author: By the Court.—Freedman, J.

text:
    FRANCIS DAINESE, Plaintiff and Appellant, v. RICHARD H. ALLEN and ANTHONY B. ALLEN.
    I. Reeebees, Decision by.—Review oe.—Necessaby steps eob.— Peactice.
    1. Decision on matters of. Icm, arising on the trial, made during the trial and befoi'e the report, to which proper exceptions were taken on the trial, are reviewable without any exceptions being taken to the findings of law contained in the report.

      a. This, although the finding of law may involve and determine similar propositions.

      2. Findings of fact contained in a referee’s report (when reviewable at all) can be reviewed without any exceptions having been taken to them.
    3. Findings of law can be reviewed only on exceptions properly taken thereto. '

      a. If such exceptions have been taken, the propositions of law laid down in the findings may be reviewed although the appeal book contains'none of the evidence.

    1. In such cases the question is whether on the findings of fact contained in the report the conclusion of law is correct.
    II. Evidence.—Lettebs.
    1. Admissibility of letters without producing those sto which, they are answers.

      a. Letters written by a party containing declarations, or admissions • are admissible without the production of those to which they are answers, PBOVIDEO they relate to a controverted question in the case, and thus become material, but they are not admissible if irrelevant. - .

      Before Barbour, Ch. J., Freedman and Sedgwick, JJ.

      Decided May 31, 1873.
    2. Duty of counsel offering letters to point out their materiality.

      a. He has no right to introduce packages of letters without reading them or any of them, or otherwise showing their materiality by a reference as to their essential part.
    3. Matting of letters.

      a. One cannot be affected by the contents of a letter of which he has no notice or knowledge. To affect him by its contents, the letter must at least be shown to have been properly mailed and forwarded to his address.
    3H. Appeal.
    1. Directed Evidence.—Bdemncy of.—When not inquired into on appeal,

      a. When the proposed evidence or its substance does not appear in the case.
    2. Presumption infamor of judgment below.

      a. Every reasonable intendment on questions of lam, as well as of fact, is to be made in support of the judgment.
    1. The onus of establishing error rests on the appellant.
    ' 3. Incompetent and improper evidence, when not canisefor reversal.

    1. When it has not and could not have harmed the appellant.
    1. Principle applied.
    Appeal from judgment.
    Statement.
    In the latter part of the year 1863 and the former part of 1864, the plaintiff was engaged in business in Alexandria, Egypt; the defendants were in business in the city of Hew York.
    The plaintiff had two agents in America, William C. Zantzinger, of Washington, and John Hopper, of Hew York. Through these agents, and by direct correspondence, there was much negotiation between the parties to this action.
    The action was commenced in the year 1866, to recover 6,867.65 dollars, alleged to he an amount overpaid the defendants "by plaintiffs agents. The plaintiff claimed, (1.) that he had instructed Zantzinger to ship certain goods to him in Egypt, at fixed prices (3.) that defendants knew the limits, and filled the order at higher prices; (3.) that defendants had shipped with his goods certain goods on their own account, upon which he should be entitled to a credit; and (4.) that certain ice shipped was ordered "by plaintiff on condition that it arrived in Egypt "by a certain date, and that it was shipped too late to arrive at such time.
    The defendants claimed—(1.) That there was no fixed limitation as to price. (3.) That no notice was "brought home to the defendants of any limitation as to kind or price. (3.) That they had not "been overpaid. (4.) That the shipment of ice was duly authorized, and that they had shipped upon the orders of Hopper to Dainese goods to the value of $38,737.85, and upon their own account, of $814.73, upon which they had "been paid $30,400.15 ; and set up counter-claim for the "balance due, $9,098.33 and interest, and for the value of the invoice forwarded on their own account, amounting to-$814.75,y which was not accounted for.
    The action having "been referred, the referee decided all the matters of fact in defendants’ favor, dismissed plaintiff’s complaint, to which dismissal no exception-was talcen, and gave judgment in defendants’ favor for the amount of $13,067.76, "being the amount unpaid of the invoice forwarded to the plaintiff by Hopper’s orders, and $167.35, the value of a cotton gin from the invoice of $614.75, forwarded on defendants’ account, leaving out of consideration the remainder of that invoice.

      No exceptions to the findings of fad or of law were tahen to this report by either side.

      ' The plaintiff appealed and claimed a reversal of the judgment on the ground of alleged erroneous rulings of the referee on questions of evidence, which had been duly excepted to; the facts on which the ruling was made appear in the opinion.

      Samuel Huntington, attorney and of counsel for appellant, urged, among other things: The referee erred in excluding the letters written by the 'defendants to plaintiff’s agent, Zantzinger.
    The reason of their exclusion was, that the letters to which they were replies were not produced.
    1. It did not appear that there were any such letters. The letters offered were not read or examined by the referee. He, therefore, could not know that they were replies to any letters.
    2. But, if we concede that there were such letters, the ruling of the referee was wrong.
    Letters written by a party are evidence against him without producing those to which they are answers (Lord Barrymore n. Taylor, 1 Bsp. 326; Starlde on Bkidence, ,581).
    If there are cases holding a different doctrine, it is submitted that they must rest on special circumstances. For example, if a letter should so refer to a prior letter as without it to be unintelligible, it would be, by itself, immaterial to any issue, and of course inadmissible as evidence.

      Eaton, Tailer, and Cadwalader, attorneys, and John L. Cadwalader, of counsel for respondents, urged:
    1. That the fact that none of the letters are printed in the case, makes the exception of no avail.
    That counsel have not the right to introduce packages of papers in evidence without reading any of them— without calling the attention of the referee to any part —particularly where by his ruling the referee notifies the counsel of these facts; and also where it is plain from the purpose for which the correspondence was offered, that much of it, if not all, must he immaterial.
    That where it is intended to infer a state of facts from the general tone of a correspondence, and where counsel are unahle to point out any passage on which in particular he" relies, then something more than one-half a correspondence, and some letters which aré answers to others, must he produced.
    2d. Among the facts (not excepted to), it is found that the plaintiff displaced Zantzinger hy Hopper, to whom he gave a carte hlanche, and who made the whole shipment for the plaintiff at these prices.
    This is referred to in particular, to show that, even if the exceptions of the plaintiff in regard to certain letters, etc., are good, the plaintiff was not harmed, and the judgment should not be reversed.

   By the Court.—Freedman, J.

Section 272 of the Code provides : ‘ ‘ The trial hy referees shall he conducted in the same manner, and on similar notice as a trial hy the court. . . . They must state the facts found and the conclusions of law separately, and their decision must he given, and may he excepted to and reviewed in like manner, and with like effect in all respects as in cases of appeal under section 268; and they may, in like, manner, settle a case or exceptions. The report of the referees upon the whole issue shall stand as the decision of the court, and judgment may he entered thereon in the same manner as if the action had heen tried hy the court.”

Section 268 thus referred to, and which relates to a trial hy the court without a jury, further prescribes that, “for the purposes off an appeal, either party may except to a decision on a matter of law, arising upon such trial within ten days after notice in writing of the judgment, in the same manner and with the same effect as upon a trial hy jury. . . . And either party desiring a review upon the evidence appearing on the trial, either of the q uestions of fact or of law, may, at any time within ten days after notice of the judgment, or within such time as may be prescribed by the rules of the court, make a case or exceptions in like manner as upon a trial by jury, except that the judge, in settling the case, must briefly specify the facts found by him, and his conclusions of law. But the questions, whether of fact or of law, arising upon the trial, can only be reviewed in the manner prescribed by this section—the questions of law in every stage of the appeal, and the questions of fact upon the appeal to the General Term of the same court, as prescribed by section 348.”

Under section 348, an appeal upon the law may be taken to the General Term, from a judgment entered upon the report of referees, or the direction of a single judge of the same court in all cases, and upon the fact when the trial is by the court or referees.

It is apparent, as well from the language of section 268, as from its history and subject-matter, that two classes of exceptions are contemplated by its provisions. The first clause of the section provides, that either party may except to a decision on a matter of law arising on the trial within ten days after notice of the judgment. This clause could not have been intended, and it has never been construed so as to authorize a party to except to .a decision made on the trial in relation to the reception or rejection of evidence, or to take any exception which he might, and, according to the ordinary course of practice, would have been required to take on the trial. And yet such exceptions come within the letter of the section—they relate to “ matters” or questions of law arising on the trial. It is clear, however, that they were not intended by the language of this clause, and that, as to such exceptions, the party, for all purposes of an appeal, is limited to those taken on the trial (Brewer v. Isish, 12 How. 482).

Consequently, after trial the first step will be to except, within the time limited, to the legal points and propositions involved in the final decision rendered against the party intending to appeal. The next proceeding will be to prepare a case and have it settled. This is necessary for the purposes of a review in whichever mode the cause has been tried. It generally contains the evidence bearing upon the conclusions of fact intended to be reviewed ; the exceptions taken during the trial as well as those taken after the trial to the final decision, and a separate statement of facts found, and conclusions of law (Johnson v. Whitlock, 13 N. Y. 348).

Where the case, as settled, contains no exception, either to the final decision or to any question of law decided ^during the trial, the court cannot on appeal review it.

But exceptions to conclusions of law may be reviewed, although the printed case does not contain any of the evidence. On such an appeal the question is: Has the judge or referee drawn a correct conclusion from established facts ? (Frost v. Smith, 7 Bosw. 108).

Findings of fact need no exception (Hatch v. Fogerty, 7 Robt. 488 ; Lefler v. Field, 50 Barb. 410 ; Mayor, etc., v. Erben, 24 How. 358; Magie v. Baker, 14 N. Y. 438).

And when a party relies exclusively upon erroneous decisions made during the trial, it is not necessary to make and serve formal exceptions to the conclusions of law or to the final decision (Cowen v. The village of West Troy, 43 Barb. 48 ; The Mayor etc., v. Erben, 24 How. 358).

Notwithstanding, therefore, the case before us contains no exception to the dismissal of the complaint or to the referee’s conclusions of law, we have no doubt of our power to review the rulings of the' referee upon the questions of evidence, which arose upon the trial and are presented by the exceptions taken at the time, and to reverse the judgment and grant a new trial, if it be found that the referee has erred in any of these particulars to the prejudice of the plaintiff.

The principal exceptions relate to the exclusion of certain letters. Plaintiff’s counsel offered in evidence, among other matters and in different forms, a part of the correspondence between the defendants and W. C. Zantzinger, and claimed its admission on the ground that, taken as a whole, it afforded proof that the authority of Zantzinger as the agent of the plaintiff was limited, and that the defendants knew of such limitation. STo particular parts of this correspondence were pointed out or referred to by plaintiff’s counsel, nor was the same read or examined by the referee; but it was insisted that by a general examination of these letters, certain admissions would be discovered from their general tenor. .

The defendants objected (1.) generally to the admissibility of the letters as evidence ; (2.) that as the purpose was to extract admissions from the letters generally, it could not fairly be done by introducing letters of considerable length without referring to any particular parts or passages as sustaining plaintiff’s view, and that no right existed to introduce papers, and insist that the defendants’ counsel and the referee should perform the labor of plaintiff’s counsel and discover the materiality of the testimony; and (3.) that as the avowed purpose was from a lengthy correspondence as a result of the whole, and not from any particular portion to establish that defendants knew the limitation, that this conclusion could not be drawn from a part or from one side of the correspondence ; that is, that as it required a careful examination to find the evidence of this knowledge, and as it only arose, as it were, from the flavor of the general correspondence, that it was but proper to introduce both sides.

The referee ruled with the defendants and excluded the letters. Plaintiff’s counsel then offered, for the same purpose and in the same manner, a part of the correspondence between the defendants and the plaintiff. This was also excluded.

Plaintiff’s counsel thereupon stated, that the deposition of plaintiff, already taken herein, would supply the contents of the letters which were not produced, and he offered the deposition, with the letters already produced, as constituting a complete correspondence, with secondary proof of a part thereof. After an examination of this question and of th'e admissibility of the letters written by the defendants, the referee ruled thereon as follows:

“ To prove admissions' by the defendants, the answers “ of Allens may be put in evidence, (1.) To all of those “letters from Dainese to themselves which are mentioned in the depositions, and also, (2.) Their answers “to letters written by Dainese to Zantzinger, and by “ Zantzinger communicated to them, as stated in Zant- “ zinger’s deposition,, and in Dainese’s deposition. “These letters to Zantzinger, communicated to defendants, are marked W. O. Z. 1-6. These letters from “Dainese to defendants are dated Jan. 25, April 19, “May 24, July 16, Aug. 16, 1864.”

A number of letters of the defendants to plaintiff dated March 23, April 5,15,16, March (or May) 4, May 14, June 1, 14, July 8, 27, March 2, 4, 23, 29, April 25, 26, 29, July 12, all in 1864, were thereupon offered under the ruling of the referee for the purpose of proving by their general tenor admissions on the part of the defendants, but which the plaintiff’s counsel states, in answer to a question from the referee, did not appear (except that dated March 2, 1864), to be specific answers to any of the letters mentioned in the referee’s last ruling. lío particular passages were pointed out to the referee, nor were the letters read by defendants’ connsel or examined by the referee. The letters were objected to by the defendants’ counsel as before, and were excluded, except that of March 2, which plaintiff’s counsel declined to put in evidence by itself.

Plaintiff’s counsel finally read a number of letters that had passed between plaintiff and Hopper, and between plaintiff and the defendants, and they were received in evidence together with other evidence of a documentary character.

How, it may well be that some, if not all, of the excluded letters were admissible. They certainly should have been received for what they were worth, if they had any bearing at all upon the points at issue. The declarations and admissions of a party are always admissible, and letters written by a party are evidence against him without the production of those to which they are answers, provided they relate to a controverted question in the case and thus become material. If irrelevant, however, they are to be excluded, and no counsel has a right to introduce whole packages of papers without reading them or any of them, or otherwise showing their materiality by a reference to their essential parts. When, therefore, the attention of plaintiff’s counsel was called to this point, he should have established their materiality, by pointing out the particular passages upon which he intended to rely. He did not choose so to do. Hor did he see fit to enlighten us upon this point. Hone of these letters are set forth in the printed case, and consequently we are unable to determine whether the rejected correspondence, or some part thereof, in point of fact contained what plaintiff’s counsel in the face of defendants’ denial claimed it did, The rule is, that the appellate court will not inquire into the relevancy of rejected evidence, unless such evidence or its substance appear in the case, but will assume that the judge or referee, who tried the cause, properly rejected it (Berry v. Mayhew, 1 Daly, 54).

On appeal every reasonable intendment, on questions of law as well as of fact, is to be made in support of the judgment, and the party who alleges error in the decision of a referee, or of a judge without a jury, holds the onus of establishing either that an erroneous legal conclusion has been deduced from the facts found, or that some error of law has been committed in the interlocutory proceedings by which such conclusion was reached (Mead, Admx. v. Bunn, 33 N. Y. 375; Heroy v. Kerr, 8 Bosw. 194 ; Richardson v. Dugan, 8 ib. 307 ; Hoyt v. Hoyt, 8 ib. 511; Lee Bank v. Satterlee, 1 Robt. 1; Juliand v. Watson, 43 N. Y. 577).

Plaintiff has not only failed to show any such error, but it even appears, from the unquestioned findings and conclusions of the referee, that plaintiff was not harmed by the exclusion of the letters in question. The referee has found upon the whole case, that before the shipment of goods took place the plaintiff displaced Zantzinger by Hopper; that plaintiff gave to the latter a general power and authority to purchase and forward the goods at such prices as he deemed advisable and proper; that the said power was without restriction or limitation, and fully authorized Hopper to act in the matter of the consignment to be made to the plaintiff, and in the selection of the persons who were to make it, as he thought proper; that Hopper consulted with the defendants, and was informed by them of what had been done in carrying out plaintiff’s order under Zantzinger’s instructions ; that Hopper approved of all that had been done, and instructed the defendants to complete the order ; that after that time Hopper superintended the execution of the order, and that the same was executed and the shipment made to his satisfaction.

The referee also found that the vessel, the Louisa Bruno, containing said goods, sailed from Hew York the 26th or 27th day of April, 1864, and arrived at Alexandria on or about the 13th day of J une, 1864, and that the plaintiff thereupon received all the goods contained in said vessel without objection, paid the amount agreed to be paid by the charter party of the said vessel, stored the goods, and treated the same as his own, and, so far as appears from the evidence herein, at that time made no complaint and expressed no dissatisfaction in regard to the same.

In the light of these facts, it is easy to see that the rejected correspondence, if admitted, would not have changed the result.

Plaintiff was also examined as to whether he wrote and sent certain letters to the defendants in 1864. He answered that he did, and gave the dates. Defendants’ counsel having received a notice to produce these, produced two and stated that he had no others. Plaintiff’s counsel then offered to read plaintiff’s statement taken on commission as to the contents of the missing letters, which was objected to and excluded. The purpose for which secondary proof of their contents was thus offered, was not stated. We think the evidence was properly excluded. In the absence of any clue to their materiality, these letters must be treated as the declarations of the plaintiff himself. But even if they were offered for the purpose of fastening a notice of some kind on the defendants, they were admissible only on proof showing at least that they were properly mailed and forwarded to defendants’ address (Crandall v. Clark, 7 Barb. 169). Ho such proof was given.

An exception was also taken to the reception of the deposition of Ferdinando Eusso; but it is clearly untenable, for the reason that all objections to the reading of the deposition appear to have been waived by stipulation before trial.

The other exceptions are not adverted to in the printed points, and, not having been discussed on the argument, they are waived.

It appearing, therefore, that no error has been committed to the prejudice of the plaintiff, the judgment appealed from must be affirmed, with costs.

Barbour, Oh. J., and Sedgwick, J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    JAMES O’BRIEN, Sheriff, etc., Plaintiff, v. THE MECHANICS AND TRADERS FIRE INSURANCE CO., Defendant.
    I. Attachment, Execution of, to bind Pbopbbty.—What not Sufficient. s
    1. The service of a notice general in its terms and containing no specification of the particular property meant to be levied on is insufficient.

      a. This, although the deputy sheriff at the time of serving the attachment and notice told the person on whom he made service and who was connected with the insurance company, that he attached any insurance money due the attachment debtor (without specifying the amount), and was answered by such person that neither he nor the company could tell whether there was any money in their hands belonging to the attachment debtor or not, as the case had not been adjusted—or the matter had not been adjusted; and although the chairman of a committee appointed by four insurance companies (with one of which the person on whom the attachment and notice was served was connected) in which the attachment debtor had insurance to settle and adjust a loss claimed to he covered by the insurance, wrote to the attachment debtor informing him that an attachment had been levied on the companies.
    3. Form of notice held insufficient.

    3. Owing defect in service.

      a. The defect cannot be cured by proof that, after the commencement of an action founded on the levy of an attachment, and after caffiraticn of the time limited by the contract between the attachment debtor and the party against whom the attached claim is alleged to exist, for the bringing of an action for the recovery of the claim, a new levy was made accompanied by a prover notice or an amended notice served.

    Before Barbour, Ch. J., Freedman and Sedgwick, JJ

      Decided May 31, 1873.
    II. CLABKE V. GOODBIDSE.
    The report of this case in 44 How. 326, discussed and held that whatever doubt or uncertainty is, or is intended to be, shown by that report upon the decision of the case as reported in 41 N. Y. 210, yet the report in 41 N. Y. correctly states the decision of the Court of Appeals and the grounds on which it was found.
    III. Limitations.—Contbact pbescbibing, shobteb time, than the statute for the bringing of an action for causes of action arising under it. Held valid.
    Exceptions ordered to be heard at General Term.
    This action was brought by plaintiff, as the representative of certain attaching creditors, upon a policy of insurance for $2,500, dated July 27, 1868, and issued by defendant to E. S. Candler,- Jr., upon property at Bell-ville, Florida. On October 26th, 1868, the property insured, with the exception of a.log house, was entirely destroyed by fire.
    On November 24th, 1868, Candler furnished formal proofs of the loss, but was required by the defendant to furnish more particular proofs, which he did in part. The remainder he claimed to be unable to furnish.
    February 2d, 1869, Moore, Wakefield & Co., of New York, obtained a warrant of attachment against Candler, which was served by the plaintiff as sheriff on defendant the next day.
    Their claim went to judgment and execution March 6th, 1869, for $1,189.97, and their attachment was returned on that day merged in execution.
    ' Six other creditors of Candler also obtained attachments, which were served on defendant, five of which and two executions still remain in the sheriff’s hands.

      June 18,1869, the sheriff brought this action to collect the insurance under the Code, §§ 232, 237, sub. 4; and the attaching creditors, all but Wm. Bryce & Co., united in prosecuting it.
    The answer charges that the loss was fraudulently overstated in the preliminary proofs, and that the action was not brought within six months after the loss, as required by the policy.
    The notices served with the warrants of attachment were all in the following form : ,
    “The Notice:

      I hereby certify the within to be a true copy of the original warrant of attachment, as issued to me in the within mentioned action, and that the attachment, of which the within is a copy, is now in my hands, and that by it I am commanded to attach all the estate, real and personal, including money and bank-notes of the defendant, E. S. Candler, Jr., within named, within my county (except articles exempt from execution), and to take into my custody all books of account, vouchers and papers relating to the property, debts, credits, and effects of said defendant, together with all evidences of title to real estate; and that all such property, debts and effects, and all rights and shares of stock, with all interests and profits thereon, and all dividends thereon, or therefrom of the said defendant now in your possession or under your control, are, and those which may come into your possession or under your control, will be liable to said warrant of attachment, and are hereby attached by me, and you are hereby required to deliver all such moneys, bank-notes, books, vouchers, papers, debts, credits, effects, evidences of title to real estate, shares of stock interests, profits and dividends thereon, and all property capable of manual delivery, into my custody without delay.
    And I hereby require you to furnish me with a certificate, as required in that "behalf "by the Code of Procedure, of any rights, shares, debts, or other property of said defendant, incapable of manual delivery. And in default you will be liable to the examination and attachment in such cases provided by law.
    Dated New York, April 3d, 1869.
    Yours, etc.,
    JAMES O’BRIEN,

      Sheriff of the City and County of New York.

    William Baird,

      Deputy Sheriff.”

    The deputy sheriff who served the warrant testified that at the time of the service he told the person on whom the service was made that he attached any insurance money (not mentioning the amount) in the hands of the insurance company with which such person was connected, belonging to the attachment debtor or due to him. To which said person replied that neither he nor the company could tell whether they had any moneys in their hands belonging to the attachment debtor or not, as the case had not been adjusted—as the matter had not been adjusted. Italso appeared in the evidence that the chairman of a committee appointed by four insurance companies (with one of which the person on whom the attachment and notices were served was connected), in which the attachment debtor had insurances to settle and adjust a loss claimed to be covered by the insurance, wrote to the attachment debtor informing him that an attachment had been levied on the companies.
    On the trial it appeared that the action was commenced prior to February 27th, 1869.
    The policy of insurance read in evidence contained a clause providing that the amount of loss or damage of or to the insured property should be payable sixty days after due notice of such loss or damage, and proofs thereof shall have been made by the insured and received at the company’s office in accordance with the conditions annexed to the policy, and the terms and provisions of the policy, unless the property be replaced, or the company shall have given notice of their intention to rebuild or repair the damaged premises. Among the conditions annexed to the policy was the following one:
    “It is furthermore hereby expressly provided and mutually agreed, that no suit or action against this company, for the recovery of any claim by virtue of this policy, shall be sustainable in any court of law or chancery, unless such suit or action shall be commenced within six months next after the loss shall occur ; and should any suit or action be commenced against this company after the expiration of the aforesaid six months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding.” On the trial plaintiff offered to show that he, on the 10th of December, 1872, served on defendant another copy attachment and notice in the form above given with these additional words added to the notice : “ And particularly $2,437.50 insurance money owing to Mm from your 'company for insurance in 1868.”
    The offer was objected to, the evidence excluded, and plaintiff excepted.
    Plaintiff also offered to show that on the 12th day of December, 1872, he served on the secretary of the defendant a notice as follows :
    “N. Y. Superior Court.
    James O’Brien, Sheriff, etc., v. The Mechanics’ & Traders’ Fire Insurance Company, Defendants.
    Amended Notice.

      To the above-named defendant:

    You are hereby notified, that the printed and written notices heretofore served on you, in February, March, April, May, and June, 1869, by James O’Brien, as Sheriff of the City and County of New York, and left with you at those times with the certified copies of seven warrants of attachment against the debts and property of E. S. Candler, Jr., which were then served upon and left with you, in fact referred to, and were intended to specify the debt and property of E. S. Candler, Jr., hereinafter described, and the said notices are hereby amended, and made more specific by adding to each of them the following allegations:
    “That said warrants of attachment were levied and are hereby levied on certain money, to wit, a debt of $2,437.50, then and still owing from you to said E. S. Candler, Jr., for insurance losses on his store and goods at Belleville, Florida, which were burned in October, 1868, he then having a policy of insurance of $2,500 thereon, issued to him in 1868 by you, amounting together to $10,000, and that I hereby demand the payment of the said debt to me forthwith by‘virtue of the said seven attachments.”
    Also take notice that you are hereby required to produce this paper on the trial of these actions, or that proof of its contents will be given.
    Also that this notice is given, and this amendment made, because your counsel, Greo. W. Parsons, Esq., has taken much time, and caused great delay of justice, and much expense, in asserting and maintaining a claim that said former notices were defective in not sufficiently informing the companies, and that they were, in fact, not specifically or sufficiently informed of what was levied on, or intended to be levied on, by the sheriff in these actions.
    December 11, 1872.
    William Baird, Deputy.”

    JAMES O’BRIEN, Late Sheriff.

      The offer was objected to, the evidence excluded, and. plaintiff excepted.
    Defendants’ counsel moved to dismiss the complaint-on the following grounds :
    1. That the attachments had never been levied upon the property in question.
    2. That in the twelfth condition of insurance it was-expressly agreed that no suits or actions against the company, for the recovery of any claim by virtue of the policy, should be sustainable .in any court of law or chancery, unless said suit should be commenced within six months after the loss occurred.
    3. That no right of action ever accrued to anybody, inasmuch as 'the proofs of loss were never served in compliance with the ninth condition of the policy.
    The justice dismissed the complaint on the ground that the sheriff’s proceedings did not constitute a levy, and that the unadjusted claim of Candler against the company had not been attached, the notice served not. sufficiently “ showing the property levied on” (Code,. § 235).
    Plaintiff’s exceptions were ordered to be heard in the first instance at the General Term, with a stay in the action until decision thereon.

      William, H. Badger and Livingston K. Miller, of counsel for plaintiff, urged :
    1. Defects in the notice, if any, are immaterial in this case, as proof is undisputed that it fully accomplished its object.

      Ratio legis eessat, lex ipse cessat.

    The admission in the answer, the statement of Tompkins to Sweeney, and the act of defendants’ committee in writing to Candler, that attachments had been levied, show conclusively that the object of the notice was fully accomplished (Tate v. Jordan, 3 Abb. pr.. 394).

      2. The defects, if any, are amendable, and there is no just reason why the new levy offered in evidence, ■or the amended notice offered should not have been admitted.
    It is common practice now, and ought to be, to plead or prove, in furtherance of justice, any facts occurring after suit brought, and even after judgment.
    There is no limit of time within which a sheriff must levy an attachment. His powers continue even after his term of office expires, and as long as he holds the process (2 R. S. 439, § 89, 91; Millbank v. Broadway Bank, 3 Abb., N. S. 223 ; Rinchey v. Stryker, 26 How. Pr., 83 ; McKay v. Harrower, 27 Barb., 463 ; Abbott v. Metropolitan Fire Ins. Co. ; Same v. The Star Ins. Co.; Same v. The Globe Ins. Co. ; Civil Law Journal for February, 1873, p. 51).
    In these cases the General Term in Brooklyn, by Justices Barnard, Hogeboom, and Tappen, approved an amendment allowed by Pratt, J., which alleged a reassignment of the policy to plaintiff subsequent to the commencement of the actions for its collection, it appearing that plaintiff had assigned the policy before suit, so that at its commencement he had no cause of action whatever. This was after judgment absolute had been ordered for defendants on demurrer to the complaint in one of the cases. The court also allowed .a farther affidavit to be filed nunc pro tunc, after argument at the General Term of an appeal from Judge Pratt’s order, which showed an additional reason for allowing the amendment to be that any new action was barred by a limitation clause of one year in the policies. That is precisely our case here, only the limitation is six months.
    3. The notice was sufficient as it was fully understood and accepted, and an action evidently had to be brought to adjust the loss. The sheriff was therefore right in bringing it at once, before the six months’ limitation. clause in the policy, then nearly run out, should "bar "both him and Candler, whose rights he was assuming to represent.
    In Kelly v. Roberts (40 N. Y. 432), the second notice served, merely adding the amount as “a sum of $1,200,” was no more specific than this, and was held sufficient (p. 442). The amount in that case was also liquidated, so that it could be specified. (Opinion of Judges Daniels and James in Clarke v. Goodrich, 44 How. Pr. 234; Greenleaf v. Mumford, 19 Abb. 478 Drake v. Goodridge, 54 Barb. 78, overruled on other grounds only; and cases cited under point seven).
    4. The cases cited by defendants as authority do not touch the question as now presented.
    Clark v. Goodridge (41 N. Y., 210) has been very imperfectly reported, and has been, in consequence, strangely misunderstood and misapplied.
    A corrected report of it will be found in 44 How. Pr., 226, with opinions of four judges not before published, which show that nothing whatever was decided by the court as to the sufficiency of the notice.
    There is merely a dictum of Ward Hunt, J., against the notice, and an opinion by Judges Daniels and James in its favor, while Judges Lott and Grover hold that question not to be before the court at all, in which they are plainly correct.
    The only thing actually decided was that the sheriffs return was conclusive, and terminated his powers in the matter. There was no process whatever in the sheriff’s hands at the time the receiver acquired title, the attachment and execution into which it had merged having both been previously returned (41 N. Y., p. 211; 44 How. Pr., 226).
    The other cases cited by defendants are equally foreign from the point.
    In Orser v. Grossman (11 How. Pr. 520) no attachment (p. 522) at all was served on defendants. It was. left with a man in defendants’ store, with no evidence that it ever came to defendants’ knowledge. This defective service disposed of the case, and no decision whatever was made as to the sufficiency of the notice, though it was alluded to by the court as doubt.
    Kuhlman v. Orser (5 Duer, 249) was a suit against the sheriff for conversion, in which the question decided was that the defendant in the attachment suit had never owned the goods in question. The notice served does not appear, and nothing was decided as to its sufficiency.
    Wilson v. Duncan (8 Abb. 354, 11 Abb. 3) was a motion under § 122, for an interpleader to substitute rival claimants in place of defendants, the amount being liquidated. The sheriff was not a party to the suit or motion. The sufficiency of the levy was not even alluded to at Special Term by Hoffman, J., in granting the motion, though he wrote a careful opinion. The General Term, by Robertson, J., allude incidentally to the general notice, but place their decision entirely on other grounds and defects in the motion papers (11 Abb. 7, bottom of page).
    Harmon v. Remsen (2 Abb. A. 8, 272) was an action for an interpleader, brought against the sheriff and others, the amount involved being liquidated and paid into court. The notice served was less specific than in the present case, and the sheriff had taken no action to enforce his levy in any way, which fact is stated as the reason for the decision.
    The former General Term decision in this case merely held that as no notice then appeared in the case, a motion to dismiss was properly made, no question of sufficiency of notice was before the court or passed upon at all.
    5. The six months’ limitation clause must be construed in connection with the sixty days’ clause, and the action is, therefore, in time. The fire was October 36, 1868; suit begun June 18, 1869 (The Mayor v. Hamilton Fire Ins. Co., 39 N. Y. 45; affirming same case, 10 Bosw., 539 ; Ames v. N. Y. Union Ins. Co., 14 N. Y. 365).

      Walter M. Underhill, attorney, and George W. Parsons, of counsel for defendant, urged :
    First—1. It is confidently submitted that a specific levy, according to section 335 of the Code, upon property incapable of manual delivery, cannot be made even by serving with the copy of the attachment a specific notice showing the property levied upon, without making or filing any inventory as required by section 333 and the statute referred to; and it is no answer to this to say that the party served did not or would not give any certificate or information sufficient to enable the sheriff to perform this duty. The case of Kelly v. Roberts (40 If. Y. p. 433), shows how the sheriff may proceed in such cases to perfect the levy, viz., by bringing up the creditor or person holding the intangible property before the judge, and examining him, under oath, pursuant to section 336 of the Code. Certainly it is not in the contemplation of the law to allow a sheriff to sue any one he may choose to, without complying with these requirements of the law, and without any express authority from the court of justice which issued the warrant. Section 333 expressly provides that the sheriff shall proceed, ‘ ‘ subject to the direction of the court or judge.” And the court or judge could not acquire jurisdiction to give any directions; nor can the sheriff proceed to collect any debts or credits, until they are shown in the manner prescribed by law to have an existence, and just what they are, and that they have been sufficiently levied upon by the attachment.
    3. But the notice served with the attachment was not specific in stating the property intended to be levied on.

      3. It follows that no sufficient levy was ever made; plaintiff has no standing in court, and it is not shown that a cause of action existed in his favor, as sheriff, which he could prosecute under the Code (Kuhlman v. Orser, 5 Duer. 242 ; Superior Court, General Term— Wilson v. Duncan, 11 Abbt. 3 ; Orser v. Grossman, 4 E. D. Smith, 443 ; Harman v. Remsen, 2 Abbt. [N. S.] 272; Wood v. Orser, 25 N. Y. R. p. 353; Clarke v. Goodridge, 41 N. Y. R. 210).
    Second.—It does not obviate the difficulty stated in the preceding point, to say that the deputy-sheriff made some loose oral statements in respect to the property intended to be reached, at the time he served the process, nor to show that some agent of the defendant talked or wrote to the defendant in the attachment, in a manner to indicate that the agent knew what property it was designed to reach by the attachment.
    1. The statute requires that the sheriff should serve a “notice showing the property levied on;35 section 408 of the Code provides that all notices shall be in writing ; and this was requisite before as well as since the Code (Matter of Cooper, 15 Johns. 533; Gilbert v. Columbian Turnpike Co., 3 Johns. Cas. 109; People v. Eldridge, 7 How. Pr. 108; Kerr v. McGuire, 28 N. Y. 453).
    2. The statements, both oral and written, made by Douglass, after the alleged service, were inadmissible.

      (a.) Douglass had no connection whatever with defendant, except as chairman of a committee appointed by all the companies to inquire into, adjust, and settle the loss with Candler, and was not in any sense an agent to make declarations or admissions in regard to the service of the attachments. This proposition is too plain to need citations of cases to illustrate. Again :
    (5.) There are numerous adjudications to the effect that neither the officers nor other agents of a corporation can, by their declarations or admissions, create any liability upon the company, after the question of liability has been fixed by acts or events as between the principals, or under the contract between the parties (Stephenson v. The N. Y. & H. R. R. Co., 2 Duer, 341 ; The Trustees of First Baptist Church v. The Brooklyn Fire Ins. Co., 28 N. Y. R. p. 153 ; Green v. The N. Y. Central Railroad Co., 12 Abbt. R. [N. S.] 473; Thallheimer v. Brinckerhoff, 4 Wend. 394; Luby v. Hudson River R. R. Co., 17 N. Y. 131; Baxter v. Chelsea Insurance Co., 1 Allen [Mass.] 294 ; Thompsonv. Stewart, 3 Conn. at p. 183 ; Mallory v. Perkins, 9 Bosw. 572; Dawes v. North River Ins. Co., 7 Cowen, 462 ; Vail v. Judson, 4 E. D. Smith, 165; Barker v. Binninger, 4 Kern. 271).
    3. In respect to the suggestion as to any waiver, I add that, to be bound by a waiver, a party must know of the existing defect, and proceed to act without taking the objection (Darnly v. London, etc., R. R. Co., 15 W. R. 817; S. C. 36 L. J. Chanc. 404 ; 1 Parsons on Con. p. 427, and cases cited in notes.
    Third.—By the twelfth condition of insurance it was “ expressly agreed that no suit or action against this company,for the recovery of any claim by virtue of this policy, shall be sustainable in any court of law or chancery, unless such suit or action shall be commenced within six months next after the loss shall occur,’’ etc. The fire and loss occurred on the 26th of October, 1868.
    ' It was admitted on the trial that this action was commenced on the 18th day of June, 1869.
    1. In the recent case of Gilbert v. The Phoenix Ins. Co. (36 N. Y. R. 372), the familiar principle was reaffirmed, that where parties have made an agreement, the court has no right to interpose another agreement for them (vide also Riddlesberger v. Hartford Ins. Co., 7 Wallace, 386 ; 30 N. Y. R. at p. 163).
    2. It has also been repeatedly held that such a limitation was binding upon the parties to the contract and their privies (vide Ripley v. The Ætna Ins. Co., 30 N. Y. 136, 163 ; Roach v. New York & Erie Ins. Co., 30 N. Y. 546).
    3. The case of The Mayor, etc., v. Hamilton Ins. Co. (39 N. Y. R. 45), in which the provision of the policy was, that the action must be commenced “within the “term of six months after any loss or damage shall accrue” where the court very properly held that this provision, being construed in connection with all the other provisions, must be held to mean that the action must be commenced within six months from the time plaintiff had a right to sue, does not apply to the present case.
    4. We insist that the case referred to is not authority for a policy like the one in this case ; that, aside from authority, the plain definition of the word “occur” in our policy, distinguished this case from the one cited; and we refer to the case of Roach v. The N. Y., etc., Ins. Co. (30 N. Y. 546), to show how the Court of Appeals has interpreted it (vide, also, Riddlesberger v. Hartford Ins. Co., 7 Wallace [U. S.], 386).
    Fourth.—The attempt to prove the service of notices after issue and just before the trial, was properly excluded.
   By the Court.—Freedman, J.

The learned judge who presided at the trial dismissed the complaint for the reason that the claim of Candler against the defend • ant upon the policy in question had not been attached by the sheriff, and that consequently the plaintiff had no such title to the property as is necessary for the maintenance of the action.

The manner in which'attachments under the Code are to be executed, so as to bind property of which manual delivery cannot be made, is prescribed by the 235th section of the Code. They are to be executed by leaving a certified copy of the warrant of attachment with the person or corporation holding such property, “with a notice showing the property levied upon.” Section 236 furnishes the sheriff with the means of obtaining a dis-' closure of all the particulars necessary to enable him to describe the property intended to be levied upon with due particularity. He may apply to the person holding the property for a certificate designating the amount and description of the property so held. In case the certificate be refused, it may be compelled.

In Kuhlman v. Orser, 5 Duer, 242, this court expressly held, as one of the grounds upon which judgment absolute was ordered for the plaintiff upon the verdict, that the requirement of the said 235th section can only be satisfied by a notice which so particularly describes the property, that the holder is thereby enabled to identify it, and that a notice, general in its terms and containing no specification of the particular property meant to be levied on, is insufficient and void.'

This decision has since been followed by this court in Wilson v. Duncan (11 Abb. 3), and expressly approved by the Court of Appeals in Clarke v. Goodridge (41 N. Y. 210). It is true, that in another report of the last-named case, contained in 44 Row. 226, an attempt has been made to show that the opinion of Chief Justice Hunt, upon the point now under consideration, was not concurred in by a majority of the court, and was not necessary to the decision of that case. But the printed cases in Clarke v. Goodridge and Drake v. Goodridge, which were handed up by defendants’ counsel, and a critical examination of the opinions published in 44 Row. in the light which the printed records throw upon them, decidedly show that although there were two motions in these cases, which may have been argued together in the .Court of Appeals, they had, nevertheless, been disposed of originally by two different judges of the Supreme Court, and that they involved essentially different questions, which were ultimately disposed of hy the Court of Appeals as follows :

In the one case the order was reversed for the reason stated by Chief Justice Hunt, and concurred in by all the judges except Daniels and James, that the notice served by the sheriff upon the National Bank of the Bepublic did not specify sufficiently the property intended to be levied on, and did not refer to the interest of the debtor in such property with reasonable certainty.

In the other case the order was reversed for the reason stated in the opinions of Grover and Scott, JJ., namely, that it did not appear that the sheriff had at any time made an attempt in any way to serve the attachment, while it was in his hands, upon the debt due from Verhoven & Co. to Goodridge ; that consequently the attachment never had been a lien on the fund, and that upon its return the sheriff’s power under it had ceased. Mr. Justice Grover was therefore entirely correct in saying (44 How. 229) that the sufficiency of the notice served by the sheriff upon the National Bank of the Bepublic, in the case first above referred to, had nothing to do with the second case.

The doctrine first laid down in Kuhlman v. Orser (supra) represents, therefore, not only the settled law of this court, but the law of this State as settled by the Court of Appeals, and from this it follows- that the notices served in the case at bar which purported to cover generally all the property, real and personal, money, bank-notes, books of account, and vouchers and papers relating thereto and the debts, credits, and effects of Candler in the possession of or under the control of the defendant, and which were not followed up by the procurement of a certificate and the returning of an inventory, were wholly insufficient to work a levy upon Candler’s claim under the policy in question.

This being so, the sheriff is not in a position to maintain this action ; and the defect could not be cured by proof that subsequent to its commencement, but long after the limitation of the six months prescribed by the policy for its commencement, had attached, he made a new levy accompanied by a proper notice. Such a contract of limitation is valid, and will be enforced by the courts (Roach v. The N. Y. & Erie Ins. Co., 30 N. Y. 546, and The Mayor, etc., of N. Y. v. The Hamilton Fire Ins. Co., 39 N. Y. 45). Nor could the defect be obviated by mere conversations between the deputy sheriff and defendants’ officers. The remedy given by the 235th section is not merely cumulative, but is the only remedy known to the law in the cases there mentioned, and must be strictly pursued.

Plaintiff’s exceptions must be overruled and judgment absolute, dismissing the complaint, ordered for the defendant, with costs.

Barbour, C. J., and Sedgwick, J., concurred.


author: By the Court.—Sedgwick, J.

text:
    THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Plaintiffs and Respondents, v. HENRY C. BOWNS et al., Defendants and Appellants.
    L Contract.—Strikes by Workmen.
    1. Exemption clause against liability for non-fulfilment of contract, caused by strikes of workmen, what is not covered by.

    1. A strike caused by a contractor’s reducing the wages of his workmen is not.
    1. Unless, perhaps, a strike so caused is specially provided against.
    3. Effect of stipulation to me every effort to fulfil the contract on such exemption clause.

    1. It prevents the exemption clause operating either where the contractor’s own act causes the strike, or where he encourages it, or where he could have prevented it and did not.

      Before Barbour, Ch. J., Freedman and Sedgwick, JJ.

      Decided May 31, 1873.
    II. Construction.
    1. Particularr and general words.

    Particular words are not enlarged or varied by being conjoined to general words; on the contrary, general words are limited by particular ones used with them.
    1. Example.—When a clause in a contract provides that “if at any time the business of a company is so interrupted by storms, floods, breaks, accidents, combinations, turnouts, strikes among miners, or other employes, or by any occurrence whatever, as to materially decrease the quantity of coal which the company would otherwise have been able to obtain and deliver, the company will not hold itself liable for or pay any damages,” etc.
    The words, “ by any occurrence whatever,” are to be construed in connection with the other words in the same sentence, and to mean “ any unavoidable occurrence."

    III. Berwick v. Swindell (3 A. & E. 868, 5 N. & M. 381) does not conflict with above doctrines.
    TV. Pleading.—Exemption clause.
    1. Where a cause of action, defence, or counter-claim is founded on a liability which would exist in the law unless it falls within the scope of some exemption clause in the contract between the parties, it is not necessary for the pleader to show that the exemption clause does not apply. It is for the person claiming the benefit of such clause to place his reliance on it, and if he does, then it is time enough for the party insisting on the liability to show that the clause has not relieved against it.
    Appeal from judgment.
    The main point in this case refers to the counter-claim made hy defendant. The referee has decided that the facts put in evidence do not sustain the counter-claim.
    The plaintiffs had contracted" to deliver a certain quantity of coal to the defendants, but delivered only a part of that quantity. The counter-claim demands damages for this failure to deliver. The plaintiffs denied their obligation to deliver because the contract specially stipulated as follows: “Every effort will be made by the “ company for the fulfilment of its contract for the de“livery of coal, but if at any time the business of the “company is so interrupted by storms, floods, breaks, “accidents, combinations, turnouts, strikes among min- “ ers or other employes, or by any occurrence whatever, as to materially decrease the quantity of coal ‘c which the company would otherwise have been able “to obtain and deliver at Elizabethport, during the “month in which the coal now sold is deliverable, the “ company will not hold itself liable for or pay any “damages sustained by reason of the non-delivery of the “ coal now sold or of any portion thereof,” etc. The plaintiff further claiming that a strike among miners had diminshed the production of coal to such an extent that the quantity of coal which the company would otherwise have had was materially decreased, etc.
    The plaintiffs had in their business two sources of supply of coal. These were its own mines, from which it procured coal by its own miners and laborers, and mines owned by others from whom it made purchases of coal.
    The contract was made November 30th, 1870. On the 39th of that month the plaintiffs posted through their own collieries a notice that “ on and after the first of “December proximo, the prices paid to miners, labor-11 ers, and others, employed by this department, will be “the same as those paid in April, 1869.” This would have reduced wages from $1.30 a car to 86 cents a car.
    As to the effect of this notice, the referee finds “ that “in December, 1870, a strike was caused among the “ miners in plaintiff’s employ, and plaintiff’s reduction of “ the wages of such miners immediately preceded and “ was the proximate cause of said strike,” and “that the “ business of the plaintiff was thereby so interrupted “ as to materially decrease the quantity of coal which “ they would otherwise have been able to obtain and de- “ liver; ” “ that during the continuance of said combina- “ tion and strike, the production of coal by the plaintiff
      1 ‘ was wholly suspended: ” “ that the coal which during “that time they were able to obtain and deliver at “ Elizabethport and Hoboken amounted in all to but a “few hundred tons, and that their usual and ordinary “receipts at said points, prior to said strike and in the ‘ ‘ ordinary course of their business, amounted to about “ 9,000 tons daily.”
    The referee did not find specifically, although the testimony shows that the reduction of wages was not proposed with the purpose of causing a strike or in bad faith to the defendants, but was made in the belief that the reduction would be proper, and would not be objected to by the miners and laborers.
    It was assumed that workmen stopping their work in consequence of the plaintiffs giving the notice specified, was a strike.
    The referee, as a conclusion of law, found that the plaintiff was not bound to deliver to the defendants, under the contract, the coal which was not delivered.

      H. W. Johnston, attorney, and F. C. Cantine, of counsel for appellants, urged:
    1st. The referee erred in his interpretation of the terms of sale, the essential part of which is contained in the tenth article. It is important to observe that this article begins with a stipulation that the plaintiffs will make “ every effort for the fulfillment of its contracts for the delivery of coal,” etc.
    This stipulation is of the essence of the contract, and, as we shall show, performs a very important office as a guide to the true construction of the whole article.
    ' If the plaintiffs had performed this stipulation, even in its spirit, they would not have committed the act which produced the “strike” pleaded by them as a discharge from the contract.
    2d. It is not denied that such a “strike ” as the parties contemplated at the time the contract was made, would have absolved the plaintiffs from all obligation to deliver the coal in question; but it is insisted that such a “strike” never occurred.
    The “ strike ” which the parties had in mind, was one which should be occasioned without the fault or agency of the plaintiffs ; one which they could not prevent or control; one which should arise in spite of “every effort” which they might make, “for the fulfillment of its contract.” Plaintiffs had reason to.believe that defendants so understood the contract, and if so, the court will construe it accordingly (2 Story on Contracts, § 635).
    _ 3d. This clause of the article in question must be so interpreted as to give it significance and effect. The construction contended for by the plaintiffs deprives the clause of all meaning.
    Validity and force must be given to every part of the contract, so as to make the obligations mutual (Barton v. McLean, 5 Hill, 256; 2 Story on Contracts, §§ 657, 658 ; 2 Parsons on Contracts, pages 16, 17).
    Construed on this principle, the article would read as follows: “Every effort will be made by the Company for the fulfilment of its contracts for the delivery of coal; but if, notwithstanding such efforts, at any time,” etc.
    4th. If it is repugnant to, or inconsistent with, the remainder of the article, it must prevail over the other stipulations, for the reason that it is the earlier stipulation (2 Parsons Contr. p. 26, and notes; Newdecker v. Kohlberg, 3 Daly, 407).
    But there is no repugnancy or inconsistency between the several clauses of the article. They are entirely harmonious.
    5th. The construction put upon this article by the referee cannot be sustained, except upon the theory that the defendants entered into the contract with the intention of leaving it to the option of the plaintiffs to perform or not, as their pleasure or interest might dictate ; for, upon this construction, they could, if so disposed, discharge themselves by provoking a strike among their miners.
    Such a construction is irreconcilable with the presumption that contracting parties intend, in the absence of plain expressions to the contrary, to bind each other by mutual obligations, and is incompatible with the rule of construction that the court will, if possible, so interpret contracts as to make them mutual. It makes the contract in question essentially unilateral.
    6th. If the plaintiffs had intended to make the performance of the contract on their part dependent on the existence of any strike, whether caused by their instrumentality or otherwise, they were bound to express that intention clearly. Having failed to do so, the maxim ‘‘contraproferentem’’ applies (2 Story on Contracts, § 662 ; 2 Parsons Contr. 19 ; Edsall v. C. & A. R. R. Co., Church, C. J., Court of Appeals, Albany Law Journal, April 26th, 1873; Alexander v. Green, 7 Hill, 533; Wells v. Steam Nav. Co., 8 N. Y. [4 Seld.]S75 ; Stedman v. Western Transp. Co., 48 Barb. 97; Guilleaume v. Hamburgh & Amer. Packet Co., 42 N. Y. 212; Keeny v. Grand Trunk R. R. Co., 47 N. Y. 525; Westcott v. Fargo, 63 Barb. 351, S. C. 6 Lansing, 319).
    7th. The plaintiffs not only did not perform the stipulation to “make every effort,” etc., but committed an act which violated both the letter and spirit thereof.
    It imposed upon them the duty, not only of refraining from every act which might lead to a strike, but also to use every endeavor to prevent one which might be threatened, and suppress or conciliate any which might arise without any provocation from them.
    The evidence, and the express finding of the referee, on this point, however, is, that the plaintiffs were the aggressors. They provoked the strike by reducing the wages of their miners.

      They would have "been "bound to have acceded to a demand on the part of their miners for increased wages, if thereby they could have"prevented a threatened strike, and been enabled to perform their contract. And if so, they cannot take advantage of their own wrong, by pleading their own act in avoidance of the contract."
    8th. The plaintiffs were guilty of bad faith. The defendants entered into the contract, with reference to the state of things then existing; but plaintiffs had already, before the date of the contract, taken steps towards reducing their miners’ wages, and suppressed the fact, although their experience had taught them that any dispute with their miners respecting wages was likely to result in a strike.
    And this has been the experience of the entire community for years.
    ■ The subject of laborers’ wages is always an exceedingly delicate one, and its agitation invariably leads to insubordination.
    In the light of this experience, plaintiffs’ act was without excuse—it was culpable. Indeed, their own evidence shows that they regarded a strike as possible, in consequence of the. proposed reduction, for they consulted Storrs, their superintendent, on the subject..And although he advised them that “in his judgment' there was no possibility of a strike,” yet it is evident that in so advising he disregarded the teaching of his-experience.
    Besides, plaintiffs had no right to urge the advice of Storrs in justification of their course. He was their own agent, and an officer of the company. It is analogous to the case of a party setting up his own opinion and judgment in extenuation of his wrongful act.
    Again, it is absurd for plaintiffs to argue their good faith from the fact that the strike resulted in a loss to-them.
    They certainly expected to derive a benefit from the

      proposed reduction of wages ; no other motive for it can be assigned. If they had anticipated that injurious results would flow from their reduction, that circumstance would be rather an evidence of their folly than of their good faith in making’ it.
    9th. If, therefore, the strike was the natural and probable consequence of the plaintiffs’ act in reducing the wages of their miners, they will be presumed to have intended that result.
    10th. Again, when the plaintiffs discovered them mistake, they were bound by their stipulation to retrace their steps, and use “every effort” to conciliate their miners.
    It involved no element of impossibility, or even of ■difficulty, but merely a question of dollars and cents.

      Edwards & Odell, attorneys, Hamilton Odell and Jacob Vanelte, of counsel for respondents, urged:
    The defendants insist that the strike ■ furnishes no excuse to the plaintiffs for non-delivery, because, they say, it was caused by the plaintiffs’ reduction of the miners’ wages. They say that the law presumes that the plaintiffs intended the results of their own act.
    1. We deny the application of this principle here, but if applicable, it is true only as to the “necessary” results (Van Pelt v. McGrraw, 4 N. Y. 110); the “ natural ” results (Hain v. Wilson, 9 Barn and Cress. 643);—the ‘ ‘ natural and probable results’ ’ (1 Green on Ev. p. 18, § 24). The evidence of Mr. Storrs shows that .the plaintiffs had no good reason to expect or fear that a strike would be the “necessary,” or the “natural,” or the “ probable,” result of the reduction.
    The law also presumes that- men act according to their own interests (1 Phil. on Ev. 608). It is in evidence that former strikes had resulted injuriously to the plaintiffs “in a stoppage of their business, decreasing their revenues, without any proportionate decrease of expenditures.”
    It is too clear to need argument, that nothing "but absolute necessity would lead the plaintiffs to pursue any course of action which would or might provoke a strike on the part of their employés.
    2. The language of section 10 of the terms of sale is of the broadest character ; ‘ ‘ storms, floods, breaks, accidents, combinations, turn-outs, strikes among miners or other employés, or any other occurrence whatsoever.” The thing guarded against was “a strike”— not a strike from one cause or another, but any strike from any cause, “or any other occurrence whatsoever,” whereby their supply of coal would be materially diminished.
    3. The proof shows that,' prior to December, 1870, during the whole period of their existence, the company had, from time to time, altered the rate of miners’ wages. It- was a circumstance occurring in and forming a part of the ordinary administration of the company’s business. The defendants dealt with them knowing, or bound to know, that circumstances might require or justify a change in the price of labor. It is absurd to insist that there was an implied agreement on the part of the plaintiffs to make no reduction in wages, or other change in the system of conducting their business, which might be distasteful to, or not meet the approval of, the miners, and so possibly lead to a suspension of work.
    Any change by the plaintiffs in the mode of managing or operating their mines—e. g., in the. mode of mining coal, in hours of labor, in the amount of the daily production, a new system of ventilation, a new regulation designed to' prevent accidents to laborers or to-preserve the company’s property from injury or destruction, the introduction of mechanical aid by which the miners’ labor would be lightened and the force of laborers be reduced, might be unsatisfactory to the employes, and lead directly to a strike.
    But will it be seriously insisted that a strike for such a cause would not be a strike within the meaning of section 10 of the terms of sale ?
    Is section 10 to be construed as relating only to strikes which the company should not be able to prevent? That would require an accession by the plaintiffs to whatever demands the miners might advance.
    Is it to be construed as relating only to strikes which should not be induced, directly or indirectly, by any act or omission of the plaintiffs ? That would require, practically, submission to the miners. It would prohibit any change of operations to which they did not assent. It would involve the partial surrender by the directors of the company of their right and legal duty to manage the affairs of the company according to their best judgment. It would impose upon the company such an implied agreement as has been above alluded to.
    4. In the interpretation of a written contract the court will look to antecedent and surrounding facts and circumstances to ascertain its meaning (Blossom v. Griffin, 13 N. Y. 574, 576 ; Field v. Woodmancy, 10 Cush. 431; Mill Dam Foundry v. Hovey, 21 Pick. 441).
    Here it appears that the defendant, H. E. Bowns, had for four years prior to the sale of November, 1870, been a regular attendant and purchaser at the plaintiff’s auction sales, during which period'the plaintiffs had, from time to time, changed the wages of their miners, and strikes had resulted.
    During all this period, also, the Miners’ Association had been in existence. It was composed of 30,000 members, most of them in the employ of other parties than the plaintiffs. It was thoroughly organized, and acted unitedly. In consequence of it, the plaintiffs had not the free control of their own business. They had not the free enjoyment of their own property. Their ability to fulfil contracts for future deliveries of coal was dependent, largely, upon the will of other parties, and therefore they prudently qualified their liability, as expressed in section 10.

      5. The defendants will not seriously contend that the plaintiffs would have been bound to comply with any demand of the miners for an increase of wages, large or small. It is submitted that there is no difference in principle between a refusal to increase and a reduction under proper circumstances. The rate of wages in every department of labor must be fluctuating. It is a rule of trade. It is a matter of necessity. -The market value of labor must depend upon the market value' of the tiling which it produces. Wages of miners fixed when coal and cost of living were low, would not be fair wages when coal and cost of living had materially advanced. So wages, fixed when coal and cost of living were high, would be unfair when the price of coal or cost of living had sensibly decreased. A refusal to advance would be as unreasonable in the one case as a refusal to submit-to a reduction would be in the other.
    6. The good faith of the plaintiffs in reducing the wages has not been questioned by defendants, and is ■abundantly shown by the testimony of Storrs and Brisbin.
    7. There was no agreement by the plaintiffs, express or implied, that they would continue any given rate of wages through the month of December, or for any time (Berwick v. Swindells, 3 Adol. & E. 868 ; Knowlton v. Sewall, 10 All. 34.) Their contract was conditional, and they were discharged by the happening of the contingency against which they had provided.
   By the Court.—Sedgwick, J.

The referee’s findings do. not allude (nor did the argument of counsel) to the effect upon the construction of the contract, of the fact that plaintiff’s business was that of a purchaser of coal for sale by it, as well as that of mining coal. The proposed reduction of wages led to the miners in other collieries, that usually sold coal to plaintiff, stopping work, as well as to the strike in plaintiff’s own mines. Probably nothing would be gained, for the consideration of the vital question between the parties by pursuing an inquiry suggested by this. When the contract says that every effort will be made by the company to fulfil its contract, but if strikes among miners materially decrease the quantity of coal the company would otherwise have to deliver, the company is not to be liable, it is clear that the contract meant such strikes as might happen against every effort which the company could use to prevent them. If the company could prevent a strike likely to lead to an inability to perform the contract, and did not, or if they, say, encouraged the workmen to such a strike, it would not be true that the company had made every effort to fulfil the contract. We are looking at what is contained in one sentence, and are satisfied that such isx the intended meaning of the phrase, strikes among miners.

This proposition is strengthened from these words, " strikes among miners,” being associated with“ storms, floods, breaks, accidents, and combinations and turnouts.” These latter words have a quality in common, in relation to their leading to a non-fulfilment of the contract. That is, they are in their nature beyond .the plaintiffs’ control. It is to be intended that “strikes among miners,” as used, are such as have the same character of being beyond plaintiffs’ control. This is not weakened by the fact that the words “or any occurrence whatever ” are also used in connection with the words now considered. Particular words are not enlarged or varied by being conjoined to general words. On the contrary, general words are limited by particular ones used with them (Van Hagen v. Van Rennsalaer, 18 John. p..428), and by the nature of the contract. These general words must have some limitation. They cannot mean that which is within their verbal significance, viz., that if the production of coal is stopped by the plaintiffs’ direct order, the plaintiffs are not to be liable. The instrument, being a contract, and the nature of “storms, floods, and accidents,” suggest that any occurrence, as specified in the contract, means-any unavoidable occurrence.

It is rather the exception than the rule, to give to a-word in a contract or a statute all the meanings which might be attributed to it, if it were to be defined as a word by itself: It is to be construed according to the

mode of its particular use. The words we examine are in a contract which the parties have made because of its character and force as a contract. Although the parties might have, if they had wished, made a stipulation in it that it should not entail any liability whatever on either one of them, yet until such a purpose is clearly manifested the fact remains that the parties mean that the contract should impose an obligation. That fact is a leading consideration in weighing the particular clauses of the agreement. These should not have given to them a meaning which will destroy the contract, when another meaning, which will uphold it, is at hand, just as fit and true as the former. The contract obligation remains, modified, but not destroyed.

A late case is sufficient illustration of all this. A com-' mon carrier by special contract is exempted from liability for loss by fire. Verbally this means fire of any kind however caused. Yet the common carrier is liable if the fire happens from his own negligence (Lamb v. The Camden and Amboy Railroad Co., 46 N. Y. R. p. 271). It would be no answer to his liability that there was no intention of causing the loss by fire. The contract is not supposed to include a fire as to which he was but only negligent.

I have come to the conclusion, from these considerations, that the true construction of the phrase “ strikes,” etc., used as it is, is strikes that occur without any agency of plaintiff in inducing or causing them.

On this point, the learned counsel for the plaintiff made the observation that, from the peculiarities of the contract, it must be intended that the parties meant that the plaintiff should conduct its business according to its own customs and requirements, and that this involved the exercise of discretion by plaintiff in fixing its servants’ wages, as it might do if no contract were made. We do not agree to this so as to relieve the plaintiff from any "positive obligation it has made. There was an agreement to deliver. So far as any part of this throws upon the defendant the risk attendant upon a management at discretion by plaintiff of its business, the defendants bear such risks, but no further. The plaintiff has in effect contracted to manage its business so as to be able to deliver, excepting if inability to do this should come from the specified causes which are here examined.

Another view of the matter may be taken. If one contracts unconditionally to do an act, the duty of performance is absolute, and it is his own fault if he do not especially provide against contingencies which prevent performance (Tompkins v. Dudley, 25 N. Y. R. p. 272).

In the contract before us there is an absolute engagement by plaintiff. In the first place, they limited their otherwise absolute agreement to deliver, by providing that if strikes among miners so interrupted their business as to materially decrease the quantity of coal they would otherwise have, then they should not be liable for a non-delivery. But they, as modifying all this, made an express and absolute engagement 1 that every effort will be made by the company for the fulfilment of its contract.” A breach of this creates a liability for damages that follow the breach, as would a breach of any other part of the agreement. This general obligation included the specific obligation to make every effort to prevent strikes. The finding of the referee is, that the company caused the strike by a proposal to reduce wages. The plaintiff places itself upon this strike as absolving them, under the contract, from the obligation to deliver. The evidence is, that the officers and agents consulted as to the probability of a strike following the reduction, and they came to the conclusion that it would not follow. To make every effort to prevent the strike required that they should abstain from acts which involved some probability of causing a strike, even if in the judgment of the officer the probabilities that it would not be so caused were greater or more in number. The proposal to reduce wages had an immediate connection with the means the company were using to fulfil the contract. They used men to get out the coal, and when they proposed to them to reduce their wages, for which they worked, it had a direct bearing upon the production of coal.

It was not necessary that the defendants should put their claim upon the breach of this particular clause. Their cause of action was the non-delivery of the coal. The plaintiffs were as a matter of defence to set up the exemption from liability (Hotham v. The East India Co., 1 T. R. p. 645), and the obligation to use every effort is an answer to that claim of exemption which the defendants were not obliged by our system of pleadings to set up, after the reply was served.

I think, then, that the learned referee erred on two - grounds. First. The strike that occurred was not of the kind specified in the clause of exemption from liability. Second. The strike that diminished the plaintiff’s supply of coal was caused by a breach of the plaintiff’s agreement to use every effort to fulfil the contract.

The case of Berwick v. Swindell (3 A. & E. p. 868, 5 N. & M. p. 381), involved a contract which the court thought had expressly stipulated that the obligor might or might not, as he chose, do a certain act, and therefore he might do it although that created a casus omissus, as to which the other parts of the contract made no provision for Ms liability, and therefore he was not liable. The case, however, recognizes the rules of construction upon which we have acted in tMs case.

Judgment reversed, order of reference vacated, and a new trial ordered, with costs to appellant to abide the event.

Barboub, C. J., and Freedman J., concurred.


author: By the Court.—Sedgwick, J. Barbour, C. J. (dissenting).

text:
    CHARLES D. KEEP, Plaintiff and Respondent, v. ABRAHAM KAUFFMAN, Defendant and Appellant.
    I. Joinder op Causes op Action.—Demurrer.
    1. Landlord and Tenant.

    1. A cause of action for breach of covenant for quiet enjoyment, in that after the commencement of the term the lessor (being the defendant) refused to deliver a part of the demised premises, deprived the lessor of the use of certain demised privileges, refused to perform certain covenants, and shut out the lessor from the demised premises, thereby depriving him of the use thereof, and compelling him to remain on the public street.
    CANNOT BE JOINED WITH

      a cause of action founded on allegations that the defendant, while the plaintiff had been denied admission to his premises, had by false keys obtained entrance to the premises, and had broken a lock securing a trunk which was in said premises, belonging to and containing property of the plaintiff’s, and had wilfully, maliciously, and feloniously taken and removed goods of plaintiff from the said premises.

      a. The use of the words “said apartment,” “so as aforesaid denied admission,” and the averment “that when he had made frequent application to defendant in a friendly way to secure admission to his said apartments and be permitted to obtain for necessary use his said wearing apparel, and defendant had persisted in refusing the same, plaintiff was compelled to institute legal proceedings for the possession of his said property,” contained in the statement of the latter cause of action, do not so refer to the first cause of action, as to show that the pleader meant to treat the tortious acts complained of in the second cause of action as a breach of the contract set out in the first cause.
    Before Barbour, Ch. J., Freedman and Sedgwick, JJ.

      Decided May 31, 1873.
    Appeal from judgment.
    The complaint sets forth as follows :
    “ The plaintiff, "by J. Worden Gredney, his attorney, complaining of the defendant, respectfully shows to this court:
    First.—For a first cause of action.
    1. That on or about the 30th day of August, 1872, plaintiff and the defendant entered into an agreement whereby the plaintiff hired, and the defendant leased, for the term of one year from said date, at the rent then and there agreed upon between the parties of seven dollars per week, payable in advance, a part of the second floor of the premises then and now occupied by the defendant, known as No. 321 East Seventeenth Street, in the city of New York.
    2. That the said defendant, at the time of said hiring, promised and agreed with this plaintiff that he should peaceably and quietly occupy and enjoy the premises aforesaid for the said term of one year.
    3. That at the time of said hiring it was mutually understood and agreed by and between the parties hereto, that in consideration of the payment of the rent aforesaid the plaintiff should have and enjoy the use and benefit of the heat furnished by the furnace of defendant, and that defendant would cause to be done and performed sundry household matters and things for the benefit of the plaintiff and family.
    4. That at the time of said hiring it was further mutually agreed Tby and between the parties hereto, that upon the payment of three dollars per month by this plaintiff, in addition to the rent aforesaid, said plaintiff should have the use and benefit of the gas furnished from the meter of said defendant for cooking purposes and for light, but that subsequently defendant informed ■plaintiff that he thought three dollars per month was not sufficient for the supply furnished, and plaintiff voluntarily paid thereafter four dollars per month for use •of said gas.

      5. That upon the conditions and agreements herein-before mentioned, this plaintiff entered in and upon said •premises, and paid to the defendant the rent as aforesaid, .and in every way fully and faithfully performed each and every his part of said contract.
    6. That the plaintiff has not been permitted to occupy and enjoy the possession of said premises, or to enjoy the use and benefit of said heat and light; but, on the contrary, after the commencement of the term, defendant refused to deliver over to the plaintiff a part of the apartments hired by him and for which he had paid the rent as aforesaid, greatly to the annoyance and damage -of this plaintiff and his family; and the defendant did further deprive this plaintiff of the heat of said furnace and of the use of said gas by shutting off the same from his said apartments, and did compel this plaintiff to purchase stoves for heat, and lamps and oil for light; and further, said defendant did refuse to do and perform the sundry household matters agreed upon, and when this plaintiff desired to bring into the house and his said apartments a stove for his own use, the said defendant did shut, lock, bar, and chain the entrance to said house, and did keep such entrance so locked and barred, thereby depriving this plaintiff of the society of his family and the use of said apartments ; and said defendant by these acts did cause and compel this plaintiff to remain upon the public street; and plaintiff, in order to enter his said apartments, and to protect Ms family from the assaults of defendant and his agents, was obliged to force his entrance to said house, all to the damage of this plaintiff in the sum of five hundred dollars.
    Then after setting forth three other causes of action it continues:
    “ Fifth.—For the fifth cause of action this plaintiff says:

      “1. That when he had made frequent application to defendant in- a friendly way, to secure admission to his said apartments and be permitted to obtain for necessary use his said wearing apparel, and defendant had persisted in refusing the same, plaintiff was compelled to institute legal proceedings for the possession of his said property, and call to his aid the sheriff of the city and county of blew York.

      “2. That on the thirty-first day of January, 1873, said sheriff, by virtue of authority in him vested, did enter said house and did go. to said apartments in search of said property of this plaintiff and family, and found that during the time that plaintiff had been so as aforesaid deMed admission, the said goods had been removed from the said apartments, and upon making search therefor said sheriff found the said property In a -confused and disordered condition, which said property consisted of fine clothing, provisions, etc., were promiscuously, and without regard to any care, packed together in a heap in the basement hall of said house.

      “ 3. That said defendant, in order to get possession of said goods and remove the same, did, during the said forced absence of plaintiff, procure the services of a locksmith, and by false keys obtained an entrance to said apartments, and did break the lock securing a trunk in said apartments,. belonging to and containing the property of said plaintiff, and did, contrary to law, wilfully, maliciously, and feloniously take and remove said goods from said apartments as aforesaid, to the damage and injury of the plaintiff of five hundred dollars.
    “ Wherefore, plaintiff demands judgment against said defendant in the said sum of five hundred dollars ($500) in said first cause of action, and the further sum of five hundred dollars ($500) in said fifth cause of action.
    To the complaint the defendant demurred as follows: ‘ ‘ The defendant above named demurs to the complaint herein, and for the grounds of his demurrer states that it appears upon the face of the complaint that several causes of action have been improperly united, to wit: the first alleged cause of action therein being for the breach of a covenant in a lease, and the fifth alleged cause of action being for injuries with force to personal property.”
    At Special Term the demurrer was overruled, with leave to defendant to answer on payment of posts, and a (so-called) judgment to that effect was entered.
    The defendant appealed to the General Term.

      Lewis Sanders, attorney, and of counsel for appellant, urged:
    First.—To entitle two causes of action to be joined three essentials are requisite:
    1st. They must both belong to the same class.
    2d. They must affect all the parties to the suit.
    3d. They must not require different places of trial.
    Tinder subdivision 1, two more essentials are requisite :
    1st. They must arise out of the same transaction or transactions.
    2d. They must be connected with the same subject of action.
    Will the first and fif th causes of action bear these tests %

    1st. They do not belong to the same class.
    The first is for not giving possession of a portion of the premises leased, and refusal and failure to furnish heat and light, and to perform sundry household matters, and is clearly ex contractu, coming under subdivision 2, § 167, Code.
    The fifth is for refusing to deliver up to plaintiff the wearing apparel of himself and family, for removing said good clothing, the provisions, etc., without regard to care, and for wilfully, maliciously, and feloniously taking and removing said goods contrary to law.
    This is clearly ex delicto, and comes under subdivision 3, § 167, Code.
    2d. They are not connected with same subject of action.
    In the first, the subject-matter is a contract—the covenants and agreements in the lease, possession, heat, light, household matters.

    In the fifth, the subject-matter is personal property, the wearing^apparel, provisions, etc.

    3d. They do not arise out of the same transaction or transactions.
    In the first, the transactions are :
    Refusal to deliver over part of premises leased.
    Refusal to furnish the heat and light.
    - .Refusal to perform sundry household matters.
    In the fifth, the transactions arise after plaintiff’s removal from the premises, and are:
    Institution of legal proceedings to recover plaintiff’s wearing apparel.
    Going after the goods and finding the fine clothing, provisions, etc., all in a heap.
    The breaking open of a door and a trunk, and, contrary to law, wilfully, maliciously, and feloniously taking and removing said goods.
    Second.-—These actions fail to agree in any one of the three essentials:
    Class,
    Subject-matter, or Transaction or transactions.

      All of which are absolutely essential to admit of their joinder (In Hunter v. Powell, 15 How. 228 ; Hall v. Fisher, 20 Barb. 448).
    The claims “do not all belong to one of the classes anentioned in the several subdivisions of § 167.”
    Action in tort cannot be joined with an action on contract, though the subject-matter be the same (so held in Martin v. The Mayor, etc., 1 Hill, 545; Sweet v. Ingerson, 12 How. 331).
    “ The manner in which the breach is alleged does not determine the form of the action” (Howe v. Cook, 21 Wend. 31).
    An action ex contractu cannot be joined with an action ex delicto 9Stephen on Pleading, 9th Amer. ed. p. 266; Bac. Abr.—Action Title C; 2 Wait's Law and Practice).

    Third.—The allegations in each cause of action must establish a complete cause of action—a mere general reference to a prior count is insufficient (Flynn v. Bailey, 50 Barb. 73 ; Anderson v. Hill, 53 Barb. 245).

      J. Worden Gedney, attorney, and of counsel for respondent, urged:
    The alleged injuries in the fifth cause of action were additional breaches of the agreement of letting, and of quiet enjoyment, as set forth in the first cause of action, and for which the plaintiff suffered additional loss and damage.

      (a). This is evident from the nature of the case. The acts of defendant alleged in the fifth cause of action, being an outgrowth or result of the violation of his agreement as set forth in the first cause of action.
    (5). The unlawful detention, removal, or destruction of the property of a tenant by a landlord is a direct breach of the contract of quiet enjoyment.
    (c). The injury follows the breach as part of the same transaction (Badger y. Benedict, Supra, and 1 Hil. 419; Smith v. Orser, 43 Barb. 193).
   By the Court.—Sedgwick, J.

The demurrer to the complaint is on the ground that the complaint has improperly the first cause of action stated in it with the fifth cause of action alleged in it.

The first cause of action stated that the plaintiff and the defendant made an agreement "by which the one hired and the other let certain rooms in a house; that in such agreement the defendant agreed that the plaintiff should peaceably and quietly occupy and enjoy the premises for the time specified, and that the plaintiff should have and enjoy certain privileges connected with the use of the premises, but that the plaintiff had not been permitted to occupy and enjoy the possession of the premises, or to have and enjoy the specified privileges ; and that the defendant had shut and barred the entrance to the house in which the rooms were, and had kept it shut and barred, thereby depriving the plaintiff of the use of the rooms, and compelling him to remain upon the street, and that the plaintiff, in order to enter his rooms and protect his family from the assaults of defendant and his agents, was obliged to force his entrance into said house, etc., to the damage of the plaintiff.

The cause of action, thus stated, was for damage for the breach of a contract.

The 167 section of the Code requires that to join other causes of action with the one stated, all should arise out of the same transaction or transactions connected with the same subject of action (subd. 1) or out of contract (subd. 2).

The fifth cause of action states that when the plaintiff had made frequent applications to defendant to secure admission to his said apartments and be permitted to obtain his wearing apparel, and defendant' had persisted in refusing the same, plaintiff was compelled to institute legal proceedings for the possession of his said property, and call to his aid the sheriff of the bounty; that defendant, in order to get possession of said wearing apparel, and remove the same, did, during the said forced absence of the plaintiff, obtain an entrance to said apartments, and did break a lock securing a.trunk containing plaintiff’s property, and did wilfully, maliciously, and feloniously, take and remove said goods from said apartments as aforesaid, to the damage of the plain-in the sum of five hundred dollars.

Thiá is in effect stated in the complaint to contain in itself a cause of action on which the plaintiff relies. The 167 section requires that causes of action united in a complaint must be separately stated, and the complaint calls it a fifth cause of action.

There is no reference to the statements of other causes of action, or to the other parts of the complaint, except in the words “said apartments,” which is nothing but .an identification of the place in which the acts were alleged to be done. The section of the Code in relation to stating separately the causes of action contained the substance of the former rule in respect of different counts in a declaration. “But unless the second count ■“ expressly refers to the first, no defect therein will be “aided by the preceding count, for though both counts 16 6 are in the same declaration, yet they are for all purposes as distinct as if they were in separate declarations, and consequently they must independently contain all necessary allegations, or the latter count must “ expressly refer to the former.” .

The fifth cause of action states only a tort. We cannot suppose that the pleader means to treat this tort as a breach of the contract set out in the first cause of action, because there is nothing whatever in the fifth cause of action that connects the two. In addition to this, the peculiar mode of allegation negatives the idea that in the fifth count the plaintiff relied on a breach of contract, and shows that he relied on a wilful and malicious injury by the defendant.

The joinder cannot "be sustained on the ground that the causes of action arose out of the same transaction or transactions connected with the same subject of action. ¡Necessarily the statement of another cause of action.in a complaint implies that the pleader is proceeding tosíate a different set of facts from those already stated. Therefore, unless there is something to expressly show to the contrary, it must be deemed that a new cause of action states another transaction than that already set out. The contrary may appear by such a statement of facts, that a comparison of it with what has already been stated will show the two to be parts of a transaction, or there must be an express reference to a former statement of a cause of action. In the present complaint there is neither. The transaction of the fifth cause of action does not on its face appear even to have occurred on the same day or days when the other acts set out in the other alleged causes of action are averred to have been done-

To me it seems that there is an attempt to join a cause of action on contract with a cause of action for tort, without the causes of action being parts of one transaction.

The judgment overruling the demurrer should be reversed, and judgment ordered for the defendant on the demurrer, with costs, with leave to plaintiff to amend the complaint within twenty days, on payment of costs.

Freedman, J., concurred.

Barbour, C. J. (dissenting).

Although the complaint in this action may be liable to many serious objections, the only question which the court can properly consider upon this appeal is, whether the first cause of action is improperly joined in the same suit with the-fifth cause of action.

The respondent claims that the first cause of action Is for breaches of covenants in a lease, while the fifth is for injuries to personal property. Of course the onus of proving by the language of the pleading itself that his objection is well founded, is upon the party demurring. The plaintiff is entitled to all reasonable intendments in his favor.

As a first cause of action the complaint charges that the defendant let certain premises to the plaintiff, and undertook that the latter should quietly occupy and enjoy the same, but (inter alia) that the defendant “ did shut, lock, bar, and chain the entrance to said “house, and did keep such entrance so locked and “barred,” thereby depriving the plaintiff of the use of his premises,

The complaint charges for a fifth cause of action that the defendant, during the absence of the plaintiff from his apartments, obtained an entrance thereto by means of false keys, and removed the plaintiff’s goods therefrom.

The facts as set forth in each of the. counts are sufficient, if properly stated, to constitute an action for a breach of the defendant’s covenant for quiet enjoyment; and it follows that the two causes of action are not improperly joined. The judgment should therefore be affirmed, with costs; but leave should be given to the defendant, to apply at Special Term for permission to withdraw his demurrer and interpose an answer upon the usual terms.