text:
    Ulric de Comeau et al. plaintiffs and appellants, vs. The People of the State of New York, on the complaint of Livingston Satterlee, defendants and respondents.
    1. It is doubtful how far a party to supplementary proceedings may be considered as coming within the description of “ parties to a suit,” as used in the section of the Revised Statutes relative to proceedings as for contempts; or whether a mere-order obtained either by false representations, or under a fraudulent suppression of a fact, may be called a “ deceit ” or an “ abuse of the process and proceedings ” of the court. Per Robertson, Oh. J.
    2. The “ deceit ” intended by the statute would seem to be some act analogous to that of personating bail, which is the offense specially described in connection with it; or some forgery or crimen fdsi; and the “ abuse of process or proceedings of -the court,” mentioned in the statute, means merely an improper use of what otherwise would be regular and proper.
    3. Even if the procuring by deceit of an order from a justice of this court, vacating a prior order made by him in a supplementary proceeding is an act for which the parties or privies to it may be punished, in any case, as for a contempt, no such result will follow where the other party has not been prejudiced by it.
    4. The powers of a judge, in a proceeding supplementary to execution, tho the mode of exercising them, and the capacity in which he acts, considered.
    (Before Robertson, Ch. J., and Jones, J.)
    Heard September 3, 1868;
    decided December 31, 1868.
    Appeal from an order made at a special term.

      E. W. Cotterill, for the appellants.

      T. M. Worth, for the respondents.
   By the Court, Robertson, Ch. J.

The contempt of court, with which the appellants are charged in the order appealed from, consists of procuring by deceit, from one of the justices of this court, an order vacating a prior order made by him, on a supplementary proceeding (under section 294 of the Code of Procedure,) after judgment and execution in an action against them by the relator (Satterlee) forbidding a debtor of the appellants (a bank) to pay over money deposited by them with it; and also of having, under color of that order, by “ deceit and abuse 'of the process and proceedings of the court,” required such debtor of theirs to pay them the money so deposited. As a punishment for such contempt, such order commanded the appellants to pay to the original plaintiff in the action against them, by whom' such proceedings for a contempt was prosecuted, the sum so paid by their debtor, ($2573,) and imposed a fine of $500 to cover the costs and expenses of the plaintiff in the original action in such proceedings for contempt.

The order so appealed from is plainly a proceeding under that section of the Revised Statutes which provides for the “ enforcement of civil remedies,” (vol. 2, 534, § 1,) only; and the case, in which it is- made, was considered as being one of the second class therein mentioned. That section provides, that in certain enumerated cases a court of record may punish by fine and imprisonment, or either, misconduct which may prejudice a party’s rights or remedies in a matter depending therein. The second class of cases so enumerated is “ putting in fictitious bail or sureties, or any deoejt or abuse of the process or proceedings of the court,” by parties to suits,” It is, perhaps, a little doubtful how far a party to supplementary proceedings may be considered as coming within the description of “ parties to a suit,” or whether a mere order obtained either by false represeututifW or under a fraudulent suppression, of a fact may be called either “ a deceit ” or an “ abuse of the process or proceedings” of the court. The deceit intended by the statute would seem to be some act analogous-to that of personating bail, which is the offense specially described in connection with it, or some forgery or crimen falsi. To punish quasi criminally for every supposed false suggestion made to the court, would lead to as many abuses as . benefits, if not more or greater; and could hardly have been intended by the legislature, without a more explicit expression’ of such intention. ISTor can it more strictly come within the description of an abuse of process or proceedings,” which implies merely an improper use of what otherwise would be regular and proper.

But assuming that the act complained of in this case, although erroneously described, is one for which the parties or privies to it may be punished as for a contempt, the next question then arises, whether the plaintiff in the original action was prejudiced by it, without which, he cannot take any steps. The previous order, granted by another justice in-the original action staying proceedings therein, and the order modifying it, granted by the justice who made the orders on the supplementary proceeding, which permitted such proceeding to be taken, were both made in the original action. How far a court, after judgment, can ever, by mere order, stay the right of a party to take such proceeding, where he has put himself in a position to do so, is somewhat questionable, (Lowber v. Mayor, &c. of New York, 5 Abb. 261; 7 id. 248,) as it is an independent proceeding in the nature of a new action, (at l'éast for most purposes,) and would seem to require a hew action for the purpose, and an injunction order therein, prohibiting the taking such proceeding.

At all events, however, unless the- order vacating the prior order enjoining the debtor of the appellant from paying to them the money held on deposit was valid and permitted such payment, the order appealed from was erroneous; because no injury was done thereby to the rights of the plaintiff.

The' powers, the mode of exercising them, and' the capacity in which a judge of a court, in which a judgment has been obtained, acts in a proceeding supplementary to execution seem to be yet unsettled or not generally known. They are, to a certain extent, a more summary mode of exercising the same jurisdiction, exercised formerly .by a creditor’s bill in equity, combining a discovery of assets applicable to the payment of a judgment and .their application for the purpose, either by a subjection to execution, or a specific appropriation of them. Such a proceeding, however, is considered as entirely detached from.the original action, except in case of a stay of proceedings therein, (Cowdrey v. Carpenter, 17 Abb. 107,) which also suspends action upon such supplementary proceeding, and is so original and independent in its character, that jurisdiction over the party to be affected by it, must be acquired, by establishing by prima facie evidence, under oath, to the satisfaction of the officer applied to, the existence or occurrence of those facts which alone authorize such a proceeding against the party to be affected by it. So that it has been held, that a misdescription of the judgment sought to be satisfied, in the least degree, in the affidavit on which the order was .issued, is available in any stage of the proceedings, as an objection to the jurisdiction, not to be cured by amendment or waived by the parties; and the whole proceeding is so entirely coram non judice, that no proceedings for a contempt can be taken for disobeying an order founded upon such an erroneous affidavit. . (Kennedy v. Weed, 10 Abb. 62.) The acquisition of jurisdiction, indeed, by proper means, is considered so indispensable that even a voluntary appearance by the party proceeded against, and his submission to examination is held not to confer it, (Sachet v. Newton, 10 How. 561,) even a judge of the court in which the judgment was obtained exercises such jurisdiction not as a court but an officer. (Miller v. Rossman, 15 How. Pr. 10. Bitting v. Vandenbergh, 17 id. 80.) But when once acquired, such jurisdiction remains until the proceeding is completely terminated. (Webber v. Hobbie, 13 How. 383.) A voluntary omission by the prosecuting party to attend on any day to which it is adjourned, operates as an abandonment of it. (Squire v. Young, 1 Bosw. 690.) Any omission to adjourn from day to day suspends, ‘if it does not destroy the jurisdiction, which can only be .revived by the reappearance voluntarily of the party proceeded against, to submit to an examination under it. (Ammidon v. Wolcott, 15 Abb. 314.) To' make, therefore, any action of the court or officer valid in such case, it must be had at some time either to which the proceeding has been adjourned, or when both parties are present, assenting to the exercise of jurisdiction when it is resumed; and possibly when both parties have notice of the time and place of proceeding, when the jurisdiction has not been lost by a voluntary abandonment of the proceeding.

In this case, the proceeding seems to have been taken ■ against the debtor of the appellants alone, (under the 294th section of the Code;) which, of course, might be conducted without notice to the latter, (Sherwood v. Buffalo N. Y. City R. R. Co., 12 How. 138; Foster v. Prime, 18 id. 258; S. C. 8 Abb. 407,) and without any concurrent order against the judgment debtor under section 292; (Id. and see 15 Abb. 410, 406.) Consequently, the appellants were no parties to such proceeding, and not even entitled to appear therein by counsel. (Corning v. Tooker, 5 How. 16. See 2 Abb. Pr. 163.) The order complained of, which vacated the original injunction order against the debtor of the appellants, which last was properly granted, (Seeley v. Garrison, 10 Abb. 460,) was obtained ex parte, not in the presence of the judgment creditor, nor at any time to which such proceeding stood adjourned; nor does it recite that it was so obtained. The counsel' of the appellants and not of their debtor obtained it, and apparently not under any authority from the latter. I cannot, therefore, find any authority for treating such order as having been effectual to vacate the prior order for the examination of such debtor, any more than if it had been obtained by a third person in whose favor, even for a bona fide consideration, the appellants chose to draw a check on the fund in question. The right even of a debtor of a judgment debtor,, summoned under section 294 of the Code, as well as of the latter to be relieved from obedience to an order enjoining., them from paying over moneys to their creditor, even where the proceeding is had against the latter also, depends upon its being consented to, or the proceeding being abandoned by the applicant, or its being moved at some day,, to which the proceeding has been continued by adjournment, or on which both parties appeared; (for, perhaps, even a consent to appear would not be sufficient without actual appearance.) Of course, if no proceedings were taken against the appellants, their consent or appearance was unavailing and immaterial.

By the service of the original order in the supplementary proceeding, with the affidavit on which it was founded, the debtor of the appellants was apprised of the nature of the proceeding and the jurisdiction acquired, and was bound to know that such order could only be vacated by an abandonment of the proceeding, or by some order made at a time to which it had been adjourned, or at which they and the judgment creditor appeared, or by consent of both parties.- The -order, as made, did not show such facts upon its face, and was not so made in fact. Such debtor, therefore, paid over such funds, or any sum which it paid, at its own risk. The lien was obtained by the original proceeding on the debt to the appéllants, and service of the order npon them to appear; and was never legally removed, unless the original plaintiff abandoned it. I therefore think the judgment creditor not entitled to have the appellants punished for a contempt, by which no injury was caused to him.

In consequence-of these views, which dispose of'the case, I do not consider it necessary to- e'xamine, further, how far an omission, on an ex parte application, to disclose to a judge a fact, which might prevent him from granting ■ ex parte an order by which another party is prejudiced, maybe considered as a “ deceitunder the statute already cited, (ubi sup.) so as to subject the applicant to proceedings as for contempt. Certainly a great many ex parte orders are constantly being granted in cases where, if certain facts were disclosed to the officer granting' them, he would not grant them, and the time of the court would be fully occupied by hearing motions for the punishment of parties fdr‘their attorneys’ obtaining ex parte orders, without'disclosing all the facts bearing upon the propriety of granting them. Whatever may be the evils of obtaining ex parte orders, courts having the power cannot well refuse to grant them, when a prima facie case, to justify it, is made out for them; nor can even attorneys well be punished for not disclosing every fact, which might’ afterwards show that they were not entitled to -them. A glaring omission, or, rather, suppression of what, -if disclosed, would clearly show them disentitled to such an order, might possibly make them amenable-to process of contempt, under the first subdivision of the section of-the statute, (2 Rev. Stat. 534, § 1,) before referred to,-unless that be óonfined to misconduct towards' their own client.

In: this case any fraudulent suppression of the fact of- the making of the order'in the action, modifying the prior one, staying proceedings, is denied by the attorney who obtained the order, which is met by affidavits on the other side, founded only on information. ¡No certificate to the contrary, of the judge who gave it, was produced. The fact relied upon to establish the fraudulent suppression, is the entire omission in the affidavit, upon which the order complained of was made, of any mention of the order modifying the order staying proceedings in the action, although the latter is stated, and forms the sole ground for asking for the order in question. This undoubtedly is a highly suspicious circumstance, and if the proceedings were against the attorney, would require full explanation. The circumstance of the same judge making both orders, is almost unimportant, as it would be utterly impossible to recollect all the orders granted in every case. But the proceeding is against the parties themselves, who would be, at least, entitled to more leniency of judgment, but there is no evidence of their partaking of the deceit, if practiced. It is very well settled, that to make a client liable for illegal practices of his counsel or attorney, in the course of legal proceedings, there must be stringent evidence of his sanction of them, (10 How. Pr. 415;) hence the mere fact of the appellants drawing the money from the bank, without proof of knowledge, on their part, of the mode in which the order complained of was obtained, is not sufficient to make them responsible.

For these two reasons, therefore, that the order obtained on the supposed suppression of facts was a nullity, so that the plaintiff might have gone on with his proceeding, and may possibly yet be able to do so, (by proceedings for a contempt against the debtor of the appellants, for not appearing at the time fixed by the order,) and that "there is no evidence for supposing the appellants privy to the alleged act of contempt, I think the order appealed from should be reversed, without costs of the motion, or the appeal, to either party.


source: Caselaw Access Project

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

license: Public Domain

text:
    William Loeschigk et al. plaintiffs and appellants, vs. Rachel A. Addison, administratrix, &c. et al. defendants and respondents. Walter Bauendahl et al. plaintiffs and appellants, vs. The Same.
    1. This court has power, at general term, to modify a judgment dismissing a complaint absolutely, rendered at a special term, so as to add to it a direction to let the cause stand over, to add parties, in a proper case.
    2. When a plaintiff has merits, and his proceedings are defective merely for . want of proper parties, unless the defendant has made the objection at the earliest stage, so as to enable the plaintiff to discontinue and commence anew, courts of equity universally allow the defect to-be cured; unless there is bad faith on the part of the plaintiff.
    3. The rule is settled that where a party is entitled to no relief,' as against the parties before the court, and his complaint is dismissed, the appellate court will not reverse the decree to enable him to introduce new parties and make . a new case upon the merits.
    4. The court on denying a motion to modify a judgment of dismissal, so as to add to it a direction to let the cause stand over, to add parties, on the ground that the amendment would not benefit the plaintiff, may amend the .judgment by making it without prejudice to the right to bring a new action.
    (Before Robertson, Ch. J., and Barbour and Monell, JJ.)
    Heard April —, 1868;
    decided September 3, 1868.

      W. Watson and E. S. Van Winkle, for the plaintiffs, appellants.

      A. R. Dyett, for the defendants, respondents.
   By the Court, Robertson, Ch. J.

This is an application for a resettlement and modification of the judgment of affirmance by the general, term in these cases, so as to permit the plaintiffs therein to apply at special term to modify the judgment rendered there, in such a manner as to allow them to add new parties.

I do not doubt the power of this court at general term to modify a judgment dismissing a complaint absolutely, rendered by a special term, so as to add to it a direction to let the cause stand over to add parties, in a proper case. Where a plaintiff has merits, and his proceedings are defective, merely for want of proper parties, unless the defendant has made the objection at the earliest stage, so as to enable the plaintiff to discontinue and, commence anew, courts of equity universally allow the defect to to cured. (Harder v. Harder, 2 Sandf. Ch. 17.) Unless in case of bad faith on the part of the plaintiff. (Van Epps v. Van Deusen, 4 Paige, 64, 76.) If the court at special term should refuse such permission, in a proper case, this court at general term could correct the error.

The ex parte settlement or signing of judgment would not prevent the exercise of such power by the general term, as they have absolute control over their proceeding to make them regular and just. The court in these cases held that the plaintiffs could not reach the assets of the firm of Addison Brothers, alleged to have been assigned fraudulently and-without the authority of Joseph Addison or his representatives, except through such representatives, and then only upon alleging that they had refused to join as plaintiffs or commence an action on their own account for the same reason. But its opinion was also partly placed upon the ground that there was not sufficient evidence to sustain the charge of fraud, and that a surviving partner could transfer the assets of the firm directly in payment of debts by way of preference, and it sees no reason now to' change those views. The rule seems to be settled that “ where a party is entitled to no relief as against the parties before the court and his complaint is dismissed, the appellate court will not reverse the. deeree to enable" him to introduce new parties and make a new case upon the merits.” (Jameson v. Deshields, 3 Grattan, 4.)

As in this case the plaintiffs would be no better off, under the evidence, by making the representatives of Joseph Addison parties than at present, there is no good reason for allowing the amendment desired; but if the plaintiffs think. they can make a better case in a new action, the judgment may be amended by making it without prejudice to such new action. (Van Epps v. Van Deusen, 4 Paige, 76.) Possibly such permission may be,of no av9.il, but itis all the relief the court is authorized to give.

The .motion is denied, except as to such modification, and no costs are given upon it.


author: By the Court, Barbour, J.

text:
    Emily Fowler Ford, plaintiff and appellant, vs. August Belmont, et al. defendants and respondents.
    1. In May, 1836, A. M. Bruen being seised and possessed of certain premises in the city of New York, he, together with M. Bruen,-executed an instrument, empowering one Clarke, within one month, to compromise certain claims of the United States government against certain other persons, and to sell certain premises, including those in question, for that purpose, and agreeing that he should have the residue of any money, &c. received on such sale beyond what was required to cany out such compromise. A compromise was effected by Clarke with the- governnient, whereby the latter agreed to accept $200,000 in full satisfaction for its claim. Previous to July, 1835, Clarke and R. Dyson and D. 8. Dyson agreed that the Dysons should raise the sum so to be paid to the United States government, and that in consideration thereof Clarke would allow them one third interest in sucl} agreement with A. M. Bruen; and the said Dysons raised that sum. On the 7.th of July, 1835, by the assent of Qlarke, A. M. Bruen, by his attorney, conveyed .the premises, in fee simple, to D. 8. Dyson. About the same time, the Dysons and Clarke executed an instrument under seal, declaring the terms upon which D. 8. Dyson held the same, which were, (1st.) To secure the payment to the government of such sum of $200,000. (2d.) A certain sum ($26,000). paid as a premium for raising the money, to be charged ,on the general fund to be .be raised out of the lots. * (3d.) Such sum of $200,000 was to be repaid, with interest, (áth.) The remainder of the money, or lots unsold, were to be divided or sold, in the proportion of two thirds to Clarke and one third-to the Dysons; such lots to be.sold,or disposed of as might thereafter be agreed on. In July, 1842, D(1S. Dyson presented a petition for his "discharge as a bankrupt, wherein he alleged that a schedule thereto annexed contained an accurate inventory of his property, &c. In such schedule was set down only one third residuary interest in the said premises, and a note appended stated that Clarke was “ entitled to the remaining two thirds interest arising from any excess after satisfying ” the mortgages thereon. In August, 1846, the official assignee in bankruptcy conveyed one third of the premises conveyed to D. S. Dyson, to one Ford, in fee, under whom the defendants claimed, by several mesne conveyances. And in October, 1860, the same official assignee conveyed to the plaintiff, for a nominal'sum, all of said premises so conveyed to D. S. Dyson by A. M. Bruen, pursuant to an order of the proper United States court. In an action for a partition of the premises embraced in the deed from A. M. Bruen to D. S. Dyson; Held 1. That the power of attorney and the agreement between Bruen and Clarke vested in the latter the entire equitable estate and ownership of the former in the premises, upon condition that the compromise should be effected; and that condition was complied with by the agreement to compromise and the subsequent payment of §200,000 by the Dysons under their agreement with Clarke. That by Clarke’s agreement with the Dysons, and Bruen’s deed to D. S. Dyson, and the payment of the $200,000, D. S. Dyson became vested with the entire legal estate; but only for the purpose of enabling Mm to repay tohimself and B. Dyson the §200,000 by them advanced (together with the bonus of $25,000 for raising the money) out of the proceeds of such lands as it should be necessary to use for that purpose, and, after that, for the further purpose of enabling Mm to divide, and by Ms deed, distribute, the remaining lands between himself and Clarke, or, to sell and convey the same. That the'entire estates and interests of Clarke and the Dysons, respectively, in the property, after the payment by the latter of the $200,000, stood thus : (1.) The two Dysons were, in equity, the owners of a charge upon the land for $225,000, which was the first lien thereon; and they were also the equitable owners of one third of all the land and of its proceeds, subject to that charge. (2.) Clarke was the equitable owner of two tMrds of all the land, or its proceeds, subject, in like manner, to such prior lien or . charge. (3.) The entire legal estate was vested in D. S. Dyson for the purpose of enabling him to satisfy that charge by a sale and conveyance of so much of the lands as should be necessary to accomplish that object, and of mating a distribution of the remaining lands or their proceeds, either by a conveyance to B. Dyson and Clarke of their shares, or by means of a sale and conveyance to others. That the entire estate of D. S. Dyson, both legal and equitable, including, and subject to, the charge, which also ran with the land, was vested in the assignee in bankruptby, as receiver, by the decree in bankruptcy and the assignment to Mm. That the lands could not be partitioned between the plaintiff and defendants without the consent of B. Dyson and the representatives of Clarke; for their interest extended to, and covered every lot and parcel thereof; and each parcel was also hound for the satisfaction of the charge of $225,000, as an entirety." That R. Dyson and the representatives of Clarke were, therefore, not only necessary parties, bat even if they were paities defendants, a decree in partition could not properly he granted, if opposed hy them.
    ' 2. The granting of leave to amend a complaint hy inserting the names of new parties defendants, after the action has been tried and submitted, is discretionary with the court.
    (Before Robertson, Ch. J., and Barbour and Garvin, JJ.)
    Heard January 25, 1868;
    decided December 31, 1868.
    This was an action to obtain a partition of certain real estate "between the plaintiff and the defendants, and was tried at the special term, where a judgment was rendered dismissing the complaint, with costs. After the cause was submitted, a motion was made hy the plaintiff to amend the complaint by inserting the names of the heirs of Matthew St. Clair Clarke, as defendants, which was • denied. The appeal is brought upon the judgment, and also from the order denying that motion.
    The facts, upon which the judgment was based, as found by Chief Justice Robertson, before whom the action was tried, are as follows:

      First. In the year 1833, Alexander M. Bruen was seised in fee simple and possessed of the premises in question, and other adjoining lands which were then and have since continued otherwise unoccupied.

      Seeond. In May, 1835, said A. M. Bruen, while so seised and possessed of said premises, and one Matthias Bruen executed a certain instrument under their seals, whereby they empowered one Matthew St. Clair Clarke within one month to compromise certain claims of the United States government against certain other persons, (George and Herman Bruen and John Bloodgood,) and to sell certain lands including the premises in question, to enable him to carry out such compromise, and whereby they also agreed that he should have the residue of any money, bonds, notes, or obligations received on such sale, beyond the sum necessary to carry out such compromise.

      Third. A compromise of the claims mentioned in such agreement was within the month therein specified effected by the said Clarke with the United States government, whereby the latter agreed to accept two hundred thousand dollars in full satisfaction for such claim.

      jFourth. In the year 183.5; before the month of July, the said Clarke and one Eobert Dyson, and one Dunbar S. Dyson, agreed that the two latter should raise the sum so to be paid to the United States government as such compromise, and that the said Clarke, in consideration thereof, would allow them one third interest in such agreement with said A. M. Bruen, and said Dysons raised said sum.

      Fifth. In-pursuance of such agreement between said Bruens and Clarke, and between the latter and said Dysons, on the 7th of July, 1835, by the assent of said Clarke, the said A. M. Bruen, by his attorney (Q-. W. Bruen,) duly constituted for the purpose, conveyed said premises mentioned in such agreements, including that in question, in fee simple to said Dunbar S. Dyson.

      Sixth. In July, 1835, about the time of the execution of the last mentioned deed, said Dysons and Clarke executed a certain'instrument under seal, whereby they declared the terms upon which said D. S. Dyson held the same, which were, (1st.) To secure the payment to the United States government of such sum of $200,000. (2d.) A certain sum ($25,000) paid as a premium for raising such sum to be charged on the general fund to be raised out of said lots. (3d.) Such sum of $200,000 was to be repaid, with proper interest. (4th.) The remainder of the money or lots unsold were to be divided or sold, as the case might be, in the proportion of two thirds to said Clarke and one third to said Dysons. And said Dysons and Clarke also agreed in said instrument that such lots were to be sold or disposed of as might thereafter be agreed on.

      Seventh. In July, 1842, said D. S. Dyson presented a petition to the District Court of the United States for the southern district of Hew York, duly verified by his oath, in order to obtain his discharge as a bankrupt; wherein he alleged that a certain schedule thereto annexed contained an accurate inventory of his property, rights and credits of every name and description, and the location and situation of each and every parcel and portion thereof.. In such schedule is set down only one third residuary interest in the premises conveyed by said A. M. Bruen to said Dyson, and reference is made to a note at the end of it. Such note stated that Matthew St. Clair Clarke, of Washington city, was entitled to the remaining two thirds interest arising from any excess after satisfying the amount of mortgages on such property which had been allowed said Clarke in account.

      Eighth. In August, 1846, the official assignee in bank-' ruptcy.for such southern district of Hew York conveyed one third of the premises conveyed to said D. S. Dyson, including those in question, to one Gordon L. Ford in fee simple, and by virtue of several mesne conveyances under said Ford, professing to convey the whole of said premises, the title of said Ford thereto was vested in the defendants, who are trustees.

      Ninth. In October, 1860, the same official assignee conveyed to the present plaintiff, for a nominal sum, all of said premises so conveyed to said D. 8. Dyson by said Bruen, pursuant to an order of the proper United States court.

      John Townshend, for the appellant, plaintiff.
    I. Where a claim of title rests upon documentary evidence, the quantity and quality of the claimant’s estate is a conclusion of law from the documentary evidence. As Dyson claimed under a documentary title, the nature of his estate was a conclusion of law. His admissions as to his title were of conclusions of law merely. An assertion of a conclusion of law cannot work an estoppel. The only cases where oral declarations as to the title can be material are those of titles resting in pais. (Brewster v. Striker, 2 Comst. 19. Warren v. Leland, 2 Barb. 613. Chautauque County Bank v. White, 2 Seld. 253. Adams on Ejectment, ’ 249, n. 3, ch. 10.) It was not competent for Dyson by any mere declaration of his to limit the amount of property which went to his assignee. Suppose he had said he had no property—would that have bound his assignee, or those claiming under him. (U. S. Bankrupt act, 1841. Porter v. Williams, 5 Seld. 142.)
    II. The declaration in the schedule of Dyson is not that St. Clair Clarke was entitled to two thirds of any residue after satisfaction of the charges upon the premises which had been allowed Clarke in account.'
    HL The' conveyance from Bruen to Dyson, and the deed between the Dysons and Clarke, although executed about the same time, and probably a link in the same transaction, are not between the same parties. They are not, therefore, to be construed as one instrument, but separately. (Craig v. Wells, 11 N. Y. Rep. 315.)
    IV. The conveyance by Bruen divested him of the entire fee. There was no reservation in. his favor, and under no circumstances could he reclaim any interest in the property conveyed, and it was obviously the intention to divést Bruen of all title. (Garfield v. Hatmaker, 15 N. Y. Rep. 475. Norton v. Stone, 8 Paige, 222.)
    V. The title vested in D. S. Dyson was not divested by the deed between the Dysons and Clarke. Because that deed, (a.) Contained no words of conveyance, (b.) Left Dyson entitled to the actual possession and the receipt of the rents and profits-, and therefore possessed of the real estate. (1 R. S. 727, § 47.) (c.) Was a mere personal
    covenant. (Walcott v. Ronalds, 2 Rob. 621.) (d.) Was not a mortgage, and did not charge the $200,000 on the land; That it was not a mortgage is shown by the fact that Clarke could not have redeemed. All he could do was to force a sale to see if any surplus was realized, (e.) If there was any trust, it was created by the deeds between Dyson and Clarke, and this, as creating a power in trust, left the legal estate in Dyson. (1 R. S. 735, § 105.)
    VI. Clarke was authorized to sell the lots to pay Bruen’s indebtedness to the United States, and to have the residue, if any, of the proceeds of such sale, over and above what was necessary to satisfy such indebtedness. Obviously, then, the arrangement with Clarke and Dysons was, if you Dysons will advance the $200,000 to pay the United States, I will procure Bruen to convey to you; but if you make any profit on the transaction, after deducting a bonus of $25,000 and interest on the $200,000, I, Clarke, am to have two thirds of such profits, and the lots were to be disposed of as thereafter should be agreed upon. D. S. Dyson was to hold the lots in the meantime. The only right of Clarke was to participate in the profits, if any.
    VII. It does not appear that the deed between Dysons and Clarke was ever recorded. It was not, therefore, a charge upon the land, as against creditors. Consequently it was not of any effect against the assignee in bankruptcy, who took the premises free of any trust or power created' by said deed; and Mrs. Ford, taking from him, was not affected by said deed. (1 R. S. 735, § 107.)
    VIII. It appears affirmatively that the defendants had title.only to one third part of the premises; that Dyson’s assignee had claimed title to the entire premises ; that he had conveyed to the plaintiff the residue of the interest not held by the defendants; this alone, in the absence of any other person claiming adverse to the plaintiff, was sufficient to entitle the plaintiff to a partition. The defendants cannot be damnified, for if they had any greater title than a title to one third they could have shown it— they did not. It is, therefore, no answer to say that there are other parties who can successfully contest the plaintiff’s title. (Craft v Merrill, 14 N. Y. Rep. 464.) Dunbar S. Dyson was the source of title to both parties. “ It was not for the defendant to say that the common ancestor had no title, and that his possession is not as tenant in common.” , (Jackson v. Streeter, 5 Cowen, 531.)
    IX. The plaintiff showed a proper case for a partition. (Beebe v. Griffing, 14 N. Y. Rep. 235-238.) The mesne conveyances between GK L. Ford and the defendants, were not adverse to the plaintiff. (Edwards v. Bishop, 4 Comst. 65.)
    . X. The court, at general term, will regard only the facts found. If they do not sustain the conclusions of law, the judgment will be reversed. (Hartman v. Proudfit, 6 Bosw. 191.)
    XI. The decision and opinion at special term are not to influence the decision of the court at general term, because the decision at special term was made on a state of facts different from that presented to the general term.
    XII. Conceding that the heirs of Matthew St. Clair Clarke had the right to call for an execution of the power, that was no reason for dismissing the complaint. A partition might have been decreed, subject to such right. (Supreme Court Rule, 79. Braker v. Devereaux, 8 Paige, 513. Woodworth v. Campbell, 5 id. 518. Canfield v. Ford, 28 Barb. 342.)
    XIII. If the heirs of Clarke were necessary to a complete determination of the controversy, the court should have ordered them to be brought in. The denying the motion, to bring in the heirs of Clarke, was erroneous. (Code, § 122. McMahon v. Allen, 12 How. 39. Powell v. Finch, 5 Duer, 666. Davis v. Mayor of New York, 2 id. 663. Shaver v. Brainard, 29 Barb. 25. Sturtevant v. Brewer, 9 Abb. 414. Van Epps v. Van Deusen, 4 Paige, 76.)
    1. The statute applies to partition. (Waring v. Waring, 3 Abb. 246.)
    2. The application to bring in necessary parties may be made at any time before judgment. (New York v. Mayor, 3 Duer, 121. Carswell v. Neville, 12 How. 445.)
    3. To deny the plaintiff’s application to bring in the heirs of Matthew St. Clair Clarke, is giving the defendants the same advantage as if they had set up their non-joinder by answer. The non-joinder, not having been set up, was waived, and could not be taken advantage of upon the trial. The defendants should not have the advantage of such non-joinder. (Code, § 145. Fosgate v. Herkimer Manufacturing Co., 2 Kern. 584. Zabriskie v. Smith, 3, Kern. 336. Wright v. Storrs, 6 Bosw. 600. Byxbie v. Wood, 24 N. Y. Rep. 607. Van Deusen v. Young, 29 Barb. 9. Abbe v. Clark, 31 id. 238.)
    XIV. The heirs of M. St. Clair Clarke were not necessary parties. (Tanner v. Niles, 1 Barb. 560. Van Arsdale v. Drake, 2 id. 599. Bogardus v. Parker, 7 How. 305. Vanderwerker v. Vanderwerker, 7 Barb. 221.)
    J. Larocque, for the respondents, defendants.
    - I. Xo thing more than the beneficial estate or interest of Dunbar S. Dyson, the bankrupt, in the premises in question, passed to the general assignee in bankruptcy, and no more could be conveyed by him. (Ontario Bank v. Mumford, 2 Barb. Ch. 596. Hosford v. Nichols, 1 Paige, 220. Van Epps v. Van Deusen, 4 id. 64. Storm v. Waddell, 2 Sandf. Ch. 494. 2 Story’s Eq. Jur. § 1038, and cases

      cited. Andrew v. N. Y. Bible Society, 4 Sandf. 156 ; reversed, but on another ground, 4 559. Ward v. Davis, 3 Sandf. 502.
    II. The first deed from the assignee to Gordon L. Ford, under whom the defendants derive title, passed the whole of the beneficial estate and interest of the bankrupt, whatever that was. There was no intention to split up that estate and interest, and the general assignee in bankruptcy possessed no power to do so. On the contrary, to permit it would be productive of intolerable frauds and abuses. The subsequently attempted conveyance in this case, after an interval of twenty years, for a merely nominal consideration, producing nothing for the creditors, is a striking example of this. (1 R. S. 748, § 1, original Nos.; 5 U. S. Stat. at Large, § 3, p. 442; § 9, p. 447; § 10, p. 447; § 15, p. 448. Hathaway v. Power, 6 Hill, 453. Jackson v. Harter, 14 John. 226. Jackson v. McConnell, 19 Wend. 175. Jewett v. Jewett, 16 Barb. 150. Cleveland v. Boerum, 27 id. 252.)
    III. Although the learned chief justice did not retain, in the findings, the quotations of the language of the material parts of the deeds, as they were proposed to be inserted by the defendants’ counsel, and did not allow the amendment of the case by inserting the material parts of the evidence, as was proposed on their part, yet, as these are entirely matters of record, reference will be had, if ' necessary, on the argument, or in deciding the cause, to the exemplifications in possession of the defendants’ counsel ; and if, upon further consideration, it should be deemed t advisable for the protection of the defendants’ rights, on any appeal to the Court of Appeals, their insertion in the case will now be directed. (Ritchie v. Putnam, 13 Wend. 524.)
    W. For the purpose of the decision of this cause, if the preceding first point is well taken, it makes no difference whether Dunbar 8. Dyson is considered as having held an estate in trust in the premises, such as is authorized by the first or second subdivision of section 55 of the article of the Revised Statutes, entitled “ Of uses and trusts,” (1 R. S. 728,) under the deed of Alexander M. Bruen to him, and his own declaration of trust, executed upon the making of that conveyance, or whether the fee remained in Alexander M. Bruen, or vested in Matthew St. Clair Clarke, as supposed by the learned judge at special term.
    V. ISTor does it make any difference whether Dunbar S. Dyson had or had not an interest, as mortgagee, as would appear to have been supposed by the learned judge by his third finding. The passing of an interest, as mortgagee, from the bankrupt to the general assignee in bankruptcy, would not enable the latter to convey a legal esate, upon which alone, coupled with the possession, actual or constructive, an action for a partition can be maintained. (2 R. S. 312, § 57, original Nos. Id. 317, § 1. Striker v. Mott, 2 Paige, 387. Jenkins v. Van Schaack, 3 id. 242. Coxe v. Smith, 4 John. Ch. 271. Brownell v. Brownell, 19 Wend. 367. O’Dougherty v. Aldrich, 5 Denio, 385.)
    VI. ' The plaintiff, by bringing her action for a partition against the defendants, necessarily concedes such a possession in them as gives a good title against all the world, excepting only a party who shows a better one. This possession is, of course, of the whole land. The division into undivided thirds, where it exists, relates' to the title, and not to the possession. Even where there is a tenancy in common, the possession of each tenant in common, in judgment of law, extends to the whole land. She, there- s fore, concedes their possession, and they wholly deny her alleged tenancy in common with them; a denial which embraces both title and possession, as she has not otherwise alleged either, and she has also failed to prove either. (Same authorities.)

      YU. The order denying the plaintiff’s motion to bring in the heirs of Matthew St. Clair Clarke, as defendants, is not properly before the court for review, and, even if it were, should be affirmed.
    . 1. The case contains no copies of any papers on which it was made or opposed. It refers to the pleadings “ and proceedings” in this action. What those “proceedings” were, the court is not otherwise advised. (Lahens v. Fielden, 15 Abb. 177.)
    2. It was a most extraordinary motion, having been made after the trial and decision of the cause, and filing of the findings and conclusions, and proposing then to add parties who could not be concluded without an opportunity to answer, and without a trial; yet showing no ground for, and not asking for a new trial, or offering any excuse why, if supposed to be necessary or proper parties, they had not been joined before.
    3. The appeal from this order is taken after judgment entered in the cause, as though it were an “intermediate order involving the merits, and necessarily affecting the judgment,” neither of which it does.
    4. Even if all these objections were out of the way, the granting or denying of that motion would be mere matter of discretion, not reviewable on appeal.
    For the foregoing reasons, the judgment appealed from should be affirmed, with costs, and the appeal from the order dismissed, with costs.
   By the Court, Barbour, J.

As I understand this case, it stands thus:

First. The power of attorney, and the agreement between Bruen and Clarke) vested in the latter the entire equitable estate and ownership of the former in the premises, upon condition that the contemplated compromise should be affected; and that condition was complied with by the agreement to compromise, and the subsequent payment of §200,000 by the Dysons, under their agreement with Clarke.

Second. By Clarke’s agreement with the Dysons and Bruen’s deed to Dunbar S. Dyson, and the payment of the $200,000, D. S. Dyson became vésted with the entire legal estate; but, only, for the purpose of enabling him to repay to himself and Robert Dyson the §200,000 by them advanced, (together with §25,000 as a compensation for raising the money,) out of the proceeds of such lands as it should be necessary to use for that purpose, and, after that, for the further purpose of enabling him to divide and, by his deed, distribute, the remaining lands between himself, Robert Dyson and Clarke, or, to sell and convey the same.

Third. The entire estates and interests of Clarke and the Dysons, respectively, in the property, after the payment by the latter of the §200,000, stood thus :

1. The two Dysons were, in equity, the owners of a charge upon the land for §225,000, (being the §200,000 which they had paid out, and §25,000 for their services,) which was the first lien thereupon; and they were, also the equitable owners of one third of all the land and of its proceeds, subject to that charge.

2. Clarke was the equitable owner of two thirds of all the land, or its proceeds, subject, in like manner, to such prior lien or charge.

3. The entire legal estate was vested in D. S. Dyson for the purpose of enabling him to satisfy that charge by a sale and conveyance of so much of the lands as should be necessary to accomplish that object, and of making a distribution of the remaining lands or their proceeds, either by a conveyance to Robert Dyson and Clarke of their shares, or by means of a sale and conveyance to others.

Fourth. The entire estate of Dunbar S. Dyson, both legal and equitable, including and subject to the charge, which also ran with the land, was vested in Wardell, as receiver, by the decree in bankruptcy and the assignment to him.

If, then, the assignee had sold the entire estate and interest of Dunbar S. Dyson in the property, to one man, it would, manifestly, have been the duty of the purchaser, upon the demand of Clarke or Robert Dyson, to sell enough of the lands to pay off the charge, and, after satisfying the same, to divide the remaining lands, or sell them and divide the proceeds, in the proportions above mentioned, as should be agreed upon between Clarke, Robert Dyson and himself; and it is easy to see that the rights and duties of any number of separate or joint purchasers, collectively, as between themselves and Robert Dyson and Clarke, or their representatives, are precisely the same as would be those of the one purchaser in the case supposed. The relative rights of such parties, inter se se, to shares in the final distribution, must, of course, depend upon the extent of their respective purchases.

As the plaintiff and the defendants’ grantor purchased, the one a third, and the other the remaining two thirds of the estate and interest of Dyson, in severalty, such plaintiff and defendants have full power and authority, under and by virtue of the several conveyances through which they derive their title, to sell and convey sufficient of the lands to satisfy their charge upon the same, if they can agree to do so; and, in case either shall refuse, it is quite probable that the. other may, in a proper action, compel such sale and conveyance. So, too, the persons who are parties to this action, after the charge upon the lands shall be thus satisfied, may, by and with the consent of the representatives of Clarke and Robert Dyson, divide between themselves and such representatives the lands that shall then remain, in the proportion, in value, of two thirds to Clarke’s representatives, one sixth to Robert Dyson, one eighteenth to the plaintiff, (being the one third of the real interest of Dunbar S. Dyson in the premises which passed by the deed of the assignee in bankruptcy,) and one ninth to the defendants; (being the remaining interest of D. S. Dyson;) or, they may sell such remaining lands, and so divide the proceeds:

But the lands, as the matter is now situated, cannot be partitioned between the plaintiff and the defendants, without the consent of Robert Dyson and the representatives of Clarke. For, their interest extends to and covers every lot and parcel thereof; and each parcel is also bound for the satisfaction of'the charge of $225,000, as an entirely. ¡Not only, therefore, are Robert Dyson and Clarke’s representatives necessary parties to an action of this character, but, even if they were in as parties defendants, the decree in partition prayed for could not properly be granted if opposed by them.

For .these reasons, I am of opinion that the judgment should be affirmed, with costs.

The denial of the motion to insert new parties in the pleadings after the action had been tried and submitted, was not only discretionary with the court, but was so obviously right and proper, that it is unnecessary to spend ' a moment upon it. The order should also be affirmed


author: McCunn, J.

text:
    The Manhattan Gas Light Company, plaintiffs, vs. James Barker, defendant.
    1. If an individual encroaches on public rivers or highways, ample remedy can ; at once be applied in the name of the people, and by the competent law offi- ' cer appointed for that purpose. It is not left to the whims and caprices, or the will, of individuals, or private corporations, who may imagine them-, selves aggrieved, to apply a remedy. Per McOunn, J.
    2. An action will not lie by an individual, or a corporation, to restrain by injunction, the commission of an act upon the ground that such act is a public nuisance, or the usurpation of a franchise, detrimental to all the people of the state, viz., the filling up of a navigable river or public highway.
    3. An injunction pendente lite should not be granted on light grounds, or in doubtful cases. Where the right is not clear and the danger great, or the apprehended mischief irreparable, it should not be issued until the hearing.
    4. Where the answer denies explicitly and positively the grounds on which the claim to relief, ip the complaint, rests, the injunction will be dissolved. The court is bound in such a case, upon a motion to dissolve, to take all the allegations in the answer as true. And the answer will be deemed strictly responsive to the bill when it positively, explicitly and circumstantially denies all its allegations.
    6. It cannot be inferred, from the mere fact of proximity, that the owner of land adjoining a public highway, or fronting on a river, which is a public highway, has some interest therein, merely by reason of his proximity.
    6. For a public nuisance the people alone can prosecute; .and one who does not suffer by a violation of law, otherwise than as a member of the community, cannot maintain a remedial action.
    7. But if a public nuisance work a private injury to an individual, that person may have a remedy by private action, for damages; and, in a proper case, he is entitled to an injunction.
    Before McCunn, J., at Special Term,
    November —, 1868)
    Motion by the plaintiffs to restrain the defendant, the owner of a distillery on Eighteenth and Nineteenth streets, near the North river, from discharging his refuse mash into the common sewer, the waters of which carry said mash into the Hudson or North river, and, as the plaintiffs allege, it there sinks to the bottom of the navigable stream, and is thereby a nuisance, and is injurious to navigation and especially injurious to them, the plaintiffs in this suit. They also allege that the corporation leased to them the right.to collect wharfage on the front of the river where the sewer empties into the stream.
    The defendant denies explicitly and circumstantially each and every allegation in the complaint; and alleges that, instead of the refuse of his distillery sinking and les-' sening the depth of water, it floats away with the current; and that it is the debris of the plaintiff’s large gasworks, and the coaltar therefrom, that is floating into the-slip and is lessening the depth of the water, if it is lessened, and that it is hot caused by any act of the defendant.
    The defendant further alleges, that the plaintiffs own all the property around him (the defendant,) and that they are also desirous of owning the property upon which his distillery is built, and that this effort on their part is not so much the interest they have in keeping the river deep, as it is an effort to get the defendant to sell his property to them; and that this suit is vexatious, and is designed to weary and annoy the defendant, so as to make him part with his property, upon which his distillery is placed.
   McCunn, J.

First. The plaintiffs assert that certain injuries will result from the use by the defendant of the sewer, as alleged by them. Second. That it involves certain public wrongs or offenses against the public, by reason of their being injured in certain privileges they have received from our municipal corporation; and they claim a right to maintain an action in equity, in their own names, to restrain the defendant from such usurpations, and to prevent and remedy such public wrongs, to wit, the maintaining of a public nuisance. The' corporation has not .leased to them any thing but the right to collect wharfage at their docks, fronting on this river, and the river being a -¡public highway, and others being as much interested in the use of the same as the plaintiffs are, notwithstanding the proximity of the plaintiffs’ property to the nuisance complained of; yet if this action can be maintained, innumerable ' others could, thereby leading to absolute confusion. The jus publicum or user of our great rivers or highways is in the people; and they, and they alone, are the trustees to guard and protect them. This is the English doctrine, as well as ours. (1 Hume’s Eng. 217.) But the title to highways, in America, is not involved in the mist of antiquity, and we have but little occasion to resort to the English books for a guide in' this respect. Every state in the Union has adopted statutes expressly on this subject, and the acts of our own legislature are especially clear and explicit on this score; so that if an individual encroaches on the great rivers or highways of the nation, ample rém'edy can at once be applied in the name of the people, and by the competent law officer elected or appointed for that purpose; and it is not left to the whims and caprices, or the will of individuals, or special corporations, who may imagine themselves aggrieved, to apply a remedy. The relief prayed for by the plaintiffs in this action must proceed upon the grounds, that the act imputed to the defendant is a public úuisanee, or the usurpation of a franchise detrimental to all the people of the state, to wit, the filling up of a highway, as the plaintiffs complain.

It is true it may not afiect every citizen equally alike, but in judgment of law, assuming that no special injury is shown, they have the same right to complain. How it will not be maintained for one moment that an action will lie by an individual citizen for such an offense. Such a course would confound all distinction between public and private rights, and would lead to great confusion. This was the doctrine held in the case of Davis v. The Mayor, (4 Kern. 506.)

It is the undoubted rule of law that highways (and nav- • igable rivers are great highways) belong to the sovereign power, and are part of its royalties or public rights; they belong to it absolutely, and there is no right in the adjacent owners of' the soil. (Hoffman’s Treatise, 238.) The portion of the river which the plaintiffs complain that the defendant is filling up, therefore, belongs to the people. It is theirs as a great public highway, absolutely under their control, and for their use, and they alone, and not the plaintiffs, can seek or maintain a remedy to prevent its being injured.

' Again: An injunction should never be granted pending the action (pendente lite,) on light grounds or in doubtful cases. The universal rule is, where the right is not clear and transparent, and the danger great, or the apprehended mischief irreparable, that it should not be granted until the rights of the parties are fully ascertained by a trial in open court, and with witnesses, and every opportunity allowed the parties against whom the remedy is sought to be enforced, to convince the mind of the court that the remedy should not be granted. This was held in this court to be the rule, in the case oi Redfield v. Middleton, (7 Bosw. 649.) I am aware that this rule has been varied sometimes where, for instance, a defendant is about to permit or do injury to real property, and where his claim thereto is doubtful, and where the injunction would only be a transitory injury, and where compensation could be easily awarded; but that is not the case in this instance. Here the defendant’s large business is entirely stopped, the machinery engaged in his distillery idle, and becoming seriously impaired the longer it remains in that condition. Under these circumstances, and in the exercise of sound discretion, I must adopt the greatest caution before I allow these plaintiffs to maintain their injunction, because, as I have said before, the granting and continuing of an injunction must always rest in the sound discretion of the court. (Roberts v. Anderson, 2 John. Ch. 204.)

The well established rule, that if the answer denies explicitly and positively the grounds on which the equity claim in the bill rests, the injunction to stay must be dissolved, must not be departed from; and I can see nothing whatever in this case to form the slightest exception to that rule. The answer of the defendant is directly responsive to the very gravamen of the complaint, and in the strongest manner denies its allegations in toto. He denies that the mash from his distillery in the slightest degree lessens the depth of water at the place complained of, or at any other place, and swears positively that the plaintiffs themselves, from their vast establishment for making gas, fill up with coal tar, and other debris, the wharf or dock which is the subject matter in dispute. How the answer in all respects is strictly responsive to the bill, because it positively, explicitly and circumstantially denies all its allegations; and the rule is well settled that we are bound to take all the allegations in the answer as true, on the motion, and at this stage of the proceedings.

It seems to me from the affidavits, and from an inspection of the premises, the right of this defendant to have a final judgment against these plaintiffs is entirely consonant with sound principles of equity; moreover, the theory that if the answer denies all the equity of the bill, the injunction must be dissolved,” is based upon the principle that the answer must be taken as true; but we must not carry this doctrine so far as to say that, as a matter of course, if the answer denies the equity of the bill, the injunction must be dissolved. If the court can see sufficient reasons-for maintaining the injunction, and it entertains doubts about the truth of the allegations contained in the answer, and that irreparable injustice will be done if not granted, then, and in that case, notwithstanding the denials in the answer, it may, in its discretion, maintain the injunction. But such is not the case here.. The doubts entertained in the mind of the court are doubts formed about the truth of the complaint and affidavits upon which this injunction is founded.

It cannot be inferred from the mere fact of proximity that the owner of land adjoining a public highway or fronting on a river, which is a public highway, has some interest therein, merely by reason of his proximity. This is an error which has been extensively indulged in. It was set at rest, however', by the court, in the case of Gould v. The Hudson River R. R. Co., (2 Seld. 541.) blow I have shown that highways on land are strictly (legally) analogous to highways on water. (21 Conn. R. 325. 11 Barb. 325.) And no doctrine is more firmly settled than that for a public nuisance the government alone can prosecute; and that those who do not suffer by a violation of law, otherwise than as members of the community, cannot maintain any remedial action. To sustain me in this view I could cite many authorities. One or two, however, will be sufficient: (Clerk v. Saybrook, 21 Conn. R. 326; Smith v. Boston, 7 Cush. R. 255; Sutherland v. Johnson, 30 Maine R. 466.)

If a'publie nuisance work a private injury to a person, that person may have a remedy by private action for damages, and, in a proper case, may have an injunction. A noisome odor issuing from a public nuisance, such as issues from the plaintiffs’ gasworks, will have this effect, if it pervades the surrounding atmosphere, enters the adjacent dwellings, and either endangers the health or disturbs the-comfort of those dwelling therein. A noise upon the public highway, in like manner, penetrates the dwellings and disturbs the inmates. I think these are the only instances in which a nuisance in a public highway can work a particular injury to a private individual merely in virtue of its proximity. The only other cases in which a private injury'may result from a nuisance in highways, are those where the actual passage is thereby interfered with. !

If for instance, by means of an obstruction in the public highway, a man is arrested in his progress over it and put to expense, this is a special damage, and an action will lie. This was the rule held by Shaw, Ch. J., in Smith v. Boston, (7 Cush. 255;) but the case I have supposed, and that in 7 Cushing, and the like cases, it will be seen, are all cases of special damage, and arise in the common right of passage which belongs to every citizen; and the right of action in such cases is no less perfect because the plaintiff resides or his property is a great distance from the locus in quo ; nor is it more imperfect because he happens to own the adjoining property. The gravamen of the action, its whole essence is, that he had a right of passage and was hindered from using it, and suffered special damage.

It1 is clear, therefore, that in case of a nuisance by the obstruction of a public highway, a private person can have no action but for actual injury received. In this case the proof would not, at this stage of the proceedings, warrant me in holding that the plaintiffs can make out even a prima fade case of personal injury or damage. Until very recently no one doubted the doctrine—and in this court, and in all the districts of the Supreme Court of our state, excepting the first, it is so still—that no private action can be maintained by an individual for a public offense, or any wrong against the state.' Public nuisances are subject to indictment, and, in aid of the courts of law, equity at the suit of the government will step in; but that the contrary doctrine has been sanctioned in high places, it might be treated with levity. But even as it stands now in our first judicial district, I believe the adjudications are evenly balanced for and against the rule. It must follow, therefore, from all that I have said, that upon the plaintiffs’ own showing they cannot, as a matter of law, maintain this injunction. But in addition to the law being against their right to maintain this injunction, we have the facts running counter to their views, and that in the most, decisive terms.

The defendant, in his answer, positively denies every allegation in the complaint, and, in addition to his answer, he shows by himself and six other witnesses that he is not the cause of lessening the water in the river; on the contrary, he shows that the plaintiffs themselves are lessening the depth of the water, if it is lessened at all. And these affidavits on the part of the defendant are only met by the complaint of the plaintiffs and two witnesses, neither of whom are as clear in their statements as the witnesses for the defense; so that, upon the facts as presented to me, I am constrained to deny this motion.


author: Garvin, J.

text:
    Henry D. Palmer, plaintiff, vs. Robert M. Dewitt, defendant.
    1. The author of an unpublished manuscript has in it, at common law, an exclusive right of property; the violation of which may be protected by injunction.
    2. This exclusive right, however, pertains only to the unpublished manuscript, without copyright protection. After unrestricted publication to the world, neither the author nor his assignee, whether a foreign or domestic writer, can assert an exclusive right to property in the future use $md publication of the composition.
    3. If either by words, by writing, by printing in newspapers or magazines, or • by lectures, sermons, (oral or written,) or by dramatic representation; if, in any of these modes, the public become possessed of the contents of a manuscript, without restrictions express or implied, it is such a publication as divests the author of an exclusive property in the work, whatever it may be.
    4. The representation of a play upon the stage, without any restriction upon its use bj; those who witness such representation, being a publication, the spectators cannot be restrained by injunction from printing and selling so much of the play as they can retain, and carry away, in their memory.
    (Before Garvin, J., at Special Term,
    December —, 1868.)

      Motion to dissolve an injunction restraining the defendant from printing and selling printed copies of a comedy called “Play,” of which the plaintiff claims to be the proprietor, by virtue of an assignment from the author. The motion is made upon the complaint and answer. It is alleged in the complaint, “that prior to the first of February, 1868, one T. "W. Robertson, of London, England, an eminent author, was the composer of a comedy called “Play,” and assigned to the plaintiff the exclusive right of enacting, representing upon the stage, printing and publishing, or causing, licensing or permitting to be enacted, performed, represented or prqduced upon the stage throughout the United States, in and to the said comedy, together'with all the author’s rights and privileges therein and thereto throughout the United States, and all benefits and advantages to be derived therefrom.” That at the time of such assignment, purchase and sale, the said Robertson had a great reputation as a dramatic author, having produced some of the finest comedies introduced on the modern stage; among them the comedies of “Caste,” “Ours,” and “Society,” had been eminently successful. It is also alleged that any new comedy from such an author was of very great value to the exclusive proprietor thereof, and the plaintiff, in the purchase of the comedy of “Play,” anticipated great pecuniary advantage from and by reason of the celebrity and popularity of its author. And the plaintiff avers that at the time of the purchase of “Play,” on 1st of February, 1868, the said comedy was an unpublished composition, adapted and designed for scenic representation, and was of great literary and dramatic merit; that it had never been at that time, nor has been since, printed or published in print by the plaintiff or its author, or by any one under his sanction, permission or consent, or that of either of them, and at that time had never been represented upon any stage; that its first performance upon any stage was on the 15th of February, 1868, in the city of London, at the Prince of "Wales’ theater, and under the sanction of the author, but that the author did not thereby confer upon or abandon to the defendant, or to any other person, the right or privilege of printing his comedy or otherwise interfering with his right of property therein; that the plaintiff, nor the author, has never consented to the printing and publishing, or sale thereof; that on or about- the 10th of February, the plaintiff received a full and complete manuscript copy of the said comedy, and still owns the same, and keeps it unprinted and unpublished, and is now engaged in licensing the right to perform and enact the same; that on the 18th of February, 1868, he published in -the Yew York Herald a notice of his right of ownership in said play, and had the same repeated in.said newspaper tri-weekly during the months of February and March; that about the 25th of March, 1868, the defendant, who is a publisher in the city of Yew York, without the knowledge or consent of the plaintiff, and in willful disregard of his rights as proprietor of said play, did print, publish and sell printed copies of the said play, and still continues so to do, to the plaintiff’s damage; and the plaintiff' alleges that copies of the play so printed and sold are identical with the comedy purchased by the plaintiff from the author; that the plaintiff is liable to sustain irreparable injury by reason of the facility which the defendant has afforded to managers and actors to produce said comedy by means of such printed copies.
    The answer denies the plaintiff’s proprietorship and any willful intention to injure the plaintiff; claims that the play was publicly represented upon the stage in London a great number of times, and that the defendant obtained the play from "those who saw and heard the representation as spectators, and that there was no prohibition in the theaters where the same was heard, nor upon the tickets of entry, against carrying away the same in the memory by those who saw and heard it.

      Mr. Warren, for the defendant.

      Mr. Booth, for the plaintiff.
   Garvin, J.

The plaintiff in this action claims to be the assignee, purchaser and sole and exclusive owner and proprietor throughout the United States of a comedy written by T. W. Robertson, an eminent English dramatic author, entitled “Play.” The plaintiff purchased the comedy on or about the 1st of February, 1868, and received the copy of said play in manuscript on or about the 10th of February, and alleges the same has never been printed or published with the consent of the plaintiff or the author.

It was represented for the first time on the stage in London, at the Prince of "Wales’ theater, on the 15th of February, 1868. That during the latter part of February and the whole of March, the plaintiff had a notice published in the Rew York Herald, tri-weekly, of his right of ownership in the play. The defendant, on the 25th of March, in willful disregard of the rights of the plaintiff and without his consent, published and sold identical copies of “Play,” thus owned by the plaintiff, to his great damage and irreparable injury, and depriving him of all advantages and profits to be made thereby.

It is not pretended that either the plaintiff or the author hadan American copyright in the comedy in question; neither could either have such a right—a foreign copyright would not avail the plaintiff here. There can be no copyright in a published work, at common law; copyright exists only by statute. (Wheaton v. Peters, 8 Peters, 499.) The plaintiff* must, therefore, stand upon his common law right of literary property in “Play,” as the assignee of the author, to its exclusive proprietorship in the United States, with the right to enforce it as against others who claim to publish and circulate for their own profit and advantage. Two principles are well settled upon authority:

First. The author of an unpublished manuscript has in it, at common law, an exclusive right of property; the violation of which may justly be protected by injunction. This is the language of the text writers, and the decisions upon the subject are uniform and clear. (8 Peters, 499. 4 Duer, 385.)

Second. This exclusive right pertains only to the unpublished manuscript, without copyright protection. After unrestricted, publication to the world, neither the author nor his assignee, whether a foreign or domestic writer, can assert an exclusive right to property in the future use and publication of the composition. The important question in this case is, whether there was a publication or communication of the comedy by the author or his assignee. Every communication, says Cadwállader, J., in Keene v. Clark, (5 Rob. 38,) of a knowledge of the contents, unless restricted, of a manuscript, is more or less a publication. And this able judge further says, “an act which renders the contents of a manuscript in any mode or degree an addition to the store of human" knowledge, is a publication.” It has been expressly held by this court, in Keene v. Clark, that at common law “the author or proprietor of an uncopyrighted literary composition parts with the right to the exclusive use and enjoyment of its contents by communicating them to others,” without some concomitant reservation expressed or implied from the circumstances. This is holding, in other words, that an author has no éxelüsive property in a published work, "or one communicated to the public, except under some statute. (Wheaton v. Peters, 8 Peters, 499. Bartlett v. Crittenden, 5 McLean’s C. C. R. 32.)

The only question, therefore, is that of publication. As this question is presented, the fact of foreign authorship can make no difference. There being no copyright interest, the plaintiff’s case must rest upon his common law rights. After publication his exclusive right ceases to exist.

Such publication may be either by words, by writing, printing in newspapers, magazines, or by lectures, sermons, (oral or written,) or by dramatic representation. If, in any of these modes, the public become possessed of the contents of a manuscript, without restrictions express or implied, it must be regarded as .such a publication as divests the author of an exclusive property in the work, whatever it may be. It is averred in the complaint that the comedy in question was represented on the stage on or about the 15th of February, 1868, in London. This one fact brings the case clearly within the rule laid down in the case heretofore referred to, in this court. Doubtless there was a series of representations of the play. There is no pretense of any restriction upon its use by those who witnessed the representation; a dramatic representation is publication or communication of the contents. If this is not a publication, copyright would be worthless compared with the common law property in, and perpetual right to, exclusive representation of any product of the author. The first is limited to a few years; the latter would be perpetual. Copyright is confined to the citizen and resident—the other applies to all. There is no valuable exclusive right in the works of a foreign author that can be enforced, not even in their republication, though by the custom of trade other publishers refrain from publishing rival editions thereof.

The plaintiff avers, a representation on the stage in London, and the defendant insists in his answer that “Play” was publicly represented upon the stage in London a great number of times, and that the defendant obtained it from those who saw and heard the representation as spectators, and that there was no prohibition in the theater where the same was heard, nor upon the tickets of entry, against carrying it away in the memory. The defendant also denies any willful intention to injure the plaintiff. We must, therefore, assume the defendant possessed himself of “Play,” by means not unlawful in themselves, through those who saw and heard it represented in London, and published it in this country. If the defendant had obtained a copy from a printed book, magazine or newspaper, there can be no doubt of his legal right to multiply copies and sell them to the public. How can there be any doubt of the same right in cases where he obtains the contents from those who learn and carry away in memory a comedy or play, .from seeing and hearing its unrestricted and unconditional representation upon the stage? All our national legislation, as well as that proposed for the benefit of foreign authors, proceeds upon the conceded principle that the work of a foreign author, brought here, may be appropriated by any person without any compensation whatever being made to the author. This was conceded by the committee of the senate in the report made in 1837, by its distinguished chairman, Mr. Clay, where an attempt was made to confer the benefits of our laws upon British and French authors. A bill accompanied the report, which failed. The enactments of congress, passed in 1831, declare in effect that the only persons entitled to copyright shall be such authors as are citizens and residents, and their assignees, “and if the assignee takes his title before the author has come to reside, he takes from a person who is not within the privilege of the statute, and has nothing to confer.” (Curtis on Copyright, 143.) The ninth section of the same act prohibits the publication, of manuscripts without consent, and authorizes the courts by injunction to restrain such publication of any manuscript; but the eighth section expressly excludes that section from any application to .works written or composed by any person not a citizen nor resident of the United States; thus recognizing the principle in this country that when the foreign author communicates, without restrictions, the contents of his manuscript or work to others, he divests himself of his exclusive property in it. In other words, “ the statute has taken away the common law rights derivable from a nonresident alien as soon as the work is published.” (Curtis on Copyright, 143.)

All the title the assignee can have is the common law title to an unpublished manuscript, but in one lawfully made public he has no other title than such as the author possessed after publication. The main question in this case was substantially decided by this court in the case of Keene v. Clarke, (5 Robertson, 38;) there it was expressly held, “ where the spectators of a public performance have not entered into some express or implied understanding with its proprietor, limiting the use they may make of the knowledge derived from being present at such performance, they cannot be restrained as to the use by them of so much of it as they can retain and carry away in their memory.”

I do not see how this case can be distinguished in principle from that rule thus laid down.

The plaintiff has failed to make a case for the inteference of the court by injunction. Courts must administer the law as they find it. This may be a case of great hardship for the plaintiff, but the remedy is to.be found in national legislation. The same difficulty exists in relation to the republication of the un copyrighted works of those who have enriched the world by their contributions to the literature of the republic of letters, as well as to those who publish editions of foreign authors; yet these defects in the legislation of the country have continued for many years. In the absence of any international law of copyright it is difficult to see how foreign authors, their assignees, or publishers of foreign literature, can be protected.

The injunction order in this case must be dissolved, with $10 costs.


text:
    Charles Quinn, administrator &c., plaintiff, vs. James T. Lloyd, defendant.
    1. Where an attorney, after the recovery of a judgment by his Client for over $12Ú0, which was amply secured Upon an appeal therefroiii, and after he had signed a consent for the substitution of ahother person as attorney, in his place, agreed with the defendant, without the knowledge or Consent of his client, to accept and did accept $50 from him, and signed a stipulation to vacate the judgment, and consenting to a new trial; Sold, that he had exceeded his authority as attorney, and the consent to Vacate Was null and void.
    2. Sold, also, that the consent to substitution; giveh by the attorney, precluded him from acting further in the action, notwithstanding no order had been entered thereon.
    (Before McCunn, J., at Special Term,
    December 26, 1868.)
    Motion to set aside a stipulation vacating a judgment.
   McCunn, J.

This is a motion to set aside a stipulation given by an attorney, without the cohsent or knowledge of his client, vacating a judgment, which judgment was pending on an appeal to the general term of this court, and which was amply secured on the appeal. It is claimed that the defendant, against whom this judgment was obtained, is insolvent, and has left the state, and that the of his claim is any right or claim he may have acquired by virtue of the bond on appeal, and that as the consent vacates the judgment, the bondsmen on the appeal are released.

) It is quite clear, from the affidavits in the case, that the attorney for the plaintiff exceeded his power in giving such a consent. The judgment was for over one thousand two hundred dollars, and was obtained in May last. -A motion was made for a new trial, upon the ground of newly discovered evidence, and denied by this court. Subsequently an appeal was taken to the general term, and when that appeal was pending, and when the party plaintiff in interest was absent for his health from the state, his attorney agreed to accept, and accepted, fifty dollars and vacated the appeal, and sent the "cause back to the calendar for a trial by jury.

How, this was all done by the attorney after he had signed and delivered a consent for substitution—a" consent, although no order was entered thereupon, yet a consent which was known to exist by the defendant’s attorney. The excuses offered tó this court by thetwo attorneys (plaintiff’s and defendant’s) for their course in this respect, are of the most trifling and unreliable kind, and must not be allowed to stand in the path of justice, if it be in the power of this court to remedy the same.

Before I assign my reasons for believing that the consent to vacate this judgment is null and void, I will call the attention of those interested in this case to the statutes of this state covering such transactions:

Any attorney who shall be guilty of, or consent to,, any deceit or collusion, with the intent to deceive the court or any parties, shall be deemed guilty of a misdemeanor.” (2 R. S. 278, Laws of 1813.)

“ Any attorney found notoriously in default of record, or guilty of any deceit, or malpractice, or misdemeanor, only opportunity left for the plaintiff to receive satisfaction may be suspended or put off the roll,” &c. &c. (1 R. S. 417, § 5.)

Again, the Bevised Statutes declare that the delaying suit, or willfully receiving money on account of disbursements not made or incurred, forfeits treble damages.

These and other acts were passed in order to protect clients and suitors, as far as possible, from just such prac: tices as have been resorted to in this case. Of all professional men, none should be so strictly held to an honorable course as the attorney and counsellor, because .they know, or are presumed to know, their duties, and the responsibilities attached to those .duties ; therefore, their every act should be scrutinized by the courts in which they practice, and any errors committed by them, or delinquencies perpetrated, should be repaired or punished at once.

I know that the rule has been insisted upon that an attorney under certain circumstances can disconue his suit at any time, and allow his client to seek a remedy through another advocate ; but this he must not do to the prejudice of his client. An attorney cannot, by taking part of a claim in judgment,- or one in litigation, satisfy the whole. This rule has been so frequently held that it has almost become elementary. When the judgment has become well secured on appeal, as the one under discussion has been, and where the defendant has left the state and is entirely worthless, an attorney for the plaintiff does more than an ordinary act in the premises when he consents to a new trial, because he thereby releases the sureties, the only real parties upon whom he or his client could call for a payment of his just claim. This rule was laid down in the case of Gaillard v. Smart, (6 Cowen, 385.)

In the case of Shaw v. Kidder, (2 How. Pr. R. 244,) it was held that an attorney could not settle a suit and con-elude his client in relation to the subject in dispute, without special authority.

It may be argued that the consent to a new trial was not a settling of the suit in this case. It was, however, a settlement to all intents and purposes, for it released all responsible parties connected therewith, and against whom any claim could be made, of any responsibility.

The doing of an act by an attorney, whereby the interests of his client would be injured or ruined, as in this case, is not the performing of his ordinary duties in the suit; I shall hold that it is doing that which he has no right to do, nor has he, nor the counsel on the other side, any right to connive at; and I shall further hold that no advantage can be taken of such a consent, neither by the defendant in this action nor by his securities on appeal.

The rule is, that an attorney has all the authority for the conducting and managing an "action, and for the collection of the debt; there, however, his services end : his authority goes no further. Indeed he has no further or greater authority for the benefit of his client, although he may think he has. How he had no right to compromise a debt, or take a part and give a satisfaction piece for the whole. He has no right to bind his client to an appeal bond, although it may be for his client’s interest.

He cannot compromise and discontinue a suit brought to recover possession of lands, even if he gets a conveyance of the greater part of the land in dispute. This is the doctrine laid down in the cases of Holker v. Parker, (7 Cranch, 436;) Murray v. House, (11 J. R. 464;) Lewis v. Gammage, (1 Pick. 347.)

The doctrine strictly applicable to this case is the rule in equity laid down in the case of Howe v. Lawrence, (2 Zab. N. J. R. 29,) tried in the court of chancery, Hew Jersey. Indeed, it is a case right in point. There it was a stipulation to grant a new trial; here it is a like stipulation. The chancellor, in his opinion setting aside such a stipulation, says : “ The stipulation to waive a judgment and grant a new trial was not an agreement for-the conduct of the case; it was a deliberate surrender of his client’s rights, a sur-, render which I conceive the counsel has no power to make, and which, if he had the power, justice would never permit to be enforced.” * * * This is just and righteous language, and I shall adopt the principle contained therein in guiding me in the disposal of this case. The same rule was established in the celebrated case in Hew Hampshire, (Pike v. Emerson, 5 N. H. R. 393,) where the judge held that the court has the power, without doubt, in a case of fraud- or mistake, to relieve a party from the effects of such a stipulation. It operates thus: that the plaintiff in this action would be justified in proceeding with his remedy against his attorney; but the rule is now settled, and it is the just rule and practice, for the court to relieve the client without reference to the responsibility of his lawyer. It would be a harsh rule—indeed, it would be unjust—to permit one party to obtain an undue advantage over another by reason of the negligence or misconduct of that other’s attorney. Such was the equitable rule held by our Supreme Court in the case of Sharp v. The Mayor. I can cite a large number of cases, all establishing beyond a doubt my right to interfere and set aside the agreement or stipulation in question ; but even if there were not a single authority in the books to warrant my. course, I would be-justified—reasoning from principles rather than decisions—in not allowing our .courts to be used by parties in perfecting, through the forms of law, the ruin of a party who has employed a negligent or unworthy attorney. I shall further hold, in this case, that the consent for substitution, given by the attorney to his client, precluded.said attorney from acting in the action,: notwithstanding no order had been entered upon that consent, and that consequently his action afterwards in granting a new trial, on the payment of fifty dollars, was illegal and void. The stipulation must be vacated and set aside as null and void.


text:
    Thompson, plaintiff, vs. The Mayor &c. of the city of New York, defendants.
    1. For services performed by an individual as an officer of the court of special sessions, the corporation of New York is liable, although no previous appropriation for that purpose was made.
    2. It is no defense to an action to recover compensation for such services, that there are at present no funds in the county treasury wherewith to pay the plaintiff his demand.
    3. Nor is it any defense to such an action that the plaintiff has never been appointed by the justices of the special sessions to the office for the salary of which he sues. The performance of the duties, during the whole period claimed for, with the consent, knowledge and under the eye of both of the judges of the court, must be regarded as a sufficient appointment.
    (Before Jones, J., at Special Term,
    December 31, 1868.)


author: By the Court, Monell, J.

text:
    George Kuhn and another, plaintiffs, vs. John W. Stevens and another, executors &c., defendants.
    1. Until a breach, a contract under seal cannot be discharged, or even modified, by parol.
    2. An unexecuted contract, upon which no right of action has arisen, for the recovery of damages or otherwise, cannot be discharged or modified by a parol agreement; notwithstanding such parol agreement be fully executed.
    3. And in an action upon the original contract, evidence of the parol agreement is inadmissible.
    (Before Robertson, J., and Monell and McCunn, JJ.)
    Heard December 10, 1868;
    decided December 31, 1868.
    This case came up on appeal from a judgment rendered on a verdict on a case made containing exceptions, and also on an appeal from an order refusing to grant a new trial.
    The action was to recover damages for the breach of a written contract under seal, made by the defendants’ testator. It was shown that in March, 1866, the testator agreed to sell and deliver to the plaintiffs, between the first day of April, 1866, and the first day of February, 1867, 7000 cords of pine wood. The complaint alleged nonperformance by the testator in his lifetime, and by the defendants, his executors, since his death. The defense was that after the death of the testator, and about November, 1866, the plaintiffs and defendants agreed, by parol, that the defendants should deliver to the plaintiffs all the wood then cut and lying on the Baker farm, and that the first agreement must be canceled in respect to the balance of the wood agreed to be delivered by such' agreement, and that the defendants should not deliver nor the plaintiffs pay for the same.
    That under the last mentioned agreement the defendants delivered to the plaintiffs all the wood so cut and lying on said farm. On the trial the plaintiffs objected to any evidence in support of the defense. The objections were overruled, and the defendants were allowed to prove the second parol agreement; and the justice refused to charge the jury that a sealed executory agreement could not be released or rescinded by a parol agreement, but did charge that if the jury found that the plaintiffs agreed, although by parol, to receive all their wood then cut, and to cancel the contract, they must render a verdict for the defendants. The plaintiffs excepted to the admission of the evidence, and also to the charge and refusal to charge.

      Dennis McMahon, for plaintiffs, appellants.

      Henry Nicholl, for defendants, respondents.
   By the Court, Monell, J.

The distinction between the obligation' of an executory contract under seal, and a liability for damages for a breach of any of its stipulations, is so clearly defined, and the authorities so carefully collected in Clough v. Murray, (3 Rob. 7,) that it is only necessary to apply the principles of such distinction to the facts of this case.

It is clearly established by these authorities that until a breach, a contract under seal cannot be discharged or even modified by parol.

By the terms of the contract between the plaintiffs and the defendants’ testator, the defendants had until the first day of February, 1867, for performance. There could, therefore, be no breach of the contract until the expiration of that time.

The agreement which it was claimed was an extinguishment, discharge or satisfaction of the first contract, was made in November, 1866, and before there had been any failure to perform the first contract.

The latter, therefore, was still an unexecuted contract, upon which no right of action has arisen, for the recovery ■ of damages or otherwise, and could not be discharged or modified by a parol agreement, notwithstanding such parol agreement was fully executed.

I am of opinion that the. evidence of the parol agreement was improperly admitted.

There must, therefore, be a new trial, with costs to the appellants to abide the event.

Judgment and order set aside, and new trial ordered accordingly.


author: Jones, J.

text:
    Fairweather vs. Satterly.
    1. An infant defendant for whom no guardian ad litem has heen appointed, cannot waive the objection that his rights have not heen protected in the manner prescribed by law.
    2. ' There is no difference in this respect between an action brought on a contract made by an infant and one brought for a tort committed, by him.
    (Before Jones, J., at Special Term,
    February, 1867.)
    This action was brought to recover damages for a tort committed by the defendant. The defendant appeared by an attorney and answered. The issue joined came on to be tried before a judge and jury, and-resulted in. a verdict for the plaintiff. Judgment was entered against the defendant on the verdict, and an execution issued thereon, which was returned unsatisfied. Proceedings supplemental to execution were then taken, against the defendant, and are still pending.
    . The defendant, on an affidavit showing that at the time of the commencement of the action he was and still is an infant, and that no guardian ad litem had been appointed for him, now moves to set aside the judgment and all proeeedings subsequent to the complaint, on the ground of his being such infant and no guardian ad litem having been appointed.
    The answer interposed, in the action, did not set up the infancy of the defendant.
    Subsequent to the entry of judgment a guardian ad litem was appointed for the defendant, who now, at thé first opportunity since the appointment, makes this motion in behalf of the defendant.

      Mr. Fine, for the plaintiff.

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

Section 115 of the Code provides that when an infant is a party he must appear by guardian. This section is substantially the same as the provisions of the Revised Statutes.

The defendant’s counsel cites four cases decided under the provisions of the Revised Statutes, (Mockey v. Grey, 2 John. 192 ; Bliss v. Rice, 9 id. 160 ; De Witt v. Post, 11 id. 460 ; Gosling v. Acker, 2 Hill, 391,) and one case arising under the Code, (Kellogg v. Klock, 2 Code Rep. 28,) in all of which,, a judgment against an infant was, on the application of the" infant, either set aside, or reversed, for error in fact, on the ground that no guardian ad litem had been appointed for the infant. Counsel for the plaintiff urged that the non-appointment of a guardian is a mere irregularity, which may be waived.

Conceding it to be a mere irregularity, yet I am at a loss to see how by unauthorized legal proceedings an infant can waive it. The cases cited by the plaintiff’s counsel (Palmer v. Davis, 28 N. Y. Rep. 242; Robbins v. Wells, 26 How. Pr. 15 ; Fellows v. Niver, 18 Wend. 563; Parks v. Parks, 19 Abb. 161; Van Amringe v. Barnett, 8 Bosw. 359 ; Rutter v. Puckhofer, 9 id. 638) do not decide that an infant can waive the irregularity. In all these cases, an adult defendant, after pleading to the merits, sought to set aside a judgment rendered against him, on the ground of some disability in the plaintiff, such as being a married woman, or an infant, and suing without the appointment of a next friend or guardian. Those decisions proceeded upon the well recognized principle (which is substantially incorporated in the Code) that a plea in bar waives all pleas in abatement, one of which was an infant plaintiff suing hy attorney, without guardian. This principle was well known and established at the time of the decisions relied on hy the defendant’s counsel, but neither the counsel nor the court deemed it applicable to an infant.

In De Witt v. Post, (11 John. 460,) a verdict had been obtained against the defendant, who sued out a writ of error, and assigned as error in fact that he was an infant, at the time of the plea pleaded, but had appeared by attorney. For this error the judgment was reversed.

In Gosling v. Acker, (2 Hill, 392,) Gosling and wife brought replevin against Acker. On the trial the plaintiffs were nonsuited, and the defendant had a verdict for the value of the goods, and costs. The plaintiff brought error, and assigned for error in fact that Gosling appeared by attorney, although at the time of appearance, and at the time of trial, and also at the time of giving judgment, he was only twenty years and nine months of age, and ought to have appeared by guardian. The court held the assignment of error valid, and reversed the judgment.

"Upon a review of the authorities, ! am confirmed in the view which I took at the argument, that an infant cannot waive the objection that his rights have not been protected in the manner prescribed by the law.

The rule requiring the appointment of a guardian has its foundation, as is observed in Kellogg v. Klock, (2 Code Rep. 28,) “ in the want of legal capacity in the infant to perform, any valid act in the conduct of his defense, upon the ground of a presumed want of understanding.” If he can perform no valid act, a waiver by him will be invalid.

It was suggested that there is a difference between an action brought on a contract made by an infant and one brought for a tort committed by the infant. ■ The principle upon which a guardian is required permits of no such distinction ; and the cases do not recognize any. De Witt v. Post, and Gosling v. Acker, were both actions of tort, but in both of those cases the fact of the infant having appeared by attorney, without guardian, was held fatal to the judgments.

The motion must be granted, with leave to the plaintiff to serve the complaint on the attorney for the guardian ad litem, and complaint to be answered, within twenty days after the service thereof. Ho costs of the motion to either party.