text:
    Moritz Stettiner, respondent v. The Granite Insurance Company, appellants.
    A condition in a policy of insurance upon goods “ contained in the brick building situated,” &c., by which, “ lighting the premises insured, by eamphene or spirit-gas without written permission in the policy, shall render it void,” is a condition binding upon the assured, and operated to restrain the use of eamphene or spirit-gas as a means of light in and about the goods at the place designated.
    A condition in those terms should not be rejected as inoperative, because “ lighting the premises insured” is an inapt expression, where goods are the subject of the insurance.
    Nor should they be rejected because this form of expression is more appropriate when the premises insured are a building, &c.
    It is not an error to which an exception will lie, that the Judge submits the very question in issue to the jury, although the matter of defence is sworn to by one witness, and he is not contradicted. A verdict for the plaintiff may, in such case, be against evidence, but the defendants should seek relief by motion for a new trial, and not by exception and appeal from the judgment. So the defendants might have required suitable instructions regarding the force and effect of the evidence.
    (Before Hoffman, Slosson and Wooubuff, J.J.)
    Heard, April;
    decided, June, 1856.
    Appeal by defendants from a judgment in favor of the plaintiff for $555.19, damages and costs.
    The action was on a policy of insurance against fire, on the goods of the plaintiff. The complaint averred a loss by fire, to the amount of $600, for which sum, with interest and costs, judgment was demanded.
    The defence set up in the answer was, that after the making and issuing of the policy, the plaintiff, without the permission of the defendants, lighted the premises containing the subject insured, i with spirit-gas or eamphene, contrary to the conditions of insuranee annexed to the policy, and forming a part thereof. The cause was tried before Slosson, Justice, and a jury, in March, 1855.
    The jury found, specially, that the “ burning-fluid which was used by the plaintiff as a means of light, was not the same article as the “spirit-gas” mentioned in the conditions of the policy, and also found a general verdict for the plaintiff for $429.16.
    The cause was heard upon a case containing the proceedings had, and exceptions taken, on the trial, and these are sufficiently stated in the opinion of the court.

      Pomeroy and Jenks, for the plaintiff.

      Stevens and Home, for defendants.
   By the Court. Woodruff, J.

This is an action brought to recover the amount of loss sustained by fire, under a policy, executed and delivered by the defendants, upon the plaintiff's stock of cap fronts and other goods, “ contained in the brick building situate No. 101 William street, city of New York.”

The defence insisted upon at the trial was, that the plaintiff, without the permission of the defendants, lighted the premises containing the subject of the insurance, with spirit-gas or camphene, contrary to the conditions of insurance.

The conditions of insurance annexed to the policy, and referred to therein as forming a part thereof, (and to which the plaintiff, by accepting the policy, must be deemed to have assented,) in the eighth article, contains these words:—“ The keeping of gunpowder for sale or on storage, upon or in the premises insured, or the lighting the same by camphene or spirit-gas, without written permission in the policy, shall render it void.”

On the trial, the witnesses for the plaintiff testified that on the evening of the fire, and on several evenings previous thereto, the premises occupied by the plaintiff, and containing the insured goods, had been lighted with burning-fluid.

The defendants’ counsel thereupon moved to dismiss the complaint, insisting that the testimony of those witnesses showed a violation of the above recited eighth condition of the policy. The motion was denied by the court, and the defendants’ counsel excepted.

The reason stated in the bill of exceptions for the denial of the motion, is the same which formed the subject of a subsequent exception to the charge to the jury, to be presently noticed, viz.: That the eighth condition annexed to the insurance, related only to an insurance upon buildings, and not to an insurance upon goods contained in buildings.

It must, however, suffice to say in regard to this motion' for a, nonsuit, that it did not, .at this stage of the trial, appear that “ burning-fluid" was one of the prohibited articles. The eighth condition specified “ camphene or spirit-gas,” and the court could not say, that “ burning-fluid” was either the one or the other, and therefore the court could not say that it appeared affirmatively that this condition of the policy had been violated.

The motion for a nonsuit was, therefore, rightly denied, whether the reason assigned, therefor, was correct or not.

The defendants’ counsel thereupon called one witness, and one only, who, on his direct examination testified that he “ had dealt in and manufactured the article known as spirit-gas and burning-fluid. There is no difference between spirit-gas and burning-fluid; it is called, in the trade, spirit-gas as much as burning-fluid;” and also that he called at the premises after the fire, and found a lamp, filled with burning-fluid or spirit-gas, standing on a desk in the office, and also found a tin can containing a few drops of the same article.

But, on his cross-examination, he testified that “it is about three years since he was engaged in the manufacture of spirit-gas or burning-fluid; that he was, at that time, engaged in a drug store in Utica; that he had never dealt in or manufactured burning-fluid in the city of New York, and did not know any thing about the trade in said city, except that when he purchased for his own use he called for burning-fluid."

There was no distinct evidence showing where the contract of insurance was made. The attestation clause imports that it was signed by the president and secretary, at the office of the defendants, in Utica, and its effect is qualified by the words “ not valid unless' countersigned by J. W. Bouck, agent.” The policy, however, bears on its face, at its very beginning, an intimation that the policy was issued in the city of New York, thus: “No. 1178. $400. Granite Insurance Company, New York, offfice No. 78 Broadway,” and it is duly countersigned by J. W. Bouck, as agent.

Upon this evidence the court charged the jury, “ That whether spirit-gas or burning-fluid was the same article or not made no difference as to the result of this suit, inasmuch as the eighth condition of insurance related only to insurance upon buildings, and not to insurance upon goods contained in buildings.”

To this the defendants’ counsel excepted, and thereupon the court instructed the jury to find specially, in answer to this question, “Was the article of burning-fluid used as a means of light by the plaintiff the same article as spirit-gas mentioned in the eighth section of, the conditions of insurance annexed to the policy ?”

The counsellor the defendant objected, and took an exception to the submission of this question to the jury, “ on the ground that there was no evidence to discredit the witness who had testified that spirit-gas and burning-fluid were the same article, and, in the absence of any discrediting testimony, the court was bound to deem such evidence to be true.”

The jury found a verdict for the plaintiff, and, to the question specially submitted to them, they returned an answer in writing, that “ the fluid spoken of by the witnesses as * burning-fluid’ is not ‘ spirit-gas,' referred to and mentioned in the policy.”

Obviously, if this special finding is true, the first exception to the charge furnishes no ground for reversing the judgment. For if burning-fluid is not spirit-gas, then the condition in the policy has not been violated, whether that condition applies to an insurance upon goods or not.

I am of opinion that the court erred in the construction given to this condition, and that it applied to the present insurance as fully as it would to an insurance upon the building itselfj and that “ the lighting of the premises insured, by spirit-gas,” as used in that condition of a policy upon goods, meant the use of spirit-gas as a means of light in and about the goods at the place No. 101 William street, where the subject of the insurance is described in the policy to be. No part of the words of the policy ought to be rejected as insensible or inoperative, if a rational and intelligible meaning can be given to them, consistent with the general design and object of the whole instrument; and, if the condition was broken, then clearly, in my opinion, the plaintiff was not entitled to recover. (Wilson v. Herkimer Ins. Co., 2 Selden, 53; Mead v. The North-Western Ins. Co., 3 Id. 530; Westfall v. The Hudson River Fire Ins. Co., 2 Kernan, 289.)

But it is wholly unnecessary to discuss this question further, because the jury have found that the condition was not'violated, and, if that is so, it is quite immaterial whether the court erred in its construction or not. The error had no bearing upon the question of fact so found. *

Are the defendants entitled to have the judgment reversed on exception, because the Judge submitted the question to the jury, whether spirit-gas and burning-fluid are the same ?

We think not. It should be observed that this is not a motion for a new trial upon the ground that the verdict is against evidence, but it comes before us upon exception to the submission of the question to the jury at all; and, .unless the exception was well taken, we cannot reverse, although we may think that the weight of. evidence was. in favor of the defendants, and that the defendants, had they so requested, were entitled to have instructions given to the jury in relation to the proper force and effect of testimony, and the duty of the jury in respect thereto, which, had they been suggested by the defendants’ counsel, and given by the court, might" have influenced the result.

The objection and exception are simply and only that the question should not have been submitted to the jury in any form.

It was a question of fact—It was material—indeed it was the one sole fact upon which the whole defence rested. The defence itself could not prevail unless a verdict was upon this very question found in its favor. In the form in which the case then stood (the motion for a nonsuit not having been renewed) there was nothing for the court to do but take a verdict from the jury, and as no instructions to the jury were asked by the defendants’ counsel, they cannot complain of the want of any specific directions.

True, it was not necessary for the court to submit any question to be specially answered, but in regard to that, the court have a discretion under section 261 of the Code.

It is in effect suggested, that the objection taken by the defendants ought to be regarded as tantamount to an insisting at the time, that upon the whole evidence, the defendants were entitled to a verdict, and as equivalent to a request that he should so charge.

‘It is true, that it has been held that a verdict will not be set aside because the Judge charges a jury to find for the plaintiff if the evidence clearly warrants the verdict, and is neither contradicted nor impeached. (Dean v. Hewitt, 5 Wend. 257; Nicholls v. Goldsmith, 7 Id. 160.) And it is also well settled, that it is within the power of the court to grant a nonsuit if it be moved for, when, after the evidence for the defendant has been given, the case is so clearly with him that a verdict for the plaintiff would be set aside as against evidence. (See Rudd v. Davis, 3 Hill, 287, and cases there cited.) But we are referred to no case, and I find none in which it is held, that where, the plaintiff’s case is prima, facie established, it is matter of exception, that though the defence seems clearly proved, the Judge submits the case to the jury, when a nonsuit is not moved for. (See New York Fire Ins. Co. v. Walden, 12 J. R. 513.) And it may well be doubted whether, after testimony on both sides, it is ever error in law for which an exception will lie to submit to the jury the very question of fact in issue. The court may, undoubtedly, express an opinion upon the facts, and ought, when requested, to give proper instructions regarding the rules by which the jury should be governed in regard to the construction and weight of the evidence.

Besides, it does not follow that, because in this particular case, the one witness for the defendants testified that spirit-gas and burning-fluid are the same, the defendants here were entitled (if in any case), to a peremptory instruction that the jury find for the defendants. True, a witness is prima facie entitled to credit. But even his credibility may, and ought to be, determined by the jury, if there is room for a rational doubt of the correctness of his testimony when applied to all the facts in the case.

Here the terms spirit-gas and burning-fluid, if these are regarded as specific names, prima facie import different things. The general designation, burning-fluid, if it has not a specific, technical meaning, would embrace oil or turpentine, or any other combustible fluid; or, at least, a fluid of any kind used for burning. If it had acquired a technical meaning, and designated a particular article used for producing light, it was of some materiality to know whether that meaning was general, and the place where the terms burning-fluid and spirit-gas were used to indicate the same article, was important. The witness not only spoke of his knowledge on that subject as acquired and founded upon the use of-the terms in Utica, three years before, but admitted that he had never dealt in or manufactured the articles in the city of New York, and did not know any thing about the trade in said city, except, that when he purchased for his own -use, he called for burning-fluid. The witness was the agent of the defendants. The jury and the court both had an opportunity to see the witness and his manner while testifying, and we think, that it cannot be said, upon the whole of his testimony, that as matter of law, the court should have told the jury to believe his evidence on the direct examination, and find for the defendants accordingly.

And though we should feel some hesitation in refusing a new trial if the case was before us upon the broader grounds presented by a motion to set aside the verdict, we feel constrained to say, that the defendants’ exception, in the particular now under consideration, was not well taken, and therefore, that the judgment must be affirmed.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Bosworth, J.

license: Public Domain

text:
    Williams v. Riel and Granges.
    An affidavit, verifying a complaint, which merely states that the complaint is true, without stating that it is true to the knowledge of the party making the affidavit, is substantially defective. A defendant, in such a case, may serve an unverified answer. If the plaintiff refuses to receive the answer, and enters up judgment, the latter will be set aside for irregularity.
    When the affidavit of verification, annexed to the copy of a complaint, contains neither the name of any person who has sworn to it, nor of any officer before whom it has been sworn to, it may be treated as unverified, and an unverified answer may be served.
    At Chambers,
    Sept. 27, 1855.
    The defendant, Riel, moves to set aside a judgment, which has been entered against him, for irregularity. An unverified answer was served on plaintiff’s attorney, within twenty days after service of the summons; He returned it, with a notice in writing, that he^refused to receive it, because it was not verified. After twenty days from the service of the summons, the plaintiff entered up judgment, as for want of an answer.

      The defendant insists, that the verification of the complaint was so defective, that he had a right to treat the complaint as an unverified pleading, and to serve an unverified answer. That is the only question that arises on this motion.
    The complaint is on a note made by Granger, payable to order of Riel, and by him endorsed to the plaintiff. The allegation, as to the making of the note, its contents, its delivery to the payee, the endorsement and delivery of it by him to the plaintiff, its presentment at maturity for payment, its non-payment, and notice to the endorser, are direct and absolute. Nothing is alleged on information and belief. The verification is in these words:
    11 City and County of New York, ss:—Joseph H. Williams, the plaintiff, being duly sworn, says—That he has read the foregoing complaint, and knows the contents thereof, and that the same is true.
    “ Sworn to before me, &c."

      J. R. Flanagan, for defendant, Riel.

      Geo. Stevenson, for plaintiff.
   Bosworth, J.

The Code requires that the affidavit, verifying a pleading, shall “ be to the effect, that the same is true to the knowledge of the person making it, except as to those matters stated on information and belief, and as to those matters, he believes it to be true."

The affidavit, in this case, does not state that the person making it has any knowledge, whether the complaint is true or not.

The Code is not satisfied with an affidavit which states that a pleading is true, and states only that. It must also state that the person making it knows every averment in it to be true, except such as the pleading itself professes to state on information and belief.

The verification being substantially defective, the next question is, what course may a party, served with such a pleading, pursue in reference to it?

The complaint is perfect, as a pleading,' without being verified. The verification is important, merely with reference to subsequent proceedings. If the complaint is verified, the answer must be, or it may be refused. If no answer is put in, a plaintiff, in some cases, may take judgment for the amount mentioned in the summons ; whereas, if not verified, an assessment and proof of damages would be necessary before judgment could be entered.

It is obvious, therefore, that a defendant must answer a complaint, whether it is verified or not. If not verified, the answer need not be. If a plaintiff wishes to verify his complaint, there is no difficulty in domg it with substantial accuracy. If he chooses to leave it substantially defective, a defendant should be permitted to disregard the verification, and treat it as an unverified pleading.

The following decisions support this view:—Quin v. Tilton, 2 Duer, 648; Lane v. Morse, 5 How. Pr. 394; Waggoner v. Brown, 8th id. 212; Fitz v. Bigelow, 5th id. 237; Hubbard v. Cutter, 11th id. 149-152.

If this view be correct, the judgment was irregularly entered. An order will be entered, setting it aside, with $5 costs, and declaring the service of the answer to be regular, on defendant’s stipulating not to bring any action by reason of the levying of the execution issued on the judgment.
      Note.—In October, 1866, in Hughes, et al, v. Wood, the defendant moved to set aside a judgment, for irregularity. The summons and complaint were served on the 16th of September, and. judgment was entered October I, for want of an answer. An unverified answer had been served, on the 6th of September, and was returned, for the reason that it was not verified. The defendant produced the copy of the complaint, that had been served with the summons. The copy of the verification, annexed to it, did not contain, in any part of it, the name of an affiant, nor the name of any officer before whom it had been sworn to.
      Boswokth, J.—A defendant is not obliged to verify his answer unless the complaint is duly verified. Whether the latter had been sworn to, or by or before whom, the defendant could only know from the copy of the complaint served on him. That did not notify him that either of the plaintiffs, or any one in their behalf, had sworn to it. Having no such notice, he was right in treating it as unverified, and putting in an unsworn answer. The plaintiff being clearly irregular, I have no right to consider the question, whether the defendant has merits, or his motive is to delay. The plaintiff's attorney having acted in good faith, but erroneously, the judgment ia set aside, with $6 costs.


text:
    J, H. Howard and Chas. Brown v. Taylor.
    When, pendente lite, in an action on contract, the plaintiffs sell and assign the subject matter of the action to a third person, he will not be substituted as plaintiff, on motion of the plaintiffs to the record, and without notice to him. The alleged purchaser is the person to move for substitution; and he should do so, on notice to the plaintiffs, as well as to the defendant. Even in such a case, it is not a matter of course, to order a substitution, without imposing any conditions.
    At Chambers,
    October 6, 1855.
    On an affidavit of C. Brown, that this action is on contract, to recover $314, is at issue, that plaintiffs have assigned their interest in the subject matter of the action to John C. Brown, and that the affiant, C. Brown, is desirous the latter should be substituted as plaintiff in this action; the plaintiffs, on a notice from their attorney to the defendant, and to him only, move for an order making such substitution.' This is opposed, on the ground that the pretended purchaser is the proper party to make the motion.

      M. K. Burke, for plaintiff.

      H. W. Johnson, for defendant.
   Bosworth, J.

This motion is made under section 121 of the Code. No notice of it has been given to John C. Browm, and the motion is not made by him, nor on his behalf. He has not had a chance to be heard. He may deny that he has bought the right of action. If the motion was granted, a third person might be made plaintiff in the action, not only without his knowledge, •but against his will. If he claims to have purchased the subject matter of the action, he should move to be substituted, if he wishes to be made plaintiff upon the record, and should move on .notice to the plaintiffs as well as to the defendants.

But if he should move- for such a substitution, and it should be apparent that the main motive for the change was, to make the present plaintiffs witnesses, the court might impose, as a condition, that he stipulate not to call them as witnesses. (6 Howard, Pr. R. 220.)

In the case of such a change of interests, pendente lite, it is discretionary with the court to allow a substitution of the purchaser as plaintiff. Where a substitution cannot prejudice any right or remedy of the defendant, it would be almost a matter of course to permit it. When such a result would be produced by the change, the court would either refuse to permit it, or would grant it only on such terms as would protect the defendant from injury.


author: By the Court. Hoffman, J.

text:
    James E. Cooley and John Keese, respondents, v. William Beach Lawrence and William B. Lawrence, Jr., appellants.
    In removing a cause from the state courts to the Circuit Court of the United States, the defendant shall, at the time of entering his appearance in such state court, file a petition for the removal of the cause for trial into the next Circuit Court to be held in the district where the suit is pending, and offer good and sufficient Surety for his entering in such court, on the first day of its session, copies of said process against him; and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein.

      Held, that the entry of an appearance in a state court must be interpreted by the course and practice of that court; and that what is held in such court to be a submission to its authority in the cause, whether coerced or voluntary, must be deemed an appearance. And further, when such submission has once been made, it cannot be retracted.

      Held, also, that the defendants, by appearing, in this action, by counsel, and op posing a motion for an injunction, and reading affidavits in opposition to such motion, and filing the same, with the names of their attorneys in this action endorsed thereon; and by moving that all proceedings in this action be stayed, had submitted themselves to the jurisdiction of the court, and appeared in the action unconditionally.
    (Before Oakley, Ch. J., Dubb, Boswobth, Campbell and Hoffman, J. J.)
    October term, 1855.
    This action comes before tbe court on an appeal by the defendants from an order made by Mr. Justice Duer, denying a motion; to remove it into the Circuit Court of the U. S. A., and to stay all proceedings in this court.
    William Beach Lawrence, one of the defendants in this action, had granted a lease to the plaintiffs of certain premises in the city of Hew York, with covenants of renewal. He made the usual affidavit of the tenants’ holding over after the expiration of the term, and obtained from a justice a summons to show cause why possession of the premises should not be delivered to him, under the statute of this state.
    While the proceedings before the justice were pending, the plaintiffs herein commenced their, action, and in their complaint set forth the covenants of renewal in the lease, and averred a fulfilment of all the covenants binding upon them, and stated a demand for a renewal of the lease according to its provisions. They asked judgment for a specific performance of such eovevants of renewal, and an injunction to restrain the defendants from further prosecuting their proceedings for obtaining possession in the justice’s court.
    An order to show cause why an injunction should not issue, was granted by one of the justices of this court, with a temporary injunction to restrain the proceedings until such application could be heard. This order, with the summons and complaint, were personally served upon both defendants. They appeared upon the return-day, the 10th of May, 1855, by their counsel, to oppose the same; and presented and filed with this court an affidavit, entitled in the action, endorsed with the names of “ Platt, Gerard, and Buckley, defendants’ attorneys.” On this, and the arguments of counsel, the motion was resisted.
    On the 16th of May, an order of this court was made, which recited the making of the order to show cause, and its contents, and concluded as follows:—“And the said parties having duly appeared, pursuant to the said order, to show cause—and the deféndants’ counsel having read the affidavits of the defendants, and the plaintiffs’ counsel having read affidavits on their part, and on hearing Mr. Cutler for the continuance of the injunction order, and Mr: Gerard in opposition thereto—it is ordered that the said injunction order be continued until the final determination of this action, and that the plaintiffs file an undertaking in the sum of five thousand dollars, to be executed by the plaintiff, Cooley, in addition to the undertaking in the sum of five thousand dollars heretofore made and filed by him in this action, and that the said bond be executed with sureties in the usual manner.”

      On the 24th of May, 1855, the defendants filed their petition (with the requisite bond) for the removal of this action into the Circuit Court of the United States, and to stay all further proceedings on this action. On the 25th of May an order to show cause why such removal and stay should not be granted, was made; and on the 6th of June, 1855, an order was made, as follows :—■
    “ The defendants’ motion to remove this action into the Circuit Court of the United States, coming on to be heard, and having been argued by Mr. Platt for the motion, and Mr. Cutler in opposition thereto; and it appearing to the court that the defendants appeared by their counsel and opposed a motion for an injunction, and read and filed papers in opposition to such motion; and the court being of opinion that by so doing the defendants submitted themselves to the jurisdiction of this court, and virtually appeared in this action, and that sucn appearance was made on the 14th day of May last, and before the said petition for removal was filed, and that it is, therefore, too late to make such application for removal ;
    “ It is ordered, that the said motion to remove the said action to the Circuit Court of the United States, and to stay all proceedings in this court, be, and the same is hereby denied, without costs.”
    From the latter order the defendants appealed to the General Term.

      Peter Y. Cutler, for plaintiffs and respondents.

      James N. Platt, for defendants and appellants.
   By the Court. Hoffman, J.

The Act of Congress may be thus analyzed: It is to be made to appear, to the satisfaction of the state court, that a suit is commenced in it by a -citizen of the state in which the suit is brought, against a citizen of another state; next, that the matter in dispute exceeds the aforesaid sum, or value, of five hundred dollars, exclusive of costs.

Again: the defendant shall, at the time of entering his appearance in such state court, file a petition for the removal of the cause for trial into the next Circuit Court to be held in the district where the suit is pending, and offer good and sufficient surety for his entering in such court, on the first day of its session, copies of the said process against him, and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein. These pre-requisites being complied with, it shall then be the duty of the state court to accept the surety, and proceed no further in the cause; and any bail that may have been originally taken shall be discharged.

The preceding section of the same Act (Act 1789, Ingersoll’s Abridg. § 9, p. 87) declares that the Circuit Courts shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and (among other cases) when the suit is between a citizen of the state where the suit is brought, and a citizen of another state.

Ho one contests that the jurisdiction of the state courts, and that of the United States courts, is concurrent. It is an admitted rule, that in cases of concurrent authority, the tribunal which first obtains jurisdiction, and is competent to administer it, will retain it, and another will not interfere. It is equally certain that the Act of Congress confers a privilege innovating upon this rule, and prescribing how and when this privilege may be exercised. It seems to me a manifest deduction that the statute must be, in its fair construction, pursued, or the acknowledged jurisdiction of the first tribunal must be sustained.

In accordance with such a view, the courts of .the United States have remanded causes, where the application was too late, or the state court had improperly allowed the removal. (Gibson v. Johnson, 1 Peters, C. C. 44; Wright v. Wells, id. 220; Administrators of Belknap v. The Northern R. R. Co., 25 Ver. 715; Ladd v. Tudor, 3 Wood. & Minot, 326; Ward v. Airedando, 1 Paine’s C. C. R. 410.)

The right of determining whether the state court will continue to exercise an admitted jurisdiction in a cause, must exist to some extent in that court in the same manner as it exists in the Circuit Court of the United States, to decide whether it possesses it. In each case the court is governed by the statute, and in each tribunal that statute must be interpreted and applied to the particular case. The state court must be satisfied as to the sufficiency of the surety. It must be satisfied that the sum or value in dispute exceeds $500, a question regulated by the amount claimed in the action. (16 Peters, 104.) And it is to judge whether the petition has been filed, at the time of entering the appearance in that court. Thus far a discretion, indeed a duty, is incumbent upon the state court.

The question, then, comes to this: What is the meaning of the phrase, entering his appearance in the state court, which the statute employs ?

By a rule of the Supreme Court of this state, which has long been in force, service of an appearance or retainer by an attorney, shall, in all cases, be deemed an appearance, except where special bail is required. And the plaintiff, on filing such notice at any time thereafter, may have the appearance of the defendant entered nunc pro tunc. (Rule 26 of Supreme Court; Rule 25 id., 1847; Rule 7, 1854.)

The notice of retainer was, in Francis v. Sitts, (2 Hill, 362,) held to have the same effect as if the defendant had actually entered an appearance with the clerk. ' In M'Kenzie v. Van Zandt, (1 Wend. 1,) a notice of a motion to be made by an attorney, as attorney for the defendant, was held equivalent to a notice of retainer, and that to an appearance. (See, also, Quick v. Merrill. 3 Caines, 133.)

By the 139th section of the Code, from the time of a service of a summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant is equivalent to personal service of the summons upon him.

The summons prescribed by the Code, and used in this case, no complaint accompanying it, does not require a defendant to appear, but only to answer. (§ 128.) By the 130th section, the defendant may compel service of the complaint, by causing notice of appearance to be given, where the complaint is not served with the summons. When it is beyond all doubt, an answer, with notice of retainer by an attorney, would be a sufficient appearance.

Under the 139th section, this court has held, that where a defendant served an answer, it was such a voluntary appearance as precluded him from saying that jurisdiction did not appear on the record, on the ground that it did not appear that one of the parties, jointly liable on contract, had been served with process, or resided within the city. The objection was personal, and cured by such appearance. (Mahany v. Penman, 4 Duer, 603.) So in Higgings v. Rockwell, (2 Duer, 650,) Justice Bosworth says, the voluntary appearance of a party subjects him to the same liabilities as if the summons had been personally served upon him; and he acquires all the rights of a party personally served.

What, then, is the entry of an appearance in a state court must be interpreted by the course and practice of that court; and, I think, that what is held in such court to be a submission to its authority in the cause, whether coerced or voluntary, must be deemed an appearance: and further, when such submission has once been made, it cannot be retracted.

With this exposition several decisions in our state will be found to agree, where the motion has been either granted or denied. In support of this proposition, the opinion cited and commented upon: (Jackson v. Cantine, 4 J. R. 493; Redmond v. Russell, 12 J. R. 153; Livingston v. Gibbons, 4 J. Ch. R. 94; Attorney-General v. Pearson, 7 Simons, 302; Norton v. Hayes, 4 Denio, 245; Field v. Blair, Code Rep. N. S. 292 and 361.)

The views taken by Justice Spencer and Chancellor Kent, in the cases cited, are consistent with decisions or opinions expressed in the Supreme Court of the United States. Thus, Mr. Justice Catón, in the case of Randall v. The Delaware and Raritan Company, (14 Howard, 80,) where he speaks of the injustice of citizens of another state being forced into the state courts, as tending to deprive them of the benefits of the constitution, speaks of it as being done without the power of election. And Mr. Justice Grier, in Marshall v. The Baltimore and Ohio Railroad Company, (16 Howard, 329,) while he condemns the interpretation of the act as if it were a penal statute, to be construed by its very letter, without regard to its meaning and spirit, yet speaks of it as conferring a privilege, and that the right of choosing an impartial tribunal is- a privilege of no small practical importance.

All these authorities show that the question is, whether the appearance of the defendant has been an act importing that he submits the determination of a material question of his case to the judgment of the court. It appears to us that few acts can be more conclusive than an appearance by counsel in open court, upon the argument of a motion for injunction, the reading of affidavits to oppose it, the endorsement of such affidavits with the names of attorneys, and a motion by defendants to stay all proceedings, and the recital of all this in an order of the court. And, especially, when this appearance and this resistance is to decide the chief, if not the only point of controversy in the cause.

The order appealed from must be affirmed, with costs.

The opinion is reported at length in 12 How. Pr. R. 176.


text:
    F. & N. Reynolds v. Davis & Brooks.
    Actions commenced and at issue before the Code took effect may be noticed for trial by the defendant, as well .as by the plaintiff.
    At Chambers,
    October 20, 1855.
    This action was put at issue some years before the Code took effect. It having been tried, and a new trial ordered, the defendants noticed it for trial for the present October term of this court, and placed it on the calendar. When it was reached and called, in its place on the calendar, the plaintiffs objected that the defendants had no right to notice it, it having been put at issue before the Code. They insisted that the only remedy of the defendants, in case the plaintiffs have neglected to bring the action to trial according to the course and practice of the court, is to move for judgment, as in cases of nonsuit, or for an order dismissing the complaint. The action was reserved generally, in order that the question might be formally presented at Chambers. The defendants now move, that the cause may be set down to be tried on some day to be designated by the court.
    This is resisted by the plaintiffs, on the ground that the defendants have no right to notice it.

      Livingston K. Miller, for the defendants.

      J. Larocgue, for the plaintiffs.
   Bosworth, J.

The determination of the question presented depends upon the construction that is to be given to section 459 of the Code. So much of it as needs to be considered is in these words:—

“ § 459. The provisions of this act apply to future proceedings in actions or suits heretofore commenced, and now pending, as follows:
“ 1. If there have been no pleading therein, to the pleadings and all subsequent proceedings.
“2. When there is an issue of law or of fact, or any other question of fact to be tried, to the trial and all subsequent proceedings.”

It is conceded, that if the action had been commenced before the Code, but no pleading had been had until after the Code took effect, section 459 of the Code (as it now reads) would give to the defendants a right to notice the action for trial. That any defendant may do, in any action commenced since the Code took effect. (Section 255.)

If it was the intent to allow a defendant to notice for trial all actions commenced before the Code, provided there had been, no pleading in them before the Code took effect, it is difficult to understand why that privilege should be denied, merely because the action had been put at issue, unless the language of section 459 is so clear as to admit of no doubt.

I think the fair meaning of the section is this: If there had been no pleading in the action, not only were the pleadings to be in the form prescribed by the Code, but the practice throughout the action, in every stage of it to its termination, was to be such as the Code has enacted.

If pleading had commenced, that was to be completed according to the rules of the system under which it was commenced. When the cause should be put at issue, the next thing in the order of proceeding would be its trial.

If at issue when the Code took effect, it intended that all subsequent proceedings in the action, should be such as the Code has prescribed. The phrase, that the provisions of the act should apply “ to the trial and all subsequent proceedings,” includes as well the giving notice of trial, and the time of serving it, and the filing a note of issue, as the actual trial after a jury has been called and sworn.

The title of the Code, which contains all the provisions regulating the mode of trial, whether by the court, before a jury, or by referees, and all subsequent proceedings to and including the entry of judgment, is entitled, “Of the trial and judgment in civil actions.” (Code, title viii.)'

The second chapter of this title, which is entitled “ Issues and the Mode of Trial,” provides that the action may be noticed by either party. (Section 206.)

It is obvious that the words, “the trial,” if used in section 459 in the sense in which they are employed in other parts of the Code, include as well the proceedings necessary to be taken to give the right to try, and as any proceeding that may be taken on the actual trial.

The defendants had a right to notice the action, and, unless the counsel agree upon a day for the trial, the court will designate one in the order to be entered.


author: By the Court. Bosworth, J.

text:
    M’Quade v. The New York and Erie Railroad Company.
    When an action has been twice tried, the jury disagreeing on the first trial, and finding for the plaintiff on the second, and a new trial is granted to defendant on condition that he “ pays the costs of the second trial,”—all he is bound to pay is the costs of the term at which the second trial was had. He is not bound to pay the fees of plaintiff’s witnesses for attending at a term, or circuit, intermediate to those at which the two trials were had..
    Nor should he be required to pay the amount of any per centage that may have been allowed to the plaintiff, on the coming in of the verdict. That is to be granted to the party who recovers final judgment: not to both parties, as might happen if treated solely as a compensation for the labor and expenses of a trial. It is not to be allowed but once. When granted, it is allowed to the prevailing party by way of indemnity for his expenses in the action; and as well for expenses in one stage of the action as in any other, down to the entry of judgment,
    (Before Oakley, Ch. J., Campbell, Boswokth, Hoffman and Slosson, J.J.)
    General Term,
    October, 1855.
    This action was first tried in February, 1854, and the jury disagreed. It was noticed, and on the calendar for the following March and April terms. It was on the day calendar, and called in its order on the 27th of April, and the plaintiff not appearing, the complaint was dismissed. On the 17th of May, an order was made vacating that dismissing the complaint, and directing the cause to be restored to the calendar and tried on the first Tuesday of June, 1854, or as soon thereafter as the same was reached; and also directing that the fees of the witnesses on the part of the defendants attending on the April trial term, and ten dollars costs of the motion, should be deducted from any recovery which might be had by the plaintiff.
    The cause was placed on the calendar and tried in the June term, 1854—the trial commencing on the 13th and ending on the 17th of June—a verdict was rendered for the plaintiff. On the 17th of June, 1854, an allowance of $175 was made in favor of the plaintiff.
    At the January Special Term, 1855, the defendant moved for a new trial, which was denied, but without costs.
    On the 8th of January, 1855, the plaintiff’s costs of the action were adjusted. At the foot of the adjusted bill is this statement, viz.:—
    Costs adjusted at........$568.50
    Allowances .... 175.00
    Costs of motions—(October 10, 1854, $10; October 13,
    1854, $10)........20.00
    Interest on judgment, $3,000 122.50
    $886.00
    On the 24th of January, 1855, judgment was perfected and a roll filed.
    The defendant appealed to the General Term, and in June, 1855, a new trial was granted, on condition that defendant “paid the costs of the second trial,”—the costs of the appeal being left to abide the event.
    In the bill of costs, as adjusted on the 8th of January, 1854, there was allowed to the plaintiff, viz.:—
    For attendance of witnesses at the March term, 1854 . $89.24
    do do. April term, 1854 . 91.24

      For jurors’ fees, clerk’s fees, and fees for attendance of
    witnesses at June term, and a trial fee . . . $164.08
    One hundred and sixty-four" dollars, eight cents, have been paid and accepted in full of the costs of the June term.
    The questions now presented are, first, whether the defendant is bound to pay more than the $164.08, in order to comply with the terms of the condition on which a new trial was granted.
    At the time they were paid, the counsel of the parties differed upon the question of the construction of the order as entered.
    They were paid under a stipulation that plaintiff might move the court for an order directing the costs of the March and April terms, and the allowance of $175 "to be paid. Plaintiff now moves for an order that they be paid in fifteen days, or, in default thereof, that the order granting a new trial be vacated.

      L. E. Bulkley, for plaintiff.

      D. B. Baton, for defendants.
   By the Court. Bosworth, J.

A new calendar was made for the term, commencing on the first Monday of April, 1854. That, by an order of the court, was continued through the months of May and June, and causes noticed for the May and June terms were placed at the foot of the calendar, as it stood at the beginning of those months respectively.

When a cause is tried, after having been noticed for circuits prior to that at which a verdict is obtained, and a new trial after-wards is granted on payment of costs, or of the costs of the trial; the only costs to be paid are those of the circuit or term at which the trial occurred.

When successive circuits or terms commence, as often occurs in this court, on the Monday succeeding the Saturday on which the next preceding one ended, if a cause should be on the day calendar at the close of one term, but not be actually reached until the next, it might be very proper to require a defendant to pay the costs of the necessary attendance of witnesses, for both of such terms. So, if there was such prospect of the cause being reached in the last week of a term, that common prudence would require witnesses, living out of the city, to be subpoenaed to attend, within that week, it might be proper to include, in the costs to be paid, the fees of the attendance of such witnesses, although the cause might not, in fact, be called and tried until the subsequent term.

But such a rule should not be applied to terms which are not for any purpose to be regarded as one term. There was one calendar for the January, February, and March terms. A new calendar was made up for April, which, by order of the court, continued the calendar of that, and of the May and June terms. There is no more connection in intendment of law between the March and April terms, nor under any orders or practice of the court, than between the January and June terms.

We think the costs of the March term cannot be allowed to the plaintiff, under the decision of the court, nor according to the usual practice in respect to the costs to be paid on granting new trials.

The costs of the April term should not be allowed. The plaintiff was not only in default in not trying the cause at that term, which of itself is an answer to his claim to such costs, but be has been ordered, by an order still in force, to pay the fees for the attendance of the defendants’ witnesses for the same term.

The court at General Term did not intend to, and could not properly have altered the rights and liabilities of the parties with respect to such costs, so far as they are affected or fixed by the order of the 17th of May, 1854.

The only other matter to be considered, relates to the allowance of $175.

We understand that a per centage, when allowed on the ground that the case is difficult or extraordinary, is not merely to compensate for an actual trial, but for the skill and labor employed, and expenses incurred, from the commencement of the action to the recovery of judgment.

In some cases, full as much professional labor and skill are requisite in the proceedings prior to the notice of trial, as upon the trial itself.

The allowance of a per centage depends upon a judgment being recovered, and is to be granted to the party, who recovers the judgment. (Code, § 309.)

The judgment contemplated by § 309, is a final judgment in the action. It is the judgment or recovery, by which the right of the one party to recover, and the liability of the other to pay, the costs of the action, are determined.

It is the common practice for the Judge at the circuit, on the rendition of the verdict, to make an order for an allowance; but we do not think such an order can be deemed effectual, if the verdict is afterwards set aside, and a new trial granted.

In Hicks v. Waterman, (7 How. Pr. R. 370,) the plaintiff obtained a report of referees in his favor, and an allowance of a per centage.

Tne report was afterwards set aside, and a new trial granted on defendant’s “ paying to the plaintiff the costs of the reference heretofore had.” Mr. Justice Barculo decided that the terms of the order did not entitle the plaintiff to the per centage, and that, on a proper construction of the Code, the defendant could not be required to pay it.

These extra allowances, like those whose amounts are specified in § 307, when made, are, in the language of § 303, granted to the prevailing party, “by way of indemnity for his expenses in the action.”

In this vie\yof the provisions of the title relating to costs, this court has often refused to allow a per centage when the cause had been over four or five times on the calendar, when one would have been granted if it had been tried at an earlier day after issue joined. Such a practice would be unreasonable, if the extra allowance is made solely or mainly to compensate for the expenses of a trial.

In several classes of cases, enumerated in § 308, an extra al- ' lowance may be made, though no trial is had. In the latter eases it is made by way of indemnity for expenses which are neither created nor increased by a trial. In cases in which a trial has been had, it is granted by way of indemnity against the expenses of the proceedings in every stage of the action down to the entry of judgment.

We are of the opinion that the plaintiff is not entitled, under the decision granting a new trial, to the $175.00. That when a new trial is granted for causes which, according to the settled practice of the courts, require the condition to be imposed, that the costs of the trial be paid; any extra allowance which may have been granted should not be deemed a part of the costs to be paid, nor payment of them be required.

If these views are correct, the defendants have paid all that they were required to pay, to comply with the conditions on which a new trial was granted.

The motion must be denied.


author: Hoffman, J.

text:
    George J. L. Thompson v. Abraham Van Vechten, and others.
    The steamboat Alida had been mortgaged, by successive mortgages, to four different parties, defendants in this case. Executions, upon judgments obtained in courts of this state, had been levied upon her; and, also, attachments issued from tribunals of the state. She was subject, also, to several admiralty liens, on which libels had been filed; and the marshal of the United States had seized her, and was advertising her for sale. The same had been done by some of the mortgagees, and by the sheriff. The marshal had taken possession under process from the District Court, before the present suit was commenced.
    Upon an application for a receiver,

      Held, that this court, in an action by a subsequent mortgagee of the Alida, could make no order which would interfere with the rights of the libellants in admiralty, who had first sued.
    That this court would not attempt to interfere, through a receiver or otherwise, with the possession of the marshal, taken under admiralty process.
    That this court would not interfere to prevent any of the parties enforcing their claims in the District Court of the United States, much less to interpose any obstructions to any exercise of jurisdiction by that court.

      Held, also, in consideration of the rules appearing to prevail in admiralty, that it was lawful and promotive of justice, to appoint a receiver of the rights and interests of all the parties who had not filed libels, in order that such rights and interests might be represented by one person in such court, to whom any surplus or remnants might be paid, if such court should see fit, and to be disposed of in the present suit in this court
    At Special Term,
    October, 1855.
    This action comes before the court on a motion, by the plaintiff, for the appointment of a receiver of the steamboat Alida, her tackle, &e.
    The motion was made upon the complaint and affidavits. The following appear to be the material facts:

      1. The steamboat Alida was mortgaged by the then owners to Daniel Drew, on the 30th of October, 1852. This mortgage is held, under various assignments, by the defendant, Abraham Yan Yechten, and he has advertised the vessel for sale.
    2. Nicholas Elmendorf having become the owner, mortgaged the vessel to one Prosper M. Shaw, and the defendant, on the 25th of February, 1854.
    3. The vessel was sold, under execution against Elmendorf, to John Yan Yechten, in July, 1854; and he mortgaged her to the plaintiff, by an instrument dated the 21st of March, 1855.
    4. He also mortgaged her again to the defendant, Elmore, in September, 1855.
    5. • Judgments were recovered against Nicholas Elmendorf and John Yan Yechten, in April, 1855, and levies on the vessel were made, under them, in the same month, in favor of The Westchester County Bank. These claims are now held by the defendant, Schoonmaker, under an assignment.
    6. Schoonmaker claims also a lien by virtue of judgment, execution, and levy in his own name, obtained against Nicholas Elmendorf.
    7. The Sheriff of Ulster county claims under a judgment against ■ John Yan Yechten, followed by an execution and levy, as he avers.
    8. The defendant Parrott obtained a warrant of attachment from the Supreme Court, under the state lien law, on the 26th of September, 1855. The Sheriff of New York has attached the vessel under the same.
    9. Some libels have been filed by material men in the District Court of the United States, on the admiralty side. The defendant Burbeck, and the defendant Elmore, have filed such libels among others. Some were filed before the commencement of this action. The marshal took possession, under process, in some of them, about the 22d of September, 1855, before the present suit, which was commenced on the 28th of September, 1855.
    It is not necessary to state the various grounds upon which the different parties seek to support their respective claims, or to. defeat those which conflict with their own.

      Mr. R. H. Sherwood, for the plaintiff.

      Mr. J. E. Burrell, Jr., for defendant Shaw.

      Mr. McMahon, a U Elmore.

      Mr. Van Vleech, ti tt Van Vechten.

      Mr. Fullerton, tt a Schoonmaker, and the Sheriff of Ulster.

      Mr. Marbury, tt u Burbeck.

      Mr. Wright, tt it Parrott,

      Mr. Vanderpoel, for the Sheriff of New York.
   Hoffman, J.

I am satisfied that, as to the parties who resorted to admiralty before the present suit, I have no right to interfere., I could not aid a receiver, by a writ of assistance, to take the vessel out of the custody of the marshal; and the appointment of a receiver would be so far nugatory. Such parties could not be enjoined from proceeding in the District Court. (2 Paige, 404; 7 Cranch, 278; 4 id. 179.)

In relation to the claim of Parrott, there is the embarrassment, that he has a legal claim enforced by attachment in the Supreme Court before this suit was commenced. I think that his rights must first be settled in the District Court, or the Supreme Court. If he submit his claim as holding a lien by the local law to the former, it can be there adjudged. His possession, through the sheriff, appears to have been subsequent to that of the marshal’s. Upon a condemnation and sale he could intervene. (The Ship Robert Fulton, 1 Paine’s Rep. 620; The Angelique, hereafter cited.) But by the 42d section of the statute, (2 R. S. 500,) he could not proceed in the state court while the vessel was under seizure upon process from the District Court. If his lien has been duly preserved under the act of 1855, it is plain that it must be protected in this, or any other state court, according to its legal effect. Although the Supreme Court would, I suppose, discharge his attachment his lien would be protected through a receiver here.

I proceed with the case upon the assumption that the District Court has a jurisdiction which it will exercise, and has possession of the steamboat.

But weighty reasons present themselves for granting a receiver, with modified authority, if it can be lawfully done, and will be effectual for the abridgment of litigation, and the attainment of justice. Here are four mortgagees, and several judgment and execution creditors, besides the libellants and attaching creditors, all contesting some claims, and scarcely one admitting fully any claim prior to his own. Will a receiver, appointed by this court, contribute to the proper settlement of this mass of litigation? Can the court, on this complaint and these affidavits, appoint one?

As to the first question, I think it essential to understand to what extent the Court of Admiralty will examine and determine these numerous and complicated claims, and upon what principle?

In the case of the Neptune, (3 Knapp, 94,) the Privy Council decided, that a material man had no lien on a vessel for materials furnished in England, nor subsequently upon the proceeds of a sale upon condemnation.

A mortgagee had taken possession before the process had issued out of the Court of Admiralty. The court below decreed in favor of material men. The Privy Council overruled the decision, and held that the mortgagee was entitled. “ The court held the balance of the proceeds, in mum jus habentium.'’

But as I understand the law in our country, where a state law gives a material man a lien, the Admiralty Court enforces it, although, according to its own process, (4 Wheaton, 438; 7 Peters, 324; 1 Story, 72; Davis v. New Brig, Gilpin’s Rep. 414; id. 537; and cases cited Rule 12 in admiralty.) I gather from the authorities, that a distribution of remnants in a Court of Admiralty will only be made among such as have a lien upon the vessel, suable in Admiralty, or have a lien precedently and legally fixed. Hence all attaching creditors, to whom a lien is given by a state law (as it is in our state) may apply for a distribution; and this rule is recognized in the case of the Robert Fulton, (1 Paine, 620.) In numerous instances, also, mortgagees, at least if they have taken possession, have been allowed to intervene, and have their rights adjusted in the Admiralty Court, for the proceeds of a sale in whole, or for remnants. The case of the Neptune seems express as to this, and that of the New Brig, (Gilpin, 552,) is equally decisive. See also the Kosciusko, (11 Legal Observer, 38.)

As to remnants, the court will not permit the owner to take them, against a mortgagee, whose mortgage is invalid against creditors and purchasers for want of formality, but will settle the claims of such a creditor and such a mortgagee upon equitable principles. (In rem, American Banner, October, 1855.)

But it is important to understand the decision of the learned and experienced Judge of this district, upon this subject. In the case of the Angelique, the matter was closely investigated.

As to material men, the learned Judge held, that as a lien was given them by local law, they could proceed in admiralty to enforce it. That the proceedings were to be governed by the practice and course of admiralty, not by the statutes or its analogies. That the state law will be observed as to all the conditions and provisions, attending the accruing or attaching, or determination of the lien. And that the Admiralty Court will enforce and carry out the lien as to priority of payment, in the same way as if it had been one under the maritime law. That only bottomry bonds and sailors’ wages had a preference under such law over all others; and that material men, &c., took priority in the order of the arrest of the property subject to their liens, and not pro rata, nor in the order of their claims accruing.

With respect to mortgagees of the vessel, he held in the opinion first delivered, that a mortgage, being an incumbrance or positive hypothecation of the vessel, is paramount in privilege to liens acquired subsequently. The exceptions are the rights of bottomry holders and seamen. A similar doctrine was laid down by his Honor in the case of the Kosciusko. (11 Legal Observer, 38.)

The case was again brought before him, and he decided, that the court could not compel mortgagees to come in and take satisfaction of their mortgages; that it had no power to adjust a scale of equities between numerous suitors presenting distinct interests; and that it had no chancery power to compel creditors to yield legal rights, and give place to claims clothed with no more than an equitable character.

That the mortgagees had not submitted to the court, and the result in the case was, that the lien remained unaffected by the marshal’s sale:

In the case of the Steamboat Hendrick Hudson v. Cobb & Willard, claimants, before Judge Hall, (7 Month. Law Rep. 98, June, 1854,) the following points were decided, after a full examination of the case of the Angelique.

That the custom of the lakes created a lien upon the vessel equivalent to a maritime lien, or privileged hypothecation.

That a common law mortgage, though recorded according to the law of the state, and filed under the Act of Congress, made prior to the accruing of such a lien, had no preference over it; but must be paid after such lien was discharged.

That a sentence and sale in admiralty wherever it had jurisdiction in rem, gave a perfect title to the purchaser against all the world; displaced every precedent or co-equal lien; and left the proceeds to be distributed and paid among rightful claimants." But it is consistent with this opinion, that if difficulties existed in adjusting such rights, which a Court of Admiralty could not satisfactorily meet, the proceeds, after satisfying the maritime liens, would be held by the court to be distributed by a proper tribunal.

Several instructive cases are cited to this point. The Portsea, (2 Hagg, 84;) the Exmouth, (Id. 88;) and the Flora, (1 Hagg, 298.)

In one, the proceeds were held subject to such an order as a court of common law or equity competent to settle the questions, might make. In another, the vessel had been seized by a sheriff, and was in his hands at the time that the warrant of arrest which issued from the admiralty, was executed; and the decree being satisfied, the surplus proceeds were paid over to the sheriff;

It is plain that, under such views, a receiver, who represented a mass of claimants under state laws, appointed by a court of competent jurisdiction, would present himself to the favorable consideration of a Court of Admiralty, and, I think, might urge strong reasons for a transfer of surplus funds to him, to be disposed of under the state laws, by a state tribunal. His union, also, with the marshal, in a sale, might be useful in attaining the most important object of making a perfect title.

And, again, upon the principles of Judge Betts, if the mortgagees do not intervene, and submit absolutely to the jurisdiction of the District Court, then the vessel would be sold, subject to their lien; and then I apprehend the lien would remain to be adjusted by a state court,

H, again, they do intervene, and submit, and are awarded a priority, it is done in opposition to the state law. A question may then be submitted to the District Court, whether, if a state court has obtained jurisdiction, in a suit commenced, as to such claimants, before they take any proceedings in the District Court, these claims should not be left to the state tribunal, and the state law.

I perceive, therefore, strong reasons, in every aspect of the case, for appointing a receiver, though with modified power.

Has the court the power to appoint one, under this complaint?

It is objected that the complainant has no right to file a complaint which, in truth, is one of foreclosure of a chattel mortgage. This objection is not tenable. I do not understand that the jurisdiction upon such a complaint is lost, although a sale, upon notice, has superseded the practice. (Hart v. Ten Eyck, 2 John. C. R. 100.)

It is, again, said that a subsequent mortgagee can only redeem-a prior mortgage, and cannot obtain a sale. That this proposition-is not universally true, is shown by the ease of The Western Insurance Company v. The Eagle Company, (1 Paige, 284.)

It is insisted that a receiver cannot be appointed over a prior mortgagee in possession, nor upon the opposition of a prior mortgagee.

Elmore, the mortgagee, who took possession on the 1st of September, 1855, does not oppose the application, as mortgagee. Shaw had not possession. And it has been repeatedly decided that a subsequent mortgagee may have a receiver where a prior mortgagee is not in possession, without prejudice to his rights. (Newman v. Newman, cited, 2 Br. C. R. 92, Betts’ ed. No. 7; Bryan v. Cormick, 1 Cox Ca. 422; Dalmer v. Dashwood, 2 Cox Ca. 378.)

I think there is no decisive objection to making the order for a receiver, with some qualifications as to the rights of the libellants in the District Court. The appointment of a receiver leaves all the rights of the parties to the action unprejudiced.

Justice Hoffman made an order which, exclusive of its recitals, reads thus:

It is ordered that Benjamin W. Bonney be, and he is, hereby appointed receiver of the said steamboat Alida, her tackle, apparel, and furniture, and of the rights, title, claims, and interests of all the parties in this action, other than the parties who have filed libels in the District Court of the United States, for the Southern District of Hew York, with the powers and modifications next expressed.

That such receiver in no wise interfere with the possession of such vessel now had by the marshal of the United States, or with that of any purchaser upon any sale which may be made under a sentence or decree of the District Court of the United States, for the Southern District of Hew York.

That in the case of the possession of such marshal being superseded by course of law, such receiver do thereupon take and hold possession of the same without prejudice to the right of the Sheriff of the County of Hew York, or of the defendant Parrott, to apply for such possession under the process issued from the Supreme Court, upon the application of the latter for an attachment.

That such receiver give notice, by service of a copy of this order or otherwise, to such marshal, of his appointment as such receiver.

That such receiver be at liberty to intervene in the suit or suits now pending in such District Court, on behalf of the parties in this action, other than those who have filed libels in such court, setting forth their claims respectively upon such vessel, and her proceeds, if sold, with his own appointment, and to seek such sentence or order as the said court shall see fit to make.

That such receiver be at liberty to unite with the said marshal in any sale which may be made, under a sentence or decree of the said District Court, so as to transfer to the purchaser the right, title, and interest of all the several parties hereto.

An appeal was taken from that order. The General Term, held by Oakley, Ch. J., and Campbell and Slosson, J. J., on the 22d of December, 1855, affirmed the order in all things, with this modification : That the order appealed from should be so modified as to declare that if the receiver intervened merely, without bonding, then “ the intervention of the receiver in the suits so pending in said District Court, in pursuance of the liberty hereby given to him, shall not be construed as preventing the defendant, Prosper P. Shaw, from appearing in the said suits, and intervening therein for the protection of his own rights and interests, nor as withdrawing the rights and interests of any of the parties to this action, from the exercise of any jurisdiction which the said District Court may have acquired, and deem it necessary or expedient to exercise.”

Mr. Bonney, the receiver, having intervened in the case of John E. Brower, libellant, in the District Court, an exceptive allegation was filed as to bis right, which was argued before Judge Betts, who sustained the intervention. In the case of Cornell v. The Alida, Judge Ingersoll made a similar decision. The receiver was held to be a proper representative of the mortgage, and execution creditors. Ultimately, the admiralty liens having been discharged out of the proceeds of a sale of the Alida, the surplus móneys were directed to be paid to the receiver, and the action in this court is now being prosecuted, to settle the various claims upon them.


author: Duer, J.

text:
    The Union Bank of Sandusky v. Torrey.
    On the execution of a commission the parties have a right to appear by counsel
    Cross-interrogatories cannot be withdrawn unless by mutual consent.
    A witness cannot shield himself from answering a cross-interrogatory by a reference to his previous answer to a direct one.
    At Special Term,
    November, 1855.
    Motion for a re-execution of a commission to examine witnesses..
    A commission had issued in this action for the examination of witnesses- at Sandusky, Ohio. The parties had united in the commission, and the defendants now applied for a re-execution of it, on the following grounds:—
    I. That the plaintiff, on the first execution of the commission, had appeared by counsel, without having given notice to the defendant, or his- attorneys, of his intention to do so.
    II. That the plaintiff’s cross-interrogatories, and the re-direct interrogatories on the part of the defendant, founded on the plaintiff’s cross, had not been put to the defendant’s witnesses, the counsel for the plaintiff having waived an examination, on his cross-interrogatories.
    III. That several of the defendant’s cross-interrogatories had been answered by a witness on the part of the plaintiff, only by a reference to previous answers given by him.

      Mr. Pike, for defendant.

      Mr. Chapman, for plaintiff.
   Duer, J.

There is no weight in the first objection. The parties have the same right to appear by counsel on the execution of a commission as on the trial of a cause, and notice of their intention to do so is no more necessary to be given in the one case than in the other. Had there been an agreement that counsel should not attend, its breach might have laid a ground for this motion, but although the fact was Suggested, the papers do not show that such an agreement was made.

The other objections that have been taken to the execution of this commission, I think have not been answered, and must prevail.

It was held by Mr. Justice Washington, (4 Wash. C. C. R. 324,) that cross-interrogatories cannot be withdrawn, unless by the consent of the adverse party. Walworth, Chancellor, (Brown v. Davis, 25 Wend. 259,) although he distinguishes this case from that then before the court, approves the decision. My brethren, whom I have consulted, all agree with me, that these authorities ought to be followed. A commissioner is, in a qualified sense, an officer of the court; in the execution of his trust he is bound to follow the instructions that are given to him, and from this duty he can only be relieved by the mutual consent of the parties, or of their counsel, given on the execution of the commission, and certified on its return.

The observation that the omission to cross-examine a witness can never work a prejudice to the party by whom the witness is called, when applied to the examination of a witness under a commission, is more specious than sound. It is not difficult to imagine cases in which the rights and interests of the party might be seriously affected by the omission. The direct interrogatories may not have been answered as explicitly and fully as they might and ought to have been. The answers to the cross-interrogatories might have supplied the defect, and these interrogatories may have been withdrawn in the belief that, if answered, such would be the consequence. It is at least possible, that such was the motive for withdrawing them in the case before me.

I am also of opinion that the answers of the plaintiffs’ witnesses to several of the cross-interrogatories on the part of the defendant must be deemed insufficient, and ought not to have been received by the commissioner.

A witness upon a trial can never shield himself from a cross-examination by a mere reference to the answers which he had given when examined in chief. He is bound, when so required, to state again the facts to which he had testified. The veracity or recollection of a witness may well be tested, by requiring him. to repeat, in all its details, a former narrative or statement, and it is a test which the adverse party has an undoubted right to apply. These rules, it seems to me, apply with equal force to the cross-examination of a witness under a commission.

The motion for the re-execution of the commission is therefore granted, with ten dollars costs to the defendant, to abide the event.

"When he had delivered his opinion in the above case, Mr. Justice Duer said that he was instructed by the. court to state, for the information of the bar, that when a commission has been returned,- and opened so that its contents might with reasonable diligence have been known to the parties before the trial of the cause, a motion for its suppression or re-execution on the ground of its irregular or defective execution, must be made at chambers, and would not be entertained by the Judge upon the trial. The objections on the trial would be limited to the competency of the witnesses or the admissibility of their testimony.


author: Bosworth, J.,

text:
    Chatham Bank v. Van Veghten.
    A complaint -will not he Bet aside, although neither that nor the copy served was folioed as required hy rule 41, if retained twelve days, without objecting to the defect. Such acceptance, and delay to object, waive the defect.
   Bosworth, J.,

so held, on the 29th of December, 1855. The defendant retained the copy of a complaint twelve days without objection, and then moved to set it aside, because it was not folioed. Held, that the proper course was to refuse to receive it because it did not conform to the 41st rule, and that accepting and retaining it twelve days without objection, waived the defect.


text:
    Watson v. Fitzsimmons.
    When the incipient proceeding to punish a party as for a contempt, is an order to show cause “ why he should not be punished for the alleged contempt," and the contempt is denied, it is not essential to the validity of any final order that may be made, that interrogatories should be filed.
    If a reference be ordered to ascertain and report the testimony and the facts, and both parties appear before the referee and submit evidence, the defendant cannot object on the final hearing upon the report, that no interrogatories had been filed and answered.
    In proceedings supplementary to execution, the judgment debtor cannot he punished, as for a contempt, for refusing to deliver his property to the receiver, when the order appointing the receiver does not contain such a direction, and no subsequent order to that effect has been made.
    At Special Term,
    December 31, 1855.
    The plaintiff, a judgment creditor of the defendant, obtained an order supplementary to execution, in the usual form, dated the 18th of October, 1854. The defendant appeared and was examined, and on the 15th of February, 1855, a receiver of his property was appointed. On the 22d of October, 1855, an order was made on the papers annexed to it, that defendant show cause “why he should not be punished for the alleged misconduct,” which was, that he had refused to deliver his property to the receiver, or why such further order, as was proper, should not be made. Mo order existed requiring him to so deliver his property to the receiver. On the 22d of October, on the return of that order, he denied the alleged contempt, and thereupon a further order was made referring it to a referee to examine the defendant and other witnesses, and take testimony and report the same, and whether the defendant was guilty of a contempt, either in disposing of his property contrary to the prohibitions of the order of the 18th of October, 1854, or in refusing to deliver his property to a receiver.
    The referee examined the defendant and other persons, and took other testimony, and reported, as his opinion thereon, that the defendant was guilty of a contempt in both respects.
    On the 2Tth of December, 1855, the plaintiff moved, before Bosworth, J., sitting at Special Term, on the referee’s report and all the prior proceedings, for an order adjudging the defendant guilty of a contempt, in both respects.

      Chas. H. Hunt, for plaintiff.

      F. H. P. Bryan, for defendant,
    Insisted that the Judge or court had no power to make the order applied for, on the papers before him. That a party, denying an alleged contempt, cannot be adjudged guilty of it, until after interrogatories had been put to, and been answered by him. That the most that could now be done, was to order interrogatories to be filed and answered, or an attachment to be issued. The other-points discussed, related rather to the merits, than to the proper mode of proceeding.
   Bosworth, J.,

held, that 2d R. S. 536, § 5, prescribes two modes of proceeding: one, an order to show cause why the defendant “ should not be punished for the alleged contemptthe other, “ an attachment to arrest such party, and to bring him before such court to answer for the alleged contempt.” The statute is silent, when the mode first named is adopted, as to the course to be thereafter pursued, whether the defendant appears or fails to appear. It may, therefore, be such as conforms to the general practice of the court upon any order to show cause why relief should not be granted.

Section 19, (2 R. S. 537,) which requires written interrogatories to be filed, and written answers, on oath, to be made to them, by its express terms, relate to a “ defendant arrested upon an attachment.” That is also a proper course when a defendant appears upon an order to show cause why he should not be punished, but the statute does not, in terms, require it, in such a case. (2 Sand. S. C. R. 727 and 728.)

This proceeding is one had in the action in which the judgment was recovered, and § 271, sub. 3, authorizes a reference in such a case. The order of reference was clearly not void, and the defendant not having appealed from it, but, on the contrary, having been examined under it, cannot object now, to its validity or regularity, nor to that of proceedings regularly had under it.

For good cause, the court in its discretion, might send the matter back to the referee to take further testimony, but no such application is made.

The proceedings are regular, and the defendant must be adjudged guilty of a contempt, in having disposed of his property in violation of the injunction contained in the order of the 18th of October, 1854. The order of reference directed an investigation of that matter, and the defendant cannot now object that it was not specified in the order to show cause.

But in refusing to deliver his property to the receiver, he has not disobeyed any order of the court, for none has been made requiring him to so deliver it. He refused to do that which it was his duty to do ; but that was a duty resulting from a change of title to the property produced by the appointment of a receiver, and not from an order which he had refused to obey. To punish, as for a contempt, for refusing to deliver property to a receiver, an order requiring such delivery is a necessary pre-requisite. The Judge imposed a fine on the defendant, for having disposed of his property contrary to the order of the 18th of October, 1854. (On appeal to the General Term, the order was affirmed.)


text:
    Pratt v. Hoag.
    The court has no power to order a lis pendens to be taken from the files of the court, which is in proper form, and has been filed in an action in conformity with the provisions of the statute.
    Although an injunction, which had been granted, and which restrained the defendant from disposing of the real estate sought to be charged by the action, has been dissolved, on the defendant’s depositing in court a specific sum of money, as security for the payment of any judgment the plaintiff might recover; the lis pendens will not be ordered to be taken from the files of the court, notwithstanding its continuance may defeat a contract for the sale of the real estate, which the defendant may have made after the injunction was dissolved. A plaintiff may give actual notice of his claim to any person who contemplates purchasing, and he may give such a notice as the statute authorizes.
    At Special Term,
    January, 1856.
    The complaint makes a case for an accounting between the parties, in respect to the proceeds of the sales of two houses and lots in the city .of Kew York, in which they were jointly interested— claims a balance due the plaintiff, and prays-for an accounting, &e.
    It charges that a house and lot, on the Third avenue, in Kew York city, was bought, and paid for in part, with such proceeds, and conveyed to the defendant, and seeks to have such house and lot disposed of, if necessary, and proceeds applied to pay such balance as may be adjudged to be due to the plaintiff. An injunction was granted, prohibiting the defendant from disposing of this house and lot, until the further order of the court, and a lis pendens, in proper form, was filed with the clerk of the county.
    The injunction was dissolved on the 13th of December, 1855, by order of the court, on the defendant’s giving security approved by the court, in the sum of $1,600, to account for the proceeds of said Third avenue house and lot.
    The defendant contracted to sell and convey the house and lot, and the purchaser refused to complete his contract on account of the pendency of this action, and the lis pendens. The defendant now moves for an order, that the lis pendens be taken from the files of the clerk of the city and county of Kew York.

      David P. Whedon, for defendant,
    Insisted that the giving of the security, on which the injunction was dissolved, conferred the right to sell the property without any embarrassment to giving a good title, to result from this action, and the proceedings therein; and that the defendant acquired thereby an equitable right to have the lis pendens taken from the files of the clerk of the county.

      Robert H. Shannon, for plaintiff,
    Contended that the court had no power to grant the motion. That the security was a substitute for the injunction, and that only.
   Bosworth, J.

The filing of a lis pendens is an ordinary proceeding in an action, in which it is sought to subject specific real estate to the operation of any judgment that may be recovered.

It is indispensable, in order to affect persons who may purchase pendente lite, in ignorance of the plaintiff’s claim, that it should be filed. All who take the title after a notice, in proper form, has been filed with the proper officer, take it with the same consequences that would have resulted from a purchase with actual notice.

If no injunction had been granted, the filing of a lis pendens would have secured the plaintiff such rights to it in the hands of the purchaser, as might have existed against the defendant if he had continued to own it. If the plaintiff succeeds in establishing that he is, in equity, a part owner, and that full relief cannot be secured except by a sale of it, and payment to himself of such part of the proceeds as may be required to satisfy his just equitable claim, the filing of the lis pendens will enable the plaintiff to obtain the same relief though the property may have been conveyed pendente Hie.

Although the lis pendens is an ordinary proceeding, yet it is, in this state, the subject of statutory provisions. (2 R. S. 274, § 48; Code, § 132.)

The court has certainly no power to prevent the plaintiff from giving actual notice, if he can, to every person who may propose to purchase. I cannot imagine any principle on which it can prevent him from giving notice in the way the statute has provided. It cannot rightfully interfere, to take from the files of the clerk of the county a paper, in proper form, and regularly filed under the authority of a statute, which is a notice, in law, to all who may purchase.

The right also existed to obtain an injunction, on presenting a case which entitled the plaintiff to it. A case was made on which the court deemed it just to grant that relief! The court, subsequently, permitted the defendant to substitute security for the injunction, and, on the security being given, dissolved the injunction. When the court made the order dissolving the injunction, neither the court nor the defendant knew of the lis pendens, although it had been filed months previously thereto. That order, therefore, in contemplation of the court, as in contemplation of law, was security substituted for the injunction, and that only.

I think the motion should be denied, on the ground that the court is incompetent to grant the relief sought by it.

The motion is denied, with $7 costs.