author: Moncrief, J.

text:
    Peter R. Strong, plaintiff and respondent vs. Mart E. Strong, defendant and appellant.
    1. A motion to set aside a proceeding for irregularity must be made at the earliest period, and before the moving party has taken another step in the cause. An order will not be vacated after it has been acquiesced in for eight months, several steps have been taken, in the cause, and the time for appealing has expired.
    2. Issues made by the pleadings themselves in an action for an absolute divorce, and therefore not requiring to be settled, will not be expunged, on motion.

      3. A complaint, in such an action, which alleges the commission of the offense “ within five years ” next before the commencement of the action, is not fatally defective, but satisfies all the statute requires, in that respect.
    (Before Moncribp, Barbour and Gaevoi, JJ.)
    Heard June, 1866.
    Appeal by the defendant, in an action for a divorce a vinculo, from an order made at a special term, denying a motion ' to vacate the order settling the issues on the original pleadings, on the ground that those issues were improperly framed within the decision of this court, reported 3 Rob. 719.

      John McKeon, for the appellant.

      Henry A. Oram, for the respondent.
   By the Court,

Moncrief, J.

There are several reasons why the order should be affirmed.

First. A motion to set aside a proceeding for irregularity must be made promptly, and before the moving party takes another step in the cause. (Persse & Brooks Paper Works v. Willet, 14 Abb. Pr. 119. Low v. Graydon, Id. 443. Lawrence v. Jones, 15 id. 110.) There was an interval of eight months between the entry of fhe order complained of, and the motion to set it aside. Many steps have been taken on the part of the defendant, and it is said the issues have been upon the day calendar during this preriod, and reserved ready- for trial, on her behalf.

Second. There was no irregularity in the order sought to be vacated. The ground suggested did not exist at the time it was entered.

Third. The order appears to have been made after consultation and full deliberation by eminent counsel on behalf of the respective parties, and there is no intimation that either gentleman was not as well informed upon the law, practice and forms in such cases, as they could have been, upon reading the opinions delivered at the general term, in May last.

Fourth. The order has been acquiesced in for eight months, and the time to appeal has expired. The court cannot extend the time to appeal. (Code, § 405.)

Fifth. The issues sought to he expunged were made by the pleadings, and did not require to be settled. Issues of fact arise upon material allegations in the complaint, controverted by the answer.

Sixth. The issue tendered upon .the supplemental answer (if correctly set forth in the appeal papers,) was properly disallowed, for the reason that the answer contained no such allegation.

Seventh. A complaint is not fatally defective which alleges the commission of the offense within five years ” next before the commencement of the action. This is all the statute requires, in that regard. (2 R. S. 145, § 55, subd. 3.) The defendant may take issue upon such an averment, and proceed to trial, or he may require it to be made more definite and certain. (Code, § 160.) It was the practice, in the court of chancery, to have the charges of adultery made more explicit, at the time a feigned issue was applied for; and the court directed issues to be so framed that neither party could take undue advantage of the other, at the trial. (Wood v. Wood, 2 Paige, 108.) The Code provides protection quite as liberally. (§§ 173, 174, 390, 391. 14 Abb. Pr. 36. 7 How. 294. 3 Abb. Pr. 36.) Assuming a general charge to be true, the delinquent cannot desire to have it made more specific, and if the accusation be .false, no amount of critical nicety of variation can be useful to the person wrongfully complained of. The skill of the advocate must develops the perjury by cross-examination.

Lastly. The grievance alleged on behalf of the defendant is groundless in fact. The complaint tendered the issues, which were settled by the order of the 8th of October, 1864. The answer of the defendant did not tender the issue which was disallowed. The defendant, on the 31st of January, 1865, did not ask to have all the issues re-framed, or any one reformed or expunged, but simply asked for those created by her supplemental answer, called “ additional ” issues. The defendant, feeling herself aggrieved by the refusal to allow a proposed issue, invoked the power of the court by appeal, and was advised by the general term that the order of disallowance was correctly made. If she had had proper ground of complaint against issues framed by herself in October previous, the same tribunal was open to redress error, if any was com-’ mitted.

The order must he affirmed.

Barbour, J. dissented.


source: Caselaw Access Project

author: Barbour, J.

license: Public Domain

text:
    William H. Springsteen, plaintiff and appellant, vs. John Powers, defendant and respondent.
    1. An order to show cause within less than eight days, cannot, properly, be made, unless the papers upon which the same is founded show some reason for shortening the regular and usual time for notices.

      2. But where the affidavits, on which an order to show cause was granted, proved that the plaintiff not only threatened to take possession of premises claimed by the defendant, but had actually begun to dispossess him, and was continuing to disturb and annoy him in such possession; Held that this was an injury which the defendant was entitled to stop, if ever, at once, by means of an injunction. And that the reason for making the order returnable in less than eight days was therefore sufficiently apparent upon the moving papers.
    3. Since the adoption of the Code of Procedure, the courts of this state have no authority to grant affirmatively an injunction to a defendant, although they may perhaps make it a condition to relief granted to the plaintiff. The Code confers all the powers possessed by courts, to award an injunction as remedial relief during the pendency of a suit; and confines the granting of such an injunction to a plaintiff, and does not extend to a defendant.
    (Before Moncrief, Baeboue and Garvin, JJ.)
    Heard June, 1865.
    Appeal from an order made at a special term, founded upon the pleadings and affidavits, enjoining and restraining the plaintiff, pending the action, from all attempts or efforts to acquire or take possession of certain premises in the possession of the defendant.

      I. T. Williams, for the appellant.

      John Graham, for' the respondent.
   By the Court,

Barbour, J.

This is an action brought by a person claiming possession of certain premises, as tenant, against his alleged landlord, to obtain, among other things, a perpetual injunction restraining the latter from taking any proceedings to dispossess him. The defendant’s answer alleges, inter alios, that he has already obtained a judgment, before the proper district court, directing the plaintiff to be dispossessed, and has thereunder himself been put into possession of a portion of the premises, and demands judgment that the complaint be dismissed. , Ho injunction, or other affirmative relief, is prayed for in the answer. After issue joined, the defendant, on an order to show cause, obtained from one of the justices of this court, at special term, an order, founded upon the pleadings and affidavits, enjoining and restraining the plaintiff, pending the action, “ from all attempts or efforts, of any and every description, to acquire or take possession ” of such parts of the premises as were then in the actual or constructive possession of the defendant. From that order the plaintiff appealed to the general term.

The counsel for the appellant makes two principal points here: First, that the order to show cause was irregular, inasmuch as no special reason appeared on the papers upon which it was granted for a notice of less than eight days, as required by the thirty-ninth rule of the courts ; and, secondly, that an injunction pendente lite will not be granted to a defendant in an action.

As a question of law, the defendant's counsel was undoubtedly right in assuming that an order to show cause within less than eight days, cannot properly be made, unless the papers upon which the same is founded show a reason for shortening the regular and usual tipie for notices, (pode, §§ 402, 470;) but the facts are against him. The affidavits on which the order to show cause was granted, prove, uncontradicted, that the plaintiff not only threatened to take possession of the premises-claimed by the defendant, but had actually begun to dispossess him, and was continuing to disturb and annoy him in such possession. This was an injury which the defendant was entitled to prevent or stop at once, if at all, by means of the injunction of the court. The reason for making the order returnable within eight days, was, therefore, apparent upon the papers presented.

The second point of the appellant, however, is well taken. Justice Story says, in his Treatise upon Equity Jurisprudence: “ In the early course of chancery proceedings, injunctions to quiet the possession of the parties before the hearing were indiscriminately granted to either party, plaintiff or defendant, in cases where corporeal hereditaments were the subject of the suit.” (Story’s Eq. Jur. § 869.) But he adds, (in § 170 :) £c The practice of granting injunctions of this sort has, it is • said, become obsolete in England, if not .altogether, at least in so great a degree that there are few instances of it in modern times.” Within the last century, certainly, injunctions there, as well as with us, have, as a general rule, been allowed to a plaintiff only, and then always upon a bill containing a prayer for that remedy. (Id. §§ 862, 863. Eden on Inj. 70, 71, 72.) An exception to the rule last mentioned is found in a decision of Chancellor Walworth, in the Matter of Hemiup, (2 Paige, 316,) where an injunction was granted on a petition without bill; but in that case the petitioner was treated throughout substantially as a complainant, and the persons sought to be restrained as defendants, in the proceeding. Other similar exceptions will be found collated in Eden on Injunctions, pp. 70, 71, 72. But no case has been cited or found, in which an injunction was granted in this state, under the old practice, to a defendant, except upon appointing a receiver, or awarding an injunction to a plaintiff, and as a condition thereof.

But, whatever may have been the practice in this regard under the former system, we are of opinion that the courts of this state have no authority, since the adoption of the Code of Procedure, to grant an injunction to a defendant, except, perhaps, as a condition to some relief given to the plaintiff. For, formerly, the power of the court in awarding injunctions during the progress of the suit, was rendered effective only by its writ, and the Code has wholly abolished the writ of injunction. (§ 218.) We must look to the Code, therefore, for all the power which the courts possess to award an injunction as remedial relief during the controversy, and that simply authorizes such an injunction to be granted, by order, to a plaintiff, and not to a defendant.. (Id. § 219.)

Having arrived at this conclusion, it is unnecessary to consider whether the order, appearing, as it does, by its terms, to enjoin the plaintiff from further proceeding with the suit itself, is not too broad.

The order appealed from should be vacated and set aside, with costs.


author: Monell, J.

text:
    James Hazlett et al. plaintiffs, vs. James Gill, defendant.
    1. An order of arrest, in an action to recover damages for an alleged fraudulent represntation made by the defendant respecting the pecuniary responsibility of a firm, will not be vacated upon affidavits denying not the fraud complained of, but only an intention of the defendant to leave the state.
    2. Such an action is one of those designated by the amendment of section 179 of the Code, in 1863, whereby a defendant may be arrested irrespective of his residence, or of an intention to leave the state.
    3. It is no longer necessary, in actions brought to recover damages for fraud or deceit, to aver that the defendant is a non-resident, or is about to depart from the state. Upon proof merely of the fraud, the defendant may be arrested in the action.
    (Before Mohell, J. at special term,
    October, 1865.)
    This action was brought to recover damages, for an alleged false and fraudulent representation, made by the defendant, respecting the pecuniary responsibility of the firm of Gill & Co. The defendant was not a member of the firm. Hpon affidavits alleging the making of the false representations, and that the defendant was about to leave the state, an order of arrest was granted, by one of the justices of this court, and the defendant was arrested and held to bail. A motion was made to vacate the order of arrest, on affidavits denying that the defendant was about or had any intention to leave the state, or to put himself beyond the reach of the process of the court.

      A. B. JDyett, for the motion,

      James M. Smith, opposed.
   Monell, J.

The sole ground relied upon in support of this motion is, that the alleged design of the defendant, to depart from the state, is sufficiently negatived by the moving affidavits. There is no denial of the fraud complained of, but merely a denial of any intention to leave the state.

The defendant’s counsel supposed that the order of arrest had been granted under the first subdivision of section 179 of the Code. Under that subdivision, in actions for the recovery of damages, on a cause of action hot arising out of contract, it must appear that the defendant is not a resident of the state or is about to depart therefrom. In a case similar to this, decided in this court in 1859, (Smith v. Corbierre, 3 Bosw. 634,) it was held that the order could not be granted unless one or other of those facts appeared. When that case was decided, a defendant could not be arrested for a fraud, except under the first subdivision of the 179th section, and then only upon proof of the non-residence or intended departure of the defendant from the state.

The legislature, in 1863, amended the 179 th section, by adding to the 4th subdivision the words, “ or, when the action is brought to recover damages for fraud or deceits This amendment virtually repealed that part of the first subdivision, relating to causes of action not arising out of contract, and designates a class of actions wherein a defendant may be arrested irrespective of his residence or of an intention to leave the state.

In this case the. fraud complained of, is the very gist of the action. The plaintiffs cannot recover, except upon establishing the falsity of the representations alleged to have been made ; and the recovery must be damages for the fraud. The plaintiffs’ action, therefore, is one of those designated in the amendment; for a false representation concerning the credit of another, by which a person is induced to part with his property, is a gross fraud and deceit.

It is now no longer necessary, in this class of actions, to aver that the defendant is a non-resident, or is about to depart from the state. Upon proof merely of the fraud, the defendant may be arrested in the action.

The motion must be denied, with $10 costs to abide the event, with leave, however, to review the motion on affidavits disproving the fraud.


text:
    Samuel B. Potter et al. plaintiffs vs. James R. Carreras, defendant.
    An answer stricken out, on motion, as sham, is the same thing as if no answer had been put in. When the time to answer has expired the plaintiff can enter judgment as upon the defendant’s default. No order for judgment being necessary or proper, although one is entered, the plaintiff should appeal from the order, and not from the judgment.

    (Before Monell and Gakvin, JJ.)
    Heard October 9, 1865.
    In this case a motion was made at special term, to strike out the defendant’s answer, as sham. The motion was granted, and an order entered, wherein it was ordered that the answer of the defendant be stricken out as false and sham, and that judgment be rendered for the plaintiff. Judgment was accordingly entered, reciting that the answer of the defendant had been stricken out as false and sham, and ordering judgment for the plaintiffs for $3046.85.
    The defendant appealed from the judgment. Eo appeal was taken from the. order striking out the answer.

      A. H. Wagner, for the appellant.

      BJ. W.. Chester, for the respondents.
   By the Court,

Monell, J.

The practice in this case is so clearly irregular, that we cannot have a moment’s hesitation in dismissing the appeal.

The motion was to strike out the answer, and it was stricken out; whereupon, if the time to answer had expired, the plaintiffs could enter judgment, as upon the default of the defendant. Ko order for judgment, upon striking out the answer, was proper or necessary. The answer being stricken out, it was as if no answer had been put in. Ko appeal lies from a judgment by default.

The proper practice was to appeal from the order, not from the judgment,- The case of Briggs v. Bergen, (23 N. Y. Rep. 162,) is conclusive.

The judgment must therefore be affirmed.


author: Robertson, Ch. J.

text:
    Robert D. Anderson, et al. plaintiffs, vs. Anastasius Nicholas, defendant.
    1. The entry of satisfaction of a judgment hy the clerk, upon filing a satisfaction piece, signed and acknowledged by the plaintiff, and. therefore fully warranting such entry, may be disregarded by a plaintiff when such satisfaction piece was executed upon a condition which had not been performed, or was improperly obtained and filed; and he may issue execution upon his judgment as unsatisfied.
    2. A judgment does not, by the filing of the satisfaction piece and canceling the docket under such circumstances, so far lose its efficacy, that no execution can be issued upon it. If the plaintiff chooses to disregard the entry of satisfaction and to issue an .execution, the writ will be deemed regularly issued.
    3. The proper and regular course, in such á case, however, is to move to take the satisfaction piece off the files, cancel the entry of satisfaction, and-restore the docket, before issuing execution.
    (Before Robertsok, Ch. J, at special term,
    November 1, 1865.)

      These were two motions, made together, on behalf of the defendant, one for leave to renew a former motion made on his behalf to set aside a judgment obtained by the plaintiff against him in this court, and an affirmance of such judgment by the Court of Appeals made the judgment of this court,- and for general relief, and if such leave should he granted, the other was to set aside such judgments or obtain other relief. Such motions were partially heard upon affidavits before one of the justices of this court, by whom an order of reference was made directing the referee named therein to take proofs whether the judgment in question had been lawfully discharged, and report the same with his opinion thereon. In the same order the judgment entered upon the remittitur from the Court of Appeals was opened, upon the payment by the defendant of the costs of this action in the Court of Appeals, upon the appeal from such judgment, ten dollars as costs of the motion and the costs of filing the remittitur from the Court of Appeals, and entering judgment of affirmance in this court in pursuance thereof. The plaintiff now moves to confirm such report, and opposes granting any relief to the defendant; the latter asks for a perpetual stay of execution under the first judgment, or such relief-as he may be entitled to.
    The judgment in question was entered in this court in July, 1859. From it an appeal was taken by the defendant to the Court of Appeals, during the pendency of which appeal, on the second of May, 1862, the plaintiff Anderson executed and acknowledged a satisfaction piece of such judgment; which, with a consent to discontinue Iris appeal, he placed in the hands of a Mr. Monroe to be delivered by him to the defendant upon certain specified conditions. By an instrument simultaneously delivered by Monroe to the plaintiff Anderson, signed by the former, after acknowledging the receipt of such papers, he stated that they were to remain in his hands until “ certain negotiations between ” the defendant “ and a Mr. Robinson for a musket contract from the government are closed ,” when he was to deliver such papers to the defendant and to deliver to the plaintiff proof of the dismissal of a suit against his son. The only negotiation between Mr. Robinson ■ and the defendant for a musket contract with the government, then being carried on, was one relating to the obtaining by the latter of an interest in a contract of that kind .owned by the former, and raising money to carry it out. Such negotiation was terminated by the. failure of the defendant to furnish security for the performance of such contract when demanded by Mr. Robinson. Mr. Monroe, however, at some time before the sixth of May, delivered such satisfaction piece to the defendant, who filed it on such last mentioned day, and the clerk of this court forthwith entered satisfaction upon the docket of such judgment.. After such entry of satisfaction, the defendant’s attorney on the appeal, was disbarred and died, and the defendant, in the presence of tne plaintiff’s attorney, signed 'and delivered to him a written appointment of the same Mr. Monroe as his attorney. Upon filing such appointment and proof of its execution, an order was made in the Court of Appeals authorizing the substitution ; at whose instance does not appear. Such judgment was subsequently affirmed by the Court of Appeals and a remittitur sent to this court, by which ’ such judgment of affirmance was made the judgment of this court. In such judgment of affirmance it is recited that the same was given upon hearing counsel for the appellant. Mr. Reynolds, the counsel named, deposed that he never was employed in such case, and never appeared therein, .and knew nothing of it, which affidavit is uncontradicted. The defendant also testified that he never employed Mr. Monroe as his attorney, which is also uncontradicted. Notice of hearing in the Court of Appeals, after such substitution, was served on Mr. Monroe only.
    The plaintiff’s attorney (Charles W. Prentiss, Esq.) claimed . to own the judgment in question by virtue of an oral assignment of it by the plaintiff Houghton, who is now deceased, and also to have a lien on it for his costs and counsel fees in this action and in other matters. He also insists and testified that notice was given to the defendant of such ownership and lien two years before the execution of such satisfaction piece, which was not contradicted. The only evidence of such oral assignment was the testimony of the attorney himself, as to the verbal agreement with the plaintiff Houghton. His testimony was objected to as being of conversations with a deceased assignor, but was received by the referee, subject to objection, which is now renewed.
    Evidence was given of a different condition for the delivery of the satisfaction piece from that stated in the writing signed • by Mr. Monroe. He himself stated that such satisfaction piece was to be delivered upon the defendant’s signing a contract with the plaintiff Anderson, relative to such government gun contract, which he did. That contract, however, is dated on the 28th of April previous. On the other hand, a Mr. Rathbone stated that the agreement was, that such satisfaction piece was not to be delivered to the defendant until he had completed the negotiation with Mr. Robinson, and guaranteed the raising of money sufficient to carry out the contract with the government. The plaintiff Anderson testified to the same effect.

      Charles C. Prentiss, for the plaintiff.

      B. Butler, for the defendant.
   Robertson, Ch. J.

The primary motion having virtually been permitted to be renewed by the order already made, two questions present themselves in this case: First. Was the satisfaction piece, upon which the entry of satisfaction was made, executed upon a condition which has been performed ? Second. If it has, had the plaintiff Anderson a right to satisfy such judgment without the consent of his attorney and assignee, Mr. Prentiss ? The reference to the referee being merely incidental to take testimony, and report his opinion, he had no power to decide any thing, and the whole question is open before me as res integra upon the affidavit and depositions taken before him. The weight of oral testimony, if at all admissible to determine the terms of the condition upon which the satisfaction piece was delivered, does not change those contained in the instrument signed ’ hy the depositary. There can he no doubt a negotiation with Mr. Robinson, who had the government contract, and not one with 'the plaintiff Anderson, was referred to, and that one is clearly identified. The only difficulty is in the phrase “ closing the negotiation,” which undoubtedly means, under the circumstances, closing it successfully by a contract. This never was done, and the satisfaction piece was, therefore, not properly delivered to the defendant, and the docket was improperly canceled.

But a difficulty occurs, from the fact that the docket of the judgment has been canceled, pursuant to the statute, (2 R. S. 362, §§ 22, 24.) hy the clerk, on the filing of a proper satisfaction piece, signed and duly acknowledged hy the party. This raises the question whether, by the filing of the satisfaction piece and canceling the docket, the judgment has so far lost all efficacy that no execution can be issued upon it. For it is very clear that, if so, no one has a right to abuse the process of the court hy issuing execution and taking the risk of being afterwards able to prove that the satisfaction piece was improperly obtained and filed, the proper and regular course being to move to take the satisfaction piece off the files, cancel the entry of satisfaction, and restore the docket. In the case of Taylor, v. Ranney, (4 Hill, 619,) it was held, that where an execution' has been returned satisfied, which is entered on the docket, an intermediate bona, fide purchaser from the defendant after such return, hut before a cancelation of such entry, was protected, and a distinction was made between such case and that of an entry of satisfaction on the docket, after the filing of a forged satisfaction piece, as in Lowndes v. Remsen, (7 Wend. 35.) In that case such a forged satisfaction piece being filed and satisfaction entered thereon upon the docket, it was held not to protect a sheriff from an action for an escape from imprisonment on an execution previously issued, because the satisfaction had not been entered on the roll. The 291st section of t'he Code leaves the existing provisions of law relating to executions and their incidents, and the powers and rights, as well as duties, of officers therein as they were before its enactment. And, although with some hesitation upon the question whether a satisfaction piece, actually signed by the party, and which complies with the statute in all respects, and, therefore, fully warrants the clerk in making the entry, can be disregarded, I feel bound to follow the decision in Lowndes v. Remsen, and consider the execution in question regularly issued, although a less orderly .proceeding than a prior application to take the satisfaction piece off the files, when the whole question could have been determined.

These views render it unnecessary to consider the question of the claim of'Mr. Prentiss, including that of notice by him to the defendant of it, before the satisfaction piece was given, as well as the mysterious employment of an attorney and counsel in the Court, of Appeals, without their knowledge, and the entry of an order of substitution in that court by the attorney of the opposite party, which are matters more proper for the cognizance of that court, on a motion to recall thfe remittitur and set aside the judgment of reversal.

The motion to set aside the execution, or interfere with the judgment originally entered, must be denied, without any other costs but the fees of the referee, to be taxed as disbursements.


author: Robertson, Oh. J.

text:
    Rufus K. McHarg, plaintiff, vs. Albert D. Eastman, defendant.
    1. The policy of the act of the legislature authorizing the formation of companies to carry on any mechanical business, {Laws of 1848, ch. 40,) and the prevention of injustice, require the liability of trustees under it to be confined to debts contracted by themselves.
    2. The 12th section of the statute must be construed as if it read “ for all debts then existing, (contracted by them,) and for all that shall be contracted (by them) before such report shall be made.
    3. A trustee of such a company can, therefore, only be made liable for debts contracted while he is trustee. A mere judgment is not such a debt. The case of Garrison v. jLowe, (17 TV". T. Mop. 458,) apparently to the contrary, commented on and explained.

      4. A complaint which does not state when the debt was contracted for which the action was brought, or that the defendant was a trustee when it was contracted, is defective.
    5. It will also be defective if it alleges that no report verified by the president mi secretary was filed, the statute making a verification by one of such officers sufficient.
    6. An allegation that the company has never filed any “ report, as by law required,” is altogether too vague and ambiguous to serve as a substitute for the language of the statute.
    7. The phrase “ the place where the business of the company is earned on,” in the statute, has a technical meaning, and refers to the place designated in the certificate of incorporation. That is required to designate the town and county in which the operations of the company are to be carried on. It is with the clerk of such county that the report is required to be filed. Hence, an allegation that it was not filed with the clerk of another county where the company might actually have carried on its business, amounts to nothing.
    (Before Robertson, Oh. J. at special term,
    November 7, 1865.)
    Demurrer to complaint.

      T. Saunders, for the plaintiff.

      L. Abbott, for the defendant.
   Robertson, Oh. J.

The language of the 12th section of the act authorizing the formation of companies to carry on any mechanical business, (Sess. Laws of N. Y. 1848, ch. 40,) is greatly modified by the construction given to it by the Court of Appeals in the case of Boughton v. Otis, (21 N. Y. Rep. 261.) Its generality, by which trustees of a company formed under such law, in case of their failure to publish in a certain designated manner, and file a certain report, verified in a certain way, within the first twenty-one days in January in each year, are made responsible for all debts then existing or which may be contracted before such report is filed, is restrained to the trustees who may have been guilty of such delinquency, and to debts contracted before they relinquish office; and such construction is given to the statute simply on the ground of the injustice of making persons liable for the acts of others over which they had no control. (Comstock, J. 263. Denio, J. 266.) Comstock, J. says: If persons sueceeding to office do not “promptly obey the requirement of the act, * * they very properly incur the hazard of the debts which they themselves, as trustees, contract. This hazard they may be quite willing to incur; but there is neither principle nor policy in making them responsible for the acts and defaults of their predecessors.”

If the principle and policy of the statute are to be'inquired into, as well as the justice of its provisions, for the purpose of construing them, even against the literal meaning of the language used, I think it clear that both such principle and justice require that trustees should not be made liable for debts not contracted by them or during their trusteeship. The same principle must be applicable to acts done before they became trustees, as to those after they relinquished it, and the language of Justice Comstock is directly in point as to the principle and policy of imposing responsibility for the acts of predecessors. The same learned judge says : “ The general policy of the act is immunity from personal liability ” upon certain conditions, and undoubtedly it was not intended to inflict upon a trustee who should fail properly to publish and file in proper time a proper report, the penalty of paying all debts of the company, whether he participated in creating them or knew of their existence or not. It is not necessary to inquire how constitutional an act would be that should inflict such a penalty, not only for acts not done by the party to be charged, but for an omission to procure other parties to join in a report, or verify it, such as the other trustees, or the president, or secretary of the company, or owner of the newspaper in which the report is to be published, over whom he has no control, or to state in such report debts of whose existence he may be ignorant; as the injustice of it is sufficient to warrant any construction of the statute, which should defeat it. Of course, if the policy of the statute is only immunity from personal liability,” upon condition, a trustee who makes the contract takes the risk of being able to fulfill, the condition, and he knows the existence of the debt. I feel satisfied therefore that in order to carry out the policy of the statute and prevent injustice, the liability of trustees must be confined to debts contracted by themselves so that such twelfth section of the statute must be construed as if it read “ for all debts then existing (contracted by them) and for all that shall be contracted (by them) before such re- ■ port shall be made. (Laws of 1848, p. 57, § 12.) The last ■parenthesis is virtually adopted in the case before cited. (Boughton v. Otis, ubi sup.)

The assumption in such case by one of the learned judges who delivered opinions therein, (Justice Comstock,) that, successive boards might be liable for the same debts where there ■ are successive failures to file reports (264) is rather adverse to the conclusion arrived at in the same case, that trustees who come into office after the 21st of January in any one year, in ease of a failure by their predecessors, the trustees then in office to file a report, are personally liable for such debts only, as are contracted while they are in office. The same learned judge seems to intimate (id.) that only the successors of delinquent trustees may and must file a report after 21st of January to escape, further liability, although the statute, by its terms, only authorizes and requires the filing of a report during the first three weeks of that month. His associate, (Judge Denio,) however, seems to consider that such permission extends only to the delinquent trustees themselves, (p. 265.) Nothing shows more clearly the absurdity of the provision when attempted to be construed literally, and the necessity of interpreting it according to the purpose of the statute and the ends of justice.

If the view I have given be correct, the defendant in this case could only be made liable for debts contracted while he was trustee. A mere judgment is not such a debt; nor does the case of Garrison v. Howe, (17 N. Y. Rep. 458,) establish it to be so. It is true it speaks of debts existing during a subsequent default, but that is to be understood of debts contracted by the same trustees and continuing for over a year. The complaint in this action does not state when the .debt was contracted for which the present action was brought, nor that the defendant was a trustee when it was contracted, and is therefore defectiye.

It is also defective in alleging that no report was filed veri- • fied by the president and secretary, when the statute makes a verification by one of such officers sufficient. The allegation that th¿ company have never filed any “ report as by law required,” is altogether too vague and ambiguous to act as a substitute.

The phrase the place where the business of the company is carried on,” in such statute, has a technical meaning, (Oswego Starch Factory v. Dolloway, 21 N. Y. Rep. 453, per Denio, J.) and refers to the place designated in the certificate of incorporation, which is required to designate the town and county in which the operations of such company are to be carried on. (§ 1.) It is with- the clerk of such county that the report is required to be filed. An allegation that it was not filed with the clerk of a county where the company might actually have carried on its business amounts to nothing; and that is the only allegation in the complaint in this action as to any filing of a report at all. '

For these reasons judgment must be given for the defendants, unless the plaintiff amend his complaint and pay the costs of the demurrer in twenty days.


text:
    Sylvanus B. Stilwell, et al. plaintiffs vs. John N. Staples, defendant.
    A motion for a new trial cannot be made after judgment entered absolutely. But the motion may be made by leave of the court, when a sufficient excuse is offered fpr not making it before judgment; and if necessary, the court can convert the absolute judgment into one to stand merely as security.
    (Before Bobektsoh, Ch. J. at special term,
    November 7, 1866.)
    Motion to strike cause from the calendar of the special term

      J. F. Burrill, for the plaintiff.

      C. Bainbridge Smith, for the defendant.
   Robertson, Oh. J.

The motion now made before me is to strike this cause from the calendar of the special term, on which it has been placed, for the purpose of moving for a new trial on a case. A verdict was rendered on the trial for the defendant, a case was duly made and served, in August last, and also notice of a motion for a new trial, and the cause was placed upon the calendar. Amendments were served to such proposed case, and notice of settlement also ; and the same submitted for settlement to the justice before whom the cause was tried, but such case is not yet settled. In October last, judgment was entered in favor of the defendant, and it is now claimed that such judgment bars any motion for a new trial.

The practice and legislation upon this point has fluctuated so much, at long intervals, in this state, that authorities may readily be produced on both sides of the question. The practice in the English courts seems to have been to require all motions for a new trial to be made in four days after verdict and judgment on an order to show cause; which term might be extended. (Birt v. Barlow, 1 Doug. 170.) By one of the rules of the Supreme Court of this state, adopted in 1799, (to be found in Anthon’s Appendix to Tidd’s Practice,) an unsuccessful party was required to move for a new trial on a prepared case, and certificate staying proceedings, before judgment was entered. Under this rule several cases were decided, (Case v. Shepherd, 1 John. Cas. 245; Jackson v. Chace, 15 John. 354; Grant v. Root, 3 Cowen, 354; Roosevelt v. Heirs of Fulton, 2 id. 107; Rapelye v. Prince, 4 Hill, 125; Savage v. Hicks, 7 Wend. 246.) But in four of them, (Case v. Shepherd, Jackson v. Chase, Grant v. Root, and Savage v. Hicks,) the motion was entertained on the ground of surprise. In one (Savage v. Hicks,) proceedings were stayed on the judgment until the decision of the motion, without any excuse; and only in one (Rapelye v. Prince,) was surprise not considered a good ground of excuse for the laches.

In the year 1832, a statute was passed in this state allowing the successful party in an action in the Supreme Court to enter up judgment where his proceedings were not stayed, but authorizing the unsuccessful party to obtain a hearing before the Supreme Court by exceptions, demurrer, case or motion for a new trial upon newly discovered evidence, in the manner therein mentioned, and expressly empowering such court, in case judgment was given in his favor, to set aside the verdict and enforce restitution, either by a writ or attachment. (N. Y. Sess. Laws, 1832, p. 188, ch. 128, § 1.) Under that statute the Supreme Court, in 1837, adopted new rules directing the mode of proceeding in such cases. (Reg. Gen. 1837, 78-81, p. 36. Graham’s Pr. 2d ed. pp. 637-640.) Ho rule similar to that of 1799, or requiring a stay of proceedings, was re-adopted until 1845. (34th Reg. Gen. 1845.) Ho decision was ever made after. the statute of 1832 excluding a motion for a new trial where a judgment had been entered. The 219th section of the Code, as first passed in 1848, required the court, after verdict, to enter the judgment to be given or make an order reserving the case for argument or further consideration, and the next section (§ 220) directed the clerk to enter judgment in conformity with the verdict, in four days after it was given. By an amendment passed in 1849, the judgment entered by the clerk was made final, but the grant of a stay of proceedings was added to the cases previously excepted in section 219. (Code, 1849, § 265.) . And in 1850, in the case of Droz v. Lakey and another, (2 Sandf. 681,) in this court, it was said that a losing party may move to set aside a verdict notwithstanding the entry • of a judgment, where a stay of proceedings has been obtained. That case was cited and approved of in Ball .v. The Syracuse and Utica R. R. Co., (6 How. Pr. 198,) in which the judgment had been allowed to become final without a case reserved or stay given under the 265th section, and it was held that the motion for a new trial could not be made. In the case of Collins v. Al bany and Schenectady R. R. Co.. (5 How. Pr. 435,) an appeal to the general term of the Supreme Court was dismissed, because no motion had been made at special term for a new-trial upon the case, which contained only questions of fact.

In 1851, sections 264 and 265 of the Code were amended, by striking out the clause making the judgment final after four days, expressly allowing a motion to be made to set aside a judgment upon a case or bill of exceptions, upon a motion for a new trial, (§ 264, part 1,) providing for the making of a case or bill of exceptions according to law and the rules of the court, (Id. part 3 ;) and also requiring motions for a new trial to be heard at special term, unless the judge send them to a general term. In 1852, the same sections were further amended, by striking out all provisions for a stay of entry of judgment, requiring the clerk peremptorily to enter judgment unless a different direction was given by the court, (§ 264, subd. 1,) and suspending judgment where exceptions were taken and the judge directed them to be heard first at the general term ; which undoubtedly was the different direction so referred to, (§ 265.) But such amended section still required the motion for a new trial in other cases, to be heard first at special term. The general court rules, (rule 34,) at that time required a case to be made in ten days after the verdict. This, of course, would have been wholly useless if the entry of the judgment barred a motion for new trial, unless in addition such entry was prevented by a special order.

Since 1852 several cases have been decided in this court, holding that the motion can not be made after judgment entered, (Anthony v. Smith, 4 Bosw. 503; Barnes v. Roberts, 5 id. 73; Gurney v. Smithson, 7 id. 400;) but the first two, (Anthony v. Smith and Barnes v. Roberts,) were decided on the authority of Jackson v. Chase, Rapelye v. Prince, and Roosevelt v. Heirs of Fulton, (ubi supra.) In Benedict v. Caffe, (3 Duer, 669,) this court intimated strongly to the contrary. In Maloney v. Dows, (18 How. 27,) the New York common pleas held also to the contrary ; and in Mersereau v. Pearsall, (6 How. 294,) Judge Shankland urged that as under the Code all judgments were peremptory, if a motion for a new trial after the entry of one were too late, the unsuccessful party would be denied the benefit of such motion in all cases. In Tucker v. White, (27 How. 97,) Judge Grover, after fully examining all the cases, comes to the conclusion, that they have established an absolute barrier to a motion for a new trial, by a judgment when entered' absolutely, but that they are contrary to existing legislative provisions, and that they ought to be overruléd by an appellate court. It is conceded that the motion can be made where the judgment is entered as mere security, yet no distinction in such case is made in the Code. (Jackson v. Fassit, 17 How. Pr. 453.) In Jackson v. Fassit, (21 How. Pr. 280,) the Supreme Court of this district, at general term, entertained jurisdiction of a motion for a new trial, first made before them after judgment upon the merits, and surmounted the difficulty, by holding that the making and serving a case and exceptions, and their attachment to the record was equivalent to an appeal. The case of Morange v. Morris, (20 How. 257,) established, that by sections 278, 281 and 348 of the Code, a bill of exceptions being tacked to the record, the motion for a new trial could be heard on an appeal from the judgment. In Soverhill v. Post, (22 How. 393,) where a motion for a new trial was denied at special term, it was held that such order could not be appealed from, where no appeal was taken from the judgment ; but in a preceding case in the same volume, (Pumpelly v. The Village of Owego, 22 How. Pr. 385,) an opposite decision is made.

I feel myself, however, constrained, equally with Judge Grover, according to his views expressed in Tucker v. White, (ubi supra,) to obey the current of authorities, and hold that a motion for a new trial cannot be made after judgment entered absolutely, whatever my own opinion may be of the error pervading such authorities.

But I think the motion may be made by leave of the court, when an excuse is offered for not making it before judgment, and if necessary the court can convert the absolute judgment into one merely for security, which is always done by a separate order. This was allowed in Jackson v. Chase, Case v. Shepherd, Grant v. Root, (ubi supra;) and in the case of Savage v. Hicks, (ubi supra,) before cited, proceedings were stayed on the judgment until the decision of the motion for a new trial, without any excuse. In the case of Jellinghaus v. New York Insurance Company, (5 Bosw. 678,) the party was allowed to annex his case to the record to justify an appeal, and I can see no reason why an accidental slip, under a reasonable misapprehension of the practice, should deprive a party of all remedy.

The motion to dismiss must b.e granted, with $ 10 costs, unless the plaintiff apply within ten days, and obtain an order allowing him to make a motion for a new trial, or declaring the judgment only to be entered as security.


text:
    Frederick Bender, plaintiff vs. Albert Comstock, defendant.
    Where there is an incongruity between the summons and the complaint, served at the same time, the former containing a notice that in default of an answer the plaintiff will take judgment for a specified sum mentioned in the complaint, whereas the latter is for a tort, the proper remedy to rectify such a variance is a motion to set aside the complaint, and not a motion to set aside the summons.
    (Before Robertson, Oh. J. at special term,
    November 7,1865.)

      I. F. Daly, for the plaintiff.

      Comstock & Gale, for the defendant.
   Robertson, Ch. J.

This is a motion to set aside the complaint, for not following the character of the summons with which it was served. The latter contains a notice that in default of answering, the plaintiff will take judgment for a specified sum mentioned in the complaint, whereas the former is for a tort. It is urged, that the remedy of the defendant for the incongruity, where the summons is served with the complaint, is a motion to set aside the summons. But I think the correct remedy is to set aside the complaint. The service of the summons is the commencement of the action, and the notice in it determines the relief sought, in case no defense is made to the action, and also the class of actions to which the suit in question belongs. (Ridder v. Whitlock, 12 How. 208.) The same rule formerly prevailed where a capias had no ac etiam clause in it, and the declaration was upon a contract. The following additional authorities sustain this view: Boington v. Lapham, (14 How. 360;) (Id. 395;) Johnson v. Paul, (Id. 454;) Tuttle v. Smith, (6 Abb. 330;) Shafer v. Humphrey, (15 How. 564;) Davis v. Bates, (6 Abb. 15;) Campbell v. Wright, (21 How. 13.) These cases control the prior ones of Webb v. Mott, (6 How. Pr. 439;) Voorhies v. Scofield, (7 id. 51;) Baxter v. Arnold, (9 id. 445;) and Ritdder v. Whitlock, (12 id. 208.) The language used in Hemsen v. Decker, (29 How. Pr. 385,) is not controlling, as the point was not necessary for the decision of the case.

The motion must therefore be granted, with liberty to the plaintiff to amend his complaint or summons, on paying §7, the costs of this motion.


text:
    Rosalie V. Desisles, plaintiff vs. Samuel Cline, defendant.
    1. After the issuing and return of one execution against the person of a defendant, the plaintiff’s ignorance of the fact that the defendant has been surrendered by his bail is “ good cause ” within the meaning of the statute (2 M. S. 556, § 36,) against the discharge of the defendant from custody on account of the plaintiff’s neglect to charge him in execution within three months after such surrender.'
    2. Yet in such a case, the defendant being entitled to put himself in a condition to get the benefit of various statutes relieving imprisoned parties, a supersedeas will he conditionally allowed unless the plaintiff issue an execution against his person within a specified time.
    (Before Bobeetsox, Ch. J. at special term,
    November, 1865.)
    The present was a motion for a supersedeas, for the failure of the plaintiff to charge a defendant in execution against his person in proper time. Upon the order of arrest in the action the defendant gave hail; an execution against his person, which was issued after the return of an execution against his property unsatisfied, was returned in April, 1865, not found. Upon the commencement of an action against his bail, an order was made in this month, upon an application in August last, exonerating them upon the payment of the costs of the motion and of the action up to the time of his surrender to the sheriff, and directing the discontinuance of such action upon payment of such costs. All of such costs were not paid until the 15th of November, instant. In July last, the defendant was surrendered by his bail and gave new bail for the jail limits, and no execution has since issued against his person.

      A. J. Heath, for the plaintiff.

      J. M. Smith, for the defendant.
   Robertson, Ch. J.

The Revised Statutes provide (vol. 2, p. 556, § 86,) that where any defendant shall be in custody upon a surrender in discharge of his bail,' made after judgment against him, and such bail shall be thereupon exonerated, the plaintiff shall charge such defendant in execution within three months after such surrender. This is a re-enactment of a prior provision in the Revised Laws of 1813, ( p. 353, § 12.) The succeeding section of the Revised Statutes (§ 37) provides that in case of neglect so to charge in execution, the defendant may be discharged from custody “ unless good cause to the contrary be shown.” This last clause is an addition to the provision of 1813, which was peremptory in terms. Tet even under- that, it was held, that the issuing of a ca. sa. before the hearing of the application was an answer to it, and. the ground upon which such decisions were placed was, that the object of the statute was to compel the plaintiff to elect whether he would look to the body or the goods of the defendant, and having made his election, the right to a supersedeas was gone. And in one case it was held that mailing a ca. sa. to a sheriff the same morning was sufficient.

In this case I will not undertake to decide either whether the statute was intended to apply to cases of a surrender after an execution against the person had once been issued and returned not found, or whether the terms such surrender ” in the statute, did not mean a surrender rendered complete by the exoneration of the bail, without which to require such exoneration would be either superfluous or unfair, as it might not take place until three months after the surrender. But the issuing of the execution and the ignorance by the plaintiff of the surrender seem to be £i good cause,” within the meaning of the statute. As the defendant is, however, entitled to put himself in a position to get the benefit of various acts relieving imprisoned parties, the plaintiff must issue execution against his person in ten days after notice of the order to be entered, or the supersedeas must be allowed. Eo costs are allowed to either party.


author: Robertson-, Ch. J.

text:
    Dennis Perkins, plaintiff, vs. Thomas B. Coddington and Almira, his wife, defendants.
    1. The enforcement in equity of the specific performance of mutual agreements between owners of different parcels of land, whose value or use may be increased or benefited by such performance, does not arise from their being covenants running with the land, nor is it confined to cases, where alone an action at law would lie for its violation, (as being an interruption of an easement in lands,) if it were a subject of grant.
    2. Where each of two parties to an action derive their title to one of two adjoining lots of land fronting on a city avenue, by conveyances from the same grantor, which, by such conveyances, are expressly subjected to covenants previously entered into, by such grantor and those under whom he derived title and the owners of adjacent and opposite pieces of land on the same avenue, mutually, for leaving a space in front of such lots unbuilt upon, the plaintiff can enforce such covenant against the defendant, although his lot was first conveyed to him by their common grantor.
    3. Such a covenant, that “ not less than five feet in front of each of several lots of land,” in a city avenue, should “ forever be an open space or court,” accompanied by the further covenant ” that it should not, at any time thereafter, be appropriated or occupied by any edifice or building or wall, nor be in any manner built upon or obstructed otherwise than by the necessary steps for entrance, platforms, pedestals, and iron fences or railings, connected therewith and enclosing the same, and the foundations and copings upon which such iron fences or railings might be placed,” is only to he construed as one substantially to increase the width of such avenue five feet, by not building on such space any structure resting on the ground, except those enumerated; so that any mere projections from the front wall of a dwelling house built on either of said lots, such as blinds and their fastenings, cornices over the windows, or doors or beneath the roof, or even balconies at windows supported on projecting brackets, would not be a violation of such a covenant.

      4. So held where a balcony had been constructed, projecting from the first floor of a dwelling house on one of such lots, supported by brackets inserted in its front wall, and having three enclosed glazed windows therein.
    5. A party who seeks to enforce such a covenant, must not himself have been guilty of any violation of it.
    (Before Kobbetsoit, Oh. J. at special term,
    November, 1865.)
    This was an action to enforce a covenant by and between the several owners of different adjoining pieces of land butting on Madison avenue, in the city of New York, in regard to abstaining, in a particular mode, from the use of such land, or part thereof.
    The plaintiff’s land adjoins that of the defendant, (Mrs. Coddington.) Both pieces were conveyed to them severally by the same person, (Mr. Sherwood,) that-of the plaintiff first; and in the conveyances to them, as well as those under which their grantor derived his title, they were made subject to such covenant, which was referred to therein.
    Such covenant was originally entered into between the first owner of such land (Mr. Murray) and the first grantee thereof, (Mr. Paine,) in the conveyance whereof, it was contained and was mutual, the original owner still retaining adjoining land fronting on the same avenue. Such covenant was, in terms, “ that not less than five feet of the front of each of the said lots of land ” on the west side of Madison avenue, between Thirty-sixth and Thirty-seventh streets,” should “ forever be and remain an open space or court,” and should “ not, at any time thereafter, be appropriated or occupied by any edifice or building or wall, nor be, in any manner, built upon or obstructed otherwise than by the necessary steps for entrances, platforms, pedestals, and iron fences or railings connected therewith and enclosing the same, and the foundations and copings upon which such iron fences or railings may be placed.” The parties to this covenant also agreed, in such conveyance, to insert in every future conveyance by them of any of said land owned by them, a similar covenant on the part of the grantees.
    Subsequently to such conveyance, and in the succeeding month, the parties thereto entered into a precisely similar covenant with the owners of the land directly opposite, fronting on the same street.
    Prior to the commencement of this action the defendants had begun to build a structure of stone.and glass, resting on the ground, projecting from the house owned by them, and standing on their land, occupying a large portion of the width thereof, for the purpose of making a bay window, which building extended from the main building four feet and a half outwards into the court yard reserved by such covenant.
    When the plaintiff bought his house and land, the former also had some projections, more or less slight, over the space so reserved. The ashlar of the basement projected three inches; the base of two pilasters on each side of the front door nearly a foot; and their top about half that distance. The cornice over the front door projected two feet four inches ; the caps over the windows of the buildings one foot; cornices projected over the eaves two feet; the entrance to the front door was by means of steps supported by a solid wall which rose to within eight inches of the first story. Other houses in the same row had similar projections, and also balconies, which stood out three feet and a quarter, supported by brackets let into the wall, and enclosed by iron railings.
    After this action was commenced, the defendants relinquished their original plan, and merely constructed a balcony of a hemi-hexagonal shape, resting upon two brackets inserted in the wall, and projecting from the main building about four feet six inches, over which, and resting upon its outer edge, were three walls of stone, with wooden sash frames and glazed sashes, roofed over and enclosing a space.

      O. F. Sandford and L. B. Woodruff, for the plaintiff.

      S. P. Nash, for the defendants.
   Robertson-, Ch. J.

Besides grants of easements in a piece of land to the public by dedication, or to the owners of other lands by grant, the rights generally appertaining to the ownership of land may be subjected to the control of others, having no interest otherwise therein, than by covenants between the owners of such servient and such dominant tenements. For although at law such a covenant is only an executory contract, in equity it seems to be treated as executed and conferring rights, which may be enforced there by specific performance ; and even parol agreements of a similar kind have been enforced when mutual, and carried into effect by some of the parties thereto. (Tallmadge v. East River Bank, 2 Duer, 614. S. C. on app. 26 N. Y. Rep. 105. S. C. sub. tit. Maxwell v. East River Bank, 3 Bosw. 124.) And notwithstanding it could not be considered in the light of a covenant running with the land, (Tulk v. Moxhay, 11 Beav. 571,) inasmuch as it affects two separate pieces of land, yet it is not to be treated as a mere personal covenant in regard to either party, but may be enforced in favor of all who derive title from the covenantee to the dominant tenement or that for whose benefit such covenant is made, against all who take title from the covenantor to the servient tenement (or that whose use is restricted) with knowledge of such covenant. (Mann v. Stephens, 15 Sim. 377. Tulk v. Moxhay, 11 Beav. 571. 2 Phillips, 574. Whitman, v. Coies, 23 Eng. L. and Eg. 588 n. Hills v. Miller, 3 Paige, 254. Barrow v. Richard, 3 Ed. Ch. 96. S. C. 8 Paige, 351. Birdsall v. Tiemann, 12 How. Pr. 551.) This doctrine seems to be established upon the principle that otherwise grantees of the covenantee would have no remedy at law by an action in their own name for damages, and the covenantee would only be entitled to nominal damages, after he had parted with his interest in the land to be benefited. (Barrow v. Richard, ubi supra.) Of course, in all cases where such covenants are specifically enforced, there must be a dominant tenement whose owner is to be benefited by their being kept, and it must be in a position to be so benefited ; otherwise the covenant would be merely personal. The reason, for enforcing rights arising from such covenants, is entirely distinguishable from that for protecting a legal easement against interruption, (Brouwer v. Jones, 23 Barb. 153;) or the right of the public originating in a dedication, when infringed upon, (Trustees of Watertown v. Cowen, 4 Paige, 510. Hills v. Miller, 3 Paige, 254;) in both of which cases there is a remedy at law. The rights and obligations of the parties to such covenants being, even in equity, dependent entirely on their terms, and not on the amount of injury from any violation of them, parol evidence is unnecessary and inadmissible to show either great or slight injury from such violation. (Steward v. Winters, 4 Sand. Ch. 589.)

In the case before me, it is true the parties, although chargeable with notice of the original covenant, (Coles v. Sims, 23 Eng. Law and Eg. 588, n.) do not claim title to these lands under the covenantor and the covenantee .in the covenant in question, severally, but under a person who derived title from the latter alone. But the deeds to both of them are made subject to such covenants, although their common source of title parted with the land conveyed to the plaintiff before he had conveyed to the defendant; and, therefore, although not without some misgiving, I am inclined to think the plaintiff is entitled to enforce such covenant against the defendants.

Another difficulty presents itself in the.fact that thé plaintiff's house itself violates the original covenant, according to his interpretation of it; and it has been held that generally a party so situated would not be entitled to any relief in equity, (Duke of Bedford v. British Museum, 2 M. & K. 552; Roper v. Williams, 1 Turn. & R. 18; Patching v. Dubbins, 1 Kay, 1; S. C. 23 Eng. Law and Eq. 609,) upon the principle that he who seeks equity must do equity ; but in this case both parties derive title from the same person, and their rights and obligations towards each other depend entirely upon their dealings with him, and his conduct. At the time he sold the plaintiff his house, he had, if ever, already violated all the covenants entered into before he acquired title, and it must be held that so far as any relations were created between the parties who derived title from him, he intended to modify the original covenant to that extent; so that whatever rights third persons claiming title from the original covenantee might have against his grantees, as between each other the. rights of the latter should be modified by the actual state of the buildings, as the plaintiff could hardly have been required to take down projections already existing, and conveyed to him as they were.

The most difficult question remains, however, to be solved, as to the proper interpretation of the original covenant in reference to the projection completed by the defendants since the commencement of this action. That covenant provides, (1st.) That the five feet in front of the lots in question should forever remain an open space or court. (2d.) Should not be appropriated or occupied by either an edifice or a buildiag or wall. (3d.) Should not be either built upon or obstructed, otherwise than by such steps for entrance, platforms, pedestals and iron fences or railings connected therewith and enclosing the same, as might be necessary, and the foundations and copings upon which such iron fences or railings might be placed. The first question that presents itself upon the construction of this covenant is, whether by the five feet which is reserved to remain an open court, is meant superficial dimension of ground alone, or a like space in the air, reaching from such ground, to the heavens. If the latter, the defendants could no more occupy it permanently than they could the public high-. way, or even temporarily, otherwise than they could such highway ; but I think the subsequent part of such covenant confines such five feet to the ground — the terra firma—and its use. It declares that such court shall not be occupied by an edifice, or a building or wall, each of which words implies something not suspended in the air, but resting on the ground and erected upwards from it. And, finally, it provides that it should not be built upon or obstructed otherwise than by a certain kind of solid structure. The terms “ built upon ” seem to me conclusive as to the space intended being of the solid ground, and the exception of the steps for entrance, and pedestals therefrom (which are required to rest on the ground) more fully corroborates it. Particularly as the house owned by the plaintiff had at the time he bought it, steps resting on a solid wall reaching from the ground to nearly the first story. It is not difficult to suggest, according to the varying views and interests of parties, different general purposes or limitation of such right intended by such covenants. But where a covenant is so precise and elaborate as this, and its enforcement is in derogation of common right, a court can do no more than carry out the stipulation of the parties as they have expressed it. It would be too much to say that it was intended to have an unlimited sweep of air over, and access of light to, the whole of the five feet, along a smooth wall unbroken" by any projection, when there were already overhanging cornices, projecting ashlars and pedestals and a'massive structure for the support of the steps to the entrance of both houses, at the time of their conveyance. If any general purpose can be extracted from such covenant consistent with its special provisions, it must be merely that the width of .the street, so far as the main front wall of the house was concerned, should be increased five feet, and that the court yard thereby gained should not be built upon by any structure resting on the ground, except the entering steps and their appurtenances, but that blinds and their fastenings, and cornices projecting from or over the windows or door, or under the ropf, and even balconies, might be permitted, provided they were not a mere evasion of the covenant. Such seems to have been the practical construction given to it, and acquiesced in for a long time. And until better advised I can see no reason for interfering with the window finally completed.

But the plaintiff is entitled to a judgment perpetually enjoinining the defendants, as they have been temporarily enjoined, with costs.


text:
    Jeremiah G. Hamilton, plaintiff, vs. Wentworth S. Butler, defendant.
    1. There is no provision of law for over five term fees, in any action. Consequently, an extra term fee, after the cause has been on the calendar for five terms, and after it has- been once tried, although set down by the judge for another trial, at the next term, cannot be allowed for such term.
    2. Where a cause has been three times tried, copies of notes taken by the stenographer on the first two trials cannot be allowed. Though very useful, they are not necessary disbursements, under section 311 of the Code.
    3 The provision of the Code, (§ 307, suid. 3,) allowing $25 for all proceedings before a new trial, only applies to cases where a new trial has been granted; not to those where a trial has never been completed, as where the jury disagree, or are discharged without rendering a verdict.

      4. The item of $30 for trial fee, on an issue of fact, is properly allowed for every time the cause is tried, whether the jury agree or not.
    (Before Robertson, Ch, J. at special term,
    November, 1865.)


text:
    William E. Greene, plaintiff, vs. Nicholas D. Herder, impleaded, &c. defendant.
    1. On.an application, under the provisions of the Code, hy a party, for the examination of the adverse party as a witness in the action, he must present an affidavit stating, 1st. The nature of the action and the plaintiff’s demand. 2d. If the application be made by the defendant, then the nature of his defense; and, 3d. The name and residence of the proposed witness.
    2. Upon that affidavit the party may apply for such an order as is mentioned in section 3 of the statute in relation to the conditional examination of witnesses within this state, (2 JR. 8. 392,) and also for the summons provided for in section 10 of the same statute.
    3. The order so obtained should be served upon the attorneys of all the parties who have appeared, or, if the time for appearance has not yet expired, then upon the adverse parties themselves, who have not appeared; and the summons should also be served upon the proposed witness.
    4. In case the proposed witness fails to appear, the party who has procured the order and summons may, upon a proper affidavit, obtain a warrant directing the sheriff to apprehend such witness and bring him before the judge, (2 JR. 8. 401, § 60;) or, at his option, he may, on a proper affidavit and notice, have an order directing the pleading of the recusant witness to be stricken out. (Code, § 394.)
    (Before Babboüb, J. special term, at chambers,
    December 15,1865.


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    Smith vs. Jones.
    What facts are necessary to be stated in the affidavits upon which an application for an order of arrest under subdivision 4 of section 179 of the Code of Procedure is founded.
    (Before Babboüb, J. at special term, chambers,
    December 28,1865.)
    Motion for an order of arrest, under section 179, subdivision 4 of the Code.
   Barbour, J.

An application is made to me, at chambers, by the plaintiff, in an action to which the above title may be given for the purpose of this opinion, for an order of arrest, under the 4th subdivision of section 179 of the Code.

The application is founded upon an affidavit which states that, on a certain day therein designated, “the defendant applied to the plaintiff to purchase certain merchandise from the latter, upon a credit, and then represented to the plaintiff that he, the said defendant, was in good circumstances, and abundantly able to pay all his debts ; that he was the owner of the house in which he resided, and that the same was unincumbered ; ” that the plaintiff, relying upon the truth of such statements, sold and delivered goods to the defendant to the amount of $3000 upon credit; that the same have not been paid for, and that such representations so made by the defendant were untrue.

This affidavit is insufficient; and that, I will add, has been the case in a large majority of instances, upon similar applications, at the present term.

The highest and most powerful process known to the law in civil actions—a process which may take a man from his family and business and confine him within the walls of a prison— ought not to be granted without a full compliance by the party applying for it, both with the letter, and spirit of the statute, which authorizes a judge to issue it; even though an excuse be offered, as is usual, that want of time has prevented the preparation of the proper papers.

To entitle a plaintiff to the order contemplated by the 179th section, upon the grounds mentioned in subdivision 4, his affidavits should show in a case like this :

1st. All the facts necessary to entitle the plaintiff to recover; or, in other words, the facts constituting a cause of action.

2d. That the defendant applied to the plaintiff, and requested him to sell goods to the latter on a credit, stating when and where.

3d. That, for the' purpose of inducing the plaintiff to sell him such goods on a credit, the defendant then and there, fálsely and fraudulently stated and represented to the plaintiff that he, the défendant, &c. (setting forth the representations.)

4th. That the plaintiff believed such statements and representations to be true, and was thereby induced to, and then did, sell and deliver to the defendant upon a credit, the goods so applied for by him.; and that, except for such statements and representations the plaintiff would not have made such sale and delivery.

5th. That all of the said statements and representations, (or a part of the same, stating which,) were false and untrue when so made to the plaintiff, to the knowledge of the defendant, and that the defendant made the same with intent to defraud the plaintiff by obtaining the said goods upon a credit and without paying for them.

This general allegation as to the falsity of the defendant’s representations must be accompanied by a detailed averment of such facts, within the knowledge of the person making the affidavit, as shall be sufficient to satisfy the judge before whom the application is made, that such representations so made by the defendant were untrue when made. It is not enough to say that the representations were untrue. That is a mere opinion or conclusion of the person making the affidavit, and if founded upon facts within his knowledge, such facts should be stated, so that the judge may determine whether that conclusion is correct; if not so founded, it is valueless as evidence.

Motion denied.


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    William H. McVickar, plaintiff, vs. Augustus W. Greenleaf et al. defendants.
    1. The right of a party to examine the adverse party as a witness arises immediately on the commencement of the action, and may he enforced before issue is joined.
    2. The cases holding that the examination could be had only after issue joined, were all cases decided prior to the amendment of section 349 of the Code, in 1863.
    (Before Babboub, Moheli,, and McCuss", JJ.
    Heard November 6, 1865;
    decided December 30, 1865.

      Appeal from an order made at a special term.
    This action having been commenced, by the service of a summons upon some of the defendants, including the defendant Edward B. Ketchum, the plaintiff, upon an affidavit of such fact, and also of the materiality of, and necessity for, the testimony of the defendant Edward B. Ketchum, to be taken before the trial, procured an order that the plaintiff be allowed to examine said defendant as a witness in the action, on two days’ notice to him and the other adverse parties. Cause was shown against, this order, that no copy of the complaint in the action, had been served on the defendant, or issue joined therein ; and a motion was thereupon made to vacate and set aside the order. The motion was denied, and another order entered denying such motion and directing the examination to proceed upon filing and serving on such defendant’s attorney a verified complaint in the action.
    The defendant, Edward B. Ketchum, appealed from the last mentioned order

      F. N. Bangs, for the appellant.

      Jer. Larocque, for the respondent.
   By the Court;

Monell, J.

The chapter of the Code relative to the examination of an adverse party, as a witness, has undergone few amendments, and is now substantially the same as when originally enacted. (Laws 1848, p. 559.) The only material change is in striking out the words, “in respect to any matter pertinent to the issue,” in the 349th, now 395th, ■ section.

The oral examination of parties as witnesses, is a novelty-introduced by the Code. Previously, discoveries in aid of actions at law, were obtainable only by bill in chancery. In abolishing the Court of Chancery, and all distinctions between law and equity, it became necessary to conform the practice, prevailing in courts of law and equity, to one system. Hence the authority to examine the adverse party was intended to be in lieu of the former bill of discovery.

Eo question arises in this case, as to" the right of a party to take the examination of his adversary. The statute is explicit and the right absolute. '

The only question raised by the appellant is, whether the examination can be had before issue joined. The order appealed from, was made before any answer had been put in, and before the time to answer had expired. There is nothing in the letter of the statute designating when the examination may be had. The party may be examined at the trial; before the trial, conditionally or upon commission. In respect to conditional examinations and upon commission, they are regulated by other statutes, which are now made to include parties as well as witnesses. A conditional examination may be had immediately upon suit brought, (2 R. S. 409 ;) but a commission can issue only after issue joined. (Id.) The examination before the trial is not a conditional ” examination. The testimony taken may be read by either party on the trial, whether the party examined be present in court or otherwise. It is difficult to discover a reason for allowing a conditional examination of a party. The authority to examine before trial is so ample, that a conditional examination can never be required.

The object of the examination is, to obtain evidence in support of the plaintiff’s cause of action, or the defendant’s defense, and may be more important to a plaintiff before issue than afterwards. In the Court of Chancery a bill of discovery was entertained even before suit brought, and it was not necessary to aver that issue had been joined. (2 Barb. Ch. Pr. 106.) It was sufficient if it charged that the discovery was necessary to enable the complainant to bring his suit at law. In allowing the examination to be before trial, it must have been the design of the legislature to prevent a party from depriving his adversary of his testimony at the trial. It was not merely for the convenience of the party examining; but to procure evidence in support of the action or defense. One of these designs of the legislature' might always be defeated, if the examination was postponed until after issue joined.

The cases to which we have been referred as holding that the issue must be joined, before the party can be examined, were decided prior to the amendment'of the 349th section. In all these cases, that section, as it stood before the amendment, is referred to as controlling the view that the whole examination must be upon matter pertinent to the issue. The reason for the amendment is not obvious. It was made as late as 1863, and several years after parties were allowed to be examined as witnesses in their own behalf. (Laws 1857, p. 744.) Since the enactment of the law last referred to, very little of the chapter in the Code, allowing adverse parties to be examined, is of any importance. A party may be examined as a witness, on his own behalf, or on behalf of any other party, in all cases, and either at the trial or conditionally, or upon commission. Hence the whole of the present 395th section might well be repealed.

As the statute now stands, there is not, in terms, any limit to the time when the examination may be taken; nor does there seem to be any reason for a limitation. A conditional examination of an adverse party can be had immediately on the service of the summons. The reason is, that otherwise, a party might be deprived of the testimony of an important witness. There are equally cogent reasons for allowing the examination of an adverse party before issue. And, besides, the evidence procured ón such examination may end the litigation, In the case before us, the necessity for an immediate examination is not disputed ; and the amendment of the 395th section, having removed the only ground upon which the decisions in the several cases to which we have been referred were placed, we are Hot bound to regard them as authority.

I think the order should be affirmed. The right to examine the adverse party arises, in my opinion, immediately on the commencement of the suit, and not merely after issue joined.

Order affirmed.


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    John Turner et al. plaintiffs and respondents, vs. William R. Martin, defendant and appellant.
    1. The delivery at one time, of a quantity of. merchandise sold, but not furnished under or in pursuance of, any express agreement, creates a contract by implication; and a right of action accrues to the vendors immediately on-the delivery of the merchandise. The statute of limitations, therefore, begins to run from that time.
    2. An acknowledgment, to take a case out of the statute of limitations, must contain an unqualified admission of the debt and show a willingness to pay it. It must be such that an action could be sustained upon it, though the original contract alone constituted the cause of action.
    (Before Morcrief, Morell and McCurr, JJ.)
    Heard December 13, 1865;
    decided December 30,1865.
    Appeal from a judgment entered upon the report of a referee.
    This action was brought to recover the value of a quantity of brown stone dressed for, and furnished by, the plaintiffs to the defendant. The complaint alleges “ that during the year
    1856, and during the month of January, 1857, the plaintiffs dressed for, and finished and delivered to the defendant a quantity of brown stone, for the front of certain houses, then being built by him; and that said stone was of the price and value, and was reasonably worth, the sum of $1384.44. That said sum being due and payable on the first day of February,
    1857, on that day an account was stated between the said plaintiffs and the said defendant, and upon such statement the said sum of $1384.44 was found to be due from the said defendant to the said plaintiffs, which the said defendant then promised and agreed to pay to the said plaintiffs.”
    The defendant, by his answer, denied all the allegations in the complaint, and for a further and separate defense alleged that the plaintiffs’ cause of action did not accrue within six years prior to the commencement of the action.
    The plaintiffs proved that they furnished stone to the defendant, described in a bill of items put in evidence, without date or proof of the time when delivered. The stone furnished in the hill rendered amounted to $1384.44. It was, however, proved that all the stone was delivered before the 12th of December, 1856.
    The suit was commenced January 24, 1863. .
    The case was tried by a referee, who found :

      “ 1. That the defendant entered into a contract with one McAúley, as agent of the plaintiffs, for the supplying him with a quantity of stone for certain buildings of the defendant, then being erected.
    2. That stone to a considerable extent was furnished by the plaintiffs for the defendant and came to his use.
    3. That after the 27th of January, 1857, and before the 1st of'March, 1857, it was agreed by and between the plaintiffs and the defendant that what then remained unperformed of such 'contract should be performed by one Codling, and the plaintiffs were discharged from any duty further to perform the same, and thereupon the defendant became bound to pay the plaintiffs their just demand for the value of the part performed, and such debt accrued by the said last mentioned date.
    4. The value of the stone so supplied by the plaintiffs, and used by the defendant, after all just deductions and allowances made, is the sum of $1326.40, in which sum I find the defendant to be indebted to the plaintiffs.”
    The referee decided that the plaintiffs were entitled to recover. The defendant excepted. Judgment was entered for $2390.06, from which the defendant appealed.

      E. 8. Van Winlcle, for the appellant.

      E. R. Robinson, for the respondent.
   By the Court,

Monell, J.

There was no finding by the referee upon the issue of the statute of limitations. His general findings, however, against the defendant upon all the issues, by implication, disposes of that question. If the facts are as found by the referee in his first and third findings, he decided correctly in overruling the statutory bar.

The action is to recover the “ reasonable worth ” of a quantity of brown stone furnished to the defendant. Eo special agreement is set forth, containing any terms of a contract between the parties. Ho written or express contract was proved, on the trial. The evidence was, that a quantity of stone was furnished and put into the defendant’s houses. A bill was afterwards rendered Containing the prices. One of the plaintiffs was examined as a'witness, but he nowhere speaks of any express agreement between the parties. He says the defendant wanted them, (the plaintiffs) to transfer to Mr. Codling the agreement to furnish the rest of the stone, which the plaintiffs consented to. That is all he says about any agreement. As to what the agreement was, the witness is entirely silent.

McAuley, with whom the referee finds the contract was made, was also examined as a witness. He says nothing of any agreement. He says there was an estimate of the stone furnished, but nothing more. In that, I am unable to find any evidence whatever of any express agreement between the parties. Hone is alleged in the complaint, and none was proven on the trial. The action was upon a quantum meruit, and the evidence was only sufficient to imply an assumpsit.

I think, therefore, the first finding of the referee is wholly unsupported by evidence.

There being no proof of any other than an implied contract, any evidence there may have been in support of the third finding must have had reference to such implied contract.

The referee, therefore, was not warranted in finding that it was agreed, that what remained unperformed of such contract should be performed by one Codling, and the plaintiffs were discharged from any duty further to perform the same.” There was no proof of what the contract was ; and the referee could not find that it was or was not performed in whole or in part. Eo stone appears to have been delivered after December 12, 1856 ; and the agreement with Codling to complete some kind of a contract, was after January 12, 1857, and McAuley testified that all the stone in front was furnished and set at one time.

As the case is presented on this appeal, it is simply to recover the reasonable worth of a quantity of stone. It was not furnished under, or in pursuance of, any express agreement; but was furnished at one time, and prior to December 12, 1857. Upon such facts, the law makes a contract by implication, and a right of action arose to the plaintiffs, immediately on the delivery of the stone. The statute, therefore, began to run from the time the cause of action arose, which in this case was on or prior to December 12, 1857. This was not a running or mutual account, but was a delivery at one time, under an implied agreement to pay the reasonable value. (Hallock v. Losee, 1 Sandf. 220. Peck v. N. Y. and Liv. S. S. Co., 5 Bosw. 226. Davis v. Gorton, 16 N. Y: Rep. 255.)

The letter written by the defendant to Wright, the plaintiffs’ attorney, contains no acknowledgment of any indebtedness to the plaintiffs. It clearly was not an acknowledgment of a new or continuing contract, as is required by section 110 of the Code. Such acknowledgment must contain an unqualified admission of the debt, and a willingness to pay it. (Story on Cont. § 707.) It must be such as that an action could be sustained upon it, though the original contract was the cause of action. (Winchell v. Hicks, 18 N. Y. Rep. 558.)

I have not examined the other exceptions taken by the defendant. It is sufficient that upon the facts before the referee, he erred in overruling the defense of the statute of limitations.

There can be no doubt, I think, that the frequent and uniform decisions of the referee, during the trial, as to the effect of the plaintiffs’ evidence, misled the defendant, greatly to his' prejudice; but we can not, on that account, give any relief on this appeal. He should have moved at special term to set aside the report on the ground of surprise.

I am of opinion the judgment should be set aside, and the order of reference vacated, and a new trial ordered, with costs of the appellant on this appeal to abide the event.


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    Uriah Hendricks et al. exr’s, &c. plaintiffs and respondents, vs. Josiah Carpenter, et al. defendants and appellants.
    1. A trial by jury is not waived by the mere failure of one of the parties to appear on the trial, under section 266 of the Code, subd. 1.
    2. That section provides for a waiver-, which does not enforce a right, but implies a.voluntary relinquishment of one, and by all the parties, not by any one alone, unless the other seeks to avail himself of it. Neither party is bound to accept any apparent waiver by the other, by his failing to appear on the trial.
    (Before Robertson, Ch. J., and Barbour and McCunn, JJ.)
    Heard May 12, 1865;
    decided December 30, 1865.
    Appeal from an order made at a special term. (See 2 Bob. 625, S. 0.)

      S. Sanxay, for the defendant Carpenter, appellant.

      J. Pyne, for the plaintiffs, respondents.
   By the Court,

Robertson, Ch. J.

The only point urged on this appeal is that a trial by jury is waived by the failure of either party to appear on the trial, by the 1st subdivison of section 266 of the Code, and therefore the assessment of the damages by a jury in this case, against the defendant Carpenter, was irregular. Unfortunately for this position, the language of that section is too clear for cavil. It provides for a waiver, which implies a voluntary relinquishment of a right, not the enforcement of one ; and' by the several parties, not by the act of any one, unless the other seeks to avail himself of it. The plaintiffs were not bound to accept the defendants’ waiver by his failing to appear. Indeed the exception is hardly capable of serious argument.

The order appealed from should be affirmed, with costs.


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    Max Maretzek, plaintiff vs. William Cauldwell, et al. defendants.
    1. The court has such entire control over its calendar, and right to regulate the order of trying causes, that it may order a second action between two parties, to be placed on the calendar, next to a prior action for a similar cause, between the same parties, and that they may both be tried before the same judge at the same term.
    2. But it will not control the discretion of the justice before whom the same may be triable, as to deciding which shall be first tried, or whether either shall be postponed.
    (Before Babboub, J. at special term,
    December, 1865.)
   Barbour, J.

An action, entitled as above, which, to save words, we will call “ suit No. 1,” was brought against the defendants to recover damages for an alleged libel, charged in the complaint to have been published in their newspaper, The Sunday Mercury.” The defendants, by their answer, admitted the publication, and averred the truth of the statements contained therein.

After the commencement of that action, and the service of the complaint, another action, (suit No. 2,) was commenced by the plaintiff against the same defendants, for another alleged libel, stated in the complaint to have been published, in like manner, by the defendants.

The complaint in that suit, No. 2, set up the fact that suit No. 1 had been brought by the plaintiff against the defendants for a libel, &c. and, for- cause of action, charged in several counts, that, subsequent to the institution of that suit, the defendants had published, in their paper, a series of libelous articles against the plaintiff, wherein the defendants stated and published, among other things, substantially that the trial of the suit No. 1 would afford them an opportunity to, and they would then prove that the statements, or some of them, setting them forth, contained in the alleged libelous article upon which No. 1 was founded, were true, and in their answer in suit No. 2 the defendants averred that they intended to, and would prove, upon the trial of No. 1, the truth of those statements.

By reason of some motions and proceedings had in the action first commenced, suit No. 2 has obtained precedence over No. 1. A motion is now made by the defendants, at special term, upon the pleadings in both actions and affidavits, for an order directing that suit No. 1 be first tried at the jury term.

I can see no reason why the plaintiff should, in his complaint in suit No. 2, have set up the fact that the alleged libels there sued upon, were published after suit No. 1 had been commenced, unless it was done for the purpose of enhancing the damages to be recovered. Be that as it may, however, there can be .no doubt that the jury, upon the trial of suit No. 2, if that action shall be tried first, will be justified in giving a larger verdict for the polaintifif, in case they find the defendants persisted in publishing and repeating libelous articles, even after the serious nature of the charges made by them, and the injury they had done to the plaintiff, had been brought directly to their knowledge and attention by means of an action, than would otherwise be proper. So, too, if' a trial in suit No. 1 shall be had before No. 2 is reached, and the plaintiff shall succeed in such first suit, the jury may, properly, award punitive damages in suit No. 2, because of the injuries so repeated and continued in by the defendants, even after a suit had been commenced against them. On the other hand, it is equally clear that in case suit No. 1 shall be tried first, and the defendants shall there prove their alleged libelous charges to be true, and obtain a verdict in their favor, the plaintiff will not be entitled to recover exemplary or punitive damages because of repetitions of the first alleged injury.

As a contrary course might, possibly, embarrass the court or counsel upon the trial, I express no opinion here as to whether the defendants will, or will not, have a perfect defense in suit No. 2, in case they succeed, upon the trial of No. 1, in proving what they say they will in the alleged libelous articles embraced in suit No. 2, and in their answer. But, for the reasons I have mentioned, I will direct that suit No. 2 be taken from its present position, and placed upon the calendar, next following No. 1; so that, if deemed advisable, they may both be tried before the same justice.

That is all I can do. It would, manifestly, he improper for me to direct as to which cause shall be first tried. Each judge, must, of course, he permitted to control the order of business before himself.

Ten dollars, costs of this motion, are awarded to the party eventually succeeding in suit No. 2.