text:
    George Ireland, Jr., Executor, &c., Plaintiff and Respondent, v. Elisha C. Litchfield, Defendant and Appellant.
    1. Upon, the death of a plaintiff, after final judgment in his favor, his personal representatives may bring an action upon the judgment, to obtain the same relief as was formerly obtained in such cases by a writ of scire facias.

    2. The personal representatives cannot issue execution by leave of Court; nor can they revive the judgment by a motion under section 121 of the Code. Per Bosworth, Ch. J.
    3. In such an action, by the personal representatives, to revive the judgment and obtain execution thereof, it is in the discretion of the Court to allow costs or not.
    (Before Bosworth, Ch. J., and Woodruff, J.)
    Heard, November 14;
    decided, November 30, 1861.
    Appeal from a judgment entered on the decision of a Judge, on a trial at Special Term.
    George Ireland, Jr., as executor of the will of Edward Cook, deceased, brought this action in the nature of a writ of scire facias, against Elisha 0. Litchfield, a judgment debtor of Oook, to have the judgment revived, and for leave to issue execution thereon.
    - The complaint alleged that Cook, in his lifetime, and about two years before the present action was brought, recovered a money judgment against the defendant, and that after execution issued and returned unsatisfied, Cook died, leaving a will and appointing plaintiff his executor, who had duly qualified.
    The specific relief prayed was, “that this action be continued in his name, and that he may have leave to issue a new execution upon such judgment, and continue this action with the like effect as if the said Edward Oook were still living, &c.”
    The action was tried at a Special Term before Mr. Justice Woodeuff, on the 14th day of June, 1861.
    After the plaintiff had given his evidence and rested his case, the defendant made a motion that the complaint be dismissed on the ground that such an action would not lie, but the Court overruled it, and gave judgment for the plaintiff, with costs.
    The defendant excepted to the conclusions of law contained in the decision of the Court, on the grounds that:

      First. The plaintiff is not entitled by law to any revivor of the judgment by means of this action; and the action by law did not abate by the death of Edward Cook; and no judgment can be given in this action, in any event, beyond simple leave to issue process of execution.

      Second. The present action is not authorized by law, and is unnecessary for any purpose.

      Third. The plaintiff is not entitled to costs for bringing this action.
    Judgment having been perfected against the defendant, he took the present appeal to the Court at General Term.

      Charles Tracy, for defendant, (appellant.)
    I. An action in nature of scire facias cannot be sustained, unless there is necessity for that form. (Code, § 428.)

      II. There is none, under the Code, when a judgment recently recovered, comes to the hand of an executor.
    1. The original action in which the judgment was recovered did not abate by the death of the plaintiff of record. (Code, § 121.)
    2. The executor could be substituted as plaintiff, upon motion. (Code, § 121.)
    3. Execution could be had at any time within five years. (Code, § 283.)
    III. All the relief granted, beyond the mere license to issue execution, was erroneous.

      Ed. Randolph Robinson and William Curtis Noyes, for plaintiff, (respondent.)
    I. Scire facias was the remedy before the Code of Procedure. (R. S., part III, tit. II, ch. IX, art. 1, § 2, 2d ed., p. 475 ; Alden v. Clark, 11 How. Pr. R., 212 ; Murphy v. Cochran, 1 Hill, 339 ; Cameron v. Young, 6 How. Pr. R., 372.)
    II. Since 1849 this action has been superseded by a civil action under the Code, seeking the same relief.) (Amended Code, § 428, 7th ed., p. 569 ; Catskill v. Sandford, 4 How. Pr. R., 100 ; Cameron v. Young, 6 How. Pr. R., 372 ; Thurston v. King, 1 Abbott Pr. R., 126 ; Jay v. Martine, 2 Duer, 654 ; Wheeler v. Dakin, 12 How. Pr. R., 537.)
    III. Leave of Court to bring such action is unnecessary. (Wheeler v. Dakin, 12 How. Pr. R., 537.)
    IV. The relief given in this case is the usual relief given to the plaintiff on succeeding in such an action, and was properly given. (Jay v. Martine, 2 Duer, 654 ; Thurston v. King, 1 Abbott Pr. R., 126.)
    V. Costs follow such a judgment. (Darrow v. Lickel, Sp. T., Buffalo Superior Court, cited Clinton’s Dig. III., p. 2948 ; Wheeler v. Dakin, supra.)

    VI. The allowance of costs to the plaintiff was a matter of discretion with the Court, and is not appealable. (Amended Code, § 306 ; Travis v. Waters, 12 John., 500 ; Eastburn v. Kirk, 2 John. Ch. R., 317 ; Niles v. Griswold,
      3 Code R., 164 ; Perry v. Moore, 2 E. D. Smith, 32 ; Joyce v. The Mayor, 20 How. Pr. R., 439.)
   By the Court—Bosworth, Ch. J.

By the laws in force when the Code took effect, if a plaintiff died after final judgment in his favor, but before execution issued, no execution could be issued on the judgment until it had been revived by scire facias, at the suit of his personal representatives. (2 Saund. R., p. 6, note 1, and Id., p. 72, m, 72, n, and 72, o ; Gra. Pr., 308 ; Troup v. Wood, 4 John. Ch. R., 247, 249 ; Baldwin v. Hale, 17 John. 272 ; Murphy v. Cochran, 1 Hill, 339 ; and 2 R. S., 576, §§ 2 and 3 ; Id., 386, § 2.)

Section 428 of the Code abolishes “ the writ of scire facias,” the writ of quo ivarranto, &c.; but it declares that “the remedies heretofore obtainable in those forms, may be obtained by civil action under the. provisions of this chapter.”

As this section, in express terms, authorizes an action to be brought, there does not seem any basis to uphold an argument that one cannot be brought.

Section 283 [238] does not affect the question. It authorizes an execution to be issued as a matter of course, at any time within five years after the entry of judgment. By 2 Rev. Stat., 363, § 1, one might be issued as a matter of course, within two years after filing the record of judgment. But in either case, and in one as well as in the other, if the plaintiff die before execution issued, it is essential that the judgment should be revived in the name of the personal representatives of the deceased party.

Section 284 [239] which provides that “after the lapse of five years from the entry of judgment, an execution can be issued only by leave of the Court, upon motion,” is only applicable where the parties to the judgment are living. Under any other construction, sections 284 and 428 would conflict with each other. This construction is further favored by the provisions of section 284, which require that it be established “by the oath of the party” or other satisfactory proof, that some part of the judgment is unpaid, and that the motion be made “upon personal notice to the adverse party,” unless he be absent, &c. The execution to be issued as a matter of course, under section 283, or pursuant to leave granted under section 284, must be in such form as section 289 prescribes. Section 289 requires, that it be in the name of the party plaintiff of record, (if the judgment be in his favor,) and against the persons against whom the recovery was had.

Such an execution is not adapted to the cases provided for by 2 R. S., pp. 577, 578, §§ 5 to 11 inclusive.

Section 471 [390] declares that the second part of the Code “ shall not affect * * any existing statutory provisions relating to actions not inconsistent with this act, and in substance applicable to the actions hereby provided,” &c. And § 428, while it abolishes the writ of scire facias, and other writs named in it, enacts that the remedies heretofore obtainable in those forms, “ may be obtained by civil actions under the provisions of this chapter.” The fact that the subsequent sections of that chapter do not contain any provision in respect to an action to revive n, judgment, does not restrict the remedy by action under it, to those cases alone, which are specified in the special provisions found in that chapter. The cases thus specified are to be prosecuted under or subject to those provisions, as well as subject to the general provisions of the Code in relation to actions generally. The phrase, “under the provisions of this chapter,” is not a limitation of the natural and ordinary meaning of the words immediately preceding it, but is merely designed to declare that the remedies theretofore obtainable by scire facias, although they may be obtained thereafter by civil action, shall be subject to the special provisions of that chapter, in respect to the cases to which such provisions relate.

In the opinion of the Legislature, nothing more was requisite, on abolishing the writ'of scire facias, to revive a judgment, and authorizing the remedy previously had under it to be obtained by action, than to retain by enactment the existing statutory provisions relating to the subject matter, not inconsistent with the Code, and in substance applicable to the actions provided for by it. It can hardly be supposed that it was designed the Code should repeal 2 R. S., 577, § 3, or the substance of sections 6, 7. and 9 of the same title. To allow the remedy to be had by action which, before the Code, could be obtained by scire facias alone, is merely giving to the language of section 428 a construction in accordance with its natural and obvious import.

To hold that section 428 gives no such remedy, and that section 121 prescribes the course to be pursued, requires an unnatural construction to be given to the latter section. The latter section applies to the cases of death, marriage or other disability occurring between .suit brought and judgment recovered. It is an unnatural use of language, to speak of a cause of action which has been prosecuted to judgment, as surviving or continuing after the death of a party to the judgment.

That section provides for the several cases covered by 2 R. S., title 1, ch. 7, part 3, entitled “ Of the abatement of suits by death, marriage or otherwise, and of their revival," and by 2 R. S., pp. 184, 185, §§ 113, 126 inclusive, and meets some cases which the new system of practice made it expedient to provide for, and which were not reached by the Revised Statutes; as allowing persons succeeding by actual transfer of the cause of action, to be substituted as parties, as well at law as in equity.

In Jay v. Martine, (2 Duer, 654,) it was held that an execution upon a judgment could not be issued upon the application of the executors of a deceased plaintiff, upon motion. Although this is the decision of a single Judge, it was made upon consultation with other Judges of the Court, and received their approbation. (2 Duer, 607, note a.) The decision was approved by Mr. Justice Emott, in Wheeler v. Dakin, (12 How. Pr. R., 537.)

Judge Mitchell, in Thurston v. King, (1 Abb., 126,) held the remedy by action clear, and denied a motion, made by the executor of a deceased plaintiff, for leave to issue execution.

The Code has not unqualifiedly prohibited au action upon a judgment by one of the parties to it against the other; and as this Court has construed section 71, a hona fide assignee of a judgment may bring an action upon it without obtaining leave of the Court. (Tufts v. Braisted, 4 Duer, 607 ; and see Wheeler v. Dakin, 12 How., 540.)

We think the relief sought in this case, and which, prior to the Code, was attainable only by scire facias, may now he had by action, and that section 428 of the Code expressly so provides.

But it is insisted that the Court had no power to award costs. We think it a sufficient answer that (assuming the case not one provided for by section 304 [259] of the Code) section 306 [261] confides it to the discretion of the Court, whether to allow costs or not. With the exercise of that discretion, even if we have the power, we see no occasion to interfere.

The judgment must be affirmed.' Ordered accordingly.


source: Caselaw Access Project

author: By the Court—Woodruff, J. Robertson, J.

license: Public Domain

text:
    Catharine N. Forrest, Plaintiff and Respondent, v. Edwin Forrest, Defendant and Appellant.
    1. On an appeal from a judgment granting a divorce and awarding alimony, the General Term have power, upon reversing the judgment as to the alimony, and affirming it in other respects, to order a reference to ascertain what allowance and security therefor, are proper, and report the same with the proofs. This is not an assumption, by the General Term, of original jurisdiction to order a reference on motion, but is incidental to the appellate power of the Court, on reversing, in part, a judgment in a matter of equitable cognizance.
    2. But were such an order of reference irregular, so long as it stands unrevoked, it cannot be disregarded, or made the ground of reversing a final judgment thereon, by another General Term, in subsequent proceedings in the same cause.

      3. It seems, that proceeding on the reference, and subsequently at Special Term upon the Referee’s report, without objecting to the regularity of the order of reference, would be a waiver of the error, if any.
    4. A judgment of divorce will not be reversed on appeal, and a new trial ordered, merely because the record contains some technical exceptions which were well taken, if the Court is satisfied upon the whole case that justice has been done.
    5. The decision of this Court in this case, (3 Bosw., 661,) that upon the question of alimony, evidence of the conduct, reputation, associations or habits of the plaintiff since the judgment of divorce was pronounced, is inadmissible, re-affirmed.
    6. Errors on the part of a Referee, to whom it was referred to ascertain the amount of alimony proper to be allowed, and to report the same with the proofs, do not necessarily require a reversal of the judgment for alimony entered at Special Term thereon, where the Court at Special Term, in awarding such judgment, examined the whole subject, and properly exercised a judicial discretion thereon.

      7. In fixing the allowance of alimony after a judgment of divorce, the ability
    of the defendant is a primary inquiry, and the sum allowed must be so clearly within his ability, that his own means of living will not be unreasonably reduced. His ability being ascertained, then the inquiry what is suitable for the plaintiff may be considered, without any restriction arising from fear of injustice to the defendant. And if it be necessary, in determining the husband’s ability, his occupation and his income therefrom may properly be taken into account. »
    8. One-third of the husband’s income cannot be deemed, in itself, an extravagant proportion to award to the plaintiff.
    9. Voluntary dispositions, made by the defendant, of his property, or any part of it, pending the litigation, ought not, in any degree, to prejudice the plaintiff, or reduce the amount of her allowance, especially if, notwithstanding such dispositions, he is still able to pay it.
    10. Where the estate of the husband was shown to be between $200,000 and $300,000, and his annual professional income exceeded $12,000, Held, that an allowance of $4,000 per annum, was not unreasonable.
    11. The allowance of such permanent alimony may, in the discretion of the Court, be directed to be computed from the time of the commencement of the action; and this is especially proper, where the litigation has been protracted many years, by the fault of the defendant, and to the embarassment of the plaintiff.
    (Before Woodruff, Moncrief and Robertson, J. J.).
    Heard, October 14;
    decided, December 7, 1861.
    Appeal from a further judgment or decree awarding permanent alimony to the plaintiff, after a judgment in her favor for divorce.

      This action was brought in 1850 for a divorce, which the plaintiff sought on the ground of defendant’s adultery. Various proceedings in the cause have been heretofore reported. The plaintiff obtained a judgment for a divorce in 1852, which awarded her an allowance of alimony upon certain conditions.
    Upon appeals by both parties this judgment was, by the General Term in 1856, affirmed as to the divorce, but set aside in respect to alimony. (6 Dner, 102.) As to this part of the judgment appealed from, the judgment of the General Term upon the appeal, provided as follows:
    “ And this Court proceeding to direct, in lieu thereof, such order and judgment in the premises as ought in that behalf to have been made at the said Special Term, it is ordered that it be referred to Alvin C. Bradley, Esq., Counselor-at-Law, as Referee, to take proofs, and ascertain and report to this Court what would be a suitable allowance to the plaintiff for her support, having regard to the circumstances of the parties respectively, and from what date the same should be allowed, and at what time br times, and in what manner the same should be paid, and whether any or what moneys, heretofore paid or allowed by the defendant to the plaintiff since the commencement of this action, ought to be deducted from the payments hereafter to be made; the said Referee having regard to the expenses of the plaintiff for counsel fees and otherwise in prosecuting this action, not taxable as costs merely; and that said Referee also report what security for the payment of such allowance by the said defendant, upon any estate of the said defendant or otherwise, would be reasonable and proper, and that he report the facts found by him, with his opinion on the matters aforesaid, and all proofs taken before him', and any rejection by him of proof offered.
    “ And it is further ordered, decreed and adjudged, that upon the coming in and the filing of said report, this action be brought to a further hearing thereon, and, unless in such hearing the Court shall otherwise direct, it shall, as the final judgment of the Court in this behalf, be then ordered, decreed, and adjudged, that the said Edwin Forrest, the defendant, pay to the said Catharine ÍT. Forrest, the plaintiff, for her support, such sum and sums of money, and at such time and times, and in such manner as shall be specified in the report of said Referee,” &e.
    Pending the hearing before the Referee, the plaintiff moved for a commission to take testimony to be used upon the reference, which the Court denied upon grounds stated in the report of the case. (3 Bosw., 661.)
    The facts found by the Referee, so far as essential to an understanding of the decision, are briefly as follows: The plaintiff herself “ had been reared in a style of some elegance, was well educated, with a taste for music and the stage, and possessed unusual grace and beauty of person. She brought the defendant no property.”
    The defendant, who was an actor, began life without property also, but at the time of his marriage it appeared that he had accumulated some $12,000 worth of property. “Prior to his marriage no accounts of his receipts or expenditures were kept. Such accounts were kept, however, during his cohabitation with the plaintiff, and discontinued immediately afterwards. In 1850, about thirteen years and a half after the marriage, the value of his real and personal property amounted to $150,000.”
    For some years the parties maintained a household, the annual expenses not exceeding $3,000 or $4,000 a year; the establishment being conducted by the wife with system, moderation and economy. About 1848 Mr. Forrest purchased a country seat for about $12,000, and at an expense of about $80,000 prepared it for a residence; but before it was occupied the occurrences which led to this divorce took place. Upon the separation of the parties, he agreed to pay her an allowance at the rate of $1,500 per annum, but he discontinued the payment of it when the plaintiff recovered judgment in this action.
    When the judgment was recovered against him, the defendant gave such personal property as he owned, which included his household furniture, an interest in a vessel, and a large library, to his three sisters, and he subsequently purchased property in the name of his sisters, to the amount of over $53,000. His sisters were without means other than what the defendant’s bounty may have bestowed on them; but they neither directly nor indirectly, paid any value for the property, or any part of it, nor was he indebted to either of them. After the judgment of divorce, the defendant continued the practice of his profession, and realized an annual income therefrom of about $14,000; and the plaintiff, it appeared, had given public concerts, and had been a manager,and performer at a theatre; but how long, or what income she had received, did not appear. Both the parties were without issue.
    Upon these facts the Eeferee reported, that having regard to the circumstances of the parties respectively, the sum of four thousand dollars per annum would be a suitable allowance to the plaintiff for her support; that the same should be payable from the day when this suit was commenced; and gave directions as to the security which defendant was to give; and he further held, that having regard to the expenses of the plaintiff, for counsel fees and otherwise, in prosecuting the action, not taxable as costs merely, (which amounted to about $7,000,) no part of any moneys paid or allowed by the defendant to the plaintiff since the commencement of the suit, and before the 24th day of July, 1856, should be deducted from the allowance.
    The cause came on for a further hearing on the coming in of this report, before Mr. Justice Moncbeef at Special Term, on the 23d of February, 1860. The Counsel for the defendant urged various exceptions to the report, the nature of which sufficiently appear in the opinions of the Court; and the Judge ordered the report to be in all respects confirmed, except that the sums which the defendant had paid pending the action under.the several orders of the Court should be deducted from the amount awarded by the Eeferee.

      Judgment having heen entered accordingly, the defendant appealed from it to the Court at General Term.

      James T. Brady, for defendant, (appellant.)
    I. Defendant is entitled at this stage to present in some form his objections against the confirmation of the Referee’s report, or any judgment in conformity thereto, or founded thereon.
    II. The report cannot be received for any purpose, for the General Term had no power to order a reference.
    ITT. The Oourt has no power to compel the defendant to provide more than a “ suitable allowance to the complainant for her support,” and in mating this allowance the Court are to act “ having regard to the circumstances of the parties respectively.” (2 R. S., 146, § 45.)
    1. No arbitrary or absolute power is here conferred to fix for allowance any sum the Court may think proper. It is to be regulated by the amount “suitable” for the “support” of the wife, regarding the “circumstances,” not only of her husband, but of her. 2. “Support” here means a reasonable amount for her food, raiment, washing, place of residence, medical care, attendance on divine worship, ordinary interchange of courtesies with neighbors and friends, and the like. She is not to be endowed with the means to live sumptuously beyond her former mode, or to indulge in display, luxury, intemperance or extravagance; nor is she to be furnished, out of her husband’s property, with the money to expend even in charity. 3. “Circumstances,” in the statute, include pecuniary resources, and the capacity to earn a livelihood, of both parties. If a woman of large fortune obtained a divorce, she would not, and could not be allowed anything from her husband’s estate in a case like this. (Morrell v. Morrell, 2 Barb. S. C. R., 483 ; Osgood v. Osgood, 2 Paige, 624.) If he were paralytic without property, or a pauper, the Court could not and should not direct him to pay alimony. If he were an old, feeble and poor man, and the wife youthful, active and intelligent, no allowance should be made. If he had small means, and no profession or employment, while she had a profession and ability to pursue it profitably, little or no allowance should be made her. If husband and wife were each equally cajjable of maintaining themselves, the amount of allowance, if any, should be fixed with regard to such a condition of things. See, in this connection, Coles v. Coles, (2 Md. Dec., 341) ; Wright v. Wright, (6 Texas, 29.) 4. The Court is not justified in making a partition of the husband’s estate, nor in making* an order of distribution, as if he were dead. See Purcell v. Purcell, (4 Hen. & Munf., 507 ;) Almond v. Almond, (4 Rand., 662 ;) Logan v. Logan, (2 B. Monr. R., 142 ;) Lynde v. Lynde, (4 Sand. Ch. R., 373 ;) Rose v. Rose, (11 Paige, 166 ;) Burr v. Burr, (10 Paige 28, and 7 Hill. 207 ;) Sanford v. Sanford, (5 Day, 353 ;) Thornberry v. Thornberry, (4 Litt., 251.) 5. Hot only the pecuniary circumstances, but the habits and conduct of the wife should, and must be taken into account in fixing the allowance or alimony. Holmes v. Holmes, (Walker, 474.)
    IV. The allowance for permanent alimony cannot legally commence until after final judgment. (As to temporary alimony, see 2 R. S., 148, §§ 58-62 ; as to permanent alimony, see Id., 146, § 45 ; Poynter on Marriage and Divorce, 246-252 ; Bishop on Marriage and Divorce, § 591, 4th ed., vol. 2, § 427, and cases cited in note.)
    In this case the plaintiff has delayed her application for years. (Durant v. Durant, 1 Hagg., 528 ; Kempe v. Kempe, Id., 532.)
    V. In fixing the allowance for alimony the inchoate right of dower should be taken into account.
    ' VI. The amount cannot be enhanced because of the husband’s alleged delinquency.
    VII. The value of the husband’s estate is only material so far as to ascertain whether his means will enable him to pay a suitable support. But when the suitable amount has been ascertained, it cannot be legally increased by any proof of his ability to pay more.
    VHI. If the plaintiff be right in claiming an allowance from the commencement of the suit, then such allowance should be based upon the means which he is proved to have possessed at that date.
    IX. The Referee’s conclusions are inconsistent with the propositions above stated, and are in many respects erroneous.
    1. He rejects all considerations in reference to her earnings. 2. He rejects all the evidence as to what it would cost her to support herself in a comfortable, decent and proper manner. 3. Though he calls the allowance a provision for her “ support,” yet it is quite evident that he has not estimated what sum would be sufficient for that purpose, but has made partition of the defendant’s estate. (See Bishop on Marriage and Divorce, § 591, [4th ed., vol. 2, § 427,] and cases cited.) 4. He makes the allowance not in reference to the style in which she lived with him, nor the amount allowed by him on a voluntary separation—viz.: $1,500 per year— nor to the expenses of her support as proved before him, but according to the expectations which he says “ were justly inspired by the erection of Fonthill as a residence, and the more elevated social rank she was to acquire.” 5. The sum he awards is grossly disproportionate (even on his own theory and estimate) to the value of the defendant’s estate as proved.
    X. The Referee’s estimate of the defendant’s property and income is erroneous. 1. The Referee begins by stripping the sisters of his bounty, and including the whole of it in defendant’s estate; and he leaves the plaintiff a right of dower in the entire real estate of defendant. 2. Out of a productive estate of $126,400, he directs the payment to plaintiff of $4,000 a year for the nine years prior to his report, making $36,000; and from that deducts nothing for any sums the plaintiff has received from the-defendant for support, counsel fees, or otherwise. The plaintiff, to whom this allowance is made, is a single woman, never having contributed one cent to the defendant’s estate; whose social position is such as an actress of no great eminence attains, having no child, nor any one properly connected with her who has any claim upon the defendant. 3. The Referee in making this award, has made a partition or distribution of the defendant’s estate, not only on estimates which are incorrect, and on principles for which no warrant exists in the law, but without any legal authority whatever. He gives the wife a specific share of the estate in the form of an annuity fixed in reference to the supposed value of his estate and income, not because it will actually cost her any such amount to obtain proper support, but because she is entitled to share in all the husband’s “ prosperity.” 4. The alimony ought not to be payable from the commencement of the suit. (Barrere v. Barrere, 4 J. C. R., 187 ; Shelford on Mar. & Div., 594, 595 ; Poynter on Mar. & Div., 246, 252 ; Otway v. Otway, 2 Phill., 109 ; Smith v. Smith, 2 Phill., 152 ; Peckford v. Peckford, 1 Paige, 274 ; Miller v. Miller, 6 J. C. R., 91.) In this case there was a voluntary allowance, prior to judgment, satisfactory to plaintiff.
    XI. The Referee erred in excluding testimony in relation to the plaintiff’s conduct, habits and standing, after the interlocutory judgment for divorce. 1. The defendant proposed to prove that the plaintiff had sexual intercourse with men after the decree for divorce. 2. It is well settled, that the misconduct of the plaintiff, prior to the judgment of divorce, may be looked into by the Court in determining the amount of alimony. Although given in evidence to bar the claim for divorce, and held not sufficient for that purpose, it may yet be, and is afterward received by the - Court, and examined in deciding on the question of alimony. (Wilmore v. Wilmore, 15 B. Monr., 49 ; Peckford v. Peckford, 1 Paige, 274 ; Battey v. Battey, 1 R. L., 212 ; Griffin v. Griffin, 8 B. Monr., 120 ; 1 Black. Com., 442 ; Lee v. Lee, 1 Dickens, 321 ; Bartlett v. Bartlett, 1 Clarke, 460 ; Wallingsford v. Wallingsford, 6 Har. & J., 485.) 3. The reversal of the judgment for alimony founded on the verdict, and the order for reference, placed the plaintiff in the same condition as to alimony, as if the Jury had the right to regulate it, and whatever testimony would have been proper at the trial on that point, was now proper. 4. The tribunal which is to determine the main issue, may not be convinced of the wife’s guilt, in reference to adultery charged, and yet what is proved to inculpate her, may show a kind or degree of misconduct proper to be considered in settling the alimony. 5. If the Court can, at any stage, receive evidence of misconduct, to affect the allowance for alimony, it is difficult to perceive why the same proof should not, on the same issue, and for the same purpose, be received at any other stage of the cause, when the Court are called upon to determine the same question. (Govier v. Hancock, 6 T. R., 603 ; Etherington v. Parrot, 1 Salk., 118.) 6. The defendant was entitled to prove as he offered to, that the plaintiff was extravagant in her personal expenditures. (See 1 Salk., 118, ut supra.) 7. And also, that the plaintiff had selected and preferred vulgar associations, such as would exclude her from the society of either ladies or gentlemen of the rank or condition in which she moved when residing with defendant. (Bishop on Mar. and Div., § 612, 4th ed., vol. 2, § 457.) 8. Also, that after the interlocutory judgment for divorce, plaintiff was habitually unchaste. 9. Also, that plaintiff’s general reputation for chastity was bad. 10. But on the other hand, he allowed the plaintiff to prove, and in his report lays stress on what were not only her station and mode of life before her marriage, but those of her mother, although this evidence was objected to. 11. The views thus presented in this connection, derive increased force from the fact, if it be one, that the plaintiff is, in this case, as regards support, a “ward of chancery.”
    XII. The Referee decides that the statute for divorce, under which the decree in this action was obtained, saves for the plaintiff what he deems and denominates the common law right to support out .of her husband’s estate. 1. The only mode in which that common law right was presented, was when the husband was sued at law for debts which the wife contracted, his obligation being restricted to what are called “ necessaries.” And in all such cases, whatever other features may have, been presented on the trial, the Courts invariably received proof, if any could be adduced, as to the misconduct, adultery, extravagance, wastefulness, misappropriation, rank in life, private resources and habits of the woman, as a defense to the action, even in cases where the innocent party who gave credit to the wife, had no notice of the delinquency which, as between her and her husband, deprived her of the power or right to charge the latter even for what was necessary for her sustenance. (Manby v. Scott, 1 Siderfin, 109 ; Aguilar v. Aguilar, 5 Mad., 252 ; Lidlow v. Wilmot, 2 Stark., 86 ; Etherington v. Parrot, 1 Salk., 118.) Even where the husband brought a mistress into his house, and violently drove his lawful wife out of it, her adultery afterward, and while living apart from him, was held to free him from all liability for her debts, even if incurred for absolute necessities. (Govier v. Hancock, 1 T. R., 603.)

      Charles O’Conor, for plaintiff, (respondent.)
    I. The divorce stands affirmed by the judgment of the General Term in this Court. It is not now under review. (6 Duer, 102.)
    II. The decisions of the referee declining to enter into a fresh set of accusations against the plaintiff, at the instance of the convicted impugner, was in conformity Avith a judgment of the General Term, and is, therefore, res judicata in this Court. (Forrest v. Forrest, 3 Bosw., 661.)
    III. Considering the wealth of the defendant, his freedom from family ties and responsibilities, and the vigor and tenacity Avith which he has pursued the design of reducing the defendant to beggary, he cannot reasonably object to -the amount at which the alimony was fixed. (Forrest v. Forrest, 6 Duer, 102 ; S. C., 3 Bosw., 650.)
   By the Court—Woodruff, J.

On the thirty-first day of January, 1852, a judgment was rendered in this Court dissolving the contract of marriage between the parties to this suit.

On the defendant’s appeal to the General Term, that judgment was, on the twenty-fourth of July, 1856, and upon a review of all the proceedings theretofore had in the cause which such appeal brought before the Oourt, duly affirmed, except so far as it fixed the amount of alimony to be paid by the defendant, and the times and manner of payment, the security to be given therefor and the conditions thereof imposed on the plaintiff.

And it was thereupon directed that it be referred to Alvin 0. Bradley, Esq., to inquire and report what would be a suitable allowance, and at what times and in what manner it should be paid, and what security for the payment of the allowance would be reasonable. The Beferee was directed to report the facts found, with his opinion thereon, and all proofs received, and any rejection of proof offered.

The reference has been had, the report of the Beferee has come in, containing the facts found, the opinion of the Beferee, the proofs taken, and a statement of whatever evidence was rejected.

The case was thereupon brought to a further hearing, and on the twenty-first day of May, 1860, all exceptions to the report being overruled, the same was confirmed except in one particular, viz., that there should be allowed to the defendant, as a credit against the arrears of alimony, whatever sums he had, pending the suit, paid as temporary alimony under the orders of the Oourt—which allowance the Beferee had not made—and thereupon a final order or judgment conforming to the previous decision of the General Term and the judgment there rendered, was entered, by which the defendant was directed to pay, for the support of. the plaintiff, the annual sums so reported to be reasonable, and to secure such payment as recommended by the Beferee.

From this final order or judgment the defendant has appealed, and his appeal is now before us.

It is therefore obvious that the only matter we have to consider is, whether that final order or judgment entered • at Special Term, on the twenty-second day of May, 1860, is erroneous.

The grounds upon which a reversal is sought, may be summed up in three points: First. That the proceedings on the reference were irregular and void, because the General Term of this Court had no power to order a reference, but should have directed a new trial or have remitted the proceedings to the Special Term to be there proceeded with as might be proper, and therefore that the proceedings on the reference, and the report of the Beferee formed no proper basis for the order or judgment now appealed from.

If it had been conceded that the General Term had no power to order the reference, it is not clear that such concession would entitle the defendant to a reversal of the order or judgment appealed from.

Under the statute the Court are directed (if a decree dissolving the marriage be pronounced,) to make a further decree compelling the defendant to provide such suitable allowance for the support of the complainant as the Court shall deem just.

The cause was brought to a hearing at Special Term, in order to obtain such further decree, on which hearing all the prior proceedings and proofs in the cause were produced. A report was also produced, accompanied with all the evidence bearing on that subject which either party desired to produce, which the Court deemed admissible, taken in due form in the presence of both parties, and taken not merely in accordance with such order of the General Term, but in pursuance of an order of the Special Term itself, made July 22d, 1859, by which the Beferee was directed to proceed in the Said reference (which latter order may, if necessary to meet an objection purely technical in its nature, be regarded as an adoption of the order of reference made by the General Term.) Besides, tfie evidence taken before the Beferee, and upon which the action of the Special Term in the further judgment now appealed from was based, appears to have been taken by him without any objection from the defendant, or any suggestion that the Beferee had not jurisdiction to take the testimony. Such testimony was taken at great length on both sides, as well on behalf of the defendant as the plaintiff, and the defendant (independently of the confirmatory order of the Special Term already alluded to,) may well be held to have acquiesced in the reference and waived any objection thereto. If any suggestion had been made by the defendant, that the direction of the General Term was not in all respects regular, the plaintiff could readily have obtained at Special Term a distinct order for such reference, and, before proceeding in so protracted and expensive a reference, have obviated this technical objection.

The statute does not prescribe the formal manner in which the Court shall, on the application for the further decree, possess itself of the facts necessary to guide its judgment; and mere irregularities in the proceedings if no injustice has been done, and technical objections going to the manner in which a reference has been initiated, should not be permitted to influence the Court on such further hearing, or prevent the use, on such further hearing, of testimony fairly taken and reduced to writing, or the opinion of a Beferee honestly based thereon. There would seem, in strictness, no objection to the use even of affidavits on such further hearing, although the usage of the Court to resort to proofs formally taken by examination and cross-examination, may be the safer and better practice.

But we think the objection itself has no foundation; that there is not even a technical defect or irregularity in the mode of proceeding.

On the appeal to the General Term from the original judgment, the order to be made would depend upon the extent to which, in the opinion of the Court, errors had affected that judgment. If errors had been committed on the trial of the issues ordered to be tried by a Jury, which so affected the result that the Court were not willing to proceed to judgment thereon, a new trial would be necessary. But we apprehend that the Court were not required to grant a new trial, merely because it found on the record some exceptions which were well taken, if satisfied upon the whole case that justice had been done. This case, on the part of the defendant, upon the former appeal to the General Term, and on the present appeal, has been treated and considered as though exceptions, if well taken, were to have the effect of reversing the judgment, however technical or unimportant to the general result they may be. Such effect was not given to mere errors on the trial of a feigned issue out of Chancery, and it is not apparent that the Code has introduced a new rule on this subject. (Forrest v. Forrest, 6 Duer, 138, 139 ; Barker v. Ray, 2 Russ., 63 ; Lyles v. Lyles, 1 Hill Ch., R., 82 ; Mulock v. Mulock, 1 Edw., 14, and cases cited; Apthorp v. Comstock, 2 Paige, 482, and cases cited.) And the observation, gathered from these cases, that the trial of issues, and much more the proceedings on the reference, being to inform the conscience of the Court, even the rejection of competent testimony or the admission of incompetent evidence does not necessarily require the Court to set aside the proceedings or grant a new trial, may properly be borne in mind in considering the objections heretofore to be noticed.

To recur to the specific point under discussion. The General Term were of opinion that no such errors had been committed as should affect the verdict of the Jury upon the questions properly submitted to them, or the judgment of divorce pronounced thereon, and that judgment was therefore affirmed. But in one particular com-. plained of by the defendant, the judgment was not deemed proper, and this gave the opportunity, and required the Court, in General Term, to exercise the power, clearly given by section 330 of the Code, to reverse, affirm or modify the judgment appealed from, and, if necessary, to order a new trial. The order of reference made by the General Term was not therefore.an assumption of original jurisdiction to entertain motions in the first instance. A judgment directing the payment of permanent alimony, as provided in the statute, consequential upon the granting of the divorce, was before them on appeal, and on reversing that judgment, (or as it is called in the statute that further judgment or decree,) it was entirely competent to modify the whole judgment in the action by reversing this further judgment and directing a reference to ascertain the facts, i. <?., to do what it was considered the Court at Special Term (instead of making the further judgment or decree,) should have done.

The order in this respect is analogous to the granting of a new trial on the main issues, if that had been necessary—to the power almost daily exercised, (on appeal from judgments on the reports of Referees appointed to hear and determine all the issues, if the judgment be reversed,) of discharging the order of reference and ordering a new trial before a Jury—to the power to require a respondent to abate erroneous allowances included in his recovery, and, on his consenting to do so, affirming the judgment as to the residue. The Court of Appeals, in a recent case from this Court, have, we think, gone much further than was done in the present case by the General Term. They affirmed the judgment in part, and without reversing any part of the actual determination made, directed this Court to proceed, by reference or otherwise, to ascertain further facts, and to give judgment according to the result of such further inquiry. This will, at least, serve to show the power of the Court, on appeal, to make such direction or order as should have been made by the Special Term.

We have no doubt of the power of the General Term to make the order, and that the reference was therefore regular, and the proceedings before the Referee were properly before the Special Term on the hearing. The idea suggested that the General Term should remit proceedings on reversal, even in part, to the Special Term, to be proceeded in, has no just application to proceedings at all times before the same Oourt; and independent of the section of the Code to which reference has been made, (§ 330,) it is most in accordance with our view of the powers of the Oourt and with sound reason to say, that on reversal of a' judgment in a matter which belongs to the equity jurisdiction of the Court, if a reference be proper, the General Term may direct it. A case would illustrate this, which we think is clear, and which goes much further than the one under consideration. For example, on a bill for an accounting, brought by an alleged partner, suppose the Judge at Special Term should decide that the defendant was not liable to account, and order judgment in his favor; but on appeal from the judgment, the General Term are of opinion that upon the facts found, (there being in the case no exceptions except to the conclusions of law from those facts,) the plaintiff was entitled to an account. We think it clear that the General Term not only might, but must, award judgment in favor of the plaintiff, and that the defendant account; and in such case, under subdivision 2 of § 271, might, of its own motion, direct a reference for the taking of such account.

In deference to the suggestions made on the argument of this appeal, we have presented these views. Others might be suggested; but in leaving this point it is proper that we should say, that if we deemed it doubtful we should question the propriety of sustaining the objection that the General Term had no power to make the order. It was made. Ho doubt it was made upon full consideration, and if, in any case, it be proper that one General Term should disregard a decision of a prior General Term, when relied upon as an authority or precedent in support of a rule of law or practice, we are not aware of any "instance in which one General Term has assumed to reverse an order of a previous General Term, and that is practically what we are called upon to do in this case. For suppose we were now to sustain this objection, what would be the effect of our decision reversing the judgment appealed from? The order of the former General Term would stand, it is true, on the record. But if the plaintiff proceeded again to execute it, our decision would be invoked to.show it was made without power.

While, on the other hand, if the. plaintiff attempted to proceed with the cause in any other manner, the unrevoked order of the General Term would forbid. Such conflict between two General Terms, or their orders, touching the same matter in the same cause should not be permitted.

Second. The grounds of reversal relating to the rejection of evidence on the hearing before the Referee, and for which, under several points or heads, the defendant urges his appeal, have, we think, all been disposed of by the previous decision of this Court in July, 1859, on the defendant’s motion for a commission to examine witnesses in California, and on the appeal from the order denying that motion. (Forrest v. Forrest, 3 Bosw., 670 ; 687 et seq.)

It is true that the Court, both at Special and General Terms, were of opinion that there were other sufficient reasons for refusing a commission, than the inadmissibility of the evidence sought to be obtained, but that question was discussed at great length; it was deemed of great importance to the then pending reference, and it was deliberately considered and decided.

The Counsel for the defendant does not, we think, expect us to disregard that decision, although he very properly takes the position that it was erroneous, in order that he may have an opportunity to insist upon it as error, if it should be desired to review this judgment in another tribunal.

Upon an examination of all the exceptions mentioned in the points of Counsel to rulings of the Referee rejecting evidence, they seem to us to be covered by the decision referred to.

The evidence proposed, had reference to the conduct, reputation, associations or habits of the plaintiff since the decree for a divorce was pronounced, and although it is suggested, that the answer to some of the questions bore upon the inquiry, what is her station or position in society, they have regard not to the station or position in which she had been accustomed to move, prior to the judgment, and in which it was the duty of the defendant to sustain her.

Third. The remaining point embraces the amount allowed for alimony, and the time from which it should be computed and allowed.

It is here also proper to suggest, that the report of the Referee, and the proceedings had before him, were rather advisory than conclusive. The Court could and did look over the whole subject, with all the light thrown upon it by any or all the proceedings laid before them. These included as well the testimony taken before the Referee, and his opinion, as also all the proceedings on the trial, and the other proceedings recited in the order now appealed from, these latter appearing to have been produced and submitted by the defendant himself.

If, therefore, the opinion of the Referee were liable to the criticisms suggested on the arguments, or even if there were errors committed before him, a reversal does not necessarily follow.

This is said, not as the expression of a dissent from the Referee, but for the purpose of stating the broader question which is in truth before us. Upon the whole case, as disclosed by the papers before us, is the allowancefor alimony too great, or is it computed from too early a day, so that we ought to reverse the judgment appealed from?

We think not. If this case furnished any occasion for •the suggestion, we might with propriety say, that the deliberate judgment of the Court at April Term, on the question above stated, ought not to be reversed, unless very clearly wrong, but here we fully concur in the views by which the Court was there governed, and think that the discretion of the Court was properly exercised.

It is said that undue importance has been given to the defendant’s ability to pay, ánd that the judgment is rather a partition of his income, than an allowance reasonably required by the plaintiff.

We do not deem it necessary or profitable to review all the evidence on this subject, or discuss in detail all the reasons which might be assigned for the allowance—still less to analyze or review all the cases in which the ininciples governing the subject are stated.

It is clear that whatever sum is proposed as an allowance must be within the ability of the husband to supply. The ability of the defendant is a primary inquiry, and its importance cannot be exaggerated.

It must also be so clearly within his ability, that his own means of living shall not, by the allowance, be unreasonably reduced. His ability in this aspect is of first importance.

His ability being found or conceded, then the inquiry, what is suitable for the plaintiff, may be considered without any restriction arising from fear of injustice to the defendant.

It may, for the purposes of this case, be conceded that this provision for the wife ought never to exceed one-half of the income of the husband, and yet, if it be necessary, in considering the husband’s ability to provide suitably for the wife, his profession or occupation, and his annual income derivable therefrom, may properly be taken into the account.

So it must be conceded that one-third of the husband’s income may, without hesitation, be taken, if that be reasonably required, to make suitable provision for the plaintiff, and the husband cannot, with propriety, insist that the allowance of such one-third is extravagant.

Again, voluntary dispositions made by the defendant of his property, or any part of it pending the litigation, ought not in any degree to prejudice the plaintiff or reduce the amount of her allowance, especially if notwithstanding such dispositions he is still able to pay it; and even though his giving away his property makes the proportion of present income allowed to her greater than might otherwise be proper. To suffer her to be so prejudiced, would furnish to a husband, embittered by the proceeding against him, a temptation voluntarily to impair his own ability to support the plaintiff.

And when it appeared, as it did by the proofs in this case, that although the defendant has parted with the apparent title to a very large amount of property, he still has the practical management and control of it according to his pleasure, such disposition of his estate is entitled to little, if any, weight in the consideration of the question.

We áre quite satisfied with the view taken by the Referee, that, considering the situation of the plaintiff before the misconduct of the defendant, the manner of life to which she was accustomed, the just expectations entertained by her, the prosperity which she was entitled to share with the .defendant, and her claims upon him for the comforts and indulgencies to which she was entitled as his wife, and which, as a kind and faithful husband, he must have yielded, and considering, further, the necessary expenses of living in a style in some degree corresponding with that which she was entitled to share with him, the sum of four thousand. dollars per annum is not unreasonable.

And the amount of defendant’s estate justified the allowance of that sum. If the voluntary dispositions made by the defendant pending the suit be taken into view, that estate considerably exceeds two hundred thousand dollars, and it was shown that his income, from his profession, for several years past, has exceeded twelve thousand dollars per annum.

Ho hardship is imposed upon him by the allowance in question. The discussion of this subject in Bishop on Marriage and Divorce, (chap. 27, §§ 604-621, 3d ed., vol. 2,) fully sustains the provision here made, and the authorities cited in its support seem to us quite conclusive.

In respect to the time from which the allowance is computed, it is to be observed that whatever the defendant has paid, under the order of the Court, for alimony pendente lite, was allowed to him by the Court at Special Term.

It is settled in this. State by the Court of last resort that the allowance of permanent alimony may, in the discretion of the Court, depending upon the special circumstances of the case, be made to commence from the filing of the bill of complaint, (Burr v. Burr, 7 Hill, 208,) and Chief Justice Kelson says, in reviewing that branch of the decision of the Chancellor, (10 Paige, 37, 38,) “it was hardly insisted upon as involving any question of law,” and Senator Strong, (at page 222,) says, unless the allowance from the filing of the bill clearly indicates an abuse of judicial discretion, it does not appear a sufficient ground for a modification óf the decree, and, further, that it tends to the ends of justice.

It is not necessary, if indeed it be proper, for us to enter upon a discussion to show the propriety of our following the decision of the Court of last resort in our own State.

. It is proper to say, however, that there seems to us evident propriety in taking the date of the commencement of the suit as the period of the allowance, where, as in this case, the litigation, without fault on the part of the plaintiff, has been protracted through so many years, during a great portion of which the plaintiff was left by the defendant wholly without assistance from him, either for the expenses of the litigation or support for herself.

. To the suggestion that the accumulated amount is large, the answer is obvious; if the facts now ascertained and fixed by judgment, could have been certainly known, and the'course of judicial proceeding had been such that it was possible so to adjudge, the plaintiff, on the very day she filed her bill, was entitled to the annual sum now allowed to her. The defendant suffers no wrong by having been permitted to retain the money through the years of litigation during which the plaintiff has struggled, and presumptively he has made’the possession of those moneys largely useful. He is not charged with interest, and so, by that interest, he has been still enabled t© make very considerable profits out of those moneys.

It can be no sound discretion which will enable a defendant to protract such a litigation, or offer him a premiuin to induce hint to protract a litigation, by postponing the date of the allowance of alimony, and save to him the amount which should accrue to the plaintiff in the mean time, and yet, by not charging interest, that result follows in some degree in the case before us.

We feel no disposition to enhance the defendant’s profits still further, by giving, to him all the principal of such allowance, which, upon the rule for which he contends, (if the allowance were only to begin at the date of the decree fixing the rate of such permanent alimony,) would be saved to him by the delay.

The Beferee, in his opinion accompanying his report, has discussed the question submitted to him with eminent ability, and with great fairness, and, subject to the slight modification made on the hearing at Special Term, we see no just ground for withholding our concurrence in the result to which he arrived. The Court, at Special Term, upon consideration of the whole case, and in the exercise of the discretion by which the subject was necessarily to be governed, deemed the modification (which was favorable to the defendant) proper, and otherwise concurred in the conclusion of the Beferee.

We think the judgment appealed from should be affirmed.

Judgment affirmed.

Robertson, J.

All the questions raised on the present appeal were disposed of by this Couf t at General Term on a former appeal, except those which relate to the duty of this Court at a General Term to award a new trial for the improper admission of testimony, its power to order a reference, and the amount of alimony allowed, including the period for which it was allowed.

It is claimed in this case that evidence having been admitted, upon the trial of the issues therein, which was irrelevant to such issues, and only material to the question of alimony; and exceptions having been taken to the admission of such testimony, the Court, at Special or General Term, should have awarded a new trial. I am satisfied with the reasoning in the opinion of the Court upon the present appeal, which distinguishes between the trial of issues in an action generally, and the trial of special issues in an action for a divorce, and am convinced that the Court has a discretion in the latter case not to order a new trial, for the admission of irrelevant evidence, where it can be seen that no prejudice can ensue to the party objecting. I feel, also, equally satisfied with the .reasoning of the Court in such opinion as to the power and jurisdiction of this Court at General Term, on an appeal for a judgment for alimony, to substitute therefor an order of reference to a Referee to ascertain and report it, being the order that ought to have been made at Special Term.

Upon the question of alimony, 'minute details of the style of living and means of the parties seem to have been entered into before the Referee, and he appears to have been guided by fixed rules in determining the amount. By the report and the testimony in the case, the value of all the defendant’s estate, both real and personal, at the time of the report, was nearly $270,000. This included unproductive real estate valued at $56,000, and other real estate, whose income was not proved, valued at about $45,000, which included his residence, and an adjoining lot valued at $38,000; and of which but one piece, worth $8,500, was proved to be productive, and no testimony was given as to the productiveness of the rest. That valuation of his estate also included personal property not proved to have been productive, valued at $32,000, consisting of a library, presented to Ms sisters since the judgment in this cause, books, pictures, bank stock, interests in a hotel, theatre and ship, bond of a debtor amounting to $15,000, and $2,500 in cash. The only amount of income proved was about $8,200. The payment of the principal of about $37,000 of the defendant’s personal estate, consisting of bonds and mortgages taken on the sale of real estate, is postponed until the plaintiff’s right of dower is extinguished. The defendant, by Ms profession, earned, at one theatre, $14,000 a year for the five years succeeding the judgment in this action, having also performed at others.

The principles which keep the amount of alimony within certain bounds still leave a large latitude for discretion. (Bishop on Mar. & Div., §§ 617-630, 3d ed., vol. 2.) The learned and able Beferee, in the well considered and eloquent exposition accompanying his report, discloses the rules by which he was guided, and his reasons therefor. He assumed as a basis that the support to which a wife was entitled upon a divorce was her common law maintenance retained as an obligation on the husband’s part, notwithstanding the dissolution of the marriage tie; he also assumed that the “circumstances” of the parties which are to regulate the amount of such support, varied with the persons, their stages of life, character, conditions and places of abode; he also held that the standard for such support of the wife was governed by the style of living established by the husband previously, that on the one hand it does not necessarily consist of mere food, clothing and shelter, but that other matters which determine the position of a family enter into its composition; and on the other it does not include indemnity for the loss of the husband’s society, endearments and affection, although she had a right to expect them; that it may fluctuate with the increase or diminution of the husband’s fortune, even after the judgment in the action, and, therefore, the increase in this case may be taken into consideration in determining it; that the value of all property owned, although unproductive, may be taken into consideration also, if not unsaleable, and that, in estimating such value, any incumbrances, such as the wife’s right of dower, may be taken into view; and that the extreme limit of the share of the husband’s income to which the wife is entitled, in case of gross misconduct, is one-half.

The Beferee, in estimating the arrears of allowance since the beginning of this action, took the sum of $4,000 as an average annual sum, awarding in all the sum of about $36,000, and specified the same yearly allowance for the future. In doing so he had regard primarily to the previously intended style of living of the parties, as indicated by the expenditure of upwards of $90,000, on a mansion for a residence, and next to the expenditure by the defendant of an income of over $20,000 annually since the divorce, making due allowance for the dependence upon him of his sisters for support. In calculating the amount, he considered himself entitled to go back to the commencement of the suit, both because sustained by authority, and because that was the beginning of the jurisdiction of the Court to determine what it should be. He also took into consideration that the plaintiff’s expenses in the litigation would absorb not only the sum awarded but other sums heretofore paid to her by the defendant. This allowance, the Beferee holds, should not be accompanied by any condition of remaining single.

The Counsel for the defendant contends that the support to be allowed the plaintiff is to be simply a reasonable amount, necessary to pay for the clothing, washing, food, dwelling place, medical advice, pew rent and the like, and the ordinary interchange of visits with her friends, suitable to her age and station in life, and that she is not to be furnished with even money for charity; that the husband’s estate is to be considered only so far as to ascertain if his means will enable him to pay it, having reference to other claims. Various cases were cited upon this last point, to wit : Purcell v. Purcell, (4 Hen. & Munf., 507,) where one-third of the husband’s estate was refused, and a suitable maintenance only was awarded; Logan v. Logan, ( 2 B. Monr., 142,) where so much only was allowed as should maintain the wife in decency and comfort; Lynde v. Lynde, (4 Sandf. Ch. R., 373,) in which the words were, to support her reasonably, having regard to her necessities; Pose v. Pose, (11 Paige, 166,) where alimony was refused altogether, unless the wife would abandon a previous settlement made by her husband of half of Ms property upon herself and two children; Sanford V. Sanford, (5 Day, 353,) which allowed one-tMrd of the husband’s estate, and Thornberry v. Thornberry, (4 Litt., 251,) where the share given, by the statute of distributions, of the husband’s estate, is taken as a standard. I apprehend the indefinite terms used in such decisions, do not throw much light upon the subject, and need as much interpretation as “ support having regard to the circumstances of the parties,” in our statute, and that the sum allowed in this case would not amount to the portion of the defendant’s estate or income mentioned in some other of the cases cited. The income of the defendant for five years after the judgment in this case, including his professional earnings, exceeded, annually, $20,000, and no one can doubt that taking the valuation given as the real value, and after deducting one-third of that, as the value of the plaintiff’s dower, the remainder would yield exceeding $12,000 per annum; even if the defendant neglected to avail himself of that source of wealth, his professional abilities. I do not think that we are to be bound by the rigid rules claimed by the defendant’s Counsel, but that something of the latitude adopted by the Beferee is justifiable, upon the grounds expressed by him, which are in consonance with the views expressed by this Court at General Term, when the appeal from an order refusing a commission was before it.

The defendant’s Counsel, however, also contends that even if the rule as to the amount of support is to be relaxed, and it is to be governed by the style of living adopted by the parties, it is to be regulated by that which was adopted before the building and fitting of the costly, mansion before mentioned, the benefits of which she abandoned by an agreement for a voluntary separation, and the* acceptance of the sum of $1,500 as a support. I am unable to perceive why the Beferee was bound to go back to the early and more frugal mode of life of the parties as a standard, if, from a well-founded and afterwards realized expectation of an enlarged income, the parties made preparations for a mode of life adapted to its expenditure; nor why a compromise of domestic quarrels should be made to affect the standard of indemnity for a wrong, when the rights which were assailed thereby were not relinquished by such compromise; besides this, the standard must have been their joint mode of life, not their separate modes of living.

It is also urged, on the part of the defendant, that the Referee has not taken into consideration the plaintiff’s ability to earn a maintenance. I do not understand that it is apparent that he has rejected this consideration; it is true, for the purpose of showing that such capacity is no defense to an allowance for alimony, he states that the defendant has no interest “in her acquisitions after the divorce,” and is “a debtor for the allowance;” but if he had, it would not have been erroneous. If the mode by which she earned her livelihood was unsuited to the standard of social position created by the defendant, she would not be bound to practice it. As his wife, he had a right to the legitimate exercise of her talents to increase their common stock, but never having chosen to exact it, and keeping her aloof from it, he has no right to insist upon her employing her. abilities in a way she never did while his wife, merely for the purpose of diminishing the amount which she is to receive from him. Such a consideration is entirely distinguishable from that arising from the possession of means by her. Besides this, the defendant’s ability to increase his income for the future, from his professional exertions, does not seem to have been considered, otherwise the amount to which she would have been entitled would be greatly increased; if that be so, there is still less reason for deducting her possible earnings.

The case of Burr v. Burr, (10 Paige, 38 ; 7 Hill, 208,) settles fully the power of the Court in all cases, to award, and the right of the plaintiff, in most cases, to receive permanent alimony from the commencement of the action. The reasons assigned in that case, as well as those given by the Referee in this case, seem eminently proper; until the guilt of the defendant is established, all the plaintiff has a right to require is temporary alimony, and provision for her expenses; when, however, it is established, it relates back and determines rights which became vested the moment the divorce was sought, after the act which violated the marriage vow complained of was committed; but for the necessary delay of judicial inquiry, the plaintiff became entitled to the divorce at the beginning of the action; that, at least, was a demand of all the rights to which the plaintiff was entitled, and, even at common law, gave interest on the main claim in the suit, as an accessory.

I do not see that the objection of the plaintiff’s delay in prosecuting her claim amounts to a great deal in favor of the defendant; he has not been charged with any interest on the yearly sums fixed as the standard of allowance for the past; and although, in fixing on an average sum, the Beferee may have been influenced by an increase of the defendant’s estate, even that was not unreasonable. If it could have been clearly proved, at the moment of making the decree, that defendant would in a few years add $100,000 to his productive estate, and receive, at least, $14,000 per annum for five years, from the exercise of his professional abilities, is there any doubt that, if the other views of the Beferee are correct, the Court would have taken those circumstances into consideration ? The fact that we are looking back “upon certainty, instead of forward upon conjecture, does not diminish the duty of the Court to consider such increment. For any' excess of the sum allowed beyond one-third of the defendant’s income for the two years prior to the decree, if the allowance is not to be considered as an average, the interest on the residue, or even such payments, may be considered as fully making it up, such rebate of interest being over one-third of the amount. But, in fact, the arrears are made a gross sum, and if the whole amount does not exceed what ought to have been allowed, the report should not be interfered with. It is very clear that the sum does not amount to one-third of the plaintiff’s income for the whole time, and within that limit, the discretion exercised by the Beferee and the Court at Special Term ought not to be interfered with. The Beferee, indeed, increased the allowance by the sums paid already by the defendant to the plaintiff, which were deducted by the Court. The defendant’s earnings, of course, are only to be considered as income during a certain period, to part of which, as an enlargement of her allowance, the plaintiff was entitled. Their disposition is unaccounted for, and of course they are not to be considered as an increase of the capital of the defendant’s estate. They may have been absorbed in the. costly residence already alluded to, or in the purchase of real estate.

Even if the value of the inchoate right of dower of the plaintiff in the real estate of the defendant be deducted, as the Beferee states he took it in consideration, it would not alter materially the state of things so far as the plaintiff’s amount of support is concerned; it detracts nothing from the income of productive property, does not touch the personal estate, and leaves property capable of producing more than three times the income allowed the plaintiff. When the income may be diminished by it, the parties interested can apply to diminish the alimony. After deducting from the value of the defendant’s property- $56,000 for that proved to be difficult of sale by reason of the plaintiff’s dower right, and $10,000 for library and pictures, and $38,000 for the defendant’s residence, there remains property worth $164,000 not proved to be unsaleable or unproductive. The withdrawal of $58,000 from his capital for a residence and its adornments does not remove it from consideration as part of the defendant’s fortune in considering the question of the plaintiff’s support; when brought back it swells the amount to $212,000, the interest of which is $14,000, without reference to the value of the real estate whose sale the dower right obstructs.

The present payment, however, of a gross sum of $36,000 as a debt, presents some embarrassment, as it goes to diminish the present fortune, which has apparently had some influence in determining the amount to be allowed the plaintiff; but this is more than made up by the amount of the allowance being the same when the defendant’s income was $20,000, and the exclusion of the interest. It will be found by calculation that by an account current crediting the plaintiff each year with only one-third of the defendant’s income during that year and interest, omitting any income from unsaleable property, and charging her with the present allowance and interest, the balance would' be. largely in her favor. There does not appear, therefore, to be on this ground such gross error in the amount allowed as to warrant the inference of mistake in law in fixing it.

The conclusions of the Referee, sanctioned by the judgment at Special Term, that, as regarded the plaintiff, the gifts by the defendant to his family were void, whatever were the moral or social claims of that family upon him for support, and that the property whose title was taken by him in another person’s name was to be regarded as his, ought not to be disturbed as erroneous in fact or law.

I fully coincide with my brethren in the views taken by them as to the impropriety of undertaking to review a discretion once exercised in a case like this. This Court is not now called upon to originate a decision as to amount; that task is always a delicate and difficult one; but having been once discharged, there ought to be the strongest evidence of some gross mistake in law or fact, to warrant an appellate Court in overturning such a decision. Like cases of salvage, or unliquidated damages for a tort, when once fixed, nothing but such evidence ought to be allowed to disturb the first judgment.

Upon the whole, I feel satisfied that nothing presents itself to us to warrant a reversal of the judgment at Special Term, and it should therefore be affirmed with ' costs.

         Forrest v. Forrest, 6 Duer, 102.

       On appeal to the Court of Appeals this judgment was affirmed. (25 N. Y. R., 501.)


author: By the Court—-Woodruff, J.

text:
    John F. Butterworth, Receiver, &c., Plaintiff and Appellant, v. Jacob Pecare, et al., Defendants and Respondents.
    1. In an action by the Receiver of a banking incorporation against the indorser of a note, an answer alleging that the bank of which plaintiff is receiver, discounted the note on which he sues, upon a corrupt agreement against the form of the statute, that the defendant should receive $300, (the amount of the note being $500, and it being payable three months from its date,) and leave the remaining $200 in the bank until the note became due, then to be applied towards its payment, sufficiently states the defense of usury,
    2. The allegation that the note was discounted, (when unaccompanied by other averments,) imports a discount at a legal rate of interest, for the time the note then had to run. If plaintiff desired more specific details, his remedy was by motion.
    3. Where it is proved that the bank discounted the note at the full legal rate for the time it had to run, and required the indorser to give them his check for $200, in pursuance of an agreement to that effect, on which it was discounted, and the next day charged this check against the credit given on the discount, a verdict finding usury should be sustained. Charging the check in account, shows that the indorser was to have the use of only $300, less the discount on $500, and was to pay therefor interest on $500.
    4. Upon such facts it would be proper to instruct the jury to find for the defendants.
    5. Where the allegations of an answer are such as entitled the defendant to a verdict if proved, and the plaintiff offers on the trial to admit them, and objects to the admission of any evidence on the part of defendants, on the ground that the answer constitutes no defense, he cannot avail himself of exceptions to subsequent errors in the admission of evidence in support of the answer.
    6. A receipt having been identified by a witness as signed by him, it is proper to allow the adverse party to ask for what purpose the receipt was given, though the receipt itself has not then been offered in evidence.
    7. If the witness, in answer to such question, states the contents of the receipt, an objection must be taken to the answer. An objection to the question alone is unavailing.
    (Before Bosworth, Oh. J., and Woodruff and White, J. I.)
    Heard, November 4;
    decided, December 7, 1861.
    Appeal from a judgment entered on a verdict, after trial before Chief Justice Bosworth and a Jury, on the 24th of October, 1860. The plaintiff sued as the receiver of the Island City Bank, to recover on a note made by B. Cohn and indorsed by Jacob Pecare to the bank.
    The contents of the pleadings are sufficiently stated in the opinion of the Court. The defendant Pecare, claimed a small sum as due from the bank to him as a depositor; but this counterclaim it is unnecessary to notice.
    Upon the trial Counsel for plaintiff objected to any evidence as to the terms of the agreement between the bank and the defendants, at the time of discounting the note in suit, on the ground that the answer stated no defense; and he offered to admit the contract to be exactly what it was stated to be in the answer, and objected to any proof on the subject; which objection was overruled, and plaintiff’s Counsel excepted.
    In the course of the cross-examination of the defendant, who had testified as a witness in his own behalf, he was shown a receipt which he admitted to be signed by him.
    On his re-examination by Counsel for defendants, he was asked “what was the receipt just shown you given for ? ” Plaintiff’s Counsel objected, on the ground that the receipt was not offered in evidence. The Court overruled the objection, and plaintiff’s Counsel excepted.
    The witness then answered, stating fully the contents of the receipt. To this answer no objection was taken.

      Charles A. Peabody, for plaintiff, (appellant.)
    I. The answer states no defense. It merely alleges “an understanding ” which is no defense. It does not state at what rate, or how much interest was charged, or for how long a time the $300 was loaned, and there is no means of seeing what rate or amount was charged, and it cannot be seen at what rate, for what time, or to what amount in the whole, interest was charged.
    II. The motion for judgment, made by plaintiff at the trial, should have been granted. The answer contained no defense.
    Usury as a defense must be pleaded, and with no less precision than is required in defenses consistent with honesty and good morals. The ancient rule as to strictness in pleading, is in force. (Boyce v. Brown, 7 Barb. 80 ; Manning v. Tylor, 21 N. Y. R., 567 ; Vroom v. Ditmas, 4 Paige, 526 ; N. O. Gas Co. v. Dudley, 8 Paige, 452 ; Curtis v. Masten, 11 Paige, 15 ; Fay v. Grimsteed, 10 Barb., 321-329 ; Gould v. Horner, 12 Barb., 601 ; People v. McCumber, 18 N. Y. R., 315.)
    A motion for judgment on the pleadings is properly made at the trial.

      Fx necessitate, a Court cannot avoid giving judgment for the plaintiff in such a case. There is no issue to be tried. (Van Valen v. Lapham, 13 How. Pr. R., 243.)
    III. By the transaction, Pecare, to whom the $200 belonged, became the debtor of the bank as indorser of the note in suit.
    The bank hold this, sum as security for the payment of the note, or as payment in anticipation—a lawful purpose. The fact that as an incident to this ■ arrangement, the money would, in the meantime, remain in the possession of the bank, did not make the transaction usurious. (Manning v. Tylor, 21 N. Y. R., 567 ; See p. 569 ; Woodruff v. Hurson, 32 Barb., 557 ; Nourse v. Prime, 7 John. Ch. R., 69 ; 1 R. S., 772, §§ 1-5 ; Laws of 1837, ch. 430, § 1 ; Greggs v. Howe, 31 Barb., 100 ; Cloyes v. Thayer, 3 Hill, 565.)

      Anthomy R. Dyeit, for defendants, (respondents.)
    I. The plaintiff’s motions were properly overruled.
    1. Upon the grounds set forth in the case. (Code, § 173 ; Id., § 153 ; 3 Kern., 127 ; 3 Abb., 82 ; 24 Barb., 288.)
    2. The motions asked for too much. All the plaintiff in any event could have asked for, was the amount of the note, less the $200 and the $60 deposit set up in the answer.
    3. The answer is entitled to as liberal a construction as any other, (Catlin v. Gunther, 1 Kern., 368,) and, tested by §§ 149 and 159 of the Code, sets up defense of usury sufficiently.
    4. At best for the plaintiff, here was a good defense defectively pleaded.“ The Court will not listen to objections to such an answer at the trial. The Code does not save such objections, as it does those to the complaint. (4 Seld., 289 ; 4 Kern., 248 ; 22 Barb., 394 ; 23 Id., 26 ; Code, §§ 169-176.)
    This verdict would have been sustained on a motion for judgment non obstante veredicto, before the Code, by the statute of jeofails.
    5. Justice has been done. The defendant has a verdict. Ho surprise was pretended, (Code, § 169) > no evidence offered by the plaintiff to contradict our evidence; and no exception taken to the Judge’s charge; and the Court will not disturb the verdict. (Belnap v. Sealey, 4 Kern., 143.)
    H. The exceptions relating to the evidence are not sustainable.
   By the Court—-Woodruff, J.

The various points urged by the Counsel for the appellant, on the argument herein, (with one or two exceptions,) all involve the questions whether usury was sufficiently alleged as a defense in the defendant’s answer, and whether evidence of such usury was given on the part of the defendants which it was proper to submit to the Jury.

I. The action is brought upon a promissory note made by the defendant Cohn, and indorsed by the defendant Pecare, and the plaintiff claims as the Beceiver of the effects of the Island City Bank, who were holders of the note when the plaintiff was appointed Beceiver.

The answer states that the Bank discounted the note for the defendant Pecare, under and in pursuance of an agreement wherein it was, corruptly and against the form of the statute, agreed that the said bank should lend and advance to him the sum of three hundred dollars, and charge to him the interest on the sum of five hundred dollars; and that this was done by the form of a discount of the note in question for five hundred dollars, with the understanding that (notwithstanding interest was to be charged, as above agreed, on five hundred dollars) he should only receive or draw out three hundred dollars, and the residue of the apparent proceeds of the discount should remain in bank until the note became due, and then be applied towards the payment of the note.

To whatever criticism this answer may be liable for want of particulars of rate of interest, or of the time for which it was charged, we do not hesitate to say that it states a transaction which was usurious on its face.

"Whenever the discount took place, the answer plainly imports a discount for the time the note then had to run. That is the natural and proper meaning of an averment that the Bank discounted the note. Such a statement imports (when unaccompanied by other averments) that the Bank received the note and deducted therefrom the discount for the unexpired term, and allowed to the party for whom it was discounted the then present worth. And so, in the absence of further specification, that would be taken to mean a discount at the legal rate of discount.

If the plaintiff desired any more specific details of time or rate, or other particulars of the transaction, he should have sought it by motion.

That a corrupt agreement to lend three hundred dollars and charge the borrower the interest on five hundred dollars, is a usurious agreement, we think clear; and the delivery to the lender, of a promissory note, in execution of such an agreement, passes no title.

2. Did the defendants prove such an agreement, or give evidence tending to establish it, which it was proper to submit to the Jury.

The defendant Pecare, testified, that on his application to the Bank to procure the discount of the note, the President “ said he would discount the note for five hundred dollars, charging me,” (Pecare,) “interest of course, and that I should give my check for $200, which would be kept there against me, (to be made out to the order of the cashier,) so that I would have $300, less the discount on the $500 I agreed to that arrangement, and it was carried out. The full discount on the whole $500, was taken out, from the time I received the note until it became due. I was credited with the amount of the discount; my book showed $400 and odd. I gave back my check for $200. I could not draw the $500, because I had given my check to the cashier for $200. I could not draw the $200, because they had my check for it, and my account was charged for the $200. I was allowed to draw for the $300 less the discount on $500.”

The book-keeper of the Bank showed that the note for $500 was discounted, and the proceeds $497.12, placed to the credit of Pecare, on the 20th day of August, 1857, and that the check for $200, was charged to Pecare against that and other credits in account, on the next day. This established, in contro vertibly, that Pecare had the use of no more than $297.12 upon that transaction.

To our minds, this testimony did prove the agreement set up in the answer, and that it was carried into execution.

Computation shows, that on the day of the discount, August 20th, the note had 29 days to run, (to September 18th, when it became due,) and that the Bank charged $2.88 for the discount, which is a few cents over the legal discount, and, indeed, a few cents over the legal interest of 7 per cent on $50.0 for the 29 days.

There was no material contradiction of this testimony; on the contrary, the evidence of a similar previous transaction, which might very properly bear upon the intent of the parties, and the entries in the books, seem to corroborate it.

Indeed, had the Court instructed the Jury that usury was established by the proof, we incline to think such an instruction would have been sustained. It is at least pal-" pable, that the most the plaintiff could ask was', that the case be submitted to the Jury.

The plaintiff, however, insisted that he was entitled to a peremptory instruction excluding the question of usury from the case. So far from being entitled to this, he had, we think, all the indulgence which, in any aspect of the proofs, the case would justify.

From, the tenor of the charge and the corase of examination of the witnesses, it appears that the effect of the evidence tending to establish usury was sought to be avoided by this view of the transaction, viz.: That the note in question was discounted at a legal rate and the proceeds placed to Pecare’s credit, but that he was required to leave in the hands of the cashier his check for $200, as security to that extent for the payment of the note when it should become due. That there was, therefore, no permission to the Bank to use $200, and no intent to retain or charge interest on a greater sum than was lent, and placed out of the control or use of the Bank during the period of the loan.

It is obvious that the fact, proved without contradiction, that the Bank charged Pecare the $200 check at once, and so took the money to that extent from his account and had it in hand to use for its own purposes without restriction, pretty effectually contradicted such an explanation of the transaction. And, besides, we are not here to be regarded as conceding that any such explanation was warranted by the evidence, or could affect the legal character of the transaction, so long as Pecare was only allowed the use of $297.12, and the $200 was, in fact, in the possession and at the use of the Bank, and the check protected them in that possession and use.

Kevertheless it will suffice to say that the plaintiff had the benefit of a fair submission of this theory of his case to the Jury, and they have rejected it.

That the whole question, including the actual intent of the parties, might be passed upon as one of fact, and that the plaintiff’s attempted explanation might be presented to their minds, so that, if there were no intentional corrupt agreement to take usurious interest on the loan, the plaintiff might have a verdict, the Court instructed the Jury, in a manner most liberal to the plaintiff, that “if the agreement was, that on the note being discounted and passed to the credit of Pecare, $200 was to be left there for security for the ultimate payment of the note, without any expectation on the part of the Bank to use that $200 to its own profit, the agreement would not be usurious, and the plaintiff would be entitled to recover.”

But the Jury found that the arrangement was made with the intent of securing to the Bank interest on $500, (less discount,) for the time the note had to run, for the use of $300, (less discount,) and upon this finding, we think the instruction that such an arrangement was usurious, clearly right.

In regard to the plaintiff’s exceptions, not embraced by the views thus expressed, we remark, first, that the plaintiff’s offer to admit the facts stated in the answer, would, we think, have justified the Court in deciding, as matter of law, and without receiving further evidence, that the defendant was entitled to a verdict. The reception of evidence has done the plaintiff no harm. It has rendered the defendant’s case, it may be, more definite in its details than was set down in the answer, without departing therefrom in any substantial particular. The Jury have found from the evidence, what the proposed admission would have required them to find.

The testimony in regard to the previous note discounted under a similar arrangement, was not important, but it might properly aid in showing the corrupt intent.

The conversation with the plaintiff tended to show an admission by him that only $300 had been received by the defendant.

The question what a receipt testified to was given for, if it had called for the contents of the receipt, would have been objectionable, but it simply called for the purpose of the receipt. It was the answer to the question which was in this respect objectionable, and that was not objected to. If the objection that the receipt should be produced, ought to have led to the exclusion of the question, the objection was afterwards obviated by the production of the receipt.

It is suggested on the argument, that the transaction was a sale of the note by Pecare, and that a sale for any sum, however small, would not have made the transaction, usurious. No such question appears to have been raised on the trial. If it was, the verdict of the Jury rejects that interpretation of the contract. No doubt a chose in action may he sold, and when the transaction is, in the mind and intent of the parties, a sale, it will not he usurious; but even when the form and terms of a sale are used by the parties, if in truth it is with a corrupt intent, and for the purpose of securing to a lender usurious interest, it is void. Here the Jury have found that the agreement was with that intent and purpose.

The judgment and order denying a new trial should be affirmed.


author: By the Court —Woodruff, J.

text:
    Peter Morris, Plaintiff and Appellant, v. The Second Avenue Railroad Company, Defendants and Respondents.
    1. To entitle an appellant to a reversal, on the ground that the finding of the Referee, before whom the action was tried, is against the weight of evidence, it is not enough that he satisfies the appellate Court that, upon the testimony as it appears in the printed case, assuming that the witnesses on his behalf are entitled to full credit, they would have come to a different conclusion from that of the Referee. His case must be very clear and substantially without contradiction; else the finding of the Referee, like the ' verdict of a Jury, will be held conclusive.
    2. This rule applied in support of the finding of a Referee in favor of the defendants, upon conflicting evidence on an issue of payment.
    (Before Bosworth, Oh. J., and Woodruff, J.)
    Heard, November 16;
    decided, December 7, 1861.
    Appeal from a judgment entered in favor of defendants on the report of Edward P. Coles, Esq., Referee, before whom the cause was tried.
    The plaintiff sued to recover for services rendered to defendants, and money paid for them in the construction of then road. The defense was payment. It appeared upon the trial, that the plaintiff, who had done work for the defendants under a special contract, had also done extra work prior to September, 1853, and it was for compensation for such work that he now sued.
    The defendants produced plaintiff’s receipts given for various sums and at various times, in and subsequent to September, 1853, and expressed to be in full. The plaintiff was an illiterate man, unable to read, and, when examined before the Referee, he testified, that when required by Mr. Pearsall, defendants’ President, to give such a receipt, he objected; but that Pearsall insisted, and promised that he should be paid for any extra work. And plaintiff testified, that he had never received any payment for extra work. Pearsall, being sworn, testified, that he was not present when the receipt to which the plaintiff alluded was given, and that he never had any such conversation. The defendants also produced a receipt signed by plaintiffs, which was for extra work, of the same nature as that for which he sued.
    The Referee found that the plaintiff had rendered services, but had been paid in full.
    The plaintiff excepted to the report, and from, the judgment entered thereon took this appeal.

      A. J. Willard, for plaintiff, (appellant,) insisted that the Referee erred in his conclusion of fact that the plaintiff had been paid in full; and the judgment should be set aside and a new trial ordered.

      Waldo Hutchins, for defendants, (respondents,) on a review of the evidence, urged that the defense was fully made out, and that the evidence being conflicting and its weight not being against the report, the judgment should be affirmed.
   By the Court —Woodruff, J.

The sole ground of this appeal is, that the finding of the Referee before whom the action was tried, is against the weight of the evidence. To entitle an appellant to a reversal on this ground, it is not enough that he satisfies the appellate Court that upon the testimony as it appears in the printed case, assuming that the witnesses on his- behalf are entitled to full credit, they would have come to a different conclusion from that found by the Beferee. His case must be very clear and substantially without contradiction, else the finding of the Beferee, like the verdict of a Jury, will be held conclusive.

The stringent rules governing the subject have been so often .stated that it is not necessary to repeat them here. Hardly a volume of the reports is published that does not contain a statement of these rules, as acted upon in this Court or in the Supreme or other Courts in this State. Some have gone so far as to decide that if there is any conflict of testimony upon the matters in issue, the finding of the Beferee should not be disturbed. Others, that the preponderance of the evidence in conflict with the finding, should be such as to warrant the belief that some mistake was made by the Beferee or that he was partial, prejudiced or biased, or governed by some consideration which ought not to have influenced his decision. Others state that to warrant a reversal in such case, the testimony should be such at least that a verdict of a Jury given for the prevailing party, under proper instructions from the Court, would be set aside.

We have examined the testimony as it appears before us. Taking the testimony of the plaintiff himself as entitled to full credit, and the corroborating testimony of Smith and others as reliable, the plaintiff certainly made out a case entitling him to recover. But, on the other hand, the testimony of Pearsall, the President of the defendants, (at the time of the transactions in question,) directly contradicts both the plaintiff and Smith in very material particulars. Six receipts, signed by the plaintiff himself, are in direct conflict with the claim here set up by him. Other receipts signed by him are in flat contradiction of his explicit statement under oath on the trial. The lapse of time after the claim is alleged to have arisen, before suit brought,—The death of the defendants’ Treasurer, by whom the payments were made to the plaintiff,— and other circumstances of suspicion, in’the want of entire harmony between the testimony of the plaintiff and his own witnesses, might properly have some influence favorable to the defendants.

Under these circumstances, the observations made in Hall v. Morrison, (3 Bosw., 526,) apply with singular force to the case before us: “The preponderance of the testimony on either side is not such as to warrant a presumption that the finding of the Beferee is not the conviction of an upright mind, uninfluenced by any consideration that is foreign to the case, or that his findings were the result of any mistake, or of any error in the application of the rules of law to the evidence. In such a case it is settled that the report of a Beferee cannot be set aside. He has the witnesses before him. He not only hears their words, but observes their manner of testifying. He may have been conscious of reasons for doubting the accuracy of the defendant’s,” (or plaintiff’s,) “testimony, which do not and cannot appear upon the printed case. Under such circumstances his report upon the facts must conclude us; it stands as the verdict of a Jury.”

The judgment must be affirmed.