text:
    Clark B. Wheeler, plaintiff and respondent, vs. Elisha Ruckman, impleaded, &c. defendant and appellant.
    1. Where the complaint in an action is dismissed, before the issues have been, tried, or a verdict of the jury given,' the judgment of dismissal is no bar to a subsequent action for the same cause.
    2. Where a complaint is dismissed, for want of proper parties, and not on the merits, the judgment of dismissal is no bar to a subsequent action.
    3. If the answer, in an action on a promissory note, does not set up as a. defense that the note was purchased by the plaintiff, an attorney, for the purpose of prosecution, such defense is not admissible, on the trial.
    4. A case made on a former trial, being no evidence of what took place on the trial, the fact of its being in the handwriting of a party is immaterial, upon the question of its admissibility as evidence.
    (Before Robertson, Ch. J., and McCunn and Jones, JJ.)
    Heard June 1, 1868;
    decided July 3, 1868.
    Appeal by the defendant, Ruckman, from a judgment entered in favor of the plaintiff on the verdict of a jury. The action was brought by the first indorsee of a promissory note, against the makers, viz. the appellant and the defendant Lake.
    The complaint was in the usual form, alleging the making by the defendants, and indorsement of such note in. February, 1854, by the payee, (Russell,) to the plaintiff. The answer, after denying the indorsement of such note by the payee, and the plaintiff’s ownership thereof, set up four defenses. (1.) The falsehood and fraud of a representation by the payee, that he had a lien upon certain oysters bought by the defendants, upon the faith of which, they gave him such note,, and that the plaintiff took such note, after it was due, and with notice of such fraudulent representation. (2.) An attachment issued against suck payee in the Supreme Court, in favor of a Mr. Drury, while such note was the property of the payee, and notice to the plaintiff thereof by the sheriff of the county to whom it was issued. (3.) The appointment of a receiver of the property of the plaintiff, in an action brought against the defendants by him, in which they recovered judgment against him for costs. The recovery of judgment by the defendants in. such action, which was for the same cause of action as that set forth in -the complaint, of dismissal of the complaint therein.
    The plaintiff in a reply to such answer set up: (1.) A deduction of .$20 from the judgment in favor of Drury by order of the Supreme Court, after it was entered. (2.) That the former action of the plaintiff against the defendants set up in. the answer was not tried upon the merits, but their consideration was withdrawn from the jury, and the complaint dismissed by the court for defects in the pleadings; and (3.) That he paid the judgment for costs therein before the commencement of this action.
    On the third of February, 1854, the payee of such note (Bussell) signed an agreement reciting that he had that day left for collection the promissory note in question, whereby-he agreed in case the same was collected to allow the plaintiff the interest then due and $50, and a proportionate amount in case a less sum was collected. The plaintiff agreeing, on his part, to lose all his fees and disbursemensts, in case nothing was collected. The next day, February 4, (as the plaintiff testified on the trial,) Bussell being then indebted to him for professional services, agreed that he might have such note in payment for them and for professional services agreed to be rendered by him.. On the 10th of February, 1854, the plaintiff'" commenced an action, as attorney for Bussell, in the marine court of the city of Sew York, against the defendants, upon such note; in the complaint, in which action, signed by the plaintiff as attorney, it was alleged that Bussell was then the owner thereof. On the 27th of February, 1854, an attachment was issued against Bussell to the sheriff of the city and county of Yew York, in an action in the Supreme Court of this state, in which he was defendant and one Samuel Drury, plaintiff, and notice thereof given by such sheriff to Russell and the plaintiff, which fact was set up as a defense in the action in the marine court, and thereupon the complaint in such action was, for that reason, dismissed, because such sheriff was not a party to it, but upon appeal from the judgment therein to the court of common pleas of the city and county of Yew York, the latter reversed such judgment, in January, 1855, but nothing further was done therein. On the 29th day of December, 1854, Russell executed to the plaintiff an assignment, under seal, of the promissory note in question. In March, 1855, the plaintiff commenced an action in this court, in his own name, against the defendants, upon such note, in the complaint wherein he claimed title thereto, under such assignment, in December, 1854. The defendants set up therein the same defenses as in this action. Upon the trial of that action the court ordered the complaint therein to be dismissed, without allowing the issues therein to be passed upon by the jury impanelled to try the same.

      J. C. Dimmick, for the appellant, defendant.

      C. P. Schermerhorn, for the respondent, plaintiff.
   By the Court, Robertson, Ch. J.

The counsel for the defendant moved, on the trial of the issues of fact in this action, to dismiss the complaint upon the ground that the former action in this court, mentioned ip the answer, was a bar to this action, which the court refused, and an exception was taken by him to such refusal. He also requested the presiding judge to charge the jury that the plaintiff bought this note for prosecution, being a practicing attorney, and therefore could not recover upon it; which the judge refused, and the counsel excepted. The presiding judge charged the jury that neither the judgment in the former action between the same parties, in this court, nor that in the action in the marine court, brought in the name of Russell, were bars to this action ; to which instructions the defendant’s counsel excepted. These are all the exceptions in the case upon the merits. The judgment in the former action in this court was no bar, because the complaint in it was merely dismissed, and the issues were never tried, or a verdict of the jury rendered. (Dexter v. Clark, 22 How. Pr. 289. Seaman v. Ward, 1 Hilt. 52. People v. Vilas, 3 Abb. N. S. 252. Coit v. Beard,, 33 Barb. 357. Coit v. Bland, 22 How. Pr. 2. S. C. 12 Abb. 462.) The judgment in the marine court was also no bar, because it was a dismissal of the complaint for want of parties, and not on the merits.

The reversal seems to have had no other effect than to give the plaintiff in it costs, as it was never tried again. (Anon. 9 Wend. 503.) This judgment was also not set up in the answer as any defense; nor was any such defense set up therein as to the purchase by the plaintiff of such note for prosecution, although it had been in the former action, in this court; so that no such defense was admissible on the trial. Besides, there was not enough evidence in the case to sustain a charge of a purchase for such purpose, if it had been set up as a defense.

The written agreement of the 3d of February, 1854, did not constitute a purchase of the note in question; the parol agreement of the 4th made it only partly one, and the plaintiff was already employed to sue upon it. The assignment of December, 1854, was executed after the termination of the action in the marine court, and its objects and occasion fully explained.

The following questions were excluded, on the trial, and exceptions taken,

1st. “ Did you draw the complaint in this case ?” This was put to the plaintiff in reference to the action in the marine court, brought in the name of Russell.

2d. “Did you not, also, on that trial, claim that Robert P. Russell was the owner of the note ?” This also referred to the trial in the marine court. '

3d. “Had you ever commenced any other suit for Robert P. Russell, prior to this note being left with you ?”

Hone of the information sought by these questions was material. In fact the first was answered by the plaintiff testifying, subsequently, that his brother drew the complaint inquired about, and he did not. In reference to the second, he stated that he employed counsel on such trial. Hor do I "see that his claiming, on the trial, that Russell was the owner of the note was more important than his acting as attorney in the suit in which he claimed it. That question was disposed of by this court when this case was before it, formerly. (1 Rob. 408.) The fact of commencing or not commencing some other suit for Russell, befoi-e the note was left by him with the plaintiff", was wholly irrelevant.

The following question was put to the plaintiff, and its admission excepted to: “Did you ever, at any time, in substance, make any claim to this note, other than that you became the owner on the 4th of February, 1854 ?” But the exception became useless, because it was never answered; the plaintiff merely saying, in reply, to which no exception was made, that he didn’t “think he ever testified to that;” and so it appears by the case.

The defendant’s counsel offered a copy of the case, prepared on the appeal from the judgment on a former trial of this action, claimed to be in the handwriting of the plaintiff, which, the case before us states, showed an entirely different statement by him from that made on the present trial. The fact that the case was in his handwriting, can make na difference as to the admissibility of the evidence. The case itself is no evidence of what took place on the trial. (Neilson v. Columbian Ins. Co., 1 John. 301.)

These are all the exceptions insisted on upon the argument. The jury passed upon the question of the transfer to the plaintiff on the third or fourth of February, 1854, (prior to the attachment in the Drury case,) because it was expressly submitted to them, and they were directed to find for the defendant, if the note was not then transferred ; and this fully defeated any claim under the Drury attachment.

There being no error in the charge, or refusal to charge, or the admission or exclusion of testimony, the judgment should be affirmed, with costs.


source: Caselaw Access Project

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

license: Public Domain

text:
    Willard Hawes et al. plaintiffs and appellants, vs. Thomas J. Barr, defendant and respondent.
    1. Whether, after an order made by a judge, in supplementary proceedings, affecting a substantial right, where the proceedings have been dismissed or discontinued, has been reversed, the general term can make a new order, requiring the judgment debtor to appear and be examined, or direct a single judge to make such an order 1 Quaere.

    2. Where the affidavit on which a plaintiff applies for an order for examination, in supplementary proceedings, is made by an agent, it must show that the agent is authorized to institute that particular proceeding. Mere agency implies nothing. The nature of the agency must be stated.
    3. The affidavit must also state that the judgment has been docketed; and that the transcript was filed before the execution was issued.
    (Before Robertson, Ch. J., and Jones, J.)
    Heard June 11, 1868;
    decided July 8, 1868.
    Appeal from an order made at a special term, vacating and setting aside a previous order for the examination of the defendant, in proceedings supplementary to execution.
    The affidavit on which the order for examination was obtained, was made by Willard L. Hawes, who alleged therein that he was “ agent for the above named plaintiffs ; that judgment was recovered in this action against the above named defendant in the New York Superior Court, on the 24th day of September, 1859, for one hundred and twenty-seven dollars and ninety-two cents, damages and costs; that said judgment, exclusive of costs, was for more than twenty-five dollars; that the judgment roll was filed in the office of the clerk of said court, and transcript thereof with the clerk of said county, and that an execution upon said judgment against .the property of the defendant, was, on the 24th day of September, 1859, duly issued to the sheriff of the city and county of New York, where said defendant Thomas J. Barr then resided, and still resides; and that the sheriff has returned said execution wholly unsatisfied, and that said judgment remains wholly unpaid.”
    The defendant insisted that this affidavit was defective, in several particulars.

      G. S. P. Stillman, for the appellants, plaintiffs.

      J. Henderson, for. the respondent, defendant.
   By the Court, Robertson, Ch. J.

The Code of Procedure does not provide how a single judge of a court is to regain jurisdiction of proceedings supplementary to execution after an order which has been made by one therein, affecting a substantial right, where the proceedings have been dismissed or been discontinued, has been reversed, although a right of appeal from such an order is therein given. (§ 349, subd. 5.) Unless a judgment debtor appear without objection,” jurisdiction is lost by a failure to adjourn from day to day. (Ammidon v. Wolcott, 15 Abb. 314.) Whether the general term, therefore, can make a new order, requiring the judgment debtor to appear and be examined, or direct a single judge to make such an order, ' is a matter not free from doubt. Of what avail a reversal in this case could be made, is not clear.

The commencement of a creditor’s action is still open to a judgment creditor against his debtor, in which he can have a discovery and relief, and the parties are entirely subject to the control of courts, until it is finally disposed of. If he elect to take the shorter and more summary and' direct mode' of supplemental proceedings, he exposes himself to all the inconveniences of their incompleteness in giving a perfect remedy. He subjects himself to the necessity of detailing, with great circumstantiality, in the affidavit on which he applies for an order, the facts on which the jurisdiction of the officer to whom the application is made, rests. (Sackett v. Newton, 10 How. 560.) For the proceedings are before a judge merely, and not before the court, which can make no order in them. (Miller v. Rossman, 15 How. 10. Bitting v. Vandenbergh, 17 id. 80.) So that a misdescription of the judgment, (Kennedy v. Weed, 10 Abb. 62;) a failure to show the right of the applicants to apply, (Lindsay v. Sherman, 1 Code Rep. N. S. 25; Hough v. Kohlin, Id. 232; Frederick v. Decker, 18 How. 96;) or to show that the execution was issued against property, (McArthur v. Lansburg, 5 How. Pr. 211,) has been held to be fatal. ' Ho thing, therefore,' can be taken by intendment in favor of the applicant. •

In this case, the affidavit was defective in three particulars. It did not set forth the nature, of the agency of the party making the affidavit. Mere agency implies nothing; it must appear that the party applying was authorized to institute that particular proceeding. It did not set forth that the judgment had even been docketed. And it did not set forth that the transcript was filed before the execution was issued. These defects were fatal.

The order must be affirmed, with $10 costs and disbursements.


author: Barbour, J.

text:
    William E. Greene, plaintiff, vs. Nicholas D. Herder, impleaded, &c. defendant.

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

       This case is partially reported, 4th Rob. 655, the head note, only, being there given. As the case settles an important question of practice, the opinion is here published in full.

   Barbour, J.

This is an application ex parte, by Herder, one of the defendants, under the provisions of the sixth, chapter of the Code, as is claimed, for a summons requiring the plaintiff to appear before me at chambers, and be examined as a witness in the above entitled action, “ at the instance of such defendant.” Ho affidavit or paper of any description, is presented as a basis for the application, but the attorney of the defendant above named, simply states that a suit entitled as above, has been commenced in this court, presents the form of a summons containing the directions to the plaintiff" above mentioned, and requests me to sign and issue the same, and claims that he is entitled to have such request complied with as a -matter of strict -right.

I can at present recall to mind-no provisions of the Code, upon which the practice of the courts of this state has been, and even at this late day remains, so variant and unsettled, as those embraced in the sixth chapter. Prior to the adoption of the Code, three modes of taking the testimony of witnesses after the commencement of an action, were known to the law; that is to say, if the proposed witness was not a resident of the state, his evidence-could be obtained under a commission, on interrogatories settled by a judge, (2 R. S. 393,) if a resident, but about to leave the state, or sick, so as to render his attendance as a witness upon the trial doubtful, he could, upon the application of either party, founded upon an affidavit setting forth certain facts, be compelled in the manner pointed out in the statute, to attend before a judge and testify conditionally, (2 R. S. 391, 392, .§§ 1 to 10; Id. 401, §§ 45, 46, 47;) or if then within the state, and able to attend and testify upon the trial, he could be required to do so by subpoena, and his compliance enforced by proceedings as for a contempt. (Id. 400, §§ 42, 43.)

The first eight sections of the Code relating particularly to this subject, (Code, §§ 390 to 397,) stand precisely as reported by the commissioners, and originally adopted. It provides that a party to an action may be examined as a witness at the instance of his adversary, and may for that purpose be compelled in the same manner, and subject to the same rules of examination as any other witness, to testify either at the trial or conditionally, or upon commission, (§ 390;) and those three modes of obtaining the testimony of parties as witnesses, are the only ones authorized by the. Code, unless section 391 provides another.

It may be observed here that the general design and object of the legislature touching the examination of parties as witnesses, and the manner in which such examination shall be obtained and conducted, seem to be fully expressed and declared in this section. The others, with the exception of the absolute right of option given in the 391st section, to the party desiring the examination to have the same before trial, appear to contain such further provision as to matters of detail, &c. as were necessary to carry the general plan into effect, and were not intended nor calculated to impair the restrictions contained in section 390, by which the party was limited to the three modes of examination particularly specified therein. It is hardly possible to express a general object and design in stronger or more fit language than that employed in the 390th section. Section 391 declares that the examination may be had at any time before the trial, at the option of the party claiming it, on a previous notice to the party to be examined, and any other adverse party, of at least five days, unless for good 'cause shown, the judge order otherwise ; but that the party to be examined shall not be compelled to attend in any other county than that of his residence, or where he may be served with a summons for his attendance.

It appears to me that the word “ notice,” employed in the 391st- section, without explanation, and which has probably originated most of the difficulties in construing this statute, means simply the notice which is to be given to the attorneys of the adverse parties by the service of the order provided for in the statute “'of talcing conditionally, the testimony of witnesses within this state,” (2 R. S. 391, § 3,) upon the attorneys of' all the adverse parties, (see Id. § 8,) and of the summons, (Id. § 10,) upon the proposed witness himself. (See also 2 R. S. 393, § 8.) Such service would doubtless be a notice of the examination, and the construction suggested is entirely consistent with the general plan and object expressed in section 390. It is a construction too that gives vitality and meaning to the words “unless,” &c. “the judge order otherwise,” and the word “ summons,” used in section 391. For if the “ notice ” there spoken of is only a notice to be given by an attorney, informing the party that he will be examined before a judge, at a certain place and time, how is the judge to order otherwise, and shorten the time? Or what necessity is there for a summons at all ?

At the time the Code was adopted, the statute “ of taking conditionally the testimony of witnesses,” &c. (2 R. S. 391,) above referred to, then in force, and still standing, unrepealed and unaltered, provided a particular method or manner for compelling the attendance of a witness for examination conditionally. (2 R. S. 391, 392, 393, §§ 1 to 10.) The first section of that statute declares that “whenever any action,” &c. “ shall have been commenced by the actual service of process, either party may, under certain circumstances, have the testimony of a witness taken conditionally.” The second, and third sections provide that the party desiring such examination may apply to a judge, upon an affidavit, stating among other things, “ the nature of the action, and the plaintiff’s demand, and if the application be made by the defendant, the nature of his defense,” and that the judge may thereupon make an order directing such examination to b.e had; and the tenth section declares that the officer granting such order may compel the attendance of the witness, by issuing a summons for that purpose, and by enforcing the same by warrant or commitment, if necessary. (Id. p. 401, §§ 59, 60, 61.)

The ultimate compulsory process, therefore, by which a witness other than a party, was, and still is, to be compelled to appear and testify conditionally, must be preceded by a summons, to be issued by the judge, and that summons was and is founded upon an affidavit setting forth the matters above mentionedand as the Code provides that a party may be compelled in the same manner as any other witness, (§ 390, and also § 392,) to appear and testify, and no provision except this is made in any statute or law for compelling the attendance and examination of a party as a witness before trial, it follows that, an affidavit stating the nature of the action and the plaintiff’s demand, and if such examination is desired by the defendant, then also, the nature of his defense, is an indispensable prerequisite to the obtaining of a summons or such final compulsory process against a party who is to be examined conditionally as a witness. It is no valid objection to this theory that the 394th section provides another mode of compelling the party to appear and testify. The pleading may be stricken out, in addition to the punishment as for contempt, in the' manner pointed out in 2 Revised Statutes, 401, sections 45, 46, 47.

The provision in the 391st section of the Code, that the examination may be had “ at any time before the trial, at the option of the party claiming it,” does not dispense with the necessity of such affidavit. The law in relation to the examination of other witnesses, is the same in that respect. For the first section of that statute, (2 R. S. 391,) declares, as has been already said, that whenever any action shall have been commenced,” &c. either party may have such examination, upon presenting the affidavit mentioned in the second section ; and this has been held to entitle the party to make such examination at his option, at any time after the action has been commenced and before trial, on complying with the conditions of the statute. (Concklin v. Hart, 1 John. Ca. 103. Mumford v. Church, Id. 147. Packard v. Hill, 7 Cowen, 489.) In the latter case, Chancellor Walworth, then circuit judge, said: “ One important object of these examinations de heno esse is, to enable the party to secure evidence at anytime in the progress of the cause, to be used upon the trial.” * * * “The rule would be of but little use if confined to any particular stage of the cause.” * ■* * “ The deposition may be taken before there is an issue of any kind.”

In both cases, whether the testimony of a party is desired, or that of another person, the right is given to examine the witness, at the option of the party claiming it, at any time before trial; but such right can be exercised in either instance, only by serving a summons upon the proposed ■witness, and also by the service of an affidavit and order upon the attorneys of all the parties having distinct interests in the litigation, which will inform them when and where such examination is to be had, and, also, what the nature of the action is, with the claim of the plaintiffj and in the proper eases the nature of the defense, so as to enable them, and each of the parties having separate interests, not only to exercise their right to examine or cross-examine the witness “in the same manner, and subject to the same rules of examination as any other witness,” but to confine the examination within its proper limits, by objecting to irrelevant or improper questions, as may always be done upon taking the testimony of other witnesses conditionally. (Gibson v. Pearsall, 1 E. D. Smith, 90, Woodruff, J.) Borrowing the eloquent language of the eminent jurist who delivered the opinion in the case just cited, and applying it to the question before me, “ it is, in my judgment, unreasonable and very unfortunate, if the proper construction of this statute permits a party who has a witness under examination, to make that the occasion for going into every species of irrelevant inquiry into matters having no possible connection with the controversy, and the abuses to which such construction may lead, seem to me too obvious to require enumeration.”

That the learned codifiers took the same view of the object and intent of the provisions of the Code relating to the subject which is above suggested, and- that they designed to conform the preliminary proceedings and conditional examinations of parties as witnesses, to the law regulating the talcing of testimony of other witnesses conditionally, as it then stood, is manifested not merely by the language employed by them in the draft of the act itself, but in the observations upon the subject contained in their first report to the legislature, where they say: “ One of the great benefits to be expected from the examination of the parties, is the relief it will afford to the- rest of the community, in exempting them to a considerable degree, from attendance as witnesses to prove facts which the parties respectively know, and ought never to dispute, and would not dispute if they were put to their oaths. To effect this object, it would seem necessary to permit the examination beforehand, that the admission of a party may save the necessity of a witness. But if an examination be once had, we would not permit it to be repeated, else it might become the means of annoyance. When a party has called his adversary to be sworn as a witness, the testimony ought to be deemed evidence in the cause, in the same manner as the deposition of any other witness; and if the examining party will not use it, the party examined should be permitted to do so. A doubt has arisen under the law of the last session, whether a party called by his adversary to testify upon a single point, may be examined on his own behalf as to all the points in the cause. We think it the true construction of the act that he may, and that if the construction were otherwise, the law should be changed. The principle upon which we would regulate the matter is this: that if a party make a witness of his adversary, he should be regarded as another witness would be regarded. If a witness be produced, though but to a single point, he is made by the production a general witness in the cause. So we think it is, and should be, with a party made a witness.” * * * “ Where also, there are several causes of action prosecuted together, if a party be called by his opponent to testify as to one, he becomes a witness for himself as to all.” (Report of Com. on Pr. and Pl. 244, 245.)

The fact that the entire chapter reported by the commission ers was enacted by the legislature in ipsissimis verbis, with but a trifling exception, affords strong grounds for assuming that, their action was founded upon the reasons so presented by the former in their report. But although I have arrived at the conclusion that an affidavit stating the nature of the action andt the plaintiff’s claim, and in proper cases the nature of the defense, is an essential preliminary to the granting of the order of examination and summons, it appears to me entirely unnecessary that such affidavit should also aver that the proposed witness is sick, or is about to leave the state. For the legislature undoubtedly intended to confer upon each party the absolute right to examine his adversary at any time before trial, upon complying with the necessary forms, whether his attendance at such trial was or was not doubtful. That portion of the statute being inconsistent with the general scope and design of the Code in relation to the subject, may be considered as repealed, so far as regards the conditional examination of parties by the 468th section.

"Upon the application now made, not only is no affidavit presented, stating the nature of the action and the plaintiff’s claim, and the nature of the defense of the defendants, or either of them, but there is no evidence whatever that any pleading has been served, or that both of the defendants, who may have different and adverse interests, have ever been served with the summons, or whether the summons is for a money demand on contract, or for relief. For aught that appears, therefore, the suit may be, or may eventually become an action to compel a specific performanee, or for trespass on lands, or for a partition, or anything ' else; and it is equally impossible, perhaps, for the plaintiff or the other defendant, to ascertain what defense or counter-claim the party making this application may have, or what relief he may claim in his answer from his co-defendant. How then is it possible to assume that either the plaintiff or such co-defendant will be prepared to cross-examine the witness, or examine him as to new matter, “ in the same manner, and subject to the same rules as any other witness ” Or how can an examination so taken be read upon the trial (its ultimate object) against either of these parties ?

In brief, my conclusions touching the construction of the provisions of the Code in question, are as follows: The party applying for an order directing the examination of his adversary, or one of them, must present an affidavit -stating, 1st. The nature of the action, and the plaintiff’s demand. 2d. If the application be made by the defendant, then the nature of his defense; and 3d. The name and residence of the proposed witness. Upon that affidavit the party may apply for such an order as is mentioned in section 3 of the statute in relation to the conditional examination of witnesses within this state, (2 R. S. 392,) and also for the summons provided for in section 10 of the same statute. (Id. 393.)

The order so obtained should be served upon the attorneys of all the parties who have appeared, or if the time of appearance has not yet expired, then upon all adverse parties themselves, who have not appeared, and the summons should also be served upon the proposed witness. In case the proposed witness fails to appear, the party who has procured the order and summons, may, upon a proper affidavit, obtain a warrant directing the sheriff to apprehend such witness, and bring him before the judge, (2 R. S. 401, § 60 [46];) or, at his option, he may on a proper affidavit and notice, have an order directing the pleading of the recusant witness to he stricken out. (Code, 394.)

The application is denied, but with leave to renew upon proper papers.


author: By the Court, Barbour, J.

text:
    Catharine McGarry, administratrix, &c. plaintiff and respondent, vs. The Board of Supervisors of the County of New York, defendants and appellants.
    1. In an action against the mayor, aldermen and commonalty of the city of New York, an order cannot be made, on consent of the defendants, at the trial, to amend the complaint by substituting the Board of Supervisors of the county of New York, as defendants, in place of the mayor, aldermen, &c.
    2. Even if the power of an assistant of the corporation counsel to bind, by hiS consent or stipulation, in an important matter of substance, the mayor, aldermen and commonalty, as the clients in an action, of his principal, be conceded, yet he has no such power, as the representative of the legal adviser of the Board of Supervisors, to give a valid consent or stipulation, even in an action to which such board are parties; much less, a consent by which they are to be made parties to an action in. which they have not been served with process, nor ever given a direction to appear or defend. No such power is conferred upon the legal adviser himself, by the act of 1857, making the corporation counsel the legal adviser of the Board of Supervisors.
    3. Although such consent be given by the Board of Supervisors themselves, or their duly authorized agent or attorney, in an action brought against the mayor, aldermen, &c. to recover damages for a personal injury occasioned by the defendants’ negligence, still an order made by the court at the trial, on that consent, by which the Board of Supervisors are substituted as defendants, in the place of the mayor, &c. is invalid and void, because ultra vires.

    (Before Barbour, Garvin and McCunn, JJ.)
    Heard October —, 1868;
    decided December 31, 1868.
    Appeal from a judgment entered on the verdict of a jury.

      Richard O. Gorman, for the appellants.

      L. R. Whiting, for the respondent.
   By the Court, Barbour, J.

This action was brought, originally, against the mayor, aldermen and commonalty of the city of Yew York, and no others, as defendants. When the cause came on to be tried, however, the “ plaintiff’s counsel moved to amend the complaint, in pursuance of a consent, signed at the office of the corporation counsel, hy substituting the Board of Supervisors of the county of Yew York as defendants, in place of the mayor, aider-men,” &c.; which motion was granted by the court, andj so far as appears, without opposition, or even an appearance on the part of the board of supervisors. Motions were then made by some person, whose name does not appear, but who is mentioned in the case as “counsel for the defense,” and “ defendants’ counsel,” to dismiss the complaint, upon which motions the court reserved its decisions. ' Witnesses were then examined and the cause was tried, some person acting as “ defendants’ counsel,” and taking a part in examining witnesses, &c. and the trial resulted in a verdict and judgment for the plaintiff for $4500 damages, it being an action for negligence in causing the death of the plaintiff’s husband and intestate.

Before the case was submitted to the jury, the person acting as the defendants’ counsel asked the court to charge them, “ that the defendants are entitled to a verdict, as this action will not lie against themwhich was. refused1, and an exception taken. Several other exceptions- were taken during the progress of the trial, and, also, to a portion of the judge’s charge, in which he directed the jury to render a verdict for the plaintiff, in case they should find certain facts proven. The case comes here upon an appeal from the judgment.

The first point raised hy the counsel for the appellants is, that the order directing the complaint to he amended, hy striking out “the mayor,” &c. as defendants, and inserting, in lieu thereof, “The Board of Supervisors,” &c. was ultra vires. The importance of this point is apparent. For, if the court exceeded its powers in directing the substitution, it is quite clear that it had no jurisdiction to try the cause after the amendment was made, or to render a judgment against these appellants.

The words “ consent, signed,” &c. used in the case in stating the making of the order, taken in connection with the fact that such consent was signed at the office of the corporation counsel, and not in open court, seem to import a paper signed by some one for, and on behalf of, the parties to the suit, or one of'them, as the action then stood. I can imagine no other consent or stipulation that could, to any extent, affect the condition of the action, or the rights o f the parties to it.

Although the corporation counsel, who is, also, the legal adviser of the Board of Supervisors, states in his argument here, and in his brief, that he did not personally consent to the change of parties, and was not present in court when the substitution was made, it is quite possible that such consent was given, in his office, by one of his assistants, in his name, and acting in his behalf. But, if so, even if we may concede' the power of such assistant to bind, by his consent or stipulation, in an important matter of substance, the mayor, aldermen and commonalty, as the clients in the action of his principal, it is quite certain that he had no power, as the representative of the legal adviser of the Board of Supervisors, to give a valid consent or stipulation, even in an action to which such board were parties ; much less, a consent by which they wrere to be made parties defendants to an action in which they had not been served with process, nor ever given a direction to appear or defend. Indeed, no such power is conferred upon the legal adviser himself, by the act of 1857, making the corporation counsel the legal adviser of the Board of Supervisors. The very name of his office, if it may be called one, defines his duties and their extent.

Hor, even, if we may assume, as I think it is our duty to do, inasmuch as all reasonable presumptions and intendments must be taken in favor of sustaining a judgment, that the consent in question was given by the Board of Supervisors themselves, or their duly authorized agent or attorney, (which is, certainly, the theory, of all others, most favorable to the plaintiff,) still I am of opinion that the order made by the court upon the trial, on that consent, by which the Board of Supervisors were substituted as defendants, in the place of the mayor, &c. was, and is, invalid and void, because ultra vires. For, an action against the Board of Supervisors, based upon the allegation that the negligence of that body caused the death of a person, is another and quite different action from one against the mayor, aldermen and commonalty, in which they are charged with causing such death by their negligence, although the person killed may be the same in both cases. The consent, order and change of parties, therefore, constitute an attempt to institute an action against the Board of Supervisors, without such service of a summons upon them, as is required by the statute, in order to commence and give vitality to an action, and confer jurisdiction thereof upon the court. (See 1 R. S. 384, § 2; Code, § 127.)

Having arrived at this conclusion, it is unnecessary to consider the further objections raised by the counsel for the board.

The judgment and verdict, together with the order in question, should be vacated and set aside, leaving the original action against the mayor, aldermen and commonalty, to be disposed of as the parties thereto shall be advised. ■ But no costs of appeal should be given to the supervisors, as their object could have been attained by a mere motion at special term, and an appeal from the judgment was, for that reason, unnecessary.


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    Azel Graham, plaintiff and appellant, vs. Frederick P. James et al. defendants and respondents.
    1. By the terms of a lease the tenant was entitled to a renewal, upon giving notice of his intention to take the same; and provision Was made for the appointment of arbitrators—one by each party—to determine the amount of rent to be paid, and that if .they should fail to agree, then the amount should be fixed by the two arbitrators together with an umpire to be chosen by them. The notice having been given by the tenant, including the name, &c. of his arbitrator, the landlord appointed one on his part. The arbitrators failed to agree as to the amount of the rent, and thereupon appointed an umpire. Before any determination was made, the landlord withdrew and revoked the appointment of his arbitrator, who thenceforth refused to act with the others, and the umpire, alone, fixed and determined the amount of the rent. Meld that the decision of the umpire alone, without the concurrence of either of the arbitrators, did not legally deteimine the amount of the rent which the tenant should pay.
    2. Meld, also, that the act of the landlord, in withdrawing his arbitrator must be considered as having prevented the meeting of the three, and the probable agreement of a majority of them in an award; and hence that, although the amount of the rent had not been determined by the arbitrators, the tenant could not, without a violation of the principles of equity, be deprived of his right to a renewed lease by this act of his landlord; but was entitled to the lease for such amount of rent as should be found just and proper, upon the trial.
    3. Accordingly held that it was erroneous, in an action brought by the tenant against his landlord, to compel the execution of a renewed lease, to deny a motion for an injunction-pendente lite, restraining the landlord from removing the tenant by a summary proceeding,
    (Before Robertson, Ch. J., and Barbour and Garvin, JJ.)
    Heard October —, 1868;
    decided December 31, 1868.

      This action was brought to compel the defendant Frederick P. James to execute a lease of certain premises to the plaintiff.

      John Townshend, for the appellant, plaintiff.
    I. By the terms of the original lease the right of the appellant to a renewed lease was dependent upon one condition only, namely, giving notice of his intention to take such renewed lease. The appellant duly complied with that condition, and his right to a renewed lease thereupon became perfect and complete.
    II. The appellant has not forfeited that right in any way. The original lease provides for fixing the rent to be paid under the renewal, and that “if, by any neglect o.r default of the tenant or the arbitrator appointed by him, the amount of rent for said renewed term shall not be fixed • on or before the tenth of February, 1868, then the tenant shall forfeit his right to said renewal.” This did not make time so much the essence of the contract as to render a failure to fix the rent within the time prescribed, a forfeiture of the then existing right; but supposing it did, there is no pretense for saying that it was “ by any neglect or default of the tenant or the arbitrator appointed by him ” that the amount of rent was not fixed. The tenant having signified his intention to take a renewed lease, and arbitrators having been appointed by both landlord and tenant, it became as much the duty of the landlord and his arbitrator, as of the tenant and his arbitrator, to take steps to carry out the arbitration; but every thing that was done was done by the tenant’s arbitrator; the landlord • took no step to forward the matter; on the contrary, so soon as his arbitrator commenced to act he revoked the authority of the arbitrator.
    III. It cannot be contended that the landlord could, by his act of revoking the appointment of his arbitrator, take away the- tenant’s right to a renewal. "What, under such circumstances, was the tenant to do ? Supposing he had , accepted the offer of the landlord to appoint another arbitrator, what guarantee had the tenant that the landlord would not again withdraw his 'arbitrator? Could the tenant do otherwise than he did—to come to this court to have the amount of rent fixed ?
    IV. It is alleged, and not denied, that the landlord contemplated taking summary proceedings to dispossess the plaintiff; should he be permitted to do this, the right of the tenant to a renewal, which is not denied, being an equitable right only, would furnish no defense thereto, and the ejectment of the plaintiff would, as is not denied, cause him an irreparable injury.
    V. This court has, in a number of instances, restrained the commencement of summary proceedings to prevent a wrong; there is nothing in the law of 1867 to prevent the continuance ☻of that practice. The amendment does not change the Revised Statutes in this regard.
    VI. It is not now material whether the landlord had notice of the meeting of the arbitrators, nor whether the omitting to give notice made the award inoperative. It is • sufficient that the plaintiff has a right of renewal which has not been perfected, but the right to which will be taken from him if this court denies its equitable interposition.

      I. T. Williams, for the respondents, defendants.
    I. The complaint prays that Frederick P. James execute and acknowledge the lease. Frederick P. James swears that he has not, and never had, any power to make or give the lease in the action prayed for. The answer of the defendant Edward D. James, fully explains the relation which Frederick P. James sustained to the premises, and alleges that that relation has long ago ceased to exist; The lease contains a covenant on the part of Sarah James, by Edward D. James, her attorney, to renew the lease upon a compliance with the terms therein specified. Sarah James was then the owner beyond the power of the plaintiff to dispute, and she is made a party defendant to this action. There is no allegation in the complaint, which, if taken to be true to all intents and purposes would entitle the plaintiff to a lease from F. P. James. (1.) The fact that this lease was assigned and transferred to him would not entitle him, or give him power, to execute a renewed lease. (2.) The allegation that he is “ landlord ” of said premises is a conclusion of law based upon the allegation of the lease, and in a pleading is an utterly worthless and void allegation. (3.) The remainder of the sentence is pregnant with the averment that his whole claim to be landlord was only “pretended,” and that, at the time this action was commenced, he did not even so pretend.
    II. The moving papers do not allege, and the opposing papers expressly deny, any notice of the time and place of the hearing of the parties, or of the making of the award. (8 Peters, 178. 3 Dow & P. 102. 9 Shaw Dunl. 797. Elmendorf v. Harris, 33 Wend. 628. Jordon v. Hyatt, 3 Barb. 275. Peters v. Newkirk, 6 Cowen, 103. Knowlton v. Mickles, 29 Barb. 465. Bulson v. Lohnes, 29 N. Y. Rep. 291.)
    III. The award is made and signed by but one of the arbitrators, where the- lease provides that it shall be done by all the three. (1 Bos. & Pul. 236. 3 T. R. 592. Cro. Jac. 100, 278. Barnes, 57. Willes, 215. Green v. Miller, 6 John 39. Cope v. Gilbert, 4 Denio, 347. People v. Walker, 23 Barb. 304. 2 Abb. 421.)
    IV. The authority to one of the arbitrators, (Wesley) was revoked, and he resigned, and declined to act, before the meeting of the arbitrators, if, indeed, the other two ever met. (Relyea v. Ramsay, 2 Wend. 602. Frits v. Frits,
      1 Cowen, 335. Holliday v. Marshall, 7 John. 211. Crofoot v. Allen, 2 Wend. 494.)
    The order appealed from should be affirmed, with costs.
   By the Court, Barbour, J.

This is an appeal from an order denying a motion for an injunction pendente lite, restraining the defendants from removing the plaintiff by a summary proceeding; the action being brought by a tenant against his landlord to compel the execution of a renewed lease.

The evidence read upon the motion shows that by the terms of the original lease the tenant was entitled to a renewal, provided he should, within a certain period, give notice in writing to the landlord of his intention to take the same, and insert in such notice the name and residence of an arbitrator appointed by him; that a like arbitrator should, in that case, be appointed by the landlord within ten days thereafter, and that such arbitrators should determine the amount of rent to be paid, or, if they should fail to agree, then the amount of the rent should be fixed, on or before the 10th of February, by the two arbitrators together with an umpire to be chosen by them. It further appeared that the notice was duly given, including the name, &c. of the plaintiff’s arbitrator, and that the landlord, within ten days, appointed one on his part: that the arbitrators failed to agree as to the amount of the rent, and, thereupon, mutually appointed an umpire; that, after such appointment, and prior to any determination by them, the landlord withdrew and revoked the appointment of his arbitrator, who thenceforth refused to act with the others. FTotwithstanding this, however, the umpire alone, on the 10th of February, fixed and determined the amount of the rent at $3000 per year; but the landlord refused to execute the new lease as requested by the tenant.

If these facts, when established upon the trial, will entitle the plaintiff to the relief demanded in the complaint, the motion for an injunction pendente lite ought to have been granted. For, the tenant in possession at the termination of. the original lease, cannot, in a summary-proceeding before a magistrate to evict him as holding over after the expiration of his term, avail himself of the fact that he is equitably entitled to a new and further lease from his landlord; that question not being within the jurisdiction of a magistrate, in such a proceeding. The exhibition of the original lease in evidence, with proof of the holding over after that term is ended, will be sufficient to enable the landlord to recover possession of the premises, notwithstanding the equitable right of the tenant to remain and to have an extended lease.

The question, therefore, is, whether the facts set forth in the affidavits constitute a cause of action entitling the plaintiff to the relief demanded.'

The original lease, as has been stated, provides that the amount of the rent shall be fixed by the two arbitrators, or, in case of their disagreement, then, by the two arbitrators together with the umpire; thus making this case an exception to the general rule which authorizes an umpire to render an award by himself, alone, in case neither of the arbitrators shall agree with him. I think, therefore, that the decision of the umpire alone, without the concurrence, so far as appears, of either of the arbitrators, did not legally determine the amount of the rent which the tenant should pay.

But I am of opinion that the act of the landlord in withdrawing his arbitrator must he considered as having prevented the meeting of the three, and the probable agreement of the majority of them in an award; and if that is so, it follows, that, although the amount of the rent has not been determined by the arbitrators, the tenant cannot, without a violation of the principles of equity, be deprived of his right to a renewed lease by this act of the landlord, but that he is now entitled to the lease for such amount of rent as shall be found just and proper upon the trial of this action. It appears to me, therefore, that the learned judge erred in denying the motion for an injunction.

The order appealed from should be reversed, and an order of injunction granted, with costs.


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    Charlotte Hoffman, plaintiff, vs. Edward Hoffman, defendant.
    1. In an action for a divorce, on the ground of adultery, brought by the wife against the husband, if the adultery is prima facie established, and it appears that the parties occupy such a position in life that it is the duty of the husband, wholly or partially, to support his wife, out of his income or earnings, he will be compelled to pay to her a suitable allowance, for that purpose, during the progress of the suit, if she has no income of her own.
    2. Although there is no reason why a wife, who is a professional musician, and has been in the habit of earning enough, in her vocation, to support herself, and is still able to do so, should have an allowance from a husband who is in a.precisely similar condition; yet where it appears ■ that she is rapidly consuming, for her necessary support, the remnant of her former earnings, and is unable to obtain employment, and that her husband is earning more than is necessary for his own subsistence, he may be required to contribute for the support of the wife, and the payment of her expenses, a reasonable-sum out of his earnings.
    (Before Barbour, J. at special term,
    November —, 1868.)
   Barbour, J.

This is an application, on the part of the plaintiff, in a suit for divorce on the ground of adultery, for an order requiring the' defendant to pay to her an allowance for her support, and the expenses of the action during the litigation. The papers show that each of the parties is a professional musical artist, and has been in the habit of performing at concerts, giving'lessons, &c. and receiving and appropriating the proceeds thereof to his or her individual use. Up to about a year ago, the husband seems to have contributed somewhat to the support of the wife, but since that time she has sustained herself out of previous earnings and accumulations. She is now entirely unemployed, professionally, and is rat present unable to obtain an engagement; while the husband is earning some $1200 per year, or more. But the wife has money and property to the amount of several hundred dollars, and the husband has nothing except his earnings, as they accrue from week to. week.

In a suit for divorce, upon the ground of adultery, brought by the husband against the wife, where an answer has been put in denying the adultery, on oath, it is usual to direct an allowance, during, the controversy, to be paid to the defendant, for her support and expenses, unless she has herself a sufficient income for that purpose. The poverty of the husband is no defense, in such a case, upon an application for an allowance; for, as it is his duty to protect and defend the character and rights of his wife, when unjustly assailed, a court of equity will not aid him in attacking ■ them himself in an action for a divorce, unless he shall furnish her with the means necessary for her defense. But that reason is not applicable in a suit brought by the wife, and, therefore, the practice, in such cases, is somewhat different. If the "adultery is prima facie established upon the application, and it appears that the parties occupy such a position in life that it is the duty of the husband, wholly or partially, to support his wife out of his income or earnings, he will be compelled to pay to her a suitable allowance for that purpose during the progress of the suit; if she has no income of her own. I see no reason, however, particularly since ■ the passage of the recent acts, by which a married woman’s earnings and property are secured to herself, so that the husband cannot appropriate them, why a wife, who is a professional musician, and has been in the habit of earning enough in her vocation to support herself, and is still able to do so, can be entitled, in such an action as this, to an allowance from a husband who is in a precisely similar condition. But it appears here that the plaintiff is rapidly consuming, for her necessary support, the small sum she has been able to accumulate from her former earnings, and is now wholly unable to obtain employment, and that the defendant is earning more than is necessary for his own subsistence. It seems just, therefore, that he should be required to contribute for the support of his wife, and the payment of her expenses, a reasonable sum out of his earnings. An order will be entered, directing him to pay to his wife, or to her attorney, $50 towards her expense's of the litigation, within five days from the service of the order, and $10 per week for her support during the pendency of the action; with liberty to the defendant, however, to move to lessen or withdraw the allowance upon proof that the plaintiff is earning, or, with proper exertions, is able to earn, in her vocation enough to support herself, entirely or in part.


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    Ireland, plaintiff, vs. Nichols et al. defendants.
    The appointment of a receiver of the rents and profits of real estate during the pendency of an action, must he made by the court, and cannot, properly, be made by a judge at chambers.
    (Before Barbour, J. at chambers,
    November —, 1868.)


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    Charles H. Smith,.plaintiff, vs. Timothy J. Coe, defendant.
    1. The clerk of the court may amend an entry made hy him in his minutes, so as to correct an error therein, and conform the entry to the decision made hy the court.
    2, It is not material whether an order made by the court, at the close of a trial, is reduced to form, and receives the sanction of the judge at that time, or at a subsequent period.
    8. But if the date of the written order is of a period which has not yet arrived, the order is not merely irregular, but absolutely void upon its face; certainly so until the day on which it purports to be dated shall have arrived.
    4. When the clerk has before him, on taxation, the minutes kept by the deputy clerk, together with his affidavit that the court ordered an allowance to be made to a party, that is sufficient, without any written order, to authorize him to insert such allowance in the judgment.
    6. Where an order is made on the trial of an action, it is not erroneous to state, in the caption thereof, that it was made at a special term "
    (Before Barbour, J. at special term,
    November 18, 1868.)
   Barbour, J.

This is a motion, made November 18, 1868, to vacate an order purporting to have been made at a special term, on the 17th of December, 1868, and filed the 8th of October, 1868, directing that the defendant have an allowance of five per cent on the plaintiff's claim, and to strike such .allowance from the judgment. The order in question is claimed to be irregular upon the ground, as is alleged, that it was obtained without notice to the plaintiff, and for the further reason that it purports to have been made when no special term was held.

The papers show that upon the trial of the action, on the 17th of December, 1867, (not 1868,) the complaint was dismissed, and that, immediately thereupon, the court, on application of counsel, ordered that an extra allowance of five per cent on the plaintiff’s claim be made to the defendant ; that the clerk did not, then, enter in his minutes correctly the order as it was made, but wrote therein the words “an extra allowance of five per cent for the plaintiffthat, afterwards, but at what precise time does not appear, the clerk amended his minutes by striking out the word “ plaintiff,” and inserting the word “ defendant.”

As the change so made by the clerk was intended to correct his own error and to conform his entry to the decision which had been made by the court, it appears to me that such alteration was quite proper. It is not very important, however, inasmuch as the tact that such allowance was actually made to the defendant by the court, is established by the affidavit of the clerk on this motion.

The plaintiff concedes, in his affidavit, that the order which he seeks to vacate was intended to be dated December 17, 1867, the day on which the trial was had and the allowance directed. The order, therefore, it may be assumed, was merely designed to embody, in that particular form, the decision which had been made in open court upon the motion for an allowance to the defendant.

I am unable to perceive that there was any irregularity in directing the order to be entered in the form in which it now appears, except in so far as concerns the date. It is, certainly, substantially, the order which had been made by the court at the close of the trial, and it is by no means material whether such order was reduced to form and received the fiat of the judge at that time, or at a subsequent period. It may be a loose practice, but nothing is more common than for a judge to affix his fiat to an order, directing it to be entered by the clerk, long subsequent to the actual making of the order. The date of the written order, however, being of a period which has not yet arrived, condemns it. It is not irregular, however, for that reason, so that the time of the court may properly be occupied in setting it aside, but absolutely void upon its face; certainly so until the day on which it purports to be dated shall have arrived. The caption of the order, showing that it was made at a special term, was entirely correct if it is considered as speaking as of and from December 17th, 1867. For, all the terms of this court, except the general terms, are, in the language of the Code, “special terms;” although some of them may, also, be what the rule calls “jury terms.” (See Code, §§ 35, 36, 37.)

Eeally, however, no written order was necessary to enable the clerk to insert the allowance in the judgment. He had before him, upon taxation, not only the minutes kept by the deputy clerk, but the affidavit of such clerk that the court ordered the allowance to be made; and that was sufficient to authorize him to insert such allowance in the judgment. I am, therefore, of opinion that there was no irregularity in inserting the allowance.

Having arrived at these conclusions, it follows that the plaintiff’s motion must be denied; and as there is no pretense on his part that the allowance incorporated in the judgment differs in any respect from that which was actually ordered by the court at the trial, but this motion is made upon the ground of irregularity alone, the defendant is entitled to §10 costs.


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    Ambrose Snow et al. plaintiffs, vs. The Fourth National Bank of the City of New York et al. defendants.
    1. Although an indorsemeiti and delivery of promissory notes, by the holder, before maturity, to a third person, whether to be held as collateral security or otherwise, would vest in him the legal ownership of such notes, subject to no equities of which the indorsee was ignorant; yet a mere deposit of such notes with a creditor, as collateral security, without indorsement, will not operate to divest the pledgor of his legal ownership, but only to vest in the creditor, as pledgee, a contingent equitable interest in the notes, or the proceeds thereof, in ease the debt should not be paid; which equitable interest is subject to any prior equity then existing in favor of the maker, against the pledgor.
    2. And the maker may, in an action brought against him upon such notes, by the pledgee, avail himself of any equitable defense he may have had, as against the pledgor, at the time the notes were pledged. Hence no action to restrain the prosecution of such suit is necessary.
    8. When it appears, on demurrer, that a complaint is defective, and that it cannot be so amended as to enable the plaintiff to recover, the defendant is entitled to judgment absolute, upon the demurrer.
    (Before Barbour, J. at special term,
    November —, 1868.)
    This is a demurrer to a complaint upon. the ground of insufficient facts.
    The complaint sets forth, 1st. The organization of the Fourth National Bank. 2d. The organization of the Washington Marine Insurance Company, and its insolvency. 3d. That while that company was insolvent, and in ignorance of such insolvency, the plaintiffs made and delivered to said company two promissory notes as premiums on t policies of insurance then and there issued. 4th. That after the making of those notes, and before their maturity, and before they were passed to the bank, said insurance company became indebted to the plaintiffs in the sum of $23,000 and upwards, for losses sustained by the property insured in the policies for which said premium notes were given. 5th. That while the plaintiffs and said company were in this condition, (the consideration of said notes having entirely failed,) the insurance company made a loan of the Fourth National Bank of about $30,000, and deposited as- collateral security therefor promissory notes held by said insurance company to the amount of about $50,000, amongst which are the two above described notes. 6th. That said loan has been paid, except about $2400, and that the bank still holds as security on said loan, notes to the amount of about $19,000, all, or a large portion of which are good and collectable; and that the bank now has ample security over and besides the notes of the plaintiffs, still held by it. 7th. That the plaintiffs have offered to pay the bank the balance of said loan, if it would transfer to them said notes and subrogate them to its rights. 8th. That said insurance company is in bankruptcy, and that the defendants, Anthony and Chew, are the assignees in bankruptcy. 9th. That said bank has commenced an action in the common pleas against these plaintiffs, to enforce the payment of the two notes made by them.
    And the plaintiffs pray for an injunction and accounting, and that the bank be required to collect such collaterals and bring the proceeds, after deducting its claim, into court to be divided, pro rata, between those who shall have paid the same, &c. and, also, for relief generally.
   Barbour, J.

The complaint does not state that the notes of the plaintiffs were indorsed by the insurance company when they delivered the same to the bank, but, simply, avers that the company deposited them with the bank, as collateral security for a loan. This omission on the part of the plaintiffs, is of great materiality. For, while an indorsement and delivery of the notes to the bank before their day of payment, whether to be held as collateral security or otherwise, would have vested in it the legal ownership of such commercial paper, subject to no equities of which the bank was then ignorant, a mere deposit of such notes as collateral security, without indorsement, did not operate to divest the pledgor of Ms legal ownership, but, only, to vest in the bank, as pledgee, a contingent equitable interest in the notes, or the proceeds thereof, in case the loan should not be repaid; and which equitable interest was, of course, subject to the prior equity then existing in favor of the maker against the pledgor. For this reason, I • am of opinion that the demurrer must be sustained, inasmuch as the averment and proof of such equities will be a perfect defense tó the action brought against the makers of the notes by the bank, in the court of common pleas, and, therefore, this suit is unnecessary. The plaintiffs are entitled to no relief, upon the facts presented in their complaint,, beyond what they may obtain by answer there. 4

It remains "to be considered whether the plaintiffs can so amend their complaint as to enable them to recover; for, unless they can, the defendants are entitled to judgment absolute upon their demurrer.

If the notes were negotiable by the insurance company, (a fact which does not now clearly appear by the pleading,) and were duly indorsed and delivered by them to the bank, before the same became due and payable, such indorsement and delivery, it appears to me, divested the company of the entire legal ownership of the notes and vested the same in the bank; which thenceforth held and still holds them as owner thereof, precisely like any other indorsee and holder of commercial paper, taking the same before, due and without notice of any equities existing against it, and has a legal right to collect the same and apply the whole of the proceeds to the payment of the loan, even though it holds other securities therefor. Ho valid defense, therefore, can be made by the makers of the notes in the suit which has been brought upon them in the common pleas. But it by no means follows that such makers can have any relief in this action. It is true that although the company transferred, by their indorsement and delivery, all their legal ownership.to the bank, they reserved to themselves, by operation of law, the right to have a reconveyance of such ownership upon paying the loan, or to have and receive any surplus of the proceeds of the notes that might remain after its payment; and it is equally clear that, had the company retained that right, these plaintiffs might, in a creditor’s suit against the bank and such company, founded upon a judgment against the latter, have obtained a decree subrogating them to all the rights of the company. But I know of no principle in the law which would permit such an action as this, which is purely of an equitable nature, to be maintained, even as against the company, previous to a judgment establishing the claim of the plaintiffs upon the policies.

If, then, shell an action would not lie against the insurance company and the bank, in the case supposed, a fortiori, it seems to me, this suit cannot be maintained against the company’s assignees in bankruptcy. For although the ultimate object of the action, evidently is to reach the assets of the plaintiff’s debtors in the hands of the bank, it lacks some of the essential requisites of a creditor’s suit; no judgment being alleged, and the debtors themselves not being parties thereto. Besides, assuming that the bank holds the notes by indorsement and delivery before maturity, the case made by the complaint stands thus: Mrst. The bank is the legal owner of the notes, subject to the equitable right of the receivers to compel a re-indorsement and delivery thereof to them upon paying the loans. Second. The receivers are the owners of that right, as trustees for all the creditors df the company whose claims are allowed, and, also, they will be entitled to have and apply to the purposes of their trust, such notes, or the proceeds thereof, as shall remain after the loans are paid. Third. The plaintiffs are, simply, creditors of the bankrupt company to the extent of their losses covered by the policies; and, under the bankrupt act, as I understand it, they are entitled to share in the proceeds of the assets coming to the assignees, including the contingent claim of the company against the bank, pro rata with the other creditors, and not otherwise. It is easy to see, therefore, that a judgment awarding to the plaintiffs in this action the relief prayed for specifically, or any relief the effect of which would be to give them more than their pro rata share of the assets, or any portion of them, in the hands of the assignors, would, of itself, he inequitable; for, not only is equality equity, but “ equitas sequitur legem.”

The judgment on demurrer must, therefore, be absolute.


text:
    Rudolph Furth, Jr. an infant, by his guardian, plaintiff, vs. Thomas Foster, defendant.
    1. In an action to recover damages for injuries sustained by the plaintiff in ■ consequence of the negligence of the defendant in carrying gunpowder through the streets, proof that the defendant had submitted the powder, for examination, to experts—to persons who were familiar with the use of powder in blasting—and that he was told by them that it was useless for any explosive purposes, and that his action subsequently was governed by that, is relevant, and should be admitted.
    2. In such a case, a full opportunity should be given to the party sought to be charged, to show acts of caution and good faith on his part.
    3. The question, in such an action, is, considering the risk to be run, were as many precautions taken by the defendant as would have been been taken by a man of ordinary prudence, to prevent harm. One of those would have been, consulting experts as to the risk to be run.
    (Before Robertson, Ch. J., and Jones, J.)
    Heard June 10, 1868;
    decided December 31, 1868.
    This action is1 brought to recover damages for injuries sustained by the plaintiff in consequence of the negligence of the defendant.
    The complaint alleges that the defendant, ón the 3d of November, 1866, had in his possession, on his premises, 700 Second avenue, New Torlc, a large quantity of gunpowder ; that his servants on that day, by his direction, were engaged in removing this gunpowder, and by their negligence, a large portion of it was scattered and strewn in Bast Thirty-seventh street, in this city; that the plaintiff was lawfully in this street, and by the negligence of the defendant, and without any negligence on the part of plaintiff, this powder came in contact with a small fire in said street, and the plaintiff was thereby severely injured.
    • The answer contains a general denial, and avers that the injuries to the plaintiff were caused by his own negligence.
    The defendant kept a coal yard at 700 Second avenue, corner of Thirty-eighth street. On the 3d of November, 1866, he directed Monaghan, a cartman, (who was engaged in taking coal from the dock to his coal yard,) to take a can of powder from the premises 700 Second avenue, which the defendant handed to him for that purpose, and to throw it into, the East river. At the time the defendant handed the powder to Monaghan, a man named -Gordon was standing in the cart with him; and Monaghan drove off with the powder, Gordon being with him. Monaghan drove down Second avenue one block, then turned into Thirty-seventh street, and drove towards the East river. The can being rotten, broke, from the jolting of the cart. A portion of the powder was scattered along the route. Just after Monaghan turned into Thirty-seventh street, he discovered that the can was broken. Then Monaghan and Gordon, having been told that the powder was damaged and of no use, threw the powder—it being in cakes and lumps—in the street. The plaintiff, a boy then about four years of age, in company with his older brother, and some other boys, were in Thirty-seventh street, between Eirst and Second avenues near the residence of plaintiff’s father. There was a small fire in the street. This powder was in cakes scattered about there, and looked like coal known as “ coke.” Some of the boys threw a portion of it in the fire; the result was an explosion which injured the plaintiff, as well as other boys.

      The action was tried before a justice of this court and a jury-
    At the close of the plaintiff’s testimony, the defendant’s counsel moved to dismiss the complaint, on the grounds :
    1st. That the act was not the act of the defendant, or the defendant’s agent, but of a stranger, who acted in direct violation of the defendant’s orders; and, 2d. That the act of this person would not have produced any fatal or injurious results had it not been for the combined negligence of a fire built in an improper place, and of children being left to play with dangerous elements without any care of any kind béing taken of them.
    The motion was denied, and the defendant excepted.
    The jury found a verdict in favor of the plaintiff" for #500, and from the judgment entered thereon the defendant appealed to the general term,

      J. H. Anthon, for the defendant, appellant.

      H. L. Clinton, for the plaintiff, respondent.
   By the Court, Robertson, Ch. J.

In a case of this kind, where the sympathies of jurors are so apt to be drawn away from the 'Consideration of the principles which should govern the liability of any one who may be the original cause, -however remote or unwillingly, of an injury, a -full opportunity should be given to the party sought to be charged, to show acts of caution and good faith on his part. The learned justice before whom this action was tried, apparently upon that ground, instructed the jury “to consider whether, under the circumstances, the extent-to which the explosive nature of the compound had been -deteriorated by reason of wet and damp, and the ground which both these parties had for believing it was not explosive, there was carelessness and negligence on the part of Monaghan in the throwing it out of the cart into the street, or in carrying it in such a manner that portions of it could be jolted out of the cart into the street.” Under that instruction the jury, guided only by their own knowledge, would he likely to be governed entirely by the fact that the compound had been gunpowder and did explode, and find, therefore, that due care was not taken, because the defendant did not discover its explosive character. But I do not think it a matter of common' every day knowledge, that' gunpowder, submitted to the treatment to which that had been, in the condition that that in question was, was explosive. The can had originally been, for a time, submerged under water, after it'was thrown overboard from a vessel, and had again been wet in the plaintiff’s store by letting water run over it and into a hole in its side," a month previous to the accident, and it then became apparently so hard and solid externally, that the pieces into which it was broken resembled coke, although internally it might have been damp. Jurors might have different degrees of experience in regard to the effect of water on gunpowder, and some, perhaps, none at all as to the explodability of powder submitted to such a process and treatment, as it was not matter of common knowledge that it would explode, and persons employed in using powder had more occasion than any of the jurors to know, by experiment, the effect on powder of such wetting, and how far there might be reason to believe it had lost its explosive character. If so, it was the duty of the defendant'to have ascertained the risk run in transporting such powder through the ■ streets, by consulting such experts, as well as by making experiments himself. Undoubtedly a great many more precautions might have been taken to destroy the substance in question than were taken, but the question is, considering the risk to be run, were as many taken as would have been taken by a man of ordinary prudence to prevent harm, and one of those, undoubtedly, would have been consulting experts as to the risk to be run. I think, therefore, the offer of the defendant’s counsel to show that the defendant “ submitted the powder for examination to experts, to those persons who were familiar with the use of powder in blasting, and that he was told by them that it was useless for any explosive purposes, and that his action subsequently was governed by that,” was relevant, and ought to have "been admitted.

For that reason, I think the judgment should be reversed, and a new trial had, with costs to abide the event.


text:
    Roswell T. Hatch, executor, &c. plaintiff and appellant, vs. John B. Fogerty, impleaded, &c. defendant and respondent.
    1. It is not necessary to except to findings of fact, or refusals to pass upon them. Any question as to the necessity of, or propriety of passing upon the latter is to be determined upon an application to have such facts as are material, and upon which there is any evidence, passed upon by the judge, in settling the case.
    2. Exceptions to conclusions of law must he served within the time fixed by the Code, otherwise they are too late; unless included in a case served within that time. An extension of time to make a case, alone, does not extend the time to take exceptions also, beyond the time so fixed.
    8. A general statement at the end of the conclusions of law in the case, that the party excepted to each of them separately, is all that is necessary.
    (Before Robertson, Ch. J., and Barbour, J.)
    Heard October 12, 1868;
    decided December 31, 1868.


text:
    James A. Polhamus et al. plaintiffs and respondents, vs. William Moser, impleaded, &c. defendant and appellant.
    1. Neither the verdict of a jury, nor the report of a referee, or decision of a single judge without a jury, (which are put on the same footing by the Code of Procedure, §§ 268, 348,) is to be set aside upon a question of fact, where the evidence is conflicting, without a great preponderance of evidence against the conclusions arrived at therein, except possibly in equity cases.
    2. The presumption of law is in favor of the good faith, diligence, intelligence, experience and knowledge of mankind, of such tribunal, and every intendment is to be made to support that presumption, so that if any possible view of the evidence, although apparently strained, will justify its finding, that is to be adopted.
    3. It is not enough that the appellate court would have decided the other way, if the question were res integra.

    4. The evidence must be so overwhelming against the finding, that without much aid from counsel the court can discover that it was so manifestly wrong that nothing but fraud, bias, mistake, perhaps inability to weigh the force of the evidence, or possibly oversight of material facts, could account for it.
    6. In cases where the evidence is conflicting, and there are questions of credibility involved, a new trial should strictly only bé granted, on the ground that the verdict _is against the weight of evidence, where'the mere orderly statement of the evidence and of the points at issue on which it bears would startle the court by the injustice of the finding, without any elaborate argument, or the assistance of counsel. Per Robertson, Ch. J.
    6. A court is not absolutely bound to exclude a piece of evidence as irrelevant, if it may be made relevant by a connection with other evidence; and it may rely on the promise of counsel to make it so. If the connecting links are not introduced by the party offering the evidence, the remedy of the opposite party is to move to strike it out; or, if the trial is before a jury, to ask the court to instruct the jury to disregard it.

      t. Inasmuch as no one can prove at once a mass of facts tending to assist a defense or claim, a party must begin with some one fact; and it is matter of discretion for the court, with which he shall be allowed to begin. Per Robertson, Ch. J.
    (Before Robertson, Ch. J., and Barbour and Monell, JJ.)
    Heard April 13, 1868;
    decided May 12, 1868.


author: Robertson, Ch. J.

text:
    Charles Carter, plaintiff and appellant, vs. Andrew Clarke, defendant and respondent.
    1. An appeal does not lie to the general term of this court from the decision of a judge overruling questions put to the defendant, a judgment debtor, on his examination in proceedings supplementary to execution. That is entirely a proceeding before a judge, and not before a court.
    2. The right of discovery or examination in supplementary proceedings is merely auxiliary to the right of relief, and the first proceeding or action must be terminated by a decree or order on the merits, before it can become res judicata that the defendant had no property when it was commenced.
    3. An agreement to discontinue an action in equity, even after a defendant had put in an answer making a discovery, could never have been available to prevent the requiring a similar answer in a new action. And the same rule should prevail as to examinations in supplementary proceedings.
    3. An order was formally entered, in supplementary proceedings, as at special term, declaring that the examination of the defendant should “ be confined to the fact as to whether the defendant had acquired any property, real or personal, since the date of his examination on a former order,” and that all questions put to him, on the examination in question, prior to the date of such former examination were overruled. It appearing that the former proceeding was never terminated by a decision, but was voluntarily abandoned by consent of both parties; Meld that even if such order was an order in an action, the exclusion by it, of the questions w'as improper.
    (Before Robertson, Ch. J., and Barbour and Monell, JJ.)
    Heard April 6, 1868;
    decided December 31, 1868.
    Appeal from an order made by Justice Monell, overruling certain questions put to the defendant, a judgment debtor, on his examination in proceedings supplementary to the return of an execution unsatisfied.
    On the 13th of August, 1862, the plaintiff recovered a judgment in this court, against the defendant for the sum of |1893.35, damages and costs, and on the same day he filed a transcript of the judgment in the clerk’s office of the city and county of Hew York, and issued an execution upon said judgment to the sheriff of the city and county of Hew York, in whose county the defendant then resided. The execution so issued, was returned wholly unsatisfied. On the 14th day of July, 1864, the plaintiff applied to a justice of this court for, and obtained, an •order requiring the defendant to submit to an examination in respect to his property. On the 2d day of August, 1864, the defendant appeared before said justice, and submitted to an examination, which examination was reduced to writing, signed by the judgment debtor, and sworn to before said justice, and the proceedings adjourned until the 9th of August, 1864. On the 9th of August, 1864, the proceedings were, by consent of parties, discontinued, without costs to either party.
    On the 1st October, 1867, the plaintiff applied to Justice Garvix for, and obtained, a second order, requiring the defendant to appear and be examined as a judgment debtor concerning his property. The affidavit upon which the second order was founded did not state the previous proceedings against the judgment debtor, or any facts or circumstances to warrant the presumption that the debtor had, since the date of the first examination, acquired any property. On the return of the second order, the judgment debtor appeared and moved to dismiss the second proceedings, on the ground that the affidavit was insufficient, in not setting out any facts or circumstances to warrant the presumption that the debtor had acquired any property since the date of the first examination, which . motion was founded upon an affidavit of' the judgment debtor. The motion was denied by Justice Barbour, and an order was made by him requiring the examination of the defendant to proceed. The defendant again appeared, was sworn, and his examination was proceeded with. In the course of the examination, it was sought to inquire of the defendant in respect to the disposition and ownership of property, alleged to have been owned and disposed of by the judgment debtor, prior to the date of the first examination in 1864. This was objected to by the judgment debtor, upon the ground that the second examination upon the second order must be confined to the fact as to whether the judgment debtor had acquired any property,' real or personal, since the date of the first examination. The objection was sustained by the justice, and this appeal is from the order made by him sustaining such objection.
    The only question thus presented by this appeal was: Can the judgment creditor, on a second proceeding, go behind the examination of the judgment debtor upon the first order, and inquire into the ownership of property by the debtor, and the disposition of the same by him prior to the first examination, or whether he is to be confined to an examination of the judgment debtor in respect to property acquired since the date of the examination of the debtor, under the first order.

      Vine Wright Kingsley, for the plaintiff, appellant.
    I. - The order of the 20th of November settled the question of the plaintiff’s right to examine said defendant, under the second order granted, and from which the defendant made no appeal; so there is no question upon this appeal except as to the order, duly entered 9th January, as to whether the plaintiff must be confined to the fact whether the defendant has acquired any property since the first examination, the 2d August, 1864. This order tends to nullify this proceeding as a remedy to satisfy judgments. The courts of law and equity becoming united, this remedy was provided for all cases, in lieu of the old court of chancery practice, authorized by the Revised Statutes. The creditors’ bill was to compel the discovery of debtors’ property that could not be reached by execution at law. (Goodall v. Demarest, 2 Hilt. 534. 10 Bosw. 591. 2 Abb. Pr. 457. 2 Barb. Ch. Pr. 148. 2 Rev. Stat. 173.) The object of this proceeding, under the Code, is to enable a creditor to ascertain whether the judgment debtor has any property out of which the judgment can be satisfied, whether in his possession or under his control, or in the possession or under the control of another person. This proceeding is to carry into effect the judgments of the courts. This proceeding is more exhaustive, and has more scope, than the creditors’ bill of this state.
    II. The Code provides that the plaintiff shall be entitled to such examination of the defendant, when certain specified conditions shall have been complied with; and thereupon said defendant “ must appear and answer concerning his property.” "When an execution against property of the judgment debtor has been duly issued, and is returned unsatisfied, in whole or in part, said creditor “ is entitled to an order,” from a judge of the court, “requiring such judgment debtor to appear and answer concerning his property,” &c.
    1. This right is unqualified, and cannot be taken away from a creditor, and the only limitation of its exercise is as to the imposition of costs upon the plaintiff, where the circumstances of the case do not warrant the proceeding. This is the only restriction imposed by the Code, and is the sole restriction upon the plaintiff, under this proceeding.
    2. But where the order is obtained, and the defendant appears, he must answer as to all his property.
    3. To hold that a prior examination is a bar to all inquiry as to property of the defendant, held or transferred at that date, is to defeat the efficacy of this procedure, protect fraudulent debtors, and render judgments useless in such cases. The courts should rather help than deny creditors their rights against debtors. (Leroy v. Halsey, 1 Duer, 589. Heroy v. Gibson, 10 Bosw. 591.)

      III. This court holds that if no property be discovered, the plaintiff will be ordered to pay costs to the debtor, unless some good reason appear for requiring the examination. ’ This principle would operate harshly upon the plaintiff, where he is restricted in his examination as to the defendant’s property, under a second order. The defendant is not harmed by a full examination. He suffers little inconvenience by a full examination, where he is an honest debtor, and does not conceal his property. Every consideration of right and policy demands that all examinations, as to property, be conducted in the same manner, whenever allowed by the court. (3 Sandf. 725.)
    TV". In proceedings supplementary, under section 292, the creditor may examine the judgment debtor, and any other person fully, in regard to the circumstances attending the transfer and disposition of his property, and is so entitled to a discovery as to its good faith or' its fraudulent character. (Laws of 1863, 661, ch. 392. Town v. Safeguard Ins. Co., 4 Bosw. 683. Clapp v. Lathrop, 23 How. Pr. 423. Hall v. McMahon, 10 Abb. Pr. 103. 1 Duer, 591. 1 Barb. Ch. Pr. 316. 26 How. Pr. 155.)
    ' V. This, examination neither discloses the extent of the defendant’s property nor the circumstances of the alleged transfer to the defendant’s wife, by which she still holds a large and valuable property, both real and personal, of the value of some $20,000 and upwards.
    VI. This proceeding, under the Code, is not only to compel a discovery of the debtor’s property, but to require its application to the payment of the judgment of some $1900, and interest for six years, in this action. (Bank of Genesee v. Spencer, 15 How. Pr. 412. Dresser v. Van Pelt, id. 19. Gould v. Torrance, 19 id. 560. Hall v. McMahon, 10 Abb. Pr. 103.) This procedure is a part of the action, an equitable remedy to which the creditor may resort to enforce the judgment.

      1. The Code' provides that no person shall, on examination, pursuant to this chapter, be excused from answering any question, on the ground that his examination will tend to convict him of the commission of a fraud, but his answer shall not be used as evidence against him in any criminal proceeding.
    2. Bor shall he be excused from answering any question, on the ground that he has, before the examination, executed any conveyance, assignment, or transfer of his property, for any purpose, but his answer shall not be used as evidence against him in any criminal proceeding or prosecution. . (Clapp v. Lathrop, 23 How. Pr. 423. Lynch v. Johnson, 46 Barb. 56.)
    3. The defendant has not thus answered in this exami- . nation, as the Code provides he shall, and refuses to answer as to his property, as to the transfer thereof, or for what purpose he had made the alleged transfer; and declines to disclose the circumstances of said sale, which constituted fraud upon this plaintiff, and which delays and hinders the collection of this debt.

      Frederich Smyth, for the defendant, respondent.
    I. "The decision of the justice was correct. There must be some limit to these proceedings, and the defendant having been once fully examined, cannot be harassed by innumerable examinations. (Goodall v. Demarest, 2 Hilt. 534.) The practice of this court in these proceedings, is in conformity with the decision of Judge Brady in the above cited case.
    II. If it is claimed that the judge, before whom the examination was had, has a discretionary power to limit the examination, the order is not appealable, and the appeal should, therefore, be dismissed.
   Robertson, Ch. J.

This purports to be an appeal from an order at special term, or “ from so much of it as prevents and restrains the plaintiff from examining into the property of the defendant fully, in a proceeding supple- ' mentary to execution.” An order was formally entered as at special term, upon such supplementary proceeding, declaring that the examination of the defendant, under the order obtained therein, should “ be confined to the fact as to whether the defendant had acquired any property, real or personal, since the date of his examination on a former order,” and that all questions put to him on the examination in question prior to the date of such former examination (August 2, 1864,) were overruled.

Were the order appealed from an order in an action, I should be inclined to believe that the exclusion of the questions was improper, because the former proceeding was never terminated by a decision, but was voluntarily abandoned by consent of both parties. Supplementary proceedings perform the office of bills in equity, to reach the property of a debtor, not tangible at law, or after a remedy by execution has failed. The right of discovery or examination is merely auxiliary to the right of relief, and the first proceeding or action must be terminated by a decree or order on the merits before it can become res judicata that the defendant had no property when it was commenced. An agreement to discontinue an action in equity, even after a defendant has put in an answer making discovery, could never have been available to prevent the requiring a similar answer in a new action. • And the same rule should prevail as to- examinations on supplementary proceedings.

• But I do not see how an appeal can be brought to the general term of this court from the exclusion by a judge before whom the examination was taken, of any questions. It is entirely a proceeding before a judge, and not before a court, (Davis v. Turner, 4 How. 190; Miller v. Rossman, 15 id. 10; Bitting v. Vandenburgh, 17 id. 80) although entitling an order made by him as being at special term does not make it void. (Dresser v. Van Pelt, 15 How. 19.) A mere voluntary appearance to be examined confers no jurisdiction. (Sacket v. Newton, 10 id. 561. A county judge, judge of the court of common pleas of this county, or of the Supreme Court, has precisely the same jurisdiction and power in case of a judgment in this court, as a justice thereof, (Code of Procedure, § 292, subd. 2 ;) except that a county judge cannot adjourn the examination at all. (People v. Huber, 1 Code R. N. S. 75.) Jurisdiction is only acquired by an affidavit containing the proper allegations. (Whitlock’s case, 1 Abb. 320. Lindsay v. Sherman, 1 Code R., N. S. 25. Hough v. Koblen, Id. 232.) The order must comply with the statute, or it is irregular. (Dresser v. Van Pelt, ubi sup. Hobart v. Frost, 5 Duer, 672. 3 Abb. 120. Hersenheim v. Hooper, 1 Duer, 594. Wilson v. Andrews, 9 How. 39. Arctic Ins. Co. v. Hicks, 7 Abb. 204.) Jurisdiction is lost by a failure to continue the proceedings by regular adjournments. (Squire v. Young, 1 Bosw. 690.) Such authority is strictly construed, so as not to embrace corporations who áre debtors. (Hinds v. Canandaigua R. R. Co., 10 How. 487. Sherwood v. Buffalo R. R. Co., 12 id. 136.)

I do not see, therefore, how this court could resume jurisdiction, if the supposed special term order were reversed. Unless the order were kept alive by adjournments, all jurisdiction is lost, and can only be regained by a new order. Besides, no final order seems to have been made, and I do not understand that an appeal may be taken from every refusal to allow different questions to be put. The proceeding in such case would be too harrassing and oppressive to the judgment debtor. Until such final order is made, the proceeding is not disposed of, and whether the remedy, then, for any error committed in the course of it is by' appeal or certiorari, it is not necessary to decide.

I think the supposed order was not a subject of appeal, and the appeal should be dismissed, without costs.