text:
    The Marine Bank of the City of New York, Plaintiff and Respondent, v. Nelson Clements, Defendant and Appellant.
    1. The indorsee of a note payable to the order of an insurance company and purporting to have been indorsed by such company by its president'; in an action against the maker in which the allegation of an indorsement by the company is denied, cannot recover, without proving that the president was in fact authorized to indorse it, or had been held out by the company as authorized to indorse such paper in its name.
    2. The president of an insurance company, when not authorized by its charter or by-laws to do so, has no authority as president, to indorse and negotiate notes belonging to it.
    3. An indorsee of a note payable to the order of an incorporated company, who takes it under an indorsement purporting to have been made by its president or other agent, takes it at the peril of being able to show, when his title is questioned, that the person assuming to indorse it in the name of the company, had authority to do the act.
    (Before Bosworth, Oh. X, and Woodruff, X)
    Heard, November 11;
    decided, December 4, 1858.
    This action comes before the Court, at General Term, on an appeal by the defendant from a judgment entered against him, on the report of E. P. Cowles, Esq., as referee.
    The plaintiff sues as indorsee of a note, made by the defendant, dated August 14, 1855, payable “to the International Insurance Company or order, for value received,” twelve months after its date, at the Bank of Commerce, in New York, being for the sum of $1,000. It is indorsed:
    “For International Insurance Company,
    Alactson Marsh, Pres’t.”
    The complaint alleges that, “ the same was duly indorsed by the said International Insurance Company, and delivered to the plaintiffs.”
    The answer puts at issue the allegation last mentioned, and avers, among other things, that no indorsement of the note was made, except by the president of the company; that his indorsement was without any authority from the company, and that this was indorsed with other notes, of greater value than $1,000, without any previous resolution of the trustees or board of directors, and at a time when the company was insolvent. That this was done with the intent of giving to the transferree, who was a creditor of the company, a preference over the other creditors thereof. The action was referred to a referee, whose conclusions of fact and of law, and the exceptions taken by the defendant thereto, are as follows;
    “I. Conclusions of fact.
    “ First. That the note in question was a subscription note, and as such was made and delivered by the defendant to the International Insurance Company.
    “ Second. That in the month of January, 1856, Alanson Marsh, the then president of the said insurance company, in his official character as such president, placed his indorsement upon such note, with a view to negotiating the same for such company. That after such indorsement, the said note was again returned to, and remained with said company, as the holder thereof, until passed to McCready, Mott & Co., as hereinafter stated.
    “ Third. That on the 2d day of February, 1856, the said Marsh ceased to be the president of such company.
    “ Fourth. That Moses Starbuck became the president of such company, in the place of said Marsh. That said Starbuck, while being such president and assuming to act as such, negotiated such note, as so indorsed, to McCready, Mott & Co., who loaned said company the sum of three thousand five hundred dollars, taking at the same time from said president a stock note of the company therefor, together with the note in question, and other notes, to the aggregate of about $5,000, held by such company, as collateral security for such loan. There was no vote of the board of directors authorizing the above loan, or the giving of such collaterals.
    “ Fifth. That the note in question passed, by successive transfers, from said McCready, Mott & Co., to the plaintiff. That said plaintiff received such note, and discounted the same in the regular course of its business, three days before its maturity, and without any knowledge or notice of the circumstances under which it had been originally taken as aforesaid by McCready, Mott & Co.
    “ Sixth. That said insurance company, at the time such note was negotiated to McCready, Mott & Co.® was in fact insolvent, not then having sufficient property with which to pay its debts; but had not at that time committed any open act of insolvency.”
    Upon these facts the referee held as matter of law:
    “ First. That said note was not passed to McCready, Mott & Co. in violation of the statute, with intent to give them a preference over other creditors of such insurance company.

      11 Second. That the plaintiff was an innocent and Iona fide holder of such note for value, and as such entitled to recover thereupon against the defendant.”
    The defendant duly excepted to each of the findings of fact and conclusions of law of said referee, particularly and severally.
    There was no evidence that any notes belonging to the company, had been at any time negotiated by the company by being indorsed by its president, or that to the knowledge of the trustees or directors, the president of the company had ever negotiated any of its notes. Nor was it proved that he was authorized by its bv-laws to indorse or negotiate its notes, or make loans in its behalf.
    Judgment having, been entered on the report, the defendant appealed from it to the General Term.

      J. L. Jemegan, for defendant and appellant, contended, inter alia, that, the president had no authority by virtue of the charter or by-laws of the company, or by virtue of any usage or custom which appears in evidence, or otherwise, to obtain the loan in question, or consequently to execute the stock note of the company therefor, or to assign the note, on which this action is brought, as collateral security therefor.
    That the plaintiffs were bound to inquire into the extent of the president’s authority, and were chargeable with notice of the limitation of that authority.
    At all events, where the president of an insurance company undertakes to indorse or negotiate paper belonging to, and in terms, payable to the order of such company, and it appears upon the face of the paper that the assignment is made by a person purporting to be the president, or other agent of the company, the plaintiffs take it “at the risk of showing affirmatively, not only that he had the apparent authority to make the drafts [assignment], but also that they [it] were actually made for the benefit of the defendant [company].” This is the language of the Court in the case of the Exchange Bank v. Monteath, 24 Barb., 371; and is also the doctrine of Court of Appeals, in the Mechanics' Bank v. N. Y. and N. H. B. B. Go., 3 Kern., 599, 631, 636.

      W. Hutchins, for plaintiff and respondent.
    I. The note in suit is a subscription note given in advance for premiums, on policies of insurance to be issued by the International Insurance Company to the defendant, the maker of the note.
    II. The note was negotiated by the company in the course of its business, and for its benefit, and as it might lawfully do, and was duly transferred for full value to the plaintiffs in this action before maturity, who took the same without notice of any defense, legal or equitable, on the part of the maker; and they are entitled to recover the full amount thereof. The report of the referee should be confirmed.
   By the Court.

Bosworth, Ch. J.

—The International Insurance company cannot be divested of its title to the note in question, nor can any third person acquire a title to it, and a right to sue and recover upon it, until a transfer of it has been ■made by the company; or until it has been indorsed by some person authorized, or who has been held out by the company as authorized, to indorse it in the name of the company.

The company did not authorize its transfer. No resolution or by-law has been produced which authorizes the president to negotiate its notes, or to indorse them in the name of the company. There is no evidence that he had previously done such acts.

The referee has not found, as a fact, that, the company indorsed this note to the plaintiff. The complaint alleges, that the International Insurance Company did indorse and deliver the note to the plaintiff. The answer takes issue on this allegation, and alleges, that the indorsement of it by the president of the company, in the name of the company, was an act done, without any authority so to do, from the trustees or directors of the company, and without any valid authority whatever.

The referee has found, that there was no vote of the board of directors authorizing the loan, which, this note, with others, was transferred to secure, .or for transferring the notes as collateral security.

This case, therefore, as it is now presented, is one in which notes, belonging to this insurance company, have been negotiated, without any authority from the company.

The note being, by its terms, payable to the order of the company, no indorsee of it can acquire any title to it, without at least showing, that according to the usual practice of the company, its notes were negotiated by indorsing them by its president, or that by its course of business he had been held out as a proper person to indorse in their behalf its notes, for the purpose of negotiating them.

Such is not found by the referee to be the fact, nor was it proved at the trial.

Under the charter, by virtue of his powers as president, he had no authority, to negotiate its notes, or to indorse them, in the name of the company. He has no more authority from the charter, by virtue of his appointment as president, to bind the company by any of his acts, than any trustee of the company. (Life and Fire Insurance Co. v. The Mechanic Fire Insurance Co., 7 Wend., 31, 33.)

An insuperable obstacle to a recovery by the plaintiff in this case is that, it not only was not within the actual power, but it was not within the apparent power of the president, to make notes, belonging to and payable to the order of the company, negotiable by his indorsement, or to negotiate them at all. Proof of one or the other of these facts is essential to the plaintiff’s right to recover, as well as that, they are Iona fide holders for value. (Farmers and Mechanics' Bank of Kent Co. v. Butchers and Drovers' Bank, 16 N. Y. R., 125.)

The judgment must be reversed, and a new trial granted, with costs to abide the event.

Judgment accordingly.


source: Caselaw Access Project

author: Woodruff, J.

license: Public Domain

text:
    Lindley Spring, Receiver of the property of James Strauss and others, Judgment Debtors, Plaintiff and Appellant, v. James Strauss, Joseph Emanuel and Abraham Emanuel, and Martin Maas and Frederick M. Maas, Assignees, &c., Defendants and Respondents.
    1. On a motion for an injunction and the appointment of a receiver pendente Ute'upon a bill filed to set aside an assignment by judgment debtors as void as against creditors, if no actual fraud is shown and the solvency of the assignees and their ability to answer for the assigned estate is not questioned, it is proper to allow such assignees to dispose of the property and collect the assigned debts and hold the proceeds subject to the decree which may be made in the cause, although the disposition of the assets according to the assignment is restrained and all interference with the estate by the judgment debtors is forbidden.
    2. Such permission to the assignees to act as special receivers is proper although there is doubt of the validity of the assignment.
    3. When the assignment purports to convey all the debtors’ property and the • assignees covenant therein that they will with all proper diligence cause a full and correct inventory of the assigned estate to be thereto annexed, it is not clear that such assignment is invalid because in describing the property assigned as all and singular the goods, property, &c., &c., of the assignors the words are added “ the same being more fully and particularly enumerated and described in a schedule thereof hereto annexed marked schedule A;” when in truth at the time of the execution and delivery of the assignment there was no such schedule annexed.
    4. If the want of such schedule invalidated the assignment when first delivered, but it appears that the assignees went on immediately with the assistance of the assignors to prepare and did prepare and annex a full inventory of the assigned property, it is not clear that such annexation is not tantamount to a new execution and delivery of the assignment free of any imperfection.
    5. In cases of doubt an injunction pendente lite ought not to be granted unless there is reason to believe that during the necessary delay which must occur before the cause is brought to trial the plaintiff may sustain injury which the Court will be unable fully to redress or that acts may be committed which will prevent the full relief which the plaintiff seeks by his action.
    (Before Boswobth, Ch. J., Hoffman, Slosson, Woodbüff and Pierre-font, J. J.)
    (Heard, October 16th;
    decided, October 30th, 1858.
    This case was heard, at General Term, on an appeal by the plaintiff from an order of Mr. Justice Boswobth, modifying an injunction, and not granting the appointment of a special receiver.
    The action herein is brought by the plaintiff as receiver of the property of James Strauss, Joseph Emanuel and Abraham Emanuel, judgment debtors.
    The plaintiff was appointed such receiver, under proceedings supplementary to execution, at the instance of John Button and others who recovered a judgment, against such debtors on the 28th day of May, 1858.
    The defendants, Martin and Frederick M. Maas, are assignees of the debtors for the benefit of creditors.
    The complaint in this action is filed for the purpose of setting aside an assignment made by the debtors to the defendants Maas, bearing date the 12th day of September, 1857, as void, and prays for an injunction restraining the defendants from receiving, collecting, selling, disposing of or intermeddling with any of the goods, notes, debts, things in action, and property, &c., &c., belonging to the debtors on the 12th September, 1857, or after-wards, or the proceeds thereof. That a special receiver be appointed, and that the defendants may account for the money, property, &e., and pay and deliver the same to the receiver.
    On a motion at the Special Term for an injunction pendente lite, the motion was urged on two grounds, viz.; that the assignment purports to convey and assign to the defendants Maas only such property as is described in a schedule annexed thereto, when in truth there was no schedule annexed to the assignment when it was executed and delivered. And that the want of change of possession, the continued possession and acts of ownership by the assignors, and other circumstances indicate that the assignment was fraudulent and void as against creditors. And affidavits were read by the plaintiff in support of the charges made in the complaint.
    The answer denies all fraud on the part of the defendants, and offers an explanation of the fact (which is not denied,) that when the assignment was executed, no schedule of the assigned property was annexed. And states that immediately upon the execution of the assignment, the assignors and assignees set about the taking of the schedule and inventory of all the property of the debtors, and that it was completed within ten days and delivered to the assignees. That in fact all the property of the assignors (except such as is exempt from execution,) was delivered to the assignees, and they have proceeded to execute the trusts assumed by them, and have disposed of the goods, &c., and collected a large amount from the assigned debts, claims, &c.; and have distributed among the creditors the great bulk of the proceeds; having now in their hands of such proceeds only about eight hundred dollars. And the statements in the answer are supported by affidavits read on behalf of the defendants.
    The clause in the assignment upon which the charge that it is void because no schedule of property was annexed at the time of its execution, is that which describes the subject of the assignment by the debtors, the parties thereto of the first part, in these words: “All and singular the goods, chattels, stocks, promissory notes, debts, things in action, claims, demands, property, and effects belonging to the said parties of the first part, or either of them, (except such property as may by law be exempt from sale on execution,) the same being more fully and particularly enumerated and described in a schedule thereof, hereto annexed, marked schedule ‘A.’ To have and to hold the same and every part and parcel thereof,” &e., &c.
    The words of assignment are preceded by a declaration that the assignors being unable at present to provide for their debts, are desirous to arrange for the payment thereof “by an assignment of all their property and effects for that purpose,” and “ in consideration” thereof, they “do grant, bargain, sell, assign,” &c.
    And the assignees take upon themselves the execution of the trusts and among other things undertake “that they will with all proper diligence, cause a full and correct inventory of the assigned estate to be hereto annexed.”
    The motion at Special Term came on to be heard on an order to show cause which temporarily, in the very words of the prayer of the complaint, enjoined the defendants “from selling, assigning, transferring, delivering, negotiating, discharging, incumbering or in any manner disposing of or intermeddling with any goods, chattels, stocks, promissory notes, debts, things in action, claims, demands, property and effects belonging to the judgment debtors, or either of them, on the 12th day of September, 1857, immediately before or at the time of executing the instrument of assignment referred to in the complaint, or at any time afterwards, and the proceeds thereof whether in the hands of said defendants or of any other person and particularly .all property and the proceeds thereof pretended to be assigned and transferred by said instrument.”
    On the hearing of the motion it was ordered that this very comprehensive and special injunction be retained until the further order of the Court, with the single modification that it be vacated, “so far as to allow the assignees to collect and receive any property belonging to the assigned estate.”
    The plaintiff appealed from the order to the General Term.

      J. J. Townsend, for the appellant (plaintiff).

      F. F. Brown, for the respondents (defendants).
   By the Court.

Woodruff, J.

—The order appealed from restrains the judgment debtors to the full extent prayed for in the complaint. It also restrains the other defendants, their assignees against any disposition of the property as prayed for, leaving them at liberty to collect and receive the property and hold it subject to the order of the Court. Practically they are by this order made special receivers of the property to abide the further order which the Court may make; and save only that they have not been required to give security for their fidelity, the plaintiff has obtained the protection, pending the suit, which he would have, had such special receiver been appointed.

The assigned goods having been disposed of before this action was commenced, the most of the claims which are collectable having been collected, and all of the proceeds except about eight hundred dollars, having been paid over to the creditors, there remained when the suit was brought, outstanding claims only to be collected, and it is obvious that if the defendants the assignees were to be wholly restrained from interfering therewith, a receiver would have been necessary to collect outstanding debts, prevent further losses and so secure all that is possible for the benefit of those who are interested in the fund, including the plaintiff, should he ultimately establish the invalidity of the assignment.

The question therefore which is alone presented for our consideration on this appeal, is whether the plaintiff has made such a case that the assignees of the judgment debtors ought not to be permitted, pendente lite, to receive and collect the assigned property and hold it subject to the future orders or decree in this cause.

And we can hardly restrain the expression of our surprise that the plaintiff should be found appealing from the order, when unless the truth is other than the proofs before us would lead us to believe, he has reason to congratulate himself that upon those proofs he has obtained so favorable an order. Neither he nor the judgment creditors have, we think, any just ground for dissatisfaction with that order. It would have occasioned us less surprise had the defendants appealed.

The observation " is so obviously just as hardly to need repetition that an injunction pendente lite ought not to be granted at all in cases of doubt, unless there is reason to believe, that during the necessary delay which must occur before the cause is brought to trial, the plaintiff may sustain injury which the court will be unable fully to redress, or which will prevent the full relief which the plaintiff seeks by his action.

Here the proof we think is ample that the assignees have taken possession of the assigned property, and by their own answer and affidavits have charged themselves fully with accountability therefor. They are by the order appealed from, only permitted to go on collecting and receiving whatever is outstanding not yet in their actual keeping.

The plaintiff, on behalf of the judgment creditors who procured his appointment, is pursuing them for the satisfaction of a mere money demand, which as he claims, must if he succeeds in this action be first paid out of the fund. The collection of the judgment is the end and object of this suit, and so far as that is to be accomplished by a decree against the assignees, it may require the application of the estate assigned to them, so far as not already properly administered, to the payment of that debt, and that is all.

There is no charge nor intimation in any of the papers before us, that these assignees are not perfectly solvent and of responsibility sufficient to answer for their safe keeping and proper accounting for any funds they now hold or may hereafter receive, and for what they have already paid out to creditors, no injunction which we could grant against them would furnish any additional security.

Under such circumstances, we have no hesitation in saying that, unless there are before us proofs of fraud or misconduct on the part of these assignees, which make it very clearly unsafe to permit them to continue to collect what may be collectable of the assigned estate, the order appealed from is quite as favorable to the plaintiff as he can reasonably ask.

Without recapitulating the proofs in detail, we think the plaintiff has failed to show any such fraud or misconduct on the part of the assignees. The balance of evidence is, we think, very clearly, that they took immediate possession of the assigned property; took a full and true account thereof; proceeded with diligence to the collection of the debts and claims due to their assignors; sold the assigned goods in the exercise of an honest discretion in respect to the time and manner of sale, which was approved of by the creditors generally. That they have acted openly and frankly with the creditors of the estate; convening them; submitting the accounts and affairs of the debtors to their examination, and seeking their advice and counsel respecting the best management of their trust. The circumstances alleged against them indicating that the assignors were continTied in possession, and the charge that they refused to permit the plaintiff in the judgment before referred to, to examine the books and accounts, seem to us explained in entire consistency with the good faith and fairness of the transactions in question, and with their integrity and fidelity to their trust. The allegation that the assignment purports to secure fictitious debts is fully met, and in the present state of the proofs overcome; and there appears no reason to believe that if such debts were fictitious, the assignees consented or were privy to any such fraud. And so, as we think, all other particulars which the plaintiff on his part relied upon as impeaching the assignees, are either explained or disproved.

How all these matters may be made to appear on the future trial of this action, we of course do not know, and will not now anticipate. We are, for the purposes of this appeal, to be governed by the papers before us. And the view of the proofs above stated, alone disposes, we think, of the appeal from the order. A case of fraud, misconduct, or unfitness to have the temporary custody of the fund, showing danger that the plaintiff will be defeated in obtaining the relief he seeks, is not made out; and if not, then it is proper to permit the assignees to go on and collect whatever may be collected, for the benefit of whomsoever may be adjudged entitled to it.

This view of our duty to affirm the order appealed from might admit of qualification if it was clear that the alleged title of these assignees to the assigned estate was void, and that neither under the written assignment nor by reason of what was done after that was executed they could lawfully hold the property as against this plaintiff.

The argument of the counsel for the appellant was mainly addressed to the validity of that title, and yet we apprehend that he would hardly claim that that title is, without doubt, void.

The assignment begins with a declared intent to transfer the whole of the property of the assignors. It closes with an agreement by the assignees that they will with all proper diligence cause a full and correct inventory of the assigned estate to be thereto annexed. That assigned estate is described as all and singular the property, ¿sc., of the assignors (except such as is not liable to execution). And it is not clear, we think, that the words which recite that the same are enumerated in a schedule already annexed may not be regarded as mere surplusage, and when read in connection with the agreement to make and annex such inventory, as unmeaning, and plainly not expressing the actual intent and meaning of the instrument as it was when the parties signed it. The whole instrument together indicates that reference was made to a schedule not then annexed but to be annexed, as was in the subsequent clause covenanted. We cannot say, unqualifiedly, that the omission of the words “ to be ” was a clerical error, but the indication is strong that they used the words “schedule thereof hereto annexed” in the sense of “ schedule thereof hereto to be annexed,” and provided for the making of the inventory in order to secure that result.

Again, long before the judgment was recovered by the creditors for whose benefit this action is prosecuted, the assignees had taken possession, the inventory was made and delivered, and if the assignment could not, for the want of such schedule, operate when it was executed, it is not clear but that, when the inventory was in fact taken, embracing all the assignor’s property, and taken with the concurrence of both assignors and assignees, the whole instrument and the possession so taken would operate from that time as fully, to all intents, as if the inventory had been taken before the signing, and so the assignment be treated as redelivered, entirely cured of the imperfection which the plaintiff claims made it originally invalid.

We think it wholly unnecessary, in the view we have already taken of the case, to express any decided opinion of the question pressed upon our attention. It may, properly, be fully considered when the case comes to be tried upon all the merits. We make the suggestions above noted, and we further refer to the opinion of the Court, at Special Term, for the purpose of saying that the plaintiff’s claim to set aside this assignment is not clear, but is subject to serious doubt,—doubt which, we think, is not dispelled by an examination of the authorities to which we are referred. The observations which we have made in respect to the plaintiff’s failure to show fraud, misconduct or unfitness in these assignees, creating reasonable apprehension of danger to the fund if they be permitted to go on, pendente lite, and collect the debts, &c., assigned, therefore', recur in their full force.

The conclusion is inevitable. The order must be affirmed, with ten dollars costs to the respondent, to abide the event of the final disposition of costs in the cause.

Ordered accordingly.


author: Bosworth, Ch. J.

text:
    Redmond et al., Plaintiffs and Respondents, v. Dana and Chapman, Defendants and Appellants.
    1. When a judgment and éxecution creditor (whose execution has been returned unsatisfied) brings a suit against his debtor to set aside, as fraudulent, an assignment made by the latter of his property, and includes the assignee as a defendant, and prays in his complaint for such relief, and that a receiver of the assigned property may be appointed, and that the plaintiffs’ debt and costs may be paid out of the same; that the defendants make discovery of the entire assets whether the assignment be adjudged void or not; and that the assignee account for such property as a trustee in behalf of the plaintiffs and other creditors of the said assignor; the Court will not, upon motion, compel the plaintiffs to elect, either to proceed to set aside the assignment as fraudulent, or to proceed under it as a valid assignment for an account of the assets assigned; and if he elect the latter course, strike out all allegations of fraud and the prayer that the assignment be adjudged fraudulent; and if he elect the former, strike out the prayer for a discovery, and an account of the assets assigned, by the assignee as a trustee on behalf of the plaintiff and other creditors of the assignor.
    2. Such a motion could not be granted, in any aspect, except upon the assumption, that it is well settled law; that if the plaintiff fail to establish the fraud, he can have no relief in the present action. Such a question can only be settled, according to the orderly course of practice, at the trial.
    3. Where, as in the present case, it is not asked that any allegations of fact should be stricken out of the complaint, as being irrelevant to the proper statement of a case to set aside an assignment as fraudulent, the plaintiffs should be permitted to prove them all if they can, and should have granted to them such relief as the facts they may prove may entitle them to demand; and what that relief should be, should be left to be determined at the trial.
    4. In such a case, the prayer for relief, when concisely and clearly stated should not, on motion, be incautiously interfered with by the Court; inasmuch as it is the duty of the Court, upon the trial, (whatever the relief prayed), to grant any relief consistent with the case made by the complaint and embraced within the issue; and inasmuch also, as upon a failure to answer, no relief can be granted exceeding that demanded by the complaint.
    5. In so far as such a motion is made on the idea, that such a complaint contains two several causes of action which cannot be properly united, it is a sufficient answer to it; that the appropriate mode to test that question is by a demurrer; and a party should be restricted to that remedy.
    6. Motions, made before a cause is at issue, the decision of which cannot effect any practical result beyond the determination, prior to the trial, of the extent of the relief which the Court would deem it proper to grant, as one state of facts, or another, should be established at the trial; should not be entertained.
    (Before Bosworth, Oh. J., and Hoffman, Slosson, Woodruff and PlERREPONT, J. J.)
    Heard, October 23;
    decided, November 27, 1858.
    This is an appeal by the defendants Dana and Chapman,, from an order made on the 4th of September, 1858, by Mr. Justice Slosson, denying a motion made by them, that the plaintiffs should elect whether they will proceed to set aside the assignment mentioned in the complaint, as being fraudulent as against the creditors of the assignors; or whether they will proceed for an accounting under it as a legal and valid assignment; and to strike out specified parts of the complaint.
    William Redmond, John Nicholson and John J. Clapp, are the plaintiffs, and Frederick E. Radcliff, Norman Cutter, Alexander H. Dana and George M. Chapman, are the defendants.
    The suit is brought by the plaintiffs as judgment creditors of Radcliff and Cutter; having, severally, a judgment against them, on which an execution has been issued and returned unsatisfied.
    The complaint alleges, the recovery of each judgment; the issuing of execution thereon; its return wholly unsatisfied; that it was recovered against Radcliff and Cutter as partners; doing business under the firm of Frederick E. Radcliff, an alleged limited partnership, said Cutter being the special partner; and also alleges that in law they are liable as general partners, by reason of their not having complied with the provisions of the law relating to limited partnerships.
    It then alleges, that Radcliff and Cutter on the 28th of October, 1854, with intent to defraud, &c., executed an assignment of all their partnership and individual property to the defendant Chapman. Certain facts, are specified,, as evidence of the alleged intent to defraud.
    It charges, that the execution of this assignment was kept a secret,, with the like fraudulent intent, and that afterwards, in; November, 1854, Radcliff and Cutter, with the- like fraudulent intent, executed a second assignment, (in terms, like the- prior one,) to the defendants Dana and Chapman.
    It also alleges that the assignors were permitted-, to use- and apply, at their discretion, various and large portions of the assigned property.
    It also charges- that the assignees have realized and received large sums of money from the assigned property, which they have failed to apply as the assignment directs, and generally, that they have mismanaged, and disregarded their duties, as trustees.
    It prays “that said assignments and each of them may be adjudged to be null and void, and of no effect as against the plaintiffs; for an injunction and receiver, and that said property, assets and effects may be forthwith duly assigned and transferred to such receiver; that the plaintiffs’ several judgments and costs may, by said receiver be paid out of the same,” and “whether said assignment shall be adjudged void or not, that said defendants may be adjudged to make discovery of the entire assets,” &c., “and that said Dana and Chapman may account for such property, as trustees on behalf of the complainants and other creditors of the defendants Frederick E. Radcliff and Norman Cutter.”
    On an affidavit that Cutter had not been served with the summons, nor had appeared in the action; and that the time for Dana and Chapman to answer had not expired; and on the said complaint, an order was made requiring the plaintiffs to show cause on the 2d September, 1854, why they “should not be required to elect whether to proceed in this action for the avoidance of the assignment or assignments in said complaint referred to; or to proceed under the assignment without disaffirming the same, for an account of assets assigned;” and in case of electing the former, then, that the last two paragraphs of the complaint (above quoted) be stricken out; and “also all other parts of the complaint whereby plaintiffs seek to represent other creditors of said Radcliff & Cutter” be stricken out; or if said plaintiffs shall elect to proceed for an account under the assignment to defendants, Dana & Chapman, then, that so much of the prayer for relief as is contained in these words: “that said assignments and each of them may be adjudged to be null and void, and of no effect as against the plaintiffs,” and “that the plaintiffs’ debt and costs may, by said receiver, be paid out of the same;” and also all other allegations in the complaint averring the said assignment to Dana & Chapman to be fraudulent, or seeking to have the same set aside, be stricken out; and that such further or other order for the amendment of the complaint be made as the Court shall deem proper; and that the time for Dana & Chapman to answer the said complaint be extended till ten days after the decision of this motion, and that plaintiffs pay the costs of this motion.”
    Upon the motion being heard, an order was made granting an extension of time to answer, and denying the residue of the motion, with ten dollars costs. From all of the order, except the part extending the time to answer, the defendants, Dana & Chapman, appealed to the General Term.

      A. H. Dana, for the appellants.

      O. F. Sanford, for the respondents.
   By the Court.

Bosworth, Ch. J.

—The order to show cause intimates no desire that any allegations of fact contained in the complaint should be stricken out, if the plaintiffs should elect to proceed for the avoidance of the assignments. In the event of such an election, it asks that portions of the prayer for relief be stricken out. This is a virtual concession that all the allegations of matters of fact contained in the complaint, are proper in a complaint in an action, to set aside the assignments, as fraudulent.

If all of them are proper allegations to be inserted in a complaint in an action instituted for such a purpose, then it must be for the reason that they, together, constitute but a single cause of action, or if they constitute several, that such several causes of action arise out of transactions connected with the same subject of action; or may be properly united.

I think the object of the action is single, namely, to reach all the debtors’ property, and have it applied to pay the plaintiffs’ judgments. It does not cease to be single, merely because separate parcels may have been transferred by different instruments to different persons, nor because some of it may be held by one person under one claim of right, and other portions by another, under a different claim of right. (Boyd v. Hoyt, 5 Paige, 65; Cahoon et al. v. The Bank of Utica, 3 Seld., 486.)

But if the complaint contain more than one cause of action, and it is thought that the several causes of action cannot be properly united, and if the defendants seek to test that question, they should demur. (Code, § 144, subd. 5.) Section 148, by declaring that, if a defendant omits to demur on that ground, when the defect appears upon the face of the complaint, he shall be deemed to have waived that objection, by implication denies to him the right to test the question in any other manner.

It is possible, in the nature of things, that every allegation of fact, contained in the complaint, is true.

And it is sought to subject the plaintiffs, to an election to forego all claim to any relief in this action, if they should fail to prove that the assignment was made with an intent to. defraud, even though they might be entitled to relief upon proof of the allegations as to other matters; or to proceed for such relief, only as proof of the latter allegations would entitle them to demand..

If the defendants have any just grounds to support the opinion that no relief can be had in this action if the plaintiffs fail to prove the assignment fraudulent, I think the proper place and time to raise and decide that question is at the trial, when the Court shall have reached the conclusion that the assignments are valid.

I think the Court should be very cautious in striking out any portion of a prayer for relief. Irrelevant matter may be stricken out. But irrelevant matter embraces allegations of matters of fact, and they are irrelevant because they furnish no ground for relief in the action, in which they are found as part of the complaint, even if proved. If they would constitute a cause of action they are not irrelevant, although they may constitute one that cannot, properly, be united with another which is contained in the same complaint. A demand of the relief to which the plaintiff supposes himself entitled,” it is his right and duty to insert in his complaint. When that is clearly and briefly stated, it should not be incautiously stricken out, even in part; as upon a failure to answer no relief can be granted exceeding that demanded by the complaint. (Code, § 141, sub. 3, and § 275.)

If the plaintiffs would be entitled to relief, in this action, on failing to show the assignment fraudulent, upon making proof of all or some of the allegations in respect to other matters, I do not think the Court has any right to compel them to elect to go for a part, only, of such relief as the law gives them a right to demand, on proof of all the allegations contained in their complaint.

The truth of such allegations is stated in proper form, and is not denied by the papers on which the order appealed from was made.

This complaint is not like one which states the same transactions in two or more separate and different forms, and therefore states, in form, two or more several causes of action, when, confessedly, a party has but one. The Code requires a party to state the actual facts of his case. A repetition of them, or of any of them, in the form of separate causes of action is not irrelevant, but is redundant, and all but one may be stricken out, leaving him to elect by which of them he will present his cause of action.

Inasmuch, therefore, as there is no motion to strike out any allegations of' the complaint as irrelevant or redundant, if the plaintiffs elect to treat the action as brought to set aside the assignment, and as that is evidently the object of this action, I think the plaintiffs have a right to prove their case, if the material allegations of the complaint shall be controverted, and to have such relief as the facts proved may entitle them to demand, and what that relief shall be should be left to be determined at .the trial. If it would then be beyond the power of the Court to dismiss the complaint, if the plaintiffs failed to prove the assignment fraudulent, I think it has no power now, in default of the plaintiffs electing as it sought to require them to do, to dismiss it, in part, by electing for them, as the Court must do, if it compels an amendment which will preclude them from obtain-mg all the relief they would obtain, as a matter of right, on proof of all the allegations of the complaint, when left to stand in its present form.

If it be true, that on a complaint which is, clearly, framed with a view to assail the assignments as fraudulent, and to obtain a judgment to that effect, the plaintiffs cannot, on failing to establish the fraud, compel the defendants, to account in this action, under the assignments as valid assignments; then the motion to compel the election which it is sought to require the plaintiffs to make is an idle motion, and whether granted or denied, cannot affect the relief which should be granted in the present action, on the trial thereof.

If, with the prayer left in the complaint as it now reads, the material allegations of the complaint should be put at issue, and on the trial there should be a total failure to establish the fraud, and if notwithstanding that, the defendants could be compelled, in this action, to account; then they could be so compelled, even if the complaint should be amended by striking from its prayer the allegations, which it is asked should be stricken out, in the event of the plaintiffs’ electing to proceed in this action “ for the avoidance of the assignment.”

Whatever relief be prayed, if any be prayed, (and, possibly, if none be prayed,) it is the duty of the Court, if an answer be put in, to grant to the plaintiffs, “any relief consistent with the case made by the complaint, and embraced within the issue.” (Code, § 275.)

Hence, if an accounting under the assignments, as instruments which were made in good faith and are valid, would be relief consistent with the case made by the complaint, when that case is, that the assignments were made with intent to hinder, delay and defraud the plaintiffs, as judgment and execution creditors of the assignors, it would be the duty of the Court to grant it, whatever the form of the prayer for relief, and whether that relief was specially prayed or not.

H such relief would be inconsistent with such a case, then it could not be granted, though specially prayed for.

Therefore; whether the prayer for relief shall be left to stand, as it now reads, or shall be reconstructed, is a matter wholly unimportant, to either party, so far as the remedies of the one, or the liabilities of the other, can be affected by a proper determination of this action.

Granting the motion, on which the order appealed from was made, would be, in effect, a declaration of the opinion of the Court, prior to the trial of the action, as to the extent of the relief which the Court would deem it proper to grant, as one state of facts, or another should be established at the trial.

Motions, made before the cause is at issue, the decision of which cannot effect any practical result beyond that, should not be entertained.

For the reasons stated, I think the order appealed from should be affirmed.

The order was affirmed, and the costs of the appeal declared to be costs in the cause and to abide the event.


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    Zachary Peck, Plaintiff, v. The New York and Liverpool U. S. Mail Steamship Co., Defendants.
    1. Where a party defendant makes a case or exceptions for the purpose of setting aside a verdict, or of reversing a judgment on appeal, lie must procure the same to be filed within ten days after it is settled, or the same will be deemed abandoned, and the plaintiff will be permitted to proceed as if no case or exceptions had been made.
    2. But in such case where the defendant is an insolvent corporation, whose stockholders (who may be individually liable for the debts of the corporation,) or creditors are interested in reducing the amount of its debts, such creditors or stockholders will, notwithstanding such default, and notwithstanding the counsel for the insolvent corporation, declines defending further for want of funds, be permitted to file the case and bring the appeal to argument in the name of the corporation for their own protection.
    3. When such favor is granted it should be on condition that they give secu- ■ rity for all costs which may be awarded to the plaintiff for any proceedings thenceforward taken on such case or exceptions.
    (Before all the Justices.)
    Heard, December 11th;
    decided, December 18th, 1858.

      This was a motion by the plaintiff to dismiss the defendants’ appeal from a judgment entered on the report of a referee.
    The facts sufficiently appear in the opinion of the Court.

      Gf. Clark, for the plaintiff.

      Clarlcson N. Potter, for the defendants.
   By the Court.

Woodruff, J.

—No. 37 of the Rules of Court, provides that where a party makes a case or exceptions, he shall procure the same to be filed within ten days, or the same shall be deemed abandoned.

It appears by the affidavits on the part of the plaintiff, and to these there is no contradiction on that subject, that the case made by the defendants herein, was settled, by the referee before whom the action was tried, more than two months before the papers were served for the purposes of this motion.

The plaintiff is therefore, within the plain terms of the rule, entitled to treat the case as abandoned, and to enter an order to that effect, and to proceed as if no case nor exceptions had been made herein.

But in such case the neglect or omission to file the case may be excused, and the party be relieved if the Court deem it reasonable and just to do so.

The explanations of the causes of delay relieve the parties who are now seeking to continue the cause, from any imputation of fault on their part. The defendants have failed and become insolvent, and their attorney and counsel declined defending further for them.

The plaintiff should not be permitted to suffer by these circumstances. As to him it is no excuse for the defendants that they have failed and cannot pay for defending, and if therefore there were no parties interested but the insolvent corporation, there would be no ground for extending to them any indulgence.

But it is suggested that through the defendants, and in virtue of the judgment which the plaintiff has recovered, he seeks to recover from the stockholders in their individual capacity, and that there are creditors of the company also, whose rights as such, will be affected by a judgment against the corporation which is claimed to be erroneous.

There are cases in which a judgment recovered against a corporation has been held prima facie evidence, in an action against the individual stockholder, that the judgment debt is due and payable. (Slee v. Bloom, 19 J. R., 456 ; 20 id., 669; Moss v. Oakley, 2 Hill, 265; Moss v. McCullough, 7 Barb., 279; Belmont v. Coleman, 1 Bosw., 188.)

The creditors and stockholders are therefore interested to assist the company to defeat this claim by defending it, if there is reasonable ground for a review on appeal.

So soon as their counsel was informed that the attorneys for the defendants declined defending further for want of fees, he appears to have taken immediate steps to have another attorney substituted, and the case has been received from the referee, and is in the hands of the printer.

The defendants being insolvent," the plaintiff is not likely to suffer from the few days delay which will occur before the case can be heard in its order.

We think the defendants should now be permitted to retain their case and bring their appeal to argument.

But since it is conceded that the defendants are in default—and are insolvent—and are here desiring to be relieved from the consequences of a non-compliance with the rule, their stockholders or creditors should not be permitted now to come in and in form, in the name of the insolvent company, but in fact for their own benefit litigate the action further without giving security to the plaintiff for all costs to which he may henceforward become entitled from the defendants upon the case or exceptions which they desire to have considered on the appeal herein.

Upon filing the case, giving such security by an undertaking with two sureties who shall justify in $500 each, and stipulating to accept short notice of argument for January term, the motion should be denied; costs of motion in such case to the plaintiff, $10, to abide the event. If such case be not filed and the stipulation and undertaking be not given within ten days, the appeal is dismissed with $10 costs of the motion.


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    Charles Wells v. George A. Henshaw.
    1. In an action upon contract, for goods sold and delivered; the defendant may set up in Ms answer, by way of set-off, or counter-claim, a judgment recovered by Mm against the plaintiff before the suit brought by the latter was commenced; notwithstanding the provision of the Code, that “no action shall be brought upon a judgment rendered in any Court of this state, except a court of justice of the peace, between the same parties, without leave of the Court for good cause shown, on notice to the adverse party.”
    2. It may be so set up, as a set-off or counter-claim, without obtaining leave of the Court.
    (Special Term,
    December 21, 1858,
    before Boswobth, Ch. J.)
    The complaint alleged a sale and delivery of goods to the defendant; that he agreed to pay therefor $61.04; admitted the payment of $3.50, on account, and prayed judgment for the balance.
    The answer as a third defense, sets up the recovery of a judgment before the commencement of this suit, by the defendant against the present plaintiff; and avers that it is in full force and unpaid, and prays that the amount due on it may be deducted from any sum, which the plaintiff may show to be due on the cause of action stated in the complaint.
    The plaintiff demurred to this part of the answer.

      K Seymour, for plaintiff.

      William Stanley, for defendant.
   Bosworth, Ch. J.

—The demurrer to the third defense, or counter-claim is not well taken. This action is upon contract to recover the price of personal property sold. In such an action the Revised Statutes give the defendant a right to set-off any judgment which he may have recovered against the plaintiff, which is in force and unpaid. (2 R. S., 354, sec. 32, sub. 1.)

Section 71 of the Code has not repealed this provision of the Revised Statutes. It was doubtless the object of section 71 to prevent a party, who had recovered a judgment, from bringing an action upon it fox the mere purpose, of increasing its amount by adding to it the costs of a suit upon it. (Tufts v. Braisted, 4 Duer, 607.) The whole prohibition is, that “ no action,” shall be brought upon it, “between the same parties,” without leave, &c.

When the Code declares, that a “defendant may set forth by answer, as many defenses and counter-claims as he may have,” &c., it undoubtedly meant to provide, that anything, which by pre-existing law is a defense, (and not declared by the Code to be no longer a defense) might be set up as a defense. (§ 150, sub. 2.)

Considered as a counter-claim, it answers the definition of that term, as given by the Code. It Is a cause of action in favor of the defendant, against the plaintiff, which existed at the commencement, of this suit.

All that can be said of it, by the plaintiff is, that the defendant could not bring “an action” upon it, without leave of the Court. But no law has declared that it may not be pleaded as a set-off, or counter-claim. The Revised Statutes provide that it may be pleaded as a set-off. If the Code, may be regarded as having named the claim, a counter-claim, when set up as a defense, then it allows the judgment to be set up as such.

I think it clear, that the demurrer to this part of the answer, is not well taken. But the plaintiff will be allowed to withdraw his demurrer, and to reply on terms.

Ordered accordingly.


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    D. H. Gould, Plaintiff and Respondent, v. L. R. Bryan, Defendant and Appellant.
    1. In an action for the recovery of money, an affidavit is sufficient to authorize the issuing of an attachment against the defendant; by which it is made to appear, that a cause of action exists against such defendant, together with the amount of the claim and the grounds thereof, and that the defendant is not a resident of this state.
    2. In such an action, and on a state of facts on which it is proper to grant such an attachment, one may be issued and made to accompany the summons into the sheriff's hands, and may be served after due personal service of the summons has been made; and when so issued and served it is regular and valid.
    3. .The phrase, “in an action for the recovery of money,” as used in § 227 of the Code, designates the class of actions in which an attachment may issue, and does not make the actual commencement of a suit by the service of a summons, an essential prerequisite to the jurisdictional competency of a Justice of the Superior Court to grant an attachment.
    4. An attachment against the property of a non-resident defendant, may be issued, as well as an order for his arrest be made, before actual service of the summons, but cannot be executed until the summons has been served.
    (Before Bosworth, Oh. J., and Hoffman, Slosson, Woodruff, Pierrepont and Moncrief, J. J.)
    Heard and decided, February 12th, 1859.
    This is an appeal by the defendant from an order made by Bosworth, Oh. J., on the 26th of January, 1859, denying defendant’s motion to set aside an attachment against his property, granted in this action on the 17th of January, 1859, by the Chief Justice.
    The affidavit on which the attachment was granted, stated facts establishing that a cause of action existed in favor of the plaintiff against the defendant, for money lent, and the amount due. It appeared thereby that the defendant was not a resident of the State of New York, and it contained various allegations of fact tending to show, that the defendant was about to dispose of his property with intent to defraud his creditors. The defendant moved, on that affidavit and on one made by himself, to vacate and set aside the attachment. The defendant, in the latter affidavit, states “that he is informed and believes that the attachment in this action was granted by his Honor, Chief Justice Bosworth, and delivered to the sheriff for service and execution, before the summons in this action was served upon deponent.
    “ That the deputy-sheriff, at the time of the service upon-this deponent of the summons herein, delivered to this deponent a copy of the said attachment.” The defendant’s affidavit contained various other allegations, some of which were inserted to show that he had ceased to be a resident of Washington, D. C., and had abandoned his residence there and become a resident of New York before this suit was commenced; and others to repel the suggestion that he was about to dispose of his property with intent to defraud his creditors. The order to show cause why the attachment should not be vacated, specified as the grounds on which it should be set aside, the following, viz.:

      First. That the defendant was a resident of New York.

      Second. That the affidavit on which the attachment was granted was insufficient, and,

      Third. That the attachment was granted and issued before the summons was served; and therefore, (as it was insisted,) before the Court had acquired jurisdiction of the action. That the acts of the Chief Justice in issuing it, were acts done in a matter of which he had no jurisdiction.
    The motion was opposed on various affidavits tending to show that the defendant was not a resident of the State of New York; and, as the plaintiff insisted, also tending to show that the defendant was about to dispose of his property with intent to defraud his creditors.
    There was nothing in the affidavits tending to show, that the attachment was granted before the summons had been issued and delivered to the sheriff to be served, or that the attachment was served until after the summons had been actually, and personally served, on the defendant. The papers did not contain a copy of the attachment, and, therefore, did not show whether or not, by its terms, the sheriff was directed (after service of the summons had been made) to attach defendant’s property, &c.
    The motion to set aside the attachment was denied, and the following opinion was filed with the decision:
   Bosworth, Ch. J.

—“ In an action for the recovery of money,” the property of a non-resident defendant may be attached. (Code, § 227.)

The affidavit on which the warrant may be issued, need only state enough to make it thereby appear, “that a cause of action exists against such defendant, specifying the amount of the claim, and the grounds thereof,” and that the defendant “is not a resident of this state.” (Code, § 229.)

The affidavit in question states all this, and therefore is sufficient in form. If the Court now has jurisdiction of the action, and of the person of the defendant, and had when the order to show cause why the attachment should not be vacated was obtained; then, the attachment cannot be vacated, unless the affidavits establish that, as matter of fact, the defendant was a resident of this state.

The defendant has been personally served with the summons, in the city of New York, and this Court has acquired jurisdiction of the action and of the person of the defendant. (Code, § 33, sub. 2.) There is no pretence that the attachment was served before the summons.

It is alleged that at the time of the service, upon the defendant, of the summons herein, the deputy-sheriff delivered to the defendant a copy of the attachment. There is no allegation that any property was attached before the summons was served, or that the attachment was granted and delivered to the sheriff to be served before the summons was delivered to him to be served; or that it was intended that the attachment should be served unless the summons was first actually served.

I think an attachment may be granted, and may accompany the summons into the sheriff's hands, and that on the summons being personally served, the attachment may be served, and that an attachment thus issued and served is a valid process. 1 Duer R., 662 (anonymous); Code, § 8.

In Fisher el al. v. Curtis, (2 Sandf. Rep., 660,) it was suggested that the words “ in an action,” in section 227, could not be satisfied except by the actual commencement of an action by the personal service of a summons on a defendant. If that be so, then the property of a resident defendant who has absconded (so that he cannot be served) could not be attached, by any attachment issuing out of this Court.

But, section 227 is not correctly quoted, in Fisher et al. v. Curtis {supra). The language is, “ in an action for the recovery of moneyand that language describes the class of actions in which an attachment may issue; but it does not declare that the action must be commenced, before the attachment can be granted.

On the contrary, it declares that the plaintiff, at the time of issuing the summons, may have the defendant’s property attached, and section 8 of the Code applies the chapter of the Code in which section 227 is found, to this Court.

Unless an attachment can accompany the summons, and will be valid until the summons has been personally served, provided it is actually served before the attachment is served, then it would seem to follow, that an order for the arrest of a non-resident defendant, granted before the summons is served, though not served until after the summons, would be void. The defect of jurisdiction applies with as much force to the one case as to the other.

J. B. Brownell, for appellant, (the defendant,)

Insisted, that the affidavits established the fact, that the defend-' ant was a resident of the State of Few York, at the time this suit was commenced, and repelled the idea that he was about to dispose of his property, with intent to defraud his creditors. Upon the question of the jurisdiction of the Judge to grant the attachment, he contended as follows :

But if the defendant be a non-resident, then the attachment should not have been granted, and having been granted it should have been discharged.

If the objection be sound that this Court has no jurisdiction to grant process, or a proceeding in the nature of process, until the summons has been served, when the defendant-is a non-resident, then an order of arrest would be as truly unauthorized as an attachment against the property of the defendant. An order of arrest is in the nature of process, and accomplishes the office of *the ac etiam, clause in a capias ad respondendum.

My conclusion is that an order of arrest may be granted (Code, § 183,) or attachment be issued in the specified cases, and may accompany the summons into the sheriff’s hands (Code, § 227,) to be served when the summons has been personally served, and that an attachment so issued and served is regular and valid.

The opposing affidavits establish that the defendant has not lost his residence at Washington, nor acquired a residence in this state, in such sense as to be exempt from an attachment against him as á non-resident defendant, within the meaning of the word non-resident, as used in the Code.

The motion must be denied, - with ten dollars costs to the plaintiff, to abide the event. .

From the order denying such motion, the defendant appealed to the General Term.

1. In an action in this Court, a justice has no jurisdiction to grant an attachment against a non-resident defendant, before the summons is personally served upon the defendant. (Code, § 33; Fisher v. Curtis, 2 Sandf., 660, 661.)

2. The affidavit upon which the attachment was issued, was insufficient.

It does not show that the Court had jurisdiction of the action or of the person of the defendant; and the affidavit of the defendant shows that if the defendant be held to be a non-resident, this Court had no jurisdiction of the action, or of the person of the defendant, at the time the attachment was granted. The order appealed from, should be reversed with costs, and the attachment vacated and set aside with costs of the motion below. "

N. G. Wyeth, for respondent.

The Court, at General Term, after hearing the argument, stated that the Court were of the opinion, that the affidavits established the fact that the defendant was not a resident of the State of New York.

That the judges were unanimous in the opinion, that an attachment against the property of a non-resident defendant may be issued and accompany the summons into the hands of the sheriff, and may be served after the summons has been duly, personally, served; and that an attachment so issued and served is regular and valid, for the reasons stated in the opinion of Boswobth, Ch. J. The order was affirmed.


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    Corbett, Plaintiff and Respondent, v. Ward, Defendant and Appellant.
    In an action against two defendants, “ for the recovery of money,” in which the plaintiff claims to recover for services alleged to have been rendered for them and on their promise to pay therefor; if either defendant has a verdict in his favor; or if on a trial of the action before a referee the complaint is dismissed as to him; he is entitled to recover his costs of the action, from the plaintiff, as a matter of course, and of strict right.
    (Before Boswobth, Ch. J., and Woodruff, Pierrepont and Moncrief, J.J.)
    Submitted, February 12;
    decided, February 19, 1859.
    This action comes before the Court, on an appeal by the defendant Ward, from an order made, pro forma, on the 15th of January, 1859, by Mr. Justice Pierrepont, which order declared that the defendant Ward is not entitled to costs, in this action, and directing that the adjustment of costs in his favor which the clerk had made, be disallowed.

      Bobert K. Corbett; the plaintiff, brought this action, against John A. 'Davis and Charles H, Ward, as defendants, to recover from them for services rendered, alleging in his complaint, that the services were rendered at the request of the defendants, .and on their promise to pay therefor.
    The defendants united in an answer in these words, viz.: “The defendants in this action, for answer to the complaint therein, severally deny each and every allegation contained in the complaint.”
    The referee, to whom the action was referred, decided that the plaintiff rendered services for Davis, on an employment by Ward who represented, that he and Davis were partners. That in truth Ward was but the agent of Davis, and although hable to the plaintiff, the latter could not recover against both in this action, but might elect the defendant, against whom he would take judgment. He elected to take judgment against Davis.
    The referee thereupon decided, that the plaintiff was entitled to a judgment against Davis for $800 and costs; and that the complaint should be dismissed as to Ward.

      The clerk having adjusted costs in favor of Ward, the plaintiff moved at Special Term to have the adjustment overruled, and costs to Ward disallowed. On that motion an order was made “ that the said taxation he disallowed and that the said Ward is not entitled to costs in this action.”
    From that order the defendant Ward appealed to the General Term.

      H. Sacie, for defendant Ward, appellant.

      Wm. Allen Butler, for plaintiff and respondent.
   By the Court.

Bosworth, Ch. J.

—In Decker v. Gardiner & Matthews, (4 Seld., 29;) the defendants put in a single answer, in which each defendant stated “separately and not jointly” the matters of defense on which he relied. The action was for “ the recovery of money.” The jury found a verdict against Matthews which carried costs, and a verdict in favor of Gardiner. The Court of Appeals decided, Taggart, J., dissenting, “ that the defendant Gardiner was entitled to costs as a matter of course, under § 305, of the Code of Procedure,” id., 30. That; it is true, was an action of tort, and this is an action on contract. But, in our view of the meaning of § 305; this difference is unimportant.

The present action, being one “for the recovery of money,” is controlled by the case cited. Whether the referee erred in deciding that the plaintiff could not recover in this action against both defendants, on the facts proved, is a question which does not arise on this appeal. The order appealed from must, therefore, be reversed.

Order reversed.


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    Thomas Smith v. William A. Corbiere.
    1. In an action for falsely and fraudulently representing to the plaintiff the means and pecuniary ability of a third person, whereby the plaintiff was induced to sell and deliver to the latter goods on credit and was damaged; the defendant cannot be held to bail unless it be shown by the affidavits on which an order of arrest is sought, that the defendant is a non-resident, or is about to depart from the state.
    2. The liability of a defendant thus incurred, is not a debt fraudulently contracted, nor an obligation fraudulently incurred, within the meaning of sub. 4, of § 179 of the Code.
    (At Special Term,
    April 23, 1859,
    before Bosworth, Ch. J.)
    The defendant moves to vacate an order holding him to bail. The action is on a cause of action not arising on contract; the cause of action being the alleged false and fraudulent representations of the defendant as to the means and pecuniary liability of S. A. Parker & Co., whereby the plaintiff was induced to sell and deliver to the latter goods on credit. The affidavits on which the order was made, do not allege that the defendant is a non-resident, or is about to remove from the state.
   Bosworth, Ch. J.

—By section 179, subd. 1, of the Code, a defendant cannot be held to bail in such a case, unless it be shown by affidavit; that he is a non-resident of the state, or is about to remove therefrom. Keither of these facts is alleged or pretended. Such an action is not assignable, for the reason that it is a mere personal tort, which a suit for the conversion of personal property is not. (Zabriskie v. Smith, 3 Kern., 322.)

The order cannot be sustained under subd. 4 of section 179 of the Code, which authorizes an arrest when the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought. That phrase is, in substance, the same as subd. 4 of section 4, of the act to abolish imprisonment for debt, passed April 26, 1831. The obligation thus spoken of is one arising ex contractu, on which an action will lie, whether contracted with or without fraud; and the defendant cannot be held to bail unless he was guilty of a fraud by reason of Ms conduct in incurring it. It has no relation to a cause of action which arises wholly and exclusively out of the fraud of the party, and which must fail if the fraud be not proved. The order must be vacated with $7 costs of tMs motion, on defendant’s stipulating not to bring a suit for trespass or false imprisonment, by reason of his arrest under said order.


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    Maria Gibbons, Plaintiff and Respondent, v. Lyon Berhard and George Kelsey, Defendants and Appellants.
    1. In an action upon an undertaking executed upon an appeal to the Court of Appeals by sureties only; a complaint sufficient in other respects, is not demurrible as not stating facts sufficient to constitute a cause of action; merely because it omits to aver, that the undertaking was accompanied by the affidavit of the sureties that they were worth double the sum specified therein.
    2. Such an undertaking is not necessarily a nullity in the sense that it is not obligatory, simply because it was not accompanied with such an affidavit as § 341 of the Code prescribes.
    3. The complaint averring, that upon the appeal to the Court of Appeals, the defendants made and filed with the clerk of the Court, for the use of the plaintiff, the undertaldng in question, and also that the appeal has been prosecuted to a final" determination in the Court of Appeals; it states a sufficient consideration to make the undertaking obligatory upon the' defendants.
    4. On such a state of facts, if any presumption is to be indulged, the presumption against the defendants is, that the appeal was regularly prosecuted in all respects, in all its stages, and that nothing, which is essential to the validity of the undertaking as a contract, was omitted.
    (Before Boswobth, Oh. J., and Hoffman, Slosson, Pierrepont and Moncbief, J. J.)
    Heard, April 23d;
    decided, April 30th, 1859.
    This is an appeal by the defendants from an order overruling their demurrer to the plaintiff’s complaint; made the 30th of March, 1859, by Mr. Justice Hoffman.
    The complaint alleges the recovery of a judgment in this Court by the plaintiff, against one Aaron P. Kinyon (describing it); an appeal from that judgment by Kinyon to the General Term; its affirmance there; an appeal by Kinyon from the latter judgment to the Court of Appeals; and “ that upon said appeal,” these defendants “ made and filed with the clerk of this Court for the use of the plaintiff,” an undertaking (a copy of which is set forth, being in the prescribed form, to operate as a stay of all proceedings pending the appeal).
    It further alleges that the judgment so appealed from was in all things affirmed by the Court of Appeals on the 15th of January, 1859; and that the sum of $247, costs and damages, was awarded to the plaintiff by that Court, against the appellant, but that said Kinyon has paid no part of said moneys, or of the judgment appealed from.
    The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.
    The demurrer was overruled, and from the order overruling it, the present appeal is taken.

      William Boies, for the appellants, insisted, that as by section 341 of the Code, it is declared, that “ an undertaking upon an appeal shall be of no effect, unless it be accompanied by the affidavit of the sureties, that they were worth double the amount specified therein; ” the complaint is defective in substance in not averring, that the undertaking in question was accompanied by such an affidavit. No such fact being averred, it must be assumed that there was no affidavit, and if there was none, the undertaking is a nullity. The undertaking does not show that there is any consideration to uphold it, and being an agreement to answer for the debt or default of a third person, it is void.

      B. H. Shannon, for the respondent.
   By the Court.

Bosworth, Ch. J.

—The undertaking set forth in the complaint, is, in form, such as the Code requires to be given, by a party appealing to the Court of Appeals, to entitle such appellant to a stay of all proceedings upon the judgment appealed from.

The defendants’ undertaking is a contract founded upon sufficient consideration to uphold it. (Thompson v. Blanchard, 3 Comst., 335.)

Their promise is absolute and unconditional that Aaron P. Kinyon, their principal “will pay all costs and damages which may be awarded against him on said appeal not exceeding $250;” and also that “he will pay the amount directed to be paid by the said judgment,” (the judgment appealed from) if it be affirmed “and all damages which shall be awarded against the said appellant.”

The complaint alleges that the judgment so appealed from was in all things affirmed on the 15th of January, 1859, and that the sum of $247, costs and damages was also awarded against the said appellant, but that said Kinyon has paid no part of any such moneys.

The defendants’ contract is therefore broken, and the plaintiff has a right of action, upon the facts stated, to recover the amount of the judgment appealed from and the costs of appeal, unless it is essential to a sufficient complaint, that it should allege, that an affidavit of the sureties was served with a copy of the undertaking. (In the matter of Negus, 7 Wend., 499; N. Y. Central Ins. Co. v. Safford, 10 How. Pr. R., 347.)

The complaint states that Kinyon “appealed to the Court of Appeals” from the judgment rendered at a General Term of this Court “and that upon said appeal” these defendants “made and filed with the clerk of this Court for the use of the plaintiff” the undertaking in question and that such appeal has been further prosecuted in the Court of Appeals, and that the judgment appealed from has been affirmed by that Corut.

It was competent for the plaintiff to waive the affidavit of the sureties; as that is required for his protection and not for that of the appellant or his sureties. ( Ward v. Whitney, 3 Sandf. S. C. R., 399.)

When it is said in section 341, of the Code that, “an undertaking upon an appeal shall be of no effect, unless it be accompanied by the affidavit of the sureties, that they are each worth double the amount specified therein;” the meaning is that it shall be of no effect, as a stay of proceedings, or to render the appeal valid. That is not necessarily declaring that it shall not, in any event be obligatory upon the parties executing it.

Section 334, declares, that the appeal shall not be effectual for any purpose unless such an undertaking, as that action prescribes be given, and sections 335 and 336 also declare that although such an undertaking as section 334 describes be given, the appeal shall not stay the execution of the judgment, unless an undertaking in such form and terms is given as those sections prescribe.

A notice of appeal having been given, and an undertaking in proper form having been executed and filed, the Court was competent to allow an affidavit of the sureties to be filed subsequently, had the respondent moved to dismiss the appeal by reason of such defect. (Code, sec. 327, and see Mills v. Thursby, 11 How. Pr. R., 129; Franklin v. Pendleton, 3 Sandf., 572, and S. C., 3 Seld., 508.) The undertaking, clearly, is not a nullity, even though it affirmatively appeared, that no affidavit of the sureties was served with it on the respondent.

And the appellant having received the whole consideration of it, viz., a stay of execution upon the judgment appealed from, until a determination of the appeal by the Court of Appeals was had; the parties to the undertaking are liable.

But it does not appear that such an affidavit as section 341 requires was not served. As against the defendants, the Court have no right to presume one was not served. As against them, the presumption is; if any is to be indulged, that the appellant complied in all respects with the requirements of the Code, inasmuch as it affirmatively appears that the appeal has been prosecuted to a final determination in the appellate Court. The presumption, in the absence of any allegation to the contrary is, that it was regularly prosecuted, in all of its stages.

The judgment appealed from must be affirmed, with costs.


text:
    Francis H. Saltus v. Sidney C. Genin and others.
    1. Where a plaintiff waits two years and three months after the trial of his action, and eight months after the Court have, on appeal, decided that upon the facts proved and specially found on the trial, no recovery can be had under his complaint, it is too late to ask leave to amend, if the sole ground of the application is that on the trial evidence was given of facts of which the plaintiff was not before apprised.
    2. If in any case amendment should be allowed after so great delay, it ought not where it appears that, if the plaintiff is entitled to recover at all, it is upon a ground highly technical and where if his claim be strictly legal, it is not meritorious.
    3. Where on a trial all the material allegations in the complaint, which would entitle the plaintiff to the relief prayed for, were proved and found to be untrue, but in making such proof the defendants showed facts which might constitute a cause of action totally inconsistent with that stated in the complaint, the plaintiff should not, for the purposes of a new trial, be permitted to amend his complaint, by reiterating the allegations so disproved, and further stating that if such allegations ¡are not true, then the other facts, inconsistent therewith do exist and praying such relief as he may on the trial appear to be entitled to.
    4. After a trial has been had and the defendants’ case has been folly developed if the plaintiff amends his complaint he should elect upon what averments he will rest his case and should not be permitted to speculate upon the chances of proof by declaring in the alternative upon inconsistent and hypothetical statements of his cause of action.
    5. After a trial has been had on which the whole case has been developed, and the plaintiff still insists on his right to recover on the facts alleged in his complaint until eight months after the Oourt on appeal have decided that upon those facts he cannot recover, if the plaintiff can be permitted to amend by changing substantially his cause of action, it should only be on the payment of all the costs accrued since the former complaint was filed.
    (Before Woodruff, J.)
    Bpecial Term,
    May 8th, 1859.
    About eight months after the decision of this case on the appeal to the General Term, (reported, ante, p. 250,) the plaintiff moved at Special Term for leave to amend his complaint He produced on the motion the amended complaint which he desired to file and serve.

      In this amended complaint the plaintiff retained in snhstance the averments in his former complaint. {Ante, p. 251.) That the defendants had purchased no Nicaragua stock for the plaintiff, and had negotiated no loan for the plaintiff, and that the accounts rendered by them of such pretended purchase, and the charge of commission for negotiating such loan, were not real but fictitious, and that the plaintiff was entitled to a return of his railroad stock, deposited with them as security. But adding in substance by way of alternative, that if any such purchases of Nicaragua stock were made for him, such stock was after-wards wrongfully and illegally disposed of by the defendants, and converted to their own use, with other allegations conforming to the state of facts proved by the defendants on the former trial to defeat the action, and claiming that the defendants should account to the plaintiff for such last named stock at the value thereof when so sold.
    He thus reiterated the charges made in the former complaint, entitling him to a return of the stock pledged; but averred that if those charges were not true, then it was true that the defendants had made the purchases they claimed to have made, and which he had thus denied in his former complaint, and still denied; and had converted the stock so purchased to their own use, and were liable to him for the value thereof. And he concluded with' the prayer for an account of their transactions in relation to the matter, and the payment to him of whatever should be found due to him in respect to the same.

      Albert Mathews, for the plaintiff.

      Charles Tracy, for the defendants.
   Woodruff, J.

—I am constrained to deny the motion for leave to serve the amended complaint submitted upon the making of the motion.

The action was tried in December, 1856, before a judge without a jury, and the facts proved were then specially found. Upon appeal to the General Term, the judgment rendered at Special Term was in the early part of July, 1858, reversed and a new trial was ordered.

The ground upon which the plaintiff now asks leave to serve the amended complaint, is, as disclosed in the affidavit, that on the trial of the action various matters were adduced in evidence of which he was not before sufficiently apprised to be able to set them forth in his complaint.

It must suffice to say of the application, resting as it does in the affidavit on this sole ground, that the plaintiff waited two years and three months after such matters were given in evidence, and it is now rather late to aver discovery of facts as the ground of asking an amendment. (10 How., 193.)

In truth, notwithstanding Ms so called discovery, the plaintiff chose to persist in Ms prosecution, and sought no amendment until the General Term have decided early in July, 1858, that no recovery could be had under his complaint upon the facts proved at the trial and found by the Court. And after such decision he has waited eight months before making the present application.

If in any case, amendment should be allowed after so long delay, it must be one in which it is apparent that the plaintiff will suffer greater injustice than he can suffer here, if the facts proved on the trial and found by the Court are true. For, if the facts are truly stated, it seems to me that any recovery upon those facts if permitted, must proceed upon a ground of a MgHy technical character, and which if strictly legal can hardly be Called meritorious. H in truth on any particular day pending the transactions between the plaintiff and the defendants, the latter had not 200 shares of Nicaragua stock standing in their names, it is by no means clear that the plaintiff suffered any actual damage, even if he be in legal strictness entitled to treat that as a conversion of Ms stock.

Besides tMs, the amended complaint now proposed is liable to serious obj eetions. The plaintiff even now retains in Ms proposed amended complaint the allegations wMch were proved and found to be untrue. He seeks to avail Mmself of the so called discovery, not for the purpose of averring the facts which were discovered on the trial, and making them the basis of his claim, but for the purpose of denying them and yet of speculating on the possibility of their being again proved, by praying such relief as he may be entitled to, if Ms other and inconsistent averments should not be established. In other words he avers several distinct facts, and then adds in substance that if they are not true, then some or one of certain other statements inconsistent therewith are true, and prays such relief as may be proper, whichever state of facts may appear to be proved on the new trial.

I am not yet prepared to concede that after a trial has once been had, the case fully developed, the defendants’ proofs been heard, and the principles applicable to the pleadings and proofs have been discussed, the plaintiff should be permitted to frame a new complaint, not resting his case upon any distinct set of facts or principles, but in substance assimilated to a bill for discovery averring the facts to be in one form entitling the plaintiff to one kind of relief, or if they are not so, then stating them in another form entitling him to another kind of relief, inconsistent with the first; or, if they are not so, then stating them in still another form, entitling him to still another kind or measure of relief.

There are cases in which some latitude may be given to a plaintiff, not fully informed of facts which lie in the information of others, in complaining in an alternative form. Here it would not be an unreasonable exercise of discretion, if an amendment were permitted, to say to the plaintiff: you now know all the facts, choose your ground of claim, and make your averments in a form in which the defendants can not only know upon what facts you rely but be prepared to meet them.

It would be, at least, a novelty in pleading, if the plaintiff may be permitted to aver as follows: “The defendant either sold my stock or he did not; if he did, he is liable for the proceeds; if he did not, he is bound to return the stock to me: wherefore, I ask for such relief as upon the proofs, when taken, I may appear entitled to.”

This would be a shorter complaint than the one here proposed, but in the particular which I am considering would hardly be liable to greater criticism.

If the complaint submitted was in all respects free from objection, it would not be apparent to me that the defendant would be prejudiced by allowing it to be filed as an amended complaint, if he was indemnified by requiring the payment of all costs accrued since the former complaint was filed. It would be of no material advantage to require the plaintiff to commence a new suit, or, in other words, to serve a fresh summons.

And on the other hand no great advantage would result to the plaintiff from allowing the amendment if such terms were imposed; for it is not suggested that the statute of limitations has barred a new suit, or that there is any difficulty in serving the defendants with a summons in a new action.

That such terms would be just and only just if an amendment were allowed I think certain. The defendants have answered the whole cause of action alleged in the complaint. They have proved on the trial that every allegation of the complaint which is made the basis of their supposed liability, (beyond what they had conceded and offered to pay) is untrue. The Court on the trial have found those allegations untrue. The General Term have decided, that the plaintiff cannot, under his complaint, recover upon any facts so proved and found.

Now, to permit under the name of amendment the filing of a complaint proceeding upon new allegations and asking a different relief upon the very grounds which were before denied by the plaintiff, after the defendants have been put to the whole expense of a protracted litigation and have substantially succeeded upon all matters charged against them, without'being first paid the costs to which they have been subjected, would seem to me obviously unjust. It would be extending to the plaintiff as mere favor, a privilege which I think he has no title to ask at the defendants’ expense.

But for the other reasons suggested, the motion should I think be denied.

Ordered accordingly.