author: Yan Brunt, P. J.:

text:
    The Mayor, Aldermen and Commonalty of the City of New York, Respondent, v. The New York Central and Hudson River Railroad Company and Others, Appellants.

      Grant of land under water by the city of New York — exception and reservation of land within street boundaries — pier erected by the grantee, on the excepted land, under a resolution of the common council — right of the city to maintain ejectment.

    A grantor, wlio states in his deed that he excepts therefrom a certain portion of the land for a certain purpose, cannot be held to have conveyed that which he has exrpessly excluded by the deed, becauses he afterwards devotes it to a different purpose.
    In 1848 the city of New York granted to an individual certain land under water owned by the city, by a conveyance which expressly excepted from the grant that portion of the land which was within the limits of certain streets, one of which was Thirty-ninth street, shown upon a map annexed to the conveyance, which exception was stated to be made for the uses and purposes of public streets, avenues and highways.
    In 1850 the common council passed a resolution to the effect that a water grant at the foot of Thirty-ninth street be given to the said grantee, provided he built a pier there at his own expense; a pier was built, but in 1890 the common council revoked the authority for the maintenance of the pier, and the city thereupon brought an action of ejectment for the land under water included in the lines of Thirty-ninth street, on which the pier stood, against the parties who then held through mesne conveyances under the original grant, and recovered judgment.

      Meld, that as the land in suit was excepted from the original grant the city had not parted with title thereto and was entitled to recover its possession;
    That it was immaterial for what purpose it was excepted from the grant, and' that there was no ground for claiming that the only exception from the grant was the right to wharfage and cranage arising from that part of the grant within the boundaries of Thirty-ninth street, and not the land itself;
    That the fact that the grantee constructed the pier at his own expense under the resolution of the common council, could not act as an estoppel against the city, since the common council had no power to make a grant of land under water in that manner;
    That the doctrine that an action of ejectment will not lie to recover an incorporeal hereditament was not applicable;
    That no authority was conferred by the resolution of the common council of 1850 which amounted to a legal license for the occupation of the laud in suit for a pier, so as to exempt the occupants from liability for damages, although such occupants were without notice of the revocation in 1890 of any rights which had been granted by the resolution of 1850.
    Appeal by the defendants, the New York Central and Hudson River Railroad Company and others, from a judgment of the Supreme Court iu favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 18th day of March, 1891, upon a verdict directed by the court after a trial at the New York Circuit.

      H. II. Anderson, for the appellants.

      D-. J. Dean, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover land under water forming part of what is known, on the map or plan of the city of New York, as Thirty-ninth street, together with the pier erected, thereon and the mesne profits arising therefrom. The facts in this case are undisputed and, therefore, only questions of law are presented.

It appears that on the 16th of November, 1848, the city granted to James N. Cobb, as trustee for Sophia Y. D. Laing, certain land under water extending from high-water mark to Eleventh avenue, and from the middle of Thirty-ninth street to the middle, line between Thirty-eighth and Thirty-ninth streets.

From this grant was excepted so much of the land embraced within the foregoing description as formed parts or portions of Thirty-ninth street and Twelfth and Thirteenth avenues, for the uses and purposes of public streets, avenues and highways. In and by said grant the grantee agreed that he would, within three months next after he should be thereunto required, at his cost, build, erect, make and finish, according to any resolution and ordinance of the city of New York already passed, or that might be thereafter passed, three good and sufficient bulkheads, wharves, avenues or streets which shall form so much and such parts of Thirty-ninth street and Twelfth and Thirteenth avenues as fall within the limits of the premises first described, and which were excepted as aforesaid from and out thereof for public streets.

In 1850 Cobb apulied to the common council for permission to build a pier at Thirty-ninth street, and the council passed the following resolution:

Desolved, that a water-grant at the foot of 39th street, North River, be given to James N. Cobb, provided that he shall build, at his own expense, a good and substantial pier at the foot of said street tinder the direction of the street commissioner, the same to be completed in one year.”

It would seem that a pier was built upon this property, and under various mesne conveyances whatever rights the defendants had in said land were conveyed to them. In 1890 a resolution was passed by the common council revoking the authority for the maintenance of the pier in question. And this action in ejectment was subsequently brought resulting in the judgment for the plaintiff from which this appeal is taken.

The claim of the defendants seems to be based upon the assumption that by the grant made in 1818 as above stated, some right ivas conveyed to the grantee over the land upon which the pier in question, which forms the subject-matter of this action, was built. This contention clearly cannot be sustained. The land upon which this pier was built belonged to the city of New York, and it was in pursuance of the ownership of the land under water that the grant in question was made to the grantee above named. But by this grant there was expressly excepted the soil embraced within the limits of the streets shown upon the map annexed to the conveyance. It is true that in the conveyance, it was stated that such exception was made for the uses and purposes of public streets, avenues and highways. But it is entirely immaterial for what purpose the exception was made if the land in question was not induced in the grant, as clearly it was not. A grantor who states in his deed that he excepts a certain portion of the land because he wants it for a certain purpose, cannot be held to have conveyed that which he has expressly excluded because he afterwards devotes it to a different purpose. The land in question was not included in the grant, and, therefore, no title passed. And there is no room for any claim that all that the common council reserved out of the water grant of 1818, was the right to wharfage and cranage arising from that part of the grant within the Thirty-ninth street boundaries. They actually excepted the land; did not give any title ; did not intend to give any title; and the fallacy of the defendants’ position rests upon the assumption that only rights of wharfage and cranage formed the subject-matter of the grant of 1818; whereas it was a conveyance of land under water, the property being described as “ all that cex1tain water lot, vacant land and soil under water to be made land and gained out of the Hudson or North River ; ” and out of this conveyance is excepted the land upon which the pier was erected.

But it is said that the common council, having in April, 1850, passed a resolution that a water grant at the foot of Thirty-ninth street he given to the defendants’ predecessor in title, provided that he should at his own expense build a pier, entered into an agreement by which the corporation agreed that in consideration of the construction of the pier such predecessor should have a water grant, i. <?., the right of wharfage at the front of Thirty-ninth street, which was the only right retained by the city of New York in the grant of 1848. This proposition rests upon the assumption that the right of wharfage at the foot of Thirty-ninth street was the only right retained by the city of New York in the grant of 1848, which we have already seen is a fallacious construction of the grant under which the defendants claim. And, furthermore, it is difficult to see how the title to real estate can be passed by resolution, the more particularly as the common council, under the ordinances which were binding upon it, had certainly no power to make any grant in the manner in which it was attempted to be done in the case at bar. The commissioners of the sinking fund have control over grants of land under water, and the provisions of the ordinances in respect to such control were in nowise complied with. The fact that under such resolution the grantee in the water grant constructed this pier and was permitted to construct it could not act as an estoppel upon the plaintiffs. If the common council could Hot grant, they could not authorize an act to be done which would operate as an estoppel, because an estoppel arises only where the act is done in pursuance of an authority received from a source or permitted by a party capable of granting the right.

It is further suggested that an action in ejectment will not lie to recover an incorporeal hereditament. But the subject-matter of this action was not an incorporeal hereditament. It was the land upon which this pier stood, and the erections which had been unlawfully put upon such land. And in the case of Mayor v. Law (125 N. Y. 380) this form of action is expressly approved.

It is further urged that the court erred in directing a verdict for six years’ damages, as the defendants had received no notice of the revocation in April, 1890, of any rights which had been granted by the resolution of 1850. This position would undoubtedly be correct if any authority had been conferred by the resolution of 1850, which amounted to a legal license of occupation by the person named in such resolution of the land in question for the purpose of the erection of a pier. It having been already shown that the common council had no power to grant this land under water, it- does not seem to be necessary to repeat the argument for the purpose of showing that they had no power to license. Having no power to grant, they had no power to dispose of the possession of the land in question for any purpose whatever.

It would seem that the case of The Mayor v. Law (above cited) has disposed of all the questions involved in this case, and that no error was committed upon the part of the court.

The judgment appealed from should be affirmed, with costs.

Follett, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Barrett, J.:

license: Public Domain

text:
    Margaret Devlin, Appellant, v. Robert Boyd and Another, Respondents.

      Equity jurisdiction to set aside a judgment regula/rly obtained — the mistake must be material.

    A mistake, which, will justify a court of equity in setting aside a judgment duly and regularly obtained, must be material and must have worked real and not merely technical injustice.
    A mere unfounded impression on the part of a person who has allowed a money judgment to be taken against him, as to the form of the obligation on which the judgment proceeded, is not such a mistake as will call upon a court of equity to set aside the judgment, where it appears that an indebtedness for the amount of the judgment actually existed, and that the judgment debtor intended to protect the creditor by a judgment for what was really owing to him.
    Appeal by the plaintiff, Margaret Devlin, from a judgment of the Supreme Court dismissing the complaint upon the merits, rendered at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 16th day of December, 1892.

      George P. Gordel, for the appellant.

      August Kohn, for the respondents.
   Barrett, J.:

This is an action to set aside a judgment of the City Court in favor of the defendant Boyd against the present plaintiff — which judgment had been collected and satisfied • — - and to require Boyd to restore to Mrs. Devlin the amount so collected, with interest and costs. The judgment was for $1,246.22, and it was entered on the 24th of December, 1889.

The gravamen of the complaint is that the judgment was obtained by mistake. It is alleged that Mrs. Devlin allowed it to be entered against her in the belief that she was actually indebted to Boyd upon two notes for $1,000 each, which she had previously given to her husband to facilitate certain building operations. After her husband’s death, in March, 1891, she found these two notes among his papers, stamped “paid,” as of a date prior to the commencement of the City Court suit, and thereupon she instituted inquiries which resulted in the information that the judgment was not upon these two notes, but for moneys loaned in July and August, 1889. She now asserts that no such moneys were loaned to her at these dates, and, consequently, that the judgment was based upon causes of action which never existed, but were wholly baseless.

The defendant denies the material allegations of the complaint, and alleges that his complaint in the City Court suit was true, and that the moneys therein referred to were actually loaned by him to the plaintiff.

The learned justice who tried the cause has found that the judgment in question was obtained without any fraud or misrepresentation on the part of the defendant Boyd, and without any mistake of fact on the part of the plaintiff. lie refused to find 'that the loans upon which the City Court action was founded were not made by Boyd to Mrs. Devlin. He also refused to find that she was not liable therefor.

We think the evidence was sufficient to justify-both the findings and the refusals to find. The complaint in the City Court set forth two causes of action: one for a loan of $ 1,000 and the other for a loan of $200. As to the loan of $1,000 there can be no question. Boyd’s testimony, to, the effect that he made this loan upon Mrs. Devlin’s note, is corroborated by the check which he gave therefor payable to her order. This check was indorsed ly Mrs. Devlin and was deposited to her credit in the Riverside Bank, where she kept an account. As to the 'remaining $200, Mr. Devlin borrowed it, as his wife’s agent, declaring that he wanted the money for her. He signed the note “ James Devlin, for Mrs. Devlin,” and this very note, together with the $1,000 note, was given up by Boyd when the City Court judgment was entered. Mrs. Devlin says that her husband had no right to borrow this $200 upon her credit, and she claims to have canceled his power of attorney prior to the date of this loan. But Boyd had no notice of this cancellation, and he was quite justified, because of the prior course of dealing, in believing that Mr. Devlin’s authority was continuous. At all events, there is no foundation for the charge that this cause of action was wholly baseless.

There is an apparent variance with regard to the date when one of these loans was made, but it is explained in a simple manner. The allegations of the City Court complaint are that the loan of $200 was made on or about the 8th day of July, 1889, and that the loan of $1,000 was made on or about the 12th day of August, 1889. The proof is that the loan of $200 was made on the day so specified in the comjfiaint. But the loan of $1,000 was not made on the 12th day of August, 1889. It was actually made on the 7th day of June, 1889, and Boyd then received Mrs. Devlin’s note therefor, payable in two months. That note matured upon the 10th day of August, 1889, which was “ on or about ” the date specified in the complaint.

It is difficult to see, in view of these findings of fact, upon what principle the appellant can hope to have the City Court judgment disturbed. The singular contention is made that it was error to permit Boyd to prove the loans, to recover which the City Court suit was instituted, and that the only material question upon the trial here was whether the judgment in question was entered under a mistake on Mrs. Devlin’s part as to the precise nature of the causes of action set forth in the complaint. In other words, the appellant claims that, even if she owed Boyd money, and was willing to protect him, the judgment therefor should not be allowed to stand, because she did not intend to permit judgment for this particular money,, but. only for other money which she supposed to be due, but which, as she subsequently discovered, was not due, it having previously been paid. This contention overlooks the underlying principle upon which courts of equity exercise jurisdiction to set aside judgments duly and regularly obtained. The fundamental ground of relief is that the enforcement of the judgment, as to which the mistake occurred, would be unjust and tmconscionable. Here, however, the situation is reversed. It would be unjust and unconscionable to set the judgment aside upon the pretense of an unsubstantial mistake. 'We have no fault to find with the law as laid down in the numerous cases cited in the appellant’s elaborate brief. Mistake under proper conditions is an undoubted ground for the exercise of equity jurisdiction. But the mistake must be material, and must have worked real and not merely technical injustice. It was, therefore, entirely proper for the Special Term to permit Boyd to show that Mrs. Devlin owed him money, and desired to protect him by a judgment for what she really owed.

There was no mistake about this even on her part. She intended to secure whatever she owed him, and she did it. The form of the-obligation was wholly immaterial. The substantial fact was that Mrs. Devlin owed the money for which judgment was entered, and that she has only done what was right and honest in paying that judgment. Her mistake — so called — was nothing more than an. unfounded impression, for which Boyd was in nowise responsible — a belief which has neither changed her real purpose nor deprived her of a dollar that she did not owe.

There is a good deal in the case to justify the conclusion that the-mistake set up was an afterthought. The summons, with notice of the amount due, was served upon Mrs. Devlin. That showed a claim of $1,200. It is hard to credit the suggestion that she then believed that the action was for $2,000 upon two promissory notes of $1,000 each. She knew that the plaintiff’s attorneys in that action were also her own counsel, and that they were acting upon an understanding between herself, her husband and Boyd. She had no good reason for the belief that the two promissory notes in question had remained unpaid until the time of the commencement of that action. Her husband had no occasion to deceive her upon the subject, and, indeed, there is not the slightest ground for the belief that she would have acted otherwise than she did, had she carefully read the complaint in that action.

In every view of this case, it seems to be without merit, and the complaint was properly dismissed.

The judgment should, therefore, be affirmed, with costs

Van Brunt, R. J., and Follett, J., concurred.

Judgment affirmed, with costs.


text:
    Charles G. Stevens and George F. Richardson, as Trustees for Ellen S. Melcher, Appellants, v. Marietta R. Stevens, Respondent, Impleaded with Others.

      The right of testamenta/ry trustees of residuary real estate, charged with legacies, to enjoin an executrix and legatee from leasing the same and collecting rents.

    “When an executrix and legatee of a legacy in trust charged, with other legacies, upon the testator’s residuary real estate devised to trustees, has, as appears hy a decree of the court and by her admission, collected and received out of the estate more than the interest upon her legacy, and has no right, under the will, to make leases of the real estate or collect rents therefrom, the trustees, upon bringing an action to obtain a sale of sufficient of the residuary real estate devised to them in trust to satisfy the legacies charged thereon and to have the residuary devise to them effectuated by a conveyance from the executrix and. executor, in accordance with the duty imposed upon the executrix and executor by the will, are entitled to an injunction pendente lite restraining the executrix from leasing the real estate and collecting the rents therefrom.
    'The fact that the trustees of such residuary real estate may have acquiesced in the executrix’s making leases and collecting rents while anj^thing remained due for interest under her trust legacy does not alter the legal status and does not prevent the trustees from revoking any passive authority acquired through such acquiescence, hy applying for an injunction against such leasing and collection of rents, after all interest on the executrix’s trust legacy has been paid, and when it is apparent that she is indebted to the estate.
    The granting of an injunction which will merely restrain an executrix from infringing upon the rights of others hy possessing herself of that to which, as executrix, she has no right, and which will not restrain any act which she has a right as executrix to perform, is not open to the objection that it would be in effect to remove the executrix.
    The binding effect, as evidence against the parties thereto, of the findings and adjudication in an action which has proceeded to a judgment which is unroversed, is not affected by the fact that both parties have appealed from the judgment, and that an undertaking has been given on the appeal to stay execution on the judgment; and the question of a party accepting the fruit of a judgment and then appealing therefrom does not arise.
    When the issuance of an injunction is a matter of right, the general rules with regard to insolvency of the defendant, irreparable injury and laches are not applicable.
    Appeal by the plaintiffs, Charles G. Stevens and George F. Richardson, as trustees for the benefit of Ellen S. Melcher under the last will and testament of Paran Stevens, deceased, from an order of the Supreme Court made at the New Yorlc Special Term at Chambers, and entered in the office of .the clerk of the city and county of New York on the 2d day of December, 1892, denying the plaintiffs’ motion to continue during the pendency of the action a temporary injunction theretofore granted and dissolving such injunction.
    . George ZabrisMe and John B. Burrill, for the appellants.

      George Boadley, for the respondent.
   Barrett, J.:

This action is brought by the plaintiffs, as trustees of Ellen F„ Melcher, to procure a judgment by which sufficient of the residuary real estate devised to them and to certain other trustees, by the eleventh, twelfth and thirteenth clauses of the will of Paran Stevens, deceased, may be sold to satisfy the balance due on legacies charged on such residuary real estate; and that the remainder be adjudged to be vested in, and be conveyed by the executors and executrix to, the plaintiffs and such other trustees.

Under the fifth clause of the will in question the sum of $1,000,000 was given to these same plaintiffs as a trust fund for the benefit of the testator’s wife, Marietta R. Stevens, and the residuary real estate was (as adjudged by a former decree of this court in what is called a construction action) charged with this trust legacy. In the year 1873, certain parcels of property were conveyed to Mrs. Stevens’ trustees as part of the principal of the trust legacy, and since then, in an action brought by these same trustees against all parties in interest, a decree has been made adjudging that but $265,297.19 remains due upon account of such principal. This decree was filed on the 5th day of November, 1891, and it establishes the fact that all interest on the unpaid balance of the trust legacy, down to the 1st day of May, 1887, had been fully paid to Mrs. Stevens, and that after such payment there remained in her hands, on the date mentioned, the sum of $83,611.73, received by her from the estate over and above all credits to which she was entitled.

In the supplementary complaint in the present action it is alleged that since the 1st day of May, 188?, Mrs. Stevens has collected and received from and out of the assets of the estate sums exceeding $93,000, which amount is more than sufficient to pay the interest from May 1, 1887, to December, 1891, upon the unpaid balance of this $1,000,000 trust legacy. And this averment is not denied hr her answer to the supplemental complaint.

It thus appears by the decree of this court and by the respondent’s admission, that she has received more than the interest upon this unpaid balance down to the present time.

By the decree of November 5,1891, it is further adjudged that a legacy of $100,000 given to Mrs. Stevens by the first clause of her husband’s will, has been paid. Thus all legacies given to her by the Will have been paid except the balance of the trust legacy already referred to.

It seems to us, upon these facts, that a plain case for an injunction was made out. Mrs. Stevens had no right under the will to collect rents of the real estate, or to make leases thereof, as executrix. The only duty imposed upon the executors and executrix with regard to the residuary real estate is to divide it into three equal parts, and to make proper conveyances thereof to the trustees of the several trust funds. It is true that this residuary real estate was charged with the trust legacy in her favor, and indeed with all the other legacies. But that gave her no mortgage, either as executrix or individually, upon this real estate, much less upon the rents and profits thereof. The charge is in favor of her trustees^ as trust legatees, 'and while they have a right to enforce this charge to the extent of the unpaid balance of principal, there is no necessity for the application to this purpose of the rents and profits. For, by the decree already referred, to, it was adjudged that the residuary real estate was worth at least the sum of $1,500,000 over and above the incumbrances thereon. There would certainly be no equity, therefore, in any action brought to enforce this charge, to impound the rents of property worth nearly five times as much as the lieu. It seems clear, therefore, that neither Mrs. Stevens, as executrix, nor her individual trustees have any right to interfere with the rents and profits of the residuary real estate.

The plaintiffs, as trustees of one-third of this residuary real estate for the testator’s daughter, Mrs. Melcher, have properly brought this action to have the liens and charges thereon cleared off and the residuary devise to them effectuated. Their right to one-third of the rents and profits follows their right to one-tliird of the fee in trust for Mrs. Melcher. They are, therefore, entitled to restrain the unauthorized collection of these rents and also to restrain the unauthorized leasing of the property. The former act is an infringement of their rights as trustees and of the rights of the other trustees; and the latter tends to embarrass the proceedings in the action and to interfere with the sale upon final judgment.

The plaintiffs’ acquiescence in Mrs. Stevens’ past acts does not alter the legal status. That acquiescence was probably excusable while anything remained due for interest on the unpaid balance of the trust legacy; but, in view of the decree adjudging that all such interest was paid to May 1, 1887, and that on that day Mrs. Stevens actually owed the estate $83,611.73 ; in view also of the admission already pointed out, that she has since collected $93,000 of rents, the plaintiffs were bound to revoke any passive authority which may have been acquired by their acquiescence. That they have done by instituting this action and by praying, in their complaint, for an injunction against renting or leasing the real estate or collecting or receiving the rents thereof. It would be grossly inequitable to deny their legal rights in the premises, now that the residuary estates are not in any wise indebted to Mrs. Stevens, and that the rents thereof are not needed to afford her full interest upon the entire trust legacy.

The learned judge at Special Term placed his decision upon three grounds: Fi/rst. That the granting of the motion would be in effect to remove the 'executrix; second, that the facts set forth in the moving papers were denied ; and, third, that irreparable injury was not shown. The first ground involved a misconception of the relief sought. The plaintiffs do not ask the court to restrain any act which Mrs. Stevens has a right as executrix to perform. It is not an interference with her executorial functions to direct that she shall not

infringe upon the rights of others by possessing herself of that to which, as executrix, she has no right. She is not thereby removed nor shorn of any of her lawful functions. The court simply exercises its power to regulate and control her action under well-settled principles. (See Wood v. Brown, 34 N. Y. 337.)

The second ground overlooked the consideration that the material facts in support of the injunction were adjudicated by the decree of November 5, 1891, already referred to. The respondent insists that this judgment should not be given conclusive force upon this motion, for the reason that both parties have appealed from it and that the present respondent —• appellant there — has given an undertaking to stay proceedings on her appeal therefrom. The effect of this undertaking, however, is only to stay the execution of the judgment. It cannot affect the findings as conclusive evidence against her, so long as they are unreversed. Nor does the counter appeal of the present plaintiffs alter the situation. This is not the case of a party accepting the fruit of a judgment and then appealing therefrom. That principle has nothing to do with the force and effect of the judgment while unreversed. The question here is one of evidence, and there can be no doubt that, notwithstanding the appeal, both parties are now bound by the findings and adjudication.

Nor are the general rules with regard to insolvency, irreparable injury and laohes here applicable. "Whether Mrs. Stevens be solvent or insolvent, whether the plaintiffs have permitted her to infringe upon the rights of their cestuis que trusts or not, is quite immaterial. The question here is one of right, and the injunction should not be denied merely because the plaintiffs have failed to check Mrs. Stevens sooner, nor because she'may be able ultimately to account for rents to which the trustees are, and to which she is not, entitled.

The order should be reversed and the injunction granted, with costs.

Van Brunt, P. J., and Follett, J., concurred.

Order reversed and injunction granted, with costs.


author: Follett, J.:

text:
    Henry C. Miner, Appellant, v. Augustin Daly, Respondent.

      Purchase of the exclusive right to produce a play — representations as to the vendors rights in the play.

    The complaint in an action brought to recover damages because of the alleged false and fraudulent representations of the defendant as to his sole right to produce in the United States a certain French play, alleged to have been made¡ on the purchase by the plaintiff from him of the exclusive right to produce the play in the United States for a certain period, held, to have been properly dismissed on the trial, on the ground that the plaintiffs evidence failed to establish a cause of action.
    Appeal by the plaintiff, Henry C. Miner, from a judgment of the Supreme Court, dismissing the complaint on the merits, entered on the decision of the court, rendered at the New York Circuit on. the 23d day of November, 1892.

      A. II. Hummel, for the appellant.

      Stephen H. Olin, for the respondent.
   Follett, J.:

In the autumn of 1888 the plaintiff was in Paris, France, where he saw a play acted at the City Theater and at the Ambigú Theater, known as “Roger La Honte.” He called on Mr. Chizzola, the manager of the Ambigú Theater, and asked if he could purchase the right to produce the play in America. Mr. Chizzola told him that he had sold the right to the defendant. Afterwards the plaintiff entered into negotiations with Mr. Dorney, Mr. Daly’s manager, who told the plaintiff that Mr. Daly had purchased the play of Mr. Chizzola and had the sole right to produce it in this country. On the 5th of February,-1889, the parties to this action entered into a written contract, in which it was recited: }‘ "Whereas the said Daly has the sole right to produce in the United States and Canada a certain play entitled ‘Roger La Honte’ * * * Now, this agreement witnesseth: That, in consideration of the sum of five thousand dollars ($5,000) paid by the said Miner to the said Daly, the receipt whereof is hereby acknowledged, and of the covenants herein» after contained on the part of the said Miner to be performed, the said Daly hereby agrees to sell, and by these presents does sell, assign and set over, unto the said Miner, all the right, title and interest of the said Daly in and to the said' play ‘ Roger La Honte/ together with the exclusive right to produce the same, but only for one year, commencing on the 11th day of November, 1889.”

The plaintiff expended moneys — the amount was not shown — in preparing to produce the play, which was acted by his troupe in various cities of the United States. "While it was so being acted by the plaintiff’s company, a similar play bearing the same name was also acted in various cities of the United States. The plaintiff called on the defendant to jn'otect the right which he had purchased. This the defendant declined to do, placing his refusal on the ground of want of power. The plaintiff did not rescind the contract and sue for the return of the consideration paid and damages, but continued to produce the play and afterwards brought this action to recover damages, on the ground that the defendant falsely and fraudulently,, and with intent to deceive the plaintiff, represented that he had the sole right to produce the play in the United States and Canada. It is also alleged in the complaint that Daly had not this right.

On the'trial the plaintiff testified that the alleged representations were made by the defendant’s business manager, but did not show that they were known to be false by the defendant or by his manager. The plaintiff failed to show that the defendant did not have the exclusive*right to produce the play in this country, but rested his case on showing that others produced a similar play. "Whether 'they had a right to produce it or were mere violators of the plaintiff’s right was not shown. No evidence of any damage was given beyond proof of the payment of the purchase price. How much the plaintiff lost, if anything, by his purchase or by the production of a similar play by others, was neither shown nor attempted to be shown.

Under this state of the evidence it is clear that no cause of action was established, and that the court did not err in dismissing the complaint. The judgment should be affirmed, with costs.

Yan Brunt, P. J., and Barrett, J., concurred.

Judgment affii’med, with costs.


author: Per Curiam :

text:
    Hermann Isaac, Appellant, v. Robert Wilisch and Alexander Wilisch, Copartners, etc., Respondents.

      Bill of particulars —particulars of special damages, peculiarly within the plaintiff’s knowledge — acts complained of fully known to the defendant.

    A complaint assigned as a cause of action, breaches by the defendants, who were manufacturers of paper in Europe, of a written agreement to deliver paper upon orders received by the plaintiff from customers, which purchase orders it was alleged the defendant had accepted, and claimed as damages the difference between the price to be paid by plaintiff and the price at which he had resold to the customers; annexed to the complaint was a schedule of these orders and of their numbers, and of the number of reams of paper covered by each order and of the value thereof; the defendants demanded a bill of particulars of the names and addresses of the persons to whom the plaintiff made sales as alleged.

      Held, that the defendants were entitled to these additional particulars, because the damages claimed were in the nature of special damages, and the particulars attached to the complaint were not sufficient to identify the purchase orders as being the same as those alleged to have been taken by the plaintiff, and did not state the number of reams sold to any person or the dates of such sales, which information was peculiarly within the knowledge of the plaintiff, and the absence of which might result in surprise and injury to the defendants.
    A plaintiff should not be compelled to furnish a bill of particulars, when it appears that knowledge of the acts complained of by him is peculiarly and thoroughly with the defendant, and that the purpose of the application is to find out just what evidence and what witnesses, together with their names, the plaintiff may have to sustain his cause of action.
    Appeal by tbe plaintiff, Hermann Isaac, from an order of the1 Supreme Court, made at the New York Special Term at Chambers and entered in the office of the clerk of the city and county of New York on the 14th day of February, 1893, directing the plaintiff to serve a bill of particulars.

      A. 3. Yam, Brunt, for the appellant.

      George J. Greenfield, for the respondents.
   Per Curiam :

The plaintiff, doing business in this city, entered into a written, contract with the defendants, who were manufacturers of colored paper in Germany, the construction of which contract, as expressed in its terms and contended for by plaintiff, would confer on the latiter the exclusive sale of the goods of defendants’ manufacture in the United States. Assigning breaches of this written agreement, the plaintiff seeks to recover upon four separate and distinct causes of action, the first being defendants’ failure to deliver colored paper upon orders received by plaintiff from customers, which purchase orders it is alleged the defendants duly accepted, and by reason of their failure damaged the plaintiff to the extent of the difference between the price to be paid by plaintiff and the price at which he had resold the same to the customers. Annexed to the complaint as an exhibit is a schedule of these orders and of their numbers and of the number of reams of paper covered by each order and the value thereof.

In addition,'however, the defendants ask for a bill of particulars of the names and addresses of the persons to whom the plaintiff made sales as alleged, which particulars, we think, should have been furnished as directed by the order appealed from, because the damages claimed by reason of the breach assigned are in the nature of special damages, and although certain particulars are given in the exhibit attached to the complaint, such particulars are not sufficient means of identifying the purchase orders as being the same as those alleged to have been taken by plaintiff, nor do they state the number of reams sold to any purchaser, or the dates of such sales. As this is information peculiarly within the knowledge of the plaintiff, we can see no hardship in requiring him to furnish the same. On the other hand, the absence of such particulars, by preventing the defendants from identifying the orders and rendering them unable to meet the proof offered upon the trial by plaintiff, might result in surprise and possible injury.

The second cause of action is for accepting and delivering orders in the United States from parties other than the plaintiff, in violation of the agreement, and a subsequent agreement made, as alleged, between the parties, by which the plaintiff was to forbear to prosecute the claim, in consideration of which the defendants were to pay the plaintiff a certain percentage of the total goods before that time shipped. "With regard to this cause of action, the defendants demand the following particulars :

(1) The names of the parties, other than the plaintiff, from whom defendants’ firm took orders, and to whom they sold and delivered their colored paper goods manufactured by them in violation of the agreement; and (2) the names of the parties from whom the defend, ants took orders and sold and delivered their colored paper goods manufactured by them in violation of a previous agreement.

These particulars being as much in the possession of the party asking as in that of the plaintiff, no good reason has been assigned why the plaintiff should be compelled to furnish them. The court is not disposed to compel plaintiff to furnish specific details solely with a view to limiting the witnesses whom plaintiff otherwise might produce to prove the extent to which defendants had gone in breaking their contract. Upon such facts appearing, this court has frequently refused to require bills of particulars. Upon the ground alone that it appears that knowledge of the acts complained of is peculiarly and thoroughly with the defendants, it is but just that plaintiff should not be required to furnish the particulars. (Fink v. Jetter, 38 Hun, 163; Passvant v. Cantor, 48 id. 546.)

The third cause of action is for breach of the agreement arising from short deliveries and defects in quality, in consideration of plaintiff’s forbearing to prosecute which claim, one of the defendants on behalf of his firm agreed to pay to the plaintiff the sum of $1,120.50. In regard thereto the defendants demand the following particulars : (1) The numbers of the orders in which there were shortages in packages and rolls of paper purchased by the plaintiff of defendants’ said firm ; (2) the amount of such shortages respectively ; (3) the numbers of the orders in which there were defects in the quality of the goods, and (4) the peculiar nature of such defects.

With regard to these particulars, what has already been said about their being as much within the possession of the defendants as of the plaintiff is applicable, but in addition thereto it may be added that the cause of action is to recover a liquidated amount as the result of an agreement by reason of such defects in quality and shortage, which, as alleged, were conceded by one of the defendants. As it would not be necessary, in order to recover for such amounts, to prove every item of shortage or defect in quality, we fail to see how this information can be at all essential to enable the defendants to prepare for their defense. In other words, for the defects and shortage averred hy way of inducement or consideration as the basis of an agreement between the parties, by which, to indemnify the plaintiff for the loss resulting therefrom, he was to receive a fixed sum agreed upon between the parties.

As to the first cause of action, apart from the affidavit of the attorney used upon the motion, it can be seen from an inspection of the complaint that it was a proper application made to the court for the desired particulars, and it is for that reason that we are not disposed to interfere with the order.

In regard, however, to the second and third causes of action, the right to the particulars- demanded could not be determined upon a mere inspection of the complaint, and it was, therefore, essential for the defendants to make out a case showing want of knowledge and the reasons for the particulars demanded.' These reasons are sought to be furnished by the affidavit of the defendants’ attorney, instead of by one of the defendants themselves. We have had occasion frequently to advert to the fact that it is impossible for an attorney to know what knowledge his clients may have as to particular facts, and hence the necessity of requiring the parties themselves to make affidavits with respect to such knowledge as they may possess, instead of attempting to delegate this office to an attorney. Assuming, how ever, in this case, with the explanation given of the absence of the defendants in Europe, and the possession of information by means of letters and communications, that the defendants were in a position to present prima facie evidence to the court, this has been met by the counter affidavits of the plaintiff in resisting the motioh, which tend to support upon the merits the conclusions at which we have arrived, that most of these particulars sought to be obtained are in the' possession of the defendants, and that the purpose sought is to find out just what evidence and what witnesses, together with their names, the plaintiff may have in order to sustain his cause of action.

We are of opinion, therefore, that the order requiring particulars to be given as to the first cause of action should be affirmed, and as to the second and third causes of action reversed, without costs to either party upon this appeal.

Present —• O’Brien, P. J., and Ingraham, J.

Order requiring particulars to be given as to the first cause of action affirmed, and as to the second and third causes of action reversed, without costs to either party upon this appeal.


text:
    Algernon O. Thayer, Respondent, v. George H. Humphreys and Another, Appellants, Impleaded, etc.

      Examination of defendants to enable the plaintiff to frame his complaint — action to reach unpaid stock subscriptions in a, foreign corporation — scope of the order.

    An order for the examination of defendants to enable the plaintiff to frame his complaint, in an action brought, in equity to obtain an accounting of the amounts agreed to be paid upon certain stock subscriptions of the defendants as stockholders in a foreign corporation, and to compel the defendants to pay the balance remaining unpaid upon their subscriptions, or so much thereof as will be sufficient to .pay the amount due on certain judgments obtained by the plaintiff against the company,

      Held to be proper, as modified, so as to limit the scope of the examination to facts respecting the defendants’ ownership or holding of stock in the company, and whether the same is or was held by them individually or as copartners.
    Appeal by tlie defendants, George II. Humphreys and Montford P. Sayce, from an order of tlie Supreme Court, made at the New York Special Term at Chambers, and entered in the office of the clerk of the city and county of NewYrork on tlie 26th day of January, 1893, denying the said defendants’ motion to vacate an order for their examination.

      Walter D. Glwrh, for the appellants.

      A. JT. Vam, JBnmt, for the respondent.
   Per Curiam :

The action was brought in equity to obtain an accounting of the amounts agreed to be paid upon certain stock subscriptions of the defendants' as stockholders in a corporation of the State of West Virginia, and that the defendants be directed to pay the balance remaining unpaid upon their subscriptions, or so much thereof as will be sufficient to pay the amount due on certain judgments obtained by the plaintiff against the company. Not having the necessary information, an application for an examination of the defendants was made to enable plaintiff to frame his complaint. The papers upon which the original order was granted contained all the statutory allegations, and showed that the information Upon which the action itself was brought was purely hearsay, and that to frame a complaint tbe defendants’ examination would be necessary. Upon tbe defendants’ motion to vacate such order, it' was modified so as to limit the scope of the examination to facts respecting defendants’ ownership or holding of the capital stock in the company, and whether the same is or was held by them individually, oías copartners..

The rules governing- applications of this kind have been so frequently stated that it is only necessary to give our conclusion. We think that the learned judge below was right in permitting an examination, and that the appellants have no just cause of complaint, in view of the limitations placed thereon. The plaintiff’s affidavits show that the application for the examination of the defendants as limited by the order appealed from was necessary. We think, therefore, it should be affirmed, with ten dollars costs and disbursements.

Present — O’Brien, P. J., and Ingraham, J.

Order affirmed, with ten dollars costs and disbursements.


text:
    Henry A. Gildersleeve, as a Trustee of the Nepera Park Land Company, Appellant, v. G. Harry Lester, Individually and as a Trustee, Respondent, Impleaded, etc.

      Supplementary proceedings — examination of a third person — 'what proceedings must be had, in the district where the judgment debtor resides.

    While an order for the examination of a third person in supplementary proceedings maybe made by a. judge outside of the judicial district in which the judgment debtor resides, yet all proceedings subsequent to the examination, including the appointment of a receiver, must be before a judge of the district in which the judgment debtor resides.
    Appeal by the plaintiff, Henry A. Gildersleeve, as a trustee of the Nepera Park Land Company, from an order made at a Special Term of the Supreme Court hejd at Chambers in the city of New : York, and entered in the office of the clerk of the city and county of New York on the 5th day .of October, 1892, vacating an order appointing a receiver of the property of the defendant.
    The order appointing the receiver was made in the county of New York by a justice of the first judicial district of the Supreme Court, in supplementary proceedings upon tbe judgment recovered in this action against the defendant, G. Harry Lester, after an examination, in the county of New York, of a third person, as to the property of the judgment debtor, in pursuance of an order for such examination theretofore made by the same justice.
    The third party resided in the city of New York'; the judgment debtor, Lester, resided in Binghamton, Broome county, which is in the sixth judicial district.

      J. W. Bootliby, for the appellant.

      L. G. Wciehner, for the respondent.
   Per Curiam :

In Baldwin v. Perry (25 Hun, 72) it was held that the proper practice in cases where the judgment debtor resided in a district other than the one of the judge who granted the order was that all proceedings subsequent to the examination should be made returnable before a judge of the district in which the debtor resided. The same rule is applicable to proceedings for the examination of a third person. While an order for the examination of a third person may be made by a judge outside of the district in which the debtor resides, yet all proceedings subsequent to the examination must be before the judge of the district in which the debtor resided.

Under this authority the order setting aside the appointment of the receiver was right, and should be affirmed, with ten dollars costs and disbursements. ■

Present — Yan Brunt, P. J., O’Brien and Follett, <TJ.

Order affirmed, with ten dollars costs and disbursements.


author: Mayham, P. J.:

text:
    Ebenezer Holmes, Appellant, v. Gilbert E. Jones, Treasurer of The New York Times, Respondent.

      Damages for libel — excessive verdict.

    The verdict of a jury, in an action brought to recover the damages resulting from a libelous publication, will not be set aside as excessive unless"-the amount is so great as to manifestly show that the jury must have been actuated by passion, partiality, prejudice or corruption
    The fact, that on a former appeal, the General Tei^n reduced a verdict recovered in an action for libel and ordered that the verdict should be set aside and a new trial be granted, unless the plaintiff stipulated to take judgment for the reduced amount, is not binding upon the jury upon a new trial, and does not necessitate the setting aside as excessive of a verdict rendered on the new trial which is larger in amount than the sum indicated by the appellate court on the former appeal.
    On the trial of an action brought to recover damages for a libelous article published in a New York city daily paper, charging the plaintiff, who was an undertaker, with being intoxicated while engaged in the business of preparing for and conducting the funeral services of General Grant at Mount McGregor, the plaintiff recovered a verdict for §3,500.

      Held, that, under the circumstances of the case, the amount of the verdict was not so great as to show that the jury must have been actuated by passion, partiality, prejudice or corruption; and that the verdict should not be interfered with, on appeal, as excessive.
    Appeal by the plaintiff, Ebenezer Holmes, from an order made at the Saratoga Circuit upon a motion made by the defendant upon the minutes of the trial judge, and entered in the office of the clerk of Saratoga county on.the 26th day of April, 1892, setting aside a verdict and granting a new trial on the ground of excessive' damages, unless the plaintiff should stipulate to reduce the verdict, and recovery to the sum of $2,000.

      O. & <& O. O. Lester and Matthew Hale, for the appellant.
    Townsend, JDyett <& Emstei/n and Henry Eonge, for tha respondent.
   Mayham, P. J.:

This is an appeal from an order setting aside a verdict of a jury, rendered at the Saratoga Circuit, for $3,500, and granting a new trial on the ground of excessive damages, unless the plaintiff stipulate to reduce the verdict and recovery to the sum of $2,000.

The action was for an alleged libel published in the New York. Times, charging the plaintiff as an undertaker with being intoxicated while engaged in the business of preparing for and conducting the' funeral services of the late General Ulysses S. Grant, at Mount McGregor, in Saratoga county.

The complaint sets out some portion of the alleged libelous charge, as printed in the Times, and claimed damages in the sum of $25,000.

The answer set out at great length circumstancfes and facts alleged to have occurred at and before the alleged funeral services; admits, the publication of the following words: It has been stated that. Mr. Holmes was not in a fit condition to perform his professional duties for a part of the time during which he claims he was rendering service. The night that I arrived at Mount McGregor, Mr. Holmes was under the influence of liquor at the hotel. His condition was patent to all who saw him.”

“ That the defendant alleges that the words last quoted are true. That on the night of July 23, 1885, the plaintiff was constantly drinking spirituous liquors, mixing his drinks, drinking at one time, lager beer, at another rye whiskey, then brandy, and so on until he became very drunk. He became abusive and foul-mouthed; he was. staggering and hiccoughing; when he sat down he would spread all over the seat and let his head droop upon his arms placed to support, it; he would mutter incoherently to himself ; one Hr. McEwan, a, friend of the plaintiff, tried to coax him to go to bed, but he would not go, and the said Dr. McEwan and others who were with him, finally went to bed and left the plaintiff on the hotel piazza. In the morning following the plaintiff came from his room in the hotel displaying evidence of having slept with all his clothes on during the night; his clothes were dirty and rumpled, his necktie had worked up under his ear, and his shoes were open.”

Other admissions of the charges contained in the complaint are set out in the answer, as are also alleged correspondence between the plaintiff and a member of General Grant’s family, and also correspondence between the plaintiff and the New York Sun.

In the sixteenth paragraph of the defendant’s answer, the defendant admits that the New York Times on the 22d of November, 1886, contained the following words : “ He was there at 6 in the evening, and Mr. Holmes had nothing to do with it. Mr. Holmes was drunk at the hotel and was going to and coming from the bar all the time. This was before the body was placed in the casket. Anxiety was felt lest he' should insist upon going to the cottage and create an unseemly scandal there by his condition and appearance.”

That this defendant denies that these words are false, scandalous or defamatory, or that they were published maliciously of, or concerning the plaintiff. That this defendant denies that the said association, the New York Times, meant, of was understood to mean, that the plaintiff was, on the evening of July 23, 1885, while he claimed to be taking care of, embalming and preparing for burial the remains of the late General Ulysses S. Grant, in fact at the hotel at Mount McGregor, and drunk and drinking all the time and •so drunk that anxiety was felt lest he should go to the cottage where the body of General Grant was lying and create scandal by his intoxicated condition and drunken appearance.

“ That the defendant alleges that the words quoted as last aforesaid are true. That the plaintiff was, at the time when he claimed to be taking care of, embalming and preparing for burial the remains of the late Gen. Ulysses S. Grant, drunk at the hotel at Mount McGregor from drinking spirituous liquors. That there were many visitors at the cottage, where the body of the late General Grant was lying, and in the hotel at Mount McGregor, and great anxiety was felt by those who had charge of the said body that the plaintiff would go to said cottage, as he threatened to do, and by his drunken condition, appearance and conduct, would produce and create 'an unseemly scandal.”

Tlie twenty-nintli paragraph of the defendant’s answer contains the following language: “ That on the night of July 23, 1885, the plaintiff was drunk from drinking spirituous liquors ; that during the evening he was continually going to and coming from the bar of the bar-room of the hotel at Mount McGregor, engaged in taking drinks of spirituous liquors, and he was continually mixing his drinks, drinking at one time lager beer, and at another whiskey, then brandy, and so on until he became very drunk; that he became abusive and foul-mouthed from his drunken condition, staggered and hiccoughed; when he sat down he would spread himself all over the seat and let his head droop on his arms placed to support it, and would mutter incoherently to himself; that one I)r. McEwan, a friend of the plaintiff, tried to coax him to go to bed, but he would not go, and the said Dr. McEwan and others who were with him finally went to bed and left him on the liQtel piazza; that on the following morning he came from his room in the hotel displaying evidence of having slept with all his clothes on during the night; that his clothes were dirty and rumpled, and that his necktie had worked itself up under his ear, and his shoes were open ; that from his being so intoxicated and for other reasons he was not, on the night of July 23, 1885, and for sometime subsequently, in a fit condition to perform professional or any other duties; that at a time when the plaintiff claimed to be taking care of and embalming and preparing for burial the body of the late General Grant, he was drunk at the hotel at Mount McGregor from spirituous liquors; that there were many visitors at the cottage, where the body of the late General Grant was. lying, and in the hotel at Mount McGregor, and great anxiety was felt by those who had charge of the body that the plaintiff would go to said cottage, asdie threatened to do, and by his drunken condition, appearance and conduct, would produce and create -an unseemly scandal.”

On the trial the plaintiff read in evidence from a copy of the New York Times of November 22, 1886, the following portions of the article set up in the complaint: •

It has been stated that Mr. Holmes was not in a fit condition to perform professional duties for a part of the time during which he •claims he was rendering service. The night that I arrived at Mount McGregor, Mr. Holmes was under the influence of liquor at the hotel; his condition was patent to all who saw "him.
“ He was there at six in the evening and Mr. Holmes had nothing fo do with it. While he was there, Mr. Holmes was drunk at the hotel that evening and was going to and from the bar all the time. This was before the body was placed in the casket. Anxiety was felt lest he should insist upon going to the cottage and create an unseemly scandal there by his condition and appearance.”

The plaintiff also offered evidence on the trial that tended to disprove the charge of drunkenness set out in the alleged libel and ■substantially reiterated in the defendant’s answer.

The defendant also introduced evidence tending to prove the truth of the alleged libel. The jury rendered a verdict in favor of the plaintiff for $3,500, which the defendant moved to set aside as ■excessive, and from the order granting that motion, unless the plaintiff would stipulate to reduce tl^e recovery to $2,000, the plaintiff ¡appeals.

The only ground upon which this verdict was set aside is that of ■excessive damages.

The trial court, by allowing the verdict to stand at a reduced sum, disposes of the issues raised by the pleadings in favor of the plaintiff and leaves no chance on this motion for any ..speculation as to the actionable character of the alleged libelous publication. The •complaint charges that the defendant falsely, wickedly and maliciously published in such newspaper of and concerning the plaintiff the false, scandalous and malicious libel set out in the complaint, •and the jury have, by their verdict, sustained the allegations of the complaint, and the court at Special Term has, by allowing the verdict to stand, if reduced in amount, acquiesced in the conclusion reached by the jury as to the publication of the libel.

An action for damages for a tort is, therefore, clearly maintained ■and stands conceded upon the record, and the alleged wrongdoer is before the court, asking that the damages which the jury have assessed against it for the perpetration of the wrong be reduced. •

This court has recently considered the question of the propriety of the court interfering with the verdict of a jury in actions of tort. In Stephens v. Hudson Valley Knitting Mills (48 N. Y. St. Repr. 815), Herrick, J., in discussing this question says: In actions for damages for torts it is well-establisbed law in this State that verdicts of jurors will not be set aside for excessiveness unless the amount is so great as manifestly to show that the jury must have been actuated by passion, partiality, prejudice or corruption.”

The judge cites .in support of his conclusion a series of decisions in this State from Coleman v. Southwick (9 Johns. 45) to Porter v. Dunn (131 N. Y. 193).

Within these decisions the only question open for our examination and decision is whether the verdict in this case was so great in amount as to show that the jury must haye been actuated by passion, partiality, prejudice or corruption.

In the examination of that question we may consider that the jury, in disposing of the case, might propei-ly take into consideration the business and situation of the plaintiff, the character of the libelous publication, and the extent to which it was circulated, the motive which the jury from the evidence might find for its publication and the character of the answer which the defendant interposed as defense or in mitigation of damages.

The evidence discloses that this libel was published at the great metropolis of the nation, hundreds of miles from the place where the events chronicled are alleged to have occurred, in a newspaper of almost world-wide circulation.

That they concerned the conduct of the plaintiff, while engaged in a laudable, professional or mechanical pursuit, involving great delicacy and circumspection, and connected with the funeral obsequies of a man of world-wide fame, whose death had produced a profound sensation throughout the entire country, and the incidents of whose funeral were read and discussed all through the State and Nation with lively interest.

The charge was of a seriously damaging character, not only as it related to the business of the plaintiff, but also as it reflected upon him personally, and was well calculated to affect him in a business point of view, and also socially as a man, and to bring him into disgrace and disrepute by all who read and believed the article. It could only be completely justified by alleging and proving its truth. This the defendant, undertook to do, but in the estimation of the jury failed in that atttempt. The defendant also assumed to allege facts and circumstances in support of tlie charge in mitigation of damages, That is also allowable by way of mitigation, or reduction of damages. But in setting up these defenses the defendant took the responsibility of establishing their truth, and also of satisfying the jury that these defenses were interposed in good faith, and not for the purpose of reiterating in a more offensive manner the same libelous accusations, and if the proof of justification failed, and the jury had reason to believe that the matters set up in mitigation were not proved, and were interposed with the design of repeating the libel, they could in such case regard such reiteration as evidence of malice, and take such fact into consideration in aggravation of damage. Under such circumstances, statements and allegations in the answer were proper subjects for comment of counsel for. the plaintiff on 'the trial, and cannot be withheld from the consideration of the jury. In Holmes v. Jones (121 N. Y. 466), Earl, J., in discussing the use and effect of pleadings on the trial, says : “ There is no rule of law which requires a party in any action to put’his adversary’s pleadings in evidence before his counsel can be allowed to comment upon them in his address to the jury. Statements, admissions and allegations in pleadings are always in evidence for all the purposes of the trial of the action. They are made for the purpose of the trial and are before the court and jury, and may be used for the legitimate purpose.”

If the jury in this case reached the conclusion that this alleged libel was not justified, as they must have done before finding a verdict for the plaintiff, then they were at liberty to look into the proof and all the facts and circumstances proved or set out in the pleadings of the defendant, to determine whether the libel published and proved or the allegations in the answer were malicious and in bad faith, and, taking all into account, determine whether to allow compensatory or punitive damages.

In Holmes v. Jones (supra), the court say: “ So far as the libel was not' justified, it was for the jury to determine the amount of the damages to be awarded therefor. If they came to the conclusion, from the circumstances and nature Of the charge made, that the publication was malicious, in bad faith, or recklessly, carelessly or wan • tonly made, they could go beyond compensation and award punitive damages.”

But it is urged that on a former trial of this case, which resulted in a verdict of $5,000 in favor of the plaintiff, the General Term of this court reduced the verdict to $2,000, and ordered that, unless the plaintiff stipulated to take judgment for that amount, the verdict should be set aside and a new trial granted.

We have not that record before us, but cannot assume that the General Term intended by that order authoritatively to declare that $2,000 was the maximum amount for which a verdict could be rendered in this case.

In that case, the suggestion of the General Term was not accepted by the defendant, and we do not see how it can now be urged by the defendant as binding upon the court or parties in this trial. No such rule seems to have obtained in this court. In Peck v. II. R. R. R. Vo. (8 Hun, 286), the plaintiff on the first trial recovered a verdict of $5,000, which w*as set aside as excessive. The case was tried again and the plaintiff recovered $4,000. The defendant insisted, on appeal to the' General Term, that this verdict was excessive, but the court said, Judge Booices writing the opinion, in which Judge Learned and Judge Boardman concurred:

“ The former verdict was $5,000. This sum was deemed quite extravagant and palpably unjust, in view of the case made on the evidence. The verdict on the retrial was for $4,000. The casé is quite similar on the proof to that before considered by the court, and the reduction in the sum now awarded by the jury seems much less than it should have been in view of the remarks then made by the court. But even supposing the amount now awarded is deemed by the court large, is it within the province and duty of the court to grant another new trial on this ground ? A second jury has considered the case under admonition from the court, and has made some deduction from the sum before awarded.”
“ The subject of damages is for the jury, and must be at all times in their discretion and judgment. The court can only interfere on this point when it is apparent that the jury were improperly influenced, or must have acted from passion, partiality or corruption. The authority to grant new trials on the ground of excessive damages is undoubted, but its exercise by the courts has been about equally capricious, as has been the verdicts of juries. * * * It must be admitted, I think, that the verdict of $4,000 in this case is large, in view of the injury here proved; but this sum having been awarded by a second jury, the case having been sent back for reconsideration on that point, and nothing appearing except the amount on which to predicate partiality, corruption or improper influence, I think the court must accept it as final and conclusive.” (8 Hun, 288-289.)

In the case at bar we see no reason for reducing the verdict rendered by the jury.

While every privilege which is consistent with the due protection of private character should be accorded the public newspaper press, to the end that the freedom of the press guaranteed by the Constitution should not be abridged, still no invidious discrimination should be allowed in its favor, calculated to license its use to sensational and slandei’ous assaults upon the citizen. The intex-ests of the public and the px-ess are best subserved when the publishers of newspapers are held to tx-uthful utterances, especially when the character of a citizen — public or private — is under discussion.

Under all the circumstaixces of this case disclosed by the evidence, we see xio elexnent of passion, prejudice or corruption evinced by the amount of this verdict; nor do we x-egard it, in view of all the facts, excessive.

The order of the Special Term should be reversed.

Herrick, J., concurred; Putnam, J., not acting.

Order reversed, with ten dollai’s costs and pi-inting disbursements.


author: Mayham, P. J.: Putnam, J.:

text:
    Alpheus Winchell, Appellant, v. The Argus Company, Respondent.

      Libel and sland&r distinguished — words actionable per se if printed, not so if merely spohen— the imputation of a crime not essential to a libel.

    Words which tend to diminish the respectability of the person to whom they relate, and to expose him to disgrace and obloquy, although they do not impute the commission of a crime, and would not be actionable se if merely spoken, are, when printed and published, libelous and actionable, although no special damages are alleged or proved.

      Appeal by the plaintiff, Alphens Winchell, from a judgment of the Supreme Court, in favor of the defendant, entered in the office of the clerk of Saratoga county on the 26th day of October, 1892, Upon the dismissal of the complaint on the opening of the case at the Saratoga Circuit.

      Egbert Price, for the appellant.

      John A. Pelehcmty, for the respondent.
   Mayham, P. J.:

This is an appeal from a judgment entered upon the order of the trial judge, dismissing the plaintiff’s complaint at the trial, on the ground that it does not state facts sufficient to constitute a cause of action.

The action is for libel, and the complaint charged that the defendant published in the Argus, a newspaper printed in Albany, the following alleged libelous words of and concerning him:

A lazy brute, lives in idleness and lets his family starve.
“ Saratoga Springs, Feb. 19.
“ E. D. Selden, Superintendent of the Saratoga Humane Society, is investigating charges made against Alphens Winchell (meaning plaintiff), of North Milton, who resides on the farm of his father-in-law, Henry Traver, of Milton. Winchell (meaning plaintiff) is an indolent fellow, and last summer did not raise any grain or vegetables on his (meaning plaintiff’s) farm, nor cut any hay, and consequently this winter his family (meaning plaintiff’s family) of a wife and six children are suffering for food, and his horses, cattle and swine (meaning plaintiff’s horses, cattle and swine) are not properly fed,” by which false, scandalous and defamatory words the defendant meant and was understood to mean that the plaintiff was lazy and would not work, and that plaintiff did not provide necessary food for his family, and was guilty of the crime of being a disorderly person, and also that plaintiff did not provide necessary food for his horses, cattle and swine, and that he was guilty of the crime of cruelty to animals.

Y. That said libel also contained in another part thereof the several other false, scandalous, malicious and defamatory words and matter following, of and concerning the plaintiff, that is to say:

“After his neighbors (meaning plaintiff’s neighbors) had contributed from their stock of hay, etc., either willingly or unwillingly, they (meaning plaintiff’s neighbors) locked their barns and granaries against him (meaning plaintiff) and entered complaint to Superintendent Selden, who found on driving out to Winchell’s place (meaning plaintiff’s place) that the complaints were in no sense exaggerated,” by which false, scandalous and defamatory words the defendant meant and was understood to mean that plaintiff was a thief, and also that plaintiff was guilty of the crime of larceny, and that plaintiff had taken hay, etc., from his said neighbors without their consent.

YI. That said libel also contained in another part thereof the several other false, scandalous, malicious and defamatory words and matter following, of and concerning the plaintiff, that is to say: “ He (meaning Superintendent Selden) has brought the matter to the attention of Police Justice Burnham, of Milton, at Ballston Spa. One of the farmer’s wives residing in the vicinity (meaning the vicinity of plaintiff’s place) told Mr. Selden that recently, wishing to contribute to the necessities of the ‘Winchell children (meaning plaintiff’s children), she (meaning the neighbor’s wife) carried some provisions to his house (meaning plaintiff’s house), and just as she Was about to divide it among them (meaning the children) the unnatural father (meaning plaintiff) -came into the house and saying: that is good,’ picked up and devoured the food in her presence,” by which false, scandalous and defamatory words the defendant meant and was understood to mean, that plaintiff had been charged before Police Justice Burnham of Milton, at Ballston Spa, by Superintendent Selden, with the crime of being a disorderly person, and also with the crime of cruelty to animals, and also with the crime of cruelty to children, and by which false, scandalous and defamatory words the defendant meant and was understood to mean that plaintiff not only failed and neglected to provide for his children according to his means and ability, but that he also devoured the food that had been furnished his said children by the neighbors of the plaintiff, and thereby accusing the plaintiff of the crime of being a disorderly person, and also of the crime of cruelty to children.”

The complaint concluded with the allegation that by reason of the publication of such words he was brought into disgrace and disrepute among his neighbors, and claimed damages.

The answer admits the publication of the alleged libelous words set out in the complaint, but avers that such publication was without intending to prejudice or injure the plaintiff in his alleged character and reputation, and without malice towards the plaintiff.

It is quite clear that this complaint did not charge the publication by the defendant of words which, if uttered orally, and not printed or published, would have been actionable per se, and if, as insisted by the learned counsel for the respondent, there is no difference as to the actionable character of words, whether spoken or written, then the complaint was properly dismissed.

At common law there -was a marked and well-understood distinction between oral slander and libel.

In the former, the words to be actionable yw se, must charge the commission of a crime involving moral turpitude and subjecting the party to ignominious punishment.

In the latter, words were actionable if they expose the person of whom they are published to hatred, ridicule and contempt, without imputing to him any crime.

In Cropp v. Tilney (3 Salk. 220), Lord Holt, Oh. J., said that “ scandalous matter is not necessary to make a libel, it is enough if the defendant induces an ill ojdnion to be had of the plaintiff or to make him contemptible and ridiculous.” In Vitters v. Monsley (2 Wils. 403), it was held, “ if any man deliberately or maliciously publishes anything in writing concerning another which renders him ridiculous or tends to hinder mankind from associating or having intercourse with him, an action will lie against such publisher.” This doctrine is laid down by Starkie on Slander, as illustrating the elementary rule (Folkard’s Starkie on Slander, Wood’s Notes, 230), and the learned author adds: “And, therefore, to publish, in writing of another, that he is a rogue, rascal, swindler or villain is actionable, although the terms would not be actionable had they been merely spoken.”

In Thorley v. Lord Kerry (4 Taunt. 355), the libel charged the plaintiff with being a hypocrite and having used the cloak of religion for unworthy purposes, and the plaintiff recovered a verdict for the libel. In the King’s Bench, on appeal to the Exchequer Chamber, Sir J. Mansfield, Ch. J., in affirming the judgment, said: “ Though the words impute no punishable crimes they contain that sort of imputation which is calculated to vilify a man, and bring him as the books say into hatred, contempt and ridicule; for all words of that description an indictment lies.” In Archbishop Tuam v. Robeson (5 Bing. 17), Best, Ch. J., says : “According to that case (Lord Kerry v. Thorley, supra), in order to support an action for oral slander, something criminal must have been imputed; but in libel, any tendency to bring a party into contempt, or ridicule, is actionable, and in general any charge of immoral conduct, although in matters not punishable at law.”

The same rule has been adopted in this country. In Thomas v. Croswell (7 Johns. 264), it was held to be libelous to publish of a member of Congress, “ he is a fawning sycophant, a misrepresentative in Congress, and a grovelling office seeker; he has abandoned his post in Congress in pursuit of an office.” "While these w.ords did not charge or impute to the plaintiff the commission of a crime, it was held that they were properly submitted to the jury, who were left to pass upon the question as to whether the words published tended to bring the plaintiff into contempt and ridicule, and the jury having found for the plaintiff, their verdict was sustained on appeal.

In Cramer v. Riggs (17 Wend. 210), Nelson, Ch. J., in discussing the character of words claimed to be libelous, uses this language: “ There can be no doubt the allegations in the libel, if published in the shape of mere oral slander, would not per se have been actionable ; they impute no indictable offense, but if they tend to expose the character of the plaintiff to ridicule and contempt of the community, whether they impute a punishable offense or not, they are actionable when put forth in the shape of written or printed slander.”

In More v. Bennett (48 N. Y. 472), the libel was contained in a letter published in the New York Herald, which, after describing a woman as a prostitute, adds, “ She is, I understand, under the patronage or protection of a Mr. More, agent of the Central railroad, who has also employed the orderly of my late husband.”

The plaintiff in this case was nonsuited at the trial on the ground that the complaint did not allege that the publication intended to charge that the prostitute was under his protection for illicit purposes. The nonsuit was set aside by the Court of Appeals, Hunt, J., holding that the publication was libelous, and in his opinion says: “ Words which, are of themselves actionable, which in their natural construction tend to injure the memory of the dead, or the reputation of one alive, and expose him to hatred, contempt or ridicule, need no averment that they were intended to .impute such offense.” It need not be said here that the words above quoted did not impute a crime for which More could be punished criminally, and that they would not, therefore, be actionable per se, if uttered, orally. They became actionable by reason of the deliberate act of the defendant in printing or publishing the same.

In Cooper v. Greeley (1 Den. 362), the court, by Jewett, J., says: “ The proposition of the defendant’s counsel, that to render a publication actionable, it must impute a crime, ca/rmot be sustained. This rule has never been extended to libels in this State, nor has it been in England for the last one hundred and fifty years.” The learned judge in this opinion, at page 363, quoted with approbation the language of the author in Starkie on Slander, by Wendell, volume 1, page 169, as follows: “ Upon the whole it may be collected that any writing, pictures or signs, which derogate from the character of an individual, by imputing to him either bad actions or vicious principles, or which diminish his respectability and abridge his comforts, by exposing him to disgrace and ridicule, are actionable without proof of special damage ; in short, that an action lies for any false, malicious and personal imputation, effected by such means and tending to alter the party’s situation in society for the worse.”

We are referred by the learned counsel for the defendant to Purdy v. The Rochester Printing Co. (96 N. Y. 372).

In that case the plaintiff, who was a coroner, was called to hold an inquest over the remains of a man found in the snow and apparently frozen to death. The coroner took charge of the case and impaneled a jury, and on further examination the person was found to be alive. The defendant’s publishing company published the account of the coroner’s proceedings; for that publication the plaintiff, without alleging that he was a physician, prosecuted the defendant for libel.

On the trial no malice being proved, and the words relating to the official character of the plaintiff and exhibiting a prompt and efficient performance of his diity, the court directed a verdict for the defendant.

I do not think that the ease is analagous to the one at bar.

We have carefully examined all the authorities referred to by the learned counsel for the respondent, and find none that goes to the length of holding that words not imputing a crime may be published reflecting upon the character and social standing of a person, and calculated to bring him into disrepute, and leave him remediless.

It is quite true, as urged by the learned counsel for the defendant, that when we go beyond well-defined limits, marked by criminal charges, as fixed in oral slander, of words actionable per se, we have not the sure guide in determining the limit of what are libelous publications. But such doubt must be solved by the application of the tests, which we have seen consist of whether the libelous words charged tend to diminish the respectability of the plaintiff and expose him to disgrace, ridicule and obloquy.

If they do, they are within the authorities libelous and actionable, without alleging or proving special damages.

Tested by these rules we must hold that the learned judge erred in dismissing the plaintiff’s complaint.

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

Putnam, J.:

I concur. See Shelby v. The Sun Printing & Publishing Association (38 Hun, 474; affd., 109 N. Y. 611); Morey v. The Morning Journal Association (123 id. 207).

Herrick, J., not acting.

Judgment reversed, new trial ordered, costs to abide event.


author: IVIayham, P. J.:

text:
    Charles E. Peabody and Others, Appellants, v. Charles A. Boutwell, Respondent.

      Guarantee of payment for goods to be furnished to another — dischwt'ge of the guarantor by a depa/rture from tJie guaranteed contract — ratification.
    A guarantor of the payment for goods ordered in a certain form to he furnished to another has a right to insist upon a strict compliance with the terms and conditions of his undertaking, and if the terms of the contract or obligation guaranteed are departed from in the slightest particular in the form of the order the guarantor’s obligation is discharged, unless, with a full knowledge of the facts, he ratifies the departure.
    Appeal by the plaintiffs, Charles E. Peabody and others, from a judgment of the County Court of Rensselaer county in favor of the defendant, entered in the office of the clerk of that county on the 21st day of October, 1892, upon an order of the court made at the close of the plaintiffs’ case upon the trial, dismissing the complaint upon the merits.

      George B. Wellington, for the appellants.

      Frank S. Black, for the respondent.
   IVIayham, P. J.:

This is an appeal from a judgment of the Rensselaer County Court, entered upon an order of the county judge dismissing the plaintiffs’ complaint.

The action is upon a guaranty made by the defendant, securing to the plaintiffs payment for goods ordered of them. The order guaranteed by the defendant to the plaintiffs is in this form:

“ Troy, N. Y., Feb. 27,1891.
“ Messrs. Peabody & Parks,
LmisingbwrgK, Ft. Y.:
“ Gents ■ — Please deliver to C. W. Hart the three hundred cans you have made, and send bill to
Respy.
“ 0. H. YAN ARNUM,
“ of Hart & Co.”
“ I will be responsible for the above and similar orders to the amount of one thousand dollars.
“O. BOUTWELL & SON.”

On this order it appears from the case that the plaintiffs delivered goods of the value of $197. The plaintiffs after filling the order continued to furnish goods to Hart & Oo., until in the succeeding October, the plaintiffs had furnished in ail goods to the value of $1,723.52, on which Hart & Oo. had paid the sum of $880.38, leaving a balance of $842.94.

None of the goods, except those furnished on the first order, were delivered on orders like the one on which the plaintiffs had made their guaranty, but such goods seem to have been furnished to Hart & Co. on their order.

For the balance remaining unpaid, two notes were given, one to C. H. Van Arnum, indorsed by Hart & Co., and one by Hart & Oo., indorsed by O. H. Van Arnum. These notes went to protest, and the plaintiffs seek to recover the amount of the same from the defendant upon his guaranty above set out.

The defendant insists that as the first bill of goods were paid for, and as the balance of the same was delivered to Hart & Co. on their order, and not on such an order or one similar to the one he guaranteed, he is not liable.

The trial court concurred in the view of the defendant on this question, and nonsuited the plaintiffs, and the plaintiffs appeal. At the trial the plaintiffs’ counsel stated to the court that he did not ask to go to the jury upon any question, but excepted to the decision of. the court on the motion for nonsuit, and now urged two grounds for the reversal of the judgment.

First. That the defendant is absolutely liable upon his guaranty upon Hart & Co.’s accounts to an amount not exceeding $1,000, and is not released from that liability by the variation in the order on which the goods were sold from the order upon which the guaranty was made.

The defendant’s undertaking in this case was in the nature of surety, and he had a right to insist upon strict compliance with the terms and conditions imposed by his undertaking, and when the terms of the contract or obligation guaranteed are departed from in the slightest particular, the guarantor's obligation is discharged. In Cornell v. Eagan (1 N. Y. St. Repr. 265), the court say : “ Any alteration or departure by the parties, from the terms’of the contract for the performance of which one becomes a surety for another, discharges the surety, whether the alteration was injurious or beneficial to the surety. * * * The courts will not stop to inquire whether1 the alteration is or may be prejudicial or beneficial to the surety. He is a sponsor for one contract and no one has a right to make, another for him.”

In Evansville Bank v. Kauffman (93 N. Y. 273), the defendant guaranteed any draft that B. might make on F. of New York city. B. made several drafts on F. and had them discounted at. plaintiff’s bank, some of which were not paid. In an action upon the guaranty, the court say: “ It is always competent for a guarantor to limit his liability, either as to time, amount or parties, by the terms of his contract, and if any such limitation be disregarded by the party who claims under it, the guarantor is not bound.”

In National Mech. Banking Assn. v. Conkling (90 N. Y. 116),. the court, in discussing the liability of a surety, say: “ A surety is never to be implicated beyond his specific engagement, and his liability is always striotissimi juris, and must not be extended by construction.” In Barns v. Barrow (61 N. Y. 39), the court, at. page 42, upon the subject of the liability of guarantors, say: “ The consideration of the contract does not enure to him but to another. He assumes the burden of a contract without sharing in its benefits. He has a“ right to prescribe the exact terms upon which he will enter into the obligation, and to insist on his discharge in case those terms are not observed. It is not a question whether he is harmed by a. deviation to which he has not assented. He may plant himself upon the technical objection : ‘ This is not my contract.’ ”

Applying these well-settled rules to the case at bar, the sale of goods to Hart & Co. upon a different order than the one prescribed in the guaranty releases the guarantor from his guaranty, unless-with a full knowledge of the departure from the terms of the guaranty, he ratified the act of the plaintiffs and Hart & Co. This, the plaintiffs claim, he did in the interviews with him in the presence1 of Yan Arnum. There is little doubt but that the defendant’s-statement in those interviews would bind him, if made with a full knowledge of the fact that the goods had been sold on the order of Hart & Co., and not the order prescribed by the terms of the-guaranty.

But the proof as it stands establishes beyond reasonable doubt-that the defendant, in making those statements, had no knowledge of any departure from the terms of the guaranty, and supposed that they were delivered on an order such as was prescribed by the guaranty. What lie said, therefore, was not a ratification with, knowledge of the facts, and did not for that reason amount to such a ratification as would bind the defendant. (Kelly v. Geer, 101 N. Y. 664-666.)

In Ritch v. Smith (82 N. Y. 621), it was held that to establish a ratification by a principal of an unauthorized act of his agent, it must appear that the principal acted with knowledge of the facts; lie cannot be held to have ratified acts which did not come to his knowledge.” In Brass v. Worth (40 Barb. 654), the court hold that “ Ratification is an act with knowledge, and must be unequivocal in its character. * * * In order to make the ratification of an unauthorized act of an agent binding, it must be made with a full knowledge of the facts affecting the rights of the principal.” (Hays v. Stone, 1 Hill, 128.) Story on Agency ( [9th ed.] § 239, note) lays down the rule upon this subject as follows: The principal, before ratification becomes effectual against him, must be shown to have had previous knowledge of all the material facts and circumstances in the case, and if he assented or confirmed the acts of his agent while in ignorance of all the circumstances, he can afterwards, when informed thereof, disaffirm it.”

The defendant not having with full knowledge affirmed the acts of the plaintiff and Hart & Go., is not bound by his statements subsequent to the time of the delivery of the goods.

On the whole case we discover no error committed by the learned county judge, for which this judgment should be reversed.

The judgment must be affirmed, with costs.

Putnam and Hebbick, JJ., concurred.

Judgment affirmed, with costs.


text:
    In the Matter of the Probate of the Will of William Van Wagonen, Jr., Deceased.

      Appointment of the surrogate!s brother as guardian ad litem.

    The fact that the guardian ad litem appointed by a surrogate for an infant party is a brother of the surrogate does not disqualify the surrogate from hearing and deciding a proceeding, involving the validity of a will or its admissibility to probate, in which the infant is represented by such guardian ad litem

    Appeal by the petitioner, David S. Van Wagonen, from an order of the Surrogate’s Court of Ulster county, filed in the office of the surrogate on the 19th day of July, 1892, denying his motion to set aside and revoke the probate of the will of William Van Wagonen, Jr.
    G. I). J?. Hasbrouck, for D. S. Van Wagonen, appellant.

      D. B. JDeyo, for the executor.

      A. T. Glecvrwater, for the respondent.
   Mayham, P. J.:

Only one point seems to be urged on this appeal for the reversal of the order of the surrogate denying the motion to set aside and vacate the decree of the surrogate admitting the will of the deceased to probate, and that is that the guardian ad litem appointed by the surrogate on the probate of the will is the brother1 of the surrogate before whom such will was propounded for and admitted to probate. The evidence taken before the surrogate on the proof of the will has not been returned, and this court is not called upon to look into the merits of the question as to whether or not the will was properly admitted to probate on the proofs.

Were the proceedings vitiated or rendered illegal by reason of the appointment of the brother of the surrogate as special guardian ? Section 16 of the Code of Civil Procedure provides: “ A judge shall not sit * * * or take any part in * * * matter * * * ” in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties.

This provision would not in terms exclude the surrogate in this case unless the special guardian is a party in the sense in which the word “ party ” is used in that section. While the guardian represents the infant in person and in interest, I think it cannot be maintained that he is the party within the meaning of section 46 above referred to.

The infant, after the guardian is appointed, still remains and •retains all the interest in the matter in controversy, and is represented by the guardian, who is the officer of the court and not the party in interest.

None of the fruits of the litigation belong to him, nor is he personally liable for any of the consequences of the controversy, and is really no more a party than the attorney who prosecutes or defends in the interest of the party whom he represents.

The only qualification required is that the person appointed shall be competent and responsible. (Code Oiv. Pro. § 2530.) It is true that by section 2529 of the Code of Civil Procedure certain persons therein named are prohibited by reason of business relations, or kinship, from practicing before a surrogate, but this inhibition does not extend to a brother of the surrogate.

Whatever may be said of the ethics of a judicial officer’s appointment of a near kinsman to a -position within the gift of such officer, we do not think that this appointment by the surrogate of his brother as special guardian of an infant litigant, in his court, comes within any of the statutory prohibitions, or of any statute which disqualifies the surrogate from hearing and deciding as to the validity •of the will in question, or as to its admissibility to probate.

The correctness of the conclusion of the. surrogate upon the merits of this case, not being assailed on this appeal, this court should not interfere to set aside the decree unless some positive violation of law affecting the jurisdiction of the surrogate to make the ■decree is apparent.

The guardian being only an officer of the court and not a party in the statutory sense of that term, we think the surrogate had jurisdiction to hear and determine the case.

In the Matter of Hopper, a Lunatic (5 Paige, 489), the Court •of Chancery held that a vice-chancellor might appoint his own son the committee of a lunatic, and as such committee was an officer of the court, and had no personal interest in the subject of the litigation, the case did not come within the provisions of section 2, 2 Revised Statutes, 275, prohibiting a judge from acting as such in a suit in which, he is a party, or in which he is interested, or when he is related to either of the parties by affinity or consanguinity.

In Underkill v. Dennis (9 Paige, 202), it was held that a surrogate might appoint a guardian for ah infant in proceedings pending before the surrogate, although the guardian so appointed was a relative of the surrogate, on the ground that such guardian was the officer of the court, and had no personal interest as a party.

I find nothing in the Code which renders a special guardian appointed by the surrogate in.proceedings before him, any less an officer of the court, or any more a party, than such guardian was under the Revised Statutes, and am, therefore, clearly of the opinion that the objection, that the surrogate was disqualified from hearing and deciding this case, cannot prevail.

The order appealed from must be affirmed, with costs and printing disbursements.

Putnam and Herrick, JJ., concurred.

Order affirmed, with costs and disbursements.