text:
    Pramagiori vs. Pramagiori.
    1. The general principle by which the sufficiency of a pleading, in actions for divorce jiro musa adultery, is to be tested' is, that the charge should be stated
    - with such definiteness and certainty as will be sufficient to enable the defendant to know what he will be required to meet by proof, at the trial.
    2. Hence the name of the person with whom, the place where, and time when, the adultery was committed, should be set forth in the complaint.
    8. This rule, however, though general, is not universal. It is subject to modification to any extent required by the exigencies of the particular action; provided the above principle is not infringed.
    4. Where a complaint alleged that the defendant had committed several acts of adultery with one S. R. which acts were committed at the plaintiff’s residence in Broome street, and at a house of ill fame in Spring street, and at divers others times and places in the said city; Held that the allegation “at divers other times and places in said city ” was wholly insufficient to enable the defendant to prepare to meet it at the trial. And that with respect to the allegation of adulteries in Spring street, there was no reason why the general rule should not be complied with, and the number of the house, or at least the block in which it was situated, be given, where the adultery was alleged to have been committed there quite recently.
    5. Held, also, that the plaintiff was bound to specify, particularly, in the complaint, the location of the house in Spring street; or, if unable to do so, should refer to the particular nature of the proof by which the allegation was to be supported.
    (Before Jones, J. at special term,
    February —, 1868.)
    Motion to amend the complaint, in an action for a divorce on the ground of adultery.
    The complaint, charges the adultery in the following language: £t That in the months of November and Decern-: her, 1866, the said defendant committed several acts of adultery with one S. B. The said acts of adultery were ' committed in the sleeping room of the plaintiff, at his reside'nce in Broome street aforesaid.” The plaintiff now moves to amend the complaint by inserting after the words “Broome street aforesaid,” the following sentence, “and at a house of ill fame in Spring street, and at divers other times and places in the said city.” The amendment is opposed on the ground that it is too indefinite and uncertain.

      Mr. Whittedge, for the plaintiff.

      Mr. Dunning, for the defendant.
   Jones, J.

The general principle by which the sufficiency of a pleading in actions for divorce pro causa adultery is to be tested is, that the charge should be stated with such definiteness and certainty as will be sufficient to enable the defendant to know what he will be called upon to meet by proof at the trial. In all the decisions respecting the sufficiency of a pleading, in this class of actions, it will be seen that this is the test applied. Since, when the name of the person with whom, the place where, and time when the adultery was committed, are set forth in the pleading, the defendant has the fullest information that can be given him, it has been adopted as a general rule that these particulars should be set forth in the pleading. This rule, however, though general, is not universal. It is subject to modification to any extent required by the exigencies of the particular action; provided, however, that the above principle is not infringed. To show the extent to which the modification may go, take the case where the husband, long subsequent to the marriage, communicates a venereal disease to the wife, or the case where the husband, having been absent two years, returns and finds the wife pregnant. In each of these cases proof of these particular facts would be sufficient to ground a decree of divorce upon, yet the injured party may be wholly unable to ascertain, and of course unable to state in the pleading, the person with whom, time when, or place where the adultery was committed, except so far as the time and place may be alleged in the most general terms. But the inj ured party, by reason of this inability to comply with the above general rule, is not to be remediless. A mere general allegation in such cases, that the defendant has committed adultery with persons unknown, at times and places unknown, would be an infringement of the principle by which, as above stated, the sufficiency of a pleading is to be tested. This infringement is avoided by the pleader, in addition to stating the adultery in general terms, also referring to the peculiar nature of the proof by which the allegation is to be supported. Thus, the defendant is notified of the nature of the charge sufficiently to enable him to show what he will be called upon to meet by proof at the trial, and the principle is satisfied. (Bishop on Marriage and Divorce, vol. 2, § 610. Johnson v. Johnson, 14 Wend. 637. Clark v. Clark, ante p. 284. Since the general rule is subject to this extended modification, indeed almost total departure, it may be modified to such lesser extent as the nature of the particular case requires. It, however, should never be modified unless such exigency exists, and not then without satisfying the above principle relative to the sufficiency of pleadings, by the insertion in the pleading of such allegations as shall sufficiently notify the defendant of the nature of the charge against him, and so enable him to meet it by proof at the trial.

In the case at bar, if the amendment asked for is granted, the complaint will read thus: £< That in the months of ¡November and December, 1866, the said defendant committed several acts of adultery with one S. B.; that said acts of adultery were committed in the sleeping room of the plaintiff at his residence in Broome street aforesaid, and at a house of ill fame in Spring street, and at divers other times and places in the said city.” The allegation “at divers other times and places in said city,” is wholly insufficient to enable the defendant to prepare to meet it at the trial. With respect to the allegation of adulteries in Spring street, I see no reason why the general rule should not be complied with, and the number of the house, or at least the block in which it is situate, be given. The adultery is alleged to have been committed there as recently as November and December last. If the plaintiff has discovered, and is prepared with proof to establish this adultery it would be singular if he has not discovered the locality with more particularity. It seems incredible that any witness who could prove the defendant’s visits at this house, could not also, after this short interval, prove the particular location of the house.

I think this motion should be denied, with ten dollars costs, but without prejudice to the plaintiff's renewing the motion as to the Spring street allegation, upon payment of the said ten dollars costs, and upon particularly specifying the location of the house, or, if unable to do so, on referring to the particular nature of the proof by which the allegation is to be supported.

Another part of the motion is to correct the copy of the complaint served, so as to make it accord with the original in the allegation as to the marriage between the plaintiff and the defendant. This part of the motion is not opposed. An order may be made directing that .the copy of the complaint be made to conform to the original by substituting therein the words “ on the — day of January,. 1866,” for the time now alleged therein as being the date of the marriage.

Ordered accordingly,


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    Liftchild et al. plaintiffs, vs. Smith, defendant.
    1. In an action for damages for a fraudulent warranty made by the defendant on a sale of property to the plaintiffs, the court will not, on motion, compel the defendant to discontinue an action brought by him in another court, since the commencement of the one in which the motion is made, for a part of the unpaid purchase money of the property; or to stay proceedings therein until the determination of the first mentioned action.
    2. This CQurt has no authority, by an order made in an action pending therein, to stay a defendants’ proceedings in another court; nor can it deprive.him of his right to select his own tribunal for the trial of the cause of action which he claims to have against the plaintiff in the action pending in this court, unless it be identically the same with that in the action in such other court.
    (Before Jones, J. at special term,
    February —, 1868.)
    This was a motion to compel the defendant to discontinue an action brought by him in another court, since the commencement of this, for a part of the price unpaid of the subject of the action in this case, (which is brought for fraud in the sale thereof,) or to stay proceedings therein until the determination of this action.
    This action was commenced on the 8th of 'November, 1867, to recover damages for a “ false and fraudulent warranty and representation,” made by the defendant to the plaintiffs, whereby the plaintiffs were induced to purchase a butcher’s shop, its contents, and a horse, from the plaintiffs, for a certain sum, ($750,) and to pay on account thereof all of such price but $100.
    The answer, besides several admissions and denials of the allegations in the complaint, contained, as a distinct defense, the facts, that on the next day after commencing this suit, (9th November, 1867,) the defendant commenced an action, in a district court of the city of New York, against the plaintiffs, to recover the balance due on said purchase of the plaintiffs, ($100;) that issue ivas joined in that action, the defendants therein setting up, among other things, as matter of defense, and by way of counter-claim, off set and recoupment, against the claim of the plaintiff therein, damages to the amount of $300 sustained by the defendants therein, and that such action was still pending.
    This motion was made on behalf of the plaintiffs in the action in this court, for an order staying all proceedings, and to discontinue the district court action; that the cause of action and defense in- said district court be merged in this action; and that the same be tried therein.

      A. H. Reavy, for the motion.

      M. Connolly, opposed.
   Jones, J.

I know of no principle, nor have I been able to find any authority, to support this motion. I have no power to stay the proceedings in the district court, and compel the defendant to rely on his answer in this action, or authority by an order in this suit, to stay the defendant’s proceedings in another court. Bor can I deprive him of his right to select his own tribunal for the trial of the cause of action which he claims to have against the plaintiffs.

All the cases cited by the plaintiffs’ counsel have been examined by me, and none of them are authority for such a motion as this. The cases of The Auburn City Bank v. Leonard, and Leonard v. The Bank, (20 How. Pr. 193;) Fuller v. Read, and Read v. Fuller, (15 id. 236,) were cases where both actions were pending in the same court, and the court held that it had such control over the proceedings in it as to' stay those in one action until the trial of the other. In Hammond v. Baker, (3 Sandf. 704,) the plaintiff, after commencing the suit in this court, commenced another in a court in the state of Bhode Island. The court held it could not restrain a resident of Bhode Island from prosecuting a suit there, even for the same cause, but could restrain proceedings in the suit in this court. In McCarthy v. Peake, (9 Abb. 164.) Peake and McCarty had been partners. Peake brought an action in this court against McCarty, to restrain him from interfering with the partnership property, and obtained a temporary injunction. Afterwards McCarty commenced an action in the Supreme Court against Peake, to close up the partnership affairs, and obtained an injunction and an order appointing a receiver. The latter court held this language: “Under the decisions which have repeatedly been made in this court and the Superior Court, the court which first acquires jurisdiction of the case should dispose of the whole matter. Any other court in which subsequent proceedings are taken for the same purpose, should, as well from feelings of amity as from a desire to avoid a conflict of jurisdiction, restrain the further prosecution of the second action,” But there is here no intimation that the court can restrain proceedings in another court.

The other cases have clearly no application. Many of them are decisions upon the doctrine of compelling an election. The present motion is not to compel an election, and, therefore, it is unnecessary to consider what the rule of law may be in that respect.

Motion denied, with costs.


author: Jones, J,

text:
    The Lorillard Fire Insurance Company, plaintiffs, vs. George S. Meshural, defendant.
    1. Where the cause of action set forth in the complaint is for money received by an agent, in a fiduciary capacity, which the agent neglects to pay over, and therefore authorizes an arrest under subdivision 2 of section 179 of the Code, it is the settled law of this court that an order of arrest will not be discharged unless the affidavits clearly show such a state of facts as would, if shown at the trial, call either for a dismissal óf the complaint by the court, or a direction to the jury to find for the defendant.
    2. The defendant was employed by the plaintiffs, (an insurance company,) as its agent, at a stipulated salary of $2000 per annum, in addition to which he was to have a certain per centage on the profits arising from tho business done in the section of country over which he had the superintendence. He was in no way liable for any losses or expenses, and was not authorized to use remittances made to him by local agents, or premiums received by him for the payment of losses, or of the expenses of the business. The losses were to be paid by drafts from the home office, and the expenses by moneys remitted to the defendant from the home office for that especial purpose. Meld, that this agreement did not give the defendant any share or interest in the property, effects, or moneys of the plaintiffs, or in their business, or in the profits arising therefrom. That all such profits, effects and moneys be held as the mere servant of the plaintiffs, and as such was bound to pay and transfer the same to the plaintiffs when requested. And that there was nothing in the agreement which justified his keeping the plaintiffs’ money in his own possession, without paying it over, for the space of a year.
    3. Meld, also, that the defendant, on the receipt of moneys by him, (other than those sent him for expenses,) was bound immediately to remit them to the home office; and if he failed to do so, then, after'demand made, at least, an action would lie, therefor. And that as to money sent to him to pay expenses, the company, if they chose to pay their indebtedness directly to their creditors, instead of through their agent, had the right to do so; and if they had previously sent money to their agent, for that purpose, to demand its return.
    4. The defendant claimed that the plaintiffs had broken their contract with him, by discharging him before the end of the year, and that his damages for such breach, together with his salary, exceeded the moneys in his hands. There being sufficient evidence to call for a submission to the jury of the question of fact, whether there had been a modification of the agreement, by mutual consent, as to the time specified therein for the termination of the fiscal year, and it being questionable whether the alleged misconduct, viz. the non-payment of moneys, under legal advice and the peculiar circumstance's of the case, was sufficient to deprive the defendant of compensation for his services theretofore rendered, although not then payable; the court reduced the bail by the amount of such compensation.
    5. It is well settled, in England, that the maxim “ Memo debet bis iiexari pro mia et eadem causa" only applies where both suits are within the same jurisdiction. And following this principle, it is equally well settled that the bringing and prosecuting an action in one of the states of the union, does not, by force of this maxim, prevent the bringing and prosecuting, at the same time, an action in any one or more of the other states, for the same cause. Per Joses, J.

      6. The fact that the first action is brought in a United States court, does not interfere with the bringing of another action in a state court of a state not within the jurisdiction of the United States court; or, perhaps, even in a state court of a state within such jurisdiction.
    7. The doctrine that the rule embodied in the above maxim does not apply so as to prevent the bringing and prosecution of various suits for the same cause, in different jurisdictions, at the same time, does not extend so far as to hold that a plaintiff has an absolute right, contrary to that rule, to use the processes of each of those jurisdictions for the needless vexation of the defendant. Ter Jones, J.
    8. Where, previous to the commencement of an action in this court, and the arrest of the defendant therein, the plaintiffs commenced an action against him in the circuit court of the United States for the northern district of Illinois, for the same cause of action, and had him arrested and held to bail
    . therein; Held, that as the effect of, and end to be attained by, the arrest in the United States court depended upon the law existing in the state of Illinois, of which the court could not take judicial notice, and of which no proof had been adduced, it did not appear with sufficient distinctness that the defendant had been held to bail in Illinois so that the plaintiffs had the same security for their demand, and might have all the benefit from prosecut.ing their suit there as he're, they ought not to be deprived of the benefit they were entitled to from the laws of this state.' A motion to vacate the order of arrest was therefore denied.
    (Before Jones, J. at special term,
    February —, 1868.)
    The cause of action in this case, as set forth in the complaint, is two fold; first, that the defendant as agent of the plaintiffs, received from the plaintiffs a certain sum of money to pay the expenses of the plaintiff at the city of Chicago, but nevertheless to hold the same until actually applied to such payment, subject to the.control and direction of the plaintiffs; second, that the defendant as agent of the plaintiffs, received certain moneys of the plaintiffs to be remitted by him to the plaintiffs. That of the moneys so received by the defendant to pay expenses, but subject to the plaintiffs’ orders, and of the moneys so received by the defendant, to remit to the plaintiffs, there remained on the 18th December, .1867, unremitted to the plaintiffs, and unexpended by him, and retained by him from the plaintiffs, the sum of $9689.54, which sum was on that day demanded of him by the plaintiffs, but which he refused to pay. Upon an affidavit setting forth these facts an order of arrest was issued and the defendant arrested thereunder. He now moves to discharge the order of arrrest. The grounds on which he moves will appear in the opinion.
   Jones, J,

The cause of action as stated in the complaint is clearly for money received by an agent in a fiduciary capacity, which the agent neglects to pay over. It will therefore be perceived that the self same facts which con-' etitute this cause of action, also authorize an arrest under subdivision 2 of section 179 of the Code, and in fact are the foundation upon which the order of arrest is predicated. In such cases it is the law of this court, settled by repeated general term adjudications, that the order of arrest will not be discharged unless the affidavits clearly show such a state of facts as would, if shown at the trial, call either for a dismissal of the complaint by the court, or a direction to the jury to find for the defendant. The grounds upon which the defendant seeks to have the order of arrest discharged# are,

1st. That the moneys in question came into his hands in the course of the prosecution of a joint adventure carried on by him and the plaintiffs upon joint account, and that consequently he is entitled to have the mutual accounts settled, either amicably or by-the aid of a court# and the balance due from him ascertained, before he can be called on to pay over.

2d. That he can only be called on to pay over at the end of the official year mentioned in the agreement between him and the company, to wit, July 31st in each year. That the moneys in question were received subsequent to July 31,1867, and as he cannot be called on to pay over until July 31, 1868, this suit is premature,

3d. That the plaintiff's have broken their contract with him, by discharging him prior to July 31, 1868, and his damages for such breach, and his salary, exceed the moneys in his hands.

4th. That previous to the commencement of this suit and his arrest herein, the plaintiffs commenced an action against him in the Circuit Court of the United States for the northern district of Illinois for the same cause of action, and had him arrested and held to bail therein. That by reason thereof he is entitled, under the rule “Nemo debet bis vexari pro una et eadem causa,” to be discharged from arrest in this action.

Upon examination of the affidavits, I find none of these grounds to be so clearly established as that the court, on the trial of the action, would be called on either to dismiss the complaint, or direct a verdict for the defendant. Under the agreement entered into between the parties, the defendant was the mere employee of the plaintiffs at a stipulated salary, in no way liable for any losses or expenses. True, inasmuch as in addition to his fixed salary of $2000 per annum, he was also entitled to a certain per centage on the profits arising from the business done in the section of the country over which he had the superintendence, his compensation would be more or less according as those profits were increased through his exertions. This per centage is, however, merely a mode adopted for the ascertainment of what sum in addition to the $2000, should be paid to the defendant as further compensation for his increasing the business and profits of the company by his vigilance and exertions, if he succeeded in increasing them. It did not give the defendant any share or interest in the property, effects or moneys of the plaintiffs, or in their business, or in the profits arising therefrom. All such profits, effects and moneys he held as the mere servant of the plaintiffs, and as such was bound to pay and transfer the same to the plaintiffs when requested. The whole tenor of the agreement shows' this to be the relation between the parties. The defendant was not authorized to use the remittances made to him by the local agents, or the premiums received by him, for the payment of losses or of the expenses of the business. The losses were to be paid by drafts from the home office, and the expenses by moneys remitted to the defendant from the home office for that especial purpose.

With respect to the second ground, the remarks above made lead inevitably to the conclusion that the defendant, on the receipt of the moneys (other than those sent him for expenses) by him, was bound immediately to remit them to the home office, and if he did not do so then, after demand made, and perhaps without demand, an action would lie therefor. There is nothing in the agreement which justifies his keeping the plaintiffs’ money in his own possession, without paying it over, for the space of a year.

As to the money sent to pay expenses, the company, if it chose to pay its indebtedness direct to the creditors, instead of through their agent, had the right to dó so, and if they had previously sent money to their agent for such purpose, to demand its return.

With respect to the third ground, there is sufficient evidence to call for a submission to the jury of the question of fact, whether the agreement between the parties was ever, by mutual consent, so modified as to make the fiscal year terminate on the 31st of December, instead of, as mentioned in the agreement, the 31st of July in each year, and subsequently acted upon in reference to such modification by both parties. If the jury should find it urns so modified and acted on, that finding would substantially dispose of these grounds, since, in such event, all that the defendant could claim would be so much of the salary for the year ending December 31, 1867,' as remains unpaid, and the per centage for that year. The plaintiffs claim that the defendant has forfeited his compensation by his misconduct. But it is so questionable, whether the alleged misconduct, to wit, the non-payment of moneys, under legal advice, and the peculiar circumstances of the case,, is sufficient to deprive the defendant of compensation for his services theretofore rendered, although not then payable,-that it seems to me proper to reduce the bail by the amount of such compensation.

The remaining ground is as to the effect of the action and arrest in the United States Circuit Court. It is said that, under the principle contained in the maxim, “ nemo débet lis vexari pro uno et eadem oausa,” this order should be vacated. Translating this Latin maxim into English, it reads: “ Ho one ought to be twice vexed for one and the same cause.” The origin of the expression is to be found in the language used by the éarlier judges in deciding cases before them. The impression which it makes on the memory, by its force and terseness, has caused it to pass into a maxim. But, as with all maxims, so with this, it is necessary, for the purpose of ascertaining its precise meaning, and judging whether it is applicable to any particular case, to look at the adjudged cases where the maxim has been either relied on by the court, or ineffectually urged by counsel. It is well settled, in England, that this maxim only applies where both suits are within the same jurisdiction. And, following" this principle, it is equally well settled that the bringing and prosecuting an action in one of the states of the Union does not, by force of this maxim, prevent the bringing and prosecuting, at the same time, an action in any one or more of the othei states for the same cause. The fact that the first action if brought in a United States court, does not interfere with the bringing of another action in a state court of a state not within the jurisdiction of the United States Court, or perhaps, even, in a state court of a state within such jurisdiction. The reason of this is, that, as the process of a court cannot run beyond the territory over which the government that erected it has, without exceeding its power, given it jurisdiction, it becomes necessary for a creditor to reach his debtor’s property and person when in another jurisdiction, by the process of the courts of that other jurisdiction; in order to do which, he must sue in such courts. And as this necessity may exist as to property in several states at the same time, it would debar the creditor from subjecting his debtor’s property to the satisfaction of his debt, if he were not permitted to sue in each of the states at one and the same time. There are many other cases, in which, to afford proper protection to the creditor, it' is necessary to permit him, while prosecuting an action in one jusisdiction, to commence and prosecute another in another jurisdiction. It would seem that the permission to bring several actions for the same cause in different jurisdictions, at the same time, would carry with it a right to use in each jurisdiction all the remedies and processes allowed by its laws to be used in aid of such action, This, however, is not the result. From the very same reason on which the permission to sue is founded, there springs to the court the power to prevent its processes from being used unnecessarily to the harassment of the defendant. The doctrine that the rule of “ nemo debet bis,” &c. does not apply so as to prevent the bringing and prosecution of various suits for the same cause in different jurisdictions, at the same time, does not extend so far as to hold that a plaintiff has an absolute right, contrary to that rule, to use the processes of each of those jurisdictions' for the needless vexation of the defendant. These principles are fairly deducible from the cases of Imlay v. Ellefsen, decided in England in 1802, (2 East, 453,) and Mitchell v. Bunch, (2 Paige, 620.) In Imlay’s case the defendant, by leave of the court, was holden to special bail. A motion was made to discharge Mm on common bail, on the ground, among others, that the plaintiff had previously commenced an action against the defendant, for the same cause, in ¡Norway, and had had the defendant holden to bail in that action, and that that action was still pending. Lord Ellenborough, in deciding the motion, said: “ This is an application to the discretion of the court. And, to be sure, it would have been competent to the defendant to have shown that he had been before holden to bail in this country; because no man ought to be twice vexed for the same cause. But the question here is, whether we have presented to us, with sufficient distinctness, that the defendant stands in the situation of having been holden to bail in ¡Norway, so that the plaintiff has the same security for his demand, and might have all the benefit of prosecuting his suit there which he has here. And as we do not see that such is the case, we do not feel ourselves warranted in taking from him the benefit he is entitled to from the laws of this country. ¡Not knowing what the laws of ¡Norway are in this respect, I cannot say that the plaintiff would have the same benefit, from what has taken place there, as he will have by the present proceeding.” The clear import of this language is, that if the court had had knowledge that, by the laws of ¡Norway, the plaintiff would have the same benefit, from what had taken place there, as he could obtain in the proceeding before the court, the principle of “ nemo his vexari ” would have been applied, and the defendant either discharged or the plaintiff compelled to elect in which suit he would hold the defendant to bail. The principle involved in the above language of the court, in Imlay’s case, was applied to the case of Mitchell v. Bunch, (2 Paige, 620,) and, by its application, the plaintiff, who had commenced an action in the United States Circuit Court for the southern district of Yew York, and also one in the court of chancery for the state of Yew York, was compelled to elect in which one he would hold the defendant to bail. The chancellor in this case of Mitchell v. Bunch, after referring to the case of Inlay and others, says: “But, I apprehend, the principle of these decisions, (that is, the principle that the defendant could not be discharged because the court had no knowledge of the effect of holding to bail in Yorway, and not the principle involved in the language of the court, that if the court had had such knowledge, and could have seen that the plaintiff could have got the same benefit in that proceeding before the court, the defendant would have either been discharged or the plaintiff'compelled to elect,) can hardly be extended to the Circuit Court of the United States. This court will judicially notice the fact that the arrest of the body of the defendant on mesne process, in that court, is for the purpose of compelling him to pay the debt or to surrender himself in execution in satisfaction thereof. * * * It certainly cannot be necessary for the protection of the complainant’s rights that the defendant should be compelled to give security in two different suits pending at the same time in different courts, and for the recovery of the same debt. The ne exeat must be discharged, unless the complainant consents to release the defendant from his arrest in the Circuit Court, upon his entering an appearance or filing common bail in that suit.”

Applying the above principles to the case at bar, I find myself laboring under the same difficulty as the learned judge in Imlay’s case. The effect of, and. end to be attained by, the arrest in the United States Court, depends upon the law that obtains in the state of Illinois. (Conkling’s Treatise, page 206.) Of this law I cannot take judicial notice; and no proof concerning it having been adduced, I must, therefore, say, in the language of Lord Ell enb oro ugh, that, as I cannot see that the defendant has been holden to bail in Illinois, so that the plaintiff has the same security for his demand, and might have all the benefit of prosecuting his suit theré as here, I do not feel myself warranted in taking from him the benefit he is entitled to from the laws of this state. Even if affidavits had been produced, showing that the law of the state of Illinois as to arrest and bail, and to the benefit to be derived therefrom, was precisely similar to that of this state, still it would be my duty to give the plaintiff, being a corporation of this state, its election as to which arrest it would retain, following, in this respect, the case of Michell v. Bunch. Whether that privilege would be extended to a plaintiff, not being a resident or corporation of this state, is not presented for decision. Whatever may be the rule as to non-residents, residents are entitled to the aid, benefit and protection of the laws of their domicil, the courts, however, taking care that residents, in invoking that aid, protection and benefit, do not unduly vex the person against whom the same is invoked.

The motion to vacate the order of arrest must be denied, and the amount of bail must be reduced to $7500.

The denial of the motion to vacate must be without prejudice to the right to renew on affidavits, showing what the law of Illinois is as to arrest, bail and the benefit to result therefrom, unless the plaintiff stipulates to release the defendant from Ms arrest in the suit in the United States courts, upon filing common bail in that suit.


text:
    Alfred A. Dolevin, plaintiff, vs. Theodore H. Wilder, defendant.
    1. The cases of Bush v. Prosser, (11 JP. T. Pep. 347,) and Bisboy v. Shaw, (12 id. 67,) settled two principles in the law relative to actions for libel and slander, under the provisions of the Code. (1.) That mitigating circumstances may be pleaded in connection with a general denial, and with or without a plea of justification. (2.) That all matters which tend to disprove malice may be pleaded in mitigation of damages, although they may tend to prove the truth of the words complained of.
    2. These principles being taken in connection with the law as it stood prior to the Code, which permitted a defendant to give in mitigation of damages, evidence, under the general issue, of facts and circumstances which induced him to believe the charge true, at the time he made it, as tending to disprove malice ; provided such facts and circumstances did not tend to prove the truth of the charge; the further principle flows that facts and circumstances which induced the defendant to believe the charge true, at the time he made it, may now be pleaded in mitigation of damages, as tending to disprove malice, although they may also tend to prove the truth of the charge.
    3. A defendant cannot now spread on the record any matters that he pleases, and then, by asserting that by reason thereof he verily believed the charge to be true, at the time he made it, successfully resist a motion to strike them out. Per Jokes, J.
    4. Where a defendant seeks-to mitigate damages by pleading facts and circumstances which induced him to believe the charge to be true, at the time he made it, the facts and circumstances so pleaded must be such as would reasonably induce in the mind of a person possessed of ordinary intelligence and knowledge, a belief of the truth of the charge.
    5. This kind of evidence is admitted only for the purpose of disproving malice; and it must appear from all the proof at the trial, not only that the facts and circumstances were such as would reasonably induce in the mind of a person of ordinary intelligence and knowledge a belief of the truth of the charge, but also that the defendant was in fact thereby induced to believe in its truth.
    6. The pleading should show that the defendant, at the time he made the charge, knew the facts and circumstances on which he relies, and he should either expressly aver that such facts and circumstances induced a belief in the truth of the charge, at the time he made it; or the facts and circumstances should carry with them a reasonable presumption that he believed the charge to he true.

      7. The question as to whether there was no malice in making the charge, or if any, then to what extent, is one eminently proper to be submitted to the jury. The Code has made no change in the previous law on this subject.
    8. As mitigating facts may now be pleaded, the rules formerly governing the admission of evidence thereof should be applied, as far as possible to the pleading. One of these rules of evidence was to admit proof of every fact which might possibly bear on the question of malice, under the restriction now no longer in force, that it did not tend to prove the truth of the charge. Another was, that if there was the slightest doubt in the mind of the judge as to whether the facts proposed to be proven tended to disprove malice, then to admit the evidence, and submit the question to the jury, under proper instructions.
    9. These rules should now be applied upon a motion to strike out parts of an answer setting up facts and circumstances in'mitigation of damages.
    10. Where an answer sets up a transaction, in mitigation of damages, without averring that the defendant knew of it at the time he made the charge; or that by it he was induced to believe the charge true, at the time he made it, that part of the answer will be stricken out, on motion.
    11. The fact, set up in an answer, that previous to the uttering of words by the defendant, charging the plaintiff with being a thief, the plaintiff had enticed away the defendant’s customers, and interfered with his business, is not only not of a character which should necessarily induce a belief in the truth of the charge made, but is not sufficient to carry with it a presumption that the defendant, by reason of such fact, believed the charge to be true. It is, therefore, incumbent on the defendant to expressly aver such belief, in his answer.
    12. Such an allegation, in an answer, may, however, be retained, on the .ground that it tends to show that the words were uttered in the heat of passion caused by the acts and conduct of the defendant.
    13. In pleading heat of passion, in mitigation, the defendant should set forth the acts and language of the plaintiff which he claims caused his passion.

      14. Where an answer setting forth the acts and language of the plaintiff is interposed, and a motion made to strike out parts as irrelevant, the only duty devolving on the court is. to see whether the matters pleaded can by any possibility be received in evidence. If so, they should not be stricken out; if not, they should be. If there is the slightest doubt, as to the matters being inadmissible, or one aspect in which proof thereof might possibly be admissible, the court should refuse to strike out.
    15. Although proof of the mere fact that at the time of uttering the words, the defendant saw the plaintiff standing on the former’s stoop, would of itself be clearly insufficient to mitigate damages, yet when the act was characterized by the previous acts and conduct of the plaintiff, it may of may not be a mitigating circumstance, according as the evidence developes particulars and circumstances which cannot be inserted in a pleading. íer Joras, J.

      16. It would be a fair question for the jury whether the grievances theretofore suffered by the defendant were, by seeing the plaintiff standing on his steps, suddenly brought vividly to his mind, and he, excited by a sense of the wrongs done him, thus suddenly flashed in his mind, uttered the words. JPer Jones, J.
    (Before Jones, J. at special term,
    February —, 1868.)
    This is an action for slander. The words charged as having been uttered are, “ You are a thief, you are a thief.”
    The answer, among other things, alleges in mitigation of damages substantially as follows: That the plaintiff and the defendant are in the same line of business, to wit, sail-makers ; that about a year previous to the utterance of the words the captain of a vessel came to the defendant’s place of business in Mew York city, and directed his foreman to send to his vessel and get certain sails to repair; that the plaintiff at that time was standing-near by, and immediately went to the vessel and represented to the captain that he came from the defendant to get the sails; that the captain thereupon delivered the sails to the plaintiff, who took them to his own place of business and repaired them, whereby the defendant lost a customer, and also the profit to be derived from repairing the sails; that since that time the plaintiff has frequented the defendant’s place of business, hanging about on the steps thereof, interfering with his business and enticing away his customers; that a day or two previous to the time mentioned in the complaint, the plaintiff had enticed away one of the defendant’s customers; that the defendant, irritated thereby, coming out of his place of business, saw the plaintiff standing on the steps, and said to him, “You leave; I believe you are a thief; if you do not get off I will kick you off.” The answer further alleges in mitigation that the plaintiff, at the city of Boston, fraudulently and surreptitiously obtained from one Blaney, a sail-maker, a bill due said Blaney from a certain vessel for sails, &c. repaired and furnished to said vessel, and thereupon represented himself to the captain of said vessel as the agent of said Blaney, and collected from said captain the amount of said bill and appropriated the same to his own use. A motion is now made to strike out of the answer these allegations.

      Emerson & Goodrich, for the defendant.

      Angel & OaKsmith, for the plaintiff.
   Jones, J.

The cases of Bush v. Prosser, (11 N. Y. Rep. 347,) and Bisbey v. Shaw, (12 id. 67,) settled two principles in the law relative to actions for libel and slander, under the provisions of the Code. They are, First. That mitigating circumstances may be pleaded in connection with a general denial, and with or without a plea of justification. Second. That all matters which tend to disprove malice may be pleaded in mitigation of damages, although they may tend to prove the truth of the words complained of. These principles being taken in connection with the law as it stood prior to the Code, which permitted a defendant to give in mitigation of damages., evidence under the general issue of facts and circumstances which induced him to believe the charge true at the time he made it as .tending to disprove malice, provided such facts and circumstances did not tend to prove the truth of the charge, (Gilman v. Lowell, 8 Wend. 575; see remarkes in Bush v. Prosser, 11 N. Y. Rep. 355,) the further principle flows that facts and circumstances which induced the defendant to believe the charge true at the time he made it, may now be pleaded in mitigation of damages, as tending to disprove malice, although they may also tend to prove-the truth of the charge.

The question now arises, by what rules and principles is the sufficiency of an answer setting up mitigatory matters to be tested ? Since such, a plea was not allowed before the Code, we can of course find no guide in the decisions made prior to its passage, upon the sufficiency of pleadings ; and since its passage, although more than twenty years have elapsed, there is a great paucity of decisions bearing on the subject. It may, however, be safely asserted that a defendant cannot spread on the record any matters that he pleases and then by asserting that by reason thereof -he verily believed the charge to be true, at the time he made it, successfully resist a motion to strike them out. From this, one rule may be deduced, viz. that where a defendant seeks to mitigate damages by pleading facts and circumstances which induced him to believe the charge to be true at the time of he made it, the facts and circumstances so pleaded must be such as would reasonably induce in the mind of a person possessed of ordinary intelligence and knowledge a belief of the truth of the charge. Again, this species of evidence is admitted only for the purpose of disproving malice; and it must appear from all the proof at the trial, not only that the facts and circumstances were such as would reasonably induce in the mind of a person possessed of ordinary intelligence and knowledge, a belief of the truth of the charge, but also that the defendant was in fact thereby induced to believe in its truth. From this, two other rules of pleading may be deduced, viz. first, that the pleading should show that the defendant, at the time he made the charge, knew the facts and circumstances on which he relies, and second, that he should either expressly aver that such facts and circumstances induced a belief in the truth of the charge, at the time he made it, or that the facts and circumstances should carry with them a reasonable presumption that he believed the charge to be true. Again, the question as to whether there was no malice in making the charge, or if any, then to what extent, is one eminently proper to be submitted to the jury. The Code has made no change in the previous law on the subject. The rules then which governed the admission of proof as to mitigating facts aré (except so far as the exclusion of such facts rested oil the ground that they tended to prove the truth of the charge) still in force; and as mitigating facts may now be pleaded, the rules governing the admission of evidence thereof, should be applied as far as possible to the pleading. One of these rules of evidence was to admit proof of any fact which might possibly bear on the question of malice, under, of course, the restriction, now no longer in force, that it did not tend to prove the truth of the charge. Another was, that if there was the slightest doubt in the mind of the judge as to whether the facts proposed to be proven tended to disprove malice, then to admit the evidence, and submit the question to the jury under proper instructions. These rules should now be applied upon a mption to strike out parts of an answer setting up facts and circumstances in mitigation of damages,

Testing the present answer by these principles, that portion of it which sets up the Boston transaction must be stricken out. The answer neither avers that the defendant knew of it at the time he made the charge, nor does it expressly aver that by it he was induced to believe the charge true at the time he made it. The absence of these averments forbids any presumption that by reason of this fact he believed the charge to be true, at the time he made it.

With respect to the allegation respecting the enticing away of customers and interfering with his business, the facts alleged are not such as would reasonably induce in the mind of a person possessed of ordinary intelligence and knowledge, a belief in the truth of the charge of theft. To permit one to relieve himself from any part of the responsibility attached to the imputing to another the crime of theft on the ground that he, on so slight a basis as this, believed the charge to be true, would be in effect, to allow one who became dissatisfied with the conduct or business transactions of another towards' and with him, to apply to such other person such epithets as he saw fit, and then when called to account, to shield himself from a portion of the responsibility by the bare averment that the conduct or transaction in question induced in his mind a belief that the epithets were correctly applied. It should be the policy of the law to inculcate an observance of orderly speech, and not by dealing leniently with those who, not being excited by passion reasonably aroused by. present acts or language of another, or protected by some privilege known to the law, indulge in opprobrious epithets, encourage slanderous utterances whereby breaches of the peace may ensue. Hot only are these allegations not of a character which should necessarily induce a belief in the truth of the charge, but they are not such as to carry with them a presumption that the defendant, by reason thereof, believed the, charge to be true. It was therefore incumbent on him to expressly aver such belief. This he has failed to do.

For these reasons, but particularly for the first one, these allegations cannot be permitted to remain, on the ground that by reason thereof the defendant was induced to believe the. charge to be true at the time he made it. These allegations may, however, be retained on the ground that they tend to show that the words were uttered in the heat of passion, caused by the then present acts and conduct of the defendant. The bare fact of seeing the plaintiff standing on the defendant’s steps, would, of itself, not be sufficient for this purpose. It is therefore necessary to go further, and see if there is any thing in the previous ■acts or conduct of the plaintiff, known to the defendant, so characterizing the act of standing on the steps, as to reasonably lead to the conclusion that the defendant uttered the words in question under excitement of passion caused by such act of the plaintiff. The pleader has seen this, and has set forth these previous acts, and that former conduct, which, as the defendant claims, gave to the act committed at the time of the utterance of the words, a significance and character that excited his passion. That the words charged were uttered in the heat of passion caused by the act of the plaintiff, was provable in mitigation of damages, prior to the Code; but then that matter could not be pleaded. It, however, was admissible in .evidence under the general issue. If the system of pleading then existing still continued, these matters now under consideration could not have been pleaded, but on the trial the defendant could have proved that he was in a passion at the time he uttered the words, and to show that such passion was caused by the act of the plaintiff, he could prove the acts and language of the plaintiff at the time, and if those acts, or that language only gained significance by reason of their connection with previous acts or language of the plaintiff, known to the defendant, he could then show those previous acts, or that former language for the purpose of showing that the plaintiff’s acts and language on the occasion in question did cause his passion. This of course was subject to the exception that the acts and language did not tend to prove the truth of the charge; which exception, as repeatedly before remarked, no longer exists.

But now a defendant may plead matters which go in mitigation of damages merely. The question then arises whether in pleading heat of passion in mitigation, the defendant should plead simply that he uttered the words in heat of passion caused by the plaintiff, or should set forth the acts and language of the plaintiff which he claims caused his' passion. I think the latter mode is more conformable to the rules of pleading.'

When an answer thus setting forth the acts and language of the plaintiff in mitigation, is interposed, and a. motion made to strike out parts as irrelevant, the only duty devolving on the court, under the rules above laid down, is to see whether the matters pleaded can by any possibility .be received in evidence; if so they should not be stricken out; if not they should be. In the performance of this duty, as above suggested, if there is the slightest doubt as to the matters being inadmissible, the court should refuse to strike out.

In the present case I cannot undertake to say that the matters in question are clearly inadmissible. What are they ? These: The plaintiff and the defendant are in

the same line of business. The plaintiff, about a-year ago, enticed away a customer of the defendants; since that time he has been lounging around the defendant’s place of'business enticing away his customers, and a day or two previous to the utterance of the words, had enticed one away; and on the occasion of the utterance, the defendant, on coming out of his store, saw the plaintiff on his steps, and being irritated thereby used certain language specified. How- proof of the mere fact that the plaintiff was standing on the defendants stoop would of itself be clearly insufficient to mitigate damages. But when that act is characterised by the previous acts and conduct of the plaintiff, it may or may not be a mitigating circumstance, according as the evidence develops particulars and circumstances which cannot be inserted in a pleading. It would be a fair question for the jury whether the grievances theretofore suffered by the defendant, were by seeing the plaintiff standing on his steps, suddenly brought vividly to his mind, and he, in the heat of passion, excited by a sense of the wrongs done him thus suddenly flashed in his mind, uttered the words. The' operations of the mind under circumstances like these are instantaneous, and a single circumstance will often call up a recollection of forgotten and forgiven injuries, and suddenly raise up an excitement, under the paroxysm of which words will he uttered and acts done which calm reflection would avoid. I can not say but that the evidence which may be adduced from the matters pleaded, will justify the jury in finding that the words were uttered in heat of passion thus excited. If so, the fact of their being so uttered must be taken in mitigation of damages. But to justify the jury in so finding, the bare act of the plaintiff standing on the defendant’s steps will not, as before mentioned, be sufficient, but that act must be characterised by the other matters pleaded.

There being then one aspect in which proof of these facts may possibly be admissible, they cannot be stricken out.

Motion granted in part, and denied in part, as above indicated, without costs to either party.


author: McCunn, J.

text:
    Gustavus Moneypenny, plaintiff, vs. The Sixth Avenue Railroad Company, defendants.
    1. The act of the legislature, “ to prevent extortion by railroad companies,” passed March 27, 1857, does not apply to city railroads, incorporated under the general.act of 1850, whose fare for the transportation o’f passengers is fixed or regulated by contract with the city authorities bestowing the grant.
    2. If a city railroad company secures a charter allowing them to receive a fare of five cents for each passenger, at a time when specie is the lawful currency, and subsequently the general government issues a paper currency, which enhances the value of the original fare, the company will be justified in advancing the fare to six cents, when paid in paper.
    3. The act of Congress, passed in 1864, (Stat. at large, 38th Cong. p. 485,) justifies a company in adding the additional cent to the fares, even if the paper currency had not depreciated, the original fare; and passengers are bound, if they wish to ride in the cars of such company, to pay such additional cent, when demanded.
    (Before McCunn, J. at special term,
    November —, 1865.)
    Demurrer to complaint. The action was brought to recover of the defendants a penalty of-fifty dollars, under the “ Act to prevent extortion by Railroad Companies,” passed March 27, 1857, for asking and receiving a greater rate of fare than that allowed by law. That act provides' that “ any railroad company which shall ask and receive a greater rate of fare than that allowed by law shall forfeit fifty dollars, which sum may be recovered, together with the excess so received, by the party paying the same, but it shall be lawful, and not construed as extortion, for any railroad company to take the legal rate of fare for one mile, for any fractional distance less than a mile.” (Laws of 1857, oh. 185.)
    The alleged extortion consisted in demanding and receiving a fare of six cents, when paid in paper, instead of five cents in specie, the fare authorized by their charter.
   McCunn, J.

The first question is, whether the penal act of 1857 applies to city railroads incorporated under the general act of 1850, but whose fare for the transportation of passengers was fixed or regulated by contract with the city authorities, who bestowed the grant, and which contract has been confirmed by the legislature of 1854.

• The act of 1857, by its very terms, refers only to other than city companies. In Chase v. New York Central R. R. Co., (26 N. Y. Rep. 526,) the court say: “ The statute of 1857 has reference to statutes in which the rate for carrying passengers is fixed and allowed,” not to exceed two cents per mile, and has no reference whatever to city roads. Indeed, the language of the act shows that it could not have been intended to refer to companies whose fare was fixed at a sum certain for any distance, great or stnall. The penalty is prescribed against any company Which shall ask and receive a greater rate of fare than that allowed by law, to wit, two cents per mile, and declares that it shall be lawful to take the legal statutory fare for one mile for any. fractional distance less than a mile. Unless, therefore, the fare of the defendants in the present action is to be governed by the mile, and not by their contract with the city, (under which they have always received their fare,) but by the general railroad act, it is manifest the act of 1857 has no application.

The act was never intended to apply to a city railroad company, who are carriers of passengers only; this is manifest from the language of the statute, which provides, that every corporation formed under it shall have power “ to regulate the time and manner in which passengers and property shall be transported, and the compensation to be paid therefor; but such compensation for any passenger and his ordinary baggage shall not exceed three cents per rnile. It would, therefore, be impossible to apply it to a city railroad. The railroads of the interior have stations at fixed points, from and to Which, the fare is computable, and at which passengers get in and out of the cars. With our city roads a passenger gets on and off at all points; he pays his six cents and rides wherever he pleases. Moreover, if the act of 1857 had any application to city roads, these defendants might use “ steam,” (§§ 5, 7, 28,) and demand an extra five cents from passengers not purchasing tickets. (§ 87.) Suck companies are also obliged to erect'fences along their entire route, (§56,) and may take all the real property they require for the purposes of their business (a depot, for instance,) and acquire the legal title against the will of the owner. (§§ 13, 15, 32.) It is clear, therefore, that the general railroad act is not to be stretched beyond its reasonable application.

JBut, in addition .to all this, the act of 1854 takes the whole subject of fare out of the operation of section 28 of the general act. That act applies exclusively to city railroads which commence and end in the city; it authorizes the common council to grant the right to construct and establish railroads upon such terms, conditions and stipulations in relation thereto as such common council may prescribe. How these defendants had been actually incorporated nearly three years at the time of the passage of that act, and had in part constructed their road; they therefore came within its provisions, and by its terms were placed in the position in which they would have been, had they obtained their license from the common council, after the passage of the act and in strict compliance with its terms.

But while the act of 1854 ratified and sanctioned the agreement made between these defendants and the common council, and thus took the subject of fare out of the general statute of 1850, it did not make the fare fixed by that agreement a matter of statutory enactment; it did not make the fare “ allowed by law ” in the language of the penal act of 1857; it was still a fare regulated by contract. The act confirming the contract says nothing about fare; it leaves that as found and provided for, in the resolutions and contract between the city and the company. It made valid, if you please, a voidable contract, and gave legislative sanction to all its provisions, that of fare included. It follows, from all that has been said, that the fare of these defendants is regulated, not by the act of 1850, as claimed by the complaint in this action, but by the agreement with the city corporation; and it equally follows that the act of 1857 has no application to these defendants; therefore the penalties claimed in this action cannot be enforced.

There is an exception taken by the defendants to the complaint, in this, that in no count does it allege that the plaintiff informed the conductor, on entering the car, how far he was going, or that he objected to pay the six cents. This exception is well taken, but after what I have already said, it is not necessary to discuss the proposition.

The remaining question, submitted without argument, was, whether, under the circumstances, these defendants had a right to receive the extra cent from passengers. Compacts, by whomsoever entered into, should be kept; that individuals and companies are equally bound by them is evident; but it is also evident that if one party performs not his part, the other is released from the performance of his. That proposition no one can dispute. Justice, right and reason require it, and the law of nature commands it-. Extraordinary occasions may now and then occur in which, perhaps, the happiness of a people may be better promoted by acting for a moment in opposition to a law than by strict observance of it. Here 'an occasion did arise. A crisis, it would seem, that could not be avoided. Although the interests of this company were but a mite, as it were, in the great drama enacted, yet they were drawn into its vortex, suffered by its effects; had to do as all other corporations did in the emergency, sustain -themselves as best they could. The calamities of a civil war broke upon the country; its people and territory were for a time divided; foreign nations looked upon that division as final and permanent, and asking credit abroad under the circumstances, was simply preposterous. Something had to be done, to save our institutions. A scheme was therefore adopted, and although it upset, in the minds of some, many of the old notions of statesmen and constitutional lawyers, it was a complete success; for it carried a people through the most fearful ordeal that ever a nation was subjected to, without their being dependent on any other power for the credit of a single shilling. I will say here that the scheme resorted to did credit to the intellect that conceived it, and infinite honor to the mass of the people who accepted and were satisfied with its terms, for the time being, as the only method to save the country from ruin!

At the time this company received its grant, there was nothing but specie received as fare, and upon such a basis they obligated themselves to build the road for the accommodation of the public. In the necessity of the moment, the general government passsed laws creating paper currency, the effect of which was to withdraw coin as a circulating medium, and to make it an article of merchandise only, and to substitute the new currency; the five cents which the company charter enabled them to levy from passengers, was enhanced in value to twice that sum in paper; the consequence was that passengers declined to pay in coin, and this company, when they saw they could not obtain pay in that form, advanced their demand to six cents in paper.

How, this may have been done, if you please, to save the company from bankruptcy, but it was also to enable them to run their cars so as to accommodate our rapidly growing community. Under the circumstances, they were justified in the course they pursued.

In the ordinance conferring this grant, there is a promise required of the company to carry passengers for a certain price, and the consideration for that promise was that the grantees could levy five cents, in coin, from each passenger so carried, and I cannot find in the papers before me, that they violated that promise by refusing to receive the fare in specie; on the contrary, it appears that the public, under the pressure of the moment, compelled this company to receive in payment, instead of five cents in coin, to which they were entitled, a paper currency that was not equivalent at any time to the original fares fixed in their charter. It is urged that the law of congress (1864) allowing this company to add the extra cent, under the revenue laws, is not constitutional. I do not agree in that. Companies, under the circumstances, have just as much right to add the extra cent- to their fare, to enable them to cover the tax imposed by the general government, as a landlord has to raise his rent, or a merchant to increase the price of his commodities for the like purpose. When we return to a gold and silver basis, and legal minds get running again in the constitutional groove, if the law* which creates this paper currency is discussed in connection with that allowing them, to charge the extra cent, one will be found to be equally constitutional with the other. These views may not accord with the clamor against railroad corporations, but the ministers of the law should at all times be so far masters of themselves as not to allow their minds to be warped by every gust of passion which may ovei'bear, for a moment, the reason of the people. I am satisfied that if congress had a right to create a paper currency, and make laws enabling it to pass for money, and that was the cause of depriving the railroads of the five cents in specie; they, in return, had an equal right, under the circumstances and without the aid of the law of 1864, to require one cent extra. Hay, more, in all fairness they have as good a right to exact the full equivalent in paper money for the five cents in coin which their charter guaranteed them, as the general government had to exchange gold coin by the million, for double its .value in greenbacks. I, therefore, cannot join in this hue and cry against railroads, when, perhaps, they are doing all in their power to accommodate our citizens. Certain' it is that these companies have added largely to the wealth of our city by affording its people ready access to all parts of it, enabling them to reside on our island, thereby increasing the value of its property. The good done in this way is forgotten, and the public is frequently misled by designing persons who carp against corporations from selfish motives.

In this case I shall he plain, So that all can unnderstand, and there may be no bickering and breaches of the peace between the employees of companies and the passengers, until this question is disposed of in the court of last resort. I hold,

1st. That when the company secured its charter it was with the tacit understanding they could charge five cents in specie, that being the lawful currency then.

2d. That an extraordinary crisis arose compelling the government to issue a paper currency which enhanced the ' value of the original fare, and that they were justified in advancing one cent when paid in paper.

3d. That the law of congress, passed 1864, (Statutes at Large, Thirty-eighth Congress, p. 485,) justifies the companies in adding the additional cent to the fares, even if the paper currency had not depreciated the original fare, and that passengers are bound, if they wish to ride in these cars, to pay such additional cent.

4th. That the penal act of 1857 does not apply to city railroad companies, and that by operation of law the penalty sought for here cannot be recovered. Judgment must, therefore, be entered for the defendants, overruling the demurrer, with costs.


author: Monell, J.

text:
    Harriet Butler, administratrix, &c. plaintiff, vs. George W. Niles et al. defendants.
    1. Where the court, in an action to set off judgments, directs such set-off to be made, upon condition that the plaintiff pay the costs of supplementary proceedings instituted by the defendant on the judgment against the plaintiff, and deliver to the defendant a receipt by the plaintiff] applying the amount of the defendant’s judgment on the judgments held by the plaintiff against the defendant, the latter cannot refuse to accept such costs and receipt on the ground that the plaintiff could not properly give the receipt or pay the costs, inasmuch as it would be a violation- of the injunction in the supplementary proceedings.
    2. The acts being authorized by the judgment of the court, in a case within its jurisdiction and powers, such judgment is necessarily a complete justification for all acts done under it.
    3. At most the giving the receipt and paying the costs, if it could be regarded as a violation of the' injunction, would merely subject the plaintiff to punishment as for a contempt, and would not render the receipt or payment ineffectual or invalid.
    4. To do a wholly ineffectual act, although forbidden by an injunction, would " hardly be deemed a violation of it, Hence the act must be not only in defiance of the restraint, but must deprive the other party of some substantial right, or affect some substantial interest. JPer Monbll, J.
    (Before Monell, J. at special term,
    March —, 1868.)
    This is a motion for final judgment. The action was commenced in February, 1863, by Thomas Butler, to set off two judgments in favor of one Francis Morris against the defendant George W. Hiles, and assigned to Butler, against a judgment in favor of Hiles against Butler. Judgment in the action was entered directing such set-off to be made, and that “ upon a tender, in five days after notice of judgment, by or on behalf of said Thomas Butler, to the defendants, of a receipt for so much of the amount due to said Butler upon said two judgments assigned to him, as should be equal to the amount due on said judgment against him, together with said costs and expenses, and also a satisfaction piece of said judgment, and a consent to be signed by the said defendants to discontinue said supplementary proceedings and action on said judgments, and a receipt for the amount of said costs, the defendants therein should execute such satisfaction piece and receipt. And further, should the said Thomas Butler refuse or decline to sign and file such satisfaction piece, the said complaint of the said Thomas Butler should be dismissed, with costs.”
    It was shown by the moving papers, on the part of the plaintiff, that the several receipts, costs,- satisfaction piece, and consent to discontinue the supplementary proceedings, had been tendered by the plaintiff to the defendant Hiles. That Hiles refused to receive the costs or to sign the satisfaction piece, the receipt, or- the consent. It was further shown, that the consent and receipt on the part of the plaintiff, required to be given to the defendants, was signed by the plaintiff, filed with the clerk of this court, and copies served on the defendants.
    It was conceded that the plaintiff had fully complied with the requirements of the judgment, and she now moves for final judgment.
    On the part of the defendants it was shown, that at the time Butler signed the consent and receipt, he was restrained by an injunction in proceedings supplemental to an execution issued at the instance of the defendant Lee, upon a judgment against Butler in favor of one Peter Morris, which had been assigned to the defendant William Lee, from transferring, disposing of, or making any other disposition of any property belonging to him; and it was claimed that while under such restraint, Butler could not comply with the judgment in this case, and give the receipt and pay the costs as required; and, therefore, the defendants’ refusal to accept such receipt and costs, or to execute the several papers on his part, was proper.-

      J. E. Burrill, for the plaintiff.

      I. T. Williams, for the defendants.
   Monell, J.

The judgment in' this case directed that the judgment in favor of Hiles, against Butler, should be set off against the judgments against Hiles, held by the plaintiff, thus absorbing the whole amount due on the former judgments, hut leaving a balance due oh the latter judgments. The judgment also directed the payment by Butler of the costs of supplementary proceedings instituted upon the Hiles judgment against Butler; and the delivery of a receipt by Butler applying the amount of the Hiles judgment upon the two judgments held by him, and the payment of said costs, are made conditions precedent to Hiles being required to satisfy his judgment against Butler, and to discontinue the supplementary proceedings.

It is claimed that Butler’s giving the receipt or paying the costs would be a violation of the injunction in the supplementary proceedings, and therefore cannot be done.

The first answer to the objection is, that the acts are authorized by the judgment of this court, in a case within its jurisdiction and powers, both as to the subject matter and the parties; which judgment is, necessarily, a complete justification for all acts done under it. It cannot be that an act done by the direction or under the authority of a court of competent jurisdiction and powers, having before it all the parties to he affected, can be questioned elsewhere. Lee, the prosecutor of the supplementary proceedings, and who alone can be pecuniarily affected, is a party to this suit and hound by the judgment; and is, therefore, in no condition to complain if a party to the suit executes the judgment. It is clear, I think, that the judgment is a complete protection to Butler, and he cannot be ¡made responsible for any act or thing done by him under it.

Second. At most, the giving the receipt and paying the costs, if it could be regarded as a violation of the injunction, would merely subject Butler to punishment as for a contempt,' and would not render the receipt or payment ineffectual or invalid. So that, • even if Butler should subject himself to punishment, Hiles could nevertheless hold his costs and retain his receipt. To do a wholly ineffectual act, although forbidden by an injunction, would hardly be deemed a violation of it; and, therefore, the act must be not only in defiance of the restraint, but must deprive the other party of some substantial right or affect some substantial interest. In the leading case of The People v. Sturtevant, (9 N. Y. Rep. 263,) the act which violated the injunction, namely, the adoption of a resolution giving permission to construct a railroad, was assumed to be valid as respected the grantees of the act; and Judge Johnson says, (p. 271,) it was contended that the resolution did not become an effectual grant, and therefore was no violation of the command of the injunction; but to that he could not agree, and he held the resolution was effectual, although passed in violation of the injunction.

If, therefore, the giving the receipt and paying.the costs are valid acts as respects Hiles, then the supposed violation of the injunction which might subject Butler to punishment for a contempt, is a matter in which Hiles has no concern.

In disposing of this question I have treated it as if Butler was alive and amenable for his acts. Of course the tender of performance, long since made, and the subsequent death of Butler, relieves the question of all difficulty; as I am .satisfied, for the reasons already stated, that the tender was not only proper but sufficient.

The motion must be granted.


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    Paulina Aaron, plaintiff, vs. Meter Baum et al. defendants.
    -1. An injunction to restrain the prosecution of summary proceedings, by a landlord, to dispossess a tenant, can only be granted on the application of the tenant, or of some one who is a party to the proceedings to he enjoined, and then only on the ground of fraud or surprise, or of some equitable title that could not he set up at law.
    2. One who is not a party to the summary proceedings cannot obtain an injunction merely upon the allegation that he is in danger of having his possession disturbed.
    (Before Monell, J. at special term,
    March —, 1868.)
    This action was brought to obtain an injunction to restrain the prosecution of summary proceedings, under the landlord and tenant act. Proceedings under such act were instituted before the city judge by the above defendants, claiming to be landlords of the premises known as No. 30 Oliver street, in this city, against one Levi Aaron. Pending such proceeding, the plaintiff commenced an action in this-court against these defendants, praying for an injunction restraining the further prosecution of such proceeding; and a temporary injunction was granted.
    The action was tried without a jury. On the trial it appeared that the plaintiff and one Henzler were lessees of the premises under a former owner, and were in possession, claiming under such lease. When the defendants purchased the premises, they found the lease to the plaintiff and Henzler on record, and being informed that Levi Aaron was the lessee, they delivered to him a new lease. The summary proceedings were against him as the tenant, and the plaintiff was not a party.

      S. Hirsch, for the plaintiff.

      J. Henderson, for the defendants.
   Monell, J.

I am warranted, by the evidence in this case, in finding all the facts necessary to establish that the plaintiff is entitled to hold the possession of the premises in question under the lease from Bauth to Aaron and Henzler. I am satisfied that such lease has never, in fact or by operation of law, been canceled or surrendered; and that, therefore, the plaintiffs holding under it, cannot lawfully be disturbed in or by any proceeding to recover the possession of the premises, instituted by the defendants against her husband, or in any proceeding to which she is not a party.

I have found that the lease from Bauth was to the plaintiff and Henzler, and that the plaintiff now holds under such lease. The weight of the evidence is, that she and Henzler were partners, and her husband was merely her agent in and about her business of a weiss brewery; that he had no authority, express or implied, to cancel or surrender the lease; that it never was canceled or surrendered, but was in existence at the trial of this action, and that the plaintiff holds the possession of the premises under it.

The defendants, who purchased the reversion after the lease was recorded, took title subject to such lease; hence the lease to Levi Aaron, the plaintiff’s husband, was inoperative to defeat the plaintiff’s right to the possession. Bor is the plaintiff estopped from asserting her title by any thing which occurred between Levi Aaron and the defendants. He had no express or implied authority to cancel the lease or surrender the possession of the premises, or to do any act or thing which would operate as an estoppel upon the plaintiff. It follows, from these facts, that the plaintiff has a clear and undoubted right to the possession of the premises, and that any disturbance of such possession, either of herself or of her tenants, by or under the summary proceedings instituted against Levi Aaron, would be an unwarrantable trespass.

But with all this right on the plaintiff’s side, I have not been able to find any sufficient ground to authorize the continuance of the injunction.

The interposition of a court of equity to restrain summary proceedings has never, that I am aware of, been invoked except by a tenant or other party to the proceeding, and then only on the ground of fraud or surprise, or of some equitable title that could not be set up at law. (Duigan v. Hogan, 1 Bosw. 645.) I do not know of a case, nor can I conceive of one, where a stranger, i. e. one not a party to the proceeding, can obtain an injunction upon the allegation merely that he is in danger of having his possession disturbed. His notice of the institution of the proceeding is not of any consequence. He has no right to appear, nor can he make any defense; but that, of itself, is not- enough to warrant an injunction. I do not see, therefore, that the plaintiff occupies any different or worse position than-any person who is in danger of having a trespass committed upon his property or rights, and for such she has adequate remedies at law.

If, upon the dissolution of the injunction, a warrant should be issued, and, upon its execution, the plaintiff should be removed from her possession, the courts will afford her all the redress she may be entitled to, but the threatened injury is not of that irreparable nature that requires an injunction to restrain its commission.

There must be judgment dissolving the injunction and dismissing the complaint, but without costs.


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    Philetus Stephens, plaintiff, vs. Jose Ferrer DeCouto, defendant.
    1. What right of property there may he in what is commonly denoted the “good will” of a business, is not fully determined; but such property, whatever it is, has never been protected, except where it has been made the subject of some expres’s covenant between the parties. It may be sold by private agreement, and the stipulations of the parties in respect to it will be enforced; but in the absence of any covenant, and upon a purchase at an involuntary sale, the vendee is not subrogated to all the rights of the original owner. Per Monell, J.
    2. Hence, the purchaser of a newspaper establishment, including the subscription list and good will, at a sale thereof by the public administrator, will not acquire such a right of property in the name or title of the newspaper, as will prevent its being afterwards assumed by another person. ■
    3. The protection which the law has afforded to trade-marks has never, it seems, been extended over any thing that was the subject of a patent or a copyright, but is confined to appropriations of names designating some particular manufacture or business.
    4. There can be no such property in a newspaper, except, perhaps, in the ‘ name or title of the paper. The law of trade-marks, like the law of copyright, pannot be applied to a work of so fluctuating and fugitive a character as the contents of a newspaper.
    6. Although a newspaper proprietor may appropriate, and by long use acquire a property in a name, which the courts will protect as a trade-mark, against the assumption of such name hy another proprietor, that is the extent of the rule; and any mere assimilation of the name, unless it is very clearly calculated to deceive the public, will not be unlawful.
    6. An injunction will not be issued, in an action brought by the proprietor of a newspapaper, to restrain another from issuing or publishing a newspaper bearing a similar name to that owned by the plaintiff; where there is no sufficient evidence that the public has been deceived, and the names of the two papers are so dissimilar in signification that no one acquainted with the language in which they are printed could be decoyed into purchasing the one for the other.
    (Before Monell, J, at special term,
    March —, 1868.)
    In this action the plaintiff songht for a judgment restraining the defendant from issuing, editing, printing or publishing a newspaper called El Cronista.

      It was alleged that about fourteen years since a newspaper was published in the city of Hew York under the name of La Crónica,' by one Manuel DePena, in the Spanish language, which obtained a large circulation and exercised a wide influence in all the principal commercial or maritime cities of Horth and South America. That in April, 1865, DePena. died, being indebted at the time to the plaintiff in the sum of $1000, leaving as assets of his estate the said newspaper and a large amount of material used in its printing. DePena was a native of Spain, and never became a citizen of the United States. Upon his death his widow took possession of the newspaper and assets, and. in July, 1865, formed a partnership with the defendant to continue its publication; and its publication was continued under the same name of La Crónica, in the same form and description of type, until May,, 1866, when a symbol was placed over the title of the paper, and the title printed in a new form and with a new description of type. On the fourth of May, 1867, the title or name of the newspaper was changed from La Crónica to M Cronista. The symbobplaced over the name the previous year was retained, and the name or title printed in new and different type. Under the latter name, and in the latter form, it was being published at the commencement of this action. At different periods of its publication, commencing as far back as 1862,. and ending at the time of the trial in January, 1868, the paper was issued of different sizes and of different type. In April, 1867, the public administrator of the city of Hew York, in virtue of his office, took possession of the printing material and property connected with the paper, and subsequently sold at public auction the right, title, and interest which DePena had in his lifetime, in the newspaper called La Crónica, including the subscrip: tion list, and good will thereof, and in the aforesaid printing material and other property connected therewith; at which sale the plaintiff became the purchaser.
    It was proved that in 1867, prior to the sale, the newspaper called La Crónica was claimed as the joint property of the widow of DePena and the defendant; but upon the change of name in May of that year from La Crónica to M Cronista, the latter paper became the sole property of the defendant, and was thenceforth edited, printed, and published by him, with new type purchased by himself. It was also proved that the symbol placed over the name of the paper, published by the defendant and Mrs. DePena, in May, 1866, was the private symbol, insignia or emblem of the defendant.
    There was no proof that the defendant was in possession of, or was using, any of the printing material or other property alleged to have belonged to DePena.
    The action was tried without a jury.

      T. B. Eldridge, for the plaintiff.

      H. H. Morange, for the defendant.
   Monell, J.

Eo evidence was given or offered on the trial of this action, proving or tending to prove that any portion of the material used in printing the paper called La Crónica, and claimed to have been purchased by the plaintiff, was in the possession of the defendant at the commencement of the suit. Such property, if it existed, had previously gone into the possession of DePena’s widow, who claimed it under the Spanish law, as the heir-at-law of her husband; or it was being administered by her as administratrix de son tort. In either case she alone could be called to account for it. But there was evidence that the type and material used in printing the paper, the publication of which is sought to be enjoined, was purchased hy and belonged to the defendant. So much, therefore, of the plaintiff’s case as demanded an accounting by the defendant for such property, fails for the want of proof to support it; and the controversy is, accordingly, reduced to the single question of the right to restrain the future publication by the defendant of the paper called El Cronista.

The plaintiff’s claim to the restraint'was founded upon his purchase, at the public administrator’s sale, of the interest of DePena in the newspaper called La Crónica, which the plaintiff claimed embraced, not only the type, cases and presses used in printing, but also the exclusive right to the name and the good will connected therewith; and that, therefore, the publication by the defendant of a newspaper bearing the same name, or of any name, so similar in its appearance to the eye or in its sound to the ear, as was calculated to deceive the public into the belief that they were the same, was an invasion and infringement of his proprietary right in the former paper.

It was not disputed that DePena, at the time of his death, was the sole proprietor of La Crónica ; nor that the plaintiff acquired all the interest of DePena in such publication. And it was conceded that Mrs. DePena and the defendant, under a copartnership agreement, continued the publication of the paper from the period of DePena’s death, until the 4th of May, 1867, without any material change, either in the name or in the typographical or general appearance, or in the size and form of the paper. On that day, however, the publication of La Crónica ceased, and with its cession, the joint interests of Mrs. DePena and the defendant in such publication also ceased. Thereupon, and before the public administrator’s sale, the publication of El Cronista was commenced by the defendant as its editor and sole proprietor.

I need not stop to ascertain what proprietary interest, if any, Mrs. DePena had in the publication of her deceased husband; nor under what right the publication was continued after his death. She at least was in possession, assuming the right to continue the publication for her own emolument and was dispossessed, if at all, by an involuntary sale of her husband’s interest or property in the paper. Whatever right of property there may be in what is commonly denoted the “good will,” is not fully determined, but such property, whatever it is, has never been protected, except where it has been made the subject of some express covenant between the parties. It may be sold by private agreement, and the stipulations of the parties in respect to it will be enforced; but in the absence of any covenant, and upon a purchase at an involuntary sale, the vendee is not subrogated to all the rights of the original owner. This was the view intimated in respect to “ copyrights ” in Stephens v. Cady, (14 How. 528,) and see McCardel v. Peck, (28 How. Pr. 120.) Hence, it would seem to follow, that whatever the plaintiff may have purchased, he did not acquire such a right of property in the name or title of La Crónica as would prevent its being assumed afterwards by another person.

If this case was to be determined solely upon whether the similarity, if it could be established there was any, of the names La Crónica and SI Cronista, could mislead the public into the belief that they were the same, and hence that the latter was a mere simulation of the former, I should have no difficulty in reaching the conclusion, upon the evidence, that no such effect would or could result. An inspection of the several issues which were produced before me, disclosed such marked differences in the size, heading, typographical and general appearance of La Crónica, as published by DePena in his lifetime, and the paper of the same name, issued by his widow and the defendant afterwards, that the issues of the later period, would not, as I believe, be mistaken for or be regarded as a non tin-. nation of the earlier'publication. And, independently of the clear difference'in the signification of the names La Crónica and El Cronista, the one, according to the testimony of a highly educated and very intelligent Spanish witness, meaning'“ the chronicle,” and the other “the chronicler,” the one' “being the thing done, and the other the one that' does it,” there is so manifest a dissimilarity in the "general appearance, both as respects the formation of the words and the character of the type employed in printing, that, as the witness before alluded to said, “ no Spaniard could be mistaken.”

The case, however, in my judgment, is relieved of all difficulty, inasmuch as it clearly appears that upon or prior to the publication of El Cronista the publication of La Crónica had ceased. For, I think, it cannot be successfully claimed that one was merged in or was even a continuation of the other. La Crónica was printed with .the type and upon the presses of the original proprietor, under a copartnership arrangement between Mrs. DePena and the defendant, whereas El Cronista was the sole property of . the defendant, both in the adoption of its name and in the type used in its printing. Unless therefore it can be sustained that the proprietorship of a newspaper is so exclusive and comprehensive that its rights would be invaded by a publication of another newspaper bearing a different, title órname, the defendant’s publication cannot be claimed-to be an infringement of any of the plaintiff’s rights. I do not understand that theprotection which the law affords to “trademarks,” even assuming the name of a newspaper to be a trademark, goes so far as is claimed in this case. The protection" which has been granted .to that species of property has never, I believe, been extended over any thing that was the subj ect of a patent or a copyright, but is confined to appropriations of names designating some particular manufacture or business. There can be no such property'in a newspaper, except, perhaps, in the name or title of the paper, which is the only continuing portion of it. The contents of each issue are the composition or creation of the editor or contributors, aré varied each day, and when given to the public all literary proprietorship in them is lost. And the law of trademarks, like the law of copyright, cannot be applied to a work of so fluctuating and fugitive a character. (Clayton v. Stone, 2 Payne, 392.)

. I do not mean to say that a newspaper proprietor cannot appropriate, and by long use, acquire a property in a name, which the courts will protect against piracy. In this respect the analogy of the rules of trademark would apply, (Dayton v. Wilkes, 17 How. Pr. 510.) And “I have no doubt that the names, so long appropriated and used, of the New , York Herald, or ■ The Sun, would be protectéd as trademarks, against the assumption of those names by another proprietor. But that I understand to be the extent of the rule, and that any mere assimilation of the name, unless it was very clearly calculated to deceive the public, would not be unlawful.

There was not sufficient evidence on the trial that the public had been deceived. The plaintiff’s evidence, and that of his only witness, was of too general a character to establish so important a fact. Besides, it was more than" balanced by the evidence on the part of the defendant before alluded to, that the names of the two papers were so dissimilar in signification, that no one acquainted with the Spanish language could be decoyed into purchasing the one for the other. And the inspection which I have given of the several papers which were made exhibits before me, has confirmed me in the same'belief. Upon the whole case, therefore, l am of opinion that the defendant is entitled to judgment dissolving the injunction, and dismissing the complaint, with costs.