text:
    The People, ex rel. Marquis D. L. Sharkey, plaintiffs, vs. John Kelly, Sheriff &c., defendant.
    1. The act of the legislature, of April 26,1831, “ to abolish imprisonment for debt,” &c., is not repealed by any of the provisions of the Code.
    2. An intent to. repeal a previous statute cannot he implied from the fact of inconsistency, when an intent not to repeal is expressed in the later act.
    3. The city judge, of New íork, has jurisdiction to entertain proceedings under the Stilwell act.
    4. A commitment under the Stilwell act need not specify what property, money and rights of action the debtor is adjudged to have fraudulently concealed or refused to apply to the payment of the judgment, &c., or to have assigned with intent to defraud his creditors.
    (Before Jones, J., at Special Term,
    December, 1867.)

      John E. Burrill, for the relator.

      Wm. Fullerton and A. J. Vanderpoel, for the sheriff.
   Jones, J.

The relator, being held in custody by the sheriff, under a commitment issued by the city judge, in certain proceedings pending before him under the act entitled “An act to abolish imprisonment for debt and to punish fraudulent debtors,” passed April 26,1831, and the acts amendatory thereof, sued out a writ of habeas corpus, and now asks for his discharge on the ground that" the commitment is invalid, in that—

1st. The act of 1831 is repealed.
2d. Even if it is not repealed, the city judge has no jurisdiction to entértain proceedings under it.
3d. The commitment is defective in not specifying what property, money and rights of action the relator is adjudged to have fraudulently concealed, and to have unjustly refused to apply to the payment of the judgment against him, and to have assigned, disposed of, and removed with intent to defraud his creditors.

It is not claimed that the statute of 1831 is repealed in express terms, but it is insisted that it is repealed by implication, because, as it is argued, its provisions are inconsistent with the provisions of the Code.

If section 178 of the Code read, “ Ho person shall be arrested in a civil action, except as prescribed by this act,,? and there stopped, it might be strongly urged that the act of 1831 was repealed. But this broad language is qualified by the following clause, contained in the section: “ But this provision shall not affect the act to abolish imprisonment, &e., passed April 26, 1831, or any act amending the same.”

The counsel for the relator saw the necessity of avoiding so distinct a declaration of the legislative intent as this. He therefore urged that this saving clause applied only to section 178, and that consequently if the act of 1831 was inconsistent with the other .sections of the Code, it was repealed. The argument is in fact this: although in one section of the act the legislature clearly expresses its intent, not to repeal a former act, yet as other sections of the same act seem to be inconsistent with the former act, an intent to repeal it will be implied. I think the argument unsound. An intent to repeal cannot be implied from the fact of inconsistency, when an intent not to repeal is expressed.

But does not the saving clause reach and cover all provisions of the Code which can in any way be inconsistent with the act of 1831 ?

The language of the section is: “Ho person shall be arrested in a civil action, except as provided by this act; but this provision'shall riot affect,” &c. This, as it appears to me, is equivalent to saying, notwithstanding we have made provisions relative to arrests in civil actions, and have enacted that no arrests shall be made except according to those provisions, yet an arrest may be made, under the act of 1831.

But the relator’s counsel seeks to avoid the effect of this saving clause in another way. He says it is clear that notwithstanding the broad enactment that the act of 1831 shall not be affected, that act is and must necessarily be affected, otherwise the provisions of the Code cannot be in force; because if the provision of the act of 1831, that no person shall be arrested on any civil process or execution in any action on contract, except according to the provisions of that act, is still "in force, the provisions of the Code, so far as they authorize an arrest in actions on contract in a different manner than as prescribed in the act of-1831, cannot be in force. One or the other must give way; and this being so, the earlier enactment must give place to the later one. The proposition is correct. This provision of the act of 1831 is so clearly and plainlyrepugnant to the provisions of the Code relative to arrest that “it must, by reason of such repugnancy, be regarded as re-? pealed to such an extent as to permit an arrest according to the provisions of the Code. • Based on this proposition, the counsel contends that as the provision of the act of 1831, prohibiting arrest, has been abolished, the natural result from such abolition must follow, and that result, he says, is the abolition of the provision for arrests in certain cases. ' The line of argument is this : that the reason for which these various provisions of 'the act of 1831, which authorize an arrest were enacted, has ceased, because the provisions being designed to give an arrest in certain cases in which, by the operation of the first section, no arrest could have been had, were it not for the subsequent provisions, and.the first section having been repealed by the provisions of the Code on the subject of arrest, which will reach all the cases in which an arrest might have been had under the act of. 1831, no reason now exists for retaining the provisions of that act authorizing an arrest, as they are no longer necessary to prevent the operation of the first section (it being no longer in force) upon cases provided for; and then he contends that the familiar principle that “ the reason of the law ceasing, the law itself ceases, also,” applies.

Again, he puts the same argument in a different shape, and contends that, by section 4 of the act of 1831, a party, to obtain a warrant, must swear that- there is a- debt or demand due him, for which the defendant cannot be arrested or imprisoned according to the provisions of the act of 1831.' This requirement, he contends, is not mere matter of form, but of substance, and was intended to confine the arrest under the. provisions of the act which authorized it to cases in which the defendant was, by other provisions of the same act, exempted from arrest, and to exclude from liability to arrest under those provisions of that act, which authorize an arrest of such persons who were not exempted from arrest under the provisions of the act. How he contends that as there is no longer any provision of the act of 1831 which prevents a defendant from being arrested and imprisoned in all cases, the affidavit required by the fourth section can no longer be made, and that in fact there is no longer any case in which an arrest can be had under the act of 1831, because under that act an arrest can only be had in cases where, -by sundry provisions of' the act, the defendant is .exempted from arrest, and there is now no case in which a defendant is exempted from arrest by that act.

The argument is ingenious and forcible, and was ably urged; but there are several well established rules applicable to the construction of statutes, which, prevent its prevailing. Thus it is laid down, that “The law does not favor a repeal by implication, unless the repugnance be quite plain.” Following out this general principle, we find it held that “ although two acts are seemingly repugnant, yet if there be no clause of non. obstante in the latter, they shall if possible have such a construction that the latter may no't be a repeal of the former by implication. The same view has been taken where powers under several acts are such as may well subsist together. It is a general rule ¡ that subsequent statutes which add cumulative penalties and institute new methods of proceeding, do not repeal former penalties and methods of proceeding ordained by preceding statutes, without negative words.”

Again; it is a general rule of construction that words in a statute which have gained no well defined legal meaning shall be construed according to their natural import, and that a statute shall be so. construed as to give effect to all the words contained in it, if it is possible so to do without destroying the obvious intent of the statute. .

As I understand these principles, it is the duty of the court to endeavor so to construe a subsequent statute as to avoid a repeal of a former statute by implication. Is not the Code legitimately susceptible of a construction which will not conflict with the intention of the act of 1831 ?

The abolition of the prohibition against arrest, contained in the act of 1831, by reason of its plain repugnance to the Code provision for arrest, does not necessarily repeal the act of 1831. Effect must be given to the clause providing that the. act of 1831 shall not be affected, if it can be done without destroying the obvious intent of the act, and these words of the proviso must receive their natural meaning. Their natural meaning is, clearly, to retain in force the act of 1831, and the question is, shall effect be given to the words, and if so, what effect... It is clear, as above stated, that such an effect cannot be given to them as to retain, the absolute prohibition against arrest contained in the act of 1831, because that is contrary to the obvious intent of the Code to give an arrest as therein provided. But although we are thus debarred from giving the words their full effect, yet we are bound to give them as much effect as possible consistent with the provisions of the Code; and, for this purpose, to make such modification in the words of such parts of the former act as are affected by the Code, as is necessary to prevent conflict between the two acts. Of course, such* partial effect will go to the retention of all such provisions of the act of 1831 as are not in conflict with the Code. The best mode of testing whether such conflict exists is to import the former statute into the latter, with the necessary modification of those parts clearly affected by the latter. The sections of the act of 1831 which have reference to arrests in courts of record comprise the first 29. The only modifications necessary to be made in these sections are, to strike out of section 1 the words “bio person ' shall be arrested,” &c., to and including the word “equity,” and add, at the end of section 1, the words, “ a warrant of arrest may issue against the defendant as hereinafter provided.” In sec. 3 substitute for the words “ In all cases where by the preceding provisions of this act a defendant cannot be arrested or imprisoned,” “In all cases where by the preceding sections a warrant of arrest may issue.” In section 4 substitute for the words “ for which the defendant, according to the provisions of this section, cannot be arrested or imprisoned,” the words “ and that the claim is of such nature as by the provisions of this act a warrant of arrest may issue.” A modification will be required in section 12, similar to that in the 3d section. The object of sections 20 and 21 has long since ceased; they may therefore be omitted. A portion of section 29 may also be omitted, since bills of discovery are abolished.

It will be seen that the only substantial modification is the striking out of the words prohibitory of arrest and imprisonment. This is necessary because they are in direct conflict with the provisions of the Code. The other modifications are those naturally consequent upon the striking out of the prohibitory words, and necessary to give a sensible reading to the statute, after such striking out. How place these 29 sections of the act of 1831 (omitting the 20th. and 21st) thus modified, in the Code, just after section 205, and search for any inconsistency.' I fail to perceive any. There would then be two remedies by arrest; one by order, and one by warrant, the proceedings on each being essentially different. But there is no conflict. If the arrest is by order, the proceedings to be had thereon must be- according to sections 179 to 205, both inclusive, and the sections imported from the act' of 1831 would have no application, and so e converso if the arrest is by" warrant. Thus the Code would prescribe two modes in which the remedy «by arrest might be pursued, and would prescribe provisions to be followed, if the remedy" be pursued in the one mode, entirely different from those -prescribed to be followed, if the remedy be pursued in the other.

It may be bad policy to give an arrest in two distinct modes, for the same causes; but there can be no question of the power of the legislature to do so,' and courts have nothing to do with the policy of legislative acts. It may be that the courts will hold that both modes cannot be taken at once, and also that the taking of one debars a party from taking the other. That question, however, does not now arise.

It may be urged that the court has no power to make the modifications in the act of 1831, above suggested as necessarily consequent on striking out the prohibitory words therein contained. The court, however, does not make these modifications. The legislature makes them. "When, in passing an act, the legislature provides therein that it shall not affect a prior act, and yet the provisions of the later act are plainly repugnant to some of the provisions of the former act, while all the provisions of the subsequent act may well consist and stand with some other of the provisions of the former act, the result of the legislation is to repeal the plainly repugnant parts, to retain the others, and to mold the language of the former act in such shape as to properly carry out the design. The duty of the court is simply to ascertain and declare what the legislative enactment is, and in doing this, it has the power to either add to or take from a former statute such words, the addition or subtraction of which must necessarily be imputed to the legislature as a necessary consequent upon the words used and intent expressed in a subsequent statute.

I see no ground upon which the act of 1831 can be regarded as repealed to any extent, further than as above indicated.

. I have given the greater attention to this part of the case because it is the first in which the question has been distinctly raised and fully argued. Heretofore the minds of lawyers and judges have been instantaneously, on the bare reading of the saving clause, brought to the conclusion that the act of 1831 is unrepealed. Thus we see, in numerous reported cases, the act is treated as still existing; and not a word falls from either judge or lawyer indicating that there existed in their minds any idea that it had been repealed.

I feel much fortified in the conclusion to which I have arrived from this tacit cotemporaneous construction of the meaning of section 178 of the Code; for although a cotemporaneous construction of the meaning of words in a statute is not necessarily infallible, yet when the minds of numerous lawyers and judges with one accord, although acting independently of each other, on the mere reading of a statute, attach the same meaning to it, it shows that the language of the act conveys the meaning with such clearness and force as to leave but little room for doubt as to its proper construction.

Let us pass to the second objection. The city judge, if he has jurisdiction, derives it under the act of February 18, 1848. (Laws of 1848, p. 66.) This act provides that applications for a warrant under the act of 1831 may be made to any judge of a court of record in any county in which the judgment on which the complaint is grounded is docketed, and in which the defendant resides. The relator’s counsel contends that the courts of record here intended are' courts of record of civil jurisdiction. Under my views respecting the construction of statutes, above expressed, no such limitation can be placed on the words of this statute, unless it is absolutely necessary so to do, in order to uphold the act. It is argued it is necessary thus to limit the act, for otherwise it would be unconstitutional, inásmuch as it would in that event confer" civil jurisdiction on a criminal court, which, it is said, cannot be done under the constitution of 1846.

■ "Whether the constitution contains any limitation on the power of the legislature to confer both civil and criminal" jurisdiction on the same court, or to add to the jurisdiction of an existing criminal court a civil jurisdiction, or not, is not necessary to he here discussed. The act of 1848 does not profess to confer on any court of record, as a court, the powers therein mentioned. It simply gives to any judge of a court of record the power indicated. This power is to be exercised by him independently of the powers of the court of which he is a member. I see' nothing in the constitution prohibiting the legislature from conferring on a judge of a criminal court powers to be exercised by him independently of those vested in his court.

The power to issue warrants under the act of 1831 was one which, prior to the constitution of 1846, could have been exercised by a Supreme Court commissioner. .By the constitution of 1846 the„office of Supreme Court commissioner was abolished, “ but this abolition did not annihilate the powers and duties which pertained to it. Those powers and duties were left to be bestowed by the legislature upon other classes of officers brought into existence, or suffered to exist, by the constitution.” (Hayner v. James, 17 N. Y. Rep. 316.)

By the act of 1848, one of the powers and duties of the former Supreme Court commissioner was bestowed on a certain class of officers, to wit, judges of courts of record. The term judges of courts of record is used in the act, not to indicate that the power is conferred on the courts whereof they are judges, nor that in exercising the power they are acting as judges of their court, but to indicate the class of public officers to whom the legislature intend to confide the power, and on whom it imposes the duty of exercising it. This view is not open to the objection that it is reviving the office of Supreme Court commissioner, under another name. There is no new office created. The judges are already holding office. They are public servants. The legislature says, we will impose on you as an incident to your holding of your present office, the duty of executing a special power. The power and duty still existing, as held by the Court of Appeals, there can be no reason why the legislature has not the power to provide for their execution and performance. There are, it seems to me, various ways in which such provision can be made. One Way is to attach the power and duty to the persons of those holding a certain description of public office, to be exercised and performed by them as an incident to the holding of the office which they enjoy, and to be exercised and performed by them in the character of the office held by them'. Thus, under the. act of 1848, in question, a judge of a court of record exercises the power therein conferred, not as being a judge of any particular court, but simply in his definite character of a judge of a court of record, without regard to the powers, duties or jurisdiction of the particular court of which he is a member.

The relator’s counsel, however, claims that the city judge is not a judge of a court of record. But he admits that the court of sessions is a court of record, and that the city judge is authorized by law to hold that court. It seems to me this is sufficient to constitute him a judge of that-court, and to include .him as one of the class of judges intended by the act of 1848.

The first two objections to the validity of the commitment having been' decided against the relator, the third remains to be considered.

Section 9 of the act of 1831 enacts that if the officer before whom the proceeding is pending is satisfied that the allegations of the complainant are substantiated, and that the defendant has done or is about to do any one of the acts specified in the fourth section, he shall, by commitment under his hand, direct that such defendant shall be committed, &c. The statute does hot in terms require the commitment to specify the nature, amount or value of the property or rights in action which the officer is satisfied that the defendant fraudulently conceals, or which he unjustly refuses to apply to the payment of the judgment, or which he has assigned with intent to defraud his creditors, hi or do I perceive any principle of law which requires it. The addition of a specification of the property can add no force to the adjudication of the officer that the defendant has done, or is about to do, any one of the acts specified in the fourth section; and it is this adjudication which warrants and sustains the commitment.

The relator’s counsel has offered but one suggestion in support of this objection. That is, that unless such specification is made in the commitment, a defendant held under the commitment can never procure his discharge under the 12th, 13th, 14th, 15th, 16th and subsequent sections of the act; for it is said that such discharge will not be granted until he discloses and assigns the property which he is adjudged to have fraudulently concealed, &e., and if there is no specification of such property he will be unable to tell what property he has been adjudged guilty of concealing, &c., and so will be unable to comply with the condition precedent to -his discharge. The argument defeats itself. It is in effect that there should be such a specification in order to enable the debtor to disclose his property and procure a discharge.

It is evident that if the officer adj udges that the debtor has concealed property, specifying it, when in fact he never had such property, or had not so much as is specified, he could not procure his discharge without inserting such property in his schedule and assigning it, which, as he claims not to have it, he could not do. His only remedy then would be by some writ of review to reverse the decision of the officer; whereas,' under the general adjudication without specification, a disclosure of some small amount would be sufficient to satisfy the words of the commitment, and to throw on the creditor the burthen of satisfying the officer to whom the application for a discharge is made that the petitioner’s proceedings are not just and fair, or that he has concealed, removed or disposed of other of his property with intent to defraud his creditors. (Section 16.) Thus it seems to me this form of commitment is more favorable to the prisonér than it would be with the addition of a specification of property.

As long as the commitment stands unreversed, it is conclusive that the debtor has some property which he fraudulently conceals, or which he unjustly refuses to apply or, &c. If he has none, his remedy is by a review of the decision of the officer. But until the decision has been reviewed, it is conclusive. Consequently, on an"application for a discharge, made while the commitment stands, I do not see how the officer to whom that application is made can, under section 16, say that the proceedings of the petitioner have been just and fair, unless he avoids the effect .of 'the commitment by disclosing some property. As was said before, a small amount disclosed will avoid .the effect of the commitment, there can be no objection to requiring him to make a disclosure of some property, because the commitment is conclusive that he has some to disclose. But if he discloses some small amount, then the court cannot, from the commitment, say that he has more property; and the commitment, of itself, is no longer an obstacle to the discharge. But if, on the other hand, the defendant claims that notwithstanding the commitment he has no property, his remedy is to endeavor to reverse the decision of ■ the committing officer by some writ of review.

• Thus it seems to me a commitment in the form of the one in question is less onerous on the defendant, and less apt to form an obstacle to his discharge than one with the .addition of a specification of property.

Writ discharged, and prisoner remanded,

       This decision was taken to the Supreme Court, by certiorari, which court, at a general term, reversed the same, on the ground that the city judge had no .jurisdiction. (See 50 Barb. 562.)


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    Lyons vs. The Third Avenue Railroad Company.
    Section 121 of the Code, which provides that “after a verdict shall he rendered! in any action for a wrong, such action shall not abate by the death of any party,” covers the case of a verdict for the plaintiff in an action to recover damages for injuries sustained through the negligence of the defendant’s, servants. Hence, it being unnecessary for the protection of the plaintiff’ that judgment should be entered, although his health be precarious, an . order staying his proceedings will not be so modified as to permit Mm to enter judgment.
    (Before Jones, J., at Special Term,
    December, 1867.)
    This is an application so to modify an order staying- the plaintiff’s proceedings as to permit the plaintiff to enter judgment.
    The action has been tried, and a verdict rendered in favor of the plaintiff. The defendant, desiring to move at a special term for a new trial, has from time to time obtained orders staying the plaintiff’s proceedings, the last of which is the one for the modification whereof this' application is made. A case has been prepared and served,, and amendments thereto served, and notice of settlement, given.
   Jones, J.

The modification is asked for on two grounds, 1st. The defendant is only seeking for delay. 2d. That the plaintiff's health is very precarious, and if he should die before judgment entered, the action would abate.

The first ground was not seriously pressed, and indeed cannot be maintained. The second ground is covered by ■that portion of section 121 of the Code, which provides:

4‘After a verdict shall be rendered in any action for a wrong, such action shall not abate by the death of any party/’ &e.

This action was brought to recover damages for injuries sustained by the plaintiff through the negligence of the defendant’s servants in starting one of their cars while the plaintiff was in the act of getting off'.

The section above referred to covers this cause of • action,'and of course it is unnecessary for the protection of the plaintiff that judgment should be entered; while, on the other hand, under, the practice of this court, if judgment is entered, it will be a bar to the defendant’s motion for a new trial.

Motion denied, without costs.


text:
    John C. Walkinshaw et al., plaintiffs, vs. John C. Perzel, defendant.
    1. Although it is settled that a notice of motion cannot be withdrawn or conntmnanded-witiMut payment of 'costs, yet where a motion embraces two distinct matters, as, for leave to add parties defendant, and for an injunction and receiver, tbs first part may he withdrawn, leaving the motion as to the second part still pending, without payment of costs of the motion.
    2. A plaintiff .cam obtain leave to amend the summons under the general prayer “for such other order or relief as the court shall see fit to grant.”
    S, Where the party .asks leave of the court to bring in new parties, he necessarily includes in that request a further .'request for leave to make such amendments and take such «steps as shall be requisite to bring into court such new parties,
    4. Hence, under ‘am order to show cause why certain persons named should not be made parties to the action, the amendment of the summons and complaint is but the mere incident of the relief asked for.
    (Before Jones, J., at Chambers,
    December, 1867.)
    Motion by the plaintiffs for leave to add parties defendant, and for ¡an injunction and receiver. ,
   Jones, J.

It is settled, in this court, that a notice of motion cannot be withdrawn or countermanded without payment of the costs of motion. I can see no reason for departing from this practice.

This case, however, does not fall within such principle. The motion as originally noticed was, 1st. For leave to add parties defendant; 2d. For an injunction and receiver. These two matters are distinct. The first part of. the original motion has been withdrawn, leaving the motion, as to the second part, still pending. This can be done without payment of costs of the motion.

It is undoubtedly true that new parties cannot be added to the action without amending the summons, and equally true that the summons cannot be amended, of course, under section 172, but leave of the court to amend it must be obtained under section 173.

The' defendant, in opposing this motion, calls to his aid the above principles, and insists that leave to amend the summons 9annot be given on this motion, because that relief is not specifically asked for by the notice. I think he is mistaken. The plaintiff can obtain leave to amend the summons under the general prayer “for such other order or relief as the court shall see fit to grant.” (Martin v. Kanouse, 2 Abb. 390. Hecker v. Mitchell, 5 id. 453.)

But, further, the plaintiffs’ order to show cause is “ why * * * should not be made parties to the action.” This is the principal relief asked for; the amendment of the summons and complaint is but the mere incident to the relief asked for. Such amendment is but the formal way of bringing in the new parties after leave to bring them in is granted. Where a party asks leave of the court to bring in new parties, he necessarily includes in that request a further request for leave to make such amendments and take such steps as shall be requisite to bring into court such new parties. It is urged that when new parties are added, the complaint, if its allegations do not already show a cause of action against them, must be amended so as to show such cause of action, and. if amended thus, the amended complaint must be served on the parties already in, and such parties must have the usual time to answer. It is also urged that the new parties must be brought in either by service of the amended summons, or voluntary appearance; and that thereafter issue must be joined as to such new parties, or their default taken, before the same is in a position to be brought to trial as to the parties already in. All this is very true. Provision may be made, in the order allowing new parties to be brought in, to meet these various matters, or the order may simply allow them to be brought in, and the necessary amendments to be made to the summons and complaint, leaving the plaintiff to thereafter conduct his proceedings regularly at his own peril.

I am unable to perceive how, in any aspect of the case, the guardian of the infant is either a necessary or proper. party. I therefore cannot grant leave to add him as a party.

Motion granted so far as to give the plaintiff leave to add as parties defendant the executors of H. A. Schlueher, and'to make the necessary amendments to the summons and complaint for that purpose. Ho costs of motion. Order to be settled on- one day’s notice.


text:
    Hess vs. Joseph.
    1. The papers, upon an application to compel the attorney of the defendant to pay the plaintiff a sum of money deposited by the defendant with his attorney, should not be entitled in the action, the application being delms the action, and in'no sense a step or proceeding in the action.
    2. A summary application to compel an attorney to pay over money received hr his professional capacity is only entertained on motion of the client. It is a privilege given to clients for their protection against exactions and overreachings, and is not extended either to outside parties, or to assignees of clients.
    (Before Jones, J., at Special Term,
    December, 1867.)
    This is an application to compel the attorney of the defendant to pay the plaintiff a certain sum of money deposited by the defendant with his attorney.
    The application comes up on an order to show cause, without any name signed to it as attorney. The order to show cause, and the affidavits on which it is founded are, however, indorsed “ --att’ys for plff.” All the papers are entitled in the action.
    The case as shown by the moving papers is this. The defendant was arrested in this action under an order of arrest. His brother-in-law, J. Halberstadt, employed an attorney to procure the defendant’s release; the attorney undertook to procure bail for the defendant- on receiving $500 to secure him. The $500 was raised by the defendant’s said brother-in-law, and by him paid to the attorney who procured bail for the defendant, and thereupon the defendant was released from arrest.
    This suit progressed, and about the 9th of April, 1866, the plaintiff’s attorney and said J. Halberstadt agreed that this $500 should be paid over to the plaintiff in part satisfaction of the plaintiff’s claim in the action against the defendant, and-¡that the plaintiff should release the defendant’s bail in this action. Afterwards the plaintiff’s attorney demanded of the defendant’s attorney the said sum of $500 as his legal charges in this action, and offered, on receipt thereof, to release the bail and discontinue the action. The application is founded on the affidavits of J. Halberstadt, the defendant, and the plaintiff’s attorney. There are opposing affidavits which it is unnecessary to consider, in the view taken of the motion.
   Jones, J.

This application cannot be granted: First. The papers are wrongly entitled in this action. The application is dehors the action, and is in no sense a step or proceeding in the action.

Second. It appears to be made on behalf of the plaintiff, between whom and the defendant’s attorney the relation .of attorney and client does not exist. . A summary application to compel an attorney to pay over money received in his professional capacity is only entertained on motion of the client. This is a privilege given to clients for their protection against such exactions and overreachings, which the attorney by reason of the confidence placed in him by his client might resort to. But this privilege and extraordinary remedy is not extended either to outside parties or to assignees of clients.

Motion denied, without costs.


text:
    Anderson, administratrix &c., plaintiff, vs. The New Jersey Steamboat Company, defendant.
    1. It is settled, in this state, that a principal is not liable to one of his servants or agents for injuries sustained through the negligence of such agent or servant, where both are engaged in the same general business.
    2. When, however, the injury to the employee results from the- actual negligence or misfeasance of the principal,- such principal is liable for the injury,
    3. To constitute such actual negligence or misfeasance of the principal, actual notice to him of the defect in the materials or machinery through which, or of the unskillfulness, or unfitness of the servant through whose negligence or unskillfulness the injury in question occurred, must be shown; and such notice must he averred in the complaint.
    (Before Jones, J., at Special Term,
    December, 1867.)
    Demurrer to complaint, in an action brought by the plaintiff as administratrix of John Anderson, deceased, to recover damages, for an injury to the deceased, occasioned by the negligence of the defendant, or its servants or agents, which resulted in his death.
   Jones, J.

It seems to be settled, in this state, that a principal is not liable to one of his servants or agents, for injuries sustained through the negligence of another servant or agent, where both are engaged in the same general business. (Sherman v. The Rochester and Syracuse Railroad Company, 17 N. Y. Rep. 153.)

When, however, the injury to the employee results from the actual negligence or misfeasance of the principal, the principal is liable for such injury. (Keegan v. The Western Railroad Company, 4 Seld. 180.) To constitute such actual negligence or misfeasance of the principal, actual notice to the principal of the defect in the materials or machinery through which, or of the unskillfulness or unfitness of the servant through whose negligence or unskillfulness the injury in question occurred, must be shown; and such notice must be averred in the complaint. (McMillan v. The Saratoga and Washington Railroad Company, 20 Barb. 450.)

Tested by these principles, the complaint in this case is defective in that it avers no such actual notice to the defendant. The allegation in the complaint that “ said John Anderson, who was employed on said boat,” can only be regarded as an allegation that he was so employed by the defendant.

The plaintiff, however, must have leave to amend on terms. If she elects to amend, she may as well obviate several objections which have been raised, the validity of which it is not necessary now to determine. For instance, in the title she may as well introduce the word “ as ” between the name “ Anderson ” and the word “ administratrix;” in the body of the complaint, the word “executrix” should be changed to “ administratrix,” or the word “ administratrix,” in the title, should be changed to “executrix,” according as the fact may be. The complaint should state that Mrs. Anderson has qualified, and that she is executrix or administratrix, as the case may be, and the prayer should be in her representative capacity.

. Judgment for the defendant, on the demurrer, with costs, with leave to the plaintiff to amend on payment of costs of the demurrer.


text:
    Higgins vs. Bailey.
    It is improper ón a motion for the appointment of a receiver, in partnership cases, for the court to undertake to determine what is partnership property as between the partners and third persons. If any such dispute arises with reference to any particular property, the proper course to determine it is by an action, either against or' in favor of the receiver.
    (Before Jones, J., at Special Term,
    December, 1867.)
    Motion for the appointment of a receiver of a partnership.
   Jones, J.

The propriety of appointing a receiver of the partnership effects is not disputed. The defendant, (one of the partners,) however, claims that the lease, fixtures and furniture of the coal-yard belong to his father, and should not be included in the receivership.

I think it improper on a motion for the appointment of a receiver, in partnership cases, for the court to undertake to determine what is partnership property as between the partners and third persons. If any such dispute should arise with reference to any particular property, the proper course to determine it is by an action, either against or in favor of the receiver.

A receiver must be appointed of all the partnership property and effects of the firm of-. The receiver to give security in the penal sum of $8000, with one surety; the surety to justify in $14,000. And it must be referred to Geó. W. Stevens to nominate a fit and suitable .person to be receiver, and take from him the above required security. The parties, plaintiff and defendant, must appear before said referee, and under his direction pay, set over, deliver and assign to the receiver all partnership property and effects, and all evidences of debt belonging thereto, and all books, papers and documents relating thereto or connected therewith.

Upon this reference the question as to the lease and fixtures and furniture may arise, when a proper disposition of it will undoubtedly be made by the referee, and any decision he may make, on the subject, can be reviewed by the court.


text:
    George Faulkner, plaintiff, vs. Ferdinand Suydam et al., defendants.
    1. There is no reason for applying to the coart for orders directing judgments to be discharged of record, under the act of May 14, 1845, amending the act of April 18, 1838, “ for the relief of partners and joint debtors.”
    2. The proper 'course is for the parties to present to the dark the memorandum mentioned in the act of 1845, with such proof of the assignment as can be obtained, and to request him to satisfy the judgment as to the compromising debtor-. If the clerk refuse so to satisfy the judgment, application may then be made to the court for an order directing him to do so; on which application the court will direct to whom, and in what manner, notice of the application shall be given.
    (Before Jones, J., at Special Term,
    December, 1867.)
    By the act of the legislature of May 14, 1845, (Laws of 1845, chap. 348,) the 2d section of the act entitled “An act for the relief of partners and joint debtors,” passed April 18, 1838, was amended so as to read as follows:
    “ § 2. Every such debtor or debtors, making such composition or compromise, shall take from the creditor or creditors with whom he may make the same, a note or-memorandum in writing, exonerating him or them from all and every individual liability incurred by reason of such connection with such partnership firm; which note or memorandum may be given in evidence by such debtor or debtors under the general issue, in bar of such credit- or’s right of recovery against him or them; and if such liability shall be by judgment in any court of record in this state, then on' a production to and filing with the clerk of such court, the said note or memorandum in writing, duly acknowledged, by the party or parties making the same, in the same manner as satisfaction of judgment is now required by law to be acknowledged, such clerk shall discharge said judgment of record, so far as the said compromising debtor or debtors shall be concerned.”
    This is an application to the court for an order directing a judgment to be "discharged under the above mentioned .section.
   Jones, J.

There is no reason why the court should be called on to make orders of this description.' The course of the parties is to present to the clerk the memorandum mentioned in chapter 348 of the laws'of 1845, with such proof of the assignment as can be obtained, and to request him to satisfy the judgment as to the compromising debtor. If the clerk refuse so to satisfy the judgment, application may be made to the court for an order directing him so to do; on which application the court will direct to whom, and in what manner, notice of the application shall be given.

Motion denied.


author: McCunn, J.

text:
    Thrings vs. The Central Park Railroad Company.
    1. He whose negligence has contributed in any essential degree to the injury he has sustained, cannot maintain an action to recover damages from the other party, whose acts of negligence have also contributed to produce the Injury.
    2. Where the plaintiff, in an action against a railroad company to recover damages for an injury claimed to have been occasioned by the negligence of its servants, testified that the car was moving when he attempted to get on, and the persons who were inside the car, as passengers, at the time, swore that the plaintiff was solely to blame; Meld that if, this preponderance of proof satisfied the judge of the negligence of the plaintiff, it was his duty to stop the litigation there, by directing a nonsuit.
    3. With such a conviction on the mind of the judge, it would he unfair to the defendant, as well as the plaintiff, to subject them to further expense and annoyance.
    4. The court, at circuit, has as much right to exercise discretion, in respect to the preponderance of proof, as the cóurt in banc has.
    5. Where it is probable that a jury’s mind would he warped against the defendant, (a corporation,) and where the proof is clear, the court should not hesitate to withdraw the question of negligence from them, so that they may not be allowed to speculate" or compromise on .clear questions of fact; especially where those questions are so transparent that the court can apply the law without their aid. Her McOuira, J.
    6. Where the action is brought principally to recover damages for a permanent injury to the plaintiff in consequence of epileptic spasms caused by the wound received, and the medical testimony leaves it very doubtful whether the wound contributed to the spasms, it would be unsafe for the judge to allow the jury to speculate upon such remote consequences. ■
    (Before McCunn, J., at Trial Term,
    January 22, 1868)
    Motion for a nonsuit, on the trial of an action brought to recover damages for a personal injury alleged to have been caused by the defendant’s negligence.
   McCunn, J.

The forcible language adopted by Judge Porter in his opinion in the casé of Ernst v. The Hudson River R. R. Co. (35 N. Y. Rep. 9,) has led many judges to hesitate about applying the well settled rules of law-to cases of this kind. Hot that that learned judge varied the rule of law in the slightest degree; he merely used some forcible expressions, which at first glance would indicate that his sympathies were against that sound rule. But it will be seen, on a careful inspection of his views, that he has not changed the law in the slightest degree. He says: “A nonsuit should always be granted where the proof is so clear as to warrant the assumption, in good faith, that if the questioh were submitted to the jury they would find that culpable negligence of the plaintiff contributed to the injury.” How, notwithstanding all that Judge Porter has said, and so well and clearly said, about many matters touching this class of cases, and notwithstanding^ a slight vein of bias which is seen throughout, this opinion of his, the spirit of the sound lawyer comes to his rescue, and he placed himself clearly within the pale of the old rule, in that very opinion; so that looking at the whole of that discussion, and taking it in connection with Judge Hunt’s clear and conservative views, expressed in the same case, I see no reason why I should vary the rúle in this instance.

I do not agree with all that is said by the learned judge delivering the opinion in the case of Willis v. The Long Island Railroad Company, (34 N. Y. Rep. 670.) I think his law is right, but his line of reasoning about the judgment of twelve jurors, against the sound discretion, and experience of the judge, is a little overdrawn.

The proper rule in this respect is ably discussed by Mr. Justice Marvin, in the case of Dascomb v. The Buffalo and State Line Railroad Company, (27 Barb. 221;) and that rule I mean to adopt here. The court there said that he who contributed to the accident by his negligence in any essential degree cannot recover.

In this case the boy says that the car was moving when he-tried to get on, and he is the principal witness. How this evidence, standing alone as it does, created a doubt as to whether I should allow the question of the plaintiff's negligence to go to the jury. But that doubt is cleared away by the several persons who were inside the car as passengers, and who stated that the boy was solely to blame; and this preponderance of proof has settled, in my mind, the negligence of the plaintiff. Under these circumstances it is my duty to stop the litigation here; moreover it would be unfair to this defendant, and also to the plaintiff, with such a conviction on my mind, to subject them to further expense and annoyance.

I hold that the court, at circuit, has as much right to exercise discretion about the preponderance of proof as the court in banc has. I therefore differ with Mr. Justice Smith, when he argues that questions of negligence like this are conspicuous cases to go to a jury. My reasoning is that where it is probable that a juror’s mind would be warped against a company, and where the proof is so clear as it is in this case, the court should not hesitate in withdrawing such a question from their presence, so that they may not be allowed to speculate or compromise on clear questions of fact, especially where those questions of fact are so transparent that the court can apply the law without their aid.

Juries, from their habits and calling in life, have sympathies, and in a collection of twelve men these sympathies will form a bias in favor of one side or the other.

Judges should have no sympathies; they must only recognize stubborn facts, and apply clear law, and they are placed over juries to curb bias, and they should do so without.hesitation.

The other doubt in my mind about this case is of little consequence, since I am about to nonsuit. It is a most serious doubt, however. It is as to whether this accident contributed to the epileptic spasms.

Surgeon-Q-eneral Hammond, calléd by the plaintiff, testifies that the boy has had malformation of the head from infancy. He says, looking at the lad without a description of the spasms, he should say he was not subject to such attacks, and that there are no indications of such a disease about his person. All the other physicians, with. the exception of Dr. Jones, say the boy has no appearance of any such symptoms; and they all agree with Dr. Hammond in saying that if the boy was subject to fits as often as his guardians say he is, he would carry undoubted outward signs of the disease.

The surgeons all agree that in a short time these fits, where they occur so frequently as this boy says they do occur, tend to destroy the mind and memory. How it is quite evident that this boy has, notwithstanding his alleged affliction, one of the clearest of intellects, and a most wonderful memory.

Hnder these circumstances, and after all the doctors expressing their doubts about this wound being the cause of the fits, and knowing that this action is brought principally to recover for permanent injury to this boy after he arrives at the age of twenty-one, it would be unsafe for me to allow the jury to speculate upon such remote consequences.

Honsuit granted.


author: McCunn, J.,

text:
    George W. Coster, plaintiff, vs. John R. Peters, defendant.
    1. Where a lessee of premises constructs, at his own expense, under a license from the street commissioner, a vault under the -sidewalk and roadbed in front of the premises, which vault is built as a part of the buildings erected on the land, the inside wall thereof being the outside wall of the house, the the lessor, at the termination of the lease, is entitled to recover possession of • the vault, as a part of the demised premises.
    2. An uninterrupted possession of the demised premises by the lessor, for over twenty years, is enough, in the absence of any proof of a superior title, to enable him to recover the same, or any portion thereof.
    3. Upon proving title to the premises, every thing which is collateral to the title will be intended, without proof.
    (Before McCunn, J., at Trial Term,
    February 21, 1868.)
    This action was brought by the plaintiff, as owner of the premises ifo. 539 Broadway, now occupied by Barnum’s museum, running through from Broadway to Mercer street, to recover the possession of a vault adjoining his rear building on Mercer street, built under the sidewalk and roadbed of that street, being twenty feet wide, twenty feet deep and twenty-five feet long, and damages for its detention for five years, from 1858 to 1863, under the following circumstances: The plaintiff, in 1848, leased the
    premises to the defendant for ten years, and the lease provided that the tenant should, during his term, erect and complete upon the lot a building fronting on Mercer street, of certain specified dimensions and description, which did not include a vault, and that at the end of his term the lessor should pay him the then value of the building so agreed to be erected, at a price to be fixed by appraisement. The defendant erected the building, and, desiring to manufacture his own gas for use therein, procured a license in his own name from the street commissioner permitting him to construct the vault in question, built it in pursuance of the license and erected his gasometer there. When the lease expired the defendant claimed to be paid for the vault as well as for the building; but the appraisers under instructions, as was claimed, from the plaintiff, and not finding the vault provided for in the lease, excluded it from their valuation, and appraised the building, without the vault, at $18,000, which was paid by the plaintiff, who took possession of the building; but the defendant refused to give up possession of the vault, and this action was brought. The plaintiff' proved the lease, the license, and the corporation ordinances, and claimed that the permit was given to Peters only as tenant and representative of the property, and although it was to him personally, it nevertheless enured to the benefit of the estate, and gave him no right to maintain adverse possession of the vault after his lease expired. But the defendant insisted that, inasmuch as the fee of the street was in the corporation, and the plaintiff showed no title there, he was in his own right tenant or grantee of the corporation, as to the vault, and could not be ejected. The case was first tried before the late Judge White and a jury, in 1863, and the court instructed the jury that the plaintiff, as owner'of the building to which the vault was appurtenant, was entitled to the vault, and a verdict was given for $200 damages for the detention. The defendant appealed to the general term, which reversed the rulings of Judge White, holding that as the plaintiff showed no title in the street, he could not recover the vault under it, but that the tenant might hold and occupy the vault adversely after surrendering the adjoining building, and ordered a new trial. On this trial the plaintiff, in addition to his former evidence, proved the deed of the premises to John Q-. Coster in 1832, bounding on the easterly line of Mercer street, and undisturbed possession under it for over twenty years, and that the vault was actually built as a part of the house, the wall of the house being one wall of the vault; and gave further proof of the value of the vault in connection with the house, by the testimony "of real estate dealers, and by the fact that the vault was used by Barnum as the place of safe keeping for his elephant," in connection with his menagerie.

      Evarts, Southmayd & Choate, for the plaintiff

      E. P. Wheeler, for the defendant.
   McCunn, J.,

held that the new proof as to the title and construction of the vault, so far varied the case from that which was presented to the general term, as to require him again to instruct the jury that the plaintiff was entitled to the vault as a part of the building erected on his land. The following were the rulings of the judge:

I hold that without any show of written title on the part of the owners of this easement or right, other than that which has in this case been proven to be acquired by the plaintiff, to wit, the uninterrupted possession for over twenty years; this alone was enough, in the absence of a superior title, Nto enable the plaintiff to recover; and, moreover, I will state that, upon proof of this title to the land in front of this highway, in the absence of a better title, the right of the plaintiff to the property or easement is presumed; in other words, upon proof of title every thing which is collateral to the title will be intended without proof. Therefore I think the'plaintiff herein should recover. " It is also made clear, on this trial, that the vault is a part of the premises, the inside wall of the vault being the outside wall of the house, and being part of the fee. This question was left to the jury the last time improperly, and I therefore .withhold it. The case, as presented now, is different from the case presented at the general term. Here the deed to the Coster family is put in evidence; in the other action it was not. The deed shows uninterrupted possession for over twenty years.

The jury, under the new proof of value, rendered a verdict for damages at the rate of $200 per annum, amounting to $966. Leave was given to the defendant to make a case, for the purpose of again carrying the questions involved to the general term and to the Court of Appeals, which will finally determine whether such a vault is part of the house' and belongs to the owner and landlord, or whether the tenant building it under a license procured by himself may retain it after his lease expires, and* carry on in it a separate business in front of his landlord’s premises.


text:
    Joseph N. Collins, plaintiff, vs. Henry A. Suau, defendant.
    1. In an action brought by creditors of a corporation, formed under the act of 1848, against a stockholder in the company, to recover the amount of their debt, the defendant, first, denied that he was a stockholder; he then admitted that he was a stockholder, but alleged that when he became such, he was induced to do so by certain promises made on behalf of the company. He did not pretend that the company made any such promises as a corporation. Held that although the defendant might have a cause of action against the persons making the promises, the sematters were wholly inter alios acta, and were irrelevant to the issues in the action.
    2. Held also, that the defendant having admitted the making of certain promissory notes by the corporation, and the recovery of a judgment upon them, his allegation of want of knowledge as to their delivery by the maker to the payees, and of his ignorance whether the company was indebted on them, was immaterial.
    3. An answer, in such an action, setting out a contract between third parties for the sale and purchase of lands, made before the company was incorporated or existed, and alleging that the purchase was intended to be for the company, is sham and irrelevant, as relating to matters that occurred before the company had any existence, and not constituting any defense, or any matter relating to the case.

      4. If a purchaser of lands is defrauded by misrepresentations of the vendors, he has a cause of action against them, which is personal to himself, and will not pass by his subsequent assignment of the contract. •
    8. A pleading is frivolous when there is a decision in point adverse to its suffi,ciency. So if there is a judgment recovered upon promissory notes of a company in which the defendant is a stockholder, it is conclusive upon him.
    (Before McCunn, J., at Special Term,
    April 17, 1868.)
    This is a motion to strike out parts of an answer as false, sham and irrelevant.
    The complaint 'shows, that the European Petroleum Company is a corporation organized under an act of the legislature, passed April 17, 1848, entitled “ An act to authorize*the formation of corporations for manufacturing, mining, mechanical, and chemical purposes,” &c., and the amendments thereto; and was so organized and incorporated as a mining company, in or about “the month of December, 1864. That the capital stock of said company was fixed and limited at $100,000, divided into 10,000 shares, of the par value of $10 each share; and that on the 10th day of June, 1865, the defendant was a stockholder therein to the amount of 100 shares of the capital stock thereof, of the par value of $10 each share. That on said 10th day of June, 1865, the whole amount of capital stock fixed and limited by said company, and by their said charter, had not been paid in; and that on said day more than one half of said capital stock, so fixed and limited as aforesaid, had not been paid in, nor agreed to be paid in, and has not since been paid in. That on said day the said company made their thirteen promissory notes in writing, duly stamped, all of them bearing date on that day, and payable to the order of L. E. Lahens, wherein and whereby they promised to pay, by six of said notes, to the order of said L. E. Lahens, $9163.41, in the aggregate, in sixty days from the date thereof, for value received; and by the other seven of said notes they promised to pay to the order of said L. E. Lahens $9187.90, in the aggregate, in ninety days from the date thereof, for value received, and delivered the same to the said payee thereof, who, for a valuable consideration, and before maturity, indorsed and delivered the said notes to Leonard B. Lindsley and Isaac B. Cottrell. That when the said notes became due, the said company made their thirteen promissory notes in wrting, duly stamped, all of them bearing date on the 12th day of August, 1865, wherein and whereby they promised to pay, by six of said notes, to the order of L. E. Lahens $9163.41, in the aggregate, in sixty days from the date thereof, for value received; and by the other seven of said notes they promised to pay to the order of L. E. Lahens $9187.90, in the aggregate, in thirty days from the date thereof, for value received, and delivered the same to the said payee thereof, who indorsed and delivered the same to said Leonard B. Lindsley and Isaac B. Cottrell, in renewal of said first mentioned notes.
    And the plaintiff further ■ alleged that when the said notes became due, the said company did not pay the same, nor any part thereof; and that on the 31st day of January, 1866, the said Lindsley and Cottrell, being still the owners and holders thereof, and the said company being still indebted to them thereon in the full amount thereof, with interest, brought a suit against said company, in the Supreme Court, in the city and county of Hew York, for the recovery of their.said debt; and that said company appeared and defended said suit; and such proceedings were thereupon had that on the 22d day of January, 1867, judgment was rendered therein- in favor of said Leonard B. Lindsley and Isaac B. Cottrell, against said company, for the sum of $20,188.39, whereupon, on the same day, an execution against the property of said European Petroleum Company was issued upon said judgment to the sheriff of the city and county of Hew York, which said execution was afterwards, and on the 25th day of March, 1867, duly returned by said sheriff into the office of the clerk of said city and county of Hew York wholly unsatisfied.
    And the plaintiff further alleged that oh the 30th day of January, 1867, the said Leonard B. Lindsley and Isaac B. Cottrell, for a good and sufficient consideration, sold, assigned, transferred and set over to said plaintiff the said judgment, by writing, under seal, duly executed by them.
    The answer of the defendant, Henry A. Suau—
    1. Admits that the European Petroleum Company was a corporation organized under an act of the legislature, passed April 17, 1848, entitled “ An act to authorize the formation of corporations for manufacturing, mining, mechanical and chemical purposes,” &c., and the amendments thereto, and was so organized and incorporated as a mining company on or about the month of November, 1864.
    2. He also admits that the capital stock of said company was fixed and limited at $100,000, divided into 10,000 shares, of the par value of $10 each share; and that on the 10th day of June, 1865, this defendant was a stockholder therein to the amount of 100' shares of the capital stock thereof, of the par .value óf $10 each share. He also admits, upon information and belief, that on said 10th day of June, 1865, the whole amount of capital stock fixed and limited by said company and by their said charter had not been paid in, nor agreed to be paid in, and has not since been paid in; but this defendant has no knowledge or information sufficient to form a belief as to the amount of said capital not subscribed for and not paid in; and he therefore leaves the plaintiff to make such proof in that behalf as he may be advised.
    3. And as .to all the other allegations-in said complaint contained, and not hereinbefore specifically admitted, the defendant has no knowledge or information sufficient to form a belief as to such matters, and he therefore denies the same.
    4. And the defendant, further answering the said complaint, and for a separate defense thereto, avers that in or about the month of Hov ember, 1864, one L. B. Lahens (the same person mentioned in the said complaint) being about to organize and form a company for the working of petroleum lands, and acting for and in behalf of said company, made and entered into a certain contract or agreement with one Leonard B. Lindsley and one Isaac B. Cottrell, which contract was in the words and figures following, to wit:
    “In consideration of the purchase from us by L. E. Lahens, Esq., of the city of Hew York, of the real estate, leasehold property, and other property in the state of Pennsylvania, which is more particularly mentioned and described in the memorandum hereto annexed, signed by us, and in the further consideration of the sum of $5 to us paid by said L. E. Lahens, the receipt whereof is hereby acknowledged, the undersigned hereby sell to the said L. E. Lahens all the real estate, leasehold property and other property and effects in said memorandum mentioned and described, for the sum of $50,000 in cash, and $20,000 in stock of the company which said Lahens is about to have organized, and which company is to own and use said lands and property, said stock to be taken at its par value. The said cash to be paid as follows, namely: $25,000 on or before the 15th day of January, 1865, next, at the office of Guerber & Co., Ho, 49 Pine street, in the city of Hew York, on the titles being examined and found satisfactory and all free and clear, and on the deed or deeds of said premises being executed to the said Lahens or to his order, and deposited in escrow with Henry A. Smythe, Esq,, of Hew York. The $20,000 worth of stock to be delivered at the same time. The balance of the cash to be paid at the same place in two equal installments; one in thirty days, and the other in sixty days from the time of the first payment, or sooner, at the option of the purchaser; and on the last payment being made, said deed or deeds are to be delivered to the said Lahens, or to his .order. All of the said property is to be so conveyed, free and clear of any and every incumbrance, by proper deeds and conveyances with warranty, with full covenants, and possession full and absolute of said property and premises is to be delivered with said deed or deeds.
    In witness whereof we have hereunto set our hands and seals this 28th day of November, 1864.
    L. B. Lindsley, [l.s.]
    I. B. Cottrell, [l.s.]
    In presence of E. Matile, Jr. and C. Karb.
    I, L. E. Lahens, hereby agree with L. B. Lindsley, Esq., above named, to buy from them the property and premises above mentioned, for the price.and on the terms above mentioned.
    In witness whereof I have hereunto set my hand and seal this 28th day of November, 1864.
    L. E. Lahens, [l.s.]
    ■ In presence of E. Matile, Jr. and C. Karb.
    No. 1—Four acres of land in the Slemmer and Brothers’ lease on Giles’ farm, Crawford county; three wells on the property—one 630 feet deep, one 560 feet, and one 200 feet deep. One of these wells only has been pumped, and produced from 15 to 20 barrels of oil per day; one of the others being down to a sufficient depth has a fine show of oil. This property is on Oil and Pine creeks, about one and a half miles from Titusville. One well gives one quarter of the oil to the land, and the other two one third each.

      Ho. 2—Everett & Bissell lease, Crawford county, about two acres on the John Watson farm. One well has pumped from 30 to 40 barrels per day; one pumped and flowed 20 barrels per day, and one shallow well flowed some. Half of the oil produced on this property goes to the landlord-.
    Ho. 3—In fee simple, one acre of land in the borough of Franklin, on Alleghany river, eighteen miles from Titusville. Well 450 feet deep; good show of oil; never tested.
    Ho. 4—In fee simple, Keppler farm, Steuben township, Crawford county, six miles from- Titusville, ten acres of land. On the property is a hotel,, house, barn, store, &c., blacksmith shop; also one-eighth of thirty-seven acres of land adjoining.
    Ho. 5—On Steele farm and Widow McClintock farm, about one acre of land, “ Geo. Perry Well,” with tubing and good tank, one-sixteenth working interest; well producing about four barrels per day; one half oil goes to land owner. This property is directly back of Hammond Well.
    Ho. 6—Lease on Shafor farm, one well 400 feet deep, good show of oil, never tested; of.f of the oil.
    Ho. 7—One quarter of working interest in a lease on G. W. McClintock farm, on the flat next above the Hide and Egbert farm, with its Maple Shade Well and Jersey Well, and many other good ones. The McClintock farm was sold about one year ago for $550,000, and is now considered one of the best oil farms on the creek. This lease is near the upper end of the flat, and is now being bored down. This interest is free of expense until the well is down 500 feet, then an equal share will be required. The lease is for one half of the oil. L. B. Lindsley.
    I. B. Cottrell.”

      5. That shortly after the making of said contract, and after the making of the representations and warranty therein contained, this defendant, upon the faith, of said representation? and warranty, and in the full belief that the same were true, and upon the faith of the assurance that said Lindsley and Cottrell were about becoming stockholders in said company, as provided in said agreement, agreed to. take and did take the shares of stock above mentioned, viz., one hundred shares, of the par value of $1000.
    6. That the said purchase having been made as aforesaid, the company mentioned and referred to in said contract was, on or about the fourth day of December, 1864, duly organized, and is the same corporation or company in the complaint mentioned and referred to; and the said contract thereupon, and on the first of December, 1864, was transferred to and became the property of the said company, for which the same was originally made, as is herein above set forth, and as was well known to the said Lindsley and Cottrell:
    7. That shortly after the said .company was organized, to wit, on or about the fourth day of December, 1864, it began to make payments on account of said purchase to said Lindsley and Cottrell, which said payments were received and accepted by them. That prior to the giving of said notes, the said company paid, and the said Lindsley and Cottrell received, the sum of $26,500, on account of said lands,'leaving a balance due of about $18,000 on the price of said lands, for which sum the company made and delivered to the said Lindsley and Cottrell certain promissory notes, which the defendant is informed and believes are the same notes mentioned and described in the complaint, and which notes have .been sued on by said Lindsley and Cottrell, in certain actions heretofore; brought by them against various stockholder?, some of which actions were pending at the time that this action was commenced, and are still pending and undetermined.
    And this defendant further alleged, that he was informed and believed the representations aforesaid were false and fraudulent, and he particularly averred that the said well above mentioned on the Giles farm had never yielded either fifteen or twenty barrels of oil per day as represented and warranted by the said Lindsley and Cottrell, and that he had been greatly injured and damaged by such false representations, and by the failure of said warranty, to wit, in the sum of $1000, which damages he claimed to set off and recover against any claim that the plaintiff may establish in this case.
    And the defendant further alleged, that the suin' of $26,500 and the said 2000 shares so to be repaid and delivered to said Lindsley and Cottrell were more than equivalent to the real value of said land and property so sold as aforesaid, by said Lindsley and Cottrell, as said Lindsley and Cottrell well knew.
    8. And the defendant further answering, and for a further and separate defense, averted that from the time of the organization of said company up to the commencement of this suit, the said Lindsley and Cottrell were stockholders in" said company to a larger amount than this defendant, to wit, 2000 shares, of the nominal value of $20,000 or thereabouts, and that they became and were stockholders in such company before this defendant became the holder and owner of any stock therein.
    And the defendant further answering, and for a further and separate defense, alleged that the contract out of which the alleged or pretended claim of said Lindsley and Cottrell arose, was made, and the debt or pretended debt of said company accrued, before this defendant became the owner of said stock, or any stock, in said company.

      George O. Genet, for the plaintiff. ■

      Goudert Bros., for the defendant.
   McCunn, J.

This action is. brought by the plaintiff as the owner of a judgment recovered by Lindsley & Cottrell v. The European Company, to recover from the defendant an amount equal to the amount of capital stock held by him' in the company. The company was formed under the act of 1848, with a cash capital of $10,000, which has not been paid in, which makes him liable under the tenth section of the act.

The plaintiff asks to have struck out from the defendant’s answer, beginning at the word First,” in folio 1, and continuing to near the end of folio 9. • In this portion of his answer the defendant denies, to begin with, that he was a stockholder. He then admits that he was ; but says that when he became such, he was induced to do so by certain promises made on behalf of the company. He does not pretend that the company made any such promises as a corporation. It may be that he has a cause of action against the parties making the promises ; but these matters are wholly inter alios acta, and are certainly irrelevant to the issues in this suit. The plaintiff next asks; to strike out from, the'words “Paid in,” folio 10, to, “ secondly,” folio 11. The defendant admits the, making of the notes by the company, and the recovery of the judgment by Lindsley and Cottrell upon them. These allegations, of want of knowledge as to their delivery by Lahens; to Lindsley and Cottrell are immateriál, as well as his ignorance whether the company was indebted on them. He has ready means of obtaining this knowledge; being a member of the company, the fact is presumptively in his knowledge, (Shearman v. N. Y. Central Mills, 1 Abb. 187,) while, further.on, at folio 24, the defendant expressly alleges the notes were given to Lindsley and Cottrell.

A pleading is frivolous where there is a decision in point adverse to its sufficiency. (15 How. 193. 4 Duer, 188. 10 Jurist, 642.) In this case there was a judgment recovered upon notes of the company in which the defendant was a stockholder, and it is conclusive on him. (Belmont v. Coleman, 21 N. Y. Rep. 100, 101.) The plaintiff next asks to strike out from the word “ secondly,” in folio 11, certain portions of the answer, together, ending with the word “ Cottrell,” in folio 22. This sets out a contract, with schedule and proof of execution at length, between Lindsley and Cottrell and one Lahens, and dated November 28, 1864, before the European Company was incorporated or existed,' and is clearly sham and irrelevant. This portion of the answer relates to matters that occurred before the European Company had any existence; and this,_with the allegation that follows shortly after, that it was' intended by Lahens for this company, does not constitute any defense, or any matter relative to the case.

The terms of the contract, as well as the date, showed it was a sale to Lahens on his own account. The allegation that it was transferred to them by Lahens after their incorporation, also shows it; therefore the allegation that it was intended by Lahens for that company, is a very frivolous proposition. Lahens might have changed his mind. Lindsley and Cottrell could not be bound by his intentions, nor does it better the matter if they claim that Lahens acted for the company, because no act is capable of ratifi-X cation by the principal which was not performed by the | agent, as agent, and in behalf of the principal. (1 Pars on Cont. 287; also 443, n.)

That portion from folio 23 to the words “that all,” in folio 27, is irrelevant and sham. If Lahens was defrauded by misrepresentations on the 28th of November, he hada cause of action against Lindsley and Cottrell on the 29th, which was personal to himself,- and did not pass by his subsequent assignment of the contract. (1 Pars, on Contracts, 200.)

Kent says, covenants not running with the land are personal covenants, and do not pass to the assignee; for if not true there is a breach as soon as executed, and they become chosés in action, not technically assignable, (see Gillespie v. Torrance, 7 Abb. 469; La Farge v. Halsey,1 Bosw. 171,) nor can any part be assigned. The fourth defense as it.now. stands is a subterfuge-. If the defendant means that by the contract between Cottrell and Lindsley and Lahens, the defendants became stockholders in the company that bought stock, it is absurd and no defense. They agreed to take the stock in payment for property, and by the act of 1853 they are not personally liable for the debts of the company,' under section 10 of the act of 1848, under which the defendant is liable.' (Sess. Laws of 1853.) For the same reason the third defense should be made more definite, so as to show what the defendant means; as it now stands it is evasive. The fifth defense is also irrelevant; if the judgment has not been paid in full, it is no defense to the plaintiff’s right to recover against the defendant.

The motion, in all respects, should be granted.


text:
    In the matter of the application of James Stewart to be naturalized as a citizen of the United States, on the ground that he served three years in the United States navy, during the war.
    1. Where a person making application to be naturalized furnishes satisfactory proof of good moral character, of one year’s residence within the United States, and that he is of the age of twenty-one years and upwards, and shows that he was regularly enlisted in the United States navy, where he served as an enlisted man; and that he has been honorably discharged from the service; these facts bring his case within the provisions of section 21 of the act of congress, approved July 17, 1862, so as to entitle him to naturalization by virtue of that statute.
    2. The provisions of the act of congress embrace the navy as well as the army.
    (Before McCunn, J., at Special Term,
    September 20, 1868.)
   McCunn, J.

The petitioner furnishes satisfactory proof of good moral character, of one year’s residence within the United States previous to the present application, and that he is of the age of twenty-one years and upwards. He shows further, by competent and sufficient evidence, that he was regularly enlisted in the United States navy; that he served in the navy as an enlisted man; and that he was honorably discharged from the service of the United States. The question is, do these facts bring his case within the provisions of section 21 of the act of congress, approved July 17, 1862, and so entitle him to naturalization by virtue of that statute ?

Perhaps the case is not within the strict letter of the law, for its words are, “ who has enlisted &e. in the armies of the United States,” the navy eo nomine not being mentioned. In the absence of an express adjudication of the point, the doubt must be -resolved- by reason alone. In the construction of a statute, these two considerations are of controlling weight: 1st. The reason and policy of the law. 2d. The general scope and import of all its provisions.

1. The policy on which the enactment in question proceeds is, that those who have enlisted in the military service of the country, and have endured its privations and perils, by that fact both attest their patriotism and establish a claim to be admitted to the privileges of citizenship.

Possibly, too, in conferring this distinction on the military service, the federal legislature' intended it in the nature of a bounty, to encourage enlistment. In this aspect of the law, as regards its reason and policy, there can be no discrimination between the army and navy; or, if there be any, the latter has the greater claim to public recognition and gratitude, in, proportion as its service involves greater sacrifice and danger. The presumption cannot be for a moment entertained, that congress deliberately designed to exclude .the seaman from the boon, conferred upon the soldier. If the apparent, exclusion of the navy from the. benefit of the law in question was the result of inadvertence, the court should repair the omission by a generous construction. But, secondly, I discover- no such omission. On the contrary, I am persuaded, from a comprehensive view of the statute, that congress understood they had employed terms sufficiently apt to designate the navy as the object of this particular bounty. The word is not army—the plural number is used; and it is enacted that those “ who have enlisted &c. in the armies of the United States ” shall, &c. Army is a word of very general signification, analogous and equivalent to military service, and perhaps of itself would embrace persons employed in the navy. When we speak of the military power of a country we intend as well its seamen as its soldiers, its naval as well as its land forces. In its etymology the word army denotes men in arms,” whether ashore or •afloat; and historically we know that not until a comparatively recent period, in any country, was the navy distinguished as a separate and independent establishment.

Indeed, even now, only in some special case, and when a particular application is designed, do men speak of the army as distinguished from the navy. The term in law language is nomen generalissimum, and includes the navy; except its meaning be restricted in the particular instance.

That the army, technically and exclusively, was not intended by'this statute, is evident from the employment of the plural noun, armies..

And this construction is strengthened by the subsequent phrase, “ such person having been honorably discharged from the service of the United States.”

Altogether, I entertain no doubt but the provisions of this statute embrace the navy as well as the army, and I shall admit the petitioner to naturalization, as well as all others in like case.