author: By the Court, McCunn, J.

text:
    John Soudder, plaintiff and appellant, vs. Catherine Gori, impleaded with Henry M. Pierce, defendant and respondent.
    1. In an action upon a promissory note, by an indorsee, an answer alleging that at and before the making of the note, the defendant was, and still is, a married woman, prima, facie sets up a defense.
    2. Whatever .disabilities have been removed by statute from married women, none has yet enabled her to give accomodation notes in exchange for others, so as to bind herself or her estate.
    3. The law permits a married woman to engage in trade; and renders her liable upon notes and obligations given by her in the course of her business. And does the same with her obligations, given with the intent to charge her separate ’ estate, if intended to benefit such estate.
    4. Where, in an action upon a promissory note, the defendant sets up as a defense that she was, and is, a married woman, and introduces proof on the trial, tending to establish the truth of the defense; evidence on the part of the plaintiff, showing that the defendant has sued and been sued separately, in her own name, as a feme sole, and that there are numerous judgments against her individually, is admissible to prove that she was a feme sole.

    (Before Moncrief, Garvin, and McCunn, JJ.)
    Heard December 14, 1864;
    decided December 31, 1864.
    Appeal from a judgment dismissing the complaint, and from an order denying a motion for a new trial.
    The complaint alleges that the defendant Gori, on the 24th of September, 1861, made her promissory note of that date, whereby she promised to pay, sixty days after the date thereof, to the order of the defendant Pierce, $600, for value received, and delivered the said note to Pierce. That Pierce, before the maturity of the note, indorsed and delivered the same to the plaintiff. The defendant Pierce made no defense, and judgment was entered against him severally on the 11th day of ■January, 1862, for $621.25. The defendant Gori put in an answer containing only one allegation, to wit, that at and before the times stated in the complaint, she was, and still is, a married woman, the wife of Ottaviano Gori.
    The action came on to be tried before the Hon. J. W. White, one of the justices of this court, and a jury, on the fifth day of May, 1862. The defendant’s counsel claimed to hold the affirmative of the issue, and called a witness to prove that the said Catherine Gori was a married woman. The plaintiff’s counsel objected to the testimony, and to any evidence being given under the said defendant’s answer, on the ground that the note was negotiable, purported on its face to be made by a single woman, for value received, which was prima facie evidence that the defendant had received value therefor in the course of her business, even if she were a married woman, and the note was indorsed by the payee and delivered to the plaintiff before maturity, which facts were set forth in the complaint, and were not controverted by the answer ; and the answer, by merely alleging that the defendant was a married woman, without anything further, was insufficient, and contained no defense. The court overruled the objection; to which the plaintiff excepted.
    The counsel for the defeudant then introduced some testimony for ■ the purpose of showing that she was a married woman. The plaintiff thereupon offered to prove that the defendant was carrying on trade and business as a single woman on her own account, without any connection with any husband. To which proof the counsel for the defendant objected; claimed that he' was taken by surprise ; and moved that the plaintiff put in a reply to the defendant’s answer ; to which motion the plaintiff objected. The court overruled the objection, and granted the motion. To which the plaintiff excepted. The trial was thereupon suspended; and the plaintiff’s attorney, pursuant to the direction of the court, served upon the defendant’s attorney a reply in which he alleged that he had no knowledge or information sufficient to form a belief, whether or not the said defendant, at or before the time stated in the complaint, was, or still is, a married woman, or the- wife of • Ottaviano Gori; but alleged upon his information and belief, that the said defendant, at the time of the making and delivery of the promissory note set forth in the complaint, was, and for a long time, to wit, two years previous thereto, had been, carrying on trade.and business in the city of Hew York, as a single and unmarried woman, in buying, selling, dealing, and trading in marble and stone, and keeping a marble and stone yard for her own benefit, profit, and advantage, and having relation to her own separate property and estate, making, giving out, and circulating her own promissory negotiable notes, and other negotiable paper in her own individual name, and in like manner taking and receiving the notes of other persons, making contracts, suing and being sued in her own name and right in relation to her business and property, and in all respects holding herself out to the world as a sole trader, without the interference, control, or connection with ■ any husband ; that on or about the 24th day of September, 1861, the said Henry M. Pierce, the other defendant in this action, delivered to the said Catherine Gori, at her stone yard in the city of Hew York, a large quantity of stone, and proposed to sell the same to the said Catherine, in her own right, at the price and for the sum of nine hundred dollars, and the said Catherine proposed to purchase from the said Pierce the said stone, in her own right, and for her own use and benefit, and offered to pay him therefor the price or sum of six hundred dollars; and in the meantime, and while the negotiation was pending for the sale and purchase of the said stone, the said Pierce wished to make use of some of the avails of said stone, and the said Catherine Gori thereupon, on or about the said 24th day of September, 1861, made and delivered to the said Pierce the note upon which this action was brought, and Pierce at the same time, and as a part of the same transaction, made and delivered his promissory note for the same amount, and of the like tenor and effect, to the said Catherine, payable to herself or order, and also at the same time left the said stone in possession of the said Catherine; and the said 1 Catherine took the said note, so made and delivered to her by said Pierce, and negotiated, used, and passed away the same before maturity, as her property, in her business, and received the avails thereof for her own benefit, profit, and advantage, and as her separate and individual property and estate ; and the said "Pierce negotiated and passed the said note, on which this action is brought, before its maturity, as a good and valid note to' the plaintiff, in business transactions, for value.
    At the close of the testimonv, the defendant’s counsel moved for a dismissal of the complaint. The court granted the motion, and dismissed the complaint; to which decision the counsel for the plaintiff excepted.
    The said counsel also requested the court to submit the issues to. the jury, which the court refused to do. To which refusal the plaintiff excepted.

      S. W. Judson, for the plaintiff, appellant.

      S. W. & R. B. Boosevelt, for the defendant, respondent.'
   By the Court, McCunn, J.

If the defendant was a married woman, and by reason thereof was not legally bound to pay the note ip suit, the answer, assuming its statement to be true, was not insufficient. . The exception to the ruling upon the objection that the answer was insufficient and as containing no defense, was therefore not well taken.

The amendment of pleadings during the trial is a matter of. discretion with the court. The plaintiff did not allege surprise, and indeed could not truthfully have done so, as he must be presumed to' have taken the amended matter into consideration in preparing for the trial.

The error of the counsel for the plaintiff was in assuming at the trial that a promissory note made' by a married woman imports a consideration, and is negotiable' like such evidences of debt when, made by single females.

' At common law a married woman had no legal existence. The legislature has thought proper to create some specific status for her, but she may not move one step further, or save as the law specifically directs or permits. The législature has removed certain disabilities pertaining to a married woman, but it has not as yet, in terms, permitted her to exchange notes, _as -a-matter of friendly accommodation. The law, it is true, permits her to engage in trade, and no doubt in pursuit of such, business notes and other obligations which were and are alleged to have been given in the course of business can be recovered against her, in the like manner as if she were a feme sole; so, again, if, tending to benefit her separate estate, her obligation be given with the intent to charge that estate, she could be held liable. The law makers seem to have wished to protect and benefit her, and to leave the unfortunate dealer with her, at his peril, to look to it that in all her transactions, presuming upon her legal entity, she was within the scope and prescribed limits which the law has given.

If these views are correct, the complaint might have been dismissed upon the plaintiff’s resting his case. The complaint did not state facts sufficient to constitute a cause of action against the defendant, assuming it to be true that she was at the time of making and delivering the note a married woman.

There was some proof tending to establish that the defendant was a married woman; whether or not it was sufficient in law, or would have been satisfactory to the jury, is an important inquiry, in view of testimony that was offered which might have established that she was a single woman. The plaintiff offered to prove that the defendant had sued and been sued in her own name, and that there were numerous judgments against her. This evidence was excluded, and the plaintiff excepted. We think that this was erroneous. The important issue to be determined was whether the defendant, in law or in fact, was a feme sole as to her liability upon the note sued upon; the evidence of marriage in fact was not proven in such a manner as would be required in an action for a divorce a vinculo, and the offer of the plaintiff might have produced testimony clear and positive contradictory of the case as made by the defendant.

The learned judge was therefore in error when he withdrew the question of fact from the jury, and directed the complaint to be dismissed.

The judgment must be reversed and a new trial ordered,. . with costs to abide the event. < •


source: Caselaw Access Project

author: Robertson, Ch. J.

license: Public Domain

text:
    Lewis Freeman, plaintiff, vs. Sanford Young and others, defendants.
    1. A motion to set aside a complaint for non-conformity with the summons, . cannot be made before the summons has been served.
    2. Although when an attachment is ordered to be set aside, a right of action upon the undertaking, given when it was issued, commences, there is no necessity for directing the undertaking to be delivered to the defendants to be sued, nor of taking it from the files, until the trial of an action upon it, when it may be produced in court.
    8. Where an order to file security for costs is peremptory and absolute, and no time is allowed for compliance therewith, the 57th general court rule is applicable, and the plaintiff has twenty days in which to comply with it.
    4. An appeal from such an order does not in itself stay proceedings. And if the plaintiff does not file security within twenty days, the defendant will be entitled to a dismissal of the complaint; unless a stay of proceedings is obtained.
    (Before Robertson, Ch. J. at special term,
    1864.)
    This was a motion to set aside the complaint in the action for non-conformity with the summons ; to compel the plain-to file security for costs, under the penalty of dismissal of the complaint, and to pay costs heretofore granted on a motion ; and to have the undertaking given on an attachment heretofore issued in the action and set aside, delivered to the defendants to be prosecuted. It was founded on an order previously made in this action, setting aside the attachment issued therein, and also the complaint, for not corresponding with the summons, unless an amended one should be served in ten days, and ordering security for costs to be filed by the plaintiff; giving him ten days to serve such amended complaint; and directing him to pay $ 10 costs ; and was made on an affidavit showing a demand of such costs on the plaintiff’s attorney, which also stated that the summons was for relief, and the complaint for a money demand on contract, and that the defendant had sustained damage by the attachment.
    The affidavit on the part of the plaintiff to oppose such motion showed that no summons was ever served upon the defend-, ant, who is non-resident of this county, and has never been in it since the attachment was issued, and that an appeal has been taken from the order before mentioned.

      H. N. Walker, for the motion,

      A. Nash, contra.
   Robertson, Ch. J.

It does not appear in the papers before me, how the defendant is enabled to fix upon and determine what the summons in this action is, when it has never been served. Two of the defendants, on whose behalf this motion is made, have voluntarily appeared by. attorney in this action, which is equivalent (for the purpose of jurisdiction) to personal service of the summons on them, (Code, § 139,) even in this court, unless they expressly limit the appearance of their attorney to the purpose of setting aside proceedings. (Mahaney v. Penman, 4 Duer, 603. S. C. 1 Abb. 34.)' The object of serving a summons is to acquire jurisdiction over the person; the designation in it of the relief sought is simply to confine the plaintiff in his complaint, and judgment in case of default, to that so designated, (Code, § 275,) and to enable and require him to proceed under the proper subdivision of section 246 of the Code, according to the nature of such relief. If the defendant enters into a controversy by answering, he waives his objection to the relief claimed, (Id.) and consents to have any given to- which the case in the complaint entitles the plaintiff. If he voluntarily appear without service of a summons and serves no answer, the plaintiff can only obtain the relief specified in the complaint, where it is in an action or contract to recover money, under the latter part of the first subdivision of the 246th section of the Code, which authorizes the clerk to ascertain by proof the amount due, or, where it is for specific relief, under the second subdivision of that section ; otherwise the plaintiff could not obtain judgment where the defendant Voluntarily appeared, but put in no answer. The part of the present motion to dismiss the complaint for not conforming to an imaginary summons in possession of the plaintiff’s attorney must, therefore, he denied.

There is no necessity for delivering the undertaking to the defendants to he sued.- The Code requires all undertakings given under it to be filed with the clerk of the court, unless a different disposition is made, except one in case of an action of claim and delivery; and there is no necessity of taking them from the files until the trial in an action upon them ; when they may be produced in court. If the attachment be set aside, a right of action on it commences. Changing the custody of it may be prejudicial, and is unnecessary, without some special cause shown.

The former order, made and served, to file security for costs, was peremptory and absolute, and no time was allowed for compliance therewith ; the 57 th general rule is therefore applicable, and the plaintiff had twenty days for the purpose of complying therewith. More than that time has elapsed, and the' order has not been complied with. The appeal brought does not in itself stay proceedings. (Bacon v. Reading, 1 Duer, 622.) The defendant is therefore entitled to a dismissal of the complaint, with costs, unless the plaintiff, upon affidavits disclosing the proceedings in this action, obtains a stay of proceedings by reason of the pendency of such appeal, within four days ; and in that case the complaint shall'not be dismissed until such stay be removed.

The defendant is entitled to the usual process for collecting his costs, granted on the former motion, without special leave of the court.


text:
    Hannah Solomon, plaintiff vs. David Solomon, defendant.
    1. To entitle the plaintiff to alimony and counsel fee, in an action for a divorce for cruel and inhuman treatment, she must make it appear that she has been injured, and present a meritorious cause of action.
    2. A single instance of cruelty is not sufficient cause to authorize the court to interfere, although vague charges of cruel treatment are also made, against the husband. The parties to a marriage contract should bear long and patiently with each other; they should exercise the most forgiving spirit, and seek by all possible means to reconcile their differences before resorting either to the protection or the power of the law to redress their wrongs. They should become fully satisfied that there is no longer any possibility that the duties of their married life can be discharged.
    (Before Monell, J. at special term.
    February —, 1863.)


author: McCunn, J.

text:
    Peter R. Strong, plaintiff, vs. Mary E. Strong, defendant.
    1. The court has full power to grant leave to the defendant, in an action for a divorce, to amend a former or file a supplemental answer alleging adultery on the part of the plaintiff, when discovered after the issues were joined.
    2. Although amendments may be refused in other cases, in consequence of laches, yet in actions for divorce, the privilege of amending, so as to set up a valid defense, is not only allowable, at any time before trial, hut the court should encourage setting up any valid defense, the knowledge of which is brought judicially to it.
    3. Upon a motion to amend, in such an action, the duty of the court is simply to ascertain whether the defendant has a reasonable prospect of establishing the recriminatory charge. If it thinks she has, this alone will give her the right to amend.
    (Before McCunn, J. at special term,
    January —, 1865.)
    This was an application to amend, or file a supplemental answer, alleging adultery on the part of the plaintiff, the fact having been discovered after the issues were joined.
    E. T. Gerry, for the motion.

      H. A. Gram, opposed.
   McCunn, J.

Under section 173 of the Code, the court has full discretion on the subject where it is in furtherance of justice, and where such amendments are clearly made in good faith. (Gartledge v. Gartledge, 8 Jur. N. S. 493. Smith v. Smith, 4 Paige, 435.) Although amendments, owing to laches, may be refused in other cases, yet in actions for divorce the privilege of amending, so as to set up a valid defense, is not only allowable at any time before trial, but the court should, of its own motion, require any valid defense to be interposed of which it has any knowledge. (Smith v. Smith, 4 Paige, 435.)

The contract of marriage differs from all other contracts ; its continuance does not depend on the will or consent of the parties. Public policy forbids that it should be judicially dissolved, unless there be, in fact, an adequate cause for its dissolution. The courts will not permit a marriage to be dissolved in consequence of the negligence or collusion of the parties. The statute declares, (3 R. S. 5th ed. 236, § 55,) that although the offense charged be established, yet, if condonation, or adultery, by the plaintiff appear, the plaintiff shall not obtain a divorce ; and for the purpose of enforcing this policy, the courts have invariably compelled parties to allege in their complaints the non-existence of every defense named in the statute. (Smith v. Smith, 4 Paige, 435, 436.) In the case last cited, the court of chancery laid down as a rule, the principle that the sacred ties of marriage cannot be dissolved by consent, or negligence, when a good and valid defense exists; and the •cases in the English courts are numerous in establishing this doctrine. So jealous are the English people of any encroachments on the sacred obligations of marriage, that the statute of 23 and 24 Victoria, chapter 144, was passed, making it the duty of the crown’s proctor to intervene in case he suspects collusion between the parties ; indeed the statutes of Victoria above cited go so far as to allow a stranger, after interlocutory judgment, to appear and show cause why' final judgment should not be pronounced, by reason of any collusion, between the parties; or that material facts have not been brought before the court; and the act declares that the decree shall not be made absolute in the first instance, but that a time, not less than three months, shall be fixed by the court to allow parties to come in and show cause why the divorce should not be granted. Under the English statutes the courts will receive evidence of the charge of collusion, at any time after verdict and before final judgment, and any neglect on the part of the defendant to make the proper defense, such as adultery, is acted upon in the same manner. (Pollock v. Pollock, 8 Jur. N. S. 1230. Lautuor v. Lautuor, 31 Law Jur. N. S. Prob. mat. and ad., p 66. S. C. 2 Swabey & Trist Div. Cas. 524. Boulton v. Boulton, 2 Swabey & Trist Rep. pp. 405, 638, 639.)

Chancellor Walworth, in-the case of Smith v. Smith, in laying down a similar doctrine, held that the' court will, of its own motion, act in such cases, and see that all valid reasons for not granting a divorce be fairly brought before it. The reason why courts have pursued this course is, that marriage is a contract of a peculiar nature, and they have always looked upon it as a sacred ordinance having its origin in the divine and natural law, differing from all other contracts; for the rights and obligations arising from it are not left entirely to be regulated by the agreement of the parties, but are, to a certain extent, controlled by matters of municipal regulations, over which the parties have no control. Unlike other contracts, it cannot be dissolved by mutual consent, and it subsists in full force even though the parties are possessed of incurable insanity, and the state will not allow it to be dissolved, except upon the complaint of an innocent party, and for the crime of the other party. Innocence on one side and quiet on the other are alike indispensable.

In this case, opposing affidavits have been introduced to impeach the proposed amendments, and, I think at this stage of the proceedings, it would be improper for -me to pass upon the question, of the veracity of the witnesses, especially in a case of this nature. Witnesses on both sides in this class of cases are generally persons of tarnished reputation, for other witnesses can very rarely be obtained, and it is undoubtedly the province of the jury to pass upon the truth or falsity of their testimony.

My duty on this motion is simply to ascertain whether the defendant has a reasonable prospect of establishing one of her recriminating charges : if I think she has, this alone will give her the right to amend. In the early part of the proceedings the defendant had a perfect right to interpose this defense, if she had known the facts alleged. The plaintiff is not, therefore, prejudiced, and her non-compliance with the rules of order in matter of practice, I am satisfied, did not arise from any disrespect to the court, or from any contemnt of the law.

The amendment should be allowed.


author: Barbour, J.

text:
    Stewart vs. Hamilton.
    Although an admission, made by the plaintiff’s counsel, in his opening, which is fatal to his case, may entitle the defendant to a judgment dismissing the complaint, yet a motion for dismissal will not be granted merely on the ground that the counsel has not stated, in his opening, sufficient facts to constitute a cause of action.
    (Before Barbour, J. at special term,
    January —, 1865.)
    In this action the counsel for the plaintiff having opened his case in an address to the jury, the counsel for the defendant moved for a nonsuit.

      Ira D. Warren, for the plaintiff.

      John H. Anthon, for the defendant.
   Barbour, J.

I think it is not good practice to nonsuit upon the plaintiff's opening address to the jury, merely for the reason that he has failed to state to them sufficient facts to constitute a cause of action, although I am aware that such a practice has obtained in some of our courts. In his opening, the plaintiff’s counsel may properly, and usually does, state such facts only as he desires to impress upon the minds of the jurors. To hold him, in his address, to the exactness and certainty of a pleading, would, in many cases, be to impose upon him a duty which it would be exceedingly inconvenient, if not impossible, for him to perform orally. Indeed, I see no reason why he may not state to the jury, or refrain from stating, just so much of the case as his judgment dictates.

I do not mean to say that a fatal admission made by the plaintiff’s counsel in his opening may not entitle the defendant thereupon to a judgment dismissing the complaint, without the formality of taking evidence which must necessarily be useless. This motion, however, is not based upon such an admission, but merely on the ground that the counsel has not stated in' his opening sufficient facts to constitute a cause of action. It must, therefore, be denied.


text:
    Courtland Schuyler, plaintiff, vs. Louis E. Hargous, Jr. et al. defendants.
    The defendants, being common carriers, certain property placed in their charge, for transportation, and put on board their steamship, so that a large quantity of other freight was stowed above it, was claimed by two different parties, having distinct and separate interests, just before the sailing of the ship, and one brought the present action for the recovery of the goods, and the other threatened an action, Held that it was a proper case for the interposition of the court, under section 122 of the Code, to substitute, by an order, the other party claiming the property, as defendant.
    (Before McCunn, J. at special term,
    January 26, 1866.)
    This was an application by the defendants, under section' 122 of the Code of Procedure, for an order directing that certain parties claiming property which such defendants held as mere custodians, might be substituted in their stead, as defendants.

      R. O’Gorman, for the motion.

      Porter & Newman, opposing.
   McCunn, J.

The defendants are common carriers, and the property in question was placed in their charge for transportation to a distánt port. Immediately after the goods had been placed in their steamship, and after a large quantity of other freight had been stowed on top of the same, two different parties, with distinct and' separate interests, presented themselves as claimants of the goods, just before the sailing of the ship. One brings an action for the recovery' of the goods, and the other threatens action. In this dilemma, the defendants, who are the mere custodians of the property, invoke the aid of this court, under the 122d section of the Code, and ask that the party who claims the property be substituted in their stead as defendants, and I am of opinion that a more proper case for such interposition could hardly exist.

The parties filing a bill of interpleader claim no relief from either party; they simply ask for the direction of the court as to their duty in the premises, arid - for this purpose it is enough for them to know that the same debt is claimed, or duty required, by different and separate parties, and that they are uncertain with which of the two claims to comply. This was held by the chancellor to be the correct doctrine in a question of this nature, in the case of Bedell v. Hoffman, (2 Paige, 199.)

This case is not similar, in- any respect, to the case of The United States v. Vietor, (16 Abb. Pr. 153.) There the plaintiff, by his own motion, obtruded himself upon the court. He had placed himself in a position to be sued, by his own wrongful ac,t, and he was not ignorant of the claims of the adverse party. Here the defendants who seek this relief are innocent parties, and are forced into their- present position by the acts of these several claimants.

As to the question of sale by the sheriff, the rule of law laid down in the case of McKay v. Harrower, (27 Barb. 463,) is undoubtedly correct. It does not, however, apply in this case. In that case the sheriff sold without the order of the court, and without any consent from the parties in the action. In this case all the parties consented that the sheriff should allow the ship to proceed on her voyage, and that the captain should sell the goods in Havana, and bring the gold, the proceeds of the sale of the goods, into court.

The defendants’ motion granted ; and as they have been forced into their present position by the action of the several parties claiming the property, they should have costs.


text:
    Peter R. Strong, plaintiff and appellant, vs. Mart E. Strong, defendant and respondent.
    1. A simple sworn statement, by a party to an action, that certain letters written by her to a third person, which have come to the hands of the counsel for the opposite party, are, as such applicant is advised, material and necessary for her defense, is not sufficient to authorize the granting of an order to produce such letters, or deliver sworn copies of the same. The advice of counsel, or belief of a party, cannot be substituted for the judgment of the court upon the facts and circumstances showing the necessity for such production.
    2. Where there is no sufficient information before the court, of the contents of writings, to enable it to judge whether they would' be beneficial or prejudicial to either party as evidence, it ought not to compel their production. A mere fishing application should be denied.
    3. Although all the parts of a continued and connected correspondence, having relation to a particular subject, become evidence when one is introduced, upon the presumption that as they all belong to a series, they have some connection with each other, no such presumption can arise in regard to ordinary friendly letters between intimate connections. It will not be presumed that all of such letters must necessarily relate to the same subject.
    4. Production of letters written by a party will not be ordered, where the want of possession of copies, or recollection of their contents, is not sworn to by the author of them, but by a third party, alone, and not even on information and belief; and no information is given how the person verifying it learned that the letters were intended to be used on the trial, or what person has the intention so to use them.
    (Before Robertson, Ch. J., and Garvin and McCunn, JJ.)
    Heard February 11, 1865.

      Appeal from an order made at special term, requiring the plaintiff to deliver to the defendant sworn copies of certain letters written by the latter.
    This was an appeal from an order made at special term requiring the plaintiff to deliver to the defendant sworn copies of two letters written by the latter to a third person, (Mrs. Bedell,) and by her delivered to the plaintiff’s counsel. The motion for such order was made on the pleadings, the answers of Mrs. Bedell to interrogatories on a commission, and a petition in the defendants’s name, but verified by her brother, (J. A. Stevens,) in which verification the contents of such petition were stated to be true, of his own knowledge, except as to matters stated therein upon information and belief, as to which he was informed and believed they were true. Absence of the petitioner from the city of New York, and ignorance as to her place of residence, were assigned as reasons for not verifying such petition by her own oath. Such motion was opposed on an affidavit by the plaintiff, and also of his counsel, (M. Hoffman, Esq.) admitting the possession of the letters.
    The action was for an absolute divorce. Mrs. Bedell, in answer to interrogatories annexed to such commission to examine her, testified to the contents of certain letters received by her from the defendant, and by her destroyed, and stated that in them the defendant confessed her criminality. The letters in question were not exhibited to the witness on such examination, nor were either they or their contents proved by her; she only testified to sending them to the plaintiff’s counsel. The petition in question alleges what the plaintiff’s affidavit denies, namely, that Mrs. Bedell testified to the contents of the letters in question. The former also stated that the defendant had no copies of them, and therefore could not state with accuracy their contents.

      M. A. Oram, for the plaintiff, appellant.

      E. T. Gerry and J. McKean, for the defendant, respondent.
   Robertson, Ch. J.

The order appealed from appears to have been based upon the assumption of a fact, or a principle, and a presumption of law, none of which, in my judgment, can be sustained.

The fact is assumed, that the letters in question belonged to a series, which, of course, implies some connection with each other ; whereas, nothing of the kind appears any where in the papers before us. All the parts of a connected correspondence bearing relation to the same subject may undoubtedly all become evidence where one is introduced. But no such presumption could arise in regard to friendly letters between intimate connections, In the case of Ferguson v. Hely, (10 Jurist N. S. 34, February, 1865,) the motion was granted expressly upon the ground that the correspondence was an entirety, and the parts required to be produced contained evidence in favor of the defendant, to shew a rescisión of the contract sued upon. There is no pretense in this case, except by surmise of counsel, that the letters in question contain any thing favorable to the defendant. On the contrary, the suggestion was made that the defendant was entitled to an inspection of them, the better to enable her to explain, on the trial, any unfavorable statements in them.

The principle of law applied, was that the 388th section of the Code did not require that documents whose production was sought for under it, must be such as could be read by the applicant on the trial. That section does require that they shall contain evidence in relation to the matters to be tried, but divides such evidence into that relating to the merits.of the action, and that relating to the defense, evidently intending by the former an application by the plaintiff, and in the latter one by the defendant. If it had been intended that either litigant had a right to know what evidence his adversary intended to introduce against him, such principle would have included the briefs, memoranda of law and facts of counsel, and instructions of their clients, as well as documents, and, indeed, should extend to an oral examination of the parties themselves. The law has always considered sacred the right of both, parties to keep secret their preparations and means of attack and defense, the right of discovery being confined entirely to evidence in the applicant’s favor. But, even, if such section (388) were susceptible of such a latitudinarian construction, there is no room for its application in this place; since there is no proof before us that the letters demanded contain any evidence relating to the matter in issue. .

And, lastly, it was presumed that such letters being part of a series, as they are called, must have related to the same subject. I know óf no principle upon which every friendly letter between the same parties is to be presumed in law to continue to advert .to some one subject; or that confessions of guilt on that subject must be supposed to be reiterated, or protestations of innocence inserted in every one. Every thing is sometime or other brought to an end, and every subject is sometimes absent from our thoughts or writings. Even a friend does not always continue to be a confessor. And there is no experience of mankind which warrants the conclusion adopted in this case.

The application was made upon quite slight grounds. The want of possession of copies of the letters, or recollection of their contents, is not sworn to by the defendant, but by a third person alone, and that, too, not on information and belief. How it is possible for one person to testify to the want of such possession, and recollection by another, I am at a loss to conceive. It has not the support of even information to that effect by that other and confidence in it by the recipient. Even the residence of the defendant is unknown to her brother, and no communication seems to have passed between them since the examination of Mrs. Bedell. The petition is also vague in not stating how the person verifying it obtained the information that such letters were intended to be used on the trial, or who had such intent.' At all events, the intent would be of little avail, if they were not admissible as evidence.

It is true, that the petition states that such letters are, as the defendant is advised by her counsel, material and necessary .for the defense of the defendant, which consists of a denial of the allegations of the complaint. But the advice of counsel, or belief of a party, cannot be substituted for the judgment of the court upon the facts and.circumstances shewing the necessity of the production which are to be spread before it. (McAllister v. Pond, 15 How. 299. Jackling v. Edmonds, 3 E. D. Smith, 539.) The court, therefore, not having before it sufficient information of the contents of such letters to enable it to decide that they would be either prejudicial or beneficial to either party, as evidence, ought not to compel their production ; as the application becomes thereby entirely a fishing one.

The order appealed from should be reversed, with costs.

Garvin, J, concurred.

McOunn, J. dissented/


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

text:
    William H. Devoe, plaintiff, vs. Andrew J. Hackley et al. defendants.
    1. When, under section 265 of the diode, the judge trying the cause, at the tried, directs exceptions to be heard in the first instance at the general term, and the judgment to be in the mean time suspended, judgment can only be given there. The power of the judge who tried! the Cause, over the disposition of the exceptions and judgment is limited thereby to the time of the trial. After that, he has no more power to make an order in the action, as to the hearing thereof, than any other judge. " ■
    2. Such a direction cannot be made by consent, any more than on an adverse application. It was intended by such revision, that thet court should exercise its discretion on the trial only, when embraced by the exceptions, under its then sense of their importance, and not on a subsequent deliberate re-examination and reconsideration of them.
    3. No judge of the court has authority, at any other time than at its trial, by an order, to prevent a cause from being argued at special term, which is required by law to be first argued there, and to send it to the general term for a first hearing there. The general term, in such case, cannot render a judgment, either of affirmance or reversal; and it cannot render an original'judgment, as no authority was given to it to do so, on the trial.

    (Before Robertson, Ch. J. and Garvin and McCunn, JJ.)
    Heard February 14, 1865.

      Motion for a new trial on exceptions taken at the trial, and ordered, after the trial, to be heard in the first instance at a general term.

      Paris G. Claris, for the defendants. •

      E. T. Bchench, for the plaintiff.
   By the Court, Robertson, Ch. J.

The issues in this action were tried in the ordinary mode before a jury, in June, 1864, and a hostile verdict was rendered therein for the plain-, tiff. No reservation was made, on the. trial, of the hearing of the exceptions for the general term. No judgment has been entered, or appeal taken. In December following, an order was made by the justice who tried the cause, by the consent of the parties, directing the case and exceptions to be heard in the first instance at the general term, and all proceedings on the verdict to be stayed until the decision therein. No. provision was made by such order where or how judgment was to be entered on such verdict. By the 265th section of the Code, the judge trying the cause may, at the trial, direct exceptions to be heard in the first instance at the general term, and'the 'judgment in the mean'time to be suspended. In such case, judgment can only be given there. This confines the power of the judge who tried the cause, over the disposition of the exceptions and judgment, to the time of the trial. After that, he has no more power to make an order in the case, as to the hearing of the cause, than any other judge. Nor can it be made by consent, any more than on an adverse application. It was intended that the court should exercise its discretion on the trial only, under its then sense of the importance of the exceptions, and not on a subsequent re-considerátion of them. The same section of the Code provides that a motion for a new trial, on a case or exceptions or otherwise, must in the first instance be heard at the circuit or special term, except in the two cases of exceptions directed at the trial to be heard first at general term, or where, a verdict is taken, subject to the opinion of the court at general term. It is not a privilege of the parties, but a discretionary power in the court for its own guidance, to be exercised only on the trial. ¡No* judge of the court has authority by an order to prevent a cause from being argued at special term, which is so required to be first argued there, and send it to the general term for a hearing. The general term in such case can render no judgment either of affirmance or reversal, as there is no judgment to be affirmed or reversed, and it cannot render an original judgment, as no authority was given to it to do so on the trial.

The motion for a new trial must therefore be denied, for want of jurisdiction, without costs, and without prejudice to the right of the defendant to bring, up the case in a proper form.


text:
    Charles Knox, plaintiff and appellant, vs. Stephen E. Mason, defendant and respondent.
    The Code of Procedure does not authorize an attachment, as a provisional remedy, in an action aginst a non-resident, for the taking and conversion of personal property in another state.
    (Before Robertson, Ch. J., and Harvest and McCunn, JJ.)
    Heard February 24, 1865;
    decided February —, 1865.
    This is an appeal from an order of Mr. Justice G-abvin, setting aside an attachment in this action against the property of Mason as a non-resident. The motion below was to vacate the attachment on two grounds, viz: 1st. Irregularity; the plaintiffs having failed to cause the affidavits on which attachment was granted to be filed in the county clerk’s office of Kew York.
    2d. The action is one in which by the Code an attachment cannot be granted.
    The attachment was granted August 5,1864. The defendant is a non-resident of this state. The attachment was granted on that ground. By the complaint it appears that the action is brought to recover the value of a lot of hub wood, wrongfully seized, taken and carried away, and converted in the state of Maryland, on the 29th July, 1864. .From the plaintiff’s, and also the defendant’s papers on this motion, it appears that the seizing, taking away and conversion of the plaintiff’s property complained of was the defendant’s taking judicial proceedings by attachment in Maryland, by virtue of which the property in question was seized and sold. It is for such seizure and sale the present plaintiff now sues and claims damages. The goods in question were attached as the property of one Nash. The present plaintiff now claims he owned them at that time.

      L. S. Chatfield, for the plaintiff, (appellant.)
    The question in this case is whether, under the Code, an attachment can be issued against a non-resident for the taking and conversion of personal property, in another state.
    1. An action can he maintained in this state for trespass de bonis committed in another state. (See 3 Caines, 266; 3 Burr. 1364; 1 Bay, 273; 2 John. 282; 9 id. 71.) If so, the remedy by attachment is allowed by the Code.
    2. Section 229 of the Code is as general in its terms as it well can he made, and any construction which should confine its operation to mere money demands Would do violence to its language, whereby a warrant of attachment is authorized to be issued whenever it shall appear by affidavit that a cause of action exists against the defendant, and it specifies the amount of the claim and the grounds thereof. A cause of action exists whenever one person has taken the property of another without right. The claim is the value of the property taken, and the grounds of the claim are that it has been thus taken. The legislature intended, by using this language, to apply this remedy in every case where a specific claim could he made, whether it was for money, or personal, or transitory property.

      3. Section 227 does not control 229. If it was intended to secure precisely the same remedy by the two sections, then it was superfluous to adopt section 229, for 227 had amply provided for money or contract demands. The adoption of section 229 shows that the legislature intended something more than it had already provided by section 227, and that “something more” was the extending of the remedy beyond -mere money demands. The title of the two sections is significant. The first is “property of foreign corporations, and of nonresident and concealed debtors may be attached.” And the title of section 229 is: “ In what cases warrant may be issued.” If no warrant could be issued except in the cases provided for by section 227, then the cases in which it might issue had already been specified, and the title and the whole of section 229 was supererogation. By section 227 it was intended to superadd this remedy when an action had actually been commenced for a money demand; while section 229 provides for the commencement of an action in this mode whenever a cause of action exists against the persons described in it. It has been held that this remedy is available in actions for the recovery of damages for the conversion of personal property. But Judge Hogeboom, in Gordon v. Gaffey, (11 Abb. 1,) has, seemingly, decided otherwise. The case did not present the question presented here, that, being an action of trespass to real estate, which is in itself local. But the vice of Judge Hogeboom’s reasoning is in the confounding of the two sections, and in supposing that they both referred to the same class or causes of action. It seems to me clear that they do not. Section 227 specifies “ an action for the recovery of the money,” while section 229 allows the remedy in any case “ where a cause of action exists”—a distinction as broad as language can make it.
    ■4. Section 231 is equally applicable to both sections. The sheriff shall keep the property “ to satisfy the plaintiff’s demand, and this must be stated in the complaint.” A. may have a demand against B. for property tabeen as well as for property sold, and the term demand, used as it is/ in its general sense, is descriptive of both. In Hernstein v. Matthewson, (5 How. Pr. 196,) the court took a view more consistent with the language and spirit of the Code, and held that an attachment might issue in cases of tort as well as of contract.
    5. In cases of non-residence, the Code presupposes an inability to obtain personal service, as also in those of absconding and concealed debtors. The attachment issues because the person of the defendant is beyond the jurisdiction of the court, and the usual remedies against residents cannot be applied. There is no rule which requires a resident plaintiff to seek the residence of a non-resident defendant to obtain his just rights when he can find the property of the defendant within his own jurisdiction. In Floyd v. Blake, (19 How. Pr. 542, 11 Abb. 349,) Justice James decided, in a very clear and well considered opinion, that an. attachment might be issued against a non-resident defendant in actions even of assault and battery. In Ward v. Begg, (18 Barb. 139,) the court holds that under the Code as it now stands, the proceeding by attachment is not confined to actions on contract or money demands.
    6. Notwithstanding there are two cases which hold a contrary doctrine, the strength of the authorities is that attachments may issue whenever a cause of action is shown to exist. It will be seen that in Hernstein v. Matthewson, although an attachment might issue whenever - there was a cause of action, Judge Edmonds held that it would be inoperative, because there were no means provided for bringing the party into court; and in consequence of this decision, section 135 of the Code was amended so as to allow the party to be brought in by publication. This amendment was made in 1858, and with a full view to the construction which had held that attachments might issue in cases of tort, as will be seen by the petition or letter of Dwight H. Olmstead, Esq. on whose application the amendment was made. We have, therefore, both a judicial and a legislative construction in favor of this remedy.
    7. If the defendant had appeared in Hernstein v. Matthewson, the- attachment would have been sustained. Here the defendant has appeared, put in bail and- answered; and is now too late to make this motion. The motion should have heen made (if at. all) while the property was held by the sheriff, when errors in practice could have been corrected ; and the stipulation does not obviate this objection, certainly not as to the answer.

      D. McMahon, for the defendant, respondent.
    I. The attachment was properly set aside, because the papers were not filed in proper time, viz. ten days, or at all.
    I. Section 229 of the Code provides, at its close, that it shall be the duty of the plaintiff procuring such warrant, within ten days after the issuing thereof, to cause ,the affidavits on which the same was granted to be filed in the office of the clerk of the county in which the action is to be tried.
    5. The terms of this section are so peremptory, being an amendment of 1860, that there is no doubt the legislature had some reason, not apparent to us, why they so positively required these affidavits to be filed. It is true that the omission to file the affidavits is not jurisdictional, yet the filing is so positively enjoined that the omission to do so is a positive irregularity, and vitiates the proceedings as much as the omission to file an undertaking or to have it approved. (See O’Donnell v. McMurn, 3 Abb. 391. Leffingwell v. Chave, 5 Bosw. 704. Newell v. Doran, 21 How. 427.)
    II. The court was right in setting aside the attachment, because the Code does not contemplate the allowance of an attachment in a case like the present, viz: In an action of trespass de bonis brought against a plaintiff in a judgment recovered and execution issued in another state, for property levied on by that judgment and execution in such other state ; for such a class of actions, if brought against a public officer in that state, is local.
    • 1. By the Code an action against a public officer or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person who by his command, or in his aid, shall do any thing touching the duties of such officer, is local. (§ 124.) By section 125, actions to recover personal property distrained for any cause, are local. There is a good reason why courts of this state should not entertain jurisdiction of this case, viz: of an action of trespass brought against a plaintiff in an attachment sued out of the courts of another state, on which attachment a levy is made on the property of another in such state ; the whole transaction taking place out of this state ; the property injured situate out of this state ; the injury, which is forcible, accruing out of this state, and the process whence the injury arises being the process and judicial proceedings of the courts of another state. The. case of Molony v. Dows, (8 Abb. Pr. 316,) and Mr. O’Conor’s points therein, seem conclusive against that jurisdiction.
    2. The case of Way v. The Keyport Steamboat Co., (16 Abb. Pr. 320, n.) is in analogy with this case. If such a jurisdiction is allowed, then the direct result will be that full faith and credit will not be given in one state to the records and judgments of the courts of another state ; for to protect the present defendant he must justify, as he has done under, the attachment proceedings of Virginia. There is no pretense, nor can there be any, that the present plaintiff could not have tried his right of property- under the present defendant's attachment proceeding in Virginia. To allow him now to try his right of property in this action here, will be in effect allowing him to ignore and set aside by a collateral action the solemn judgment of Virginia.
    3. It also drags into another tribunal, in a distant state, that which should have been tried and adjudicated on the original attachment proceeding. Therein this case differs from those cited by the plaintiff's counsel in his brief. All of the cases referred to by him are cases of personal tort, which travels around, and dies with the person. In this connection' the court is referred to the case of McIvor v. McCabe, (16 Abb. Pr. 319,) which seems to conflict with the case of Molony v. Dows.

    III. Apart from the question whether this court will entertain jurisdiction of this cause of action, we urge that it had no right to grant the present • attachment. For the Code, section 227, only allows an attachment to he issued “ in an action for the recovery of money.”
    1. Section 229 allows the warrant to issue only “ whenever it appears by affidavit that a cause of action exists against such defendant,- specifying the amount of the .claim and the grounds thereof.” The phrases, “ a cause of action,” “ such defendant,” “ the amount of the claim,” “ the grounds thereof,” as used in section 229, have reference solely to the description of action and the description of defendant specified in section 227.
    2. “An action for the recovery of money ” is not an action of tort. An action of tort is one brought to recover “ damages.” The damages are in their nature uncertain, unliquidated ; may in some cases be “ punitory and vindictive,” in others merely compensatory ; so that though a party who brings an action of tort may be said, in one sense, to seek a “ recovery of money,” yet his action is not of the class of actions contemplated by sections 227 and 229. ¡No plaintiff who brings an action of tort to recover damages, in their nature uncertain, can specify by affidavit “ the amount of his claim and the grounds thereof.” If he does, his oath amounts only to the expression of his opinion or belief of the amount of his claim to relief. That, by the case of Ackroyd v. Acroyd, (11 Abb. Pr. 346,) is not enough. The court there say “ That an arbitrary-statement or opinion that there is a specific sum due does not suffice. The facts must be stated which will show that a cause of action exists against the defendant, and the amount of the claim must be specified, and the grounds thereof.” (Code, § 229.) Therein it is also distinctly held that “ under section 229 of the Code, which requires as a foundation for a warrant of attachment that it shall appear by affidavit that a cause of action exists against the defendant, specifying the amount of the claim and the grounds thereof. If the action is for an accounting, and the complaint shows that the plaintiff is unable to state the amount due him, his affidavit that there is a certain sum due him is not enough to authorize an attachment. If the plaintiff shows that he does not, and cannot know, whether any thing is due him, his statement of his opinion as to the amount is not enough. On this phrase, “ for the recovery of money,” I refer to Tuttle v. Smih, (6 Abb. Pr. 329.)
    3. It would be inaugurating a new remedy for a plaintiff in an action of tort to give him the privilege of issuing an attachment against the property of the defendant, because of that defendant being about to dispose, &c. or of his having disposed of his property with intent to defraud his creditors. It would be turning a plaintiff in a tortious action into a “ creditor,” from the mere fact of bringing a tortious action.
    4. This point, however, is decided in our favor by Justice Hogeboom in Gordon v. Gaffey, (11 Abb. Pr. 1;) also by Justice Clerke in Shaffer v. Mason, (43 Barb, 501; 29 How. Pr. 55; 18 Abb. 455.) In Gordon v. Gaffey the justice very properly treats the Code as giving this remedy only to plaintiffs in actions on contract, when a specific sum is due and claimed.
    5.. There is an additional reason why this court cannot issue an attachment in an action of tort like the present, as against a non-resident. There is no mode of commencing an action of tort by service of summons by publication on a nonresident defendant pointed out in the Code, and the attachment is to be issued in “ an action previously or simultaneously commenced ” with the issuing of the attachment. The com- . mencing an action is by the service of a summons on the defendant, either personally or by publication. Section 135 of the Code, which provides as to the service of summons by publication, seems not to include in it “ an action of trespass de bonis ” relative to personal property not within this state. (See subd. 4 of § 133.) “ An action for the recovery of money ” should not have in this case a summons for relief; such is the reasoning of the case of Hernstein v. Matthewson, (5 How. Pr. 196;) and an attachment in an action of tort was there set aside.
   Robertson, Ch. J.

The authority to plaintiffs to procure the attachment of the property of defendants is contained in the first three sections of the fourth chapter of that title of the Code which relates to provisional remedies, (227, 228 and 229.) They define the action in which, and the classes of defendants of whom, the property may be attached, and prescribe the officers by whom, and the evidence on which, process to attach must be issued. The first and third of those sections limit the classes of defendants whose property may be attached, to foreign corporations, non-residents, persons absconding or concealing themselves to defraud their creditors or avoid service of process, or removing or disposing, or intending to remove or dispose ofj their property, with the former intent. There is nothing in them to show_ they were applicable to different classes of cases. They may therefore be read consecutively, as together forming one provision, divided into separately numbered sections relating to different branches of the same subject, for mere facility of reference. The arrangement is perfectly natural, of first defining the predicament of the defendants whose property may be attached, and the class of actions in which it may be attached, and next prescribing who was to issue the process to seize it, and the evidence on which it was to be issued. The only argument offered to establish that in actions of tort the property of the defendants may be attached, founded upon a supposed enlargement, by section 229, of the cases in which it may be done under section 237, appears, therefore, to me rather strained and fanciful.

That supposition is based entirely on the fallacy of assuming the word whenever,” in section 229, to mean not, according to its original import, on all occasions or times when, but “ in all cases in which.” In fact it has no more effect than the adverb “ when.” It refers, simply, to the times or occasions of the exhibition, to the proper officer, of evidence of a certain fact by affidavits, to wit: a cause of action, meaning of course, under the preceding section 227, whose office was to prescribe the actions in which, and the defendants against whose property, such process might issue. That whole subsequent section (229) was necessary to provide, and was the only one which did provide, for the mode of obtaining such process in all cases ; such preceding section having wholly omitted to do so. The first might have been rendered superfluous if the description of the actions in which property might be attached as being those for the recovery of money had been embodied in the last; but the provisions of the latter were indispensable to obtain process in any case.

In order to account for an enactment giving a right of attachment in actions for torts separately, from that giving one in actions on contracts, it is assumed that the first presupposes an action to have been commenced before the application for the warrant. Ho good reason is assigned for creating such a distinction, and it certainly is not expressed in language, in those sections. The classes of defendants whose property may be attached, are those least likely to have a summons personally served on them, being foreign corporations, and non-resident, absconding or concealed persons. It is true, service could be made in such cases by publication, but a warrant of attachment would be of little avail in such case, as it could only be enforced after the last day of publication which completed such service, (§ 137 ;) and the very ground of a right of attachment is, that such classes of defendants, when sued in this state, are likely to remove their property out of its jurisdiction or conceal it. The Code certainly takes for granted that an attachment can be issued in actions on contracts before the service of a summons. (§ 132.)

It is also a question on which there is some conflict, between what persons and for what torts committed out of this state, actions can be brought, within it. (Malony v. Dows, 8 Abb. Pr. 316. McIvor v. McCabe, 16 id. 319.) Even in actions on contracts, it is held that no attachment can be issued unless the preliminary affidavit details the precise items of claim. (Ackroyd v. Ackroyd, 11 Abb. Pr. 346.) Yet the plaintiff in an action of tort must be at liberty to fix his own damages ; and the court has no discretion in determining the amount. If the attachment is discharged on giving an undertaking, it must be for double the amount “ claimed by the plaintiff’s complaint.” (Code, § 241.) Such a provision would1 be equivalent to one allowing a plaintiff to seize as much of the property of a foreign corporation or non-resident debtor as he thought proper, in an action for a tort.

The decision directly upon the point, and the reasoning in the case of Gordon v. Gaffey, (11 Abb. Pr. 1,) is more satisfactory than the incidental remarks in Heustein v. Mathewson, (5 How. Pr. 196,) or the hasty disposition of it in Floyd v. Blake, (11 Abb. Pr. 349.)

Without reference to other points discussed, I think the one just disposed of, sufficient to base thereon an affirmance of the order. Such order must therefore -be affirmed, with costs.


text:
    Andrew Lester et al. plaintiffs, vs. Abbott Pollock et al. defendants.
    1. An assignment for the benefit of creditors, which directs or authorizes such a disposition to be made of property conveyed, or of its proceeds, as will, if carried into effect by the assignee; necessarily deprive .the assignor’s creditors of their right to have such property applied to the payment of their claims, is on its face fraudulent, as against the creditors of the assignor.
    2. A firm, consisting of three partners, being dissolved, a new firm, composed of two of the partners, was formed, to whom the third sold out his interest in the former firm. Subsequently, the second firm made an assignment for the benefit of creditors, containing a provision to pay off all the debts due and owing by the second firm, or the late prior firm, or either of the members of said firms, to one of the assignees. Held, that the assignment was invalid, as to creditors of the first firm.
    (Before Babbour, J. at special term,
    February —, 1865.)
    The plaintiffs respectively recovered judgments against the firm of Abbott, Pollock & Cochran, and after the return of executions unsatisfied, commenced an action against the judgment debtors and their assignees to set aside an assignment made by the firm of Pollock & Cochran, (Abbott having previously sold out his interest in the firm of which he was a member to the last mentioned firm,) to John Stewart and Cornelius Fiske, assignees, for the benefit of creditors. The assignment among other provisions contained this clause: “ To pay off all the debts due and owing by the said firm of Cochran & Pollock, or the late firm of Abbott, Pollock & Cochran, or either of the members of said firms, to Cornelius Fiske.”

      C. Bainbridge Smith, for the plaintiffs.

      A. Bordman, for the defendants.
   Barbour, J.

An assignment for the benefit of creditors, which directs or authorizes such a disposition to be made of the property conveyed, or of its proceeds, as will, if so carried into effect by the assignee, operate to deprive the assignors’ creditors of their right to have such property applied to the payment of their claims, is proven by itselfj and, therefore, by evidence which is incontrovertible,- to be fraudulent, in fact, as against the creditors of the assignor. For the assignor must be held to have intended to do what he has done, and to have designed to defraud his creditors, if the assignment directs or permits it, and the evidence of such intention, there found, is conclusive under well established rules of law, and cannot be contradicted by oral testimony. In my view,- therefore, it is not material whether either of the three persons mentioned in the third direction, was or was not individually indebted to the assignee Fiske at the time the assignment was made ; for that instrument assumes that they were so indebted, and directs them to be paid, and to be paid, too, as I understand the effect of the direction, in preference to the creditors of the firm, or either of them, if the assignees shall so elect.

But beyond this, the authority given to the assignees to pay Mr. Fiske, was not a direction to pay any specified sums on account of such individual indebtedness, nor expressly to pay to him such amounts as those persons owed him at the time the assignment was made, as is usual in deeds of assignment; but under the peculiar wording of such third clause of the trust, I see no reason why Mr. Fiske may not pay to himself out of the proceeds of the property as they shall be received, any claims that may then be due and owing to him. by either Abbott, Pollock or Cochran individually.

So far as regards the direction to pay the creditors of Pollock and Cochran individually, the assignment is unobjectionable, so far as concerns the plaintiffs here ; for the property belonged to the firm of Pollock and Cochran, and except for their legal obligation to apply the partnership property to the payment of the creditors of that firm, they had a perfect right to prefer their individual creditors other than those to whom they were indebted as members of the former firm of Abbott, Pollock & Cochran; but they were legally bound to apply their property to the payment of their own liabilities, including their indebtedness as members of the former firm, and had no right to appropriate it to the payment of the individual debts of Abbott, who had no interest in such property.

For these reasons, I am of opinion that the assignment is invalid as to the plaintiffs here, and that they are entitled substantially to the relief demanded in the complaint. The assignees, however, should be required only to pay the plains tiffs’ claim and the costs of this action out of the assigned property or its proceeds,.which was in their hands or under their control at the commencement of this action.


text:
    August Belmont, plaintiff, vs. Elias Ponvert, defendant.
    1. A trial by the court without a jury, cannot, properly, be had before several judges, in succession, so as after being decided in part by one, to be taken up at a subsequent term, and completed by another justice. A cause cannot thus be tried and determined by piece-meal,
    2. There is no such thing permissible &s an interlocutory judgment, in any case. The only judgment authorized or permitted by the Code is a “final determination of the rights of the parties to the action.’

      3. No judgment can now be considered as final, which expressly reserves any question whatever for future consideration and determination by the court.
    4. A determination in writing, entered as a judgment, in which not only the question of costs is expressly reserved, but which contemplates and provides for further action by the court, upon the coming in of the report of a referee appointed by it, is not "the final judgment of the court, but is at most an order, and will be vacated and set aside, on motion, so far as it purports finally to adjudicate and determine the rights of the parties.
    6. But so much of it as orders a reference, may be permitted to stand, so as to save to the parties the trouble and expense of a re-eXammation of the witnesses . upon questions which they have already answered.
    (Special term, before Barbour, J.,
    February —, 1866.)
    Motion "by the plaintiff to vacate and set aside the judgment entered in this action; to amend the complaint; and for a new trial.

      J. Larocque, for the motion.

      L. B. Woodruff, opposed.
   Barbour, J.

This is an action brought to enforce the specific performance of an agreement, whereby the defendant, (with another, his partner,) undertook to conduct and prose-mute a suit or suits, brought or to be brought, to establish the title of a judgment debtor to certain lands which had been sold on execution and purchased for the benefit of the defendant’s firm, and, if successful, to pay to the plaintiff, in a speci- • fied order of precedence, out of the proceeds of such lands, the amount of two judgments held by him; and by which agreement, the plaintiff undertook and agreed to pay one half the,costs and expenses that should be incurred in such litigations.

A trial was had in this action at a special term, before one of the justices of the court without a jury, in 1863, when the cause was submitted for decision. The judge subsequently filed his findings of fact and conclusions of law, and thereupon directed a judgment to be entered ; which was, in form, done.

By the judgment so entered it was “ ordered and adjudged that the defendant should be paid by the plaintiff,” one half of the costs and counsel fees, (said on this argument to amount to more than $20,000,) incurred and paid .by the defendant and his firm in prosecuting the litigations mentioned in the agreement; that the defendant, on paying to the plaintiff the amount of his judgments, after deducting therefrom one half of such costs and expenses, shall be discharged of all claims of the plaintiff;” and that, on failure of the defendant so to pay within thirty days after the amount shall have been ascertained, as provided in the judgment, the premises shall be sold by the sheriff; who shall pay to the defendant, out of the proceeds, one half of such costs and expenses, in the first place and then pay certain judgments and liens, including those of the plaintiff, in the order therein mentioned. The judgment also provided and directed that it be referred to the Hon. Murray Hoffman, as referee, “to ascertain and report?’ the amount due to the defendant on account of the costs and expenses, and the amounts, severally, of the judgments and liens ; and “further ordered and adjudged that all questions as to the costs of this action, he reserved until the coming in and confirmation of the said report.”

Ho direction is given in the judgment for determining the amount, if any, that the plaintiff was entitled to have from the defendant, except what is found in the reference to Judge Hoffman, together with that which may be implied from the words coming in and confirmation of the report,” employed in connection with the direction concerning costs.

A motión is now made on the part of the plaintiff, that the judgment be vacated and set aside; that the complaint be amended by inserting new matters which have been first discovered during the taking of proofs upon the reference ; and that a new trial be directed.

I see no reason why a judge, sitting, as in equity, at special term, may not so far follow the practice in the old court of chancery, as to hear proofs, and determine, in his own mind, a portion only of the issues, and, after sending the case to a referee to take and report further, proofs, again take it up, on the coming in of such report, either during the same or at a subsequent term, and then, upon hearing counsel, render, a final judgment. There is nothing in the Code expressly prohibiting such a course, and, it appears to me, the last clause of the.468th section may well be so construed as to authorize it; even conceding, as,I do not, that any legislative authority is necessary to give that power to courts, in equity cases.' ■ •

But a trial cannot, properly, be had before- one judge, and decided in part by him, and again be taken up at a subsequent term, and completed before another justice. A cause cannot thus be tried and determined in piecemeal by two or more justices ; and so it was held by this court at general term,-in Chamberlain v. Dempsey, (15 Abb. R. 1.)

Uor can there now be an interlocutory judgment in any case; the only judgment authorized or permitted by the Code being a the final determination of the rights-of the parties in the action.” (Code, § 245.) In their remarks upon this section, the learned codifiers say ; To avoid the confusion incident to the use of the word judgment, in two senses, one as interlocutory, and the other as final, we have thought it better to use it only in the latter sense, and to designate all other written directions- of a court or judge, as orders.” (Rep. of Comrs.- to the Legislature, Feb. 1848, p. 182.) Whether the inconvenience arising from the use of -the word judgment, in two senses, was a sufficient reason for abolishing the power of the court, in equity;, to pronounce interlocutory decrees—a power which had been exercised to great advantage for centuries— was for the legislature to decide ; and they have done so. We have only to conform our procéedings to the law as we find it.

The main question upon this motion, therefore, is, whether the paper purporting to be the judgment of the court, is, or is not, a final determination of the rights of the parties ; or, in other.words, a final judgment in the action. For, if not, it will be necessary to consider the proceedings before the court as a mistrial; inasmuch as the learned justice,-who then presided, has since left the bench, so that it is now impossible for him to complete the trial and adjudication; and, in that case, the ostensible and apparent judgment ought to be removed from the record.

It is true that a judgment may be final, although it makes no provision whatever in regard to the costs of the action, for the court will be assumed to have intended that each party should bear his own charges and expenses. (Dickenson v. Codwise, 11 Paige, 189. Williamson v. Field, 2 Barb. Ch. 281.) But, where the whole question of costs is reserved, the decree is not final; (Chittenden v. Miss. Society, 8 How. Pr. 327;) and for the reason, as I understand it, that the question of costs as between the parties in the action, is, in equity suits, a matter of right, which can be determined only in and by the final judgment of the court, in the exercise of its judicial discretion. (Oode, § 306.)

Indeed, I think, no judgment can now be considered as final which expressly reserves any question whatever for future consideration and determination by the court, and so the authorities appear to speak. In the case of Harris v. Olarh, (4 How. Pr. 78,) costs were awarded by the judgment of the Supreme Court, but other questions were reserved until the coming in of the report of the referee. The Court of Appeals held that it was not a final judgment. Swarthout v. Curtis, (4 N. Y. Rep. 415,) was a suit brought to set aside a satisfaction piece, and foreclose a mortgage. The decree set aside the satisfaction, and directed a foreclosure, in the usual form ; a reference was also ordered, to compute the amount due, and upon the coming in and confirmation of the report, the premises were to be sold, &c. No questions were reserved, in terms. It will be seen, therefore, that nothing remained to be done by the court, except to confirm the report, and yet this was held by the Court of Appeals not to be a final judgment from which an appeal could be taken. The case of Tompkins v. Hyatt, (19 N. Y. Rep. 534,) was very similar to the one now under consideration. There, in an action brought to enforce liens, the judgment directed a sale of the premises by the sheriff, who was required to pay to the plaintiff a certain sum, after deducting therefrom the amount due for rent and for the use and occupation of the premises ; and a reference was ordered, to ascertain the amount so due for rent and use and occupation. The Court of Appeals held that it was not a final judgment. (See also Cruger v. Douglass, 2 N. Y. Rep. 571; Williamson v. Field, 2 Barb. Ch. 281; Lawrence v. Farmers’ Loan and Tr. Co., 15 How. Pr. 57; Jenkins v. Wild, 14 Wend. 539.)

In the paper which has been entered in this case as the judgment of the court, not only is the question of costs expressly reserved, as we have seen, but such judgment clearly contemplates and provides for further action by the court, upon the coming in of the report of the referee ; and it follows that it is not the final judgment of the court. It should therefore he vacated and set aside, in so far at least as it purports to adjudicate and determine the rights of the parties to the action. I see no reason, however, why so much of it as orders a reference may not be permitted to stand, so as to save the parties the trouble and expense of a re-examination of the witnesses upon questions which they have already answered. But that order must be modified so as to direct the referee to take proofs and report the same, instead of the direction to “ ascertain and report ” upon the matters therein mentioned. The plaintiff must also be allowed to amend his pleadings in the manner indicated in his motion papers. Ho order directing a new trial is necessary. The judgment being set aside, that will follow as a matter of course, I think. If counsel shall deem it advisable, however, that branch of the motion may be renewed; and he must also have leave to move to amend the order of reference, after he shall .have amended his pleadings, in case he shall so elect.

The order may be settled before me on two days notice.

Note.—The above decision was affirmed, at general term held in November, 1865, before Babboub, Monell and McCünn, Justices.


text:
    Edward Kaupe et al. plaintiffs, v. James E. Isdell et al. defendants.
    1. To obtain a discovery of books and papers, parties cannot substitute their own judgment, on vague information, the nature and source of which they do not disclose, for that of the court. Enough must be shown to enable the court to decide that the discovery is necessary.
    2. Where the necessity of an examination is alleged to be that such books will show that the defendants are partners; that they contain entries of moneys received and paid by one of the defendants, and a statement of his account; but the affidavits do not allege the character of a single entry which the court can determine to be material, a motion for a discovery will be denied.
    (Before Robertson, Ch. J., at special term,
    February —, 1865.)
   Robertson, Ch. J.

This is an application for the privilege of examining certain hooks of account kept by a firm represented by “ Samuel T. Scarlett, agt.” in the possession of the defendant, Reuben Isdell.

The necessity of such examination is alleged to be that such books will show that the defendants are partners; that they contain entries of moneys received and paid by the defendant, Reuben Isdell, and statement of his account. The plaintiff, Cummings, it is true, also swears they are material and necessary to examine previous to the trial, as he is informed by his counsel, and to prepare for such trial, and that he cannot avail himself thereof without an order of discovery.

The- plaintiff is mistaken in supposing that he cannot have •the benefit of any entry in any of such books tending to prove his case without a discovery. A subpoena duces tecum will compel the production, on a trial, or examination of the parties before. The affidavits do not allege the character of a single entry, which the court can determine to be material. Parties cannot substitute their own judgment, on vague information, the nature and source of which they do not disclose, for that of the court; enough must be shewn to enable it to decide that the discovery is necessary, which is not done on the face cf these papers.

The motion must be denied, with seven dollars costs.


text:
    James S. Carpentier, plaintiff and appellant, vs. James S. Willet, administrator, &c. defendant and respondent.
    1. In an action in which double costs are given by statute, it is not necessary to award them in a judgment by the Court of Appeals, affirming a judgment of the court below, in order to entitle the successsful party to them on appeal. The officer who adjusts the costs, is bound to tax such costs as double, and the court below may either order him to do so, or, on appeal, correct his adjustment of them, in that respect.
    2. The death of a party entitled to double costs in an action, and the substitution of his representative as a party, in his place, does not change the right to double costs.
    8. The representative of. a party to an action, who dies while an appeal is pending in the Court of Appeals, is entitled to continuous term fees, after the death of such party, if the action and appeal are subsequently revived in his name.
    (Before McCunn, J. at special term,
    February —, 1865.)


author: By the Court, Moncrief, J.

text:
    William Loeschigk et al. plaintiffs and appellants, vs. Samuel Peck et al. defendants and respondents.
    1. The rule is well settled that findings of fact by a judge at special term, must be deemed conclusive, unless they are without evidence to support them, or clearly against an overwhelming weight of evidence.
    2. In an action to set aside a sale of goods and an assignment by the vendor of promissory notes received therefor, as fraudulent, the solvency of the purchaser, and the fairness of the sale to him, or the credit given, if the evidence is doubtful, are entirely questions of fact.
    8. If the general good standing of the purchaser is proved, affirmatively, and no evidence is given to show the length of credit unreasonable, in reference to the particular kind of merchandize, the court is bound to find for the defendants ; and if it do so, it will not be exercising a sound legal discretion by withholding costs from the prevailing party.
    (Before Robertson, Ch. J. and Moncrief and Monell, JJ.)
    Heard January 10, 1865;
    decided March 4, 1865.
    This action was brought to set aside an alleged fraudulent sale of goods, and the assignment of certain promissory notes received in payment therefor. The trial of the issues was had before one of the justices of this court at a special term, without a jury, who found in favor of the defendants, and against the several material allegation of the complaint. From this judgment the plaintiffs appealed.

      Wm. Watson, for the plaintiffs, appellants.

      A. J. Vanderpoel, for the defendant, respondent.
   By the Court, Moncrief, J.

Assuming that the evidence given at the trial is not wholly in support of the several findings of fact, the most that can be urged on behalf of the plaintiffs is, that there was some conflict of testimony, or some basis upon which to have rested an opposite conclusion.

The rule is well settled, that findings of fact by a judge at special term, must be deemed conclusive, unless they are without evidence, or clearly against evidence to support them. (N. Y. Car Oil Co. v. Richmond, 6 Bosw. 213. Platt v. Thorn, 8 Bosw. 574. Morris v. The Second Avenue R. R. Co., Id. 679.)

The solvency of the purchaser of the goods, and the fairness of the sale to him, or the credit given, were solely questions of fact. The former was only assailed by proof of his having allowed accommodation notes to lie over, in order to compel the party accommodated to take them up, and his having given goods as security to take them up ; and his having given goods as security for a loan from a bank, after exhausting the credit it chose to give him without security. His general good standing was proved affirmatively, and no evidence was given to show the length of credit unreasonable in reference to the particular kind of merchandise. Under such circumstances the court was bound to find for the defendants, and doing so it would not have exercised a sound legal discretion had costs been withheld.

The judgment of the special term must be affirmed.


text:
    Phineas Merwin, plaintiff and respondent, vs. Robert Playford, defendant and appellant.
    1. A joint undertaking between two or more persons, who are to participate in the profits and loss resulting from it, constitutes a, partnership.

    2. To make one a partner, he must not only share in the profits, but share in •them as principal.
    3. An agreement between two persons, giving one of them one half of the net profits of the business, but not making him liable for any losses, does not make him a partner.
    4. Where the action is one in which an order of arrest can issue as of course, it is not proper to try the case upon the merits, on an application to set aside the order of arrest.
    (Before Robertson, Ch. J. and Moncrief and Monell, JJ.)
    Heard January 14, 1865;
    decided March 4, 1865.
    Upon affidavits alleging an indebtedness of the defendant to the plaintiff, arising out of money received in a fiduciary capacity, an order of arrest and to hold the defendant to bail in the sum of $4500, was granted by a justice of this court. A motion was made to set aside this order, and it was denied. A motion was subsequently made, to reduce the amount of bail, and it was refused ; the plaintiff having consented to reduce the amount of bail to the sum of $2500. The defendant appealed from the order denying his motions.

      N. Stratton, for the appellant, defendant.

      James G. Voorhees, for the respondent, plaintiff.
   By the Court, Moncrief, J.

The point mainly discussed by the learned counsel for the appellant upon this appeal, and the only one to which we propose to direct our attention, deeming all the others to be fully met and answered by the opinions delivered at the special term, is whether the fact that the defendant made an agreement with the plaintiff whereby he was iS to receive one half of the net profits,” constituted them copartners as between themselves. To make one a partner he must not only share in the profits, but share in them as principal. (Loomis v. Marshall, 12 Conn. R. 77. Burckle v. Eckart, 1 Denio, 337. 3 Kent’s Com. 34. Poirer et al. v. Fisher, 8 Bosw. 258.) The defendant had no interest in the goods ; after the sale of the goods his compensation for services was fixed by the agreement to pay him a certain portion of the net profits arising from such sale. The cases are numerous in which similar arrangements have been made, and it was held that there was no partnership. (See Collyer on Partnership, §§ 23,25,26,27,28, 32, 33, and cases cited in the notes.) It is stated to be the general rule that a joint undertaking among two or more persons who are to participate in the profit and loss resulting from it, constitutes a partnership. (Sage v. Sherman, 2 N. Y. Rep. 417. Chase v. Barrett, 4 Paige, 148.) The defendant, by his agreement, was not liable for any losses. The only sense in which he can be said to participate in losses is by the reduction of the amount which he may receive by reason of losses by depreciation of stock, bad debts, &c. &c. being deducted from the gross profits prior to his compensation being ascertained. If the losses should exhaust the gross profits, his labor and services would be rendered without receiving pecuniary reward therefor, but the losses would be borne solely by the plaintiff, who, under the agreement, could not require the defendant to contribute for any portion thereof. (4 Sandf. 311. 5 N. Y. Rep. 186. 5 Denio, 68. 25 Barb. 13.) The action being one in which an order of arrest can issue as of course, (in which after judgment finding an indebtedness arising out of fiduciary relations between the parties, an execution against the person can issue irrespective of an order having previously been granted,) it is not proper to try the case upon the merits upon application to set aside the order of arrest. It ist by no means clear upon the case as presented, that a verdict for a larger amount may not be rendered against the defendant than that in which he has been holden to bail.

The orders were correct, and must be affirmed.


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

text:
    Caspar C. Childs, receiver, &c. plaintiff and appellant, vs. William C. Lyons et al. defendants and respondents.
    1. Costs of unsuccessful efforts to remove an injunction cannot be said to be damages arising from its existence, so as to be recoverable upon an undertaking given on granting the injunction.
    2. Costs and counsel fees on a successful motion to dissolve an injunction are considered the natural consequences of its existence, and are properly damages ; but there is no reason why the party obtaining the injunction should pay the expenses of ill directed efforts to get rid of it.
    (Before Robertson, Ch. J., and Moncrief and Monell, JJ.)
    Heard January 14, 1865;
    decided March 4, 1865.
    Appeal from an order confirming the report of a referee.

      B. T. Kissam, for the plaintiff, appellant.

      A. A. Redfield, for the defendants, respondents.
   By the Court, Robertson, Ch, J.

The plaintiff, with two sureties, (Barclay and Kissam,) signed an undertaking, as required by the Code, on the issuing of an injunction in this action. (§ 222.) By it they undertook, jointly and severally, that if this court should finally decide that the plaintiff was not entitled to such injunction, he should pay the defendants such damages, not exceeding a certain sum, ($2000,) as they might sustain by reason of such injunction, to be ascertained by a reference, or otherwise, as this court should direct. Such injunction was. dissolved. An order of reference was made by default, on notice, to ascertain such damages, and the referee reported a certain sum, ($132.50,) as the amount of damages ;• which is made up of counsel fees, in arguing motions to dissolve the injunction, which were not granted, and the expenses of printing papers on an appeal which was unsuccessful.

I cannot see on what principle the costs of unsuccessful efforts to remove an injunction can be said to be damages arising from its existence. Costs and counsel fees on a successful motion to dissolve an injunction are considered the natural consequences of its existence, and are properly damages. But there is no reason why the party obtaining the injunction should pay the expenses of ill directed experiments to get rid of it. To allow such a charge would be a premium for the employment of unskillful counsel. Such items did not properly enter into the assessment of damages on the undertaking.

The order confirming the report should be reversed, and the case go back to the referee, with costs to the appellants.


author: Moncrief, J.

text:
    Clara W. Warner, plaintiff, vs. The Western Transportation Company, defendants.
    An action to recover the value of property lost to the plaintiff hy the negligence of the defendants is not upon a contract, hut upon a breach of duty, as a tort, and is not referable.
    (Before Moncrief, J. at special term,
    March 9, 1865.)
    Motion to refer this action to a referee.
   Moncrief, J.

It has long been a settled question, that actions for torts are not referable, although they may involve the examination of long accounts ; and if such an action is referred, it is a mere arbitration, and the courts will not review the decision of the referees. (Yates v. Russell, 17 John. 461. Camp v. Root, 18 id. 22. Johnson v. Parmely, 17 id. 129.) The language used in the Code, (as under the Revised Laws and Revised Statutes,) is broad enough to cover all actions, and yet it has uniformly, and scarcely with an exception, been held that references are proper only in actions founded on contract, and never in actions ex delicto. (Whitaker v. Desfosse, 7 Bosw. 678.) ;

This action is brought against the defendants to recover the value of property lost to the plaintiff by the negligence and carelessness of the defendants, as ■ common carriers. Such an action does not proceed upon an allegation of the non-performance of a contract, but for a breach of duty, and is not. referable. (7 Hill, 182, 581. 4 How. Pr. 286. 19 Wend. 239. 3 id. 167.)

The motion to refer must be denied, with $10 costs, to abide the event.


text:
    Pidgeon vs. Oatman et al.

    1. An injunction is never granted where the material allegations are made upon information only; and it is refused, as a general rule, in all cases where such material allegations are denied hy the party sought to be restrained.
    2. An injunction to restrain a lessor from asserting any right to cancel a lease, under a reservation of a right to do so in case of a sale, or an election to build, will not be granted, upon a mere general allegation tha!t an alleged sale and conveyance by the lessor was sham and colorable, and made only with tha design to deprive the lessee of the remaining term of the lease by a collusive and pretended sale of the premises; if the defendants deny every material allegation of the complaint, and assert that the conveyance was made in good faith; and the case can probably be tried and disposed of upon its merits before the time fixed by the lessor, in his notice, for cancelling the lease.
    (Before Moncrief, J. at special term,
    March 9, 1865.)
    This is an application for an injunction during the pend-ency of the action, brought to prevent the defendants from asserting any right to cancel the lease delivered by the defendant Oatman to the plaintiff, &c.
    The lease, among other things, provides that “ in case of a sale, or an election to build,” said Oatman can cancel the same, lc and in such case he agrees to reimburse said tenant (plaintiff) to the amount of the value of the alterations” * stipulated to be made by him. * *
    On the 15th February, 1865, Mr. Oatman, having previously conveyed the premises leased to the plaintiff with other property, to the defendant Barnum, gave notice to the plaintiff that he had sold the same, and that he should cancel the lease on the 30th day of April next, and held himself in readiness to liquidate the damages and comply with the conditions expressed in said lease, consequent upon its cancellation.
    The plaintiff charges and alleges, upon information and belief, that the conveyance from Oatman to Barnum was sham and colorable, and made only with the design to deprive the plaintiff of the remaining term of the lease by a collusive and pretended sale of the premises. The plaintiff claims that having built up a profitable business upon said premises, his loss will be irreparable, in case the defendants are permitted to take proceedings to cancel said lease and have him removed from the premises. .
    The defendants deny every material allegation of the complaint. In direct and positive terms they assert that the conveyance to Mr. Barnum was made in good faith, and without intent to defraud the plaintiff.
    The apprehended danger cannot occur prior to the 30th day of April next, and this action being triable at special term, without a jury, unless issues are asked for and framed to be passed upon by a jury, the case can be tried, and finally disposed of upon its merits before that time. " .
    An injunction is never granted where the material allegations are made upon information and belief, and is refused, as a general rule, in all cases where such material allegations are denied by the party sought to be restrained. (3 Abb. Pr. 182. 5 id. 338. 7 id. 322. 9 -id. 253. 1 John. Ch. 211. 2 id. 202. 6 Paige, 295.)
    Aside, therefore, from the fact that to my mind it is by no means clear that the plaintiff has not remedies for ample relief other than by this action, I am constrained to say that the application for an injunction must be' denied.
    Motion denied, with $10 costs.