text:
    Mary M. O’Brien, Plaintiff and Respondent, v. James Bowes, Defendant and Appellant.
    1. An action between partners for a dissolution, an accounting, sale of the partnership property, payment of the debts, and a payment to the plaintiff of her share of the residue of the proceeds, is not an action for the recovery of money only, which must be tried by a jury, but it is a suit which would formerly have been a suit in Chancery, in which the Court had power to order a feigned issue, and in which, under the Code, an order may be made for the trial of any questions of fact which are in issue.
    2. By the rules of Court, if either party desire a trial by jury in such case, he must, within ten days after issue joined, give notice of a motion therefor. He cannot of right make such motion at a later period.
    3. The Court, for its own relief, and of its own motion, before the actual trial of the issues, may invoke the aid of a jury for their determination or for the determination of any questions of. fact involved therein. When a cause is called for trial, if it appear that the trial will require the examination of a long account, the Court may order a reference; or if there are questions which ought to be determined before the account is taken, the Court may try and determine those questions, and direct a reference to take and state the account And so, also, when the cause is called for trial, if difficult questions of fact are involved, depending probably upon conflicting testimony, the Court has power to order those questions to be tried by a jury.
    4. But where the action is brought to trial, and is actually tried by the Judge without a jury, each party giving all the testimony he desires respecting the matters in issue, and the cause is finally submitted for determination, it is too late to order a trial by jury. It is the duty of the Judge to decide the questions submitted, and it is the right of the parties respectively to have such decision.
    5. Under the circumstances last stated, an order dismissing the complaint, unless the plaintiff, within five days, apply for a trial of the questions of fact; and an order thereafter made on the plaintiff’s application, directing that certain questions in relation to which the testimony was conflicting, be tried by a jury are erroneous, and will be reversed.
    (Before Bosworth, Ch. J., and Hoffman, Woodruff, Moncrief and Robertson, J. J.)
    Heard, January 21st;
    decided, February 11th, 1860.
    Appeals from orders at Special Term.
    It appears by the pleadings, and the orders appealed from, that this is an action brought by the plaintiff, alleging a partnership between herself and the defendant, and praying for a dissolution, an account, a receiver, and sale of the partnership property, the payment of the debts of the firm and a distribution of the residue, and payment to the plaintiff of whatever is found due to her.
    The answer denies every material fact alleged, and the issues-thus raised were brought to trial.
    All the proofs were given by the parties respectively which they desired to give, and they rested, submitting the case to the Court for its determination.
    The trial was had at Special Term before Mr. Justice Hoffman, without a jury, and after such submission, and after consideration thereupon, on the 20th of June, 1859, he ordered “ that the complaint in this action be dismissed without costs, unless the plaintiff .apply within five days after the service on her attorneys of a copy of this order for a trial of the questions of fact in this action under the Code, in which case the question of costs is reserved.” From so much of this order as annexed a condition to the dismissal; allowing the plaintiff to apply for a trial of the questions of fact, the defendant appealed.
    On the 5th day thereafter the plaintiff applied for and obtained an order “ that the issues of fact in the action raised by the following questions be tried by a jury, and that said trial be had by submitting to. and obtaining the answer of the jury to the following questions;” specifying some of the questions of fact involved in the issues, and material to the final disposition of the cause, but some only.
    From this order the defendant also appealed.

      Francis Byrne, for the defendant (appellant),
    Cited in support of the appeal, Code of Procedure, (§§ 72, 251, 252, 253, 255, 266,) Draper v. Day, (11 How. Pr. R., 439,) Church v. Freeman. (16 id., 294.)

      Jno. F. Parsons, for the plaintiff (respondent).
    Section 72 of the Code reserves the right to order an issue for trial “ in the cases where the power now exists.”
    The Court of Chancery always had the power of awarding an issue on the hearing where a material fact became doubtful in consequence of conflicting testimony and that power was not taken away .by the act of May 2d, 1839. (1 Barb. Ch. Pr., 446; N. O. Gas Light and Banking Co. v. Dudley, 8 Paige, 452.)
    So that Court always had the power to order the hearing of a case to be suspended to enable either party to have any fact established. (1 Barb. Ch. Pr. 322.)
    The order of Judge Hoffman is to be takén together. It is no decision in .the suit, and no appeal can be taken successfully from a portion of it, so that the balance, being left untouched, the General Term would be deciding the casé in the name of the Judge at Special Term.
   By the Court—Woodruff, J.

It is clear that this is not an action for the recover of money only, or for any of the relief specified in that section of the Code of Procedure which declares what actions must be tried by a jury. (§ 253.) ■ It seeks other relief and falls within the provisions of that section (254) which declares that “ every other issue is triable by the Court, which, however, may order the whole issue or any specific question of fact involved therein to be tried by a jury.”

It is a suit which under our former system would have been a suit in Chancery, and in which a feigned issue might have been ordered, if doubtful questions of fact arose upon conflicting evidence, and it is therefore a case plainly within the provisions of section 72 of the Code, which provides that “ feigned issues are abolished, and instead thereof, in cases where the power now exists to order a feigned issue, * * * an order for the trial may be made, stating distinctly and plainly the question of fact to be tried, and such order shall be the only authority necessary for a trial.”

There was, therefore, no lack of power in the Court to order any question of fact arising upon the issues between the parties to be tried by a jury, and to settle and determine what questions should be so tried.

The ground of the present appeal is, that it was too late to make the order when it was made. That in fact the cause had been tried by the Court without a jury, and nothing remained but to render judgment, and that the parties respectively were entitled as matter of legal right to the decision of the Judge upon the questions submitted to him. Hot only so; that in fact the decision was in substance made' by declaring that the complaint be dismissed, unless the plaintiff applied for a trial.

The power of the Court to order a trial by jury being clear, the inquiry is, when that order may be made, and at what stage of the proceedings it may not be made ?

Rule 33 of the present rules of Court, provide in terms that in cases of this description, “if either party shall desire a-trial by jury, such parties shall, within ten days after issue joined, give notice of a special motion to be made upon the pleadings, that the whole issue, or any specific questions of fact involved therein, be tried by a jury.”

So that by going to trial before a Judge sitting without a jury, the parties plainly lost all right to move for such a trial on that hearing, or to make such a motion at any time afterwards. The order of the 20th of June, permitting the plaintiff to move for a trial by jury, was in direct opposition to the rule, and the motion made in pursuance of that permission was in like manner in conflict with its provisions.

If, however, the Court had power in this stage of the cause, as of its own motion to direct the trial of the questions of fact by the jury, the order should not be reversed merely because the Court authorized the plaintiff to ask for such an order.

That the Court may, for its own relief, at any time before the actual trial of the issues, invoke the aid of a jury for their deter-ruination, or for the determination of any question of fact involved therein, I entertain no doubt.

The power of the Court of Chancery before the Code to do. so, was unquestionable, and the terms of the 254th section of the Code above referred to, are broad and unqualified in conferring the power.

And, although the rules of Court have made it the duty of the party, if he desires such a trial, to apply within ten days after issue joined, his neglect to do so no more deprives the Court of the power to seek the aid of a jury for its own relief, than the omission of the parties to apply for a reference renders it necessary for the Court or the Court and jury, to examine a long account at whatever loss of time or however great the inconvenience.

In this respect, I fully agree with Mr. Justice Harris in his opinion expressed in Church v. Freeman. (16 How. Pr. R., 297.)

The Court, when a cause is brought on for trial, if it appear that the trial will require the examination of a long account, may order a reference. Not only so, if there are questions to be settled which ought to''be decided as a basis of the reference or as a guide to the conduct of the reference, the Court may undoubtedly hear and determine those questions, and then send the matter to a referee for the taking of the account.

So the Court, when the cause is called for trial, if it see that questions of fact are involved, the determination of which may depend and probably will depend upon conflicting testimony, may order those questions to be tried by a jury. It was a common exercise of the power of a Court of Chancery; the Revised Statutes did not deprive the Court of the power; and the Code, so far from taking it away or restraining its exercise, appears to me to confirm it. (N. O. Gas Light Co. v. Dudley, 8 Paige, 452; Gardner v. Gardner, 22 Wend., 536; Monson v. Clarke, 1 Clark C. R., 580.) It was the usual practice in Chancery to make the application for such a trial, when the cause was brought to a hearing, (18 Ves., 481; 1 Hoff.. Ch. Pr., 503; 1 Sim. & Stuart, 366;) and though the rule of Court may now prevent a party from making a motion therefor at that stage of the proceedings, I know of nothing to prevent the exercise of the power by the Court, if the aid of a jury is desired.

But these views are not decisive of the present appeal. In this action there was no application by the parties for a trial by jury. The Court, at the trial, did not order the submission of any questions to a jury. The cause was regularly brought to trial, and was tried before the Judge. All the testimony which either party desired to give respecting the matters in issue was given, and the cause was submitted for determination.

All this having been done, we think all questions respecting the' mode of trial were at an end, and it was the duty of the Judge to decide the questions submitted. Hot only so, we think it was a right of the parties, respectively, to have his decision.

We are aware that the Court of Chancery was accustomed, when not satisfied by the proofs as they were exhibited, to order a cause to stand over for the production of further proofs. That Court was always open, and such an order was, in substance, continuing or protracting the trial of the cause until the matter was ripe for determination, but even that course did not involve a refusal to decide when all the proofs were in and the case submitted for decision. *

Our present system assimilates the practice in all actions, whether at law or in equity. Our courts are held at successive terms, under regulations conformable to the practice of courts of law. A trial cannot regularly be begun in one term and be finished at another. And although it may be allowable to suffer a case to stand over from day to day for further proof when the Judge is sitting without a jury, we think that when the parties have closed their evidence and submitted the cause, the Judge has no alternative; he must decide.

He may—experience teaches that he often does—regret that the responsibility is upon him, and that he cannot rely on a jury to decide under a conflict of evidence and doubts as to the credibility of witnesses, but we 'think he must decide, and that whatever might have been the powers of a Chancellor, the Code has allowed him no choice.

The 267th section of the Code declares, that upon a trial of a question of fact by the Court, its decision shall be given in writing and filed with the clerk within twenty days after the Court at ' which the trial took place.

In respect to the time of decision, this may be merely directory, but the duty to decide is absolute and unqualified, and we have no doubt that the right of the party to have a decision, and a decision of the very question tried, is so perfect and absolute, that a mandamus would lie to compel the Judge to make the decision. Nor can the Judge satisfy the law by any order to stand over, or to try the question elsewhere. He must decide the question of fact, and this appears from the words of the section which follows, viz.: Judgment upon the decision shall be entered accordingly.”

It follows from these views that the orders appealed from were erroneous, and so far as appealed from should be reversed. Ordered accordingly.


source: Caselaw Access Project

author: Robertson, J.

license: Public Domain

text:
    Ranney, Assignee, &c., v. Stringer & Townsend.
    1. In an action, brought by an assignee in trust for the benefit of creditors, where such assignee is also a non-resident, the Court may, in its discretion, compel him to file security for costs.
    2. An order that he file security may be made, after the plaintiff has taken an appeal from, a judgment entered against him in the action.
    (At Special Term, February 28, 1860.
    Robertson, J.)
    The facts are sufficiently stated in the opinion.

      J. Graham, for defendants.

      H. W. Johnson, for plaintiff.
   Robertson, J.

This is an application to compel the plaintiff to give security for costs on an appeal fróm a Special to a General Term, after verdict for the defendant, the plaintiff suing in a representative capacity.

It having been held that an appeal is not a new suit, as a writ of error formerly was, so as to compel security for costs where a party had become a non-resident after the commencement of the original suit, (Johnson v. Yeomans, 8 How., 140; 7 Wend. R., 434,) it must be equally held to be' a continuation of the original action, for the purpose of making a non-resident and his sureties liable for its costs. Under the 317th section of the Code, the Court may require security to be given by the plaintiff in the cases mentioned in that section; and as this might have been done at any stage of the proceedings in the action, it is not too late to do it now; the rule as to non-residents, where the .attorney may be preferred as security not applying. I think the uncontradicted affidavits on the part of the defendants show a case for exercising the discretion allowed in the section in question, and an order must be made directing the plaintiff to file security for costs, or his appeal be dismissed with $10 costs of this motion, to be costs in the cause.


author: By the Court—Woodruff, J.

text:
    David Foshay, Plaintiff and Appellant, v. Henry C. Drost, Defendant and Respondent.
    1. Where a motion is made to open a default, as a mere.favor to the moving party, an order granting or denying the motion will not be reviewed on appeal.
    2. In such case, if the motion be granted upon terms, the conditions upon which the party obtains the favor will not be reviewed on appeal.
    3. Hence, where, after a trial and verdict for the plaintiff, the plaintiff’s motion for leave to file a reply to the defendant’s counterclaim was denied, unless the plaintiff consented to a new trial, and paid all the costs since the answer: Held, that the terms imposed on the plaintiff were not the subject of appeal.
    (Before Hoffman, Woodruff, Moncrief and Robertson, J. J.)
    Heard, March 24th;
    decided, March 31st, 1860.
    This is an action brought to recover money alleged to be due for the employment of the defendant and the charter of his vessel, for a voyage to Virginia for oysters. The answer avers that the plaintiff did not perform his contract, and has not refunded the money received for the purchase of the oysters, but so negligently performed the service that the defendant lost $200 of the money which he furnished to the plaintiff for the purchase of the oysters, and sustained by such negligence further damage to the amount of $250, and prays judgment against the plaintiff, for the said two sums and interest.

      To this answer no reply was filed or served.
    The action was brought to trial, and after the plaintiff had rested, the defendant’s counsel insisted that he was entitled to judgment for the amounts claimed by him, on the ground that they constituted a counterclaim, and the plaintiff not having replied thereto they were to be deemed admitted. The motion was overruled, and the defendant having given such proofs as he thought proper, the case was submitted to the jury, who, rejecting the counterclaim and finding against the defendant upon the question of due performance by the plaintiff, rendered a verdict for the amount claimed, with interest.
    The defendant excepted to the ruling, that he was not entitled to judgment for his alleged counterclaim, and to the submission of any question in relation thereto to the jury, insisting that it was admitted by the failure of the plaintiff to reply; and after the verdict, the defendant made a case on which to move for a new trial.
    The plaintiff, after the trial and verdict, moved at Special Term for leave to file a reply nunc pro tunc, as of the time the answer was served. On this motion affidavits were read, containing conflicting statements respecting what transpired at the trial—the affidavit on the part of the plaintiff representing that the parties came to trial prepared, and did actually try all questions upon which the rights of the parties depended; that, although the question whether there was a reply or not was raised, it was done by the Judge upon a claim of the plaintiff that the answer was not itself sufficient to admit proof of negligence as a defense, and not by the defendant’s counsel, who did not suggest that his defense was admitted until after such inquiry was made and it was found that no reply had been filed; that the Judge refused to then give leave to file a reply, on the ground that such leave could not be given at the trial, but suggested that the trial should proceed and the whole question be tried, and that, on motion at Special Term, to be thereafter made, leave to file a reply nunc pro tunc eould be obtained. On the other hand, the defendant’s affidavit represented that, when the plaintiff rested, he moved for judgment for the amount claimed in his answer for the want of a reply; that the Judge refused to grant such order, but offered to the plaintiff his election that a juror be withdrawn and the cause go off the term and so time be given to apply for leave to file a reply, or, if the plaintiff deemed the answer insufficient or a reply to be unnecessary, then to go on and try the cause, and, if he recovered a verdict, have an order that the cause be heard on a case in the first instance at General Term upon the defendant’s exceptions, and that the plaintiff elected to go on and try the cause, and did obtain a verdict; and that the defendant had made a case whereupon to apply to set aside the verdict and for a new trial.
    The plaintiff’s motion for leave to file a reply nunc pro tunc was heard before Mr. Justice Hoffmaft at Special Term, who, on the 1st March, 1860, ordered that the motion be denied unless the plaintiff file his consent to a new trial and pay all the costs since the answer, including $7 costs of motion, within five days after adjustmeiit.
    From so much of the order, as required the plaintiff to consent to a new trial as a condition of granting the motion, the plaintiff appealed.

      A. R. Dyett, for the plaintiff (appellant).
    I. The parts of the order in question are appealable: the conditions are oppressive. (5 Cow., 15; 10 Wend., 628; 5 Hill, 516.)
    II. The parts of the order appealed from are erroneous upon principle and authority: 1. There has been a fair trial of the counterclaim. 2. The defendant was not surprised at the trial: he was fully prepared with his proofs, and gave them to the jury. S. If the Judge erred in holding the counterclaim not admitted, no injustice was done, since the jury have found that no counterclaim exists, and if there is no injustice there should be no new trial. 4. The fact that defendant has made a case cannot affect the motion. He has other exceptions. An amendment will be allowed, although the effect will be to supersede a bill of exceptions. (2 Cow., 515; 12 Wend., 228; 2 Hall, 545.) 5. There is no necessity for another trial; and it is, therefore, unjust to require it. Had the defendant suggested the point before the trial, a reply would have been filed. He should not be permitted to lie by, and take advantage of a surprise to the plaintiff on the trial.
    III. Requiring payment of all the costs was also oppressive. Costs of the motion should only have been imposed. The Court below have practically admitted the sufficiency of plaintiff’s excuse, and yet imposed such terms of granting relief as to work a great injustice. (12 Wend., 135; 1 Hill, 118; 7 Cow., 483; 6 id., 360, 590; 4 id., 394, 503; 1 id., 670; 12 J. R., 353; 18 id., 510; Code, § 174.)

      John M. Martin, for the defendant (respondent).
    I. The terms on which a discretionary order is granted are not subject of appeal. (3 Code R., 85; 2 id., 41; 10 Barb., 303; 8 Abb., 42.)
    The merits are not involved. (3 Code R., 141; 4 Sandf., 709; 3 E. D. Smith, 210; 6 Duer, 689.)
    H. The Judge had no power to make an order which should deprive the defendant of the benefit of his exception taken on the trial.
    EEL The plaintiff’s application for leave to file a reply assumes that a reply was necessary; that, without it, the counterclaim of the defendant was admitted. The General Term, on the hearing of the ease, will, therefore, grant a new trial for error in not allowing that counterclaim on the former trial. This is, therefore, an attempt to avoid the effect of the election voluntarily made at the trial by the plaintiff, and deprive the defendant of a new trial to which, as matter of law, he is entitled.
    IV. The plaintiff was bound to know what was' in the pleadings ; and no claim that he was surprised will be listened to. (3 Wat. & Gra. on Hew Trials, 963, and cases cited.)
    The appeal should be dismissed.
   By the Court—Woodruff, J.

We regard it as well settled that, where a motion is made to the Court to open a default, as a mere favor to the moving party, the power of the Court being conceded, an order, either granting or denying such motion, will not be reviewed on appeal. In such case, no substantial right is violated; for relief from the default in such case is not a matter of right. The motion does not involve the merits; for the opposing party being in all respects regular, no rule of law or practice has been violated, and the merits of the action are not the questions in any wise -to be determined on such a motion. (Bolton v. Depeyster, 3 Code R., 141; Fort v. Bard, 1 Comst., 43; Mead v. Mead, 2 E. D. Smith, 223.)

In Thompson v. Starkweather, (2 Code R., 41,) the precise point that “ an order refusing leave to reply after the time for replying had passed, is not the subject of appeal to the General Term,” was adjudged.

If these cases be taken as our guide, then it is clear that, in this case, if the Justice at Special Term had refused the plaintiff’s motion for leave to file a replication nunc pro tunc, as of a day before the trial, the Court in General Term would not review the order, but an appeal therefrom would be dismissed. And it is quite obvious that, if we could not hear an appeal b)r the plaintiff from an unqualified denial of the motion, we cannot on his appeal review an order granting it upon terms. If such order of denial be not appealable, much less is an order imposing terms of granting the favor.

Without further discussion of the general question, it must suffice to say that it is settled in this Court that where a motion is addressed to the discretion of the Court by a party seeking a favor, the terms upon which the favor is granted are not a subject of appeal. It was so distinctly held in Gale v. Vernon, (4 Sandf., 709,) where the plaintiff was in default for not bringing his cause to trial, and was relieved upon terms of paying costs. And in Jacobs v. Marshall, (6 Duer, 689,) where a defendant was required to waive the defense of usury as a condition of opening a default for want of an answer, we held that, in respect of the conditions on which the default was opened, the decision at Special Term was final, and could not be reviewed on appeal. A default in not filing a reply, stands upon no more favorable footing for the party in default. (See also 3 E. D. Smith, 210.)

The cases cited, (5 Cow., 15; 10 Wend., 628,) in which the imposition of extraordinary terms, as a condition of putting off a cause at the Circuit, was reviewed in the Supreme Court, are not in conflict with these views. When the practice in a particular case has been long settled, it becomes binding as the rule governing the subject. Such was the practice respecting the putting off of causes at the Circuit, and it was because the Court held that, when the applicant brought himself within the rule, the Circuit Judge no longer had a discretion to exercise; that they held the imposition of unusual terms erroneous.

Reasons might be suggested why the order is not justly characterized as a harsh order. Especially since the plaintiff voluntarily went on with his trial, in spite of the objection, and refused the offer of the Judge to permit a juror to be withdrawn; but it is sufficient to say that we do not review the order, in respect to the terms imposed, as a condition of granting a favor.

The appeal should be dismissed.


text:
    Rogers v. Degen et al.

    1. Where an action, at issue on questions of fact, is noticed for trial, and when reached in its order on the calendar, the complaint is dismissed by reason of the failure of the plaintiff to appear, an allowance under section 309 of the Code may he made, if the action be a difficult or extraordinary one.
    2. The word trial as used in that section, and in section 307, subdivision 4, has a wider meaning than is imported by the words, “ the judicial examination of the issues between the parties.”
    (At Special Term, April, 1860.
    Before Robertson, J.)
    The facts of this case are fully stated in the opinion of the Court.
   Robertson, J.

The motion in this case is for an allowance under section 309, upon the dismissal of the complaint by default, upon proof of service of notice of trial of issues of law when the cause was reached in its order on the calendar, and the question whether an allowance can be made, must turn upon that other, whether such judgment by default is a trial ” within the meaning of that section. It is very evident that the allowance is not given as a trial fee alone, or counsel fee for trying the cause, (McQuade v. N. Y. & Erie R. R., 5 Duer, 613,) because it is the difficult and extraordinary character of the case, not of the trial which determines the right to the allowance; the mere trial alone forms by itself a contingency on which the right of an allowance depends, because section 322 excludes it upon a settlement before judgment, whereas, after a trial, costs follow to be included in the judgment. The only remaining question is solved by the Code; and here I do not' think the definition in section 252 is strictly applicable as there can hardly be said to be a “judicial examination” when the default of a party is taken; but in regard to costs, and indemnity of expenses, I think the term has a wider meaning, and this being a modified continuation of a prior fee bill, in which “trial” included every mode of disposing of issues in a cause. In this sense it is used in section 807 of the Code, where under the 4th subdivision it has been held that the word “trial” as applied to issues of fact, included judgments by default, (Dodd v. Curry, 2 Code R., 69; S. C., 4 How., 128,) and it certainly must include similar judgments in issues of law mentioned in the same. subdivision, and such was the view undoubtedly taken" in Lawrence v. Davis. (7 How. Pr. R., 354.) The fact that no evidence is taken, or other proceedings are had on a trial, is immaterial. (Shannon v. Brower, 2 Abb. Pr. R., 377.) The only effect of want of litigation on the trial would be to reduce the amount of counsel fee, or extra allowance, not to defeat the right to it altogether.

I think this a proper case for an allowance of five per cent on the amount claimed.


author: Hoffman, J.

text:
    Thomas McDowell, Plaintiff and Respondent, v. The Second Avenue Railroad Company, Appellants.
    1. A settlement of an action made by the parties before trial if made Iona ' fide by the defendant, without any intent to deprive the plaintiff’s attorney of his costs, is valid; and if the attorney proceed and perfect judgment after notice of such a settlement, the judgment will be set aside as irregular;
    2. As between the parties to an action, an attorney, as such, has no lien upon the subject of the action, and the parties may settle and discharge it before judgment without consulting him, if there be no collusion between them to clpprive him of his costs.
    (Before Bosworth, Ch. J., and Hoffman, Woodruff, Pierrepont, Moncrief and Robertson, J. J.)
    Heard, May 26th;
    decided, June 2d, 1860.
    This is an appeal by the defendants from an order made in this action on the 7th of April, 1860, by Mr. Justice Moncrief.

      The action was commenced in January, 1860, to recover tor the loss of services of plaintiff’s infant daughter, alleged to result from injuries caused to her by the negligence of the defendants’ servants. On the 16th of January, 1860, a settlement was had between the plaintiff and defendants, and the former, in consideration of the payment of §75, the sum agreed upon, executed and delivered to the defendants a full release of the cause of action, which release contained this clause, viz,: “all actions at law, or otherwise, are hereby discontinued without costs to either party.”
    On the twentieth day after service, of the summons and complaint, the following written notice was served on the plaintiff’s attorney, viz.:
    “ D. B. Taylor, Esq.:
    “ Dear Sir—The claim of Thomas McDowell against this Company has been settled, and we hold the release of the same.
    “Very respectfully,
    “John O’Brien, Treasurer.”
    John O’Brien was then the defendants’ treasurer. The plaintiff’s attorney makes affidavit that it was agreed between him and the plaintiff, when the suit was commenced, that he should have half of any sum that might be recovered, for his services in the suit, and that if nothing was recovered he was not to demand any compensation, and that he told the person who delivered the said notice of settlement to him, “ that that was not the proper way to treat him about a settlement of said action; * "" that he held a lien on said action, and that, under the circumstances, he should not regard the note then handed to him.”
    The attorney of the plaintiff proceeded in the action, took judgment by default for want of an answer, had the plaintiff’s damages assessed and the costs taxed, and perfected judgment and issued execution. The damages were assessed at §1,000. Judgment was perfected March 14, 1860, for §1,025.41, damages and costs. On the 28th of said March, the defendants obtained an order to show cause why the judgment and execution should not be set aside.
    There was nothing in the motion papers tending to show that the defendants had, at the time of the settlement, any notice of the said agreement between the plaintiff and his attorney; nor that it was any part of the defendants’ motive in settling to deprive the attorney of his costs, unless such motive may be inferred from the fact that the settlement was made without consulting the attorney in relation to it.
    On the 7th of April, 1860, after hearing both parties on the order to show cause, an order was made setting aside the judg ment and execution on paying to the attorney his costs as adjusted, and the Sheriff’s fees on said execution; that otherwise the motion to set them aside be denied, with $7 costs to the plaintiff.
    From that order the present appeal is taken.

      John Slosson, for appellants.
    D. B. Taylor, for respondent.
   Hoffman, J.

The subject of the present appeal is one of importance, and as considerable difference of views appears to exist, especially in late decisions, we have examined the points with some care.

As long ago as the year 1805, it was settled in our State, that if a defendant has bona fide paid the debt and costs to the plaintiff, and got a full discharge, without notice from the attorney of his claim, and without collusion to defraud him, it is valid, and a judgment taken by the attorney would be set aside on motion. If the adverse party applied to cancel the judgment by a set-off, then the Court would take care that the attorney’s bill be paid. (Pinder v. Morris, 3 Caines’ T. R., 165.)

In The People v. Hardenbergh, (8 Johns. R., 335,) a settlement of costs awarded to defendant in ejectment, made without notice from the attorney, and without collusion, was held valid, and an attachment set aside.

Martin v. Hawks, (15 Johns. R, 405,) was the case of a judgment for plaintiff for six cents damages and costs; notice to the defendant by the attorney to pay over the judgment to him, and a ca. sa. directing the Sheriff to pay the amount made to him. It was held that the attorney had a lien on the judgment for his costs, and stood with the same equity as if the judgment had been assigned to him, and he could not be defrauded of such ■lien and equity when all the parties were informed of it, and forbidden to do any act to prejudice it. The Sheriff, therefore, could not avail himself of a release by the original plaintiffs in an action for an escape.

Power v. Kent, (1 Cow. R., 172,) is to the same effect, there being judgment on a demurrer, disposing of the whole cause of action, with written notice from the attorney of his claim to the costs, and forbidding any arrangement without him, before the settlement made by the parties.

In Ten Broeck v. De Witt, (10 Wend., 617,) the defendant paid damages and costs to the plaintiff, after being apprised by a counsellor of the court that the plaintiff was not authorized to receive the costs. The court refused to set aside an execution; holding that the information given to the defendant was equivalent to a notice from the attorney not to-pay the costs to the plaintiff.

The following subsequent cases, before and since the Code, have been examined: Talcott v. Bronson, (4 Paige, 501,) Sweet v. Bartlett, (4 Sandf. S. C. R., 661,) Brown v. Comstock, (10 Barb., 67,) Haight v. Holcomb, (16 How. Pr. R., 173,) Ward, v. Syme, 9 id., 16,) Sherwood v. The Buffalo City Railroad Company, (12 id., 136,) Rooney v. The Second Avenue Railroad Company. (18 N. Y. R., 368.) They sustain the proposition thus stated in Shank v. Shoemaker, (18 N. Y. R., 489:) “ The claim of the attorney for the appellant for his costs had not been perfected by a judgment. There is no case which goes far enough to show that a party who has not obtained a judgment in his favor cannot settle a suit because it may prejudice the possibility, or even probability, that his attorney might obtain his costs by a future trial, and a judgment in favor of his client.”

It seems undeniable, that, in our State, the points laid down in the early case from Caines’ Reports (ut supra) are the rules in force to this day, with the addition that a settlement of the debt, without receipt of the costs, stands precisely upon the same footing as the payment of both debt and costs in that case to the client

And the English cases correspond with, and support, these rules.

The lien of an attorney upon a judgment is established. No set-off of cross-judgments can be had after one has been obtained in the suit in which he acts. No settlement will then avail against his rights. (Dowett v. Hollyer, 2 Dowl. Pr. Cas., 540; Caddell v. Smart, 4 id., 760.)

But, even then, the attorney is far from being constituted Dominos Litis. He cannot carry a judgment into effect against the order of his client. (Barker v. St. Quentin, 12 Mees. & Wels., 441.) If the client chooses to discharge the debt, or from imprisonment on execution, the attorney cannot prevent it. (Marr v. Smith, 4 Barn. & Ald., 466.)

So, if the attorney gives notice to the opposite party that he looks to the proceeds of the action for payment of his costs-, and directing payment to himself, or forbidding it to be-made to any other, a settlement without payment ‘will not be effectual. Lord Mansfield, in Welsh v. Hole, (1 Doug., 238,) said, that it was like paying a debt to A, after notice that it had been assigned to B. The ease of Read v. Dupper, (6 T. R., 361,) is explicit to the same point, and it is recognized by Coltmaw, J., in Francis v. Webb. (7 C. B. R., 731.)

And so, if the plaintiff, before judgment, chooses to release or compromise the action, without the intervention of his attorney, and without regard to his costs, he may do so; and, provided there be no collusion, fraud, or mala fides in the opposite party, the prospective lien of the attorney is lost, (Chapman v. Haw, 1 Taunt., 341; Rooke v. Wasp, 5 Bing., 190; Nelson v. Wilson, 6 id., 568; Clark v. Smith, 6 Mann. & Gran., 1051; Francis v. Webb. 7 C. B. R., 731.)

It is clear, I think, that, in the most favorable view for the attorney in this case, and assuming that he can, in opposition to this motion, justify his proceeding on the ground of collusion, this remains the only question open for consideration. Has he made out a case of that nature ?

Some authorities may be referred to. In Cole v. Bennet, (6 Price, 15,) after service of process in the action, the defendant purchased some articles of the plaintiff, for which he paid and took a receipt, in which was introduced a memorandum that no further proceedings were to be had in the action which had been commenced, each party to pay his own costs. The defendant then swore that, after he had got notice of service of notice of the declaration having been put upon the door of Ms former dwelling, he called on the solicitor and showed him the memorandum, who observed that the defendant should have settled with him. The attorney swore that the defendant had requested time, after being served with process; that-some little time before interlocutory judgment was signed, the defendant acknowledged receipt of the notice of declaration; said he had paid the plaintiff the debt, without mentioning the other matter of dealing between them, or showing him the memorandum; and the deponent then informed the defendant that unless his costs were paid he should proceed in the action. On the writ of inquiry, he had taken nominal damages only. He believed there was collusion, and was informed that the plaintiff had gone to America.'

The Court put the decision on the ground of there being collusion, and say, all the cases proceed on the ground that the parties are not to be permitted, by any such collusion, to cheat the attorney. The motion to set aside the proceedings was denied.

In Francis v. Webb, (7 C. B. R., 731,) the Court said: “ In cases of this sort, the Court requires a clear case of collusion to be made out before they will, at the instance of the plaintiff’s attorney, interfere to prevent effect being given to an adjustment of the dispute between the parties themselves. There was nothing in the affidavits to show that the party entertained the design to deprive the plaintiff’s attorney of his costs. The conduct of the plaintiff, (who was a pauper plaintiff,) was very ungenerous towards his attorney; and if we could discover any evidence of collusion on the part of the defendant, I should feel satisfaction in visiting him with costs. It was no part of the defendant’s duty to see that the attorney’s costs were paid.” Coltman, J., said: “If there had been notice not to settle without paying the costs, I should have thought the affidavits would have made a case of collusion. But there was nothing to lead the defendant to suppose that a fraud would be committed by the plaintiff on his attorney.”

In Clark v. Smith, (6 Mann. & Gran., 1051,) a verdict had been given for £78.5s. 6<7. damages and costs. The parties then settled for fifty guineas, and a release was given. Judgment was then entered up by the attorney. A motion was made to set it aside, with costs, to be paid by the attorney. The Chief Justice said: “The Court must clearly see, that the defendant fraudulently colluded with the plaintiff to defeat the attorney’s lien. Suspicious circumstances were not enough.” Maulé, J., said: “Theplaintiff and defendant settled in the absence of their attorneys. The plaintiff’s attorney had, therefore, no right to sign judgment. It lies upon him to show why it should not be set aside. The ground he goes upon is, fraudulent collusion. I think the affidavits, which are, in some respects, contradictory, leave that matter quite uncertain.”

In Nelson v. Wilson, (6 Bing., 568,) Chief Justice Tindal said: “It is undoubtedly competent for the party to settle the cause without the intervention of his attorney; and, if the attorney proceeds, in order to secure his costs, he is bound to make out a clear case of collusion between the plaintiff and defendant to deprive him of them. Upon reading the affidavits, we think that, though there is ground for suspicion, the collusion has not been clearly made out.” A verdict had been taken after notice of the settlement; and all the proceedings were set aside, with costs, to be paid by the attorney.

In a late case in Georgia, (McDonald v. Napier, 14 Ga. R., 89,) the subject has been carefully considered. The following are the propositions established:

1. The attorney has a special lien upon the money of his client which may come into his hands, and upon a judgment procured by him for his client. If the money is in his hands he may retain it in satisfaction of his bill, and if in the hands of the officer of the Court, the Court in the exercise of its equitable power, (I mean a Court of law,) will lay hold of it and prevent its payment over until his lien is satisfied.

2. If the defendant pay to the plaintiff the debt and costs due on a judgment, after notice from the attorney of the plaintiff not to do so, he will pay it in his own wrong and is liable to pay to the attorney his fees notwithstanding.

3. A settlement between the parties, with a view to defraud •the attorney out of his fees, will not discharge the defendant from liability to pay them, or extinguish the judgment as to them, even without notice; yet, if the parties without notice bona fide settle or compromise the debt and costs, the attorney cannot afterwards proceed against the defendant for his costs.

4. And in case of a collusive settlement of a cause, the attorney may proceed in the cause for the mere purpose of obtaining his costs. These propositions, I am clear, may be considered as settled .law in England, and have been recognized as law'very generally in our States. They are settled in the Courts of Law: and Chancery.

5. The lien on the money of a client is limited to the bill of costs accruing to the attorney or solicitor in the case in which it is raised, and the lien on a judgment is in like manner restricted. An execution issued upon a valid judgment in the hands of the attorney is a paper belonging to the client, upon which a hen for a general balance will attach as well as upon any other paper. At the same time it is to be noted that the security which the execution gives for fees, is not the mere right of detention until they are paid, but a process available for their collection out of the defendant. I do not see why it should not be detained as against the plaintiff for a general balance, whilst it is clear that in case of a settlement by the defendant with notice, or without it collusively, the judgment cannot be enforced against him for more than the fees due in'the particular case. It is important too that in reference to the lien of the attorney on the judgment, his power over it should be well understood. Because he has the lien stated, it is not to be understood that it supersedes all control which the plaintiff has over it, and that the attorney as dominus litis caw “ marshal the proceedings on the judgment as he may think fit.” The lien amounts to this that he has a right to control it for the collection of fees through an order of the Court directing its use for that purpose in the exercise of an equitable power which appertains to it over its own process, and over the lien of its officers.

Tested by the rules thus declared, it is impossible to say that upon these affidavits the defendants did, in making the settlement, act with the design of aiding the plaintiff in depriving the attorney of his costs. If the facts here made out a case of collusion, it would be difficult to imagine a case in which a settlement without the privity of the attorney could be made.

It is, however, "necessary to notice some cases which seem to conflict with the long line of authorities I have cited.

The case; Keenan v. Dorflinger, December 16th, 1859, in the Supreme Court, to which we have been referred, was one of a settlement between the parties after a report of a Referee against the defendant for the sum of $500. Then a release and a consent to discontinue without costs, were given. The Court denied the motion to discontinue absolutely, but allowed it on payment of costs.

A report of a Eeferee on all the issues upon which a judgment may immediately be entered, may be deemed upon this question equivalent to a judgment. (See Sweet v. Bartlett, 4 Sandf. S. C. R., 661.)

In Owen v. Mason, (18 How. Pr. R., 156,) there was a motion by the defendant to set aside an inquest for irregularity. When the cause was moved for trial, an attorney on behalf of the plaintiff, but not the one on the record, stated that the action had been settled by the parties, to which the defendant’s attorney assented, and moved to dismiss the complaint without costs. The attorney of the plaintiff on the record objected, producing a notice of lien served upon the defendant, forbidding a settlement except with him, and moved for judgment for the amount of his costs. The motion of the defendant was denied, and Justice Ingraham intimated that he should move to file a supplemental answer, setting up the settlement, and that the Court would then make it a condition that all the costs up to the settlement be paid. No motion was made by him. When the cause was next reached, the plaintiff’s attorney took an inquest, perfected judgment, and issued execution for $77, the amount of his costs. A motion to vacate the inquest and execution was denied by Justice Mullen. If, as we are probably warranted in supposing, the notice had been served upon the defendant before the trial, the case is entirely consistent with the other authorities.

There is also the case of Wood v. The Trustees of the North West Presbyterian Church, (7 Abb., 210, note,) in which the settlement was made the day before the trial, and a receipt in full given. The plaintiff’s attorney went on knowing of the settlement, and took judgment, the defendant not appearing. He issued execution for his costs as adjusted. It was held by Justice Hilton that the judgment could not be vacated. The defendant could only set up the settlement by supplemental answer, and the Court would only allow this upon payment of costs to the time.

It is stated by a late writer on the English practice, (Lush’s Practice by Stephens, p. 226,) “that it is the proper and safe course (except perhaps in clear cases of fraud and collusion) for the attorney whose lien has been destroyed by the conduct of die parties to the suit to apply to the Court for a rule calling on the opposite party to pay him his costs, and not himself to go on with the proceedings.” He cites Graves v. Eades, (5 Taunt., 429,) and Welsh v. Hole, (ut supra,) with other authorities.

The result of the cases, and in our judgment, the sound rule upon the subject is, that if an attorney has omitted to protect himself by a notice forbidding a settlement without him, and the parties compromise the action before judgment, of which he has notice, he then proceeds in the suit for his costs, at the peril of establishing conclusively that the adverse party had the design when making the settlement of defeating his demand for the costs. If he fail in satisfying the Court of this, his proceedings, subsequent to notice, will be set aside. In the present instance, the plaintiff’s attorney has failed in making out such a case.

The order below must be reversed without costs, and the judgment and execution must be set aside.

The other Judges (except Robertson, J., who dissented) concurred in the views stated, in the concluding part of the opinion of Judge Hoffman.

      See The People v. New York Common Pleas (13 Wend., 649, 655).


text:
    Robert B. Byass v. John Ogden Smith.
    1. Upon, the trial of an action brought to recover, or upon a reference ordered to ascertain the damages sustained by the plaintiff, by the use by the defendant .of the plaintiff’s trade mark; the defendant cannot be compelled to answer questions tending to show that the defendant has sold articles manufactured by himself, with a label thereon imitating, resembling or purporting to be the label of the plaintiff.
    2. A party cannot be compelled to give evidence tending to prove either of the three facts essential to constitute the offense prohibited by chapter 123, (§ 3,) of the Session Laws of 1850.
    (At Chambers, July 6th, 1860.
    Before Robertson, J.)
    The facts sufficiently appear in the following opinion:
   Robertson, J.

This is a motion for an attachment against the defendant for not answering certain questions put to him upon an examination before a referee, and not producing certain books.

■ The complaint alleges that the plaintiff has been for several years engaged in preparing and vending a commodity designated in the. market as “ Byass’ London Porter,” put up in glass bottles, upon which labels are affixed by the plaintiff as a trade mark, containing various devices, and also a fac simile of the plaintiff’s signature; that he has acquired a great reputation for such porter; that the defendant lias been engaged in putting up American porter in bottles similar to the plaintiff’s, upon which he put labels similar to the plaintiff’s, and also in selling porter; imitating the plaintiff’s bottles, casks and trade mark, with the intention of injuring the plaintiff. The demand for relief in the complaint is for an order restraining the defendant, among other things, from selling any imitation of the plaintiff’s porter.

The answer denies any. knowledge by the defendant that he eyer Ipnew such label to be the. property of. the plaintiff', or that he ever had any intention of injuring or defrauding him. .

The issues joined in this action were brought to trial, and the defendant was called as a witness for the plaintiff, on such trial. He then testified that he had sold porter bottled by him with a label resembling the plaintiff’s, but never sold it for genuine Byass’ porter; and the defendant’s counsel proved by one of the plaintiff’s witnesses that the plaintiff was not a manufacturer of the porter bottled and sold by him.

After such trial the Court ordered a reference to a referee, to report the amount of damages, if any, sustained by the plaintiff by reason of the defendant’s use of the plaintiff’s trade mark: in the proceedings, upon such reference, the defendant was askecj five questions by the plaintiff’s counsel, which were as follows:

1. When did you first begin to bottle and sell American porter put up and labeled as the plaintiff’s porter?

2. Have you sold porter at any time put up and labeled like the plaintiff’s, as and for an imitation of the plaintiff’s porter?

3. Have you, within the last five or six years, copied any such bill in any book or books ?

4. Have you ever copied any bill of Byass’ imitation porter sold by you, into any book ?

5. When you sold Byass’ imitation porter, were you accustomed to make out bills in the form of exhibit Uo. 2 ?

This exhibit was a bill for porter called “ Im’t Byass’ Porter.” The witness refused to answer such questions, and the objection now taken is, that the answers would tend to criminate the witness. The offense which it is claimed such answers would tend to prove, is that prohibited by an act passed in 1850. (Sess. L. 1850, eh. 123, § 3.) This statute declares that any person who shall vend any goods, &c., having thereon any counterfeited labels purporting to be those of any mechanic or manufacturer, knowing the same to be counterfeited, and purporting to be imitations of such labels, without disclosing the fact to the purchaser, shall be guilty of a misdemeanor. To this it is answered, that the answers given by the witness would not tend to prove any of the facts necessary to make out such offense; that the plaintiff is not a manufacturer or mechanic, within the meaning of the act; that other testimony in the case shows he was innocent of any such offense, and that he waived his privilege by having answered some questions relative to the same facts upon the trial. There are three essential ingredients in the offense, to wit: First, the selling the goods with the simulated marks on them; second, the knowledge .of their character; and the third, withholding such knowledge from such purchasers. Whatever tends to prove any one of these, the witness had a right to refuse to disclose. I do not understand that in the privilege of a witness to refuse to answer, because his answer would criminate himself, is embraced any right, on his part, to determine the question of the tendency pf his testimony, but that he pleads that his answer may be such as to criminate him, if any answer to the question put would do so. The Court is to determine, as a question of law, whether the question, if answered in any form, would form a link in the chain of evidence; the oath of the witness, therefore, is unnecessary to the fact that his answer must criminate him; by such an oath he would either swear to a conclusion of law, or admit impliedly the very fact he was endeavoring to conceal. Of course the answers in these cases would tend to prove the first ingredient of the offense, to wit: the selling of the goods; and whatever may be the evidence, in this case, of the absence of other ingredients, or even of a complete defense to the charge, that evidence might not be produced, or defense made out on a criminal charge. I do not think that the defendant, by not claiming ' his" privilege in other proceedings in the cause, waived it, in the proceedings before the Referee, because such evidence could not affect the referee’s judgment, unless introduced as an admission. Every admission in a cause may have its explanation and excuse, and the defendant could not be called on to answer questions tending to convict him, even if already convicted. The only remaining question is, whether the plaintiff comes within the description of persons mentioned in the act, against whose interests the offense may be committed. There are two classes mentioned—mechanics and manufacturers—and perhaps the question whether the plaintiff is either, is not to be determined by what appears in this action; the plaintiff may be the manufacturer of the porter sold, upon the bottles containing which the false labels may be pasted.

He has alleged in the complaint that he prepared the porter he sold, and the word “ manufacturer ” can hardly be intended to be limited to those who actually produced the raw material sold, but must extend to those who put it in a vendible shape and sell it in that shape, using labels to designate by whom it was so prepared and sold. I, therefore, am of opinion the defendant might bring himself, by his answer, within the peril of the statute.

The witness, was therefore, justified in refusing to answer the first and second of the above questions; the third, standing by itself, is unintelligible; the fourth and fifth present more difficulty, as they only refer to the article sold, not to the labels; but as there is no evidence of any other imitation but in the labels, they must be considered as tending to the same result, and as equally inadmissible.

The plaintiff had a right to the production of the books, but there is no evidence before me of a refusal to produce them. I am satisfied with the views of Justice Bonnet of the Supreme Court, on a similar motion in an action by the present plaintiff, on that point.

The motion for an attachment, therefore, must be refused, without costs.


text:
    Town v. The Safeguard Insurance Company of New York and Pennsylvania.
    1. On proceedings supplementary to execution, neither a witness nor a person alleged to have property belonging to the judgment debtor, can be required to answer questions put with a view to eliciting evidence tending to show that transfers of property made by such debtor were made with intent to defraud creditors.
    2. Property in the possession of a third person claiming title, no matter how fraudulent the transfer, the Judge cannot order to be delivered to the creditor.
    3. The object of the examination is the discovery of property in the possession or control of the debtor.
    (At Chambers, July 13th, 1860.
    Robertson, J.)
    The facts are stated in the opinion.
   Robertson, J.

Examinations or supplementary proceedings to a judgment can only be extended to the discovery of the property in the possession or control of the defendant, which he can deliver over; if in the possession of another claiming title, no matter how fraudulent the transfer, no order can be made to compel him to deliver the property, and, therefore, no questions can be put to the debtor or a witness to discover or prove the fraud. Such an examination is a fishing one and was not the object of these proceedings. The remedy of the creditor is by direct action against the fraudulent assignee, when the good faith of the assignment is in issue. The difficulty of ascertaining the disposition of property does not justify the assumption of this unlimited jurisdiction.

The witness in this case, as an officer of the Company, takes the place of a debtor in an ordinary case, and is not bound to go further in making disclosures than answering what has become of the property of the defendants, so as to see whether it can be delivered. The questions, therefore, to that extent, must be allowed. The questions not having been submitted to me, I cannot specify which come within the rule now laid down.


author: Bosworth, Ch. J.,

text:
    John C. Wheeler v. Mrs. Hartwell.
    In an action against a female, she cannot be arrested and held to bail, on the ground that she fraudulently contracted the debt on which the action is brought.
    (At Chambers, September 15, 1860.
    Before Bosworth, Ch. J.)
    The plaintiff applied for an order in this action, to arrest and hold the defendant to bail, on the grounds, that she owed the plaintiff $75, for the board of herself and daughter, and fraudulently contracted such debt.
   Bosworth, Ch. J.,

denied the application, holding that the provisions of the Code, that no female shall be arrested in any action, except for a willful injury to person, character or property,” (Code, § 179,) exempted the defendant from arrest in this action, although she may have fraudulently contracted the debt in question.


author: Moncrief, J., Hoffman, J. Bosworth, Oh. J.

text:
    Holdane el al., Plaintiffs and Appellants, v. Butterworth, Respondent.
    1. Where a person (B.) is in partnership with another (T.) in a business described as the business of “ The Atlantic Forge Company,” but in which the correspondence is conducted and all contracts made in the name of T., (the name of B. in no manner appearing in the business,) and thereafter the firm is dissolved, and a new partnership is formed by T., the co-partner, and a third person, under a different name, to conduct the same business at the same place, and the partners in such new firm immediately send a notice of that fact- signed by them, by post, to all who had dealt with the old firm, and subsequently a vendor who had never dealt with the old firm, makes a sale of goods on credit, nominally, to such former co-partner, T., in whose name the business of the . old firm had been done, and takes a note signed by the new firm in its true name, he cannot charge the person, so. retiring, as a continuing partner, although he knew by- common notoriety that the person so retiring had been a partner, and supposed that he then was, provided it was also a matter of public notoriety, on and after the formation of the new'firm, that it had been formed by such co-partner and third person, in a new name, and that it had in fact transacted its business in such new name.

      2. Where the facts specially found entitle a defendant to a general verdict, 1 the plaintiff will not be entitled to a new trial because portions of the charge may have been erroneous, when such portions of the charge could not possibly affect the minds of the jury in considering the evidence relating to or in determining such special facts.
    (Before Bosworth, Oh. J., and Hoffman and Moncrief, 3". J.)
    Heard, April 15;
    decided, May 14, 1859.
    This is an appeal by the plaintiffs (John H. and James H. Holdane) from a judgment entered on a verdict in favor of the defendant, (John E. Butterworth,) rendered at a trial had before Mr. Justice Slossokt and a jury, in March, 1858. Charles H. Tupper and Wesley M. Lee were also named as defendants, but neither of them was served with the summons or appeared in the action.
    The complaint states that the defendants on the 10th of October, 1855, were partners “ under the name or style of C. H. Tupper, or C. H. Tupper & Lee, at the building usually known as the Atlantic Forge, Ho. 268 Eleventh street,” in New York city.
    That on that day the plaintiffs, being partners, composing the firm of Holdane & Co., sold and delivered to the defendants ninety-one pieces of iron, for the price of $659.22, on a credit of six months, for which the defendants have not paid.
    The answer denied the allegations of the complaint.
    On the trial it was proved, that for several years prior to March, 1855, the defendants Butterworth and Lee were partners and did business at Ho. 268 Eleventh street, under the firm name of the Atlantic Forge Company. That Butterworth was its capitalist, but transacted individual business at the Merchants’ Exchange, two and a half or three miles distant, and was at Ho. 268 Eleventh street only occasionally, sometimes once a week, and sometimes not in three or four months. The correspondence of the firm was conducted and its notes and contracts were signed in the name of Charles H. Tupper alone. The name, Charles H. Tupper, at the time of the trial, and for several years previously, was placed conspicuously on a large sign on the top of the building, the whole length of the roof, and the words “ Atlantic Forge ” were painted conspicuously on the same building.
    Tupper & Butterworth did no business after the first of January, 1855 ; they dissolved partnership prior to March of that ’ year; on the 1st of March, 1855, the defendants, Tupper & Lee, formed a partnership, under the name of “ 0. H. Tupper & Lee Lee was a man of but little means,- and for some time previous had been foreman of the establishment; the new firm conducted its business at the same place, and in its proper name. They sent circulars, dated March 1, 1855, signed with their names in full, “ by the post, to such parties as had formerly dealt with the house,” stating that they had formed such partnership to transact the same business as the Atlantic Eorge Company had previously done, and at the same place; and the same fact was also communicated orally to some of those who had formerly dealt with the old firm; no notice of the dissolution of the old firm or of the formation of the new one was published in any newspaper.
    It was proved that there was a small tin sign on the front office, before the new firm was formed, which was taken down, and that a new sign was put up, (when the new firm was formed,) having on it'the names, “ C. H. Tupper & W. M. Lee.” That the debts owing in March, 1855, when the firm was dissolved, were paid principally by Butterworth, at his office in the Merchants’ Exchange. Butterworth was not in any way interested in the new firm.
    The sale of the iron by the plaintiffs was made thus: On the 8th of October, 1855, the plaintiffs sent to C. H. Tupper a note in these words, viz.:
    “New York, Oct. 8th, 1855.
    “ C. H. Tupper, Esq.:
    “ Dear Sir—W e have for sale about ten tons faggoting iron, $55 per ton, 6 months. These are of Ford’s make.
    “ Very respectfully,
    “ Holdajste & Co.”
    Tupper called on the plaintiffs soon, and said he would take the iron, and would send his cart for it. He did so. The plaintiffs charged the iron to C. IE Tupper, and made out and sent with it a bill for it in the name of C. H. Tupper. About a month after the iron was delivered the defendants sent to the plaintiffs a note, dated October 10th, 1855, for the amount of the bill at six months, signed “ C. H. Tupper & Lee,” which note the plaintiffs produced at the trial and offered to cancel. The plaintiffs were ignorant of Lee’s connection with the firm until they received this note. James-H. Holdane (one of the plaintiffs) testified that this was the only transaction of his firm with the house doing business at the Atlantic Forge. That as early as 1853 “ he learned, and it was generally known in the trade, that Butterworth was a member of the house doing business in Eleventh streetthat he had not heard of his retirement until C. H. Tupper & Lee had failed, in December, 1855, and “ supposed ” when the iron was sold that Butterworth was a partner. The case does not show whether John H. Holdane, the other plaintiff, was or was not examined. “ There was evidence on both sides, on the questions whether or not Butterworth was generally known to be a member of the house, and whether.or not it was generally known that a change had taken place in the firm in March, 1855.” The plaintiffs objected and excepted to this question being put to Josiah Shove, who was in the employment of the new firm, viz.:

      Q. “ Was it or not generally known among the dealers of the Atlantic Forge Company or Charles H. Tupper, and the trade generally, that there had been a change in the firm ?”

      A. “ It was.”
    Being shown a bundle of papers, the same witness stated that they were fourteen letters received by Tupper & Lee from various customers, in different parts of the country, since the 1st of March, 1855, and that all of them were addressed to Tupper & Lee. To the admission of this evidence the plaintiffs excepted.
    Butterworth testified that it was not generally known that he Vas a partner in the business of"Charles H. Tupper.
    Tupper & Lee, in December, 1855, when they failed, made an assignment to the defendant, Butterworth, for the benefit of their creditors. The judge charged that the plaintiffs cannot recover, if it was not a matter of public notoriety that Butterworth was a member of the prior firm, so that the plaintiffs from that source had, or may fairly be supposed to have had, notice of his connection with the firm. .
    That they cannot recover, although it was a matter of public notoriety that he was a member of the firm, if the change of the firm on the first of March was also a matter of public notoriety, or if “such steps were taken by the.old or new firm or by Butterworth to make it known, as that the plaintiffs on inquiry might have ascertained it.”
    But if the change of the firm was not also a matter of public notoriety, or if “no such steps were taken to make it known as that the plaintiffs on inquiry could have ascertained it, then they are entitled to recover.” -
    „ That as there is no evidence “that Butterworth ever held himself out to plaintiffs, as a member of the firm, and his name not being used in the firm, and the plaintiffs having had no transactions with the firm while he was a member of it; they cannot now charge him as a member of the firm, except on the ground that they may be reasonably supposed to have given credit to the firm in the transaction in question, from the belief induced by the general notoriety of his previous connection with it, that he was still a member, and the absence of a generaLnotoriety of the change of the firm, or of steps taken to make the change known, so that on inquiry they could have ascertained it.”
    The plaintiffs excepted, severally, to each part of the charge.
    The jury found a general verdict for the defendant, and in answer to questions specially submitted to them by the judge, ■ found:
    1. That it was a matter of public notoriety that Butterworth was a member of the firm, existing up to the 1st of March, 1855.
    2. That it was a matter of public notoriety that the firm was changed on and after that date..
    The plaintiffs requested the Court to charge:
    1. That if they knew, by general report or otherwise, that for several years prior to the 1st of March, 1855, Butterworth was a partner, the latter was liable unless he proved “that the plaintiffs had notice of his- retirement or disconnection before they sold the goods.”
    2. That it was his duty, either to prove actual notice of such disconnection, to the plaintiffs; or to have published it in some public newspaper in the city of New York; or in some other public and notorious manner put the public on their guard.
    3. Unless the defendants had done- this, the plaintiffs must recover, unless before selling the goods, they had in some other way obtained knowledge of his retirement.

      4. That knowledge by the plaintiffs, when they sold, of a change of the name of the firm from the Atlantic Forge Company, or Charles H. Tapper to C. H. Tapper & Lee, of itself gave no information to the public concerning the defendant Butterworth ; nor had that any tendency to show that he ever was a partner; or if he had been, that he had ceased to be one. The judge refused to charge, in respect to either request, otherwise than as he had charged, and the plaintiffs excepted, seriatim, to the several refusals to charge as thus requested.
    Judgment having been entered on the verdict, the plaintiffs appealed from it to the General Term.

      Thomas Nelson, for appellants.
    I. Upon the dissolution of a partnership, the retiring partner, to exonerate himself from liability to the creditors of the continuing firm, for contracts entered into by them subsequent to his retirement, must give notice of his retirement. (Collyer on Partnership, §530.)
    H. As to persons who have been in the habit of dealing with the firm, it is requisite that actual notice be brought home to them. (Collyer on Partnership, § 533; Clapp v. Rogers, 2 Kern., 283.)
    III. As to all persons who have not had any previous dealings with the firm, a notice in one of the public and regular newspapers published in the (place where the business was carried on, is the usual mode of giving information, and should be given to exempt the retiring partner from liability for the future engagements of the continuing firm. (Collyer on Partnership, § 532, and notes, § 534; Lansing v. Gaine, 2 Johns. R., 304; Kitchen v. Clark, 6 id., 147; Graves v. Merry, 6 Cow., 704; Vernon v. Manhattan Co., 17 Wend., 527; 22 id., 193, 198; National Bank v. Norton, 1 Hill, 578; Munn v. Baker, 2 Stark., 255.)
    IV. When a notice of the dissolution has not been published in a newspaper, or brought home to the knowledge of the party to be affected by it, evidence of the mere notoriety of the dissolution is not admissible to prove such notice. (Collyer on Partnership, §533; Pitcher v. Barrows, 17 Pick., 361; Gorham v. Thomson, Peake’s C., 42.)

      Y. A dormant partner is liable after his retirement from the firm, to creditors who knew him as a member of the firm, if they were not notified of his retirement. (Davis v. Allen, 3 Comst., 168; Collyer, §536, and note 4; Kelly v. Hurlburt, 5 Cow. R., 534; Evans v. Drummond, 4 Esp., 90; Carter v. Whalley, 1 B. and Ad., 11; Grosvenor v. Loyd, 1 Metc., 19; Farrar v. Deflinne, 1 Car. and Kir., 580.)
    "VI. Butterworth, in fact, was not a dormant partner. It is a well settled rule of law that a person is not to be deemed a dormant partner because his name does not appear in the firm and partnership style which they choose to adopt. (Goddard v. Pratt, 16 Pick., 428.)
    VII. The plaintiffs had no knowledge of the change of the firm at the time they sold their goods; but even if they did, that fact furnished no presumption that Butterworth had ceased to be a partner, if he had not given sufficient notice of his retirement. Shaw, Ch. J., says: “When a business is carried on by three or more partners, and one withdraws, or one is added, or both, and notice thereof given, and the business is carried on as before, those as to whom no notice is given must be presumed to hold the same relation to the concern that they did before, and such change furnishes no presumption that the others have ceased to be partners.” (Howe v. Thayer, 17 Pick., 95.)
    VIII. The giving of the note of C. H. Tupper & Lee to the plaintiffs was no payment of the plaintiffs’ claim. (Davis v. Allen, 3 Comst., 168; Vansteenburgh v. Hoffman, 15 Barb., 28.)
    IX. The plaintiffs’ several exceptions to the charge made by the court, and its omissions to charge as requested, were well taken.

      E. S. Van Winkle, for respondent.
    I. The jury found as a fact that it was a matter of public notoriety that Butterworth ceased to be a member of the firm on the 1st of March, 1855.
    The plaintiffs had never had any transactions with Butter-worth’s firm, and months after he had retired from it, sold to parties doing business under a different name a quantity of iron, for which they took the new firm’s note at six months.
    The old firm was “The Atlantic Forge Company.” The new firm “C. H. Tupper & Lee.”

      There was no error, therefore, in the Judge’s charge, that if they found such dissolution to have been a matter of public notoriety, the defendant, Butterworth, was not liable.
    Where, on the trial of an action against three persons who had been in partnership together in Liverpool, but one of whom (Humble) had retired, it was proved that, upon his retirement, the new name of the firm was painted upon the counting-house, and the winding up of the affairs of the old partnership was removed to another .place’ in Liverpool, and circular letters1 announcing the change of partners were sent to the correspondents of the old firm, but there was no public advertisement of the change, nor any notice of it proved which could expressly affect the plaintiffs, the Court of King’s Bench held that these circumstances were a sufficient notification to all the world of the , change in the firm, and that the action was not maintainable against Humble. (McIver v. Humble, 16 East, 169.)
    A change of the form of checks in a banking house, is, without any advertisement in the gazette or circular letter to customers, sufficient notice of an alteration of the firm to a creditor who uses such checks. (Barfoot v. Goodall, 3 Camp., 147.)
    II. The rule is, that actual notice of the retirement of a partner is necessary to be given to the dealers with an established firm, in order to shield the retiring partner from liability for new engagements in the name of the firm, and that as to all other parties a publication in the newspaper is sufficient. But it is not held that such publication is the only means, but that any other facts inferring notice are enough, all the cases, however, have reference to new liabilities in the name of the old firm, not to new liabilities by a new firm or in a new manner, for that alone is notice. (Godfrey v. Turnbull, 1 Esp., 371; McIver v. Humble, and Barfoot v. Goodall, cited above; Clapp et al. v. Rogers et al., 2 Kern., 283; Vernon v. Manhattan Co., 22 Wend., 183; Graves v. Merry, 6 Cow., 701; Ketcham v. Clark, 6 Johns., 144.)
    “ Public notice in some reasonable manner must be given.” A change in the business name seems the best notice, and one that cannot be overlooked.
    See Parkin v. Carruthers, (3 Esp., 248,) where La Blanc lays stress on the point that the firm remained the same.

      In Davis v. Allen et al., (3 Comst., 168,) “ The general principle is, that when a person has done business with another as a member of a firm, or has so publicly appeared as a partner, as to satisfy the jury that the plaintiff must have believed him to be such, and he suffers the plaintiff to continue in and act upon such belief, by omitting to give notice of his having ceased to be a partner after he really had ceased, he will be responsible for the consequences of his original representation uncontradicted by a subsequent notice.”
    This means that when a person does business with another as a member of the firm, or does business with a firm in which the party has publicly appeared as a partner, so as to induce the dealer to believe he was such, although the plaintiff did not actually transact business with him, then he shall be liable.
    The facts of the case and the context show this to be the meaning, and thus construed it is sound law; but if applied in favor of a stranger to dealings with the firm, it is not supported b^ any authority.
    The'judgment should be affirmed, with costs.
   Moncrief, J.,

delivered a written opinion, which, after stating the facts of the case, proceeds as follows:

Collyer on Partnership, section 530, states the rule to be, that “all the partners maybe bound, after the dissolution of the partnership, by a contract made by one partner in the usual course of business, and in the name of the firm, with a person who contracted on the faith of the partnership and had no notice of the dissolution. The principle on which this responsibility proceeds, is the negligence of the partners in leaving the world in ignorance of the fact of the dissolution, and leaving strangers to conclude that the partnership continued, and to bestow faith and confidence on the partnership name in consequence of. that belief; and where one of two innocent persons must suffer from giving a credit, he who has misled the confidence of the other, and has been the cause of the credit, either by his representation or his negligence or his fraud, ought to suffer instead of the other.” Story on Partnership (§ 160) says: “ Unless the ostensible partner, who has retired from the firm, suffers his name still to appear as one of the firm, so as to mislead the public, (as by its being stated and still remaining in the firm name,) he will not be liable to mere strangers who have no knowledge of the persons who compose the firm, for the future debts and liabilities, notwithstanding his omission to give public notice of his retirement, for it cannot be said in such cases that any credit is given to the retiring partner by such strangers. Every new creditor or new customer is bound to inquire who are the parties really interested at the time in the firm, if he would be safe in his credit and dealings with them.”

All the cases cited in the argument are cases where an ostensible partner is sought to be held liable for a debt contracted in the old firm name; or by a dealer with such firm not having had notice of dissolution.

A dormant partner is only chargeable to third persons in respect of contracts entered into by the firm during the time he is actually a partner and is receiving the emoluments and profits of the business, for third persons have never trusted to his credit. The dormant partner is liable during that time, because he is in fact a contracting party, taking a part of the profits of such contracts ; but when he ceases to be in fact a partner, the reason ceases, and he is no longer liable. (Coll. on Part., § 536, 3d Am. ed.; 4 Esp., 89; 5 Cow., 534.)

The name of Butterworth never appeared as a member of either firm. He was known to have been the capitalist and interested'with Tupper as a member of the firm, doing business in the name of “ The Atlantic Forge,” and not otherwise. It was as a member of that house one of the plaintiffs had heard of him, and to which he claims to have given credit in this particular transaction. He cannot sustain such a claim, because he gave the credit either to C. H. Tupper, or C. H. Tupper & Lee, and for the reason that he had notice of a change in the name of the firm upon the receipt of the note. He had notice by the new sign with the new firm name thereon. He had notice by the new firm name signed' on the note received for the iron. (See 16 East., 169; 3 Camp., 147.) That was a clear, distinct and unmistakable notice. A fair presumption of actual notice can be raised from circumstances that will be sufficient. (1 Smith’s L. C., p. 978, old p. 505.) As a matter of fact, it was not disputed that Butterworth was in no wise interested in business at Ho. 268 Eleventh street, after March 1, 1855. This transaction occurred seven months afterwards, (in October, 1855.) He cannot be held as a dormant partner, because he was not interested in its profits, and the partnership never did include him. He could not be held liable after his retirement, for the reason that the firm name did not include him, though that name had remained the same. (See Coll. on Part., § 536, pp. 488,489; 1 Barn. & Adol., 11; 5 Cow., 534; Story on Part., §§159, 160, &c.; 1 Esp., 182.)

If it be true, as contended by the plaintiffs, that a liability against Butterworth could arise from the fact that he was somewhat .generally known, or reputed to have been a partner in business transacted at a particular place, then it should follow as a necessary consequence that his discharge could be shown by the same publicity or notoriety as to his disconnection or withdrawal prior to the making of the contract.

The jury found, as matter of fact, that it was a matter of public notoriety that the firm was changed on and after March 1, 1855; and it seems to me that the plaintiffs would be as much bound to hear what was said by public report or rumor, as they are supposed to see what may be published in a newspaper. Either method of conveying information is somewhat uncertain and dependent upon circumstances materially different from actual notice.

The other exceptions being thus disposed of, in this view of the case, it is unnecessary to consider the particular language of instruction to the jury. Even if erroneous, it could not affect the right of the defendant to judgment.

The judgment should be affirmed, with costs.

Hoffman, J.

This case has some particularities distinguishing it from the leading authorities upon the subject. The plaintiffs had not in any sense dealt with the old firm, of which Butterworth was a member. He was not then called upon to give actual notice of his retirement to persons who had not had transactions with the firm, much less with himself personally. Hor can the question arise, whether any degree of publicity by newspaper advertisement or circulars, could be, under any circumstances, a substitute for actual notice, as to previous dealers. (Clapp v. Rogers, 2 Kern., 283; Vernon v. The Manhattan Co., 22 Wend., 183; Graves v. Merry, 6 Cow., 701.)

Again, the case is not governed by authorities tending to show that as to subsequent dealers, a publication of a dissolution in newspapers printed in the place of business, would, under certain circumstances, be "sufficient. (Ketchum v. Clark, 6 Johns. R, 144; Collyer on Partnership, § 532 and note.) All that has been urged or cited upon these points appears to us inappropriate.

The case presents these important particulars. It was a matter of public notoriety that Butterworth was a member of the old firm up to the 1st of March, 1855. It is in proof that the plaintiffs heard of his connection with it as early as 1853, and had not heard of his retirement until after December, 1855, the period of the failure - of the new firm. One of the plaintiffs swears that he supposed Butterworth was a partner, when the sale of the iron was made. No advertisement of a dissolution was ever published. But the jury have found that it was matter of public notoriety, that the firm was changed after the 1st of March, 1855.

If the head note to Davis v. Allen, (3 Comst., 168,) is fully borne out by the decision, it would seem to involve the rule that when once knowledge of an existing partnership is possessed by a party actually, or is to be inferred from notoriety, notice of retirement must be traced to such party, or the partner will continue bound.

But the facts of the case show, that the plaintiff had worked for the firm from 1833 to 1843, and that Child, the defendant, was a partner from 1832 to some time in 1840. The work sued for was performed between the 1st of June and the 26th of November of that year, after the 'time when Child ceased to be a member.

The Court held that it must be inferred from the facts found by the referee, that Child was known to the plaintiff to have been a partner by direct transactions, or public notoriety. An omission to give notice of retirement was equivalent to a continued representation of his remaining a partner. »

“The report necessarily involves a finding that Child was thus known to the plaintiff,” that is, as a partner and so known in one mode or the other, by direct transactions, or public notoriety.

Therefore, as the finding may have been that he was actually known, and through direct transactions, to be a member of the firm, the decision may justly be placed upon that ground. It is not a necessary consequence that if the source of information had been nothing but repute, actual notice of retirement would have been equally essential.

In Farrar v. Defflinne, (1 Carr. and Kir., 580,) the defendant and one Todd had been in partnership from 1834 to 1837. The defendant was a dormant partner; but much testimony was given to show that the plaintiff had been aware of his being a partner, and had not been made acquainted with the fact of his retirement. That had taken place before the claims sued upon arose. Cress-well, J., put it to the jury thus: The question for you is, was this partnership actually known to the plaintiff either by general report or by direct communication ? If it was, and he did not know, either from notice of the fact or from surmise, that the dissolution had taken place, you may infer that he still dealt on the faith of the partnership, and the defendant will therefore be liable. The plaintiff had dealt with the firm during the partnership, and afterwards. I think that the phrase “ surmise ” used by the learned judge may be treated as equivalent to “repute.” Lord Kenton in Godfrey v. Turnbull, (1 Esp., 371,) where notice had been given in the Gazette, and the case was of a plaintiff who had not previously dealt with the firm, and the defendant had retired before the bill sued on was given, said: “ If the dissolution be notified in the ordinary way, in the only way in which the fact of dissolution can be promulgated, (at least to those who have had no previous dealings with the partners,) it seems sufficient at least to be left to the j ury from thence to infer notice.”

In the Tombeckbee Bank v. Dumell & Lyman, (5 Mason, 56,) it was held that a bill accepted after a dissolution, though drawn before, did not bind a retiring partner, who had announced the dissolution by a public advertisement at the place of business.

Dobbin v. Foster, (1 Carr. and Kir., 323,) was a case in which the retiring partner was originally bound to the plaintiff. Although his retirement was known, there was not enough to show a relinquishment of that original liability.

There is a marked line of distinction between cases of a previous dealing with a firm of which the party to be charged was known to be a partner, or of which dealing he received, or might have received a benefit in profits, and cases of a dealing for the first time after the party had retired, and the credit was ostensibly given only to the parties forming the new firm.

When a plaintiff rests only on the common notoriety of a person having been a partner, to make him liable for a contract made after his retirement, an equally common notoriety of retirement or dissolution must be sufficient to exonerate him. If without actual personal knowledge or actual dealing, the ground of notoriety can be presumptively sufficient to fix a responsibility upon a party, the same ground of general repute should operate in his favor, which operates, against him. This is the case before .us upon the verdict of the jury.

There remains one question. What is the effect of the evidence of one of the plaintiffs, that he supposed Butterworth continued a partner, when the sale "of the iron was made ?

It is apparent that the danger of receiving such evidence is great, especially since the admission of parties to testify on their own behalf. The defendant in such a case must be defenseless, unless he can prove actual notice of the dissolution brought home to the plaintiff.

The plaintiff, James H. Holdane, has not sworn that he made the bargain in this case, nor is there one word of corroborative evidence tending to show any reliance upon Butterworth’s credit.

The judgment should be affirmed, with costs.

Bosworth, Oh. J.

The proposition is not controverted; that after the dissolution of a firm properly notified, no new contract by the continuing firm can bind the partner who retires.

A notice of dissolution published in the Gazette before a new contract is made, has been held to be an answer to an action by a person having no previous dealings with the firm, whether he’ saw such notice or not. (Collyer on Part., p. 311, § III., Perkins’ 3d ed., § 534.)

“ Public notice, in some reasonable and sufficient manner, must be given, and that will conclude all persons who have had no previous dealings with the firm.” (Ketcham & Black v. Clark, 6 J. R., 148.)

The jury found it was “ a matter of public notoriety that the firm was changed on and after ” the 1st of March, 1855. The plaintiffs’ proposition to sell the iron in question was made by a letter dated the 8th of October, 1855. On the 10th they took for the iron a note made by “0. H. Tupper & Lee,” the new firm. The firm of which Butter worth was a member, never did business in that name. When the new firm was formed an old tin sign on the front office was taken down and changed, and a new sign put up with the names “0. H. Tupper & Lee,” thereon. Printed circulars stating the dissolution of the old firm and the formation of the new one, and who composed the latter, were sent by post to all who had dealt with the old firm. Butter-worth did not appear in the business, nor had he anything to do with it, after the dissolution of the old firm.

Tinder such circumstances, the fact that the dissolution of the old firm was a matter of public notoriety, should protect an out going partner, as against a person who never dealt with the old firm, and who, after the lapse of more than six months after the dissolution, sells goods to the new firm, and takes its note therefor, signed in the new firm’s name, although he transacted the business with one who had been a member of the old firm.

Public notoriety of the fact of dissolution is sufficient notice to all persons who never dealt with the old firm.

It is an extravagant claim, when made by persons dealing with the new firm after the lapse of months from the time of its formation, and taking the note of the new firm, that the sale was made on the credit of the retiring partner, and on the faith that he was a member of the firm, especially when it is not pretended that he ever did business in that name, but on the contrary it is proved that the name of his firm was entirely different.

I think the facts proved entitled the defendant to a verdict and that the judgment should be affirmed.

Judgment affirmed.

       Since the above cause was decided, the City Bank of Brooklyn v. McChesney et al., (20 N. Y., 240,) has been decided by the Court of Appeals. The latter case seems to hold that publication of a dissolution of a partnership in a newspaper, is requisite to protect the retiring partner from liability to one subsequently and in good faith taking a note made in the firm’s name after such dissolution; although the person so taking it had not been a dealer with the firm, but had knowledge of its prior existence and not of its dissolution.
      The reason why notice of the dissolution of a partnership published in “ the Gazette in England,” has been held a sufficient notice to those who have not dealt with the firm, whether

        actually seen or not, as stated by Lord Abinger, C. B., in Hart v. Alexander, (7 Carr. & P., 746,) is that “ the Gazette in England is the usual evidence of a dissolution of partnership, even against persons who are not proved to have read the Gazette at all, because a person, not knowing who may trust a firm hereafter, announc.es bis leaving it by an advertisement in the Gazette.”
      It is not intimated that publication of such a notice in any other newspaper, would be equally a protection to the retiring partner.
      There is no particular newspaper in the city of New York, in which notices of dissolutions of partnerships are exclusively published, or in which it is expected they may be found. So that publication in a newspaper not taken by a person seeking to charge the retiring partner would not be likely to inform him of the withdrawal of such person from the firm.
      If publication in a newspaper, though the publication be not seen and cannnot ordinarily be expected to be seen, is to protect a retiring partner, it must protect him on the ground, that such a notice is all that can be reasonably required, by persons who had not dealt with the firm during its existence.
      If public notoriety of the dissolution of a partnership and of the formation of a new firm with a new partnership name, will not protect the retiring partner from liability to a person who had no previous dealings with the firm and who subsequently sells goods to the new firm and takes the note of the new firm therefor; then the only ground of exemption would seem to he (no notice of the dissolution having been published in any newspaper) that such person had actual notice of the retirement of the withdrawing partner; and the question of actual notice would seem to be one of fact, to he shown by direct evidence, or by circumstances that would justify a jury in inferring it. (Hart v. Alexander, 7 Carr. & P.; 746; Ketcham & Black v. Clark, 6 J. R., 146.) UA general notice, by advertisement or otherwise, should he sufficient for those who know the firm only by general reputation.” (Verplanck, Senator. 22 Wend., 194.)
      However, much doubt may be created as to the accuracy of the decision in Holdane v. Butterworth, by the case in 20 N. Y. R., 240; the questions involved are deemed of sufficient importance to justify the reporting of it. . . Rep.