text:
    J. WATTS DE PEYSTER, Plaintiff, v. JOHN MURPHY, Defendant.
    CITY ASSESSMENTS FOR STREET IMPROYENETS.

      When deemed to he confirmed and, to become a lien upon the property included therein ?■

    No such assessment shall be deemed to be fully confirmed, so as to be due, and be a lien upon the property included in it, until the title thereof, with the date of confirmation, shall have been entered, with the date of such entry, in a record of the titles of assessments, kept in the office of the street commissioner, and also until the title of said assessment shall have been entered with the date of confirmation, and of said entry, in a record of the titles of assessments confirmed, kept in the office of the clerk of arrears (Laws of 1853, 1065, § 6; Laws of 1871, 741, § 1).
    Assessments for street improvements in the city of New York, are not only a personal liability against the owner of the lands included therein, but are also a lien, or charge upon such lands (3 Bev. Laws of 1813, 407, § 175).
    By subsequent statutes this lien becomes fixed as an incumbrance, in the nature of a mortgage upon said lands, from the time of its entry or record in certain designated offices.

      The officers clothed with authority to collect these assessments in Hew York city, are not required to demand, and seek to collect the assessment of the owners of such lands, although such owner is primarily bound and legally liable to pay the same.
    Resort may be had primarily to either the land or to the owner thereof; but when the land is resorted to, and the lien or incumbrance created, in the first instance, such action necessarily extinguishes the personal liability of the owner of said land.
    In the case at bar, the premises were sold and conveyed on December 5, 1870, by plaintiff to defendant, the plaintiff covenanting that the premises were at the time of the conveyance free, clear, and discharged and unincumbered of all taxes, assessments, and incumbrances. The assessment in question was duly entered, and became a lien upon the premises, December 24, 1870. After the assessment was so entered, the plaintiff paid the same, subject to the agreement of the defendant that he would return the money if the plaintiff was not legally liable to pay the same, and this suit was brought to recover the money so paid.
    Held, by the court, That plaintiff was not liable to pay this assessment. The cases of Downey v. Mayor, &c., 54 N. Y. 186; Rundell v. Lakey, 40 Id. 513; Cranston v. Mason (Hon. Charles P. Kirkland, referee, case not reported), and also the several statutes relating to the subject-matter, reviewed by the court.
    Before Monell, Ch. J., and Curtis and Speir, JJ.

      Decided May 3, 1875.
    Verdict taken subject to the opinion of the general term.
    The action was to recover the amount of an assessment for a street pavement.
    The plaintiff, the owner of a lot of land on Thirty-seventh-street, in this city, made an agreement with the defendant, on November 3, 1870, to sell and convey it to him.

      The contract provided that the deed should be delivered on December 5, and that it should be a proper deed for conveying the fee simple, ‘‘free from all incumbrance,” and should contain a general warrantee, and the usual full covenants.
    The deed was delivered on the day specified in the contract. It contained a covenant on the part of the plaintiff (grantor) that the premises ‘‘now are free, clear, discharged, and unincumbered of all taxes, assessments, and incumbrances.”
    Subsequently there was found to be an assessment upon the lot, and the parties made the following agreement :
    “ In the matter of the purchase by John Murphy from J. Watts de Peyster, of the two lots southwest corner Broadway and thirty-seventh-street: It is hereby agreed that General de Peyster shall pay the assessment of §830 jSgV for Nicholson Pavement on Thirty-seventh-street, returned against this property; that such payment shall not affect the question of his. liability to pay the same ; that such liability may be legally determined ; and that if it shall be established that General de Peyster is not liable, Mr. Murphy shall return to him the amount with interest.”
    It was shown on the trial, that from April 1,1870, to December 5, 1870, the plaintiff was out. of the city of New York. That during the interval he did not see the premises, that they were in charge of a Mr. Woods, that the sale to the defendant was effected through brokers, and consummated by Woods.
    The assessment list for paving Thirty-seventh-street, contained the ordinance of the common council, and the time of its adoption.
    The work was finished prior to May 3, 1870. The assessment apportioning the expenses upon the property benefited, was made by the assessors prior to August 15, 1870 (that being the date of their certificate), it was entered in. the office of the board of assessors, on November 21, 1870, and confirmed by the board of revision and correction of assessments, on November 7, 1870.
    The title of the assessment was entered in the Title Book of Assessments, in the Bureau of Arrears, on December 24, 1870. The entry in the book of the record of the title of assessments (kept in the street commissioner’s office and in the office of the clerk of arrears) shows the same date.
    The court directed a verdict for the plaintiff, subject to the opinion of.the court at general term.

      Charles E. Crowell, for plaintiff, argued:
    I. That the assessment in question, for the amount of which this action was brought, was not fully confirmed, and a lien upon the premises, until the entry of the assessment was made in the Title Book of Assessments in the Bureau of Arrears, to wit, December 24, 1870 (Laws of 1853, p. 579, ch. 1065). Section 6 is as follows : “No assessment for any improvement shall hereafter be deemed to be fully confirmed, so as to be due, and be a lien upon the property included in it, until the title thereof, with the date of confirmation, shall have been entered, with the date of such entry, in a record of the titles of assessments, to be kept in the street commissioner’s office, and which may be used as an index to a record of assessments ; and until the title of the said assessment shall have been also entered, with the date of confirmation, and the date of such entry, in a record of the titles of assessments confirmed, to be kept in the office of the clerk of arrears ” (See also Hoff. Laws City N. Y. 600, 602). (a) The intention of the legislature that an assessment shall not become a lien in real estate until entered in the bureau of arrears, is again shown in Laws of 1871, p. 741, ch. 381. Second half of section 1 reads as follows: “No assessment for any city improvement shall be deemed to be fully confirmed, so as to be due, and be a lien upon the property included in the assessment, until the title thereof, with the date of confirmation by the supreme court, or by the board of revision and correction of assessments, as the case may be, shall be entered, with the date of such entry, in a record of the titles of assessment confirmed, to be kept in the office of the bureau of the clerk of arrears” (see Dowdney v. Mayor, 54 N. Y. 186).
    II. Taxes and assessments are not liens upon real estate until made so by act of legislature. 3 Dillon on Muni. Corp. 573, says: “It is undoubtedly a sound proposition, that taxes, whether general or special, are not liens upon the property against which .they are assessed; unless made so by the charter, or unless the corporation is authorized by the legislature to declare them to be liens” (38 Pa. St. 339-471; 41 Id. 60; 6 Md. 71; 3 Gill, 445; 1 Hoff. Laws of N. Y, 554, 603). “The clerk of arrears shall keep a record of the title of assessments confirmed, with the date of confirmation and date of entry, as the same may be returned to him by the street commissioners” (Rev. Corp. Ord, of N. Y. 1859, § 78).
    III. This is a strict question of law and not of equity. The cases cited by defendant are all based upon principles of equity, and are not in point, or ca n not be taken as authority here. In Kern v. Towsley (45 Barb. 150), case cited by defendant, Johhsoh, J., says : “ Looking at all the provisions of the contract, there can be. no doubt that the parties contemplated and intended the tax for that year, which was in progress of being made and completed.” In case of Rundell v. Lakey (40 N. Y. 513), case cited by defendant, Lott, J., was for reversal, on the ground that the tax was no lien until levied by the supervisors, which was after the conveyance. Woodruff, .J., did not vote. (Decision in 8 Paige, 337). Decision was based entirely on equitable grounds ; mistake of fact, and misled by terms of sale, in that the assessment had been paid, and parties bid for property accordingly. It would be absurd to hold that an assessment becomes a lien or incumbrance as soon as the last stroke of work was done. What security is there in searching titles, if there is no decided law on the subject?

    IV. The case of Dowdney v. Mayor, &c., is similar, and authority in this action (54 N. Y. 186). It is claimed by the respondents, and, I think, correctly, that the assessment in question was not a lien or incumbrance within the meaning of the covenant against charges, taxes, assessments, and incumbrances in the deed executed by them to the grantors of the plaintiff on June 15, 1866, because it had not then been confirmed. No tax or assessment can exist until the amount thereof is ascertained or determined (Kern v. Towsley, 45 Barb. 150; Post v. Leet, 8 Paige, 337). And the Law of 1853 (ch. 579, § 6) requires that in the city of New York, assessments shall be entered as therein provided, before they become liens. This was not done, &c. All concur with Lott, Ch. C.
    V. (a) The contract should 'have provided for the assessment; it provided for everything else. (5) The defendant does not show that he' took into consideration the pavement in question when he purchased the premises, or that plaintiff obtained an enhanced price for the same, (c) The assessment is imposed upon the land and not the person; and, when legally imposed, the plaintiff did not own the premises, (d) Statute should be construed as of paramount authority, (e) Why did not the defendant speak about pavement when the contract was entered into 1 (/) An assessment can no sooner become a lien or incumbrance until the act of the legislature is complied with, than a judgment can be made a lien before it is docketed.

      John E. Parsons, for defendant, argued:
    I. The pavement was completed on May 3, J 870. The contract was not made until the following November. The plaintiff thus got the benefit of the paving in the enhanced value of his property. Parties to a contract are presumed to bargain with reference to the situation of the premises. The defendant determined what price he would give for the premises, in view of the fact that Thirty-seventh Street was paved with Nicholson Pavement. It was in view of the same fact that the plaintiff must be presumed to have fixed the price at which he was willing to sell. There is therefore the strongest equitable claim that the charge shall fall upon him.
    II. The assessment was complete in all respects on November 7, 1870, when it was finally confirmed by the Board of Revision and Correction. The amount chargeable upon the premises was determined, and all that remained to make it a lien in the technical sense, so as to permit a sale for non-payment, was the mere manual act of having the title transmitted to the Bureau of Arrears for entry in the title-book kept in that office. It is true, that, by the Act of 1853, to make the assessment a perfected lien, required the title to be entered in the title-book in the office of the Bureau of Arrears ; but this is solely with reference to proceedings to be taken by the city for the sale of premises for non-payment of assessments. No sale can be enforced until every statutory requirement is complied with; but when the question arises between vendor and vendee, the point is, what did the parties intend by their contract ? The plaintiff agreed to sell the premises in their then situation, with the addition of the benefit received from the paving; and he agreed that the premises should be free from all charge, assessment, and incumbrance. These are broader terms than “ lien.” “ Lien ” might mean, the lien to be made perfect by complete compliance with all the statutory requirements. But the assessment would incumber the premises (even though it might be inchoate) if, at the time fixed for the delivery of the deed, there was a positive present liability, and every step had been taken by which it was determined exactly what was the amount of the charge.
    III. Rundell v. Lakey (40 N. Y. 513) is much stronger for the defendant • than this case. There., a vendor was held liable for the annual tax where the assessment had been laid, though the Board of Supervisors had not yet levied the tax. Until the action of the Board of Supervisors the tax was incomplete ; the property could not be sold for the non-payment of the tax ; and yet the Court of Appeals held the charge to constitute an incumbrance. The amount in question was assessed by the assessors against the plaintiff. He was liable personally for the payment (Act of April 9, 1813, § 175; Rundell v. Lakey, supra). And had the assessment been paid by any other person (a fortiori by the defendant), that person could maintain an action for reimbursement against the plaintiff, who would thus be made to pay (Act of April 9, 1813, § 175). That demonstrates his liability. If by circuity the plaintiff could be made liable, he is liable when the direct claim arises. This whole question has been very thoroughly considered by Mr. Charles P. Kirkland, as referee in the case of Cranston v. Mason, and to his-printed opinion general reference is made (Post Leet, 8 Paige, 337; Prescott v. Trueman, 4 Mass. 627; Kern v. Towsley, 46 Barb. 150).
    IV. Dowdney v. The Mayor (54 N. Y. 186) is claimed to be in favor of .the plaintiff. There the conveyance was on June 15, 1866; the assessment was not confirmed until October, 1866. At the time of the conveyance the amount of the possible assessment was neither ascertained nor determined, and it was upon that principle that the opinion, so far as concerns the point in question, was put, Lott, Ch. C,, who had dissented in Rundell v. Lakey, delivering the opinion,, and Earl, C., dissenting. An examination of the case will show that it turned upon other points, so that what was said by Judge" Lott was really obiter. Where, however, the commission is in conflict with the Court of Appeals, it is the court which controls.
   By the Court.—Monell, Ch. J.

Unless the decision of this case is to be controlled by other considerations than a strict application of the provisions of the act of 1853 (Laws 1853, p. 1065), it must be determined that the assessment in question did not become an “incumbrance” upon the property until after the delivery of the deed. The sixth section of the Act referred to is as follows:

No assessment for any improvement shall hereafter be deemed to be fully confirmed, so as to be due, and be a lien upon the property included in it, until the title thereof, with the date of confirmation, shall have been entered, with the date of such entry, in a record of the titles of assessments, to be kept in the Street Commissioner’s office, and which may be used as an index to a record of assessments ; and until the-title of the said assessments shall have been also entered, with the date of confirmation, and the date of such entry, in a record of the titles of assessments,, confirmed, to be Tcept in the office of the QlerTc of Arrears.”

The deed was delivered on the 5th of December, and the entry required by the section quoted, was not made until the 24th of the same month, from and after which time only, it became a lien.

A later statute (Laws 1871, p. 741, § 1) also provides, that—“No assessment for any city improvement shall be deemed to be fully confirmed, so as to be due, and be a lien upon the property included in the assessment,. until the title thereof, with the date of the confirmation by the Supreme Court, or by the Board of Revision and Correction of Assessments, as the case may be, shall be entered, with the date of such entry, in a record of the titles of assessments confirmed, to be kept in the office of the Bureau of the Clerk of Arrears.”

These statutes definitely fix the time when an assessment shall become a lien, and must govern in the construction and enforcement of covenants against incumbrances, unless upon some principle of equity, a different rule should prevail.

The covenant in the plaintiff’s deed was, that at the time of its delivery, the premises should be free from incumbrances (and an" incumbrance'' is defined to be a lien upon an estate.—Bouvier).

Under the statutes referred to, the assessment was not an incumbrance at the delivery of the deed, and there was. therefore, no breach of the plaintiff's covenant.

The language of the acts is explicit, and it was decided in Dowdney v. The Mayor, &c. of N. Y. (54 N. Y. 186) that the required entry must be made before the assessment could become a lien ; and if not made prior to the delivery of the deed, there could not be a breach of the covenant against incumbrances.

The power to assess for benefit, was re-enacted by the Revised Laws of 1813 (2 R. L. 39) which declares that the amount of the assessments shall be a “real incumbrance ” upon the lands assessed ; and the only purpose of the subsequent acts, was, not to create, but to fix the time when the “incumbrance” should take effect upon the lands. That is now definitely determined by the entry in the record of assessments in the office of the Street Commissioner and Bureau of Clerk of Arrears.

The assessment, therefore, not having become a lien when the covenant was made, there was no right of action upon the covenant; nor did it afford any right to the purchaser to refuse to take the title under the terms of his contract with the plaintiff. Those terms were to convey free from incumbrances, and that the property was free from any legal incumbrance when the conveyance was made.

It is very clear, therefore, that had the defendant paid the assessment, he would have been without remedy under the contract or the deed. No covenant had been broken, as no lien had been created until after the covenant was made.

The defendant, however, claims, that notwithstanding the assessment had not become a legal lien when the covenant was made, the plaintiff is, nevertheless, liable to pay it, on the ground that the assessment had in fact previously been made; that the improvement had been completed, and the benefit derived before the sale.

The work was finished prior to May, 1870. The assessment was apportioned in August. It was confirmed November 7, and entered in the office of the Board of Assessors, November 21, 1870.

This claim of the defendant, however, is not made under or upon the covenant in the deed, but under the subsequent and separate agreement between the parties, which is to the effect that the payment of the assessment by the plaintiff should not affect the question or his “ liability ” to pay it.

In support of this claim we are referred to the case of Rundell v. Lakey (40 N. Y. 513).

In that case the defendants conveyed the land on September 1. The taxes for that year had been assessed to the defendants. The assessment roll had been completed on the first of the previous August, but the annual meeting of the Supervisors was not held until the succeeding November, when, and not until when, the tax was extended upon the roll.

The court held that the defendants were liable for the tax, upon the ground that the tax is imposed upon the person of the owner on account of the ownership,, and that his liability is conclusively fixed by the completion and delivery of the roll.

The deed, conveying the property in that case, contained only a covenant of quiet and peaceable enjoyment, and of warranty, which is not broken except by actual ouster. It contained no covenant against incumbrances.

But the plaintiff paid the tax under an agreement with the grantors that “in case they (the grantors) were legally liable to pay it,” they would refund the amount.

The only, question, therefore, in that case, was as to the legal liability of the grantors to pay the tax. There was no question of lien or breach of covenant, to support the action, or to supply a consideration for the subsequent agreement. Had that agreement not been made, the purchasers would ha.ye had no remedy against their grantors, had they paid the tax, except, perhaps, after an actual ouster under a tax sale.

The decision in Rundell v. Lakey, rested solely upon the construction of the Revised Statutes concerning assessments and the collection of taxes (1 R. S. 387). By those statutes a tax is made exclusively a personal liability. No lien is created upon the lands. The tax is imposed upon the owner and not upon the land. - It is collected of the owner out of his personal estate. He is the primary debtor, and the warrant to the collector, which the statute authorizes, is the judgment and execution for the debt, and must be made out of the goods and chattels of the debtor. Nor is it confined to chattels on the lands, but may be collected out of the goods and. chattels of the person taxed, “ wheresoever the same may be found ” within the district of the collector.

The land assessed is only secondarily liable: In default of .sufficient goods and chattels of the person assessed, provision is made for the sale of the lands, in respect to the ownership of which the táx was imposed. And so far, and so far only, a tax may be regarded, "perhaps, as a lien, or in the nature of a lien, upon the lands. But whatever it is, it is subordinated to the personal liability of the owner, and can be enforced only in default of collecting out of the owner’s goods.

The decision, therefore, in the Rundell case being upon a construction of the revised statutes and of the agreement of the parties, has not, in my judgment, any application to the question now before us, which depends upon a different state of the law and facts.

The special laws concerning the assessment and collection of taxes in the city of New York, provide, beside the personal liability of the owner, that assessments for street improvements shall be a lien or charge upon the lands improved (2 Laws [R. L.] 1813, 407, § 175), and which lien or charge, by subsequent acts (1853 and 1871, supra) becomes fixed, as an incumbrance upon the lands, only from the time of the entry of the assessment in the designated offices.

Under these special laws, a lien upon the lands is created in the first instance, in the nature of a mortgage thereon (2 R. L. 446, § 271), which may be enforced by a sale of the land (Laws of 1824, 39, ch. 49).

Under the revised statutes it is made the duty of the collector of a tax, to levy the same by distress and sale of the goods and chattels of the person who ought to pay (2 Rev. Stat. 397, § 2). And, as we have seen, resort can be had to the lands, only in default of such goods and chattels. But under the acts applicable exclusively to the city of New York, no similar duty is imposed upon the officer clothed with authority to collect an assessment. The owner is liable upon demand to pay the sum assessed, and, in default of such payment, it is, made lawful to levy the same by distress and sale of his goods and chattels (2 R. L. 1813, § 175). But nowhere is it required to be done. It is permission merely, and a cumulative remedy.

Nor does the right or power to sell the lands depend upon a deficiency of goods and chattels. The act of 1816 (cb. 115) provides, that on proof of neglect or refusal to pay, the corporation may proceed to sell. No attempt and failure to levy of the goods and chattels need be shown, nor any proceeding whatever, to enforce personal liability.

It is evident, therefore, that in this city,' unlike other parts of the State where the Revised Statutes apply, the land, if not the primary fund, is at least cotemporaneous with the personal liability. Resort may be had to either in the first instance, except that a preliminary demand must be made of the owner, if he can be found, before proceeding to sell the land ; and when the land is resorted to in the first instance, it necessarily extinguishes the personal liability.

Under this state of the law in this city, it became important that a time should be definitely fixed when the lien should become complete, and a record made which should be open to public inspection. In the innumerable sales and transfers of real property in this city, it affords a marked facility to purchasers to ascertain with certainty the condition of the title they buy ; and determine with equal precision upon whom the burthen of payment shall fall.

Not- only is the law, applicable to the case before us, entirely different from the statutes under which the Run dell case was decided, but the facts are also different.

The agreement in that case had reference to the personal liability of the grantors to pay the tax. There was no lien on the land, therefore the sale was not subject to a lien. The personal obligation to pay rémained, notwithstanding the sale ; and, in the view of the court, was collectable of the grantor after the sale.

In the agreement which the parties to this action made, it is very clear that they intended that the payment of the assessment, by the grantor or grantee, should depend upon the actual existence of it as an incumbrance, when the covenant was made. It was not their design to test the grantor’s liability by any fact other than such as the record in the bureau of arrears would furnish. If at the delivery of the deed the assessment had become a lien, then, under the grantor’s covenants, he was bound to pay. If not a lien, there was not any breach of the covenant.

It is therefore clear that the agreement in this case can not have the interpretation or force and effect that was given to the agreement in the Rundell case ; and the liability of the plaintiff under his contract is to be determined by the single fact or question, whether the lien existed when he conveyed the lot; and not upon a.ny possible supposed liability fixed by the imposition of the tax.

Under this construction of their agreement, and under the laws fixing the time when an assessment becomes a lien, there was no incumbrance on the land for which the plaintiff was liable. '

If I am correct in my conclusion that the agreement of these parties was founded upon the covenant against incumbrances, then the case of Dowdney v. The Mayor, &c., of N. Y. (ubi supra), is applicable and decisive.

In that case, like the one before us, the entry of the assessment was made in the proper office after the conveyance, and the court held that it was not a lien or incumbrance within the meaning of the covenant against taxes, assessments, &c.

There is a further view pressed upon our attention by the defendant’s counsel.

He claims that beyond all other considerations there is a strong equitable reason for charging the assessment upon the plaintiff.

The work was finished, and the property received the direct and immediate benefit of the improvement, several months previous to the sale. It is claimed that such benefit was equal to the amount assessed, and was added by the owner to the price demanded for the property.

It does not appear, however, that either party considered the subject of the improvement in any aspect. The plaintiff was absent during the interval between the completion of the work and making the contract of sale ; and there is no evidence that he knew or had any information in respect to it. And it does not appear that the defendant made it any part of his examination, or estimated it in the price he agreed to pay. In short, the supposed beneficial effect of the improvement does not seem to have influenced either party in the purchase and sale.

Ñor can a different conclusion be drawn from the fact that, prior to the contract, the apportionment of the assessment had actually been made ; and that prior to the deed, the expense of the improvement had been ascertained by the assessors, and their assessment confirmed by the board of revision, and duly filed.

There is no evidence to warrant the conclusion that the existence of these facts influenced either of the parties in any degree, in the contract of sale, or in the delivery and acceptance of the deed.

In support of this equity we were referred to Post v. Leet (8 Paige, 337), where a purchaser at a master’s sale was relieved from his bid by the existence of a large unconfirmed assessment. . But it was put upon-the ground that the bid was made under a mistake as to the facts of the case, and that the buyer was actually misled by the written terms of sale.

There are no such features in the case before us.

Another case decided by a referee to which we were also referred (Cranston v. Mason), has also this essential difference. The action was upon the covenant against incumbrances ; and the referee found as a fact, that at the time of the delivery of the deed the grantor informed the purchaser that all taxes, assessments, charges, and incumbrances on the property had been paid, and that there were no incumbrances of any kind on the property. That this fact had great influence upon the learned referee, is to be seen from his version of it in his written opinion, where he says the defendant gave the plaintiff to understand that the street improvements had been paid for, and that there was no charge or incumbrance on the lots in consequence of those improvements.

But the referee was unable to distinguish Bundell v. Lakey (supra) and thought it a controlling authority. In that, I think, he was in error; and as his general conclusion rested upon a mistaken view of the liability incurred, his results must fall for the want of adequate support.

The law has provided a record open to the public, which is the only safe guide in the multitudinous transactions in real estate in this city. An assessment for a street improvement can not become a lien on land until it is made such record ; and no one is required, be he seller or purchaser, to look beyond or behind that record. If he finds no confirmation, then he is protected; and it is enough, to say that in common practice the search for liens and incumbrances does not extend beyond the bureau where the record must be kept.

If parties desire further protection they must secure it by their contracts.

The plaintiff should have judgment upon the verdict, with costs.

Curtis and Speir, JJ., concurred.


source: Caselaw Access Project

author: By the Court.—Monell, Ch. J.

license: Public Domain

text:
    LEWIS ROBERTS, Plaintiff and Appellant, v. HENRY WHITE, and another, Ex’rs, &c., Dependants and Respondents.
    ENTRY OE JUDGMENT, REGULARITY OE.
    Upon the trial of an issue of fact by the court, its decision shall be given in writing, &c. {Code, § 267).
    The decision is a judicial act, and is complete when reduced to writing.' Whatever remains to be done, is a mere clerical act to be done by the clerk, to wit: entry of judgment.
    Reducing the decision to writing, concludes the trial, and authorizes the judgment and completes the official act of the judge, and the decision could be filed and the judgment be entered by the clerk at any time afterwards.
    The expiration of the judicial term of the judge, after the decision, yet before such filing of the same and entry of the judgment thereupon, would not make such entry irregular.
    A decision in writing that contains more than is authorized by law, may be modified by the court, on the motion of the party in whose favor it was rendered, by omitting therefrom so much as was erroneous, and retaining so much as was authorized by •law.
    The special term can thus modify a decision, and direct the court to enter a judgment upon it, in a modified form.
    The party against whom the same was rendered, is not prejudiced by such a modification and entry. But such a judgment should not be entered as of an anterior date. Such an entry might affect the rights of others not parties.

      Before Monell, Ch. J., and Curtis and Speir, JJ.

      Decided May 3, 1875.
    Appeal from a judgment and order.
    The action was to obtain an injunction restraining the defendants from interfering with a party wall. It was tried at special term in February, 1863, by the late Chief Justice Barbour, without a jury. He made and signed his findings of fact and conclusions of law, but they were not filed during his continuance in office. His term expired December 31, 1873.
    The conclusions of law were: “That the defendants are entitled to a reference to ascertain what, if any, damages they have sustained by reason of the injunction issued at the instance and on behalf of the plaintiff herein; and, that the defendants are entitled to judgment against said plaintiff for the amount of said damages, and for a dismissal of the complaint herein and for costs.”
    In June, 1874, upon the defendants’ application to the special term, it was “ ordered that the said decision be filed, and that judgment be entered thereon, nune pro tune, directing the dismissal of the complaint in this action with costs to be adjusted, said judgment to be settled as to form upon two days’ notice.”
    Judgment was thereupon entered against the plaintiff, dismissing the complaint and for costs.
    No reference was had to ascertain the damages by reason of the injunction, or if had, no judgment was entered thereupon; and it was conceded, under the authority of Leavitt V. Dabney (9 Abb. Pr. JV. JS. 374-384), that so much of the conclusions of law as directed a reference to ascertain the damages, and as awarded judgment therefor, was erroneous.
    The judgment under the order of the special term
    was entered as of October 5, 1865.

      The plaintiff appealed from the order and judgment.

      C. Tracy and U. R. Martin, for appellant.

      W. A. Butler and P. W. Ostrander, for respondents.
   By the Court.—Monell, Ch. J.

—The judgment as entered, being merely for a dismissal of the complaint and for costs, no question arises upon it, except as to the regularity of its entry. The error in directing a reference before judgment, and awarding damages as part of the judgment, was not repeated in the judgment as entered.

It is now claimed—and the appeal from the order of the special term furnishes the facts and presents the question—that no judgment could be entered upon the decision of the justice who. tried the cause, after the expiration of his term of office.

Upon the trial of an issue of fact by the court, its decision shall be given in writing, and shall contain a statement of the facts found, and the conclusions of law (Code, § 267).

The decision is a judicial act, and is completed when reduced to writing. Whatever remains to be done is a mere clerical act.

The same section of the Code (267) provides, that judgment upon the decision shall be entered accordingly ; and it is the duty of the cleric to make the entry (Schenectady, &c. Pl. R. Co. v. Thatcher, 6 How. Pr. 226; Loeschigk v. Addison, 3 Robt. 331, 338).

Reducing the decision to writing concludes the trial and authorizes the judgment, lio allocatur of the justice is required. The clerk on filing the decision enters the judgment strictly in conformity with the decision.

It is very clear, I think, that when the late chief justice reduced his findings of fact and law to writing, and subscribed them with his name and office—as he did in this case—he had completed the trial and the clerk was authorized at once to enter the appropriate judgment. Had he done so, any errors in it could have been corrected only on appeal. The judgment would have been entirely regular.

If, therefore, the only remaining duty was upon the clerk, he could discharge it at any time afterwards ; and no lapse of time, nor the expiration of the judicial term of the justice, would render the entry irregular.

The omission to enter the judgment was caused, as it appears, by the reference which was ordered to ascertain the damages. Until the referee made his report, no final or complete judgment under the decision could be entered. But it was competent for the defendants to waive the reference and consent to a judgment in a modified form, omitting so much as was erroneous, and retaining so much only as was authorized by law.

It was necessary, or at least proper, therefore, for the defendants to go to the special term for an order modifying the decision, and authorizing the clerk to to enter a judgment upon it in a modified form.

As it was, before the order of the special term, it might be regarded as only an interlocutory decision, which would remain in abeyance until the damages were ascertained, when the final judgment could be entered. In that case, no other judge of the court could continue the trial and pronounce the final judgment (Chamberlain v. Dempsey, 15 Abb. 1).

By waiving the reference, however, and surrendering so much of the decision as provided for the damages to be ascertained by the reference, the court had power to authorize the clerk to enter final judgment upon the decision. And the exercise of such authority was not an unlawful or improper act of the court.

I can not find any irregularity in the entry of judgment. The plaintiff has.not, and can not be prejudiced by its modified form, and the order authorizing the modification was correct.

But I am not satisfied that it was correct to direct the Judgment to be entered as of an anterior date. Even the power to do so was questioned in Moore v. Westervelt (14 How. Pr. 279), and I can discover no reason for it in the present case. It may affect the rights of others, not parties, and can conserve no important purpose of the defendants.

I think the order in that respect should be changed, and that the special term should, if the plaintiff desires it, direct the entry of judgment to be altered accordingly.

The judgment and the order (as modified) should be affirmed, with costs.

Curtis and Speir, JJ., concurred.


author: By the Court.—Curtis, J. Monell, Ch. J. (concurring in the conclusion of the Court).

text:
    JOHN SCHREYER, Plaintiff and Appellant, v. THE MAYOR, &c., OF NEW YORK, et al., Defendants and Respondents.
    amendments to pleadings.
    The code, by its provisions in regard to amendments, protects parties when errors occur and mistakes are made, and when a case comes within the scope of its provisions, and there is no bad faith nor wanton delays imputed to the party applicant, and the defense proposed is not an unconscionable one, the court should always permit the amendment.
    The court has the power to allow any allegation material to the case to be inserted in the answer, although the effect may be to change the defense ; and when a new trial has been ordered the court has the same power to allow the parties to amend their pleadings as before the trial.
    Is an order of this character the subject of review on appeal ? Held, by Monell, Ch. J., in his concurring opinion, that this order was clearly uon-appealable, citing and discussing Bowman v. De Peyster (2 Daly, 203), and Simmons v. Lyons (35 Supr. Ct. 555, and 55 N. T. 671), and other cases.
    Before Monell, Ch. J., and Curtis and Speir, JJ.

      Decided May 3, 1875.
    Appeal from an order granting defendants’ motion for leave to amend their answer.

      D. M. Porter, for appellant.

      D. J. Dean, of counsel, and E. Delafield Smith, Counsel to Corporation, for respondents.
   By the Court.—Curtis, J.

The complaint alleges that the Mayor, Aldermen and Commonalty of the city of New York, “through the school trustees of the tenth ward in said city, such board being requested to do so through the then board of public instruction in said city, now the board of education ” entered into contract, with Alonzo Dutch, by which he agreed to build a school-house, and the mayor, &c., of the city of New York, agreed to pay therefor the sum of $20,000 in eight installments.

The complaint then averred the assignment of the contract to the plaintiff; the completion of the building by him ; and that the eight installments payable under the contract was due and unpaid to him.

By the answer, it was admitted that the contract was made as alleged in the complaint.

The cause was tried in October, 1874.

The plaintiff put in evidence the contract.

It then appeared that the contract was made by “ The school trustees of the tenth ward,” and that the mayor, &c., of the city of New York was not a party thereto.

The court dismissed the complaint upon the ground that the contract sued upon was not the contract of the defendants, following the decision of this court in Ham v. The Mayor (37 Sup'r Ct. 458), and the attention of the court not having been called by either party to the admission in the defendant’s answer.

Upon appeal the court held that the defendants were precluded by the admission contained in the pleadings, from denying that the school trustees were their agents, and that they were bound by the contract in question j a new trial was therefore ordered.

These defendants immediately moved at special term for leave to amend their answer, by denying the making of the contract by them, and by striking therefrom the admission of making such contract, and each and every admission that the school trustees were agents of the defendants, or authorized to make contracts on their behalf.

The motion was made upon the pleadings and proceedings in the action, the printed case on appeal, and an affidavit stating that the admissions contained in the original answer were made in consequence of misapprehension on the part of the pleader of the legal relations of the school trustees to the mayor, alderman, and commonalty of New York, and before the decision heretofore referred to respecting such rights and liabilities had been made. The motion was granted upon terms and the plaintiff appeals.

In consequence of the frequent legislative enactments, affecting the system of public instruction, and the legal relations of the city government to it, many serious difficulties and questions have arisen. In preparing the answer, the pleader fell into an error, which under the circumstances was very natural, and which was mainly due to the existence of these complications and questions.

It was intimated at the general term, when the new trial was granted, that the only remedy .for the defendants, was to apply for leave to amend their answer. Such leave has been granted, and the plaintiff on the appeal, claims that it, in effect, allows a new defense, and can not be permitted; and further that the court can only allow an amendment, when it is “in furtherance of justice,” and that the amendment asked for is not of such character.

The provisions of the code authorizing amendments, were intended to protect parties when errors had occurred, and mistakes been made. This application seeks its remedial protection, and comes within the scope of its provisions. No bad faith, and no wanton delays are imputed to the defendants. If the court has the power, and the defense is not an unconscionable one, the amendment should be allowed.

It seems to be clearly settled, that the court has the power in its discretion, to allow any allegation material to the case, to be inserted in the answer, though the effect may be to change the defense ; and that when a new trial has been ordered, the court has the same power to allow the parties to amend their pleadings, as though the action had never been tried.

It was the intention of the legislature, and the language of the code indicates, that the answer or statement of defense, might be amended so as to enable a defendant to avail himself of all of his defenses on the trial. Where by error or ignorance a party might be unable to present his entire case, or to avail himself of all of his defenses at the trial, the court has power to grant relief upon such terms, and in such cases as may be just (Union National Bank of Troy v. Bassett, 3 Abb. N. Y. 359; Brown v. Leigh, 49 N. Y. 78; Troy v. Boston R. R. Co. v. Tibbits, 11 How. Pr. 168).

It is urged on the part of the plaintiff, that the amendment should not be granted, because it seeks to defeat an honest claim for work of which the city has had the benefit, by interposing a legal technicality. If this doctrine, held in Ham v. The Mayor (37 Sup'r Ct. 458) is correct, that the department of public instruction possessed the powers and privileges of a corporation; that it was not a part of the integral government of the municipal corporation; that its powers and duties were imposed by statute and to be executed as the representative, and for the purposes of the state government, in administering its system of common schools ; and that the public moneys of the state apportioned to the counties of New York, among others counties were applied to its expenditures, then it would be unjust to make the city of New York liable for contracts made for and on behalf of the state government by the representatives, and for the purposes of the state.

It is not proposed at this stage of the action to pass upon its merits, but simply to show, that we can not now undertake to determine what are the equities, or the legal rights of the parties in the litigation, but that it sufficiently appears that the amendment sought is not of such an unconscionable character that it should for that reason be refused.

The order appealed from is affirmed, with costs to respondents, to abide the event of the action.

Speir, J., concurred.

Monell, Ch. J. (concurring in the conclusion of the Court).

Without examining the merits of the questions presented upon this appeal, I am satisfied that the order was so wholly discretionary, and did not involve the merits of the action, or affect a substantial right, that it is not the subject of review on appeal.

This subject was fully considered in the Common Pleas in Bowman v. De Peyster (2 Daly 203), which was precisely like the case before us, and it was there held that the order was not appealable.

But later, in this court (Simmons v. Lyons, 35 Sup’r Ct. 555), a motion granted at the trial to amend the complaint by the insertion of new and material allegations, was held to be so within the discretion of the court, that the decision could not be reviewed. The court there say, “ the amendment being within the power of the court, was.also within the discretion of court, and can not be reviewed on appeal from the judgment.” That case was affirmed in the Court of Appeals, “on the opinion in the court below ” (55 N. Y. 671).

The eases in which the right of appeal has been sustained, have chiefly been on the ground, that the court has not the power to make the amendment (Sheldon v. Adams, 27 How. Pr. 179).

But in all cases where the power existed, the court has refused to entertain an appeal, unless from some stringent provision in the order, or from its necessary effect, the party was deprived of some substantial right (Harrington v. Slade, 22 Barb. 161; Union Bank v. Mott, 19 How. Pr. 115).

The case of the N. Y. Ice Co. v. N. West. Ins. Co. 23 N. Y. 357), which is relied upon in Simmons v. Lyon (supra), must be considered as affirmed by the same court. The language of that case is clear and explicit. Judge Comstock says (p. 362): “In the next place, I am of opinion that the Supreme Court had no right to entertain the appeal at all from the order of the special term. That order, in its substance and nature, simply allowed a pleading to be amended in furtherance of the justice of the case. Such orders rest in the discretion of the court which makes them, they involve no substantial right, and they are not reviewable on appeal. They do not belong to either class of orders which, according to the Code, may be re-examined at the general term ( § 349).”

In the case before us, the defendants move for leave to amend their answer, by striking out an admission, and inserting in its stead a denial of the contract set forth in the complaint as being their contract. The granting of such a motion was discretionary ; and no right of the plaintiff could be substantially affected, if it was granted. If it was in furtherance of justice, the court was, perhaps, bound to grant it, and the plaintiff can not complain that instead of resting upon the defendants’ admission, he must now prove Ms case.

The order should be affirmed, with costs.


author: By the Court.—Monell, Ch. J. Speir, J. (dissenting).—

text:
    PHILIP S. JUSTICE, Plaintiff and Appellant, v. WILLIAM B. LANG and GEORGE M. WHEELER, Defendants and Respondents.

    This case has had three trials, and this is its third appeal to the general term.
    Review, by the court, of the questions presented on the former trials and hearings (Moheli, Oh. J.).
    Two findings of fact, by the referee, on the last trial, are (in the opinion of the court at general term) fully supported by the evidence, and conclusively and properly disposes of the case.
    These findings are as follows:
    “That said memorandum or agreement was not delivered absolutely, but only in the expectation and on the condition that a written order should be given by the plaintiff for two thousand rifles, and which was to embrace the one thousand rifles mentioned in said memorandum or agreement, in such a form as to make it a valid contract upon the plaintiff as well as upon the defendants; and that the understanding of both parties was at the time of said memorandum or agreement was delivered that the contract for the said rifles was incomplete and only to become perfect upon the receipt, by the defendants, of the written order from the plaintiff to procure for him the two thousand rifles mentioned and referred to, of which the said one thousand rifles were a part and parcel.” “That at the time when the said defendants made, executed, and delivered to the plaintiff the memorandum or agreement in writing, bearing date on Hay 13, 1861, the said plaintiff did not accept the said agreement, absolutely and unconditionally, as a completed contract.”
    Before Monell, Ok. J., and Curtis and Sfeir, JJ.

      Decided May 10, 1875.

      Appeal from judgment entered upon the report of a referee.

      E. Terry, for appellant.

      Oscar Smedburg, for respondents.

       This case was decided on this last appeal, substantially upon the findings of fact of the referee; but as it reviews the former trials and hearings, it is deemed worthy of reporting, that its professional history may be completed. &c.

   By the Court.—Monell, Ch. J.

Upon the first appeal in this case (42 N. Y. 493) the court held that the memorandum signed by the defendants was sufficient to constitute a valid contract, within the statute of frauds, if there was a consideration therefor moving to the defendants ; and that an acceptance of the memorandum by the plaintiff, and a promise, express or implied, to accept and pay for the guns, was a sufficient consideration. And it seems to have been assumed by the court that there was evidence of such acceptance and promise, and a new trial was ordered.

Upon the second trial the submission to the jury was confined to the question of damages. The court refused to submit to them whether there had been an express or implied promise to accept and pay, not on the ground that there was no dispute in the evidence, but that such promise was to be necessarily implied from the circumstance of the plaintiff’s receiving the memorandum from the defendants, about which there was no dispute.

Upon the second appeal (52 N. Y. 323) the court affirming the former decision sustaining the validity of the contract, has left the only remaining question that of consideration, which as the case then presented itself, was held to be one of fact for the jury.

I have not been able to discover any essential difference in the evidence as given on the second and last trial. The effort of the defendants on each occasion, has been to establish that the delivery of the memorandum was upon a condition not fulfilled by the plaintiff.

The answer of the defendants • alleges, that the plaintiff agreed to give a written order for the one thousand rifles, and to give a further order for one thousand more, to be accompanied with a letter of credit; and that upon that condition the memorandum was delivered to the plaintiff. The evidence shows tliat the plaintiff declined, for a reason stated, to give the written order until his return to Philadelphia, but promised to send it from that place.

The dispute arises as to whether the order was to be for one thousand or for two thousand rifles. The defendants insist that the condition was, that the order should embrace both lots, and should be for two thousand' rifles, including the one thousand mentioned in the memorandum, and the one thousand which was to be the further order. While the plaintiff avers that the only order he was to give, was for the second lot of one thousand, insisting that the contract for the first one thousand was complete by his acceptance of the written memorandum.

The presumptions which arise from facts are not presumptions of 'law, but of fact. A jury might infer from circumstances that the plaintiff had promised to accept and pay for the one thousand rifles mentioned in the memorandum. Even though they found the order related to ihe last one thousand rifles, they might, looking at the manner of delivery of the memorandum, have, perhaps, implied from it a promise to pay.

But, as the court say, that being a presumption of fact, must be decided by the jury “under the rule which so clearly separates the office of the judge from that of the jury.”

The theory of the plaintiff, that, if the order referred or related to the second lot of rifles, so as not to make it a condition affecting the first or memorandum lot, there was sufficient other evidence from which could fairly be inferred that he had promised to accept and pay for the first lot, made it no less a question for the jury, and raised no presumption of law, which, could authorize the court to dispose of it. Neither would such an inference, or a positive finding of a promise to pay, necessarily destroy the other defense, that although there may have been a promise by the plaintiff, the defendant’s promise was upon a precedent condition, which had not been fulfilled.

The defense was, that the memorandum was not to take effect as a contract, until the plaintiff had given the order for the two thousand rifles ; and the referee has found as a fact, “that the memorandum or agreement was not delivered absolutely, but only in the expectation and on the condition that a written order should be given by the plaintiff for two thousand rifles, and which was to embrace the one thousand rifles mentioned in the memorandum or agreement, in such a form as to make it a valid contract upon the plaintiff as well as upon the defendants; and that the understanding of both parties was, at the time the memorandum or agreement was delivered, that the contract for the rifles was incomplete, and only to become perfect upon the receipt by the defendants of the written order from the plaintiff to procure for him the two thousand rifles mentioned and referred to, of which the one thousand rifles were a part.”

This finding, it seems to me, conclusively disposes of the plaintiff’s case, if it is fairly supported by the evidence, and I think it is.

But there is another finding by the referee which comprehends the whole ground of action, and destroys the only basis on which the memorandum can be sustained under the statute.

The referee finds that the plaintiff did not, at the time the memorandum was delivered to him, accept it absolutely and unconditionally as a completed contract, and did not agree at that time to be bound by its terms.

This latter finding disposes of any alleged implied, or express promise to accept or pay for the rifles referred to in the memorandum.

The appellant claims that the interpolation of some words, in an extract from the opinion of the court upon the last appeal, has led to the error which he insists the referee has fallen into.

The court say the jury might have found that a written order should be given by the plaintiff, and the referee has added as if a part of the opinion—“for two thousand rifles, being for one thousand in addition to those mentioned in the memorandum.’’ But the court had just previously alluded to what the plaintiff had said—“I want to order two thousand rifles,”-—upon the strength of which, and a representation concerning the capacity of Birmingham, for the manufacture of rifles, the defendants consented to take an order for two thousand guns. The memorandum was then delivered, the defendants saying, “ Give me the order.”

The order, therefore, which the court say the jury might have found,, was the order for two thousand guns, which would of course cover the one thousand mentioned in the memorandum. The words interpolated by the referee, are not inconsistent with, but as an amplification of the meaning of the court, in its reference to the order which might be found from the evidence.

The effect of this allusion to an order for two thousand rifles, to include the one thousand specified in the memorandum, was not that the first contract was, or was to be for two thousand rifles. The second lot was a further order—in addition to the first lot—it was spoken of at the same time, and the plaintiff promised that the order to be sent from Philadelphia, should cover both the first and the further lots, making in all two thousand rifles. This is a legitimate inference from all the evidence; and I have failed to find the attempt anywhere made, to make the memorandum cover the two thousand rifles. The second lot was yet to be ordered, and the order was promised to be sent. The parties did not regard it, and the court has nowhere so construed or treated it, as changing a contract for one thousand guns, into a coritract for two thousand guns. The contract for the first lot was to be complete upon receiving the order for the two thousand, which was to include the first lot, but the defendants were, probably, not bound to accept the entire order, and could have rejected the second lot, retaining the order as consummating and completing the agreement for the first thousand. But even if the condition was that the order should be for two thousand rifles, and that the memorandum for one thousand should be incomplete„as a contract, until the condition was fulfilled, it was a lawful condition, and the plaintiff in default of complying with it, has no means of otherwise furnishing the necessary consideration to satisfy the statute óf frauds.

The question left by the court of appeals as the only question to be disposed of, namely, whether there was a promise of the plaintiff to accept, and pay for the guns specified in the memorandum, has been, it seems to me, fully and carefully considered by the referee upon all the evidence in the case. He was authorized to give importance and prominence to the evidence tending to establish the existence of a condition precedent as affecting the memorandum; and having found against the plaintiff on that question, upon evidence sufficiently conflicting to bring his decision within the well'recognized rule in regard to the review of questions of fact, it should not be disturbed.

It does not, in my judgment, affect the question, that the order embraced, or was to embrace, more than the one thousand guns specified in the memorandum. .It was essential to the validity of the contract, than an order for the first lot should be given, and it is quite immaterial, whether it was separately given, or was included in one general order for both lots.

Nor is the defense weakened by the action of the defendants in immediately upon the delivery of the memorandum, proceeding with measures to fulfill their part of the agreement. Trusting to the promise of the plaintiff to give vitality to the contract, by sending his written order from Philadelphia, they were justified in being active, as their time for delivery was limited.

In conclusion I believe that the case has been fairly decided. The plaintiff was endeavoring to recover a loss of profit only. He had parted with neither money nor value ; and as the referee has decided, incurred no corresponding liability to the defendants. He was bound, therefore, to show a clear right to recover. Not having done so he must submit to the judgment against him.

The judgment should be affirmed.

Curtis, J., concurred.

Speir, J. (dissenting).—

The following memorandum or instrument in writing signed by the defendents is the alleged contract on which the plaintiff brought his action for the recovery of damages for the non-performance of the contract.

“ New York May 13, 1861. We agree to deliver P. S. Justice one thousand Enfield rifles, no other extras, in New York at eighteen dollars each, cash upon such delivery. Said rifles to be shipped from Liverpool not later than the 1st of July, and before if possible. W. Bailey Lang & Co.”

It is of the first importance to clearly understand and keep before our minds what the court of last resort has actually settled as the law of this case. After two arguments and upon a full consideration, it was solemnly decided by the court that the signing of this instrument by the vendors, the contract was taken out of the statute of frauds and binds the defendants, although it was not signed by the plaintiff; and it was consequently held that it was a valid instrument binding the defendants to deliver the rifles according to its terms, and that the contract was supported by a sufficient consideration (Justice v. Lang, 43 N. Y. 493).

The case was again tried, and the above adjudication was followed, and the plaintiff obtained a verdict and judgment which was affirmed by the general term of this court. An appeal was taken from this judgment to the court of appeals which was reversed and a new trial ordered. A new trial was had before the referee, who has found for the defendants, and an appeal is now taken from the referee’s decision.

By the last decision of the court of appeals, reported in 53 N. Y. 333, the learned judge adopts the conclusions the court had come to on the former appeal, as binding in this case ; and at the outset, in disposing of the case, it is conceded, as before decided, that the contract was supported by a sufficient consideration in the implied verbal promise of the' plaintiff to accept and pay for the rifles. The judge, on the trial which was last before the court for review, refused to submit to the jury any questions except those relating to damages, to which the defendants excepted. This was held to be error, for the reason if the plaintiff was entitled to recover it must be upon the theory that the written promise of the defendants, and the verbal promise of the plaintiff at the same time with the written promise, constituted together a consummated agreement upon which the defendants have-been charged; and the court held that it was a question for the jury to determine whether there was an agreement by plaintiff to receive and pay for the thousand rifles.

The only question, therefore, which now comes before us, is the one discussed by the learned judge in his opinion—whether there was such a promise. As the case then stood, the evidence was conflicting, and it was for the jury to pass upon. Our attention is now called to a review of the evidence and findings of the referee.

The plaintiff and the defendant Wheeler, are the main witnesses who testify to the circumstances under which the contract was made, and who were present at the time.

There is no discrepancy between them in the following particulars. They agree that the paper or contract was drawn up and signed by Wheeler; a copy made by him and delivered to the plaintiff, who took it away with him, Wheeler retaining a copy or the original ; that Wheeler wrote the letter to Goodman at the same time, of the same date as the contract, and deposited it in the post, which went by the mail on the following morning ; that the defendants were the agents of Scoffleld & Goodman, and conducted their business in New York ; that Goodman was chairman or president of the Burmingham Small Arms Company; and that the defendants, as agents for Sooffield & Goodman (as testified to by Goodman), from time to time sent orders to them for guns.

The single point in controversy between the parties may be stated as follows :

The plaintiff claims that the contract signed by the defendants and delivered to him was completed and binding, and so understood by both parties at the time ; that no written order was to be given by him to the defendants for the one thousand rifles mentioned in the contract; that the parties then acted upon the paper as a consummated contract; and that the other order spoken of was to go with a letter of credit to provide for the payment in England of another one thousand, which was contemplated and discussed by the parties, but not then settled by any agreement between them.

. The defendants’ position is that the paper signed m them was only a conditional contract, and was not de livered absolutely, but on the expectation that a written order for two thousand rifles should be delivered tr them, together with a letter of credit for the payment in England, for an additional one thousand rifles, besides the one thousand named in the contract. All the testimony in the case has been introduced by the respective parties to establish these positions as respectively claimed by each.

Bearing in mind that the decision of the court adopted by the learned judge in this case, was that “ if the contract was then consummated it is to be deemed valid in law,” then all prior negotiations were merged in the contract thus made. In order to ascertain whether there was such a promise which would support a sufficient consideration, we must direct our attention to the evidence, which shows what occurred at the time when and after the paper was signed and delivered.

• Wheeler says he said to the plaintiff, after having signed and read it to him, “ I want to add at the bottom of this, that we shall not be held for these rifles, in case they do not come. He (plaintiff) said to me, ‘ Do not put that on there. If you do you will spoil it.’ I want to show that all is right.” On the part of the defendant, this precaution can be only explained on the ground that the contract bound him, and he was providing against his liability. The objection of the plaintiff doing so, is intelligible only on the ground that the contract would lose its binding force by such an insertion.

When the contract was signed and delivered, the de- . fen dan ts took immediate action by sending forward a letter written by them to their agents in England: “Please put in hand at once, the one thousand ahead of Syms (as with him I have held out no inducement for delivery), and get them off by invoice and bill of lading in our name, that I may not be brought in for damages, if the contract is not complied with.” There is no evidence in the case, that plaintiff knew the contents of this letter.

On the following day, May 14th, Wheeler writes to Goodman: “ Justice has given me an order for two thousand, one thousand of which I have agreed shall be shipped not later than the first of July, from Liverpool, . . and I shall be extremely anxious until you ship this thousand for Justice, as unless you do we shall be brought in for damages ; a letter of credit will go out by the next mail; if you have not one thousand in yours works to finish up in the time specified, get them from others, as this order must be jilted by us”

On May 16th, Wheeler writes to plaintiff, to send him the letter of credit to go by the Wednesday’s steamer, also the order, and says he should have made one stipulation, “in that contract made with you,” that he should throw in one of those ponies out of the lot he has. This letter is answered by the plaintiff, May 31st: “I tried to arrange for your credit to-day, not because it was part of the agreement, but to oblige you. It was specially stated, if I ordered another thousand, I would provide another means of payment, viz., in England ; and he says the money is deposited with a banker, for thousand ordered of you, payable to my order on delivery of the rifles, and adds, ‘ I will throw in the pony if the guns are delivered to me before July 1st, sure.' ” On May 30th defendants wrote to Shipley, their agent: “ Justice gave me an order which went out last week for one thousand, and was to give another order to go this week for another one thousand, with his letter of credit for the last lot, and, perhaps, for both. Please see about this, and telegraph us if he has not already written us.” And on May 93rd, Wheeler writes to Shipley : “ The Connecticut order has been nobly can-celled. Justice can but do the same. It is represented that English steamers refuse to bring any more arms to America. If this is trae, I am precluded from tilling ihe order, as I did not fix delivery here, but shipment from Liverpool.” The letters of May 13th, 90th, and 93rd, were not on the former trials put in evidence.

There is no evidence in the case establishing any contract between the parties for the sale of two thous- and rifles. There is, then, no such contract. It is true the parties contemplated entering into an arrangement, the effect of which would be, if adopted, to add one thousand rifles more, which should be paid for by a letter of credit in England, and an order for the same. This arrangement was put an end to by the plaintiff’s letter, May 91st. So as to this, the defendants had distinct notice when -they wrote to their agent Shipley, that the Connecticut order had been cancelled, and plaintiff “ can but do the same.”

The letter of May 90th, written by the defendant to-his agent Shipley, states precisely what the contract was : “Justice gave me an order which went out last week-for one thousand, and was to give me another order to go this week for another one thousand, with his letter of credit for the last lot, and perhaps for both.” Here is a complete statement of the whole matter. He treated the contract in his possession as a sufficient order to act upon, and he did so act. He expected an order from the plaintiff for another one thousand, with his letter of credit for the last one thousand. He was anxious to have this contract with the plaintiff cancelled, as the Connecticut order had been nobly done. I think it would be a want of proper appreciation of the intelligence and experience of these parties as merchants, to believe that all this correspondence relating to a matter of such importance, could be conducted by them without being fully aware of their liability under the contract in question.

The judgment should be reversed.


author: By the Court.—Curtis, J. Monell, Ch. J. (dissenting).

text:
    THOMAS P. ELDRIDGE, et al., Survivors, &c. Plaintiffs and Respondents, v. ADOLPH C. STRENZ, et al., Defendants and Appellants.
    APPEAL PAPERS.
    The general term on appeal, should have all the papers upon which the order appealed from was based, placed before it.
    In this case the remittitur from the court of appeals to this court, which was before the special term, does not appear among the papers.
    COSTS—EXTRA ALLOWANCE.
    If the court before which the final determination in the case was had, does not direct an allowance in its judgment, there is no authority elsewhere to adjudge it (McGregor v. Buell, 1 Keyes, 157, 158).
    The 56th rule of practice limits this application to the court before which the trial is had or the judgment rendered.
    In the case at bar, the plaintiff recovered judgment after a trial before a jury, and an allowance was made to him. The defendant appealed to the general term of this court, and the .judgment was-recovered and a new trial ordered. From this decision the plaintiff appealed to the court of appeals, making the usual stipulation required, that absolute judgment should be rendered against him, if the judgment should be affirmed. It was affirmed, and on the remittitur to this court and on affidavit, the defendant moved at special tern for an allowance, and the motion was denied. Held, no express provision of the code exists, that provides for an allowance in a case like the present, where a judgment has been rendered by the court of appeals under this form of stipulation; and as, from the nature of the proceeding, it might be often inequitable that there should be an allowance, it is more reasonable to consider that there should not be one granted than to seek for it from analogy and implication.. Order of court below affirmed.
    The legislature by the word “defense” in the 309th section of the code, meant something more than a case in which an answer or demurrer only was interposed ; it never contemplated that in such a case the plaintiff should be subjected to any greater payment of costs, than the usual fixed amount of taxable costs.
    Oh. J. Monell, in a dissenting opinion, holds substantially that in this and all other like cases, the special term of this court could exercise its discretion after the judgment of the court of appeals, and that in all cases where a defense (by pleading) had been interposed, an allowance to the successful party was within the discretion of the court.
    Before Monell, Ch. J., and Curtis and Speir, JJ.

      Decided May 3, 1875.
    Appeal from an order of the special term denying defendant’s motion for an extra allowance.
    The action was to recover the amount of a promissory note. The issue formed by the defendant’s answer was tried by a jury. The plaintiff had a verdict, .and judgment was rendered in his favor. The court, granted plaintiff an extra allowance of two and one-half per cent, on the amount of the verdict.
    The defendant appealed from the judgment to the general term, where the judgment was reversed and a new trial ordered, with costs to abide the event. From the judgment of the general term, the plaintiff appealed to the court of appeals, making the usual stipulation required, that absolute judgment should be rendered against him in case of affirmation of the judgment below. The court of appeals affirmed the judgment of the general term, and rendered absolute judgment in favor of defendant, and against the plaintiff for costs.
    The judgment of the court of appeals was remitted to, and became the judgment of this court.
    The defendant thereupon moved for an extra allowanee of costs at the special term of this court, and the motion was denied for “ want of power in this court to grant the same, and for no other reason.”
    Miller, Feet & OpdyTce, for appellants.

      G. A. Seixas, for respondents.
   By the Court.—Curtis, J.

It appears from an affidavit on the part of the plaintiff, that the plaintiff appealed to the Court of Appeals, from a judgment of the general term reversing a judgment of the special term in his favor, and granting a new trial, and stipulated that should the judgment appealed from be affirmed, judgment absolute should be rendered against him.

Under this stipulation, the Court of Appeals after a hearing, ordered judgment absolute against the plaintiff. The motion at special term for an allowance was made, not only upon the affidavit above referred to, but upon the remittitur from the Court of Appeals, which was presented to the judge, who made the order appealed from, and is referred to in that order.

The papers on this appeal, do not contain the remittitur, and the general term under the rules and practice of the court ought, on appeal, to have all the papers upon which the order appealed from is based, placed before it.

Especially is this the case, when the court is called upon to take some action incident to the judgment contained in that very remittitur from the Court of Appeals. Even if we bad it before us, it does not seem clear that this court has any power to add any further adjudication or order to the judgment contained in that remittitur, or to supply any omission or defect. If that court before which the hearing or determination under the stipulation was had, does not direct an allowance in its judgment, there does not appear to be authority elsewhere to adjudge it (McGregor v. Buell, 1 Keyes, 157, 158). There is another difficulty in our attempting to pass upon it, as the 56th rule limits this application to the court before which the trial is had, or the judgment rendered.

ISTo express provision of the code exists granting an allowance in a case like the present, where a judgment is rendered under this form of stipulation, and as from the nature of the proceeding it might be often inequitable that there should be an allowance, it is more reasonable-to consider that the legislature intended that there should not be one granted, than to seek, for it from analogy and implication.

In that class of cases, where the court has power to grant allowances provided for in the 309th section of the code, in which it is stated, they may be made “in difficult and extraordinary cases, where a defense has been interposed,” there is reason to believe, that the legislature intended by the use of the word “ defense ” to mean something more than an answer or demurrer being interposed, as it may be claimed that it is employed in distinction from those terms ; and if the legislature had intended to refer simply to the interposition of an answer or demurrer, it would, as in other instances throughout the code, have used those specific terms. In addition, it maybe fairly assumed, that as in the current affairs of all enlightened communities, men are encourged to seek a peaceful and just solution of questions and controversies, by commencing suits, the occasion for which often ceases on the interposition of merely an answer, that the legislature never contemplated that in such contingencies, a plaintiff should be subjected to any greater payment than the fixed and determined amount of costs which has usually been given. It can not be presumed that under such circumstances, it was intended to subject the plaintiff to the hazard of being obliged to pay in addition, sums that under the name of allowances, may be severe and ruinous to the law-abiding and peaceable suitor.

The order appealed from should be affirmed, with costs to the respondent.

Speir, J., concurred.

Monell, Ch. J. (dissenting).

There is no restriction as to the time when an application for a further allowance may be made, except that it must be before the final costs are adjusted (Rule 56).

In this case the defendants were not in a condition to make the motion until judgment was entered upon the remittiur from the court of appeals. The trial before the jury resulted adversely to the defendant. In reversing the judgment and ordering a new trial, the costs of the appeal were made to abide the event of the second trial. But the plaintiff prevented the second trial by an appeal from the order.

The judgment of the court of appeals upon such appeal was the first and only absolute award of costs to the defendants.

They were, therefore, in time in making their motion. It could not be made at any previous time.

The question, therefore, upon this appeal is whether it was a case in which the court below could exercise its discretion.

The code permits the allowance to be made in cases, where a defense has been interposed, or in such cases where a trial has been had.”

I am of the opinion that, for the purposes of this question, a trial was had in the case, and, therefore, the court could have granted the extra allowance.

There was an actual trial of the issues before a jury, which resulted adversely to the defendant. That was the only trial had in the case.

I do not regard the argument of the successive appeals as trials within the meaning of the law, as has been done in some cases (Van Schaick v. Winne, 8 How. Pr. 5; Sutherland v. Tyler, 11 Id. 251; Seguine v. Seguine, 3 Abb. Pr. N. S. 442). For such arguments and proceedings a compensation is fixed.

A trial is a judicial examination of the issues, whether of law or fact, and not a review of such examination upon an appeal from the decision. The appellate court corrects any errors of the trial. It has-no original jurisdiction to try the issues, or to judicially examine them, further than to see that the judgment under review is correct.. The only trial, therefore, is at the special term, before the court, with or without a jury.

The trial which was had in this case was sufficient, I think, to empower the court to grant the allowance.

The effect of the judgments upon the several appeals, is, that the judgment entered upon the verdict of the jury was erroneous—that it should have been for the defendants, or that the plaintiff’s complaint should have been dismissed. Had there been such a result at the trial, the power to give the defendants a further allowance, could not be doubted. The effect is not lessened by having the errors of the trial corrected by the court upon the appeal; and their judgment must be regarded as the judgment which ought to have been rendered on the trial.

For all purposes of costs, therefore, a trial was held in this case ; and the court had power to use its discretion upon the defendants’ motion.

But further, I think a correct construction of the 309th section of the code gives power to the court in this case, irrespective of the actual trial.

A defense had been interposed.

The section, as amended in 1865, apparently provides for two cases,—first, where a defense has been in terposed, and, second, where a trial has been had ; so that the section may be read;—in difficult and extraordinary cases where a defense has been interposed ; and in difficult and extraordinary cases where a trial has been had. But as there can not be a trial unless a defense has been interposed, the legislature meant to confer power on the courts to give the allowance in all cases where a defense was interposed, whether a trial was had or not. So that if the plaintiff discontinued the action before trial, the court could still grant the allowance. For the allowance is not merely to compensate for an actual trial, but also for the labor and expenses of preparing for the trial (McQuade v. N. Y. & Erie R. R. Co. 5 Duer, 613).

Had the legislature intended to restrict the power to cases of trial only, they would not have disconnected them, but would have provided that when a defense was interposed and a trial had, the allowance might be made.

For the reason, therefore, that a defense having been interposed, as well as for the reason that a trial had been had, the case is one in which the court in its discretion may make a further allowance of costs to the defendants.

The order should be reversed, and the special term should be allowed to exercise its discretion upon the motion.


author: By the Court.—Curtis, J.

text:
    JOHN A. MOODY, Plaintiff, v. ROBERT T. ANDREWS et al., Defendants.
    PLEADINGS, ISSUES THEREIN—JUDGMENT ON THE SAME.
    Rights of a party, who lawfully hold's a promissory rote as a 0 PLEDGE.
    The admission in the answer, “ that at the time mentioned in the complaint, they (the defendants) made and endorsed a note like that set forth therein, ” unaccompanied with anything tending to show that it was a distinct note from that described in the complaint, and on which the action is brought, must be held to refer to the note sued upon.
    This answer does not put in issue plaintiff’s allegation in the complaint, that he is the lawful holder of the note, but states facts that do show that the plaintiff is the lawful holder of the note, for value.

    Where a party holds a note as a pledge, the law confers upon him the power to receive the whole money from the makers of the note, and sue and collect the same. The money, when received by him, is held as a substitute for the note, and subject to all the terms and conditions affecting it (Garlick v. James, 12 John. 146). When commercial paper is received as security, for an advance of money made upon it at the time, without notice of any defects of title, the law merchant, protects thé transferee against all latent equities, whether of the parties to the paper or third persons (Weaver v. Barden, 49 N. Y. 294; Muller v. Pondir, 55 N. Y. 332). The pledgee of commercial paper, in the absence of any special power, is bound to hold it, and to collect it, and apply the money to pay the loan, and to account for, and to return the balance, if any remained (Wheeler v. Newbould, 16 N. Y. 392). The allegation in this answer to the effect that there are other parties claiming title to the note, or to the proceeds, are of no force. The proceeds of the note are to be reached through the plaintiff.
    Before Monell, Ch. J., and Curtis and Speir, JJ.

      Decided May 3, 1875.

      This action is against the makers of a promissory note.
    The pleadings are as follows :
    COMPLAINT.
    “The complaint of the above named plaintiff respecfully shows to this court that at the several times hereinafter mentioned, the defendants were partners doing business under the firm name of Andrews & Sandford. That the said defendants heretofore at the city of .ISTew York made their promissory note in writing, bearing date on the 24th day of January, 1874, whereby he promised to pay six months after the date thereof to the order of themselves, for value received, the sum of sixteen hundred and sixty-six dollars and sixty-six cents, and the said defendants thereupon, and before the maturity thereof, endorsed the said note, and so endorsed, the same was passed and delivered to the plaintiff, and although the said note became due and payable before the commencement of this action, yet the defendants have not paid the same. And the plaintiff further says that he is now the lawful owner and holder of the said note, and that the defendants are justly indebted to him thereupon in the sum of sixteen hundred and sixty-six dollars and sixty-six cents principal, together with interest thereon from the 27th day of July, 1874.”
    “ Wherefore the plaintiff demands judgment against the defendants for the said principal sum and interest.”
    ANSWER.
    “These defendants, for answer to the said complaint, admit their partnership, and also that at the time mentioned in the complaint, they made and endorsed a note like that set forth therein, and that said note is not paid.”
    ‘‘ They deny each and every allegation in the said complaint not hereinbefore admitted.”
    “These defendants further answering:, aver that the said note so endorsed by them was delivered, by them to one Mrs. Jennie Reynolds, who is now the lawful owner thereof.”
    “These defendants further aver that the said note was by the said Jennie Reynolds delivered to one James H. Dobbs for the purpose of having the same-discounted for her and the proceeds thereof paid to her, but that the said James H. Dobbs did not have the same discounted, but without authority and out of the-usual course of business, delivered the said note to the plaintiff as security for a small sum, to wit: the sum of one hundred dollars, loaned to him by the plaintiff.”
    “ These defendants further aver that they have been notified by the said Jennie Reynolds not to pay the same, and that she claims the money due thereon.” “These defendants further aver that Alfred P. Reynolds, the husband of the said Jennie Reynolds, was duly adjudicated a bankrupt by the U. S. District Court, for the -Southern District of New York in Bankruptcy, on or about the 1st day of March, 1874, as of the 20th of February, 1874, and that by an order made in said proceeding one Napoleon Godone claims to have been appointed assignee in bankruptcy of the effects of the said Alfred P. Reynolds.”
    “That the said Napoleon Godone has notified defendants that said note was the property of said Alfred P. Reynolds, and as such became and is now the property .of the said Napoleon Godone, and has forbidden the payment thereof to anybody other than himself.” “These defendants aver that the said Jennie Reynolds and the said Napoleon Godone are necessary parties to this action and to a complete determination thereof, and pray that the plaintiff may be compelled to bring them into this action, arid that an adjudication may be made herein which shall protect these defendants from the claims of the said several parties.”

      On motion of plaintiff’s counsel at the trial the court directed judgment on the pleadings for the plaintiff, for the amount of the note and interest, the exceptions to be heard in the first instance at the general term.

      James W. Monk, attorney for plaintiff; Daniel T. Walden, of counsel.

      Thomas Darlington, attorney for defendant; Samuel Jones, of counsel.
   By the Court.—Curtis, J.

The admission in the answer of the making and endorsing by defendants of a note, like that set forth ” in the complaint, unaccompanied with anything tending to show that it was a distinct note from that described in the complaint, and on which the action is bought, must be held to refer to the note sued upon.

The answer does not put in issue plaintiff’s claim to be the lawful holder of the note, but states facts showing that the plaintiff is the holder of the note, as collateral security for a loan.

The plaintiff is the holder of a negotiable promissory note endorsed by the payees. It is not alleged in the answer that he received it, with notice that it was delivered to Dobbs for any specific purpose, or of any equities between the parties, or as security for an antecedent debt. On the contrary, the answer states that the note was delivered to the plaintiff as security for money loaned by the plaintiff to Dobbs, the then holder of the note. The answer discloses facts showing that the plaintiff is a holder of the note for value, and does not question his good faith in becoming such holder. Ho burden is cast on the plaintiff to show that he is a tona fide holder.

In the Bank of New York v. Vanderhorst (32 N, Y. 553), affirming 1 Robt. 211, it is held. that, taking a note as collateral security under such circumstances constitutes a holder for value. The principle, that when commercial paper is received as security for an advance made upon it at the time, without notice of any defects of title, the law merchant protects the transferee against all latent equities, whether of third persons or parties to the instrument, is recognized in Weaver v. Barden (49 N. Y. 294, 295), and in Muller v. Pondir (55 N. Y. 332).

The plaintiff thus holding the note as a pledge, the law confers on him the power to receive the whole money from the makers of the note, and to sue for its collection. The money when so received is simply held by him as a substitute for the note, and subject to all the terms and conditions affecting it (Garlick v. James, 12 John. 146).

In Wheeler v. Newbould (16 N. Y. 392), the decision of this court, that the pledgee of commercial paper; in the absence of any special powers, was bound to hold and collect it, and apply the money to the payment of the loan, and return the balance, if any, was affirmed.

The allegation of the answer, to the effect that there are other parties claiming title to the note, or to the proceeds, are of no force. The law affords the defendants a proper remedy for their protection in such a contingency, which they have not thought fit to resort to, and the proceeds of the note are to be reached through the plaintiff.

The exceptions should be overruled, and judgment ordered for the plaintiff upon the verdict, with costs.

Monell, Ch. J., and Speir, J., concurred.