text:
    SETH W. HALE, Plaintiff and Appellant, v. THE OMAHA NATIONAL BANK, Defendant and Respondent.
    I. ACTIONS—DISTINCTIONS BETWEEN NOT ABOLISHED.
    1. Trespass, trover, and special actions on the case.
    1. There are intrinsic differences between special actions on the case, and trespass or trover which are not abolished by the code.

    n. CHATTEL MORTGAGES.
    1.' Trespass or trover against mortgagee.
    1. Where a mortgagee, whose right to possession has become perfected under the mortgage, obtains possession in a lawful manner, and sells the property generally without taking any notice of a prior lien or mortgage, he is not liable in trespass or trover at the suit of the mortgagor or the prior lienee or mortgagee.

    HI. EQUITABLE LIEN.
    1. When it does not exist.

      a. Lessor or lessee.

    1. Where the lease, for the purpose of giving a security for the rent, contains this clause, “A lien shall be given by the said lessee to the said lessor to secure the payment thereof ” (that is of the rent) “ on all the furniture that shall be placed in said hotel by said lessee,” an equitable lien is not raised.

    2. Bona fide subsequent incumbrancer,

      a. Takes free of an equitable lien.

    1. Who is bona fide.

      a. One who, without notice of the lien, takes a mortgage to secure a prior indebtedness due him by the mortgagor, and by the mortgage extends the time of payment, is a bona fide incumbrancer for value.
    IV. INSTRUMENTS—CONSTRUCTION OP.
    1. Subject clause, effect of.
    1. Where, by the subject clause, property is transferred, subject only to certain specified liens,

      there is a strong inference

    that all other liens which may be held by the transferor

      are waived.

      Before Freedman, Curtis, and Speir, JJ.

      Decided March 1, 1875.
    The action is in trover to recover the value of certain household furniture. It was tried by the court without a jury, and judgment given for the defendant. The plaintiff appeals from that judgment.
    The findings of fact cover the case, and are substantially as follows:
    The firm of Cozzens & Bettman, on June 22, 1867, leased from the Credit Foncier of America, a hotel, in the city of Omaha, in writing. The lease contained this clause following the covenant to pay rent: “and a lien to begivenbj said lessees to said lessors, to secure the payment thereof as hereinbefore stipulated, on all the furniture which shall be placed in said hotel by" said lessees.”
    On July 22, 1867, the Credit Foncier assigned that lease to the plaintiff.
    On October 14, 1867, Cozzens & Do. executed to the plaintiff a mortgage on certain furniture which had been placed tin the hotel by them to secure some six thousand dollars, five hundred dollars thereof in six months from date, the balance in one year.
    • On March 10,1868, Cozzens & Co. executed a chattel mortgage on the same furniture to the defendant, to secure five thousand nine hundred dollars, in sixty days, for which a promissory note was then executed.
    On April 28, 1868, the defendant brought replevin against Cozzens & Co. on their mortgage to recover the furniture, and on July 20, 1868, obtained a judgment awarding it the right of possession thereof; the possession having already been delivered by the sheriff under mesne process.
    On September 24,1868, plaintiff assigned his chattel mortgage to the defendant, subject to proceedings in bankruptcy then pending against Cozzens & Co.

      When the defendant took its own second mortgage from Cozzens & Co., it had no knowledge or notice of the lease, or of the lien clause therein.
    On November 20, 1868, the defendant sold the furniture under the two mortgages ; but it does not appear whether the sale was in one lot or in parcels to one or more purchasers. At the sale defendant sold only the rights of Cozzen & Co. and of itself in the property, and did not sell any interest of the plaintiff, whatever that was. At the sale the property brought its full value, ten thousand one hundred and seventeen dollars and eighty-one cents.

      Bell, Bartlett and Wilson, attorneys, and Edward J. Bartlett, of counsel for appellant, urged:
    It is submitted that the clause in the lease of plaintiff created an equitable lien on the furniture placed in the hotel, as against Cozzens & Co., the lessees, and all persons asserting a claim thereto under them, either with notice of the lien, or not being tona fide mortgagees or purchasers in good faith (1 Story Eq. Jur. § 64 g.; 4 Bouv. Inst. n. 3739; 1 Fonblanque Eq. b. 1, ch. 6, § 9, note; 49 N. Y. 633; Hathaway v. Payne, 34 Id. 103; Champion v. Brown, 6 Johns. Ch. 398; Griffin v. Beecher, 10 Barb. 432; Moore v. Barrows, 34 Id. 173; Smith v. Gage, 41 Id. 60; Merithew v. Andrews, 44 Id. 200; 3 Rev. Stat. 5 ed. 199, § 78; Craig v. Leslie, 3 Wheat. 578; Wright v. Wright, 1 Ves. 409, 410, 411; Beekley v. Newland, 2 P. Wms. 182; Hobson v. Trevor, Id. 191; Laughton v. Horton, 1 Hare, 549; Case of Ship Warre, 8 Price, 269, n. ; Curtis v. Auber, 1 Jac. & W. 506; Mitchell v. Winslow, 2 Story, 639; 2 Story Eq. Jur. § 1231, and cases cited; Cross on Liens, ch. 12, p. 187, 188, 191, 192; Prebble v. Boghurst, 1 Swans. 309; Needham v. Smith, 4 Russ. 318; Randall v. Willes, 5 Ves. 262, 274-5; Simond v. Hibbert 1 Russ. & M. 719; Seymour v. Canandaigua & Niagara Falls R. R. Co., 25 Barb. 284; Wood v. Lestee, 29 Id. 145; Field v. Mayor of New York, 2 Seld. 179; Stover v. Eyclesheimer, 3 Keyes, 620; Union M’f’g Co. v. Lounsbury, 41 N. Y. 374 Hall v. City of Buffalo, 1 Keyes, 199; Story Eq. Jur. §§ 1040, 1040 B, 1055; Matter of Howe, 1 Paige, 129; White v. Carpenter, 2 Id. 266; Finch r. Earl of Winchelsea, 1 P. Wms. 282; Burn v. Burn, 3 Ves. Jun. 576; Delaire v. Keenan, 3 Dess. [S. C.] 74; Foster v. Foust, 2 Serg. & R. 11; 2 Lead. Cas. in Eq. [White & Tudor Fourth Eng. Ed. 1872] 772; Wellsbey v. Wellsbey, 4 Mylne & C. 561; Metcalf v. Archbishop of York, 1 Id. 547; Lyde v. Myner, 4 Sim. 504; Tooke v. Hastings, 2 Vern. 9).
    II. It is submitted that the defendant is not a bona fide mortgagee under either of the chattel mortgages on the furniture in the hotel. Judge Allen remarks in Weaver v. Barden (49 N. Y. 293): “ It is generally admitted that the mere existence of a precedent debt is not a sufficient consideration to support a conveyance as against prior equities but in some States it is held that when made in absolute payment and satisfaction of an antecedent debt, the purchase will be regarded as a purchase for value. But that is not the rule in this State (Dikerson v. Tillinghast, 4 Paige, 215).” (Coddington v. Bay, 20 Johns. 637; Van Heusen v. Radcliff, 17 N. Y. 583; Stalker v. McDonald, 6 Hill, 93; Young v. Lee, 12 N. Y. 551; Farrington v. Frankfort Bank, 24 Barb. 554, and cases cited; Boyd v. Cummings, 17 N. Y. 101; Essex County Bank v. Russell, 29 Id. 673; Brown v. Leavitt, 31 Id. 113; Cary v. White, 52 Id. 138; Bank of New York v. Vandervorst, 32 Id. 553; Payn v. Cutler, 13 Wend. 605; Crysler v. Renois, 43 N. Y. 209; Lawrence v. Clark, 36 Id. 128; United States v. Hodge, 6 How. U. S. 279; Bangs v. Strong, 10 Paige, 11, citing several cases at page 16; Neimceweiz v. Gahn, 3 Paige, 614, affirmed 11
      Wend. 312; 1 Parsons on Notes & Bills, 224; Wood v. Robinson, 22 N. Y. 564; Atlantic Nat. Bank v. Franklin, 55 Id. 238; Bell v. Banks, 3 M. & G. 258; Elwood v. Diefendorf, 5 Barb. 398; Platt v. Coman, 37 N. Y. 440; Mech. & F. Bank of Albany v. Wixon, 42 Id. 438; Jennison v. Stafford, 1 Cush. 168; Howell v. Jones, 1 C.M. & R. 97; Fellows v. Prentiss, 3 Denio, 512; Ayrault v. McQueen, 32 Barb. 305; Cardwell v. Hicks, 37 Id. 458; Traders B’k of Rochester v. Bradner, 43 Id. 379; Mickles v. Colvin, 4 Id. 304; Park Bank v. Watson, 42 N. Y. 490; Brown v. Leavitt, 31 Id. 113; Chrysler v. Renois, 43 Id. 209; Boyd v. Cummings, 17 Id. 101).
    III. The sale by plaintiff to defendant of Ms first mortgage on the furniture did not in any way prejudice Ms rights under the lien of the lease. The learned judge at Special Term thus comments on this clause : “ The assignment was made subject only to the proceedings then pending in bankruptcy against the mortgagors, such single exception would appear to exclude any other claim.” It is submitted, with all respect, that this clause in the assignment will bear no such construction. Here was a party selling a mortgage and covenanting that the whole amount was due. The mortgagors were in bankruptcy, and, for aught he knew, had been discharged from all their debts. He, therefore, very properly draws his covenant subject to the proceeding in bankrupty. It is submitted that it is never the case to recite prior liens in assignments of younger ones, and the covenant as to whole amount being due would be true if there were a dozen prior existing liens not referred to and belonging to the assignor.
    IV. Cozzens & Co. became in equity, under the law of constructive or implied trusts, the trustees of the plaintiff, and were, as such, the custodians of the said furniture, subject to the equitable lien of the plaintiff for unpaid rent; and all persons receiving title to said property, with actual notice of said lien, although paying a valuable consideration therefor, or without actual notice of said lien if received to secure an antecedent indebtedness, or without parting with present value, took the same from said trustees subject to said equitable lien, and said takers are construed in equity to be themselves trustees, and liable as such to the same extent as the trustees from whom they took it (Perry on Trusts, 2d Ed. §§ 217, 232, 241, 828; Mackreth v. Symmons, 15 Ves. 329; Same case, 1 Lead. Cas. in Eq., 336; Lemon v. Whitley, 4 Rus. 423; Chapman v. Tanner, 1 Vern. 267; Blackburn v. Greyson, 1 Brown Ch. 428; Burgess v. Wheat, 1 Eden, 211; Story Eq. Jur. § 1217; Sugden on Vendors, [8th Am. Ed.], note K. margin, page 680; Perry on Trusts, 2d Ed. §§ 67, 82, 122, 217, 241, 843; Currie v. White, 45 N. Y. 822; Pye v. George, 1 P. Wms. 128; Mansell v. Mansell, 2 P. Wm. 678; Kennedy v. Daly, 1 Schol. and Lef. 355; Crofton v. Ormbsy, 2 Id. 583; Murray v. Ballou, 1 Jh. Ch. 566; Van Allen v. American Nat’l. Bank, 52, N. Y. 1, and case cited; Perry on Trusts, § 843; Denton v. Davies, 18 Vesey, 504; Oliver v. Piatt, 3 How. U. S. 333; Freeman v. Cook, 6 Ired. Eq. N. C. 379; Roberts v. Mansfield, 38 Geor. 458; Norman v. Cunningham, 5 Grat. [Va.] 72; Flagg v. Mann, 3 Sumn. U. S. 84; Howkins v. Howkins, 1 Drewry & S. 75; Hill on Trustees, 522). The Supreme Court of the Pnited States in 1871, in the case of Kitchen v. Bedford (11 Wallace 413) went so far as to hold the trustee, and those claiming under him, liable in trover at the suit of the cestui que trust.

      V. The holder of an equitable lien has- his remedy against all parties who interfere with or defeat the same, having notice thereof, or standing in the position of mere volunteers under the party creating the lien (Goulet v. Asseler, 22 N. Y. 225; Hull v. Carnley, 1
      Kern. 501; 17 N. Y. 202; Manning v. Monahan, 28 Id. 585; Hath way v. Brayman, 42 Id. 322, 7 Term R. 9).
    VI. The disposition of this case in the court of appeals did not leave it res adjudicada under the opinion of the general term as to the first cause of action set forth in the complaint, as was claimed by defendant at the trial. (1.) The court of appeals did not pass on the first cause of action; they were acting under the familiar rule that when the demurrer is general it must be entirely sustained or fall together (Peabody v. Wash. Mut. Ins. Co., 20 Barb. 342; Cooper v. Classon, 1 Code R. N. S. 347; People v. Mayor, 17 How. Pr. 57; Wait Ferguson, 14 Abb. Pr. 379). A defendant, where the complaint contains several causes of action, is at liberty to interpose a separate demurrer to each cause, and if he fails to do so, the court will overrule the demurrer on finding one good cause of action without looking further (Butler v. Wood, 10 How. Pr. 222; Martin v. Mattison, 8 Abb. Pr. 3; Harrison v. Hogg, 2 Vesey Jun. 323; Jones v. Frost, 3 Mod. 1; 1 Barb. Ch. Pr. 107; Code, § 145; Jaques v. Morris, 2 E. D. Smith, 639; Sheldon v. Hoy, 11 How. Pr. 11; Roeder v. Ormsby, 22 Id. 270). If a complaint charges a conversion of money of the plaintiff by the defendant, and claims damages, and the evidence fails to show a conversion, if it appears that the defendant has received the money in question to the plaintiff’s use, the plaintiff may under the code recover as for money received (Gordon v. Hostetter, 37 N. Y. 99; Byxbie v. Wood, 24 Id. 607; Wright v. Hooker, 10 Id. 51; Cobb v. Dows, 10 Id. 335; Eldridge v. Adams, 54 Barb. 417; Colton v. Jones, 7 Robt. 164).

      B. R. Meade, attorney, and Wheeler B. Peckham, of counsel for respondent, urged:
    I. Conceding, for the argument, that plaintiff had legal title, instead of a covenant for a lien, under his lease—yet he can not re cover. It is well settled that the seizure and sale of chattels under a junior encumbrance is no wrong to the holder of a prior lien, though the prior lien be a full mortgage (Hull v. Carnly, 17 N. Y. 202; Goulet v. Asseler, 22 Id. 225; Manning v. Monaghan, 23 Id. 545, where in the opinion, Judge Comstock reasserts the principles of his dissenting opinion in Goulet v. Asseler; Manning v. Monaghan, 28 N. Y. 585, which again overrules the principles of Judge Comstock; Hathaway v. Brayman, 42 N. Y. 322; Trust v. Pierson, 1 Hilt. 292).
    II. Defendant took its second mortgage without notice of plaintiffs equitable claim under the lease,, and having given time and some money as consideration for said second mortgage, became a bona fide holder for value, and held in priority to plaintiff’s claim under the lease. As to value, Bank of Sandusky v. Scoville (24 Wend. 114, 115); Traders’ Bank of Rochester v. Bradner (43 Barb. 379), cited and approved 42 N. Y. 438. As to priority, Taylor v. Baldwin (10 Barb. 627).
    III. The assignment by plaintiff to defendant of plaintiff's mortgage, gave defendant a right prior to that of plaintiff under the lease, (a.) Before that assignment plaintiff had two rights with respect to this property. (1.) A complete legal right under the mortgage. Default had been made in its condition, and the title of the plaintiff had become absolute at law. He could have maintained trespass or replevin. (2.) An inchoate or equitable right under the lease. To perfect it would have required the execution by Cozzens & Co. of the lien covenanted to be made, or the decree of a court on bill filed. (5.) Were either course adopted, the effect would have been to make the lien, given in pursuance of the clause in the lease, a lien subsequent to that of the original mortgage, because' subsequent in point of time. To make it a first lieu would have required a special clause in the new lien, contract, or decree. While these two rights were in plaintiff’s own hands, they had an equal equity ; but one only had a legal «character. He then transfers his legal lien, which has also an equal equity. That act gave his transferee priority ; for where the equities are equal, the legal title will prevail (1 Story Eq. § 642).
    IV. The assignment by plaintiff to defendant of the mortgage, subject only to certain bankruptcy proceedings, is a virtual covenant that it is a first lien— "Expressio unius&c.
    V. The decision by the court of appeals does not touch the case as now presented.
    VI. Plaintiff cites a number of cases of the enforcement of equitable liens. Such cases go merely to the point that such a bill may be filed against the covenantor, and any person holding under him and having the property, to enforce the lien against the property. Wellesly v. Wellesly (4 Myl. & C. 561), Wood v. Lester (29 Barb. 145), Seymour v. Canada & Niagara Falls R. R. (25 Id. 284), are good illustrations of the cases cited. No case can be found where an action for damages has been maintained against one for enforcing his legal rights against property on which another had even a prior equitable lien.
   By the Court.—Speir, J.

The complaint is in substance the same as a declaration in trover, under the former system of pleading.

Although the code has abolished all distinctions between the mere forms of action, and every action is now in form a special action on the case, yet in their nature they are essentially dissimilar, marked by intrinsic differences which no law can abolish. In trespass and trover, before the code, the plaintiff recovered, if he recovered at all, upon the ground that he was the owner of the property in controversy. The measure of damages, therefore, in all such cases, was the value of the property taken or converted. I think the case, as now presented by the evidence and findings of the learned judge who tried it, was»properly decided by him The defendant’s proceedings were simply to enforce its own right against the mortgagors. By the sale, under the chattel mortgage, the defendant sold only the rights of Cozzens & Co., and of itself in the property, and did not sell the plaintiff’s interest, if any he had therein.

o

The following positions respecting actions of this character are perfectly well established:

First. That a mortgagor of chattels remaining in possession before default, under a clause entitling him to such possession, has an interest in the property which is the subject of levy and sale on execution against such mortgagor.
Second. That although the interest which passed to the purchaser at such sale is only such an interest as the morgagor had, yet parties promoting the sale are not trespassers if the sale is in general terms, without any notice being taken of the existence of the mortgage. So far as this case is concerned, I think it is covered by these propositions (Hathaway v. Brayman, 42 N. Y. 322; Hull v. Carnley, 17 Id. 202; Goulet v. Asseler, 22 Id. 225; Fairbanks v. Phelps, 22 Pick. 535).

The defendant removed the property covered by its mortgage from the premises, and while the property was in its possession, under its mortgage, the plaintiff, on September 24, 1868, assigned to the defendant, in consideration of the sum paid by it, the mortgage which had been executed to him by Cozzens & Co. on October 14, 1867. The defendant retained possession of the property under both mortgages,until November 20,1868, when they sold it at public auction. The sale was made under both mortgages,notice of time and place of sale being published for thirty days in the Omaha newspapers'.

The defendant had taken possession of the chattels under its mortgage, on April 28, 1868, in an action against the lessees to recover such possession, and in such action it was adjudged that the defendant, as mortgagee, was entitled to such possession. The sale was therefore lawful, because it was under a decree of the court, and no right or interest of the plaintiff was sold.

The plaintiff’s counsel here interposes the objection, that, at the time the hotel was furnished, which by the findings appears to have been on or about July 25, 1867, the equitable lien attached, which was prior to the execution of the chattel mortgages. I think the answer to the position is that, strictly speaking, no lien had attached at any time during the proceedings complained of.

“ The elementary rule in the interpretation of air agreement, where the terms are not ambigious or uncertain, excludes all evidence of the language employed by the parties in making the contract, other than is set down in the writing itself.” The lessees, after covenanting to pay the rent, as it shall become due, add, “a lien shall be given by the said lessees to the said lessor to secure the payment thereof on all the furniture tha.tshall be placed in said hotel by said lessees.”

It is plain the parties contemplated some further and other act to perfect the security. The lease and agreement import a covenant to create a lien upon the property by a proper instrument, when it shall have been put upon the premises by the lessees. As soon as the lessees had furnished the hotel and placed the furniture therein, the lessor could have required of them security in proper form upon the furniture, and had they refused, upon request, to give the lien agreed upon, a specific performance would have been decreed.

No proper instrument was at any time executed by the parties to perfect the lien, nor was any specific performance decreed or instituted for that purpose.

The defendant, by taking its second mortgage without notice of plaintiff’s inchoate equitable claim under the lease on the furniture and chattels, to secure the payment of the sum of five thousand nine hundred dollars, theretofore loaned to the lessees, then due and owing, the payment of which by its terms was extended sixty days, containing a covenant that the bank might take possession of the property at its election any time, became a bona fide holder for value and held in priority to plaintiff’s claim under the lease.

The decision of the Court of Appeals (Hale v. Bank of Omaha, 49 N. Y. 626) does not affect the case as now presented. The defendant demurred to the complaint, which contained two counts. The demurrer was general, and there being two distinct and separate counts, it was overruled, the court reversing the-judgment on the ground that the second count was good. The learned judge, however, has put a constrnction upon the true character of the lien contained in the clause in the lease, and is authority on that question.

The fact has been found by the court below, that before the defendant took its mortgage on the 10th of March, 1868, it had no knowledge of the provisions in the lease in plaintiff’s favor in respect of the lien to be given by the lessees. An examination of the testimony on that subject justifies the fact as found.

The assignment of the mortgage to the defendant does not import that the same was made subject to any lien in plaintiff’s favor, and being made subject only to-certain bankrupt proceedings is a strong inference that the lien claimed was waived, and that the mortgage-assigned was a first lien.

The judgment must be affirmed, with costs.

Freedman and Curtis, JJ., concurred.


source: Caselaw Access Project

author: By the Court.—Monell, Ch. J.

license: Public Domain

text:
    MARY C. PORTER, Executrix, &c. v. ELEAZER PARMLY.
    I, ATTORNEY and client.
    1. Agreement as to compensation—validity op.
    1. An agreement to pay a certain fixed sum is now valid;
    so also is
    an agreement making either any compensation, or the amount of it, contingent on success in the action.

      a. Duty of the court to recognize and enforce.

    1. It is its duty to recognize and enforce such agreements when there is no charge of great hardship, extortion, or fraud.
    2. Power op court on summary proceedings to compel payment BY ATTORNEY TO HIS CLIENT.
    1. The facts that the taxable costs now belong to the party, and that the attorney and client may now enter into agreements as to compensation, such as above stated, does not abridge or affect the power formerly exercised by the court.

      a. If the attorney claims under a specific agreement, and the client disputes the existence of the agreement, the court has power to try that question of fact, either on affidavits or the oral examination of witnesses before it, or through the medium of a reference.
    1. Such a disposition of the disputed question of fact does not conflict with the constitutional provision as to trials by jury.

    2. The exercise of the power does not depend on the insolvency of the attorney, nor on the question as to whether his retention of the money, or his claim thereto, is fraudulent or In had faith.
    Before Monell, Ch. J., and Freedman, J.

      Decided April 5, 1875.
    Appeal by plaintiff’s attorney, from an order made in a summary proceeding instituted by her against him.

      The motion at the special term was made by Mrs. Mary C. Porter, the plaintiff in the action, for an order requring Randolph W. Townsend, her attorney in the action, to pay to her certain moneys collected and received by him, as such attorney, upon the judgment recovered by her in the action, or to show cause why an attachment should not issue against him.
    The plaintiff in her affidavit alleged the retaining of Mr. Townsend as her attorney; the recovery of judgment in the action, and the receipt by him of the total amount thereof, namely thirty-one thousand nine hundred and sixty-three dollars and eighty one cents, and that thereupon he acknowledged satisfaction of the judgment.
    The amount received included some two thousand two hundred and fifty dollars taxed costs and extra allowances.
    Out of the sum recovered, Mr. Townsend paid the plaintiff the sum of sixteen thousand six hundred and eighty dollars and twenty-two cents, leaving a balance of fifteen thousand two hundred and eighty-three dollars and fifty-nine cents, to be accounted for by him. Out of this sum, the plaintiff in her moving papers, offered to allow to Mr. Townsend, for his costs and counsel fees, the sum of four thousand and seventy-four dollars and twenty-two cents.
    On the part of Mr. Townsend, he read the affidavit of Linson D. Fredericks, who stated that the action was originally brought by Giles W. Porter, and that he (Fredericks) was retained by James L. Porter, a son of plaintiff and acting as his agent, to act as the attorney of record. That said James L. Porter informed the deponent that his father would not advance any money or pay any costs or counsel fees in the prosecution of the action, should he be unsuccessful therein, and it was thereupon finally agreed between the said James L. Porter and the deponent, that if he, deponent, would prosecute the action and succeed in collecting any money therein, that the deponent should have and retain one-half of the amount so collected, together with all the costs awarded to the plaintiff; and if the deponent was unsuccessful in the action, he was not to be paid anything for his services. That said Fredericks employed Mr. .Dyett (Mr. Townsend’s partner) as counsel, informing him of the agreement with Porter. Subsequently, Mr. Fredericks agreed to pay to Mr. Dyett, for his services in the event of a recovery in the action, the sum of five thousand dollars, which agreement said James L. Porter assented to. It was thereupon agreed that said Dyett’s law firm should be substituted as attorneys of record in the action ; that said Fredericks should continue to aid in the prosecution of the action, and the taxable costs should be divided ; but his lien for compensation under said agreement should not be impaired or prejudiced by the substitution. James L. Porter was informed of this, and assented to the substitution.
    Mr. Townsend was thereupon substituted as the attorney of record.
    The existence of any such agreement as to compensation, as alleged by Mr. Townsend, was denied by the plaintiff:
    The original plaintiff, Giles W. Porter, having died, the action was continued in the name of his executrix.
    After Mr. Townsend had collected the judgment, Fredericks gave him notice, claiming a lien on the money, and forbidding his paying over the same. And subsequently Fredericks assigned to Mr. Townsend’s firm his claim against the plaintiff.
    Upon the return of the order to show cause, it was objected on the part of Mr. Townsend, that as he claimed compensation under the special agreement made with Fredericks, the claim under which had been assigned to him, the court could not entertain a summary application to compel the attorney to pay the money, and that the only remedy was by action.
    The court, however, overruled the objection, entertained the motion, and sent it to a referee to ascertain and report the value of the professional services rendered by Mr. Townsend and his law firm, in the action ; and also whether any and what agreement of any kind was made between Fredericks, and the original plaintiff, or James L. Porter, as his agent, as to the rate or amount of the compensation of said Fredericks for his services as plaintiff’s attorney in the action.
    Mr. Townsend objected to the reference, and also objected before the referee, claiming that he was entitled to a trial by jury of the disputed question of fact, but the objections were overruled.
    The referee found as a fact that no such agreement was made. And after ascertaining the value of the services of Mr. Townsend’s firm, the court made an order directing Mr. Townsend to pay the difference between such value, and the sum remaining in his hands, to the plaintiff. Mr. Townsend excepted to the report of the referee, and upon the motion to confirm it again, and further, objected that the court had no power to try the question upon a motion.
    Mr. Townsend appealed from the order.

      R. W. Townsend, appellant, in pro. per. and A. R. Dyett, with A. J. Vanderpoel, of counsel, urged on the questions discussed and decided by the court
    I.—Where as in this case the attorney’s claim to the money is made in good faith, the court has no such power or jurisdiction over him ; but the client’s only remedy is by action, and the attorney has an absolute right to a trial of his claim by a court and jury. hTo case exists in which the court on a summary application, before or since the code, ever claimed the power to pass on the question of the. amount of counsel fees. In the few cases where it has exercised such a power, it has done so without objection, and the question of the court’s power to do so was not raised. But the courts both in England, and America, on summary applications against the attorneys, have constantly ordered a reference to the clerk to tax their costs. This was the clerk’s duty. The attorney could not recover his costs without a taxation, and that taxation was conclusive as to items. And if there was a taxation the client could not dispute items before the jury (12 Johns. 315; 23 Wendell, 458). Consequently the client must show some defense to the entire bill of costs—e. g., negligence. The amount of the costs was not before the constitution referred to, or tried by a court and jury (Shepherd v. Steele, 43 N. Y. 52; 1 Sanford, 669, 569). The only questions they could try were the questions of retainer and that of negligence or some other defense to the whole bill. Ho such questions ever were tried by the court on any summary application against the attorney. But if the questions, which in this case were summarily tried, can be so tried, why may not the question of negligence which often is necessarily involved in the question of quantum meruit ? The code has made a radical change in the relation of attorney and client, as to amount and mode of compensation. The amounts fixed by the code for. costs are as between party and party alone. They afford no measure of compensation between attorney and client (1 E. D. Smith, 318; 11 Howard, 452; 16 Id. 160; 3 Sanford, 762; 1 Hilton, 498; 24 Howard, 521). They are not even, prima facie evidence thereof (same cases).
    The Court of Appeals has held ih:;r the effect of § 303 of the code, has been to remove all disabilities of attorneys to make special agreements for rate of compensation, whether in specific amounts or in a portion of the recovery, and that such agreements are valid and lawful, and will be enforced, and the attorney’s lien to their full extent enforced and respected (2 Sanford, 141; Forgarty v. Jordan, 2 Robt., 319, 325; Rooney b. 2nd Ay. R. R. Co., 18 N. Y. 368, 373; Fitch v. Gardner, 2 Keyes, 516); and that an agreement for a part of the recovery constitutes the attorney assignee pro tanto of the recovery, and gives him a lien which will be enforced ; and that the attorney is, therefore, in such case, liable under the statute for costs as a party in interest (Voorhis v. McCartney, 51 N. Y, 387). The attorney thus has a title to a portion of the judgment. “"It is his property.” By the Constitution of 1846, no person can be deprived of his property except by due process of law. This has always been held to mean a regular action according to the course of the common law. And by the same Constitution the right of trial by jury in cases in which it has been theretofore—(i. e. prior to 1846)—used, shall remain inviolate forever (3 Kernan, (13 N. Y.,) 378, 427, 450.) This refers to the nature and character of the question. It is of no consequence that the right or right of action has been created subsequently (Wood v. City of Brooklyn, 14 Barb., 425). 2 R. S. 537, § 19 directs that the court shall try the question of contempt on affidavits or other proof, but did the Legislature intend that such questions as were here tried should be tried wholly or even in part upon affidavits? But no contempt could be committed by the .appellant, unless his claim to be entitled to the amount which he did claim was fraudulent, made in bad faith and a mere pretense so as to amount to “ misbehavior in office ” or “ willful violation of duty” (2 R. S. 534, § 1; 3 R. S. 772, and authorities cited infra). Whenever the court has been asked to determine any question of fact between the attorney and client properly determinable in an action, tile court has uniformly refused to do so, whenever the objection has been taken (Balsbaugh v. Frazer, 7 Harris, 99; Longworth v. Hardy, 2 Disney, 75; And In re Paschall, 10 Wal
      lace 483; Barker’s case 49 N. H. 197, 198; Bryant’s case 24 Id., 154; Hodson v. Terral (1833), 2 Dowling Prac. Cases, 264; Beal v. Langstaff, 2 Wilson, 371; In the matter of Mavris, 2 Ad. & E.. 582; Dagby v. Kentish, 2 Barn. & Ad., 411; In re Lord, 2 Scott, 131; In re, Phillips, 3 Jurists, 470; Brazier v. Bryant, 2 Dowl, P. C., 600; Meigs v. Binns, 3 Scott, 52; Comberbach 2 (1724). In re Jones, 1 Chitty, 651; Merrifleld's Law of Att'ys, 92; Duncan v. Yancey, 1 McCord Rep., 149; Cullinford v. Warren, 8 Barn & Cress., 220; 6 Mod., 16; Pitt v. Yalden, 4 Burr, 2060; Barker v. Butler, 2 W. Blackstone, 780). By 2 R. S. 534, § 1, courts have power to punish as for contempt, attorneys guilty of “ misbehavior in office” and “ willful neglect or violation of duty.” This is merely declaratory of the common law, (3 R. S. 772; see also Bacon's Abridgment, title "Attorney," Bonder's ed. (1856), and note and cases cited; Meux v. Lloyd, 2 C. B. N. S. 409; Hyman v. Washington, 2 McCord, 493; Haight v. Holcomb, 16 How Pr., 173; Fox v. Fox, 24 How. Pr., 409; Kennedy v. Brown, 2 Am. Law. Reg. N. S. 357; Atkins v. The Eibre Dis. Co. 10 Am. Law. Rep. N. S. 399, 400; 1 Peere Williams, 223; 20 N. Y. 226). Prior therefore to the Constitution of 1846, there was no usage to try such questions in any way in England, nor, except the quantum meruit, in America, and there that question was tried by a court and jury. But all questions of a similar character were tried in both countries by a court and jury.
    II. But if such a disastrous power exists in the court and it can try the questions which it assumed to try in this case, it has no power to examine the parties or witneses orally (Meyer v. Lent, 7 Abb. 225); and can try such questions on affidavits only, unless it has power to refer them for trial; and it certainly has no such power. (1) The order of April 22, 1873, was not an order of reference under § 27 of the code. That applies to orclers of reference in an action on questions “not arising on the pleadings; ” i. e., not affecting the merits—e. g., upon ordinary practice motions to discharge orders of arrest, attachments, &c. Besides, § 271 applies to actions only (Code, § 8). This is a special proceeding {Id. §§ 2-8). (2) If this was a proceeding for contempt, the only authority which the court had was to order reference to take proof after interrogatories filed (2 Barb. Ch. Pr. 277). The court has no common-law power of reference. The authority to refer is entirely statutory, and where the authority does not exist the order of reference is void (People v. Brennan, 45 Barb. 345; 19 Wend. 21; Id. 108; 3 Daly, 105; Brink v. Republic Ins. Co., 2 Thomp. & Cook, 550; U. S. v. Rathbone, 2 Paine's C. C. R. 578, 583; Lee v. Tillotson, 24 Wend. 337; Turner v. Taylor, 2 Daly, 278, 282; Townsend v. Hendrick, 40 How. Pr. 148, 162, and by counsel arguendo, pages 150, 155; Evans v. Kalbfleisch, Ex'rs, 36 N. Y. Sup'r Ct. R. 450; Diedrich v. Richly, 19 Wend. 108, 110; Taylor v. Porter, 4 Hall, 140; Hough's Manual, Convention 1846, 67).

      Van Winkle, Candler & Jay, attorneys, and Edgar S. Van Winkle, of counsel, for respondent, in the points discussed and decided by the court, urged:
    I. Courts have always had the power to take summary proceedings against their attorneys and other officers for misconduct, violation of duty, extortion, undue influence, or any wrongful proceeding. Such powers were not destroyed or affected by any provision of the Constitution of the United States, or of the State of Hew York, and the course of summary proceedings used and acted on by the courts before and since the adoption of those constitutions, is embraced and covered by the term “due process of law” (Merrifield's Law of Attorneys, London, 1830, p. 90; Bevins v. Hulme, 15 Meeson & Wellsby Ex., 88; Cooley's Constitutional, 336;
      Ex parte Creswell, 5 Dowl. Pr. 689; Simes v. Gibbs, 6 Id. 310; In re Aitken, 4 B. & A. 47; Wilmerdings v. Fowler, 14 Abb., N. S. 249; Merritt v. Lambert, 10 Paige. 352; Wallis v. Lambert, 2 Denio, 607; Starr & Wallis v. Vanderheyden, 9 J. R. 253; Howell v. Ransom, 11 Paige, 538; Barbour and others v. Case, 12 How., 351; Lyon v. Gibbs, 6 Dow. P. C. 600; Draper Co. v. Davis, 2 Atk., 295). In Casborn v. Barsham (2 Bean. 76), the Master of the Rolls declares that “ when undue influence is to be inferred from the nature of the transaction, or where the transaction itself is contrary to the policy of the law, I apprehend it is the province of the court to determine the point, and that the question ought not to be sent to the jury.” But where the attorney is employed in a matter wholly unconnected with his professional character, the courts will not interfere in a summary way (Pulling's Law of Attorneys, 421).
    II. These powers are not affected or destroyed by the Code. “ The Code in extending the rights of attorneys, by allowing them to contract with their clients as to compensation beyond the allowances given by statute, did not relieve attorneys and their dealings with their clients from that healthful supervision which th.e courts ha,ve ever exercised. The reason for this supervision exists as strongly as ever. Whenever a contract between an attorney and his client enures greatly to the advantage and benefit of the attorney, the court will scrutinize it with great care. In such cases all presumptions are in favor of the client and against the propriety of the transaction, and the burden of proof is upon the attorney to show by extrinsic evidence that all was fair and just, and that his client acted understandingly and with a full knowledge of all the facts connected with the transaction or the subject-matter” (Haight v. Moore, 37 N. Y. Sup'r Ct., 161; 2 Chitty’s Gen. Practice, 338, 33; Tidd's Pr., 87 to 90, 478; 1 T. Chitty's Arch., 40, 41; In re Atkins, 4 Barn, and Ald., 47; In re Bonner, Id. 811; Casborn v. Basham, 2 Beav., 76).

    III.—These powers are not destroyed or affected in any way by any provision of the constitutions of the United States or of the State of New York. The only constitutional provisions that in the remotest degree bear on the case are :
    Art. Y. of the amendments to the constitution of the United States: “No person shall be deprived of life, liberty, or property, without due process of law.”
    Art. YII. of same: “ In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”
    Art. 1, § 1 of constitution of State of New York : “No member of this State shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the laws of the land or the judgment of his peers.”
    Art. 1, § 2.—“ The trial by jury in all cases in which it has been heretofore used, shall remain inviolate forever.”
    Art. 1, § 6.— “ No person shall be deprived of life, liberty or property, without due process of law.”
    Art. YII.—In the amendments to the Constitution of the United States the right of trial by jury applies only to the United States courts (Lee v. Tillotson, 24 Wend., 837). It does not apply to the separate States, but to the genera] government only (Jackson v. Wood, 2 Cow., 819, b; Livingston v. Mayor, &c., 8 Wend., 85).
    As to Art. Y. of the amendments to the United States Constitution, and § 6 of Art. 1 of the State Constitution, that no person shall be deprived of life, liberty, or property, without due process of law, it may be observed that due process of law is not confined to trial by jury, and probably does not refer to it, as that is provided for by itself; but it means any legal proceeding, or prescribed form, recognized as valid in its nature at the time the constitutional amendments were adopted (See Wynehamer v. People, 13 N. Y 378, 425; Taylor v. Porter, 4 Hill, 140; White v. White, 5 Barb. 474). Such summary proceedings as the common law recognized, and such as were authorized by statute, prior to the adoption of the bill of rights, may be regarded as due process of law (Rockwell v. Nearing, 35 N. Y. 302).
    Art. 1, § 2, of our State constitution only declares that the right of trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever, and does not affect cases in which such trial has not been heretofore used. The provision did not extend the right of trial by jury, any more that it restricted it. If, then, summary proceedings in cases between attorney and client, had been theretofore used, they'could still continue to be used. This word “ here tofore” in this clause of the constitution of‘1848, means before 1846, and can not to limit its meaning be carried back to 1777, and confined to the cases’which at that early period were triable by jury (Wynehamer v. People, 13 N. Y. 378, 427, 458).
    Subd. 3.—There is no force in defendant’s objection that the power of summary interference between attorney and client, is limited to cases in which the only question is as to adjustable costs, and does not apply to any other questions as to money between the parties. The agreement maybe the very and only thing complained of. The alleged agreement is the very thing the court must look to and inquire about. The great and beneficial power of summary proceedings in regard to transactions between attorney and client can not be nullified by the mere averment of an agreement. A large proportion of the cases in the books of summary proceedings against attorneys, are oases in which the attorney claimed to hold the moneys by an agreement. All contracts between attorney and client, relating to the subject-matter of the action, or the proceeds of it, are subject to the power of the court (Pulling’s Law of Attorney, 3d ed. 422; Howell v. Ramson, 11 Paige, 538; Hitchins v. Van Brunt, 5 Abb. Pr. N. S. 272).
    IV. Ho agreement will be upheld unless made out by the strongest proof. If there is any doubt on the evidence, the attorney can only recover for the value of his services, and not under the special agreement (Haight v. Moore, 37 N. Y. Sup’r Ct. 161; Sanderson v. Glass, 2 Atkyns, 297; Ward, v. Hartpole, H. of L. 3 Bligh, 488; Wells v. Middleton, 1 Cox Ch. Cas. 112; Goddard v. Carlisle, Exch., 9 Price, 169; Edwards v. Myrick, 2 Hare, 60; Brown v. Bulkley, 1 McCarter, 451; Evans v. Ellis, 5 Denio, 640; Carter v. Palmer, S Clark & F. 657, 706; Stockton v. Ford,. 11 How. U. S. 232 (page 247); Howell v. Ransom, 11 Paige, 538; Hitchins v. Van Brunt, 38 N. Y. 335; Brock v. Barnes, 40 Barb. 521; Ford v. Harrington, 16 N. Y. 285; Barrey v. Whitney, 3 Sand. 696; Brockerson v. Consalies, 26 How. 213; 1793, Hewman v. Paine, 2 Ves. 199; 1801, Gibson v. Jeyes, 6 Id. 266a). And unless the agreement be for a reasonable compensation it will only be security for such sum as is justly due (Sanderson v. Glass, 2 Atkyns, 295, 297; Newman v. Paine, 2 Vesey, 199; Mason v. Ring, 1 Edwards’ Ch. 278; Hesbit v. Lockman, 34 N. Y. 169; Howell v. Ransom, 11 Paige, 538; Brock v. Barnes, 40 Barb. 521; Merritt v. Lambert, 10 Paige, 352; Haight v. Moore, 37 N. Y. Sup’r Ct. 161; Walmsly v. Booth. Barb. Ch. 478; Drapers Co. v. Davis, 2 Atk. 295).
    V. Courts having this inherent power to proceed in a summary manner, and not depending for its. possession on any statutory power, on a case duly presented, can proceed to satisfy its conscience in any manner (not illegal) which the exercise of a sound discretion may suggest. It may direct a special issue, it may order a general trial by jury, it may refer it to a master or clerk of the court, or to a special referee (Ryan v. Farrell, 4 Dowl. Pr. 582; Ex parte Sharpe, 5 Bowl. Pr.; Starr v. Vanderheyden, 9 J. P. 253).
   By the Court.—Monell, Ch. J.

The only question we are asked to examine in this case, is as to the power of the court, upon a summary application to determine a disputed question of fact between an attorney and Ms client, as to the existence of a special agreement, fixing the rate of the former’s compensation for prosecuting an action.

It is conceded that if the power exists, the mode adopted in this case is without objection. Upon a motion, properly before the court, it may, to inform its conscience, direct a reference to take the proofs (Marshall v. Meech, 51 N. Y. 140).

No exception to the referee’s report is urged ; and Ms finding that no agreement fixing the attorney’s compensation existed, made it competent for him under the order, to ascertain the reasonable value; and his report, confirmed by the court, is conclusive.

• But the objection was taken at each successive step in the proceeding, that the court, upon a motion, could not try the disputed fact of the existence of the alleged special agreement. And it necessarily follows that, if the power does not exist, the order of reference and all the proceedings under it, as well as the order appealed from, was erroneous.

The power to proceed summarily to compel an attorney to pay over the money of his client, is not questioned in cases wdiere there is no dispute as to the rate or value of the attorney’s services, or where the rate is fixed by law, or the value can be determined upon a quantum, meruit. In such cases the court will ascer tain what is a suitable compensation, and direct the balance of the money in the hands of the attorney, to be paid to the client.

And those are the ordinary cases, where in England and this country, the courts proceed upon the principle that attorneys, being officers of the court, should be brought summarily within its authority, for any misconduct, violation of duty, or other wrongful proceeding towards bis client.

But it is claimed that the present case differs from those in which the court has usually entertained the proceeding, in this, that the attorney’s compensation was fixed by an agreement made between himself and his client, and that the existence of such agreement is in dispute.

That issue, it is insisted, the court can not try on a motion.

The validity of the agreement which formerly would have been void (Merritt v. Lambert, 10 Paige, 352), is now established by law.

The code (§ 303) provides that the measure of an attorney’s compensation may be the subject of an agreement between himself and his client; and such agreements, where there is no charge of great hardship, extortion or fraud (Barry v. Whitney, 3 Sandf. 696), it is the duty of the court to recognize and enforce.

There is no restriction as to the nature or extent of the agreement, and, therefore, as in this case, the amount of compensation maybe made contingent upon success in the action (Fitch v. Gardner, 2 Keyes, 516; Hitchings v. Van Brunt, 38 N. Y. 335).

The lien of an attorney which formerly was limited to his taxable costs and counsel fees, is now extended to any sum which may be agreed upon, as the measure of his compensation (Rooney v. Second Ave. R. R. Co. 18 N. Y. 368; Marshall v. Meech., ubi sup.).

The radical change in the law, by which the taxable costs, which formerly belonged to the attorney, are now given to the party, and the right now to fix by agreement the attorney’s compensation, it is insisted, presents the question of the power of the court over attorneys in a new aspect and relieves it of the force of those cases where the power has ordinarily been applied.

The measure of the attorney’s compensation in this case, he says, was fixed by agreement, and the agreement is denied by the plaintiff. Upon that issue the attorney must succeed, or probably fail entirely to recover any compensation whatever. For having alleged a special contract, it is at least doubtful, if having failed to establish it, he then can recover upon a quantum, meruit.

The only issue in this case is as to the special agreement. The attorney does not claim otherwise, and he insists he has the right of having that issue tried by a jury.

Under recent decisions (Townsend v. Hendricks, 40 How. Pr. 143; Kane v. Delano, 11 Abb. N. S. 29; Welsh v. Darrah, 52 N. Y. 590; Evans v Kalbfleisch, 36 Sup’r Ct. 450; Ross v. Combes, 37 Id. 289), an action which merely involves the existence of an agreement is not referable. The agreement, being established the attorney would be entitled to recover the stipulated sum, and no account, long or otherwise, would require to be examined. And such an action the parties have the right to insist should be tried by a jury.

The effect of the constitutional provision “ that the trial by jury in all cases, in which it has been heretofore used, shall remain inviolate” (Art. 1, § 2), was fally considered in Townsend v. Hendricks, supra, and in Kane v. Delano, supra, where it was held that the right of trial by jury continues in all common-law cases, to which there is but one exception, namely : an action on contract requiring the examination of a long account.

In an action by Mr. Townsend to recover his compensation, or in an action by the plaintiff to recover the money collected by the former, either party would have the right to insist that the.question in dispute should be submitted to a jury. If such agreement constituted the whole cause of action or defense, the court, under the cases cited, could not make a compulsory reference, but would be obliged to send it to a jury."

And that absolute right of trial by jury of a cause of action or defense, lies at the foundation of the objection in this case.

This is an initial proceeding as for a contempt in civil actions under the statute (2 R. S. 534), and it' the order requiring the payment of the money was lawfully made, the court can lawfully punish the attorney for his disobedience (Sub. 1 and § 20). But the statute-restricts the power to punish, to cases of disobedience of “any lawful order” made by the court, and does, not enlarge its common-law powers.

As yet, the attorney has not been adjudged in contempt. The order requiring him to pay has been suspended by the appeal, and he continues to make his objection which involves the “lawfulness” of the order. So that the statute furnishes no aid in determining the question of power in the court to make the order, for the disobedience of which it is sought under the statute to punish the attorney, but leaves the question to be determined upon reasons which are independent of the statute.

A motion to compel an attorney to pay over the money of his client is addressed to the equitable powers of the court (Sexton v. Wyckoff, 6 Paige, 182), and like other motions for cumulative relief, is made to the favor and conscience of the court (Ackerman v. Ackerman, 14 Abb. 229). And as equitable pow ersare discretionary powers, the court may or may not in its discretion, entertain the motion. But having entertained it, the appellate court will not- interfere with such discretion, unless there has been a palpable abuse. That is undoubtedly so, to the extent of the initial proceeding. So that, if upon the plaintiff’s affidavit the court was authorized, to make the order to show cause this court would not disturb the order. Upon her papers it appeared to be the ordinary case of a withholding of her money by her attorney. But when the issue was raised by the attorney upon the disputed fact of the existence of a special agreement, and he objected to the court’s farther entertaining the motion, claiming his right to have that question tried by a jury, it no longer remained, as he claims, a matter of discretion to proceed or not to proceed with the motion. For, if the attorney had such right of a jury trial, as is secured by the constitution, the court was without power to deprive him of it.

This absolute right of trial by jury in equitable action, of such issues as may now, under the blending of law and equity, be included in one action, is fully recognized by the court in several cases (Penn. Coal Co. v. Delaware &c. Canal Co., 3 .Abb. Ap. 470; Davis v. Morris, 36 N. Y, 563). But the right may be waived by not objecting (Barlow v. Scott, 24 N. Y., 40; West Point Iron. Co. v. Reymert, 45 Id., 703).

In Hudson v. Caryl (44 N. Y. 553), the action was to abate a nuisance and for damages, and it was objected that it was triable by a jury. The objection being overruled, it was tried by the court without a jury. On appeal the court recognized so much of the action as related to abating the nuisance as being of exclusive equitable cognizance, but as, under the code, a legal can be united with an equitable cause of action, the court held, that as the claim for damages could be united in the action, that issue should have been sub mitted to a jury.

In Colman v. Dixon (50 N. Y, 572), the action was to restrain the use of a trade-mark and for damages, and defendant applied for issues to be tried by a jury. This was denied on the ground, that the denial of the motion did not deprive the party of his right to a jury trial, if he had such right. At the trial he could move for such a.trial, and the refusal to grant the motion would be error, if the constitutional right existed.

The right, however, may be waived by failing to appear at the trial, or by omitting to object at the trial; but if the objection is taken, and the case is one in which a jury trial has been heretofore used, it must be so tried.

The constitutional provision is necessarily, I think, restricted to actions. The language is, the trial by jury “ in all cases” in which it has been heretofore used ; and I am not aware that at any time it was the. practice of the courts to send disputed questions of fact arising upon a motion to a jury for trial. Such questions were always determined by the court, or, under the authority of the statute, sent to are feiee to take and report the proofs (Code, § 271, Sub. 3). And even where the issue was such, that in an action the court could neither try or refer, it could do either when the question arose upon a motion.

As has already been said, motions are chiefly addressed to the equity side of the court; few are founded upon absolute right; and courts of equity have always when it saw fit, determined questions of fact without the aid of a jury. And its power to do so has not been disputed.

It can not, therefore, be said, that motions or any of the questions of fact arising upon motions, are “cases” in which the trial by jury was heretofore used; and, hence, they are not within the constitutional provision.

The power of the court was intended to be full, and very properly should be exercised in a summary manner. The performance of the various professional duties of an officer of the court' should be rigorously enforced, and by means adequate to the end to be accomplished. This is due not only to the rights and interests of clients, who have confided in the integrity and skill of their attorney, but it is also due to the dignity and well being of the profession, and to the respect for the orders and decisions of the bench, which the court has the right to insist upon and require.

It was in view of this duty, that the court has always proceeded in a summary manner against an attorney, who has neglected or refused to pay over his client’s money.

But, as has already been said, the cases (and they are not many) do not show that there was any such dispute or issue raised between the attorney and client, as is raised in this case.

I have examined the cases cited by the respondent’s counsel, and none of them involved a disputed question of fact arising upon the assertion of a special agreement. They either involved the character in which the attorney acted, or the value or rate of his compensation which could be ascertained by a mere taxation. They all assert the power of the court to deal summarily with its attorneys; but in none of them, was there an agreement alleged, which fixed and determined the measure of compensation. They were cases arising in the English courts, or in this State before the code, and could not, therefore, have involved a question under a contract, made valid by the code, which was invalid before. Thus in (Merrit v. Lambert, 10 Paige, 352), the special agreement set tip by the solicitor was held to be void, and therefore, presented no issue upon it. And a like decision" was made in Matter of Bleakley (5 Paige, 311).

As the law existed at the time those decisions were made, the court determined as matter of law, upon undisputed facts, that the alleged agreements could not be sanctioned by the court, as they tended to champerty and maintenance.

Those cases therefore do not reach the question before us, where, if the agreement is proven, it must be sanctioned by the court; and where the vital question is, Does such an agreement exist ?

The ground upon which the court placed its decision in Ackerman v. Ackerman (ubisup.), was that the power which the court exercises in the matter of an attorney’s lien is an equitable one, in which the aid of a jury is not necessary and can not be demanded as a matter of right. In that case, however, it did not appear that any special agreement respecting the attorney’s compensation was alleged, or that the objection was taken to the matter being tried by the coart. But upon the general power of the court to entertain the motion, the decision is explicit, as well as that there is no right of trial by jury.

In two English cases the court refused to try on a motion of this nature, a disputed question of fact. In Hudson v. Terrall (2 Dowl. O. S. 264), the motion was for the attorney to show cause why he should not pay over Ms client’s money, and the client averred that he had a special agreement with the attorney fixing Ms compensation. This the attorney denied, and the court (Bayley B.) say : “I think we can not interfere. You must go before a jury who will be competent to decide whether there was such an agreement.” In the other case (Beal v. Langstaff, 2 Wils. 371), the motion was to require an attorney to perform a parol promise to indemnify bail, and the court say: “ This is only a breach of a parol promise, and we can not interfere in a summary way.”

One or two cases in this State indicate opinions which are claimed to be favorable to the objection of the attorney in this case.

The power of the court (which, however, is firmly upheld) it is claimed is qualified in Bowling Green Sav. Bank v. Todd (52 N. Y. 489), and must be deemed to be limited by the decision, to matters as to which there is no dispute as to the facts. The court say (p. 493) “ the practice in this State has been uniform to allow au attachment when the attorney retains money in his hands that justly belongs to his client.” But there the court determined, as a matter of law, upon undisputed facts, as in Merritt v. Lambert. (ubi sup.), that the lien which the attorney claimed did not exist. And now the converse is claimed, that if the facts had been in dispute, the court would not have entertained the motion.

In Haight v. Holcomb (16 How. Pr., 173) the defendant moved to set aside an execution on the ground that the judgment was settled. The execution was issued by the attorney for his costs. In the course of the opinion the court say: “ Should there be a dispute between the attorney and his client, as to what the agreement was, and to what amount it extended, I know of no short remedy to which an attorney is entitled, by which to avoid settling that dispute in the usual way, and by the usual tribunals.”

And in Fox v. Fox (24 How. Pr. 409) the motion was to compel the plaintiff to pay his attorney and counsel, and a special promise was alleged (but which was denied), under which the services were rendered. And it was objected that the court could not, upon a motion, determine the question. The court.say: “If there be no short way of accomplishing this, there remains the usual way by direct action for that purpose. Indeed this seems to me the true mode of proceeding, .when there is a dispute as to what the contract is, or in regard to the amount which the attorney is' entitled to demand under it, and also where the amount of compensation is by express agreement made to depend on the value of the services, and is unliquidated.’’

None of these cases, however, assert an absolute right of trial by jury. Sitting as a. court in the exercise of its equity powers, it had the right to refuse to enter tain the motion, and to put the applicant to his action, when the disputed question could be determined by a jury. In. the same manner, a court of equity may try any question of fact arising in an equity action ; or it may upon motion and framed issues send it to a jury. And J do not understand any of the cases as deciding otherwise than that it rests in the sound discretion of the court, whether it will entertain a motion of this nature, where a question is at issue, which it is claimed by one or both of the parties, should be tried by a jury. And that is the extent of the meaning of the judges in the cases I have cited. In their judgment they were proper cases for a jury. And the judge who decided this case at special term, could have said the same, and sent the plaintiff to her action, and a jury. And such disposition of the matter would not have been disturbed.

But it does not follow, from any of the cases, and no such opinion is intimated, that there was any such right of a jury trial, as would deprive the court of its jurisdiction to entertain the motion.

The power which a court has over its officers is to prevent them from, or punish them for committing acts of dishonesty or impropriety, calculated to bring contempt upon the administration of justice (In re Paschal, 10 Wall, 483). In that case the court say, the ground of the jurisdiction thus exercised is the alleged misconduct of the officer. The question is not merely whether the attorney has received the money, but whether he has acted improperly and dishonestly, in not-paying it over. “If no dishonesty appears, the party will be left to his action.” The motion, as in this case, was to compel the attorney to pay over the money, and the attorney set up his lien for compensation. In denying the motion, Justice Bradley placed the decision upon, the ground that the attorney had the right to retain the money, if he had a fair and honest set-off; and that in retaining the money for the' purpose of procuring a settlement of his claim, he had done nothing to call for the summary interposition of the court.

. In that case, however, the power to entertain these motions is again fully recognized. But the court, in the exercise of its equity powers, admitting the justice of the attorney’s claim, refused to try the question of his lien, on the motion, and put the party to his action. Hot, however, as a matter of right, but as being a proper mode of determining the dispute in that case. '

The whole question resolves itself into this : First, can the court exercise summary authority over its attorneys, to compel them to pay over the money of their clients ? And, Second, can it, upon the motion, try any disputed question of fact, arising between an attorney and his client %

The first is determined by the large and uniform practice of the courts. And the second, by the consideration of the single question, whether it is a ease in which the trial by jury was heretofore used ?

The answers to these questions are adverse to the objection in this case.

The motion was addressed to the judicial discretion of the court below. We can not say, if we were now entertaining the motion and not reviewing the order, that we should not have felt constrained to have sent the plaintiff to her action, that the facts might go before a jury. But a mere, difference of views on that subject is not ground for reversal of the order made.

There has been no abuse of discretionary power.

Although the statute, under which this proceeding

is had, is designed to punish attorneys for any misbehavior in office, or willful neglect or violation of duty, or disobedience of the process or lawful order of the court,—rand the punishment may be a fine or imprisonment or both, as the nature of the case may require and although the severity with which the courts may deal with its officers, to punish them for the offenses enumerated in the statute, which is not restricted to a fine and imprisonment only, but may also be by removal from office (Matter of Bleakly, 5 Paige, 311), requires that all the constitutional rights of an attorney should be carefully guarded and protected ;—and although such, protection in due to him, not only nor so much, that his personal liberty may be imperiled, as that the charge involves his personal integrity and "honor, and is calculated to deprive him of his clients, of the respect of his associates, and of the confidence of the court; yet the mode adopted upon this motion was not calculated to jeopard any of such legal rights, but was probably a more satisfactory manner of settling his differences with his client, than it would have been to have sent the case before a jury, whilst it also afforded him every reasonable protection against the penalties which the statute was intended to inflict.

If in answer to the claim of the dienta defense was interposed which if sustained would justify the attorney in withholding his client’s money, the court, until his claim upon it. has been properly investigated and determined, would not invoke the power of the statute. And if, upon such investigation, the claim was found to be just, the court will protect the attorney and exempt him from the penalties of the statute.

The question is new, necessarily new, from the novel provision of the code which allows of an agreement to fix the measure of an attorney’s compensation, and which may be at an agreed sum, or contingent upon success.

In the cases where the courts have proceeded summarily, the defense tó the motion"!)as been held insufficient in law, and the fact presented in this case has not arisen. There being no question in dispute, no constitutional right or otherwise of the attorney was violated in entertaining and determining the motion at special term.

But in this case, the constitutional right to have the fact which is alleged in answer to the plaintiff’s application determined by a jury, is sufficiently and properly raised.

But, for the reasons stated, it is not well taken.

There is no allegation or charge anywhere in the papers, which impugns the integrity, professional conduct, or skill of the plaintiff’s attorney and counsel. His claim to compensation is one recognized by law, and he was justified in withholding the money collected on the judgment, until his claim to compensation was allowed by his client, or disallowed by the courts. Ami the only question that has entered into the controversy, has been, as to the mode of trying the question.

The order appealed from must be affirmed, with costs.

Freedman, J., concurred.


author: By the Court.—Freedman, J.

text:
    GEORGE M. CHAPMAN, Plaintiff and Respondent, v. JAMES O’BRIEN, Sheriff, ALEXANDER DOUGLAS, JACOB SEEBACHER, JOHN GRAHAM, and CHARLES A. JENKINS, Defendants and Appellants.
    I. EXECUTION AGAINST PROPERTY.
    1. Bond of indemnity—special condition—what sufficient proof to make a prima facie case against sureties under.
    1. Special clause.

      a. The bond recited the recovery of a certain judgment, and the issue of an execution thereon to the sheriff against the property of the judgment debtor, and then further recited, “Whereas certain personal property that appears to belong to the said judgment debtor against whom said execution has been issued, as aforesaid, is claimed'by some other party or parties,” and was conditioned to save the sheriff, and all persons aiding him from al! harm, &e., that might arise, &c., against him or them, “ as well for the levying, attaching, and making sale under and by a virtue of such execution of all or any personal properly which he or they shall or may judge to belong to said judgment debtor, as in entering any shop, store, building, or other premises for the taking of an such personal property.”
    2. Evidence, what establishes a prima facie case against the sureties under such a clause.

      a. Where the answer of the sureties, after a general denial, in a separate affirmative defense claims that the property for the taking of which the action is brought was the same property which was levied on under an execution issued in a certain described action, the description of which is the same as the description contained in the bond of the action therein referred to, and further claims that such property belonged to the judgment debtor in the judgment described in the answer; and the efforts of all the defendants (being the sureties, the sheriff, and the deputy, who made the levy) arc directed at the trial to elicit and establish the facts that the property in question was the ■ in the possession of, and used by the judgment debtor; that it apparently belonged to him; that he had really a levible interest therein, and that it was rightfully levied on;

      a prima facie case is presented,
    that the sheriff had not only levied on the property claimed by the plaintiff, hat that he had judged that it belonged to the judgment debtor, and,
    1. A motion by the sureties to dismiss the complaint was properly denied.

      a. If at the conclusion of the whole testimony, a doubt remained whether the levy was within the authority conferred by the bond, the jury should be directed to determine the fact.

    n. NEWLY DISCOVERED EVIDENCE.
    1. Motion for new trial on ground of denied, although the
    MOVING PAPERS SHOW A PRIMA CASE.

      a. When the case made by them is to a great extent neutralized by opposing affidavits, and the credibility of the affiants for the moving party is materially impaired by retractions, explanations, and qualifications, made by some of them in subsequent affidavits, in which they also stated the manner in, and inducements under, which these prior affidavits had been procured, and other suspicious circumstances appeared, such as that several of the affiants could not be found at the places of residence given by them; that one denied that he had signed or sworn to any affidavit; that another had admitted that the affidavit made by him was untrue, and had been made for a money consideration; that the moving party had paid out considerable money, and had agreed with one of the affiants to pay him a large sum for the discovery and procurance of testimony sufficient to obtain a new trial,

      the motion should be -denied.

    Before Monell, Cli. J., and Freedman, J.

      Decided April 5th, 1875.
    The plaintiff complained as follows : “ That heretofore and at the several times hereinafter mentioned, he was in possession of the premises, in the city of New York, being the third and fourth lofts of factory, on the north side of West Thirty-third street, between Tenth and Eleventh avenues ; that on or about the 5th day of February, 1868, the defendants broke and entered into and upon the said premises, and committed divers injuries to said premises and the personal property therein, and took and converted to their own use divers articles, consisting of machinery, furniture, and fixtures, then and there being the property of the plaintiff, of the value of about thirty thousand dollars ; all of which is to the damage of the plaintiff the sum of thirty thousand dollars; for which said sum, with interest thereon from the 5th day of February, 1868, the plaintiff demands judgment.”
    The defendants’ answers contained, in effect, a general denial and a justification of the taking of the property by the defendant, James O’Brien, as sheriff, and the defendant, Jacob Seebacher, as deputy-sheriff, under executions against the property of one William R. Ellis, a judgment debtor, in favor of the defendant, Alexander Douglas.
    The defendants O’Brien and Seebacher further alleged :
    (1) That under and by virtue of said executions they, as sheriff and deputy-sheriff respectively, forthwith, upon the receipt of the same made a formal levy upon certain furniture, machinery, and fixtures of the character and description of those mentioned and described in the complaint, and took the same into their custody, which they believe to be the same personal property referred to in the complaint.
    (2) That the said levying upon and taking possession of said personal property, was merely formal, and said property was not removed, nor in any way disturbed, and that after having nominal possession of the same for two days only, they having made a levy upon other property of said William R. Ellis, of sufficient amount to satisfy the executions and precept aforesaid, before the commencement of this action returned said furniture, machinery and fixtures to the possession of the parties from whom the same were taken, in like good order and condition, in every respect, in which the same were received; and that the said levy, and taking, and detention, as aforesaid, constitute the supposed wrongful taking and conversion in the complaint alleged.
    At' the trial the plaintiff had a verdict for seven thousand one hundred dollars.
    Defendants’ counsel moved for a new trial upon the judge’s minutes, which motion was denied, andan order was entered to that effect.
    Subsequently the defendants moved, on a case and exceptions and on affidavits, at a special term of the court, for a new trial on the ground of newly discovered evidence. This motion was also denied.
    The defendants appealed from the judgment, and the two orders denying the motions for a new trial.

      Brown, Hall, and Vanderpoel, attorneys, for appellants O’Brien and Seebacher.

      R. C. Elliot, attorney, and of counsel for appellants Douglas, Graham, and Jenkins, urged:
    I. The simple giving of a bond of indemnity to the sheriff, it is submitted, is not enough to justify a recovery against the judgment creditor in the execution and the sureties, unsupported by any evidence showing the giving of the bond for the purpose of seizing the property in question, or any direction to the sheriff to levy upon the property. Not a particle of evidence had been given connecting these defendants with the alleged levy at the time said motion was made, neither was any presented afterwards. The sheriff having been directed to levy upon the property of Ellis in the second floor, the sewing machines, &c., which this plaintiff claimed, and the bond having been called for and given to indemnify the sheriff in seizing that property ; he is neither indemnified nor authorized, nor directed by anything in the bond to seize property on the third floor—property that never appeared to belong to the judgment debtor Ellis—property that the judgment creditor and his sureties knew nothing about. And the sureties are not liable for his act in so doing. If they are liable for this act of the sheriff, by reason of a wrongful levy upon the next floor, so would they be for a levy in the next building or the next block. The authorities in relation to this question are not numerous (Davis v. Newkirk, 5 Den. 92; Averill v. Williams, 1 Den. 501; Same Case, 4 Den. 295; Allen v. Crary, 10 Wend. 349; Stewart v. Wells, 6 Barb. 79: Fonda v. Van Horne, 15 Wend. 631; Herrick v. Hoppock, 15 N. Y. 413; Ball v. Loomis, 29 N. Y. 412; Ford v. Williams, 13 N. Y. 579; Chapman v. Douglas, 15 Abb. Pr. N. S. 421; Griffiths v. Hardenburgh, 41 N. Y. 464). In ail the cases either the bond of indemnity was given to seize particular property as in Davis v. Newkirk, or the plaintiffs below directed the levy, as in Allen v. Crary, and the parties are responsible only so far as they may have directed or assented to the doing of the act complained of (Chapman v. Douglas, 15 Abb. P. N. S. 428).

      Erastus New, attorney, and of counsel for respondent, urged
    I. It is too late for defendants to object that the evidence was insufficient to sustain the verdict, no such objection having been made at the trial. They took the chance of a verdict in their favor, and now they ought to be bound by the result (Rowe v. Stevens, 34 N. Y. Sap'r Ct. 437; 45 N. Y. 632).
    II. The defendants, Douglas, Graham and Jenkins, were liable for the acts of the sheriff, by reason of their having executed and delivered to him on January 29th, 1868, the undertaking in question. This authorized and directed the sheriff to levy on any property he might “judge” belonged to Ellis. O'Brien and Seebacher, in their answers, allege that the property levied on belonged to Ellis, and the defendants who signed the undertaking, in their answer also allege that the property levied on under the executions, “ being the same property mentioned and referred to in the complaint,” belonged to said Ellis. It is clear from this that the sheriff was acting within the provisions of said undertaking, and that the property levied on, was by him “judged” to belong to Ellis. The parties to the undertaking being liable to the sheriff for his acts in making said levy, are also liable to the plaintiff for the acts of the sheriff (Herring v. Hoppock, 15 N. Y., 409; Ball v. Loomis, 29 N. Y., 413; Davis v. Newkirk, 5 Denio, 92). In Davis v. Newkirk, Beardsley, Ch. J., says : “All who direct, request or advise an act to be done which is wrongful, are themselves wrongdoers, and responsible for all damages.” In Chapman v. Douglas, (15 Abb. Pr. N. S., 421), the sheriff levied upon a safe, and carried away also a quantity of silk, in said safe at the time, the plaintiff refusing to unlock said safe and remove said silk. The sureties were held liable for the act of the sheriff in taking the safe, but not for his act in taking the silk, because the sheriff did not pretend to levy on said silk, nor did he judge that it belonged to the judgment debtor. In the present case, the sheriff did levy on the property of plaintiff, and did judge that it belonged, to Ellis.
    III. The pretended newly discovered evidence is cumulative within the rule, as laid down in Brisbane v. Adams, 1 Sandf., 195; Leavy v. Roberts, 8 Abb. Pr., 310; Tripler v. Ehehalt, 5 Rob., 609; Sheldon v. Stryker, 27 How., 387; Ritter v. Phillips, 34 N. Y. Sup’r Ct, 290; Peck v. Hiller, 30 Barb., 659; 45 Id., 201.
    IV. The affidavits of the defendants are so folly contradicted, corrected, and explained by the counter affidavits of the plaintiff as to be unreliable, and insufficient to warrant a new trial. The evidence is not such as would be likely to influence a verdict (Darbee v. Elwood 3 How., 599).
   By the Court.—Freedman, J.

The exceptions taken during the trial, relate to the admissibility of the indemnity bond given by the defendants, Douglas, Graham, and Jenkins, to the sheriff, and to their liability thereon, for the sheriff’s acts. The bond contained an obligation in the sum of one thousand dollars, and it recited the recovery by Douglas, of a judgment against William R. Ellis ; that an execution had been issued thereon, and had been directed and delivered to the sheriff; and that certain personal property which appeared to belong to the said judgment debtor, was claimed by some other party or parties. The condition of the obligation was then stated to be such, “that if ; the above bounden obligors shall well and truly save, keep and bear harmless, and indemnify the said James O’Brien, and all and every person and persons aiding and assisting him in the premises, of and from all harm, let, trouble, damage, liability, costs, counsel fees, expenses, suits, actions, judgments, special proceedings, and executions, that shall or may at anytime arise, come, accrue or happen to be brought against him, them, or .any of them, as well for the levying, attaching and making sale under and by virtue of such execution of all or any personal property which he or they shall or may judge to belong to the said judgment debtor, as' in entering any shop, store, building, or other premises, for the taking of any such personal property, then this obligation to be void, else to remain in full force and virtue.”

This bond authorized the sheriff, and all persons acting under him to levy on any property which he or they might judge belonged to Ellis. It was therefore clearly admissible against the parties who had executed it.

As to their liability thereon, it appeared from their answer, that they claimed that the property levied on under the execution, was the same property which was mentioned, and referred to, in the complaint, and that the same belonged to Ellis. The answers of O’Brien and Seebacher also contained an allegation that the property levied on belonged to Ellis. At the trial, the efforts of all the defendants were directed to elicit and to establish the fact that the property in question was in the possession of and used by Ellis ; that it apparently belonged to him ; that he had really a leviable interest therein ; and that it was rightfully levied upon. A prima facie case was thus presented, that the sheriff had not only levied on the property claimed by the plaintiff, but that he had judged that it belonged to Ellis. Under these circumstances, the refusal to dismiss the complaint as against the defendants, Douglas, Graham, and Jenkins, was not error. If at the conclusion of the whole case there remained a doubt as to whether, in making the levy, the sheriff did not exceed the discretion or authority conferred upon him by the bond as to the particular property levied upon, or any part thereof, the court should have been requested to-submit such question to the jury as a question of fact,. But no such request was made.

The defendants also failed to move for the direction of a verdict, and to except to the charge. Under these circumstances, and there being sufficient evidence to sustain the verdict, the motion for a new trial on the minutes was properly denied. On looking over the testimony, no sufficient reason can be discovered why such ruling should be disturbed. All the questions of fact involved in'the case, the ownership of the property, the levy of the sheriff, and the extent of his interference with the property, the release of the levy, the return of the possession of the property, and plaintiff’s acceptance, and the amount Of damages sustained by the plaintiff, were fully and fairly submitted to the jury upon testimony more or less conflicting, and under a charge with which all the defendants were so well satisfied that none of them excepted to it, or any part thereof. The defendants are not entitled, therefore, to have the verdict set aside as being against the weight of the evidence given upon the trial.

The defendants further insist that notwithstanding these matters their motion for a new trial on a case should have prevailed, and that a hew trial should have been granted as a favor on the ground of newly discovered evidence. This evidence is by far too voluminous to be satisfactorily adverted to in detail. It is claimed that it establishes that the plaintiff exercised care and control of and over the looms and property in the third and fourth floor of the factory; that he claimed to be the owner of, and endeavored to sell, the same a long time after his alleged abandonment of the property to the sheriff. If its general effect were to be taken as claimed, the evidence would have been material on the trial, for it would have greatly strengthened the theory of the defense that, though originally there may have been a technical abandonment of the property to the sheriff, the levy was in turn abandoned by the sheriff, and that the plaintiff, after notice of such fact, resumed possession and control. In this aspect the evidence is perhaps not cumulative within the rule, and as it can not be said that the defendants were bound to anticipate plaintiff’s denial of the receipt of notice of the abandonment of the levy, and that they should have been prepared'with proof to strengthen their case on that point, a new trial should have been granted on terms, if, upon the case as made on both sides, the general effect of the alleged newly discovered evidence had been left as the defendants intended it should appear, and the evidence had. remained free from suspicion. But its effect was to a great extent neutralized by opposing affidavits, from which it plainly appeared that the alleged control of and interference with the property related not to the property levied upon, but to certain looms owned by Ellis, which, after Ellis’s death, the plaintiff had taken charge of as administrator. The credibility of the remainder of the evidence was materially impaired by the retractions, explanations, and qualifications, which some of the affiants subsequently made in favor of the plaintiff, and by the account which they gave of the manner in, and the inducements under, which their affidavits had been procured. Besides this there were other highly suspicious circumstances. It was positively shown that several of the so-called newly discovered witnesses could not be found at the places of residence given by them in their several affidavits ; another denied that he had signed or sworn to the affidavit which purported to have been made by Mm; and of still another it was proven, without contradiction, that he had admitted that the affidavit made by him for the defendants was untrue, and had been made for a money consideration. It was also made to appear that the defendants had not only paid out considerable sums, but that they had agreed with one of these witnesses to pay him as much as six hundred dollars for the discovery and procurement of testimony sufficient to obtain a new trial.

Under these circumstances the affidavits produced on both sides did not present a case for a new trial within the established practice of the courts, and the motion was properly denied.

The judgment and the two orders appealed from should be severally affirmed, with costs.

Monelb, Ch. J., concurred.