author: By the Court.—Freed max, J.

text:
    DAVID LEVY, et al., Plaintiffs and Respondents, v. SOLOMON LOEB, et al., Defendants and Appellants.
    I. Practice.

    1. EXAMINATION OF PARTY TO ACTION BEFORE TRIAL. (a) Obdeb fob.
    1. Obligatory on judge to grant.

      Of) Vacatur of order, power of court as to.
    1. Although it is obligatory to grant an order for examination upon presentation of an affidavit complying in form with the requirements of section 872, yet the order, when granted,, may be vacated for cause shown.

    1. Cause, what is. If the affidavit on which the order was obtained is defective in any necessary particular, or if the allegations contained therein, though sufficient by themselves, are successfully met by opposing proof, cause for a vacatur is shown.
    (a) Winston v. English, 44 Sow. Pr. 898. The rules laid down in this case may still be followed with safety.
    II. Application of above principles.

    1. After service of a complaint setting forth a good cause of action with sufficient certainty, but before answer, plaintiffs, upon an affidavit setting forth various facts which, might perhaps, have been sufficient to call for an examination in case a general denial had been interposed, bnt not claiming that plaintiffs desired to amend their complaint, and that the examination was material and necessary for that purpose, the claim being, simply, that it was material and necessary for the prosecution of the action, obtained an order for the examination of two of the defendants. Those defendants moved to vacate the order upon the papers on which it had been obtained, and on an affidavit showing that prior to the commencement of this action, the defendants had brought an action against the present plaintiffs, that in that action the present plaintiffs had set up by answer the cause of action now sued upon, had procured an order for the examination of the defendants, had actually examined one of them at considerable length, on presumably the same issues as will arise in the present case, and that said examination had been finished and closed.

      Held,

      sufficient cause for a vacatur had been shown.

    1. Proof of case tjpon default.
    1. A claim that if defendants should fail to answer, the examination of some of them would be necessary to enable the plaintiff to obtain judgment on application to the court, held, under the circumstances, to be of too speculative a character to uphold the order.

    III. System of practice, of what constituted,
    1. The code of civil procedure.
    2. TJnrepealed portions of the old code.
    3. Statutes not embraced in either.
    4. Bules and practice of the courts preserved by section 469 of the old code, so far as they are not inconsistent with later legislative enactments.
    1. Construction of any particular section, or part of the
    SYSTEM.

      (a) If it be intricate, obscure or doubtful, its meaning is to be ascertained by compa/ring it with the other sections or parts in the light of the general legislative intent disclosed by the whole system with respect to the section or part questioned.
    Before Speir and Freedman, JJ.

      Decided November 4, 1878.
    Appeal from order denying defendant’s motion to vacate an order for the examination of several of the defendants after service of summons and complaint, and before issue joined.
    The motion was founded on affidavit, and it was denied solely on the ground that the code of civil procedure gives an absolute right to such examination, or, in other words, that there is no power to vacate the order.

      Mann & Parsons, attorneys, and Will. Mann, of counsel, for appellants
    I. Outside of the provisions of the code peculiarly applicable to this subject, all courts of record have power to control, modify, and vacate their orders or mandates, or to stay their operation. If the court finds that ány order has been obtained from it by misrepresentation, or suppression of material facts, or for purposes of oppression or vexation, the court will so control or direct its order as to prevent its doing harm to the adverse party. The statement of this principle is its sufficient argument.
    II. Is there anything in the Code of Procedure as how in force limiting the general power thus possessed by the court to vacate its own order ? Section 873 provides that upon such affidavit the judge must grant an order, &c. The wording of this section leaves no room for doubt that it is obligatory on the officer to grant the order. The only provision in regard to the mode of .examination is contained in section 880. “The judge taking the deposition must insert therein every answer or declaration of the person examined, which either party requires to be inserted.” The language of this section is very peculiar. If does not require the insertion of question and answer, but only of the answers. This part of the statute has not been altered from the old or former code. The provision there was (§ 392) that the party should be compelled to attend in the same manner as a witness to be examined conditionally, “ and the examination shall be taken and filed by the judge in a like manner.” The former provision, as tp taking the testimony of a witness conditionally, and which is referred to by this last quoted section, is found in the Revised Statutes, 2 Edmonds, p. 415, § 37, and is identical with the first part of- the present § 880. The compilers of the present code have simply taken the old § 37 of the act in regard to perpetuating testimony, and made a section of the code out of it. Consequently the rule laid down by the present code for conducting the examination is precisely (verbatim) the same as formerly. Under the old rule, it was always held that the officer taking the deposition had power to rule on questions asked the witness (party), as to their materiality, competency, &c. (Plato v. Kelly, 16 Abb. Pr. 188; Gibson v. Pearsall, 1 E. D. Smith, 90 ; Glenney v. Stedwell, 64 N. Y. 120), delivering the unanimous opinion of the court of appeals, after stating that the examination before trial is a substitute for the bill of discovery, says : “ It is for the judges now, by rules of practice and by ruling at the examination, to keep the plaintiff (meaning party) within proper bounds, and to ward off from the defendant all inquiry that is vain or curious.” It appears, therefore, that the only, provision on this matter that has been affected by the new code is the making the granting merely of the order obligatory. The reason, for this change is, very apparent. It is well known that one of the courts has always, refused the order to.examine unless the moving papers made out such a case as would have entitled the party to relief in equity on a bill of discovery. An instance of this ruling was the decision at special term of the common pleas in Garrison v. Mariposa Co., not reported, but cited in Carr v. Great Western Ins. Co., 3 Daly, 160, and the then rule of the court of common pleas, rule 21, of Jan., 1871. It was to abrogate this ruling and practice in that court, mid any similar ruling in other courts, that the present language in regard to granting the order was enacted, so as to make uniform the practice in the different courts as to the applicant’s technical right to have the order made. When the order is made and the witness comes into court, then the proceeding is before the court for its control, and the examination of the witness is to be conducted exactly as heretofore, that is to say, as laid down in Glenney v. Stedwell, supra. But again, it was absolutely necessary that the control of the examination should be left with the court, for if the ■court had no power to control, and it was obligatory to take the examination as well as in the first instance to make the order, then the attorney may take out as many successive orders against the same witness (party) as he chooses, and have each time the same examination taken, certified, and filed, to the great oppression of his adversary (See also note to Phenix v. Dupuy, 2 Abb. N. C. 159.
    III. We submit that this is a case where all the' circumstances (the counsel had before particularly adverted to them) show that the order for examination was obtained only for purposes of vexation and oppression ; that the examination, if permitted to proceed, would be, in the words of the court of appeals, “ vain and that the order of the special term should be reversed, with costs, and the order for examination vacated.

      8. Kaufman, attorney, and Lewis Sanders, of counsel, for respondent:
    I. This court will not try the merits of an action upon an ex parte affidavit of counsel when not o»ne of the allegations of the complaint is denied, and no añidavit of merits is interposed. Por the purposes of the motion every allegation of the complaint must be taken to be true.
    II. Section 873, code civil procedure, provides that “the judge, to whom such affidavit is presented, must grant an order for the examination, if an action is pending.” The language is in the imperative mood— there are no qualifications or conditions. In the opinion of the learned judge below, the right is absolute. So held by the supreme court (Webster v. Stockwell, 3 Abb. N. C. 120).
    III. If the word may had been used instead of must in the statute, the result would have been the same. It would still have been obligatory upon the judge to grant the order, as the rights of the parties depend upon such examination (Mayor v. Fruze, 3 Hill, 615). “ May, in the case of a public officer, is tantamount to shall; and if he does not do it (the act required), he shall be punished” (King v. Inhabitants of Derby, Skinner, 370 ; King v. Barlow, 2 Salk. 609 ; People v. Sup. Otsego Co., 51 N. Y. 406-7 ; Martin v. Mayor of Brooklyn, 5 Cow. 547; Alderman Blackwell’s Case, 1 Vernon, 153 ; Phelps v. Hawley, 52 N. Y. 27).
    IY. If such is the rule of law when the statute is permissive only, a fortiori, must it be mandatory when the most apt word in the language says that it must be done ?
    Y. This court at general term having passed upon this question where the statute was not, as now, in the imperative mood—it is stai e decisis here.
   By the Court.—Freed max, J.

Prior to the recent revision of the statutes, this court had steadily adhered to the view that the right of a party to an action to examine the adverse party did not, under the code as it then stood, arise after issxie joined, but that it existed from the time of the commencement of the action (McVickar v. Greenleaf, 4 Robt. 657 ; Fullerton v. Gaylord, 7 Id. 551; Duffy v. Lynch, 36 How. Pr. 509), and that this right could not be abrogated by rule (Glenney v. Stedwell and the World Mutual Life Ins. Co., 40 N. Y. Superior Court R. [8 J. & S.] 92).

Other tribunals differed more or less with this court upon this question, but the court of appeals on affirming the case last mentioned (64 N. Y. 120), settled the law in conformity with the views of this court.

At the same time this court considered it but just, and even necessary for the protection of the party to be examined, that the papers supporting the application should fully establish, by facts and circumstances, the good faith of the application and the materiality of the examination sought and if they were deficient in that respect, the application was denied, or the order, if inadvertently granted, vacated pursuant to order to show cause. Thus, in Winston v. English. 35 N. Y. Superior Court R. (3 J. & S.) 512, an order made for the examination of the plaintiff before service of the complaint was set aside because the examination could not, at that stage of the proceedings, be said to be necessary. It could not be said to be necessary to enable the defendant to prepare his answer, for, until the complaint was served, he could not know what the alleged cause of action was or would be, nor what he would have to answer; nor could it be seen that it was material in aid of a defense, until an issue had been framed.

After the complaint had been served, the defendant obtained a new order, but that was again vacated on the ground that the defendant had not sufficiently shown the necessity of the examination, nor sufficiently satisfied the court of the good faith of his application. The rule was stated as follows :

“ Whenever, therefore, a party applies, under section 391, after issue joined, for the examination of the adverse party as to matters within the issues, the application is usually granted as a matter of course and of absolute right. In such case slight evidence is sufficient to satisfy the court as to the materiality of the discovery sought.

“ But when the examination is sought at an earlier stage, where the danger of abuse is imminent, and the difficulty of restricting the examination within reasonable limits great, the court is bound to ascertain by evidence, not only that the examination is material, and how it is material, but also that it is made in good faith, and for a necessary and proper purpose.

“If all this is shown affirmatively, the examination is a matter of right, but otherwise not” (Winston v. English, 44 How. Pr. 398).

These views also found support in the court of appeals, for, in delivering the unanimous opinion of that court in Glenney v. Stedwell, 64 N. Y. 120, Mr. Justice Folger, after stating that the examination before trial is a substitute for the bill of discovery, says: “It is for the judges now, by rules of practice, and by rulings at the examination, to keep the plaintiff (meaning party) within proper bounds, and to ward off from the defendant (meaning adverse party), all inquiry that is vain or curious.”

In enacting the Code of Civil Procedure, the legislature attempted to provide, by express provisions, for the exercise of the right of examination.

By section 870, the right is given at any time before trial, as prescribed in the article of which that section forms a part. Section 872 prescribes the requisites of the affidavit to be presented by the party applying for the examination.

Section 873 provides that the judge to whom such an affidavit is presented, must grant an order for the examination a,t a time and place to be therein specified.

Section '876 provides, that npon proof by affidavit, that service of a copy of the order, and of the affidavit has been duly made, as directed in the order, the judge or the referee must proceed to take the deposition of the witness at the time and place specified in the order. He may, from time to time, adjourn the examination to another day, and to another place, within the same county.

By section 880, the judge or referee taking .a deposition is required to insert therein every answer or declaration of the person examined, which either party requires to be inserted.

Under section 881, the deposition, or a certified copy thereof, may be read in evidence by either party, at the trial of, or upon the assessment of damages, by writ of inquiry, or upon a reference, or otherwise, in the action specified in the original affidavit, or any other action thereafter brought, between the same parties, or between any parties claiming under them, or either of them, &c. &c.

Other provisions not necessary to be mentioned here regulate the service and the enforcement of the order, the manner in which the deposition is to be taken, completed, certified, and filed, and its use and effect.

Upon the provisions specially referred to, it has been contended that upon the mere presentation of an affidavit complying in form with the requirements of section 873, the right to the examination is absolute, if an action is pending; that in such case the judge to whom the affidavit is presented, must grant the order, and that the order, when once made, cannot be vacated for cause assigned by the party to be examined.

If this were so, the order for the examination would amount to a general, irrevocable, statutory search warrant, which can be demanded as matter of right.

I cannot subscribe to such a construction. True, section 873 makes it obligatory on the judge to grant the order upon the presentation of an affidavit complying in form with, the requirements of section 873, and to this extent, the new code makes an important innovation. But when fhe order has been made, and the party to be examined comes into court, then the proceedings must necessarily be subject to judicial control. If it were otherwise, if neither the judge nor the court have power to vacate for cause shown, if it were just as obligatory to take and complete the examination, as it is to grant the order in the first instance, then a party may take out as many successive orders against his adversary as he chooses, and have each time the same examination taken, certified, and filed, to the great oppression of his adversary; or a plaintiff in an action in which there are fifty defendants, may be examined as to the same matters by each of the fifty defendants. For the same reason, it would follow that the examination can be compelled in an action for divorce on the ground of adultery for the purpose of extorting a confession, and that in all actions in which the defendant has so far been privileged from answering, his conscience may now be scraped until he does criminate himself; for the section which prescribes the requisites of the affidavit makes no distinction in terms as to the class of actions to which the right of examination is to be confined, nor does the article containing the provisions under examination provide at what stage of the proceedings, or in what manner, a witness may assert the privilege accorded to him by other statutes. On the contrary, section 880, as already stated, provides that the judge taking the deposition must insert therein every answer or declaration of the person examined, which either party requires to be inserted.

It cannot be assumed, therefore, that the revisers intended to work the deplorable results which would flow from this helpless condition of the tribunals charged with the administration of justice. There is nothing in their notes showing any such intent. Their intention seems to have been to consolidate the provisions of law relating to the examination of a party by an adverse party ; the taking of depositions conditionally ; the perpetuation of testimony, and the taking of depositions by consent; and in carrying out this intention, their principal aim seems to have been to provide one mode of taking depositions in all these cases, and to remove unnecessary differences.

True, the power to vacate is not to be found among the provisions relating to these depositions. But the same objection might have been made to the provisions of the old code by which the right of examination was conferred, and yet the power existed, and its existence was never questioned.

Sections 877 and 878 of the Code of Remedial Justice, which preceded the New York Code of Civil Procedure for a short period, did provide for an application by any party to vacate the order, but on certain specified grounds only. In the discussions, however, to which said code gave rise, these grounds were deemed too narrow to allow an equitable discretion to be exercised, and hence, by the amendments of 1877, these restraints on the power of the court to vacate, were abolished by the repeal of the said two sections.

The truth is, that sections 870 to 886 of the Code of Civil Procedure constitute but a small part of a system of practice furnished by (1) the Code of Civil Procedure; (2) the unrepealed portions of the Old Code; (3) statutes not embraced in either, and (4) the rules and practice of the courts preserved by section 469 of the Old Code, so far as they are not inconsistent with later legislative enactments.

This system of practice must be considered and treated as one intended to be consistent throughout, and hence, if any section or part be intricate, obscure or doubtful, the proper mode of discovering its true meaning is by comparing it with the other sections or parts in the light of the general legislative intent disclosed by the whole system with respect to the intricate, obscure or doubtful point. Where there is clear and unambiguous evidence, says Mr. Justice Colebidob, that to withdraw, a case from the operation of a section, is to fulfill the general intent of a statute, and also, that to adhere tó the literal interpretation is to decide inconsistently with other and overruling provisions of the same statute, the dourt may properly act upon it, for the object of all rules of construction is to ascertain the meaning of the language used, and it would be unreasonable to impute to the legislature inconsistent intents upon the same general subject-matter. What it has clearly said in one part, must be the best evidence of what it has intended to say in the other. The court must apply in such á case the same rules which it would use in construing the limitation of a deed ; it must look to the whole context and endeavor to give -effect to all the provisions, enlarging or restraining, if need be, for that purpose, the literal interpretation of any particular part.

So it was held, that when the meaning of any particular section or clause in the cónstitution is questioned, it is proper to look into other parts of the constitution ; otherwise the different sections might be so construed as to be repugnant to each other, and the intention of the makers might be defeated; and if upon the examination of the general meaning and objects of the constitution, it should be found inconsistent with the literal import of any particular clause or section, such clause or section must, if possible, be construed according to the spirit of the act (6 Cranch, 307).

When, therefore, évery part of this vast system of practice is brought into action, in order to collect from the whole the consistent sense of the particular sections now under examination, it will appear, not only that the power which inheres in every court of record, unless restrained by positive enactment, to vacate, on motion, its process, order or judgment, to prevent a perversion thereof, or to frustrate oppression (Morgan v. Holladay, 38 N. Y. Superior Ct. R. [6 J. & S.] 117), has not been impaired by the Code of Civil Procedure, but also, that section 773, which forms part of a title treating of motions and orders generally, and making general provisions for the same, confers the power to vacate an order in express terms. Under that section an order, in an action, made without notice, which grants a provisional remedy, can be vacated only in the mode especially prescribed by law, and in any other ease, it may be vacated or modified without notice by the judge who made it, or upon notice, by him or by the court. The examination of a party before trial not .being a provisional remedy within the meaning of that term as used in said section, the words in “any other case,” which are used without any qualification whatever, clearly embrace an order made for such examination. Sections 873 and 876 must therefore be construed in connection with the general grant of power conferred by section 773 in confirmation of the power inherently possessed by the court, and in the light of the former practice of the courts, and when thus construed, all doubts as to the existence of the power to vacate must vanish. The examifiation must proceed if no motion be made to vacate the order, or the motion to vacate be denied. But the direction to proceed is not inconsistent with the exercise, for cause shown, of the power to vacate. This fully coincides with the general policy of the legislature upoh the subject of these examinations, for while, as shown in Winston English, 44 How. Pr. 398, the, legislature, representing the progressive power of the State, from time to time extended the right of discovery to new classes of cases and provided new remedies for securing it, it constantly looked to the courts as the representative power of the conservative element, for the prevention of the abuse of the letter of the law in individual cases.

The question then remains as to where and in what cases and under what circumstances the power to v&cate is to be exercised. Section -872 applies to all depositions which may be taken und$r the title of which it forms a part, whether of parties or witnesses, and it prescribes generally the requisites of the affidavit to be •presented by the party desiring to take a 'deposition. In addition, the effect of the 89th rule of the General Rules of Practice enacted pursuant to the authority conferred by section 17 of the Code of Civil Procedure, is that the affidavit must in all cases specify the facts and circumstances which show the materiality and necessity of the examination.

If, therefore, the affidavit on which an order has been obtained is shown to be deficient in any necessary particular, the order may be vacated. The same result may take place if the allegations of the affidavit, though, sufficient by themselves, are successfully met by opposing proof. No precise rule can be laid down for all cases likely to arise. Each application to vacate must be determined upon the facts as they are made to appear. But so far as rules can- be stated, the rules laid, down in the case of Winston v. English, above referred to, may still be followed with safety.

The case at bar affords a striking illustration of the necessity of the exercise of the power. The plaintiffs, before the defendants’ time to answer or appear had expired, obtained, upon their complaint and an affidavit, an order for the examination of two of the defendants. The complaint alleged a good cause of action with sufficient certainty, and the affidavit accompanying it, though alleging various facts, which, perhaps, would have justified the order in case the defendants had interposed a general denial, did not claim that the plaintiffs desired to amend their pleading, and that the examination sought was material and necessary to enable them to do so, but simply claimed that it was material and necessary for the plaintiffs in the prosecution of the action. But it is difficult to perceive how, at that stage of the case, it could be in fact material and necessary for the purpose alleged. No issue had been joined, and as long as it could not be seen what the issue would be, it could not be determined what the prosecution of the action required. Nor did the plaintiffs disclose any reason showing a special requirement. The defendants summoned showed, on the other hand, by affidavit, that some time prior to the commencement of this action the defendants had brought an action in the supreme court against the present plaintiffs; that in that action the present plaintiffs had set up by answer the cause of action now sued upon, and had procured an order for the examination of the defendants, and had actually examined one of them at considerable length on presumably the same issues as will arise in the present case, and that said examination had been finished and closed. This proof rendered it all the more necessary that the plaintiff should show affirmatively some clear and valid reason for proceeding with the examination in this action, but they failed to give any. The claim to which they finally resorted, that if the defendants should fail to answer, the examination of some of them would be necessary to enable the plaintiffs to obtain judgment on application to -the court, is of too speculative a character.

The order appealed from should be reversed with costs, and defendants’ motion to vacate the order for examination granted.

Speir, J., concurred.


source: Caselaw Access Project

author: By the Court.—Freedmah, J.

license: Public Domain

text:
    JOHN J. CORBETT, Plaintiff and Respondent, v. LOUIS DE COMEAU, Defendant and Appellant.
    I. Practice.

    1. Examination of party to action before trial.

      (a) LIBEL, ACTION FOR.
    1, Defendant cannot be compelled to prove against himself the publication of the alleged libel, or to disclose any matter .constituting a link in the chain of evidence, which may fasten the publication on him.

      Therefore, v/nless

    plaintiff shows that there are other matters as to which it is necessary and material to have the testimony of defendant before trial, the order for his examination will he vacated.

    ' Á fortiori
    Where plaintiff’s papers show that the sole object of the examination is to' prove by defendant that he published or caused to be published the libel, and do not show either that the examination is necessary for the framing of the complaint, or that the publication cannot be proved by other testimony.
    ■3. Rule 89—Requirements oe.
    (a) What does not satisfy them. ' >
    1. A general affidavit “that the testimony of the defendant is material and necessary to plaintiff in the prosecution of his action,” does not,
    Before SpEir and Freedman, JJ.

      Decided November 4, 1878.
    Appeal Tby defendant from order denying his motion to vacate an order for Ms examination after service of summons, but before service of the complaint.

      Coudert Brothers, attorneys, and of counsel, for appellant.
    I. 1. As to the general right to apply for a vacation of the order. It is elementary law that no order can be granted which may not also be vacated. There was no provision in the old law for an application to vacate the order granted under section 391. And yet the application was constantly made and constantly granted.. 2. Our particular right to apply for a vacation of the order herein. There is no provision in the new law for an application to vacate the order herein, nor was there any such provision expressly enacted under the old law, but the right to make such an application no one will deny.
    II. 1. It is elementary law that a witness cannot be compelled to disclose any matter which may subject him to a penalty, a forfeiture or a criminal proceeding (Henry v. Salina Bank, 1 N. Y. 83; 1 Phil. on Ev. 278 ; Mitf. Plead. 197; 4 Johns. Ch. 432; 3 Paige, 533 ; 11 Wend. 329). Nor to discover any matter constituting evidence or a link in the chain of evidence which might subject him to a penalty, a forfeiture or a criminal proceeding (Henry v. Salina Bank, 1 N. Y. 86 ; Matter of Tappan, 9 How. 364; People v. Maher, 4 Wend. 254; 16 Ves. 242; Parkhurst v. Lawton, 2 Swanst. 215 ; 1 Burr's Trial, 244; Southard v. Rexford, 6 Cow. 254; People v. Bellinger, 8 Wend. 595). The proceedings under the code for obtaining an order for the examination of a party before trial corresponds to the bill of discovery in the old chancery practice (King v. Leighton, 58 N. Y. 383 ; Glenney v. Stedwell, 64 Id. 123). A bill of discovery does not lie to compel a party to discover facts, the effect of which might be to subject him to a penalty, forfeiture or criminal proceeding (Chancery v. Tahourden, August 4, 1742, before Lord Chancellor Hardwicks. See also Earl of Suffolk v. Green, 1 Atk. 450; Hamson v. Southcote, 1 Id. 539 ; Wrotterly v. Bendich, 3 P. W. 238 ; Chauncey v. Fenhoulet, 2 Ves. 265; See also Taylor v. Bruen, 2 Barb. Ch. 301; Conant v. Delafield, 3 Edw. Ch. 201; Sharp v. Sharp, 3 Johns. Ch. 407; Deas v. Harvie, 2
      Barb. Ch. 448 ; Leggett v. Postley, 2 Paige, 599 ; Currier v. Concord R. R. Co., 48 N. H. 321; Lansing v. Pine, 4 Paige, 639 ; 4 Sim. 263 ; Marsh v. Davison, 9 Paige, 580; Bailey v. Dean, 5 Barb. 297. See also 2 Story’s Eq. Jur., 822, and note; Taylor v. Bruen, 2 Barb. Ch. 301; McIntyre v. Mancius, 16 Johns. 592). The court will not allow an examination to proceed where it is evident that the witness cannot be compelled to answer a single question under it (Norton v. Woods, 5 Paige, 269 ; Burgess v. Smith, 2 Barb. Ch. 276; Dykers v. Wilder, 3 Edw. Ch. 496). “ The defendant cannot be compelled to answer a charge which, if true, will subject him to an indictment or expose him to criminal prosecution. ... In this case there is no material fact alleged to be in the knowledge of the defendant which he could disclose without exposing himself to a prosecution for conspiracy, if the allegations in the complainant’s bill are true” (Leggett v. Postley, 2 Paige Ch. 601 ; Burgess v. Smith, 2 Barb. Ch. 280 ; March v. Davidson, 9 Paige, 587). The last objection we have to meet is the one suggested, rather than expressed by the words “ Such an objection is the personal privilege of the witness.” There are cases which hold that the objection cannot be taken by counsel, but only by the witness himself. Any argument that maybe drawn from these decisions is based upon the confusion which has arisen since parties have been allowed to testify in their own behalf. The rules which limited the privilege of witnesses before the innovation last mentioned, must be carefully examined before they are admitted as limiting the privilege of parties who offer themselves, or, as in this case, are forced upon the stand. It will be seen that in this class of proceedings there is an important distinction between them (See Stake v. Andre, 9 Abb. Pr. 420 ; Palmer v. Adams, 22 How. Pr. 375). A witness, not a party to the action, is not entitled to counsel. The decision, therefore, that counsel cannot object to a question on the ground of the personal privilege, cannot refer to the counsel of the witness, seeing that he was not entitled to one ; it cannot refer to the counsel for the party on whose behalf the witness is being examined, for he is the counsel who puts the question ; it can only refer therefore to the opposite counsel; and the cases distinctly show this. The reason they lay down for the rule is, that one party is not to be shut off from the benefit of the testimony of his witness by a personal objection taken by the counsel for the other side. It was held, Noyes v. Thayer, 3 Hill, 566, that: “The court erred in compelling the witness to answer questions tending to criminate himself. But the error is not available to the plaintiff ; the privilege belongs exclusively to the witness, who may take advantage of it or not, at his pleasure. The party to the suit cannot object. The witness may waive the privilege and testify in spite of any objection coming from the party or his counsel” (See also Ward v. Profer, 6 Hill, 146; People v. Bodine, 1 Den. 566). But a party is entitled to counsel and to all the protection which a counsel can afford. This is recognized in the code by the express provision therein (§ 875), that “a copy of the order and of the affidavit upon which it was granted must be served upon the attorney for each party of the action.” It is an instructive fact that the only proceeding by which a party could be compelled to testify at common law was by the assistance of a bill of discovery, and that a demurrer to this bill was continually taken by counsel on the very grounds upon which we base this argument, and the demurrer was sustained without a single exception.

      W. id Severance, attorney, and of counsel, for respondent:
    I. The new code, section 870, et seq., gives every party to a suit the absolute and unqualified right in every case to examine the adverse party before trial, on the presentation of an: affidavit stating certain facts. No distinctions are made in. the kind of actions, or exceptions to the rule. The language is broad, and it is made compulsory, by section 873, on a judge on the presentation of an affidavit, to grant an order if an action is pending; and section 876 is mandatory that he must proceed with the examination on proof of service. The only point really to be considered then, is whether the affidavit was sufficient; as if so, the’ right to the examination, was- absolute, although the right to compel defendant to answer all questions after he was sworn, might not be.
    II. The defendant has laid much stress on the case of Phœnix v. Dupuy (2 Abb. N. C. 146), which was made before the new code went into effect,, and was based on the theory that a bill of discovery would not lie in such a case. It is difficult to see what application a discussion on bills of discovery has to the right of examination under the new code. It may be known to this, court, as it is to the bar of the- city, that the judges of the court of common pleas have allowed very few examinations of parties before trial, and have termed such examinations “fishing excursions,” and “scraping the conscience of- the adverse party,” and that little weight has been given to the decisions of that court on- this subject. The theory of hardship* which has always-been strongly advanced in that court,. and which has there been very efficacious, has been disposed of- a number of tirties (Glenney v. Stedwell, 64 N. Y. 120; Ludewig v. Pariser, decision of Judge Sanford, March 19, 1878).
    III. If Judge Sanboejd had decided that this: examination should not be allowed, on the crimination theory, he would- practically have assumed that, the answers to- all of the questions asked would have a tendency to criminate, and further, that the witness would, claim his privilege and refuse to answer. For all that was known, he might waive his privilege and testify. It has been often decided that the court will only interfere when a witness claims his privilege, and will not instruct him in advance. The privilege is exclusively a personal one (People v. Bodine, 1 Den. 314 ; Fellows v. Wilson, 31 Barb. 163 ; 3 Hill, 566 ; 6 Cow. 260; 6 Hill, 144; Corbett v. De Comeau, opinion in this case ; Ludewig v. Pariser, supra).

    IV. The affidavit is sufficient. It follows the statute. The only pretense of an omission that can be suggested, is that it does not state ‘ ‘ the judgment demanded therein.” This, however, evidently refers to a case where a complaint has been served with a demand for judgment, as there could, under the circumstances here, be no “judgment demanded therein.” In a libel action, but one judgment is demanded, to wit: damages. See Beach v. Mayor, supra, where it is held that a substantial compliance is all that is required.
   By the Court.—Freedmah, J.

The existence of the power to vacate an order made for the examination of a party at the instance of the adverse party, has been so fully shown in Levy v. Loeb, decided at the present term of this court, that no further discussion upon that point is necessary here. In so far, therefore, as the denial of the motion was based upon a supposed want of power, it rests upon an erroneous view of the law.

The defendant, on the return day of the order, objected to being sworn, and moved for the vacation of the order, on the ground, among others, that the action being for libel, he could not be compelled to prove against himself the publication of the alleged libel.

The rule that a witness cannot be compelled to disclose any matter which may subject him to a penalty, a forfeiture or a criminal proceeding, nor to disclose any matter constituting a link in the chain of evidence which may subject him to any of these consequences, has not been repealed by the Code of Civil Procedure, but is expressly retained by section 837. But it is the personal privilege of the witness, and ordinarily it can only be urged when a question having that tendency is addressed to him. As a general rule, therefore, the premature assertion of the privilege affords no justification for refusing to be sworn.

On the other hand, it was incumbent on the plaintiff to demonstrate by facts and circumstances the materiality, necessity and good faith of the proposed examination at the particular stage of the case at which it was sought to be taken. When, therefore, the defendant claimed his privilege, the plaintiff should at least have shown that there were material matters as to which the defendant could be examined. The burden of proof upon this point rested upon the plaintiff from the start, especially as, under the former practice, as was also insisted upon by the defendant, no bill of discovery would have been sustained for the purpose sought to be accomplished by the examination (Leggett v. Postley, 2 Paige, 599 ; Marsh v. Davison, 9 Id. 580 ; Bailey v. Dean, 5 Barb. 297 ; Lansing v. Pine, 4 Paige, 639 ; Taylor v. Bruen, 2 Barb. Ch. 301; McIntyre v. Mancius, 16 Johns. 592), and no examination was allowed to proceed where it was evident that the witness could not be compelled to answer a single question under it.

But the affidavit on which the order was granted showed that the sole object of defendant’s examination was to prove, by the latter’s own oath, the publication of a letter libelous on its face in a newspaper, with the design to injure the plaintiff, and no further proof was adduced to overcome defendant’s objection. Moreover, there was no pretense that the examination was material and necessary to enable the plaintiff to frame his complaint, or that the publication could not be proved by other testimony, if such proof should become necessary at a subsequent stage. The mere general averment of the affidavit, “that the testimony of the defendant is material and necessary to plaintiff in the prosecution of this action,” did not meet the requirements of the 89 th rule.

For these defects, and it plainly appearing from the whole case that the object of the plaintiff was not so much to collect proof in aid of an action which he had, as to find out by the examination of the defendant whether he had any against the latter in particular, the motion to vacate should have been granted. To have compelled the defendant to take the oath and then to reassert his privilege, would in this case have been an idle ceremony.

The order appealed from should be reversed with costs, and defendant’s motion to vacate the order for examination granted.

Speir, J., concurred.


author: By the Court.—Freedman, J.

text:
    HERBERT B. FREEMAN, Plaintiff and Respondent, v. HENRY M. BARROWCLIFFE, Impleaded, etc., Appellant.
    II. Joint debtobs.
    1. Chapter 2, title 12, part 2, of old code, proceedings under, by summons to show cause why a defendant not served (the others being served) should not be bound by the judgment entered in form against him with the others.

      (a) When not applicable.

      . 1. Fictitious nwme.—Aft action was br oúght against two persons alleged to be joint debtors-. One was sued by a fictitious name. He did not appear. The other appeared- and defended. The judgment record showed a full and absolute judgment entered upon a personal service of the summons and complaint on the person designated by the fictitious name, and Upon verdict as to the other, Held, that the chapter
    DID NOT APPLY,
    Became—
    1.- If the person summoned to show cause is the one designated by the fictitious name, then the record showed a full and absolute judgment against him already.

      '<£) If desired to obtain a judgment against him by his true name, the proper proceeding is under section 451 of the new code.
    2: If the person summoned to show cause is not the one designated by the fictitious name, then he is not a party to the action.

      (a) If he is a third joint debtor, whose name' for some cause’ was omitted from the original summons, the remedy is under subdivision 4 of section 136 of the old code.

      (b) Plaintiff's proceedings.

    1. Affidavit necessary. .
    1. The summons must be accompanied by an affidavit of the persons subscribing it, that the judgment has not been satisfied, and specifying the amounts due them.
    (c) Pleadings by person summoned.

    1. Demurrer is not allowed ; the only pleading he is
    ALLOWED TO INTERPOSE IS AN ANSWER.
    Before- Speir and Freeman, JJ.

      Decided November 4, 1878.
    Appeal from order overruling demurrer
    The action was brought against John M. Falconer and Richard Roe, whose real name was unknown to the plaintiff, composing the firm of John M. Falconer & Co., as makers of two promissory notes.

      The defendant John M. Falconer appeared and answered, and a verdict having been rendered against him, judgment was entered and perfected against both defendants.
    Subsequently the appellant Henry M. Barrowcliffe, was served with a summons requiring him to show cause why he should not be bound by said judgment. He thereupon demurred to the complaint in the action on the ground that it did not set forth facts sufficient to constitute a cause of action as against him.
    The court at special term overruled the demurrer with costs to the plaintiff, and adjudged Barrowcliffe bound by said judgment, unless lie should withdraw the demurrer, pay the costs and serve an answer to the complaint in said action.
    From that order the present appeal is taken.

      Thomas & Wilder, attorneys, and of counsel, for appellant:
    I. There is no pretense that “Richard Roe,” in the judgment herein, is the designation of a plurality of persons. The complaint alleges that he is a unit; the postea shows that he has already been served with the summons and complaint herein, and has put in no defense thereto; the judgment, therefore, is already as perfect as it can be made. Ho other defendants remain to be brought in. If Henry M. Barrowcliffe and “ Richard Roe” are one and the same person, then the record should be amended accordingly.
    II. But if Henry M. Barrowcliffe and “ Richard Roe” are indeed identical, this demurrer is good on another ground. For it then appears by the judgment itself, which is already perfected against “Richard Roe,” that the plaintiff already has a judgment against Barrowcliffe, and all he need do is to amend his record in the manner provided by section 451, by substituting therein the name of Barrowcliffe for that of Roe, and then enforce his judgment. There is certainly no authority for requiring Barrowcliffe to show cause why he should not be bound by a judgment which already runs against him on that hypothesis. It is as if “Richard Roe” were sued over again upon a complaint on which judgment has already been rendered against him, and falls within the criticism of Judge Brady in Johnson v. Smith (14 Abb. 423). The objection appearing upon the face of the record, it can be taken by demurrer.
    III. Plaintiff, therefore, must abandon the hypothesis that “Richard Roe” and Henry M. Barrowcliffe are one and the same person. But this abandoned, it follows that Barrowcliffe is a third party, not named in the original summons and complaint, and as to him therefore the complaint discloses no cause of action whatever, and is clearly demurrable.
    IV. It was suggested below that Barrowcliffe’s remedy is restricted by section 379 (old code) to an answer, and that he cannot demur. But an answer includes a demurrer, as the greater always includes the less (See Brodhead v. Broadhead, 4 How. 308). His defense is simply, “ Your complaint shows a cause of action against John M. Falconer and ‘ Richard Roe.’ Your record shows service and recovery against both of them. You show, therefore, nothing' against me.” The plaintiff cannot reply to this that Barrowcliffe must demur to the complaint alone, for the plaintiff has required him to show cause why he should not be bound by the judgment, i. e., the whole record. Whatever defenses therefore appear on the face of the whole record are available on demurrer. It would certainly be idle to require Barrowcliffe to set up by way of answer, a defense which he would only have to put-in the plaintiff’s own judgment-record to prove.

      O. F. Wells, attorney, and of counsel, for respondent :
    I. There is no provision for any such pleading as a demurrer to the complaint in such cases, (a) I quote section 379 of the old code, which is the only law upon this point of practice: “Upon such summons any party summoned may answer within the time specified therein, denying the judgment or setting up any defense thereto which may have arisen subsequent to such judgment; and in addition thereto if the party be proceeded against, according to section 375, he may make any defense which he might have made to the action if the summons had been served on him at the time when the same was originally commenced, and such defense had been then interposed to such action.”
    II. Even if a demurrer were allowable, as included in the term defense in the section, yet the demurrer to be good must be, by the express restrictions of the statute, one that would have been good at the time when the action was originally commenced, had it been then interposed, (a) I submit that the complaint contains a complete cause of action against the people who composed the firm of J. M. Falconer & Co., and that this demurrer, if interposed in the original action, would have been held frivolous. (5) The argument made at the special term that the name of Barrowcliffe becoming known, it is necessary (Code, 451) at once to insert it in the place of one or more of the fictitious names used, is absurd, when we consider that the demurrer admits all facts stated in the complaint, prominent among which is the allegation that the defendants’ real names are unknown to plaintiff.
   By the Court.—Freedman, J.

The summons requiring Barrowcliffe to show cause why he should not be bound, was issued pursuant to section 379 of the old code, which forms part of a chapter relating to proceedings against joint debtors, &c., &c., and remaining still in force, notwithstanding the enactment of the new code.

By section. 375 of the said chapter, it is provided that when a judgment shall be recovered against one or more of several persons, jointly indebted upon a contract, those who were not originally summoned to' answer the complaint may be summoned to show cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned. But such remedy is, by the same section, expressly confined to cases in which judgment has been recovered against one or more of several joint* debtors, by proceeding as provided in section 136. On turning to that section, it will be found to regulate plaintiff’s proceedings in cases, where the action is against two or more defendants, and the summons was served on one or more of them, but not on all of them. The remedy, therefore, exists only when one of several persons jointly indebted upon contract, has been named in the original summons and the complaint as a party defendant, but has not been served. In such a case, he maybe summoned to show cause why he should not be bound, and then the .summons is to be accompanied by an affidavit of the person subscribing it, that the judgment has not been satisfied, and specifying the amount due thereon (§ 378).

In the case at bar, no affidavit accompanied the summons. In addition, it appeared by the judgment-roll, that the summons and complaint in the action h,ad been served upon both John M. Falconer and Richard Roe, constituting the firm of J. M. Falconer & Co., and that judgment had been fully perfected against both defendants, .so. as to bind both their joint and several property. For these reasons, the appellant . should not have been summoned at all under section 379.

For if it be claimed that the plaintiff was originally ignorant of the name of the defendant, who, together with John M. Falconer, composed the firm of J. M. Falconer & Co., that for such reason he designated such defendant by the name of Richard Roe, that the summons and complaint were served upon the appellant under the said designation, and that he subsequently discovered the true name of the defendant so designated and served to be Henry M. Barrowcliffe, he should, upon proof of these facts, have applied under section 451 of the new code for an amendment of the summons, complaint, and judgment-roll, by the insertion of the true in place of the fictitious name.

If, on the other hand, it be claimed that Barrowcliffe was an additional partner with the defendants named in the judgment, that as such he is jointly liable with them, but that for some cause his name was omitted in the original summons and complaint, plaintiffs’ remedy is by action, as provided by subd. 4 of section 136, above referred to.

It therefore remains to be seen whether the appellant was regular in availing himself of a demurrer to get rid of plaintiffs’ unauthorized proceeding.

Under section 379 he had the right, by answer, to deny the judgment, or to set up any defense thereto which arose subsequently to the judgment, and in addition, to make any defense which he might have made to the action if the summons had been served on him at the time when the action was originally commenced, and such defense had then been interposed to such action. This does not authorize a demurrer in terms. Nevertheless, if the proceeding were an action, and if no special reasons existed in favor of a different construction, I should incline to the opinion that the word “defense” includes a demurrer. The word answer is used in the old code in this extended sense on several occasions, and a demurrer is, in effect, an answer that the party demurring will go no further, because the other has shown nothing against him.

But the code does not treat this proceeding as an action. It directs the judgment to be given in the same manner as in 'an action, thus negativing the idea that there is an action, and for the same reason, it makes special provisions for the form of the summons and its service, and for the pleadings, and the mode of enforcing the judgment. It sedulously avoids calling the parties plaintiffs and defendants, dispenses with any new complaint, and makes the summons not for the payment of money, or for relief, but to show cause (Mills v. Thursby, 2 Abb. Pr. 432).

Section 379 then provides that cause shall be shown by answer, and when that ip done, the party issuing the summons may, under section 380, demur or reply to the answer, and the party summoned may demur to the reply.

The statute, therefore, upon which this special proceeding depends exclusively, makes careful distinction between an answer and a demurrer, and expressly limits the use to which they, or either of them, maybe put in the cases arising under the statute.

From this it follows that the word “ answer,” occurring in section 379, must be taken in the restricted sense in which it has evidently been used, and that the appellant was not authorized to interpose a demurrer.

For the reason last stated, the order should be affirmed with costs, but with leave to appellant to withdraw said demurrer and answer, upon payment of such costs, and of the costs of the special term.

Speir, J., concurred.


text:
    WILLIAM H. WOOD, Plaintiff and Appellant, v. THE MAYOR, &c. OF THE CITY OF NEW YORK, Defendant and Respondent.
    I. Excess of power.
    1. When exercise of does not invalidate that which falls within the power.

      (a) Where that which is authorized neither depends on nor is a mere incident to, nor flows- out of that which is in excess.
    II. Officer, salary of.
    1. Liability of corporation of the City of New York.

      (a) Not liable where there has been no performance of the duties of the office.
    HI. New York city and county.
    1. Fire Department.

      (d) Sentence of board of fire commissioners, effect.
    1. While section 85, ch. 137, Laws 1870, was in force, a fireman was tried on, and found guilty of, a certain ctiarge preferred against him, and the board of fire commissioners sentenced him to be “retired from active service on an annuity of §150, to date from 13th inst.”
    Held,
    1. Though the board may, not have power to grant the annuity, yet its action in retiring the fireman was valid and operative.
    3. The sentence of retirement was in substance and effect one of discharge and dismissal from the service.
    3. That the fireman not having performed any service after such discharge, was not entitled to the salary attached to the position of fireman thereafter accruing.
    Before Speijr and Freedman, JJ.

      Decided November 4, 1878.
    Plaintiff was appointed a foreman in the Fire Department of the city of New York in 1865. In August, 1872, a certain charge was preferred against him. He was tried on the charge before the committee on discipline of the fire department. The committee found him guilty, and its sentence was that his resignation be demanded. The trial was reopened, when he was again found guilty by the committee, and sentenced to be retired from the service of the department on an annuity of $150, to date from September 12, 1872. On the action of the committee being reported to tfie board of fire commissioners, the action taken by that body on September 11, 1872, thus appears in its minutes: “ On motion, William H. Wood of Engine Company No. 33, was retired from active service in the department on an annuity of $150, to date from the 12th instant.”
    He was paid his salary up to November 1, 1872. He performed no duty and was not recognized as a fireman after September 11, 1872.
    This action was brought to recover the salary from November 1, 1872, to March 1, 1875. The salary of a foreman is fixed by law.
    The judge presiding at the trial of the action directed a verdict for plaintiff for the full amount of his claim; but the learned judge afterwards, on a motion to set aside the verdict, rendered a decision setting it aside, and ordering a new trial. An order was entered in conformity with this decision, from which plaintiff appeals. ■

      I. II. &N. L. Vanderzee, attorneys, and of counsel for appellant:
    I. The plaintiff was not dismissed, and is therefore entitled to his pay, and the verdict should not have been disturbed. The sentence passed upon the plaintiff on September 11, 1872, did not dismiss him. from the service. He was simply retired from active service. The latter portion of the motion, providing for an annuity of $150, was illegal, inoperative, and void. The board had no power to grant an annuity in this case. This being so, all that remains of their sentence is, that plaintiff was retired from active service in the department. There being no law fixing the salary of retired officers, the salary must, remain the same as that of active officers.
    II. But the entire action of the commissioners was unauthorized and void. They had no power to retire the plaintiff from active service, nor power to grant him an annuity. Their whole action was a nullity, without force or vitality. The board was organized under an act passed March 30, 1865, and their powers and duties concerning removals were defined by that act, as follows : “ The said commissioners shall have power to select ... as many officers, clerks, firemen and appointees as may be necessary, and the same shall be at all times under the control of said commissioners, . . . and may be removed by said commissioners” (Section 14 of said act). This power resided in the commissioners arbitrarily, and could be exercised for cause or without cause. Where arbitrary power is conferred by the legislature it must be strictly enforced, for no presumption of discretion is permissible (Heywood v. City of Buffalo, 14 N. Y. [4 Kernan], 537, &c.). The sentence imposed upon the plaintiff in none of its parts is in accordance with the statute authorizing the fire commissioners to remove its subordinates, and therefore is not a sentence which they could impose.
    III. It cannot be successfully insisted that the sentence imposed upon the plaintiff was intended, or is in effect a sentence of removal, (a) Because the power lodged in the commissioners being arbitrary, their action must literally comply with the terms of the act conferring it, and wherever their action fails so to literally comply with the act, it is void, and as though it had not been uttered. (6) Because the facts show that the commissioners had no such intention. After an investigation of the charges made against the plaintiff, the committee on discipline proposed, a sentence retiring- him, from the service, of the department. This sentence was never confirmed by the board of fire commissioners. They, in effect, decided not to dismiss him, as the committee proposed, bnt simply to retire him from active service in the department, They do not remove him from, the department, and as they were, in effect, recommended by. the- committee on discipline to dismiss him, but, instead of following that recommendation, modify the sentence, the plain inference is, that they did not intend to dismiss him,, as they were recommended to do by the. committee.
    IY. Certiorari will not, for the reasons above stated, lie. In any event certiorari is needless. Certiorari is needed only where the decision, affects a substantial right; but where the finding is void—where it does, not affect a substantial right-—certiorari is needless (Heywood v. City of Buffalo, above cited). The. action of the fire commissioners does not affect the plaintiff. 1st. It is void, 3d. There is not a word in that, sentence which affects the pay of the plaintiff.
    Y. The board of fire commissioners, as organized by law at the time of the action, complained of; by the plaintiff, was not constituted as the present board isj In the case, of the present board, which is, in effect constituted a judicial body, it might have been necessary to resort to certiorari; but the board whose action we are now considering, was not, either- in fact or in effect, a judicial body, or- invested with the. semblance of judicial authority, and their proceedings were not the subject of certiorari.

      Wm. O. Whitney, counsel, to corporation, with D. J. Bean, of counsel for respondents.:
    I. The pow;er of the commissioners to, discharge the plaintiff is not com. tested; but it is contended that their order, that he be retired from, service is. not a, discharge. The. defendants argue 'that retiring the plaintiff from service was an effectual discharge. The retiring was absolute, unconditional, and unlimited. The plaintiff was thereby relieved the control and discipline of the board of commissioners, and could no longer be commanded or assigned to duty by them. He ceased to be a fireman, and could no longer exercise authority in the department. He was at liberty to engage in other employment, and was completely released from any claim of the fire department to his time or service. No element of discharge was wanting when he was unconditionally retired from service.
    II. The plaintiff, not having performed service, cannot recover the "compensation attached to the office. Title to the office alone will not sustain a claim for the salary, "even when the officer has been excluded by the unauthorized or Wrongful act of the commissioners. The act of the commissioners may have resulted in preventing the plaintiff from enjoying the opportunity to earn the salary of a fireman ; for such a wrong, the law will supply an appropriate remedy against the wrongdoer. But the city is only "obliged to pay salaries when, having possession of the office, the officer has performed such service as was necessary. No contract exists between the plaintiff and the defendants, by Which the defendants are obliged to pay the salary, whether the plaintiff exercises the duties of the office or not. The court of appeals has already had occasion to examine the question as to the right of a public officer to draw from the public either salary or fees, When no services have actually been rendered. In the first of these cases, Judge Ruggles, delivering the opinion of the court, expressed himself as follows: “The right to the compensation arose out of the ren'dition of the services, and not out of any contract between 'the government and the officer that the services shall be rendered by him” (Connor v. Mayor, &c., 1 Seld. 285). This opinion was recognized and reaffirmed in the later case of Smith v. Mayor, 37 N. Y. 518. See also McVeany v. Mayor, 1 Hun, 37.
   By the Court.—Freedman, J.

The board of fire commissioners, as organized by law at the time of the action complained of by plaintiff,- was not constituted as the present board is. The present board has no power to make removals except in the manner prescribed by the charter of 1873 ; but the former board, it is conceded, had power to appoint and- remove firemen at pleasure (Laws 1870, ch. 137, § 85).

In 1872 the plaintiff was a foreman of a fire engine company in the fire department of the city of Mew York, at a salary of $1,500 per annum. As such he was, during said year, tried upon a certain charge, found guilty, and sentenced by the board of commissioners to be retired from active service in the department on an annuity of $15P.

The board may have had no power to grant the annuity, but from the fact that one was granted, it does not follow that the whole of the sentence was illegal. The unobjectionable part of it operated as a discharge and relieved the plaintiff from the control and discipline of the board. He could no longer exercise authority in .the department, and he could no longer be commanded or assigned to duty as a fireman. He was at liberty to engage in other employment, and completely released from any claim of the fire department to his time or services. And as matter of fact he subsequently never was called upon to perform any duty, or recognized as a fireman.

This being so, and the plaintiff not having performed the duties of the office since that time, it is difficult to perceive how he can recover the compensation which would have attached if he had performed the duties. The corporation of the city of Mew York is only liable to pay such compensation when the officer, having possession of the office, has performed the necessary services. No contract exists between the plaintiff and the corporation, by which the latter is bound to pay the salary irrespective of the question whether the plaintiff exercises the duties of the office or not. In a case like the present, the right to the salary arises out of the rendition of services, and not out of any contract between the government and the officer that the services shall be rendered by him (Conner v. Mayor, &c., 1 Seld. 285; Smith v. Mayor, &c., 37 N. Y. 518 ; McVeany v. Mayor, &c., 1 Hun, 35).

The order setting aside the verdict and ordering a new trial must be affirmed with costs.

Speer, J., concurred.

       Note. Compare Dolan v. Mayor, &c., of New York, 68 N. Y. 274.


text:
    CHRISTIAN F. HOLTZ, Plaintiff and Respondent, v. HENRY G. SCHMIDT and EMIL CUNTZ, Defendants and Appellants.
    New trial.
    1. Perjury of witness called on behalf of successful party, motion for new trial.
    (a) General rule as to.

    1. Conviction for perjury necessary before a motion for a new trial will be granted on the ground of perjury of a witness.

      (a) Exception to rule, what does not form.
    1. Voluntary confession of Ms perjury, and an affidavit of the witness to that effect, does not,
    ESPECIALLY
    where one of the unsuccessful parties made admissions on the trial to about the same effect as the testimony of the witness sought to be falsified.

      Before SPEinand Freedman, JJ.

      Decided November 4, 1878.
    Appeal by defendants, from an order denying defendants’ motion for a new trial made on a case, exceptions and affidavits.
    The motion was heard before the Hon. John ■Sedgwick, who delivered the following opinion :
    “ Sedgwick, J. The case of Fabriliris v. Cook (3 Burr. 1771), does not support the present application. In that case many circumstances were shown tó have been falsely sworn to, and the decision may have been placed as well upon surprise as any ground ; at.any rate it was not placed upon the ground that a witness on the trial made an -affidavit that his testimony was false. The utmost that is certain in such a case is that he is not a credible witness when he makes the affidavit. In this case one circumstance peculiarly enforces the general rule, that there must have been a conviction before a motion for a new trial on the ground of perjury will be granted. It is apparent that the affiant is not to be proceeded against for his alleged perjury, and he makes the affidavit with the belief that he will not be prosecuted by the defendants. So much the easier for him to furnish the affidavit. The motion is denied with costs.”
    Tracy, Olmsted, & Tracy, attorneys, and Dwight Ü. Olmsted, of counsel, for appellant, on motion for new trial.
    I. The conviction of a witness of perjury on an indictment, is not a necessary preliminary to a motion for a new trial on that ground (Fabrilius v. Cock, 3 Burr. 1771). In Williams vh New Trials, the learned editor, after citing the cases in which it has been held that a conviction was necessary, remarks : “Probably, however, the practice on this subject is much less rigid than these cases would indicate ” (Hilliard on New Trials, 505, § 23 [2d ed.]). “New trials have been frequently granted where there has been strong reason to suspect that perjury has been committed” (Weston, J., l Me.[l Greenl.] 322).
    II. The confession of perjury by a witness should induce the court to consider favorably a motion for a new trial; especially as the granting of the motion is a matter of discretion with the court "(Donley v. Graham, 48 N. Y. [3 Sick.] 658; Tyler v. Hornbeck, 48 Barb. 197).

      Charles "Wehle, attorney, and of counsel, for respondent, among other things, urged:—I.
    The legal presumptions are, that the statement given by the witness in his affidavit, rather than the testimony given in open court, was false (Steinbach v. Columbian Ins. Co., 2 Cai. 129; Jackson v. Bowen, 3 Johns. Ch. [2d ed.] 596).
   By the Court.—Freedman, J.

The motion for a new trial, on the case and exceptions, and certain affidavits imputing perjury to one of plaintiff’s witnesses, was properly denied for the reasons assigned by the learned judge below. Upon the case as made, and especially in view of the admissions made at the trial by the defendant Schmidt, which were to about the same effect as the testimony of the witness which is now sought to be falsified by a mere affidavit, the legal inference is, that the subsequent statement in the affidavit of the witness rather than his testimony given at the trial, is false.

The order appealed from should be affirmed, with costs.

Speir, J., concurred.


text:
    WILLIAM K. HINMAN, et al., Plaintiffs and Appellants, v. STEPHEN O. RYDER, Defendant and Respondent.
    I. Extra allowance.
    1. What not sufficient ground for.

      . (a) Partnership accounting and division of assets.
    1. The bare fact that an action is brought for an accounting between partners, and a division of the partnership assets, is no ground for the granting of an extra allowance. In such case the element that the action is difficult and extraordinary, must exist to authorize an allowance.

      (d) Difficult and extraordinary.
    1. What will not so charracterize such, an action as to justify an extra allowance.

    1. Where, if the action is difficult and extraordinary at all, it is so by reason of issues joined on charges of misconduct and bad faith made by plaintiff against defendant; and those charges are subsequently abandoned, an extra allowance cannot be granted to the plaintiff.
    Before Speir and Freedman, JJ.

      Decided November 4, 1878.
    Appeal by plaintiffs from an order of the special term denying their motion for an allowance under section 309 of the code.
    The order recited as the reason for the denial' “ That the court has not the power to grant an allowance under said section in such a case as that presented by the pleadings in this action.” -

      Brown & Pease, for appellants.

      John Henry Hull, for-respondent.
   By the Court.—Freedman, J.

The action, was brought by the plaintiffs as the special partners, against the defendant as the general partner, of a partnership, for an accounting between them, and the division of the partnership property according to their respective rights. The partnership was a limited one, under the laws of the State of New York, and at the time of the commencement of the action it had expired by its own limitation.

The complaint, in addition to the averments usual in such cases, contained charges of misconduct and bad faith against the defendant as general partner, which provoked an answer and raised issues collateral to the main question, but on the accounting it appeared that the capital contributed by the plaintiffs as special partners remained unimpaired, that each of them had already received his full share of the profits to which he was entitled, and that the actual profits had been more than sufficient to pay them. It was, therefore, stipulated between the parties that the plaintiffs should claim no personal judgment against the defendant, and. that the defendant should claim no personal judgment against the plaintiffs, and the whole litigation finally resulted in an adjudication that out of the remaining partnership property each of the plaintiffs should receive and be paid the capital specially contributed by him respectively, that the defendant was entitled to whatever might remain thereafter, and that neither of the partners should be allowed interest on the accounting.

Under these circumstances the plaintiffs should not have an extra allowance in addition to the ordinary costs of the action, which were awarded to them. If the action was a difficult and extraordinary one within the meaning of section 309 of the code, it was only so for a time by reason of the advancement by the plaintiffs of claims which were subsequently withdrawn. But so far as the simple division of the partnership property was concerned, the defendant had as much right to bring the action as the plaintiffs possessed, and hence the bare fact that the action was commenced by the plaintiffs, affords no just reason why they should be rewarded with a special allowance out of the common fund. An action for the partition of land stands upon a different footing, and the allowance is regulated by a special provision.

The plaintiffs not being entitled to ah allowance upon the facts of the casé, it is hot necessary to determine the precise power of the court upon this point and in this class of cases. The decision below being right, thó reason assigned for it is immaterial.

The order should be affirmed with costs.

Speir, J., concurred.


text:
    ANDREW J. PERRY, Receiver, &c., Plaintiff and Respondent, v. HENRY VOLKENING, LUDWIG G. GLOECKNER, and others, Defendants and Appellants.
    I. Iryimction.

    1. Phima facie case, fob, what is not.

      (a) The preliminary injunction was obtained on the ground that an assignment made by Volkening was fraudulent as against -certain creditors represented by the recéiver. The fraudulent character of thfe assignment was sworn to on information and belief, no facts were stated from which the conclu-' sion could be drawn and the sources of information were not given ; and for all that appeared the judgment under which the receiver was appointed might have been recovered on cause of action which aróse subsequent 'to the assignment, not on contract. In addition to this there were two affidavits read on behalf of the defendants as to the bonafides of the assignment.

      Held,

    that a prima fade case for an injunction had not been-presented.
    Before.Seeir and Freedman, JJ.

      Decided November 4, 1878.
    On April 8, 1876, Henry Yolkening deposited in the New York Life Insurance & Trust Company, $4,000, to the credit of a certain action to which he was defendant,, as. additional security on an appeal, taken by him.
    The plaintiff in this action on February 9, 1878, obtained a preliminary injunction restraining defendants from demanding or receiving said money, and an order requiring them to show cause why they and all persons on their behalf, should not be restrained and enjoined-from demanding or receiving the said moneys during the pendency of this action, and why said Yolkening should not make an assignment of the same, or so much thereof as might be required to pay the judgments upon which the plaintiff - herein was appointed as receiver ; and for such other or further order as is proper:
    On the return of the order to show cause, affidavits were read to the effect that said Yolkening, on June 3¿ 1876, assigned said sum to defendant, Ludwig Gr. G-loeckner, to secure a balance of $7,500 due him.
    At special term an order was made “ that the said' order of February 9, 1878, granted on the application of the plaintiff, be continued in full force and effect,’7' and denying a motion made by defendant’s to vacate that order.
    This appeal is from the special term order.

      Nelson Smith, attorney, and of counsel, for appellant.
    I. Fraud must be proved and cannot be presumed. This is elementary, and while it does not require citation of authority, we refer the court to Wharton orb Evidence, §§ 366, 1248, 1249, where the authorities are collected. ■
    II. The belief or opinion or impression of a witness is no evidence of a fact (Butler v. Benson, 1 Barb. 526 ; Morehouse v. Mathews, 2 N. Y. 514; Teerpenning v. Corn Exchange Insurance Co., 43 Id. 279; Brewer v. Tucker, 13 Abb. Pr. 76 ; O’Reilly v. Freel, 37 How. Pr. 272; Exp. Robinson, 21 Wend. 672).
    III. While there is no proof, fact or circumstance on the part of the plaintiff to show that the assignment from "Volkening to Gloeckner, of June 3, 1876, of his right to the §4,000 deposited in the trust company was fraudulent; there is proof, by the affidavits of both Volkening and Gloeckner, showing that that assignment was made in consideration of an indebtedness of §7,500 from Volkening to Gloeckner.
    IV. Upon the proof as it stands, the judgments under which the plaintiff was1 appointed receiver were recovered June 27, 1876 ; there is no evidence to show that the debts upon which such judgments were recovered had been contracted on June 3, 1876, at the time of the assignment by Volkening to Gloeckner. It does not appear therefore that it is possible for Volkening to have intended any fraud upon such judgment creditors.
    V. Subsequent creditors cannot impeach a prior assignment or transfer, unless it be shown that it was made with intent to defraud them, but we regard it as unnecessary to discuss these questions here, as there is no evidence that the assignment in question was made' to defraud anybody.

      Edwin K. Dickerman, attorney, and D. J. Hew-land, of counsel, for respondent.
    The injunction order was properly granted. All the reasons for an injunction ever being needed were here. The plaintiff showed a title prima facie to the property—no matter that others disputed the title—an action only could settle that. The case was urgent; the restraining power of the court was necessary, and necessary to be allowed at once, or the property in dispute—the subject of this action would have passed beyond reach, and the action—would have become fruitless. And it is submitted further, that the law allows the receiver in such a case as this, where it is admitted by the papers that the defendant, Volkening, has under his control this money (or that the same is on deposit on his behalf), which is the subject of this action, and which, as he claims, belongs to another party (Gfloeckner), to have an order that it be paid into, or deposited in court, with or without security, subject to the further direction of the court (New Code, § 717; People ex rel. Pease v. King, 9 How. Pr. 101). And the order made is quite equivalent to an order to pay moneys into court, for the papers show the moneys were already in court, or under its order, and this order was simply to allow them to remain on deposit where they were, so far as being interfered with by said defendants during the pendency of this action. •
   By the Court.—Freedman, J.

The preliminary injunction was continued upon the bare allegation contained in the affidavit of the receiver, that he was informed and believed that Gloeckner’s claim, under the assignment made to him by Volkening, was fraudulent against certain creditors of Volkening, which he, as receiver, represented. Ho facts were stated from which this conclusion could be drawn, nor were’ the sources of his information, given.

The defendants, on the other hand, showed by two affidavits and in detail, that, the assignment was bona-, fide, and made for- a good and, valid consideration.

It. was also shown that the assignment was made June 3, 1876j that the judgments, against Volkening Were recovered in the marine court, June 22, 1876, and that plaintiff was appointed receiver October 10, 1876.,

But there was no allegation or proof that on June, 3, 1876, the causes of action, existed, for which the-' judgments were subsequently recovered, nor did, the? grounds of the recovery appear. For all that appeared the, judgments might have been recovered upon, causes,of action which arose subsequent to the. date of the assignment, and- not upon contract.

Upon the. whole case, therefore, the plaintiff had. failed to. present a prima facie case entitling him to an injunction on the ground of fraud against creditors, and in the exercise of a sound discretion the motion;, for. the-continuance of the injunction during the pern dency of the action, should, have- been denied.

The- soundness of the views here expressed has, i since the argument of the present appeal, been confirmed upon- the trial, of. the issues, which, resulted in the final establishment of the good faith and validity, of the-,assignment.

The order should be reversed, with costs.

Speir, J., concurred.


text:
    ELIZABETH SWEENEY, Plaintiff and Respondent, v. ROBERT PRIOR, Defendant and Appellant.
    I. Payment.—Presumption of.

    1. Transfer of property.

      (a) When presumed to he given in pa/yment.

    1. Only when made at the time of the creation of the indebtedness.
    (5) When presumed not to he given in payment.

      %. When the transfer is made after the creation of the indebtedness.
    Before Speir and Freedman, JJ.

      Decided November 4, 1878.
    The action was brought to recover a balance of $597, for goods sold and delivered, and for certain disbursements.
    Defendant denied the claim, and alleged:
    That the goods were sold to one Guilfoyle, who had a contract with the corporation of the city of New York for the improvement of One hundred and fifty-second street; that Guilfoyle being indebted to defendant, and desiring loans for the prosecution of the work, assigned said contract to defendant as security only ; that the payments made by defendant to plaintiff were made on behalf of Guilfoyle, of all which facts plaintiff had knowledge ; and that by an assignment of thirty per cent, of said contract, defendant on behalf of Guilfoyle paid plaintiff in full.
    Upon the trial, testimony was given on both sides, and defendant’s motion for a non-suit and the direction of a verdict in his favor were denied, to which rulings defendant excepted.

      In substantiation of defendant’s version, and to show that credit was giren to Guilfoyle, the defendant introduced a note made by Guilfoyle to defendant’s order and indorsed by defendant to the plaintiff, ■ for the sum of $853:93, and also a receipt by plaintiff acknowledging the receipt from defendant of the sum of $721.40, “for and on account of stones furnished to William Guilfoyle, for One hundred and fifty-second street.”
    The plaintiff thereupon showed, in explanation, that said note and receipt were given in the form described at the suggestion of the defendant, in order to show the destination of the goods.
    The issues were submitted to the jury, who found for the plaintiff.
    Defendant moved for a new trial, on the minutes generally, which motion was denied, and defendant excepted.
    Judgment was thereupon entered upon the verdict, and the defendant appealed both from the judgment and order.

      Charles W. Dayton, for appellant.

      Rufus L. Scott, for respondent.
   By the Court.—Freedman, J.

Upon the question whether the goods in suit were sold by plaintiff to Guilfoyle or to the defendant, the evidence was sufficient to carry the case to the jury, and consequently it would have been error to dismiss the complaint, or to direct a verdict for the defendant. The receipt and note were open to explanation (Buswell v. Poineer, 37 N. Y. 312; Ryan v. Ward, 48 Id. 204; Trull v. Barkley, 11 Hun, 644; Churchill v. Bradley, 43 N. Y. Superior Ct. R. [11 J. & S.] 170).

ISTo complaint is made of the manner in which the question to whom the sale was made was left to the jury, and none of the exceptions presented by the record touch this point. The verdict must therefore be treated as conclusive upon this branch of the case.

The remaining questions arise upon the assignment of thirty per cent, of the moneys to be received under the contract, which the defendant as assignee of the contract executed and delivered to the plaintiff. Plaintiff claimed to have taken the said assignment as collateral security only, while the defendant insisted that it was taken in payment. This question was also left to the jury, and they were instructed to render a verdict for the defendant, in case they found that the plaintiff took it as payment. Of this disposition, the defendant has no right to complain; for even if the assignment be treated exclusively as a transfer of the obligation of a third person, which is the theory most favorable to the defendant, it could only be deemed to have been accepted in payment and satisfaction, if it had been given at the time of the sale of the goods (Whitbeck v. Van Ness, 11 Johns. Ch. 409 ; Breed v. Cook, 15 Id. 241).

But as there was no dispute as to the fact that the assignment was made after the sale, the presumption was that it was not taken in payment and satisfaction of the precedent debt, and the onus of establishing that by the agreement of the parties it was so received, was upon the defendant (Noel v. Murray, 13 N. Y. 167; Vail v. Forster, 4 Id. 312; Gibson v. Tobey, 46 Id. 637; Turner v. Bank of Fox Lake, 3 Keyes, 425 ; Flower v. Lance, 59 N. Y. 603 [608]).

The defendant failed to show any such agreement, and the testimony on the part of the plaintiff showed that the assignment was received as collateral security merely. Under these circumstances, the defendant was not entitled to have the jury instructed that the acceptance of 'the assignment was a payment pro tamo, unless specially agreed otherwise, and the submission of the whole question to the jury with the express instruction that if they found an absolute assignment, they were bound for that reason alone to render a verdict for the defendant, was certainly all, if nót more, which the defendant could ask.

The judgment and order should be affirmed with costs.

Speib, J., concurred.