author: By the Court. Oakley, Ch. J.

text:
    Anderson v. Johnson and others.

    Under a replication to a plea of a release in bar, that the release was obtained from the plaintiff by fraud, the plaintiff can only prove fraud in its execution ; such as a fraudulent reading of the release, or its substitution for some other paper, or that by some device a different instrument was given from that intended. He cannot prove that the release was obtained from the plaintiff in fraud of the rights of his attorney to whom the demand released equitably belonged.
    (Before Oaklet, Ch. J. and Vabderfoel and Sabdford, J. J.)
    March 13 ;
    April 14, 1849.
    This was an action of debt on a bond for $250, dated January 13,1812, executed to the plaintiff Anderson, by Johnson as principal and the other two defendants as sureties, on suing out a writ of error from the common pleas of New York to the late supreme court, to remove a judgment recovered by Anderson against Johnson. The condition was in the usual form, that Johnson should pay the judgment below with costs and damages, in case the judgment were affirmed.
    The declaration counted on the bond, and for breach, set forth the affirmance of the judgment in the supreme court, with costs and damages, and the omission of Johnson -to pay the same.
    The defendants pleaded a release under seal, executed to them by Anderson after the commencement of the suit on the bond, by which he released and discharged the bond and all sums due or to grow due thereon, and all actions, &c., upon or growing out of the same.
    To this plea the plaintiff replied, that the release was had and obtained from him by fraud and covin of the defendants, upon which issue was joined.
    At the trial in December, 1848, the defendants proved the release executed by -the plaintiff, dated January 29, 1848. The consideration was proved to be a receipt given by the defendant Watson to the plaintiff for $150, on .a judgment in favor of Drummond and Watson against the plaintiff, and the payment of fifteen dollars in money. The defendants read in evidence the record of the last mentioned judgment, which was for $295 26, recovered in this court, for costs, in a suit of Anderson -against Drummond and Watson, in March, 1845.
    It was then proved on the part of the plaintiff, that the' judgment recovered by the plaintiff on the writ of error in the supreme court was for costs only, and that Samuel F. Clarlcson was the attorney for the plaintiff in that suit, as well as in this. That on the 20th of Hovember, 1843, Mr. Clarkson gaye a notice in writing to the defendants in this suit, that the judgment on the writ of error was for costs, and belonged to him-that Anderson had not paid any part of the costs to him, either in that suit or in the court below, and that the now defendants were forbidden to settle the costs with any one except him. That on the 12th of Januaay, 1848, a notice in this suit was served on Mr. Watson as defendant and as attorney for the defendants, -referring to the former notice, stating that Mi% Clarkson’s costs were not paid, forbidding them to make any .settlement with Anderson, and notifying them that any settlement with him would be illegal. The evidence of these notices was objected to by the defendants.
    The defendants then called the plaintiff as a witness, who testified that he executed the release freely -and fairly, after consultation with his own counsel; that he did not authorize this suit to be commenced; and that the suit against Drummond and Watson, which resulted in the judgment against him, was prosecuted by Mr. Clarkson without his consent, and for his own benefit.
    The judge directed a verdict for the plaintiff, with leave to the defendants to move to enter a nonsuit. They moved accordingly on a case.

      W. Watson, for the defendants,
    cited 2 Hall’s R. 433; 9 Cowen 34; 3 John. 425; 17 John. 291; 1 Mass. R. 117.

      8. F. Glcvrkson, for the plaintiff,
    cited 1 Chitty’s Pl. 570 [613]; 2 M. and Sel. 378; 1 John. Cas. 411; 11 John. R. 49; 15 ibid. 405; 1 Cowen 174; 4 ibid. 416; 13 Wend. 419; 1 Wheaton 233.

         This and several of the cases which follow, were omitted in their regular order, because they could not be prepared for the press in time.

   By the Court. Oakley, Ch. J.

The question arises on the testimony offered in support of the replication, and whether the latter can be sustained by such evidence.

Hie defendants contend that the only fact put in issue by such a replication to a plea of a release, is whether the release was obtained by any fraudulent device or practice, as by substituting one paper for another. He referred to Belden v. Davies, 2 Hall’s R. 433, in which there was an attempt to impeach a release by showing fraud in the consideration on which it was founded; and the court hold the evidence to be inadmissible, on the ground that the only fraud which could be pleaded at law, to avoid a deed, was fraud in its execution, such as a fraudulent reading of it, or the substituting of one instrument for another, or the obtaining by some device such an instrument as the party did not intend to give.

This decision, it will be observed, was before the revised statutes, which allow the obligee to plead and prove the want of consideration in defence of an action upon a sealed instrument. We do not think, on consideration, that the rule is altered as to the effect of a plea setting up fraud in the execution of the instrument. Hnder such a plea, we think that the same evidence, and no other, may be given, as was admissible in support of it before the revised statutes.

In a case like that sought to be proved by the plaintiff, the facts must be stated upon the record, in order to enable the court to protect the rights of the party. The plaintiff relied very much upon Martin v. Hawks, 15 John. 405; but that case differs essentially from this in the manner in which the question was presented. There the matter relied upon to defeat the release came up in evidence, in answer to a special notice with the plea of the general issue, setting up the release of the plaintiff in the judgment, in an action of debt for an escape, prosecuted by the attorney in the name of the plaintiff. It is true that the court there upheld the lien of the attorney for his costs (the judgment being for costs only), against the effect of the plaintiff’s release to the sheriff; but the case has no bearing upon the point before us.

The mistake here consists in putting in a general replication, f&r frau&em, instead of replying the special circumstances relied upon to show the equity of the attorney.

The plaintiff must be nonsuited, pursuant to the reservation to that effect at the trial.


source: Caselaw Access Project

license: Public Domain

text:
    Blunt v. Whitney and others.
    Where an action to recover counsel fees was referred after issue, by a rule of court, to three referees, to be heard and determined by them on legal and equitable principles, it was held, that the cause was thereby taken out of court, and submitted to arbitration, and that the court had no jurisdiction to hear a motion to set aside the referees’ report.
    The reference was a good parol submission to arbitration, and the plaintiff, in whose favor the referees reported, can maintain an action upon their report as an award.
    (Before Oaklet, Ch. J., and Vaneebpoel and Sahbfobd, J. J.)
    March 13,14;
    April 14, 1849.
    Tuts was a motion to set aside the report of refereés, made in favor of the plaintiff in the above suit; on which the plaintiff contended, that by the reference, the suit was out of court, and that the court could not entertain the motion. The facts are stated in the ojfinion of the judge.

      C. Livingston and W. C. Wetmore, for the defendants.

      J. Blunt, in person.
   By the Court. Oakley, Ch. J.

The plaintiff, Blunt, and the six defendants, Whitney and others, were the owners of real estate situated in the north-eastern part of the city of Hew York, and were annoyed by various erections of the butchers, which they complained of as nuisances, such as a hide house, a melting house, and the like. A public meeting of those interested in putting down these nuisances was held, at which a committee was appointed to raise funds for the purpose of removing them by legal proceedings. The plaintiff, and all the defendants in this suit, except J. C. Merritt, were members of this committee. It did not appear that any new committee was ever appointed, or any action had for that purpose.

A vigorous and protracted litigation with the butchers ensued. The committee directed the plaintiff, who was an attorney, solicitor and counsellor, to file one bill in chancery, and D. P. Hall, Esq., to file another; and they retained George Wood, Esq., as counsel. The direct action of the committee there ceased. The chancery suit proceeded, and an indictment for a nuisance was obtained and tried in respect of the melting house. After a long controversy the butchers were defeated, and the defendants and their associates were substantially successful in the litigation.

The means relied upon for conducting it by the committee, a subscription or assessment, did not suffice to pay the entire expense. The plaintiff claimed a large sum for his counsel fees in the suits. His costs were not in question. There was no satisfactory evidence of any action of the committee as such, in retaining the plaintiff as counsel; but it was shown that some individual members knew of his acting in that capacity, and others attended meetings of the committee where his acts were spoken of; and thus there was evidence from which a retainer might be inferred.

The plaintiff’s demand for counsel fees remaining unpaid, he brought a suit against the defendants for its recovery. After the cause was at issue, on the 14th of December, 1848, a rule of court was entered by the written consent of the parties, referring the cause to three referees, “ to hear and determine the matters in controversy on legal and equitable principles.” They have tried the cause, and have made a report awarding twelve hundred dollars to the plaintiff. In. their special report of the case, the referees state the principles on which they proceeded. Thus, from the entire sum fixed upon by them, they deducted one seventh as the proportion which, on equitable principles (to use their own words), the plaintiff himself ought to bear. They proceed to say, “ And as some of the items might not be fully proved, and some overcharged in the bill of particulars compared with the evidence, and as the plaintiff received some benefit in tiie taxed costs recovered by liim, and the referees were to determine the matters in controversy on legal and equitable principles, they' deemed it equitable to deduct from the plaintiff’s bill” certain other sums specified. And after some further observations, they say they were satisfied that the sum allowed by them was “no more than a just and equitable compensation” to the plaintiff.

Thus it appears that the referees very properly considered and decided the case on equitable grounds and principles. And the fact stated, that they required the plaintiff, as one of the committee, to contribute his proportion of his own claim, shows that the action could not be maintained at law at all.

In short, the reference took the cause out of court and submitted it to arbitration; and the report is no doubt a good award, on a parol submission.

The defendants move to set it aside, but we cannot entertain the motion at all. The case has passed beyond om jurisdiction.

Die report must be treated as an award made. on equitable principles, on which the plaintiff can probably maintain an action. Or, if so advised, he may apply by motion to enter a judgment upon it; but it now seems to us that such a motion cannot be granted. We can make no order on the subject now, and must dismiss the application for want of jurisdiction.


text:
    Wolfe v. J. Myers & Co.
    Where the owners of a canal boat signed a contract in the form of a bill of lading, by which they agreed to deliver a quantity of wheat to the plaintiff at New York ; it was held, that parol evidence of instructions by the plaintiff's agent, on the same day and before the contract was signed, to send the wheat to a different party at another place, was inadmissible.
    The contract, being signed by the owners and not by the master, was not a bill of lading.
    A bill of lading has a twofold character. It is a receipt as to the quantity laden on board the vessel, and a contract to deliver the same at the place and to the consignee named.
    As a receipt, it is open to explanation between the parties, by parol evidence.
    But in its character as a contract it cannot be altered, varied, or explained by such evidence.
    (Before Oaklet, Ch. J., and Vanderpoel and Sakdpord, J. J.)
    March 15, 16;
    April 21, 1849.
    This was an action of assumpsit to recover damages for not delivering, pursuant to a bill of lading, a cargo of wheat shipped at Buffalo, by a boat called the Salem; and was tried before the Chief Justice, on the 11th of December, 1848.
    The plaintiff read in evidence the following bill of lading or contract, viz.
    66 No.-

    66 Buffalo, June 3,1847.
    “ Shipped in good order, by John T. Noye, on board of canal boat Salem, Troy & Ohio Line, whereof-is master, the following articles'to be delivered in like good order, as addressed.

      H. H. Wolfe. Hew York. 2600 Bus. Wheat. Freight to Hew York, 87cts. J. Mtebs & Co. per J. Topping.”
    It appeared that the plaintiff was a wheat and flour merchant in the city of Hew York, and the defendants were the owners of the canal boat. The wheat had been bought in Buffalo by J. T. Hoye, an agent of the plaintiff, and it was shipped under his directions. It was brought to Hew York by the boat Salem, where it was delivered by the defendants’ agents to John B. Wright & Co., June 21,1847, for account of Imlay & Smith of Hartford, Connecticut. Wright & Co. were agents of Imlay & Smith, and were in the habit of receiving wheat from Buffalo for that firm, some of which was pmchased by Hoye. They sold the wheat in question for account of Imlay & Smith, on the 7th of July.. Two or three weeks after the sale, Wright & Co. learned from the plaintiff that the wheat belonged to him, and subsequently paid to him the net proceeds. The price of wheat, however, had fallen very materially between the 21st June and 7th July.
    On the part of the defendants, evidence was given to show that on the same day the bill of lading was signed at Buffalo, and before it was signed, the clerk of Hoye, who superintended the shipment, and who obtained the bill of lading, directed Topping, the defendant’s bookkeeper, who signed it, to ship the wheat in question to Imlay & Smith, Hartford, care of Wright & Co., Albany. It appeared that such a direction was entered by Topping at the time, in the defendant’s canal-shipping book, and that Topping gave to the captain of the boat a bill of lading corresponding with the book. Some counter evidence was given as to this direction on the'part of the plaintiff.
    The judge, reserving the questions of law, submitted to the jury to find the amount of the plaintiff’s damages, if he were entitled to recover; and requested their answer to the questions, 1. Did the clerk of Hoye give verbal directions to Topping to send the wheat to Lnlay & Smith ? 2. If so, was it before or at the time the bill of lading to the plaintiff was signed by Topping? The jury found that such verbal directions were given by Roye’s clerk, before Topping signed that bill of lading and on the same day; and they assessed the plaintiff’s damages, subject to' the opinion of the court, at $1065 78. The cause was brought before the court on a case.

      T. C. T. Buckley and J. W. Gerard, for the plaintiff.
    I. The plaintiff’s bill of lading is the written evidence of, and contains the contract, for the breach of which the plaintiff claims to recover. Parol testimony in relation thereto, can only be admitted, upon and subject to the rules of evidence applicable to written instruments. (Creery v Holly, 14 Wend. 26; Lickbarrow v. Mason, 1 H. Bl. 359, adopted and approved in Covill v. Hill, 4 Denio 330.) It is more than a mere receipt, and is excepted from the rules of evidence which apply to receipts proper. (2 Phill. Ev. Notes, 216, 217; 3d ibid. 1439 and cases; Goodyear v. Ogden, 4 Hill. 104; May v. Babcock, 4 Hamm. Ohio R. 334; Wakefield v. Stedman, 12 Pick. 562; also 17 Mass. Rep. 571.)
    H. The testimony offered by defendant in support of his defence is inadmissible, and should be excluded; because, 1. Ro parol testimony can be received to vary or contradict a written contract free from ambiguity. (Chitty on Contracts, 99; Erwin v. Sanders, 1 Cowen 249.) 2. The facts proposed to be established as a defence to the action, are no defence. The defendants are bound at law by their agreement, the bill of lading in plaintiff’s hands. A mistake in that can only be rectified in a court of equity^ upon a bill filed to reform the contract. (Cheriat v. Barker, 2 John. R. 346; Fitzhugh v. Runyon, 8 T. R. 375; Patchen v. Pierce, 12 Wend. 61; Cameron v. Irwin, 5 Hill 274; Webb v. Rice, 6 Hill 219. 3. The bill of lading, in the hands of a third party, is conclusive on the defendants. (Howard v. Tucker, 1 B. & Ad. 712.)
    IH. The plaintiff is entitled to judgment even if that testimony is admitted, upon the finding of the jury. 1. If verbal directions even were given, they are merged in and superseded by the written order given on the same day when the bill of lading was signed, with notice and knowledge of which defendants are chargeable and by which they are bound. 2. If those directions were given ¡by Boye’s clerk, they were unauthorized and irregular and do not bind the plaintiff. 3. The plaintiff should not suffer by the carelessness of defendants’ clerk. 4. The finding that verbal directions were given is not sustained by the evidence.

      T. H. Rodman and A. Mann, Jun., for the defendants.
    1. On the finding of the jury that the verbal instructions were given to Topping, to ship the wheat to inlay & Smith, before the bill of lading in the plaintiff’s hands was signed, the testimony of Topping respecting that transaction must be taken as true, and it proves that the wheat was shipped under the verbal contract, which was simultaneously reduced to writing by his entry in the shipping book of the defendants, and a transcript thereof entered on the bill of lading or shipping bill sent with the boat.
    2. This constituted the true and only contract between the parties. This was the bill of lading by which the parties are bound, and this contract the defendants faithfully performed. The other bill of lading was signed by defendants’ agent by mistake.
    This is the legitimate conclusion to be drawn from the finding of the jury and the case. If the defendants had the right to prove these facts, and were not estopped to do so by the bill of lading in the plaintiff’s hands, they are entitled to judgment on the verdict.
    3. The erroneous directions to deliver the wheat to Unlay & Smith, was the fault of the plaintiff’s agent. The origin of his error is already proved.
    The question is, who shall suffer the consequences. His principal, or the innocent carriers, who are sought to be held liable upon a contract to which in contemplation of law they have never assented.
    4. In legal effect, the rights of the parties are the same as if the plaintiff in person had made the original contract with the defendants to carry the wheat and deliver it to Wright & Go., they had shipped it accordingly, and subsequently the plaintiff had presented the bill of lading which he holds, and they supposing it to be a transcript from their shipping book, without examination and inadvertently, had signed it. Wolfe is in contemplation of law, both shipper or consignor and consignee, bound by the acts of his agent and sub-agent, and affected by their knowledge of the facts. (Berkley v. Wating, 7 Adol. and Ell. 29.)
    5. As between shipowner and a stranger, or an assignee for value of the bill of lading, that instrument may be conclusive. Public policy would ■ seem to require that it should be so. Wlien its negotiable quality is acted upon, and the rights of third persons intervene, the rigor of the rule is properly exercised. But as between the parties to the bill, it is not conclusive, in a case like the present. It is merely a receipt, liable to be opened by evidence of the real facts. If it were otherwise, the greatest injustice might be perpetrated by the form of law. (Bates v. Ford, 1 Moody and Rob. 106; 7 Adol. and Ell. 29; Portland Bank v. Stubbs, 6 Mass. R. 425; Abbott on Shipping, 324.)
    6. A court of equity would not hesitate to correct a mistake of this kind.
    But a party is not obliged to apply to a court of equity for relief. Parol evidence to show the mistake is admissible, by way of defence in a court of law. The .rules of evidence in both courts are the same. (Starkie on Ev. 1017, note 1018.)
    The evidence in such Case is not offered to contradict or explain a valid existing instrument, but to show that it was never such; that from accident or negligence it has never constituted the aoi/udl depository of the intention and meaning of the parties. (Ibid. 1018.) In this case the aid of a court of equity could not be had before the damage was sustained.
    7. If the court protect the defendants from liability on account of the damages occasioned by the negligence of the plaintiff’s agent, the plaintiff is not remediless. He has his action against his agent.
    But if the defendants are compelled to pay, they have no remedy.
    8. It is in point of conscience and equity, an actual fraud to claim an undue benefit and advantage from mere mistake, contrary to the real intention of the contracting parties. (Starkie’s Ev. 1018,19.)
   By the Court. Oakley, Ch. J.

The question involved in this case, which was much contested, and is not free from difficulty, is the admissibility of the evidence of verbal directions given-relative to the shipment of the wheat, differing from the bill of lading, as it is called, which was delivered to the plaintiff. The paper is not, however, technically speaking, a bill of lading, because that is signed by the master of the vessel on which the goods are laden, while this is signed by the owners of the canal boat. It is, nevertheless, a plain stipulation by those owners that the wheat in question shall be delivered to the plaintiff in New York. This has not been done.

But it is said in their defence, that on the same day this instrument was signed, and before it was signed, the plaintiff’s agent gave verbal directions to the defendants clerk to send the wheat to Imlay and Smith. The jury have found these facts as claimed by the defendants, and although their finding on the evidence in that respect is not very satisfactory, we are not disposed to interfere with the verdict on that ground. The question therefore is, whether those instructions were admissible to vary, explain, or affect this written instrument % The general principle is, that a written contract cannot be varied, by parol evidence of instructions given before or at -the time the contract is executed, because all the terms of the agreement are deemed to.be expressed and fixed by the written instrument. It is contended on the part of the defendants, that this principle does not apply to a bill of lading, and they attempt to liken it to a receipt, which is open to explanation. Ordinarily, a bill of lading partakes of a twofold character. It is both a receipt and a contract. It is a receipt as to the number of bushels, or the quantity of the article put on board the vessel; and it is a contract to deliver the same at a certain place and to a certain party. As far as it is a receipt, it is no doubt open to explanation between the parties to it. The person giving it may prove that he was mistaken in the quantity of goods delivered to him, e. g. that only one thousand bushels of wheat were put on board, instead of two thousand expressed in the bill of lading.

But there is no case which goes the length of holding that the master shall be permitted to allege, not only that he did not receive the quantity of goods specified, but also that there was a mistake in the bill of lading, in stating the destination of the property intrusted to him. If the bill of lading state that the property was to go to Liverpool, the master cannot prove that by verbal agreement it was to be sent to London. That would be a distinct variation of the contract, of which parol evidence cannot be admitted. The true distinction is that which we have already stated; and there is no authority which goes beyond it—as a receipt, it may be varied and explained by parol; as a contract, it cannot.

This would be the rule in this case, if the instrument were a bill of lading. But, we repeat, it is not. . It is a direct stipulation of the owners, to deliver the quantity of wheat specified to the plaintiff in New York. As such an agreement, it may be questionable whether the parties could prove that there was a mistake in the quantity of wheat. Clearly they cannot prove by parol, that there was a mistake as to the person to whom, or the place at which it was to be delivered. "We, therefore, think the plaintiff must have judgment for the damages assessed by the jury.

Judgment for the plaintiff.


text:
    Browning & Hull v. Dalesme.
    The first story, with the basement and sub-cellar, of a four story store, was leased to the plaintiffs; and the three upper stories to the defendant, at the same time; each with the appurtenances. The entrance to the upper stories was from the front, over a short entry leading to a staircase. This entry was separated from the residue of the first floor, by three folding doors, with bolts to fasten on each side. There was a hatchway in the floor of the same entry, leading to the basement and cellar, over which hatch a tackle and fall were placed, to elevate and lower goods, the wheel of which was in the attic, and it was worked by ropes passing down through the respective floors. The keeping of the folding doors open in business hours, was a great advantage to the occupant of the first floor. The opening of the hatch in that floor, obstructed the passage to the upper stories, unless persons passed through the folding doors.—In a contest as to the rights of the respective tenants;
    Held, 1. That the tenant of the first and sub-stories had the right to use the hatchway in the entry, and the tackle and fall, for depositing goods in the basement and cellar, and elevating them therefrom; making use of them in good faith, and not keeping ¡the hatch open unnecessarily. y

    2. That the tenant of the first floor had the right to keep the folding doors open, during business hours in the day time, free from the control of the tenant of the lofts; and that each had the right to close and fasten them at night.
    3. That the tenant of the lofts might pass in and out through the folding doors, when the hatchway was in use by the tenant of the first floor.
    (Before Oakmy, Ch. J., and Vanderpoel and Sandford, J. J.)
    March 8;
    April 21, 1849.
    This was an action on the case, tried before Sandford, J., in June, 1848. The declaration claimed damages for the obstruction by the defendant of the folding-doors in the store Ho. 7 Pine street, as hereafter mentioned, and for fastening down their hatchway leading to the basement, and preventing them from using the tacHe and fall extending from the top of the store to such hatchway.
    At the trial, the plaintiffs read in evidence a lease to them from the owner of the store, dated March 19, 1846, for the lower or first floor, the basement story, and the under cellar, of the brick warehouse or store Ho. 7 Pine street (the premises to be used for the sale of dry goods), for five years from May 1, 1846. They then proved that they were in possession in March, 1846, under a previous lease, and continued in possession until the trial. It subsequently appeared, that by a lease dated the same nineteenth day of March, 1846, the owner of the building demised to the defendant and one Gayot, for five years from May 1,1846, the front part of the second story, and the whole of the third and fourth stories, of the same store, to be used for the sale of china and glass ware.
    It was proved that the arrangement and situation of the store when demised was as follows :■—-It was about twenty-five feet wide and seventy feet deep. The front of the first floor was divided by stone columns into three openings of equal width, each of which was fitted with double sash doors. Through two of the front openings, the entrance was direct mto the wareroom or store which occupied the entire first story. The third opening, which was about six feet wide, opened upon a small entry or passage, from which the stairs ascended to the upper stories. The stairs were placed along the exterior wall of the building and were two. feet and ten inches in breadth, the lower step being about seven feet from the front opening. Separating this entry from the residue of the first story, were three large folding doors, fitted up on hinges, so that they might all be opened into the store on the first fioor, and the entry thrown into and made an entrance to that store. These doors were fitted with bolts, so as to fasten on both sides. Two of them, which together were seven feet six inches wide, stood on a diagonal line, extending from the stone column separating the third from the middle front opening, at an angle of about fifty degrees, towards the inner side of the staircase. The third folding door, three and a half feet wide, extended from the end of the other two to the inner foot of the staircase, on a diagonal line, at an angle of about fifteen degrees from a line parallel to the front of the store. The staircase was separated from the first story by a partition. The only access to the upper stories, occupied by the defendant and Grayot, was by this staircase; and during the day, the sash -doors of the front opening into this entry were always kept open for access to those upper stories.
    In tire floor of the entry, there was a hatch door opening into the basement and under cellar. There was no other entrance in the front part of the store, into either; there being no outer door opening into the basement or cellar. In the rear of the first story, there was access to the basement and cellar by a staircase.
    Over the hatch opening to the basement, there were open hatchways in the second and third floors, and in the top of the building there was a wheel fitted up with a tackle and fall, for hoisting goods into the upper stories, or letting them down into the basement and cellar. The fall rope extended down through the entry on the first floor into the basement.- The basement hatch was of such a size, that when opened and the folding doors were shut, there was not enough of the floor left on either side of the hatch on which to pass in and out of the upper stories with safety.
    The plaintiffs proved that they occupied the basement of the store for shirtings, cloths, and woollen goods, which, before the obstruction, were lowered down by the fall through the hatchway ; and they rented the cellar for the storage of heavy Dundee goods, which were lowered and raised in like manner. That until the summer of 1846, during the business season, the plaintiffs opened the folding doors early every morning, and they remained open until evening. That it was an advantage to them to have those doors open, in order the better to display their goods, the store being situated where there were many transient customers, and it added to the convenience of access to the upper stories, especially when the basement hatch was opened.
    In the summer or autumn of 1846 the defendant locked the basement hatch down, and cut off the fall, so that it could no longer be used in the basement. With some trifling exceptions, he thereafter prevented the plaintiffs and those under them from using that hatch. After that, the plaintiffs were 'obliged to roll or carry their goods intended for the basement, through the store and down the rear staircase, at great inconvenience, and their under tenant of the cellar abandoned it. In September, 1846, the defendant fastened the folding doors, so that the plaintiffs could no longer open them, and persisted in keeping them fastened, to the time that the suit was brought.
    The defendant proved, that besides the front doors opening into the entry at the foot of the staircase, which was provided with suitable shutters and fastenings, there was only a thin panel door at the head of the staffs, to exclude persons from his store when shut—also that when the hatch door to the basement was open, and the folding doors shut, it was very difficult if not impossible, to carry out any goods from his store.
    It appeared in evidence that there was a very large number of stores in the city of blew York, built in the same manner as the one in question, and the first floor and upper floors occupied by different tenants ; the folding doors of some of which were made with fastenings on the outside, some on the inside, and some on both. The plaintiffs attempted to prove by witnesses, that the universal custom and usage among tenants in such cases was, for the tenant of the first floor to control the folding doors. The defendant introduced evidence to the contrary.
    After the plaintiffs rested their case, the defendant’s counsel moved for a nonsuit, on the ground that by the true construction of the leases, the entryway, outside door, and stairway leading to the second story, were part of the premises leased to the defendant and no part of those leased to the plaintiffs; that the folding doors constituted the partition between the defendant’s and the plaintiffs’ premises, the trap door was the floor of part of the defendant’s premises, and that neither the folding doors nor trap door could be opened, or the fall used without the defendant’s permission. The judge overruled the motion.-
    The testimony having been closed, the judge charged the jury, that the lease to the plaintiffs gave them the exclusive use of the basement hatchway, (to be used in a reasonable manner in respect of the occupants of the upper lofts,) and a right to use the fall in common with the tenant of the upper "stories; and he directed the jury to find the damages sustained by the plaintiffs, if they had been deprived of the use of the fall and hatchway by the defendant. He reserved the question of law, as to the right of the plaintiffs, under the lease, to keep open the folding doors, and submitted to the jury the question whether there was a usage as claimed, authorizing the tenant of the first floor to keep such folding doors open during business hours, without the permission of the tenant of the upper stories; and he instructed the jury to assess contingently the plaintiffs’ damages sustained by reason of the defendant’s preventing them from keeping the folding doors open.
    The jury found the damages on occasion of the obstruction, of the hatchway and fall at $175 ; they found that there was not such a usage as to the folding doors, and they omitted to assess the damages in that respect. The cause was brought before the general term on a case made by consent,

      A. Thompson, for the plaintiffs.

      H P. Hastings, for the defendant.
   By the Court. Oakley, Ch. J.

The plaintiffs’ lease gives to them the first story, basement, and cellar of the store with the appurtencmces. In like manner, the upper stories with the appurtenances are leased to the defendant. The plaintiffs claim the right to keep open the folding doors in question, and the right to use the hatchway and fall, as appurtenant to the portion of the store demised to them; and that these things are annexed to the use and occupancy of their premises.

We see no reason why they are not so annexed, nor why they should not be deemed appurtenances, when they are so essen- ; tial to the enjoyment of the plaintiffs’ tenement. They clearly 'have the right to use the hatchway and the tackle and fall in the accustomed manner, in order to have access to the basement and cellar, for the deposit of goods and their elevation from thence to:the first floor. The. defendant says such a use of the hatch andffall would greatly obstruct the access to his premises, because while in use, it would be very inconvenient to pass by the hatch, in order.to enter or leave his lofts. But this inconvenience is no'just ground for giving to this lease a different construction. The rights of each tenant must be taken in subordination to the other.

The tenant of the first story must not use the hatchway unnecessarily, or keep it open except when he is actually and in good faith using it to let down or take out goods. The inconvenience is one of those which unavoidably grow out of the mutual occupation of portions of the same tenement. The defendant,' by preventing the plaintiff from using these appurtenances, committed a >wrong for which the jury have properly assessed damages.

Another wrong of which the plaintiffs complained, was the defendant’s act in keeping the folding doors fastened. The defendant said it was necessary for the protection of his property in the stories above, that the doors should be kept closed. These folding doors appear to have been intended for two purposes, viz. for access to the basement hatch from the store on the first floor, instead of by the street entrance, and for the display of the store itself and the goods of the occupant there offered for sale. As to the question of right between these parties, we are of the opinion, that the tenants of the first story have a right to control these folding doors in the day-time and during business hours, and that the tenant of the lofts cannot interfere with such control. The object of placing bolts on both sides of the door, appears to be the mutual protection of all the occupants at night. ' Looking at the object of the bolts, as thus indicated, there is no risk from having the doors open in the day-time. The tenants of the lower floor have the right to control the opening of the doors for the purposes of their business. Access to the lofts would not be prejudiced, but would rather be improved by these doors being kept open.

Our conclusion is, that the tenants of the first floor have a right to the hatchway and to the use of the tackle and fall, the same to be used in subordination to the like right of the tenant of the lofts above, causing no unnecessary inconvenience to him; and as to the folding doors, that they have a right to control them during the day-time, and the tenant of the upper stories cannot interfere with them. Both parties have a right to bolt the doors at night for the security of their respective premises.

The jury assessed no damages at the trial for the wrong complained of in respect of the folding doors, and we cannot assess them in this stage of the case. There must be judgment for the plaintiffs, for the damages given by the verdict.


text:
    Diblin v. Murphy.
    In an action of tort, where the jury have given such excessive damages that the court feel bound to set aside their verdict, the court may, in its discretion, instead of setting it aside peremptorily, give to the plaintiff the option of reducing his recovery to such a sum, which, if it had been the verdict, would not have been deemed unreasonable, by remitting the excess of the verdict beyond that sum; and on his só doing, may deny the motion for a new trial.

      So held in an action for injuries occasioned by being run over in the street by an omnibus, and the damages reduced from fifteen hundred to five hundred dollars.
    (Before Oaklet, Ch. J., and Sandfokd, J.)
    May 16th;
    May 26th, 1849.
    ■ Tins was an action on the case, tried before Saotjfoed, J., on the 4th of January, 1849. At the trial the plaintiff proved that while crossing the Third avenue at Twenty-sixth street, in this city, she was knocked down by the horses attached to an omnibus, and run over by the omnibus. Her right arm was fractured in two places, and she was laid up for nine weeks. At that time she was seventy-two years old, and before the injury she could earn two dollars a week, but since has been unable to earn any thing. It was proved she would never be likely to recover the full use of her arm.
    The defendant was one of the proprietors of the line of omnibuses to which the one that occasioned the injury belonged, and it was driven by one of his drivers. There was evidence given by him tending to show that the injury happened through the plaintiff’s own carelessness.
    The judge instructed the jury, among other things, that if the injury were owing to the negligence or carelessness of the driver, without negligence or want of care on the part of the plaintiff, she was entitled to recover her damages occasioned thereby. The jury found a verdict for the plaintiff for fifteen hundred dollars damages. Several exceptions were taken at the trial, which it is not deemed necessary to state. The defendant moved for a new trial on a case.

      E. C. Gray, for the defendant.

      R. Busteed, for the plaintiff.
   By the Court. Oakley, Ch. J.

There is evidently nothing in the points of law presented by the defendant. The only question in the case relates to the damages.

We are certainly inclined to think the damages given were too great. There was nothing to show an aggravated case against the driver; and there was evidence on both sides as to the point whether the driver was guilty of negligence, or whether the occurrence was owing to the plaintiff’s own carelessness.

We are satisfied that the verdict ought to have been considerably less; and the amount is so much more than it should have been, as to indicate either passion or prejudice on the part of the jury. It is a Case, therefore, where we feel compelled to interfere with the verdict, and to set it aside as excessive, unless some other remedy may be adopted.

Then what is proper to be done ? We have considered it, and find no objection in principle to reducing the verdict to an amount, such as if the jury had found it as the damages, we would not interfere with their conclusion. That is in effect, for the court to say to the plaintiff, if you will enter a remittitur so as to reduce the verdict to such a sum as we think would not have been unreasonable if it had been found by the jury, we will not set it aside. This practice is very common in actions upon contract, where the party has recovered more than he is entitled to.

The only doubt is whether in actions of tort the court can adopt the same practice. We see no objection to it in principle, and it will often relieve the parties from the expense and delay of a new trial.

We find that this has been done in an action of trover in the courts of South Carolina. (Guerry v. Kerton, 2 Rich. R. 507; and see Young v. Englehard, 1 Howard’s Miss. R. 19.)

That the court has entire control of the matter, is shown by the case of Boyd v. Brown, 17 Pick. 453, which was a similar case, the action being trespass. There the court, finding that excessive damages had been given, ordered a new trial for the assessment of the damages only, and not permitting either party to go into any question as to the right to recover. The decision shows, we think, that the court may give the plaintiff the option to reduce his verdict to an amount which the court would not have deemed unreasonable or excessive.

We shall therefore make an order which will give that option to the plaintiff, and that the amount should be fixed at five hundred dollars. The verdict is to be set aside on payment of costs, unless the plaintiff, within ten days, will stipulate to reduce it to this sum, in which case the motion for a new trial is denied.

         The plaintiff stipulated accordingly, and there was no new trial.


author: By the Court. Mason, J.

text:
    Austin and others v. Tompkins and others.
    The limitation of suits upon judgments, prescribed by the revised statutes, does not apply to judgments recovered before those statutes took effect.
    Such judgments, being governed by the provision as to presumption of payment by lapse of time, the defendant intending to rely upon such presumption,, must set up the fact of payment in his plea or answer, and insist upon the lapse of time as evidence of that fact. He cannot demur to the bill, however stale the judgment may appear to be as therein set forth.
    A statement of the recovery of a judgment against administrators, for assets guando occiderint, and that no assets have ever come to their hands, rebuts the presumption of payment which might otherwise arise from the lapse of time since the judgment was recovered, as set forth in the bill.
    Where the government allows a claim made against it in behalf of a person deceased, and directs the amount to be paid to his children and heirs, and not to his administrators, the fund is nevertheless liable to his debts, and it may be followed by his creditors in the hands of such children and heirs.
    (Before Doer, Mason, and Campbell, J. J.)
    June, 1849.
    Demubkeb to a bill of complaint, filed in May, 1841, in the late court of chancery, and transferred to this court from the supreme court. The complainants are the executors of Thomas Gough, deceased; the defendants are the administrators and heirs of Daniel D. Tompkins, formerly governor of the state of Hew York, and vice-president of the United States. The bill stated that Thomas Gough, in Hovember, 1826, recovered a judgment in the supreme court against the administrators of Gov. Tompkins, after a plea of plern achninisbrmit, &c., which judgment was for assets that might thereafter come to the hands of the administrators. That T. Gough died in December, 1826. That no assets have since the judgment come to the hands of T.’s administrators, and the judgment is still wholly unsatisfied. That at the time of Gov. Tompkins’s death, there was due to him a large unliquidated balance from the government of the United States, which was never adjusted till February, 1847. That on the 22d February, 1847, an act of Congress was passed, liquidating the debt at $49,795 02, and directing the Secretary of the treasury to pay the same to Gov. T.’s children and heirs: and that the same has been paid to them accordingly. The bill prayed for a receiver, for payment of the amount to him, for distribution of the same as assets, and for payment of the complainant’s judgment.
    Two of the defendants demurred to the bill for want of equity, and on the ground that over twenty years had elapsed when it was filed, after the recovery of the judgment and death of Gough, and the bill did not aver that any part of the judgment had been paid, or any written acknowledgment of indebtedness for any part of it been made, within that twenty years, or at any time since the judgment.

      G. G. Waters, for the defendants, in support of the demurrer.

      J. Anthon, for the complainants.
   By the Court. Mason, J.

The demurrer in this case was framed upon the idea that the forty-seventh section of the second title of chapter four, part third, of the revised statutes, was applicable to the judgment mentioned in the bill. But upon reference to that section, it will be seen that it relates only to judgments and decrees to be rendered after the act took effect, that is after January 1st, 1830. This case comes under the forty-sixth section, which declares that “ the presumption of payment shall apply to all judgments of a court of record in this state, rendered before the 3d of April, 1821, and to all such judgments- rendered before this chapter shall take effect as a law, in the same manner as such presumption applies to sealed instruments.”

Even then, if it be necessary, as the pleader seems to have imagined, in a case arising under the 47th section, for the plaintiff in his bill to aver payment of some part of the judgment, or proof of a written acknowledgment of indebtedness upon it, (about which we express no opinion,) it clearly was not necessary in the present case.

The section of the statute which governs this case, does not create a bar to actions upon judgments after any given period, but only applies to them the same rule of evidence which the courts had previously established with regard to sealed instruments, and which was this : that they are presumed to be paid if they have been outstanding for twenty years, and no payment made on account, or acknowledgment given of their being due, and there are no circumstances which tend to remove the presumption. An inference offact is drawn from the staleness of the demand, to wit, that the demand has been paid. How the office of a demurrer is to bring before the court questions of law only. It is an admission of all the facts alleged by the plaintiff, and an averment that the inferences of law for which he contends, do not legitimately flow from the facts. The presumption of payment, however, is an inference not only of fact, but of a fact in contradiction of the claim of the plaintiff, and cannot therefore be made upon a demurrer. (Mitford PL, p. 213, 4th ed.) It is therefore the established doctrine of the cotuts of this state, both of law and equity, that in those cases where the statute of limitations has not created a positive bar, the party wishing to raise a presumption of payment from lapse of time, must plead payment, or set it up in his answer, as a fact, and rely upon the lapse of time as evidence in support of his plea or answer. (Livingston v. Livingston, 4 J. C. R. 287; McDowell v. Charles, 6 ib. 132; Henderson v. Henderson, 3 Den. 314; Fellers v. Lee, 2 Barb. S. C. R. 488.)

But there is another decisive answer to the presumption of payment in this case. The judgment rendered was a judgment of assets guando acdd&rint, and it is expressly alleged in the bill that no assets of any value or character whatever had at any time come to the hands of the administrators to be admimstered, and that the judgment remained in full force and unsatisfied. This fact of want of assets, effectually removes the presumption of payment, and accounts for the omission of the plaintiff to proceed upon the judgment. Insolvency and inability of the debtor to pay, have always been deemed sufficient for that purpose.

It is impossible, therefore, to sustain this demurrer on the ground of presumption of payment.

The demurrer for want of equity is also untenable. It is stated in the bill that at the time of the decease of Governor Tompldns, the government of the United States was largely indebted to him for an unliquidated balance of account; that the same remained unadjusted and unliquidated until on or about the 22d of February, 1847, and formed the whole of the remaining personal assets of the estate of Tompkins for the payment of his just debts; that about the time last mentioned, the government liquidated the accounts, and fixed the amount justly due to Governor Tompkins, at $49,795 02, but directed the payment to be made not to his administrator, but to his children and heirs.

How if this be so, and the demurrer expressly admits it, these moneys then due to Gov. Tompkins, and for so long a time unjustly withheld from him, belong in equity to his creditors. The government can no more divert them from their legitimate and honest application, than a private individual could in similar circumstances; and if it pay an acknowledged debt, not to the party to whom it is due, but to other persons with a view to screen it from that party’s creditors, equity will lay hold of the money in the hands of the payees wherever it can be traced, with a view to compel its distribution among those who are entitled to receive it. It is on this principle that relief is sought in this case against the children and heirs of Governor Tompkins. They are the recipients of a fund on which the plaintiffs have a prior and better claim. The money belonged to their ancestor; they claim only as representing him, without having paid any valuable consideration. The plaintiffs being creditors of the ancestor, have the same rights in equity against the fund, which they would have had against the ancestor himself, were he living, and they had filed a creditor’s bill against him.

It was suggested on the argument that these moneys were paid, not in settlement of á debt, but as a gratuity, and in acknowledgment of the great and distinguished public services of Gov. Tompkins. If such be the fact, the defendants must set it up in their answer and establish it by proof. They cannot avail themselves of it on this demurrer, which admits that the moneys received by them were due the estate of their ancestor, and that they were assets applicable to the payment of his debts.

The demurrer must be overruled with costs.