author: By the Court, Barbour, J.

text:
    John Whittaker, plaintiff and respondent, vs. The Eighth Avenue Railroad Company, defendants and appellants.
    1. The court being bound to take judicial notice of the fact that the Eighth Avenue, in the city of New York, is a public highway, where a complaint avers that a personal injury to the plaintiff was done there, caused by the willful and improper conduct of the defendants’ servant, an amendment stating that the injury occurred in a "puílic ” highway is wholly Unnecessary.
    2. The allowance or rejection of such an amendment, on the trial, is entirely discretionary.
    3. In an action against a city railroad company, to recover damages for a personal injury, occasioned by .the improper conduct of the'driver of the defendants’ car, any expression of such driver, either before, during or immediately after, and in the heat of the occurrence, showing his then design to "do an injury, and not being a declaration predicated upon an after-thought, is admissible in evidence.
    (Before Barbour, McCukn aud Jones, JJ.)
    Heard March 4, 1867;
    decided--, 1867.
    This action was instituted against the Eighth Avenue" Railroad Company, to recover damages for injury done to the person of the plaintiff by means of an alleged willful act of the driver of a car belonging to the defendants. The complaint charges “ that the driver willfully drove said carriage against the plaintiff.” The plaintiff’s counsel, in his opening, stated that the damages sought to be recovered, were for a willful running over the plaintiff, and that the act was intentional and designed. At the close of the opening, the defendants moved to dismiss the complaint, on the ground that it stated no cause of action for which the defendants were liable, but that the driver willfully drove said carriage against the plaintiff. That a master was only-responsible for the negligent acts 'of his servant, and such tortious acts as the master expressly- commanded. The judge refused to dismiss the complaint, and the defendants excepted to the ruling of the judge for these reasons, First. That the statute of 1824 (2 R. S. 996, § 6) was passed before any railroads were in existence in the state of New York, or in any portion of the United States, and that cars traveling upon such roads were not within the contemplation of the legislature, or the purview of the statute. Second. That the provisions of the statute were in derogation of the common law and penal; and that, for these reasons, it was to be construed strictly, and not liberally, so as to embrace cases not within its words. Third. The statute names “ carriages running or traveling on turnpikes or public roads,” and does not apply to railroad companies, because these roads are not, in any. sense, public ones, and the companies owning them are private corporations, although the uses of the roads are public.
    The plaintiff’s counsel' then moved to amend the complaint, by inserting therein the word “ public,” which amendment was allowed by the court, and the ruling excepted to by the defendants. During the progress, of the case, Abraham Grant was called as a witness for the plaintiff, and asked, “ Did you hear the driver say any thing after he passed?” The defendants objected to the declarations of the driver being given in evidence. The objection was overruled, and the defendants excepted. After the evidence on both sides had been given to the jury, the defendants’ counsel requested the learned judge to charge the jury on five several propositions of law, which the judge declined to do, upon the ground that the complaint against the defendants was for a willful act, and not a negligent one, and that the points propounded had no relevancy to the case. To this ruling, the defendants’ counsel excepted.
    The jury found a verdict in favor of the plaintiff, - and assessed the damages at $2500. The defendants were allowed twenty days' in which to make a case; and the exceptions were ordered to be heard at a general term in the first instance.

      J. W. Ashmead and It. N. Waite, for the defendants.

      J. Townsend, for the plaintiff.
   By the Court, Barbour, J.

Upon the trial of this action, which was brought to recover damages for injuries to the person, caused by the willful and improper- conduct of the defendants’ servant, the plaintiff was allowed to amend his complaint, so as to make it conform, in letter, to the requirements of the act of 1824, (21 R. S. 966,) authorizing recoveries to be had against the owners of carriages running upon any 'public highway, by adding the word “public” before “highway.”

The defendants’ exception to this is untenable. As the court was bound to take judicial notice of the fact that the Eighth avenue, in the city of New York, was a public highway, and the complaint already averred that the injury was done there, such amendment was wholly, unnecessary. Even if that had been otherwise, however, the allowance or rejection of the amendment was entirely discretionary as the case then stood.

The appellants also object that the statements made by the driver immediately after the occurrence of the injury, were improperly admitted in evidence. 'Although I find no exception to such admission, it. may be proper to say that any expression of the driver, either before, during, or immediately after, and in the heat of the occurrence, showing his then design to do an injury, and not a declaration predicated upon an after-thought, was admissible.

There being no other exception of note, except that of the right to recover at. all, the exceptions should be overruled, and judgment entered for the plaintiff. The case made by the pleadings and proofs, is clearly within the letter, as well as spirit of the act.


source: Caselaw Access Project

author: Robertson, Ch. J.

license: Public Domain

text:
    Purves vs. Moltz.
    1. Where goods come rightfully into the possession of a party, as a mere bailee in good faith, and they are subsequently wrongfully detained, it is. necessary, in an action for their wrongful detention, to allege a demand of the goods.
    2. Where goods come to the possession of a party by a mistake of which he is fully aware at the time, and subsequently, for voluntary repairs put by him upon the property he claims a lien thereon, for which he detains it, he becomes a wrongdoer from the beginning, and consequently liable in .an action for a wrongful taking and detention, and no demand for the delivery need be alleged.
    (Before Robertson, Ch. J.
    at special term, term, April —, 1867.)
    Motion by the defendant for a new trial.
    The plaintiff* haying purchased a sewing machine, the vendor gave orders to á carrier to deliver the same to the plaintiff, at his address. The carrier having lost the directions, delivered the machine to the defendant. The machine being out of order, the defendant, who was a machinist, paid the carrier’s charges and repaired the machine. His charges for repairs were $9.25, which he insisted upon having before he would give up the machine. -Ho demand, or time or place of conversion were stated in the complaint. At the trial the defendant’s counsel moved to dismiss the complaint, on the ground that these were material facts, which should have been alleged. The motion was denied, and the. ruling excepted to. The motion was renewed at the close of the plaintiff’s case, and when the proofs were all in, and again denied, and the decision excepted to.
    The jury found a verdict for the plaintiff both for the damages and for the value of the machine, as assessed by them. The defendant moved for a new trial, upon the ground that a demand and refusal should have been alleged and proved, in order to enable the plaintiff to maintain the action.

      Hart Boyce, for the plaintiff.

      A. H. Heavy, for the defendant,
    cited Fuller v. Lewis, (3 Abb. Pr. 383;) Gardner v. Humphrey, (10 John. 53;) Jackson v. Rogers, (11 id. 33;). Stevens v. Hyde, (32 Barb. 171;) New York Car Oil Company v. Richmond, (10 Abb. Pr. 185;) S. C. 6 Bosw. 213.)
   Robertson, Ch. J.

The action in this case is for goods wrongfully taken and detained. The complaint alleges them to have been so taken, without any demand .for their delivery, which would be necessary to show a right of action, in case the goods came rightfully into the defendant’s possession, and they were subsequently wrongfully detained. (New York Car Oil Company v. Richmond, 6 Bosw. 213. S. C. 10 Abb. Pr. 185.) Such demand was necessary to be alleged in an action for a mere wrongful detention, where the original possession was lawful, and a demurrer would lie for want of it.

In this case the evidence showed that the machine sued for was delivered to the defendant by a blunder; that he did nothing, when he received such machine, to correct the mistake, but rather lent himself to favoring it. He had never had any communication with any one, respecting it, before; had no reason to believe that it was intended for him, and yet received it into his possession, without authority from the owner, having good reason to believe, from the. statement of the express driver who delivered it to him, that it was not intended for him. If he had done nothing more than become a bailee in good faith, he probably would not have been liable in an action for the wrongful taking. But forthwith, after receiving it, he commenced to make repairs upon it, without any request or direction from any one; no such purpose having been stated by the party leaving it. Having made such repairs wrongfully, he claimed a lien on the machine for their value, which, of course, made his detention wrongful. Such conduct may be made to relate back to the original receipt of it, so as to throw light upon the motive for taking and keeping it. If he took it, knowing of the mistake, and intending to get a job, and compel the owner to pay for it, or retain possession until he did, he did not receive it for a legitimate purpose with the plaintiff’s assent, and.was a wrongdoer from the beginning. He knew the expressman had no authority to deliver it to him, and if he sought to take advantage of his neglect or mistake, he was not an innocent bailee.

Larceny may be established by the evidence which the' subsequent conduct of a party affords of the purpose of the original taking, although the article may be voluntarily delivered. I see no reason why a tort may not also be established by the same means. If the defendant had instantly demolished the -machine there would have been no doubt as to the character of the original taking. I cannot per- ‘ ceive any difference, in principle between that case and this.

The verdict of the jury is, therefore, conclusive, and a new trial must be denied, with $10 costs.


author: By the Court, Barbour, J. Robertson, Ch. J. and Garvin, J.

text:
    James Brooks, plaintiff and appellant, vs. Jackson S. Schultz et al. defendants and respondents.
    1. The affidavit or deposition taken on examination, to he used upon a motion, as contemplated by the last subdivision of section 401 of the Code, was designed as a substitute for, and to take the place of, and accomplish the same effect as a voluntary affidavit would have done when read upon a motion, had the person so examined made such affidavit, instead of refusing to do so.
    2. Assuming that the words “motion in any court of record,” in that subdivision, include motions before a judge of such court at chambers, that being within the general scope and object of the provision, the legislature must have intended that some, at least, of the examinations so authorized would be taken . ex parte. Ter Barbour, J.
    3. The examination taken under that subdivision of section 401, when completed, is nothing more nor less than a compulsory affidavit, an affidavit which the party at whose instance it is taken may read or omit to read upon the motion, at his pleasure, precisely as he might or might not read an affidavit voluntarily made, without notice to his adversary.
    4. The compulsory affidavit thus authorized is intended to take the place and perform the functions of a voluntary affidavit, and may be taken and read upon a motion, and only there, in precisely the same manner and with like effect.
    6. There is no more necessity for the appearance of the adverse party before the referee, when a compulsory affidavit is taken under section 401, than there is for his presence at the taking of‘a voluntary affidavit. In either case the party at whose instance it is taken may decline to use the affidavit; and if used on a motion, each will be liable to the same legal objections. Ter Barbour, J.
    6. If the party causing a compulsory affidavit to he taken, on making his proposed motion offers to, read such affidavit, the opposite party may make his objections, or move to strike out and eviscerate the affidavit. But until then he cannot be injured by it, nor move to set aside the proceedings and suppress the examination or affidavit taken before the referee, on the ground of irregu.larity.
    (Before Robertson, Oh. J., and Barbour and Garvin, JJ.)
    Heard January 18, 1867;
    decided April 1, 1867.
    Appeal by the plaintiff from an order made at a special term, denying a motion to set aside proceedings, under section 401, subdivision 6, of the Code of Procedure, for the examination of witnesses before a referee, and to suppress the depositions, &c. on the ground of irregularity.

      James 0. darter, for the appellant.

      George Bliss, Jr. for the respondents.
   By the Court, Barbour, J.

As I understand the papers, after an injunction order had been obtained in this action by the plaintiff against the defendants, the latter, designing to move to vacate such injunction, asked several persons to make affidavits of the necessary facts, which requests were refused. The defendants thereupon applied to the court, under the 401st section of the Code, and obtained an order to compel such persons to appear before a referee, to be examined. Upon the examination of such persons before the referee, the plaintiff’s attorney, who had accidentally heal’d of the proceeding, appeared, and claimed a right to take a part in the examination, and, to some extent, was permitted to do so, but not fully. After that, the plaintiff’s counsel, upon an affidavit setting forth, substantially, the foregoing facts, and certain alleged irregularities in the proceedings before the referee,.moved, at special term, on notice, for an" order setting aside the proceedings, and suppressing the examinations ór depositions so taken before the referee. The papers do not show that the examinations in question have ever. been used, or brought before the court in any manner. The plaintiff’s motion to set aside, &c. was denied by the court, and from the order thereupon entered, this appeal is brought.

I am of opinion that the motion was properly denied; for,

First. The affidavit or deposition taken on examination, to be used upon a motion, as contemplated by the last subdivision of section 401, was designed as a substitute for, and to take the place of, and accomplish the same effect as a" voluntary affidavit would have done when read upon a motion, had the person so examined made such affidavit when requested, instead of refusing to do so. Just that, and no more.

Second. Assuming, as I do, that the words “ motion in any court of record,” include motions before a judge of such court at chambers, which is, obviously, within the general scope and object of the provision, the legislature must have intended that some, at least, of the examinations so authorized, would be taken ex parte. For instance: In case the only person knowing the facts which would entitle a plaintiff to an order of arrest against a defendant who was about to leave the jurisdiction, or an attachment against . property about to be eloigned, should refuse to make an affidavit, it would be absurd to suppose the legislature designed that the plaintiff should be required to give notice of such contemplated examination to his adversary; for that would be to compel him to do just that which would enable a tort feasor or a dishonest debtor, to accomplish his purpose, and escape' scathless. The effect of such notice would be to defeat, not only the object of the motion for such order of arrest or attachment, but the main object and design of the law itself.

Third. It is sufficient, however, that the examinations in question are provided for and authorized merely for the benefit of a party who 11 intends to make or oppose a motion,” and that they are to be taken in the form of a deposition or affidavit. Indeed, it appears to me, the examination, when completed, is nothing more nor less than a compulsory affidavit; an affidavit which the party at whose instance it is taken, may read or omit to read upon the motion, at his pleasure, precisely as he might or might not read an affidavit voluntarily made, without notice to his adversary. In a word, the compulsory affidavit authorized by the 401st section, is intended to take the place and perform the functions of a voluntary affidavit, and may be taken, and used upon' a motion, and only there, in precisely the same manner and with like effect.

There is no more necessity for 'the appearance of the adverse party in litigation, when a compulsory affidavit is taken under section 401, than there is for his presence at the taking of a voluntary affidavit. In either case, the party at whose instance it is taken may decline to use the affidavit; and if used on a motion, each will be liable to the same legal objections. So, too, in either case, if the witness has not told the truth, he may be contradicted; or, if he knows further facts, or it shall be necessary to obtain some explanation. from him, the party desiring it may have a further affidavit from the witness, either voluntarily or compulsorily.

Fourth. There was no necessity for the motion which is the subject of this appeal, nor was the plaintiff entitled to the relief he sought. If the defendants shall make their motion to dissolve the injunction, and, on such motion, offer to read the examination—as they may or may not do, at their option—the plaintiff may make his objections. Until then he cannot be injured by them ; and, when such motion is made, he may protect himself by objections, or by a motion to strike out and eviscerate the affidavit, or in such other manner as he may be advised, precisely as he would be entitled to do with any other affidavit or paper offered upon the hearing of the motion.

The order .denying the motion of the plaintiff, should, therefore, be affirmed, with costs.

Robertson, Ch. J. and Garvin, J.

concurred in the conclusion, upon the ground that the party against whom the affidavit is proposed to be read, must show that he is injured by the irregularity complained of, before he can move to set aside the order for the examination of the witness.


text:
    Max Maretzek, plaintiff, vs. William Cauldwell et al. defendants.
    1. In an action to recover damages for a libel, respecting the plaintiff’s conduct in the management of theatrical representations, the fact that a juror declares himself opposed to theatrical representations, is not a ground of challenge for principal cause. ■ ’ •
    2. Such an opinion does not amount to absolute incompetency, and is therefore only a ground of challenge to the favor,
    (Before Robertson, Ch. J.,-
    at special term, April —, 1867.)
    Motion for a new trial. This action was bronght by Max Maretzek, the manager of an opera in the city of New York, against the defendants, William Cauldwell and Horace P. Whitney, publishers, editors and proprietors of The Sunday Mercury, a weekly paper published in the city of New York, to recover damages for two articles published therein, in October, 1863. The first article ivas headed “ The disgrace of the opera,” and it described the opera of the plaintiff as being frequented by vicious and immoral persons, and being such an exhibition as respectable women could not patronize. The second article, which was set forth as a second cause of, action, was entitled “ The Academy of Music under a cloud—Sin in high places.” This article made the same charges with more particularity.
    The cause was tried,'at a trial term of the court, at which, upon the impanelling, of the jury, the plaintiff" challenged a juror named Meyer for principal cause, upon the ground that he was “opposed'to theatrical representations.” The juror was upon that challenge excluded by the court, and upon 'the trial the jury rendered a verdict for $1000 in favor of the plaintiff Upon this ground, among others, the defendants moved for a new trial.

      A. Oahey Sail, for the motion..

      S. B. S, Judah, opposed.
   Robertson, Ch. J.

If the case on which this motion was made be correct, there was a fatal error committed on the former trial. A juror, (Meyer,) after a challenge of him by the counsel for the defendants had been withdrawn, was 'challenged by the plaintiff’s counsel for principal cause, which challenge was passed upon by the court. The juror having stated that “he was opposed to theatrical representations,” the plaintiff’s counsel claimed that he was.incompetent, and requested the court to exclude him; to which the counsel for the defendants objected. The court excluded the juror, and another was impaniielled in his stead; to which decision and course the counsel for the defendants- excepted.

Such an opinion, entertained by the juror, did not show either such relations to either party, or such bias and in-comp°etency, on account of a. fixed opinion, as amounted in law, to an absolute conclusive prejudging of the matters in issue in this action, so as to constitute a principal cause of challenge, and was therefore at most only a ground of challenge to the favor to be tried in the usual mode.

There must, therefore, be a new trial on the case, with costs to abide the event.


author: By the Court, Jones, J. Robertson, Ch. J.

text:
    Mary H. Pennell, plaintiff and respondent, vs. Edwin Wilson, defendant and appellant.
    1. As the law now stands, a plaintiff not suing en autre droit, cannot be permitted to discontinue without costs; whether the action bo one at law, or in equity.
    2. The provisions of the Revised Statutes, restraining a court of equity from permitting a bill to be dismissed without costs, are not repealed by section 306 of the Code, declaring that, at all stages of the action, costs may be allowed, or not, in the discretion of the court. The Code has not changed the former rules bearing on this subject.
    (Before Robertson, Ch. J,, and Barbour and Jokes, JJ.)
    Heard June 11, 1866;
    decided April 1, 1867.

      This action was brought to reform a written contract made between the plaintiff and the defendant, and on such reformation to recover from the defendant the sum of $251.03.'
    An answer to the complaint was put in. The issue thus joined was brought on for trial at a special term held for the hearing of equity causes. On such trial judgment was rendered for the plaintiff. From this judgment the defendant appealed to the general term, and the judgment was reversed and a new trial ordered. ’ •
    The order of reversal contained no provision respecting costs.
    .After the reversal the plaintiff, on an affidavit setting forth the above matters, and that the new trial was ordered solely on the ground that the evidence given on the trial was insufficient to support the judgment; that the defendant had noticed the cause for trial, and that the deponent desired to discontinue without costs, moved, on notice to the defendant, for leave to discontinue without costs.
    The motion was opposed by the defendant, who read an affidavit in opposition. It was, however, granted, and an order was entered giving the plaintiff leave to discontinue, without costs.
    From this order the present appeal is taken.

      J. W. Grerard, for the appellant.

      John Hewitt, for the respondent.
   By the Court, Jones, J.

The question on this appeal is whether upon the principles of law applicable to the subject, the order was correct or not.

In the determination of the question it will be convenient, first, to ascertain what the rules were before the Code.

At common law a plaintiff could not discontinue without payment of costs, except upon leave granted by the court upon special motion. (Fifield v. Brown, 2 Cowen, 503.)

The courts of common law have held that they will permit a discontinuance, without costs for the following causes: A discharge of the defendant in bankruptcy or in insolvency, or from imprisonment, where such discharge was either obtained after, or not known to the plaintiff to have been obtained until after, the commencement of the action. Inability of the defendant to pay any judgment that might be recovered, where such inability is manifested by any'of the above discharges or proceedings to procure them, and was not known to exist at the commencement of the action. "Where the defendant claims a personal exemption from suit, such as being a foreign consul. Where the defendant is sentenced to states prison and has no property. Where the defendant pleads infancy or coverture.

The reported decisions show that during a long series of years, extending from 1801 to 1848, the above were the only causes for which courts of law would allow a discontinuance without costs, except in actions where the plaintiff sued en autre droit, in which actions the courts were very liberal in granting leave to discontinue without costs, allowing it not only for the above specified causes, but also on an affidavit showing that the action was commenced in good faith, but that since its commencement it was ascertained it was by mistake wrongly brought, or that the evidence was insufficient, or that there was a good defense.

The causes for which leave will be granted should not be extended. So held when leave was asked to discontinue without costs, on the ground that the defendant pleaded the statute of limitations, which was denied. (Houseman v. Rosenfeld, 18 Abb. 379.)

It follows that viewing the present case as an action at law, the plaintiff not suing en autre droit, and not showing the existence of any one of the causes for which courts of law were accustomed to grant leave to discontinue without costs, would not under the law, applicable to actions at law, as it stood prior to the Code, have been allowed to discontinue, without costs.

In equity, a plaintiff, according to the law and - practice ot this state, could not be allowed for any cause to dismiss his complaint, (the effect of which was the same as a discontinuance at law,) without costs, unless prima facie he' would not be liable for costs even though he failed in the suit.

This resulted from a statutory provision on the subject. As early as 4th Anne, an English statute was passed, providing that upon the “ plaintiff dismissing his own bill, or the defendant dismissing the same for want of prosecution, the plaintiff shall pay to the defendant his full costs, to be taxed.” Since the passage of that act, the court of chancery in England ‘never ventured, for any cause whatever, to allow a plaintiff, on motion, to dismiss the bill without costs, except in one case, where it was sought to evade the statute by moving that the defendant tile security for costs, or in default of his so doing, the bill be dismissed, without costs. • That case, however, has never been followed, not even by the learned chancellor who suggested the course to be pursued.

The words of this act of 4th Anne were copied into an act passed by the legislature of this state in 1787, and retained in all the revisions until the passage of the Revised Statutes, when the following addition was made, “ except in those cases where, according to the practice of the court, costs would not be awarded against such complainant upon a decree rendered on hearing the cause.”

Thus, then, the law, as enacted by the passage of the Revised Statutes, stood thus:- “Upon the plaintiff, in a-court of equity dismissing his own bill or petition, or upon the same being dismissed for want of prosecution, the plaintiff shall pay to the defendant his costs to be taxed;” (thus far the language is substantially the same as that of 4th Anne;) “except in those cases where, according to the practice of the court, costs -would not be awarded against such complainant upon a decree rendered on hearing of the cause.” - This continues to he the statute law, to the present day, unless abrogated by the Code.

It is obvious, that the decisions of the English court of chancery upon the construction .to be given to the act of 4th Anne, and the practice to'be pursued thereunder, would have a controlling influence on the construction to be given to, and the practice to be had under, so much of our statute as is in the words of the 4th Anne. We consequently see that it soon became settled in our court of chancery, in conformity with the English decisions on the statute of 4th Anne, that under our statute a plaintiff could not be allowed for any cause whatever to dismiss his bill without costs, in any case other than those which, by the excepting clause, were taken out of the operation of the previous clause of the statute. The questions as to what construction should be given to that clause, and what cases fell within it, were soon mooted, and it was held that under its proper construction, it included those cases only, in which, prima facie, the complainant would not be liable for costs although he failed in the suit, as in the .case of an executor or administrator suing in right of his testator or intestate. (Hammersley v. Barker, 2 Paige, 372. Palmer v. Van Doren, 2 Edw. 384.) Ever since the decision of those cases it has been considered to be the settled practice of the court of chancery of this state not to allow a complainant on motion, to dismiss his own bill without costs, except in those cases where he files the bill era autre droit.

As the plaintiff did not bring the present action era autre droit, it follows that, viewing the action as one in equity, she could not, under the chancery practice, as it existed prior to the Code, be allowed to dismiss her bill, without costs. The question then arises, has the Code changed the former rules bearing on this subject?

The common law rule did not rest on any statutory provisions, but upon judicial decisions. The common law courts held that a party had no absolute right to costs until Ms right to a recovery in the action was established by a verdict, nonsuit or some equivalent determination of the issue ; that consequently they had power at any time before such determination to allow a discontinuance without costs, but that such power should be controlled by a sound discretion, and should only be exercised under peculiar and extraordinary circumstances, and a course of decisions defined, as before shown, the causes for which such power might be exercised.

As the power was neither given nor limited by statute, it is clear, that whatever may be the legal effect of the repeal by one statute of a previous one, continuing or limiting a power, it can have no application here. It is obvious, that to work by statute such a change in the former rule, as that the courts would feel themselves bound to grant a rule for a discontinuance without costs, for causes other than those, for which they had been accustomed to grant such discontinuance, the statute must specially define the causes for which such discontinuance may be had, and render it the duty of the court to grant a rule for such causes.

A mere general provision that courts might; in their discretion, allow, for such causes as they saw fit, a party to discontinue, without costs, would give them no greater power than they had been theretofore constantly exercising. It would be merely declaratory of the common law rule, and by the rules of construction that obtain in such cases the previous decisions and practice as to the cases in which the court would exercise its discretion, so as to allow a discontinuance, without costs, would be held to be applicable under the statute, and to establish for what causes the court under the statute would allow such discontinuance. Having been unable to find any special statute regulating the causes for which the courts shall permit a discontinuance, without costs, I have come to the conclusion that in actions at law the former rule still prevails.

As we have seen, the power of a court of equity to permit a plaintiff to dismiss his bill without costs was restricted by statute. If that statute is not repealed, the power is still so restricted. • There is no express repeal; and the point then arises as to whether there is not a repeal by implication.

' It is claimed that from the frame work of title 10 of the Code, equity actions fall within' section 306. This claim is undoubtedly correct; but it is further urged that, as by section 306, in the actions covered' by it, costs may be allowed or not in the discretion of the court, the former statute, restraining a court of equity from permitting a bill to be dismissed without costs, is repealed, because, by this section, the costs at all stages of the action are in the discretion of the court. I think this reasoning erroneous, and so thinking deem it unnecessary to pass on the point whether, assuming the conclusion to be correct, the court would, in equity cases, feel justified in granting the dismissal of a bill without costs, for causes other than those for which courts of" law have heretofore been accustomed to grant a discontinuance without them.

Having declared such claim erroneous, I will proceed to give my reasons therefor. All the sections contained in title 10, subsequent to the 303d, must be read in subordination “to it. That section, among other things, provides “ 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.” Having thus enacted that such prevailing party may in all cases be allowed costs, the Code proceeds, in subsequent sections, to designate in what cases the plaintiff, when he is so, shall be allowed costs as of course, and in what cases the defendant, when he is so, shall be allowed them of course. By an inspection of these sections it will be seen, that á large number of cases, (including equity actions,) in which, under section 303, costs may be allowed to the prevailing party, remain unprovided for. To provide for those cases section 306 was inserted, making the allowance of costs therein not a matter of course, but-dependent upon the discretion of the court. The three sections were enacted for the purpose of creating a system, according to which, the costs which may by section 303 be allowed, might be, upon a recovery, decreed by the court to belong to either the plaintiff or the defendant, or to neither. As section 306 is, and was inserted in the Code as, a necessary part of this system, and must be read in connection with, and subordination to, section 303, which legislates only as to costs to be allowed on a judgment, an implication that it gives a discretion on the subject of costs, to be exercised otherwise than upon rendering judg-ment, cannot arise.

But it may be further urged:

1. That the provisions of the Code are a legislation on the whole subject of costs, and that consequently all former provisions which are omitted from the Code, are by such omission repealed.

2. That as section 2 of title 1 of chapter 10 of part 3 of the Revised Statutes, is substantially re-enacted by the Code, in section 306, while section 1 of the same title, which prohibits the dismissal of a bill in equity without payment of costs is omitted, there was an evident intention not to re-enact section 1, and therefore there is a repeal of it by implication.

The answer to the first objection is: That the provisions of the Code are not a legislation on the whole subject of costs. This is clearly shown by the opinion of the court in Bartle v. Gilman, (18 N. Y. Rep. 260,) in which case it was held that section 24 of said title 1, relating to double costs, was not repealed by the Code. So also it was held in Dresser v. Wicks, (2 Abb. 460,) that section 26 of said title was not repealed.

The answer to the second objection is: The Code makes provision simply as to what sums may be allowed for costs in actions generally, upon a recovery had; in what cases on such recovery the plaintiff shall be entitled to them of course; in what cases the defendant on such recovery shall be entitled to them óf course; and in what cases on such recovery costs may be awarded or withheld in the discretion of the court. Section 1 of said title 1 of the Revised Statutes, makes provision as to the power of the court over costs prior to a recovery. ¡

The legislature might well argue that it was wholly unnecessary to insert any former provisions, which did not affect or relate to the particular subjects they were legislating on. As they will stand unaffected, it is superfluous to re-enact them. As the legislature might have reasoned thus, and as section 1 of such title 1 of the Revised Statutes, has no bearing on the particular subjects legislated on by title 10 of the Code, the conclusion that by the omission of that section from the Code, it was intended to. repeal it, cannot be arrived at.

We are referred to-the case of Gallaghan v. Egan, (2 Sandf. 742,) decided by this court, as being a direct adjudication that such section of the Revised Statutes, has been repealed by the Code. That was a special term decision. Although stated to have been made with the concurrence of all the judges, yet it is not equal in force to a general term decision, rendered after a more formal argument, than can be had at special term, and after each of the judges composing ■ the general term has carefully examined the case. On an appeal from that decision to the general term, the-judges before whom the appeal might have been argued would undoubtedly, notwithstanding the statement of their concurrence, have felt themselves perfectly at liberty to reverse the decision, if they thought a reversal called for. Of course we cannot regard it as controlling our decision in the case at bar.

But again; all that is contained in the decision on the subject under discussion is the following expression : “The provision of the Revised Statutes to which I was referred, (2 R. S. 631, § 1,) is repealed by the Code of Procedure a bare statement of a conclusion, without any reasoning to support it. The view of the learned judge seems to have been that the Code had repealed generally all the provisions of the Revised Statutes upon the subject of costs ; a view which cannot be supported by reasoning, and has since been declared erroneous by the Court of Appeals, in Bartle v. Gilman, (18 N. Y. Rep. 260.)

I am clearly of opinion that as the law now stands, whether we view this action as one at law or in equity, the plaintiff cannot be permitted to discontinue without costs. The order must be reversed, with costs of appeal and costs of opposing the motion below.

Robertson, Ch. J.

Even before the adoption of the present' Code courts of law, as well as those of equity, relieved plaintiás from the payment of costs on discontinuing their actions, in some cases,- according to established rules; sometimes even compelling plaintiffs to discontinue without receiving them. (The People v. New York Superior Court, 19 Wend. 104.) The only established cases in which such privilege was given, were those in which (1.) The plaintiff" would be finally exempt from costs, as in cases of executors, (Arnoux v. Steinbrenner, 1 Paige, 82;) or (2,) the prosecution of the action would be rendered fruitless by matters beyond the plaintiff’s control, "and occurring without his fault; e. g. where the defendant was imprisoned for máme, or discharged as an insolvent, (Lackey v. McDonald, 1 Caines, 116; Steinbach v. Hallet, 1 John. 141;) or had a personal privilege, relieving him from liability, such as infancy, ( Van Buren v. Firt, 4 Wend. 209 ;) or was beyond the jurisdiction of the court, (Taacks v. Schmidt, 19 How. P. 412;) or (3,) when the defendant had appeared by fraud, (Waterbury Leather Manufacturing Co. v. Krause, 9 Abb. Pr. 175, note 4;) or where a decision had been reversed, or a law changed, on the strength of which the action was brought. But no case is to be found, where an. inquiry into the whole merits was required, in order to determine the possible ultimate escape of the plaintiff from, paying costs.

Ho statute seems to have given costs to a defendant upon a voluntary or compulsory dismissal of a bill in equity until the passage of an act in 1787, revised 1813, which contained a general provisión, giving costs to the defendants in such cases. (2 N. Y. R. L. 346, § 16.) Yet subsequently thereto, previously established exceptions were re cognized, and such recognition was afterwards adopted by the revisers in 1830, and expressly incorporated in their revision, (2 R. S. 613, § 1,) in cases “ where according to the practice of the court, costs would not be awarded -against the complainant upon a decree or judgment, upon the hearing of the cause.” This received a judicial construction in Hammersley v. Barker, (2 Paige, 373,) by the late learned chancellor of this state. He expressly declared therein, “that it never could have been the intention of the legislature to compel a court to examine and decide upon the whole merits of the complainants’ original claim, for the purpose of ascertaining whether he would be liable for costs at the hearing;” and therefore construed such exceptions as only including cases “ where the complainant, prima facie, would not be liable for costs.” A trial of all the issues in an action, upon affidavits made ex parte, merely to decide the right to costs, would be a startling innovation, contrary to all the practice of the court. It would lead to harrassing a defendant by experiments, and to useless if not vexatious litigation. The defendant might be compelled to defend himself twice in one action, without a similar risk on the part of the plaintiff. . Both reason and authority are against any such privilege; and unless the authority of Hammersley v. Barker, (ubi supra,) can be shaken by some statutory change, its doctine must govern in this case.

In a case formerly decided at special term in this court, sanctioned by all the justices, in its conclusions, (Gallagher V. Egan, 2 Sandf. 743,) the learned justice who gave the opinion, without noticing the provision of the Revised Laws of 1813, before cited, stated that the provision in the Revised Statutes before referred to, (vol. 2, p. 631, § 1,) had been repealed, but did not state when or how. It is certainly not inconsistent with any provision of the Code of Procedure, unless it be the 306th section, and if not inconsistent with that, it is still in full force, (§ 469.) The 304th and 305th sections of that Code, designate the kinds of actions in which the plaintiff or defendant succeeding is to be allowed costs, but that is only in case of a recovery. The 306th section leaves the allowance of costs in all other actions, (meaning of course on their final disposition,) after trial, or otherwise, to the discretion of the court. These three sections dispose of all questions of costs on final judgment. The actions intended to be embraced by such last section, (§ 306,) are held to be those in equity'. (Hinds v. Myers, 4 How. Pr. 356; Gallagher v. Egan, 2 Sandf. 742; Wood v. Brooklyn Fire Insurance Company, 10 How. Pr. 154; Sunney v. Roach, 4 Abb. Pr. 16; Eagleson v. Clark, 2 id. 364; Webb v. Daggett, 2 Barb. 10; O’Hara v. Brophy, 24 How. Pr. 379;) including of course, actions for the foreclosure of mortgages. (Bartow v. Cleveland, 16 How. Pr. 364.) There was therefore ample authority in the court to grant a discontinuance without payment of- costs in the case first referred tú, (Gallagher v. Egan,) the action in which was to foreclose a mortgage, if they could have done so, prior to the passage of the Code and the Revised Statutes. In that case the defendant, having bound himself to discharge the mortgage in question, offered to pay it without costs, but the original mortgagors and a judgment creditor, whose judgment had been paid, insisted on being paid their costs before a discontinuance was allowed. The court held substantially, that as they would not be entitled to any, except in case of sale and a fund brought into court, they were not entitled to prevent a discontinuance where the right to such sale was defeated by the payment of the debt. This was in accordance with all previous decisions, and was not made upon the merits, since the plaintiff’s right was acknowledged, and he could gain nothing by going on with the action. A repeal of the provision of the Revised'Statutes already alluded to, (vol. 2, p. 613, § 1,) was not necessary to sustain such decision, and the remark of the learned judge to that effect may therefore be considered as a mere obiter dictum.

The repeal of all statutes establishing or regulating costs and fees of attorneys and others, in civil actions, by the first' paragraph of the 303d section of the Code, only extends to restrictions upon bargains between attorneys and clients, as it is immediately followed by an express renewal of them, and a declaration that the measure of the compensation of the former should be left to the agreement of both; and that is succeeded in the same section, by a provision giving what it calls costs, to the prevailing party, upon a j udgment, by way of indemnity for his expenses. But only upon a judgment. The whole section was evidently intended merely to make the costs allowed in a cause the property of the party, and not of his attorney, and not to repeal .prior provisions, as to costs, except as to their amount.

But even if the provisions of the Revised Laws of 1813, and Revised Statutes before referred to, had been repealed, yet if the discretion mentioned in the 306th section of the Code could be exercised in regard to the discontinuance of actions, as well as the determination of them, such discretion could not be prudently exercised in undertaking to anticipate what would be the judgment of the court on a trial by witnesses examined viva voce, and subjecting the defendant to the expense and annoyance of a double trial, in the action, and it never was exercised to that extent before any statutory regulation on the subject.

Moreover, this action was one of a legal as well as an equitable nature. The plaintiff demanded as relief, the reimbursement of a tax paid, which she claimed under the agreement, if reformed. The 304th section of the Code specifies as one of the kinds of action, in which the plaintiff must be allowed costs, those which .are “ for the recovery of money,” provided he recover fifty dollars; and the next section gives costs to the defendant in the same actions, unless the plaintiff be entitled to them. In this 'case the plaintiff demanded and must have recovered, if any thing, over fifty dollars, on the trial of the issues, or have failed i.n her action, altogether. There was therefore no discretion vested in the court, as to the allowance of costs, if the case had gone on to trial.

Ho opinion was given on the decision .of the motion, but the only reason urged before us for the right to discontinue without cost's was, that it being an equitable action, the court, on the trial, had a discretion to exempt the plaintiff from costs. This, on settled principles, they would have no right to do as a matter of course; but no answer was made to the objection that being also an action for the recovery of money, and the plaintiff, therefore, necessarily entitled to costs if she succeeds, she is also bound to pay them, if she fails.

For both reasons, the order appealed from must be reversed, with costs.


author: Jones, J.

text:
    The Same vs. The Same.
    1. Where a new trial is ordered, on appeal, the clerk cannot tax costs of the ' appeal, unless the order of the court contains a direction authorizing it.
    2. Under an order allowing costs of opposing a motion, $10 is taxable.
    3. An appeal from an order allowing the plaintiff to discontinue without costs, may be regarded as a motion, for the purpose of determining the costs, which are $10, and the cost of printing.
    (Before Jones, J.
    at special term, April, 1867.)
    Motion for the re-taxation of costs. The court, on appeal, having reversed an order made at a special term, with costs of the appeal, and costs of opposing the motion below, the defendant made out a bill of his costs, and gave notice to the plaintiff of the presentment thereof to the clerk of the court for adjustment. Both plaintiff and defendant appeared before the clerk, and the plaintiff objected to several items of the bill, which were stricken out hy the clerk.
    Of the items thus stricken out, six were for the costs and disbursements on the appeal to the general term, from the judgment in favor of the plaintiff, and amounted, in the aggregate, to $148.25, viz:
    For costs of opposing motion to modify the first
    general term order,........ . . $10 00
    For costs of opposing motion to discontinue without
    costs,............. . . 10 00
    For costs before argument of second appeal, . . 20 00
    For argument of second appeal, . . . . . . 40 00
    For printing papers on second appeal, . . . . 12 90
    The defendant, on this motion for a re-taxation, sought to reverse the clerk’s decision in striking off these items.

      Mr. McDermot, for the defendant.

      Mr. Ridgway, for the plaintiff.
   Jones, J.

The defendant is not in a position, at present, to tax his 'costs. The action is still pending, no determination of it having yet been made. A new trial has been granted to the plaintiff, and she may bring the cause on for trial. The order which she obtained, discontinuing the action without costs having been vacated, the action stands in the same position as it did before that order was made.

These 'remarks apply to all the items of the bill, except the costs given by the last general term 'order. As to these costs, however, they are interlocutory; and' until a determination of the action, the clerk has no power to tax them, unless expressly authorized by the court. Both these points, however, having been waived by the plaintiff’s counsel, and the motion having been submitted to me by them for a decision on the merits, I will proceed to so consider it.

The decision of the clerk in refusing to allow the costs of the first appeal, was correct. The granting of the costs of that appeal rested entirely in the discretion of the general term, which ordered the new trial. That general term did not see fit to give costs; neither the clerk, nor a judge at special term, nor any general term, except on a re-=argument ordered, can review that decision. It is urged that, as the order of the general term is silent on the subject of costs, the usual costs follow the decision. This is not so. The subject of costs is a matter of statutory regulation. A party obtains costs only through the statute, and obtains them only in cases where the statute gives them. How,, looking at the provisions of the Code on the subject of costs, it is evident that where a new trial is ordered on appeal, costs of the appeal are not given, of course, to either party, hut the allowance of them is placed in the discretion of the general term that heard the appeal. Being thus in the discretion of the general term, that discretion must be affirmatively exercised in favor of a party, in order to entitle that party to them. If it is not so exercised, the case is one where no provision for costs to either party is made. This is the view taken by the court in Nellis v. DeForrest, (6 How. Pr. 413,) and in Savage v. Darrow, (4 id. 74.)

For the same reason the item of costs for opposing motion to modify the order, must he disallowed.

The general term, on the last appeal, having given to the defendant the costs of that appeal, ánd costs of opposing motion to discontinue without costs, those costs are- probably taxable, and the question is, how much these posts are ? The general term order did not specify the amount of costs. "When such is the frame of the order, the full amount of the costs given by statute for the proceedings for which, the court adjudges costs to a party, is taxable. /Upon this rule, the sum of $10 is taxable, as the costs, of opposing the motion to discontinue without costs.j

The only remaining question is, as to what amount of costs may be taxed for the second appeal. The appeal in question is from an order, which, in effect, determined the action, and prevented a judgment from which an appeal might be taken. It, therefore, fell within the cases enumerated in section 349, and consequently section 307, by its express terms, does not apply. Unless the appeal can be regarded "as a motion made at general term, then, although the general term gave costs, yet, as the statute fixes no amount, no costs could be taxable.

¡But such an appeal is tó be deemed a motion made at general term; consequently the costs given are. motion costs, which are $10, and the disbursements for printing the appeal papers. (Savage v. Barrow, 4 How. Pr. 74. Nellis v. DeForrest, 6 id. 412.)

On the argument of this motion, it seemed to be supposed, by the defendant’s attorney,* that the decision of the general term, on the last appeal, had some bearing on the questions raised on the motion. That decision, however, was simply as to the power of the court to allow a plaintiff, before the determination of the action, to withdraw his suit without payment of costs, for the purpose of avoiding a decision whereby he might be charged with costs. It-in no way touched upon the question as to the power of a judge.or court, upon making a decision, to grant or withhold, by that decision, the costs of the proceedings which resulted in the decision. The two subjects are entirely distinct, and the principles relating to each are equally distinct.

It results from the views above expressed that a retaliation must be ordered, for the purpose of enabling the clerk to add to the bill of costs these items:

Costs of opposing motion to discontinue without

costs,.....• ..........$10 00

Costs on second appeal to general term, .... 10 00

Disbursements for printing papers on second appeal, 12 90

¡No costs of this .motion to either party.


text:
    Kathleen E. Brown, plaintiff and respondent vs. Jason W. Hardie et al. defendants and appellants.

      1. An amendment of the judgment, in an action for the recovery of personal property and damages for the detention thereof, by allowing the defendant the alternative of returning the property claimed, is a material alteration, and the defendant is entitled to notice of the change having actually been made, or the entry of the new judgment. A mere notice of permission to amend having been given is not sufficient to start the running of the time for bringing an appeal.

      2. An appellant, by not preparing and serving a case, is only cut off from using on the appeal any thing but the record containing the pleadings, verdict and judgment.
    (Before Robektsoh, Ch. J., and Babboub, J.)
    Heard August 30, 1866;
    decided May 6, 1867.
    This was an appeal from an order made at special term, dismissing the appeal of the defendants from a judgment entered in the action, for want of prosecution. The action was one for the recovery of personal property and damages for its detention. On the 27th day of April, 1866, judgment was entered for the value of the property as assessed by the jury, and the .damages awarded by them, without awarding any return of the property, in the alternative. It was claimed for the plaintiff that notice of such judgment was served the same day, on the attorney for the defendants. The defendants having obtained sixty days’ time to make a case for an appeal, the plaintiff moved, after the end thereof, for leave to amend his judgment by inserting an award of a return of the property claimed, as an alternative, which motion was granted, with leave to amend within five days, letting such judgment stand and operate as of the day of its first entiy. Eotice -of the entry of such order, and the order itself, were served on the defendants’ attorney. The judgment was amended within the time so allowed. The sheriff, about the 10th of June, 1866, levied on property of the defendants under the judgment so amended. And on the 31st day of July, 1866, the defendants filed and served notice of appeal and undertaking on the plaintiff’s attorney and the sheriff Mo case or exceptions were ever served. The affidavit of service of notice of the original judgment was made hy the plaintiff’s attorney^and stated that it was made by leaving it in the absence of the attorney for the defendants, in a conspicuous place in his office. Contradictory affidavits were read to prove the impossibility of such service.

      A. Mclntire, for the appellants, defendants.

      R. A. Pryor, for the respondent, plaintiff.
   Robertson, Ch. J.

It would have been error in the

judgment, as it originally stood, unless modified, (Dwight v. Enos, 5 Seld. 470; Fitzhugh v. Wiman, Id. 559,) not to allow the defendants the alternative of returning the property claimed. The change in it by inserting such alternative was a material alteration, and the defendants were entitled to notice of the change having actually been made, or the entry of the new judgment. Mere notice of permission having been accorded to do so, was' not sufficient to start the running of the time for bringing an appeal. The appeal, therefore, was in time. The defendants, by not preparing and serving a case, were only cut off from using on the appeal any thing but the record containing the pleadings,- verdict and judgment. (Gen. Rule, 35.) The order dismissing the appeal was, therefore, erroneous, This view renders it unnecessary to inquire whether the special term had jurisdiction to make the order. Generally no such application is necessary, as general court rules 35 and 37 provide for the consequences of neglect. Only the general term has a right to give judgment for not serving papers, because the cause must be on its calendar before judgment can be rendered. (Gen. Rule, 42.)

The order appealed from should be reversed, without costs


author: By the Court, Robertson, Ch. J. Barbour, J. Jones, J.

text:
    Humphrey H. Swift et al. plaintiffs and respondents, vs. John E. Wylie et al. defendants and appellants.
    1. Where defendants fail, upon a motion to vacate an order of arrest, to overthrow the charges contained in the affidavit upon which such order was obtained, that certain moneys received by them in a fiduciary capacity, were still retained by them, the motion to vacate the order-of arrest should be , denied.
    2. The capacity in which a defendant receives money of the plaintiff’s, so as to subject him to arrest for withholding it, is part of the cause of action, and must he proved on the trial; and neither a referee nor the court has a right . to try that question on affidavits. Hence, a referee has no right to discharge' a defendant, merely because he has arrived at the conclusion from all the evidence offered, on a motion for such discharge, that the money due from the defendants was not received in a fiduciary capacity. Per Robebtson, Ch. J. Babboub, J. dissenting.
    3. Whether an oral agreement that a vendee shall retain possession of choses in ■ action in his hands for sale as an agent, as part of an oral contract by the owner, to sell them to him, is not or is good as a delivery of them to take such sale out of the operation of the statute of frauds, it will at least operate to revoke any power of selling given previously, to su'ch vendee, as an agent, and destroy all previous fiduciary relation between him and the vendor. Per Robebtson, Ch. J.
    (Before Robebtson, Oh. J., and Babboub and Jones, JJ.)
    Heard June 12, 1866;
    decided October 7, 1867.
    This was an appeal from an order denying -a motion to vacate an order of arrest, and setting aside the report of a referee to whom such motion had been referred. The order of arrest was originally issued upon an affidavit of one of the plaintiffs, charging the defendants with having received nearly forty-five thousand dollars as the proceeds of the sales of certain promissory notes belonging to the plaintiffs, and placed by them in the hands of the former for sale, who embezzled such proceeds. A motion was made on behalf of the defendants to vacate such order upon their own affidavits and those of others, denying such allegations, which was opposed by the affidavits of the plaintiffs and others. It was heard by one of the justices of the .court at special term, and an order made by him thereupon referring the decision of such motion to a referee. Which order also directed the affidavits used on the motion to be read before the referee on hearing such motion, and the person making them to be produced beforé him for further examination and for cross-examination, with liberty to either party to examine other witnesses and produce other testimony. Such order also directed that the referee decide the motion upon all the evidence thus before him, and report his decision, and that after confirmation thereof, an order should be entered in conformity therewith. Subsequently the referee named in such order was changed by consent of the parties, and the reference was conducted before such new referee. Both parties appeared and examined witnesses on such reference without objection, and no appeal was taken from such order. The referee made his report deciding that the order of arrest should be vacated and set aside. Exceptions were filed on behalf of the plaintiffs, to such report, bio tice was given on behalf of the plaintiffs, of an application on their part to sustain such exceptions, overrule or vacate such report, deny the original motion to vacate the order of arrest, and modify the order of reference founded upon the affidavit on the -part of the plaintiffs, such exceptions, the complaint in this action, and “ all the proceedings upon the reference.” Upon such application an order was made by a different justice of this court from him before whom the motion to vacate the order of arrest was originally made sustaining such exceptions, setting aside the report of the referee and denying the motion on behalf of the defendants to vacate the order of arrest. Such order is alleged, in itself, to have been made upon the original' affidavit on which the order - of arrest was granted, the affidavits previously used on the motion to vacate the order of arrest, “ the minutes of the referee,” the order of reference and that substituting a new referee, the referee’s- report and the plaintiffs’ .exceptions thereto, and the notice of motion.
    From such order the defendants appealed.
   By the Court, Robertson, Ch. J.

The order of reference made in this case, disposed at least temporarily of the motion to vacate the order of arrest. The subsequent hearing of the motion to confirm, and the counter motion to refuse to confirm, the referee’s report, an d the refusal to confirm it, left it in the power of the court- to dispose of the original motion itself, or send it to the same or a different referee, if such order was not beyond its jurisdiction, as has been suggested. Although on notices of motion to confirm, or to refuse to confirm, a referee’s report the authority of the court may end with its refusal to confirm, nothing prevents a renewal of the motion which thus remains undisposed of, and such renewal, it would seem, might equally properly be made upon notice to that effect accompanying the notice of motion to confirm, or set aside the report. If any objection existed to the regularity of the proceedings, it seems to have been waived on the hearing at special term; and the original motion heard on the original affidavits, and- on what seems to have been assumed on both sides to have been the testimony taken before such referee.

It is not perhaps material, in this case, to pass definitively upon the question whether the court can authorize a referee to decide a motion, as well as all the issues in an action. The provision in the Code of Procedure (§ 271, subd. 3) for ordering a reference, where in the course of an action, a question of fact arises, • (otherwise than on the pleadings,) does not expressly limit such reference to determining such fact, and there is as much room for implying a power to authorize the determination of the motion which may depend on such question of fact, as there is for implying a right to give judgment upon the finding of referees upon all the issues, -when they are referred merely because a long account is involved. There is no other provision in the Code for references of interlocutory matters in what would formerly have been an equity suit, and it should therefore be . construed as giving courts authority to confer at least the same powers on referees, as courts of equity formerly did as masters, which included the right to decide. There seems to be no good reason why, when the decision óf a motion turns on the existence of certain facts, such as those presented by the Code as the foundation of an order of arrest, a referee may not be trusted, to decide such motion as well as the facts on which it depends, as safely, as to decide a cause after passing on the issues of fact in it. In this ease the fact of having received money in a fiduciary capacity, determined the whole motion. If the order had been made to pass upon that fact alone, in order to obviate the objection under discussion, the legal question of what constitutes “fiduciary capacitywhich is the main one in the case, would have to be passed upon by the referee, leaving nothing further for the court to decide. All the cases in which similar references have been ordered, seem equally to involve similar intricate questions of law, or of fact and law mixed. (Pendleton v. Weed, 17 N. Y. Rep. 72. Dwight v. St. John, 25 id. 203. Barron v. Sanford, 14 How. 443. S. C. 6 Abb. 320, n. Stelle v. Palmer, 7 id. 181. Meyer v. Lent, Id. 225. Demelt v. Leonard, 19 How. 140.) The question, indeed, seems to resolve itself into one of mere form. Ho exception is necessary to the report of a referee, except when an error occurs in a determination by him on the facts. (Marshall v. Smith, 20 N. Y. Rep. 251.) By the 272d section of the' Code, a mere report of facts having only the effect of a special verdict, an adjudication must be applied for on it. (Kirby v. Fitzpatrick, 18 N. Y. Rep. 484.) A report of a referee, therefore, other than one upon all the issues, can never be confirmed except on a hearing, (Gen. Court Rule, 321,) upon or without exceptions according as the report is of facts only, or a decision upon them also. In most cases the form of the order is that the referee report the facts in his opinion, which is substantially the same thing, except that perhaps no exception- need be filed. This cannot be a question of jurisdiction, of that kind which consent cannot confer, (See Harris v. Bradshaw, 18 John. 26;) and such consent is inferrable from both parties acquiescing in the order, by not appealing from it. ( Ubsdell v. Root, 3 Abb. 142.) I do not see any thing peculiar in a motion to discharge from arrest, to take.it out of the ordinary rules. The court is bound to do exactly what a referee does, when the fact of the receipt of money by the defendants in a fiduciary capacity is alone submitted to him. If material, therefore, I should be inclined to think that the order of reference was within the authority of the court.

The referee, however, by the opinion accompanying his report, appears to have been influenced in his decision, by the consideration that if the statements of the parties neutralized each other, and there were no circumstances to corroborate one more'than the other, he would be obliged to hold that the plaintiffs had failed to establish their case against the defendants.” Indeed the whole course of his reasoning shows that he undertook to decide the merits of the action, at least so far as regarded the ground of arrest. But he was only authorized to decide the motion ; and as he. could not be governed by different rules from those which would control the court in doing the same thing,'and it is practically immaterial whether he or the court ultimately decided it, the propriety of such rule requires investigation.

The cases are very strong to establish the doctrine that under the Code the capacity in which a defendant receives money so as to subject .him to arrest for withholding it, is part of the cause of action, and must "be proved on the trial. (Cousland v. Davis, 4 Bosw. 619. Goodrich v. Dunbar, 17 Barb. 644. Republic of Mexico v. Arrangoiz, 11 How. 1, 576. Frost v. McCargar, 14 id. 131. Giller v. Seixas, 4 Abb. 103. S. C. 6 id. 319, n. Barret v. Gracie, 34 Barb. 25.) One case, (Goodrich v. Dunbar, ubi supra,) lays great stress on the use of the phrase, “In an action,” in the first three ■ subdivisions of the 175th section of the Code, which is . omitted in the fourth, as indicating the nature of the action and not merely grounds for collateral remedies. If, therefore, such capacity was part of such cause of action in this case, neither the referee nor the court had a right to try the question on affidavits. This was the law long before the Code was adopted, (Welsh v. Hill, 2 John. 100,) although it did not apply where matters in discharge were pleaded. (Jordan v. Jordan, 6 Wend. 524.) Since the Code, the rule has been continued, that in order to justify a discharge the defect of evidence must be such as to warrant a nonsuit, (Frost v. MeCarger, 14 How. 131;. Barret v. Gracie, 34 Barb. 25,) and in this court two cases at a considerable interval of time apart, (Bedell v. Sturta, 1 Bosw. 634; and Cousland v. Davis, 4 id. 621,) hold that a mere contradiction by other affidavits of that on which the arrest has been made, are not sufficient to warrant a discharge. The cases enumerated in the Code, in which a right of arrest is given, are mere exceptions to the general abolition of imprisonment in civil cases, and not part of á new provision. The referee in this case, therefore, however satisfied he might be on all the evidence, that the money due from the defendants was not received in a fiduciary capacity, had no right to discharge them.

Assuming, however, the rule to be otherwise, and that in order to hold the defendants to bail, the evidence must preponderate in favor of the plaintiffs, the ultimate admission of the defendant Wade, on his examination before the referee, that they had originally received the notes in question as brokers to sell them, (notwithstanding he had denied it in his affidavit on which the motion was made,) entirely shifted the burden of proof. It rebutted whatever favorable conclusion might be drawn from the mere possession of the notes; the presumption being that the relation of the parties remained the same throughout, as principal and agent, unless there was proof that it was changed into that of buyer and seller. The plaintiff Swift utterly denied that any such change ever took place. [The court, after an examination of the evidence, to show that such denial was corroborated by circumstances, proceeded.]

Opposed to the testimony of Swift, so corroborated by circumstances, is that of the defendant Wade. [The court, after a critical analysis of Wade’s testimony, proceeded.] So much improbability and uncertainty, and such failure to explain suspicious circumstances and discrepancies, detract greatly from the reliability of the statement of the defendant Wade, and it must yield to that of the plaintiff Swift, when weighed against it. The referee was, therefore, bound to have decided in favor of the plaintiffs, and his report was properly set aside.

Whether an oral permission to a vendee to retain possession of choses in action, (previously in his hands for sale as an agent,) as part of an oral contract by the owner to sell them to him, is a delivery of them within the statute of frauds, it is not' necessary to decide. Such a sale would at least operate to revoke any power of selling previously given to such vendee as an agent, so as to destroy any previous fiduciary relation between him and the vendor, and leave the plaintiffs to whatever other remedy they might have.

The order appealed from must, therefore, be affirmed, with $10 costs.

Barbour, J.

This is an appeal from an order of a judge of this court denying the defendants’ motion to set aside an order of arrest previously granted under the 179th section of the Code, in an action for refusing to pay over about $45,000, allowed in the complaint to have been received by the defendants in a fiduciary capacity.

The printed papers before us show that after the order of arrest was granted, the defendant applied, on affidavits, to set it aside; that the learned justice, before whom the same was brought on- to be heard at special term, made an order referring such motion to a referee, “to hear and determine the sameand further directing that such referee report his decision, and that after confirmation thereof, an order be entered in conformity therewith; that the referee subsequently made his report, in which, after reciting that he had read and heard all the testimony,- both written and oral, including affidavits and the testimony of certain witnesses who were produced and examined, he decided and determined that the order of arrest ought to be discharged, and thereupon proceeded to, and did, in terms, make an order directing the said order of arrest to ■ be discharged by an order to be entered upon his .report, with |1'60 costs, including his fees; that the plaintiffs’ counsel made a motion at special term, upon the pleadings, affidavits, proceedings before the referee and exceptions, to vacate or modify the report of the referee, and to deny the defendants’ motion to discharge them from arrest; and that the judge, before whom such last mentioned motion was made, thereupon ordered that the exceptions be sustained ; that such report be set aside ; and that the motion to discharge the defendants from arrest be denied. It is from this last mentioned order that this appeal is taken. It purports on its face to be made upon the complaint, certain affidavits, the order of reference, the minutes of the referee, and his report, with the exceptions thereto.

The printed case before the court on appeal contains, (1) the original warrant of arrest, with- the affidavit on which the same was founded; (2) the complaint; (3) notiqe of motion to vacate the order of arrest, with the affidavits on which such motion was made; (4) affidavits read on the part of the plaintiffs in opposition; (5) the order made at special term, referring that motion to a referee to hear and determine; (6) opinion of the referee; (7) report of referee, containing, after recitals, his findings of fact and conclusions of law, followed by his order directing the order of arrest to be discharged; (8) the plaintiffs’ exceptions to the report; (9) notice of motion to vacate or modify the referee’s report, and to deny the motion of the defendants to vacate the order of arrest; (10) the order appealed from.

Intermediate the order of reference and the opinion of the referee, after the title of the cause, follow fifty-three pages of questions and answers, with the- names of seven persons making such answers. The case does not state that those persons, or any of them, were examined on the reference in question, nor, except in a few instances, on whose behalf, or by or before whom or where they were examined; nor does it show that any of them were sworn before the referee or any officer authorized to administer oaths; nor, indeed, is there in the case any statement tending to show that these fifty-three pages of questions and answers were in fact, examinations of witnesses before the referee on the reference in this action, or that the same constituted, or were contained in the minutes of the referee. Upon the argument at general term, however, the counsel, on both sides, assumed that such questions and answers constituted the oral testimony which was taken before the referee, and reconsidered, on the exceptions, at special term, and, both upon the argument and in their printed points, referred, in numerous instances, to the same, as evidence taken before the referee upon the motion. Unquestionably, the case was irregular so far as concerned those fifty-three pages, because of the omissions before, mentioned, and the court might well have refused to hear the appeal, for that reason, until an amendment should be made. But that was not done, and the parties had a right, (by their counsel,) to waive such irregularity, as they did. I see no reason, therefore, why those questions and answers ought not to be considered as a portion of the evidence before the court at special term, upon the making of the order appealed from.

The question, then, is whether the evidence contained' in the affidavits and those questions and answers, was or was not sufficient to warrant the decision of the learned justice.

The complaint avers, and the affidavit of one of the plaintiffs states, that, on or prior to the 10th of March, 1865, the latter placed-certain promissory notes, amounting to about $45,000, which had been made by other parties, and belonged to the plaintiffs, in the hands of the defendants, who were brokers, for sale, and that they sold the same, and refused to pay over the proceeds when demanded. The defendants do not deny that the notes were sold and that they refused to pay over the proceeds, but they claim that the notes in question were purchased by them from the plaintiffs at a discount of nine and one fourth per cent; that they thereupon credited the purchase price to the latter, and rendered to them an account thereof, and undertook and agreed to pay interest thereon to them.

The affidavit of one of the defendants, (Wade,) denies that the plaintiffs, or either of them, ever employed the defendants to sell the notes in question for them, and further avers that “ the defendants never bore any relation to the plaintiffs in respect to the said notes, other than purchasers thereof, and debtors, holding the consideration of the sale to the plaintiffs’ credit,-upon interest.” This, clearly, is an absolute and unqualified denial of the allegation contained in the complaint and the affidavit of one of the plaintiffs, that the notes were delivered to the defendants, as brokers, to be sold by them for the plaintiffs.

In the same affidavit, however, the defendant says that some days prior to the 10th of March, 1865, one of the plaintiffs placed in his hands eight of the nine notes in' question; that when such notes were so handed to the defendants, the said plaintiff requested them to manage them if they got an opportunity, meaning thereby, to procure the negotiation thereof,” and that subsequently, the plaintiffs sent in the remaining ninth note. The same defendant, on his examination before the referee, (assuming the questions and answers before referred to, to be such examination,) stated that, (I quote his words,) “ the notes were handed to me for sale, by H. H. Swift,” (one of the plaintiffs,) “ and, after being in my possession some time, were bought by me from him.” He subsequently stated that the “ some time ” meant two or three weeks, and that he had the notes in his possession, subject to the order of W. Swift, until he bought them. The context shows that where he uses the word “me,” or “I,” he speaks of his firm. The contradiction between these statements of the defendant and those first above referred to are so apparent as to require no- comment. They cannot, both, be true; and the conclusion'is irresistible, either that the defendant has willfully sworn to a falsehood, or has testified so carelessly and recklessly, in regard to a most material question, that his evidence' should be scrutinized with great care.

The only evidence given on the part of the defendants to prove the purchase by them of the notes in question, except such as may properly be inferred from the presentation of an account, of which I will hereafter .speak, was the testimony of the same person who thus contradicts himself; his partner stating that he had no personal knowledge edge upon the subject,

[The learned judge, after scrutinizing the testimony of Wade, and facts claimed to corroborate him, added.] The testimony of the defendant Wade in regard to the alleged purchase of the notes by his firm, is not only fully contradicted by the affidavit of the plaintiff, with whom he claims to have made the agreement, but by the .defendants’ own books. [The learned judge then proceeded to analyze the the entries in the defendants’ books in reference to such supposed sale.] hior, I think, did the defendants establish the fact that the proceeds of such notes were loaned to them by the plaintiffs, or that the latter agreed to permit such proceeds to remain jn the hands of the former, upon interest. For the reasons above stated, the testimony of the defendant Wade upon the subject, need not, therefore, be considered. Besides him, two witnesses were examined upon that subject, on the part of the defendants. [The learned judge after examining the testimony of. such witnesses as to the entries’on the books of the defendants, and such loan, proceeded.] If the statement of the last witness (Tobias) to the plaintiff", that the amount of the. account had been placed to the credit of.the latter, had been, true, and such plaintiff had expressly assented to that disposition of the fund, it may be that it could no longer be considered as held by the defendants in a fiduciary capacity. But the statement so made to the plaintiff, that such credit had been given on the books of the defendant, was wholly untrue, as no credit whatever, upon that account, was made upon the books until some twenty days thereafter; and, besides, there is no evidence in the case which tends to prove the assent of the plaintiff to such statement in régard to the credit given his firm on the defendants’ books, whether true or false.

■ It is true, if the defendants’ witnesses are to be credited, that the account showing the proceeds of the notes also contained a credit for interest; that the plaintiff' was particularly informed, that such interest was included in the account, up to its date; and that he assented to it by saying, “all right.” But that by no means changed the relation which existed between the parties as broker and principal. There was nothing to be done in futuro; nor can it be considered an agreement between the parties, that such proceeds had gone, or should go, into ■ their general account. The evidence shows, that the defendants had actually used the money which they' had received for the notes, in their business; and they were, therefore, equitably, if not legally, bound to pay the plaintiffs, interest for such use, to the same extent as other trustees, using trust funds, would bé. The defendants, therefore, wholly failed, upon their motion to’ vacate the order of arrest, to contradict, in any essential particular, the charges contained in the affidavit upon which such original order was obtained, to the effect that the moneys in question were received, and still retained, by the defendants, in a fiduciary capacity For that reason, the order appealed from was properly made and should be confirmed. I may add. that the same result, and with still .stronger reason, must be reached, if that portion of the case which Avas treated upon the argument as oral testimony taken before the referee, is wholly disregarded.

I have thus, with great care, examined and considered the voluminous testimony before us, for the purpose of ascertaining, whether that of the plaintiffs of the defendants touching the material charge, which is the subject of this motion, preponderated; for, I cannot subscribe to the doctrine laid down, in this court, in Bedell v. Sturta, (1 Bosw. 634,) and Cousland v. Davis, (4 id. 620,) and when a proper occasion arises at general term, shall be prepared to suggest to my brethren the propriety of reconsidering the decisions there, in this regard. I can see no reason now, whatever there may have been in former times, for holding that a defendant who has been committed to prison upon the -plaintiff’s affidavit, containing a charge like this, should be kept there, notwithstanding such charge is clearly and wholly denied by a person of equal knowledge and like character. It seems to me contrary to every sound principle of equity and justice, to permit a plaintiff to have that advantage, • merely because the law has allowed him to make the first oath. If a plaintiff procures the arrest of the defendant upon an ex parte charge, Avhen the question as to its truth is brought before the court on motion of the latter,.the plaintiff ought to be required to prove such charge to the satisfaction of the court, according to the well known rules of evidence in other cases. Certainly, if he cannot do that upon a motion to discharge the prisoner, every court must find it difficult to believe that he can do so upon the trial of his action.

I am compelled, though with great diffidence, to differ from the learned chief justice in regard to the form of the order which ought to be made. It appears to me that the court had no jurisdictional power to make the order of reference, and, therefore, that the findings and decision of the referee were wholly extra judicial. Although the testimony taken before him. might be read as evidence,' (as it was, without objection,) before the court at special term, on the defendants’ motion there, to vacate the order of arrest, precisely as any paper, pertinent to the issue might be so read by the tacit consent of counsel, I know of no authority in the court to delegate to a referee its power to commit a man to jail, or release him therefrom or, even to take testimony and report the same, with his opinion, without the consent of the parties, on a question like this, except such as is conferred upon it by the 271st section of the Code. It does not appear that such consent was given, and the matter referred was a question of fact arising upon the pleadings themselves, and, therefore, did not fall within the third subdivision of that section. It is possible that the parties, by proceeding under that order, waived all objections to the reading of the testimony so taken, but they could not waive the question as to the jurisdiction of the referee to determine the matter. I think, therefore,' with great deference, that it will be most proper .to" direct an order confirming the decision at special term, as it stands.

Jones, J.

I concur in the conclusion at which my associates have arrived, for the following reasons :

1st. The objection, that the exceptions were not presented in proper shape to be heard, does not appear (by the papers) to have been taken below. The matter was there argued and decided on its merits, this objection being waived by reason of its not having been taken. Consequently, the defendants are not now in a position to urge it.

2d. In this case the facts upon which the order of arrest was granted are the same as those which constitute the cause of action. In such case a motion to vacate the order of arrest will not be'granted unless the whole of the proof adduced on such motion is such as, if it were evidence given on the trial of the cause, the court would be obliged to non-suit the plaintiff for insufficiency of proof. In the present case, I think the plaintiff could not be nonsuited for insufficiency of the proof to support the cause of action.

3d. Until the making of the order appealed from, the original motion to discharge the order of arrest remained undetermined. The order of reference, the proceeding thereon, and the hearing of the exceptions to the referee’s report, were all proceedings on that original motion, and constituted parts of it. The hearing, then, which resulted in the order appealed from, was the final hearing of the original motion; and the judge had the same power in refusing to confirm the referee’s report, to decide the” motion to vacate, by denying it, as the judge before whom it was first made would have had, if he had .not deemed it proper to have more light on the subject, to be procured by means of oral examination and cross-examination of witnesses before a referee.

The order should be affirmed, with $10 costs.