author: By the Court—Bosworth, Ch. J.

text:
    Sylvester Brush, Plaintiff and Respondent, v. Hezekiah Kohn, Defendant and Appellant.
    1. A general verdict in favor of one party, rendered by the Jury, in obedience to the instructions of the Judge, cannot be corrected on motion, so as to transform it into a verdict for the other party.,
    2. Wherever the Court, on a supposed state of facts, instructs the Jury, if they so find the facts, to render a verdict for the plaintiff, when the instruction should have be’en to find, in that event, a verdict for the defendant, the remedy, if no exception is taken, is to move, on a case, for a new trial.
    3. This rule applies where the defendant tendered and paid into Court the amount due, and the Judge directed, and the Jury accordingly found a verdict for the plaintiff for that sum, instead of a verdict for defendant.
    (Before Bosworth, Ch. J., and Moncrief, Robertson, White, Monell and Barbour, J. J.)
    Heard, March 22, 1862;
    decided, March 29, 1862.
    Appeal from an order denying a motion to correct the verdict.

      The facts appear in the opinion of the Court. The motion at Special Term was made before Mr. Justice Moxell, and his decision, which was now appealed from, is reported in 14 Abbotts’ Pr., 51.

      Isaiah T. Williams, for defendant, appellant.
    I. The amendment would not prejudice the plaintiff.
    II. The amendment was refused on the ground that, because of the error of the Judge, the verdict could not be corrected.
    III. This was not an application to review the trial. The error of the Judge may not have led the Jury to find formally for the plaintiff.
    IV. The mistake, if it arose from the error of the Judge, is one which it is due to justice to correct instan ter, when pointed out.
    V. In The Bank of Columbia v. Southerland, (3 Cow., 336,) it was because there was a verdict subject to the opinion of the Court, that a case was held necessary.
    VI. The Judge did not expressly direct a verdict for the plaintiff, but a verdict for the sum paid into Court. The form of the verdict was not as directed by the Judge, but only the substance. »
    VII. Payment into Court, under a plea of tender before suit, was required by the practice in such cases, to perfect the answer of tender.. (2 Hill, 538; 14 Wend., 221; 8 Barb., 408.)
    VIII. Payment into Court is no acknowledgment of the right of action, beyond the amount paid in. (1 Tidd’s Pr., [2d Am. ed.,] 568;. 1 Term R., 629, 464; 3, Id., 657; 4 Id., 10, 579.)
    IX. There was no dispute as to the fact of tender and payment.
    X. On plea of tender before suit brought, and payment into Court, unless the plaintiff prove a sum beyond what is paid in, there should be a verdict for the defendant. (3 Cow., 336; 1 Burr. Pr., 408; 1 Wend., 191.)
    XI. After trial the verdict may be amended so as to conform to the facts, where there is no doubt as to such facts, either from the certificate of the Judge or otherwise, and of the real intentions of the Jury. (Burhans v. Tibbits, 7 How. Pr., 21; 3 Sumn., 410; Code, § 173; 8 Cow., 623; Hob., 54; 12 Wend., 135; 15 Johns., 318; 7 Cow., 29; 10 Mass. R., 64; 7 How. Pr., 21; 2 Burr., 698; 3 Term R., 659; 9 Cow., 151; 2 Johns. Cas., 17; 11 Pick., 125; 1 Dal., 134; 14 Johns., 86; Rockfeller v. Donnelly, 8 Cow., 652, 656; Sayre v. Jewett, 12 Wend., 135.)
    XH. Before or after judgment, the Court, in furtherance of justice, may amend any proceeding by correcting a mistake in any respect. (Code, § 173.)
    XIH. The whole matter of amendments is in the dis cretion of the Court. (3 Sumn., 410.)
    XIV. It is not in furtherance of justice to permit the plaintiff to recover costs of the defendant, where the matter litigated (viz., whether any rent was due after Jan. 1,1860) was found in defendant’s favor.
    XV. So much of the plaintiff’s claim as related to rent up to the 1st of January, 1860, by the tender and payment into Court, was out of the case; all the residue of the litigation was in reality disposed of in favor of the defendant.
    XVI. The remedy for a misfinding of the Jury is by motion. (1 Clinton’s Digest, 136, § 267.)
    XVH. If it appear, from the opinion of the Special Term, that the motion was denied for want of power to grant it, an appeal lies, though it be a matter resting in discretion. (12 Abbotts’ Pr., 16, 28; 20 N. Y. R., 81.)

      J. M. Van Cott, for plaintiff, respondent.
    I. Errors occurring at the trial can be reviewed and corrected only upon a case. (Bellows v. Shannon, 2 Hill, 86; Smith v. Smith, 4 Wend., 468; Schermerhorn v. Schermerhorn, 5 Wend., 513; Belden v. Davies, 2 Hall, 443; Bank of Columbia v. Southerland, 3 Cow., 336; Code of Proced., §§ 264, 265; Alston v. Jones, 17 Barb., 276; Storey v. Brennan, 15 N. Y. R., 524.)
    H. The instruction to the Jury to find a verdict for the plaintiff was right. There was no valid tender. The sum tendered was not enough. Plaintiff has recovered less rather than more than he is entitled to.
   By the Court—Bosworth, Ch. J.

This is an appeal by the defendant from an order denying a motion to change the verdict, which is a general verdict in favor of the plaintiff, for $166.67, into a verdict for the defendant..

The action was brought to recover $500, for the rent of premises leased by the plaintiff to the defendant. The defendant, before suit brought, tendered the sum of $166.67; plead the tender as a defense, and, accompanying Ms plea, paid into Oourt the sum tendered.

The plaintiff insisted that the lease continued for a longer period than the defendant conceded it did. The defendant proved that he made the tender as pleaded. The Judge, at the trial, instructed the Jury, “ that if they found that no more than the sum so tendered and paid into Court was due or owing for the said rent, that then their verdict would be for the said plaintiff for the said sum so tendered and paid into Oourt, to wit, $166.67.”

I state the instruction, in the words in which the moving affidavit alleges it was made. The Jury rendered a verdict for the plaintiff for that sum.

The plaintiff, on an affidavit stating these facts, and that the Jury did find that no more was due or owing for rent than the sum so tendered, moved, at Special Term, for an order changing their verdict for the plaintiff into a verdict for the defendant; that motion was denied, and from the order denying it this appeal is taken.

It is not pretended, whatever it may be alleged the Jury found, that the verdict, in form and words, is other than a general verdict in favor of the plaintiff, for $166.67.

Whatever error may have occurred at the trial, none can be imputed to the action of the Jury. They obeyed the* instructions of the Judge, and if there was any error, it was his, and not the Jury’s. The Jury having rendered a general verdict for the plaintiff and no different direction having been given by the Court, it was the duty of the Clerk to enter judgment in conformity with the verdict. (Code, § 264.)

There is no mode presented by the Code by which the defendant can be relieved from the error committed at the trial, except a motion at Special Term, upon a case, for a new trial. (Code, § 265; Rule 34 [15].)

Such was the practice before the Code. (The Bank of Columbia v. Southerland, 3 Cow., 336.)

It cannot justly be said, that the Jury rendered a verdict different in form from what they intended; they obeyed the instructions of the Court.

And this case is, in principle, precisely like every other, where the Court, on a supposed state of facts, instructs the Jury, if they find the facts to be as thus supposed, to render a verdict for the plaintiff, when the instruction should have been, to find, in that event, a verdict for the defendant.

That the error is more apparent in one case than in another, makes no difference in respect to the remedy to be pursued by the injured party. In all such instances, where no exception is taken, the remedy is a motion, on a case, for a new trial.

If the Jury had found specially, that the defendant tendered the whole sum due, judgment could be given in his favor notwithstanding a general verdict in favor of the plaintiff for the sum tendered. (Code, § 262, [217].)

Where a general verdict has been rendered for a plaintiff, upon a declaration containing several counts, some of which are bad, and the Judge certifies that all the evidence given at the trial is applicable to the good counts, he may be permitted to amend the verdict, as it is sometimes expressed, by applying it to the good counts. (1 Cai., 386; 12 Wend., 135.) This, in effect, is to permit the plaintiff to enter up his judgment on the good counts. (Stafford v. Green, 1 Johns., 505; Jones v. Kennedy, 11 Pick., 125.)

The verdict remains in favor of the party who recovered it, and for the sum rendered, and, by leave of the Court, the record is so made up as to show that it was rendered on the good counts only. ■

So, although a verdict may not conclude formally in the words of the issue, yet if the point in issue can be concluded Qut of the finding, the Court will work it into form, and make it serve according to the justice of the case. (Porter v. Rummery, 10 Mass. R., 69.) In other words, the Court will disregard the verbal imperfections and uphold the judgment. (8 Cow., 662, 663; Thompson v. Button, 14 J. R., 84.)

Even an alteration of its verbal phraseology, so as to make it express by words precisely that which the Court deems to be its legal effect, is quite a different- thing from transforming a general verdict in favor of a plaintiff into a general verdict in favor of the defendant.

Ho authority or precedent in support of the power of the Court to order the latter has been cited, and we are satisfied that no such power exists, on such a state of facts as this case presents. (U. S. Trust Co. v. Harris, 2 Bosw., 86; Bemus v. Beekman, 3 Wend., 667.) According to the papers before us, the Jury have not committed any error, nor made, inadvertently, a mistake; the error or mistake, if there be any, is that of the Court, and can only be redressed by a motion, on a case, for a new trial.

The order should be affirmed, with costs, but without prejudice to the right of the defendant to move, at Special Term, for leave to make a case and move thereon for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    The Butchers’ and Drovers’ Bank of Providence, Plaintiffs and Respondents, v. Frederick Jacobson et al., Defendants and Appellants.
    It was decided in this case, that in pleading an instrument for the payment of money only, under section 162 of the Code of Procedure, by giving a copy and stating the amount claimed to be due, it is not necessary to allege that the defendants made it, nor to show how they are connected with it.
    Heard, at Special Term, (on motion for judgment for frivolousness of demurrer,) before Mr. Justice Moncrief, January 28, 1862.
    Heard, in General Term, before Bosworth, Ch. J., Barbour and Monell, J. J.,
    April 14, 1862;
    decided, April 26,1862.
    See the point decided, in the index to this volume, under the title Pleadings.
   See the appeal reported at length, with the opinion of the Court at General Term, in 15 Abbotts’ Pr., 218.


author: By the Court—Monell, J.

text:
    Chester N. and Lawrence Case, Plaintiffs and Appellants, v. William Banta, Defendant and Respondent.
    1. Under section 388 of the Code of Procedure, which enlarges the remedy for obtaining discovery and inspection of books and papers pending suit, if a party establishes, to the satisfaction of the Court or Justice, that any book, paper or document is in the possession or under the control of the adverse party, containing competent evidence relating to the merits of the action or defense, its production for inspection may be compelled.
    2. Thus, where, in an action for breach of warranty on a sale of goods, the plaintiffs, made affidavit that there was a written contract which they had not known, or had forgotten at the commencement of the action, and that it was in the possession of defendant, who refused to exhibit it or give a copy, and that it was material to them in the action; Held, that they were entitled to an order requiring defendant to give them an inspection and copy, or permission to take a copy.
    (Before Bosworth, Ch. J., Moncrief, Robertson, Barbour and Monell, J. J.)
    Heard, April 19, 1862;
    decided, April 26, 1862.

      Appeal from an order made at Special Term, denying a motion for an order that the defendant permit the plaintiff to take a copy of a contract or agreement made between the parties in this action, and referred to in the affidavits read on the motion.
    ■ The action was to recover damages for the breach of a warranty made by the defendant to the plaintiffs, on the sale of about fifty-four dozen hats. The hats were purchased by sample, and it was alleged that the bulk did not correspond with the sample shown, the defendant having promised that they should. The plaintiff stated in his affidavit, “that he has recently been informed and believes that there was a written contract or memorandum of agreement for the sale and delivery of the said hats,” which was not known to him at the commencement of the action, or which -he had forgotten. It further appeared that the agreement was in possession of the defendant, who had refused to exhibit it to the plaintiffs, or give them a copy, and was material for the plaintiffs in the action.

      L. B. Woodruff, for plaintiffs, appellants.
    I. The agreement is the sole original of an instrument upon which the rights of both the parties depend, and was made for the very purpose of securing the rights of each. The casual fact that the defendant is (in the confidence which was reposed in him) the custodian of the instrument, does not affect the plaintiffs’ right. So far from impairing their title to see and use the instrument, this circumstance makes the conduct of the defendant in withholding the instrument, more unjust and inequitable, and calls more strongly for the interference of the Oourt.
    2d. The principles of the Oourt of Chancery regulating discovery made this distinction :—where books, papers or documents in the possession of an adverse party were the sole property of such party, discovery could only be had by bill of discovery, or by a cross-bill filed for that purpose, and in that case all the conditions requisite to sustain such a bill must be shown; but where both parties have an equal right to the examination of the papers or documents, the Court, on mere motion, and on an application in any stage of the suit, would prder the adverse party to deposit the same with an officer of the Court, and permit copies to be taken. (Kelly v. Eckford, 5 Paige, 548, and cases there cited.)
    3d. In a Court of law it is a matter of course to compel one party who has the possession of a document which belongs equally to both, to produce the same for the inspection of his adversary of the purpose of the suit. (Same Case; Goater v. Nunnely, 2 Strange, 1130; Reid v. Coleman, 2 C. & M., 456; 4 Tyr., 272; Blakey v. Porter, 1 Taunt., 386; Cooke v. Tanswell, 1 Moore, 465; Gigner v. Bayly, 5 J. B. Moore, 71; Bateman v. Phillips, 4 Taunt., 157; Travis v. Collins, 2 C. & J., 625; Morrow v. Saunders, 1 Brod. & Bing., 318; 3 J. B. Moore, 671; Wallis v. Murray, 4 Cow., 399, and cases cited; Ruberry v. Binns, 5 Bosw.,685; Brevoort v. Warner, 8 How. Pr., 321, 326.)
    II. If the foregoing be not entirely conclusive of the right of the plaintiffs to the inspection they seek, then they are entitled to that inspection upon other grounds regulating discovery, even of papers which belong to the defendant himself. “Enough must be stated to justify a presumption that the documents exist, are in the possession or control of the party, and that they will tend to establish some claim or defense of the party asking the discovery, and that they are not in his possession or control. (Hoyt v. Am. Exch. Bank, 1 Duer, 655; Exchange Bank v. Monteath, 4 How. Pr., 280.)
    The Court has power to compel a defendant to discover documents relating to the merits, which are necessary to the plaintiff to enable him to prepare for trial. (Gould v. McCarty, 1 Kern., 575.) Powers v. Elmendorf, (2 Code R., 421,) goes much further even than is sought in this case.
    The moving papers should be such as to enable the Court to see that the documents relate to the merits, and that they will be presumptively material in preparing for trial, and if that appear, the oath of the party to that effect is not even necessary. (Hoyt v. Am. Exch. Bank, 1 Duer, 656.) ,
    It is no answer to say that the party can be compelled to produce the paper on the trial by subpoena duces tecum. That furnishes no aid in preparing for trial, and besides, the plaintiffs are entitled to secure an inspection of the document or a copy thereof, without the necessity of calling their adversary. Where a party is seeking to make a prying examination into the books and papers of his adversary for the purpose of gathering evidence, there is propriety in holding, that, as he can examine his adversary on the trial, that will furnish him all the aid necessary; and it is just, because the adversary can himself supply all proper explanations. But when the object is simply to obtain an inspection or copy of a specific agreement, executed by both parties, no explanation is necessary. It in no degree partakes of the character of a fishing examination, and it should be allowed to the applicant, in order to aid Mm in the preparation of his cause.

      S. F. Cowdrey, for defendant, respondent.
    I. The contract, of which discovery is sought, if there is any, can only apply to the defense in the suit. The plaintiffs sue for damages for breach of warranty on sale of hats, and not on the alleged contract. The complaint ignores the existence of any written contract. The defendant alone can avail himself of it.
    II. neither the Revised Statutes nor the Code enable either party to á suit to compel his opponent to discover papers or books, unless such papers as will aid the “party applying for the discovery.” The words in each are. “ relating to the merits of the suit or the defense therein.” The uniform and unvarying decisions, under the Revised Statutes, are that the discovery must be intended to aid the party applying. The Code has made no alteration in this respect; it has only made a verbal alteration of the consequences of a refusal to comply with the order of the Court. (Compare provisions of 2 R. S. and Code.)
    The case of Powers v. Elmendorf, (4 How. Pr., 60,) admits the principle applicable by the law before the Code, but decides the Code has established a different rule, because of the concluding sentence of the Code. The same reasoning will apply to the Revised Statutes. Per Woodruff, in McAllister v. Pond, (15 How. Pr., 299,) the discovery must' be material to applicant’s case.
    III. Assuming that the plaintiffs can require the production of the alleged contract, the affidavits do not make out a case entitling them to discovery.
   By the Court—Monell, J.

Without examining the questions discussed on the argument of this appeal, as to the power of the Court, independently of the Code, to grant the relief asked for by the plaintiffs, we are so well satisfied (in which the Justice who made the order appealed from now fully concurs) that the plaintiffs have brought themselves within the provisions of section 388, of the Code, that we entertain no doubt the order appealed from should be reversed. That section authorizes the Court before which the action is pending, or a Justice thereof, in their discretion, on due notice, to order a party to give to the other an inspection and copy, or permission to take a copy of any books, papers or documents in his possession or under his control, containing evidence relating to the merits of the action or the defense therein.

If it is established to the satisfaction of the Court or Justice, that any book, paper or document is in the possession or under the control of the adverse party, containing evidence relating to the merits of the action or defense, it seems to me free from doubt, if it is otherwise competent evidence, that its production for inspection by the opposite party, may be compelled. The power conferred by the Code is in addition, and auxiliary to the provisions of the Revised Statutes, (Gould v. McCarty, 1 Kern., 575,) and was intended, I think, both to simplify the proceedings and enlarge the remedy.

The agreement, the production of which was sought by this motion, may be the very foundation of the action, and the plaintiffs having proceeded upon the supposition that the contract was by parol, ought not, in justice, to be met at the trial by an objection, fatal, perhaps, to their suit. Besides, the agreement was the agreement of both parties, and, upon well established principles, it belongs as much to the one party as the other.

The order appealed from should be reversed; ten dollars costs of the plaintiffs’ on the motion at Special Term, to abide the event of suit.

An order is to be entered requiring the defendant or his attorney, to give to the plaintiffs or to their attorney, within ten days from the entry of the order and service of a copy thereof, an inspection and copy, or permission to take a copy of the agreement .or memoranda .of agreement, for the sale and delivery of the hats mentioned in the complaint in this action. The order to be settled on two days notice to the defendant’s attorney.


text:
    James McCreery et al., Plaintiffs and Respondents, v. James C. Willet, Sheriff of the City and County of New York, Defendant and Appellant.
    It was decided in this case that, in a suit against the Sheriff in the nature of debt, for escape, insolvency of the debtor is not matter of defense or mitigation of damages.
    Heard, at Special Term, before Bosworth, Ch. J., January, 1860; see the decision reported, 4 Bosw., 643.
    Heard, in General Term, before Bosworth, Ch. J., Barbour and Monell, J. J.,
    April 14, 1862;
    decided, May 10, 1862.
    See the point decided, in the index to this volume, under the title Escape.
   See the appeal reported at length, with the opinion of the Court at General Term, in 23 How. Pr., 129.


author: Moncrief, J. Boswobth, Oh. J.

text:
    Eugene Guilhon et al., Plaintiffs and Respondents, v. Gabriel and Santiago Lindo, Defendants and Appellants.
    1. The Code of Procedure does not authorize the issue of»aa attachment, as a provisional remedy in an action of an equitable nature, where the amount which the plaintiffs may recover must-be ascertained by an accounting, and the costs are in the discretion of the Court,
    2. Thus, where in action for an injunction against the infringement of a trade mark, and for damages, an attachment was issued; Held, that it was improvidently granted, and must be set aside. Such an action is not “ an action for the recovery of money" within the meaning of section 227 of the Code.
    (Before all the Justices.)
    Heard, April 26, 1862;
    decided, May 10, 1862.
    In this action, an attachment was issued against the defendant, Santiago Lindo, upon the ground that he had absconded concealed himself to avoid the service of a summons; a motion being made to set aside such attachment, the motion was denied and an appeal is taken from such order.
    It was conceded that the facts stated in the affidavit, upon which the attachment was granted, • established the grounds upon which it was issued. The nature of the action sufficiently appears from the opinions.

      John Cook, for defendants, appellants.
    I. To lay the foundation of an attachment under- the Oode, the claim must arise out of some contract or obligation arising between the parties, and without that fact appearing from the plaintiffs’ affidavits, no claim can be made under section 227, as that section inevitably means that the claim must be a substantial one, arising out of some transaction had between the parties, aúd not upon any fictitious, visionary or imagined or supposed damages arising out of an alleged tort, which is the case in this complaint. (6 Abbotts’ Pr., 357.)

      II. All the authorities referred to at pages 362,364-367, 369-371, and also the sections of the Code, under the head of Attachments, referred to, speak of the defendant as a debtor, or of an actual debt existing in fact'between the o parties at the time the officer grants the attachment.
    The complaint in this action does not claim, or pretend to claim that the plaintiffs are creditors of the defendants, nor is it pretended in the complaint or on the affidavits on which the attachment was issued, that the defendants, or either of them, are in any way or manner indebted to the plaintiffs ; on the contrary, the complaint and affidavits of the plaintiffs show clearly that there is no actual claim on the part of the plaintiffs against these defendants.

      H. D. Sedgwick, for plaintiffs, respondents.
    I. The affidavits on which the attachment was founded, exactly complied with section 229 of the Code, and contained all the three applicable requisites prescribed by that section, properly established as matters of fact.
    (a.) It appeared by the affidavits, that a cause of action exists against the defendant.

      (b.) They specified the amount of the claim, and the grounds thereof.
    (c.) They showed that the defendant had departed from this State with intent to avoid the service of a summons. (Code, §§227,229; Gould v. Bryan, 3 Bosw., 626; see Iowa Code, 1851, §§ 1846, 1849, 1851; Laws Tenn., 1843, ch. 29; Thompson v. Carper, 11 Humph., [Tenn.,] 542, 545.)
    II. It is wholly immaterial, under the Code, what is the nature of the cause of action existing in favor of the plaintiffs against the defendant.
    The order appealed from should be affirmed with costs. (Floyd v. Blake, 19 How. Pr., 542; 11 Abbotts’ Pr., 349; Ward v. Begg, 18 Barb., 139, 142; Hernstien v. Matthewson, 5 How. Pr., 196; see § 135 of Code [of 1849, and present ( Code, subs 2 and 3,] and compare with §§ 227,229, of Code; 2 R. S., 3, [5th ed. 3 R. S., 79,] §§ 1-4.)
   Moncrief, J.

An attachment may issue “in an action for the recovery of money.” (Code, § 227.) The affidavit on which the warrant may be issued must state enough to make it appear “that a cause of action exists against such defendant, specifying the amount of the claim, and the grounds thereof, and such facts and circumstances as will establish that the defendant is concealed,” &c., &c. (§ 229.)

Assuming that this action is for the recovery of money, it being an action claiming a perpetual injunction restraining the defendants from using their trade mark, &e., (2 Sandf., 599, 619,) there is no averment in the affidavits or in the complaint, that upon an accounting by the defendants of the goods sold by them, if it be determined that the plaintiffs’ title is established, any indebtedness will appear, or the means by which thé Judge could ascertain such amount; nor is there any allegation of damage sustained by the plaintiffs by reason of the acts of the defendants ; the damage, if any, will be the profits, if any, of which they have been deprived by means of the defendants’ fraud.. In consequence of the difficulty of making out a decree of taking an account of profit, such an account is rarely taken. (3 Myl. & Cr., 428.)

The action, however, is not for the recovery of money; it is true that the plaintiffs have asked that the defendants make an account of their sales, but this is the usual form of prayer in the bill formerly filed in the Oourt of Chancery, and addressed solely to its equitable power," the decree providing for a reference to a Master, &c. (2 Sandf. Ch., 611, 619.)

The warrant of attachment requires the Sheriff “to attach and safely keep all the property of such defendant within his county, or so much thereof as may be sufficient to satisfy the plaintiffs’ demand, together with his costs and expenses, the amount of which must be stated in conformity with the complaint.”

In the present action, costs are in the discretion of the Court; (Coats v. Holbrook, 2 Sandf. Ch., 598; Code, § 306;) and tMs action is an equity action and triable by the Court without a Jury.

The present action not being an action for the recovery of money, and the affidavits not showing that a cause of action exists (therefor) against the defendants, “ specifying the amount of the claim” and the grounds thereof, the attachment was improvidently granted, and it should be set aside. The order denying the motion to vacate and set aside the attachment was therefore erroneous, and must be reversed, but without costs of this appeal; ten dollars costs of motion to discharge the attachment to the defendant, Santiago Lindo, to abide the event of the action.

Boswobth, Oh. J.

Is this “ an action for the recovery of money,” within the meaning of § 227 of the Code?

The various provisions of the chapter in relation to attachments, show that an action at law, to recover money as its main object, was contemplated. The judgment is to be satisfied out of the property attached, by selling real and personal property on execution. (Code of Pro., § 237.) Enough must be attached to satisfy the “plaintiff’s demand^ (Id., § 231.) The affidavit for an attachment must specify “the amount of the claim and the grounds thereof.” (Id., § 229.) In an action for the recovery of money, if a plaintiff recovers $50 or more, he recovers costs, as a matter of right, (Id., § 304, sub. 4;) if he fails to do this, he must pay costs.

This action is an equity suit, is triable by the Court, (Id. §§ 253, 254,) and the costs are in the discretion of the Court. (Id., § 306; Buchanan et al. v. Morrell et al., 13 How. Pr., 296, decided under the Code as amended in 1851.) I think the attachment was improvidently issued.

Order reversed, without costs of appeal to either party, with $10 costs of motion to defendant to abide event;


author: By the Court — Bosworth, Ch. J.

text:
    Eugene Guilhon et al., Plaintiffs and Respondents, v. Santiago Lindo, (who was impleaded with another,) Defendant and Appellant.
    1. In an action brought to enjoin the defendants from infringing plaintiffs’ trade mark, an answer alleging that the defendants had sold only a very small and specified quantity of merchandise bearing the label complained of, and that the same was sold to the plaintiffs’ agent at their request, and that the use of the label was accidental, without intent to defraud plaintiffs or imitate their label, and did not represent the article to be the plaintiffs’, is not frivolous.
    2. In action of this nature the judgment cannot direct the damages to be assessed by a Sheriff’s Jury. The proofs must be taken by the Court or a Referee.
    3. Where, in such a case, judgment is ordered for frivolousness of defendant’s pleadings, the judgment should either be in the form proper where nothing is left to be ascertained but the amount of damages, or it should simply adjudge the pleading frivolous and leav| the plaintiff to apply to the Court for the relief he seeks.
    Before all the Justices.)
    Submitted, April 28, 1862;
    decided, May 10, 1862.
    This action, as is stated in the foregoing report of another appeal therein, was brought to restrain the infringement of a trade mark adopted by the plaintiffs in the sale of wine.
    The complaint charged that the defendant, Santiago Lindo, fraudulently put up and offered for sale, and now offers for sale under the name and trade marks of the plaintiffs’, an article in imitation of the St. Julien Claret Wine of the plaintiffs’, with intent to deceive and defraud the public, and the buyers and consumers thereof, &c., under the belief that it is the genuine wine or liquor of the plaintiffs’, to their great injury, and that their profits have been greatly diminished, if not destroyed. The demand for relief was for an injunction, and 5,000 dollars damages.
    To the above charges, Santiago Lindo answered, that at the commencement of the action he had sold only two boxes of wine, containing 24 bottles, and that to the plaintiffs’ agents, Valerio & Fassin, at their request, and that the use of the said , label was purely incidental and accidental, and caused by a third party, without any intent or knowledge of defendant to injure or defraud the plaintiffs, or to imitate or counterfeit their said label, and did not represent said wine or said label to be the plaintiffs’. The answer also denied that the plaintiffs have sustained the damages alleged under their said complaint, or any damage whatever, and alleges that since the commencement of this action, defendant has wholly discontinued the use of the said label.
    The answer further stated that defendant did not know that any such persons as plaintiffs exist, and that the plaintiffs’ agent named in the complaint had not any legal power or authority to commence this present action.
    The plaintiffs moved for judgment on the answer as frivolous; and the motion was heard at Special Term, before Mr. Justice White, ^on the 27th of February, 1862, and granted. The order entered, directed plaintiffs’ damages to be assessed by a Sheriff’s Jury. The defendant appealed from the order to the General Term.

      John Cook, for defendant, appellant,
    insisted that the denials in the answer took material issues, which defendant had a right to raise; and that the allegations as to plaintiffs being fictitious persons, or the suit being brought without authority, were sufficient; or, if not, that the answer was not frivolous, but the remedy was a demurrer, or a motion to- strike out; and that the issues should-be tried, and not sent before a Sheriff’s Jury to assess-damages.

      H. D. Sedgwick, for plaintiffs,-respondents.
    I. The? questions as to the existence of the plaintiff, and’ the authority for bringing this suit, are not properly pleaded, do not relate to the cause of action, and raise no issue, in form or in fact.
    II. The answer admits- the plaintiffs’ cause of action against him. (Code, §§ 2, 218, 219, 220; Williams v. John

      son, 2 Bosw., 1; Amoskeag Man. Co. v. Spear, 2 Sandf. Ch., 603, 611; Coats v. Holbrook, Id., 586; Taylor v. Carpenter, 11 Paige, 293; Partridge v. Menck, 2 Barb. Ch., 101; Clark r. Clark, 25 Barb., 76; Gillott v. Kettle, 3 Duer, 624; Lemoine v. Gauton, 2 E. D. Smith, 343; Dale v. Smithson, 12 Abbotts’ Pr., 237; Blofeld v. Payne, 4 Barn. & Adol., 410; 24 E. C. L. R., 87; Davis v. Kendall, 2 R. I. R., 566.)
    2. The only defense suggested by the answer is matter going in mitigation of damages. Such matter does not enter into the cause of action, is not traversable, and (except by statute in the case of actions of slander, [Code, § 165,]) never raises an issue in the cause. It should be tried by a Sheriff’s Jury, which is the proper tribunal for the computation and assessment of damages.
    The order for judgment on account of the frivolousness of the answer, and directing the plaintiffs’ damages to be so assessed, was, therefore, right, and should be affirmed with costs. (Code, §§ 168, 149, 247; Bates v. Loomis, 5 Wend., 134; Gilbert v. Rounds, 14 How. Pr., 47; Lane v. Gilbert, 9 Id., 150; Saltus v. Kipp, 5 Duer, 646; Rosenthal v. Brush, 1 Code R., [N. S.,] 228; Connoss v. Meir, 2 E. D. Smith, 314; Hackett v. Richards, 3 E. D. Smith, 13.)
    II. That a portion of the relief claimed is equitable does not affect the question. Ho distinction exists under the Code as to the procedure in reference to an insufficient answer, whether the cause of action is legal or equitable. Ho exception is made. (Code, Preamble, and § 247.)
    And the rule was similar in equity. (Story’s Eq. Pleadings, §§ 852, 649.)
    The disposition of the issue, as to each defendant is, or may be, separate, although there can be but one final decree in the cause, which will be settled and entered after the issues are severally disposed of.
   By the Court — Bosworth, Ch. J.

Is the answer frivolous ?

It avers that, up to the time this suit was brought, only two boxes of wine (of 24 bottles each) had been sold, and that these were sold to the plaintiffs’ agent, at their request; that the use of the label was accidental, “ without any intent or knowledge of this defendant to injure or defraud the plaintiffs, or to imitate or counterfeit their said label, and did not represent the wine or the label to be that of the plaintiffs.”

This denies all fraudulent intent, and, if true, is substantially an answer to the' claim for damages. These allegations, if true, are material on the question of costs.

That part of the order which directs the damages to be assessed by a Jury is clearly wrong. (Oode, § 246, sub. 2.) The proofs must be taken by the Oourt, or a reference be ordered. (Id.) It is not an action to recover money only, or specific real or personal property with damages for withholding it, nor is the examination of a long account involved. It is only in these actions that damages can be assessed by a Sheriff’s Jury. (Id.)

The Oourt should either have pronounced the proper judgment, leaving’ nothing to be ascertained but the amount of the damages; or else it should have simply adjudged the answer frivolous, and then left the plaintiff to apply for the relief demanded by the complaint, as prescribed by section 269 of the Oode. (12 How. Pr., 342.)

Order reversed.


text:
    The Bank of Mutual Redemption, Plaintiffs and Appellants, v. William Sturgis, Jr., et al., Defendants and Respondents.
    1. Where, in case of assets in controversy among creditors, a Receiver has been appointed in a suit brought by a part of the creditors, other creditors, prosecuting another suit, which seeks to appropriate and apply the assets, .to the exclusion of the rights claimed by the former, cannot have a second Receiver appointed, unless the first Receiver, or the creditors he represents, are made parties to the latter action, and have opportunity to be heard on the question.

      :2. Thus, where the plaintiffs held bills drawn by R., upon, and accepted by S. & Co., his factors, who had a lien upon the general residue of goods in their hands for such acceptances and other advances, and, in actions on the bills against R., the plaintiffs issued attachments against his property, and levied on the goods in the hands of S. & Go., who certified to the Sheriff that they had no property of R; and the plaintiffs, after obtaining judgments, and their executions being returned unsatisfied, brought a creditor’s suit for the benefit of themselves and all other creditors similarly situated, seeking to reach the goods and have them applied to pay their judgments: ^Sdd, that as it appeared that other creditors, holding such bills, with an equal right to have the assets applied to their payment, had already had a Receiver appointed in an action on their own behalf, the Court should not appoint a second Receiver, at the instance of the present plaintiffs.
    3. Even if S. & Co., should be deemed to have lost their lien as factors, by certifying that they had no goods of R., this cannot affect the right of other creditors, who, before the certificate was given, had acquired an equitable right to have the assets applied to pay aceeptancesdield by them.
    (Before all the Justices.)
    Heard, April 26, 1862;
    decided, May 24, 1862.
    The plaintiffs, a corporation of the State of Massachusetts, brought this action, on behalf of themselves and certain other creditors of Robert Rennie, against William. Sturgis, Jr., William Shaw, Henry Shaw and Latimer Bailey, composing the firm of Sturgis, Shaw & Go., and said Repnie. The plaintiffs had recovered four judgments against Rennie, in the Supreme Court of this State.
    The actions in which the plaintiffs recovered such judgments, were instituted to recover the amount of certain bills of exchange drawn by Rennie, and accepted by his co-defendants (Sturgis, Shaw & Co.) Such acceptances were given pursuant to a course of dealing between them, by which course of dealing Rennie, who was a manufacturer, sent his products to Sturgis, Shaw & Co., who were commission merchants, to be sold, and the latter advanced their acceptances and cash, not on specific consignments, but ou the general residue of merchandise in their hands sometimes exceeding their value. Having made large advances, by these acceptances, and otherwise, they claimed the goods in their hands, as well as a mortgage which Rennie had assigned to them, as security therefor.
    The plaintiffs were originally holders of some such acceptances of Sturgis, Shaw & Co., which they exchanged for other similar ones at longer periods, on which they brought the four actions, and recovered their judgments, before mentioned, against Bennie. At the commencement of those actions, the plaintiffs issued attachments against the property of Bennie, and notices thereof were served upon the defendants, Sturgis, Shaw & Co., who gave certificates to the Sheriff, stating'that they had no property of Jennie’s in their possession, although they had in their posession a large amount of goods consigned to them by him. After the judgments were recovered, executions were issued thereon, and returned unsatisfied. Both Bennie and Sturgis, Shaw & Co. have become insolvent.
    The plaintiffs then brought the present action, alleging in their complaint that Sturgis, Shaw & Co., fraudulently certified they had none of Bennie’s property, although the only interest they had in such goods, &e., in their possession was to apply the same to the payment of the plaintiffs’ claim on their acceptances, and to those held by other similar creditors. The complaint also stated, that the plaintiffs brought the action “on behalf of themselves, and of all other creditors of said Bennie, whose debts against the said Bennie, or the defendants in this cause, are entitled to satisfaction out of the said goods, and who may come in and contribute to the expenses of this action.”
    Sturgis, Shaw & Co. denied all fraud, and stated that the certificate was given under advice of counsel, and that Bennie was indebted to them for a considerable amount over and above all the acceptances, for which amount, as • well as to secure payment of the acceptances, they had a lien. They further stated, that they desired the proceeds,, subject to such balance for cash, as may be due to Sturgis,. Shaw & Co., to be applied equally towards the payment of all of said outstanding acceptances, including those-held by the plaintiffs, and that the plaintiffs should not, have a preference over the other holders of said acceptances, and they were advised and believed that the plaintiffs had no such preference.

      It was also shown, On the part of the defendants, that after the attachments, or some of them, had been served, and on or before the 20th day of February, 1862, in a certain action in this Court, wherein Gustavus A. Scheldt and another were plaintiffs, and William Sturgis, Jr., and others were defendants, Ogden Haggerty was appointed Receiver of the goods, mortgage* &c., mentioned in the complaint in this action.
    On this state of facts, the plaintiffs claimed that, as judgment and attaching creditors, they were entitled to have the obstruction interposed by the claim of Sturgis, Shaw & Co., to hold the assets as security for advances by them, removed, and to be enabled to sell the same by an execution on the judgments, or to have the goods applied to the payment of their debts, and that of others standing in like attitude to them.
    The plaintiffs moved for an injunction and .Receiver," before Mr. Justice Robebtson, who denied the motion conditionally, he holding, that plaintiffs might have enforced their equity in favor of all holding similar acceptances; but that they had no separate right, and as those tvho had no judgment or attachment could not come iüto this action without sustaining plaintiffs’ claim, they must elect either to strike out their claim to preference over other creditors holding acceptances, or to strike out all that professed to make the action for their benefit. The order entered accordingly declared, that the plaintiffs’ motion for an injunction and Receiver was denied, with seven dollars costs to-the defendants, “ unless the plaintiffs, in ten days after the entry of this order,, pay suQh costs, and elect to amend the complaint, iy strildny therefrom all averments now contained therein respecting the issuing of attachments and the proceedings thereon, against the defendants, or either of them, and also all averments now contained therein respecting the recovery of judgments and the proceedings thereon against the defendants, or either of them; and also amend the said complaint by inserting therein an averment that this action is brought on the behalf, and for the equal benefit of themselves and all other holders of acceptances of Sturgis, Shaw & Co., given or accepted in like manner with those held by the plaintiffs ;” and, if they made such amendment, the motion was granted, with the usual provisions as to appointing the same person as Beceiver who had been already appointed. And it was further provided, that if the plaintiffs should not amend as above required, they might, at their option, in ten days after the entry of the order, amend the complaint by making the same an action in form for their own benefit exclusively as attachment, judgment and execution creditors of the defendant, Bobert Bennie, in respect to the property mentioned in the complaint; and that, upon so amending, the motion for an injunction and Beceiver as against Sturgis, Shaw & Co., be denied, but that as against Bennie it be granted.
    The plaintiffs appealed to the Court at General Term.

      William Curtis Noyes, for plaintiffs, appellants,
    on the questions of Sturgis, Shaw & Co.’s lien, and the waiver of it by their certificate, and plaintiffs’ right to levy, cited, Russell on Factors, 38, 191-213; Bell v. Palmer, (6 Cow., 128,) Marfield v. Goodhue, (3 Comst., 62,) Warner v. Martin, (11 How., [U. S.,] 209;) Cross on Lien, 45; Boardman v. Sill, (1 Camp. N. P., 410,) Jacobs v. Latour, (5 Bing., 130,) Thompson v. Trail, (6 B. & C., 36.) And to the point, that equity would compel the factors to resort first to the mortgage for their own claim, leaving the- fund produced by the goods to be applied to the acceptances, he cited Farmers’ Loan & Trust Co. v. Walworth, (1 Comst., 433.)

      Augustus F. Smith, for defendants, respondents.
    I. The holder of a consignor’s draft on the factor has no equity enabling him to sue for a Beceiver of the consigned property, upon the mere insolvency of the parties to the draft. (Marine Bank v. Jauncey, 3 Sandf., 257.) There is no such equity even in case of partnership debts. (Robb v. Stevens, Clarke, 191; Kirby v. Schoon

      maker, 3 Barb. Ch., 46; Ketchum v. Durkee, 1 Barb. Ch. R., 481.)
    II. Plaintiffs have not acquired any preference over other holders of drafts. Their attachments and executions bind nothing more than if they had sued on any other indebtedness.
    III. It being conceded that they have no preference at law, this action being an attempt to gain a preference in equity, the maxim that “equality is equity ” is an answer. (Story’s Eq. Jur., §§ 557, 554; De LaVergne v. Evertson, 1 Paige, 181.) .
    IV. The plaintiffs having sued for others as well as themselves, cannot claim a preference over such others. (Code § 119; Smith v. Lockwood, 1 Code R., N. S., 319; McKenzie v. Lamoureux, 11 Barb., 516; Habicht v. Pemberton, 4 Sandf., 657;. see also LaChaise v. Lord, 1 Abbotts’ Pr., 213 ; S. C., 10 How. Pr., 462.)
    V. The giving of the certificate does not amount to a waiver or forfeiture of the lien. (Story’s Agency, § 367; Dunlap’s Paley’s Agency, 217; Nash v. Mosher, 19 Wend., 431; Russell on Factors,. 216; Scarfe v. Morgan, 4 M. & W., 270.)

      J. M. Van Cott, for appellants,
    in reply, urged that the factors here were disentitled to use their lien, founded upon liabilities for Bennie, in hostility to their creditors’ legal process to enforce that identical lien. The relief sought by plaintiffs, in the application of the goods to pay the drafts, would exonerate the factors from the very liability ‘winch was the ground of their alleged lien.
   By the Court—Bosworth, Ch. J.

1st. Sturgis, Shaw & Co. have a right to apply the consigned goods to pay their acceptances, unless they have lost that right by reason of the certificate they gave to the Sheriff, when the latter levied the attachments. (Russ, on Factors, 211; 5 B. & Ald., 27; Parsons’ Merc. Law, 161.)

2d. If they have not thus divested themselves of that right, the plaintiffs had no right to take and remove the consigned goods, without paying the amount of Sturgis, Shaw & Co.’s lien thereon. (Brownell v. Carnley, 3 Duer, 9.)

3d. The equitable right of Scheldt & Oo., and others similarly situated, to have the proceeds of the eonsigned goods applied to pay the acceptances they hold, (if they ever had such a right,) became perfect before Sturgis, Shaw & Oq. gave to the Sheriff the certificate which it is claimed put an end to their lien. It is not easy to see how the giving of that certificate can affect rights which had previously accrued to third persons, who had no agency or participation in that act.

4th. The plaintiffs are not entitled, in this action, without other parties are brought before the Oourt, to a receivership in hostility to, or that can interfere with that already existing. The Receiver who has been appointed and has possession of the property, and the parties he represents, are not, nor is either of them a party to this action,

The Receiver or those parties should he made parties to this action, and be beard upon the question, before a Receiver can properly be appointed in aid of a suit which seeks to appropriate and apply the property, to the exclusion of the rights claimed by the parties represented by the Receiver of the property already appointed,

The order must be affirmed,' with $10 costs to abide the event.


text:
    Frederick F. Betts, Plaintiff and Respondent, v. John H. Bache, Defendant and Appellant.
    It -was decided in this case, that a complaint for money lost at play, stating that on a day named, defendant received a specified sum of money belonging to or on account of the plaintiff, and which is now due him, claiming judgment therefor, is sufficient on demurrer.
    Heard, at Special Term, before Robertson, J., in May, 1862.
    Heard in General Term, before Bosworth, Ch. J., Moncrief, Robertson, Barbour and Monell, J. J., May 31, 1862;
    decided, June 7, 1862.

      See the point decided, in the index to this volume, under the title, Pleadings.
   See the decisions at Special Term, and on the appeal, reported at length, in 14 Abbotts’ Pr., 279.


author: Robertson, J.

text:
    William Tracy, Plaintiff, v. The New York and Harlem Railroad Company, Defendants.
    Where defendants had appealed to the General Term from an order of the Special Term, denying a new trial, under a stipulation that the appeal be heard there without judgment or security; and after the order was affirmed upon the appeal, judgment was entered, and the defendants” appealed from the decision of the General Term to the Court of Appeals; —Held, that they were not entitled to have the judgment amended, by adding that exceptions had been heard and overruled by the General Term. If defendants feared the Court of Appeals would not regard the exceptions, they should take an appeal from the judgment, and the exceptions would necessarily form part of the judgment record.
    At Special Term, before Robertson, J.,
    January, 1863.
    Motion to correct or amend the recitals of the judgment which had been entered in this case, in favor of plaintiff, after a new trial had been denied, and the order denying it affirmed by the Court, at General Term, on appeal. The decision of that appeal is reported, ante, p. 396.
    The facts relative to the present motion will sufficiently appear in the opinion.
   Robertson, J.

This action was brought to recover personal property, claimed to be wrongfully detained. The plaintiff recovered possession of it after the delivery of a requisition to the Sheriff to take it. The plaintiff obtained a verdict. The Jury assessed the value of the property at one thousand dollars, and also twenty-five dollars as damages for the detention. A motion was made for a new trial at Special Term, which was denied, and the order denying it was affirmed, on appeal to the General Term. After the decision at Special Term, the parties stipulated that “ the case on appeal to the General Term be taken “ and decided ” at such term, “ without judgment or secu- “ rity.” Ho judgment was ever entered until after the decision at General Term; the judgment then entered on the verdict recites the making and denial of the motion for a new trial, and the affirmance of such denial on appeal, and adjudges that the plaintiff recover the possession of the property claimed, and the sum assessed for damages and costs, as adjusted.

The defendants now move to amend the judgment roll, by adding to the judgment that “exceptions had been fully argued before the General Term of the Court, and denied and overruled, and judgment ordered for the plaintiff thereon, and that the decision ” of the Special Term “ should be affirmed.”

No judgment was, or could have been given at General Term, except on the order denying anew trial, which, when the case contains exceptions, includes their examination. The Code, (§ 265,) provides that a motion for a new trial on a case or exceptions,-must first be heard and decided at Special Term, except in certain specified cases, of which this is not one. Another provision, 281,) requires exceptions and other papers to form part of the judgment roll. On an appeal from the judgment, the defendants have a right to have the exceptions considered. (Jellinghaus v. The New York Insurance Co., 5 Bosw., 681.) And although it would have been an answer to the motion for a new trial, if judgment had been perfected before the motion was heard; (Ib.) yet, after the motion has been made and denied on the merits, and the appeal from the order denying it, also heard, no objection of judgment having been entered could be taken in the appellate Court; and the record would show it was entered after the hearing of the motion. The appellate Court will hear the appeal from the judgment, at General Term, affirming the order denying a new trial on the same papers on which such new trial was moved, which include the exceptions. Judgment for the plaintiff on exceptions, at General Term, could only be ordered where they had been directed to be first heard there, which was not the case here.

If there is any ground for apprehension that the appellate Court will not hear the case, on exceptions, the defendants can also appeal from the judgment, and the exceptions, as filed, will also necessarily form part of the judgment record. But I do not see any necessity or propriety in inserting in a judgment at Special Term, on the verdict, that exceptions have been heard at a General Term, and overruled.

As an appeal from the affirmance of the order denying a new trial has been taken, It is not necessary to pass on the question whether an appeal from the judgment is sufficient to carry up such order to the appellate Court, or not. (See Marquart v. LaFarge, 5 Duer, 559; Brown v. Richardson, 1 Bosw., 402.) Possibly an order merely granting a new trial might not be sufficient, without some separate motion to open the judgment, but that is not . material at present. The appeal from the order denying the new trial could have been heard with an appeal from the judgment. (Clarke v. Ward, 4 Duer, 206.) If there is any separate effect to be produced by an appeal from the judgment, in addition to that by the appeal from the affirmance of the order denying a new trial, this Court cannot, by any entry, make one appeal perform both offices.

The title of the summons being incorrect, fuust of course be changed. The residue of the motion is denied.


author:
Robertson, J.
      Bosworth, Ch. J.

text:
    Grandison F. Read et al., Plaintiffs and Respondents, v. John R. Worthington et al., Defendants and Appellants.
    1. An assignment of property in trust for the benefit of creditors, which contained the usual recital, that the assignors were “ unable to pay their
      debts," and were desirous of “ dividing their property equitably among their creditors," directed -the assignees to pay to persons named in a schedule annexed, “ the sums of money which are or may become due to them ” from the assignors, * * * * and afterward, “ to pay all the rest, residue and remainder of the creditors of said firm what may become due to them.”

      Held, 1st. That the assignment was not fraudulent and void on the ground that under its provisions a preferred creditor could purchase other demands than those he held at the time of the assignment, and thus secure a preference for them also; for the provision giving a preference to the specified creditors, for sums which “ may become due to them," should be construed to apply to actual debts already owing to them, or contingent liabilities already incurred by them, at the time of the assignment, and thereafter to become payable.
    2d. Nor was the assignment void, as excluding from the benefit of the second clause creditors whose debts had become payable at the time of making the assignment. The direction to pay. the rest of the creditors • such sums as “ may become due them,” cannot be construed to exclude the payment of claims already due.
    2. In construing an assignment of property in trust, for the benefit of credit- • ors, as well as other written instruments, the general intention of the parties is to govern; and if its language - can be satisfied by a construction that will support the instrument, a construction should not be given that will defeat it; and fraud is not to be presumed, but must be proved by the party alleging it.
    3. An assignment for benefit of creditors is not void for securing and giving á preference to the payment of debts not yet due. Securing such a debt does not hinder or delay creditors, for the assignees may retain in their hands sufficient to meet it, and distribute the residue without delay.
    4. An allegation in the complaint that an assignment, which the plaintiffs seek to set aside, was made with intent to hinder, delay and defraud creditors, &o., is sufficiently put in issue by a .denial that the assignment was made with inteiS; to hinder and defraud creditors.
    5. Under the act of 1860, (Laws of 1860, 594,) an assignment for benefit of creditors is not void because of defects in the inventory filed and the bond given by the assignee.
    (Before Bosworth, Ch. J., and Moncrief, Robertson, White and Barbour, J. J.)
    Heard, June 7, 1862;
    decided, June 28, 1862.
    This action was a judgment creditors’ suit, brought by various judgment and attachment creditors of the firm of O. W. & T. J. Moore & Co., to set aside an assignment by them to the defendants, Worthington and Knapp. The plaintiffs were, Grandison F. Read, James Benkard and Benjamin H. Hutton; James H. Black and Alexander Guild; William W. Stone, George R. Bowman and Robert Bliss; Charles H. Wilmerding, John 0. Wilmerding, Thomas A. Wilmerding, George G. Wilmerding and William S. Mount; James Haslehurst, Bryan H. Smith and Joseph Haslehurst; and the defendants were, John R. Worthington, George H. Knapp, James Myers, Ohauncey W. Moore, John T. Moore, William M. Robbins, Emmor K. Haight, Joseph B. Lockwood, Joseph ST. Ely, Ohauncey W. Brown and William R. Dean. The present appeal was taken from an order made at Special Term, appointing a Receiver of the assigned property, and enjoining the defendants from interfering therewith; the motion on which such order was made was founded on the complaint duly verified, the affidavits of B. L. Johnson and the plaintiff, Read, and in opposition thereto were read the affidavits of the defendants and upwards of sixty of their creditors, and a certified copy of an instrument of confirmation.
    In addition to the usual averments of the recovery of the judgments and issuing of executions and attachments, and their return, the complaint alleges the possession and concealment by the defendants of divers evidences of debt, choses in action, effects, and documents and account books in relation thereto, which they refused to deliver to the Sheriff of the Oity and Oounty of Hew York, who held such executions and warrants of attachment, and an application Iby such Sheriff to the assignees in question, in order to levy on the assigned property. It further alleges, that the Sheriff, at the time of such application, left with such assignees a certified copy of such warrant, and a notice, wherein he stated that he attached the property in their hands, demanded a delivery to him of the evidences of debt, choses in action and effects held by them, together with a certificate designating the amount and description of property held by such assignees for the benefit of the debtors, and the debts owing them, and claimed such assignment to be fraudulent and void; but such assignees refused to deliver up the articles demanded, and falsely certified that they had no property belonging to the debtors. It also alleges, that the seven defendants, G. W. and J. T. Moore, Robbins, Haight,. Lockwood, Brown and Dean, composing the firm of O. W. & J. T. Moore & Co., who are the judgment debtors, in 1861, on the 4th of December, executed and delivered to the defendants, Worthington an-d Knapp, and acknowledged before a proper officer, a certain instrument which is set forth verbatim therein. This instrument, to which the defendants, members of the firm of O. W. & J. T. Moore & Go., were parties of the first part, and the defendants, Worthington and Knapp, parties of the second part, is under seal, and dated the 1st of December, 1861. It recites, that the parties of the first part had become “insolvent and “unable to pay their debts, and were desirous of dividing “their property equitably among their creditors,” and for the expressed consideration of one dollar and other good considerations, assigns all the property of the parties of the first part, and each of them, of every kind, to the parties of the second part, to hold upon certain trusts, which were, (first,) to collect and convert into money such assigned property; (secondly,) therewith to pay the legal expenses of drawing such assignment and executing such trusts; then, (thirdly,) to pay to persons named in an annexed schedule “ the sums of money which are, or may “become, due them from the assignors, not exceeding, “ however, the sums set opposite the names, respectively, “ of those who had any so set, if so much should become “ due them” from the assignors, or pro rata, in case such proceeds are insufficient to pay the whole; and lastly, (fourthly,) to pay all the rest of the creditors of the firm what might become due to them. In such schedule six persons, of whom the defendant, Knapp, is one, have no sums set opposite to their names. The assignment itself was recorded in Kings Oounty, on the 5th day of December, and a verified inventory of the assigned property was presented to the Oounty Judge of that Oounty, by whom, on the same day, an order was made, requiring the assignees to give security in the sum of $230,000, with sureties justifying in double that sum. On the 20th of that month, a bond in the penal sum of $230,000 was presented to such Judge, signed by the assignees and by four sureties, Hoyt, Sprague, Worthington and Bobbins, but purporting, in the body thereof, to be executed by a Mr. Bichards; it recited the order and assignment, and was conditioned, as required by law, for the due performance, by the assignees, of their duties. Hoyt justified in the sum of $160,000, Sprague in the sum of $60,000, and Messrs., Worthington and Bobbins in the sum of $40,000 each, making $400,-000. Such bond was duly acknowledged, approved and filed. The foregoing facts are set out in 'the complaint.
    The complaint specifies as defects in such inventory its fraudulent omission of property, particularly land on Wabash avenue, Chicago, and an interest of John T. Moore in a firm of Hanford & Browning; also, its want of particularity in describing what was mentioned”; its undervaluation ; its omission of the names and places of residence of creditors and sums due to them, of the nature of the debt and demand in each case, of the true cause and consideration of such indebtedness, the place where it arose and the collateral securities given therefor; and that the debts of the two creditors, the plaintiff Bead and a Mr. Todd, are not properly set out therein. It does not, however, specify what names were omitted, or what the debts were, the particulars of which such inventory fails to give. The complaint also alleges the sureties jn the bond not to be sufficient security for the performance of the duties of the assignees by them, and their justification to have been insufficient, as not amounting to the sum required by the order. It also claims the bond executed by them to have been void by the omission of its execution by Mr. Bichards, and its filing, without the authority of the other obligors, or any waiver by them of its execution by Bichards. It further alleges that five of the persons against whose name no sum was set in the schedule annexed to the assignment were not creditors of the assignors or either of them when it was executed; also, that the assignees were not proper or safe persons to execute the trusts ; that all the assigned property is in the City of Few York, except certain real estate, and that the debts due by the assign- or's were contracted in that city; that the defendant Knapp is a brother-in-law of J. T. Moore, and Worthington a brother-in-law of O.W. Moore; that' the latter resides in Otsego county, having no place of business in this county, and leaves the management of the assignment to the defendant Knapp and the assignors; that Knapp at the time of the,assignment was a. clerk of the assignors, and under their influence, is of no responsibility; that the assignment was made with the intent to retain control of the property, and the bond made defective, so as to involve no liability.
    The complaint also alleges, “that the assignment was “ so drawn,that the persons named as. preferred Creditors “ might buy up notes and debts of the assignors at a great “ discount, and have the same preferred in said assignment “ for the full amount thereof, for the benefit of the “ assignors.” That the judgment debtors in September last, made a pretended sale of their goods and chattels to the defendant Myers, who pretended to take possession thereof,- and thereby prevented the Sheriff from levying thereon. That such sale and all the other acts of the defendants were made with intent to hinder, delay and defraud the plaintiffs and other creditors of Moore & Co., of their just rights; that Myers and the assignees, with the debtors, are about to dispose of such property.
    The whole of the complaint is stated to be upon information and belief, and is verified by several of the plaintiffs with the usual qualification in the oath as to matters So stated. The affidavit of Mr. Johnson is positive, however, as to the assignment, bond, inventory, certificates, affidavit and approval annexed, and also that five of the persons named in the schedule annexed to the assignment without sums set opposite to their names, including the defendant Knapp, are not named as creditors in such inventory.
    The affidavits of sixty creditors of the judgment debtors, holding claims to nearly 400,000 dollars, show the ability, responsibility and character of the assignees, and their confidence therein. On the 10th of March, 1862, the five sureties in the bond filed with the inventory in Kings County, executed an instrument under seal, reciting the execution of such bond by them, and their knowledge that Richards was not to be a party thereto, and that they assented to the delivery of such bond as their joint and several bond, whereby they ratified and confirmed such bond. An affidavit of O. W. Moore, one of the defendants, shows that the sureties in such bond were informed before its delivery and acknowledgment by them, that Mr. ' Richards had declined to execute it, and that they delivered it with such knowledge, and assented to his omission. The' defendant, Knapp, swears that he is surety for the assignors, on an appeal in a suit pending in the Court of Appeals. The defendants, who are members of the firm of O. W. & J. T. Moore & Co., state that the Sheriff of the City and County of Hew York never made the application to them set forth in the complaint. They allege that all their property not exempt from execution were included in such inventory; that it contains the na&e and residence of each creditor, and the sums owing them, with the nature of each demand and debt, the true consideration of such indebtedness, with the place where it arose, and a statement of all collateral securities for their payment, and that Todd was not a creditor for a larger sum than Was stated in such schedule; that the plaintiff, Read, was not mentioned because he was assignee of a demand, and the name of the assignor was inserted; that the five persons whose names have no sum set opposite to them in the schedule annexed to the assignment, were only contingently creditors, having signed certain undertakings for the assignors, and were only mentioned as creditors to protect them against liability, which is corroborated by the affidavit of the several creditors themselves. The assignors deny under oath any fraud in the assignment, and allege a bona fide sale of their stock in trade in September, 1861, to the defendant Myers, for the best price they could obtain, without any intent to hinder their creditors or reserve anything for their own use. An affidavit of the defendant, J. T. Moore, explains the omission of his interest in the firm of Hanford & Browning by a statement of his sale of the same, bona fide, before such assignment. It also contradicts or explains a statement by Mr. Johnson, in regard to the omitting to state the valuation of certain notes of the defendant, Myers, in the schedule, by saying that they were subject to liens, which amounted to more than they were worth.

      C. A. Nichols and L. B. Woodruff, for defendants, appellants.
    1. This action cannot be maintained, and of course an injunction and receivership cannot be properly granted, except the assignment be declared void.
    H. Final approval, by the Judge, of the assignee’s bond was an adjudication which, cannot be disturbed except upon application to him.
    III. Any defects in the bond or schedules, or any matter arising subsequent to the making of the assignment, cannot affect the validity of the assignment, even if the assignors retained property and withheld it from the assignees, as alleged.
    IY. There is no evidence of any intent to allow preferred creditors to buy claims for the benefit of assignors.
    Y. The assignment is not fraudulent because there is a preference made therein in favor of contingent liabilities. (Cunningham v. Freeborn, 11 Wend., 241; Paige v. Wilson, 8 Bosw., 294; Kettletas v. Wilson, 23 How. Pr., 69 ; Hendricks v. Robinson, 2 Johns. Ch., 284.)
    It makes no difference whether, in terms, the contingent creditor, or the contingent liability is preferred. Equity will decree the execution of the trust by applying the trust fund to payment of the liability sought to be secured by it. (Wright v. Morley, 11 Vesey, 22; Keyes v. Brush, 2 Paige, 311; Pratt v. Adams, 7 Paige, 627.)

      C. Bainbridge Smith, for plaintiffs, respondents.
    I. Plaintiffs’ warrants of attachment were issued against the property of the defendants, (C. W. & J. T. Moore & Cq.,) and were in the hands of the Sheriff to be executed, before the making and delivery of their assignment; and it being conceded that they had property in their possession at the time the Sheriff had the warrants, which he demanded, and they refused to deliver, and fraudulently concealed, and secreted the same, with the intent that said Sheriff could not find the same, the Sheriff, by such assignment, was not deprived of Ms lien.
    II. A creditor who has obtained a warrant of attachment against the property of a debtor, wMch the Sheriff is prevented by fraud or otherwise from levying, acquires thereby a lien,, as valid and effectual as in the case of an execution at law, and a Court of equity will enforce it in the same manner for the benefit of creditors. (Falconer v. Freeman, 4 Sandf. Ch., 565; Wilson v. Forsyth, 24 Barb., 109; Scott v. McMillen, 1 Littell, 302; McElwain v. Willis, 9 Wend., 548; Drake on Attachments, 2d ed., 225; Thayer v. Willet, 5 Bosw., 357; Beck v. Burdett, 1 Paige, 305; Clarkson v. DePeyester, 3 Id., 320; Cuyler v. Moreland, 6 Id., 276; Boardman v. Halliday, 10 Id., 223; Forbes v. Logan, 4 Bosw., 482; Spear v. Wardell, 1 Comst., 144; Jacot v. Boyle, 18 How., 106; Morton v. Weil, 33 Barb., 30; Reed v. Stryker, 12 Abb. Pr., 47; Code, § 117.)
    III. The assignment by the defendants C. W. & J. T. Moore & Co. is fraudulent and void. (Jessup v. Hulse, 21 N. Y. R., 168; Dunham v. Waterman, 17 N. Y. R., 19; Nicholson v. Leavitt, 2 Seld., 517; Wilson v. Forsyth, 24 Barb., 105; Rathbun v. Plainer, 18 Id., 272; Burdick v. Post, 12 Id., 168; Seymour v. Wilson, 14 N. Y. R., 567; Dubose v. Dubose, 7 Ala., 237; Gamez v. Lazarus, 1 Dev. Eq., 205; Goodrich v. Downs, 6 Hill, 438; Barney
      v. Griffin, 2 Comst., 365; Doremus v. Lewis, 8 Barb., 124; Dana v. Lull, 17 Verm., 390; Green v. Trieber, 3 Md., 11; Malcolm v. Hodges, 8 Id., 425; Dickson v. Rawson, 5 Ohio N. S., 218; Spring v. Strauss, 3 Bosw., 607.)
   Robertson, J.

The prominent objections against the assignment in this case is, that by a certain construction of its terms, it contains internal evidence of fraud. It. is claimed that the direction in it, to pay Certain persons named in a schedule annexed, the sums of money which rtiay bé or become due to them irom the assignors, will enable such persons to acquire claims belonging to others, and be paid the same in full; while the direction to pay the rest of the creditors, by confining the payment to such as may become due them, excludes the payment of what was due at the time of making the assignment.

There might be some doubt whether the mere fact of naming certain persons to be preferred, provided they should become creditors, would, of itself, make the assignment fraudulent on its face, because the law does not interfere with preferences, provided the debtor does not abuse the right, so as to gain some advantage for himself. The-difficulty would be that some time must be fixed for the acquisition of the claim, or it must be left indefinite; and in either case it would postpone the settlement of the estate and operate to hinder creditors not preferred.

But in this case there is no necessity for such an inquiry;: the terms, of the assignment do not warrant the construction contended' for. By the two parts of the direction for distributing the assets of the assignors, all the creditors, by its terms, are to be provided for.. There- are three general rules of interpretation, which, applied' to this case, show that the intent on the face of the instrument was honest to creditors :• Firstly, that the general intent of the parties is to govern; Secondly, that the leaning of all constructions should be in favor of supporting, and not overthrowing, an instrument;. and, Thirdly, that fraud is not to be presumed, (Kellogg v. Slauson, 15 Barb., 56; Kellogg v.. Barber, 14 Barb., 11; Barnum v. Hempstead, 7 Paige, 569; Kuhlman v. Orser, 5 Duer, 250; Bank of Silver Creek v. Talcott, 22 Barb., 561;) and assignments are subject to no different rules. (Pine v. Rikert, 21 Barb., 469.) Courts are therefore under no obligation to be astute to destroy them.

The recital in this case is that the assignors desire to distribute their property among their creditors; the last part of the direction is to distribute what remains after paying those intended in the first class, among the rest of the creditors; it could hardly be intended by the words, “may become due,” the assignors intended to exclude claims already due. One of the meanings of “become” is “ be,” and it certainly seems to be used in that sense here; it is used twice before, and must once, at least, have been there employed in that sense. By the first direction the assignees are directed to pay to creditors named in the schedule to the assignment, whose debts are due, “ so much as may “become due;” this would involve a contradiction and absurdity if “ become” implied anything more than “be.” But in the first part, by using both “ are,” and “ may become due,” the assignors meant both those past due, and existing liabilities to become due. Lexicographers make “ due” and “payable ” convertible terms, (see Worcester’s Diet.,) and so they are held to be, legally. (Allen v. Patterson, 3 Seld., 476.) It is difficult, in a single word, to express present liabilities, payable hereafter; but “ due,” and “ to become due,” have, by long usage, come to mean liabilities past due and hereafter to grow due. Besides this, no time is fixed in the instrument for the purchase of the claims ; and in such case it is to be understood as speaking as of its date; and “debts” must mean debts at its date, which were to become due afterwards. The assignment, therefore, is not fraudulent and void on this ground.

It is, however, suggested that, even if the preferred creditors were not at liberty to buy up claims to secure such preference, the assignment is void for securing debts not yet due. I have had occasion heretofore to examine this question in other cases, and, after full reflection, can find nothing to justify overthrowing the settled practice in those cases. There is no law which makes a mortgage to secure a surety, by a principal in failing circumstances, void. Whatever debt can be secured by a conveyance direct^ to the surety, may be secured by one to an assignee in trust, nor is there any principle which puts a contingent liability beyond the possibility of being protected. Bor can there be any difference between protecting the surety and protecting the creditor; a principal, desirous of protecting a surety, is not bound, for that purpose, to admit his liability for a debt which he believes himself entitled to resist. The ground upon which the objection is put is fallacious; an assignment to protect a contingent liability no more hinders or delays a creditor than one to pay a debt not yet due, even if the assignees were not authorized to pay such debt before its maturity. The preference given is asserted to be priority in time, and that the assigned estate cannot be distributed until the liability is ascertained, because the assignment says it is first to be discharged. But assignees have a right to retain sufficient in their hands to meet such liability, and distribute the residue, and, after the liability is disposed of, distribute what remains. (Cunningham v. Freeborn, 11 Wend., 241; Hendricks v. Robinson, 2 Johns. Ch. R., 284.) If they refuse to do their duty in this respect, they can easily be compelled to do so by an action.

. It has also been assumed that the defendants, although denying the charge in the complaint, that the assignment in question was made with intent to hinder and defraud -creditors, do not deny the charge that it was made with intent to delay them, and this is founded upon some supposed distinction between delaying and hindering. I should suppose a person who was hindered was effectually delayed; nor do I see how a man can be delayed without being hindered. To hinder any one in his course is, necessarily, to delay him. Hot being able to perceive the distinction, I must hold that none exists. Many such pleon,asms are to be found in old English statutes, where they are introduced for caution’s sake, more than with any precise idea as to what they were intended to effect.

All the objections to the proceedings in reference to the inventory filed, and the bond, are mere matters affecting the assignees, and not the assignment. The statute of 1860, (Sess. L., 1860, 594,) does not provide for the consequences of omitting to comply with its provisions ; it does not seem to have been intended to prevent assignments, but rather to protect those interested under them, and, therefore, probably was intended only to lay the foundation for an application to a Court to compel a compliance, under penalty of removal.

But the objections to the inventory are explained, the bond is shown to have been binding, and the justification of the sureties was approved by the County Judge; therefore there does not appear to be any reason for removal of the assignees and substituting a Receiver in their place.

It is not necessary to discuss the questions raised as to the lien of the attachments, as the assignment was valid.

The denial, in the affidavits of the defendants, of the demand by the Sheriff of notes, debts, credits and effects, and of the allegations of the complaint in. relation thereto, and the averment that they had no property at the time of making the inventory, other than what was mentioned in it* I consider sufficiently takes issue on the allegation that the defendants had goods, notes and other articles when the warrants were issued, and the Sheriff demanded possession of one or more of the defendants and they refused to deliver them; their fraudulent concealment, with intent that the Sheriff could not find them, if not denied, is immaterial by itself; it might make such goods liable, if not claimed by the assignee, but not those' assigned and claimed by them.

The assignment, therefore, not being fraudulent on its; face or made so by extrinsic evidence, and there being no-good cause shown for removing the assignees, or appointing a Receiver, the order made at Special Term should be reversed.

Bosworth, Ch. J.

In construing an assignment of property in trust for the benefit of the creditors of the assignor, as well as other written contracts, all legal rules resorted to for the purpose of aiding in their interpretation, are subordinate to that primary rule which requires that every such instrument shall be construed according to the intention of the parties.” (Platt v. Lott, 17 N. Y. R., 478, 480; Kellogg v. Barber, 14 Barb., 11.)

When the language of an assignment can be satisfied by a construction that will support the instrument, it is well settled that a construction shall not be given that will defeat it. (Kellogg v. Slauson, 11 N. Y. R., 302, 305.)

Fraud is not to be presumed, but there must be proof of it; and the onus of proving the assignment to be fraudulent, rests on the party assailing it. (Bank of Silver Creek v. Talcott, 22 Barb., 561.)

The provision which directs the assignees oto pay to the parties named in Schedule A, hereto annexed, the sums of money, with interest, which are, or may become due to them from the parties of the first part, not exceeding, however, the sums'set opposite the names respectively of those who have a sum set thereto, if so much shall become due to them from the parties of the first part,” can be abundantly satisfied without construing it to authorize the parties named in that schedule to purchase demands, and to protect and prefer them, if purchased.

The object of the assignment, as declared by its recitals, is a division of the property of the assignors among their creditors equitably. The persons provided for by Schedule A, are only those; and the provision preferring those named in it,-includes only those who were creditors when ■the assignment was made, and they are preferred only in respect to debts then owing to them, or in respect to liabilities which they had theretofore assumed for the assignors. The words “or may become due,” when applied to actual debts then owing to any of those persons, mean debts which shall become payable thereafter; and, when applied to persons then under a contingent liability for the assignor, mean, sums of money which shall thereafter become payable to them by reason of such contingent liabilities. [Kellogg v. Barber, 14 Barb., 11; Bank of Silver Creek v. Talcott, 22 Barb., 550; Allen v. Patterson, 3 Seld., 476.) Due, sometimes means payable.

The'fact that a person is protected against a contingent liability, which is, on its face, an undertaking for a third person, does not raise a presumption, when all the provisions of the assignment are considered, that the assignees have appropriated any of their property to pay debts, or indemnify against liabilities, which it was not their duty to pay or satisfy. (Bank of Silver Creek v. Talcott, 22 Barb., 555-557.)

I do not deem it important to acid anything to the observations of my brother Bobertsoh, in respect to the other objections urged against the validity of the assignment.

On the papers before us, the assignment should not be adjudged invalid, and the assignees should not be interfered with, by an injunction or Beceiver.

The order appealed from should be reversed.


author: By the Court—White, J.

text:
    Samuel C. Harriott et al., Plaintiffs and Appellants, v. James N. Wells et al., Defendants and Respondents.
    1. Upon a complaint being amended in a material particular, the defendant’s right to answer the amended complaint, by interposing any defense which he may possess, is absolute and unrestricted.
    2. Thus, where, upon a trial of an action brought upon a contract, of which the plaintiffs, in their complaint, alleged performance on their part, they failed to prove full performance, but gave evidence of a waiver of such performance by the defendants, and asked leave to amend their complaint accordingly, which was allowed on condition that the defendants be allowed to amend their answer so as to meet the plaintiffs’ amendment, but the terms or nature of the amendment to be made by defendants was not prescribed.

      Held, on defendants’ motion after judgment, for leave to amend the answer by interposing the statute of limitations, that untess the plaintiffs elected to withdraw their motion to amend, the judgment should be vacated, and the defendants allowed to amend by interposing the statute of limitations or any other legal defense, without restriction.
    (Before Bosworth, Ch. J., and Moncrief, Robertson, White and Barbour, J. J.)
    Heard, June 7, 1862;
    decided, June 28, 1862.
    Tots was an appeal from an order of the Court at Special Term, made on the 20th of December, 1861, upon a motion on the part of the defendants to amend their answer.
    The action was brought by Samuel 0. Harriott and Bernard Bice, assignees of Solomon Kipp and Abraham Brown, against James 1ST. Wells and Don Alonzo Cushman ; and was tried before a Eeferee.
    The facts are fully stated in the opinion of the Court at General Term. The motion was granted conditionally at Special Term, the Judge delivering the following opinion:
    Hoffmah, J. The Eeferee, after the testimony was closed, and, it is said, during the summing up, was asked to allow the complaint to be amended so as to conform the pleadings to the proof, in regard to the time of starting the line and alleging waiver and consent by the defendants.
    The defendants’ counsel asked that the answer be considered as amended to meet the averment, all which the Eeferee granted. These are the statements in the ease.
    The Eeferee, in his special report, says that he made no other minute than this: “As to pleadings, plaintiffs’ counsel now moves to amend his complaint in reference to variance.”
    Ho amendments were drawn until the 19th of October, Í861, when the Eeferee settled the amendments, which were proposed by the plaintiffs’ attorney. He also restricted the defendants to a certain answer which was suggested by the plaintiffs’ counsel, as all that the defendants could put in.
    . In this I think there was an error. He had not authority to prescribe what answer the defendants should put in.
    The right to answer amendments under the chancery system was absolute. A rule of Chancellor Walworth fixed the time for such an answer. If an improper answer was interposed to the amendments, the usual course of getting rid of it could be pursued.
    If the variance was immaterial no amendment was necessary. If made under section 170 of the Code no answer was necessary or proper.
    But if under section 173, the amendment substantially changed the claim, amendments were necessary and could only be allowed at all by the Court, and then a right to answer must exist.
    The plaintiffs proceeded upon a covenant, averring strict performance of everything on the part of their assignors, to be done in order to give the right of action. It appears that there was a non-observance of a precedent condition. The plaintiffs prove, it maybe assumed, that this was in consequence of a change in that particular, assented to by the defendant. They now want to allege this in their complaint.
    The defendants urge that they were confident of defeating the plaintiffs on the ground, set up in their answers, of the failure to perform material stipulations. They did not feel bound to set up any other defense. But that if their assent to the non-performance is to be an element in the case, then it is unjust to deprive them of any other ground of defense they may possess.
    The Code does embarrass me in what would otherwise be a very clear case. If a further case is made by amendments, the right to answer is as unlimited as the original right. The answer is to be dealt with as an original answer. That the proposed answer is a plea of the statute of limitations cannot affect the question. (Gatlin v. Gunter, 1 Kern. R., 368.)
    If the plaintiffs’ counsel' deems himself safe under section 169, without a motion to amend or an actual amendment, I* think, upon the facts in the affidavits, he may have the privilege of withdrawing the amendments.. So the case will go up free from everything as to amendments.

      The order will be that the defendant be at liberty to file such answer as advised, unless the plaintiff withdraw his amendment, &e., as above mentioned; the cause, in case an answer' is filed, to proceed before the Referee, as to any new matters in issue; the judgment to be opened and set aside.
    From this decision, the plaintiffs took the present appeal to the Court at General Term.

      Albert Cardozo, for plaintiffs, appellants.

      A. W. Bradford, for defendants, respondents.
   By the Court—White, J.

In this case, which is an action commenced in 1855, to recover money ($2,100 and interest) upon an old contract, a sealed instrument, dated in 1837, the defendants, by their answer, denied that the plaintiffs’ assignors had performed the duties, the performance of which, by the terms of the contract, would have entitled them to the money claimed. The case was referred, and on the trial before the Referee, the plaintiffs failed to prove a full performance upon their part; but certain testimony was given which they contended established a waiver by the defendants of such full performance. When summing up before the Referee, the plaintiffs’ counsel moved to amend the complaint by inserting in it an allegation of waiver and consent by the defendants as to the particulars in which full performance had not been proved; and thus to conform the pleadings to the facts proved. The defendants’ counsel consented to the proposed amendment, provided the defendants were allowed to amend their answer so as to meet the plaintiffs’ amendment. The Referee stated that they should be allowed to do so, and leave to amend was accordingly granted; but nothing further was then said or done as to the form of the amendments or reducing them to writing. The plaintiffs’ counsel proceeded with his summing up, the Referee reported in favor of the plaintiffs, for $2,100 and interest; and a judgment was thereupon entered, from which an appeal was taken by the defendants to the General Term, Subsequently, when the parties appeared before the Referee, to settle the proposed amendments to the pleadings, the defendants desired to amend by interposing a plea of the statute of limitations to the new parol contract, which the amendment of the complaint presented. The plaintiffs objected to any other amendment of the answer than a simple denial of the allegation of a waiver.

The Referee was inclined to impose this limitation upon the defendants, but he made a special report of what took place before him, upon the plaintiffs’ original motion to amend, stating it substantially as it is given above; and he added, that his understanding at the time was, that the defendants’ amendment was to be only a denial of the allegation of waiver.

Upon this special report and all the pleadings and proceedings in the cause, the defendants moved at Special Term to amend, by pleading, as they had proposed to do, the statute of limitations.

On this motion, after hearing both parties, the Court at Special Term made an order directing, in substance, that if the plaintiffs, within a time specified, elect to withdraw their motion to amend, the cause shall then stand as if no motion to amend had ever been made; but if the plaintiffs do not withdraw their amendment, then the judgment shall be vacated and the defendants be allowed to amend by interposing, without restriction, any legal defense which they may possess, the statute of limitations or any other, and that the cause be sent back to the Referee for a new or further trial upon both the old and the new issues.

From this order the plaintiffs have appealed.

We think the order was correct. Upon a complaint being amended in a material particular, the defendants’ right to answer the amended complaint by interposing any lawful defense which he may possess, is absolute and unrestricted. The order must therefore be affirmed, with ten dollars costs to the defendants.


text:
    Peter Morris, Plaintiff and Respondent, v. Thomas J. Walsh, Defendant and Appellant.
    It was decided in this case, that the imprisonment of a debtor does not prevent the plaintiffs’ remedies for enforcing the judgment;
    That it is no excuse for not complying with a judgment directing the execution of a conveyance, that the Conveyance prepared for execution was not tendered at the time of serving a copy of the judgment and a demand of compliance; nor that the defendant was imprisoned, and that when the conveyance was tendered fdr execution there was no witness, or officer to take the acknowledgment, present, and no seal upon the instrument; and, That proceedings to punish for contempt in not complying with one part of a decree do not preclude subsequent proceedings to put the party in contempt in respect to another part.
    Heard, at General Term, before all the Justices,
    October 11, 1862;
    decided, October 18, 1862.
    See the points decided, in the index to this volume, under the titles “Imprisoned Debtor; Practice—Contempt; Practice—Judgment.”
   And see the motion and appeal reported at length, with the opinion of the Court, in 14 Abbotts’ Pr., 387.


author: By the Court —Moncrief, J.

text:
    David D. Elston, Plaintiff and Appellant, v. William C. Potter, Defendant and Respondent.
    In an action to recover the possession of specific personal property, an order of arrest which recites that the cause of action is for a detainer or conversion, and requiring the Sheriff to hold the defendant to bail, in a specified sum, is unauthorized. In such an. action, the ground of arrest is a concealment, &c., of the property, and the order must require an undertaking to pay the amount which may be recovered.
    (Before all the Justices.)
    Heard, October 11, 1862;
    decided, October 18, 1862.
    Appeal from an order, made at Special Term, vacating an order of arrest theretofore granted in the action.

      The action was brought to recover the possession of a railroad bond, which plaintiff claimed to own, and alleged that defendant had converted. The plaintiff obtained, upon affidavit, an order for the arrest of the defendant, which order, omitting the formal parts, was as follows:
    “ It having been made to appear to me by affidavit, that thé above named plaintiff has a sufficient cause of action against said defendant, for wrongfully detaining or converting personal property, and that said defendant has disposed of or concealed said personal property, with intent to deprive the plaintiff of the benefit thereof, and to prevent its being found and taken by said Sheriff. You are required forthwith to arrest William 0. Potter, the defendant in this action, for the cause aforesaid, and hold him to bail in the sum of fifteen hundred dollars, and to return this order,” &e.
    The JuStice who granted the order, subsequently, on motion of the defendant, vacated it, and from the order entered upon this decision the plaintiff now appealed.

      J. C. Dimmick, for plaintiff, appellant.

      A. Prentice, for defendant, respondent.
   By the Court —Moncrief, J.

The authority and direction to the Sheriff “ to hold the defendant to bail,” are contained and to be found only in the order of arrest. (§ 183, Code.) The order of arrest in this action states “ that the plaintiff has a sufficient cause of action against said defendant for wrongfully detaining or converting personal property,” &c. Under such an order the Sheriff could demand only such an undertaking as is required under subdivision 1 of section 179 of the Code, “ that the defendant shall at all times render himself amenable to the process of the Court,” &c. (§ 187.) Such an order of arrest was obtained in the action in the Supreme Court and voluntarily abandoned by the plaintiff. The counsel for the respective parties conceded, and it appears by the papers used upon this appeal, that this is an action “ to recover the possession of personal property, &c., and in such an action the order of arrest is granted upon the ground that the property is concealed, &c., by the defendant so that it cannot be found, and with the intent that it shall not be found and taken by the Sheriff, and requires the Sheriff to take from the defendant an undertaking to pay the amount which may be recovered against the defendant. (Sub. 3, § 179 and § 211, Code.)

The order of arrest was therefore properly discharged, and the order made at Special Term must be affirmed.