author: By the Court. Woodruff, J.

text:
    Draper, Plaintiff and Respondent, v. Wilhelmina Henningsen, sued with her Husband, Appellant.
    There is no authority in the provisions of the Code concerning the examination of a party as a witness, at the instance of the adverse party, for an order directing the party sought to be examined to appear before a referee and submit to be examined before such referee.

      Semble. If the examination is to be as of a witness examined conditionally, a summons must be issued to compel the attendance of the party whose examination is sought. An order is only necessary to show the existence of facts giving a right to so examine, and to authenticate the proceedings. The witness does not attend in obedience to the order, but in obedience to the summons. If the examination is had before, instead of taking it at the trial, no order is necessary. A notice to the party, and that alone, is necessary to give the right to examine, and a summons is necessary to compel attendance and lay the foundation for ulterior proceedings, in case of non-attendance in obedience to it.
    It is not obvious that any order for the conditional examination of a party asa witness can, properly, specify and limit the matters to which he is to be examined. He is to be examined generally the same as any other witness, and the points to which he may be examined are to be determined by the officer before whom the examination is had, or at the trial when the testimony is offered in evidence. Whether, when in an action against husband and wife, the complaint states as a cause of action, facts which, if proved, will entitle the plaintiff to a judgment against the husband personally, and he has not been served with the summons, nor appeared in the action, and the means provided by law for compelling his appearance have not been exhausted, the wife can be proceeded against at all, or whether she can appear by an attorney employed by her, without a previous order of the Court for that purpose, or whether she can be compelled to be examined at all to establish the allegations in such a complaint, when proof of part of the allegations requisite to be proved, to charge her sepárate estate, if she have any, will subject the husband tp a judgment for. the amount sought to be collected from her property, gutzre?

    (Before Oakley, Ch. J,, Duer, Bosworth, Hoffman, Slosson and Woodruff, J.J.)
    Heard, April 11;
    decided, April 18, 1857.
    The defendant .appeals from an order made March 13, 1857. This action is'brought against husband and wife, defendants. The complaint avers, that one Hiram Cranston furnished board and necessaries, and performed labor and services, to and for the defendants, at. theit request, at the price and to -the value of $468 78, and lent and advanced to the wife, at her request, $42. . , .
    That the wife had, and still has and owns, in her own right and as her absolute property, separate and apart from her husband, personal property exceeding in amount and value the sums aforesaid, and also real estate and chattels real, the income whereof ex'ceeds such sums.
    That on the 21st of August, 1856, the husband drew his bill of exchange upon one Belt, of Augusta, Greo., for the amount of the said'two" sums (viz. $510 78) payable to the order of the wife, and that she, with a full knowledge of the consideration, and with intent to secure the payment of the said sum, and to charge and create a lien on her said separate estate and property, and to bind the same for the said sum of money, with the knowledge and assent, of her husband, did endorse the said bill of exchange, and deliver'the same to the said Cranston.
    The complaint then avers presentment, refusal to accept, and refusal to pay,.and notice to the defendants, and an assignment of the claim, &c., to the plaintiff.
    The 'plaintiff then prays a discovery of the amount, value, character, situation, description, and other details of the separate property of the wife, .and that the Bill of Exchange may be declared a charge, and lien upon such separate estate and property, and the income thereof—and that so much as may be necessary to satisfy the same; and the costs of this action may be subjected and applied to such satisfaction. That a receiver of such separate estate may be appointed, and that an injunction issue to restrain the wife from disposing of or incumbering the said separate estate and property.
    To this complaint the defendant, Wilhelmina, has put in an answer by attorney, in which all of the allegations in the complaint are denied.
    It does not appear that the husband has been served with process in the action, or that any steps have been taken to bring him into Court, or procure his appearance. It was stated on the argument of this appeal that he is absent from the United States, in Hicaragua.
    On the 13th of March, 1857, an order was made at the special term, on the plaintiff’s application, by which the defendant, Wilhelmina, was ordered to appear, and be examined as a witness in this action for the plaintiff, as to any matter of fact affecting her liability in this action, or relating to her property and estate, separate and apart from her husband, before Henry S. Lincoln, Esq., (who was thereby appointed referee for that purpose) at such time as the said referee might appoint upon two days’ notice to her.
    From this order, the said Wilhelmina appeals.

      Mr. Blankman and Mr. Ashmead, for the appellant.

      A. R. Dyett, for the respondent.
   By the Court. Woodruff, J.

The order appealed from is supposed by the respondent to be warranted by chapter sixth, of title 12th, of the Code of Procedure, which chapter relates exclusively to the examination of parties to the action, and parties for whose immediate benefit the action is prosecuted or defended.

The first section of that chapter (viz. § 389) provides that no " action to obtain discovery under oath, in aid of the prosecution or defence of another action, shall be "allowed, nor shaH any examination of a party be had on behalf of the adverse party, except in the manner prescribed by this chapter.

Passing by, for the present, many of the important questions discussed on the argument of the appeal, and for the moment assuming that the complaint states a cause of action against the wife (the appellant) and that she is properly before the Court by her attorney, and that she is subject to examination in this action under the chapter above referred to, it may perhaps dispose of this appeal, if we enquire whether “ the manner prescribed by this chapter,” contemplates or sanctions the order appealed from-.

The sections prescribing the manner in which the examination of á party may be had, aré the following; § 390 provides that a party to an action may be examined as a witness at the instance of the adverse party, and for that purpose may be compelled, in the same manner, &c. &c., as any other witness, to testify either at the trial or Conditionally, or upon commission.

Section 891 provides that such examination may be had at any time before the trial * * before a Judge of the Court, or a County Judge on a previous notice * * of at least five days, unless for good cause shown the Judge order otherwise; and § 392 provides that the party to be examined as in the last section provided, may be compelled to attend in the same manner as a witness, who is to be examined conditionally..

Section 394 declares the consequences of a refusal to attend, and testify; but the above sections are all that prescribe “ the manner in which the examination of a party may be had.”

By these sections it is entirely obvious that the examination of the party is to be procured in the mode, already well regulated by other statutes, of compelling witnesses to attend and testify, and this must be the guide in procuring that attendance.

This is so familiar to all practitioners that it seems hardly-necessary to repeat it.

If the examination is to be had at the trial, no previous order is necessary, A subpoena must be issued, and served as pointed out in 2d. Rev. Stat. p. [400] § 52, [42] and this, of course, requires the witness to attend at Court.

If the examination be as of a Witness examined conditionally, a summons to the witness must be issued by the Judge (2 R. S. 393, § 10,) which must be served in the manner prescribed by § 54 [44] of 2 Rev. Stat. p. [401], The witness attends in obedience to the summons, not in pursuance of any order made upon him. The summons, in such case, is issued in lieu of a subpoena under the seal of the Court, and is served in like manner.

It is true that an order must be procured, based upon proper affidavits, showing that the exigency exists which renders a de lene esse examination proper, but that is not an order ¿requiring the attendance of the witness; it is made for the purpose of authenticating the examination which is to be had upon a proper summons to be issued, and although it in form requires the attendance of the adverse party, yet that is merely for the purposes' of notice; in order that he may attend if he thinks proper, and either take part in the examination of the witness, or show cause why the examination should not be had. If he do not choose to attend, he cannot by order be required to do so. The witness, as such, has nothing to do with the order: the efficient means of procuring and compelling his attendance, is the issuing and service of a summons under the hand of the Judge.

If the examination sought be, not as of a witness examined • conditionally, but is claimed in the exercise of the option given by § 391, allowing it at any time before the trial, then no order whatever is necessary. That examination may be had upon five days notice, subject, of course, to the power of the Judge over the subject when the parties appear before him. And in this proceeding, the manner of procuring the attendance of the party as a witness is the same as last above stated, viz. by summons; as to a witness to be examined conditionally (§ 392). . _ _ _

_ _ _ We find in these provisions no warrant nor authority in the Court, to make any order on the subject.

Nor for any proceeding by order, either of the Court or Judge, requiring the witness to attend and be examined.

Still less do we find any power in either the Court or Judge to make an order requiring the witness to attend before a person not a Judge, and therein constituting such a person a referee, for the purpose of taking such examination. When the proceeding is to obtain a de lene esse examination of the party, in the mode prescribed for the conditional examination of a witness about to depart from the State, or who may not be able to attend the trial; then, after hearing the parties to the action, under a proper order to show cause, the Judge to whom the application is made may appoint a referee to take the testimony, (Laws of 1851, chap. 472); but there, as in other cases, the order does not direct the 'attendance of the witness—his attendance before the referee is to be procured by summons. And the order appointing the ¡referee is ¡made,'not' by the Court, but by the Judge exercising a special authority.

' The order appealéd from is an order of the Court at Special Termit is not an order purporting to determine that a de bene esse:examination:is'proper under the circumstances proved; but it purports to be the.mandate of the Court to compel the attendance of the witness out of Court and before a person named as •referee-for the special purpose. . •

When • the examination is sought under the option given by §' 391,- to take the examination before the trial,, and not as a witness examined conditionally, we find no power to appoint a referee.

We all concur in the opinion that the order was improvidently made, and that it cannot be sustained.

.. The: order is liable to further criticism, .which is not material, since the order must, be reversed for the reasons stated; but it is by no means clear that any order, even for the examination of a witness conditionally, should declare the specific matters to which .the. witness shall be examined. Under the former Chancery practice, where a party might sometimes be examined, the cdmmon.order provided that he be examined as to any matters as to which he had no interest in favor of the party examining him. . But rio such restriction is now necessary nor proper. The examination is to be the same as that of any other witness, „ and. the matters: as to which he shah be examined are to be determined either by the Judge before whom the examination is had, (unless upon cause shown he decides that the examination shall not then be taken,) or at the trial, when the testimony is offered-in evidence.

These views were not all of them presented on the argument of the appeal, but we do not feel at liberty, when considering the .rights of a feme covert, proceeded against when her husband has not been brought in, and when (as stated'on the argument) he is absent from the country, to overlook considerations which we deem entirely conclusive upon the subject. -

We have not been insensible to the serious nature of other objections to the plaintiff’s proceedings, tó which our attention was called on-the argument, and while we reverse the order upon the ground above specially assigned, it is not thereby intended to hold, that the plaintiff has shown by his complaint any sufficient cause of action against the wife (the appellant), to charge her as to her separate estate, or otherwise.

Nor that he can proceed against her, without doing more than merely name her husband as a party in his summons, and without bringing him in by appearance, so that he shall be a real as well as nominal party to the action; or, (if he be absent from the country,) without first exhausting the means which the law has provided -for procuring his appearance, so that he may be affected by the judgment as on default of appearance.

Nor that a married woman, sued with her husband, can appear by attorney employed by herself, without a previous order of the Court for that purpose.

Still less do we mean to be understood as holding, that in this action the appellant can be examined as a witness in any form or by any mode of procuring her attendance. The debt set out in the complaint, if it' exist, is her husband’s debt, for which, without any legal consideration moving to her (other than such as is supposed to be implied in the act of endorsement), she has become the voluntary surety. No consideration for any charge ór lien upon her separate property, (if any she has,) and no express underaking to charge such property appears.

It is clear that upon the allegations in this complaint, if proved, the plaintiff may have a judgment against her husband, in this action, for the amount claimed to be due. (Marquat v. Marquat, 2 Kernan, 336.) But it is not clear, in that state of the case, that the plaintiff can examine the wife as a witness, to establish the allegations in such complaint. It is not obvious that she can in any manner be so examined, that she will not be in the condition of a wife testifying against her husband, when the very facts alleged, and which must be proved in order to charge her, will, if proved, entitle the plaintiff to a judgment against her husband also.

That the Code has not made the wife a competent witness against her husband, has been repeatedly decided. (2 Code R. 19; 2 Sandf. 340; 4 Sandf. 596.)

But without attempting to decide the questions above alluded to, it must suffice to say that the Court reverse the order appealed from, upon the grounds first above stated.

Order reversed, without costs.


source: Caselaw Access Project

license: Public Domain

text:
    Gray, et al., Plaintiffs and Appellants, v. Robjohn, Defendant and Respondent.
    An Action to restrain the defendant from violating his written agreement by which he covenanted to sell to the plaintiffs certain articles, manufactured by him after some -secret process known only to himself; and not to sell similar articles to others; and by which the plaintiffs covenanted to sell such articles, and allow him therefor, a stipulated price, is not an action “for an adjudication upon an instrument in writing,” within the meaning of those words as used in § 308 of the Code, as amended by Chapter 723, of the Laws of 1857, although the chief contest between the parties related to the validity, construction, and legal effect of such written agreement.
    When enaction is brought to recover a debt, or damages; or for a specific performance; or for an injunction; or for other like redress, and such is the relief which the complaint prays the Court to adjudge; it is the' nature of the relief prayed, and not the evidence relied upon to support the plaintiffs’ title to such relief, which determines the object of the action.
    In such actions, the successful party is not entitled to an extra allowance under § 308 of the Code, notwithstanding the decision of them, may, incidentally, involve the construction of a written agreement.
    The order, denying the grant of an extra allowance, affirmed.
    (Before Duer, Ch. J., and Bosworth, Hoffman, Slosson and Woodruff, J. J.)
    Heard, June 27 ;
    decided, July 11, 1857.
    This is an appeal from an order, made at Special Term, denying the plaintiffs’ application to overrule the decision of the clerk, who refused to allow the plaintiffs (who had obtained a judgment for the relief played for by their complaint), a per centage, or extra allowance, under § 308 of the Code, as amended by Chapter 723 of the Laws of 1857. The action was tried after that section, as thus amended, took effect.' The facts are fully stated in the opinion of the Court.
   By the Court. Woodruff, J.

The plaintiffs herein, having recovered judgment in their favor, insist that they are entitled, as a part of their costs, to an allowance under §§ 308 and 309 of the Code of Procedure, on the ground that the determination of the matter in controversy, involved an “adjudication upon a written instrument.” From an order affirming the decision of the clerk, who refused to insert such allowance in the adjustment of the costs, the plaintiffs appealed, and that appeal now comes before the General Term.

The action was brought by the plaintiff to restrain the defendant from violating a written agreement, by which he had covenanted to sell to them, certain articles manufactured by himself after some secret process, of which he has knowledge, and binding bim not to sell to others; and by which the plaintiffs, on their part, had covenanted to sell the article and allow him a price stipulated therefor. The complaint averred that the defendant was about to sell to others, and that he had on hand a quantity named, which he threatened to sell, and it sought an injunction as a means of compelling the performance of his agreement. The plaintiffs have obtained a decree, in substantial conformity to the prayer of their complaint.

The chief contest between the parties, was concerning the validity, construction, and legal effect of the written agreement. It, however, by no means follows, as we think, that the plaintiffs are entitled to an allowance.

The language of § 308 of the Code, so far as it bears upon the present question, is that “ There shall be allowed to the plaintiff, upon the recovery of judgment by him’in an action for an adjudication upon a will or other instrument in writing, the sum of ten per cent.," etc.

And § 309 provides that the rate shall be “ estimated” upon the value of the property affected by the adjudication upon the will or other instrument.

Before the last amendment, the 308th section, in specifying actions in which an allowance should be made, gave it, in “ an action for the construction of a will or other instrument in writing; ” and by § 309 the rate of allowance was to be “ estimated upon the value of the property affected by the construction of the will."

What considerations have led the Legislature to change the phraseology of these sections, in this particular, we have not learned.

Under our former system it was not unusual for the Court of Chancery to entertain a bill by a plaintiff standing in the position of trustee, to settle the construction of a will, or other instrument, creating a trust. The Court exercised a jurisdiction of-this sort, not in favor of any and every person who might desire advice respecting his own rights or obligations under a will or any other instrument, but only as an incident to the peculiar and exclusive jurisdiction which that'Court had over trusts, in the execution of which, a trustee, in cases of doubt and difficulty, was permitted to apply for aid. '• ■ ■

A jurisdiction of a similar description was necessarily exercised', when a bill was filed by a cestui que trust against the trustee, in like cases of doubt. But the primary object of the bill; in such case, was not to settle the construction of the instrument. It set up the claim of the plaintiff according to- the construction for which he- contended, and asked for relief in accordance with the claim.. The construction of the instrument was only incidentally, though necessarily involved. It would, therefore, seem that it is only, bills of the description, first 'above referred to, that could, in strictness, be called bills for the construction of wills or other instruments.

It is an action of this description that was provided-for by the Code before the amendment in question, and we believe that no one, prior to such amendment, has ever intimated, because every actipn founded upon a -written instrument, necessarily called upon the Court to read it, and determine the- rights of the parties, according to its legal effect—in doing which the Court must consider, and for the purposes of the action, settle its construction—that therefore, an allowance must, in every such action, be made to the prevailing party.

Although the reason for a change of the phraseology of the section is not apparent, the substantial purpose and object, we think, remain the same.

There are cases in which a trustee seeks .the advice of the Court, because the doubt, which embarrasses the execution of the trust, is a question of the validity of the instrument, while its meaning, if valid, is not obscure. Perhaps, - cases of that'sort were thought, by the Legislature, to- be.more fittingly described by the comprehensive term, “ actions for an adjudication upon a will,” &c. This would embrace questions of the validity, as well as questions of the construction of an instrument.

We will not undertake to say that, there can be no case in which an allowance can be made in virtue of these words, except when the action is brought by a trustee, though we do not recollect any case in which a bill, for the construction of an instrument, would be entertained, unless such construction was sought in aid of the performance of some duty, which it was tie peculiar province of the Court of Equity to control, regulate, and enforce. If there be cases in which a plaintiff, not being a trustee, may come into Court “for an adjudication upon a will or other instrument in writing,” and in which jurisdiction for that purpose will be entertained, doubtless an allowance will be proper. Under the more comprehensive terms “adjudication upon a will or written instrument,” it may be that cases are embraced in which the object of the action is to obtain a judicial declaration that the will or instrument is void on its face. Such a judicial declaration is sometimes sought in equity, where the instrument is an impediment to the legal remedy of the plaintiff, e. g., a fraudulent deed or assignment impeding a levy and sale upon execution—or a deed invalid in fact, but being on record, operating as a cloud upon a title, and cases of a like character, where the relief sought is itself the judicial declaration that the instrument is invalid, and not where the relief sought is the recovery of money or other redress, and the question of construction or validity is only incidental, etc.

But the legislature in using the terms “ an action for an adjudication upon,” did not mean an action for damages for the breach of—nor an action brought merely to enforce—nor an action to restrain the breach of—nor an action to compel the specific performance of—nor actions generally, founded upon written instruments.—They have used the terms in a more restricted sense.

In truth, actions on bonds, bills of exchange, promissory notes, covenants, and written agreements, whether brought for damages, or in the last two examples for the specific performance, or for an injunction, involve an adjudication founded on the terms and legal effect of the written instrument, and if the doctrine contended for be sound, the prevailing party must have an allowance in all such actions. If this were so, the intention of the Legislature might have been, and we think would have been, much more clearly expressed. These actions are brought for a debt, or for damages, or for a specific performance, or for an injunction, and the like redress or relief, that being the object sought, and which the judgment is to award:— And the prayer of the complaint,' is the money—the performance—the injunction—or other like relief or redress. It is this; the relief sought which determines what the action is for, and not the evidence by which the plaintiff’s title to such relief is to be proved.

We think that the clerk was right in refusing to insert an allowance in the costs upon the adjustment, and his adjustment must be affirmed.

Order affirmed.


text:
    Levy, Executor, &c., Plaintiff and Respondent, v. Joyce, Impleaded, Defendant and Appellant.
    In an action, brought by the owner of property on which each of the several defendants claim to have a lien (under the Mechanics’ Lien Law), to ascertain the amount and priority of their liens upon such property, and upon a fond produced by a judicial sale thereof) and to procure a discharge of such liens, and to determine the extent of the personal liability of such owner; a defendant, whose claim was not attempted to be proved on the trial of such action, further than to prove the pendency and condition of a proper proceeding in another Court to establish it; will be permitted, even after trial and judgment, to have the case so far opened, as to enable him to establish his claim, its amount, and its relative priority, when the omission to prove it at the trial occurred under such circumstances, as make it a case of excusable neglect, provided such relief can be granted without subjecting the other parties to any loss or damage, beyond the mere delay to which they will be thereby subjected, and provided also, that the party seeking such relief shall submit to such conditions as it may be proper to impose in order to protect'fully the rights of the other parties to the action.
    Especially will such relief be granted, when a refusal to grant it will cause a loss ' to the moving party of his entire claim, and it is clear that the proceedings on his part have been conducted in good faith, and the proceedings are novel in their character, and depend for their regularity and validity upon the construction of a statute, which has not received any judicial interpretation in relation to proceedings like those in question, and the grant of such relief can be made upon terms, which, will not present any matter to he litigated except, the existence, amount, and relative priority of the applicant’s claim, and hie consents, as a condition to being relieved, to pay to the other parties their just costs of the further litigation as to his claim."
    (Before Duer, Ch. J., and Bosworth, Hoffman, and Woodruff, J. J.)
    Heard, Oct. 31;
    decided, Nov. 14, 1857.
    This is an appeal, by the defendant Joyce, from an order denying a motion, made by him (after trial and judgment), to open the case so far as to permit him to make proof of a claim which he omitted to prove at the trial.
    The nature of the controversy, and the facts and circumstances under which the order, appealed from, was made, are fully stated, in the opinion of the Court.

      Andrew Benedict, for certain defendants who had established their claims on the trial.

      John E. Burrill, for other defendants.

      D. D. Field, for defendant Joyce (appellant.)
   By the Court. Woodruff, J.

The appellant, Joyce, one of the defendants herein, having a claim for work and materials done and furnished towards the erection of a building in the city of New York, against the person who contracted to erect such building for the owner, on the 3d of October, 1851, took the steps prescribed by statute to create a lien upon the building, and afterwards instituted the proceedings (also prescribed by statute) in the Court of Common Pleas, to bring such lien to a close, and issue was joined in such proceedings prior to October, 1852. Before the issue was brought to trial, the building itself was sold under a judgment or decree for the payment of some prior claim: And the owner of the building being at the same time pursued in this Court by the contractor, upon his original contract, this action (in the nature of a cross action,) was commenced by the owner in February, 1854, for the purpose of determining to whom the surplus of the proceeds rightfully belonged, and to settle the conflicting claims of such original, owner of the building, the-contractor, and the defendant Joyce, and other defendants, who also claimed to have liens under the statute, and out of such surplus proceeds the amount remaining due to the original contractor, was brought into this Court.. An injunction originally granted to restrain the defendant, Joyce, (the present appéllant) from proceeding farther in his proceedings to foreclose his lien, was in November, 1855, so modified as to permit the appellant to proceed with the trial of the issue joined in his proceeding to foreclose.

The appellant being, as he states, desirous of avoiding a double litigation, omitted to proceed with his action in the Court of Common Pleas, and awaited the trial herein. In November, 1856, this action came on for trial, in the Special Term. On the trial the counsel for the appellant—under the conviction that it was sufficient for the protection of his client to show that he had taken the requisite steps, under the statute, to create a lien, and that his proceedings for the foreclbsure were stÜl pending, and supposing that the Court of Common Pleas alone had jurisdietion to determine whether such hen was a valid, binding lien, and settle the amount thereof—gave ño proof of his claim other than the condition and pendency of the proceedings in the Court of Common Pleas.

The Court held, that such evidence was not sufficient to entitle him to participate in the fund in this Court then-to be distributed, and gave judgment directing the distribution of the fund among the other claimants, and excluded the appellant from - any share thereof.

At what time this decision and judgment thereon were given does not appear by the papers before us, nor when the appellant first had notice thereof; but in April thereafter the appellant applied by petitioñ and affidavits to the Special Term, and moved thereon that the case be so far opened that he- be permitted-to prove the existence of his lien, and the amount of his claim, and establish thereby his title to participate in- the fund in question-, with such priority as might appear by the evidence to be just and legal. - ■

This motion could only have been properly urged' upon the ground of surprise or excusable neglect, since if the appellant wished to insist that there was error in the. decision or judgment, he should, upon due exception, have appealed therefrom.

The motioñ was denied, and he now appeals from the order denying that motion. ' ;

In substance and effect, this was a denial of a motion for a new trial of the claim of the appellant. We think that the order was therefore an appealable order, under the Code, as amended in 1851. § 349, sub. 2.

By § 174 of the Code, power is given to the Court, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, to relieve a party from a judgment, order, or other proceedings taken against him through his mistake, inadvertence, surprise, or excusable neglect.

There is, therefore, no want of power in the Court to grant to the appellant the relief sought by his motion.

We are not willing to sanction the idea, that under any ordinary circumstances, the mere mistake of counsel in regard to the law of his case will entitle a party to relief, when he discovers what is pronounced to be the law by the decision of the Court.

But on the other hand, there may be a case so novel and peculiar in its nature, in which it is so palpable that actual injustice may, and probably has been done, and where there are no other means of relief, that the Court will feel bound to relieve the party from the consequence of the inadvertence, and mistake of his counsel, although it arose from a misapprehension of the law or rules of practice, if that can be done without prejudice to the rights of the other parties; by which is meant, without any loss to them, other than such as may necessarily result from establishing what may be shown to be the rights of the party applying.

It is not without some hesitation that we have been brought to the conclusion that the present is such a case; and a conviction, that the ends of justice demand that the defendant should be relieved, and that such relief may be given without any injustice to others, leads us to say that the motion should be granted upon proper terms.

The judgment has not been executed, and therefore, if the other parties are not subjected to any further costs, they will not be prejudiced otherwise than by the brief delay which may be caused by the further enquiry sought.

The Statute under which the appellant was proceeding, is of recent enactment. Of the proceeding itself, to foreclose the lien prescribed by the Statute, this Court clearly had no jurisdiction.

The Statute has pointed out the mode of bringing the party against whose property the lien was asserted to an accounting and settlement, and authorizes a judgment directing a sale of the right, title, and interest of the owner, for the payment of the amount, for which, on such accounting, a hen should be established.

But that proceeding under the Statute must be brought in a Justices’ Court, or the Court of Common Pleas; this Court has no jurisdiction thereof. When the property to be affected by such a proceeding was sold by the judgment of this Court, and was withdrawn from the reach of the appellant, by any judgment or decree in his proceeding in the Common Pleas, and the controversy thereafter was to be concerning the balance due from the owner to the original contractor, which had been brought here under the order of this Court in the cross action, and which was claimed to be due to the lien holders, as a substitute for the property itself; it is obvious that novel and interesting questions— . chiefly questions relating to the practice of the Court, and mode of investigating and settling the claims of the parties—at once arose —and whether this Court would direct issues to try the claims, or direct an accounting and settlement to be had before the Court, or whether they must regard the Court of Common Pleas as having exclusive jurisdiction to determine the existence and amount of the Statute liens, were also questions which were new, and, in relation thereto, counsel were without the aid of any adjudication or precedent.

Again, the property having been sold, it is now obvious that if the appellant be not permitted to participate in the fund now in this Court, he is remediless. There is no property upon which a judgment, in the Common Pleas, establishing his lien, can operate ; and therefore, if this motion be denied, his loss is inevitable, if he indeed, have the lien which is asserted. And this he must lose, not because his claim has been investigated, and on investigation, been held invalid, but because his counsel, under the circumstances above suggested, has misconceived the mode in which that claim should be supported, or through misapprehension has failed to support it at all.

This result can be avoided without any injury or danger of wrong to the other parties. No further investigation of the claims of those whose Kens are established by the former trial is necessary.

The appeHant does not seek to controvert those claims. The question of priority, alone can affect the other defendants at all, and as to that question, it will be no injustice to them to permit the appellant, if he establish his claim, to stand where the priority to which he may be justly entitled, wiK place him.

The costs of the further enquiry may be cast upon the appellant as one of the conditions of the rehef.

We think that these considerations should induce us to grant the appeHant the privilege sought by his motion, unless such laches are imputable to him, by reason of the lapse of time, as should bar his appeal to our discretion.

Without impairing the value or force of the rule which requires, that motions of this description should be made without unnecessary delay, and that the party should be diligent and active in. the protection of his rights, we may yet say, that where the delay has not placed the opposing party in any worse condition, or deprived him of any advantage which he ought in justice to have or keep, it is harsh to refuse what we think otherwise just on that mere ground, and we may properly allow an excuse which otherwise would be very clearly insufficient.

In this case the first aUeged delay is the failure to prosecute his proceeding in the Common Pleas, after the injunction was removed. In relation to that, what has already been suggested} of the mistake or inadvertence of counsel, may be regarded as rendering the neglect excusable within the meaning and spirit of the provision of the Code already referred to.

The other supposed want of diligence consists in not making his motion at an earKer day. The motion papers do not show when the decision adverse to the appellant was made, and judgment entered. The points of the counsel, for the respondents, state, that judgment was entered in January, 1857. The motion papers were, in part, prepared in March, and the petition was served in April. At what time prior to this the appeHant had notice of the judgment, does not appear.

We do not suppose that the Legislature, in Kmiting the time within which the Court might relieve, to one year from notice of the judgment, intended that in aU cases an appKcation within one year should be deemed in due season, when, upon the whole case, the delay seemed unreasonable and prejudicial to the adverse party. But we nevertheless regard it as furnishing some guide when mere delay is objected to what would be otherwise just, and when the delay itself has been in no wise prejudicial.

Upon the whole case, the circumstances seem to us to require that the motion should be granted. But upon terms which we think will fully secure the respondents against any loss or injustice from the order to be made.

The appellant .must pay the costs of the motion at Special Term.

He must execute to the respondents an undertaking with at least one resident surely, in $250, for the payment of all .the costs of the inquiry which is opened.

.He must consent to a reference, or to a trial before the Court, as the respondents may elect, waiving all claim that the lien should be tried and determined in the Court of Common Pleas, and enter into a stipulation to that effect.

He is not to question the amount of the claims of the other parties, nor open any question that is settled by the adjudication already made, except only the amount of his own claim, and its priority in relation to the other parties.

Upon these terms, the judgment may be so far opened as to permit the appellant to establish, if he be able, that he has a lien, the amount thereof, and the order of priority which it equitably or legally has, as between aH the parties, and that such modification of the judgment already entered may be made, or such new judgment may be thereupon entered, as to the Court at Special Term may seem just.

Ordered accordingly.


author: By The Court. Bosworth, J.

text:
    Seth C. Keyes v. William Moultrie and Thomas Palmer.
    When an action, in form, against two persons jointly liable, is commenced by'a service of the summons on one defendant alone, and a notice of appearance, by the latter as attorney for both, is' served, and he puts in an answer'for' himself only, and a trial is had on the merits, and a judgment dismissing the complaint is rendered ; and on proof, that notice of appearance for both defendants was served by mistake and without authority, a motion is made to have the judgment, which has been entered, recite, that the defendant not served did not appear in the. action, although such relief may be granted, it is error to vacate the judgment, and all
    ■ proceedings had subsequent to the day preceding the trial, and to grant a new-trial to the plaintiff.
    When a judgment for such a cause, is thus modified in its recitals, a plaintiff who has relied on such notice of appearance, as authorized and valid, should.be relieved from all proceedings had on the faith thereof, which would be valid if such notice was authorized, but which are invalid, or may be avoided, if it was unauthorized, and from such proceedings only.
    When the action has been tried on its merits, as if both defendants had appeared, if no error was committed at the trial, the plaintiff should not have a new trial, merely because the unauthorized notice is allowed to be corrected, and the recitals in the judgment made to state the truth in that behalf If error was committed at the trial, the judgment would be reversed on the plaintiff’s appeal, as well with the recital of the non-appearance of Palmer in it, as if it recited the fact of his actual appearance.
    (Before Duer, Ch. J., Bosworth, Hoffman, Slosson, and Woodruff, J.J.)
    Heard, Nov. 21;
    decided, Nov. 28, 1857.
    This action comes before the Court at General Term, on an appeal by the defendant Moultrie, from an order made by Mr. Justice Hoffman on the 24th of October, 1857.
    The complaint states as a cause of action, that the defendants made their joint note, payable to their own order fifteen days from the 6th of October, 1856, for $1,000, and endorsed and delivered.it to the plaintiff, and that they have paid only $300 on account of it. That, to secure the residue, the defendants agreed that Moultrie' should execute his bond for $1,000, and a mortgage of a house and lot belonging to him, to secure the same, and deliver the said bond and mortgage to the plaintiff; that the latter should thereupon advance to the defendants $500 in cash, and they should give their joint note to him for $2,000.

      That the plaintiff having an opportunity, as he supposed, to negotiate said bond and mortgage, requested that they should be drawn, payable to Palmer as obligee and mortgagee, and that he should assign them to the purchaser thereof. That they were, thereupon, so drawn and delivered to the plaintiff, both defendants agreeing that Palmer should assign them to such person as should purchase them, and the plaintiff thereupon, on the 3d of January,-1857, paid to the defendants $300, on account of said $500.
    That being unable to negotiate the said bond and mortgage, the plaintiff returned them to Moultrie about the 27th of January, 1857, requesting new ones to be drawn directly to himself, which Moultrie promised to do. On the 31st of said January, the plaintiff demanded of the deféndants the bond and mortgage, and their note for $200, and tendered $200 cash (residue of the $500), and they promised to send to him the new bond and mortgage, and their note for $200, and take the $200 in money and the old note of $1,000. That, on the 31st of January, Moultrie wrote to the plaintiff that he had changed his mind, and refusing to deliver the said bond and mortgage. It demands judgment that the defendants pay the plaintiff the amount due him as aforesaid, and that Moultrie execute and deliver to the plaintiff' the bond and mortgage agreed on, and that the defendant Moultrie be in the meantime enjoined from disposing of or encumbering said house and lot, etc. This action was commenced in February, 1857.
    Moultrie, being an attorney, served notice of appearance, as attorney for himself and Palmer. Palmer was not served with the summons. Moultrie put in an answer for himself alone. The action was tried before Mr. Justice Hoffman, June, 1857, without a jury, and he gave judgment, dismissing the complaint.
    The plaintiff made a case, and appealed from the judgment to the Gfeneral Term. The judgment, as entered, did not show that Palmer had appeared in the action. The Judge amended it, on an ex parte application, so that it stated such to be the fact. Thereupon the defendant Moultrie moved before the same Judge, (on affidavits showing that his clerk, who drew the notice of appearance which was served, by mistake and without authority, and without Moultrie being authorized to appear for Palmer, drew it as an appearance for both, defendants, and on other papers,) that the recital in the judgment, that Palmer had appeared in the action be stricken therefrom. The said Justice) on the 24th of October, 1857, after hearing both parties on such motion, made an order that such recital be stricken out, and “that upon a withdrawal of the appeal; all proceedings herein, from the day prior to the commencement of the trial hereof to the present time, be vacated and set aside, and that the cause stand as if no trial had been had, and that the injunction be restored as. heretofore, and continued in force till the further order of the Court, and that the plaintiff take such steps to bring in the defendant Palmer as he may be advised.”
    It is from this order that the present appeal has been taken by the defendant Moultrie.

      William Moultrie, in person, appellant.

      D. D. Field, for respondent.
   By The Court. Bosworth, J.

In this action the plaintiff could recover against both defendants upon the note, although he might fail to establish a right to have a bond and mortgage executed and delivered to him, as prayed for by the complaint. (Marquat v. Marquat, 2 Kern. 336.)

He could not, on the default of Palmer to answer, take a several judgment against him for the amount due on the note, and then proceed and litigate with Moultrie the right to recover a judgment for the same debt against him.

A several judgment against one of several defendants, before a trial of the action against the others, is only proper when, according to the cause of action stated in the complaint, the liability of the defendants is several. (Code, § 136, subs. 2 and 3.)

The plaintiff having received a notice of the appearance of the defendant Palmer, it was unnecessary to serve the summons on him. (Code, § 139; Rule 7 of the Supreme Court; Mahaney v. Penman, 4 Duer, 605, and note to p. 606.)

Moultrie, by whom the notice of appearance as attorney for Palmer, as well as for himself, was given, cannot complain that the plaintiff "relied and acted upon it as an authorized notice, nor to his being relieved from any proceedings that have been taken in consequence of it, and which, have become nugatory, by reason of -Moultrie’s being allowed to correct his notice so as to convert it into a notice of appearance for himself alone, and to have other subsequent proceedings amended, so as to show by the record that Palmer has not been served with the summons nor appeared on the action.

If all 'the allegations of the complaint are true, the plaintiff has a right to have the bond and mortgage, which were executed, assigned to him by Palmer, or, in lieu of it, a bond and mortgage executed directly to him by Moultrie, and the joint note'of the two for $200, or a judgment against both for $1,000, if the $200 .tendered by the plaintiff shall not be required to be paid or advanced by him to the defendants. '

Viewing the defendants as alleged joint debtors, although the plaintiff might proceed upon a service made on one only, and take such a judgment as is authorized by the Code (§ 136, sub. 1), yet he is not obliged to do so. He has the right, by suing all the defendants, to have the whole litigation determined by a single trial.

And when he has been misled, by the service upon him of - a notice of appearance of the defendant not served, and that notice has been given by the defendant who was served, as attorney for the other defendant, the one giving- the notice cannot complain that the plaintiff is relieved from proceedings had on the faith that the notice so given was authorized and legal, and which would be valid if such notice was authorized, but are invalid, or may be avoided, if it was unauthorized.

But, the fact that Moultrie had no right to give the notice, does not entitle the plaintiff to any relief, except from proceedings which have become nugatory merely because such notice was unauthorized. As the plaintiff was defeated on the merits, no other results have occurred than would have happened, if the notice had been authorized and still appeared of record as. a subsisting and valid proceeding.

If the plaintiff, on the proofs made, was entitled to a judgment against both defendants, either for the money lent, ■ or for any part of it, or to' the further judgment that Moultrie execute the bond and mortgage, or to the latter relief, and to that only, the judgment was erroneous:

If it is not erroneous he should not be relieved from the judgment, and be allowed a new trial, except for cause and on terms. He has had a trial on the merits, and the decision on that could not be affected by the fact, that Palmer had, or had not appeared. The trial proceeded as if he had appeared—and upon all the evidence given, the Court decided, that the plaintiff was not entitled to any relief.

If there was no error in that decision, the judgment would be affirmed on appeal. But although free from error, and although it would be affirmed on appeal, the order of the 24th of October, 1857, allows the plaintiff to abandon his appeal, and have a new trial, without payment of the costs of the trial or of the appeal.

This has been allowed, as far as we can see, because Moultrie served notice, by mistake of his clerk, that he appeared for Palmer. This fact could not have varied the legal effect of the evidence given on the trial.

Nor can we see that the plaintiff can lose, or be deprived of the right to have the judgment reversed on any ground which would be error, if such notice had been authorized; by reason of an amendment of the record, so that it will show that Palmer was neither served with the summons nor appeared in the action.

So if the judgment shall be held to be erroneous, and a new trial shall be granted, the plaintiff can serve Palmer with the summons, before proceeding to trial, and obtain a personal judgment against him, as well as against Moultrie.

If no error was committed for which the judgment should be reversed, there should not be a new trial.

All of the order subsequent to that part of it which directs, “that the said recital in the amended judgments be stricken out,” is erroneous and must be reversed. An order to that effect will be entered.


author: Bosworth, J.

text:
    Bedell v. Sturta.
    An order of arrest will not be vacated, on a motion made after the defendant has answered; on the mere ground that, the summons is erroneously entitled, especially when that defect is not specified in the notice, as a ground of the motion.
    When the cause of action is one, which, of itself, gives the plaintiff a right to an order of arrest, the order will not he vacated, because the moving affidavits deny the existence of the cause of action.
    (At Special Term,
    December 3, 1857,
    Bosworth, J.)
    The defendant moves to vacate an order of arrest, by virtue of which, he is now held in custody. It was granted on the 10th of October, 1857. An amended answer to the complaint was put in, on the 12th of December. The original summons is entitled in the Supreme Court. The copy served is not produced, and how that was entitled does not appear. The notice of motion does not point out this irregularity.
   Bosworth, J.

As the cause of action is one which would authorize an execution'against the body, in case of a recovery, the order will not be vacated merely because the cause of action is denied. The opposing affidavits sustain that on which the order was granted. The complaint will not be set aside after an answer put in, merely because the summons was irregular. If the order of arrest is not wholly void, it should not be set aside for such irregularity, on a motion made after answer; if wholly void, the defendant does not need the interposition of the Court. Motion denied, with seven dollars costs to plaintiff, to abide the event See Union Bank v. Mott, 6 Abb. P. R. 315, and the cases cited, in a note to it.


text:
    Murray v. Hendrickson.
    An assignee, under a general assignment, by a debtor, of his property in trust for his creditors, although a trustee of an express trust, must prosecute as such, in order to be exempted from payment of the costs of the action, if he fail to recover.
    When he sues in his own right, and is defeated, he must pay costs, if the action be one in which, a plaintiff, failing to recover,- pays costs as a matter of course.
    (At Special Term,
    December 3, 1857,
    Boswoeth, J.)'
    The plaintiff now moves to set aside the judgment entered, against him, for the costs of this action, and an execution issued on such judgment, as irregular: The complaint states the plaintiff to be endorsee and owner of a note for $400, made by defendant, and prays judgment for the $400 and interest. In November, 1854, judgment was entered for defendant for costs. Plaintiff, on an affidavit to the effect, that the note was transferred to him by an assignment made by Currie for the benefit of his creditors, moves to set aside the judgment and execution, on the ground that, being trustee of an express trust, he could not be charged personally with the costs of the action, except for mismanagement or bad faith in the action, to be determined by special order of the Court, and that no such order has been made.
   Bosworth, J.

As the plaintiff sued in his own right, without alluding, in his complaint, to his representative character, § 317 of the Code, does not apply. •

To become entitled to the immunities, provided by that section, he must present a case falling within it, and come before the Court in a character which it protects, and seek to recover in ■that character. (9 Wend. 486.) Motion denied, with $7 costs.


text:
    The East River Bank v. Cutting and Caldwell.
    When two persons are named as defendants in a summons and'complaint,' and only one is served, and judgment is thereupon perfected against him, there is, then, no action pending against the other, until he is served with the summons.' "
    If he is-servedwith it, after judgment against the other, and intermediate those periods, the title to -the cause of action becomes vested.in a third person, the latter cannot, under § 121 of the Code, be substituted, as -plaintiff in'the -action against the defendant last served.
    (At Special Term,
    December 3, 1857.
    Boswobth, J.)
    The defendants are.sued as maker and endorser of a noté; Cutting, the maker, was served with the summons in July, last, and judgment entered against him, on failure, to answer. On the 10th of October, the operations of the plaintiff were suspended by the appointment of David Banks as a Receiver.. Caldwell was severed with the summons on the 12th of ¡November. ■ It is now moved that the Receiver be made plaintiff in the action, by substitution, which the defendant opposes.
   Bosworth, J.

There has been no transfer - of interest-pending the action. By taking judgment against Cutting,-the action was severed, and as to Cutting, determined by the judgment. There was,-then, no action pending as against Caldwell, Itcould only be commenced by the service of the summons upon. him. Before it was so commenced the cause of action was transferred to the Receiver. The motion cannot be granted under § .121 of the Code. If the action could he brought in the name of the present plaintiff, by serving the summons on Caldwell, when service of it was made on him, a recovery can be had -in the name of the present plaintiff. If it could not, then, granting the motion, would be substituting, after issue joined, a person, as plaintiff, who had a right to sue, for one who had no right to sue. Motion denied; with $7 costs to abide event.


author: By the Court. Pierrepont, J.

text:
    Charles Burrall v. Jacob Vanderbilt and Theodore R. B. De Groot.
    When several defendants, against whom a judgment has been recovered, unite in an appeal, from it, to the General Term, and third persons execute, as sureties, an undertaking on such appeal, in the terms prescribed by section 335 of the Code, such sureties are not discharged from liability, merely because some of such appellants abandon their appeal, if the respondent obtains an affirmance of such judgment.
    Neither are such sureties discharged, because an order is made on the consent of the respondent’s attorney, without their consent, or notice to them, that the Clerk enter on the docket of such judgment, the words, “ secured on appeal,” and such entry is, thereupon, made.
    The facts that, after suit is brought on such an undertaking, the judgment of affirmance is appealed from to the Court of Appeals, and such an undertaking is given as is required, to stay proceedings, in the Court below, on such judgment, cannot be plead in bar, or in abatement of the action, on such undertaking.
    (Before Hoffman and Pierrepont, J.J.)
    Heard, January 12;
    decided, February 6, 1858.
    This action comes before the Court, at General Term, on an appeal by the defendants, from a judgment rendered against them, on the trial of the action, by the Court, without a jury.
    The plaintiff having, on the 4th of April, 1855, recovered a judgment, in this Court, for $1153-90, against Garret Van Cleve, Joseph Carpenter, George R. Jacques, and William H. De Groot; the four persons, last named, on the 17th of April, 1855, appealed from that judgment to the General Term, and the defendants in the present action, executed an undertaking, as sureties for such appellants.
    By such undertaking, the said Jacob Vanderbilt and Theodore R. B. De Groot, did “ undertake, that the said appellants will pay all the costs and damages which may be awarded against them on said appeal, not exceeding two hundred and fifty dollars; and do also undertake, that if the said judgment so appealed from, or any part thereof, be affirmed, the said appellants will pay the amount directed to be paid by the said judgpaent, or the part of such amount as to which the said judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against said appellants on the said appeal.”
    The present action is brought on that undertaking. The complaint alleges the recovery of the judgment of the 4th of April, 1855, the taking of an appeal from it, the giving of the undertaking in question, the affirmance of the judgment appealed from, with $83 costs of the appeal, recoverable from the appellant, Wm. H. De Groot, the filing of a judgment roll containing the judgment of affirmance, and non-payment of the judgment so affirmed, or of the costs of said appeal, or of any part thereof, and prays judgment for the amount thereof, with interest.
    The defences set up in the answer, are, 1st, that there has not been “ any judgment against said defendants jointly, of affirmance of the judgment appealed from.”
    2. That when said appeal was taken, the judgment appealed from was a lien, on real estate of William H. De Groot, of sufficient value to pay it. After the defendants executed such undertaking, as such sureties, the plaintiff without their consent, or notice to them, permitted said De Groot to have entered, upon the docket of said judgment, the words, “ secured on appeal,” whereby he was enabled to, and did convey all his real estate, and they, thereby, lost, and were deprived of their subrogatory right of indemnity, against said property.
    3. That said De Groot has appealed from said judgment to the Court of Appeals, and perfected his appeal, whereby the right to demand the amount thereof, is suspended until the determination of the said appeal.
    This action was tried in March, 1857, before Mr. Justice Woodruff, without a jury.
    The plaintiff’s counsel read, in evidence, a stipulation in the action, signed by the defendants’ attorneys, which, exclusive of its title, and the signatures to it, is in these words, viz.
    “ It is admitted that a judgment was rendered at special term of this Court, on the 4th of April, 1855, for $1,153 90 cents, against William H. De Groot and others, and that an appeal therefrom to the General Term was taken by the defendants therein, and that on such appeal, the defendants in this action executed and delivered the undertaking in the complaint mem tioned, and on which this action is brought. That the appeal was abandoned by all the appellants, except De Groot, who prosecuted the appeal, and on the appeal, the judgment of the Special Term was affirmed by the General Term on the 23rd day of February, 1856, and judgment of affirmance with costs which were adjusted at Eighty-three Dollars, was on the 28th day of February, 1856, entered with the Clerk of this Court, and the judgment roll filed with him. That notice of the entry of such judgment of affirmance was served upon the defendants in this action, and demand of payment thereof made before this action was commenced. That this action was'commenced by service of summons and complaint, on the 26th day of April, 1856.”
    The plaintiff then rested.
    The defendants’ counsel thereupon read in evidence a stipulation signed by the plaintiff’s counsel, which, exclusive of its title, and the signatures to it, is in these words, viz.:—
    “ The plaintiff stipulates to admit on the trial of this cause, that William H. De Groot appealed to the Court of Appeals from the judgment mentioned in the complaint in this cause, and perfected such appeal on the 9th day of June, 1856, and filed security to effect a stay of proceedings upon such judgment.”
    It was also admitted, that the appeal therein mentioned is still pending, and that the answer in this action was served simultaneously with the notice of said appeal, on the 9th day of June, 1856.
    Said counsel also put in evidence from the records of this Court, produced by the Clerk, the following consent filed November 10,1855, and order made by Mr. Justice Slosson, one of the Justices of this Court thereupon.
    It was admitted by defendants’ counsel that the consent was all in the hand-writing of S. Sanxay, the attorney for De Groot, and that the order was entered by the counsel of De Groot, and that no copy of said order was served upon the plaintiff’s attorneys. Such consent and order, exclusive of their titles, read thus:—

      11 Whereas, judgment was rendered on the 4th day of April, 1855, in the above named Court, in favor of the above named respondent, for the sum of $1,153 90 cts., the same having been secured on appeal; it is hereby mutually agreed that an entry be made by the Clerk of this Court, on the docket of said judgment, that the same is secured on appeal,” and that an order to that effect be granted.

      “ November 7, 1855.
    “S. SANXAY,

      Attorney for De Groot.

    BURRILL, DAVISON & BURRILL,

      Attorneys for Plaintiff."

    (Order op Nov. 10,1855.)
    “ On reading and filing the consent on the part of the respective parties in this action, whereby it appears that the judgment for $1,153 90, recovered in this cause on the 4th day of April, 1855, has been secured on appeal, and on motion of C. N. Potter, of Counsel for the said defendant, De Groot; it is ordered that the docket of the judgment in this cause, and the docket of the transcript thereof in the office of the clerk of the City and County of New York, be on presentation of a certified copy of this order, marked ‘ secured on appeal ’ as by the statute provided.”
    The judge before whom the action was tried, gave judgment for the plaintiff, and his statement of the facts found by him, and of his conclusion of law thereon, is as follows:—•
    “ The facts as established by the evidence are—
    “First. The same as are stated in the stipulation signed by the defendants’ attorneys, hereinbefore set forth; and also those stated in the stipulation read by the defendants’ counsel.
    “ Second. That on the 9th June, 1856, an appeal was taken by William H. De G-root from the said judgment of affirmance to the Court of Appeals, by the service of a notice of appeal and the giving the requisite security for a stay of proceedings upon the judgment appealed from, and that such notice of appeal was served simultaneously with the answer in this action,

      “ Third. That the attorney for the plaintiff, at the request of William H. De Grroot, signed the consent, on which the order of the 10th November, 1855, was granted, and that such order was procured from one of the Justices of this Court, without any notice to or intelligence on the part of the plaintiff or his attorney, but on the application of the said De Grroot and his counsel.
    Fourth. That the docket of the original judgment in favor of the plaintiff against said De Grroot, was marked “secured on appeal,” and thereupon said De Grroot conveyed a part of his real estate, which had theretofore been bound by the hen of said judgment, and on the 4th December, 1855, made a general assignment of all his real and personal property to trustees, for the benefit of his creditors. That on the 23d February, 1856, the docket of said judgment in the office of the Clerk of this Court, and of the Clerk of the city and county of New York, were marked thus, “ Judgment affirmed, see Docket 28, February, 1856.”
    Fifth. That there is due to the plaintiff, on the cause of action stated in his complaint, the sum of $1,403 39, for which sum, with his costs, he is entitled to judgment.
    The defendants duly excepted to the Court’s conclusion of law. At the trial they moved a dismissal of the complaint, on the grounds on which they insisted, on the appeal, the judgment should be reversed, and excepted to the decision, denying such motion.
    Judgment having been entered on the decision of the Judge, the defendants appealed from it to the General Term.

      S. Sanxay, for defendants and appellants, insisted that each of the grounds of defence set up in their answer, was proved, and that each ground of defence is fatal to the plaintiff’s right to recover.

      J. E. Burrill, for plaintiff and respondent.
   By the Court. Pierrepont, J.

The counsel for the defendants claims that, because some of the original defendants abandoned the appeal, that the condition of the undertaking has not been broken.

Section 282 of the Code provides, that whenever an appeal from any judgment shall be pending, and the undertaking requisite to stay execution bn such judgment shall have been given, and the appeal perfected as provided in the Code, the Court in which such judgment was recovered may, on special motion, after notice to the person owning the judgment, in such terms as they shall see fit, direct an entry to be made by the clerk on the docket of such judgment, that the same is 1 secured on appeal,’ and thereupon it shall cease, during the pending of the appeal, to be a lien on the real property of the judgment-debtor, as against purchasers and mortgagees in good faith.”

If the condition of the undertaking is not broken for the reason that a part of the original defendants abandoned the appeal before judgment was affirmed, then all, save one, might abandon the appeal after the real estate of the judgment-debtor had been released, in the manner provided by the Code, and thus the Legislature would have contrived an ingenious method by which a judgment-debtor might clear Ms real estate of the lien of the judgment, sell the estate, and Ms sureties be released from all liability.

We think this objection is not well taken.

The second objection is, that the plaintiff permitted the judgment debtor to have entered on the docket, the words secured on an appeal,” without notice to the sureties.

The entry was made in obedience to an order of the Judge, granted upon application of the attorney of the defendant De Groot, he having obtained the consent of the plaintiff’s attorney that such order be made; neither the plaintiff nor the sureties having had any knowledge of the consent.

The statute does not require notice to the sureties; it only requires notice to the person owning the judgment.” (Livingston v. Roberts, 3 Abb. Pr. R. 231.)

When sureties join in an undertaMng, they are presumed to know the legal effects of their act, and that one of those effects will probably be to release the real estate of the debtor from the lien of the judgment. In most cases that is one of the very objects for which the undertaking is executed.

We do not see that the plaintiff has done anything, in respect to the order, of which the defendant can reasonably complain.

The defendants’ next objection is, that the judgment-debtor has appealed to the Court of Appeals from the judgment of this Court, and perfected his appeal.

This action was commenced on the 26th of April, 1856. On the 9th of June following, the defendant put in his answer, and at the same time served a notice of appeal to the Court of Appeals, from the original judgment, as affirmed by the General Term of this Court.

At the commencement of this suit, then, the plaintiff’s cause of action was complete. If the appeal constitutes a defence, it has arisen subsequent to the commencement of the action.

The Code (sec. 339), like the Revised Statutes (2 R. S. 607), declares that a perfected appeal shall stay “ all further proceedings in the Court below, upon the judgment appealed from, or the matter embraced therein” (except in certain special cases.) .

The provisions of the Code in relation to appeals are the same as those of the Revised Statutes relating to appeals from orders and decrees of the Court of Chancery.

In Burr v. Burr (10 Paige, 169), the Chancellor held that an appeal, perfected after execution levied, did not stay the sheriff from proceeding on the execution, and terms were imposed as a condition to the order, staying proceedings; affirming the same construction previously given by him in the case of Clark v. Clark (7 Paige, 607).

In Cook v. Dickerson (1 Duer, 679), this Court held that a perfected appeal, under the Code, did not of itself stay an execution previously levied.

The case before us is not “ a proceeding in the Court below upon the judgment.” The suit upon the undertaking might have been brought in any Court of competent jurisdiction, as well as in the Court where the judgment had been rendered. The case of Thompson v. Blanchard (2 Comst. 561) differs widely from the one now under consideration, both in its facts and the principles involved.

The only question which this appeal brings before us is one of law; and we find no error in the decision of the Judge. We must, therefore, affirm the judgment, leaving the defendant to move for a stay of proceedings, or to make such other application to the Court, as he may be advised.

Judgment affirmed, with costs.

       Although all of the appellants, except one, abandoned their appeal, yet it is not found that, as to them, the appeal was dismissed or discontinued. On the contrary, it is found that the judgment appealed from was affirmed: It may, perhaps, be said, and justly so, that it was affirmed as to all the defendants, and that the judgment of affirmance is in the same form, and of the same effect, as if all the appellants had sought, on the argument of the appeal, a reversal of the judgment: And that this branch of the attempted defence is, therefore, disproved.—Rep.


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    Considerant v. Brisbane.
    When a Special Term order, which overrules a demurrer to the amended complaint, is, on appeal, reversed, and judgment is ordered in favor of the defendant, but leave is given, to the plaintiff, to amend his complaint, on paying the costs of the demurrer at Special Term, to be taxed, the defendant is entitled to a charge of $10, for proceedings before notice of trial, and a like charge, for proceedings after notice and before trial, although the same sum has been once paid, for the latter class of services, on sustaining a demurrer to the original complaint.
    (At Special Term,
    March 19, 1858,
    Bosworth, J.)
    Each party moves to correct the clerk’s adjustment of costs.
    The General Term reversed an order overruling a demurrer to the amended complaint, and gave judgment for the defendant, with liberty to the plaintiff to amend his complaint, on paying costs of the demurrer at Special Term to be taxed, and $10 costs of appeal: The clerk, in taxing the costs, allowed $10; costs of proceedings after notice of, and before trial, and disallowed a charge of $10, for proceedings before notice of trial, because the same item had been taxed, and paid by the plaintiff, on sustaining a demurrer to the original complaint. The defendant appeals from the disallowance of the item last named, and the plaintiff from the allowance of that first named.
   Bosworth, J.

For the labor of examining the amended complaint, and determining the nature of the pleading, to be interposed by way of answer, and of drawing, copying, and serving it, and of other proceedings before notice of trial, it is as just to allow $10 as for performing similar services, in relation to the original complaint. Allowing it, is not paying for the same services twice: The services are, as truly, separate, and different, as if performed in different actions.

For like reasons, the item of $10, for proceedings subsequent to notice of,, and before trial, was properly allowed. As to this item, the taxation is confirmed, and the item of $10, for proceedings before notice of trial, must also be allowed. The rejection of it was erroneous. A different rule may be applicable when there has been but one actual trial, as in Perry v. Livingston, 6 How. Pr. R. 404, and Jackson v. McBurney, id. 408:—In the present case, there have been two actual trials, of issues at law, one upon a demurrer to the original complaint, and the other upon a demurrer to an amended complaint. Both items are allowable.


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    James J. Duigan, Plaintiff and Respondent, v. Robert Hogan, Appellant.
    The 47th section of the Act relating to summary proceedings by a landlord to recover possession from a tenant holding over after non-payment of rent (2 Rev. Stat. p. 616), is not repealed by the Code.
    A Court of Equity, after proceedings have been had, under that act, before a magistrate, for the dispossession of the tenant, and a warrant has been issued, has no power to interfere, by injunction, to prevent the execution of the warrant, on the ground that the tenant has a claim against the landlord for damages for breach of his covenant to repair, exceeding the amount of the rent in arrear.
    If the magistrate errs in awarding such warrant, his determination may be reviewed in the manner prescribed by the statute, and if the proceedings be reversed or quashed, the tenant has his remedy by action for the damages caused by the dispossession.
    When there is no charge of insolvency of the landlord, the tenant, having a claim for damages, or any cause of action against Mm, which cannot be used to defeat tlie proceedings before the magistrate, should pay Ms rent and prosecute such cause of action, and this will presumptively give him a full remedy, without the interference of a Court of Equity, by injunction, to stay the execution of a warrant of dispossession.
    (Before Bosworth, Hoffman, Slosson, Woodruff, and Pierrepont, J.J.)
    Heard, May 15;
    decided, May 29, 1858.
    This is an appeal by the defendant, from an order at Special Term, granting an injunction.

      The complaint of the plaintiff, fortified by affidavits on his behalíj represented in substance, that the defendant leased certain premises then out of repair, to the plaintiff, and covenanted that he would put them in complete repair—that the defendant neglected and refused to make such repair, and that the plaintiff had sustained great damage thereby, and had been himself put to expenses in making repairs that were necessary—that the making of such repairs was a condition precedent to the defendant’s right to claim any rent—that the plaintiff was entitled to apply such expenses on account of the rent, and to be allowed such damages in extinguishment of the rent which had accrued— that the defendant, nevertheless, upon the allegation that the .rent for the quarter ending on the 1st of April last, was in arrear-and unpaid, had instituted proceedings, under the act authorizing summary proceedings for the dispossession of a tenant holding over after non-payment of rent, before a magistrate, who refused to permit the said matters to be given in evidence, and on the trial gave judgment that the plaintiff be dispossessed, and the defendant threatens to apply for, and the justice threatens to issue, a warrant to put the landlord in possession of the demised premises. The complaint prays that the performance of the covenant to repair be adjudged a condition precedent to the defendant’s right to rent or to institute proceedings to dispossess—'that the expenses, to which the plaintiff has been subjected, be adjudged payment of the rent, and that he have his judgment for the damages sustained by the defendant’s neglect to repair—that the defendant be directed by the judgment to put the premises in repair, etc., and that in the meantime the defendant be restrained by injunction from taking any warrant to dispossess the plaintiff, etc., etc.
    The answer of the defendant showed that a warrant for the dispossession of the plaintiff had been actually issued to put the defendant in the possession of the demised premises, and was already in the hands of the constable for execution—that it was issued by the magistrate after a trial by jury in the proceedings instituted by the defendant, and after a foil hearing upon the matters in controversy in those proceedings, and a judgment in the defendant’s favor therein.
    The answer farther denied the several allegations in the complaint upon which the claim of the plaintiff, to be allowed for expenses and damages by reason of the alleged want of repairs, was founded—avers that the defendant performed his agreement by putting the prenjises in repair according to the terms of the lease, etc. The answer was also corroborated by affidavits annexed, on behalf of the defendant.
    Upon an order to show cause, an order was made at special term, that upon condition that the plaintiff deposit the amount of rent in arrear, to abide the event of this action, with a farther amount to cover any costs which may be awarded to the defendant, the defendant be enjoined from issuing or serving any warrant to dispossess the plaintiff, or taking any other proceedings to dispossess him of the demised premises.
    From this order the defendant appealed to the General Term.

      Mr. Nelson Smith, of counsel for (defendant) appellant.

      Mr. John W. Ashmead, of counsel for (plaintiff) respondent.
   By the Court. Woodruff, J.

By the plain terms of the 47th section [now 48th §] of title tenth of chapter 8th of the 8d part of the Revised Statutes, proceedings on an application for the dispossession of a tenant under that title may not be stayed by the writ or order of any Court or officer.

The Legislature in granting the remedy furnished by that title have prescribed with entire precision what allegations must be made on behalf of the landlord, and what issues the tenant shall be permitted to take, and submit to the determination of the jury. H those issues are found by the jury against the tenant, the magistrate is imperatively required to issue his warrant to put the landlord in possession.

It is wholly unnecessary for us to inquire what considerations induced the Legislature to give to landlords this summary mode of obtaining possession of demised premises, or why they have not enlarged the grounds of resistance or defence, which the tenant might interpose to defeat the application. It is enough that it is so enacted, and when the Legislature have given a specific defence, and have allowed no other, it is not for any Court to say that although no fraud has been practised and the tenant has had all the benefit of a fair trial which the Statute has provided for him, there are yet other defences, which, had the Legislature permitted hinfto use them, might or ought to have availed him, and upon such conclusion, to repeal the Statute, and restrain the landlord of his express Statute redress.

And, again, the Statute has prescribed a specific mode of reviewing the proceedings had before the magistrate by certiorari to the Supreme Court; but the intention, that the parties should be permitted to act on the presumption that a determination in favor of the landlord is according to the right of the matter, and the purpose to make the proceeding in fact, what it is in name, summary, are shown in the declaration that the proceeding to dispossess, shall not be stayed by such certiorari. No allegation of error shall, therefore, prevent the execution of the warrant, even while a review is taking place, which may vacate the whole proceeding.

To this is then added the provision for the recovery of damages by the tenant, by reason of the proceedings, in case they shall be reversed or quashed by the Supreme Court.

And, finally, no writ or order of any Court or officer shall stay or suspend the proceedings thus authorized.

The whole scheme of the Statute is this; Upon certain specified allegations, the landlord may require that the tenant be summarily removed.

The tenant may interpose certain specified grounds of resistance. The issues made between them shall be tried by a jury. Upon a determination in favor of the landlord, he shall be put into possession. And neither by writ of certiorari nor by any other writ or order of any Court or officer shall the proceedings be stayed.

The proceedings may, nevertheless, be reviewed in a manner prescribed, and if reversed or quashed, the tenant shall be entitled to recover his damages sustained by the proceedings, with costs.

Here is a complete system or scheme which the Legislature thought wise in policy, just in its operation, and, if in any case harsh in its effect, still a lesser evil than to permit landlords to be kept out of possession during any protracted litigation into-which the tenants might find means to involve them.

Although it was not claimed on the argument that this Court may in the face of this Statute, and contrary to the provisions of the 47th section, enjoin the landlord who has succeeded on the trial before the magistrate, and obtained a warrant directing the officer to put him in possession of the demised premises, it is claimed that this Statute is modified, and this 47th section is in substance repealed by the liberal provisions of the Code which confer upon the Courts the power to grant injunctions; and section 219 of the Code is referred to as producing this change.

Section 471 of the Code provides that the second part of that act, in which the 219th section is found, shall not affect any proceedings under certain specified chapters and titles of the Revised Statutes, of which chapter 8th of the third part is one; except that where any particular provisions of those chapters and titles are plainly inconsistent with the Code, such provision shall be deemed repealed.

It is, therefore, obvious, that unless section 219 is plainly inconsistent with the section 47 of the Revised Statutes above referred to, then that section is in full force, and we have no power to enjoin the landlord in the present case.

The section of the Code referred to (219) relates solely to temporary injunctions, or injunctions pendente lite, and the very first condition, upon which the Court is permitted to grant a temporary injunction, is, that it shall appear by the complaint that the plaintiff is entitled to the relief demanded; i. e. if the Court can see that if the plaintiff finally establishes the facts which he alleges, he will be entitled-to the relief demanded, and such relief consists in whole or in part in restraining som'e act which would produce injury to the plaintiff, then a temporary injunction may granted. And it necessarily follows that if we can see that on a final hearing no such injunction can be granted upon the facts alleged, then section 219 does not warrant a temporary injunction.

Whether, if the proofs were now all before the Court, and the plaintiff had proved the facts alleged, a perpetual injunction could issue, is therefore a question which the plaintiff must' answer affirmatively, before he can ask anything under section 219, which otherwise has no application whatever to his case.

That section cannot be invoked to show that on a final decree, an injunction may be granted, because it only applies to temporary injunctions.

And no section of the Code nor any other Statute authorizes any Court on a final hearing to grant a perpetual stay of proceedings after a warrant has been issued, or to suspend the execution of the warrant in such proceedings between a landlord and his tenant holding over without paying his rent, and the § 47, already mentioned, expressly forbids it. ' A case is not made, therefore, to which § 219 can apply, because it does not appear by the complaint that the facts, if all that is alleged should be proved, will warrant the Court at the final hearing in granting an injunction.

There is, therefore, no inconsistency between § 219 of the Code, and § 47 of the Revised Statutes. The Code provides that when a case is made, upon which, by existing laws, the plaintiff will be entitled to an injunction, he may have an injunction, pendente lite. By § 47, the Court are, in substance, forbidden to grant the injunction sought in this case. The necessary consequence is, the case for a temporary injunction contemplated by § 219 is not made out.

' We are, therefore, clear that there is no inconsistency between the Code and the provisions of the Statute under consideration, and that the 47th section of the Statute is in full force.

It has seemed, advisable to express ourselves distinctly on this point in order that the views of this Court may be understood in the apparent conflict of decision which has been exhibited on this question. (Smith v. Moffat, 1 Barb. S. C. R. 65; Cure v. Crawford, 5 Howard, 293 ; 1 Code, R. N. S. 18; Wordsworth v. Lyon, Ib. 163; Valloton v. Seignett, 2 Abbott, 121; Hyatt v. Burr, 8 Howard, 168; Capet v. Parker, 3 Sandford, 662.)

These views do not necessarily conflict with the case of Forrester v. Wilson, 1 Duer, 624. The power of the Court of Chancery under its peculiar jurisdiction to protect a party against fraud, even when such fraud is attempted under the cover of a statutory proceeding, is not involved in the case now before us. The facts in that case do not appear in the report; but I am informed by my brethren that there the proceedings were taken before a magistrate, at a distance of several miles from the premises. That the utmost despatch was barely sufficient to enable the tenant to. reach the place of trial. That although he used all reasonable diligence to arrive in season, and took with him the money to pay the rent, and prevent the issuing of the warrant, travelling by the cars, he arrived just as the warrant was signed and delivered, and a moment too late to make the payment. There was deemed- sufficient reason for interference on the ground of undue advantage, fraud, or surprise. Here there is no pretence of fraud or surprise. The tenant claimed that he ought not to pay rent because the landlord had broken his covenant to repair, and the tenant was entitled to damages.

Now, this claim was a defence to the summary proceedings, or it was not. If it was, and the magistrate erred in rejecting it, his error may be corrected by a proper review of the proceedings. If it was not a defence, then we-can only say that the Legislature have practically, said that the landlord shall be permitted to recover possession if the rent is not paid, and a warrant of dispossession be obtained, notwithstanding such claim for damages, and without being subjected to the delay of a litigation respecting such claim.

Again, if we were at liberty to consider this question under the general rules of equity-, it would be obvious to remark, that it is a novel view of the power and duty of a Court of Equity, to suggest that, when the Legislature have said that certain facts shall defeat those summary proceedings, and if they are not established, the landlord shall have possession ,• yet, a Court of Equity may say, that certain other facts shall avail as a defence and defeat the Statute.

For example, though it be conceded that the Statute does not permit the tenant in this proceeding to set off against the rent a claim due to himself,—a clear legal defence to an action for the rent, but not an extinguishment or payment of the rent—a Court of Equity may say that because the Legislature have not made that a defence, we will 5 or what is practically sought of us, although the Legislature have, in substance, by not allowing, prohibited the tenant from setting up any such claim as a ground for retaining .the possession, we, a Court of Equity, will permit it, and the very prohibition in the Statute shall be the reason for our doing so. As already remarked, if such set off be a defence, and the magistrate errs in rejecting it, the remedy of the tenant is by a review of his proceedings.

Still further, if the subject were open to inquiry upon principie, we should say that the plaintiff has ample remedy without the aid of this Court. There is no pretence that the landlord is insolvent. All that the tenant had to do, for the preservation of his rights, was to pay his rent, and if he had any just claim against his landlord, sue him and recover all that is due. There is nothing new in this. Prior to our recent amalgamation of actions and defences, it was a most common occurrence for a defendant to be sued upon a cause of action to which he had no legal defence, although he had also a cause of action against the plaintiff which might be of far greater magnitude. Cross actions were necessary. And a familiar example is suggested, by a case similar to that before us, when it is recollected that a breach of a covenant to keep in repair was no defence to an action of debt for rent. And yet who ever heard of a Court of Equity interfering when there was no defence of insolvency, on the ground, that if a plaintiff was not enjoined he might obtain judgment and execution, and collect his claim before the defendant, in his cross action, could obtain judgment.

In every view of this subject, we think the plaintiff here has mistaken his remedy; he should have paid his rent, and if he have a just claim against the plaintiff, sue, and collect it.

"We have deemed it proper thus to express our views respecting the power of the Court in such cases, and the want of any justifiable ground for our interference on the facts stated in the complaint, notwithstanding the present case might, we think, be disposed of on another ground, viz. that the case made by the complaint is folly met by the answer. The whole equity of the bill is denied; all that results from the addition of affidavits to the bill and answer respectively, is that the witnesses differ in their statements as widely as the parties do themselves; and all idea of irreparable injury is already disposed of. H the plaintiff has chosen to lose the opportunity to pay his rent, that is his own neglect. That, and the probable consequence—loss of his term, result, not from any necessity of the case, not from his being unable to prevent irreparable loss, but from his allowing the time and opportunity to pay his rent and save his term, to pass by.

I am authorized to say, that the order appealed from was made in. part with a view to save the possession to the tenant until this case could be considered on the appeal, which it was understood would be taken to the General Term; and that the Justice by whom the order was made, concurs with all the members of the Court by whom the argument was heard, in holding that the order must be reversed.

Order reversed, with costs on appeal, $10, and on the motion below, $10, to abide the event of the suit.


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    Frederick L. Peet v. John Warth.
    When a plaintiff, in an action for the recovery of money, for goods sold and services rendered, recovers a verdict for a less sum than $50, he must pay the defendant’s costs of the action, as a matter of course: Such a plaintiff is not “the prevailing party,” within the meaning of those words, as used in § 311 of the Code. The right to recover “the necessary disbursements," is incident to and inseparable from the right to recover the costs of the action: The party who, by law, is entitled to his costs of the action is, in respect to the matter of the costs, the prevailing parly.
    (Before Bosworth, Hoffman, Slosson, Woodruff, and Pierrepont, J.J.)
    Heard, May 15;
    decided, May 29, 1858.
    The plaintiff brought this action to recover money, for goods sold and for services rendered, claiming over $50.
    The defendant, by his answer, denied that the goods and services were of the value alleged in the complaint. The verdict was for $30, in favor of the plaintiff.
    The defendant claims costs. The plaintiff resists the claim, and demands that the clerk insert in the judgment the amount of plaintiff’s disbursements.
    The Judge below allowed costs to the defendant, and rejected the plaintiff’s claim for disbursements.
    The plaintiff appeals from the order entered on that decision.
    Miller, Peet, and Nichols, for plaintiff.

      S. W. Judson, for defendant.
   By the Court. Pierrepont, J.

The Legislature, evidently, intended to discourage the "bringing of actions, for small claims, in the higher Courts.

By section 304 of the Code, the plaintiff in an action like this is entitled to costs if he recover $50 or more. By section 305, the defendant in such action is entitled to costs, unless the plaintiff has a • right to them. The plaintiff not being entitled to costs, it follows that the defendant is entitled to them. It is also clear that the plaintiff is not entitled to recover his disbursements from the defendant. The right to recover disbursements is incident to the right to recover the costs of the action. They are entered in the bill of costs, and adjusted as a constituent part of it: The plaintiff, having no right to costs, has none to disbursements.

The plaintiff insists that, under the Code, disbursements are to be entered in the judgment in favor of, and that they are recoverable by, the “prevailing party;” and that the party who recovers even a less sum than $50, has prevailed; and that as the defendant has not recovered a verdict for any sum, he has not prevailed. .

In those sections of the Code which relate to costs, the prevailing party” therein mentioned is he who has prevailed in establishing his right to costs under the law. A plaintiff who sues for and recovers $20 only, in a Court of Record, is not the prevailing party within the statute relating to costs, and the defendant in such action is the prevailing party.

"We have not omitted a careful consideration of the case of Kalt v. Lignot (3 Abbott, 33), and the other cases cited by the plaintiff’s counsel.

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