author: By the Court—Woodruff, J.

text:
    Edmund Griffin v. Hiram Cranston, Curtis Judson et al.

    1. When an action is tried before the Court without a jury, and the decision does not dispose of all the questions in controversy but directs a reference to state an account, no appeal regularly lies to the General Term from the order or decree until after such reference and final judgment thereon.
    2. But when the trial of an action is begun all the issues should be tried and disposed of, so far as the reference ordered to take the account does not embrace them. There are not to be two trials, one before and one after the reference. Where a reference is ordered on a trial, in order to enable the Court to give judgment, the hearing which may be had on the coming in of the report of the Referee is not to be a trial, but a mere review of what has been done before the Referee, and its confirmation or the contrary, and the application of the decisions already made on the trial to .the account stated.
    3. If the trial begun before the Court is terminated without deciding all the questions which ought to be determined before the reference is directed, and is left so unfinished that it should properly be deemed a mistrial, then an order made on such a trial, ordering a reference and appointing a Receiver, may be appealed from. Such a case is not within section 268 of the Code, forbidding the review of what is done on a trial before a Judge, except by appeal from the judgment.
    4. And where an appeal to the General Term was taken from an order made on a trial without a jury, appointing a Receiver and directing a reference to state an account between the parties, and such appeal was argued and decided upon the merits, all of the proceedings on the trial being reviewed and considered and a new trial ordered, the Court refused to vacate the order granting a new trial and so reinstate the order of reference and appointment of a Receiver, which they have decided to be erroneously made.
    5. The proceedings on the appeal to the General Term in the case, as last stated, were not without jurisdiction, in such sense that the order of the General Term was void; nor will those proceedings embarrass the plaintiff in prosecuting his case on the new trial and subsequent proceedings to final judgment.
    (Before all the Justices.)
    Heard, November 12th;
    decided, November 26th, 1859.
    Motion by the plaintiff to vacate an order for a new trial, made at a previous General Term. The action was brought by a judgment creditor of one member of an alleged co-partnership, in carrying on a hotel, to set aside an assignment and for an account of the debtor’s interest in the business. It was tried at Special Term before a Judge without a jury, and after the cause had been submitted for decision the Judge determined some of the questions in controversy; the fact -of co-partnership, the terms thereof, and the liability, to account, and right to distribution, and directed a reference to state an account between the parties. And he also directed the Eeferee (in case certain security was not given by the defendant) to appoint a Eeceiver who should take possession of the property of the co-partnership, carry on the business of the hotel until a sale could be made, sell the property, and collect the debts and hold all proceeds to be disposed of and appropriated according to the rights of the parties as they may be finally settled; and, reserving the question at what day the partnership is to be deemed to have terminated, the Eeferee was to so state the account that on the determination of the precise day the account would furnish the materials for directing a distribution or-appropriation of the property as might be just, which soever of the disputed days might be determied thereafter by the Court as the day of the dissolution.
    From the order (in the nature of an interlocutory decree under our former Chancery system,) an appeal was taken to the General Term. On that appeal the general merits of the cause were considered and the principles of the decision and the exceptions taken on the trial, and a new trial was ordered.
    A more full statement of the nature of the controversy, the issues between the parties, the order made at the trial and the decision of the General Term, are contained in the report thereof. (1 Bosw., at page 281, et seq.)

    From the order granting a new trial the plaintiff appealed to the Court of Appeals, giving the stipulation required by the act of 1857. (Laws of 1857, chap. 723; § 11 of Code, subd. 2.)
    That Court dismissed the appeal upon the ground that until a complete and final disposition of all questions, whether of liability or its amount, capable of being litigated in the cause, no appeal would lie to that Court; and that the act of 1857, allowing an appeal from an order granting a new trial, would only apply to cases in which judgment absolute could be directed, finally disposing of all such questions. And in the memorandum of the views of the Court, said to exhibit the grounds of dismissal, it was intimated that the appeal to the General Term of this Court was premature, and that the order granting a new trial might perhaps be vacated by this Court.

      Thereupon the plaintiff moved this Court in General Term to vacate the order reversing the decision at Special Term and directing a new trial, which was entered on the decision reported in 1st Bos worth. That report and the opinion given on this motion give all the facts which it is material to state.

      David Dudley Field, for the plaintiff, in support of the motion argued:
    1st. That the General Term, before which the appeal was argued and by which the order of reversal and for a new trial was made, had no jurisdiction to hear or determine the appeal.
    2d. That there was no power to stop a trial which was in progress before a single Judge; that in this case the trial was unfinished; that the plaintiff was entitled to go on and finish the trial, and have the questions which had been left undecided, determined. The decisions which the Judge had made at Special Term to stand, and to govern the reference which should now proceed upon the principles directed at Special Term, just as if no appeal had been taken to the General Term, and that a Eeceiver should be appointed as directed.
    3d. That the order of the General Term having been made without jurisdiction should nevertheless be vacated as an incumbrance to the record, and possibly embarrassing the orderly conduct of the cause in the future.

      H. F. Olarlc, for the defendants in opposition, insisted:
    1st. That the General Term had jurisdiction to hear the appeal which they did hear and determine; that so far as the order appealed from appointed a Eeceiver, it was appealable by the express terms of the Code as an order granting a provisional remedy. (Code, § 249.)
    2d. That on the merits the order for a Eeceiver should have been reversed as it was.
    3d. That the plaintiff did not raise the objection that the appeal was not properly taken when the said appeal was heard, and he 'is therefore concluded. He is now too late, after a reversal of the order appealed from, to ask that the reversal be vacated on any such ground. He should have moved before the hearing to dismiss the appeal.
   By the Court—Woodruff, J.

The Court of Appeals have decided that no appeal will lie to that Court from the order or decree made herein, until the reference thereby directed shall have been had and a final judgment entered: that such decree, or order, is not a final judgment within the meaning of that term, as used in the Code.

The insuperable obstacle to a hearing of an appeal in the present stage of the action is, that that Court has no jurisdiction to entertain the appeal.

This Court, in General Term, have decided, in a similar case, (Lawrence v. The Farmers’ Loan and Trust Co., 6 Duer, 689; 15 How. Pr. R., 57,) on a motion to dismiss an appeal, that a decision made on a trial by the Court without a jury can only be reviewed on an appeal from the judgment, and that, where the decision and order direct a reference to take an account, that appeal cannot be taken until the account has been taken and all questions arising upon it have been disposed of at Special Term; and that an appeal, such as was heretofore taken in this cause from the order or decree in question, will be dismissed on motion; and that the term “judgment,” from which an appeal may be taken to the General Term, means the same thing as a judgment from which an appeal can be taken to the Court of Appeals.

In the present case, the order or decree appealed from directed the Referee, (in the event that certain security was not given by the defendant,) to appoint a Receiver, who should take possession of all the property alleged to belong to the partnership to which the controversy relates, and should carry on the business of the hotel in question until a sale could be made; should sell the property and collect the debts, &c., and hold the proceeds (as Receiver) to be disposed of according to the rights and interests of the parties as they may be finally settled. '

If the proceedings had at Special Term are not so defective that they must be deemed a mistrial, then, unless the circumstance that provision was thus made tor the appointment of a Receiver creates a material distinction from the case decided in this Court, it is to be deemed now settled, not only that the Court of Appeals have no jurisdiction to entertain an appeal in the present stage of this cause, but that this Court would have been bound to dismiss the appeal which was taken herein to the General Term, had the respondent moved for such dismissal.

The present motion, therefore, seems to us to raise two questions only which are open to discussion:

First, Do the conduct of the cause on the trial, the unfinished state in which the trial was left, and the appointment of a Receiver in the order, so distinguish this case from Lawrence v. The Farmers' Loan and Trust Company as to make the order appealable? and,

Second, Was the General Term of this Court without jurisdiction to hear and determine the appeal, in that sense that their determination was either void or so erroneous that it will render the future proceedings in the cause also erroneous ?

1. In relation to the first question, it should be stated that the order or decree in question does not purport to determine all of the matters in issue.

A question, upon which the result of the litigation may depend, is reserved until the coming in of the report of the Referee, viz., whether the partnership between the defendants terminated on the 5th of December, 1854, or continued down to the present time. Upon the decision of that question may depend the question whether there is any property belonging to the defendant Judson, or any interest in the co-partnership property which the plaintiff, his creditor, can reach. For, if the co-partnership be then deemed dissolved, the whole property may be necessary for the payment of the co-partnership debts.

The case, then, is one in which, a trial having been begun, the Court determine a part only of the issues, and, not deciding one without which the rights of the parties cannot be determined, order the cause to a reference and appoint a Receiver. It is not a cause in which every question on which the rights of the parties depend is decided, and the application of the decision to the state of the accounts by mere computation only remains to be done.

In a suit brought for an accounting, a trial may be had, and, on determining all the questions material to the issues, an accounting may be directed as the very relief prayed for, and such accounting may be directed to be had after the trial and before a Referee.

And when it is necessary tnat an account be taken for the information of the • Court, no doubt that may be directed to be taken before the trial of the cause in a case proper for the submission of the other questions to the Court or to the jury. But we apprehend that, whenever the trial is begun, whether it be the trial of the issues before the account is taken, or the trial of the remaining questions after the account is taken, it must be finished; and that part of the issues cannot be tried before the account is taken, and the residue afterwards at a subsequent term.

Where a trial is had before an accounting is directed, it should determine all the issues. Such questions as arise on taking the account are, of course, to be disposed of by the Referee; but we do not think that there can regularly be two trials of the same cause—one before and one after the accounting is had. A hearing on the report of the Referee, if any hearing is necessary in such case, is not a trial; it is a mere review of what has been done on the reference and the confirmation or setting aside of the report, or the application of the decisions made on the trial to the account stated.

The question, then, recurs: Is an order or decree, made on an unfinished trial, deciding some of the issues and appointing a Receiver, appealable?

We are not prepared to hold that every order which a Judge may make in a cause after he has begun a trial thereof, which he does not finish, is an order that cannot be reviewed on appeal, although it purports to be founded on the facts proved before him.

If, in fact, though the trial is begun, it is not completed, but is, in truth, a mistrial, it seems to us that the orders made and entered by the Judge may be appealed from as interlocutory •orders. That there should be some mode of setting aside, or of reversing, such orders, cannot be doubted.

If we hold that section 268 is applicable to such orders, and that they can only be reviewed on appeal from the judgment, then no motion to set them aside could be entertained; and, if not appealable, they must stand as valid orders in the action until a future trial shall be had and a final judgment rendered.

■This is not the meaning or effect of the section referred to. That has no application to a mistrial or the orders made thereon.

If this be correct, and the view above suggested of the trial" herein be just, then the order herein was appealable, and we ought not to disturb the order of reversal and order granting a new trial, merely because it was made upon a review of the merits and not on the grounds above stated.

Indeed, it seems to us that one of three views must be taken of the present condition of the cause.

Either the proceedings had at Special Term must be treated as of no effect, because the trial, though begun, was not finished and the term was ended;

Or, the orders there made should be set aside on motion, for the same reason;

Or, those orders were properly appealable, because made on what has practically proved to be no trial.

We regard the latter as the most suitable and orderly mode of avoiding such orders, and that nothing in section 268 forbids it. They are not made under the circumstances contemplated by that section.

But, without resting the determination of the present motion on this ground alone, we inquire,

2. Assuming that the proceedings at Special Term are to be regarded as a trial of the action, (although unfinished,) was the General Term without jurisdiction to hear and determine the appeal, in such sense that their determination was either void or so erroneous that it will render the future proceedings in the cause also erroneous ?

The remaining question is thus stated, because, if the proceedings heretofore had upon the appeal are wholly void, they ought not to incumber the record and present a palpable incongruity and conflict between the orders of the Court and the subsequent proceedings which, in that view, may properly be taken in disregard thereof. And if, though not wholly void, the proceedings are so erroneous as to render the subsequent proceedings in the cause, had in conformity with the directions of the General Term, also erroneous, then the error ought to be corrected at once, to save expense and delay in the prosecution of further and future appeals to correct the error.

But, on the other hand, if, when the respondent did not move to dismiss the appeal, but suffered the same to proceed to a hearing and determination, the question is- one of regularity merely, and the decision of the General Term is operative and binding on the parties, and will not render such subsequent proceedings erroneous, then, although the General Term would have dismissed the appeal had a motion to dismiss been made, we ought not now to set aside "the proceedings,, for two reasons: First, Because, viewed as a mere irregularity, it is cured by the appearance of both parties to argue and the actual argument of the merits; and, Second, Because, on the merits, the General Term have decided that the order appealed from was erroneously made, and, therefore, to now vacate the reversal and send the parties to a reference in the face of that decision, under which the whole must hereafter be reversed, (when the reference has been had,} is- apparently subjecting the parties to great expense, trouble and delay for no useful purpose; and, in respect to the Receivership, it would break up the defendants’ business by force of a decision decided by the General Term to be wrong.

It is true that a General Term of this Court may, on the coming up of a future appeal, be so constituted that the opinions of the General Term already announced herein will not be followed; but we do not think our action here should recognize such a possibility. We should regard the decision which was in fact made; and if so, the setting aside of the order of reversal can be of no advantage to either party, but quite the contrary, and we are satisfied that, if the plaintiff proceeds to the new trial which has been ordered, his proceeding will be, in all respects, safe, and cannot be assailed by the defendants. The motion should be denied; the costs of the motion, (under the peculiar circumstances in which the motion was made,) to be costs in the cause, and abide the event.

Ordered accordingly.


source: Caselaw Access Project

author: By the Court—Bosworth, Ch. J.

license: Public Domain

text:
    John A. C. Gray et al., Plaintiffs and Appellants, v. Isaac Kendall et al., Defendants and Respondents.
    1. Where an action is brought by several creditors of a limited partnership, as plaintiffs, against the members of such partnership and their general assignee, under an assignment made for the benefit of creditors, to remove such assignee, procure the appointment of a Receiver, and compel a distribution of the assets, and the complaint merely states that one of such plaintiffs is a creditor in a sum specified, “ on several promissory notes of said firm made before the execution of said assignment,” and that another plaintiff is “ a creditor in the sum of $1,900 and upwards,” the complaint will be ordered to be made more definite and certain, so as to state the several causes of action as particularly as is requisite in an action to recover a judgment in personam for the same causes of action.
    2. Where several persons not united in interest join as plaintiffs in an action, the complaint to be verified as the Code requires, must be verified by the oaths of the plaintiffs severally, who are not united in interest.
    Before Bosworth, Oh. J., and Woodruff and Monorief, J. J.)
    Heard, December 10;
    decided, December 17, 1859.
    This is an appeal by the plaintiffs from an order requiring their complaint to be made more definite and certain, and as amended to be verified by the plaintiffs severally who are not united in interest. This action is brought by three several creditors (hereinafter named) of the late limited partnership of “ Ely, Bowen & McConnell,” and is brought on behalf of the plaintiffs and all other creditors of that partnership who shall come in and contribute to the expenses of this action.
    It is brought against all of the members of said limited partnership, and also against Isaac Kendall, to whom said partners have assigned all the partnership property in trust for the benefit of the creditors of the partnership, without preferences.
    The action is brought to remove the assignee and obtain from him an account as such, and to procure the appointment of a Receiver to convert and distribute the property of the partnership among its creditors.
    The complaint states that the plaintiff, John A. C. Gray, is a creditor of said partnership “ for the sum of $50,000 and upwards, on several promissory notes of said firm, made before the execution of said assignment.
    “ That the plaintiffs, William 0. Haggerty and. Ogden Haggerty, are creditors of said Ely, Bowen & McConnell, in the sum of $1,900 and upwards.
    “ That the plaintiff, David Wagstaff, is a creditor of said Ely, Bowen & McConnell, in the sum of $9,000 and upwards, on several promissory notes of said Ely, Bowen and McConnell, made before the execution of said assignment.”
    The complaint is verified by the affidavit of John A. C. Gray alone.
    On the 11th of November, 1859, an order was made by Mr. Justice Slossok, requiring the- complaint to be made-more definite and certain in its statements of the nature and particulars of the alleged indebtedness of the limited partnership to the several plaintiffs, and that it be amended so as to state when and for what such indebtedness was contracted, and the dates and particulars of any notes given on account thereof, or that copies of such notes be set forth, and providing that the complaint, when so amended, be verified by each class of plaintiffs, or if that be not done, that the defendants be at liberty to serve an unverified answer. From that order the present appeal is taken.

      H. Smales, for appellants.
    I. The fact that the plaintiffs are creditors of the assignors is the only material fact; the precise amount of the debts and the particulars required by the order are wholly immaterial.
    1. The amendment would render it necessary to set forth over sixty promissory notes, besides other matters, making the complaint double its present length, while the production of a single note (held by each creditor) on the trial, or proof of any portion. o'f his debt, would be sufficient to sustain this part of the plaintiffs’ case.
    2. The amendment would tender a large number of immaterial issues, and burdei^ the defendants with the necessity of taking issue on them.
    3. If all the particulars required by the order had been inserted in the complaint, the Court, on defendants’ motion, would have stricken them out as redundant.

      4. The question is, not the amount of indebtedness, or its nature, but the simple fact whether or not the plaintiffs are creditors.
    5. The statements as to Gray and Wagstaff (at least) are sufficient. They are stated to be creditors on “ several promissory notes of the assignors made before the assignment.”
    6. If the particulars are required to enable the defendants to go to trial, they could be obtained by a bill of particulars, without burdening the record with useless averments.
    II. It is sufficient for one of several parties, “ united in interest and pleading together,” to verify a complaint.
    There are several decisions that, where defendants have separate and unconnected defenses, as in case of action against maker and indorsers of a note, &c., each must verify the answer; but no case has been decided requiring a complaint to be verified by more than one of the plaintiffs.
    1. The object of verification of a complaint is to insure its general truthfulness and bona fides, not the absolute verity of each fact alleged.
    It may be made by an agent whollv on information and belief, or by the attorney, in case of absence of the party from the county in which the former resides.
    2. The plaintiffs are “ united in interest ” in the subject matter of the action; therefore, by the Code, the verification by one is sufficient.
    '3. The order, in this respect, is wholly unsupported by authority, and contrary to the practice from the first passage of the Code.
    4. The mode of verification is directed by the statute, and cannot be varied by order of a Judge. In this case, should either of the plaintiffs, Gray or Wagstaff, be absent, a verification by all the other plaintiffs would not be within the Judge’s order, and might be disregarded. v The order appealed from should be vacated.

      Geo. W. Parsons, for respondents.
    I. Where defects in a complaint are not of such a substantial nature as to be available under the ground of demurrer, that it does not state facts sufficient to constitute a cause of action, the remedy is by motion, under section 160, to strike out or make the faulty pleading more definite and certain.
    Such proceeding has taken the place of demurrer for want of form. (Prindle v. Caruthers, 15 N. Y. R., 425.)
    1. It is claimed that the Code requires not merely true propositions to be stated, but physical facts, capable as such of being established by evidence, oral or documentary, and leave it for the Court to draw the conclusion of law. (Lawrence v. Wright, 2 Duer, 674, [Duer, J.;] Corey v. Mann, 14 How. Pr. R., 164; White v. Brown, id., 284; Code, § 142, subd., 2.)
    2. Also, that every fact which the plaintiff must prove to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly stated. (Allen v. Patterson, 3 Seld., 478; Eno v. Woodworth, 4 Comst., 249; Page v. Boyd, 11 How. Pr. R., 415; Howard v. Tiffany, 3 Sand., 695; Adams v. Holley, 12 How. Pr. R., 326; Thomas v. Desmond, id., 321.)
    II. Judged of by the above rules, the complaint is clearly defective in not stating all the facts which constitute the several causes of action, which enable the plaintiffs to maintain such an action against defendants.
    1. It is not disputed that it is necessary that plaintiffs should severally be creditors to have a standing in Court in such an action.
    2. How, then, can they escape the necessity of making proper averments of facts which will enable the Court to conclude, as matter of law, that they are creditors ? Must they not, if disputed, prove facts which show them to be creditors ? If so, then the rule established by the Court of Appeals, in the case of Allen v. Patterson, (3 Seld., 478,) applies. This says: “Every fact which the plaintiff must prove to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly averred or stated.”
    3. If this be true as to one of the claims, it must be true as to all of them, and it is not sufficient, as plaintiffs seemed to suppose on the argument at Special Term, to show one valid claim belonging to each plaintiff constituting him a creditor.

      (a.) It is admitted that the ownership of any valid claim over $100 by the plaintiffs severally, would entitle them to bring this action, but having made claim to be creditors in certain specified amounts, they are bound to state facts which show them to be creditors in the amount stated.
    4. The question whether they are creditors or not, is one upon which the defendants have a right to take issue; and it is impossible for them to do this without the averments required to be made by the order of the Special Term.
    III. It was necessary that the complaint should be verified by or on behalf of each class of plaintiffs.
    1. The plaintiff who did verify the complaint, could not possibly know that the allegations in the complaint, touching the claims and rights of his co-plaintiffs, were true, and we have a right to purge the conscience of each plaintiff or class of plaintiffs.
    2. If their complaint is to be treated as a verified complaint, the oaths of the plaintiffs, several in interest, should be upon the record.
    3. It has been repeatedly held that when different parties to a promissory note are sued together, under the statute, even if the parties have a common defense and join in their answer, the pleading must be verified by all the parties. (Hull v. Ball, 14 How. Pr. R., 305 ; Andrews v. Storms, 5 Sand., 609; Youngs v. Seely, 12 How. Pr. R., 395.)
    The remedy by motion was the proper one, and the order of the Special Term should be affirmed, with costs.
   By the Court—Bosworth, Ch. J.

This action cannot be maintained unless the plaintiffs were, or unless some one of them was a creditor of the limited partnership of Ely, Bowen & McConnell at the time the action was commenced.

The allegations employed to show that they were such creditors, should be sufficiently definite and specific to inform the defendants when, in what manner, and by what contracts of said firm, it 'is claimed that they became indebted to the plaintiffs severally, and in what amount.

It is as important in a suit like the present, as in one brought to recover a judgment in personam, that these particulars should be stated in order that the defendants may set up by answer that said alleged demands have been paid or settled; or if no such demands ever existed,, that issues may be formed by the pleadings, which will show what claims must be proved to establish the fact that the plaintiffs were severally creditors when this action was commenced.

This will not subject the plaintiffs to any inconvenience which is not common to all plaintiffs who institute an action and claim relief on the ground that the defendants, or some of them, are their debtors.

To allow the plaintiffs, in the present case, to state less than this in their complaint, will expose the defendants to the hazard of having notes made by them, produced and offered in evidence at the trial, which the plaintiffs do not now own, or to which there may be a good defense, without its being in their power'to establish these facts, and that solely because the complaint does not enable them to know what are the notes or causes of action which the plaintiffs intend to prove, to show that they are such creditors as the complaint alleges.

We know of no rule of pleading, nor of any precedent, which sanctions a complaint like the present, in respect to that portion of it to which the order appealed from relates.

In respect to so much of the order as relates to the verification of the amended complaint, it is sufficient to say that the same rule applies to that as to an answer.

When any pleading is verified, “ it must be by the affidavit of the party, or if there be several parties united in interest and pleading together, by at least one of such parties acquainted with the facts, if such party be within the county where the attorney resides, and capable of making the affidavit.” (Code, §§ 156,157, [138, 134.])

It is provided by statute that whenever in any statute any “ party or person is described or referred to by words importing the singular number,” several persons shall be deemed to be included. (2 R. S., 1st ed., 778, § 11)

When the Code requires the verification to be made by the affidavit of the party, it requires the affidavit to be made by every party who unites in such pleading, whose interest is several. If this be not done, the adverse party should not be required to treat it as a pleading verified as the Code requires.

This rule has been applied to answers in which several persons not united in interest have joined. There is no reason why it should not be applied to a complaint in an action commenced by several persons as plaintiffs, who are not united in interest. At all events, the Code does not discriminate between them, but on the contrary applies the same rule to both.

The order should be so modified as not to require any of the plaintiffs, whose demands consist, in whole or in part, of promissory notes made by the limited partnership, to do more in respect thereto than to describe such notes accurately or to set forth copies of them. In other respects it should be affirmed. Order affirmed.


author: Woodruff, J.

text:
    Catherine N. Forrest v. Edwin Forrest.
    1. In an action in which a divorce has been granted and a reference had to settle the amount of alimony, on which reference the testimony is very voluminous and the amount, reported to be just, large, and the defendant’s counsel alleging errors committed by the Referee, and being in doubt whether, under a system of practice recently introduced, it is necessary, in order to review the proceeding, to make a case and move thereon to set aside the report and for a new trial or further hearing before the Referee, or whether he can move on the report and testimony and his exceptions, the Court will extend the time and stay the plaintiff’s proceedings to enable the counsel to determine his course, and prepare his papers.
    2. ‘It seems in such case that the review of the proceedings on such a reference is by a hearing of the exceptions on the testimony, report and minute of proceedings annexed thereto, and that no formal case is necessary. (Rule of Court, No. 32.)
    3. Although in the progress of an action for a divorce alimony pendente lite has been once fixed and allowed to the plaintiff, the amount may be altered and increased upon its appearing that the necessities of the plaintiff require it, and the amount of the defendant’s property is such that the increased allowance is reasonable.
    4. The amount reported to be reasonable by the Referee, appointed to settle the amount of permanent alimony, is not to be taken as the rule in determining the alimony to be allowed pending the further litigation, and while that report is itself in course of being reviewed on exceptions.
    5. In determining the allowance of alimony, the amount of the principal of ithe defendant’s estate being stated by himself, it is just'to assume that he makes that principal yield a reasonable income unless he shows some sufficient reason why he does not and cannot.
    (Before Woodruff, T., at Special Term.)
    Heard, December;
    decided, December 31st, 1859.
    In this action a decree for divorce having been granted, a reference was ordered to inquire what alimony should be allowed to the plaintiff. (6 Duer, 102-151.) Pending the reference and in July, 1859, an order was made allowing temporary alimony at the rate of $200 per month, and that the defendant advance to her $1,500 towards counsel fees and the expenses of the reference. (3 Bosw., 650-656.)
    The reference proceeded; and the amount reported to be just and reasonable by the Referee was $4,000 per annum, and required the payment of a large sum for arrears.
    numerous exceptions were taken by the defendant to the rulings of the Referee on the hearing before him and also to his final decision; and the matter being about to undergo further examination before the Court at Special Term on the report of the Referee, the defendant’s counsel suggested a doubt whether under the present practice it was necessary, in order to review the proceedings before the Referee, that he should make a case as upon a motion for a new trial, or whether, on the other hand, a hearing could be had on the exceptions, and the Referee’s report, to which is annexed the testimony taken and a minute of all the proceedings had before him; and upon such suggestion, and showing that the testimony was voluminous, the defendant moved for twenty days’ additional time within which to prepare a case or exceptions (if a formal case or anything in the nature of a bill of exceptions should be deemed necessary) and for a stay of proceedings.
    A cross-motion was at the same time made on behalf of the plaintiff for an increase of the allowance for alimony pending the further controversy, on showing that the provision heretofore made was insufficient and claiming that the full amount reported by the Referee should be allowed to her, and asking also further provision for expenses and counsel fees.
    The facts material to be noticed are stated in the opinion of the Court. Both motions were argued and decided together.

      John Van Burén, for defendant.

      Chas. O' Conor, for plaintiff.
   Woodruff, J.

The time which I have taken for the consideration of these motions was not so much required by any questions of doubt or difficulty appearing after examination of the papers submitted, as by the number and voluminous character of the papers upon which the motions were respectively made and opposed. Laying out of view, the notoriety which has been given to the litigation, the freedom and extent to which in its various stages it has been the subject of comment, and the bitterness of feeling which has characterized many of the papers presented by the parties from time to time, the questions now raised are not extraordinary, and do not involve .points of novelty or difficulty.

1. The defendant desires to review the proceedings had on a reference involving a question of large pecuniary importance. The result of that reference, if the report of the Referee be confirmed, will require him to pay to the plaintiff a present sum of about $36,000, and in the future an annuity of $4,000. His counsel declares, under the sanction of his oath, his belief that errors have been committed on the reference, to the prejudice of the defendant, which should be the subject of review on a proper presentation to the Court of all the proceedings had before the Referee before the report is confirmed.

The papers which must necessarily be prepared for that review are voluminous, and the counsel expresses some doubt as to the precise form in which that review is to be had.

Additional time is therefore asked to enable the counsel to prepare the case, (if a case be necessary,) in order that the defendant’s right of review be fully preserved to him.

I deem the application in all respects reasonable, and the indulgence sought should be granted. It is the constant practice of the Court to grant a similar indulgence in cases of far less importance, and often when the necessity for further time is far less, and the grounds of the application of slighter force.

As suggested by me on the argument, I am of the opinion that this report may be reviewed, and must be reviewed, in conformity to the 32d of the Ettles of Court, on exception, and that no other “ case" is necessary than copies of the report of the Eeferee and the testimony taken by him, and proceedings had before him, as detailed in the papers annexed to such report, and a copy also of the defendant's exceptions. But I do not deem it my duty, on this motion, to decide that question, either to relieve the counsel from the responsibility of taking such course as they may deem regular, or to endanger the defendant’s rights, by deciding in advance a question- not necessarily involved in the motion before me, especially since, if I should, by such decision, deprive the defendant of the means of a full review of the decisions by which he alleges he has been aggrieved, it might perhaps be impossible at a future day to repair the mischief if I should fall into any error by acting on the opinion above expressed. If he should prepare a case, and it should be deemed irregular and be set aside on motion, he will have lost no rights; while, if I deny him time, he may be remediless.

I may, no doubt, safely assume that the defendant’s attorney has- been reasonably active and industrious since the Eeferee’s report was filed, and, if so, has had already twenty days since the report was filed for the preparation of his papers therein. An additional twenty days will, no doubt, be sufficient within which to determine whether a formal case is necessary, and to prepare it, or complete its preparation. And the order will give him twenty days from the 2d of January, and provide that the plaintiff’s proceedings be stayed, unless the Court at Special Term shall sooner decide to hear the cause under the 32d Eule, or in conformity to the order by which the reference was directed, without any case being made other than a copy of the report and accompanying proofs, &c., and the defendant’s exceptions; in which event the stay of proceedings shall cease, so as to permit the cause to be heard on the report and the exceptions thereto. If the stay of proceedings be not so terminated, it shall continue until the case, if duly made and served, shall be settled.

2. In relation to the plaintiff’s motion for a greater allowance by way of alimony, I do not deem it proper, on the mere ground that the Eeferee has determined, on the evidence before him, that $4,000 a year is a reasonable and proper sum for permanent alimony, to adopt that report before it has been confirmed and while it is claimed by the defendant, under the advice of his counsel, to be liable to exception for grave errors, and require the defendant to pay that amount, while the report itself is undergoing the review which the defendant is entitled to.

Until final judgment, any order for alimony should, I think, be governed by the rules usually regulating the temporary provision which is clearly and palpably just, whatever may be the sum finally awarded. Were I now to adopt the finding and report of the Referee, I might, with propriety, be said to have confirmed it pro hac vice, in advance of the action of the Court upon it, and without a hearing of the defendant upon his objections to the report.

On the other hand, it is quite clear to my mind that—it being finally settled in this Court that the plaintiff is entitled to her judgment of divorce and to alimony on the ground that her husband is guilty and that she is innocent—if I could certainly know, at this time, what sum would be finally awarded, it would be my duty to allow her that sum, else a premium would be offered to the defendant as an inducement to delay the final order to the utmost of his power. But it is impossible that I can be so assuredly informed.

It is," however, equally clear that, though I can have no such certain knowledge, I am bound, if the pecuniary circumstances of the defendant are such as to warrant it, to see that the plaintiff is reasonably and .comfortably provided for until the permanent provision for her shall take effect. And that this is not unjust to the defendant is too plain to require discussion; for, if he were wholly innocent of the charges made against him by the plaintiff, he is bound to make that provision, and his having been found, guilty by the verdict of an impartial jury, on a full and fair trial, cannot render the obligation any less.

Upon consideration of the affidavits on the part of the plaintiff, and taking the defendant’s own testimony before the Referee as a guide to the amount of his estate, I cannot avoid the conclusion that the provision now made for the plaintiff is inadequate. The aggregate of his estate he first states to be $260,000. He after-wards states that the aggregate is $176,800; and his explanation of the difference shows that he has, since this suit was brought, given large amounts of property to his sisters, or purchased and paid for large amounts of property which he has caused to be conveyed to them. Now, without assuming that the defendant is earning anything by his own personal exertions, and requiring only that he obtain a reasonable income from the property he has accumulated, and even recognizing the gifts to his sisters, (which, so far as the plaintiff is to be affected thereby, ought not to be taken as a diminution of his means to her prejudice,) it is plain that she is now entitled to receive, even as temporary alimony, at least $3,000 a year; and he is entirely able to pay it. I am not considering the question of permanent alimony, upon the whole evidence before the Referee; and, in naming $3,000, I am not intimating any opinion on the question whether the report of the Referee is right or not. But, conceding that temporary alimony ought to be fixed at a sum clearly within the limit allowable in fixing permanent alimony,'the sum of $3,000 a year is moderate, with reference to his means and her necessities.

The plaintiff, by her motion, asks for a further sum for expenses and counsel fees. But she has not shown that the moneys provided for such expenses and fees by the order of July last have been expended. Fifteen hundred dollars were directed to be paid, and were, it may be presumed, paid by the defendant.

The plaintiff states that, for expenses of the reference, other than counsel fees, she has paid out upwards of $500. It is true that the Court might presume that she has also paid the balance, or a great portion thereof, to counsel, if they have been fully paid for the conduct of the reference, the proceedings upon which have been produced on this motion. But it is not so stated; and' I prefer not to indulge in conjecture on a subject when the truth might so easily have been shown. If she has $1,000, or thereabouts, unexpended, she has no present need of more, unless, nor until, she has been required to pay it. And, if she has paid it to her counsel, she can easily state it. It will be time enough to make an order when she shows its necessity more distinctly; and for money for expenses of the litigation, she can apply at any time.

The direction as to the alimony will be, that it be paid in monthly sums of $250, instead of $200, as directed in July last.

Costs of the motion will abide the final disposition of costs in the action.


text:
    Jellinghaus v. The New York Insurance Company.
    1. Where a defendant has a verdict against him at the trial, and makes a case to which amendments are served, and judgment is entered on the verdict while the case and amendments are with the Judge to be settled, the Court has the power, after the time to appeal has expired, to relieve the defendant from the judgment, and permit him to be heard on the case.
    2. But in order to justify the granting of such relief, the case should be one of unquestionable mistake on the part of the defendant, and evince perfect good faith, and should be meritorious.
    3. Granting such relief even in such a case is going to the extreme verge of judicial discretion.
    4. If granted, it should be upon terms of securing to the plaintiff payment of his verdict and costs, if a new trial is denied; and an election to admit service of notice of appeal as of the time that it might have been served as a matter of course, and thus restrict the defendant to a hearing, upon such appeal, of any exceptions he may have taken at the trial.
    (Before Boswobth, Oh. J., and Hoffman, Woodruff, Monorief and Robertson, J. J.)
    Heard, February 18;
    decided, February 25, 1860.
    This action was tried on the 28th of January, 1859. A-case containing exceptions taken at the trial was served on the 10th of February, and amendments thereto on the 8th of March, and soon thereafter the exceptions and amendments were left with the Judge to be settled, and were settled in July, 1859.
    ■ In the meantime, and on the 19th of May, judgment was perfected and notice thereof was served on the defendants’ attorney, but no appeal was taken from the judgment.
    After the case was settled and had been engrossed, and in September, 1859, the attorneys met together and examined it with a view to see that it was correctly engrossed and in a proper condition to be printed. The plaintiff’s attorney did not then suggest that the defendants had no right to be heard further, and undoubtedly for the reason that he took it for granted that a notice of appeal had been duly served. Under date of September 20, 1859, plaintiff’s attorney wrote to defendants’ attorney thus: “I learn from my Clerk that no appeal was ever taken in this case.” ' 't

      From that time until the 30th of November, 1859, the attorneys had interviews oral and written as to the posture of the case, and with a view on the part of defendants’ attorney to procure a removal of the obstacles to his being heard on the exceptions. The position taken by the plaintiffs’ attorney was, that although he was willing to oblige the defendant’s attorney in every way possible consistent with his duty to his client; yet that judgment had been regularly entered and notice thereof given, the time to appeal had elapsed, and the case and exceptions could not be heard, and he was not at liberty and had no power to waive the rights which his client had thereby acquired.
    The affidavits show that the defendants’ attorney acted in perfect good faith, and at no time suspected there was a doubt of his right to be heard on the exceptions, until he received the note of the 20th of September, 1859; and that he mislaid and entirely forgot that a notice of the entry of the judgment had been served upon him. On the 20th of November, 1859, he gave notice of a motion to set aside the judgment for irregularity, on the ground that the making of the bill of exceptions, service of amendments thereto and submitting the same for settlement operated as a stay of proceedings; and at all events to be relieved from it on terms on the ground of surprise and mistake.
    That motion was denied by an order made on the 16th of January, 1860, and from that order the defendants appealed to the General Term.

      M. 8. Mnmet, for appellant.

      B. D. Silliman, for respondent.
   By the Court—Bosworth, Ch. J.

Section 174 [149] of the Code allows the Court “in its discretion, and upon such, terms as may be just, at any time within one year after notice thereof, to relieve a party from a judgment * * taken against him through his mistake, inadvertence, surprise, or excusable neglect.”

Before the Code, and prior to the passage of the act of the 13th of April, 1832, (chap. 128,) it was well settled that the service of a bill of exceptions, of amendments thereto, and a submission of them for settlement before judgment had been entered, operated per se as a stay of proceedings. (Roosevelt v. The Heirs of Fulton, 7 Cow., 107; Pelletreau v. Moore, 9 Wend., 498.)

The act of April 13, 1832, allowed judgment to be entered after the exceptions were settled or a case had been made, and the exceptions to be heard subsequently. But that act in terms applied only to the Supreme and Circuit Courts, and did not affect proceedings in this Court, or in the Courts of Common Pleas of the several counties.

The rule in those Courts continued unchanged down to the time the Code took effect. Prior to the act of 1832, bills of exceptions taken at the Circuits were heard in the Supreme Court before judgment was entered. Those taken in the Courts of Common Pleas (except the city and county of Hew York) were reviewed in the first instance by a writ of error from the Supreme Court to the inferior Court.

The Code declares that a motion for a new trial on a case or exceptions, * * * must, in the first instance, be heard and decided at the Circuit or Special Term, except in a single specified case.

It is not surprising that an attorney, conscious that his adversary was distinguished for his fairness and liberality, and therefore not feeling any necessity for extreme watchfulness over the regularity of his proceedings, and having totally forgotten that a notice of entering judgment had been served; should have deceived himself into the conviction that his proceedings were regular and that he had secured the right to be heard on the exceptions. And the plaintiff’s attorney, in declining to waive the default now, does so only because he supposes he has not the power, authority and right to do it.

But the defendants’ attorney does not, by his affidavits, show that he supposed the plaintiff was stayed, by the submission of the proposed exceptions and amendments for settlement, from entering judgment; he seems to have had and acted upon the impression that he would be heard as a matter of course at the General Term.

We think that section 264, [219,] by declaring “ that if a different direction be not given by the Court, the clerk must enter judgment in conformity with the verdict,” in effect, enacts that proceedings shall only be stayed by order of the Court. And that if no stay be granted by the Court or a Judge before judgment is perfected, the defeated party cannot subsequently make a motion for a new trial under section 265 of the Code. Such party, however, if he has taken exceptions may appeal from the judgment and on such appeal have th'e exceptions considered, provided he prepares a bill of exceptions and has it settled, within the time prescribed by the rules of the Court.

If the meaning and effect of section 264 be not such as is above suggested, then it does not occur to me that the provisions of the Code are inconsistent with the rule declared in 7 Cowen and 9 Wendell, (supra,) and if they are not, section 469 would justify the belief that it continued in force.

But I think the provisions of the Code do not favor the conclusion that a bill of exceptions per se stays the entry of judgment. It did not in the Supreme Court after the act of 1832 (supra) was passed, and that act has no application to suits commenced under the Code.

In this view the plaintiff is entirely regular. The defendants had no right to be heard at Special Term after the judgment had been regularly perfected. (15 J. R., 354; 4 Hill, 125.)

They could not be heard at General Term because they omitted to appeal within the time allowed by law.

It is very clear, however, that this has resulted from the mistake of the defendants’ attorney. And, practically, the question is, is he so utterly without excuse that his clients must abide by the consequences of it.

It is very clear, that he acted in good faith. He prepared his case promptly; and there seems to be no want of diligence, after he knew it was settled, to get it in a condition to be brought before the Court.

He had forgotten that he had ever been served with a notice of judgment, and even now has no recollection of it. This is easily explained, when it appears that he supposed he had a right to be heard as a matter of course. Having that conviction, service of such a notice would be regarded by him as unimportant, and would make no impression and would not be recollected.

Some two months at least, after the time to appeal had expired he and the plaintiff’s attorney met and compared an engrossed copy of the bill of exceptions with the proposed exceptions and amendments, and the alterations therein, made by the Judge in settling them.

This labor was expended by both attorneys under the conviction of both, that the case was one on which the defendants had a right to be heard, and on which he would be heard as a matter of course, the one supposing that no notice of appeal was necessary, and the other that a notice of appeal had been duly served.

In the present case, a hearing can be had, without subjecting the plaintiff to any prejudice, except such as may result from the mere delay that must occur to enable such hearing to be had. The defendants can be compelled, as a condition to granting them any relief, to give perfect security to pay the sum recovered with interest and costs, if such security be deemed of any importance.

Under such circumstances, as the good faith of the defendants’ attorney cannot be and is not questioned, as it is indisputable that it is wholly owing to his mistake, in respect to the proper practice to be pursued, that his clients have lost the privilege to be heard as a matter of strict right; and as a hearing can be had without much delay, and as the plaintiff can be made perfectly secure of being paid the verdict, with interest and costs, (if the verdict be just and ought to stand,) I think the plaintiff should be relieved from the judgment.

It is not questioned that the exceptions taken present points deserving a careful consideration.

In Case v. Shepherd, (1 J. C., 245, in 1800,) the Court allowed a motion for a new trial on a case to be heard after judgment perfected, on the ground that the defendant’s attorney had misconstrued the. 4th Rule of January Term, 1799. In the same case, the rule was stated to be that the Court, “will not hear an argument to set aside a verdict, default or inquisition, after a judgment has been duly entered.”

In Jackson, ex dem., v. Chace, (15 J. R., 854, in 1818,) the Court refused to hear a motion for a new trial on the ground of newly discovered evidence, noticed to be made after judgment perfected. The Court said, “in no case has a motion for a new trial been heard, after a judgment has been regularly perfected. The case of Shepherd arose soon after the present rules and orders of the Court were made, and the Court, under the particular circumstances of the case, of an alleged misapprehension of the meaning of the 4th Rule of January Term, 1799, allowed the motion to be made.”

In Savage v. Hicks, (2 Wend., 246, in 1829,)'thirty years after the practice had been settled, that such a motion could not be made after judgment perfected, the Court granted that relief, on the ground that a case had been made in good faith and served before the judgment was entered. It was an inadvertence of the attorney that he had omitted to obtain a stay of proceedings until the case could be heard. (Hawkins v. The Dutchess and Orange Steamboat Co., 7 Cow., 467.)

In the present suit as in that, a case was duly made and settled, and it was done in good faith. In this suit, after the case was settled, the attorneys met together and compared it with an engrossed copy, so that it could be ascertained that the defendants’ attorney might have it printed or copies made for the hearing, without any hazard of future changes by a motion to resettle it or otherwise, and both attorneys undoubtedly then supposed that the defendants could be heard upon it as • a matter of strict right.

During the interval between the passage of the act of April, 1832, (supra,) and the enactment of the Code, the right to be heard after judgment perfected, in actions in the Supreme Court, was a strict right.

The Code, as enacted in 1848, did not permit a judgment to be entered until after the expiration of four days from the verdict. (Laws of 1848, p. 538, § 220.)

As amended in 1849, judgment could be’entered at once, and it became final after the expiration of four days, “ unless the Court or a Judge thereof ordered the case to be reserved for argument or further consideration, or granted a stay of proceedings. (Laws of 1849, p. 667, § 265.)

This language might be understood as authorizing a motion for a new trial after judgment entered, provided an order was obtained within the four days directing it, or staying proceedings.

The Code, as amended in 1852, authorized the Justice trying a cause to stay the entry of judgment and further proceedings thereon ” until a motion for a new trial could be heard and decided, whether made upon the grounds of surprise or irregularity, or upon a case or bill of exceptions. (Code of 1851, §264.)

In 1852, sections 264 and 265, so far as they affect the questions of practice now under consideration, were enacted in their present form. They omit the provision found in section 264 of the Code of 1851, as to staying the entry of judgment, and as section 264 now reads, the clerk must enter judgment in conformity with the verdict if a different direction be not given by the Court.

However plain the practice may appear to those who understand it correctly and are perfectly familiar with it, I think the evidence is entirely satisfactory that it was misunderstood in the present instance, and that the attorney was using respectable diligence to prepare for a hearing upon the case, which he had made in entire good faith. He presents grounds addressing themselves more forcibly on behalf of the equitable interposition of the Court than are disclosed by the report of Savage v. Hicks ; and as no injury can result to any party from granting the relief sought, while possibly the ends of justice may be promoted, the defendants should be permitted to be heard.

At the same time I deem it proper to say, that to justify the granting of such relief the case should be one of unquestionable mistake, and evincing perfect good faith, and should be merritorious, and even then to grant such relief is going to the extreme verge of judicial discretion.

The judgment may be set aside on payment of the costs of entering it, and of the subsequent proceedings, including $10 costs of this appeal, and giving security for the payment of the verdict, with interest and costs \ but the plaintiff’s attorney, by electing to admit due service of a notice of appeal from the judgment, as of a day when it might have regularly been served, may retain the judgment and restrict the defendants to a hearing of their exceptions upon such appeal.

Ordered accordingly.


text:
    Ruberry v. Binns and Halsted.
    1. On an application for a discovery of books, in order to enable the plaintiff to prepare his complaint, if it appear that the plaintiff is seeking to recover moneys received by the defendants, as his factors and agents, selling his goods, and they have not rendered accounts of sales in full, the Court will order them to render such account or give a copy of their book showing such sales from the time of the last account of sales rendered. The plaintiff, upon those facts, is entitled to such account of right.
    2. But under color of an application for such a purpose, the plaintiff is not entitled to examine the defendants’ books at large, or to have copies of them, for the purpose of seeing whether they conflict with the accounts of sales heretofore rendered.
    (Before Woodruff, J.)
    At Special Term; March 10th, 1860.
    The plaintiff herein having commenced this action by service of the summons, applied by motion to compel the defendants to produce their books of account and submit them to the plaintiff for his inspection, or to furnish the plaintiff sworn copies of so much and such parts of their books as contained any memorandum or entry relating to goods consigned to them, as the factors and agents of the plaintiff, for sale; and the ground on which the discovery was sought was, that the defendants were such agents and factors, that the action was brought to recover from them the property and proceeds of sales, and that the discovery is necessary to enable the plaintiff to frame his complaint in this action.
    The defendants showed, in opposition, that they had rendered full and detailed accounts of all sales made down to July, 1859.

      Weeks & Be Forest, for the plaintiff, in support of the motion.

      J. B. & T. B. Sherwood, for the defendants, in opposition thereto.
   Woodruff, J.

As the agents or factors of the plaintiff, the defendants are bound to render accounts of goods sold and moneys collected, and the right of the plaintiff to have such an account, upon the facts stated in the affidavits on both sides, admits of no controversy; and it is reasonable that the plaintiff should" have the information which such an account would furnish, before he is compelled to frame his complaint.

But there is no necessity that he should be permitted to examine the defendants’ books at large. He can frame his complaint without any such aid.

He presumptively knows what goods the defendants have-received. He has received accounts down to July last. He is not entitled to a discovery for the purpose of exploring the books to see whether perchance he may not discover something in conflict with the accounts rendered.

The defendants must furnish a sworn statement of all sales made and moneys collected since the 1st of July last, or produce and deposit with the clerk of the Court such of his books as will show those sales and receipts.

Costs of motion, $10, to abide the event.


author: Hoffman, J.

text:
    Emil Heinemann, Plaintiff, (Appellant,) v. Benjamin Waterbury, Defendant, (Respondent.)
    1. Upon the filing of the decision of a Referee determining the cause, it is the duty of the clerk to enter the judgment directed by such decision; and if the prevailing party dogs not choose to furnish to the clerk a judgment roll, it is the duty of the clerk to collect from the files such papers as constitute such roll, and attach thereto a copy of the judgment. (Code, §281.)
    2. It is optional with the prevailing party to furnish a judgment roll or not, and he cannot be compelled by an order the Court to cause a judgment roll to be filed.
    3. An order requiring the prevailing party to cause the judgment roll to be filed, and to pay costs of the motion, is an appealable order, and will be reversed.
    4. ’ The question whether, when a judgment by default has been directed to stand as security, but the defendant suffered to defend, a second judgment should be entered on a subsequent recovery of verdict or decision by a Referee in favor of the plaintiff, discussed by Hoffman, J.
    (Before Hoffman, Woodruff, Pierrepont, Monorief and Robertson, J. J.)
    Heard,. March 17th;
    decided, March 31st. 1860.)

      The order appealed from in this case is as follows: On reading and filing affidavit of Benjamin Waterbury and notice of motion and order to show cause, and after hearing, &c., ordered that the plaintiff cause the judgment roll in this action, upon the report of the Eeferee therein, to be filed within ten days after service of a copy of this order, and pay to the defendant’s attorney $10 costs of this motion.
    The notice of motion was for an order directing the plaintiff to file the judgment roll, or permitting the defendant to do so.
    The affidavit on which the motion was made set forth that the action had been referred to a Eeferee, who made his decision on or about the 16th of January, 1860, in favor of the plaintiff; that the costs were taxed on the plaintiff’s notice on the 3d of February, 1860; that on the trial some exceptions were taken by the defendant’s counsel to the ruling of the Eeferee; that the defendant desired to appeal to the General Term from the decision, and in order to do so is desirous that the judgment should be entered and the judgment roll filed; that the plaintiff’s attorney has been requested to enter the judgment and file the judgment roll, but has declined to do so.
    It appears from an order in the cause of the 24th of December, 1858, that a motion had been made to set aside an inquest, judgment and levy under an execution in the cause, on which motion the defendant was permitted to have a trial of the issues joined in the action, for which purpose it was referred to W. Mitchell to hear and determine the issues joined therein, and that the judgment already entered, and the levy under the execution issued therein, stand as security for any amount that may finally-be recovered by the plaintiff. Permission was given to have the execution and levy vacated upon certain terms as to security. It is not stated whether those terms were complied with and the execution and levy set aside or not.
    From the order peremptorily directing the plaintiff to cause a judgment roll to be filed as above stated, the plaintiff appealed.

      Jeremiah Larocque, for appellant,
    Among other things, insisted that there could not be two judgments in the same action.

      That he was entitled to retain the judgment first entered in favor of the plaintiff, with all the advantages which the entry and docketing thereof and the levy made secured to him; and that if he were to enter a second judgment, or assent to such an entry, such second judgment would waive or annul the first. (Murray v. Judah, 6 Cow., 484.)

      Dudley Field, for respondent,
    Insisted that it was the duty of the prevailing party to file a judgment roll and enter the judgment, when entitled to a judgment in his own favor, or to see to it that it was done by the clerk, and that in any event, if the plaintiff did not do this, the defendant should be permitted to do so.
    Also, that the order of the Special Term in this case is not appealable. (Union Bank v. Mott, 8 Abb., 150; Bowman v. Earle, 8 Duer, 691; Bank of Geneva v. Hotchkiss, 5 How. Pr. R., 478.)
   Hoffman, J.

The Code (§ 272) directs that the report of the Referees upon the whole issue shall stand as the decision of the Court, and judgment may be entered thereon in the same manner as if the action had been tried by the Court.

By section 267 the decision of the Court shall be given in writing, and filed with the clerk. Judgment upon the decision shall be entered accordingly.

By sections 278, 279 and 280 a judgment on the report of a Referee is to be entered in a book kept by the clerk, and called a Judgment Book. Section 281 contemplates that the clerk enters the judgment.

The report must be in writing, and must be filed like the decision of a Judge. Sands v. Church, (2 Seld., 847,) determines that there should be something to authenticate the judgment— something that shall place it beyond doubt what is the precise point decided, which must be the written decision of the Judge, although there was not ground enough to reverse the judgment for that omission in the particular case. In Renouil v. Harris, (2 Sandf. S. C. R., 642,) it was stated that it is the clerk’s duty to enter up the judgment upon the report being filed ; that the duty of the prevailing party ends when he has filed the decision and adjusted the costs. It is then the clerk’s duty to enter the judgment and make up the judgment roll. The party has no control, nor anything to do with it beyond seeing that all the papers he is bound to furnish are on file.

It seems to me that the motion below, and the order appealed from, were unnecessary.

But it is contended that the order is not appealable; that it does not affect any substantial right.

It is urged by counsel for the plaintiff that the new judgment may supersede the old one, and rob the plaintiff of the benefit of a docket, or of the levy. There cannot be two judgments.

In Miller v. The Eagle Life and Health Insurance Company, (3 E. D. Smith, 184,) it is stated that the practice in that Court had always been, where a judgment had been opened and a new trial ordered, but the judgment allowed to stand as security, to require a new judgment to be entered for the amount recovered on the second trial, without reference to the previous judgment. Such, however, was not the case then before them.

In Pierce v. Thomas, (4 E. D. Smith, 354,) the Court say that, in relation to the claim made in the notice of appeal to reverse two judgments, it was sufficient to say that, as the first stands only as security for the second, it must fall with it.

These cases cannot be understood as implying that the new judgment could have the effect of destroying the effect of a docket upon real estate or a levy upon personal property, if either had been obtained. This would be exactly contradicting the determination of the Court, upon the admission of the defendant to defend, that the judgment then existing should stand as a security.'

On the other side, the defendant cannot be deprived of all the benefits which he can have, upon the trial and upon an appeal from the decision, of any objections to the cause of action or the adequacy of the proofs to establish it. If he fully succeed, the judgment ordered to stand as security would fall. If he partially succeed, it will be so far affected.

I think the decision in Swarthout v. Curtis, (4 Comst., 415,) may aid our determination. The decree set aside a satisfaction-piece, declared a certain instrument to be a mortgage, and adjudged a foreclosure; referred it to a County Judge to compute the amount due, and directed that, on the confirmation of the report, the premises should be sold, &c., and the plaintiff to have execution for any balances. It was held that this decree was not appealable to the Court of Appeals, under the Code. But, after the report had been made and confirmed, it did become appealable.

In Tompkins v. Hyatt, (19 N. Y. R., 534,) this case was recognized' and applied. There might be further litigation between the parties as to the amount of an allowance for use and occupation. Until that was settled, it could not be completely adjudged to whom the entire proceeds of the premises directed to be sold would belong.

The following remark of the Court is pertinent to the present case: “It is suggested by the plaintiff’s counsel that, if the appeal is not sustained, the judgment of the Supreme Court may be completely executed before an opportunity will be afforded to perfect another appeal, as the Sheriff will 'be authorized to pay over the whole proceeds of the premises on the filing of the report, before any opportunity is afforded to contest it or to review the judgment. This, we think, is a matter for the Supreme Court to regulate. That Court would, no doubt, by order, suspend the payment of the money until an opportunity to appeal should be afforded, after the final confirmation of the report.”

Some propositions seem to me clear. There can be no appeal to the General Term, under section 348 of the Code, until the judgment becomes final, by the decision of the Beferee being entered as a judgment. (6 Duer, 689.) The lien, by docket or levy of the judgment by default directed to stand as security, cannot be impaired by the plaintiff himself entering up the final judgment. The Court has the power to render the docket or levy available, by directing the execution heretofore issued to be carried into effect.

Bint the plaintiff was under no legal duty to do that which the order directed him to do. By the 281st section, the absolute duty of making up the roll is imposed upon the clerk, which he is to do immediately after entering up the judgment. The section gives liberty, merely, to the party, or his attorney, at his option, to furnish a judgment roll, enabling him to hasten the act. His obligation only extends to the filing of such of his own papers as, in the progress of the cause, his adversary may require to be filed ‘r which papers, (if he do not choose to furnish a judgment roll,) the clerk must collect in making up the roll, and annex thereto the copy of the judgment.

If, when the clerk makes up the roll, it appear that any of the pleadings or proceedings on the part of such prevailing party, which form a part of the judgment roll, have not been filed, doubtless, on the motion of the adverse party, he may be required to file them; but that was not the motion made in this action, and it is not the order appealed from. The order should be reversed, but without costs.

The Justices before whom the appeal was argued concurred in reversing the order, and in the points stated in the head-note of the decision.

Order reversed, without costs to either party.


text:
    The Rector, &c., of The Church of the Holy Innocents, Appellants, v. Thomas Keech, Respondent.
    1. Where a party obtains the privilege of building a party wall, one-half on his own lot and one-half on the lot of another, and covenants that he will build such wall, but does not extend the wall so far as, by his covenant, he is bound to do, and thereupon the other party enters upon the ground and begins to extend the wall upon the land of each to the stipulated point or line, the latter will not be restrained by an injunction, at the instance of ■such party in default, from making the extension.
    2. Even if, in such case, the party extending the wall has not obtained a strictly legal title to any of the ground of the other, or to the use thereof, still a Court of equity will not restrain him from doing what ought to be done, and what the other was bound to do for him.
    3. But, where the point, or line, to which the party wall was to be extended by the party covenanting, is in dispute, and it is not clear what, in that respect, is the true construction of the covenant, and where, also, the extension of the wall, as attempted by the other, will require the cutting away of a stone stoop or portico and do permanent injury to the building of the former, the Court will interpose by injunction, pendente Ute, and restrain the extension until the right can be ascertained and settled by the aid of such extrinsic facts as may be properly proved to aid in determining the true meaning and effect of the covenant.
    (Before Hoffman, Woodruff, Pierrepont, and Moncrief, J. J.)
    Heard, April 21;
    decided, April 28, 1860..

      This action is brought for the purpose of restraining the defendant from removing a portion of the stone stoop or portico of the plaintiffs’ building on the southerly side of Thirty-seventh street, and from extending the westerly party wall thereof, northerly, in part on the plaintiffs’ ground, to the southerly line of the street.
    The complaint shows that the defendant, being owner of the adjoining lot, is about to do the acts thus specified and has actually begun to dig away the earth for that purpose. It also shows an agreement between the plaintiffs and the defendant, by which, the plaintiffs being about to erect a building on their lot, it was agreed that “ so much of the westerly wall of said build-ins' as is hereinafter mentioned shall stand one-half on the land
    O
    of each of the parties;” and the instrument described such part of the wall, and gave the privilege of placing it one-half on the defendant’s land, thus: “it shall and may be lawful for the parties of the second part to erect one-half of the westerly wall of the said building, from the front wall thereof to the front wall of the building now standing on the rear of the said lot of the party of the first part, being sixty-six feet five inches in length upon the lot of the party of the first part, and the same so to continue forever as and for a party wall.” The plaintiffs covenanted forthwith to erect the said wall, and that the defendant should have the privilege of using it upon the payment of one-half the value of so much as he shall use.
    The front of the building erected by the plaintiffs had near its centre a projecting bay window, nine feet in length on a foundation wall eighteen inches in thickness, the front of which was on the line of the street; but the front wall on each side of the window retreated from the street line two feet eight inches, so that at the northwest corner, where it reached 'the defendant’s lot, it was two feet eight inches from the street line, and the party wall built by the plaintiffs began at that front wall .at the northwest corner and ran southerly, (six inches on the land of each party,) to the defendant’s rear building. At this northwest corner the plaintiffs erected a stone stoop or portico extending westerly to the division line between the two lots.
    The defendant claimed that the party wall should have been extended northerly to the street line, and the plaintiffs neglecting to so extend it he was about to make the extension himself and use the whole party wall as a support to a building he was about erecting.
    The distance from the defendant’s rear building to the street line was sixty-six feet four inches.
    The plaintiffs alleged that the plans of their building showed that their front wall was not on the street line, and that the defendant had the plans in his possession and proposed as carpenter to do a part of the work, and therefore knew the location of the front wall proposed to be built before the agreement for a party wall was made: and therefore that the words “from the front wall thereof,” in the agreement, had a definite and precise meaning and must control the distance, sixty-six feet five inches, contained in it.
    The defendant on the other hand denied that he knew where the front wall of the plaintiffs’ building was to be located, and insisted that although he could not require them to build the party wall sixty-six feet five inches, they were bound to extend it sixty-six feet four inches, i. e., to the street line.
    On the hearing of the motion at Special Term before Mr. Justice Mohcrief, the motion for an injunction was denied and the plaintiffs appealed to the General Term. Some other particulars are stated in the opinion of the Court. Affidavits were read on both sides for the purpose of showing, by extrinsic facts and circumstances, whether the plaintiffs’ front wall was so fixed and located that it should govern the construction of the agreement, and whether the defendant knew it when the agreement was executed, &c. ,

      Edward Hoffman, for plaintiffs, (appellants.)

      Richard O'Gorman, for defendant, (respondent.)
   By the Court—Woodruff, J.

If, according to the true construction of the agreement between the parties, interpreted by the assistance of any extrinsic facts which may legitimately be brought into view to aid in such construction, it be clear that the plaintiffs were bound to construct the party wall from the rear building to the street line, or a distance of sixty-six feet four inches; that the defendant could maintain an action for the specific performance of that agreement and compel the plaintiffs to make such erection; and that he could if he so elected recover damages from the plaintiffs for a breach of the said agreement in their neglect to extend the wall to the street line; then in my opinion the plaintiffs have no standing in this Court upon the complaint which they have filed, and have no title to invoke the extraordinary powers of this Court as a Court of equity to restrain the defendant from doing what he proposes to do, what the plaintiffs covenanted to do, and what in equity and good conscience ought to be done.

It may be true that the defendant has not (even though his right be clear as above assumed) acquired any legal title to any portion of the plaintiffs’ land, nor a legal title to the possession thereof, nor a strictly legal right to enter thereon against the will of the plaintiffs, and that therefore such an entry would be in law a trespass; but if this be so it does not follow from such a concession that the defendant should be enjoined. It is by no means every case of trespass upon lands that warrants an appeal to a Court of equity, nor every invasion of a merely legal right that calls for the interference of that Court. If the act of the defendant does not and cannot cause any injury to the plaintiff, there is no ground upon which the jurisdiction of a Court of equity can be sustained; and, upon the assumption above stated, the acts of the defendant complained of can by no possibility in judgment of a Court of equity injure the plaintiffs; that Court must say that the defendant by doing what ought to be done, and what the plaintiffs themselves ought to have done but refuse to do, cannot injure the plaintiffs; and therefore this Court have nothing to do in the matter.

If the defendant violates the naked legal right of the plaintiffs they must seek legal redress, but equity finds no injury therein to be redressed or to be prevented. If the defendant’s acts are a trespass, he performs them at the peril of being held in a Court of law liable to legal damages. Whether in such a case they would be great or small; and whether as a mere question of law such an agreement and the breach thereof by the plaintiffs would or would not be any defense; and whether or not those circumstances would or would not reduce the damages in a Court of law to a merely nominal amount, it is clear that in equity the plaintiffs being without excuse and prosecuting in resistance of the .defendant’s just and equitable rights, would be deemed entitled to nothing and should be dismissed from the Court.

If there is any rule of a Court of equity that is more than any other primary and fundamental, it is that a plaintiff seeking the aid of that Court must come with clean hands. He must do equity, or his complaint shall not be heard. In the strong language of the books, “ he that doeth iniquity shall not have equity.”

Surely a plaintiff cannot successfully invoke the aid of the Court to protect him in violating his contract, in refusing to the defendant what is the clear equitable right of the latter.

If the construction above stated is clear, these plaintiffs have induced the defendant to enter into an agreement under which they have obtained the use of a portion of his land, they have taken and are actually enjoying the benefit of all the advantages secured to them by the agreement, which they desire to take and enjoy, they have violated the agreement in a particular which is advantageous to him. They refuse to him the benefit to which he was entitled by the agreement, and now when he seeks to appropriate to himself only that portion of the land which they covenanted he should have, and to erect thereon a wall which they covenanted to erect for him, and which he is now entitled to compel them to erect for his benefit, they ask a Court of equity to interfere and protect them in their wrongdoing. And this when it is quite apparent that permanent and substantial if not irremediable mischief to the defendant’s house must result if such wall be not erected, for if not erected on the line of the portion already built, and in extension of that portion, he must either lose entirely the use of the front portion of his lot, or he must build so that his wall shall project into the front portion of his house, -and so permanently impair its usefulness and value.

On such a claim, and under such circumstances, the plaintiffs can have no standing in a Court of equity, whatever may be their strict or technical legal right to the land in question.

1 am, however’, of opinion that, as the case now appears upon the papers submitted, the defendant should be temporarily restrained from interfering with the stoop of the plaintiffs’ house or building upon their land.

I do not think it clear that the plaintiffs were hound to extend the party wall further towards the street than they have done, or that the agreement, construed in the light of the extrinsic facts, contemplated any other party wall than the plaintiffs have in fact erected. And if it be not clear that the defendant is entitled to have the wall erected where he now proposes to erect it, then, until the rights of the parties in this respect can be ascertained and settled by a full investigation and a determination upon all the proofs regularly taken on a trial of the cause, all things should continue as they now are, and for this palpable reason that it is entirely clear that, if the defendant he not so entitled, his cutting away of the plaintiffs’ stoop and building on their land will do them a serious, and permanent, and, in a just sense, irreparable injury.

It is true that the general rule is, that in cases of doubt an injunction should not be granted, i. e., the plaintiffs should make a clear case; but this rule is not without qualification, and no better illustration is necessary than the present case affords. - The plaintiffs are the legal owners of the land upon which the defendant threatens to build. They are in possession, and have occupied the ground by a permanent erection. According to the ease made by them, the defendant has no right whatever to encroach upon them, unless the facts show him to he equitably entitled to build his wall where he proposes to place it. His doing so while the suit is pending will work permanent and substantial damage to the plaintiffs. In such case, if the defendant’s right is doubtful, he should not be permitted to go on until the right is settled. This is reasonable • and just. His delay can cause no loss for which he cannot be fully compensated, and for that compensation he can have security. In this respect, the condition of the parties is not equal. He can only lose the temporary use of his unimproved lot. The plaintiffs are in danger of a permanent injury to their building.

I do not design to intimate, that I am satisfied that the plaintiffs are right and that the defendant is clearly wrong in claiming to have the party wall extended, but only that, in a doubtful case of this description, all things should continue as they are i until trial and .judgment.

The doubt in my mind of the defendant’s right arises out of these considerations.

Although the agreement speaks of the party wall as “ being sixty-six feet and five inches in length,” it is not denied that this description of the distance must yield if the termini are fixed and certain, and the distance between these termini is less than the description mentions.

The agreement recites that the parties of the second part are about to erect a building on their lot, and declares that it shall and may be lawful for them to erect one-half of the westerly wall of the said building from the front wall thereof to the front wall of the building now standing in the rear, upon the lot of the party of the first part.

How, it may be conceded that if nothing more appeared in the case than the added words, “ being sixty-six feet five inches in length,” it would be plain that the wall which it was lawful for the plaintiffs to build, and which they in the subsequent portion of the agreement agreed to build, was to be of that length. But if this be on the mere face of the agreement its apparent meaning, it is not its inevitable and conclusive import.

For example, suppose it were shown that at the time of the making of this agreement, the front wall of the plaintiffs’ building was definitely located, and this was known at the time to both parties; as for instance, by laying its foundations or marking out its place, or, more strongly, by its actual erection in so far as it rested on the plaintiffs’ own ground; then, most plainly, the plaintiffs would only be bound to build the westerly wall from such front wall back towards the rear to the rear building referred to.

It is not alleged that such wall had been in fact begun, but it is insisted that its location was fixed and settled, that a plan thereof had been drawn showing such location. That such plan was in the defendant’s possession, and had been made the basis of an estimate by which he offered to do the carpenter’s work of the very building in question, and that he therefore knew before the agreement was made where the front wall from which the party wall was to run, or at which it was to begin, was in fact located, so that, in contemplation of both parties and in very truth, it had a fixed location as truly as if a monument had been attached to the soil at that place.

The defendant does not deny that he had the plan before the agreement was made, but he denies that he derived therefrom any knowledge that the front wall in question was not on the line of the street.

In this I do not say that the defendant may not possibly be right, but an inspection of the plan shows most clearly, as it seems to me, that the front wall at the ground of first floor of the contemplated building was not a straight line. That in the middle and by a wall of eighteen inches in thickness it projected more than two feet beyond the wall at the front entrance of the house, where it adjoined the westerly line of the lot. This was information to him either that the middle portion of the wall (which inclosed a width of over nine feet) projected into the street, or that’the front, at the place where it adjoined the westerly wall, was placed over two feet southerly of the street. It may have been possible for him to suppose that this projection was only into the space commonly used as an area way, and that such a projection was lawful though within the street lines; yet an examination of the plan, with its marks and figures, and coloring, its area steps and front platform, suggests to my own mind that a person familiar with drawings, plans and buildings, as a building carpenter may be presumed to be, could not fail to see that the proposed front wall, at the westerly end thereof, was not on the street line. Indeed the plan of the second story also shows that the front of the easterly portion thereof projects, though in a less degree, further towards the street than the front wall at the westerly end thereof.

Add to this the fact that the building was erected, the defendant being from time to time present and seeing its progress, and no suggestion was made that the front wall was not where it was contemplated it should be until after it was built. Is it probable that this wall was nearly three feet back of the line of the street, and the defendant not only did not know it but supposed it was on the street line ? He says he did not know it and his testimony is entitled to consideration, but all the circumstances seem to me to render it doubtful whether this front wall was not in fact erected" where'it had been located, and where both parties knew it was located when the agreement was made. I nevertheless desire not to state or form any decided opinion upon this part of the case. I rest my conclusion on the view above stated, that the case is not so clearly with the defendant upon the papers before us, that he should be suffered, pending the litigation, to cut away the plaintiff’s stoop and build on their lot in front of their byilding.

If the plaintiffs were here seeking to restrain him from building on his own lot, the burden of removing the doubts which appear upon the evidence might devolve upon them, but all they ask now is that their own property be not interfered with.

Order appealed from reversed, and injunction ordered.