author: Barbour, J.

text:
    William S. Walcott, plaintiff and appellant, vs. Peter L. Ronalds, defendant and respondent.
    1. Land was conveyed by the defendant to the plaintiff, by an absolute convey•ance, but upon an undertaking to sell the same for the defendant’s benefit, and to pay the proceeds over to him. The plaintiff having sold the farm and received the proceeds; it was held that he could not evade responsibility therefor to the defendant because he had never manifested any- “ trust in the land in writing subscribed by” him.
    2. A liability to pay over the proceeds of such sale may arise, in .such a case, if warranted by the evidence, not from any relation of trustee and cestui que trust, but from the promise, supported by a sufficient consideration not affecting the land, but binding only on the person of the grantee.
    (Before Robertson, Barbour and Garvin, JJ.)
    Heard December 12, 1863;
    decided December 31, 1863.
    Action by the plaintiff to recover the value of his services and his expenses in taking charge of the defendant’s farm, &e. at Scotch Plains, New Jersey. Defense, (among other things,) that the plaintiff was indebted to the defendant in the sum of $3600, received by him upon the sale of a farm at Rahway, for and on behalf of the defendant, and to his use and benefit. It appeared on the trial, before the referee, that on March 1st, 1860, the plaintiff received to the use, and for the account of the defendant, $2854. This was proved by a letter of the plaintiff, and his own evidence fixing the amount. It appeared that the plaintiff and defendant had been on terms of intimacy ; that in November, 1860, the defendant was married, and went to Europe. He, at the time, owned a farm at Rahway, on which he had previously given the plaintiff a home; this farm he wished to have sold during his absence. To effect this purpose, on the plaintiff’s suggestion, he gave him an absolute deed thereof. In March, 1860, the plaintiff sold the farm for $5000, subject to the payment of a mortgage of $2000, receiving net $2854. He used the money for his own purposes. The defendant discovered the sale some two years after, and on January 22d, 1862, wrote, to the plaintiff, complaining that he had not written to him about it; on February 24th, 1862, the plaintiff answered, stating that it was $4000, instead of-$5000, for which he had sold, and that the sale was made in the spring of 1861, instead of 1860. The letter seeks to justify the plaintiff’s failure to hand over the money to the defendant’s agent; deprecates his resentment, &c. The plaintiff failed to make good the amount, and sued the defendant, and now claims that the deed of the Rahway farm was intended to convey it to him, at one time alleging that it was so conveyed for services rendered the defendant, and at another that it was for his notes to be given the defendant. The referee allowed the plaintiff’s claim to the amount of $1498.98, and allowed to the defendant the sum of $3684.58 as a counter-claim, which includes $2854 and interest, as proceeds of the sale of the Rahway farm, and also $180 and interest, as the value of certain articles belonging to the defendant, and sold by the plaintiff, concerning which no question is made here. The referee gave judgment for defendant for the balance, $2185.60.
    Upon the trial the plaintiff produced a full covenant warranty deed, executed by the defendant and wife to him, of the Rah-way farm. The defendant was allowed (subject to the plaintiff’s objection,) to testify to conversations had between the parties at and previous to the delivery of the deed, for the purpose of proving that the property was conveyed to the plaintiff in trust, to sell for the defendant’s benefit, and to.pay the proceeds over to him. The defendant also put in evidence the above mentioned letter of the plaintiff, (subject to objection,) claiming that it tended to establish the same trust,

      A. Levinger, for the appellant.
    J. A. Parsons, for the respondent.
   By the Court,

Barbour, J.

This was an action brought to recover for services rendered and moneys expended, for and at the request of the defendant. The answer set up, among other things, that the plaintiff was indebted to the defendant in the sum of $3060, for moneys received by the former, upon the sale of a farm in Rahway, New Jersey, to the use of the latter.

Upon the trial the plaintiff testified, as a witness, without objection, that the farm in question was conveyed to him by the defendant, in compensation for certain services theretofore rendered by him to the latter. The plaintiff also read in evidence the deed mentioned in his testimony; which deed expresses a consideration of $4500 in money, the receipt of which is acknowledged, and the conveyance is made subject to a certain mortgage for $2000, which, i't is declared, forms a part of the consideration money, and is assumed by the grantor. The defendant - offered oral evidence to prove that the farm was conveyed by him to the plaintiff upon and in consideration solely of a verbal undertaking and promise, then made by the latter, that he would sell the farm and pay the entire, amount of the net proceeds thereof, after deducting the mortgage, to the defendant, and that the plaintiff had sold the farm for $5000, and received the purchase money, less the amount of the mortgage. The defendant also offered in evidence a letter, written to him by the plaintiff in February, 1862, (the defendant then being in Europe,) in which the writer states that he has sold the Rahway farm ; that he has been compelled to úse some of the money, having no means of living without it; that .he did wrong in using it, but intended to replace it; that he expected, when he used it, to receive money from his father’s estate, which he intended"to hand to Davis, (the name of the defendant’s agent,) and, among other things, adds, “ When you went away you left every thing for me to manage the best I could.” * * * “You will have to leave it till you return, as it is impossible for me to pay it now. I hope you will not think too hard of me for it, and I think we can manage'it with satisfaction of both parties on your return. I hope you will not say any thing aboüt it to any one else, as it would injure me very much, and not do you any good. In every other particular I have attended to your affairs for your best possible advantage.”

All this evidence was objected to, but admitted, and the plaintiff excepted. Exceptions were also taken to the findings of fact declaring, in effect, that all the above facts are established by the evidence, and to the referee’s conclusion that the defendant is entitled to a credit in the accounting for the purchase money so received by the plaintiff.

If the evidence objected to was properly received, there can be no doubt the facts were fully proven before and correctly found by the referee; and, upon careful consideration, I have arrived at the conclusion that such evidence was admissible.

For, although the non-payment of the consideration expressed in a deed cannot be proven to contradict the acknowledgment of its receipt, for the purpose of defeating the deed, (Meriam v. Harsen, 2 Barb. Ch. 232; S. C. 4 Edw. Ch. 70; Childs v. Barnum, 11 Barb. 14, S. C. 1 Sandf. 58,) yet, in general, and except for the purpose of defeating or impairing the grant or covenants contained therein, the consideration clause of a deed is not within the rule which excludes parol evidence offered to contradict a written instrument. (McCrea v. Purmort, 16 Wend. 460. Whitbeck v. Whitbeck, 9 Cowen, 266. Adams v. Hull, 2 Denio, 306. Bingham v. Weiderwax, 1 Comst. 509. Jackson v. Schoomaker, 2 John. R. 230. Frink v. Green, 5 Barb. 455. Murray v. Smith, 1 Duer, 412. Goit v. Nat. Prof. Ins. Co. 25 Barb. 189.)

I think, too, that the written declaration and admission of the plaintiff, clearly implied in his letter, that the net proceeds of the farm belonged to the defendant, that the plaintiff had applied them to his own use intending to replace them, and that he was liable and would account to the defendant therefor, fully justified the conclusion of the referee that the defendant was entitled to a credit for such moneys, in stating the accounts between the parties. It was, substantially, a declaration in writing, that the money was received by the plaintiff, in trust for the defendant, as well as an admission of his obligation to replace it.

The judgment appealed from should he affirmed, with costs.

Robertson, Ch. J. The plaintiff claims to evade all responsibility to the defendant for any of the proceeds of the “ Rah-way Farm,” because he never manifested any trust, in writing subscribed by him, 'of such land. Such liability may, however, arise, if the evidence justifies it, not from any relation of trustee and cestui que trust, but from a promise, supported by a sufficient consideration, not affecting the land, but binding only on the person of the plaintiff.

The referee has not found any trust to have been created, but as one of the facts contained in his special report, of which his general report is an appendage, that the plaintiff accepted from the defendant a conveyance of the Rahway Farm, to enable him more conveniently to sell it, and account to the defendant for the proceeds. This, though somewhat inartificially expressed, is unless such deed was given as a compensation for previous services, equivalent to what appears by the evidence, which is that the plaintiff, in consideration of the conveyance of such land to him by the defendant, promised whenever he sold it to pay the proceeds over to -the latter. If there was no proper legal evidence of a trust, such a-finding is necessary to sustain the report of the referee, and being borne out by the evidence, and may, therefore, be assumed to have been made by him. A mere promise to pay over the proceeds of land when sold, for-a sufficient consideration, creating no interest in, or lien upon the land, not running with it, but obligatory only on the person of the promissor, is capable of being enforced in an action at law, although it creates no trust. Unless opposed to some principle of public policy, it must be binding. The fact that a cotemporary conveyance is made, of the very lands whose proceeds are promised to be paid over, can form no obstacle to the validity of such a promise, any more than if it had been a conveyance of some other lands or some other consideration. As such a promise is' merely executory, and only binds the person, it does not restrain alienation, nor is it so attached to the land as to run with an estate in it. The grantee of the land is its absolute owner, so far as the pght of transferring an indefeasible title free from any incumbrance or trust is concerned. All who take title from him, even with full knowledge of such promise, do so free, from any claim of the promisee, which is a mere chose in action, enforoible at law. Trusts are interests in lands 1 the lea:al title of a trustee is subject to the rights of the cestui que trust into whosever hands the land may pass, if not in execution of the trust, with knowledge of it. The purpose of the statute of frauds, in regard to manifesting trusts in writing, much more even than in requiring contracts for the sale of land and leases to be written, was rather to protect the ownership of the land itself from being entangled by supposed agreements or understandings, depending on parol evidence, interfering with absolute dominion over it, than merely to protect persons against being compelled by parol evidence to take an interest in lands they had never acquired. No such protection is needed in regard to a promise to dispose of a sum of money, although it may arise from a sale of real estate.

If this had been-a contract for the sale of land, the plaintiff could not escape liability' for the purchase money, under the statute of frauds, because the contract on the defendant’s part was executed. Can he be less liable because the price for which he might sell it was fixed as the purchase money, and the time of payment postponed until he should sell it ? It is not material to inquire whether by the terms of the agreement the plaintiff was to sell in any determinable time, or the defendant could enforce a sale., A sale was in fact made, and the proceeds promised to be paid over'received. It would be a reproach to the law and the administration of justice, if the plaintiff could reap the benefit of the conveyance to himself,' which formed the consideration for his promise, and deprive the defendant of the fruits of a sale, the promise of which formed the mutual consideration of such conveyance, merely because such promise was not in writing. Such a result would be clearly inequitable, and contrary to the principle which enables accepted part performance of a contract to take a case out of the statute of frauds. To convert such a promise into u trust to bring about such a result, would be a great refinement of terms in order to work out iniquity, which the law never permits.

The reasoning of the referee, in his opinion, may possibly not lead to precisely the same result, as I have pointed out; but that is immaterial, so long as the evidence supports it, and such view is necessary to sustain the judgment. The previous relations, as well as the conduct and declarations of the parties, particularly the plaintiff’s letter after the sale of the land, admitting the receipt of moneys as its proceeds, for which he was accountable to the plaintiff, and the time and circumstances of executing the deed to the plaintiff, fully bear out such an interpretation of the understanding between the parties. Nearly, if not quite all the exceptions in this case, are based upon the supposition that the defendant had no right to prove any thing respecting the consideration of the deed, or the terms on which it was made, because it contradicted the writing. • But the promise before stated is perfectly consistent with its terms, and the exceptions were, therefore, properly overruled.

I concur in thinking that the judgment should be affirmed, with costs.


source: Caselaw Access Project

author: Moncrief, J.

license: Public Domain

text:
    Abraham S. Onderdonk, plaintiff, vs. Jacob Voorhis et al. defendants.
    After argument of a case upon appeal from a judgment rendered by a referee, leave will not be given to a party, on motion, to introduce as part of the case on the appeal exemplified or other copies of proceedings on which a warrant of attachment was issued; where the papers were in existence, and known to be so, by the counsel for the applicant, at the time of the' trial before the referee, and in the exercise of his discretion he refused to produce them. (Before Robertson, Ch. J., and Moncrief and Mon,ell, JJ.)
    Heard January 16, 1864;
    decided --, 1864.
    This is a motion, after argument of a case made upon an appeal from a judgment rendered by a referee agáinst the defendant, for leave to introduce as part of the case on the appeal exemplified or other copies of the proceedings on which the warrant of attachment mentioned in the pleadings in the above entitled action issued, &c.

      John Townshend, for the motion.

      R. M. Harrington, opposed, for the appellants.
   By the Court,

Moncrief, J.

The papers sought to be introduced and considered as a part of the case argued upon this appeal were in existence and known to be so by the learned counsel making this application, at the time of the trial before the referee, and in the exercise of his discretion he refused to produce them, and upon the argument insisted that their production was unnecessary. This might suffice to deny the motion. But again, if these papers were now permitted to he read as a part of the case, evidence will appear in it not considered by the court (referee) below, upon or relating to which there are no findings of fact or of law, against the introduction of which an opportunity is not given to the appellants to make objections and have'the benefit of exceptions to rulings against them, and no leave given to him to controvert; in fine a case radically differing from the action as tried, and from the judgment on which this appeal is taken. Again ; the papers offered are not a record importing an indisputable fact; the matters stated in them might be shown to be false or inaccurate. That “Records * * shall be evidence of the facts therein contained ” &c. is provided by statute, (1 R. S. 378, § 159,) while “ copies of all papers duly filed * * shall be evidence ” * (only,) (Id. 377, § 65.)

In Bank of Charleston v. Emeric & Davenne, (2 Sandf. 718,) is an illustration of the former character, of evidence being admitted to be read upon the argument. The plaintiffs, suing as a corporation, neglected to prove its existence under the act passed in the state of South Carolina, A properly exemplified copy of the act of incorporation was produced ; the fact then was incontrovertible, and the court held that the case should not be sent for a new trial for the sole purpose of the evidence which must be conceded -as a fact and upon which no question could arise.” The other case, (Fry v. Bennett, 2 Duer, 651,) is a direct authority of the latter class of evidence, and is decisive against the application ; which must be'denied with seven dollars to the appellants.


author: McCunn, J.

text:
    Hendricks, plaintiff, vs. Carpenter, defendant.
    Where parties reside within the jurisdiction of the court, and more than two years have elapsed since the entry of judgment upon an inquest, and service of notice thereof upon the defendant, a motion to open the inquest and set aside the judgment will not be granted.
    (Before McCunn, J. at special term,
    January, 1864.)
    Motion to open an inquest and set.aside a judgment.

      S. Sanxay, for the motion.

      John Pyne, opposed.
   McCunn, J.

In this case a motion was made to open an inquest and set aside a judgment entered at a trial term. After a careful inspection of the entire case, and after examining the law, I find it is quite out of my power to grant the relief claimed. The action was fór a money demand on contract. The parties reside within the jurisdiction of the court, and are fully under its control. This being so, and more than two years having elapsed since the perfection, entry and service of notice of the judgment upon the defendant’s attorney, the 174th section of the. Code precludes all interference.

Other points were raised, in the’case, but as this is the principal and overshadowing one, I refrain from saying any thing in regard to the others. .

Motion denied, with ten dollars costs.


author: Robertson, J. Barbour, J.

text:
    Adon Smith, Jr. plaintiff and respondent, vs. Gustave Frank et al. defendants and appellants.
    1. Where the agent of the defendants, in purchasing goods for them, in their names, of the plaintiff, in order to induce him to sell to them, made the same representations of their responsibility and business as had been made by the defendants to him, in reference to his purchases for them; Held that this fact warranted the inference that the agent was authorized by the defendants to make such statements to the plaintiff or any one else from whom he purchased for them, in order to enable him to make such purchases.
    2. The contract being made on the 9th of November-, and the plaintiff having-sent, four days afterwards, the measurer’s return of the merchandise agreed to be sold, apd a bill for the merchandise to a large amount ($11,000) to the defendants, and on the next day (15th) demanded payment, and the defendants having promised to pay the bill the next week, but between that day and two days after (the 17th) failed in business; Seld that this was sufficient prima facie evidence of the falsity of a representation of solvency made at the time of the purchase.
    3. Seld, alpo, that if any alteration in the defendants’ affairs, for the worse, had taken place before the delivery of the (measurer’s return, they were hound in honesty to have notified the plaintiff of it; and that, not having done so, they were to be looked upon as ratifying their former representations; also that their attempt to postpone the payment for a week, and failing within two days, was conclusive of intent to defraud, in the absence of any explanation.
    (Before Robertson, Ch. J., and Barbour and Garvin, JJ.)
    Heard December 26, 1863;
    decided February 13, 1864.
    Appeal from an order made at special term, refusing to vacate an order of arrest.

      T. C. T. Buckley, for the defendants, appellants.

      Chas, Tracy, for the plaintiff, respondent.
   By the Court,

Robertson, J.

This being an action on contract, the order of arrest must be sustained, if at all, under the fourth or fifth subdivisions, as it is not one of those enumerated in the second subdivision of section 179 of the Code. The agent of the defendants who made the purchase (Herbert) testified that he made the contract in question on their employraenfc, and in order to induce the plaintiff to make it, represented that the defendants were good and responsible, were making purchases to fill orders from abroad, were doing a gooand safe business with some of Hennings & Gosling’s West London houses in filling orders from them, and that it was safe and prudent for the plaintiff to sell them. He also states that such representations were made by him on the authority of similar ones made by the defendants to him. The justice who granted the order of arrest was warranted in inferring therefrom that such agent was authorized by the defendants to make such statements to the plaintiff in order to enable him to procure such contract; otherwise why authorize him to malée such contract and state that it was safe for the plaintiff to sell them. The contract was made on the 9th of November, 1863; on the 13th of November the plaintiff sent the measurer’s return of the grain agreed to be sold, and a bill for the merchandise, amounting to nearly $11,000, and next day (15th) demanded payment. The defendants then promised to pay the bill the next week, but between that day and the 17th, one day only intervening, they failed in business. This was sufficient prima facie evidence, within all the cases, that the representations made on the 9th previous were untrue. (Freeman v. Leland, 2 Abb. 479. Scudder v. Barnes, 16 How. 534. Wilmerding v. Mooney, 11 Abb. 283. Wallace v. Murphy, 22 How. 414. Ward v. Woodburn, 27 Barb. 346.) If any alteration in the defendants’ affairs for the worse had taken place.before the delivery of the measurer’s return, they were bound, in honesty, to have notified the plaintiff of it; not having done so, they are to be looked upon as then reiterating their former representations. Their attempt to postpone the payment for a week, and failing within two days, is conclusive of intent, (Whitcomb v. Saloman, 16 How. 533,) in the absence of any explanation.

This is entirely apart from any consideration arising out of the sworn allegations of the plaintiff that he had ascertained that the representations made to him were untrue ; and that the defendants were about'to abscond from the United States' and carry with them their property; or the statement of their agent that he had also become convinced, by information since obtained, that such representations were untrue. Taking such allegations to be merely on information and belief, it was a matter of discretion with the justice granting the order how far he would require the sources and nature of the information to be disclosed in order to satisfy him. The 181st section of the Code requires the order to be made where “ it shall appear to the judge by the affidavit of the plaintiff or of any other person, that a sufficient cause of action exists, and the case is one of those mentioned in section 179.” In Crandall v. Bryan, (5 Abb. 162,) Smith, J. says: “The statute does not define the proof to be made, except that it be by affidavit. Nor does it define or fix the degree or extent of the evidence ; how near it must come to legal evidence, such as would be required on the trial of the issues. Something doubtless is left to the judgment and discretion of the judge, in respect to the particular facts of such case. He must be satisfied judicially,” In Peel v. Elliott, (16 How. 481,) an order of arrest was sustained, notwithstanding the objection that the allegations were only on belief founded on information. In other cases the court has expressed dissatisfaction with naked allegations on information and belief, unless the nature and sources of the information be disclosed, to enable the court to judge whether the belief was properly based. (Whitlock v. Roth, 5 How. 143.) To require such statement would undoubtedly be the exercise of a sound discretion, but not to have required it, hardly forms a sufficient ground to sustain an appeal. It is very evident that how far a plaintiff is to be required to go, in giving the whole extent of his information, is entirely a matter of discretion with the judge granting the order, and therefore it has been held that a refusal to vacate, an order of arrest is not appealable, simply because the affidavits on which it was granted stopped with a general averment of information. (Union Bank v. Mott, 17 How. Pr. 353 ; S. C. 9 Abb. Pr. 106.)

It does not appear, directly, that the defendants are on bail. If they were, the appeal should not be sustained without affirmative disproof of the facts stated in the affidavits on which the order was obtained. (Moers v. Martens, 8 Abb. Pr. 257. S. C. 17 How. Pr. 280, sub. nom. Moers v. Morro.)

As it is, the order appealed from must be affirmed with costs.

Barbour, J.

I concur in the opinion of Justice Robertson. But the facts, which sufficiently appear in the moving papers, that the defendants, knowing they were insolvent, retained the measurer’s return which had been sent to them according to the custom in the business, simply for the purpose of enabling them to learn how much wheat there was, so that they could send to the plaintiff the precise amount of money to which he was entitled under the contract of purchase, and that they used such return to obtain possession of the wheat, after the plaintiff demanded that the same he returned or the wheat paid for, were sufficient, of themselves, unconnected with any other circumstances, to show a design on the part of the defendants to defraud the plaintiff out of the purchase price of the wheat when such purchase was made. The purchase, the sending and retention of the return, and the use thereof for the purpose of obtaining possession of the wheat with intention to defraud the plaintiff, each, constituted a portion of the res gestee. This, also, covers the objection to the summons; which is for a specific amount.

Order affirmed.


author: Garvin, J.

text:
    Adrian Iselin et al. plaintiffs and appellants, vs. Samuel Peck et al. defendants and respondents.
    1. A witness, who had known H. for four or five years, and pretty well for a year or two previous to certain transactions in question, had been in the habit of selling him goods on credit; had seen statements of H.’s business, wherein the dividends and profits of him and his partner were some $4000 in six . months; knew what his credit was, at the time of a sale in question; and that it was good; being asked the question, “ Did you learn at that time what H. was reputed to be worth V’ Held that the witness was competent to testify as to H.’s responsibility and credit, and that an objection to such question was properly overruled.
    2. A witness, who did not know H.; had no knowledge personally of his responsibility; or of his general reputation for pecuniary responsibility “ except from his own books and records of bis agency,” was asked whether a paper produced contained a correct result of his books, as to the standing of H. Held that the answer to this question was properly excluded.
    (Before Robertson, Barbour and Garvin, J.J.)
    Heard December 10, 1863;
    decided February 13, 1864.
    This- action was brought to set aside - a sale of a stock of goods, made by the judgment debtor Peck, to the defendant House, and an assignment made for the benefit of creditors to the defendant Mack, which assignment was without preferences.
    Peck & Co. in September, 1861, became insolvent. On the 25tli September, they sold their entire stock of goods to George V. House for $1000 in cash, and his nine notes' for $1022 each, payable in from six to fourteen months. On the 28th September, Peck & Co. assigned those notes and other bills receivable to John Mack. The defendants, Peck & Mack, who were witnesses, did not claim but that the sale was made with a view to the assignment. The plaintiffs proved that House had been discharged under the insolvent law two and a half years before the sale in question, and that, the notes he gave-were each protested as they fell due, and were now in suit. The counsel for the defendant Mack then interrogated him : “ Did you learn at that. time what Mr. House was reputed to be worth ?” The plaintiffs’ counsel objected to the question. The objection was overruled, and-the plaintiffs excepted. The defendant answered,. “ I understood he was worth $25,000 to $30,000.” The plaintiffs then called John McKillip, the president of a commercial agency, who testified that it was his, business to receive and communicate intelligence as to the commercial responsibility of men. He was asked to communicate the result of his books, as to the responsibility of House in September, 1861. The question was objected to, and the objection sustained, and the plaintiffs excepted. The court found, as a fact, from the evidence of Mack, that House was possessed of means sufficient to carry this purchase into effect. At the close of the plaintiffs’ testimony, the court found, as facts, that the sale and assignment were not fraudulent, and gave judgment for the defendants on the merits. The plaintiff. appealed to the general term.

      W. Watson, for the appellants.

      A. J. Vanderpoel, for the respondents.
   By the Court,

Garvin, J.

The plaintiffs filed their complaint to set aside a sale of a stock of goods made by the judgment debtor Peck to the defendant House, and also an assignment made to the defendant Mack, which assignment was without preferences.

The case was heard before his honor Justice Moncrief, at special term, who passed upon the question of intent both as to the sale of the goods and the assignment, and found that each were made in good faith, without any intent to hinder, delay or defraud creditors ; that finding was upon conflicting evidence, and is therefore conclusive. But it is insisted that the court erred ih overruling the objection to the question, “ Did you learn at that time what Mr. House was reported to be worth ?” The witness had known House for four or five years—had known him pretty well- for a year or two previous to these transactions. House had been a customer of the witness, who had been in the habit of selling him goods on credit. The witness further stated that he had seen statements of House’s business, and that the dividends and profits between, and by, House and his partner were some $4000 in six months —drew that much money—“ I knew what his credit was at the time of this sale; it was good.” Then follows^—after a few immaterial questions—the one objected to. The ruling of the court Was unexceptionable.

I think the witness had knowledge of the defendant’s (House) pecuniary circumstances and facts connected with his business, growing out of the witness’ commercial relation and acquaintanee, to qualify him to spéak upon the question of House’s responsibility and credit.

The evidence of McKillip was properly excluded. He had .stated he did not know House ; had no knowledge personally of his responsibility ; knew nothing of his general reputation for pecuniary responsibility, either in Troy or New York, “except from - my books and records- of my agency.” After making these statements, this question was put by the plaintiff, (producing a paper,) “ I ask you whether this paper contains a 'correct result of your books, as to the standing of Mr. House?” The answer to this question was properly excluded. The judgment in this case should be affirmed, with costs.


author: Monell, J.

text:
    George Bowman, plaintiff and appellant, vs. William M. Tallman, defendant and respondent.
    1. An execution issued by the plaintiff upon an original judgment at special term in his favor, after an oral announcement by the judges of the same court, at a general term, of an affirmance of such judgment on an appeal, and the entry by the clerk of such affirmance in the minutes of such general term, is a mere irregularity and only to be taken advantage of on motion.
    2. The right to move to set aside such execution on the original judgment for irregularity may be waived by delay in moving. And the lapse of five months is such delay, when no excuse is given therefor.
    (Before Robertson, Ch. J., and Monell and McCunn, JJ.)
    Heard January, .1864;
    decided February, 1864.
    This was an appeal from an order made by Justice Barbour at special term, setting aside an execution upon a judgment as irregular, illegal and and void.
    On the 22d of February, 1864, judgment was entered in favor of the plaintiff against the defendant. On the same day an appeal was taken by the defendant from the judgment to the general term of this court, and an undertaking to stay proceedings upon the judgment was filed.
    The appeal'was argued in the general term, and on the 28 th of May, 1864, the general term orally announced its decision, affirming the judgment. The entry in 'the minutes made by clerk was as follows. After the names of the judges composing the court and the title of the cause : “ J udgment affirmed with costs.” * *
    On the 30th of May, 1864, the plaintiff issued an execution on the judgment of February 22, 1864. An order affirming the judgment was duly entered-on the 31st of May, 1864. On the 8 th of June, 1864, the defendant appealed to the Court of Appeals, giving the proper undertaking to stay proceedings.
    On the 5th of October, 1864, the defendant gave the plaintiff notice of a motion that the execution be vacated and set aside “ as irregular, illegal and void,” on the ground that at the time of its issuing the judgment had not been affirmed.
    The motion was granted at special term, nnd the plaintiff appealed.

      George Bowman, plaintiff and appellant, in person,

      E. T. Gerry, for the defendant, respondent.
   By the Court,

Monell, J.

I am inclined to think that when the execution issued, the stay upon the judgment was not removed. The effect of giving the undertaking on the appeal to the general term, was to stay all further proceedings upon the judgment appealed from, (Code, § 33,) andan execution could not regularly issue until after the judgment of the general term affirming the j udgment appealed from. The mere oral announcement of a decision by judges sitting in the general term, and the entry of such decision in the minutes of the clerk, is not such a judgment of the general term as will authorize action under it. A formal judgment which embraces the decision and becomes a permanent record of the court, must be entered by the clerk, and such judgment only removes the stay of proceedings. (Lenthilon v. Mayor, &c., 1 Code R. N. S. 111.)

There was, however, a valid judgment to support the execution. Its effect and operation and the rights of the plaintiff to enforce it by appropriate process, was suspended pending the appeal. It was undoubtedly, therefore, an irregularly in conducting the proceedings to enforce it, to issue an execution before judgment of affirmance had been duly entered. But it was an irregularity merely. Mr. Tidd (in his Practice, 512,) says : “An irregularity in practice may be defined to be the want of adherence to some prescribed rule or proceeding. And it consists in omitting to do something that is necessary for the due and orderly conducting of a suit or ordering it in an unseasonable time, or improper manner." He mentions the entering of judgment before the time to plead has expired ; the service of an execution after its return day, and the like,- as instances of irregularities.

The long and uniform practice of the court has required that motions to vacate process, or proceedings irregularly issued or taken in a cause, shall be made at the first opportunity after the irregularity has been discovered, otherwise the irregularity will be deemed to be waived.

The execution in this case was issued on the 30th of May, 1864, and as the defendant’s attorney states in his affidavit, was on the same day levied on the defendant’s property. Yet the defendant omitted to take any steps to procure the execution t"o be set aside until the 5th of October, more than four' months after it was issued. I think he was too late, and should be deemed to have waived the irregularity, especially as the judgment of affirmance was entered in due form on the 2d of June, and the defendant appealed .therefrom on the 8t'h of June, With knowledge of the irregular issuing of the execution.

The order appealed from should be reversed.

Ordered accordingly.


text:
    Joseph D. Davis and another, plaintiffs and appellants, vs. William Grove and others, defendants and respondents.
    1. An agreement between two firms, one doing business at Cuba and the other at New York, by which the former were to buy merchandise at the former place and ship it to the latter at New York and to pay for the same, so far as they could, by bills drawn by the Cuba firm on the Now York house to be by them accepted, constitutes the members of both firms partners as to any transactions under such agreement.
    2. Any merchandise shipped under such agreement from Cuba, as well as the proceeds of any so shipped which might be in the hands of the New York house, were the joint property of such partnership, and the members of the Cuba firm had a right to have the same first applied in satisfaction of any joint indebtedness thereof, including any. bills drawn by them to pay for such merchandise, before the same could be employed to satisfy any debts due by the New York house alone, or of any individual member of either firm.
    3. An assignment by the New York house, under such circumstances, of merchandise shipped under such agreement, and the proceeds of any so shipped, to an assignee for the benefit of the creditors generally of such firm, is fraudulent and void, as against the members of the Cuba firm, and may he set aside in
    . an action brought by them to wind up the affairs of such partnership and apply its property to pay its debts, in which they are entitled to an order of injunction and receiver.
    (Before Robertson, Ch. J., and Garvin and McCunn, JJ.)
    Heard-, 1864;
    decided --, 1864.
    This was an appeal from an order made by Justice Monell,' on the 16th. of December, 1863, on an order to show cause why a temporary injunction, restraining the defendants from interfering with certain merchandise, and .the proceeds of other merchandise mentioned in the complaint, should not be made permanent, and a receiver appointed of the same.
    The order was granted on a sworn complaint and an affidavit of one of the plaintiffs, and cause was shown by affidavits of the defendants.
    The complaint alleged that the plaintiffs were copartners, doing business in Cuba, under the firm name of Davis & Toscano ; that the defendants Grove, Kohl and Allison were copartners; doing business in this city, under the firm name of William Grove & Co. That one of the defendants, Grove, made certain false representations to the plaintiffs ; and that induced by these false and fraudulent representations, and believing them to be true, the plaintiffs, under their firm name, “ Davis & Toscano,” entered into an arrangement with the defendants, Grove, Kohl and Allison, under the firm name of “ William Grove & Co.” to transact a business in sugars on joint account. The business was to be transacted as-follows:
    Davis & Toscano were to draw bills of exchange at sixty days on William Grove & Co., who were to accept the same. These bills were to be sold, and the proceeds thereof were to pay for the shipments of sugars, so bought by Davis & Toscano.
    Under this agreement, they allege that they shipped to William Grove & Co. sugars to the amount of near $65,000, United States currency, and $1187.49 .more than they had drawn bills against.
    The Complaint further alleged that before the maturity of any of the bills so drawn and accepted, “ William Grove & Co.” failed (in October, 1853,) and made an assignment to the defendant Barmore, who took possession of the proceeds of the sugar sold, and such as-remained on hand and unsold. It also alleges that Barmore is now about to sell the balance, and to distribute the entire proceeds among the general creditors of William Grove & Co. without reference to these sugar transactions.
    It then avers that such assignment is fraudulent and void, so far as it affects the sugars or the proceeds thereof, and concludes by a prayer for judgment against all the defendants (Barmore, the assignee, included) for' $1187.49, and also for half the profits, alleging the entire profits to amount to $20,000. That such assignment be adjudged fraudulent and void as to said sugars and the proceeds thereof, and that the defendants may be restrained, and a receiver be appointed. And that the holders of the bills, who bought the bills on the strength of the drawers’ and acceptors’ names, without the slightest reference to the shipments of sugars, be paid first out of the proceeds thereof, and that the plaintiffs may have such other relief as may seem proper to the court, and as the nature of the case may require.
    None of the material allegations in such complaint, as to such agreement, shipment and assignment, were denied by the counter affidavits produced by the defendants, except as to any indebtedness by them to the plaintiff. They averred that the plaintiffs were indebted to the defendants, and insolvent.
    . Upon such motion, a receiver was appointed of such merchandise and proceeds, and the defendants were directed to deliver to him so much of such merchandise and its proceeds as should be equal to $12,000, for the plaintiffs’ share of the profits of such partnership, and upon compliance with such order the injunction was dissolved.
    From this order the plaintiffs appealed.

      W. H. Anthon, for the plaintiffs and appellants,

      Insisted, that the action was properly commenced in the names of the plaintiffs and all holders of the bills drawn by them under the agreement set out in the complaint, in order to compel the defendants to account therein, as trustees, for the benefit of such bill holders, of merchandise paid for by such bill's and any proceeds of sales thereof received by them.
    But on the question of partnership he presented the following points :
    I. The arrangement between “ Davis & Toscano ” and “ William Grove & Co.” to purchase, ship, and sell sugars, on joint account, was treated, in the order made at special term, as a partnership, and the receiver was directed to take charge of the share of “ Davis & Toscano ” of the partnership profits. This view of the case, though unquestionably correct, is not broad enough. The receiver should also have been directed to take possession of enough of the proceeds of the partnership property, (viz. the sugars,) to pay in full the partnership debts, (viz. the drafts.) All that can properly be held by the assignee of the insolvent partners in this transaction (William Grove & Co.) and applied to the payment of their separate debts, is their share of the profits arising from the consignments of the sugars, after the debts of such partnership are paid.
    II. If one partner becomes a bankrupt, his assignees can obtain no share of the partnership effects, until they first satisfy all that is due from him to the partnership, and until after a settlement of the partnership accounts. (Collyer on Partn. 486. Lord Tenterden’s opinion, 8 Barn. & Cress. 618. Goss v. Dufresnoy, Davies’ B. L. 371. Nicoll v. Mumford, 4 John. Ch. 522. Rodriguez v. Heffernan, 5 id. 417. Buchan v. Sumner, 2 Barb. Ch. 165.)
    III. The right of the plaintiffs to demand that the proceeds of their joint account or partnership transactions in sugars shall be first applied to the liquidation of the joint account or partnership debts incurred in the purchase of those sugars, arises from the fact that they are themselves liable for the partnership debts, as guarantors of the drafts.
    IY. The creditors of the partnership, the holders of these drafts, are proper parties to this suit, to enable the court, having all the parties before it, to make a final decree covering the whole matter.
    V. Whether this transaction is a special pledge of the sugars for the payment of the drafts, or a partnership between William Grove & Co. and Davis & Toscano, the order appealed from should be modified, by extending its provisions as to an injunction and receiver, to the entire amount of the drafts, as set forth in the complaint, as well as to the plaintiffs’ share of the profits, and also to the sum advanced by them for the purchase of the sugars, ($1187.49,) over and above the amount of the drafts.

      Titus B. Eldridge, for the defendants, respondents.
   By the Court,

McCunn, J.

The inconsistency of the prayers for relief - and the mixture of different and separate causes of action in the complaint in this case is not only bad pleading,, but very embarrassing.

1. It asks for a judgment for $1187.49.

2. It asks for a judgment for one half of the profits" on the enterprise, without any prayer for accounting.

3. That the assignment by the defendants, Grove & Kohl, to Barmore be set aside as fraudulent and void, and for an injunction and receiver; and

4. For a judgment in behalf of the owners and holders of the bills of exchange, strangers to the action, and mere creditors of the two firms of Davis & Toscano and William Grove & Co.

Under the first and second prayer in the complaint if the plaintiffs made out a case of ordinary indebtedness at common law, and their accounts had been adjusted, they would be entitled to judgment for the amount proved; but in that event, they are certainly not entitled to an injunction or receiver until after judgment.

To the third prayer, for a judgment setting aside the assignment, the answer is that they cannot, in this action and before judgment, obtain such relief.

To the fourth prayer, my view is that the holders of these bills of exchange are mere creditors of the two firms of Davis & Toscano as drawers, and William Grove & Co. as acceptors, and cannot be joined in this action;. they having purchased said bills on the strength of the makers’ and drawers' names without reference to these shipments, are mere creditors and must seek separate remedies.

It cannot be pretended or maintained that in such a case as this any number of creditors can join in one action and prosecute separate claims in that suit against a debtor (unless all the claims be assigned to the plaintiff;) besides, the Code provides that actions must be prosecuted in the name of the real parties in interest.

If these drafts had been drawn and accepted, and the consignments had been made to meet the same, then, perhaps, the rule in the case of Scheldt v. Sturges, Shaw & Co. would have held good, and the holders of the drafts could have enjoined the disposition of the sugars, and the court would have decreed a liquidation of said bills of exchange out of the proceeds thereof; but-so far from this being the case, the drafts were drawn by the makers, and accepted by-the acceptors, and disposed of in the market to third parties, on the strength of the drawers’ and acceptors’ names, without the slightest regard or reference to these shipments. Indeed, the drafts were sold (as appears by the schedule annexed to the case,) and on their way to maturity, before the shipments of sugars were purchased in Cuba.

If the adventure of these sugars had been brought to a final close, and the amount ascertained, or an account had been stated between the plaintiffs and defendants, then an action for a money demand on contract for the over advance and profits, if any were found due, would lie, but in that event they would be entitled to neither an injunction nor receiver.

If, instead of an action in this form, a complaint had been filed, alleging this to be a partnership transaction; that the credit of both parties was involved; that the joint names and credit of the two firms, Davis & Toscano, and William drove & Co., the one as drawers of the bills, and the others as acceptors, were the means by which they procured the moneys that bought these sugars ; that the same were bought on joint account as partners in this transaction; that a large amount of the sugars and the proceeds thereof were on hand; and that a joint indebtedness was outstanding, a proper remedy would have been obtained.

The next question to be considered is, can the complaint in the action as it now stands be viewed in such a light as to • afford the plaintiffs relief, by way of injunction and receiver, and for an accounting as partners in this transaction ?

No allegation in the complaint warrants the granting of this kind of relief, unless the allegations “to transact business on joint account,” “and that the profits upon such shipments after deducting all charges will amount to at least the sum of $20,000, and that half of said profits absolutely belong to said plaintiffs, and the last portion of the final prayer, for such further relief as may seem proper to this court, and as the nature of the case may require,” can be so construed.

It is admitted on the part of the plaintiffs and defendants, that this was a joint partnership transaction, and although the complaint in the case is very inartistically drawn', yet the relief, which the court may grant, under section 375 of the Code (taking into consideration the allegations of the complaint just quoted) may not he inconsistent with the allegations contained in the complaint.

The case of Marquat v. Marquat, (2 Kernan, 336,) justifies such a construction of the complaint in this action. In that case the defendants, as husband and wife, borrowed money from the plaintiff, to enable them in part to purchase certain lands, and agreed to give a mortgage, to secure the money so borrowed, on the wife’s real estate, it being the property for which the money was paid. The complaint, after setting up these facts, besides demanding judgment “that the defendants for the purpose of carrying the said agreement, execute a mortgage upon the real estate of the wife, asked for such further relief as the court should deem proper.” And the court held that they might give judgment against the husband for the amount borrowed under the ordinary money counts, although it dismissed the action as to the wife.

On the whole, the complaint in this case is broad enough to enable the plaintiffs to obtain their relief, and the receivership in the case ought to have extended to all partnership assets in the hands of the assignee Barmore, and the injunction order should have covered all such assets. In order to ascertain the amount of such assets, there should be a reference to ascertain the same, unless the amount can be agreed upon. No costs are allowed on the appeal to either party.

Order modified accordingly.


text:
    The Madison Avenue Baptist Church, plaintiffs, vs. The Baptist Church in Oliver Street, defendants.
    1. Where parties, while in possession of premises under a contract to purchase, and a deed of the same, purchase overdue and unpaid mortgages of the vendors,'upon the premises, they become by such purchase substituted in place of the mortgagees, and are entitled, by subrogation, to all the rights of mortgagees in possession.
    2. Such a purchase of outstanding mortgages, by the parties rightfully in possession, even though it be after suit brought by the vendors to recover the possession, vests in them the right to retain such possession.until the mortgages are paid. This is a right which can be set up and made available by way of defense if an action of ejectment be- brought against the parties in possession. Ter Barbour, J.
    3. And in a proper case leave to amend the answer, or to file a supplemental answer, for the purpose of setting up this defense, will be granted, upon such terms as will protect the rights of the plaintiffs.
    (Before Barbour, J. at special term,
    February, 1864.)
    Motion for leave to amend answer.

      L. B. Woodruff, for the motion.

      Jos. S. Bosworth, opposed.
   Barbour, J.

This, by the complaint, is an action brought to recover the possession of certain lands ; being precisely equivalent to an action of ejectment under the old practice. The defendants aver, in their answer, that they entered into the possession of the premises, by and with the consent of the plaintiffs, and now hold the same under a contract to purchase such premises' from the plaintiffs, which is set out, and by virtue of a deed executed to them by the latter, in accordance with the provisions of such contract, under the direction of one of the justices of the Supreme Court.'

The defendants now move for leave to amend their answer by setting forth -the fact, shown by affidavits to exist, that, previous to the commencement of this action, they purchased, 34)4 still hold, a certain mortgage upon the pyemises, then overdue, and which remains unpaid ; showing, by way of excuse for not inserting the same in their answer, that their trustees failed to communicate such fact to their counsel, because "they supposed it to be unimportant. They also ask to be permitted to file a supplemental answer, setting up the fact likewise sufficiently established by affidavits for the purposes of this motion, that after the commencement of the action, and while they were in possession of the premises under their contract with, and their deed from, the plaintiffs, they purchased and now hold certain other overdue mortgages of the plaintiffs upon the premises.

Although it maybe doubtful, in view of the statements contained in the affidavits, whether the plaintiffs’ deed, or even their contract to convey is valid, so as to vest in the defendants the right to continue in possession of the church edifice and premises which are the subject of the action, it seems to me quite clear, from the facts before me, irrespective of those papers, that the defendants were placed in possession of the church edifice and grounds by the plaintiffs, and continued to hold the same up to and at the time they purchased the mortgage first above mentioned ; and that upon and by such mortgage, they became substituted in place of the mortgagee therein and entitled, by subrogation, to all the rights of a mortgagee in possession. The defense now sought to be set up by way of amendment is, therefore, a proper one ; such an one, it may be assumed, as would have been interposed, if the facts had been brought to the knowledge of the counsel. I think it would be unjust to deprive the defendants of the right to set up the facts constituting such defense j but inasmuch as the amendment has been rendered necessary by the ignorance, and therefore the fault, of the defendants’ own agents, leave should be granted only upon such terms as will fully protect all the rights of the plaintiffs.

I think, also, that the application for leave to serve and file a supplemental answer ought to be granted. For, if' the defendants were rightfully in possession of the premises, at the time they purchased the mortgages mentioned in the moving papers, either under their contract to purchase, or the plaintiffs’ deed, or as mortgagees in possession under the first mentioned mortgage, their purchase of these mortgages, even though after suit brought by the plaintiffs to recover possession, vested in them the right to retain such possession until such mortgages should be paid ; such a right as could have been enforced, I think, under our former system of jurisprudence, by injunction in a suit brought to foreclose the mortgages against proceeding to judgment in the action of ejectment, until the mortgage debt should be paid; and the same right, undoubtedly, exists under our present practice in cases where the party cannot have his proper remedy as defendant in an action like this. But when full relief may be obtained by means of á supplemental answer, in a pending suit, without prejudice or hazard to the interests of the plaintiffs, I' see no valid reason for driving the defendant to a new suit.

Both of the motions should, therefore, be granted, provided the right of the plaintiff can be secured. It is easy to see that the defendants ought not to be allowed to set up such a défense now, by an amendment to their answer, as may entitle them to costs in the action, without providing for the payment of costs already accrued during, if not because of, their laches. Nor should they be allowed to set up such a defense, either by amendment or by way of supplemental answer, as may prevent the recovery of possession by the plaintiffs, and, perhaps, cast them in costs, without permitting the latter to obtain a full and final determination of all the rights of the parties touching the possession of the premises in question.

An order may be entered granting leave to the defendants to amend their answer and to file and serve the supplemental answer prayed for, provided they shall add to and serve with such amended answer and supplemental answer, respectively, within tep. days front the service of such order, an alternative prayer for a judgment foreclosure upon the mortgages, ip case it shall be determined that the defendants are not entitled to the possession of the premises under any right other than as mortgagees in possession, and, also, pay to the plaintiffs, within süch ten days, the costs of the action to the date oof the service of notice of this motion. The defendants. must, also, as a condition precedent, execute to the plaintiffs a stipulation that the costs of the action shall he in the discretion of the court. Ten dollars, costs of this motion, to the plaintiff, to abide the result of the action.


text:
    William Loeschigk et al. plaintiffs, vs. Morris Jacobson et al. defendants.
    A provision, in an assignment of property in trust for the benefit of creditors, directing the assignees, after converting the assigned property into money, out of the proceeds “ to protect, save harmless and imdemnify the party of the second part of and from the payment of any sum by reason of his having executed a covenant of suretyship,” for the payment by the assignors of certain sums, due at various periods within four years, although a trust to pay certain sums not yet due, does not render the assignment void.
    (Before Barbour, J. at special term,
    February, 1864.)

      Wm. Watson, for the plaintiffs.

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

This is an action, in the nature of a creditor’s suit, brought to set aside an assignment, and also to reach certain household furniture alleged in the complaint to belong to one of the three judgment debtors, and to be held for his use by another of the defendants.

By the assignment, made in April, 1861j the three assignors, members of a firm, convey to the assignee all the estate, real and personal, jointly held by them, in trust to convert the same into money and, out of the proceeds, “ to protect, save harmless, and indemnify the party of the second part of and from the payment of any sum by reason of his having executed a covenant of suretyship,” ® * for the payment by the assignors of certain rents, amounting to $3500 a year* payable quarterly, covered by a lease then having about four years to run. As this is the only important direction which is objected to by the plaintiffs, it is unnecessary to state the further provisions of the assignment.

The direction objected to does not constitute a trust to hold a portion of the funds to indemnify the assignee for such sums as he may be compelled to pay upon a contingent liability, and which, from the nature of the obligation, he may never be required to pay at all, but it is a direction to pay the rents as they shall become due ; for in no other way can the guarantor be fully protected and saved harmless, of and from the payment of such rents. It is, therefore, a trust to pay certain sums, not yet due, at certain fixed periods as they shall accrue ; to which, under numerous decisions, no valid objection can be made. It follows that the assignment must be sustained.

The plaintiffs failed to show by their evidence, I think, that the furniture of the defendant Jacobson, alleged to be held by contract, comprised any articles other than those which were by law exempt from sales on execution.

The defendants must have judgment, dismissing the complaint with costs.


text:
    Edwin Walsh, plaintiff, vs. The Sun Mutual Insurance Company, defendants.
    1. A stay of proceedings to enable a party to move for a special jury, should not be granted, except at the trial term, or by the justice assigned to hold that part of the trial term upon whose calendar the cause is placed. If a stay is granted by a different justice, it may be vacated, on application of the defendant.
    2. When, and under what circumstances, a special jury will not be granted, in an action upon a policy of marine insurance.
    (Before Moncrief, J. at special term,
    March 11, 1864.)
    This was an application (upon an order to show cause) “ for a special jury to be struck for the trial of this cause.”

      James T. Brady, for the motion.

      W. Curtis Noyes, in opposition.
   Moncrief, J.

The affidavit states that the case is on the calendar of the present (March) term of this court and will very likely be reached on the first day of the term. Some such allegation was necessary to obtain an. order to show cause, avoiding the usual notice of motion of eight days. A stay of proceedings should not have been granted under such circumstances except at the trial term, or by the justice assigned to hold that part of the trial term upon whose calendar the cause was placed. (Rule 39 of the Rules of Court, § 402 Code.) The reason of the rule and great propriety of the practice is obvious. Otherwise the justice presiding at the trial term ceases to .control and regulate his calendar, and confusion and embarrassment occurs to counsel, clients and others. The stay could have been vacated upon the application of the defendants. (Code, § 324.)

This application is made upon an affidavit of the attorney for the. defendants upon the pleadings and proceedings in this action and the printed case on appeal in the case of this plaintiff and another insurance company. The affidavit states that in the judgment of said attorney a fair and impartial trial cannot be had without a struck jury, and that “the importance and intricacy of the cause require such a jury ; it discloses that the action is on a policy of insurance issued to the plaintiff upon the ship “Senator” and the “freight,” claiming the vessel to have been totally lost in August, 1862, to the damage of the plaintiff of $15,000 and interest from September 5th, 1862 ; that the answer denied the allegation in the complaint, that said vessel was seaworthy when she sailed on her voyage, and charges that her loss was occasioned not by perils of the seas or by any perils insured against, but by the fault and neglect of the owner. The affidavit proceeds to state “two grounds of defense to the action, both of which (as is alleged) are intricate and difficult, and not within the region of common knowledge, viz : First. That the ship when she sailed on said voyage was unseaworthy; and, Second, that the master was chargeable with a want of competency and seamanship in not making a near port of distress at the time when the. water is alleged to have been gaining upon and disabling his vessel,' and which he might and ought to have done in season to prevent her loss.” “That another action has been tried in this court in which the said issue of unseaworthiness was tried and the intricate and difficult nature thereof fully developed.”

The ’unseaworthiness of the vessel can readily and intelligently be proven by the builder of the vessel or by other competent persons who examined her at or about the time of her proceeding to sea, or by those employed or on board while at sea. This seems quite plain and simple. The competency of the master, or his want of skill and exercise of proper prudence and caution, when the circumstances in which his vessel was placed, as to her condition or otherwise, have been detailed, are susceptible of easy ascertainment by the evidence of those possessing proper skill and experience in the same vocation. There seems to me nothing intricate about such a defense ; it may be difficult to establish either branch of it to the satisfaction of a jury, but with the aid of learned counsel, the ability of skillful witnesses, and a charge from a learned judge, technical terms, if employed -by witnesses, can be made appreciable to the common understanding.. The jury (a common, not a special jury,) in the other and similar case experienced no difficulty in determining the case submitted to them; they agreed upon a verdict in less than the time ordinarily taken for consultation. If, as appears to be intimated in the affidavit, a verdict for the plaintiff cannot be sustained upon the evidence in that cause, the reply is, the case should not have been submitted to them, and the verdict will be set aside as against evidence. The trial of almost every case requires the employment of words technical in the law, the other learned professions or the peculiar vocation under discussion. The jury are bound to find their verdict upon the evidence given upon the trial of the cause ; not upon any personal experience or peculiar intelligence.

An examination of all the authorities found hy me, including those cited hy the learned counsel for the defendants, has not enabled me to discover a precedent for granting a motion in this case, and I ignore the fact that issue was joined in this case in November, 1862, and the case is upon the day calendar and during the last term, while then presiding, the counsel for both parties, I think, for several days answered “ready.”

In 3 Caines’ Rep. 84, (Hartshorn and others v. Gelston,) it having been suggested that the United States was interested in the cause, it was held that the parties litigant do not make a case important.

In 1 Caines’ Rep. 498, (Spencer v. Sampson,) there was a question whether the statute used the disjunctive or conjunctive, and the court held the former. The motion was granted for the reason that “ it is of great consequence to this court to protect its officer and those of the public in the discharge of their duty. The action was for words spoken of and concerning the plaintiff in his official character as attorney general. So too held in Van Vediten v. Hopkins, (2 John. 373;) Thomas v. Croswell, (4 John. 491, and 1 id. 161.)

In 1 John. 141, (Livingston v. Smith, Pres’t,) the affidavit alleged that the causes were, in the opinion of counsel, important; the only fact disclosed appears to be that the claim in one suit was for §10,000 and in the other for $18,000. No opinion is given. (And see Livingston v. Columbian Ins. Co., 2 Caines’ Rep. 28, and 380, supra.)

In 1 John. 141, (New Windsor Turnpike Co. v. Ellison,) the motion was granted for the reason that questions of this kind affecting the public were important in their consequences.

In 1 John. 314, (anonymous,) the rule was refused, although the fact appeared that another cause on the same policy had been tried and the jury had disagreed ; the affidavit stated that the action involved questions of intricacy and importance.

In Wright v. The Columbian Ins. Co., (2 John. 211,) a rule was refused. The affidavit stated the claim to be upon a policy of insurance, claiming a total loss to the amount of $27,500.

In 2 Wend. 296, (Poucher v. Livingston,) it was said to be an extraordinary case, and the order was refused.

In Patchin v. Sands, &c. (10 Wend. 570,) it is held that a struck jury is never granted except in extreme cases.

Nesmith v. The Atlantis Ins. Co., (8 Abbott’s Pr. 423,) if I remember accurately, was a case in which the jury had disagreed upon at least two trials ; the claim was large, and difficult questions of law and of. fact were invoked, and Judge Pierrepont refused the order.

The case of Giles v. Flagg, was important, of great public interest.

It will be observed that many of the cases cited, in which the rule was refused, were on policies of maratime insurance under claims for total loss, and it is not unjust to assume that 'every question of defense arose which can arise in the present action.

The motion is denied, with ten dollars costs to be paid by the defendants to the plaintiff or his attorney.


author: Garvin, J. Barbour, J;

text:
    Casper C. Childs, receiver, &c. plaintiff and respondent, vs. George Fox et al. defendants and appellants.
    On the hearing of an order to show cause why a preliminary injunction should not be continued, the plaintiff was allowed by new affidavits to support his complaint a&d explain affidavits réad by the defendants denying the facts set ' forth in the papers on which such injunction was granted. Seld that this was an exercise o.f discretion on the part of the justice at chambers, over which the general term has no control, and which it could not review,
    (Before Moncrief, Barbour and Garvin, JJ.)
    Heard March, 1864.
    Appeal from an order made by a justice at chambers, conT tinning a preliminary injunction,

      J. F. Walton, for the appellants.

      B. T. Kissam, for the respondents.
   By the Court,

Garvin, J.

The defendants, on the hearing in this action, read several affidavits denying the facts set forth in the plaintiff’s complaint and the affidavit on the part of the plaintiff; whereupon the plaintiff, on application to the court, was allowed to read affidavits, explaining the affidavits on the part of the defendants and in support of his complaint. This was an exercise of discretion on the part of the justice at chambers, over which we have no control, and cannot review. Rad time been asked by the defendants to answer the new and additional affidavits, it would doubtless have been accorded to them, so that no harm could have resulted to the defendants. Besides, § 220 of the Code, provides that upon its appearing satisfactorily to .the court or judge by the .affidavit .of the plaintiff, or any other person, that sufficient grounds exist therefor, the injunction may be -granted. The affidavit accompanying the complaint is very positive, and details the facts with much care and particularity, and it may very well be that the justice who heard the motion was abundantly satisfied upon that affidavit alone, that satisfactory cause existed, and was made out by it, for continuing the preliminary injunction. That was1 a question on the facts for him to decide. Entertaining these views, I am of opinion -the order made at chambers should be affirmed, with costs.

Barbour, J;

(dissenting.) The order appealed from was made upon the return of another order, founded upon the complaint in the action and one affidavit, temporarily'restraining the defendants from disposing of the property which is the subject matter of the action, and requiring them to show cause ■ why such injunction should not be continued.

At the hearing before the judge, the complaint and affidavit mentioned in the order to show cause were read by the plaintiff’s counsel. All the material allegations contained in the complaint, having reference to the proposed injunction, were stated therein to be made upon information and belief, and, therefore, furnished no evidence upon, which to base an order. The affidavit, however, not only stated, positively, that the defendant, William C. Lyons, purchased from Gr. & B. Fox, and in part paid for, and was the owner of the property, but averred that William H. Lyons did not purchase the same, and was not the owner thereof. The affidavits of all the four defendants were then read by their counsel. These denied, fully and unequivocally, that William C. Lyons purchased, or partially paid for, or owned, the property, and as positively alleged that William H. Lyons bought and owned the same. It may further be said, in this connection, that the person who made the affidavit used by the plaintiff does not appear to have been in any manner connected with the transactions sworn to by him, and does not state how he obtained his knowledge of the matters stated by him, nor even that-he has any knowledge, from circumstances or otherwise, that the material facts testified to by him were true; while, on the other hand, the persons who made the other affiavits were, themselves, parties to the transactions of which they speak. If the case had rested there, therefore, there can be no doubt the motion of the plaintiff ought to have been refused. But, upon the application of the plaintiff’s counsel, he was then permitted by the justice to read nine affidavits, for the purpose, evidently, of supporting ihe statements contained in the affidavit first read, and not, so far as I can discover, to contradict or disprove any new matter, of importance, set up in the affidavits read by the defendants, or, if any, but little.

I think those additional affidavits were improperly received. Where new matter is set up in the affidavits read in opposition to a motion, in cases of this description, the party making the motion may, in the sound discretion of the judge before whom it is made, be permitted to produce affidavits in reply to such new matter. (Florence v. Bates, 2 Code R. 110.) But it would be dangerous, as well as, in many cases, manifestly unjust, to permit a party opposing a motion to read affidavits in addition to, those upon which his motion has been made, merely for the purpose of strengthening the case he has already made by his moving papers, and not to contradict or disprove new matter presented in the affidavits of his opponent. Indeed, it is difficult to imagine a case in which such admission would operate more oppressively upon the party against whom such additional papers were used than the one now under consideration. For the defendants, it may well be assumed, went before the judge fully prepared, as they supposed, and as I think they were, to defeat the motion on the case made by the papers with which they had been served, and, after disproving the allegations they had been called upon to answer, were met by a new series of affidavits which they had never seen, and to which they had had no opportunity to reply; although, for aught I can discover, the additional affidavits might have been obtained by the plaintiff and served upon his opponents long before the hearing of the motion.

I am of opinion, therefore, that the order should be set aside and vacated, with costs.

Order affirmed.


text:
    Andrew H. Ward, Jr. plaintiff, vs. James Waterhouse, defendant.
    1. Denial by an indorser, in his answer, that he ever received notice of presentment, demand, non-payment and protest of the note sued on, is material; as without proof of such notice to the indorser, the indorsee cannot recover against him. Hence an answer containing such a denial cannot be struck out as false and sham.
    2. Although a notary may have sent a notice to an indorser, properly addressed, by the proper channel of communication, it does not follow that he can testify . that the indorser actually received the notice.
    3. By statute, the certificate of a notary is only made presumptive evidence of some of the facts therein stated, as to presentment and other matters affecting negotiable instruments. The presumption ceases, as to the receipt of notice by the defendant When he positively denies in his answer that he ever received one.
    (Before Moncrief, Monell and McCunn, JJ.)
    Heard April 9, 1864.

      This was an appeal from an order denying a motion to strike out the defendant’s answer as false and sham. The action was upon a promisssory note against the indorser by the indorsee.
    The complaint alleged, among other things, that prior to the maturity of the note, (upon which the action was brought,) and subsequent to the making thereof, the same was indorsed in blank, for a valuable consideration, both by the payee thereof, and by the defendant, and the same was transferred,. so indorsed, to the plaintiff, prior to such maturity, for a valuable consideration; also, “that at the maturity of said note, * * the same was duly presented for payment, and payment of the same was duly demanded, which was refused, and thereupon the same was duly protested for non-payment, of which presentment, demand, non-payment, and protest,, the defendant herein received due notice. The defendant, by answer, controverted each of these averments, in direct and positive terms. It denies that the defendant ever received any consideration for his indorsement,- and alleged that it was made for the accommodation of the maker; also,- that the plaintiff became, or was the owner of the note prior to its maturity, and the plaintiff admitted, in an affidavit made by him, that he became the owner of the note long after its maturity. The defendant also denied in his answer, that he ever '¡received notice of presentment, demand, non-payment and of protest of the note,

      J. Cadwallader, for the plaintiff, appellant.

      H. L. Clinton, for the defendant, respondent.
   By the Court,

Moncrief, J.

Without proof of the presentment, demand, and nonpayment and notice to the defendant, the plaintiff cannot recover against him as the indorsee of the note. (4 Denio, 460.) In Mussina v. Stillman, (13 Abb. Pr. 93,) it was held that even where it appeared by an answer that many of the denials were only general,, it would not be stricken out as false. It was held, in Bailey v. Lane, (Id. 354,) that the denial by the answer of presentment, demand, protest and notice, was sufficient, and it should stand, The denial in the answer of notice of such steps having been taken, was, therefore, material. The certificate of the notary is made by statute presumptive evidence only of the matters therein stated as to presentment, &c. and the presumption ceases when, as in this answer, the defendant positively denies that he received a notice. It is quite obvious that the notary cannot testify that the defendant received, the notice, although he may have sent it by mail, addressed to the defendant at his place of residence. It is not pretended that the defendant was personally served with a proper notice by the notary. The order refusiúg to strike out the. answer as false and sham, was clearly right, and should be affirmed, with $10 costs, and disbursements for. printing.


text:
    William Coit, administrator, &c. plaintiff, vs. Anthony McReynolds, defendant.
    1. The covenant of seisin is only a guaranty against a title existing in a third person, which might defeat the estate granted; not against a possible judgment of a court, which may invalidate a proceeding through which the grantor obtained his title.
    2. Such a covenant is broken, if at all, at the time made. It cannot be broken afterwards. 'Whatever may subsequently occur, to defeat the title, whether the act of the party, or the judgment of a court, the covenant cannot be affected.
    3. If the covenant is complied with, when made, it must always remain so. If the possession of the grantee is afterwards disturbed, he must resort, for redress, to some other remedy.
    4. A lot of land was conveyed, the title to which was derived under a deed from the sheriff, executed in pursuance of a judgment of foreclosure and a sale thereunder to the grantor in such a conveyance. After such conveyance, upon the application of the holder of a prior mortgage, the sale under the judgment was set aside, and the judgment opened. Subsequently, a prior mortgage was . foreclosed, the grantee in such conveyance being a, party defendant in the action, and the premises were again sold, by which such grantee lost the property.

      Eéld that the effect of the order setting aside the salé and opening the judgment was to restore the lien and operation of the two prior mortgages; but that it did not operate as a disseisin of the purchaser’s title; at least so as to relate back, and work a breach of the covenant of seizin in his deed to the purchaser from him. »
    (Before Monell, J. at special term,
    April 14, 1864.)

      T. D. Pelton, for the plaintiff.

      W. R. Stafford, for the defendant.
   Monell, J.

This action was to recover damages for the alleged breach of the covenant of seisin, in a deed from the defendant to the plaintiff’s intestate, of a lot of land in this city. The defendant’s title was derived under a deed from the sheriff, executed' in pursuance of a judgment of foreclosure of a mortgage and a sale thereunder to the defendant. After the conveyance to Mrs. Clark, (the plaintiff’s intestate,) upon the application of the holder of a prior mortgage, the sale under the judgment was set aside, and the judgment opened subsequently, a prior mortgage was foreclosed, Mrs Clark being a party defendant in the action, and the premises again sold, and Mrs. Clark lost the property. An appeal has been taken from the order setting aside the sale, to the Court of Appeals, which is now pending. It is claimed that the order setting aside the sale, and opening the judgment, operated as a disseisin of the defendant’s title, and worked a breach of his covenant of seisin. The grounds of the decision of the Supreme Court, in vacating the sale, do not appear. The order was made at a general term, and is presumed to be correct. But that question is not now before me.

The deed to Mrs. Clark was delivered nearly a year before the order vacating the sale was entered, although the motion at special term, which was denied, was made previously. Until that order.was entered, the title which the defendant acquired under the sheriff’s deed, and which he conveyed to Mrs. Clark, had not been disturbed, and except for that order, it would not have been disturbed. The sheriff’s deed invested the defendant with a title 'to the premises, which was capable of being granted ; and Mrs. 'Clark took, under her deed, the precise title which the defendant had. I am unable to give any other or greater effect to the order of the Supreme Court, than that it restored the lien and operation of the two prior mortgages. It did not operate as a disseisin of the defendant’s title, at least in the sense that it would relate back, and work a breach of the covenant of seisin in his deed. It left the prior mortgagees .to enforce their remedies, to the same extent as if they had not been parties to the foreclosure suit. That the order of the Supreme Court did not operate as a disseisin of the defendant’s title was substantially decided in this court, in Holden v. Sackett, (12 Abb. 473.) It is there said that a judicial sale, made pursuant to the decree or judgment of a competent court, having jurisdiction of the subject matter and of the parties, passes title to the purchaser, even though the judgment should afterwards be reversed, or set aside for error or irregularity on appeal, and the cases there cited in support of this proposition, I think, fully sustain it. The judgment which was opened, had foreclosed the equity of redemption of the mortgagor, and all the defendant acquired was the equity of redemption of the premises encumbered by the two prior mortgages. The title thus acquired was indefeasible, except by the foreclosure of the prior mortgages, which by the order of the Supreme Court, were restored to their original lien. Had Munns, the mortgagor, conveyed the equity of redemption to the defendant, the result would have been the same. Although the order rof the court, in terms, opened- the judgment, yet I cannot believe it was intended to do any thing more than to relieve .the holders of the prior mortgages from its. effects. Munns had acquiesced in the judgment, and was not a party to the application.

The covenant of seisin is broken, if at all, at the time it is made. (Hamilton v. Wilcox, 4 John. 72. Greenby v. Wilcoxs, 2 id. 1. Abbott v. Allen, 14 id. 248.) It cannot be broken after it is made. Whatever may subsequently transpire, to defeat the title, whether it be the act of the party, or the judgment of a court, the covenant cannot be affected. The covenantor either was seised or he was not,-at the time he made his covenant. If he was seised, his covenant was not broken at the time, and it would not be broken afterwards, Suppose a man conveys his property to an innocent party, in fraud of his creditors, and a court should set aside the deed, (if a court could be found to do such a thing,) would an action lie by the grantee for a breach of the covenant of seisin ? I think not. Yet the fraud operated at the time the deed was .made, and effect would have to be given to the fraud, in vacating the deed. It seems to me quite clear, that at the date of Mrs. Clark’s deed the defendant was seised, and that his covenant then made was not broken. If the covenant is broken as soon as made, then the .covenantee may .immediately sue. Could Mrs. Clark have brought her suit on the day she received the deed ? Certainly not. Then the covenant was not broken on that day, for the defendant could at that time have shown a good title.

There is no principle upon which a right -of action for a breach of the covenant of seisin, and similar covenants, can arise, after the covenant is made. If the covenant is satisfied when made, it must remain so ; and if the possession of the grantee is afterwards disturbed, he must resort for redress to some other covenant in his deed.

The covenant of seisin is only a guaranty against any title existing in a third person, which might defeat the estate granted, (Fitch v. Baldwin, 17 John. 161;) not against a possible judgment of a court invalidating a proceeding through which the grantor obtained his title.

It is not the want of a perfect title, says Edwards, J. (in Fowler v. Poling, 2 Barb. S. C. R. 300,) which constitutes a breach of the covenant of seisin. The covenantor may have a defeasible title, and yet not be liable on this covenant. It is not necessary that he should have a seisin in law ; he may have a seisin in fact. And the latter, though not sufficient as a bar to a suit founded on a paramount title, would be a good bar to an action founded on the covenant of seisin.

I do not undsrstand what is meant by a seisin in fact, as distinguished from a seisin in. law; nevertheless the case referred to is an authority that a mere defeasible title will not' work a breach of the covenant of seisin.

The case of Bingham v. Weiderwax, (1 Com. 509,) relied on by the plaintiff’s counsel, does not aid him. In that case, W. and S. had conveyed certain premises to B.’s intestate, with covenant of seisin, subject to two mortgages.. The mortgages were foreclosed, and at the sale under the decree of foreclosure, the premises were purchased by a stranger. W. and S. had no title," and their covenant of seisin was broken when made. The court held that the omission of B.’s intestate to pay the mortgages, and suffering a foreclosure and sale, did not defeat his action for a breach of the covenant of seisin. The right to that action existed when the covenant was made, and did not depend, in any respect, upon the foreclosure of the mortgage and sale under it. " The marked distinction between that case and this, is that Weiderwax was not seised, whereas the defendant here was seised.

I have given to this case a very careful examination, not only because of the novelty of the questions involved, but because of its importance to the plaintiff. I have not been able to find any principle upon which the action, as it is stated in the complaint, can be sustained. The plaintiff's intestate has suffered a serious loss, and her representative is not, I think, without a remedy. In the present action he has mistaken that remedy, and I am constrained to dismiss his complaint.


author: Robertson, Ch. J.

text:
    Charles W. Prentiss, plaintiff, vs. J. A. Machado et al. defendants.
    1. Although the court may retain enough control of an action, after judgment, in order to carry it into effect, yet it can only adjudge and dispose of the rights of the parties in the judgment.
    2. After a judgment has heen entered, declaring an assignment void, and ordering the assignee to deliver over to a receiver enough of the assigned assets to pay the plaintiff’s claim, and in case of a refusal, directing a referee to take an account of moneys in the assignee’s hands; and such account has heen taken, and a report made and confirmed, showing more than enough in the assignee’s hands to pay the plaintiff’s claims, the court will not, on motion, make an order or addition to the judgment, requiring the assignee to pay such amount to the plaintiff in order to enable the latter to sue upon such addition in another state.
    (Before Bobbktsoií, Ch. J. at special term,
    April, 1864.)
    Motion for an order, or addition to the judgment in this case.

      C. W. Prentiss, plaintiff in person, for the motion.
   Robertson, Ch. J.

The relief sought in this action was to set aside an assignment made by the defendant Machado to his co-defendant as fraudulent as against the plaintiff, who was a judgment creditor of the former.. The issues made by the answers thereon were tried before a judge without a jury, upon whose decision a judgment was entered, declaring such assignment void, and ordering the assignee (not to pay the plaintiff, but) to deliver over to a receiver, who had been appointed in the cause, enough of the assigned assets to pay the plaintiff’s claim, and in case of a refusal, directing a referee to take an account of the moneys in the assignee’s hands. That account has been taken, and a report made and confirmed, showing more than enough in the assignee’s hands to pay the plaintiff’s claims. A motion is now made for an order, or addition to the judgment, requiring such assignee to pay such amount to the plaintiff, in order to enable the latter to sue upon it in some other t state.

It is not material now to inquire whether the receiver could not sue in another state on the order contained in the judgment ; the only question is, whether this court has now authority or jurisdiction to make such an order, or to add to the judgment already given.

Although the Code has been in operation fifteen years, the legal profession persist not only in overlooking the entire blending of legal and equitable actions thereby, but also the change of nomenclature of proceedings. Although there is but one kind of action allowed to obtain a remedy, (Code, § 69,) in which the proceedings take their names rather from Chancery than the common law, (§ 141, 149,) and there are no pleas allowed but only defenses and counter-claims; (§ 150;) notwithstanding there is but one mode of examining issues formed by such pleading, (§ 248,) which is a trial, (§ 252,) and the only final determination of any of the rights of a party in an action is a judgment, (§ 245,) it is still supposed a case maybe heard or tried by the court by piecemeal after giving judgment upon one branch of it, by what is called reserving further directions. The court retains,- undoubtedly, control over an action after judgment, in order to take measures to carry it into effect, (Code, § 272,) but the judgment must dispose of the rights of the parties. The reference in this action contained in the judgment was not made by the court as necessary to enable it to give such judgment. (Id.) It was not a reference of the whole issue, (Code, § 272,) or any specific fact involved therein, (Id. 254,) which must precede the trial by the court of the issues, is only to assist it in such trial, (Id. §§ 272,260,) and is to be treated as a special verdict in rendering judgment. (Id.) Clearly the reference in this case was not a substitution of the referee for the court in a matter involved in the issues and to be taken as a basis of the judgment.

The reference, however, to take the amount was proper, and may be sustained under section 272 of the Code, as necessary to carry the judgment into effect. The plaintiff elected to take or the court determined to give him a judgment, simply requiring the defendant Hudson to deliver over to a receiver the assets in his hands, instead of' one requiring him to pay the plaintiff’s claim to himself. The former is more stringent, because it may be enforced by process of contempt; the latter could only be enforced by execution. Nor did the fact, that the court was ignorant of the amount held by the defendant Hudson, interfere with its adjudging that he should 'pay what he should be found to have in his hands after the confirmation of a report of a referee. Such a judgment, although contingent and conditional, and not final, so as to allow an appeal, (Lawrence v. Farmers’ Loan and Trust Co., 15 How. Pr. 57 ; Swarthout v. Curtis, 4 N. Y. Rep. 415,) becomes a complete judgment when the report is confirmed, (id.)

There is, of course, no such thing known now. as the interlocutory judgment of a court of common law, or interlocutory decree of a court of chancery ; nor is there any such a thing as a judgment order. Since, technically, an order is something not included in a judgment, (Code, § 400,) an order of reference, if made to accompany a judgment, ought properly to be called only a direction. (Id. § 271.)

If the trial has not been completed, and judgment given, the issues still remain to be tried at special term on proper notice. On such trial, possibly, the referee’s report might be used as evidence of the amount in the defendant’s hands, but the whole issues must be re-opened thereby on the merits. Possibly if the judgment given was not according to the intention of the court in giving it, it "may be reformed or vacated, but I have before me no notice of such a motion.

The judgment being that the defendant Hudson pay the receiver, which was not necessary, as he had never received any thing, and it might as well have been to pay to the plaintiff, the only further order I have authority to make, if not already contained in the judgment, is that such defendant pay to the receiver enough of the amount found due to pay the plaintiff’s claim, because it becomes an order to carry out the judgment, whereas an order .that -the defendant- pay thé plaintiff such sum can be nothing but a judgment under the Code.


text:
    David Carr, plaintiff, vs. Fred'ck Wehrnan et al. defendants.
    In an action to foreclose a mortgage, the defendants claimed, in their answer, that the mortgage was given to secure subsequent advances or liabilities, and that on the transactions arising therefrom the plaintiff owed the defendants a sum of money, for which the defendants had brought an action, in another court.' A reply to such answer merely denied any counter-claim. The defendants moved for a reference to take an account, before the trial. The plaintiff opposed the' motion by an affidavit setting up an account stated.

      Held that as the case was one in which the fact of the settlement could be tried by a referee, under section 254 of the Code, it was proper it should be so tried.
    (Before Robertson, Ch. J. at special term,
    April, 1864.)
   Robertson, Ch. J.

This is an action for the foreclosure of a mortgage. The defendants claim in their answer that such mortgage was given to secure subsequent advances or liabilities, and that the plaintiff owes the defendants a sum of money on the transactions between them for which the defendants have brought an qction in another court. The only reply is a denial of any counter-claim set up in the answer. The present motion is made by the defendants for a reference to take an account before the trial. The plaintiff sets up in his. affidavit, in opposition, an account stated which is testified to by three witnesses. The defendants, by rebutting affidavits, deny such settlement,

If the plaintiff had thought proper, in his complaint, to state all the facts of the case including the settlement, the defendants would have had an opportunity of taking issue on it and the case would have rested on such issue. As, however, the case is one in which the fact of such settlement can be tried by a referee, under section 254 of the Code, it is proper it should be so tried; so that if the fact is found in favor of the plaintiff, by such referee, judgment may be rendered on the trial without examining into the state of the accounts, (Code, § 272, par. 1,) or, if against it, that an accounting may also be ordered, before a referee, of all the transactions between the parties.

The form of the order may be settled on two days’ notice. The reference is to be made to Murray Hoffman, Esq.