text:
    Fabbricotti v. Launitz.
    Matter is irrelevant or redundant in a pleading, which, found in connexion with pertinent allegations, has no bearing on the subject matter of the controversy, and cannot affect the decision of the cause.
    If the whole pleading, e. g. an answer is no defence, it is insufficient, and may be demurred to. It is not irrelevant, within the meaning of the code.
    If it be a sham answer, it may be stricken out on motion under a different section of the code, ( § 152.)

    In an action by the payee to recover a note given for the price of goods sold, the defendant may recover bis damages occasioned by the non-delivery of the goods by the seller at the time stipulated.

      He is not precluded, by the fact that he has commenced a suit against the seller, from recovering such damages.
    But he will be compelled to elect, between his own suit and the recoupment claimed ; and if he elect the latter, his suit will be stayed.
    June 7th, 1851.
    The plaintiff sued upon two promissory notes, drawn in his favor by the defendant.
    The defendant in his answer admitted the making of the notes, but stated that they were given in part payment for marble, which the plaintiff, by a written agreement, engaged to deliver to him at certain times therein specified; that the defendant is a sculptor, and was employed by the state of Kentucky to execute a piece of statuary, on or before a certain day, under heavy penalties ; that the plaintiff well knew the fact of the defendant’s having been employed by the state of Kentucky, and that the marble was selected by him for the purpose of such statuary ; that by reason of the plaintiff’s want of punctuality, he, the defendant, had sustained great loss and damage, the particulars of which are stated in the answer. And he claimed to recover damages against the claim made on the notes. It also appeared from the answer, that the defendant had commenced an action against the plaintiff for the same damages set up in the answer.
    A motion was now made on behalf of the plaintiff, to strikeout the whole of the answer, excepting that part which admitted the making of the notes, as irrelevant and redundant under the one hundred and sixtieth section of the code. Three justices of the court concurred in the decision.

      B. X. M. Bcmiow, for the plaintiff.

      W. Packard, for the defendants.

       See Brown v. Jenison, ante, page 732.

   Mason, J.

This motion proceeds on a misapprehension of the 'meaning of the word a irrelevant,” as used in the 160th section of the code. Matter is irrelevant in a pleading which has no bearing on the subject matter of the controversy, and cannot affect the decision of the court. But it is implied that independently of the irrelevant matter, the plaintiff has stated no sufficient cause of action or the defendant a valid defence. If the complaint does not state a case on which, if uncontradicted, the plaintiff has a right to recover, the defendant must- present his objection by demurrer, and not by motion to strike out the complaint as irrelevant, and the same rule is applicable to an answer. If the whole matter of the answer is no defence to the plaintiff’s claim, the answer is insufficient and not irrelevant, in the meaning of the code. The objection in such case is, not that unimportant matter, or matter having no bearing on the controversy, is mixed up with, or stated in addition to that which is material, but that the whole is entirely unavailing, and this objection can only be taken by demurrer, unless the answer is a sham answer, and then by section 152, it may be stricken out on motion. It is true, that under the old chancery system, a plaintiff might except to the answer for impertinence, when he considered that the matter set up was no defence to the case stated by the bill. But that was allowed because a demurrer could not be interposed to an answer, and the plaintiff could in no other way obtain the opinion of the court as to the materiality of such matter, until the court came to a hearing on the pleadings or on the pleadings and proofs. But under the code, a demurrer is allowed to an answer, as well as to a complaint. The plaintiff in this case, therefore, should have demurred to the answer, instead of applying to strike it out as irrelevant.

It must not be inferred, however, that a demurrer would be sustained to this answer. The defendant certainly has a right to recoup in damages, against the plaintiff’s claim, by reason of the marble not having been delivered in proper season; and if he has set forth sufficient facts to entitle him to recover, a demurrer to the answer would be overruled. I fully agree with the rule laid down in Britton v. Turner, (6 Hew Hampsh. 481,) that a defendant cannot recover and also have a cross action for the same matter. But the mere fact of his having commenced an action for damages, which has not proceeded to trial or judgment, is not necessarily a bar to his setting up the same matter in the answer by way of recoupment. Circumstances may occur after the commencement of such an action, which render it ineffectual, and the setting up of his damages in this way in an answer to a claim for non-payment of the moneys stipulated in the contract, may he the only effectual mode in which he may be able to obtain compensation for the damages sustained by the failure on the part of the plaintiff.

The affidavit of the defendant on this motion is designed to present such a state of facts. It states that he is fearful lest by reason of the plaintiff’s contemplated removal from the county, he may not be able to collect any sum which he may recover in the action he has instituted for damages. He ought not, therefore, to be jxrevented from reducing or defeating the plaintiff’s recovery against him in this suit, by way of recoupment of damages.

But he may be put to his election, either to proceed in the suit he has instituted, or to coniine himself to his recoupment in the present action. If he elect the former, then he may be prohibited from setting up the same matter in this suit; if the latter, then the proceedings in the former action may be stayed. At any rate, the plaintiff in this action is at liberty to make such a motion on proper affidavits as he may be advised.

The present motion, however, must be denied, but without costs, as the point is new, and involved in some uncertainty.


source: Caselaw Access Project

license: Public Domain

text:
    Delafield and others v. Wright and Dardin.
    The jurisdiction of this court is defined and limited by the code of procedure.
    In actions against joint debtors, the court has not jurisdiction, unless all are residents of the city, or the summons has been served personally on all.
    The objection may be taken at any stage of the cause when the fact appears, and it may be proved at the trial, or by affidavits on a proper motion. It is not waived by omitting to set it up by demurrer or answer.
    May 1, 1851.
    This suit was brought to trial before Dube, J., without a jury. The action was on a promissory note made by both defendants. Wright alone appeared and answered. The judge decided against the defence interposed. It was then insisted by Wright that the court had no jurisdiction of the case, and the fact was admitted by the plaintiffs that Dardin was not a resident, and had not been personally served with any process in the suit.

      J. Anthem, for the plaintiffs.

      A. I. Robertson and R. Emmet, for the defendant.
   Duer, J. (With the concurrence of two other justices.)

It was alleged upon the part of the defendant Wright, that no summons had been personally served upon the defendant Dardin, and that he, Dardin, was not at the commencement of this suit nor is he now a resident of this city, and upon this ground it was contended that the court has not acquired jurisdiction of the cause, and that the complaint must therefore be dismissed.

The facts upon which this objection to the jurisdiction of the court was rested were admitted by the counsel for the plaintiffs.

The question which the objection involves has not hitherto been decided by the court at a general term, but all its judges in their decisions at chambers have uniformly acted upon the opinion that the power and jurisdiction of the court are defined and limited by the provisions of the code, and consequently that it has no jurisdiction in actions against joint debtors, unless all are residents of the city, or the summons has been served personally upon all, the word “ personally ” being understood in its strict and appropriate sense.

It is this construction of the code that I hold myself bound to follow, and although the objection to the jurisdiction of the court has not been taken by demurrer or answer, yet by the express words of § 148 of the code, this omission is not to be deemed a waiver, and the same force must therefore be allowed to the objection now, as if it had been taken in the answer, and the facts had been admitted in the reply. As I construe § 148, the objection whether appearing on the pleadings or depending upon extrinsic proof, may now be taken in any stage of the cause, and when depending upon extrinsic facts may be supported by affidavits when the proper motion is made at' chambers or by evidence when the dismissal of the complaint is asked for upon a trial or hearing.

Nor have I any right to say, that the defendant Wright, by putting in a separate answer, has elected to treat the action as commenced and prosecuted against himself alone, and, therefore, warranting a separate judgment. He had a right to put in a separate answer.

And the terms of the answer are not at all different from what they might have been, had Dardin appeared to the action as well as himself. It is entitled against both, and, in the body, the words “ the said defendants ” frequently occur. Had it been otherwise, had it plainly appeared, upon the face of his answer, that he considered himself the sole defendant, I do not think that his error, or that of his counsel, would have precluded him from taking the objection upon which he now insists.

When the proceeding is, in its form, a separate suit against one only of two or more joint debtors, and he neglects to take the objection, by demurrer or answer, of the want of proper parties, I do not at all doubt, that a judgment against him alone may be regularly entered, even where the joint nature of the contract appears upon the face of the complaint; and this position may be considered as fully sustained by the cases to which the counsel for the plaintiffs referred. (Whelpdale’s case, 5 Rep. 119; Roe v. Abbott, Cowper 832.) But all the authorities, including the very cases referred to, show that a several judgment would be certainly erroneous, where all the debtors are parties to the suit, and it is against all that by the very terms of the declaration or complaint, a judgment is demanded.

It was suggested, that, in order to warrant a separate judgment in the present case, the complaint may be amended by striking out the name of Dardin as a defendant; but such an amendment could only be granted upon payment of all the costs of the defendant, and with liberty to him to answer or demur to the amended complaint. It is plain, that the plaintiffs would not be at all benefited by allowing an amendment upon these terms, since the fatal objection of the non-joinder of Dardin would certainly be taken. The complaint must, therefore, be dismissed for want of jurisdiction.


author: Oakley, Ch. J.,

text:
    Waterbury v. Westervelt.
    Where the judge at the trial, reserves for further consideration the questions of law arising upon the trial or verdict, and they are subsequently disposed of at the special term, the successful party is entitled to recover for such term, the fee prescribed by the code for the trial of an issue of law.
    He is so entitled, although the cause was not placed on the calendar, and was heard on the minutes of the clerk, without any case or bill of exceptions.
    Dec. 21, 1850.
    At the trial in October, the jury found specially on certain propositions submitted by the judge. ¡No judgment was given on the verdict. At the December special term, the plaintiff, on notice, applied to the judge holding the term, who rendered judgment on the verdict in favor of the plaintiff. ¡No‘ case or bill of exceptions had been prepared, and the cause was not placed on the calendar of law issues. The motion was made on the verdict as contained in the minutes. The question arose whether the plaintiff can tax for the trial of an issue of law, under the third subdivision of section 307, of the code of procedure.
    EllAs, Eurrill, <& Davison, for the plaintiff.

      Brown & Mathews, for the defendant.
   Oakley, Ch. J.,

with the concurrenee of Saxdfobd and Paine, J. J., held that the plaintiff was entitled to the fee of fifteen dollars allowed by the third subdivision, for the trial of an issue at law.


author: By the Court.

text:
    Megrath and Hasbrouck v. Van Wyck.
    An order that the plaintiff pay the defendant’s costs subsequent to an offer to take judgment under section 385 of the code, is not properly any part of the judgment to be entered in the action.
    It may be enforced under the act of 1847, by execution.
    Every order in an action, which passes upon and determines a positive legal right of either party, is appealable, under the second subdivision of section 349 of the code.
    In this and the like sections, the “merits" mean the strict legal rights of the parties, as distinguished from mere questions of practice, which every court regulates for itself, and from matters which depend upon the discretion or favor of the court.
    An order, granting to the defendant costs of the suit, subsequent to an offer under section 385, involves some part of the merits of the action, and is appealable.
    An offer to allow the plaintiff to take judgment, under section 385 of the code, need not contain an offer on the subject of costs to that time. On entering judgment upon the offer, the plaintiff is of course entitled to costs, by section 303.
    (Before Oaklet, Ch. J., and Sandfobd and Paine, J J.)
    Jan. 11 and 18, 1851.
    This was an appeal from an order at chambers. The suit was brought to recover for oil sold and delivered, for which the plaintiff claimed $259 16. After the defendant appeared, his attorney, on the 24th of October, 1849, served on the plaintiff’s attorney, an offer in writing, that the plaintiff might take judgment against him in the action, for the sum of $238 40. The plaintiff did not accept the offer. The cause was tried in December, 1850, and a verdict rendered for the plaintiff, for $229 71, with interest from Hay 11th, 1849, which interest was $7 27. The defendant moved for an order, that the plaintiff pay his costs subsequent to the offer, which order was granted, and the plaintiff thereupon appealed.
    On the appeal being moved, the defendant insisted that the order was not appealable, and the court heard this point argued, before the hearing of the appeal. On its being decided at a subsequent day, that the order was appealable, the merits of the question were heard. Both decisions are reported as if made at the same time.

      Hcnneyn & McKmsbry., for the plaintiffs.

      Cutler <& Townsend, for the defendant.
   By the Court.

Is this order appealable under section three hundred and forty-nine of the code of procedure ? If it were properly a part of the judgment, it would come up for review on an appeal from the judgment; but we think it is not. The plaintiffs still recover a judgment for their verdict, with the costs accrued at the time of the offer. The defendant’s costs directed to be paid by this offer are collectible by force of the order, under the act of 1847. (2 Laws of 1847, page 491; 2 Sand. E. 658.) *

Considered as an order simply, it does not fall within the first, third, or fourth classes of orders from which an appeal is allowed. Does it involve the merits of the action or any part thereof? The most sensible definition we have seen on this subject, is that given by Selden, J., in the general term of the supreme court in the seventh district, in the case of St. John v. West, 4 How. Pr. E. 329, 332. He says the word “ merits ” in these and like sections of the code, should be understood as meaning the strict legal rights of the parties, as contra-distinguished from those mere questions of practice which every court regulates for itself, and from all matters which depend upon the discretion or favor of the court. This will give an appeal from every order which passes upon and determines any positive legal right of either party, and deny it in all other cases. We have no hesitation in adopting this construction, as fully carrying out the intent of the code; and we may remark, that the commissioners on pleading and practice declared their intention to be to make the actual and final determination of a matter involving a substantial right, the test of an appealable order or judgment. (Eeport of 1848, p. 19.)

This order involved a substantial legal right, and is therefore the subject of an appeal.

2. The plaintiffs insist the order was wrong, because the defendant’s offer was silent as to costs, and if they had filed it they could have entered judgment only for the sum mentioned in it, which is less than the verdict with the costs to the time of the offer.

We think the plaintiff’s construction of the act is erroneous. The section (three hundred and eighty-five) is silent as to costs, both in the offer and the judgment thereon. The offer is to contain a sum or a relief, for which judgment is to be entered. Then section three hundred and three applies, and gives to the plaintiff upon such judgment, the costs of suit. If the suit were one for specific performance, and the offer were for a judgment of performance simply, there is no doubt on entering such judgment the clerk would be bound to insert in the entry the allowance of costs. And the form of the offer must be the same in an action to recover money only. If it be necessary to insert in the offer the allowance of costs in the latter instance, it must be in the former. We think the statute does not require it in either, and the order appealed from must be affirmed.


text:
    La Forge v. Chilson and Williamson.
    When an offer is made by one or more defendants, that the plaintiff may take judgment against them for the sum or to the effect therein specified, pursuant to section three hundred and eighty-five of the code, and the suit is so situated in respect of the other defendants, that the plaintiff, on accepting the offer, may at once enter judgment to the effect offered against all the parties jointly liable with those making the offer ; he must accept it, or he will proceed at his peril as to the future costs in the cause.
    Where one of two defendants, sued on a partnership demand, made such an offer after his co-defendant’s time to answer had expired and he had not appeared, and the plaintiff, on the trial, recovered less than the offer, he was subjected to the costs of the defendant from the time of his offer.
    This court has frequently held, that under the code, in a strictly legal action against two or more, on a demand which is joint and not joint and several, the plaintiff can enter only a single judgment against all the defendants.
    May 24, 1851.
    Suit to recover $183,52 and interest, for goods sold to the defendants as partners, between January, 1844, and March, 1847. The defendant, Williamson, did not appear in the suit. Chilson appeared by attorney, and after the time for Williamson to answer had expired, served on the plaintiff’s attorney an offer in writing signed by his attorney, to allow the plaintiff to take judgment against him for $110, with interest from the day on which the suit was commenced, and costs. At the same time he served an answer, denying the plaintiff’s claim, except as to $34,50. The cause was referred, and the referee reported that there was due to the plaintiff $110, but allowed him no interest On the trial it appeared that the defendants ceased to be partners in 1845.
    The defendant, Ohilson, moved for an order that the plaintiff pay his costs subsequent to the date of the offer to permit judgment to be entered against him.

      A. F. Smith, for the defendant.

      F. S. Spencer, for the plaintiff.
   Sandford, J., (with the concurrence of the whole court.)

The plaintiff contends that the offer of Ohilson was nugatory, because not made by both of the defendants: That only one judgment can be entered in the action, and that must be against both defendants or against neither: And that section 385 of the code, provides only for an offer to be made by all the defendants jointly liable in the action.

The section, it is true, speaks of “ the defendant,” and the offer to be made is that judgment may be taken against “ him” and literally, this would require all the defendants, where there are more than one, to join in an offer to allow judgment against them. We were at first inclined to take this view of the provision, but further consideration has brought us to a different conclusion. The practice introduced by the section in question, is a very beneficial one, and ought to be liberally construed. In a case where all the defendants, save one, have suffered a default, and are no longer in a position to contest the claim, the defendant who alone appears and litigates, may well be regarded as “ the defendant,” for all the purposes of this section. And if he make an offer pursuant to its terms, to allow judgment to be taken against him for a sum not greater than that demanded in the complaint, there is nothing to prevent the plaintiff from at once entering the judgment for that sum with his costs^ against all the defendants. He is entitled to it by the offer as against the defendant who has appeared, and by the default to answer, as against the others. If the offer be for a less amount than that claimed, he may relinquish the surplus as against the defaulting defendants. If really entitled to recover no more than the offer, (and it is only on this assumption that it is legally inferrible that he will accept it,) he will not be prejudiced by taking judgment for the amount; because although he has a default against the others, he never can recover judgment against them for more than he can substantiate against the litigating defendant who makes -the offer.

What we have said, of course applies only to actions on contracts which are joint and not joint and several, and were formerly designated legal actions. We have frequently held, that, in such cases, the plaintiffs can enter only a single judgment against all the defendants. Consequently, when the offer, under §. 385, is made by one of several defendants, it will be entirely unavailing, unless the cause is in such a situation in respect of the other defendants, that the plaintiff, on filing the offer, can immediately take a judgment against all for the amount, or to the effect specified.

The rule that we mean to declare, and which, we think, gives full scope to the beneficial provision of the code according to its evident intent, is this,—that when an offer is made by one or more defendants, under § 385, and the suit is so situated that the plaintiff, upon accepting it, may enter judgment to the effect offered, against all the parties jointly liable with those making the offer, the plaintiff must accept the offer, or proceed, at In's, peril, as to the future costs in the cause.

In this case, the plaintiff has failed to obtain as favorable a judgment as that offered, and he must pay to Chilson his costs of the suit from the time the offer was made.


text:
    Martin v. McCormick.
    The allowance in addition to costs, permitted by § 308 of the code, cannot be made after the entry of judgment.
    2No allowance can be made under that section, to the prevailing party, on an appeal from a judgment at the special term.
    January 11, 1851.
    1st this case judgment was rendered in favor of the defendant after a trial at the special term. The plaintiff appealed to’ the. general term, where the judgment was affirmed. The defendant now moves for an allowance, in addition to the costs, under the three hundred and eighth section of the code, both in the court below and on the appeal. A similar motion in another suit, for an allowance on a judgment entered at the special term, was argued at the same time.

      8. F. Oowd/rey, for the defendant.

      ÍJ-. A. Halsey, for the plaintiffs.
   Sandford, J. (with the concurrence of the Chief Justice and Paine, J.,)

decided that, after judgment entered, it was too late for the prevailing party to apply for an allowance under this provision of the code. The amount allowed is to go into the judgment as a part of the “ charges for costs,’” mentioned in § 311.

The provision in § 308 does not apply to judgments rendered on appeal.

Motion denied.

       To the latter proposition is 2 Comst. 570, in the court of appeals, and to both is a decision of Parker, J., in the supreme conrt, third district, 5 Howard’s Pr. R. 242.


author: The Court

text:
    Anon.
    In adjusting the plaintiff's costs, on overruling a demurrer, he is entitled to the fee of seven dollars, “for subsequent proceedings before trial,” and the fee of fifteen dollars for the trial; but he is not entitled to the twelve dollars given “ for all proceedings before notice of trial.”
    (Before Oaklet, Ch. J., and Sandeord and Paine, J J.)
    Feb. 13, 1851.
    The clerk submitted to the court a question on the adjustment of costs. On overruling a demurrer put in by the defendant, leave was given to him to answer on payment of costs. The plaintiff claimed to tax the following items, besides his disbursements, viz.—
    For all proceedings before notice of trial, - - $12
    For the subsequent proceedings before the trial, 7 For the trial,.......15
   The Court

held, that the plaintiff was not .entitled to the fee of twelve dollars given for the proceedings before notice of trial, and that he was entitled to the other two items claimed.


author: Oakley, Ch. J.

text:
    Gildersleeve v. Halsey.
    The code does not require, that a specification of the items of the costs claimed shall be served with the notice of the application to the clerk to adjust the costs, in order to enter them in the judgment.
    Hereafter, however, this court will require such items to be served, and a rule of court to that effect was directed to be entered.
    April 19, 1851.
    Motiou at chambers, decided after consultation with the justices. The facts are stated in the opinion.

      0. A. Da/vison, for the plaintiff.

      Geo. Hudson, for the defendant.
   Oakley, Ch. J.

The plaintiff took an inquest against the defendant at the present term of this court, in consequence of no affidavit of merits having been filed, upon which he proceeded to enter up judgment and issue execution. The defendant gave notice of a motion to open the inquest, and also to set aside the judgment, on the ground of irregularity. The alleged irregularity was a failure on the part of the plaintiff’s attorney, at the time of serving the notice of the adjustment of costs, to serve a copy of the items which would be submitted for taxation. The notice given was, that he should apply to the clerk to insert the costs of the plaintiff in the judgment roll, and was unaccompanied by any statement of items. It is contended by the defendant’s attorney, that this is an irregularity which will authorise us to set aside the judgment.

It appeared by the affidavits, on the part of the plaintiff, that the defendant’s attorney appeared before the clerk upon the taxation, and successfully opposed some of the items, but this appearance seemed to have been under a protest upon his part, and we cannot deem it as a waiver of his right, to object to the irregularity, if any existed.

But we are of opinion, however, that the plaintiff was regular, and that the notice he served meets the requirements of the code. If upon the taxation, it should appear to the clerk, that it was proper to afford the opposing party time to investigate the items, it would undoubtedly be in his power to grant it. In the present case, it does not appear that there are any items which were improperly taxed, or that any objection is in fact made to the correctness of the taxation. It is undoubtedly advisable in all cases, that a statement of the items should accompany the notice of the application to the clerk. And for this reason, we shall direct a rule to be entered to that effect, in cases which may arise hereafter.

Motion denied.


text:
    C. and G. Belden v. Knowlton, Administratrix, &c.
    The plaintiff in a suit against an executor or administrator, cannot recover costs against the estate or the defendant personally, unless the demand have been presented to such executor, &e., and payment unreasonably resisted or neglected, or the defendant on presentment refused to refer it to the statute.
    The provision of section forty-one of title three of chapter six of the second part of the revised statutes, relative to costs in suits against executors, &c., in legal actions, is continued in full force by the code of procedure.
    May 10, 1851.
    Application by the plaintiffs for costs, in a suit against an administratrix. The facts appear in the decision, which was given with the concurrence of all the justices.

      T. O. T. Buckley, for the plaintiffs.

      0. Nagle, for the defendant.
   Oakley, Ch. J.

This was a suit on a check for $800, dated some days after the day on which it was given. The drawer died the day after it was given, and the suit was brought against his administratrix. She put in an answer, setting up a variety of defences for which there was no pretence, and among others, denying that she ever had any notice that the check was demanded and not paid.

The plaintiffs apply for their costs of the suit, and the question is, whethereither the estate of the deceased, or the defendant personally, is liable for costs. On considering the point, we think neither is liable.

The 317th section of the code gives costs in general, for and against executors and administrators, to be paid out of the estate, unless the court charges them on the party personally, for mismanagement or bad faith; but the section also provides, that it shall not be construed to allow costs against executors or administrators, where they are now exempted therefrom by section forty-one of the third title of chapter six of the second part of the revised statutes.

Recurring to the revised statutes, (2 R. S. 88 to 90,) we find that section 34 permits the executor, &c. at least six months after the grant of letters, to advertise for creditors to present their claims within six months after the notice is'first published. When any claim is presented, (§ 36,) if the executor doubt its justice, he may enter into a written agreement to submit it to referees. If the claim be disputed or rejected, and shall not have been referred, the claimant must commence a suit upon it within six months, &c., or he will be barred from maintaining any action upon it. (§ 38.) If the demand has not been presented within the six months limited by the notice, the creditor will only be entitled to come in against such assets as remain when he commences his suit for its recovery.

Then follows the forty-first section, which first precludes such, creditor from recovering any costs, and then provides, that no -costs shall be recovered in any suit at law, against any executor or administrator, to be levied of their property, or the property «of the deceased, unless it appear that the demand on which it was founded was presented within the time limited by the advertisement before prescribed, and its payment unreasonably resisted or neglected, or that the defendant refused to refer the same pursuant to the preceding provisions.

In this case, it does not appear that any notice to the creditors was ever published, or that the plaintiffs ever presented their claim to the defendant. In fact, the suit would seem to have been commenced within six months after the intestate’s death.

The plaintiffs, by having omitted to present their claim, have failed to place themselves in a position in which they could claim costs. It must be presented, and payment unreasonably neglected or resisted, in order to bring the case within the exception provided by the forty-first section, and charge the defendant with costs.

Motion denied.


author: Duer, J.

text:
    Braden v. Kakhaiser, and another.
    In the actions mentioned in section three hundred and four of the code, if judgment he rendered for two defendants who have defended by the same attorney, only one bill of costs can be allowed to both defendants.
    May 31, 1851.
    Tms was an action- of assault and battery against two defendants, who appeared by the same attorney, but answered separately. Their defences were in some measure distinct. A verdict was rendered in favor of both, and their attorney presented to the clerk for adjustment, a separate bill of costs in favor of each. The plaintiffs claiming that they were entitled only to a single bill of costs, the question was brought before Duer, J., at chambers, and decided after consultation with the other justices of the court.

      S. P. Suff, for the plaintiff.

      J. lux, for the defendants.
   Duer, J.

in announcing the decision, said, the court saw no reason for deviating from the rule which had prevailed in cases like this from a very early period until the code of procedure took effect. It is true, the code, in terms, makes the costs allowed, rather an indemnity to the prevailing party, than the measure of compensation between attorney and client. But it was intended to adopt fixed rules in respect to costs given in the actions mentioned in section three hundred and four; and this cannot be carried out, if the circumstances of separate answers when put in by the same attorney be allowed to confer the right to separate costs. A full bill to each defendant in such a case, will be certain in most instances, to give to both more than an indemnity; and we think it is better to adhere to the practice adopted under the old system, that only a single bill of costs can be taxed for all the defendants who appear by the same attorney.


text:
    Stone v. Duffy and Brown.
    In an action for an assault and battery, where the plaintiff recovers less than fifty dollars, he is entitled, by the code of procedure, to no more costs, including dislursements, than the damages recovered.
    In such an action against two or more defendants, if either defendant succeed against the plaintiff he is entitled to recover his costs of suit of the plaintiff, although the latter may have succeeded against the other defendants.
    [t is no objection to this right, that the successful defendant put in a joint answer with one or more against whom the plaintiff has recovered.
    March, 1851.
    In this action,- which was for an assault and battery, the plaintiff recovered twenty-five dollars damages against Duffy, and a verdict was found in favor of the other defendant. The defendants appeared in the suit by the same attorney, and put in a joint answer. Several questions were presented on the adjustment of costs, which were submitted to Sandford, J., at chambers, and decided by him, (after advising with all his associates, who concurred in the result), as follows; viz.
    The successful defendant, Brown, is entitled to his costs. The construction we gave to § 305 of the code, in Comstock v. Bayan'd, 2 Sand. 705, decides this question. The circumstance that the parties put in a joint answer, does not affect the point. § 305 contains no limitation of that kind, and we held, that § 306 does not apply to the actions mentioned in the two preceding sections.
    The question, whether, in addition to $25, which the plaintiff recovers against Duffy as costs, by force of the fourth subdivision of § 304 of the code, he is also entitled to his disbursements under § 311, is one of no little difficulty. On reading the various provisions of the code, respecting costs and in which costs are mentioned or referred to, most of us were inclined to agree with Hr. Justice Harris, of the supreme court, in his opinion in Ta/ylor v. Ca/rdjn&r, 4 Howard’s Pr. R. 67, and Mew-ton v. Sweet, ibid. 134. It seems, however, that the general term of that court in the seventh district, and all the judges of the same court in the second district, concur in holding, that, in actions of slander, where the plaintiff recovers less than fifty dollars damages, he is not entitled to recover the fees of officers and disbursements, in addition to the amount of costs equal to the verdict. (Belcling v. Gonklmg, 4 Howard’s P. R. 196; Wheeler v. Westgate, ibid. 269.)
    We think it is important to secure a uniformity of construction, so far as it is practicable, in administering the code ; and, in a really doubtful case, are disposed to yield our impressions to the conclusions generally adopted in the co-ordinate tribunals. ’ We will, therefore, hold, that a party entitled to costs by the fourth subdivision of § 304, on his recovering less than fifty dollars, can recover no more for his costs of suit, including his disbursements, than the damages recovered.

      H. A. Mott, for the plaintiff.

      A. JD. Bussell for the defendants.


author: By the Court. Duer, J.

text:
    Moore v. Westervelt, Sheriff, &c.
    The provisions of the revised statutes, giving double costs to public officers, who succeed in suits brought against, them in respect of their official acts, are repealed by the code of procedure.
    The additional allowance, provided by § 368 of the code, enables the courts to extend to officers in such suits, all the just protection which public policy requires.
    The costs, given by the code, are not a measure of the compensation to which the attorney is entitled as between himself and his client.
    If there is no express agreement, the law implies that he is to be paid according to the value of his services.
    May, 1851.
    The facts in this case appear in the decision, which was made at the general term, with the concurrence of all the justices of the court.

      H. P. Bastmgs, for the plaintiff

      A7". _5. Bl/wn% for the defendant.
   By the Court. Duer, J.

This is an appeal from an order made at chambers allowing to the defendant who has obtained a verdict, what are usually, but improperly termed double costs, and the question to be determined is, whether those sections in the revised statutes by which, in cases like the present, such costs are given to the defendant, are still in force, or have been superseded or repealed by the provisions of the code. (2 B. S. 617, § 24, 25.

It is much to be regretted that the framers of the code failed to annex to their labors, a general repealing statute enumerating the acts and parts of acts that were meant to be abrogated. Many of the difficulties that have arisen in the construction of the code, and those that have most perplexed and divided the minds of judges, must be ascribed to this omission, and of this the question now before us is a striking example. Two of the judges of the superior court, Justices Sill and Welles, (4 How. Pr. B. 263, 283,) have decided that double costs are still recoverable, while Mr. Justice Parker, and the court of common pleas in this city, have held that the statutory provisions from which alone the right to claim such costs was derived are wholly repealed, (4 ibid. 239, 5 ibid. p.-MS. opinion of Judge Woodruff,) and our own reflections, founded upon an attentive examination of all those provisions in the code that have a bearing upon the question, have led us to the same conclusion.

It is said that the code has only repealed those statutory provisions in relation to costs which regulated the costs and fees of attorneys, solicitors and counsel, as against their clients, and that as double costs are expressly declared to belong to the defendants to whom they are awarded, and are thus distinguished from those which their attorneys, &c., are entitled to recover for their own services, it necessarily follows that they are not affected by the repeal. We shall not deny that there would be much force in these observations, if the costs that are given by the code, and which it is alleged may be doubled, were merely a substitute for those that were formerly allowed, and were still the costs that the attorney is entitled to demand from his client, and when received from the opposite party, to retain for his services; but as the case happens to be directly the reverse, the argument that the observations we have stated have been supposed to furnish, it appears to us wholly fails. Costs, as they now exist, are in no case a measure of the compensation to which the attorney is entitled.

They do not define and limit the sum that he may justly-claim for his services. His compensation, where there is no express agreement, is left to depend upon the agreement that the law will imply, and -the only agreement that the law can imply is, that the sum to be paid, shall be proportioned to the value of the services performed, and it is manifest that the sum which a court and jury, in the exercise of a reasonable discretion may allow, may be greater or less 'than the amounts of the costs that are given by the code. Such, we conceive, is the necessary construction of section 303.

Hence, the question whether the code has abolished double costs is not to be disposed of by saying that the provisions of the code have no reference to costs that belong to a party in the suit, for in reality it is to such costs that they relate, and to such alone. Costs, as regulated by the code, are given exclusively to the party, plaintiff or defendant, who prevails in the suit, and they belong to him exactly in the same sense in which double costs belonged to a defendant under the revised statutes. The real question, therefore, is whether the provisions in the code in relation to costs, were designed to embrace the whole subject of which they treat, since if they were, double costs, although not in terms abolished, are so, by a necessary implication. The sections in the statute by which they are given are certainly repealed, if the code must be construed as meaning that no other or greater costs shall in any case be recovered or allowed than those which it directs or authorizes to be given, and such, we are persuaded, is its reasonable and true interpretation. We are convinced, that had the framers of the code meant to continue in force the existing statutory provision in relation to double costs, they would not have failed to see that it was necessary to embody and re-enact the sections in which they are contained, and that their intention and that of the legislature to repeal these sections is sufficiently manifested by their actual omission.

It has, indeed, been insisted, that this is a construction which we have no right to adopt. The code, it is said, has in effect declared that all statutory provisions not inconsistent with its own, shall remain in force. (Code, § 468, 471.) Hence, as the provisions relative to double costs may be reconciled with those of the code, it follows that we are bound to enforce them. This reasoning is specious, but the sophism which it involves is readily detected. It consists in giving to the term “inconsistent” a very false interpretation, by limiting it to the cases in which there is a positive contradiction in terms, a direct and literal repugnancy. But such is not its meaning. A prior law is inconsistent with a subsequent, when, if suffered to remain in force, it would defeat or frustrate in any degree the object and intent of the latter, and this it may do, even when the terms of the laws are perfectly consistent and imply no contradiction that would prevent the provisions in both from being carried into effect. The declaration in the code, that all statutory provisions not inconsistent with its own are repealed, was quite unnecessary. It is only a special application of the general maxim, that “ Leges posteriores priores contrarias abrogant,” and must receive the same interpretation. It would be unreasonable to suppose that it was meant to alter, in any degree, the sound rules of construction by which courts of justice in the interpretation of statutes have constantly been governed. The intent of the legislature that a particular act should contain the whole statutory law on the subjects of which it treats, may be declared in terms, or be deduced from the nature of its provisions and the absurd or unreasonable consequences that would follow a different construction. But where this intent is certain, whether expressed in words or collected by reasoning, its necessary effect is to repeal, as inconsistent, all prior statutes on the same subject. We venture to affirm, that there is scarcely a chapter or title in the code, in the construction of which this principle must not be followed; and to select a single case, it is by this principle that we have been governed in determining the extent of our own powers. The code declares that the jurisdiction of this court shall extend to certain cases, which it proceeds to enumerate, without any positive or negative words confining our jurisdiction to those cases, but as the enumeration was evidently meant to "be complete, we have construed it as defining and limiting our powers, and consequently, as repealing all prior statutes by which a different or larger jurisdiction was given.

The title “of costs” in the code means'costs in civil suits, and there is nd exception, either in the heading of the title, or in its provisions, of particular suits or particular cases. 1 It corresponds, in its general design, with title 1, of chapter X part 3d of the revised statutes, which is headed “ of the cases in which costs may be recovered;” and we know no reason why its provisions must not receive the same interpretation ; that i&, as- intended to embrace all the cases in which costs maybe recovered or allowed. Mr. Justice Woodruff, in a MS. opinion, with a copy of which we have been furnished, by a careful analysis of the two statutes, title one in the revised statutes, and ten in the code, has clearly shown that the provisions in the latter are throughout substituted for those of the former, and we agree with him that while every other section in title one is plainly superseded, it would be unreasonable to believe that §§ 24 and 25 were meant to be continued in force. We agree with him that the substitution was meant to be and is complete.

An objection, however, to this construction not hitherto noticed, must now be stated. It has much apparent force, yet when examined supplies new reasons in support of the conclusions that we adopt.. The statutory provisions in relation to double costs, it is truly said, are founded upon reasons of public policy, which we ought not to believe, unless upon the strongest evidence, that the legislature meant to disregard.. The object of these provisions is to encourage public officers in the faithful discharge of their duties, by imposing a penalty upon those, who without just cause, prosecute them for their official acts. Its design is to protect the officer against groundless and vexatious suits, and this protection, unless the language of the code is plain and imperative, ought not to be withdrawn. To all this we entirely assent, and the reply is, that this reasonable protection is not withdrawn, but in all the cases in which it ought to be given, is more effectually secured by the provisions of the code than by those of the statute. It is secured by the duty which is now imposed upon the judges, of making an extraordinary allowance to the party who prevails in the suit “ in every case in which the prosecution or defence has been unreasonably or unfairly conducted.” (Code, § 308.) It is not a narrow and literal construction that we give to these words. We hold that they apply to every suit which is groundless in its origin and vexatious in its purpose; since every suit which is unreasonable and unfair in its commencement, must be so in every subsequent step of its progress, and unless it is at once abandoned, it is a prosecution unreasonably and unfairly conducted.”

It is true, that under the code it is only in' special cases that an additional allowance can be made to a public officer, who is a defendant in the suit, whereas, under the statute, he is entitled to double costs, in every case in which the plaintiff fails to succeed, to whatever cause his ill success may be owing, and however reasonable the grounds upon which the suit was commenced. But this distinction, so far from being an objection, is an additional and very strong reason for holding that the provisions of the code have superseded those of the statute. If more limited in their application, they are more equitable when applied. They give to the officer all the protection that he can justly claim, and they impose no penalty, when no wrong has been committed and no punishment is due.

IJpon the other hand, if we have rightly interpreted the provisions in § 308 of the code, as to the extent of their application, let us consider what, in some cases, must be the necessary consequence of holding that they are not substituted for those of the statute. Where a suit against a public officer, in the opinion of the judge by whom it is tried, is unreasonable or unfair in its origin or conduct, he is bound to make to the defendant the additional allowance which the code has authorised. If he is satisfied that the wrong which was meant to be restrained has been committed, it is his duty to impose the penalty, and to this penalty, if the statutory provisions are still in force, that of “ double costs” must be added. ETor is this all; the additional allowance is plainly a part of the “ sum of charges for costs,” which are to be adjusted by the clerk, under § 311 of the code. The entire allowance is, therefore, not merely to be added to double costs, but, in the sense of the statute, is itself to be doubled. It is manifest that such an aggravation of the penalty that double costs were meant to provide, would in all cases be unjust, and in many oppressive; and we therefore find it impossible to believe that it was contemplated by the framers of the code, or by the legislature. Tet if this consequence was not intended, double costs were meant to be abolished, and we rest with satisfaction in the conclusion that they are abolished.

The order allowing them to the plaintiffs is therefore reversed, but without costs.


author: By the Court.—Sedgwick, Ch.

text:
    THE SECOND AVENUE R. R. Co., Appellant, v. SOLOMON MEHRBACH, Impleaded, et al., Respondent.

      Conversion elements, of—unauthorized disposition of property by agent, when constitutes. —Damages.

    If an agent entrusted with property of a principal, parts with it, in a way, or for a purpose not authorized, he is liable for a conversion ; this, though the act, taken by itself, corresponds to what was authorized, and the fact t'hat the original taking by the agent was not tortious, does not alter the character of the subsequent acts constituting a conversion.
    That the wrong-doer should receive some benefit from his act, is not an element of conversion.
    Accordingly, where defendant, the president of a corporation, is authorized to raise money for it, by way of loan on his personal note secured by bonds belonging to "the company, and he gives his note for a certain sum, secured by said bonds and by other securities owned by a third party, and pays over to the company a portion of the moneys so raised, and the balance to said third party ; such act constitutes a conversion.
    Though the amount so paid to the company be equal to the sum which coulcl have been raised had its said bonds been pledged alone, yet, it cannot be held that the company is not harmed.

      Decided January 7, 1884.
    The additional amount beyond that received, which the company is obliged to pay, on a settlement, to regain the bonds, is an element of damage.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal by plaintiff, from judgment dismissing the complaint at the close of plaintiff’s case.
    The action was for an alleged conversion of bonds made by plaintiff. The first cause of action which is the one considered in the opinion, was for the conversion of thirty-two bonds made by plaintiff, and its property, which defendant Mehrbach, then the president of the company, pledged, together with certain bonds of the Houston Street, &c. Ferry Co., the property of his brother, to secure said Mehrbach’s personal note for $50,000 ; a portion of the money raised by said transaction, viz., $20,000, he paid to plaintiff, and the balance, $30,000, to his brother. The evidence tended to show that defendant Mehrbach had authority to raise money for the company’s sole benefit, by his personal note secured by bonds belonging to said company. There was no evidence that at the time of the receipt of said $20,000, there was knowledge on the part of the company qf the nature of the transaction by which the loan was effected. There was evidence tending to show that when the bonds were redeemed, the company was obliged to pay a greater sum to recover them, than the amount of the loan thereon and interest. Further facts appear in the opinion.

      Hutchins & Platt and Austin G. Fox, for appellant.
    I. This use of the plaintiff’s property was wrongful, and was a conversion of the property for which the defendant is liable. The only authority that Mehrbach had was to pledge the bonds as security for a loan to the plaintiff, and in pledging them as security for a loan to himself or his brother, he was guilty of a conversion of the bonds. The court below seemed to think an action upon the case might lie, but not an action for conversion. But upon the case at bar, the Importers’ and Traders’ Bank held each bond for the whole loan. If the bonds of the Houston Street and West Pavonia Ferry Company had became worthless, the bank would have held the plaintiff’s bonds for the whole loan and any unauthorized use of another’s property amounts to a conversion (Kennedy v. Strong, 14 Johns. 128 ; Dickinson v. Dudley, 17 Hun, 569 ; Laverty v. Sneihen, 68 N. Y. 522; Syeds v. Hay, 4 T. R. 260 ; Thrall v. Lathrop, 30 Vt. 307 ; Wheelock v. Wheelwright, 5 Mass. 103).
    II. The defendant, Mehrbach, is liable although he did not take the bonds to the bank himself. He took them from the plaintiffs, and gave them to the defendant Fellows, to pledge as security for the loan of $50,000 (Hynes v. Patterson, 28 Hun, 528; Laverty v. Snethen, 68 N. Y. 522).
    III. The plaintiff, by receiving the sum of $20,000, “retaining it and entering the loan upon the books of the corporation,” did not waive its right “ to treat the bonds as a conversion by the defendant.” The conversion was complete the moment that the bonds were subjected to a lien for the $30,000 advanced for the brother of the defendant, Mehrbach. There is no evidence whatever that any of the plain tiff’s officers, except the two defendants, knew of this, or had any reason to suspect it, until several months afterwards. But the court below said that the plaintiffs ought to have found it out. The defendant, Mehrbach, was the plaintiff’s agent for the purposes of this transaction, and it would seem a little odd that he is to escape liability because he did not tell some one. A right of action being once complete can be discharged by the plaintiff only by a release, or accord and satisfaction (Bosanquet, J., in Baylis v. Usher; Connah v. Hale, 23 Wend. 462, 470).
    IV. The form of action was proper. The court, in dismissing the complaint, said: “ The most that can be said is, that if, from the manner in which the pledge was made and loan obtained, the plaintiff’s corporation sustained any special damage, that then, upon pleading all these facts, the plaintiff might maintain an action upon the case.” (a) But, under the Code, if on the facts proved the plaintiff is entitled to relief, he has the right, at least, to have them submitted to a jury. (5) But even at common law the form of action was proper (McMorris v. Simpson, 21 Wend. 610; Laverty v. Snethen, 68 N. Y. 522; Murray v. Burling, 10 Johns. 172).
    V. If the plaintiffs had a cause of action, it was error to dismiss the complaint, whether they proved special damage or not. They were entitled, at least, to nominal damages. But they proved special damages to the extent of $12,783.53.
    VI. This action lies, notwithstanding that the plaintiffs have recovered possession of the bonds. The action is not to recover the bonds, but damages for their conversion, and the measure of damages is the amount which the plaintiffs had to pay in order to regain possession of the bonds (Murray v. Johnson, 10 Johns. 172).
    VII. It was not necessary/to prove that the defendant, Mehrbach, received any benefit from the transaction (Bristol v. Burt, 7 Johns. 254; Connah v. Hale, 23 Wend. 462).
    VIII. It was not necessary to show a wrongful intent on the part of the defendant, Mehrbach, for it is not an essential element of the conversion (Boyce v. Brockway, 31 N. Y. 490, 493; Poucher v. Blanchard, 86 N. Y. 256 ; Robinson v. Chemical National Bank, Id. 404).

      Smith, Allan & Smith, for respondent.
    I. The facts show authorization for the defendant’s acts; ratification of them after they were done ; and the receipt of the avails of his. efforts in their behalf ; therefore, conversion will pot lie.
    II. The acts of the defendant came under the authority imposed upon him by the by-laws. He had “ chief management, control, and supervision of the affairs of the company.”
    III. The evidence shows that the plaintiffs are estopped from claiming that’ defendant’s acts were done without authority. The legal effect is the same, where acquiescence is proved, and where ratification is proved, as if the party doing the acts had been expressly directed to do them (Story Agency, § 87, 9th Ed.; 1 Domat. Civ. Law, tit. 16, § 3, art. 1; 2 Kent Comm. §§ 41, 622-623 ; Story's Agency, § 92; Johnson v. Jones. 4 Barb. 369). It is now well settled in America that the employment and authority of an agent may be inferred and implied from the adoption and recognition of the acts of the agent by such corporation (Story's Agency, § 52; Bank of U. S. v. Dandridge, 12 Wheat. 64 ; Darst v. Gale, 83 Ill. 136; Kelsey v. National Bank, 2 2 Penn. St. 426-429 ; Marsh v. Fulton, 10 Wall. 676-684). In Ninen v. Belknap (2 Johns. 589), Thompson, J., says : “ In equity, therefore, where a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires, him to be silent.” See also, 2 Parsons on Contracts, n. 2 ; 794 n. 9.
   By the Court.—Sedgwick, Ch.

It will be assumed that the pláintiff had authorized the defendant to pledge its bonds for the purpose of borrowing money for the corporation. Vet if the evidence did not conclusively show, it would have sustained a finding by the jury, that the authority was confined to a pledging of the bonds for the sole benefit of the corporation, and did not extend to pledg- . ing the bonds for the benefit of any other than the corporation, or for the benefit of the corporation in part and of another in part.

It may be assumed also, that one authorized mode of borrowing money for the corporation, was upon the note of the defendant secured by the bonds of the corporation. The defendant made his note for $50,000, and obtained upon it a loan of like amount, giving as security for its repayment 32 bonds made by the plaintiff and 50 bonds of the Houston Street Ferry Company. Of the loan obtained by the defendant, he handed over to his brother $30,000 and to the. plaintiff $20,000. The pledging of the bonds of the plaintiff was as much for the benefit of the defendant or his brother, as of the plaintiff. This had not been authorized by the plaintiff, and was a conversion. The decision in Laverty v. Snethen (68 N. Y. 522), supports this conclusion and it cites cases enough to make all the distinctions that it would be expedient to examine. The rule is, that when the disposition itself of property by an agent has been made in accordance with authority given, it is not conversion, and any cause of action, if one exist, must be based upon some other act of the agent which is wrongful, if such were done. If the disposition is unauthorized, it is a conversion.

The act will be a conversion, although taken by itself, it corresponds to what was authorized, if it be done by the agent in derogation of the claims or rights of the principal.

In Covell v. Hill (6 N. Y. 374), the plaintiff had made a conditional sale of lumber. The conditional purchaser shipped the lumber and received a bill of lading in the name of the plaintiff, the owner. He substituted for this, a paper signed by himself, which stated a shipment in his own name-as consignor and delivered it with the lumber to the defendants as :consignees, and received advances from them. The owner plaintiff, notified the consignees defendant, that he owned the lumber and insisted that the defendants should sell it for him. They in fact sold the lumber, to protect their advances to the conditional purchaser. The opinion says, “ the judge submitted the question to the jury to decide whether the defendants sold the lumber for themselves, claiming the right to do so, after notice that it belonged to the plaintiff, and instructed them that if they did, such act would be evidence of a conversion. In this we think there was no error. The sale was not by consent of the plaintiff. The plaintiff never authorized a sale of the lumber by the defendants under an adverse and hostile claim of title, and in assuming to make the sale in subversion of the plaintiff’s rights, instead of making it in subordination to them, and in pursuance of his request, was a conversion, according to all the authorities.” This case is cited that it may be applied to the fact that the form of the loan procured, was in some respects, like that which it is assumed had been authorized by the plaintiff; for instance, upon the note of the defendant. Yet there was an essential difference, for there is no evidence to show that the defendant was authorized to make his note for an amount larger than the amount he borrowed for the corporation.

Some arguments were made on the appeal, that seem to be determined by the facts. It was argued that the defendant received no personal benefit from the transaction of pledging the bonds. This is not an element of conversion. That consists in a tortious exercise of dominion over another’s property. The degree of material benefit received by the wrongdoer does not make the act tortious, nor does an absence of interest tend to show that the owner was not deprived of his dominion over his property. The testimony here shows that either for his own benefit or his brothers, which is immaterial, he received part of the loan made upon the plaintiff’s bonds.

It was also argued that the original taking by the defendant of the bonds was not tortious, and therefore the subsequent acts did not constitute a conversion. In fact, the jury might have' found, that the defendant from the first procured the bonds for the tortious purpose of disposing of the bonds in a way that has been held to be a conversion. Suppose it otherwise, and that the defendant had been entrusted with the bonds for ‘ the purpose of making the authorized loan before he thought of making the unauthorized loan, there was nothing in the previous custody that altered the character of the subsequent conversion.

There was an argument that all the money raised on the bonds for the company went into their treasury and was used for their'benefit. This is true in this way only, that if the defendant had in fact procured a loan upon the bonds for the plaintiff only, it could not, as the defendant assumes the evidence was, have been greater than the amount that was actually paid over to'the plaintiff. This does not avail tó show, that the plaintiff was not harmed, because as might have been found oh the settlement, they were obliged to pay more than the $20,000 they received, to regain their bonds, as a consequence of the loan in its actual shape.

This opinion has given the defendant the benefit of all the testimony that tends to show any authority in the defendant from the plaintiff to raise money upon its bonds. There is none that tends to show that there was any authority to use the bonds to any extent for a loan to the defendant or to his brother. There was no evidence of any ratification of the loan as actually made.

This opinion has regarded only the loan made upon the security as part of the 32 bonds, named in the first cause of action.' The testimony as to the 22 bonds in the second cause of action, is so meagre that I do not think any opinion can be given as to the rights of the parties in respect of them. Indeed on another trial, it will be well to make the facts of the whole case clearer and more definite than they appeared on the trial had.. On the conclusions reached as to the first cause of action, a new trial should be ordered.

Judgment reversed and a new trial ordered, with costs of the appeal to abide the event.

O’Gorman, J., concurs.


author: By the Court.—Freedman, J.

text:
    JAMES B. CREIGHTON, et al., Respondents, v. GEORGE A. HAGGERTY, Appellant.

      Decided January 7, 1884.

      Patent right—express contract in regard to use of—jurisdiction of state courts of action on such contract.—Judgment of rescission or affirmance of—party must elect which—effect of election.—Assessment of damages.

    Where a controversy arises out of an express contract, in regard to the use of a patent right, the state courts have full power and jurisdiction to determine the issues and grant the appropriate relief, although patent • rights may come in question. See Hyatt c. Ingalls, 49 Super. Ot. 375. Plaintiffs cannot obtain relief both in rescission and affirmance of contract,' they must make their election. If they elect for rescission they can have no injunctive relief, and if for affirmance, the rescission must be stricken out, and they may have injunctive relief (Hyatt v. Ingalls, supra).

    In either case plaintiffs are entitled to an assessment of damages to the time of entry of judgment.
    Accounting in' this case held to be erroneous. Reasons stated, and correct rule for the measurement of damages stated, and judgment modified.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
    Appeal by defendant from interlocutory judgment.

      Rose & Putzel, for appellant.

      George H. Forster, for respondents.
   By the Court.—Freedman, J.

The case is not one in which the defendant is entitled, as matter of right, to a trial of the issues by a jury (Farwell v. Importers & Traders’ Nat’l Bank, 90 N. Y. 483 ; Powell v. Waldron, 89 Id. 328). Nor can he insist upon a dismissal of the complaint upon the ground that the article to be accounted for or forming the subject of a controversy is a patented article. The controversy arises out of an express contract, and in such a case the state courts have full power and jurisdiction to determine all the issues and to grant the appropriate relief, although patent rights may come in question. This subject has been fully discussed in Hyatt v. Ingalls, decided at the present term of this court.

Upon an. examination of the whole case I am satisfied that no error was committed in the reception of evidence ; that the facts found are sustained by the proofs, especially as the defendant refrained from giving any evidence ; and that the plaintiffs are entitled to an interlocutory judgment in accordance with the findings of fact and the breaches of contract thereby established.

But the conclusions of law drawn by the learned judge below from the facts found and the judgment entered in accordance therewith, cannot be sustained in their entirety, because the plaintiffs thereby obtain relief both in rescission arid in affirmance of the contract. Upon this point I again refer to the case of Hyatt v. Ingalls. In the present case the complaint does not ask for a rescission, and upon the whole case it appears that the plaintiffs may be permitted to elect. They must therefore make their election.

If the plaintiffs elect to take a rescission, they can have no injunctive relief, because in such case the injunction would operate solely to prevent an infringement of the patent.

If they elect to take a judgment in affirmance of the contract, the rescission decreed must be stricken out, and then they may have an injunction restraining the defendant, his agents, &c., from using, putting in, or selling, or selling to put in, within the territory .covered by the contract and during the life of the patent and of any re-issue or extension thereof, any other oral annunciator except such as may be manufactured or furnished by Creighton or the Halls, provided there is no failure on the part of Creighton or the Halls in the fulfillment of the obligations of the contract on their part.

In either case the plaintiffs are further entitled, by way of incidental relief, to an assessment of damages up to the time of the entry of judgment. The accounting, as directed, is erroneous and must be stricken out. In the first place, it lays down an erroneous rule for measuring the damages in as much as the rule laid down makes no allowance for the cost of manufacture. In the second place the evidence shows that all the.annunciators which the defendant had from Creighton or the Halls pursuant to contract, he has already paid for, and hence no accounting is necessary as to them. In the third place, as to all annunciators used, put in, sold, or sold to be put in, by the defendant which he, in violation of the contract, procured from outside parties, the plaintiffs are entitled to an assessment of the damages sustained by them in consequence thereof. In making this assessment the contract price of the anunciators undoubtedly will constitute an important element.which must be taken into consideration, but it does not constitute per se, the measure of damage. So upon such assessment an account may have to be taken of all annunciators used, put in, sold, and sold to be put in, by the defendant in violation of the contract, but such an account is then only a step in the assessment of the damages. The result of all this is, that the provision directing an accounting and the manner' thereof, should be stricken from the judgment, and that in place thereof, the referee should simply be ordered to assess and determine the damages sustained by the plaintiffs up to the time of the entry of the judgment by reason of the breaches of the contract committed by the defendant as set forth in the findings of fact. The change thus ordered should be without prejudice, however, to any special motion the defendant may see fit to address to the discretion of the court at special term, on showing cause therefor, to have the damages assessed by a jury instead of a referee.

The interlocutory judgment should be modified pursuant to the views expressed and as the plaintiffs may elect in accordance therewith, and, when thus modified, it should stand affirmed as modified, without costs to either party upon this appeal. All particulars to be settled on the settlement of the order to be entered hereon, of which notice is to be given.

Sedgwick, Ch. J., and O’Gorman, J., concur.

       49 Super. Ct. 375.


author: By the Court.—Truax, J. Ingraham, J. Sedgwick, Ch. J.

text:
    MARIE PRESCOTT, Respondent, v. SINCLAIR TOUSEY, as Pres’t, &c., Appellant.

      Decided January 7, 1884.

      Libel—Publication of by news company—Evidence of reputation—Social standing—Damages, charge as to.

    In an action against a company formed for the purpose of distributing newspapers, etc., printed by others, for damages for the publication of a libel, the plain till must prove that some one other than plaintiff has read the libel in some of the papers that defendant has published; and it is not enough to show that defendant has sold many copies of the paper containing it, there being no presumption that every paper so sold and every part of it has been read. (Per Tb(tax, J.)
    In an action for a libel imputing unchastity to a woman, it is error to admit evidence to show that plaintiff’s general reputation for chastity is good, for the purpose of rebutting evidence of the specific acts of lewdness, introduced by defendant in justification; but this error is cured by the admission of evidence for defendant attacking plaintiff’s general reputation for chastity. (Per Trtjax, J.)
    In an action for libel evidence of plaintiff’s social position and standing is inadmissible. (Per Trtjax, J.)
    It is error for the court to charge that in arriving at the amount of damages, a good way for the jury was to bring the question home to themselves, and say for what sum would they, with their knowledge of the world and of mankind, and of the result of a defamation, be willing to be libeled, as the plaintiff was libeled. (Per Truax and Ingraham, JJ.) Where the court charges, and erroneously, as to the method of ascertaining damages, to which no objection is taken, and in response to a request to charge as to another matter, refuses such request, stating that defendant may have an exception to such refusal, and also an exception to the “method of ascertaining damages charged,” defendant is entitled on appeal to the benefit of an exception to such erroneous charge as to damages, without formally noting his exception in the settlement of the printed case. (Per Ingraham, J.)
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.
    Appeal by defendant from a judgment, in favor of plaintiff, and also from an order denying a motion for a new trial.
    The action was brought to recover damages for the publication of a libel. The defendant denied that the words complained of were libelous, and then pleaded in mitigation of damages that it was a company formed for the purpose of distributing newspapers and other publications, and that, while engaged in its business, without knowledge of the contents of the newspaper that contained the libel, it distributed a few copies thereof. The defendant also pleaded as a defense and in mitigation of damages, that “ the plaintiff was at the time of the publication, and for a long time prior thereto had been, a woman of bad character as to chastity and was an unchaste woman ; that she had frequented and been an inmate of a house of prostitution in the city of New-York, and- that she had lived with various men as mistress.”

      E. H. Spooner and Wm. Fullerton, for appellant.

      Marshall P. Stafford, for respondent.
   By the Court.—Truax, J.

The words set out in the complaint imputed a lack of chastity in the plaintiff, and were libelous.

At the close of the plaintiff’s case, the defendant moved to dismiss the complaint, on the' ground that the plaintiff had failed to prove a publication ; the motion was denied, and the defendant excepted.

The plaintiff did not attempt to prove that the defendant had any part in printing the libel. She sought to hold the defendant for publishing the libel after it was printed, and for that purpose she offered evidence showing that one Reid (who was then employed in the office of the plaintiff’s attorney), purchased from- the defendant three copies of the paper containing the libel; that this purchase was made at the request of said attorney ; and that the papers so purchased were delivered to said attorney. The only other evidence of publication by the defendant was that of one Farrelly, the manager of the defendant, and that was to the effect that the defendant distributed and sold 240 copies of the paper, presumably to dealers. There is no evidence that any one ever read, or even saw this libel in any paper that the defendant distributed. The witness Kilday read the libel, but it does not appear from whom he got the papers containing it. The presumption is, that not even the plaintiff’s agent Reid read the libel, for he says that he ‘ ‘ bought the papers and took them over and delivered them” to the plaintiff’s attorney.

^ A libel is published when it is communicated to some person, other than the plaintiff, who understands it, and not until then.

There is no presumption of law that every newspaper and every part thereof is read. The plaintiff must show, by evidence, that some one read the libel in some one of the papers that the defendant “published.”, In other words, before she can recover she must show that the defendant did in fact, publish the libel. This she failed to do. The complaint should have been dismissed on the ground that the plaintiff had failed to prove publication.

A number of exceptions were taken by the defendant to the admission of evidence tending to show that the plaintiff’s reputation for chastity was good. In an action of this kind the plaintiff cannot introduce such evidence for the purpose of rebutting evidence introduced by the defendant for the purpose of justifying the libel (Houghtaling v. Kelderhouse, 2 Barb. 149 ; aff’d 1 N. Y. 530). But this evidence was made relevant by the fact that the defendant offered evidence that tended to prove that the plaintiff’s reputation for chastity was bad (Pratt v. Andrews, 4 N. Y. 493; Inman v. Foster, 8 Wend. 602).

If requested the court would have charged the jury that this evidence did not tend to disprove the evidence of specific acts of lewdness. Some evidence of this nature was introduced by the plaintiff as a part of her case. The receipt of this evidence at that time was error, but this error was cured by the defendant’s attack upon the reputation of the plaintiff.

Whether the plaintiff’s social position or standing in society can be proved in an action of libel for the purpose of increasing damages, is a question not yet settled by the courts of this country. It has been held in some of the states that evidence of the plaintiff’s position in life may be shown as evidence of the extent of the injury that he has sustained (Klumph v. Dunn, 66 Penn. St. 141; Clements v. Maloney, 55 Mo. 353 ; Fowler v. Chicester, 26 Ohio St. 9; Tolleson v. Posey, 32 Geo. 372; Humphries v. Parker, 52 Maine, 502; Karney v. Paisley, 13 Iowa, 89 ; Hosley v. Brooks, 20 Ill. 116). In the case of Palmer v. Haskins (28 Barb. 90), Judge Marvin said that he did not doubt that the general standing in society of either of the parties to the action might be proved, but this was obiter. He was also of the opinion, and this was the turning point of the case, that it was not proper to prove the wealth or poverty of either of the parties. The court of appeals, in Hatfield v. Lasher (81 N. Y. 246), held that evidence of the plaintiff’s bad reputation was admissible, not for the purpose of showing that his reputation was so bad that the defendant’s libel could not injure it, but for the purpose of showing absence of malice in the defendant, and to the same effect is Bush v. Prosser (11 N. Y. 347). The rule is stated by Stephens in his digest of the law of evidence, article 57, as follows : “In civil cases, the fact that the character of any party to the action is such as to affect the amount of damages which he ought to receive is generally deemed to be irrelevant ” (see 1 Ph. Ev. [5th ed.] 757). If the defendant cannot prove the plaintiff’s bad reputation for the purpose of decreasing damages, why should the plaintiff be allowed to show his good reputation for the purpose of increasing them % And if the plaintiff cannot show his good reputation, why should he be allowed to show his standing in society, especially since the laws of this State do not recognize different ranks in society % It must also be remembered that the action of libel is brought for the purpose of recovering compensation for the injury to the plaintiff himself and not for the injury to his reputation. It is absolutely necessary for the plaintiff to show a pecuniary injury in order to maintain this action (Wilson v. Goit, 17 N. Y. 442 ; Viele v. Gray, 10 Abb. Pr. 1). This is sometimes done, through the fiction of law that some words cannot be written of a man without inflicting injury; those words are called actionable per se. It was error to receive evidence of the plaintiff’s social position and standing in society.

Testimony of conversations that had taken place between the plaintiff and Harvier, was objected to by the defendant on the ground that they were immaterial, irrelevant and incompetent, and on the further ground that Harvier’s attention had not been called to them. This testimony was received and the defendant excepted. These questions were asked for the purpose of showing that Harvier was a man of bad habits and character. The testimony tended to disgrace Harvier. It related, however, entirely to matters irrelevant to tie issue. It is true that the state of a witness’s feelings towards a party are deemed to be relevant tó the issue; but that state of feelings cannot be shown by proving that the witness stole the party’s trunk or ulster, or that he did not pay his debts. This testimony did not impeach Harvier’s credit for veracity.. It is not improbable that Harvier might be all that the witness said he was, and yet he might be veracious. Nor did it affect his general reputation for truth and veracity. The evidence related to particular disgraceful acts (1 Green. 461). This evidence tended to mislead and divert the attention of the jury from the questions at issue. It tended to create in their mind a natural indignation against Harvier and against, the party who had called such a person as a witness.

Of course the cross-examination of witnesses on matters affecting their credit should be left mostly to the discretion of the trial court, whose decision is not the subject of review unless there has been an abuse of discretion (Gt. W. Turnpike v. Loomis, 32 N. Y. 127 ; King v. N. Y. C. & H. R. R. R. Co., 72 Id. 607).

The state of Harvier’s feelings towards the plaintiff is deemed to be relevant to the issue, and if he denied that he had expressed feelings of hostility towards the plaintiff it was not error to allow the introduction of evidence that contradicted him in this respect.

He could also have been impeached by showing that he had made statements out of court which contradicted the statements that he had made on the trial, provided, these last statements were relevant to, or of facts that are deemed to be relevant to the issue, and provided his attention had been called to the particular circumstances and occasions of the making of such statements. Both of these well established rules were violated on the trial.

The plaintiff was allowed to testify that she had been told that Harvier was a scoundrel. This ruling was erroneous.

The court charged the jury that in arriving at the amount of damages to be awarded the plaintiff, a good way for them to do was to bring the question home to themselves and say for what sum would they, with their knowledge of the world, and of mankind, and of the result of a defamation, be willing to be libeled, as the plaintiff was libeled.

To this charge the defendant excepted. This'was error. It took from the jury the real question that they were to determine, viz., how much had the plaintiff been injured by the defendant’s acts, and put in its place the question, how much do you think you would have been injured if the act complained of had been done to you instead of to the plaintiff ? Such a rule would be a dangerous one to adopt in the administration of the law (Meyer v. Press Pub. Co., 46 Super. Ct. 127).

The judgment must be reversed.

Ingraham, J.

[Concurring.] After the charge to the jury on the questions of fact that they were to determine, and near the end of the charge, the learned judge, on laying down the rule as the method of ascertaining the damages in case the jury should find for the plaintiff, told the jury that as good a way-to get at the amount of damage as any, “is to bring the question home to yourselves” (the jury) “ and say, putting yourselves in the position -of the party defamed, what would you, with your knowledge of the world and of mankind, and of the result of a defamation be willing to be libeled in that way for?” This it appears to me in effect instructed the jury that they were to ascertain the damages that the plaintiff had sustained in consequence of the libel complained of, not by assessing from the evidence in the case the amount of the injury inflicted on her, so that she would be compensated for such injury, but for the jury to ascertain “from their knowledge of the world and of mankind, and the result of a defamation,” the amount they would be willing to be so libeled for.

They were not to compensate plaintiff for the injury she had received, but were to, give her such an amount as would compensate the jury for a similar libel published about them, and they were to arrive at such a determination, not from the evidence in the case, but from the jury’s “knowledge of the world, of mankind and the result of a defamation.” '

It is hardly necessary to cite authorities to show that such an instruction is entirely inconsistent with every principle of the common law, on the question of the measure of damages.

' Judge Parsons says, “ the principle which measures damages at common law, is that of giving compensation for the injury sustained, a compensation which shall put the injured party in the same position in which Tie would have stood had he not been injured” (3 Parsons Contr. 155).

It was, however, claimed on the argument that there was no exception to this portion of the charge. After the court had finished the charge, counsel for the defendant requested the court to charge that in the absence of express malice, the answer and defense should not aggravate the damages, and to this the judge replied, “I have charged otherwise, and I give you an exception both as to the method of ascertaining damages charged, and to the portion of the charge which permits the jury to consider the averments of the answer, bill of particulars, and conduct of the defense, in aggravation of damages.” The request referred to the aggravation of damages, to that the court allowed an exception and also an exception to the “ method of ascertaining damages charged.” Now the only “ method of ascertaining damages charged ” was the one to which attention had been called, for the court after stating that there was “ no well defined rule by which you can estimate the value of a good name to a woman or honor to a man,” said 11 as good a way as any to get at it is, bring the question home to yourselves,” and then follows the direction of the jury in question. This is the rule the learned judge laid down as the “ method of ascertaining the damages,” and is the only portion of the charge that I have discovered to which such an exception could apply. In People ex rel. Dailey v. Livingston (79 N. Y. 279), the case stated that the defendant excepted to the closing of the charge in. regard to the ballot boxes. The court, holding that that was a sufficient exception, say, “It would have been strictly more accurate to have repeated the language excepted to, but the exception referred to. the close of the charge and the subject. There was a single idea in that part of the. charge, and that was expressed in clear and emphatic language. The exception could not have referred to anything else, and it is difficult to see how there could have been any misapprehension as to the application of the exception and it seems to me that whát was said in that case applies to the case at bar.

The court allowed .the exception and it was to the particularruling now sought to be reviewed, consequently the case is not one of the class of which Briggs v. Waldron (83 N. Y. 582), is an example.

There it appeared at the beginning of the trial, there was a statement that the court directed that whatever should'be objected to, the stenographer should enter an exception. The court of appeals say that this was simply regarded as entitling the defendant on the settlement of the case to have an exception entered to such ruling as he desired to review upon appeal, and held it was the duty of the appellant to see that an exception upon which he intended to rely, was properly noted; but in this case the exception was to a particular rule laid down by the court in the charge; after the court had allowed the exception it would have been useless for the appellant to have made a request for such an exception. By such a request defendant could not have obtained more than had been given by the court, viz., an exception to the instruction on the point mentioned, and the defendant was by the action of the judge prevented from asking for an exception to such ruling.

Without passing on the other serious questions presented on the appeal, I am of the opinion that for the error above mentioned there should be a new trial, and I therefore concur with Judge Truax, that the judgment should be reversed and a new trial granted, with costs to abide the event.

Sedgwick, Ch. J.

—[Dissenting.] I am unable to agree with Judge Ingraham, in his discrimination of this case from Briggs v. Waldron (83 N. Y. 582), or with the position of Judge Truax. I have therefore to dissent from their conclusion.