about $2,000 per annum,” and all the income yet accrued and collected thereon has been paid over to the defendant, and the executor has advanced, he says, to the defendant about $1,100 not yet realized from the share invested for his benefit.

A receiver, Mr. Oliver- D. Cooke, having been appointed in the proceedings supplementary to execution, such receiver now applies by petition, stating that all the debts, property, equitable interests, rights, and things in action of the defendant, vested in him as such receiver, are those mentioned in the report of the referee, as above set forth. That the interest of the judgment creditors requires that the same should be sold, and that he, the receiver, is desirous to make the said sale, and close the trusts of his receivership, according to law, without delay, and without incurring personal responsibility.

He therefore prays that an order be granted permitting him to make the said sale, and that such further order be made as the court may see fit to grant.

Notice of the presentation of this petition, and of the motion that the prayer be granted, is served upon the attorney for the defendant, and also upon the executor, David H. Nevius, both of whom appear by their counsel and oppose the motion.

Although this proceeding is in the name of the receiver only, by his own attorney, and is apparently taken for the purpose of closing his trust and relieving him from any further responsibility, and although no notice of the application appears by the papers to have been served upon the plaintiffs in the action, the judgment creditors, whose interests are chiefly concerned therein, the motion appeared to be urged on the argument as made for their benefit, and was, as I understand, supported by their counsel, in fact, and for the purpose of realizing, by a sale, or under the further relief prayed for, the satisfaction of their debt out of the fund in the hands of the executors.

It might be a summary disposition of this application to say, that if the judgment debtor has, under the will of his deceased brother, an interest which has passed to the receiver, and is the subject of sale and transfer, no injustice would be done by granting the order at the instance of the plaintiffs; and if he have no such interest, then granting the order would work no injustice, because the purchaser would buy at his peril, and would take nothing by his purchase.

But this would be a most unsatisfactory mode of disposing of the subject, and if, in the view of the court, the debtor has not such an interest as may be sold and transferred, the authority of the court ought not to be given to an act which would be of no substantial benefit to the creditor, and might be the cause of embarrassment and litigation to the executor.

My conclusions, after careful reflection on the subject, may be very briefly stated, and they lead to the result that no such order as is sought by the receiver, nor, indeed, any order upon the merits ought to be made in the present form of application to the court. If the creditors can derive any benefit from the provisions of the will of the testator, above referred to, it must be by a proceeding to which the executor should be a party, and in which the benefit sought must be derived, not from a sale, but from an order in. the nature of a sequestration of such portion of the annual income of the fund in question as is not required for the suitable support and maintenance of the judgment debtor, taking into view his condition in life, his health, and other circumstances, and the condition of his family, if any he have, in relation to all which I find nothing in the papers before me.

Although the. will directs the whole estate to be converted into personalty, the interest of the cestui que trust is inalienable. Indeed, he takes no interest in the principal fund, except only the right to compel the execution of the trust, and the application of the income to his use. There is, therefore, nothing which can pass by assignment to. the receiver, or which can be sold by him, so long as there is no income in the hands of the executor unappropriated. (1 R. S. [773] § 2; ib. [729] § 63.)

That the inalienability of the defendant’s interest is the same as if the trust was of that estate Only, see the above § 2, and also Hallett v. Thompson, (5 Paige, 583); Kane v. Gott, (24 Wend. 641); Clute, et al. v. Bool, (8 Paige, 83); Degraw v. Clason, (11 Paige, 136,) and Rider v Mason, (4 Sandf. Ch. Rep. 352).

Although some doubt has been expressed in Arnold v. Gilbert, (5 Barb. S. Ct. Rep. 199,) and Cruger v. Cruger, (id. 267,) in regard to the extent to, which the second section of 1 R. S. p. 773, above referred to, has made the interest of the cestui que trust in personal estate held in trust inalienable, I think the views expressed in the cases above cited are sound so far, at least, that when construed in connection with the statute in relation to creditor’s bills, (2 R. S. p. 174, § 38,) which exempts property held in trust from discovery by creditor’s bills, the most favorable claim the creditors .can urge is, that the surplus beyond what is required for the maintenance of the debtor is alone liable.

The cases above referred to, however, satisfactorily show that such surplus is, under § 57, (1 Rev. Stat., p. 729,) liable to be reached in equity, and applied to the satisfaction of the debts of the cestui que trust trust.

The provision in the will directing the unappropriated income to be divided in, and among his issue, does not alter the' case. There is no discretion given to the executors to withhold any part of the income; they are directed to apply it all to his use. He could compel them to do so. (See above cases.) In any other view, it would be a direction to accumulate beyond the period allowed by law, which would be invalid, and might perhaps invalidate the whole trust.

The terms of this direction would be fully satisfied, by supposing the intent to be, that if, at the time of his death, some uncollected or unapplied balance remained in their hands, which the cestui que trust had not yet received, that should be divided with the principal; but this would not affect his right to require the continued application of the whole as it accrues, according to the first and chief direction contained in the provision.

The case of Hallett v. Thompson, Clute v. Bool, and Degraw v. Clason, also show that § 38 of the Statute, in relation to creditors’ bills, forms no impediment to the reaching of this surplus by the creditors. See also Bryan v. Knickerbocker, (1 Barb. Ch. R. 427.)

But though of opinion that if there be a surplus in the'present case, beyond what is reasonably necessary for the support of the debtor, it is liable to be taken to pay his debts, it is not to be reached by this motion. A proper action should be brought in the nature of a creditor’s bill. If there was already an accumulation in the hands of the executors, it might doubtless be reached by an order in this proceeding, or by a proceeding under section 294; but it has been held that it cannot be anticipated. (Clute v. Bool, (& 1 Barb. Ch. 427.) But this does not import that,, on a proper bill, such surplus may not, by proper directions, be secured to the creditor. On the contrary, the court may order a reference to ascertain and fix the amount necessary for his support, and direct the executors to pay over the surplus fpr the satisfaction of the judgment. Such was the course pursued in Sillick v. Mason, before Vice-Chancellor Sanford. (See 2 Barb. Ch. 79.)

Whether the income of the fund now in question is now, or will be hereafter, such as to yield any surplus, it is impossible upon the facts now before me to say. If an action be commenced hereafter by the plaintiffs to reach any such surplus, all proper inquiries will be directed into the condition, circumstances, and wants of the defendant and his family, if any he have.

The present motion must be denied, but, under the circumstances, without costs to the defendant. The conduct of the defendant on his examination, was of a character to deprive him personally of any claim to indulgence, certainly in respect to the matter of costs. But as to the executor who was called before the court by this petition, if it appeared that there was any fund in the hands of the receiver, he would be entitled to costs out of such fund; and had the papers disclosed that the creditor in fact made the present motion, it would be just that he should pay such costs. The receiver ought not to be required to pay costs personally, and therefore the motion will be denied, without costs.


text:
    Graham v. Colburn.
    The Judge before whom proceedings supplementary to execution, under § 292 of the Code, are pending, has no power to order a commission to be issued for the examination of witnesses residing out of the state, to talce testimony to be used on such proceedings. (Reported in 14 How. Pr. R. 52.)
    (At Special Term,
    February, 1857.
    Before Bosworth, J.)


text:
    Myers v. Machado.
    An. averment in a complaint upon a protested bill of exchange, that the plaintiff is duly authorized to bring an action on behalf of a foreign banking company, (the owners of the bill,) as one of its registered officers, is a conclusion of law merely. He should set forth the existence and terms of the act under which the bank was organized, and an authority given to him as one of its registered officers to sue on its behalf. Without-this the complaint Is insufficient.
    If it should appear that such an authority was given, the plaintiff could maintain the action in his own name, on behalf of the bank, not only on grounds of international comity, but ás a trustee of an express trust, within a reasonable interpretation of the Code. (Reported in 14 How. Pr. R. 149.)
    (At Special Term,
    February, 1857.
    Before Duer, J.)


text:
    Corey v. Mann.
    A complaint for damages, in consequence of injuries received by the plaintiff, by the giving way of and falling down of a back stoop and stairs, on a certain building owned by the defendant, which alleged that said stoop and stairs were in a bad condition and repair; that the defendant, as owner, was bound to keep the premises, and especially the said stoop and stairs, in a good condition and repair, and had neglected and refused to do so; and that in consequence of such neglect and refusal, the plaintiff had sustained the injuries, (specifying them,) complained of, and demands judgment for $5,000.

      Held, bad on demurrer, because it appeared from the complaint, that the premises were occupied, not by the defendant, but by third persons, and consequently it was upon the tenants, and not upon the defendant, as owner and landlord, that the duty of keeping them in repair presumptively rested. Besides, the averment that the defendant was bound to repair, without stating any facts from which the obligation resulted, was plainly insufficient, it being a conclusion of law. (Reported in 14 How. Pr. R. 163.)
    (At Special Term,
    February, 1857.
    Before Duer, J.)


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    Murphy v. G. F. & M. J. Merchant.
    An allegation in the complaint that the note was made by the defendant, AB_, and “for a further inducement to the plaintiff to accept the same, was indorsed by the defendant, C-D-, and was then delivered to and indorsed by the plaintiff,” held, insufficient to charge G-D-, the indorser, with liability, where the note was made payable to order of the plaintiff.
    It seems, that it is very doubtful whether any evidence of a parol agreement, varying the legal rights or obligation of the payee and second indorser, can be admitted. (Reported in 14 How. Pr. R. 189.)
    (At Special Term,
    February, 1857.
    Before Duer, J.)


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    Sheldon, et al. v. Wood, et al.
    Where a case, upon a report of referees, was made before the decision, (in 3 Kern. 341,) which does not conform to that decision, held, that it might be made to conform to that rule after the determination of the General Term on appeal,

      This court hold, that they have the power, under § 174 of the Code, to allow exceptions to the report of referees, etc., to be filed nunc pro tunc, after the ten days fixed by the Code (§ 272 [227j) have elapsed. (Reported in 14 How. Pr. E. 18.)

    (At Special Term,
    March, 1857.
    Before Hoffman, J.)

       Notice of the judgment was served on the 13th of March, 1856. The motion for leave to file exceptions to the decision of the referee, nunc pro tunc, was made in March, 1857. The decision in Sheldon, et al v. Wood, was probably made on the strength of Seeley v. Prichard, (3 Duer, 669.) Subsequent to-tlie latter decision the case of Humphrey v. Chamberlin, (1 Kern. 274,) was reported. At the June General Term, 1858, the Superior Court, held before Bosworth, Hoffman, Slosson, Woodruff, and Pierrepont, J.J., decided (Hoffman, J., dissenting), that the eonrt had no power to enlarge the time prescribed by statute for taking an appeal from the Special Term. (The case of Fry v. Bennett, not yet reported). If that de cisión be correct, it may well be doubted whether the court has any more power to allow exceptions to the final decision of the court or of a referee to be filed, after the expiration of the time given by the Code, than it has to allow exceptions to be taken after judgment to a' decision made during the progress of the trial._ Rep.


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    La Farge v. The La Farge Fire Ins. Co.
    The president or other officer of a corporation which is a party to an action, is not bound to produce on the trial the books and papers of the corporation, under a subpoena duces team, issued by the adverse party.
    He has no such property in or control over them as gives the right, or makes it his duty to produce them.
    Their proper place is in the office, in which the business is transacted to which they relate. The proper remedy of a party who is entitled to use their contents as evidence, is to obtain sworn copies, or an inspection and copy, under the Revised Statutes or the Code. (Reported in 14 How. Pr. R. 26.)
    (At General Term,
    April, 1857.
    Before Duer, Bosworth, and Woodruff, J.J.)


text:
    Borrowe v. Milbank.
    A lot of land, subject to a lease containing a covenant of renewal, at a rent to be agreed upon by the parties, or fixed by arbitration, is not an “ unencumbered” lot, and when sold to the tenant holding the covenant such lot cannot be deemed to have been sold as an '* unencumbered'’ lot.

      To state, in a pleading, the nature and source of the information upon which the party relies in making an averment of facts on information and belief, does not vitiate an independent averment of such facts.
    Nor does it detract from the force of such averment, that the clause of the pleading in which it occurs, refers, e. g., by the use of the word “ therefore,” to the antecedent clauses, in which the grounds of the information and belief are stated.
    In an action brought to set aside an award of an umpire, to whom it was submitted to value a lot of land at its full and fair worth at private sale, considering the same as an “ unencumbered lot,” the complaint charged that his valuation “ was not made upon considering the same as an unencumbered lot, but . . . . at a less value, and such valuation was without his powers as umpire.”

      Held, upon demurrer, that the complaint sufficiently showed that the umpire had exceeded his authority.
    When an arbitrator or umpire exceeds his authority, the effect of his act to avoid his award is the same, whether the error was committed consciously or through mistake. (Reported in 6 Abb. Pr. R. 28.)
    (At General Term,
    April, 1857.
    Before Oakley, Ch. J., Duer, Bosworih, Slosson, and Woodruff, J.J.)


text:
    Burling v. Ogden.
    On an analysis of § 399 of the Code, as amended on the 13th of April, 1857, it may be understood as follows:
    1st. A party to an action or proceeding, and a party for whose immediate benefit a suit is prosecuted or defended, may be examined as a witness in his own behalf, the same as another witness, in all cases, except when the adverse party, or adverse person in Interest is not living, or, when the opposite party is an assignee, administrator, executor, or legal representative of a deceased person.
    2d. Ten days’ notice, in writing, of such examination must be given to the adverse party, specifying the points upon which the party or person is intended to be examined.
    But in special proceedings of a summary nature, such reasonable notice shall be given, as shall be prescribed by the court or Judge.
    3d. When notice of such examination is given, and the opposite party resides out of the jurisdiction of the court, such party may be examined by commission issued and executed as now provided by law.
    4th. If a party or person in interest has been examined under this section, the other party or person in interest may offer himself as a witness in his own behalf, and shall be so received.
    Now, the ten days’ notice, and the points of examination, apply only to the party or person in interest offering himself as a witness, on the original application, in his own behalf—not to the opposite party; the law admits Mm, of course, and at large upon all the issues, whether his examination is upon commission or otherwise. (Reported in 14 How. Pr. R. 75.)
    (At Special Term,
    May, 1857.
    Before Hoffman, J.)


text:
    Berrian v. The Methodist Society in New York.
    The trustees of a religious corporation, and officers appointed by them, whose elections and appointments were in conformity with the formalities prescribed by the statute, and who have, in fact, acted, and are acting as such, are at least officers de facto, upon whom alone a valid service by process can be made to commence an action against such corporation.
    When an action against such a corporation was commenced in the Superior Court by a service of summons upon persons claiming to be officers, but not in possession of the offices, and the officers de facto, after judgment by default, moved to vacate the judgment and set aside the proceedings, held,

    1st. That all the proceedings must be set aside as irregular.
    2d. That the title of the acting trustees could not be investigated on such a motion.
    3d. That if they were claimed to be intruders, the proper proceedings to determine that question, and obtain such an adjudication, and their removal, and a new election in a lawful manner, must be taken and prosecuted elsewhere. That the Superior Court had no jurisdiction of an action or proceedings instituted to obtain such relief.
    (At Special Term,
    May, 1857.
    Before Bosworth, J.)
    Bosworth, J., so held in this case, which is reported in 4 Abb. Pr. R. 424, and made an order vacating all the proceedings, with $10 costs.


text:
    Conover v. Wood.
    It is contempt of court for a person who knows of the existence of an order for his arrest, in the hands of an officer intending to serve the same upon him, to prevent wilfully, and by open force, either made or directed, the service of such process.
    But it is essential to constitute the offence in such case, that the party should be aware that the officer had an order which he might be desirous to execute.
    Where, on an order to show cause why a party should not be punished for contempt in resisting the service of process, the opposing affidavits render it clear that the party was innocent of any intention to resist service, the court will not direct a reference to enable the moving party to introduce proofs of such intention. (Re-> ported in 5 Abb. Pr. R. 84.)
    (At Special Term,
    June, 1857.
    Before Hoffman, J.)


text:
    Bennett v. Le Roy.
    No court in this state can rightfully enjoin a party from proceeding in a suit in another court of the state, having equal power to grant, in such suit, the relief sought hy the complaint on which such injunction is asked.
    If, in such a ease, a party who has brought an action in one court be enjoined from proceeding further therein by an injunction issued from another court of co-ordinate powers, and if he proceed, notwithstanding such injunction, his proceedings will not be set aside for that cause, as irregular.
    But, in furtherance of justice, the party prejudiced by them will be relieved on such terms as may be just, but only upon consenting to a dissolution of the injunction, so far as it may interfere with the further prosecution of such action.
    (At Special Term,
    June, 1857.
    Before Bosworth, J.)
    This case is reported in 5 Abb. Pr. R. p. 55, and in 14 How. Pr. R. 178. Bosworth, J., made an order on defendant’s motion to vacate the judgment in this action, that he be allowed to answer in this action in twenty days, on his paying within that time the costs of entering the judgment, and of subsequent proceedings thereon, including the sheriff’s fees on the execution issued on such judgment, and $10 costs of opposing the motion, and on serving with the answer a stipulation that an order be entered in the action in the Supreme Court, (the court which had enjoined the plaintiff in the above action from proceeding further therein,) so far modifying the said injunction, as to leave the plaintiff in this action at liberty to proceed therein, and also providing that if the defendant did not avail himself of such conditions by complying therewith that this motion be denied with $10 costs. The order so made was served on the 3d of July. On the same day, the defendant obtained from a Justice of the Supreme Court, an order in the action in that court, requiring the plaintiff and her attorneys to show cause why they should not be punished for a contempt of that court, by reason of having entered up judgment in the action in this court, and issued execution thereon.
    The plaintiff, by her counsel, claiming that the motion thus about to be made in the Supreme Court, is a virtual refusal to accept, or an election not to accept the relief granted to the de-. fendant by the order made by Justice Bosworth, upon the conditions annexed thereto; or that a motion to punish the plaintiff and her attorneys for the alleged contempt, is inconsistent with the spirit and intent of such order, and that the twenty days allowed to the defendant to stipulate and answer herein, were not given to enable him to take other measures in the mean time which might render the conditions, upon which the indulgence was granted to him, of no avail; subsequently, on notice, and on affidavits, showing the proceedings before Justice Bosworth and the proceedings taken by the defendant subsequent to the above-mentioned order, applied to Mr. Justice Woodruff for an order vacating the order vacating the judgment, and for other relief.
    Mr. Justice Woodruff, after hearing the parties, held, 1st. That the Superior Court would not require the defendant to waive his motion in the Supreme Court, as the condition on which he would be allowed to come in and answer in the action in this court. The question, whether any contempt of the Supreme Court had been committed by the plaintiff, must be left to be adjudicated in that court.
    2d. That the order of the Superior Court, holding the judgment regular, yet allowing the defendant to come in upon terms, did not impair or affect the right of the defendant to pursue the proceedings instituted by him in 'the Supreme Court on the alleged contempt. When a court of equity has restrained a party from proceeding at law, and he, notwithstanding, proceeds, it is discretionary with the court of law, to sustain or vacate his proceedings therein. But the exercise of this discretion does not preclude the court of equity from inquiring into the contempt.
    3d. That the former order of the Superior Court should he so modified as to require the defendant to elect instanter, instead of within twenty days, whether the judgment in this action should be continued in force, or opened on the terms specified. (Reported in 5 Abb. Pr. R. 156.)
    (At Special Term, June, 1857. Before Bosworth, J.)


text:
    Moore v. Westervelt, late Sheriff.
    The court has no power to order a judgment to he entered nunc pro tune, as of a date prior to the actual judgment, to enable a party to affect the amount of his costs.
    A party is entitled to have his costs adjusted, according to the Code, as it existed at the time of the verdict, as it respects all items prior to that date, when the verdict is followed by a judgment entered thereon. The “ recovery,” which, by § 304, gives the right to such costs, means the verdict. (Reported in 14 Sow. Pr. R. 279.)
    (At General Term,
    July, 1857.
    Before Duer, Ch. J., Hoffman, Woodruff, and Slosson, J.J.)


text:
    White v. The Mayor, etc., of New York.
    Under section 172 of the Code, a plaintiff cannot amend his complaint more than once, as a matter of course, without leave of the court.
    If he amends it before answer or demurrer, his right to amend of course is exhausted; and if his amended complaint is demurred to, lie cannot amend it a second time without leave of the court. (Reported in 5 Abb. Pr. R. 322.)
    (At Special Term,
    October, 1857.
    Before Bosworth, J.)


text:
    Hopkins v. Adams.
    An action for the recovery of possession of specific personal property wrongfully detained, against a sole defendant, wholly abates if the defendant dies before verdict or judgment; and the court has no power in such case to order the action to be continued against the personal representatives of the defendant. (Reported in 6 Abb. Pr. R. 361.)
    (At General Term,
    October, 1857.
    Before Duer, Ch. J., and Bosworth and Woodruff, J.J.)


text:
    Gaughe v. Laroche.
    On an application for an examination of an adverse party as a witness under section 391 of the Code, it is not the practice to make an order in such cases, that such party attend and be examined. The notice provided for by that section, specifying the time, place, and the Judge before whom the examination is to be heard, is sufficient without an order. The 392d section seems to require that a summons shall be issued by the Judge to compel the attendance of the party, such as was issued under the Revised Statutes, upon a conditional examination. (2 R. S. 393, § 10.)
    Therefore, both the notice under section 391 of the Code, and the summons under the Revised Statutes, appear necessary, at least to lay the ground for a punishment, or process to punish, as for a contempt.
    If the party refuse to attend and testify, he maybe punished as for a contempt, and his complaint, answer, or reply may be stricken out. (§ 394.)
    Thus, then; if the applicant finds it most important to have the actual examination, he may procure the attendance by the warrant under the statute. If he is content with the remedy given by the 894tli section, he may adopt that, and have the pleadings of such party stricken out, and no doubt may proceed as for contempt, or may have either mode of redress. Where it is required that the party to be examined produce books and papers, the proper course is the service of a subpoena duces lecum. (Reported in 14 How. Pr. R. 451.)
    (At Special Term,
    October, 1857.
    Before Hoffman, J.)


text:
    Considerant v. Brisbane.
    In a complaint upon a written instrument, by which the defendant promised to pay to the plaintiff, “ as executive agent of the company, Bureau, Guillon, Godin & Co., the sum of $5000, for which I am to receive stock of said company, known as premium stock, (actions a primh,) to the amount of $5000, value received,” it is necessary to allege that the stock was delivered, or an offer to deliver it, on the day on which the $5000 was payable, or it will be bad on demurrer.
    Such an instrument is not a negotiable promissory note, and cannot be declared on as such. (Reported in 14 How. Pr. R. 487.)
    (At General Term,
    Oct., 1857.
    Before Duer, Ch. J., Bosworth, Hoffman, Slosson and Woodruff, J.J.)


text:
    Patterson v. Perry, et al.
    The basis of an order of interpleader to be made under section 122 of the Code, is the admission and office of the stakeholder. If he denies a liability beyond that admission, and such is claimed against him, it becomes a subject of litigation, and the remedy given by this section is not applicable. (Reported in 14 How. Pr. R. 505.)
    (At Special Term,
    Oct., 1857.
    Before Hoffman, J.)


text:
    Willett v. Stringer, et al.
    When, upon an appeal, an undertaking has been given, fully complying with the statute, and the appeal is perfected, the appellant does not remain responsible for the consequences of the misfortune and insolvency of his sureties.
    But there is a substantial distinction between the case of an injunction and that of an appeal. In the case of an injunction, if the protection, by the security substituted for an injunction, should become entirely lost, as by the insolvency of all the obligors, the right to the injunction would be restored; and if it is partially diminished, the question remains open, as it was originally, what will afford the party reasonable indemnity.
    It is a question of judicial discretion, whether to allow a bond given on a claim of personal property, or for an injunction, to remain, where one surety has become insolvent and the remaining surety solvent, or direct that fresh surety be given. (Eeported in 15 How. Pr. E. 310.)
    (At Special Term,
    Oct., 1856.
    Before Hoffman, J.)


text:
    Hecker v. Mitchell.
    It is no defence to an action on a promissory note that one of the plaintiffs has commenced an action upon the note in another state, although an attachment has been issued therein, which has been levied upon property sufficient to satisfy the demand.
    In an action by an indorsee against the maker of a promissory note, an answer which denies knowledge, etc., sufficient to form a belief whether the allegation of the complaint that the payee of the note indorsed it to the plaintiff be true, is not frivolous.
    Such answer may be false, but, if so, the remedy is by motion to strike it out, not by motion for judgment on account of its frivolousness.
    Where an answer contained two defences, and the plaintiff moved for judgment for the frivolousness of the answer, and one defence was held good and the other frivolous;—Held, that the latter defence might be stricken out, under the notice that the plaintiff would ask other and further relief, etc. (Eeported in 6 Abb. Pr. E. 463.)
    (At Special Term,
    Nov., 1857.
    Before Woodruff, J.)


text:
    Dresser v. Van Pelt.
    Where the defendant, by an order in the Supreme Court, in proceedings supplementary to execution, granted by a Justice of that court, in the first judicial district, was required to appear before the said Justice, (naming him,) or one of the other Justices of the said Supreme Court, and the defendant appeared before the said Justice first named on the return day, and an order of reference was made without objection to any irregularity in the order,

      Held, assuming that the clause in the order to appear before the Justice making the order, or before one of the other Justices, etc., was an irregularity, it could not affect the substantial rights of the party; that'the alternative clause was mere surplusage, and especially that the party could not set up the objection by plea or demurrer in another action.

      The supplementary proceedings under section 292, et seq. sections of the Code, is a proceeding in an action to enforce a judgment, it is not a special proceeding within section 3 of the Code.
    The true sense and interpretation of the 27th section of the Code appear to be this: A proceeding commenced in the first judicial district by any Judge competent to institute it therein may be continued in such district before any other Judge competent to have commenced it.
    The case of the Knickerbocker Bank, (19 Barb. 602,) is authority decisive that an order, the title of which imports that it was made at Special Term, but actually made while the Judge was engaged in a trial, during an interval or interruption of it, is authorized and regular, although the order is one properly and ordinarily made at chambers.
    When a Judge directs process, (viz., an attachment,) to issue, and has jurisdiction to so order, and when any Judge of the same court, who is found at the place designated in the attachment, on the day specified in it for appearing thereto, has jurisdiction, when the place and time to appear are distinctly pointed out in such process, the mere fact that the party is directed by it to be brought before the Judge when holding a court at Special Term, instead of before the Judge at chambers, does not render the proceeding or process void. (Reported in 15 How. Pr. R. 19.)
    (At General Term,
    November, 1857.
    Before Duer, Ch. J., Bosworth, Hoffman, Slosson, and Woodruff, J.J.)


text:
    Wesley v. Bennett.
    On demurrer to a complaint in an action for libel, containing the averment authorized by section 164 of the Code, that the words complained of were published “ concerning the plaintiff,” the court is bound to assume that the article referred to the plaintiff; and the plaintiff, under such a complaint, may prove they were spoken of and concerning him.
    Where the words alleged in a complaint in an action for libel are fairly susceptible of a construction which would render them libellous, the complaint will be sustained upon demurrer, although the words may also be interpreted in a way which would render them innocent.
    On appeal from an order rendering judgment on a demurrer as frivolous, the order will not be reversed unless the court are of opinion that the demurrer was well taken. It will not be reversed merely because the court may think it was not frivolous. Laverty v. Griswold, 12 N. Y. Leg. Obs. 316. (Reported in 5 Abb. Pr. R. 498.)
    (At General Term,
    December, 1857.
    Before Bosworth, Hoffman, Slosson, and Woodruff, J.J.)


text:
    Lawrence v. Farmers’ Loan and Trust Company, et al.
    When an action is tried before the court without a jury, and a decision is made disposing of the case, except that a reference is directed to take an account, and an order is entered in conformity to the decision, an appeal from such order to review decisions made at the trial, will be dismissed. They can only be reviewed on an appeal from the judgment, which appeal cannot be brought until the account has been taken, and all questions arising upon it have been disposed of at Special Term. Until then, the order entered on the final decision made after the trial does not become a judgment within the meaning of that word as defined by theCode.
    The “judgment” from which an appeal may be taken to the General Term, means the same thing as a judgment from which an appeal may be taken to the Court of Appeals. Appeal dismissed. (Reported in 15 How. Pr. R. 57.)
    (At General Term,
    Dec., 1857.
    Before Bosworth and Woodruff, J.J.)


author: By the Court. Woodruff, J.

text:
    Jacobs v. Marshall. The Same v. Smith.
    Any person sent by a defendant’s attorney to serve an answer, which the plaintiff’s attorney refuses to receive for the reason stated to such messenger at the time, that the period to answer has expired, is a proper person to whom to state the reason of such refusal. Giving to him that information, and sending the answer back by him, is doing all that a plaintiff’s attorney can be properly required to do in such a case.
    If after that, it is' sent to the office of the plaintiff’s attorney a second time and left there, he is not bound to return it a second time, and a judgment subsequently entered, as for want of answer, will not be set aside as irregular, by reason of the answer not having been returned a second time.
    An order opening a regular judgment and default, is not appealable in respect to the terms imposed as a condition to the granting of such relief.
    (Before Duer, Ch. J., Bosworth, Hoffman, Slosson and Woodruff, J.J.)
    December 26, 1857.
    Each action comes before the court on an appeal by the defendant from an order opening a judgment by default, and allowing the defendant to answer, the defendant being dissatisfied with the terms imposed as a condition to his being permitted to answer, he being precluded by such terms from setting up the defence of usury. When the answer was served, or attempted to be, it was handed back to the boy or messenger, and he was told it would not be received because the time to answer had expired. The messenger, on reaching the office of defendant’s' attorney, was instructed to carry it back and re-serve it on plaintiff’s attorney and leave it, and he did so, and plaintiff’s attorney did not return it the second time. The affidavits tended to show, that the boy, when he returned with the answer after the first attempt to serve it, did not report the reason given by plaintiff’s attorney for not accepting it, and it was urged that he was not an authorized agent to receive such communications, and that plaintiff’s attorney, by not returning it when served the second time, had waived the default, and therefore the judgment subsequently entered, was irregular, and should have been set aside, with costs.
   By the Court. Woodruff, J.

We fully concur with the court at Special Term, in holding the defaults herein entirely regular. The affidavits on the part of the plaintiff not only show, that no extension of the time to plead was given, but that nothing was done or said which should have misled the defendants’ attorneys.

And in once returning the answers, when served after the time to answer had expired, informing the messenger by whom the answers were sent, that they would not receive them because the time to answer had expired, the plaintiff’s attorneys did all which the rules of practice or just notions of candor and fair' dealing required. The agent employed by the defendants’ attorney to make the service, was as competent to receive from the plaintiff’s attorneys the reason why the answers were rejected, as he was to carry back the answers themselves.

Kor could the defendants’ attorneys by again sending the answers to the office of the plaintiff’s attorneys and forcing them upon them, make it their duty to send them back a second time. Having refused to receive them, and assigned a sufficient reason therefor, they had done all that good faith or professional fairness required, and the defendants could no more make it their duty to send back the answers a second time, than they could a third or fourth, or any greater number of times, by repeatedly sending the answers back so often as the plaintiff’s attorneys returned them.

In regard to the terms imposed by the Judge as a condition of opening the defaults, it must suffice to say, that whatever we may think of the propriety of a discrimination between the defence of usury and any other, the conditions were in the discretion of the Judge, and we are not at liberty to review the exercise of that discretion. (1 Comstk. 43, and cases cited; 2 Code Rep. 41; 3 Code R. 141; 4 Sandf. Sup. Ct. R. 709.)


author: By the Court. Slosson, J.

text:
    Dean, plaintiff and appellant v. Chamberlin, defendant and respondent.
    In an action by one of eleven harbor-masters against another of them, who was appointed by each of them to collect the fees of the eleven harbor-masters, each being entitled to one-eleventh part of all the fees which might be earned, a complaint which stated these facts, and that the defendant accepted such appointment, and agreed with the plaintiff and the others of said harbor-masters severally, and become bound to account to them severally, for such fees as he should collect, and to pay to them severally their respective shares, and which alleged that he had collected frorp persons named, and also from persons unknown to the plaintiff, fees for which he had not accounted, and for which he refused to account, and the amounts of which, in some instances, the plaintiff could not state, and praying judgment that defendant account to the plaintiff, in writing, for all fees collected, and that plaintiff’s share, when ascertained, be paid by the defendant, etc. Held, bad on demurrer, on the ground that there was a defect of parties, and that all the harbor-masters should be made parties to such an action.
    (Before Duer, Ch. J., Bosworth, Hoffman, Slosson, and Woodruff, J.J.)
    December 26th, 1857
    This action came before the court, on an appeal oy the plaintiff from an order made by Mr. Justice Hoffman, sustaining a demurrer to the complaint.
    The complaint states that the plaintiff, and the defendant, and nine others, were harbor-masters of the port of Hew York, from the 9th of April, 1850, until the 9th of April, 1855, duly appointed as such, under a statute of the state of Hew York, passed March 16, 1850.
    That each of said harbor-masters employed the defendant to collect certain fees which should become due to them pursuant to such act: “ That the defendant accepted the said employment and authority, and undertook and agreed with the plaintiff and the others of said harbor-masters severally and respectively, and became bound and liable to them severally and respectively, to account to them severally for such fees as he should collect and receive in the course of the said employment, and to pay to the plaintiff and to the others of said harbor-masters severally, their respective shares and interests in such fees; that the share and interest of the plaintiff in such fees was one-eleventh part thereof; that in pursuance of the said employment and authority, said defendant received a large amount of fees which he had collected, and which were due the harbor-masters aforesaid, under and by virtue of the provisions of the said act, during the holding of said office by said harbor-masters.
    “ That at various times the said defendant has paid to the plaintiff sundry sums of money on account of the share and interest of the plaintiff in said fees, and plaintiff supposed at the time when he ceased to be harbor-master, and when he received from defendant said sundry sums of money on account of his share and interest in the fees collected by defendant, that the defendant, had accounted for all the sums of money that he had collected and received for and on account of said harbor-masters, but he has since been informed, and he declares the truth to be, that said defendant has received from Messrs. Ludlam & Pleasants, for harbormasters’ fees, due and payable on the steamers Roanoke and Jamestown, various numerous sums of money during the time when plaintiff was harbor-master as aforesaid, for which he has never accounted to plaintiff, and which he retains unlawfully in his possession; and plaintiff has been informed and believes that other sums of money have been received by defendant for harbormasters’ fees during the time when said plaintiff and defendant were harbor-masters as aforesaid, for which he has never accounted, and which he now unlawfully detains; that plaintiff has requested an account from defendant of all such moneys received by him for the harbor-masters as aforesaid, which defendant has refused to give; that until the defendant shall have rendered an account of the said fees received by him as aforesaid, the plaintiff is unable to specify the precise sum due to him from the defendant for the plaintiff's share of said fees, but he alleges upon information and belief, that upon an accounting by the defendant, it would appear that there is still due to the plaintiff, from the defendant, a large sum of money.
    “ Therefore the plaintiff demands judgment, that the said defendant account to the plaintiff, in writing and under oath, under the direction of this court, for all sums of money received by him under the employment and authority aforesaid, and state the times respectively when said sums of money were received and the amounts thereof respectively, and the persons from whom received, and the names of the vessels on account of which said sums were received, that the plaintiff’s share and interest therein may be ascertained, and that the balance due to the plaintiff from the defendant by reason of the matters herein above stated may be adjusted and settled according to the plaintiff’s just and lawful rights, and that the defendant may be adjudged to pay to the plaintiff the balance so adjusted and settled, with costs of this action.”
    The defendant demurred to the plaintiff’s complaint in this action, and for cause of demurrer showed,
    1st. That the complaint does not show sufficient facts to constitute a cause of action.
    2d. That there is a defect of parties plaintiff herein.
    3d. That there is a defect of parties defendant herein.
    The order appealed from decided and “adjudged that there is a defect of parties in the said action, and that the said defendant do have judgment in said action, unless the plaintiff within twenty days amend his complaint as to parties as advised, and in case the said complaint is so amended, the same to be without costs of said amendment.”
    From that order the plaintiff appealed.
   By the Court. Slosson, J.

This is an appeal from an order at Special Term, sustaining a demurrer to the complaint for want of parties.

The action is plainly one for an account. The prayer of the complaint is for an accounting. The plaintiff treats it as an action at law to recover a specific amount, yet admits, in his complaint, that the amount of the moneys collected and received by the defendant, and to one-eleventh of which he is entitled, is unknown to him, and that the amount due him can only be ascertained on the rendering of an account by the defendant. It is not the case of a suit to recover an admitted balance or share after an accounting, nor to recover a fixed proportion of a sum certain, as where one of two joint owners of a chattel sells it for a round sum and receives the proceeds, in which case the other may have his action at law. (Cochran v. Carrington, 25 Wend. 409.)

In an equitable action the general rule is that all persons are to be made parties, if practicable, who have a legal or equitable interest in the subject matter of the suit, and may be affected by the judgment, and who are within the jurisdiction of the court. (2 Story’s Eq. Juris. 741-2; Cooper’s Eq. Pl. 33.) One object is to protect the defendant and prevent a multiplicity of writs.

In Hallet v. Hallet, (2 Paige, p. 19,) Chancellor Walworth states this to be the rule: That if it appears, on the face of the plaintiff’s bill, that an account of the whole fund must be taken, and that there are other parties interested in the distribution thereof, to whom the defendant would be bound to render a similar account, the latter may object that all who have a common interest with the plaintiff are not before the court.”

In cases where it would be practically inconvenient to make all who have an interest in the fund parties in fact, the plaintiff, under the old practice, was allowed to file the Tpill in his own behalf and in behalf of all others standing in the same situation with himself, who might elect to come in and be made parties, and bear their portion of the expenses.

In the present case there are nine other harbor-masters, besides the plaintiff and defendant, equally interested in the fund. If one may sue for his proportion, each of the others may also sue.

Under the act under which they were appointed, (March 16, 1850,) the fees collected belonged to all, though each was entitled to an equal proportion. The defendant was appointed by each of them, as is alleged, to collect certain fees and, as is alleged, agreed to account and pay to each one, severally, his proportion. It would be straining the sense of this phraseology, I think, to construe it as an agreement by the defendant to render to each one a separate account of his stewardship. The natural and proper meaning of the undertaking is, that he would render to all who had employed him an account of the moneys he should collect, and pay to each his several proportion. After such an accounting, an assumpsit would lie by each for his share. But, if the language be taken literally, still if the court sees that a multiplicity of suits will be avoided by making all parties to a single action, it will require them to be brought in.

As the sum to be divided is not ascertained, each party has an interest in having the exact amount determined. It is true the defendant cannot be made to account for more than he has received, but he has a right to say that he ought not to beputto the proof of that more than once.

If the complaint had alleged that all the other harbor-masters had been paid their proportions the case would be different, but this cannot be inferred; on the contrary, the silence of the complaint on that point, in connection with the allegations which show that others were equally interested with the plaintiff in the fund, and that the defendant has never accounted for what he has received, necessarily implies that he is still indebted to all.

We think the demurrer for defect of parties, well taken.

Order affirmed, with costs of appeal.


author: Slosson J.

text:
    Cassard v. Hinman. Same v. Same.
    A petition by one party for an order directing the other party to make a discovery of books and papers in his possession, will not be granted when it prays for a discovery generally of all the books, papers, and correspondence of the adverse party, containing entries, during a period of several years, relating to purchases of a specified commodity. A petition must show that entries affecting or throwing some light on the matters in controversy exist, or enough to call upon the adverse party to answer whether they do or not, that they are material, and. state enough, if not denied, so that the court can see they are material, in addition to stating the other matters prescribed by the rules regulating such applications.
    Motion denied.
    (December 28, 1857.
    Before Slosson, J.)
    The opinion in this case gives an idea of the terms and contents of the petition sufficiently accurate to make it unnecessary to state them more particularly.
   Slosson J.

It is impossible for the court to perceive, from any thing stated in this petition, in what respect the discovery asked for can be material to the defence in these actions. It proposes a roving investigation into all the books, papers, and correspondence of the plaintiff during a period of some eight or nine months, relating to, or in which are contained entries in respect to pork contracts entered into by him during that period, not with the defendant, but with all or any persons whatever; and it is not even intimated that such discovery, if allowed, would disclose a single gaming or illegal contract. It asks also for the correspondence between the plaintiff and Nathan, the mutual agent of the plaintiff and defendant in effecting the contracts in controversy in these suits, without giving the dates of the letters or suggesting a single fact which the defendant is informed or believes such correspondence will disclose.

There is nothing asked for by way of discovery in this petition which cannot, if competent to be proved at all, be as well proved by the examination of the plaintiff himself, or of Nathan, or other witnesses.

The allegation that these books, papers, documents, and letters “relate to the merits of the actions” is wholly insufficient. The petition must show in what respect they relate to the merits, that the court may judge on that subject for itself.

There is no adjudged case upon which this motion can be sustained, and none that I have met with in which such a sweeping, roving search has been asked for at the hands of the court. (Stalker v. Gaunt, 12 Leg. Obs. 132; Davis v. Dunham, 13 Pr. R. 425; Com. Bk. Alb. v. Dunham, id. 541; Hoyt v. Am. Exch. Bk. 1 Duer, 652.)

The motion must be denied, with $10 costs.


text:
    Bussing, et al. v. Thompson.
    The defendant, prosecuting the business of a banker, the plaintiffs, in November, 1855, employed him to act as their banker, receive their deposits, collect' their bills, etc., and credit them with the amount, agreeing- he might use the moneys and he agreeing to pay their drafts on him when presented, and interest on the balances at the rate of five per cent. They continued to act under this agreement, and on the 13th of August, 186Í, the plaintiffs remitted to the defendant a draft for $4000, payable the 25th, to be collected and passed to their credit, under this agreement. Defendant received it on the 15th, and collected it on the 25th, and used the money. On the 24th, he knew he was insolvent, and on the morning of the 26th, avowed his purpose to suspend, and did soon after the $4000 was collected.

      Held, that defendant did not receive the money in a fiduciary capacity. His failure after he received, and before the maturity of the draft, did not annul the agreement between him and plaintiff or convert him into a trustee.
    Also, that he did not convert the money to his own use “ wrongfully," within the meaning of that word, as used in the Code'; nor was he guilty, in judgment of law, of a fraud in using the money; nor was he guilty of a fraud in incurring the obligation to pay the $4000 to the plaintiffs.
    Therefore, also held, that the defendant could not be held to bail in an action to recover the $4000, he having failed to pay it, on a demand made subsequent to his failure. (Reported in 16 How. Pr. R. 97.)
    (At General Term,
    Jan., 1858.
    Before Duer, Ch. J., Bosworth, Hoffman, Slosson and Woodruff, J.J.)


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    Laughran and Dillon v. Orser, Sheriff.
    If an action be brought in a court of record against a sheriff for not returning an execution, and the plaintiff recovers less than. $50 damages, he must pay the costs of the action. It is not one of the actions of which, according to section 54 of the Code, a Justice of the peace has no jurisdiction. This result must follow, even if it be conceded that section 53 is not sufficiently comprehensive to confer jurisdiction of such an action on a Justice. Subdivision 3, of section 304, cannot be construed as referring to section 63 as well as to section 54.
    Section 53 does not grant jurisdiction of any action in which the amount claimed exceeds $100. Section 304 does not permit the amount claimed to affect the question of liability for costs, but only the amount recovered, unless the action be one of those enumerated in section 5.4, or one of those in which, by sub. 4 of section 304, a party recovering less than $50 will recover as much costs as damages. (Reported in 15 How. Pr. R. 281.)
    (At General Term,
    February, 1858.
    Before Bosworth, Hoffman, Woodruff and Pierrepont, J.J.)


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    Fuller v. Read, commenced October 28, 1857; Read v. Fuller, commenced October 31, 1857.
    Fuller having a cause of action against Read, sued him; Read, after that, sued Fuller on a demand which fell due after Fuller’s suit was brought, and Fuller, in Ms answer set up as a counter-claim, the cause of action on which his suit was brought.

      Held, that Fuller, in that stage of the suits, could not he compelled to elect to prosecute his claim in only one of such suits, and to abide by such election. That the court should not obstruct the orderly course of proceeding in either action, until both were at issue on the merits.
    If it then appeared that the merits of both could be fully tried, and full relief given in any one suit, the proceedings might properly be stayed in the other until that one was tried; that the pendency of the suit first brought was no bar to the right of the plaintiff therein to set up the matter of it as a defence to the suit subsequently brought against himself. (Reported in 15 How. Pr. R. 236.)
    (At General Term,
    February, 1857.
    Before Bosworth, Slosson, Woodruff and Pierrepont, J.J.)


author: By the Court. Pierrepont, J.

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    John Kamena v. Wanner and Thompson.
    When a constable, on an attachment issued out of a Justice’s court against one person, seizes and removes property found in the posseesion of another, and the latter claiming to be the owner, and desiring to so proceed under Part 3, Title 4, § 31 of the Revised Statutes, as to perfect a right to have the property restored to his possession, he must, among other things, give a bond in a penalty equal to double the value of the property attached, though such value be $2800, and the debt which it was seized to satisfy be only $421. In such a case a bond in the penalty of $1000, though correct in all other respects, and duly approved and tendered to the constable attaching, will not make it his duty to deliver the property attached to such claimant, and consequently, will not make his refusal to deliver it to such claimant a wrongful act on his part, for which such claimant can maintain an action against him.
    (Before Bosworth, Slosson, Woodruff, and Pierrepont, J.J.)
    March Term, 1858.
    This action comes before the court on an appeal taken by the defendant, Wanner, to an order made at Special Term, overruling his demurrer to the amended complaint, and to the second cause of action stated therein.
    The complaint stated as a first cause of action, that, on the 5th of February, 1857, the defendant, Thompson, being a constable, by virtue of an attachment issued out of the Marine Court, of the city of New York, in favor of the defendant, Wanner v. one Waltje Kamena, to collect $421 and interest, from November 10, 1856, “ at the instigation, under the instructions, and in the presence of the said defendant Wanner, attached, (certain personal property of the plaintiff) of the value of $2800,) and removed the same from (the possession of the plaintiff,) and converted the same to the use of said defendant.”
    It then stated as a second cause of action, that after such seizure, and on the 12th of February, 1857, the plaintiff claimed the said property as owner, and to obtain possession of it, made and executed with sureties a bond to said Wanner, in the penal sum of $1000, payable to him or his attorney, executors, administrators, or assigns, which bond recited the seizure of said property by Thompson, a constable, by virtue of said attachment, and that the plaintiff claims the goods so attached as his property, and contained a condition, that “in a suit to be brought on this obligation within three months from the date hereof, the said John Kamena, (the plaintiff,) shall establish that he was the owner of the said goods at the time of the said seizure, and in the case of his failure to do it, the said John Kamena shall pay the value of the said goods and chattels with the interest, then his obligation to be void, otherwise of force.” That said bond, so executed, was.thereupon tendered to the Justice of the Marine Court who issued said attachment, and afterwards to A. A. Thompson, also a Justice of that court, for their approval; that each of them indorsed his approval thereon, and on the 3d of May, 1857, the plaintiff tendered and delivered to the defendant, Thompson, the said bond so approved, and demanded a return and delivery to the plaintiff of the property so attached, “ but said defendant, Thompson, acting under the advice and instruction'of said defendant, Wanner, and at his special instigation, at all times wrongfully refused to accept said bond and return said property.” The complaint then stated the value of the property to be $2800, and the damages to the plaintiff “ arising from said seizure and conversion, (to be) the further sum of $500,” and concluded by demanding judgment “ against the said defendant for the sum of” $3300, with the costs of the action.
    The defendant, Wanner, put in an answer to the first cause of action, denying the allegations of the complaint in that behalf, which answer also alleged that the bond, so approved and tendered, did not conform to the requirements of the Statute, nor confer a right on the plaintiff to have a return of the property, or a right of action against either defendant, by reason of the refusal to return the property.
    The same defendant also demurred “ to the said amended complaint and second specification of cause.of action,” on the ground that several causes of action have been improperly united. The first cause of action being one against both defendants as joint tort-feasors, and the second being against Thompson only for his unjust refusal to return the property, a cause of action which does not affect Wanner.
    Mr. Justice Hoffman, on hearing the demurrer at Special Term, overruled it, and ordered judgment for the plaintiff thereon. From that order (or judgment) the defendant, Wanner, appealed to the General Term.

      John S. Jenness, for plaintiff and respondent.

      James M. Sheehan, for Wanner, appellant.
   By the Court. Pierrepont, J.

This is an appeal from an order of the Special Term overruling a demurrer. The plaintiff sues Thompson, a constable, and one Wanner, who was plaintiff in an attachment against Waltje Kamena; and alleges in the second count of his complaint, that the constable having levied upon the plaintiff’s property by virtue of an attachment, that he, the plaintiff, as claimant of the property, tendered a bond in conformity with the statute, and the said constable refused to deliver to him the property, but sold the same, and that Wanner instigated the constable to these acts; that the bond tendered was in the penal sum of $1000, and that the property so seized and required to be delivered on the tender of the bond was of the value of $2800. The complaint prays judgment in the sum of $3300.

The defendant Wanner, demurs to this count.

The bond required by the 31st section of Part III. Title 4 of the Revised Statutes, requires that the bond shall be “in a penalty double the value of the property attached.” Section 34 shows clearly that the statute contemplates protection to the real owner of the property, as well as to the plaintiff, in the attachment. A case which may often happen will illustrate the importance of this provision in the law.

The defendant in the attachment is tenant of the furnished house of A, the furniture is seized by the constable on an attachment against the tenant to satisfy a claim of $400; the constable' not knowing how the furniture will sell, and quite ignorant of its value, seizes the whole, which proves to be worth $5000. A stranger claims the furniture, gives a bond, approved in the sum of $800, and takes the property. The real owner learning that his property has been thus taken, goes to the constable to replevy it, and finds in its stead a. bond of $800, and that the furniture has gone no one knows whither. But if the construction for which the plaintiff contends be the true one, the constable could not refuse making the delivery to such claimant, although he had, meanwhile, learned that the property attached was worth ten times the penalty of the bond (§ 31 and 32). Taking the construction of the statute, which we are disposed to give it, this count of the complaint, divested of all verbiage and circumlocution, may be fairly stated thus:

The plaintiff complains that the defendant Thompson, being a constable, seized by virtue of an attachment, (against Waltje Kamena,) property of the plaintiff of the value of $2800; the plaintiff claimed the same and tendered to the said constable a bond duly executed and approved in the sum of $1000, according to the statute, which requires that said bond should be in the sum of $5600; that said constable refused to deliver the property on such tender of the approved bond, and that the defendant Wanner advised and instigated the constable to said acts; wherefore, the plaintiff demands judgment against the said defendants for the sum of $2800, the value of the property, and $500 damages, besides interest and costs.

We think such a complaint does not state facts sufficient to make the constable liable; and it follows that Wanner could not be liable for advising the constable to act according to law.

The demurrer must be sustained, and the order of the Special Term reversed with costs.


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    Green v. Wood.
    Section 391 of the Code, gives to either party to an action, an option to have an adverse party examined before, instead of examining him at the trial. It is error to deny to the party claiming it, the right to have such an examination, on the mere ground that the party sought to be examined, prefers to be examined at the trial, and offers to stipulate to then attend, so that his examination can then be had. The fact that other suits against the party sought to be examined are pending, which are brought by other plaintiffs, and depend upon the same general facts, is not such cause as will justify an order exempting a defendant from examination before the trial. To refuse to compel a defendant to submit to an examination before the trial, merely because he prefers to be examined at the trial, would make it optional with the defendant, whether he would be examined before the trial or not, whereas the Code gives the option to the party who wishes to examine his adversary, whether the examination shall he had before or at the trial. (Reported in 15 How. Pr. R. 338.)
    (At General Term,
    March 20, 1857.
    Before Bosworth, Hoffman, Woodruff, and Pierrepont, J. J.)


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    McAllister v. Pond, et al.
    In a proceeding.for the discovery of books and papers, (which is a summary and, in some respects, an extraordinary remedy,) the court is to be governed by the principles and practice of the (late) Court of Chancery, in compelling discovery. So say the Revised Statutes, (2 R. S. 191, § 31.) In this respect there is no reason to believe that the legislature intended to introduce any new rule, when ' the provisions of § 388 of the Code were enacted.
    The rules of the court, (8, 9, 10, etc.,) contemplate the setting forth, by petition, of facts and circumstances which show that the discovery is necessary, and that the party applying therefor is entitled to demand it of the adverse party. A mere statement that in the opinion of counsel the discovery sought is necessary, will not suffice, Such a statement is requisite, but it is cumulative.
    One of the first facts which should appear on an application for a discovery of hooks and papers, for the purpose of preparing for trial, is, that the applicant has not in his possession the same information, or if he has, that he has not the means, of establishing, by other available proof, the contents of such books or papers.
    In this case it in no wise appeared, by the petition, that the plaintiff was ignoraut of any particular which was necessary to enable him to prepare for trial, on which was contained in the books and papers sought to be produced. There was a failure to show a want of the requisite information to enable the plaintiff to prepare for trial; and it was not stated that the plaintiff had any need of the defendants’ books and papers, for the purpose of establishing the particulars of the accounts between the parties; nor that he could not prove, without the production sought, every fact which was material to his case.
    And besides, it appeared that the books of the defendants, of which discovery was sought, had been freely offered to the plaintiff’s attorney for examination and inspection, and he had omitted to avail himself of the opportunity. Motion denied. (Reported in 15 How. Pr. R. 299.)
    (At Special Term,
    March, 1858.
    Before Woodruff, J.)


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    Lord, et al. v. Vandenburgh, et al.
    Where an attorney resides in one town or city, and has his office for the transaction of business in another, how shall persons in the latter place serve papers upon him if his office be closed ? They are not bound to follow him to his residence and make manual delivery there. If bound to serve papers at his residence at all, in 'such case, service by mail is sufficient.
    In such case, if, in compliance with the fifth of the rules of court, the attorney adds the place of his office to his name, he is concluded thereby. Such place will be deemed his residence for the purpose of such service, so that persons desiring to make service will not be bound to go or send to another town, though being his actual residence.
    And where the paper to be served is an answer in a cause in which the summons, (in obedience to § 128 of the Code,) specifies the place where the answer was required to be served on the plaintiff’s attorney, the defendant is not bound to serve his answer in any other place. And if the attorney’s office is closed and he does not reside in that place, an endeavor to serve at the office, within the time allowed to answer, followed by an actual service within a reasonable time afterwards, when the office is open, will be regarded as a sufficient service.
    A party is not bound to make an impracticable service.
    Where the plaintiff’s attorney issued a summons requiring the answer to be served on him at the city of Hew York, and added to his subscription "195 Broadway,” that being his office, and, on the last day for answering, the defendants’ attorney, at about four o’clock, p. m., sent the answer to his office, and found it closed, the plaintiffs’ attorney having left the city for his residence at Flushing; and again, the next day, the defendants’ attorney sent the answer to his office, and the plaintiffs’ attorney refused to receive it, having in fact entered up judgment and issued execution that morning.

      Held, that the defendants’ attorney was regular, and the judgment, etc., irregular; and the judgment and execution were set aside, with costs. (Reported in 15 How. Pr. R. 31-3.)
    (At General Term,
    March 20, 1858.
    Before Bosworth, Hoffman, Woodruff and Pierrepont, J.J.)