source: Caselaw Access Project

license: Public Domain

text:
    Swan v. Mathews.
    When a motion to compel a non-resident plaintiff to file security for costs is unreasonably delayed, it is a matter resting in the discretion of the judge, whether the motion shall be granted or denied.
    At Chambers,
    Feb. 9, 1854,
    before Duer, J.
   A motion was made by the defendant to compel the plaintiff, a non-resident, to file security for costs. Meld, that when such a motion is unreasonably delayed, the granting of it rests in the sound discretion of the judge; and it appearing that the cause had been long at issue, and had been several times noticed for trial by the defendant himself, the motion was denied. These acts were construed to be a waiver of the right to demand security. (4 Sand. Ch. R. 311; 1 Duer B. 705.)


text:
    Gourney v. Wersuland.
    A complaint may be verified by an agent who personally knows the facts stated in it to be true, without stating in the affidavit, that the party is absent from the county in which the attorney resides, or any reason for its being verified by the attorney, other than his having such knowledge.
    At Chambers,
    Feb. 9, 1854,
    before Duer, J.
   Motion* on the part of the defendant to compel the plaintiff’s attorney to receive an answer which, although served in time, the attorney had returned on the ground of the want of a verification. It was insisted on the part of the defendant, that the complaint was not properly verified, and hence that a verification of the answer was not necessary. The complaint was verified by an agent, who swore that the facts -set forth were true of his own knowledge, and that the reason of his making the affidavit was,, that the facts were fully known to him, and but partially to the plaintiff. Held, that this verification was sufficient, it not being necessary to aver the absence of the .party, when the pleading is verified by an attorney or agent having a full knowledge of the facts. Such an averment is only necessary when the affidavit is made by the attorney or agent upon information and belief. Motion denied, with costs, but defendant allowed two days to serve a verified answer. (Code, § 157; Lefevre v. Latson, 5 Sandf. S. C. R. 650.)


text:
    Edgerton v. Smith.
    A complaint against the endorser of a note, alleged that due notice that the note had been presented for payment, and that payment was refused, had been given to the defendant. The answer did not deny these allegations, but denied that such notice had been received by the defendant. This'part of the answer was stricken out as irrelevant, and as tendering an immaterial issue.
    At Chambers,
    Feb. 9, 1854,
    before Duer, J.
   Motion- on the part of the plaintiff to strike out the first section of the answer as irrelevant. The complaint was against the defendant, as endorser of a promissory note, and averred that due notice that the note had been presented for payment and that payment had been refused, had been given to the defendant. The part of the answer proposed to be stricken out merely denied that such notice had been received by the defendant. Held, that this was plainly irrelevant, as containing no denial of any material allegation in the complaint, and tendering an immaterial issue. It was not denied that due notice of the dishonor of the note had been given, and the fact that the notice so given had not been received by the defendant, if proved, would be no bar to a recovery. Motion granted, with costs.


text:
    McKnight v. Hunt.
    In an action against the maker of a promissory note, the complaint averred that the defendant made and endorsed the note, and that the plaintiff was the lawful holder and owner of it. But it did not aver that the note was endorsed to, or delivered to the plaintiff by the defendant. Held that an answer merely-denying that the plaintiff was the lawful holder and owner was not frivolous. That such an answer, to a complaint in that form, did not deny a mere conclusion of law, but the fact of the plaintiff’s title.
    At Chambers,
    Feb. 9, 1855.
    Before Duer, J.
   Motion by plaintiff for judgment, on the ground that the answer was frivolous. The action was on a promissory note which the complaint averred, had been made and endorsed by the defendant; it also averred that the plaintiff was the lawful-holder and owner of it. The answer contained only a denial that plaintiff was such owner and holder.. Held, that this, owing to the peculiar form of the complaint, might fairly be construed not as a denial of a conclusion of law but of an issuable fact; the complaint did not aver that the note had been transferred and delivered to the plaintiff, unless by implication from the averment that he was the owner and holder. The answer must therefore be construed as denying a transfer of the note, and therefore raising a material issue, or the complaint be held to be bad on its face, and upon either supposition, the motion must be denied. It was denied accordingly.


author: Duer, J.

text:
    The People ex relat. v. Sturtevant.
    Notwithstanding the limitation implied in the title “ Of Civil Actions” prefixed to Part II. of the Code, those provisions of that part of the Code which related to costs upon appeals, are applicable to appeals in special proceedings, as well as to those taken in civil actions, strictly so called.
    The points raised on this appeal sufficiently appear in the opinion of the Court.

      JD. D. Meld opened the motion ; Hilton contra.
   Duer, J.

The Court of Appeals, in affirming the final judgment or order of this Court, in the proceeding against the defendant as for a contempt, has awarded to the relators the costs of the appeal; and this judgment, as the proceedings have been remitted to this court, it has become our duty to execute, and consequently to interpret. The question which we are called upon to determine is, whether the costs which the defendant is required to pay are those prescribed by the Code, or those which are taxable under the Eevised Statutes.

Section 307 of the Code, subd. 7, declares that the costs to be allowed on an appeal to the Court of Appeals, shall be $25 before argument, and $50 for argument; and the clerk, in adjusting the costs, has followed this direction. Hr. Justice Bosworth has affirmed the decision of the clerk, but it has been earnestly contended that the decision is erroneous, and inconsistent not only with the general design, but with the express provisions of the Code.

I shall proceed to state in a condensed form the argument that , was relied on to convince us of the error which we are urged to correct.

The jurisdiction which the Court of Appeals has exercised in this case, it is admitted, is derived from the Code, but we" are assured that it is a mistake to suppose that the Code regulates the costs on every appeal which it sanctions. The jurisdiction is founded on subd. 3, in § 11, which gives an appeal “ from a final order affecting a substantial right made in a special proceedingbut the provision in § 307, which defines the costs to be allowed on an appeal, relates solely, it is said, to appeals in civil actions, and is not applicable at all to an appeal in a special proceeding. § 11 is in Part I. of the Code, which following its title, treats exclusively of “the courts of justice and their jurisdiction.” But § 307 is in Part II., which treats as exclusively “ of civil actions,” meaning those actions and those only, which the Code defines and regulates. It is true that in this second part appeals are embraced and treated of under the general head of “ civil actions,” but in the provisions relating to them, an appeal is considered not as a new and separate action, but only as a further proceeding in the original action in which the order of judgment appealed from was rendered. So that throughout, appeals in civil actions, and those actions authorized by the Code, are alone intended. It was further observed in confirmation of these views, that proceedings as for a contempt against a party in a civil action are governed entirely by the provisions of chap. 8, tit. 13, part III. of the Revised Statutes, and are therefore proceedings which the Legislature has declared that the Code was not designed, and shall not be construed to affect (Code, § 471), and it seemed to be thought a necessary conclusion that an appeal from a final order in such proceedings must be regarded as embraced in the exception.

This conclusion, however, so far from deeming it necessary, we do not hesitate to reject. It is true, that title 13 of chap. 8 (2 R. S. 532)—which treats of “ proceedings as for contempt to enforce civil remedies ”—is unrepealed in all its provisions ; but these provisions relate wholly to proceedings in the court in which the contempt is sought to be punished, and contain not a single word in relation to the mode in which the final judgment or order of the court is to be reviewed by a higher tribunal. They have, therefore, no bearing whatever on the question we are now considering; since neither their construction, nor their application, can be varied in the slightest degree by holding that an appeal from such an order is subject, in all respects, to the provisions of the Code. The whole argument, therefore, on the part of the defendant, rests upon the truth of the allegation that the provision in the second part of the Code, in relation to appeals in their just construction, must be limited to appeals in civil actions, since, that the proceeding against the defendant is not such an action, the Court of Appeals, in refusing to dismiss the appeal, has in effect determined.

The second part of the Code is entitled “ Of Civil Actions ” and that this title was meant to refer only to those actions which the Code defines and regulates, we readily admit, nor is it necessary to deny that, under this general title, appeals in such actions are properly comprehended.

The title of a law, however, it not unfrequently happens, is much narrower than its actual contents, and in such cases it has certainly never been supposed that an express provision must be altered or expunged, in order that the contents may be made to correspond with the title. The history of legislation shows, that of all the arguments which are used to fix the construction of a statute, that derived from its title is the weakest and most deceptive. In rare cases, the title has been invoked to aid, but in none has it been permitted to control the interpretation; on the contrary, when a plain discrepancy exists, it is not merely a reasonable, but a necessary inference that the title is defective or erroneous.

It happens in the present case, that the Code itself furnishes the clearest evidence that the title of “ civil actions,” upon which the learned counsel for the defendant laid the stress of his argument, is essentially defective, and so this court upon full consideration has determined.

The object of section 8, in the preliminary title to the Code, is to announce that division of the entire act which its framers had deemed it proper to adopt; and it'declares that this division is into two parts, the first of which relates to “ courts of justice and their jurisdiction,” and the second not only to civil actions commenced after the 1st day of July, 1848 (that is, commenced under the Code), but also, with the exception of the last four titles, to appeals to the Court of Appeals, and other courts—an addition which, if appeals are properly comprehended under the general head of civil actions, was plainly unnecessary, unless appeals in other cases than in actions under the Code were meant to be embraced. That they were meant to be embraced, and that the latter words of the section were introduced in order to embrace them, this court, in Kanouse v. Martin (2 Sandford, 739), has expressly decided, and in so deciding has held, that the title prefixed to the second part of the Code, does not cover all the subjects which its provisions embrace, and- therefore, as defective and partial, is manifestly erroneous.' An argument founded upon this title, we are therefore compelled to disregard.

The action in Kanouse v. Martin was commenced previous to the adoption of the Code, but the appeal to the* Court of Appeals from the judgment of this court was subsequent.

The appeal had been dismissed with costs to the respondent, and the question to be determined was exactly the same as in the case now before us, namely, by what law the costs of the appeal were to be regulated. It was contended on behalf of the appellant that the provisions in the Code relative to costs on an appeal, were applicable only to appeals in civil actions commenced after the Code; but the learned judge who heard the motion decided that the general words in section eight extended to all appeals subsequent to the Code, without reference to the time of the commencement of the suit in which the appeal was taken, and that to hold otherwise would be a plain violation of the intent of the statute. It is true that this decision, in its form, was that of a single judge, but it was made with a full concurrence of two of his associates, and, as I personally know, was the result of their joint deliberation. It has, therefore, all the authority of a decision at general term.

It may be said, however, that the decision in Kanouse v. Martin, so far as its authority is binding, only proves that costs on an appeal must be adjusted under the Code, when the appeal is from a judgment in a civil action, and does not prove that the same costs must be allowed when the appeal, as in the case before us, is from a final order in a special proceeding. Hence, to meet the objection, a further examination of the provisions of the Code seems to be necessary.

I proceed, then, to the title of the Code, which treats especially and exclusively of appeals. This is title 11, of the second part of the Code. It is headed, “ Of Appeals in Civil Actions,” and if the provisions that follow correspond with this title, the position for which the counsel has contended, notwithstanding our decision in Kanouse v. Martin, is established, since we readily admit that it is only on those appeals which the Code regulates, that the costs which the Code has specified can be allowed. It happens again, however, unfortunately for the argument that has been addressed to us, that it is met and refuted by a manifest variance between the title of the law and its actual contents, since the former implies a limitation which the provisions that follow decisively reject. It is true that the law (treating this particular division of the Code as a statute) relates to appeals in civil actions, but it relates just as certainly to appeals in those special statutory proceedings to which the name of action cannot properly be given. The 2d chapter treats of appeals to the Court of Appeals, and its first section (333), short but most significant, is in these few words : “ § 333. An appeal may be taken to the Court of Appeals in the cases mentioned in § 11.”

And the question at once suggests itself, for what purpose was this section inserted? Not assuredly for the purpose of defining the jurisdiction of the Court of Appeals, since this jurisdiction had already been given and defined by the section which is referred to; nor, if it is susceptible of any other construction, are we at liberty to regard it as an idle repetition of a previous enactment. We think that the plain and sole object of the section is to indicate the cases by a reference, without enumeration, to which the subsequent provisions of the chapter and all general provisions throughout the Code in relation to appeals to the Court of Appeals, shall be construed to apply, and that the construction and effect of every section containing such a provision are consequently the same as if in each an appeal from a final order in a special proceeding were separately mentioned. Thus the section which immediately follows prescribes the written undertaking which must be executed on the part of the appellant to fender an appeal effectual, and sections 327 and 328, in the preceding chapter, the notice which is necessary to be served and the duties of the clerk in transmitting the papers to the appellate court; and we apprehend it cannot be doubted that all these provisions apply just as plainly and certainly to an appeal from an order in a special proceeding, as to an appeal from a judgment in a civil action. At any rate no such doubts were entertained by the learned counsel who have conducted the proceedings on the part of the defendant and his colleagues, since in taking the appeals from our determination, which they deemed it expedient to advise, the provisions of the Code were carefully and exactly followed.

Our conclusion is, that the appeals to the Court of Appeals, which are referred to in the title “ Of Costs,” are the same that the chapter “ Of Appeals,” has declared may be taken; and consequently, that to every appeal so taken, the provisions that govern the allowance of costs must be construed to apply. The work of the framers of the Code would be manifestly incomplete had they omitted á provision for costs on any appeal which they meant to sanction and regulate. Legislation thus bungling and defective it would be unjust to impute to them. Whatever may be the terms in which other persons may choose to describe their labors, in my deliberate judgment they have accomplished, and generally speaking, ably and successfully accomplished, a most difficult, as well as important and honorable, task.

The monument that has been raised, as a work of science and art, may doubtless be improved. Its defects may be supplied, and its proportions corrected or enlarged. • But the foundations are solid and deeply laid, and the structure will stand. Manet et moméhit.

There is an additional, and, I think, conclusive reason, for holding that the relators are entitled to the costs which they claim. Unless those allowed by the Code may be given, there are none to which they can be entitled; and the judgment which we are required to execute will be inoperative and void, from the absence of any rule or standard by which the costs that are awarded may be estimated. The Code has, in terms, abolished writs of error; and although not in terms, yet by necessary implication, it has abolished appeals as formerly understood and prosecuted.

It has abolished them by the substitution of proceedings so widely different that the costs which are taxable under the re-wised statutes can no longer be applied to them. It was said by the court in the case of Kanouse v. Martin, that if the writ of error is taken away the fees for prosecuting it must fall to the ground. If the proceeding which is the principal, is abolished, the compensation for conducting it, which is a mere incident, cannot remain. And these observations apply just as truly to the abolition of the proceeding which was formerly called an appeal, as to that of a writ of error. The term “ Appeal” is indeed retained, but its meaning is so essentially changed that the proceeding which it denotes can with no more propriety be treated as an appeal in equity than as a writ of error. It is, however, to appeals in equity that the costs given by the revised statutes plainly relate. The court of Appeals certainly meant that their judgment should be enforced, and if it can only be enforced by the allowance of costs under the Code, we are bound to say, that these and these only are the costs which the judgment awards.

There remains only a single observation. The Code has declared (§ 491) that its provisions shall not affect appeals from Surrogates’ Courts. The exception of these appeals was plainly unnecessary, had it not been seen that the general words of the Code would otherwise be construed to embrace them; nor would the exception have been confined to these appeals, had it been thought that any other were proper to be included. The solitary exception proves the rule—proves that in all the cases not excepted, the provisions of the Code in relation to appeals were meant to be understood in the full extent of the terms in which they are expressed. It is thus that we interpret them. 'The decision of Mr. Justice Bosworth is therefore affirmed with costs.


author: Oakley, C. J.

text:
    Seaver v. Robinson.
    A resident of another State, coining to this State to be examined as a witness in an action to be tried in one of its courts, and attending in good faith for that purpose, and being in this State for that purpose only, is exempt from the service of a summons upon him, and if one be served while he is properly and in good faith attending as a witness, it will be absolutely set aside and discharged.
    At Chambers,
    March 11, 1854.
    The defendant, a resident of Rhode Island, came from that State to this city, to testify as a witness in an action, pending in a court of this State. He came voluntarily, but at the solicitation of one of the parties, and in good faith, for the sole purpose of being examined as a witness. While waiting for the cause to he called, it being on the day calendar, he was served with a summons, at the suit of Seaver, the plaintiff, issued out of this court. He now moved to set aside the service of the summons, insisting that he was privileged from the service of a summons, or other process, by the service of which an action may be commenced. The motion was resisted on the ground that the privilege of a witness is limited to exemption from arrest only, and not to exemption from being served with a process which does not authorize an arrest, and that such privilege and exemption extend only to residents within the State.
   Oakley, C. J.

The question presented by this motion is one of great practical importance. It cannot be expected that citizens of other States will voluntarily appear as witnesses in this State, if they incur the hazard of being sued in our courts, while in good faith attending .solely for the purpose of being witnesses. The instances are rare in which it would not be more convenient and less expensive for them, that the litigation of matters which cannot be amicably adjusted, should be had in the courts of the State in which they reside.

Any one familiar with the character and numbers of the suits tried in this city, in which persons residing contiguously but in other States, are necessary witnesses, and who reflects upon the great advantage it often is to a party to examine his witnesses in court, rather than upon commission, cannot fail to see that great inconveniences might result from such a rule as the one for which the plaintiff contends. The facilities for travel are so much increased, and the expenses of it so much diminished, that in many cases the attendance of a witness residing out of the State will not create more expense to a party, or more inconvenience to the witness, than his examination upon a commission.

Principles of public policy require that no unnecessary obstacles should be interposed, to prevent the attendance and examination of witnesses in the presence of the court and jury.

I do not understand that it was ever doubted in this State, that a person, while bond fide attending as a witness, though a resident of another State, was exempt from arrest. The question has in some cases been presented, whether he was entitled to be unconditionally discharged, or whether he could only be discharged on filing common bail, or entering an appearance in the action in which he was arrested.

In Norris v. Brach, 2 J. R. 294, a witness attending from another State, was discharged absolutely from the suit. In Sandford v. Chase, 4 Cowen, 381, the same rule was made. The court said, “ the privilege of a witness should be absolute. An arrest should not be valid even for the purpose of giving jurisdiction to the court out of which the process issues ; more especially where the witness is attending from a foreign State.” I have considered this question of sufficient importance to be called to the attention of my brethren, and we all agree in the opinion, that the service of the summons should be set aside, and the suit absolutely discharged. An order to that effect will be entered.


author: By the Court. Bosworth, J.

text:
    Gillott, Respondent, v. Kettle, Appellant.
    The plaintiff was a manufacturer of steel pens, which were put up for sale in boxes. Those containing pens of the first quality were labelled Bo. 303, and those containing pens of an inferior quality were labelled Bo. *753. The complaint charged that the defendant was in the practice of removing the labels from the boxes last mentioned, and putting thereon labels numbered 303, closely imitating the plaintiff’s labels bearing that number. .

      Held, that this practice of the defendant was a fraud upon the public and the plaintiff, and being a fraud productive of damage, could be restrained by injunction.
    (Before Oakley, O. J., and Bosworth, Hoffman, and Slosson, J.J.)
    March 11, 1854.
    Ttttr is an appeal by the defendant from an order enjoining him, as hereinafter stated. The papers on which .the injunction was granted, show that the plaintiff is, and for a long time has been, extensively engaged in the manufacture of steel pens at Birmingham in England. That the pens made by him are well known, as such, in the market, and are extensively sold, as well in the United States, as in the country in which they are made. That large quantities of them are sold in boxes containing one gross each. That each box is labelled in a manner, and with a label having devices on it, which indicate that the plaintiff' is the manufacturer of the pens, and in consequence of which they are bought and sold in the market as pens made by him. That the labels have numbers, or marks, impressed on them, which indicate, and which are recognised by dealers as indicating, an actual difference in the quality of the pens. The pens in boxes numbered 303, are bought and sold as being an extra fine pointed, and are in fact such. The pens in boxes numbered 753, are of an inferior quality, are bought and sold as such, and that number is understood by dealers to denote that they are an inferior pen. The former are sold by the plaintiff at about 75, and the latter at about 18, cents a gross.
    From the boxes containing the plaintiff’s label or trade marks, and bearing the number 753, the defendant was in the practice of removing the plaintiff’s label, and putting on, in place thereof, labels which he made or caused to be made, closely imitating the genuine labels of the plaintiff, which bear the number 303.
    That this act was productive of great injury to the plaintiff, by destroying public confidence in his honesty, and bringing the pens made by him into discredit, by reason of his inferior pens being disposed of as being his best pens. The defendant was enjoined, by an order made by Hr. Justice Hoffman, from continuing this practice, and from that order the defendant appeals.

      A. H. Wallis, for appellant.

      G. C. Goddard, for respondent.
   By the Court. Bosworth, J.

The fraud complained of consists in selling an inferior article of the plaintiff’s manufacture, gs being one of a superior quality. The fraud, to the extent that it may be successful, is twofold. The public is ■ defrauded by being induced to buy the inferior for the superior article. The plaintiff is defrauded by an unjust destruction of confidence, that his pens are put up for sale, and assorted with reference (¡O' the quality,, indicated to dealers by the labels on the boxes which contain them. From an order, restraining the continuance of this fraudulent practice, the defendant has appealed.

This case differs- from those in which a manufacturer seeks to restrain third persons from using and placing upon articles made by themselves, the device or trade-mark of the former, by which articles of his own manufacture are known to be his, and are recognised, as such, in the market.

The ground on which a court of equity exercises jurisdiction in those cases, is the prevention of fraud and of damages, consequent upon it, that might be irreparable.

In this case, the defendant has not attempted to sell an article made by himself, by "fraudulently creating the impression that it was made by the plaintiff. But he has attempted to sell an article made by the plaintiff to he sold as an inferior one of his own manufacture, and so labelled by him as to- denote to dealers that fact, by removing the label and putting in its place a spurious one, so nearly imitating another genuine label used by the plaintiff on his best quality of pens, as to be calculated to induce- a belief that it was put on the boxes by the plaintiff himself, and which, label denotes to traders that the boxes on which it is placed, contain- pens of á better quality than was indicated by the label, for which the- spurious one was substituted.

By such a practice, the defendant “ endeavors, by a false representation, to effect a dishonest purpose; he commits a fraud upon the public and upon the manufacturer. The purchaser has imposed upon him an article that he never meant to buy, and the manufacturer is robbed of the fruits of the reputation that he had successfully labored to earn. In such a case there is a fraud coupled with damage, and a court of equity, in refusing to restrain the wrongdoer by injunction, would violate the principles upon which a large portion of its jurisdiction is founded, and abjure the exercise of its most important functions—the suppression of fraud, and the prevention of a mischief that otherwise may prove to be irreparable.”

These were stated, and as we think correctly, by Hr. Justice Duer, in the Amoskeag Manufacturing Co. v. Spear (2 Sandf. S. C. R. 606), to be the principles on which rests the jurisdiction exercised, to restrain the violation of a right acquired to use particular trade-marks.

Fraud and damage resulting from it, always entitle the injured party to relief. The remedy by inj unction is-invariably granted, when the nature of the injury is such that a preventive remedy is indispensable and should be permanent. It is obvious, that in cases like this,- if the injured party is obliged to seek redress by actions to recover damages, there will be no end to litigation,, and certain and adequate relief must be unattainable.

We all concur in the conclusion, that the order appealed from is not erroneous, and that it should be affirmed with costs.


author: Duer, J. By the Court. Hoffman, J.

text:
    Safford v. Drew.
    A complaint under the statute of 1841, which gives an action to the-personal representatives of a deceased person, whose death was caused by the wilful act, or by the neglect of the defendants, must aver that the deceased left a widow, or next of kin, who sustained a pecuniary loss from his death. Such an action is properly brought in the name of the executor or administrator of the deceased.
    The complaint alleged that the plaintiff is the father of George E. Safford, late of the city of Hew York, deceased; that on the tenth day of December, 1853, letters of administration were granted to the said plaintiff by the Surrogate of the city and county of Hew York, giving the said plaintiff full power to administer upon the goods, chattels, and credits of the said George E. Safford.
    That on or about the 16th day of July, 1853, and at the time of the collision hereinafter described, and of the burning, scalding, wounding, and death of the said George R. Safford hereinafter mentioned and set forth, the defendants above named were, as plaintiff is informed and believes, the owners and possessors, and were in the use and occupation of the steamboat Empire, and then, and before that time, were running the same on the Hudson river between the city of New York and the city of Troy, and had the control and management thereof through their agents and servants.
    That on or about the night of the said 16th of July, the said steamboat, under the management and direction of the said defendants and their servants, was proceeding down the said Hudson river from Troy towards New York, with the said George R. Safford on board thereof as a passenger, lying and sleeping in a state-room assigned to and occupied by him as such passenger, and having proceeded below Poughkeepsie on said river, met a sloop or other vessel passing up said river, and that the said steamboat was so negligently, unskilfully, and carelessly managed, .conducted, and navigated on the part of the defendants by their servants, that by and through the mere negligence, mismanagement, carelessness, and default of the said defendants and their servants, the said steamboat came in violent and forcible collision with the said sloop or other vessel, whereby the boiler or some other part of the machinery of the said steamboat was deranged, injured, or broken, so that the steam and water escaped therefrom into the state-room so occupied by the said George R. Safford as aforesaid, and without any neglect or default of the said George, burned, scalded, and otherwise injured him, the said George, so that by reason thereof soon after he died.
    That the channel of the said river at the place of said collision was so wide and deep as to furnish ample room for the said steamboat and sloop or other vessel to pass each other without any collision or contact whatever, and that the night was so clear and light that with a reasonable and proper lookout, .care, and attention on the part of the persons in charge of -the said steamboat, such collision might have been wholly avoided, and the burning, scalding, and death of the said •George R. Safford, thence ensuing, wholly prevented.

      That a good and sufficient watch and look-out for other vessels navigating said river, and to avoid collision therewith, was not kept on board said steamboat Empire, and that the same was negligently and carelessly steered and guided, by reason whereof, wholly or in part, the said collision occurred, and the said burning, scalding, and death of the said George E. Safford ensued.
    Demurrer assigning the following grounds:
    1. That the cause of this action, stated in the said complaint, did not survive to the administrator of the deceased, and the said plaintiff has not legal capacity to sue therefor.
    2. That no facts are stated by which it can be determined that any damages were sustained which are recoverable in this action; nor any allegation of damage.
    3. That the said complaint does not state facts sufficient to constitute a cause of action.

      Cowles and Jones made and argued the following points in support of the demurrer.
    The demurrer to the complaint is well taken, and should be sustained, because—
    I. At common law, the cause of action stated in the complaint died with the person, and did not survive to the personal representatives of the deceased. (3 Black. Com. 302 ; 1 Chitty Pldg. 78; 1 Saund. R. 216-17, note 1.)
    II. It is only by virtue of an express statute that the administrator can sue in a case like the present, and the complaint is fatally defective in not stating the facts necessary for a recovery under the statute. (Laws of 1847, p. 575; Laws of 1849, p.-.) 1. The statute gives an action only for the recovery of a pecuniary compensation for the injury resulting from the death to a particular class of persons. 2. It is, therefore, essential that the facts showing that there was an actual pecuniary injury to that class of persons should be stated. 3. The damages recoverable in the action are special, and the law always required that in such cases they should be stated with particularity. (1 Chitty Pldg. 441.) 4. The plaintiff does not in his complaint show that any damage was sustained.

      Culver and Parker contra.
    I. The action is rightly brought by the administrator, and the right of action survived to him. 1. The action is brought under the statute (Laws of 1847, p. 575), which provides that if the party injured might have brought an action for the injuries, if death had not ensued; then, if death ensue, his personal representatives may bring the action, and the defendants are liable to them. Personal representatives are representatives of the personal estate. (Woadbin, v. Bagley, 13 Wend. 456; Beecher v. Crouse, 19 Wend. 308 ; Jenkins v. Fryer, 4 Paige, 51.) 2. The fact that the personal representatives must bring the action settles the character of the claim—it is assets of decedent. The personal representatives are mere trustees of the. estate of the decedent, they have no interest (as such) in -the estate. They have no claim to anything that goes directly to the heir; much less can they have any right to any claim, demand, or other property which never did or could belong to the decedent, and which is the claim, demand, or property of other persons. A claim that goes to the executor or administrator must be one belonging to the estate of the deceased. 3. This is not an action by the parent or master for loss of service; nor of that nature in any respect. It is true the act provides that the jury, in estimating the damages, shall have reference to the injuries resulting to the wife and next of kin. But this does not give the wife and next of kin a claim against the persons doing the injury, for in that case they- would be entitled to bring the action. The injury is not immediate to them, as it is in the case of parent and master, who can control the services of child and servant, and is entitled to his earnings. But the injury to wife and next of kin is consequential. The capacity of the decedent to acquire property in any way is by this statute made property. It is made an actual pecuniary value. The destruction of that .capacity is a destruction of value belonging to his personal -estate. The claim, therefore, goes to his administrator, as •.trustee, :to be -collected and distributed to his next of kin, rander the statute of distributions. Hence follows another ¡argument for our conclusion, viz.

      4. The statute of distributions controlling the division of the proceeds of such claims (inasmuch as they go to the administrator), shows that the claim is assets of the estate of the deceased.
    II. The complaint shows that damages were sustained, which are recoverable in this action. The damages were injuries to the person of the deceased. He was scalded and otherwise injured by the steam water, so that he died therefrom, and this by the neglect and default of the plaintiffs. If death had not ensued, he could have recovered for the scalding, without specifying it more particularly. But here the degree of injury is mentioned, such as to cause death soon after. Having passed that limit of life—death ensuing—by the common law the action would not survive. But the statute of 1847 enacts that it shall survive.
    IH. The provision in the act of 1847, as to the matters to be regarded in assessing the damages, does not at all affect the right of action, or who shall be parties, or-the statement of facts and circumstances constituting the cause of action. The law, allowing sxieh a i*ight of action to survive, might, by strict logic, have involved a seeming absurdity. Thus up to the point “ miñculo mortis,” the injury to the decedent was an injury for which he could not bring his action, and a law allowing the right of action to survive, would give to his “ personal representatives” a right to claim damages to that point, but not beyond it. Hence, no evidence could be given of the death to inci'ease the damages. But the Legislature have avoided the difficulty, by allowing the jury to have reference, in estimating the damages, to the injuries resulting to the wife and next of kin. This does not change the nature of the action, but merely enlarges the field of evidence in the case. The nature of the action is fixed in the law.
    1. That it survives. 2. That it survives to the executor or administrator. 3. That the recovery goes to the wife and next of kin, under the statute of distributions. 4. By prohibiting, (by not allowing,) the wife and next of kin from bringing the action.
    IT. If the complaint shows any right of action, even if the damages are merely nominal, the plaintiff is entitled to recover.
   Duer, J.

The questions are certainly new which this demurrer raises, and I will not affirm that they are free from difficulty.

The complaint is unquestionably good, if it avers all the facts which, if controverted, the plaintiff will be bound to prove upon the trial, in order to maintain the action, and if the question stood alone on the construction to be given to the first section of the statute, I should not hesitate to say that the only facts necessary to be proved upon the trial, and, consequently, to be averred in the complaint, are the death of the person by whose representatives the action is brought, and the wrongful act, neglect, or default of the defendant, by which the death was caused. Confining ourselves to the words of this section, they certainly imply that the action is given to recover damages for the personal injury to the deceased, and these damages, which, had not death ensued, he would himself have been entitled to recover. By the rule of the common law, his death would be a bar to the recovery, and this bar, the Legislature, by declaring that the guilty or negligent defendant, shall remain liable to an action, notwithstanding the death, or in legal phrase by declaring that the cause of action shall survive, intended to remove. Upon this construction it would also follow, as the counsel for the plaintiff contended, that the damages recovered would enure to the general benefit of the estate of the deceased, and would be assets in the hands of his executors or administrators.

But the first section is not the whole act, and in this, as in all similar cases, in order to arrive at the true intention of the Legislature, all the provisions of the law must be considered.

Proceeding then to the second, the only remaining section, I find that its terms, in its amended, as well as in its original, form, are wholly inconsistent with the construction which I have stated, and would otherwise adopt. After stating that the action “ shall be brought in the name of the personal representatives of the deceased person,” they declare that “ the amount recovered shall be for the exclusive benefit of the widow and next of kin, and shall be distributed to them in the proportions provided by law in relation to the distribution of personal property left by an intestate,” and that the jury shall estimate the damages “with reference to the pecuniary injury resulting from the death of the deceased, to such wife and next of kin.” It cannot be said, it seems to me, that there is any ambiguity whatever in these clauses. In my opinion they leave no room but for one interpretation, and as I am forced to understand them, they prove that the damages to be recovered have no reference whatever to the personal injuries of the deceased, but refer wholly to the pecuniary loss which his wife and next of kin shall be proved to have sustained ; that they are not given for injuries preceding the death, but only to satisfy a loss resulting from the death; that they are not given for a cause of action, which by force of the statute survives the death, but entirely for a new cause, which the death itself originates; and finally, that the damages recovered are not general assets, applicable as such to the payment of debts, but belong exclusively and absolutely to the wife and next of kin, to whom they are to be distributed. As their pecuniary loss is the sole measure of damages, so the satisfaction of that loss is the sole purpose to which the amount recovered can be applied.

It follows that in actions under the statute, the damages that may be recovered are limited to a mere indemnity, and in all cases where the damages are thus limited, I apprehend the facts, that there are persons entitled by law to claim the indemnity, and that they have sustained a loss justifying their claim, must be proved upon the trial in order to warrant a recovery; and that when these facts are not proved, the foundation of the action fails, and the complaint must be dismissed. These facts are in their n ature material and issuable, and in actions like the present are therefore, in my judgment, just as necessary to be proved upon the trial, and, consequently, to be averred in the complaint, as the death of the person injured, and the wrongful act, or neglect of the defendant as its primary cause. There are no such averments, however, in this complaint.

I observe in addition, that this case, although not exactly belonging to the same class, yet bears a strict analogy to those in which the right to maintain the action depends upon the proof of special damage, and in these cases the law is settled, that the special damage must be stated in the declaration or complaint, (Linden v. Graham, and cases ib. cit. 1 N. Y. Sup. C. Rep. 670.)

The pecuniary loss resulting to the wife and next of kin is as truly the cause of action, in actions like the present, as the special damage in those to which I have referred.

There is another objection raised by the demurrer, to which it is now proper to advert. It is that the plaintiff, as administrator, has not a legal capacity to sue; doubtless, meaning that if the action is maintainable at all, it should be brought in the name of the widow and next of kin, if such there are, as the real parties, in interest. But I agree "with the counsel of the plaintiff that the words, “ personal representatives,” in their proper legal signification, refer to those who represent the personal estate of the deceased; in other words, to executors or administrators, and that there are no reasons for attributing a different meaning to the words in the statute upon which this action is founded. On the contrary, as the power of distributing the amount recovered to the widow or next of kin, is not given to the court, it is only to the executor or administrator that it can properly belong. The damages, which as a fund he is bound to distribute, he is .entitled to receive; and to enable him to receive them, it is in his name that the action for their recovery must be brought. He is, moreover, the trustee of an express trust, which the statute creates, and hence the cestuis que trustent, although the real and sole parties in interest, are not necessary parties to the action (Code, § 110).

But although the action is properly brought in the name of the plaintiff as administrator, the complaint itself, for the reasons already given, I am obliged to say is fatally defective, and the demurrer must therefore be allowed. It is not to be denied that there is a seeming discrepancy between the two sections of the statute, but they are not irreconcilable, and I am bound to give them, if possible, a consistent interpretation. To perform that duty I must give effect to an intent which is expressed, over that which may be implied—to provisions which are clear and explicit, in preference to those, which, in a measure, are doubtful and obscure. It is a sound maxim of interpretation, that, “ In obsewis id quod minimum est speotamu/r.”

There must be judgment for the defendants, unless the plaintiff, within twenty days, shall elect to amend the complaint, and pay the costs of this trial, as the' Code requires me to call the hearing.

This order, on an appeal, taken to the General Term, and argued before all the judges, was affirmed; and the following opinion was then delivered by Hr. Justice Hoffman.

By the Court. Hoffman, J.

This is an appeal from an order of the j izdge at special term allowing a demurrer, with liberty to the plaintiffs to amend their complaint.

The complaint states that the plaintiff is the father of George R. Safford, late of Hew York, and that he has taken out letters of administration of his goods and chattels. That the defendants were owners of the steamboat Empire, and had the management thereof at the time of the injury to, and death of, the said George R. Safford, next set forth. That he was a passenger on board such steamboat on the 16th of July, 1853, and by the negligence and default of the defendants, such steamboat came in collision with a sloop, by which the steam escaped, and scalded and injured the said George R. Safford, so that by reason of the same he afterwards died. Judgment is then 'prayed for $5,000 of damages.

The demurrer was, 1st, that the cause of action did not survive to the administrator of the deceased, and the plaintiff has no legal capacity to sue therefor. 2d. That no facts are stated by which it can be determined that damages were sustained which are recoverable in this action, nor is there any allegation of damage; and 3d, generally, that the complaint does not state facts sufficient to constitute a cause of action.

The judge sustained the demurrer, substantially upon the ground that there was no right of action under the statute of 1847 (cli. 256), except upon the basis of a pecuniary damage sustained by the widow and next of kin of the deceased. That the damages were limited to an indemnity for such a loss. That facts showing such a loss must be proven, and must be averred in the complaint, or the foundation of the action fails, and it must be dismissed.

The statute, under which this action is brought, was passed on the 13th of December, 1847 (Sess. Laws, 1847, ch. 450), and was amended by an act of the 7th of April, 1849 (Sess. Laws, 1849, ch. 256).

The first act was entitled, “ An Act requiring compensation for causing death by wrongful act, neglect, or default.” It provided in the first section, that “ whenever the death of a person shall be caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not. ensued) have entitled the party injured to an action; then and in every such case, the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages.”

The second section of the act of 1847 was amended by the act of April, 1849, so as to read as follows : “ Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem [a] fair and just [compensation not exceeding $5,000], with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person.” Then follows a clause that every such action must be commenced within two years after the death of such person.

The only change made by the act of 1849 in the act of 1847 was by inserting the words above placed within brackets and italicised.

This act was no doubt framed upon that of the 9th and 10th Victoria, cap. 93. This was passed in August, 1846; and as before observed, our first act was passed in December, 1847.

The first four sections of the English statute are as follows :

“ 1. Whereas, no action at law is now maintainable against a person, who by his wrongful act, neglect, or default, may have caused the death of another person, and it is oftentimes right and expedient that the wrongdoer in such cases should be answerable in damages for the injury so caused by him. Be it, therefore, enacted, &c., that whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.

“ 2. That every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased, and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom, and for whose benefit, such action shall be brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided among the before mentioned parties, in such shares as the jury, by their verdict, shall find and direct.

“ 3. Provided always, and be it enacted, that not more than one action shall be for, and in respect of, the same subject matter of complaint, and that every such action shall be commenced within twelve calendar months after the death of such deceased person.

“ 4. That in every such action the plaintiff on the record shall be required, together with the declaration, to deliver to the defendant or his attorney, a full particular of the person or persons for whom, and in whose behalf, such action shall be brought, and of the nature of the claim in respect of which damages shall be sought to be recovered.”

In a case before Justice Parke, afterwards cited (which he stated he believed was the first under the English statute), he observed that there were great difficulties attending the construction of the statute, which could only be removed by a series of judicial decisions.

In the first place it is to be noticed, that, by the rules of the common law, before the statute, no action, could be maintained by the personal representatives of a deceased person for loss or damage resulting from his death. This is fully stated in the case of Carey v. The Berkshire R. R. Co., 1 Cushing, 475. (See 1 Sanders R. 216, n. 1; Baron Parke in Blake v. The Midland County R. R. Co., hereafter cited; Barber v. Bolton, 1 Campbell, 493 ; 1 M. & Selwyn, 408; Miller v. Umbehoven, 10 Serg. & Rawle, 31.)

On the other side, while the English law admitted of no action after death in cases of this nature, the civil and the Scotch law permitted it, and damages were given to the relations upon the ground of a solati/am.

The first case under the English statute was that of Ainsworth v. The S. E. R. W. Co. (11 Jurist, 758). An abstract of it may be found in a note to 1 Am. R. R., and Canal Cases, p. 446, n.

After this, some rulings, chiefly by single judges at nisiprius or chambers, took place, which are stated in the case of Blake hereafter noticed, but as they have little bearing upon the questions we are considering they are omitted.

The consideration of the tru6 construction of the statute then came before the Queen’s Bench (February, 1852) in the case of Blake v. The Midland Counties Railway Co., which is reported (21 L. Journal R. N. S. 233, and also 10 Law & Eq. R. 439). The suit was by the widow and administrator of a husband killed by an accident to the train in which he was travel-ling. It was admitted that there was negligence on the part of the defendants. For the purpose of damages, evidence was given of the average income of the deceased from the profits of mercantile business, and other circumstances of his situation.

The judge charged the jury, that upon the true construction of the act, the claim of the plaintiff must be limited to the pecuniary injury resulting to her from the death of her husband. Subsequently he stated, that at common law this action was not maintainable; that for his own part, he thought it very difficult to apply any other test but the pecuniary loss which the plaintiff had sustained by the death of her husband ; but that it was their duty to assess the damages, and that it was competent to them to give such damages as they might think proportioned to the injury sustained. The jury gave £4,000, which the judge reported, that'he considered too large, if the damages were to be calculated upon the principle of pecuniary compensation. A motion for a new trial was made on the ground of misdirection and excessive damages.

Coleridge, J., delivered the opinion of the court; and said that the important question was, whether the jury, in giving damages, were confined to injuries of which a pecuniary estimate may be made, or might add a solatium to the parties, in respect of the mental sufferings occasioned by the death. He proceeds, “ The title of the act may be some guide to its meaning, and it is, ‘ An act for compensating the families of persons killed by accident,’ not for compensating their wounded feelings. Reliance was placed upon the first section, which states in what cases the newly given action may be maintained, although death has ensued ; the argument being, that the party injured, if he had recovered, would have been entitled to a solatium, and therefore, his representative shall be so on his death. But it will be evident that this act does not transfer this- right of action to his representative, but gives to the representative a totally new right of action on different principles. The second section enacts, that in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom, and whose benefit, such action shall be brought. The measure of damages- is not the loss or suffering of the deceased, but the injury resulting from his death to his family. The language seems more appropriate to a loss of which some estimate may be made by calculation, than to an indefinite sum, independent of all pecuniary estimate, to soothe the feelings.”

A new trial was ordered.

It is impossible to avoid the conclusion, that under this decision, the rule which governs the measure of damages is the exclusive ground of the action, viz. a pecuniary loss to the family of the deceased. The judicial construction of the English act sheds no little light upon our own.

The only other construction which our statute admits, and upon which we have bestowed much attention, is this—that the first section, and the two first clauses of the second section, give a right of action to the personal representative, precisely in the cases and to the extent in which the deceased could have maintained a suit; and that the rule of damages then would be the amount which the jury would have given the deceased had he lived and brought the action. And in such a case, that pecuniary loss to the family was not to be considered. Next, that the action might proceed on the ground of such loss, and then the amount which the deceased might have recovered is to be laid out of view; so that, in cases in which the death of a party was really a benefit to his next of kin in a pecuniary view, still the action would lie on the basis of the right of the deceased—and where it was an injury, the action would proceed on that basis : that the two causes of action and rules of damages could not be united, but the party must proceed for one or the other.

Some expressions in the case of Baker v. Bailey, 16 Barb. 60, tend to support this view.

But after minutely considering the whole statute, we are of opinion that the cause or grounds of action cannot be thus separated and preserved distinct. The statute, it is not to be contested, creates a new action. It does not supply any new mode or form of continuing or transferring an existing right. The first section merely operates to vest this new right in the representative, wherever the deceased had any original right of action at his death, or, more properly, could have had, had he survived. It is such action which is spoken of in the first line of the second section, and also in a subsequent clause, when the parties for whose benefit it is to be brought are designated ; and then the act proceeds, that in every such action, the jury may give such damages as they shall deem a fair and just compensation (not exceeding $5,000), with reference to the pecuniary injury resulting from such death.

We consider, upon the whole, that the only ground upon which the action can rest, is the ground upon which the damages are to be recovered—that the prescription of the one ground or rule of damage has excluded every other, and thus rendered it indispensable, in order to support a suit under the statute, that pecuniary loss has resulted to the widow and next of kin.

We are also of opinion that the act may be interpreted so as to allow an action where there is a widow only, or next of kin only, as well as where both are in existence.

In the present case the complaint, upon these principles, is liable to the objections raised by the demurrer. There is not an allegation in it tending to show that any pecuniary injury or loss has arisen, or can arise, to any one by reason of the death of the party. As this is the only cause of action, the settled rule of pleading under the Code, demands that the facts constituting it should be set forth. Without saying how far it is necessary to go in such allegations, it may be stated, that at least the persons who have suffered, or may suffer such injury, should be named, with an averment that they had sustained a pecuniary loss to a certain amount from his death.

The fourth section of the English statute provides, that the plaintiff may be required to deliver a particular of the nature of the claim in respect of which damages shall be sought to be recovered. In BlalcSs case before cited, the court say an argument had been drawn from that clause, as if it required so much to be claimed for pecuniary damages, and so much for solatium. But these words will be abundantly satisfied by a statement of the manner in which the pecuniary loss to the different persons, for whom the action is brought, is alleged to have arisen.

In Murphy v. Kipp and Brown (1 Duer’s Reports, 659), this court refused to order a bill of particulars, stating by anticipation all the items, and the amount of each, which the court might hold would properly enter into the computation of damages. But this decision does not exclude the propriety of alleging a pecuniary loss, or some substantial facts on which it is asserted to arise.

The complaint should conform to the substance of the rule. It should show that there is living a widow, or next of kin, or both, and their names, with an averment that they had sustained a pecuniary loss or injury by the death of the party.

This complaint is defective in each of these points, and the order made at Special Term, allowing the demurrer, must be affirmed with costs.


text:
    Nicholls v. Nicholls.
    The court has no power to enforce a decree, that one of the parties to an action for a limited divorce deliver infant children of the marriage to the other, to whom their custody is awarded, by issuing process to the sheriff commanding him to take the bodies of the infants wherever they may be found, and deliver them to the party entitled to their custody. The remedy of the aggrieved party is by attachment against the other party, to enforce obedience to the decree, or by habeas corpus.
    At Chambers,
    March 25, 1854,
    before Duer, J.
   The application of the wife, the plaintiff, for a limited divorce had been denied, but the judge, in dismissing the complaint, had ordered her to deliver two infant children of the marriage to her husband, the defendant, to whom he awarded their care and custody. Upon this decree, and upon an affidavit of the defendant stating that he had been unable to discover where the children, or the plaintiff, were, and believed that she concealed them with the design of evading the order of the court, the counsel of the defendant moved that the process of the court might be issued to the sheriff, directing him to take the bodies of the infants wherever they might be found, and deliver them to the defendant. Held, that the court had no power to issue the process prayed for, and that the defendant must seek *’ his remedy by an attachment against the plaintiff, or by a habeas corpus. There was no precedent for such a general search-warrant as was asked for, and it would be contrary to settled principles to grant it. Motion denied.


text:
    Wright v. Jessup et al.

    The rule, that witnesses to be examined under a commission must be named in it, is never departed from, except under very special circumstances, and never when by reasonable diligence the names might have been ascertained.
    At Chambers,
    March 25, 1854,
    before Duer, J.
   Motion on the part of the plaintiff for a commission, to England to examine, without naming them, such witnesses as might be produced before the commissioners.. It appeared that the case had been at issue for some months, and had several times been noticed for trial. Held, that the general rule, that the witnesses must be named in the commission, was never departed from, except under very special circumstances, and never when by reasonable diligence the names might have been ascertained. Here the laches in making the motion was not excused in the affidavit on which it was founded. The motion was therefore denied, with costs.


text:
    Cook v. Chase.
    When a demurrer is interposed to a complaint containing two causes of action, of a nature that admits of their being united, but of one of which the court has no jurisdiction, it will be overruled if it is to the whole complaint, and assigns no cause of demurrer except that several causes of action are improperly united. In such a case, the demurrer should be limited to the cause of action of which the court has no jurisdiction.
    At Chambers,
    March 25, 1854,
    before Duer, J.
   Demdbbeb to complaint. The complaint set forth that the plaintiff had sold and delivered to the defendant certain building materials for the price of $1,500, on which there was still-due to him the sum of $1,059.97, for which amount he prayed judgment. The complaint also alleged, that for the amount of his claim the plaintiff had’ duly acquired a lien on certain dwelling-houses belonging to the defendant in the city of Brooklyn, and prayed that the lien might be enforced for a sale of the defendant’s interest in the said real estate, or of so much-thereof as would be sufficient to satisfy the debt. The defendant demurred' to' the whole complaint, but assigned as- the only ground of demurrer; that several causes of action had been improperly united.

Held, that had the demurrer been limited, to those parts of the complaint which related to the lien, and had assigned as the'ground of objection the want of jurisdiction in the court to enforce the lien, it must have been allowed; but that as it embraced the whole complaint, and specified no other objection than the improper union of several causes of action, it must be overruled. Granting the jurisdiction of the court, there was no objection to the form of the complaint, and certainly no such improper junction of distinct causes of action as was alleged. Demurrer overruled with $10 costs, but twenty days allowed to amend the demurrer or answer, unless the plaintiff should within ten days elect to amend the complaint by striking out all the allegations relative to the- lien—should plaintiff so elect, ten days thereafter allowed defendant to answer.


text:
    Loper and Davis v. Welch.
    In on action "by several plaintiffs to. recover for property sold and delivered, a complaint which states that the plaintiffs sold and delivered, is good, without averring that they were partners. Such a complaint states a case of joint ownership. Several persons may be joint owners of any kind of property, without being partners.
    At Chambers,
    March 25, 1854,
    before Duer, J.
   The complaint alleged that the plaintiff had bargained and sold to defendant, and at his special request, had delivered to one O’Brien, goods, merchandise, and building materials of the value of $340, and that there still remained due to them thereon the sum of $162.75, for which sum, with interest, they prayed judgment. The defendant demurred, and specified in the demurrer several grounds of objection, but the only one insisted on was that the complaint did not aver that the plaintiffs were partners, and as such had made the sale in question. Held, that such an averment is only necessary when the right of the plaintiffs to maintain the action depends upon their partnership, but as, without being partners, they might prove a joint ownership and joint contract, and upon such proof ■would be entitled to recover, the objection was untenable, and as the other objections were plainly frivolous, the plaintiffs were entitled to judgment. Demurrer overruled, and judgment for plaintiffs, with costs.


text:
    Clark v. Farley.
    A complaint in an action on contract for the recovery of money, is defective, if bo drawn as to leave it uncertain whether the plaintiff seeks to recover upon one or upon two causes of action; and if on two, unless it shows how much is claimed to be due on each, it will be required to be made more definite and certain.
    At Chambers,
    March 25, 1854,
    before Duer, J.
   Motion that the' complaint should he made more definite and certain. The complaint averred that the defendant was indebted to the plaintiff in the sum of $4,562.8, for money lent and advanced to him upon his request towards the building of two houses in Tenth street, and for money found due from the defendant to the plaintiff upon an account stated. Held, that the complaint was defective in not stating with .sufficient certainty whether the plaintiff sought to recover upon one or two causes of action, and if upon two, what sum was claimed to be due upon each. The motion was therefore granted, but plaintiff was permitted to amend without costs.


text:
    Shepherd, Assignee, v. Burt.
    An assignee, who brings an action to recover possession of property which, has been seized on an attachment at the suit of the creditor of the assignor, will not be compelled, under § 31Í of the Code, to file security for costs, on an allegation that the assignment is a fraud upon creditors, and the assignee is a party to the fraud unless there be such evidence of the truth of the allegation aa renders it highly probable, that the allegation is in accordance with the facts of the case. Under that section, it is entirely in the discretion of the court, in all cases, whether security shall be required or not.
    At Chambers,
    April 1, 1854,
    before Duer, J.
    This action was brought to recover damages for taking and carrying away certain goods which had formerly belonged to Mason the assignor, but which the complaint averred had passed to the plaintiff under the assignment. The defendant, a creditor of Mason, had seized the goods under an attachment, and now upon the ground that the assignment was fraudulent and void as against' creditors, and that the plaintiff was a party to the fraud, moved under § 317 of the Code as last amended, that the plaintiff should file security for costs.
   The judge said that he had considerable doubts whether the case was covered by the section, since the title of the plaintiff as a trustee was denied, and if the defendant prevailed there would be no estate or fund upon which the costs could be charged. He deemed it unnecessary, however, to decide that question, as he was clearly of opinion that whatever might have been the motives of the assignor, the facts disclosed by the affidavits were not such as could justify him in imputing bad faith to the plaintiff. The power of the court to require security, was purely discretionary, and ought not to be exercised unless the imputation of bad faith was rendered at least highly probable. Motion denied, with $5 costs. (Vide Darby v. Condit, 1 Duer, 549.)


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    Conklin v. Bishop.
    In an action, for the recovery of personal property, seized under an execution against a third person, the plaintiff in the execution, is entitled on applying, to be made a defendant, under § 122 of the Code.
    At Chambers,
    April 1, 1854,
    before Duer, J.
   This was an action to recover possession of a horse which the ■defendant, .a constable, had seized under an execution against one Brown, who held the possession when the levy was made. Cowan, the creditor in whose favor the execution was issued, now applied upon notice to the plaintiff to be made a party-defendant. Held, that the applicant, as asserting the title of Brown, had such an interest in the subject of the action, as entitled him to be made a defendant, under § 122 of the Code as amended. Ordered that complaint be amended by the insertion of Cowan’s name as defendant.

Approved on consultation.


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    Peck, Assignee, v. Ward.

      A complaint cannot be amended, by the introduction of new defendants, and of allegations of fact constituting a new and distinct cause of action, if the new defendants cannot be affected by the original cause of action, or are not necessary parties to its complete determination.
    At Chambers,
    April 1, 1854,
    before Duer, J.
    Motion on the part of the plaintiff to amend complaint by inserting averments in relation to a subject not referred to in the original complaint, and by introducing two other persons as defendants. Held, that as the proposed amendments embraced a new and distinct cause of action and-introduced persons as defendants who had no interest in the matters in controversy as set forth in the original complaint, and were not necessary parties to the complete determination of any question which that controversy involved, the motion must be denied, and the plaintiff be left to seek his remedy in a separate action. The decision was founded mainly upon the construction given by the judge to § 118 of the Code, and to the last clause in § 167. Motion denied, with $10 costs.
    Approved on consultation.

      C. W Prentiss, for plaintiff.

      E. Sandford, for defendant.


text:
    New York Floating Derrick Co. v. New Jersey Oil Co.
    A resident of tins State may maintain an action against a corporation created by the laws of any other State upon any cause of action.
    A corporation has power to do acts out of the territorial jurisdiction of the State by which it was created, unless expressly restrained by its charter, or the laws of the country in which it may attempt to act. Such restriction will not be presumed, but must be shown, when relied upon, as a bar to an action for not performing its contracts.
    A promissory note, made by a corporation out of the State by which it was created, will be deemed to be valid and obligatory, unless facts be shown which establish its invalidity.
    Special Term,
    April 1, 1854,
    before Duer, J.
    • This case came before the court on a demurrer to a complaint. The pleadings are as follows:
    The above-named plaintiffs, by Charles A. Peabody, their attorney, say, that they are a corporation, duly chartered under and by the laws of the State of Hew York, and pursuant to an act of the Legislature of said State, entitled “ An Act to Authorize the Formation of Corporations for Manufacturing, Mining, Mechanical, or Chemical Purposes,” passed February 17, A.D. 1848.
    And they further say, on information and belief, that the said defendants are a corporation, duly chartered under and by the laws of the State of Hew Jersey, and pursuant to an act of the Legislature of said State, entitled “ An Act to Authorize the Establishment and to Prosecute the Duties of Manufacturing Companies,” approved February 25th, 1846, and the several acts supplemental thereto.
    And plaintiffs further say, on information and belief, that the said defendants, being such corporation as aforesaid, on or about the 29th day of July, 1853, at the city of Hew York, for value received, made their certain promissory note, in writing, of which the following is a copy, and delivered the same to the said plaintiffs:
    Office Hew Jersey Oil Co. )
    Hew York, July 29th, 1853. I
    Dollars 377TVo*
    Hinety days after date the Hew Jersey Oil Co. promise to pay to the order of the Hew York Floating Derrick Op. three hundred and seventy-seven TV<r dollars, value received.
    O. Holmes, Prest.
    E. F. Jsinmrs, Treas.
    And the plaintiffs, on information and belief, further say, that the said promissory note is now due and remains wholly unpaid, and that they, the said plaintiffs, are the true and lawful holders and owners thereof. That there is due to them upon said promissory note the sum of three hundred and seventy-seven dollars and seventy-five cents, with interest thereon from the 30th day of October, 1853, for which said sum of three hundred and seventy-seven dollars and seventy-five cents, with interest as aforesaid, the plaintiffs demand judgment, besides the costs of this action.
    The defendants in this action demur to the complaint therein, and hereby set forth the reasons and assign the causes of such demurrer, and their grounds of objection to the said complaint, as follows, to wit:
    I. The said complaint, as appears on the face thereof, does not state facts sufficient to constitute a cause of action against the said defendants, for the following reasons: 1. It appears from the said' complaint that the promissory note therein alleged to have been made by the defendants, was so made at the city of Hew York, which was and is an act they could not do, or perform, by law in the State of Hew York, out of the State of Hew Jersey. 2. It does not affirmatively appear, in and by the said complaint, that the said' defendants could, or that they were, or are authorized or empowered by the act of the Legislature of the State of Hew Jersey, in the said complaint mentioned, or by other laws of the said State, to make and execute the said promissory note in the manner in the said complaint mentioned. 3. The facts constituting the cause or nature of the said complaint are not alleged or stated therein as facts according to the direction of the Code of Procedure, but the facts therein alluded to (except that the plaintiffs are a corporation) are stated on the mere information and belief of the said plaintiffs. 4. There are no facts stated in the said complaint on which to found the judgment therein demanded.
    II. The said plaintiffs, as appears from the said complaint, have no legal capacity to sue the defendants in this action, inasmuch as there is no authority in law for a corporation, such as the plaintiffs are alleged to be, to sue or bring an action in this court against a corporation, such as the defendants are stated to be, chartered by or under the laws of the State of Hew Jersey, or a foreign corporation.
    HI. It appears on the face of the said complaint that this honorable court has no jurisdiction of the subject of this action. 1. As the plaintiffs are a corporation, and not a natural person, and the defendants a foreign corporation. 2. Because as the plaintiffs are a corporation, and not a natural person, it does not appear, and cannot be said, whether they are, or are not, residents of the State of Hew York.
    IY. It appears on the face of the complaint that this honorable court has no jurisdiction of the person or corporate capacity of the defendants, as, 1. It does not appear that the defendants were, or are, authorized to make the note, stated in the complaint, in this State. 2. What is stated in the said complaint is on the information and belief only of the plaintiffs, except as to the fact of the plaintiffs being a corporation. 3. It does not appear from the complaint that the plaintiffs have the right to sue the defendants, or that the defendants are liable to be sued by the plaintiffs in this court for the matters stated in the complaint. 4. It appears that this court is without jurisdiction in or over the case stated in the complaint.
    Wherefore, the defendants demand judgment of this court in the premises, and that the said complaint be dismissed with costs.

      R. H. Shannon, for the defendants,
    argued in support of the objections to the complaint specially assigned as causes of demurrer. He cited Story on Pleading, § 74; 10 B. & Cress. 128.

      C. A. Peabody, for plaintiffs, made and argued the following points.

      I. Complaint states facts sufficient to constitute a cause of action in the respects in which it is alleged to be insufficient. 1. Defendants had power, by their agents, to make out of Hew Jersey, in Hew York, the note on which this action is brought. Corporations have power to do acts out of the territory for which they are incorporated, or under the laws of which they hold their corporate rights. This is the case with all corpora-tions unless expressly restrained by their charters or other laws. (Angell & Ames on Corporations, § 273, 275; Bank of Augusta v. Earle, 13 Peters R. 521 or 519; Tombigbee R. R. Co. v. Kneeland, 4 Howard (U. S.) R. 14.) 2. The authority of the State constituting the corporations, as to the manner in which it may make a note, need not appear. The authority to make a note is not questioned. The manner in which it may make it need not be pleaded. If the defendants could make a note in Hew York, the correctness of the manner in which this is made is to be tried by the laws of Hew York. (Angell & Ames on Corporations, § 293, 294, and numerous cases there cited.) 3. The question of the power of defendants to make a note is not raised by the demurrer. This power is general, and incident to corporations generally within the scope of their corporate purposes (Story on Bills, § 97, p. 94; Id. § 53, p. 58 ; Attorney Genl. v. Life and Fire Ins. Co., 9 Paige, 470), and express authority from the charter or any source is not necessary. This power being general, .if defendants’ case be an exception the fact must be pleaded by them. (Angell & Ames on Corporations, § 236, 257, 267.) If there be any objection to its validity, such as that it was made for purposes not within the scope of the corporate powers of defendants, or in the manner authorized by them, or any other objection, such as those raised by the demurrer, or otherwise, the fact must be pleaded by defendants. 1. Because it is most particularly within their own knowledge. 2. Because the case of the defendants is an exception to the general rule. But the sufficiency of this note, in matter of form, depends on the law of the place where it was made (Hew York), which need not be pleaded, as courts take judicial notice of it. The facts are pleaded according to the Code, and are sufficient to procure judgment.
    H. and HI. The errors assigned under the second and third grand divisions relate entirely to the jurisdiction, and are sufficiently answered by a paragraph, respecting the jurisdiction of this court, taken from the statute regulating its jurisdiction (Code,- § 33), which expressly gives jurisdiction in “actions against corporations created by or under the laws of any other State, government, or country.” This is a court of general jurisdiction, and the facts giving jurisdiction need not be pleaded. If it have it not, -the facts should come from the defendants to show its want of jurisdiction.
    IY. The matters in the fourth division of the demurrer are merely repetitions of matters previously stated under other heads, and are sufficiently replied to above in the points relative to those heads. So far as they are otherwise they are unimportant.
   Duer, J.

I am of opinion that the points made, and the authorities referred to, by the counsel for the plaintiff, furnish a complete answer to all the objections that have been taken to the complaint. The demurrer is, therefore, overruled, and the plaintiffs- must have judgment, unless the defendants file an affidavit of merits within twenty days, put in an answer, and pay the costs of the demurrer.


author: Bosworth, J.

text:
    Croden v. Drew.
    When the complaint states a cause of action arising on contract, and prays no relief except for judgment for the recovery of money only, the summons should be in the form prescribed by sub. 1 of § 129 of the Code. In such a case, when an assessment of damages is necessary to enable a plaintiff to take judgment, and no answer has been put in, they must be assessed by the Clerk of the Court (§ 246, Sub. 1).
    If assessed by a referee appointed by the court, a judgment entered on such an assessment will be set aside as irregular.
    An action “ for the recovery of money only,” is one in which no relief is sought except a judgment, that the plaintiff recover a sum stated, or to be ascertained, in dollars and cents.
    At Chambers,
    April 22, 1854.

      Br written agreement, dated April 30, 1853, between Drew and Michael Duncan, signed by both of them, Drew agreed to sell and convey a house and lot to Duncan for §8,500, the house to be fully finished by Drew, but when, the contract did not state. Duncan was to pay $300 down, §200 on the 3d of May, and on the delivery of the deed $1,500 cash, and $500 in stock, the balance, $6,000, being the amount of a mortgage then on the premises. Duncan was to pay by satisfying the mortgage. There was no time named for the delivery of the deed. The §300 was paid down, no more has been paid. May 31, 1853, Duncan assigned the agreement to plaintiff, who commenced this action, January 11, 1851, by service of a summons and complaint. The complaint sets out the contract and assignment of it; alleges a refusal by Drew to convey the house and lot, and demands judgment “for damages by reason of the non-fulfilment of the contract to the amount of $1,000, and also for the sum of $300, paid to the plaintiff on account of the purchase money of said premises, with interest from April 30, 1853.” The summons was-in the form prescribed by sub. 2, of § 129, of the Code. The defendant did not appear. When the time to answer expired, the plaintiff applied to the court for the relief demanded in his complaint. A reference was ordered to ascertain the damages, and the referee allowed as damages the $300 which had been paid on the contract, with interest, and on his report, judgment was entered for the plaintiff for $335.93, including costs. The defendant now' moves to set aside the judgment for irregularity, on the ground that the summons should have been in the form prescribed by sub. 1, of § 129, of the Code. The position was also taken that the complaint did not state facts sufficient to constitute a cause of action.

      Busteed and Wilson, for defendant.

      Malcolm Campbell, for plaintiff.
   Bosworth, J.

This is an action arising on contract. It is an action to recover money only. BTo judgment is prayed, except for the recovery of two sums, one of §1,000 and one of $300, and interest. Eb relief beyond that is sought.

A breach of the contract is stated as the ground of recovery. The contract is not one by which the defendant promises to pay money. He does not promise- to pay money in any event, and full performance of it would not require the payment of any. Still it is an action arising ex contractu, or on contract. The Code does not require that the contract should be one stipulating by its terms for the payment of money, but only that the action should be one arising on contract, and that only money should be sought to be recovered. The theory of the complaint is, that by reason of the contract, and the breach of it, the defendant is liable to pay, and the plaintiff is entitled to demand, the two sums of $1,000 and $300.

If this be the correct view of the action, and of what is sought to be recovered in it, the Code is imperative that the clerk shall ascertain and assess the damages (§ 246, sub. 1). That subdivision contemplates that the clerk shall assess damages in other cases than “on an instrument for the payment of money only.” This is an action for the “ recovery of money only,” within the meaning of those words as used in § 304, sub. 4, and § 53, sub. 1, § 310, § 227, and § 253.

This case is distinguishable from West v. Brewster, 1 Duer S. C. R., p. 647. In the latter case there was a prayer for a judgment that the defendant account, and if such a judgment may be had under the Code, then the action was for something besides the recovery of money only, notwithstanding that only was the ultimate result sought to be secured. In West v. Brewster, as the complaint was framed, the costs would probably be in the discretion of the court (Code, § 304, 305, 306), and the action would be triable by the court (§ 253, 254). Tiiis action, if put at issue, would necessarily be triable by a jury, unless such a trial was waived, or the action was referred.

I think the form of the summons erroneous. If correct in this view, this is an action in which the Code requires that the damages, if any assessment was necessary, should have been assessed by the clerk, and it was irregular to enter a judgment otherwise than as authorized by the Code. Still I think there are plausible grounds for construing sub. 1 of § 129, to mean by “ contract,” as there used, a contract by which a party promises to pay money, and to refer to actions brought to recover only the naoney so promised to be paid. The contract need not specify the sum to be paid, nor be written. It would, thus construed, include the class of actions heretofore brought upon a quantum meruit, for goods sold, services performed, and all other contracts by which a party is bound to pay a sum certain, or what the law on the facts proved deems to be reasonable.

Even the latter construction would give the clerk the power to assess damages in a much larger class of cases, than was allowable by the pre-existing law. (2 R. S. 356, § 2; Code, § 246, sub. 1.)

But the language of the Code seems too explicit to justify such a construction as last suggested. The plaintiff’s proceedings were therefore irregular. The defendant, on stipulating not to bring any action by reason of the levy of the execution, may have an order setting it aside, and vacating the judgment, with liberty to answer or demur to the complaint in ten days, and the order must provide that the plaintiff be at liberty to amend his summons and notice the cause for trial for the next May term. The terms of this order are fixed upon the basis, that the plaintiff’s attorney is irregular, but not so palpably so, that he ought to be subjected to any costs from which the court can exempt a party, whose proceedings, though irregular, have been taken in good faith. Whether the complaint does or does not state facts sufficient to constitute a cause of action, is a question which does not affect the regularity of the proceedings in entering the judgment, and will not be decided on this motion. (The other judges, on consultation, concurred.)


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    Farrand v. Herbeson.
    An answer which contains no new matter, but merely denies some of the allegations of the complaint, cannot be amended as a matter of course. No pleading can be so amended, unless an answer or demurrer to it is allowed by the Code. Amending such a pleading is a nullity. Such an answer 'so amended, after the cause is noticed for trial, may be disregarded, and an inquest, otherwise regular, will not be set aside because it was taken without returning the amended answer.
    (Before Oaklet, O. J., Ddeb, Campbell, Boswobth, and Slosson, J.J..)
    April 22, 1854
    This is an appeal from an order denying a motion to set aside an inquest. ' The motion was made solely on the ground that the inquest was irregularly taken. The defendant’s answer contained no new matter, but merely denied some of the allegations of the complaint. The plaintiff, on the answer being put in, noticed the cause for trial. On the first day of the term for which it was noticed, the defendant served an amended answer, such service being within twenty days after the original answer was put in. It was in all respects essentially like the original answer, the differences being merely ^colorable. The plaintiff did not return the amended answer, but treated it as a nullity, and took an inquest, no affidavit of merits having been, filed or served. The defendant moved to set aside the inquest as irregular, on the ground that he had a right to amend his answer as a matter of course, and that such an amendment rendered the notice of trial which had been served wholly nugatory. The motion was denied, and from the order denying the motion, he appealed to the General Term.

      J. E. Carey, for appellant.

      Beck and M'Adam, for respondent.
   By the Court. Bosworth, J.

The rules of this court, and those of the Supreme Court, in force at the time the Code took effect, were substantially alike, so far as they related to amendments of pleadings as a matter of course. They provided— first, “ that a plaintiff may at any time before the default for not replying shall be entered, if the plea shall be a special plea, or a plea in abatement, or within twenty days after service of a copy of the plea, if it shall be the general issue, amend his declaration;” second, "that, after plea, either party may, before default for not answering shall be entered, amend the pleading to be answered ; and where there shall be a demurrer to a declaration or' other pleading, such pleading may be amended at any time before the default for not joining in demurrer shall be enteredthird, “ If the defendant shall plead the general issue, the cause shall be at issue, unless the plaintiff shall within twenty days amend his declaration; and if either party shall in pleading in any degree, after the plea, tender an issue to the contrary, and if the opposite party shall not demur to the pleading, within twenty days after service of a copy thereof, the cause shall in each of these cases be deemed at issue.” (Supreme Court Rules of 1845, 23 and 27; of 1847, 22 and 25; Superior Court Rules of 1843, 32 and 34.)

The only essential difference between the rules of the courts, bearing on this subject, related to the time given to plead, demur, or reply. Under none of those rules could a plea of the general issue be amended as a matter of course. If the general issue was pleaded, the plaintiff could immediately notice the cause for trial. If the answer in this case had denied the allegations of the complaint, it would, in legal effect, have been equivalent to the old plea of the general issue.

§ 469 of the Code declares, that the present rules and practice of the courts, in civil actions, inconsistent with this act (the Code) are abrogated; but where consistent with ■ this act, they shall continue in force, subject to the power of the respective courts to relax, modify, or alter the same.”

§ 172 provides, that “ any pleading may be at once amended by the party of course, without costs, and without prejudice to the proceedings already had, at any time before the period for answering it expires, or it can be so amended at any time within twenty days after the service of the answer or de murrer to such pleading,” &c.

The pleading amended, or attempted to be, was an answer denying some of the allegations of the complaint, but setting up no new matter. The Code gives no time to answer such a pleading, for it contains nothing to be answered. It .could not be demurred to, for the reason that it did not contain new matter constituting a counter-claim. (Quin v. Chambers, 1 Duer S. C. R. 673.)

The amendment made was merely colorable. It put no additional fact in issue. The legal effect of the two answers was the same, and they were nearly identical in form. If it had properly denied every allegation of the complaint, it would have been in effect the old plea of the general issue. Such a plea was not amendable as a matter of course. It is not a pleading which the Code authorizes to be amended as a matter of course. The amendment, being wholly unauthorized by the Code, it would seem to follow that the plaintiff was at liberty to treat it as a nullity. (Cowles v. Costee, 6 Hill, 550.)

This case is distinguishable from that of Griffin v. Cohen and Others, 8 How. P. R. 451.

In the latter, the answer, besides denying all the allegations of the complaint, set up new matter.' The statement made of that case does not show whether the new matter set up constituted a counter-claim. That it did is to be inferred from the fact, that the order made gave the plaintiff twenty days to reply to the amended answer (Id. 454), and no answer can be replied to except one which sets up a counter-claim (Code, § 168). The amended answer was served before the time for answering it had expired.

But it is insisted, that although the amendment was irregular and in bad faith, the plaintiff could not treat it as a nullity, and take an inquest without returning the amended answer (Code, § 172).

It may be conceded, that if the defendant had a right to amend, and the only question was, whether it was made for the purpose of delay, and to throw the plaintiff over the term, the plaintiff should not be permitted to decide this preliminarily for himself, and drive the other party to test the accuracy of his judgment, by a motion to avoid a proceeding taken on the assumption that the motive was to delay.

But when there is no law or practice authorizing a party to amend such a pleading at all, as a matter of course, and the amendment is not merely irregular, but is unwarranted by preexisting practice or any provision of the Code, the plaintiff may treat it, as it is, as a nullity. We think the order appealed from was not erroneous, and it must be affirmed.