text:
    E. and R. Rich v. J. Husson, impleaded with Lynch.
    Suits commenced before the Code are excepted from the repeal of all former statutes in relation to costs.
    In such suits the right to costs, and the amount to be recovered, depend upon the statutory provisions in force when the Code was enacted—except in relation to those subsequent proceedings to which the Code may apply.
    A proceeding in a suit means an act necessary to be done to attain a given end, and the definition neither includes the right to recover costs nor the amount to be recovered.
    The plaintiff in an action commenced before the Code, having obtained a verdict for $50 only, held, that the defendant, under the R. S., was entitled to recover costs.
    (General Term.
    Before Oakley, O. J., Duer and Cambbell, J.J.)
    Oct. 20, 1852.
    Held, also, that no judgment for the defendant for his costs, having been entered by the direction of the judge who tried the cause, or by the court, the judgment entered was irregular.
    For this and other irregularities, judgment set aside with costs of motion.
    This was an action of assumpsit, commenced before the Code, against the defendants as partners. It was transferred from the Supreme Court, and since the transfer two new trials had been granted, and upon the third trial the plaintiff obtained a verdict for $50, for which sum, with six cents costs, judgment in his favor was then entered. Under the Code a plaintiff who," in an action for the recovery of money, obtains a judgment for $50, is entitled to full costs, but in a case governed by the provisions of the R. S., unless the plaintiff recovers more than $50, the defendant is entitled to costs. The attorney for the defendant, believing that his client was entitled to a judg- . ment for costs, procured the bill which he claimed to be taxed by a judge, and deducting froin its amount as taxed, the $50 for which the jury had rendered a verdict for the plaintiff, without any direction or order of the court, or of a judge, entered a judgment for the balance in favor of the defendant. Ho notice of any of these proceedings was given to the plaintiff’s attorney, and the defendant’s attorney, apprehensive that for this reason his judgment was irregular, then served a copy of his bill of costs and notice of its taxation, upon receiving which the plaintiff’s -attorney obtained an" order staying his proceedings, and requiring him to show cause why the judgment he had entered should not be set aside and the clerk be directed to adjust the costs in favor of the plaintiff.
    The motion was first heard by the Chief Justice at chambers, and his decision was now brought before the general term.

      A. Wight for plaintiff.

      E. Sandford for defendant.
   By the Court. Duer, J.

As there can be no vested right in the costs during the pendency of a suit, both the right to recover them and the amount to be recovered must depend upon the legal provisions which-are in force when a judgment is obtained. It is for this reason that it has been frequently decided that a change of statutory provisions in relation to costs is just as applicable to existing as to future suits, and pari ratione the same construction must be given to a repeal.

Tire 303d section of the Code declares that “ all statutes establishing or regulating the costs or fees of attorneys in civil actions, are repealed,” and unless the operation of these words is restricted by other.provisions in the Code, or by subsequent legislation, the repeal must doubtless be construed to embrace existing suits so as to deprive each party of any right to costs therein, in any event, as against the other. It is hardly possible, however, to believe that such was the intent of the authors of the Code and of the Legislature, and we are satisfied that an exception in favor of suits then pending and undetermined, which it must have occurred to them was reasonable and just, is created by section eight in the introductory part of the Code. That section declares that thé second part of the act, which includes section 303, “ relates to civil actions commenced in the courts of this state after the 1st day of July, 1848, except when otherwise provided therein,” plainly meaning except such provisions as are declared in terms to relate to suits previously commenced.' This general declaration of the intent of the Legislature, controls and directs the interpretation of every section and sentence in the second part of the Code; and we see no reason for doubting that it is just as applicable to a simple repeal by which existing suits would otherwise be affected, as to new aiid positive enactments. Section 303 must therefore receive the same construction as if the words “ except in relation to suits commenced on or before the 1st day of July, 1848,” had immediately followed the words “ are repealed.”

It was insisted, however, by the learned counsel for the ' plaintiff, that although this suit may be .saved from the sweeping repeal in § 303, still the costs which are recoverable are not regulated by the statutory provisions which were in force on the 1st July, 1848, but that there is another section in the Code which is applicable to this case, and, by a reference to which, the questions, which party is entitled to costs, and the amount of those costs, must alone he determined.

The section upon which the counsel relied, is § 459, by which the provisions of the Code are made applicable to future proceedings in suits previously commenced in the following cases:

1. Where there has been no pleading, to the pleadings, and all subsequent proceedings.

P 2. Where there is an issue of law or of fact, or any other question of fact to be tried, to the trial and all subsequent proceedings.

3. After a judgment or order, to the proceedings to enforce, vacate, modify, or reverse it, including the costs of an appeal.

It is to the second class of these cases that this suit belongs, and the argument of the counsel was that the entry of judgment and the adjustment or taxation of costs are proceedings in the cause which necessarily involve the questions of the right to costs, and their amount, and that, as these proceedings are governed by the Code, it is only by its provisions that the questions which they involve can be determined; and, upon this ground, he contended that the right of the plaintiff to recover the costs, which the Code gives, is exactly the same as if the suit had not been cómmenced at all until the Code was enacted.

It is evident that the argument of the counsel proceeded entirely upon the force which he attributed to the term “ proceeding,” and it would be unanswerable, could we assent to the interpretation that he wished us to adopt; but we cannot assent to it. The word “ proceeding,” both in its popnlar use and in its technical application, has a definite meaning, which we cannot alter or enlarge. It means, in all cases, the performance of an act, and is wholly distinct from any consideration of an abstract right. A proceeding in a civil action is an act necessary to be done in order to attain a given end. It is a prescribed mode of action for carrying into effect a legal right, and so far from involving any consideration or determination of the right, presupposes its existence: the proceeding follows the right. The rules by which proceedings are governed, are rules of procedure-; those by which rights are established and defined, rules of law. It is the law which gives a right to costs and fixes their amount. It is procedure which declares when and by whom the costs, to which a party has a previous title, shall be adjusted or taxed, and when, and by whose direction, a judgment in his favor shall be entered.

The sense of the legislature that the word “proceeding” does not ex vi ternrnd include costs, is clearly shown by the addition in the third subdivision of the section, of the words “ including the costs of an appealthe addition was made because it was believed to be necessary—because without it the costs of an appeal would not have been covered. There would have been a similar addition in relation to the costs of the suit, in the second subdivision, had that subdivision been intended to include them; the omission proves that they were meant to be excluded; Exjyressio warns exdusio alterius.

We are, therefore, clearly of opinion, that the right of the defendants to costs is not at all affected by the provisions of the Code, but depends entirely upon the statutory provisions that were in force when the Code was adopted. When the jury rendered their verdict for th¿ plaintiff for $50 only, the counsel for the defendants might have moved for an entry of judgment in his favor, and had the application then been made, we doubt not that the necessary direction would have been given, but no such direction was then given, or has since been obtained; there is no order of the court, or of a judge, upon which the judgment as entered was founded. It is true that the clerk, when the verdict was rendered, in the exercise of the power given to him by § 249 of the Code, as amended in April, 1852, might have entered judgment in favor of the defendant for his costs, but it does not appear that any such entry was then, or has since been made. Hence the proceedings of the defendant’s attorney in perfecting a judgment in the manner he has done, were plainly unauthorized and irregular. They are so in our judgment, even if tested by the rules of practice that formerly prevailed (3 Wend. 308; 12 Id. 216); they are a fortwri under the Code, by the provisions of which it appears to be certain that they ought to have been regulated. . .

The motion to set aside the judgment as irregular is therefore granted, with $10 costs, but we cannot direct an adjustment of the costs in favor of the plaintiff. For the reasons that have been given, he has no title to the costs which he claims, and whether he has lost them by the deficiency of the proof, or a mistake of the jury, we have no power to relieve him.

Upon a subsequent application, ¡ made by the defendant at chambers, the clerk was directed to enter judgment in favor of the defendant for his costs, and the plaintiff’s verdict for $50, and $20 costs, which the' defendant, upon former motions, had been ordered to pay, were directed to be offset.

The decision was made by Boswobth, J., and approved by the other judges.


source: Caselaw Access Project

author: Oakley, C. J.

license: Public Domain

text:
    Bacon v. Reading.
    (Before Oakley, Ch. J.
    Nov. 1852.)
    APPEAL FBOM AN OBDEB.-STAY OF PBOCEEDINGS.
    Although no security is required upon an appeal from an order, yet such an' appeal does not operate as a stay of proceedings—-when a stay is desired, until the determination of the appeal, it must be obtained by a special order.
    In this case a motion for a new trial, upon the ground that the verdict was against evidence, had been denied at special term, and the defendant appealed from the order to the general term. After notice of the appeal had been given, the plaintiff entered judgment upon the verdict, a stay of proceedings, which had been granted when the case was made, having ceased, by the terms of the order, upon the refusal of a new trial. The counsel for the defendant moved, at chambers, to set aside the judgment as irregular.
   Oakley, C. J.

I have consulted with my brethren and we are all of .opinion that, although no security is requisite to. be given, upon an appeal from an order, according to our decision in Allen v. Johnson, 2 Sand. S. C. R. 629, it is a mistake to suppose that because the appeal without security is valid, it can operate per se as a stay of proceedings; nor is there a single word in our former decision to warrant such a conclusion. When a stay of proceedings, until the determination of an appeal from an order, is desired, it must be obtained by a special order, and regularly, the application for that purpose ought to- be made to the judge by whom the original motion was decided.

The 349th section of the Code of 1851 specifies an order granting or refusing a new trial as one of those from which an appeal may be taken; but we cannot apply to such an appeal a different rule from that which has invariably been followed in relation to every other class of orders which the section enumerates. It has certainly never been supposed that an appeal from an order dissolving an injunction, or discharging a defendant from arrest, pn-oprio vigore, revives the injunction or continues the imprisonment; but if such is not the effect of an appeal in these cases, I cannot say that in any other it suspends the execution of the order, or the performance of any act, which is its legal consequence. If it cannot restore a dissolved injunction, it cannot revive a stay of proceedings that ceased when the order was made. It follows that the plaintiff, in entering his judgment, was entirely regular. „

It is true that the motion to set aside the judgment, is, in a measure, countenanced by the case of Emerson v. Burney, 6 How. Prac. R. 32, but the observations of the learned judge in that case do not appear to be sustained by the authorities, and are plainly repugnant to the established practice in chancery in relation to appeals from interlocutory orders.

The motion to set aside the judgment is denied, but without costs, and I think it reasonable to grant a stay of execution upon the judgment until the determination of the appeal.


text:
    Forrester v. Wilson.
    Nov. 20, 1852.
    The court will relieve a tenant, upon equitable terms, against whom a judgment of dispossession, under the act authorizing summary proceedings to recover the possession of land, had been obtained by surprise. In such a case an injunction restraining the landlord from executing a warrant of dispossession will be granted upon the payment into court, by the tenant, of the rent claimed to be due.
    This case came before the Chief Justice, at chambers, upon a motion to show cause why an injunction should not issue restraining the defendant from executing, as landlord, a warrant of dispossession against the plaintiff, as tenant, for the non-payment of a quarter’s rent. The ground of the application was, that the judgment upon which the warrant was grounded, had been obtained by surprise, and that the plaintiff had an equitable set-off to,the demand for rent; the plaintiff, however, offered to pay into court all the rent that was claimed to be due.
    The Chief Justice, after consultation with the other judges, granted the injunction as prayed for, upon the condition of the immediate payment of the rent as claimed by the defendant. .
    The ground of the decision was, that as the magistrate, by the issuing of the warrant, was funches officio, the plaintiff, unless by the interposition of a court of equity, would be remediless.

      C. A. Burling, for plaintiff.

      H. P. Fessenden, for defendant.
    Vide Capet v. Parker, 3 Sand. S. C. R. 662; Moffat v. Smith, 1 Barb. Sup. C. R. 65.
   Upon appeal this decision was affirmed at general term.


author: Bosworth, J.

text:
    Burdell, Administrator v. Burdell
    (At Special Term,
    Nov. 1852.)
    Where a deposition taken de bene esse is not filed within ten days, as directed by the statute, the court may order it tp be filed mmc pro tune.

    James Buedell was examined on the 1st of July, 1852, de bene esse, as a witness on the part of the plaintiff, pursuant to 2 R. S. § 392. Defendant’s attorney was duly served with the order for, and attended at such examination and cross-examined the witness. When the deposition was concluded and certified, plaintiff’s attorney handed it to his clerk, directed him to make a copy of it, file the original within the ten days, and serve notice on defendant’s attorney that it was so filed. The clerk copied it, and, on the 10th of July, by mistake, filed with the clerk of the court the copy instead of the original, and gave notice to defendant’s attorney that the original was duly filed. On the 17th instant the mistake was first discovered.
    Plaintiff’s attorney, on an order to show cause, and on affidavits showing these facts, and that the witness resides in Michigan, and is bow absent from the State, moves for an order directing the deposition to be filed now, as of the 10th of July, 1852. The motion is opposed on the ground that filing of it within the ten days is a statutory pre-requisite to its admissibility as evidence; that, not having been so filed, it is not a deposition, and that the court has no power, by ordering it filed rmmo pro tnmo, to make it evidence. That the statute must be literally and strictly complied with, or the whole proceeding is a nullity. That the court has no power to dispense with a condition imposed by statute. -

      S. Sanxay, for plaintiff. ,

      A. F. Smith, for defendant.
   Bosworth, J.

All the proceedings preliminary to the taking of the deposition conform strictly to the provisions of the statute. The defendant’s attorney was present upon the éxamination of the witness, and cross-examined him. It was certified by the officer before whom the examination was had, on the day the examination took place. Within ten days thereafter, a copy of the deposition was (by mistake) filed instead of the original. At the earliest moment after the mistake was discovered, the plaintiff moves the court for an order directing it to be filed mmo pro tamo.. It is clear that the order should be granted, unless the filing of the deposition within ten days after it was taken is made, by statute, an indispensable condition to its admissibility as evidence.

I do not think the statute necessarily requires such a construction. The 5th section prescribes how the examination shall be conducted. Section 6th declares that, “ such deposition” shall be read to and subscribed by the witness, shall be certified by the officer taking the same, “and, within ten days thereafter, shall be filed in the office of the clerk of .the court in which such action shall be depending.”

The words “such deposition,” as used in § 6, mean the unfiled and uncertified deposition spoken of in § 5. Section 7 declares that “ such deposition ” or a certified copy of it, may be given in evidence on the trial by either party. The words “such deposition,” as used in § 7, evidently contemplate a deposition certified and filed, but do they necessarily mean that it cannot be read unless it has been filed within the ten days?

Ho provision is made for its custody during the ten days. The right is given' to either party to read it on the trial; unless the provision that it must be filed in ten days can be regarded as directory merely, then it will be in the power of the party at whose instance it is taken, if the testimony is unfavorable to him, to deprive the other party of all benefit from it, by omitting to file it within the ten days.

A construction involving such consequences, should not be given unless imperatively required. Section 6th is evidently designed as much for the benefit of the opposite party, as of the one at whose instance the deposition is taken.

Section 8 specifies what facts, on being satisfactorily proved, will prevent the reading of the deposition. An omission to file it within the ten days is not one of the enmnerated objections.

Prior to the adoption of the Code, there were but four clerks of the Supreme Court. If a witness had been duly examined de bene esse, so short a period before the circuit that there was not time to file it with a clerk of the court before the cause was reached, and, in the mean time, the witness had died, could it be read on the trial, or would it be necessary to put the cause over the circuit that it might be filed, to entitle the party taking it to have it read ? I-do not think that the statute imposes such a condition as a right to read the deposition in evidence.

This case is distinguishable from Jackson, ex dem. v. Hobby, 20 J. R. 357, and Richardson v. Gere, 21 Wend. 156.

Jackson v. Hobby presented the question whether the deposition of a witness taken by virtue of a commission under 1 E. S. 519-520, § 11, could be read before it had been filed with the clerk of the court, and it was held that it could not. That statute provided, that when the commission and deposition were sent by an agent, he “ should deliver the same to one of the judges of-the court,” who was required, after taking the affidavit of the agent, to deposit the said commission and return with the said affidavit in the office of the clerk of the said court.”

The section further provided that every such deposition, being so taken and returned, shall be allowed and read,” &c.

- The court held, that the words “ being so returned ” could not be satisfied with anything less than an actual filing of the deposition by the officer, and in the manner prescribed; that the judge was made one of the officers for completing the return ; and that, in legal and common parlance, a commission was not returned until deposited in the office ip which it was returnable.

But § 7 of 2 R. S. 392, contains no such words. It does not say that such deposition, on “ being so filed,” may be read. It , directs it to be filed, and allows the party ten days, as a matter of course, in which to file it, but does not say that he shall not be permitted to read it, and does not seem to contemplate that he may defeat the right of the opposite party to read it, by failing to file it within the ten days.

Richardson v. Gere presented the question whether a deposition taken by commissiop ppder % E. S, § 393, § 11-31, which had been actually filed, could be read. The officer who allowed the interrogatories did not direct upon the commission “in what manner” it should be returned, which § 23 requires to be done. He directed it to be returned to the clerk of Tompkins Co., but omitted to direct in what manner. It was returned to him by mail. He took it from the post-office and filed it. ¡Nelson, Ch. J., said, “ Without the direction provided for by the act, I do not see how a return can be legally made at all; for, in the absence of it, there is no mode recognised by the law. The commission would be nugatory in this respect. But it is clear that the return by mail is admissible only by the permission of the officer in the exercise of his discretion.”

Section 31 provides that “ the examinations and depositions taken under a commission issued, executed, and returned, as herein directed,” may be used in evidence, &c. This was not returned as directed, for no direction had been given as to the manner of returning it: The statute required such direction to be given on the commission itself. This, necessarily, must be done before the witnesses are examined,

I do not think that either of those, cases decides any principle applicable to this.

Even if it was apparent that the statute imposed, as a condition to the right to read a deposition, that it should be filed within ten days after it was taken, it is by no means clear that the Code has not conferred on the court ample power to grant the relief sought.

Section 174 declares that the court, in its discretion, “ may supply an omission in any proceeding.” The obvious meaning of this phrase is, that the court may supply any omission in any proceeding which, by law, may be taken in the progress of an action. The previous part of the section gave power to allow “ any act to be done after the time limited by the Code,” and the section is made applicable to pre-existing suits. (Act of June 11,1849, § 2, sub. 1.) Hence, if this suit had been commenced prior to the Code, the authority to grant the relief sought would seem to be unquestionable. The section having given the fullest power in respect to proceedings regulated by the Code, and the same power over pending suits, and it being possible that, in new suits, there might be a failure to conform proceedings, regulated entirely by the Revised Statutes, to all the requirements of such statutes, further power was given, in the most comprehensive terms, to “.supply an omission in any proceeding ” which might be required to promote the ends of justice.

The filing of a copy instead of the deposition itself is a mere omission of a thing which the statute directed to be done. It • occurred by mistake, and contrary to the intent of the plaintiff’s attorney. The filing of it now, instead of on the 10th of July, and as of that date, can do no possible harm to the defendant. It is but doing what he was notified at the time had then been done, and what, for aught that appears, he supposed had been done, until the plaintiff’s attorney informed him of the discovery of the mistake.

I am of the opinion that the court may order the deposition to be filed now, as of the 10th of July, 1852; and that, on being so filed, it will be as available to either party as if it had been actually filed on that day. An order to that effect may be entered.

This opinion was read to and approved by all the judges.


text:
    Jeroliman and another v. Cohen.

      Mi order directing a complaint to be amended in certain particulars does not preclude the plaintiff from serving an amended complaint, containing new and material allegations, provided the time for amending, as of course, has not expired.
    The complaint, however, so amended, must not contain any matter that by the prior order was directed to be stricken out.
    But semble that, when an amended complaint has been served in conformity to an order, it cannot be again amended without leave of the court, although the time for amending, as of course, may not have expired.
    A complaint seeking damages for the breach of an agreement, may also require, that an agreement in writing, relating to the same transaction, which the.plaintiff was induced to sign by fraud, may be reformed, so as to correspond with the agreement set forth, of which the breach is alleged.

      It is no objection, that the reformation of a written contract is a matter purely of equitable cognizance, since, under § 169 of the Code, as last amended, legal and equitable causes of action, when thejr arise out of the same transaction, may be united.
    The summons and complaint were served on the 12th of May. 1852. On the 26th of June, an order was made on defendant’s motion, and after hearing counsel for both parties* which directed that specific parts of the complaint be stricken out, as “ irrelevant and redundant,” and that other certain parts be made more definite and certain; and denied so much of defendant’s motion as asked to have certain other portions stricken out, and still other portions made more definite and certain. The order of the 26th of June specified no time within which the plaintiffs were to make their complaint more definite and certain.
    On the first of November, the plaintiffs served an amended complaint, which contains most - of the-matter directed by the order of June 26th, to be stricken from the original complaint. In addition to stating the contract as it was set out in the original complaint, it alleges that a written agreement was executed, from which material promises on the part of defendant were omitted; and avers that the plaintiffs were induced by the fraud of the defendant to execute it in that form; and prays among other things, in addition to the relief as first prayed, that defendant may be held to the same liability that would exist, if the promises alleged to have been omitted, were in fact contained in the written agreement that was executed by the parties. ;
    The defendant now moves to set aside the amended complaint for irregularity, on the grounds that it was not served in time, and contains matter ordered to be stricken from the original complaint, and that, under the form of an amended complaint, a new complaint on a different cause of action has been introduced.

      S. H. B. Judah, for defendant.

      Chas. P. Kirkland, for plaintiffs. .
   Bosworth, J.

(All the judges having been consulted, and assenting to the decision made.) Is the amended complaint irregular, solely on. the ground that it was not served in time ? A complaint may be once amended, by the party of course, at any time before the period for answering it expires (Code, § 112), or at any time within twenty days after the service of an answer or demurrer.

The time for answering the complaint has not expired. The defendant is entitled to twenty days in which to answer it after it shall have been made more definite and certain, as directed by the order of the 26th of June.

That order does not preclude the plaintiff from making an amendment in other respects than those specified in it. Within the time allowed by the practice of the court to comply with the order, the plaintiffs, in addition to obeying the order, might amend the complaint as to any other matters, if the amendments were such as are allowable on amending, as a matter of course. Twenty days is the period fixed by rule 35 (38 of former rules), for performing the directions contained in the order. It was not obeyed within that time. Still the plaintiffs were bound to obey it, and obedience to it could have been compelled. (Code, § 132.)

Can it justly be said, that after the twenty days expired, the plaintiffs had no right to otherwise amend, than as prescribed by the order ? Unless this question must be answered affirmatively, then it was their privilege to make any proper amendments in addition to those required by the order.

On serving an amended complaint, complying with the order, the defendant would have twenty days to answer it, and within that time, the plaintiffs could amend, as a matter of course, unless the right to do so, was taken away by their having amended once in obedience to an order of the court. I am iaclined to think that having amended once, although by order of the court, they could not amend again as a mattér of course, and that it would be necessary for them in thus amending, to make all desired amendments, and that on failing to do so, they could not amend again except by leave of the court, under § 173.

If this view be correct, then the question recurs, can they amend as a matter of course, after twenty days from the service of an order requiring amendments of a particular character, otherwise than as the order directs ? Ho objection is perceived to such a practice. I think it may fairly be said, that the time to answer the complaint does not expire until twenty days after an amended complaint shall be sérved. The plaintiff may amend in any proper manner, but in amending, he must comply with the directions of the order.

Can an amendment of the nature of the one made in this case, be made as a matter of course % If the plaintiffs had amended, under an order granted by the court, upon application made after the time to amend as of course had expired, the court might have allowed the plaintiffs to insert “ other allegations material to the case.” (Code, § 173, as last amended.)

I perceive no good reason why, on amending as a matter of course, the party may not make amendments of the same character.

The plaintiffs seek to recover for breaches of a contract set out in the original complaint.

In the amended complaint they claim to recover for the same breaches of an alleged contract of the saíne terms. But the amended complaint shows a written agreement signed by the parties, omitting some of the provisions of the contract as it is alleged to have been in fact made, and avers that the plaintiffs were induced to sign it, by the fraud of the defendant, and therefore claim the right to show the fraud, and that the contract was as it is averred to have been, and on proving this and the fraud, to recover for the breaches of the contract, as it is stated in both complaints to have been in fact made. These allegations are certainly material to the plaintiff’s case. And if proof of the fraud will entitle them to show what the contract really was, and that it was as it is alleged to have been, then the amendment should be allowed.

The cause of action is substantially the making of such a contract as is set up, and the breaches of it alleged in the original and amended complaint. There is in reality, but one controversy, which it is desirable should be settled in a single action, and it cannot be necessary, before relief in form can be asked, to coerce a prior and independent suit to reform the written contract. "Unless the fraud be proved, so that the written agreement ceases to be a barrier to proof of the contract, as it is averred to have been, the plaintiffs will fail in their action. Whether the matters alleged, properly constitute a single cause of action, or substantially separate causes of action, yet they all arise out of the same transaction, or transactions connected with the same subject of action. Such causes of action, where several exist, although, as in the present case, one may be legal and another equitable, may now be united in the same complaint. (Code, § 167, sub. 1, as last amended.)

I am of the opinion, that the nature of the new matter inserted is not such as to make the amended complaint irregular, for that cause. The motion must therefore be denied, but without prejudice to the plaintiff’s right to move to strike out as irrelevant or redundant, any of the matter stricken from the original complaint, and re-inserted in the amended one.


text:
    Drummond v. Husson.
    (Nov. 1852.)
    The Code, as amended in 1852, has not substituted an order for a judgment mail eases where a demurrer is sustained or overruled.
    The decision is still a judgment, where a demurrer to the whole pleading is sustained. It is an order where the demurrer is partial.
    Upon an appeal from such an order only ten dollars costs can be given.
    Tim court, at the General Term in October, had affirmed the decision of the judge at special term, overruling a demurrer to the defendant’s answer. The demurrer, however, related only to a part of the answer, and it was overruled by an order and not by a judgment. On the settlement of the order or judgment of affirmance, a question arose as to the costs to be allowed to the defendant upon the appeal.

      W. Watson, for plaintiff.

      S. F. Clarkson, for defendant.
   Bosworth, J.

The second subdivision in § 349 of the Code as last amended, gives an appeal from an order, sustaining or overruling a demurrer, but I do not understand this provision as converting a decision upon a demurrer, in all cases, from a judgment into a mere order. When a demurrer is sustained which goes to the whole complaint or answer, the decision, as it determines that the party against whom it is given has no' right of action or no defence, is in its nature a final judgment, and this is so even when liberty to amend is given, if the party fail to avail himself of the privilege within the limited time; but when the demurrer relates only to a part of a pleading, the decision sustaining or overruling it, may with great propriety be termed an order, since its only effect is to strike out or retain that part of the pleading to which the demurrer applies, leaving the other issues undetermined.

In this case the demurrer was only to a part of the answer, and consequently was properly described as an order, and being so, the question as to the costs to be allowed upon this appeal is free from difficulty.

The sixth subdivision in § 307 of the Code gives before argument $15, and after argument $30, upon an appeal from the special to the general terms, and contains only an exception of an appeal from an order granting or denying a non-enumerated motion. The defendant would have been entitled to the costs thus given, had the terms' of the exception bSen unaltered, since by rule twenty-seven of this court, an appeal from a decision upon a demurrer, whether a judgment or an order, is in all cases an enumerated motion; but the exception as amended in 1852, now embraces appeals in all the cases mentioned in § 349 as amended, and it has already been stated that an appeal from an order sustaining or overruling a demurrer is one of those cases. The costs of the defendant must therefore be limited to $10, which are all that we can give.

Approved, upon consultation, by all the judges.


text:
    King et al. v. Tuska.
    At Chambers,
    Nov. 15, 1852.
    In proceedings supplementary to an execution, an order, restraining a third person from disposing of property of the debtor, cannot be made until such person has been made a party to the proceeding.
    A motion was made for an injunction order restraining If. Ferris, assignee of Tuska, from disposing of assigned property.
   Bosworth, J.

(Duer, J., concurred-.) It does not appear that any order has been made under § 294, requiring Ferris to appear and answer. This seems to be necessary in order to make him a party to the proceedings (5 How. P. R. 16), and to enable the court properly to enjoin him under § 299.

Section 294 seems to prescribe the proceedings to be taken, to authorize an order under § 299.

The affidavit does not affirm that Tuska has any interest, or had when the supplementary proceedings Were commenced, in the property alleged to have been assigned to Ferris, nor when the assignment was made to him, whether before or since the 17th of May. The order asked for must be denied, but without prejudice to the right to apply for an injunction order under §294.


text:
    Brown and another v. Bradshaw.
    November, 1852.
    Where a cause involves the examination of a long account, it is no objection to a motion for a reference that it had once been tried by a jury.
    A. new trial was granted in this case at the last October term, and the defendant, upon the ground that it involved the examination of a long account, now moved for a reference. It was objected that as the cause had once been tried by a jury, and no objection to the items of the account had then been made, the motion was too late. The judges, consulted by Emmet, J., were all of opinion that there was no force in the objection, since if the motion were denied it might be renewed upon the trial, and unless the account was then admitted, it would be the duty of the judge to grant it. Under the pleadings, the defendant had a right to require each item in the account to be proved, and he was not precluded from demanding this proof by the course on the former trial.
   Emmet, J., accordingly granted the motion.


text:
    Roy v. Thompson.
    November, 1852.
    A defendant may, in all cases, move for a dismissal of the complaint, where the plaintiff neglects to bring the cause to trial according to the course and practice of the court, without being himself bound to notice the cause for trial.
    It was held in this case, by Bosworth, Justice, with the concurrence of all the judges, that in order to entitle a defendant to move for a dismissal of the complaint, he was not bound himself to notice the cause for trial, but might make the motion, in all cases, where the plaintiff had neglected to bring the cause to trial, according to the course and practice of the court. The affidavit, however, upon which the motion is founded, must show that the cause was at issue in time to have been noticed, and that at the term for which it ought to have been noticed, younger issues had been tried. ■
   But it"is only a judgment of dismissal that can be founded upon such a motion. When a defendant claims affirmative relief, legal or equitable, the duty of an actor in bringing the cause to trial devolves upon him. He can only obtain the relief, when the cause is brought to a trial, upon his own notice, or that of the plaintiff. (Vide No. 21, of the rules of the Supreme Court, as last amended.)


text:
    Roy v. Harley and others.
    (At Special Term.
    Boswouth, J.)
    December, 1852.
    The appointment, or nomination of a special attorney, under the act of 1847 (Chap. 470, § 46), must be approved and ratified by the court before the person so appointed or nominated can be authorized to act.
    A person cannot be substituted as an attorney in the suit merely by filing the written consent of the first attorney, but, in all cases, an order of the court is necessary to render the substitution valid.
    When these rules are violated, all acts and proceedings in the name of a person claiming to act as a special or substituted attorney, are irregular and void.
    Upon these grounds, a judgment dismissing the complaint and other proceedings in the name of a person claiming to act for the defendant as a special and substituted attorney held to be irregular and set aside.
    The plaintiff moves to set aside for irregularity a judgment which has been entered, dismissing Ms complaint with costs.
    When the action was commenced, the defendant Harley appeared and put in an answer by an attorney of tMs court. Issue was joined in February last, and the defendant’s attorney acted as such, until September.
    In September last, the defendant, by an instrument in writing, and under seal, appointed a person, not an attorney of this court, her attorney, in the place and stead of the one who had previously acted as such, “ to do all, and singular, every act, matter, and thing, he may deem necessary to and for the purpose of defending ” this suit on her behalf. The first attorney signed a written consent to the substitution of the other, in Ms place and stead, as the attorney of the defendant Harley.
    These two papers were filed with the clerk of the court, on the 23d of September. A copy of the consent and notice of substitution were served on plaintiff’s attorney. Ho order of substitution appears to have been in fact entered, nor was any application made to the court to permit the special attorney to appear in the suit, nor was any proof furmshed to the court of the execution of the power of attorney by the defendant Harley.

      After the filing of this power of attorney and the consent to substitution, an order was obtained by the special attorney, that the plaintiff file security for costs, or show cause on the first of October, why security should not be filed, or his complaint be dismissed. On the first, an order was obtained directing such security to be filed on or before the 4th of October, or that the complaint be dismissed with costs. The latter order not having been complied with, a judgment was entered dismissing the complaint with costs. On the 7th of October, defendant’s costs were inserted in the entry of judgment, a judgment roll was filed and execution issued. These proceedings were all taken by the substituted attorney, and in his name, as being the attorney of the defendant Harley in this' action.
    Since these proceedings were had, such attorney, as his affidavit states, has been admitted an attorney and counsellor of all the courts of this state.
    These facts present the question, whether the judgment entered, and other proceedings had in the cause, by and in the name of the special attorney, are regular.

      J. H. Harte, for plaintiff.

      J. H. Sutherland, for defendant.
   Bosworth, J.

(on consultation with Oaklet, O. .J., and Dueb, Campbell, and Emmet, Justices). Prior to the present constitution and the judiciary act of 1847, no one could appear on the record or act, as the attorney of a party, in conducting the proceedings in a suit, unless he had been regularly admitted by the court to practise as an attorney of the court (2 E. S. 287).

On being admitted and taking the oath of office, he became an officer of the court. He acquired as such, various privileges, and incurred various liabilities, some of which are regulated by statute, arid others by the settled practice of the courts.

The courts had the power to strike his name from the rolls and deprive him of his office for misconduct.

The courts also exercised the power of relieving a suitor summarily, against the misconduct of his attorney, instead of driving him to the expensive and dilatory remedy of an action. The law was settled, that where an attorney had been retained and acted for a party, another attorney could not act for such party until he had been substituted by a rule of court, and notice of such substitution had' been served. If he undertook to act, without having been thus substituted, his proceedings would be disregarded (Jerome v. Boeran, 1 Wend. 293; Same v. The People, Graham Pr. 48-49).

The present constitution (art. 6, § 8) declares that “ any .male citizen of the age of twenty-one years, of good moral character, and who. possesses the requisite qualifications of learning and ability, shall be entitled to admission to practice in all the courts of this state.”

The revised statutes provided that “ no person shall be admitted a counsellor, attorney, or solicitor in any court, unless he be approved by such court for his good character and learning ” (2 R. S., 287, § 66).

The two provisions seem to be in the same spirit. The former was probably designed to deprive the courts of the power to prescribe any term of clerkship or study, as a condition to the right to an admission to practice. The requisite qualifications of learning and ability, and a good moral character, were made the only conditions. The constitution clearly implies that some tribunal must determine whether these exist in the applicant, and that the power of admission, and of refusing admission to practice, was to be vested at least in some one court. The 75th section of the Judiciary Act vested that power in the Supreme Court. That section provides that any person applying to be admitted, “ shall be examined by the justices of the supreme court,” that such examination shall be at a general term thereof,” and if the applicant “ shall be found to be of good moral character, and to possess the requisite qualifications of learning and ability, the court shall direct an order to be entered by the clerk thereof, stating that such person has been so examined and found to possess the qualifications required by the constitution, and thereupon such person shall be entitled to practise as an attorney, solicitor, and counsellor in all courts in this state, until he shall be suspended from such practice, as hereinafter provided. * * * The Supreme Court organized by tins act, shall possess the same power to remove or suspend an attorney, solicitor, and counsellor, as is now possessed by the present supreme court and court of chancery ”' (Laws of 1847, p. 342, § 75).

These provisions, while they abolish a prescribed term of study, seem designed to secure as high qualifications as had previously been required as conditions to admission, and to provide for a more thorough and responsible examination of applicants by directing that the examination shall be made by the justices of the Supreme Court, at a general term. It does not seem to have been any part of the purpose of the framers of the constitution, or of the Legislature, to affect the rights, duties, or liabilities of an attorney, or of the power of the Court over them,—with this qualification, that to one court alone was confided the power of admitting, removing, or suspending an . attorney.

The Legislature of 1847, at its second meeting, amended the. judiciary act. Section 46 is in these words : “ Any person of good moral character, although not admitted as an attorney, may manage, prosecute, or defend a suit for any person, provided he is specially authorized for that purpose by the party for whom he appears, in writing, or by' personal nomination in open court.” (Laws of 1847, vol. ii., p. 647, § 46.)

The defendant claims that her managing attorney, appointed by the written power of attorney, filed on the 23d of September, is authorized by this section to act for her, and that the proceedings conducted by him are regular.

In Devries v. McKoan, (1 Code R., p. 6), it was decided at a special term of the Supreme Court for the first district, that this section was unconstitutional. The opinion pronounced states that it was unanimously concurred in by the other judges of the Supreme Court in that district. (3 Barb. S. C. R. 196.)

This motion can be disposed of without expressing any opinion on that question. Even if it be assumed that a person other than an “ admitted attorney ^ may manage, prosecute, or defend a suit, if specially authorized in writing or by personal nomination in open court, and if of good moral character, yet the existence of these conditions must be satisfactorily established before he has a right to act, and before his acts can be recognised as valid. As a matter of necessity, they must be established to the satisfaction of the court in which the suit may be pending, or is to be brought.

If the managing attorney is to acquire his authority from a nomination of him by the party in open court, it will then be the duty of the court to determine whether he possesses the requisite of a good moral character. If his moral character is notoriously bad, or shall be satisfactorily shown to be so, it would be the duty of the court to refuse to pennit such person to appear in the suit. Unless this is so, and unless the court has this power, then an attorney removed for official misconduct might re-appear the next day under a special power of attorney, and act as attorney and counsellor in defiance of the court which had removed him.

There should be some order of the court, to evidence the fact of its having permitted the person having a power of attorney, or who has been nominated in open court, to appear for the party for whom he proposes to act.

If the only evidence of authority to act is a written power of attorney, the execution of it should be proved. If an attorney has been previously retained, and has been acting as such, the newly appointed attorney should present his power of attorney to the court, duly acknowledged or proved, together with a consent of the former attorney to the substitution; and, if a stranger to the court, should also produce evidence of his good moral character, and apply for an order permitting him to be substituted and to act in the place and stead of the former attorney. When such an order has been entered, and notice of it has been served, he may proceed in the action, and his proceedings will then be regular, unless § 46 of chap. 470 of laws of 1847 is unconstitutional.

That the judgment may show on its face that the proceedings have been conducted by a person having authority to act for the party in court, so as to bind him by his acts, the order of substitution should be incorporated in the judgment roll. (Code, § 281, sub. 2; 12 Mod. 440; 1 Chit. Archb. 42,)

In this case, it is sufficient to say, that, after the defendant had appeared and answered by an attorney of the court, all notices and proceedings on her behalf in the name of another person as her attorney, who had not begn authorized by an order of the court made in the action to appear and act for her, were entirely irregular. The judgment and execution must be set aside as irregular, but in this case it will be without costs.


author: By the Court. Bosworth, J.

text:
    Roosevelt v. Brown.
    General Term,
    December, 1852.
    Where a verdict is taken subject to the opinion of court at general term upon questions of law, and judgment in the meantime is suspended, if judgment is rendered upon the verdict, the prevailing party is not entitled to costs, as upon an appeal from a judgment at special term.
    (Before all the judges.)
    At the trial, the jury were directed, if they should find certain questions of fact submitted to them in favor of the plaintiff, to render a verdict in his favor for the amount of his claim, subject to the opinion of the court at general term, upon certain questions of law also raised at the trial. They found a verdict for the plaintiff.
    The plaintiff made a case, containing the pleadings, evidence, and questions of law raised at the trial. On argument of this case at the general term, the court ordered a judgment in favor • of the plaintiff upon the verdict.
    The plaintiff’s bill of costs presented for adjustment contains these items, .viz.:
    Costs of appeal before argument ■ . . . $15
    Costs of appeal for argument .... 30
    The defendant objects to them, as unauthorized by the Code. The parties and clerk ask instructions from the court, upon the point whether they should be allowed.
   By the Court. Bosworth, J.

They cannot be allowed. .There has been no appeal, nor any judgment of the court from which an appeal could be taken, except that rendered by the general term.

At the trial, no decision was made upon any question of law. A verdict was ordered in favor of the plaintiff, if certain facts in issue were found, to exist; but it was ordered to be given and was rendered subject to such judgment as the court at general term might give upon the questions of law.

These questions of law were first tried at and determined by the general term. The court at general term did not review the judgment of the judge at special term upon these questions, but they were there first decided.

The prevailing party can only be allowed, under § 307, sub. 3, p. 15, for the trial of the issues of law, besides such costs as he may be entitled to under sub. 7, and disbursements under § 311, únless the case be one which entitles the plaintiff to a per centage, as to which no opinion is expressed.


author: Oakley, C. J.,

text:
    Lucius E. Bulkley v. C. B. Smith & James H. Brush.
    Dec. 11, 1852.
    Where, in an action for a tort against several defendants, the jury have severed the damages, a judgment entered against all for the highest damages mil not be set aside as irregular, but the defendants will be left to their remedy by appeal.
    This was an action for a malicious' prosecution, in which the defendants answered separately. The jury at the special term severed the damages, and rendered a verdict against the defendant Smith for twenty-five hundred dollars, and against Brush for five hundred dollars. The plaintiff, to cure this error in the verdict, entered the judgment against both defendants for twenty-five hundred dollars, and waived the five hundred dollars found against Brush. An allowance by .way of costs had also been made of seventy-five dollars against, Smith, and of twenty-five dollars against Brushbut the plaintiff had entered it in the judgment against the defendants jointly, for one hundred dollars.
    The defendants obtained an order requiring the plaintiff to show cause why the judgment should not be set aside as irregular on both grounds, and insisted that the plaintiff should have elected to enter judgment against both defendants for five hundred dollars, or entered a nol. pros, as to Brush, and perfected his judgment for twenty-five hundred dollars against Smith alone.

      Plaintiff in person.

      Defendant in person.
   Oakley, C. J.,

after consultation with the other judges.— Great doubt and much confusion in 'the authorities seems to exist in England and in this country as to the course to be pursued by the plaintiff in perfecting Jiis judgment where the jury have severed the damages, as to the defendants in actions for torts, where the defendants are jointly found guilty. It is clear that in actions founded upon a tort which are in their nature joint and several, the plaintiff may cure a verdict wrong in point of law by entering a nolle prosequi against all the defendants but one, and taking judgment against him only. (1 Saunders, 207, v. 2; Salmon v. Smith, 6 T. R. 199, 200; Mitchell v. Milbank and others; Sabin v. Long, 1 Wils. 30; Sedg. on Damages, 584; and Cases Cited, 2d ed.) This practice seems to have been generally followed in this state; and we have not been referred to any case in our own courts wher.e the practice adopted in this case has been followed. (Holley v. Mix, 3 Wend. 350; Bohun v. Taylor, 6 Cow. 313.)

But this practice of allowing the plaintiff, in cases where several damages are assessed, to enter judgment de melioribus da/mnis against all the defendants found guilty, was sanctioned in Haydon’s case, 11 Coke, 5. (7 Viner’s Abr. 303; Elliott v. Anderson and others, 1 C. B. 18; Clark v. Newsam, 1 Exch. R. 131; and 16 Law. J. Exch. 297.)

The question is also directly decided in Halsey v. Woodruff, 9 Pick. R. 555, in a parallel case; and in Rochester v. Anderson, 1 Bibb. R. 434, where the defendants pleaded guilty, and it was held that if the jury sever the damages the plaintiff may take judgment against all for the best damages; while, in Ammonett v. Harris and Turpin, 1 How. & Mann. 488, the Maryland Court of Appeals held that the true mode of curing the error in the Verdict was to enter a nol. pros, against all but one defendant.

In this conflict of the authorities, we have concluded that we will not interfere with the verdict on a motion-like the present. As the error, if there is any, appears distinctly upon the record, and the plaintiff insists upon retaining the judgment in its present form, we think that the defendant must present the question by appeal.

The plaintiff certainly erred in incorporating in the record an allowance of one hundred dollars by way of costs, and in that respect the taxation must be modified.

The motion upon the principal point is denied, without costs and without prejudice.


author: Oakley, Chief Justice.

text:
    Wilmerding and others v. Moon impleaded with Levy.

      At Chambers,

      December 8th, 1852.
    A defendant who has been arrested under an order in an action upon contract, and has not been bailed, may move to vacate the order at any time, before he has been charged in execution.
    Before Oaklet, Chief Justice. (Duee, Campbell, Boswobth, and Emmet, J.J. concurred.)
    The defendant Moon moved to vacate the order under which he had been arrested, upon affidavits controverting those upon which the order had been granted. The action was upon contract, and it appeared that the plaintiffs had obtained a judgment and had issued an execution against the property of the defendant, and these facts were relied on as a bar to the motion. The application was also resisted upon the merits.
   Oakley, Chief Justice.

I have consulted my brethren upon the preliminary objection raised upon the argument, and we are all of opinion that I am bound to entertain this motion and decide it upon its merits, as disclosed by the affidavits. Tire facts upon which the plaintiff’s counsel relied, in our judgment, are no bar to the application.

The only limitation of time which the Code imposes, is that which is necessarily implied in section 204, namely, that the motion to vacate an order of arrest must be made before the justification of bail, and with a single exception, that I shall hereafter state, we think, it follows that so long as bail may be put in, the right to make the motion is unimpaired-.

It is true that in Lewis v. Truesdell (3 Sand. 706), in which we held-that the motion was too laté, the bail had not justified; but -their undertaking had become absolute by the omission of the plaintiff to except, and the ground of mu' decision was that it is the perfecting of bail—whether by their justification or the absence of an exception is immaterial—that creates the estoppel. Although not within the letter, the case was plainly within the spirit and intention of the Code.

The perfecting of bail is an admission upon record that the order of arrest was justly made, but we cannot say that mere delay, of the application to vacate the order is a conclusive admission of the same fact. An objection founded merely upon delay is in all cases addressee! to the discretion of the court, and it would be a palpable abuse of that discretion to allow the objection to prevail, where the question is, whether a defendant shall be. discharged from an unjust imprisonment.

¡Nor is the case at all altered by the facts that the plaintiff has obtained judgment and has issued execution against the property of the defendant. Where the right to arrest a defendant depends upon the nature of the action, and the facts constituting the right are set forth in the complaint,—as in actions for false imprisonment, malicious prosecution, breach of promise of marriage, &c.,—as the judgment establishes the truth of the facts it concludes the defendant from subsequently denying them, but when the order of arrest, as in this case, is founded solely upon extrinsic facts,- not constituting the cause of action, as the judgment is no evidence of the truth of the facts, it leaves them just as open to explanation and denial as if it had never been obtained. The judgment is evidence that a debt is due to the plaintiff, but not that the defendant had been guilty of any fraud in contracting the debt, or endeavoring to evade its payment.

Whether I could entertain this motion if the defendant were now in confinement under an execution against his person, is not a question that can now be properly considered, but our decision is that an order of arrest founded upon extrinsic facts, may be vacated upon a proper application, at any time before the defendant, if not bailed, has been charged in execution. I have examined with attention the affidavits on both sides, and am satisfied that the defendant ought to be discharged.

Order of arrest vacated without costs.


text:
    West v. Brewster.

      At Chambers,
    December, 1852.
    Where the action is against an attorney for an account of moneys collected by him, the proper notice to be inserted in the summons is that prescribed by subdivision 2 in § 129 of the Code.
    The complaint in such a case need not state the particulars of the account, nor is the plaintiff bound to furnish a bill of particulars Unless under a special order.
    This was a motion in the alternative that all proceedings should be quashed as irregular, or that the complaint should be made more definite and certain. The notice inserted in the summons was in the terms of subdivision 2, § 129 of the Code, that if the defendant should fail to answer the complaint within, &c., the plaintiff would apply to the court for the relief demanded.
    The complaint stated in general terms that the defendant had been retained, by the plaintiff as his attorney in various suits and transactions,, and averred, upon information and belief,-that, as such attorney, he* had. collected for .the plaintiff from-xlivers ■ persons divers sums of. money, amounting to $6,000, which he had neglected and refused to pay over, and prayed for an account of the moneys so received by him, and judgment for such sum as might be found due.
    The defendant, in person* insisted that the action was an action arising upon contract for the recovery of money only, “ and consequently that the notice in the summons should have been that the plaintiff would take judgment for a sum specified, in the language of sub. 1, § 129 of the Code. He also insisted that if the summons was regular, the complaint was too general and' indefinite, and ought to be rendered definite and certain by requiring the plaintiff to specify therein the particular suits in which he, the defendant, had been retained, the names of the persons from whom he had made collections, and the sums of money received from each.
    —;--contra.
   Oakley, C. J.

This is not an action “ arising on a contract for the recovery of money only,” within the meaning of sub. 1 in § 129 of the Code. The actions there referred to are actions at law, properly so called, in which, from the nature of the contract, the plaintiff knows, and can, therefore, specify the sum which he is entitled to recover. This is a suit in equity, arising from the particular relation of the parties; the contract which that relation implies is not for the payment of money only, and the relief which is sought, the compelling a confidential agent to render a proper account of the execution of his trust, is that which courts of equity alone have been accustomed to grant. The notice in the summons is, therefore, properly adapted to the relief demanded.

Hor do I see any necessity for requiring the plaintiff to render the complaint more definite and certain than it is. Even when the action is founded upon an account, the particulars of which are certainly known to the plaintiff, and where a certain sum, as a balance, is claimed to be due, the items of the account need not be set forth in the complaint, although, in such a case, a copy of the account, if demanded, must be delivered to the adverse party (Code, § 158). But this is not such an action. It is not founded upon an account in the possession of the plaintiff, but it exacts from the defendant an account which, if the general allegations in the complaint are true, he is bound to furnish, and all the particulars of which must be within his personal knowledge, and this account is required as a necessary preliminary to the judgment demanded. If, in a suit like this, a bill of particulars of the plaintiff’s claim can, with any propriety, be required at all, before a reference to take an account is ordered, I am clearly of opinion that it can only be obtained under a special order of the court, founded upon an application showing its necessity.

The motion, in both its branches, is denied, with costs.

Approved at a consultation, by all the judges.


text:
    Hull v. Smith.

      December, 1852.

      A motion to strike out an entire answer as frivolous is irregular. The proper motion is for judgment under § 247 of the Code. Under the former practice sham, and frivolous answers were frequently confounded, but they are carefully distinguished by the Code. The distinction is that which is stated in Brown v. Jettison (3 Sand. S. C. E. 732).
    When one only of two or more defences in an answer is alleged to be frivolous, if it is also irrelevant or redundant, it may be struck out under § 160; but when it is merely frivolous the plaintiff is put to his demurrer.
    This was a motion to strike out an answer as frivolous. The action was upon a promissory note by the payee against the maker; the complaint was in the usual form, but the answer merely denied upon information and belief that the plaintiff was the “lawful holder and owner of the note.” The plaintiff had noticed the cause for trial at two or three successive terms after the service of the answer, and upon this ground it was insisted that the motion was too late.

      Ridgeway, for plaintiff.

      Scott, for defendant.
   Oakley, C. J.

(Duer, Campbell, Bosworth, and Emmet, Justices, concurred.) It is not necessary now to determine whether a motion of this kind can properly be entertained after the plaintiff has noticed the cause for trial, since upon another ground the motion, in its present form, must be denied.

When the entire answer is alleged to be frivolous, it cannot be stricken out under sections 152 or 160 of the Code, but the proper motion is under section 247, for a final judgment. Such a motion is a substitute for a demurrer, and raises substantially the same question; although, as we have frequently said, the motion will not be granted, unless the issue taken by the answer is plainly immaterial, or the defence set up manifestly groundless. Still as the judgment given, even where such is the opinion of the judge or court, may be erroneous, the defendant has the same'right to have it reviewed upon an appeal, as if given upon a demurrer, and consequently,- to enable him to exercise this right, the answer, instead of being stricken out, must remain upon the record.

According to the practice that prevailed before the Code, a frivolous as well as a sham plea might be stricken out upon motion; but a frivolous plea was then understood to mean not ■ simply a plea bad upon its face, but one which, in the opinion of the court had been certainly interposed in bad faith, for the mere purpose of delay. Hence sham and frivolous pleas were frequently confounded, and indeed the, term sham was- indis, criminately applied to both. But the Code has carefully distinguished sham and frivolous answers, and has restored the words to their original and appropriate sense. The distinction between them is that which was stated by Mr. Justice Dube, with the assent of the court, in Brown v. Jenison (3 Sand. 732). A sham answer is good upon its face; but false in fact; a frivolous answer denies no material averment in the complaint, and sets up no defence.

It is true, it is said in Brown v. Jenison, that a frivolous answer may be stricken out upon notice, but this we are satisfied . is not correct where the objection applies to the entire answer. Where one only of two or more defences is frivolous, if it is also irrelevant or redundant, as will generally be- the case, it’ -may be stricken out under § 160; but whén it is simply frivolous, the plaintiff will be obliged to demur.

The motion is denied without costs.


text:
      - v. -
    General Term,
    Dec. 18, 1852.
    Term fees not allowed for subsequent terms after a cause has been referred. (Oakley, Ch. J., Campbell, Boswokth and Emmet, J. J.)
   By the Court. Bosworth, J.

Is the prevailing party in an action which has been referred, entitled to recover a term fee of $10 for every term of the court which intervenes between the date of the order of reference, and the filing of the "referee’s report?

After it has been referred, it is not only not necessarily on the calendar, but cannot properly be on it at all. Costs therefore cannot be allowed under § 307-, Sub. 8.

For the trial of the issues before the referee, sub. 4 prescribes the costs to be allowed.

Referees have the same power as the court, to impose the payment of costs as a condition to granting a postponement of the trial (§ 314). It is to be presumed that the referee in this case discreetly exercised this power, in granting adjournments from time to time. At all events, no complaint is made that it was not so exercised in this case.

If the cause was difficult or extraordinary, or the prosecution or defence of it was unreasonably or unfairly conducted, a per centagé may be allowed on the sum recovered, or. claimed (§§ 308, 309).

But no costs can be allowed for the terms that elapse between ordering and closing the reference, for the reason that none are given by law. Ho costs are - allowed for the term at which a cause is tried, for or on account of its having been on the calendar that term (§ 307, Sub. 8). . The only costs allowed for that term, excepting disbursements, are costs for “the trial” of the action. Whether the trial takes two days or two terms, the compensation under § 307 is the same.

If any additional costs are recovered, they must be obtained through an allowance by way of a per centage—under sections 308 and 309.


text:
    Hoyt v. The American Exchange Bank.
    Oaklet, Oh. J., Paine, Campbell, and Bosworth, J.J.

      General Term,

    Jan. 1853.
    The provisions of the Revised Statutes in relation to a discovery of books, papers, (fee., have not been superseded by § 388 [see. 341 and 342] of the Code. The two systems may stand together, as not being inconsistent with each other, either as to the mode of making a discovery, or the powers of the court, if a discovery be refused.
    If in answer to an order for discovery and inspection, or for sworn copies of books, papers, áse., the opposite party denies fully and explicitly that there are any such entries, books, or papers under his control, that is an end of the application. He cannot be subjected to a fishing examination.
    The court has no right, under the rules adopted, to execute the power conferred by the Revised Statutes, or under the Code, to direct a discovery to be made by appointing a referee to ascertain and report, whether an order directing a discovery previously made and executed, has been fully complied with; and that the referee have power to examine and personally inspect all the books, papers, and documents, &e., and to-examine witnesses in relation thereto, áse.
    On the return being made to the first order, the petitioner, if he deems.it insuificient, should apply for an order that the opposite party show cause at a certain time why the particular deficiencies or omissions alleged should not be supplied.
    The mode of making applications for discovery, (fee., under the Revised Statutes and the Code, stated.
    By an order at special term of the 10th January, 1853, the defendants were required to give to the plaintiff, within twenty days, &c., “ sworn copies of all entries contained in any books, and of all papers and documents in their possession, or under their control, in reference to, or showing when, under what circumstances, for what purpose or consideration, and by or from what person or persons, a post note and some Indiana bonds, particularly described, were transferred, or delivered to, or into the possession of the defendants,” and directing that such copies be sworn to by the defendants’ cashier. The cashier was designated as the officer to verify the papers, at the instance of the plaintiff.
    Copies of various entries and papers were furnished as a compliance with this order, and the cashier by affidavit deposed, that the papers so furnished were correct copies of all entries contained in any books of the said defendants, and of all papers and documents in their possession or under their control, in reference to or showing when, &c., following the terms of the order; “ that diligent search has been made by this deponent for all entries in the books of the said defendants, and for the papers and documents referred to in the order above mentioned.”
    On the coming in of this return, plaintiff’s attorney, on an affidavit that the return, in his judgment and belief, was an “ evasion of said order of discovery, and a total failure to comply with the true intent and meaning of the same,” and on the original papers, the return and such affidavit, moved for a more full and perfect discovery.
    On such motion, the order appealed from was finally entered on the 9th of April, 1853. That order referred it to a “ referee, to ascertain and report whether the said defendants have made the discovery required by the said order of the 10th of January last, and whether any and what further discovery should be made by-them under the said order, and to that end to examine and inspect personally, all the books, papers, and documents now in their possession or under their control, containing entries or statements in reference to the discovery ordered and required by the said order of 10th of January last, or of which sworn copies should be given under the said order, and that the said referee have power to examine such witnesses as may be produced before him in relation to such books, papers, and documents, proving their existence or identity, and that he have power to cause such books, papers, and documents to be produced and exhibited to him, at the banking house of the said defendants for his personal examination, at such time ns to him may seem proper, having regard to the business of the said defendants, that he may ascertain and determine whether the said defendants have by them said return complied with the said order of the 10th of January last, and made the discovery required thereby, or whether sworn copies of any entries therein should be furnished to the plaintiff in addition to such as may have already been furnished by said return; and the said defendants are hereby ordered to produce to the said referee, all such books, .papers, and documents in their possession or under their control, as he may require on the said-investigation.”
    From this order the defendants appealed to the general term.
    The respondent insisted that it was a matter of discretion with the judge, whether he would order the reference or not, and that such an order was not appealable.
    That a reference might be made “ when a question of fact, other than upon the pleadings, shall arise upon motion or otherwise, in any stage of the action.”
    The appellants insisted that the return was a full and perfect compliance with the order of the 10th of January. That if the return was deemed or shown to be defective, a further return, and not a reference, should have been ordered; and that nothing was presented to the court, tending to show that the return made was not full and complete.
    J. H Titus, for appellants.

      S. Sanxay, and J. Hoyt, in person, for respondent.
   By the Court. Bosworth, J.

Applications to compel a discovery, or that an inspection and copy of books, papers, and documents be given, are becoming qiiite numerous. It is important that the views which govern the action of the court in these proceedings should be distinctly stated, in order that the cases in which a discovery may be made, and the manner in which it will be ordered to be made, may be understood.

This court does not consider that the provisions of the Revised Statutes in relation to a discovery of books, papers, &c., have been superseded by § 388 [ §§ 341 and 342 ] of the Code, but that the two systems may stand together, as not being im. consistent with each other, either as to the mode of making a discovery, or the powers of the court, if a discovery he refused.

If a party applies under the Revised Statutes, and makes a case provided for by them and the rules made under them, he has a right to a discovery. The court will exercise its discretion in specifying the manner in which it is to be made. In ordinary cases, and unless indispensable to protect the rights of the party applying, it will not order an inspection to be given, or a deposit to be made.

Sworn copies of books, entries, or of papers and documents, to the discovery of which the applicant shows a right, will be ordered to be furnished.

Enough must be stated to justify a presumption, that entries, papers or documents relating to a specified subject matter exist, are in possession or control of the other party, and that they will tend to establish some claim or defence of the party asking for the discovery; and that they are not in his possession or under his control (Rule 9, Supreme Court).

If in answer to the order, the opposite party denies fully and explicitly that there are any such entries, books or papers under his control, that is an end of the application.

He cannot be subjected to a fishing examination or investigation, with a view to ascertain the fact, whether he has or has not books, papers or documents which may contain evidence relating to the merits of the action, or of the defence, unless he is examined as a witness, so that his deposition may be made evidence as well for as against him (Code, § 389 [sec. 349]).

The Revised Statutes enacted that the Supreme Court, in'prescribing, by general rules, the cases in which such discovery may be compelled and the proceedings for that purpose, where the statute had not regulated the same, should “ be governed by the principles and practice of the Court of Chancery in compelling discovery, except that the costs of such proceedings shall be always awarded in the discretiou of the court” (2 R. S. 199, § 31 [sec. 22]).

According to the practice of the Court of Chancery it was necessary to set forth in the bill the particulars of which the discovery was sought. The opposite party was not required to answer vague and loose surmises. An averment that the matters, as to "which, a discovery was spught, were material to the defence, was not sufficient. It was requisite to so state the case, that the court could see how they might be. material on the trial of the suit at law.

As soon as tije answer was perfected the defendant might move for costs, and to dissolve any injunction that had been granted, staying proceedings at law until the discovery was made.

It was almost a matter of course to grant both motions, unless before the bill was filed he had been applied to for the discovery and had refused to make it, in which case costs were not allowed to him (2 Barb. Ch. Pr. 106, 111, 115).

The practice in case of applications under the Revised Statutes is deemed to be well settled (18 Wend. 529; 2 Sand. S. C. R. 662).

The applicant must state the particulars of which a discovery is sought, and enough to satisfy the court that it is in the power of the opposite party to furnish it, and that it is material for the support of the claim or defence of the applicant that it should be made.

If the party answer distinctly and unevasively, that as to all or any of the papers or documents or entries, of which a discovery is sought, there are no such papers or documents in his possession or under his control, and that there are no entries relating to the specified subject matter, or except such as he has furnished copies of, the applicant 'must abide by the answer so far as the proceedings for a discovery are concerned. If dissatisfied with the result of the proceedings, he must examine him as a witness, or rely on such other evidence as he may be able to corqmand.

He has no right to have a general inquisitorial examination of all the books, papers, aqd documents of his adversary, with a view to ascertain if perchance something cannot be found which will possibly aid him.

The order appealed from appoints a referee to ascertain and report whether the order of January 10, 1853, has been fully complied with, and to that end purports to give him power “ to examine and personally inspect all the books, papers, and documents” now or heretofore in the possession .or under the control of the defendants containing entries or statements in reference to the discovery,” and to examine witnesses in relation to such books, papers and documents, to prove their existence or identity, and to compel such books and papers to be produced and subjected to his personal examination.

We are satisfied that the court has no right, under the rules adopted, to execute the power conferred by the Revised Statutes or under the Code, to direct a discovery to be made in the manner directed by the order of the 9th of April, or such proceedings as are provided for in that order to ascertain whether an order directing a discovery has been fully complied with. If rules 8, 9, 10, and 11, are to be regarded as regulating the practice in applications under the Revised Statutes only, and as having no reference to proceedings under § 388 of the Code, then a discovery can be directed to be made in only one of the modes specified in rule 10.

The Code (§ 388) authorizes the court or a judge thereof, “in their discretion,” to “ order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy of any books, papers, and documents ip his possession, or under his control, containing evidence relating to the merits of the action, or the defence therein.”

Giving permission to take a copy, is necessarily giving power to inspect, as a copy cannot be made without inspecting the book, paper or document to be copied.

The only discretion which the court can exercise, under this section of the Code, is in determining whether it will order an inspection to be given at all. If it grants a discovery under this section, it has no discretion in directing the manner in which it is to be made. An inspection is to be giyen at all events, and the only alternatives that can be presented to the party against whom the motion is made are, to either give a copy or submit to the inconvenience of allowing the petitioner to make a copy.

If either party applies under the Code, he should be required to make a case as strong and urgent as is deemed necessary to entitle him to a production and 'deposit of books, papers and documents, instead of sworn copies, hi either reason, principle nor policy, derqqnds tliqt a party’s books and papers, or any part of them, should he submitted to the inspection of his adversary, when the court would not order them to be deposited in order that they might be inspected. Such an order should be made only in those cases in which one for production and deposit would be granted, unless an inspection was ordered as a substitute for deposit, on the sole ground that a deposit and production would be a substantial inconvenience to the owner of the books, papers and documents, and would be of no benefit to the applicant beyond that which an inspection would confer.

Where the sworn copies furnished in obedience to an order for a discovery indicate that the discovery may not be complete, it is proper for the petitioner to apply for a further order based on the return and previous proceedings, or on them and further affidavits, for an order requiring the opposite party to show cause at a time to be named why sworn copies should not be furnished of such other entries, papers or documents relating to the points as to which a "discovery had been ordered, as the return and other papers may induce the court to believe to be in his possession or control, and unless the possession or control of such papers and documents or the existence of such entries be explicitly and unequivocally denied, • a peremptory order would be granted.

The return made in this case contains among other things four resolutions passed by the defendants on the 23d of March, 1810, the first two of which would seem to clearly relate to the Indiana bonds.

The third is as follows, viz: Eesolved, That S. Draper, Jun. and others’ proposition be laid on the table.” The immediately preceding and succeeding resolutions imply that the proposition related to the same bonds, and the natural inference would be that the proposition was in writing. It may be that the cashier, in the return sworn to by him, intended to have it distinctly understood that no such paper could be found, and it is possible that the thought of searching for one may not have occurred to him.

We think it would have been proper on the return being made, to have applied for an order that the defendants show cause ■ at- a time to be named why a sworn copy of that “ proposition” should not be furnished. The order might also have included any other paper, document, book or entry, relating to the matter as to which a discovery had been ordered, whose existence was shown to be probable. In answer to the order to show cause, it would be incumbent on the defendants to show by the oaths of their proper officers, that no such paper, document or entry existed, or if the existence of either was not denied, the defendants would be ordered to furnish' copies, or to submit to the consequences of disobedience.

We think this course ■ should have been pursued instead of making the order appealed from. The proceedings authorized by the order, we do not think warranted by the rules'adopted by the Supreme Court, or by the Code, and that the order appealed from should be reversed, without prejudice to the right of the plaintiff to apply for an order to show cause, in accordance with the views we have expressed.

We think it proper that the return should be verified as well by the president as by the cashier.


text:
    Murphy, Administratrix of Murphy, v. Kipp & Brown.

      At Chambers,

    Jan., 1853.
    In an action under the statute, by the representatives of a deceased ■ person, deprived of life through the alleged negligence of the defendants, to recover the damages occasioned by his death to his widow and children, a bill of particulars cannot properly be required.
    It would be unreasonable to require the plaintiff in such actions, to state by anticipation all the items, and the amount of each, that the court might hold would properly enter into the computation of damages.
    The alleged disposition of ordinary jurors, to give extravagant damages in such cases, is not a sufficient reason for granting a struck jury.
    ’As the damages, in such cases, are limited to the pecuniary loss, when, in the ’ judgment of the court, they exceed any reasonable estimate of such loss, the verdict will be set aside.
    This was an action under the statute to recover the damages, resulting from the death of the intestate, to his widow and children." The defendants were the proprietors of an omnibus lipe, and the complaint averred that by the gross negligence of the driver of one of their stages, the deceased had been run over, and had died in consequence of the injuries he received.
    The defendants moved for a bill of particulars, and also for a struck jury, upon the ground that the prejudices of ordinary juries led them to give excessive damages.
    For the reasons above stated, the judges, consulted by Campbell, J., were all of opinion that both motions ought to be denied.
   They were denied accordingly.


author: Emmet, J.

text:
    Keeler v. Dusenbury & Ogden.
    January, 1853.
    The examination, of parties as witnesses, or the production of their books, cannot be compelled, under the provisions of the Revised Statutes, to perpetuate testimony.
    Where no complaint has been filed, and the nature of the relief sought by the action is not shown by affidavit, the merits of the case cannot appear, and the court in its discretion should not compel the production of books.
    The summons in this case was for general relief. The defendants appeared, but no complaint was served. The plaintiff applied under the provisions of the Eevised Statutes, to perpetuate testimony (Part Sd, ch. 7, Tit. 3, art. 5), for an order and summons to examine the defendants, and to compel them to produce certain books and papers in their possession, containing reports and entries concerning the plaintiff’s standing and credit as a merchant. On the day fixed for the examinatión of the defendants under the summons and order, obj ection was made by the counsel for the defendants, that their examination as witnesses or the production of their books could not be compelled by the proceedings which the plaintiff had taken for that purpose, viz. under the provisions of the Eevised Statutes to perpetuate testimony.
   Emmet, J.

I have looked into this question, and" am of opinion that "the objection is well taken. The Code, § 390, provides'for the examination of a party as a witness, either at the trial, or conditionally, or upon commission; and expressly declares (§ 389), that no examination of a party shall be had on behalf of the adverse party, except in one of those modes. The present proceeding is not under the Code, but expressly under the provisions of the Revised Statutes to perpetuate testimony, which never contemplated the examination of a party. The examination of parties as witnesses was not then known to the law.

¡Neither do those provisions of the Revised Statutes give power to compel a party to produce his books, &c. That object can only be attained under Tit. 3d, ch. 1, part 3, § 30, &c., of the Revised Statutes, or under § 388 of the Code.

Both those enactments leave it to the discretion of the court to compel such production, and both make it a condition that the books, &c., required should contain evidence relating to the merits of the case.

If this application had been made under either of these acts, I do not think it should be granted. It is not easy to conceive what the merits of an action may be, or, indeed, that it can have any merits, on a bare summons for general relief, and before any complaint has been exhibited, and without even an affidavit disclosing the nature of the relief sought.

Strictly speaking, the merits of an action can only appear from the pleadings on hoth sides, and cannot be fairly presented until the cause is at issue. But, assuming that it is sufficiently apparent, that the plaintiff’s object in this proceeding is to obtain the necessary materials from the defendants’ books to frame a complaint against them for a libel, I should much doubt the propriety of exercising the power of the court to facilitate such a purpose under any form of application, without strong affidavits, showing its necessity to enable a plaintiff to obtain redress.

The motion to compel, obedience to the order and summons must be denied, but without costs, the question having been submitted as somewhat novel in its character.

Approved on consultation.


text:
    -v.-

      At Chambers,
    January 3.
    When in an action against joint debtors the Superior Court has acquired jurisdiction by the- service of the summons upon one of the defendants, the property of any other defendant, who is a non-resident, may be attached under § 227 of the Code.
    The action was against two defendants, jointly liable upon a contract, and the summons had been personally served upon one of them; and the other, upon whom it had not been served, and who had not appeared, was proved to be a non-resident, and an application for a warrant of attachment against his property was made at Chambers, to Mr. Justice Campbell.
    The judges, consulted by him were all of opinion that as the court, under § 33, sub. 2, of the Code, as amended by the act of April, 1852, has now jurisdiction in all suits against joint debtors, where the summons has been personally served upon any one of them, it was a necessary consequence that the property of a non-resident defendant, not served, and not having appeared, might be attached under § 227 of the Code. There was no longer any distinction, in such cases, between the powers of the judges of this, and of the Supreme Court.
   The warrant prayed for was therefore granted.


text:
    Hubbard and others v. - Guild.
    (At General Term,
    before Oakley, Ch. J., Doer, Campbell, and Bosworth, J. J.)
    January, 1853.
    A solvent partner is not entitled by law to the sole administration of the assets of the partnership, which is dissolved by the separate insolvency, of one or more of the partners.
    This was an appeal from an order granting an injunction, and appointing a receiver, in an action for settling the accounts, and paying the debts of a dissolved partnership. It was admitted that the partnership was dissolved by the personal insolvency of some of the plaintiffs, but it was proved to the satisfaction of the court that the defendant, Guild, was entirely solvent. His counsel, therefore, insisted that his legal rights were exactly the same as those of a surviving partner, and consequently, as there was no allegation of fraud or mismanagement, that he was entitled to the sole administration of the partnership assets. The court said, that had there been a provision in the articles of co-partnership, that in the event which had happened, the solvent partner should alone be entitled to settle the accounts, dispose of the property, and close • the affairs of the firm, they would have felt it their duty to give it full effect, by dissolving the injunction, and discharging the order for a receiver; but that in the absence of such a provision, and of any express decision or authority, they could not be governed by the imperfect analogy upon which the counsel had insisted. They could not say that the insolvent partners were divested of their ¡legal rights as joint owners of the partnership assets, and deprived of all agency or voice in closing the business of the firm. In their opinion, the right of the plaintiffs to demand the appointment of a receiver, was exactly the same that it would have been had the partnership been dissolved from any other cause than their own insolvency.
    The court added, that they saw no reason why the defendant should not himself be appointed the receiver, .if he would give the necessary security. It seemed to them that in all cases where the dissolution "of a partnership is occasioned solely by the insolvency of one of the partners, the solvent partner ought to be appointed receiver, when his capacity and integrity are unqxiestioned. The referee, therefore, to whom the appointment was referred, might, upon due inquiry, report the name of the defendant.

      Evarts, for plaintiffs.
    Leonard, for defendant.
   The order of reference was accordingly so modified.


text:
    O’Brien v. Hagan.

      At Chambers,
    January, 1853.
    When the plaintiff or defendant in a civil suit is sentenced to imprisonment in the state prison, although only for a ternl of years, the suit is abated.
    The plaintiff having been convicted of a felony, and sentenced to be imprisoned in the state prison for a term of years, the defendant obtained from him, after the sentence had been pronounced, a release of the demand, or damages, for the recovery of which the suit was brought, and now moved for leave to file a supplemental answer, setting up the release as a bar.
    The judges consulted by Oakley, Ch. J., were of opinion that the necessary effect of the provision in the R. S. (2 R. S., § 19, p. 701), which suspends all the civil rights of a person so convicted and sentenced, during the term of his imprisonment, was to. abate the suit, and, consequently, that no further proceeding could be had therein, until it was properly revived. They declined to give any opinion upon the question, whether a release given by a person so sentenced, even if founded upon a valuable consideration, would be a valid defence.
   Upon the first ground, the Chief Justice denied the motion. ■


text:
    Coates v. Coates.
    (At General Term,
    before Oaklet, On, J., Duer, Campbell, and Bosworth, J. J.)
    January 22, 1853.
    Counsel fees for defending the suit, and moving to dissolve an injunction, may be properly included in an estimate of the damages sustained by the defendant, in consequence of the injunction.
    'The plaintiff, upon the usual undertaking, had obtained an injunction restraining the defendant from the use of certain trade marks. This injunction was dissolved upon the motion of the defendant, founded upon his answer, and a large number of affidavits; and the merits of the controversy being thus virtually determined, the plaintiff discontinued the suit. The usual reference was then had for ascertaining the damages sustained by the defendant, in consequence of the injunction, and it appeared from the report of the referee, that the damages, as estimated by him, consisted mainly of heavy expenses incurred, and counsel fees paid by the defendant in procuring the dissolution of the injunction; none of the charges, however, were such as could be included in the taxation of costs, and the court, after argument, were of opinion that they were properly allowed, and therefore denied a motion for striking them out from the report. (Code, 11, Paige, p. 227).

      C. Edwards, for plaintiff.

      A. Burrill, for defendant.