author: By the Court, Robertson, Ch. J.

text:
    Aaron Healy et al. ex’rs &c., plaintiffs and respondents, vs. Winthrop W. Gilman, defendant and appellant. The Same, plaintiffs and appellants, vs. The Same, defendants and respondents.
    1. Where the parties to an action consented, in writing, to an order of reference of all the issues therein to three referees, and at the same time entered into a stipulation annexed to such consent, signed by themselves and their attorneys, whereby they prescribed and limited evidence to be introduced before such referees on such referenpe; fixed the time for rendering their report; made it final; provided for entering judgment thereon in the usual manner; and waived any right of appeal from such judgment; but provided that the authority of two of the referees, named, should cease, in case the report was not “ rendered ” within a given time after certain evidence was introduced; and the third should proceed as sole referee, and “ render ” a report on the same evidence, within a certain time after such termination of the authority of his" associates:

      Held, 1. That notwithstanding such stipulation contained a provision that the same should be annexed to and form a part of the judgment roll, yet that by the consent that the order of reference should be entered in the usual form and by its corresponding entry the court retained jurisdiction of such action, as such, and did not lose it in consequence of such stipulation; particularly where the parties proceeded on the trial before such referees, without any objection. So far as either controlled the other, the order made by the court was paramount, and overruled any tendency of the stipulation to convert the reference into a mere arbitration.
    2. The mere waiver of the right of appeal, as formerly of a release of errors in a judgment, neither enlarged nor diminished the powers of the referees, and did not by itself convert such reference into an arbitration.
    3. Where, in such case, two of the referees made a report in favor of the defendants, the latter were entitled to enter judgment thereon, according to such stipulation, if made within the time fixed therein, and generally according to its terms.
    4. The terms of such stipulation as to “ rendering ” a report were satisfied, by its being made and delivered to the successful party, for the purpose of enabling them to enter judgment upon it in the usual way,
    (Before Robertson, Ch. J., and McCunn and Jones, JJ.)
    Heard March 5, 1866;
    decided June 30, 1866.)
    This action was brought in the year 1855, to recover $22,226.99, alleged to be due from the defendant to the firm of N. Gilman & Son, under whom the plaintiffs claimed. The trial of the issues requiring the examination, of a long account, in November, 1855, on the plaintiffs’ motion, the cause was referred to a referee to hear and determine. In May, 1856, the referee reported in favor of the plaintiffs for $23,792.21. On his report, judgment being entered, the defendant appealed to the general term, and in May, 1857, a new trial was ordered. (See reasons stated in 1 Bosw. 235.) The trial was again had before the same referee, (Mr. Maurice.) Testimony was taken and the cause was submitted to the referee. On the trial the plaintiffs had offered in evidence the books of N. Gilman & Son, which had been excluded on the previous trial on objections made in behalf of the defendant.
    The' referee not having reported, the parties agreed to associate two other referees with Mr. Maurice; and thereupon the following order was entered, on the consent of both parties:

      “ On reading and filing a consent, bearing date the 12th day of December, 1864, and signed by the parties hereto: Ordered, that the order entered herein on the 3d day of November, 1855, by which this cause was referred to James Maurice, Esq., as sole referee, be and the same is hereby vacated.
    And it is further ordered, that this action and all the issues therein be, and the same are hereby referred to James Maurice, Henry G-. Lapham and Alexander Studwell, to hear and determine the same, and that this order be entered mine pro. tune as of the said third day of November, 1855.”
    The parties, at the time of consenting to such order, entered into the following stipulation or agreement which was signed by them, individually, as well as by their attorneys :
    [Title of cause.] “ The parties hereto stipulate as follows:

      First. The order entered herein, on the third day of November, 1855, shall be vacated, and the order hereto annexed shall be entered nunc pro tunc as of that daté.

      Second. All the testimony taken in this case, before Mr. Maurice, on the second trial, shall be considered as having been submitted to the referees named in the annexed order by the parties by whom it has been offered, respectively, and shall have the same weight and effect as if it had been taken before them.

      Third. The plaintiffs shall also produce and put in evidence. before the said referees, all the check books, memorandum books and books of account of Nathaniel Gilman & Son, which h*ave come to their possession, containing any entries or memoranda subsequent in date to December 1st, 1846.

      Fourth. The plaintiffs shall also produce, and the defendants shall put in evidence before the said referees, a certain agreement in writing between the said firm and Isaac Redington, referred to in the testimony taken herein, together with all books and papers in their possession or under their control, relating to said agreement.

      Fifth. No other testimony shall be offered by either party before the said referees, or received by them.

      Sixth. The said referees shall render their report within ninety days from the date when the said books shall be put in evidence, and the said agreement and the books and papers relating thereto shall be produced.

      Seventh. Should the said referees, or a majority of them, fail to render a report within the said ninety days, then the authority of the said Henry G. Lapham and Alexander Studwell, as referees, shall forthwith cease,' and the said James Maurice shall proceed as sole referee, and shall render a report on the testimony herein provided for within thirty days after such termination of the authority of the said Lapham and Studwell.

      Eighth. The report to be rendered under this stipulation shall be final between the parties. Judgment shall be entered thereon in the usual manner, and neither party shall appeal from the said judgment.

      Ninth. This stipulation shall be filed forthwith, and shall be attached to and form part of the judgment roll herein.”
    The referees appointed by this order met. The books, agreement and papers referred to in the stipulation were put in evidence on the 9th day of February, 1865, and the cause was argued orally and submitted upon written briefs. The three referees failed to agree. Two of them, however, Messrs. Lapham and Studwell, did agree. They made up and signed their report on the 21st day of April, 1865, and about four days afterwards caused notice to be given to the defendant’s attorney that the report was ready for him, on payment of fees.
    In May, 1865, before the ninety days provided for in the stipulation had expired, the defendant’s attorney paid the fees of all the referees, and the report was delivered to him hy a person with whom it had been left for that purpose. The defendant’s attorney was proceeding to enter up judgment on the report, and had served his papers for a ¿motion for an allowance, when an order made by Justice Garvin was served on him, staying his proceedings, and requiring him to show cause why the report should not be declared void, on the alleged ground that it had not been “rendered” within the ninety days specified in the stipulation. The order to show cause came on to be heard in May, 1865 ; the plaintiffs’ motion thereon was denied, and the case now came before the court on the appeal of the plaintiffs from the order denying that motion. The plaintiffs having given notice to Mr. Maurice to make up and render a report, the defendant obtained two orders to show cause and staying their proceedings. The parties agreed < that appeals from the decisions made upon these orders should be heard with the plaintiffs’ appeal, before mentioned, and that all the papers read upon either of the motions should be considered as read upon all the motions.
    The report signed by Messrs. Lapham and Studwell found that the defendant was not indebted to the plaintiffs in any sum whatever; that signed by Mr. Maurice found that he was indebted to them in the sum of $2966.20.

      S. P. Nash, for the plaintiffs.
    I. The agreement or stipulation entered into by the parties was, in substance and- effect, a virtual submission of the questions at issue to an arbitration, and the decision and proceedings of the referees thereunder, are to be governed and controlled by the laws of arbitration and award.
    1. Every feature incident to a submission was contained in this agreement. It prescribes the particular evidence to be received, and limits the powers of the referees in that respect; designates the persons who are to arbitrate ; limits the time within which the. case is, to, be heard and the award rendered; provides for the failure of a majority decision ; directs the decision, when made, to be final, and prohibits an appeal therefrom; and for the purpose of making the agreement effectual and binding, the parties individually signed the same. (Russell on Arbitrators, 49. Merritt v. Thompson, 27 N. Y. Rep. 225, 230.)
    2. It created a proceeding entirely different from a reference under the Code. No witnesses were to be examined. The parties themselves, and not the referees, designated what testimony should be received, and prohibited the receipt of any additional evidence. As the admissibility of evidence was thus controlled by the parties, the referees were not governed by the legal rules of evidence. Neither was their decision subject to the confirmation or reversal of the court, for it was to be final and conclusive. In all these respects the proceeding differed from a reference. (Code, § 272. Merritt v. Thompson, 27 N. Y. Rep. 230.)
    3. Neither was such agreement made an order of the court. It provided for the entry of an order, simply vacating an order of reference originally entered in the cause, and appointing the three persons who should hear the matters at issue anew, but none of the terms, conditions or stipulations of the agreement were incorporated into such or any order of the court. By the arbitrary act of the. parties-themselves, all acts and powers of the referees were to be thenceforward controlled by the terms of their agreement and not by the court. The parties evidently intended to withdraw the case from court, and they could not have done this more effectually.
    4. Whatever may have been the intent or purpose of the parties, as to which they now differ, the agreement, which must control substantially, created a proceeding radically different from a reference under the Code. Even if the parties had expressly declared that it should be so deemed, such declaration would not have changed its character. (Merritt v. Thompson, 27 N. Y. Rep. 230. Brady v. The Mayor of Brooklyn, 1 Barb. 591.)

      5. The referees, when they came to act under such agreement, possessed the powers of arbitrators, and no others, and their acts and doings were subject to, and to be judged by, the law governing arbitrations and awards.
    II. The agreement being, therefore, in effect a submission to arbitration, and subject to those principles of law governing arbitrations, it follows that the paper purporting to be a decision of Messrs. Lapham and Studwell is .null and void, and should be set aside.
    ■ 1. Such decision was not rendered within the time limited for that purpose.

      (a.) It is one of the essential requisites to the validity of an award, that it should be rendered to both parties within the time specified in the submission. A delivery to one party is not sufficient, and a failure to deliver the same to the other party renders the award void. (Russell on Arbitrators, 238, 239. Watson on Arbitration, 131. Pratt v. Hackett, 6 John. 14. Buck v. Wadsworth, 1 Hill, 143. Perkins v. Wing, 10 John. 143. Sellick v. Addams, 15 id. 198.)

      (b.) The term “ render ” has a very different signification from the words “ make and deliver,” which are used in the Code. (§ 273.) It has the same meaning and effect as when used in connection with the rendering of a verdict by a jury, which is given in open court, within the hearing and knowledge of both parties. To “ fender,” therefore, required an announcement in form, to both parties, within the time limited, and not a delivery of the decision to one party alone.

      (c.) Unless we thus interpret the word “render,” the agreement could not be carried into effect. Suppose a collusive, imperfect or erroneous report had been made by two of the referees, and delivered to one party, without the knowledge of the other. Such report could be retained until it was too late for the other party to obtain a report from the remaining referee, and although it might then be set aside,” upon motion, yet, as the power of the remaining referee to act had expired, the whole case would be thrown open to litigation, and the provision of the agreement for a second report would thus become entirely nugatory.
    (d.) The construction thus put-upon the term “render,” is not forced or technical. It is manifest from a true construction of the agreement, that the parties intended that whatever decision should be arrived at by the referees within the ninety days limited for that purpose; should be communicated to both parties in form within that time; and as an award it could only thus have been rendered, to be valid and binding upon the parties.
    2. The award should have been rendered to both parties by delivering to them, respectively, a copy thereof, duly signed by the referees who made the same.

      (a.) Unless waived in express terms,' the parties must be respectively served with the original award. (Sellick v. Adams, 15 John. 198. Russell on Arbitrators, 236.)

      (b.) But in the present case, no original report and no copy thereof has been ever delivered to the plaintiffs. They have no actual knowledge of the existence of any such decision. The affidavits of the referees, Messrs. Lapham and Stadwell, attempt to show a conversation with one of the plaintiffs, when he was told that such report had been made; but this is denied by Mr. Healy, and besides, it is insufficient for the purpose claimed. A mere oral announcement, entirely informal, would not be sufficient.

      (o.) Service of the award was not made upon the attorney. The paper purporting to be a report was served seven days after the expiration of the time limited' by the agreement; and was not served as a report, but merely as a. moving paper»to be read upon a proposed motion of the defendant.

      {d.) The report was not filed in the office of the clerk of this court. It was a sealed paper to every one except the defendant and his attorney.
    III. The decision of James Maurice was made and rendered in due form within the time allowed for that purpose, and should be declared valid and binding upon the parties. It was rendered to both parties within the true intent and meaning of the said agreement, within the time limited therefor. It was filed in the clerk’s office, and is the first report on file in this” proceeding. It was served by delivering original copies to the parties personally, within such time; and is, therefore, the only report which has been rendered to the parties.

      TV. The plaintiffs in this action are executors. Two reports have been already had in their favor in the suit at law. The first was set aside by' the general term, upon a question of evidence. The second was abandoned, and the present proceeding was agreed upon, to prevent an expensive and tedious appeal. There is, therefore, a merit in the present application which will justify the court, if the foregoing views are correct, in setting aside the report of Messrs. Lapham and Studwell, and declaring the report of Mr. Maurice (who was the only law referee) valid and binding in accordance with the agreement of the parties.
    V. The order entered herein at special term on the 25th day of May, 1865, should be reversed, and an order entered declaring and adjudging the pretended report of Messrs. Lapham and Studwell to be null and void, and of no validity, force or effect; and further declaring and adjudging the report of James Maurice, dated June 6,1865, to be valid and binding upon the parties. The orders entered herein on the 27th May, 1865, and the 29th June, 1865, should be affirmed.

      G. S. Glover, for the defendant.
    The only question that arises on this appeal is, was the report signed by Messrs. Lapham and Studwell “ rendered ” within ninety days from the ninth day of February, 1865. The plaintiffs do not deny that, if it is to be considered as a report of referees, it was so rendered. But they claim that the reference was in fact a submission to arbitration ; and that certain 'formalities are necessary in the rendering of an award of arbitrators, which were not observed in this case. The points presented, therefore, are:

      First. Was this a reference, or a submission to arbitration ?

      Second. If it was a submission to arbitration, was the award signed by Messrs. Lapham and Studwell properly “ rendered ?”
    I. The reference was, both in form and substance, a mere ordinary reference, provided for by the Code at sections 270 and 271, and not an arbitration.
    1. The trial of the issues requiring the examination of a long account, the order of reference was entered upon the written consent of the parties, by their attorneys.
    2. In support of the plaintiffs’ position, that the reference was a submission to arbitration, certain cases were cited by the counsel on the argument below which, however, entirely failed to sustain his position.

      (a.) All that these cases decide is, that where an action not referrible in its nature is referred by consent, the reference must be considered as a submission to arbitrators. (Camp v. Root, 18 John. 22. Miller v. Vaughan, 1 id. 315. Johnson v. Parmely, 17 id. 129.) The only principle which gov'erns these cases is, that where the parties have submitted their controversy to a domestic tribunal of their own choosing," the court is ousted of jurisdiction. Following this principle, the same rule has been applied to cases where, when the statute required three referees, the reference was. to one, two or four. (Rathbone v. Lownsbury, 2 Wend. 595. Dodge v. Waterbury, 8 Cowen, 136. Jones v. Cuyler, 16 Barb. 576.) Also to a case where an action at law was referred by consent, to be decided on equitable principles. (Blunt v. Whitney, 3 Sandf. 4.) And to a case where part only of a controversy was referred by consent, no order of the court being made, and the parties stipulated that the referee should “ not be bound by strict legal rules of evidence.” (Merritt v. Thompson, 27 N. Y. Rep. 225, 229, 230.)
    (6.) But it will be found, on examining the cases, that the rule has been applied with great caution. Thus, in
      Harris v. Bradshaw, (18 John. 26,) where the action, though in assumpsit, was not referable, because it did not involve the examination of a long account; yet the parties having agreed to refer it, the report was treated as the report of a referee, and it was held that an action would not lie on it as an award. Even where actions sounding in tort have been referred by consent, if the parties have stipulated that judgment shall be entered on the report, the court will treat it as the report of a referee. (Yates v. Russell, 17 John. 461. Green v. Patchin, 13 Wend. 293. Ex parte Wright, 6 Cowen, 399.)
    ■ (e.) Thus, before the Code, and even before the revision of the statutes, the court would have held the report in this case to be the report of referees, both because the action, being on contract and involving the examination of 'a long account, was referable in its nature, and the stipulation had provided that judgment should be entered upon the report.
    3. But it is claimed, on the other side, that the stipulation contains limitations of the powers of the referees, which turned the reference into an arbitration; and it is contended that the following provisions have that -effect, namely: 1st. It provided what testimony shall be submitted to the referees. Stipulations of this kind are of the most ordinary occurrence, and are proper upon any trial, whether by a court, jury or referees. 2d. It designated the time within which the report shall be rendered. This was necessary under section 273 of the Code, because the parties thought that sixty days were not sufficient for a proper examination of the case. The section itself provides for such a stipulation. 3d. It provided that if the referees, or a majority of them, did not render their report within ninety days, then the authority of Messrs. Lapham and Studwell as referees should cease, and Mr. Maurice should proceed as sole referee, and render a report within thirty days thereafter. This was simply a consent that, in a certain contingency, the order of reference to "the three might be vacated, and a -new order of reference entered to Mr. Maurice alone. Had the contingency arisen, the court wpuld have made such an order on the stipulation. As it did not arise, the provision has no bearing upon this argument. 4th. It provided that no appeal should be taken from the judgment. This stipulation was made and put on file, in order to bring the case within the authority of Townsend v. The Masterson Stone Dressing Co., (15 N. Y. Rep. 587,) where it was held that the court would enforce such a stipulation. It no more ousted the court of jurisdiction in this case than it did in that. Thus the special provisions of the stipulation, relied upon by the plaintiffs’ counsel in his argumant, were merely such as are frequently made by parties in the orderly conduct of a suit, and none of them in any way impaired the jurisdiction of the court.
    II. Had this been a submission to arbitrators, the court would still hold that the award signed by Messrs. Lapham and Studwell was properly “ rendered.”
    1. There is no general or technical rule prescribing the mode in which arbitrators shall make and deliver-their award. All that is required of them is to conform to the terms, of the submission. (Watson on Arbitration, 129 et seq., 43 Law Lib. N. S. Russell on Arbitrators, 236 to 240, 47 Law. Lib. N. S. Caldwell on Arbitration, 104-139.)
    2. Two classes of cases have misled the plaintiffs upon this point:
    (a.) From time immemorial the ordinary form of submission has contained our “ita quod” clause; (Oliver’s Conveyaneing, p. 197;) and it has uniformly been held that the presence of this clause made the submission conditional, and that it must therefore be strictly followed. Hence, it is easy to find cases where, the submission containing this clause, the omission to have the award ready to be delivered to both the parties on the day, has been held to be fatal. Such are the .following cases: Pratt v. Hackett, (6 John. 14;) Buck v. Wadsworth, (1 Hill, 321;) Perkins v. Wing, (10 John. 143;) Sellick v. Addams, (15 id. 198.)
    (6.) Another class of cases consists of those where ac-. tions have been brought on awards, and the question has been raised whether the unsuccessful party was entitled to notice of the award before suit brought. It has generally been held that he was not, unless the submission required it; although there are some decisions the other way. The case at bar cannot be brought within either of these classes of cases.

      (a.) The stipulation here simply required the referees to “render their report within ninety days.” Messrs. Lap-ham and Studwell interpreted these words in the ordinary sense in which they are used in the daily practice of the court. Within the time specified they signed the report and delivered it to the attorney of the successful party, in order that he might enter judgment upon it, “ in the usual manner,” as the stipulation bad provided. In doing this they did all that would have been necessary, had the reference been an arbitration, for they conformed to the terms of the submission. It is a mistake to suppose that the conduct of arbitrators is governed by any strict or technical rules. On the contrary, the modern doctrine is that “ every reasonable intendment must be made to uphold an award.” (Ott v. Schroeppel, 1 Seld. 482.)
    III. The plaintiffs were not entitled to notice at the expiration of the ninety days, in order to enable them to call on Mr. Maurice for a report, if no report had been made by a majority of the referees within that time. The whole case had been submitted to the referees, and the stipulation was before them as a part of the record. If no report had been made by a majority of them within the ninety days, it would have become the duty of Mr. Maurice to make up his report at once, and he would have done so. The interference of the plaintiffs would have been entirely unnecessary. The very argument by which they seek to establish that they were entitled to notice, if a report was not made, of itself implies that they were not entitled to such notice if a report was made. In point of fact, the plaintiffs received notice before the ninety days expired.
    IV. Should the plaintiffs succeed upon this appeal, the result would be that the report in favor of the defendant of two .of the referees agreed upon by the parties, would be set aside, and a report of the third referee, alone, in favor, of the plaintiffs, would be substituted for it, and upon this latter report the plaintiffs would enter a judgment against the defendant, from which he would be precluded from appealing. And the court is asked to make a decision leading to this result, on the ground that the two referees, who were laymen, have omitted certain technical .'formalities in the rendering of their report, although it appears that in their action they followed the advice of the third referee, who was a lawyer, and whose decision it is sought to substitute for theirs.
    V. For the reasons stated, the order denying the plaintiffs’ motion should be affirmed, with costs. And the two orders denying the defendant’s motions should be reversed, with costs. These motions were necessary for the defendant’s protection. The first was made on the receipt of the notice, when Mr. Maurice had not made up his report. On the 8th of June his report was put on file, and then the defendant made his second motion. Both motions were necessary to prevent a judgment from being entered on Mr. Maurice’s report.
   By the Court, Robertson, Ch. J.

The order of reference of all the issues in this action to three referees was made on the written consent of both parties annexed to the original draft of such order. Cotemp oran eously with such consent, before the entry of such order, the parties themselves and their attorneys signed an agreement or stipulation in writing prescribing and limiting the testimony to be introduced before, and received by such referees, the time when their report should be rendered, and the finality of the report so to be rendered; and also providing for entering a judgment upon such report in the usual manner, and waiving an appeal from such judgment, by both parties. Such stipulation further declared that it should be filed and form part of the judgment roll in the action, and provided that in ease the report was not made by the time limited therein, the authority of two of the referees (Lapham and Studwell) should cease, and the third referee (Maurice) should proceed, as sole referee and render a report on the same testimony, within a certain time (thirty days) after such termination of the authority of his associates. The testimony so prescribed was to consist of that taken before a prior referee in this action, certain books containing, certain memoranda to be produced by the plaintiffs, and a specified agreement.

The issues were tried before such referees, by two of whom a report was signed in favor of the defendants, and delivered to their attorney, within the time fixed by the stipulation.

The entry of judgment thereon was stopped by the order to show cause, on which the order now appealed from by the plaintiffs was made, with a stay of proceedings accompanying it.

The plaintiffs claim the proceeding in question to have been an arbitration, and the report an award, because the stipulation prescribes the testimony to be received, designates the arbitrators, limits the time of rendering the report, provides for a new decision, waives an appeal, and is signed by the parties. They insist, also, that the report as an award is void, because no notice of it was given to them. The order of reference was made in the usual form, without any limitation or proviso, by consent of the parties, signed cotemporaneously with the stipulation, and was entered, and proceeded on afterwards without objection by either party. Such an order, so made and proceeded on, could not well take a cause entirely out of court, which, on the contrary, thereby necessarily retained jurisdiction of it. So far as either controlled the other, such order must have been paramount, and superseded any tendency of such stipulation to take the cause out of court. If the order of reference so retaining the cause in court had not been made according to the understanding of the parties, or was to be controlled by the stipulation in that respect, the remedy was by application to the court to modify or vacate such order. The consent to entering the order was entirely distinct and separate from the stipulation, and presupposed its subsequent entry, and therefore, on such an application, unless the terms of the latter were strong enough either to take away all the powers of the referees as officers of the court, or to give them wider discretion than as such they were entitled to (Merritt v. Thompson, 27 N. Y. Rep. 225; Blunt v. Whitney, 3 Sandf. 4) in admitting or rejecting evidence or claims, I apprehend the parties ■ would be held to the terms of their consent. The provision as to taking away the powers of two of the referees, and conferring the whole upon one, after a certain time, might have been a good ground, if the cause remained in court, for applying to the court to vacate the order of reference, and make a new one, but could not, ipso facto, render a report made under the first order of reference void, and clearly could not make good a report by one, to whom alone no order of reference had been made. The terms of the stipulation as to the admission and exclusion of evidence is nothing more than is done daily upon almost every trial in court. Parties do not take a case out of court, on a trial, by either waiving an objection to, or introducing illegal evidence, or agreeing to forego legal evidence. Such an agreement restricted their powers as arbitrators as much as it did as referees. The nomination of the referees was followed in the order of reference.' A consent to have them appointed does not take away the jurisdiction of the court, as fully appears by the 273d section of the Code. The waiver of a right of appeal, like a release of error in a judgment formerly, does-not enlarge or diminish the powers of the referees, and would mot alone convert a reference into an arbitration. (Townsend v. The Masterson Stone Dressing Company, 15 N. Y. Rep. 587.) The signature of the parties to the stipulation, which was not necessary to a submission in order to take a case out of court, (Wells v. Lain, 15 Wend. 99,) was a proper measure of precaution by the attorneys to protect themselves against a. charge of exceeding their authority, but it was also signed by the attorneys, as required by the rules of the court, to make a binding stipulation in the cause. All the terms of this stipulation are often contained in various ones given in the course of a cause; their embodiment in one paper gives them no more efficacy than if scattered through several.

But besides this, the stipulation contained an agreement that judgment should he entered upon the report in the usual manner; and it has been held by the court of last resort in this state, even when the reference of actions not referrible, or to more or less than three, created arbitrations, (Miller v. Vaughan, 1 John. 315; Dodge v. Waterbury, 8 Cowen, 136; Jones v. Cuyler, 16 Barb. 576,) that such a stipulation retained the case in court sufficiently to allow such judgment to be entered as one by consent, (Yates v. Russell, 17 John. 461; Green v. Patchin, 13 Wend. 293,) although the contrary was determined when there was no such stipulation. (Camp v. Root, 18 John. 22. Green v. Patchin, ubi supra.) And a submission with such a stipulation seems in one ease to have been considered so little of a discontinuance as, on a revocation of the submission by one party, to permit the other party to proceed to trial in the cause. (Ex parte Wright, 6 Cowen, 399.) The defendants were therefore entitled to» enter judgment on the report of the two referees, according to such stipulation, if made according to the terms of the agreement, which .is that the referees should “ render'” their report within a certain time after the introduction of certain documents before them. I should have supposed, hut for the strenuous advocacy of the plaintiffs’ counsel, that to render was never properly applied to an award which is made and published, but was to a report; as being similar to a verdict, and, like it, rendered to the court, not to the parties. There was evidently, however, but one report to be made, as it is declared that judgment shall be entered on it, and that too “in the usual mannerWhether, therefore, an arbitration was in fact created or not, it is evident from the whole instrument that both parties understood the proceeding to be a reference retaining the cause in court, to be proceeded upon in the usual way, after a report made and delivered to the successful party; and the language used by them is to be construed in reference to that view. I think, therefore, there can be no doubt that the words of the stipulation were satisfied by making a report and delivering it to the successful parties, for the purpose of enabling them to enter judgment upon it in the usual way.

The views already expressed equally govern the appeals from the orders made, refusing to set aside the report by the remaining referee, which was, of course, void, or to prevent the plaintiffs from using it. The prior motion to prevent the referee from making an award was, perhaps, premature, and the order, therefore, proper and not appealable.

The objections in this case to entering judgment were highly technical, as it appears from the affidavits of the two referees, and even of one of the plaintiffs, (Healy,) that he had notice of the making of the report and its general character and substance, before the time fixed had expired. They are therefore properly chargeable with costs on their appeal.

The order permitting the defendants to enter judgment upon the report of the two referees must, therefore, be affirmed, with costs,-and that refusing to set aside the report of the single referee must be reversed, with costs, and the appeal from the order refusing to permit such referee to make a. report, must be dismissed, without costs to either party.


source: Caselaw Access Project

author: Robertson, Ch. J.

license: Public Domain

text:
    Frederick N. Lawrence et al., assignees &c., plaintiffs, vs. The Bank of the Republic, defendant.
    1. Although an entry of judgment upon a remittitur from the Court of Appeals, with the costs inserted therein as adjusted, in the absence of the attorney of the unsuccessful party, is irregular, the whole judgment is not void for irregularity in inserting such costs. The irregularity, being confined to the entry of the award of the costs, can be corrected by amending the judgment roll, docket and execution, by striking it out.
    2. A single judge of the Court of Appeals cannot stay proceedings by an ex parte order, absolutely, after a remittitur has been issued and placed in the hands of the prevailing party. An entry of judgment in pursuance of the remittitwr will therefore be formally correct, notwithstanding such an order.
    (Before Robertson, Ch. J., at Special Term,
    August 22, 1866.)
    This was a motion to set aside a judgment entered in this court, according to a remittitur from the Court of Appeals which reversed a judgment at general term, reversing a prior judgment at special term, and affirmed the latter,, judgment. On a certain day (July 12th) the plaintiffs’ attorney gave notice of an adjustment of his costs by the clerk of the court at his office, at a certain hour (10 o’clock) of the morning of the second day thereafter, (14th,) and of entering judgment upon such remittitur at half an hour afterwards, (10-|- o’clock.) Fext day (the 13th) an order was granted by one of the judges of the Court of Appeals, staying proceedings absolutely, for ten days. On the day fixed by such notice for the adjustment of costs, and at or before the hour designated therein, a copy of such order staying proceedings was served on the plaintiffs’ attorneys, at their office; but notice of it was verbally given by the defendant’s attorney to the clerk of such attorneys, in the office of the clerk of the court, who thereupon abstained at that time from having such costs adjusted, although they were adjusted at a later hour of. the same day. The motion for judgment on the remittitur was not made, although the latter had been filed by a clerk of the attorneys for the plaintiffs before any notice to him of the stay of proceedings. Ho evidence was furnished of the exact time of filing such remittitur, except an affidavit of. one of the attorneys for the plaintiffs, that he inferred that it was filed before such service of a copy of the stay of proceedings, from the speediness of his clerk’s return after the service of such order, after being dispatched to file such remittitur. The attorneys for the plaintiffs, later in the same day, entered judgment according to the remittitur,' with an award of the costs, which had been adjusted ex parte, and served notice of readjusting such costs at a future day, and of being ready to deduct any sum stricken from the amount of such costs,
    on their being readjusted. Such costs were readjusted on the day fixed in such notice.

      J. Larocque, for the plaintiffs.

      T. H. Rodman, for' the defendant.
   Robertson, Ch. J.

The first question on this motion, which presents itself, is whether the entry of the judgment on the remittitur, with the costs inserted as adjusted in the absence of the defendant’s attorney, was irregular. The Co'de provides (§ 311) that “the clerk shall insert in the entry of judgment, * * upon two days’ notice, the sum of the allowances for costs, as provided ” thereby, “necessary disbursements,” &c. This was properly and finally decided by this court (all the justices concurring) only to make the entry of costs in the judgment without notice of adjustment, and all subsequent proceedings containing such erroneous award of costs, and not the judgment itself, irregular. (Gilmartin v. Smith, 4 Sandf. 684.) And such principle was sustained by the Supreme Court, in Mitchell v. Hall, (7 How. 491.) I do not understand that it was intended, in either case, to hold the whole judgment to have been void for irregularity in inserting such costs. The irregularity, therefore, being confined to the entry of an award of the costs, could be corrected by amending the judgment roll, docket and execution, by striking it out. So that it still remains necessary to determine how far a single justice of the' Court of Appeals can stay proceedings, by an ex parte order, absolutely, after a remittitur in the hands of a prevailing party.

All the cases coincide in the view that all jurisdiction of the appellate court is parted with after judgment on appeal, and the filing of a remittitur in the court below. (Martin v. Wilson, 1 Comst. 240. Burkle v. Luce, Id. 239. Frazer v. Western, 3 How. 235. Latson v. Wallace, 9 id. 334. Dresser v. Brooks, 2 Comst. 559.) The only remedy for an error in the substance of the judgment remitted, seems to be a new appeal. Irregularities may be cured on motion, (Palmer v. Lawrence, 5 N. Y. Rep. 455; Newton v. Harris, 8 Barb. 306,) after a return of the remittitur by the court below, on request. But such request must be made by resolution by the appellate court as a body, and not by the order of any member of it. (Selden v. Vermilye, 3 Sandf. 683. Bogardus v. Rosendale Manufg. Co., 1 Duer, 592. Newton v. Harris, ubi sup.) Upon the correction of any irregularity, the judgment of the court below may be made to conform to the amended remittitur. (Id.) The Code (§ 12) prescribes that “the judgment óf the Court of Appeals shall be remitted to the court below, to be enforced according to law.” Meaning, undoubtedly, as such judgment never had previously been that of the court below, “transmitted.” This confers the right, and imposes the duty, on the. court below to enforce, as such, the judgment of the court above. To do which, by its ordinary process and machinery of executing justice, it is compelled tq enter a corresponding formal judgment of its own. The conformation by the court below of its prior judgment to that of the appellate court, where it is merely one of simple affirmance or reversal, is a purely formal act. (Union India Rubber Co. v. Babcock, 4 Duer, 620.) • The omission to procure it may be supplied by the court below, and is disregarded in the appellate court. (Chautauqua Co. Bank v. White, 23 N. Y. Rep. 347.) The mere possession, even, by the prevailing party, of a remittitur directing a new trial, without filing it, has been held sufficient to sanction' such new. trial. (Judson v. Gray, 17 How. 289.) ' It is true, that if the remittitur contains special provisions to be carried out by the court below, it seems to be more regular, if not indispensable, to have the order settled and entered. • (Seacord v. Morgan, 17 How. 394.) '

The order, therefore, made in this case by a single justice of the Court of Appeals, was without jurisdiction, so far as the entry of a judgment in this court was concerned, and the entry of such' judgment was formally correct, as the judgment of the appellate court was merely one of reversal of one at general term, leaving that at special term to stand.

. Moreover, the 18th rule of the Court of Appeals only confers the power on that court to stay proceedings upon an order of a single judge, when “ served with papers and notice of motion,” which was not done in this case. An absolute stay of proceedings would be a perpetual injunction order, which no judge of the appellate court has a right to grant.

"With every respect for the learned judge who granted the order in this case, I cannot doubt that it was extra judicem, and so his subsequent revocation of it seems to indicate was his own opinion.

The motion to set aside the judgment and execution for irregularity must be denied, with $7 costs.


author: Barbour, J.

text:
    John W. Hadfield, plaintiff, vs. The Mayor &c. of the City of New York, defendants.
    ■ 1. A statute, the intention and design of which, manifestly, is to deprive the plaintiff, in a judgment recovered upon contract, which is in existence and in full focre when such statute is passed, of his remedy upon such judgment and his rights thereunder, forever, unless the legislature shall in its discretion, at some future time, by a new law, provide for its payment, is unconstitutional.
    2. So held in respect to the act of the legislature, of May 1, 1865, (laws of 1865, eh. 646, § 5,) authorizing the board of supervisors of the county of New York to raise money by tax, &c.
    (Before Barbour, J., at Special Term,
    October, 1866.)
    This was. a motion on the part of the defendants for an order vacating and setting aside an execution issued upon the judgment in this action, based upon a provision of the statutes of the state, passed in 1865, (Y. Y. Sess. Laws, 1865, oh. 646, § 5,) relating to taxes and expenditures for the city of Hew York, whereby the amount of all final judgments recovered against the city, after the confirmation (by the supervisors) of the tax levy for the year 1865, shall be included by the comptroller in his next annual report or budget, and shall be included in the tax levy for the current year, and until the moneys to pay such judgments shall have been so raised, the issuing of any execution against the defendants is prohibited, unless the amount of such judgment should not be included in the succeeding tax levy passed by the legislature. The judgment in question was recovered subsequent to the passage of that act; but the contract upon which it was founded was entered into before the act was passed.

      R. H. Huntley, for the plaintiff.

      D. J. Dean, for the defendants.
   Barbour, J.

It is not necessary to consider the question whether the restriction in regard to executions and judgments, referred to in the statute in question, is expressed in the title of the act, or whether such act embraces more than one subject, within the meaning of the 16th section of the third article of the constitution. It is sufficient to say in this case that the intention and design of the provision of the act in question is, manifestly, to deprive the plaintiff, in a judgment recovered upon a contract, which was in existence and in full force when such act was passed, of his remedy upon such judgment, and his rights thereunder, forever, unless the legislature shall, in its discretion, at some future time, by a new law, provide for its payment. The question as to the unconstitutionality of statutes of this character is now so well settled, by numerous decisions in the Supreme Court of the United States and elsewhere, that nothing is necessary here beyond a mere statement of the case and a reference to the authorities. (Bronson v. Kinzie, 1 How. U. S. Rep. 315. McCracken v. Hayward, 2 id. 608. Curran v. State of Arkansas, 15 id. 304. Baumgardner v. Peigart, 4 Missouri R. 50. Call v. Hagger, 8 Mass. R. 429. See also Sedgwick on Stat. and Const. Law, 647 et seq., and 4 Kent’s Com. 434.)

The motion must be denied, with $10 costs.


text:
    Samuel McBurney, plaintiff and respondent, vs. Isaac K. Martin, defendant and appellant.
    1. An action for the conversion of money, and one for its receipt in a fiduciary capacity, must necessarily proceed upon entirely different and inconsistent grounds. The latter renders the liability to pay such money a mere debt, although a ground for arrest; the former constitutes a tort. Per Robertson, Oh. J.
    2. The second subdivision of section 179 of the Code was not intended to include, in the class of persons mentioned secondly therein as liable to be arrested, any one except those who received moneys purely in a fiduciary capacity as simple agents to apply it as directed or agreed.

      3. It therefore excludes all thosé who have a'personal interest in such money or its use, and a right to control it, independently of any appropriation of it according to instructions of the owner, or where the liability for repaying such moneys grows out of a transaction in which credit is given to the pecuniary responsibility of the recipient, and not merely confidence placed in his personal character.

      4. Where an assignor of the plaintiff, having employed the defendant as his broker, to sell for him a certain number (2500) of shares of stock (Erie Railway Company) not then owned by him, and placed in the hands of the defendant a certain sum ($8500) as security against loss by any temporary rise in the market value of such stock, in order to perform such contract, instructed the defendant to borrow, and the latter did borrow, the proper number of shares of the stock of said company, for delivery, and sold the same and delivered to the purchaser the shares so borrowed, and received from him the purchase money; Held that the moneys so received by the defendant were not received by him exclusively in a, fiduciary capacity.
    (Before Robertson, Ch. J., and Monell, J.)
    Heard October 6, 1866;
    decided November 15, 1866.
    Appeal from an order made at a special term, denying a motion to discharge an order of arrest.
    The. plaintiff alleged, in his complaint, as follows: On the 1st day of April, 1866, the defendant was, and at all times since had been, and then was engaged in business in the city of Hew York, as a broker, in the buying and selling of stocks upon commission. At different times and on divers days between the 16th day and 27th day of that month of April, (1866,) inclusive, one Alfred M. Parker duly retained said defendant as his broker and agent, for a certain commission, then and there agreed to be paid by Parker to him, to sell for him (Parker) twenty-five hundred shares of the common capital stock of the Erie Railway Company; and that in pursuance of such retainer the defendant did, at such times, in the city of Hew York, sell and deliver for Parker’s account, as his broker, twenty-five hundred shares of stock of the Erie Railway Company, on the days and in the quantities, and at the price set forth in a schedule annexed to the complaint. At the time of such retainer, and on divers days until and including the 10th day of May, 1866, Parker, at the request of the defendant, deposited with and left in the hands of the latter various sums of money, amounting in the aggregate to the . sum of $8500, to be held by him as collateral security, or by way of indemnity to the defendant, against any loss to him by reason of any appreciation or fluctuation in the price or market value of said stock so sold and delivered. Upon such sale, and in pursuance thereof, the defendant, as the agent-of Parker, in order to make a delivery of the shares so sold, at Parker’s request and upon his order, (he not having said shares at the time in his possession wherewith to make such delivery,) borrowed from some third person or persons, twenty-five hundred shares of the said common capital stock of the Erie Railway Company, and duly delivered the shares of stock so borrowed to the persons who had purchased the stock from the defendant as the broker of Parker. Upon such delivery the defendant, as such' agent and broker of Parker, received from such purchasers a certain sum ($181,675) in payment for the stock so sold and delivered, which said last mentioned sum was the property of Parker, and was received for him by said defendant in a fiduciary capacity; and the said Parker agreed that the defendant, as his said agent and broker, might keep the said sum in his (the defendant’s) hands, as collateral security to him (the defendant) against appreciation in the market price or value of the shares so borrowed, until such time as he, Parker, might order and direct him (the defendant) to purchase said shares of stock and return the same to the person or persons from whom the defendant had borrowed the same for him (Parker) and on his account. In consideration of such retainer and employment of the defendant by Parker, and of the commissions- so agreed to be paid by Parker to the defendant, and of the deposit of such sum of $8500 with the defendant by Parker, as margin, and of the said Parker permitting the defendant to retain the purchase money received by him for the .stock so sold and delivered by him, as collateral security against appreciation in the market value of such shares, as before set forth, the defendant promised and agreed with Parker to keep the shares of stock so sold and delivered as aforesaid, borrowed, and not to purchase the same on Parker’s account, or close the transaction until specially • instructed by Parker to buy in such stock, and close the transaction by returning the same to the person or persons to whom they should be coming at the time of such instructions. On or about the 15th day of May, 1866, the defendant, in violation of his duty as the broker of Parker, and of the rights of Parker in the premises, and of his express instructions theretofore given, and of his (the defendant’s) express agreement with and promise to Parker, and without any notice to Parker or calling on him for any further or other deposit or margin, bought in the said twenty-five hundred shares of stock, and delivered the same to the person or persons from whom he had so borrowed the same, and closed up that transaction. On making such unlawful and unauthorized purchase, the defendant used the moneys in his hands as the agent of said Parker as aforesaid, to wit, such sums of $181,675 and $8500, and misapplied the same, and wrongfully converted all of such money to his own (defendant’s) use. Parker, immediately upon being notified of such unlawful and unauthorized acts of said defendant, wholly repudiated the same, and notified the defendant .thereof. Afterwards, and on the 24th day of May, 1866, the shares of stock of the said Erie Railway Company had greatly declined in their market value, (to wit, tq_the market price of $66 a share,) and said shares have since greatly further declined in such market price; and on said 24th day of May, 1866, Parker duly requested and ordered the defendant to buy in said shares of stock at the then market price, and to return the stock so bought to the parties who had lent the same, and then and in that manner to close up the said transaction. The defendant wholly failed and refused to comply with Parker’s orders, and to buy in such shares of stock when thereto requested, to the great damage of Parker. That thereupon Parker demanded from the defendant all the moneys so received from him on the original sale of said shares of' stock, to wit, the sum of §181,675, and also his margins, amounting to the sum of §8500, as aforesaid, which said defendant refused. Parker offered to allow said defendant, out of said sum of §181,675, the sum which it would then be necessary to pay for twenty-five hundred shares of the common capital stock of the Erie Railway Company, and demanded of the defendant the balance, which the latter also refused, to pay. Subsequently, on the 5th of June, 1866, and after the execution and deliveiy of the assignment hereinafter mentioned, the plaintiff, in his own behalf, in like manner demanded payment of such sums of money, which the defendant refused to pay. By reason of the facts so set forth, Parker suffered damages to §30,000. ,
    And the plaintiff alleged and averred that Parker, for a valuable consideration, by deed of assignment duly executed and under seal, before the commencement of the action, duly transferred to the plaintiff all and every claim and demand which he then held against the defendant, including the claims and- demands arising out of the facts set forth, and that the plaintiff was then the lawful owner of the same. Wherefore the plaintiff demanded judgment against the defendant for the sum of §30,000, together with costs.
    The principal facts set forth in the complaint were repeated in an affidavit made by Parker, and were denied in an affidavit of the deféndant. An* order for arrest having been granted, the defendant on- his own affidavit moved to vacate the same; which motion, was denied; and he appealed to the general term.

      R. H. Huntley, for the defendant, appellant.

      G. C. Barrett, for the plaintiff, respondent.
   By the Court, Robertson, Ch. J.

The complaint not only sets up. a refusal by the defendant to pay money claimed to have been received by him in a fiduciary capacity for the plaintiff’s assignor, (Parker,) hut also his conversion of the same money. The relief demanded by it is the payment of a certain sum ($30,000) which it claims to have been the damages sustained by Parker by reason of the refusal of the defendant to pay over the proceeds of certain stock (Erie Railroad Co.) sold on behalf of the former, less the cost of a like number of shares, on a certain day, (May 24th, 1866,) when he required the defendant to buy them, and offered to allow him to deduct sufficient out of such proceeds for the purpose of paying the price thereof. Of course, if this were a mere action for damages for not buying stock according to instructions on a particular day, after an agreement to do so, the defendant could not be held to bail. Bor is there any thing before us to fix on the defendant a charge of having converted money not belonging ■ to him. The money received by him had no earmark. It was not a special deposit, nor does the complaint undertake to describe the kind or character of such money. It evidently became a mere debt, or chose in action, although if the defendant had received the money in a fiduciary capacity, he may be bound, under penalty of being arrested and held to bail therefor, to be able at all times to respond to a demand for it. A conversion of money, and its receipt in a fiduciary capacity, must necessarily be entirely different and inconsistent. The latter renders the liability to pay. such money a mere debt; the former constitutes a tort.

Most probably the defendant would be liable to be arrested in an action for the money received by him, if it had simply been deposited in his hands by the plaintiff’s assignor, as his money, free of all claims, in order to buy certain stock therewith, and he had refused so to apply it or pay it back. But in this case the prior part of the transactions between the parties left this money in his hands, as stated in the affidavit of Parker, as security against loss in case of a rise in the value of the stock. How he could sustain such loss if, according to the terms of his understanding with Parker, he was bound continually to borrow shares of stock to replace previous loans in succession, and wait the pleasure of his employer to relieve him from responsibility by buying the stock, is not -explained. It is sufficient, however, that he was entitled to retain it to protect some interest of his own, which may have been, as he had made himself personally liable to restore the stock, to buy it in, in case he was unable to borrow it, particularly as it is admitted he was entitled to use, upon the same contingency, or hold the additional sum, ($8500,) which had been placed in his hands for a like purpose.

I do not understand the second subdivisión of the 179th section of the Code to have intended to include in the class of persons secondly m entioned therein as liable to be arrested, any one except those tyho received moneys purely in a fiduciary capacity as simple agents, to apply it as directed or agreed. If so, it excludes all those who may have a personal interest in such money or its use, and a right to control it, independently of any appropriation of it according to instructions of the owner, or where the liability for'repaying such moneys grows out of a transaction in which credit appears to have been given to the pecuniary responsibility of the recipient, rather than confidence placed in his personal character. The duty imposed upon a consignee of a vessel, in the payment of her expenses, has been considered to be sufficient to relieve him from liability to arrest for the price of such vessel subsequently received by him on a sale thereof, out of which he was entitled to reimburse himself for such payments. (Goodrioh v. Dunbar, 17 Barb. 664.) A personal guaranty to a consignor of goods for sale, of the fidelity and responsibility of consignees, given by their agent, in consideration of an undertaking by such consignor to make good any deficiency in the proceeds of the sales of such goods below advances on them by such consignees or agent, was held to take away from the receipt by such agent, from such consignor, of the amount of such deficiency, all fiduciary character, as regarded such consignees, so as to exempt ■ him from arrest. (Angus v. Dunscomb, 8 How. Pr. 14.) The right of an agent to use moneys collected by him on drafts remitted for the purpose until drafts were drawn on him for them by the remitter, where he undertook to pay interest thereon, was also held to exempt him from arrest for the proceeds of a draft collected by him, even after he knew he was insolvent. (Bassing v. Thompson, 15 How. 97.) In this case the personal liability of the defendant to replace the borrowed stock, and his right to use the funds in his hands to protect himself from loss, took away from the act of trusting him with such proceeds, any purely confidential character, in the authority to receive them. To permit him to retain, and mingle with his own, the original funds, and become liable for them simply as a debt, in case he did not apply them to the purchase of stock, was rather a credit than a confidence. If such moneys were also to be used or employed in assisting the defendant in any way to carry out any agreement for keeping up always a loan of the stock, his right to retain them until relieved from such liability still farther destroyed any confidential character of the original receipt of them.

Although the fiduciary character of a receipt of money be part of the essence of the cause of action when a defendant is arrested in consequence thereof, and where rights and relations of the parties, growing out of complicated arrangements and conditions accompanying such receipt of moneys, require to be investigated to ascertain whether any of the money so received be due by reason of the performance or discharge of all such conditions, the investigation by affidavits of the whole case may become often very uncertain, unsatisfactory and embarassing, while the simple question whether a defendant 'has received moneys to dispose of in a certain way may be easily determined; yet when such agent is admitted to have a lien upon the moneys received by him by reason of having incurred liabilities for the plaintiff for which he is entitled to retain such moneys, until satisfied, in such a case as the present, the court cannot take an account in advance, to ascertain what the balance due the plaintiff may be, so as to hold the defendant to bail for such balance, particularly where it does not clearly appear by the affidavits on behalf of the plaintiff, but is the subj ect of unliquidated damages in the complaint.

If the testimony of the defendant and that of Parker are to be weighed against each other, it seems very difficult to reconcile both statements of the latter, that the former was expected and agreed to continue borrowing the stock until required by him to buy it, and yet that same contingency might arise, in which, by reason of a fall in the stock, he was entitled to use the" deposit originally made, as well as the purchase moneys, to provide against such loss. There are two other statements in the same affidavit, which still further obscures the nature of the arrangement. One is that, “Even if the. defendant had been obliged to buy in such stock, he * * should have deferred the purchase until the following morningand again, “ That on the following day the defendant could have made a resale of said stock, and it ivas his duty under the aforesaid agreement to mahe a resale of the same and reinstate the transaction.” It is difficult to discover how it became such duty from a contract perpetually to borrow. If the defendant was vested with a discretion to buy or borrow in the alternative, as he might think proper, then there is nothing, to show that his purchase of the stock, at the time he made it, was not discreet. He was not bound to foreknow the future fall, and some evidence of bad faith is necessary to charge him with the consequences. But I think it is not necessary to pass upon the conflicting evidence of the parties in this case. I am satisfied, upon the allegations contained ill the statement of Parker, that the moneys received by the defendant were not so received by him in an exclusively fiduciary capacity as to warrant his arrest.

The order appealed from, refusing to discharge the order of arrest, should therefore be reversed, and the motion to discharge granted, without costs to either party.


text:
    John Howard, Jun., plaintiff and respondant, vs. John M. Freeman et al., defendants and appellants.
    1. No appeal lies from the denial of an application to postpone a trial, even when reduced to the form of an order, unless the trial is proceeded with ; such a formal refusal not being equivalent to actually proceeding with the trial.
    2. The provision of the Code which declares “ every direction of a court or judge, inode or entered in writing" is to be “ denominated an order," so far as regards appeals therefrom, properly includes only mandates on parties or officers, or final determinations of rights. Every decision or resolution of a court or judge does not become an order by being put m writing, when otherwise it would not be. The right of appeal does not depend on the mere manner or form in which a judge or court expresses its determination.
    3. To prejudice a party by a refusal to postpone a trial, it must not only have commenced, but go on to a conclusion.
    4. Such a refusal is either not such a direction as to constitute an order, even when reduced to writing, or else, if a direction on a trial, is one which cannot be separated as an order from other proceedings in it, so as to form a separate subject of appeal.
    6. Even if such a refusal were the subject of an order, it would not follow that the order would be appealable. It is only appealable when it affects “a substantial right.” {Code, § 349, sub. 3.)
    (Before Robertson, Ch. J., and Monell and Jones, JJ.)
    Heard October 1. 1866;
    decided November 15, 1866.
    Appeals from separate orders made at a special term, merely denying separate motions on the part of the defendants to postpone the trial of an action, with an interval of three weeks between them.

      J. Larocque, for the appellants.

      H. A. Cram, for the respondants.
   By the Court, Robertson, Ch. J.

There can be no doubt that parties have a remedy for a court’s proceeding with a trial, notwithstanding proper cause is shown for its postponement, when it is not a matter of discretion. That is fully established by the cases- cited on the argument, (Ogden v. Payne, 5 Cowen 15; Hooker v. Rogers, 6 id. 577; Hall v. Dwinell, 10 Wend. 628,) and cases therein referred to. The remedy adopted, which those cases sanctioned, was a motion to set aside an inquest, and even a hostile verdict where the party applying had appeared and defended. The fact that the appearance of the party making the application on the trial did not take away his right to move to set aside the verdict, is conclusive that the court did not consider the application to postpone, one proceeding, and the trial, another subsequent separate one. For, a mere refusal to postpone produced no injury, unless the trial was proceeded with. If proceeding with such trial were the necessary result and consequence of such refusal, and of that alone, appearing and defending the case would he clearly a waiver of any right growing out of such refusal. The applicant could not have a double chance, by apparently submitting to such order and availing himself of any defense on the trial, and then appealing from it.- If the refusal to postpone could be converted into an appealable order, and such subsequent appearance on the trial was not a waiter of the appeal, the applicant, although entirely successful on the trial, might still raise the mere moot question not affecting his rights at all, whether such order was properly granted. But such motion in the cas^s cited was, in fact, made and granted upon the score of irregularity in proceeding with the trial, after just cause had been shown against so doing, as much so as if the trial had gone on against the wish of a party before eleven jurors, the twelfth having in the course of it been disabled from sitting. The trial itself could certainly not be rendered irregular, if the motion to postpone constituted no part of it, but was a prior separate proceeding. And such motion certainly could not be both part of the proceedings on the trial and not so at the same time, nor could it be whichever the applicant chose. Moreover, a reversal of the quasi order, if it could be made, would not per se affect the trial or its result. A second motion would still be necessary to get rid of them. Before the passage' of the Code, therefore, the entering the decision of the court in refusing to postpone a trial as a separate proceeding was not permitted, as it would lead to increased litigation, multiplication of remedies and unnecessary expense.

It remains to be seen whether the remedy of an appeal from a refusal to postpone a trial, entered as an order, has been added by the Code to that of moving to set aside the result of the trial, which of course still remains. A refusal to postpone, even although entered in the form of an order, is equivalent to proceeding with the trial; a thous- and contingencies may prevent that, and render the refusal of no avail. If such refusals as mere separate orders are susceptible of reversal, they must be so whether any trial takes place or not. The court is certainly not bound by such an order to proceed with the tidal, nor is the adverse party necessarily entitled to do so. Both are at liberty to disregard it. The Code, it is true, declares that every direction of a court or judge, made or entered in writing, is denominated an order,” It is not very explicit as to the person, place or mode in reference to such writing, and is evidently not meant to give a strict definition. To construe the word direction,” in its ordinary and literal sense, would lead to absurdities. The daily adjournment of a court, and the instruction to a clerk to enter an order or set down a cause on a day calendar, are directions in writing. It can only, so far as any right of appeal is concerned, properly be understood to include mandates on parties or officers, or final determinations of rights. Of course it will not be contended that every decision or resolution of a court or judge, by being put in writing, will become an order when it otherwise would not be. The right of appeal could not depend on the discretion of the judge. "What I have already advanced shows that, to prejudice any one by a refusal to postpone a trial, it must not only already have commenced, but it must go on to a conclusion. Such a refusal as a separate order is either not such a direction as to constitute an order, even when written, or else if a direction on a trial, is one which cannot be made a separate order from other proceedings in it, so as to form a separate subject of appeal.

But even if such refusals were subjects of an order, it would not follow that such orders were appealable. The appealability of orders is placed on the ground of their “ affecting a substantial 'right.” (Code, § 349, sub. 3.) The only substantial right which they might be supposed to affect would be either the right to appear on the trial and defend, or that of being concluded by the result of such trial; neither of which were interfered with. The defendants could have appeared and defended, and still have- moved to set aside a decision upon the ground that such trial ought not to have proceeded. I can find no analogous case where a substantial right has been considered as invaded by such an order, standing by itself. An order of reference determines the mode of trial of all the issues, and is a separate proceeding from the trial itself. Proceeding in the latter, without objection, would probably waive the right to appea]. I think the decisions therefore appealed from, even if orders, are not appealable.

The appeals in both motions ought to be dismissed, with costs.


author: Monell, J.

text:
    Angeline Amory, plaintiff, vs. James Amory, defendant.
    1. The power given by statute (2 R. S. 145, $ 4P) t° the court, in actions for divorce, on the ground of adultery, when the offense is denied by answer, to award a new or further trial of such issue, as often as justice shall seem to require, is confined to issues made by the pleadings, of the adultery charged, and does not extend to other issues in such actions.
    2. Nor can a plaintiff in such an action, who charges adultery upon the defendant, and is defeated therein, as to any issue made thereon, claim a new trial, under that statute. Only a defeated party, whose guilt has been established by the verdict of a jury, can claim the benefit of its provisions.
    3. A marriage contracted by one who is tlie lawful wife of another person, who is then living, is wholly void; and the prior marriage is a perfect bar to all claims of the person so contracting such second marriage, as wife of the person with whom she has so contracted it.
    (Before Monell, J., at Special Term,
    November, 1866.)
    This is a motion to open or set aside a judgment, and for a new trial.
    In July, 1859, the plaintiff brought an action against the defendant, to dissolve their marriage contract, on the ground of the alleged adultery of the defendant. The defendant, by his answer, after denying the marriage, alleged as a separate defense, that at the time of the supposed marriage the plaintiff was the lawful wife of one William A. Williams, who was then living.
    The issues were sent to a referee for trial, who found as as facts —first, that the plaintiff and defendant were never married; and, second, that at the time of the alleged marriage the plaintiff was the lawful wife of William A. Williams, who was then living.
    . Upon the report of the referee, it was adjudged by this court that the plaintiff and defendant were never married, and also that the plaintiff was incapable of contracting a lawful marriage with the defendant, by reason of her former marriage with Williams; and was, therefore, not entitled to the relief she demanded.
    Such judgment, was entered on the second of October, 1860. Prior thereto, however, a motion was made on behalf of the plaintiff' to open the case for further proof of her marriage with the defendant, which, after full consideration, was denied.
    It is now alleged in support of this motion, that in 1851, in a suit for the partition of lands, the defendant and plaintiff were parties; that the plaintiff was therein alleged to be the wife of the defendant, and to be entitled to an inchoate right of dower in her husband’s share; and that the decree, in such suit provided for the payment to the plaintiff of a sum in gross in satisfaction of such right of dower, upon her releasing the same to her husband. And it is insisted that such recognition and admission in that suit, of the plaintiff as the wife of the defendant, and the adjudication thereon, establishing the marital relations of the parties, was an estoppel on the defendant to deny the marriage, and that with such proof before the referee he could not have found the parties were not married.

      S. Sanxay, for the plaintiff.

      W. Fullerton, for the defendant.
   Monell, J.

It is provided by statute that in actions for divorce on the ground of adultery, the court may, if the offense charged is denied, award a new or further trial of such issue, as often as justice shall seem to require. (2 R. S. 145, § 40.) And it is claimed, on behalf of the plaintiff, that she is entitled to the relief she demands under such provision. I have not been able to find any judicial construction of that statute; but I am of opinion that it has no application to this case. The section was evidently intended to give the court power to award a new or further trial, after a trial of the issue made by the pleadings of the adultery charged. It'provides that if the offense is denied, the court shall direct an issue to be made for the trial of the facts contested by the pleadings, by a jury, and may award a new trial, &p. The section does not relate to the trial of any other issue. Indeed, the whole article where the section is to be found, relates solely to divorces on the ground of adultery. A party against whom such issue has been found by a jury may have a second trial, if justice shall seem to require it. It cannot be that a plaintiff’ who charges adultery by the defendant, and is defeated in his action, can claim a new trial under the statute referred to. In the case before me, the plaintiff’s suit was dismissed upon her failure to prove a marriage, and upon the, further ground that she was incapable of contracting a marriage. The issue of the defendant’s adultery was not tried, it being unnecessary to try it, after the other issues had been found against the plaintiff*.

I am satisfied that the plaintiff cannot claim the benefit of the statute to which I have referred. A defeated party, whose guilt of the offense-has been established by the verdict of a jury, can alone avail himself of its provisions.

The Code provides (§ 174) that at any time within one year after notice thereof, the court may relieve a party from a judgment, order or other proceeding, taken against him through his mistake, inadvertence, surprise or excusable neglect. But such provision limits the power to one year after notice, and is conclusive on this motion, as it is not claimed that the defendant had not notice of the judgment she seeks to open, at the time it was entered. There is, however, another answer to this motion, which goes more to- the merits of the application.

The only reason assigned for a new trial, is the evidence of marriage furnished by the partition suit, which it is claimed should conclude the defendant. Admitting that such effect would necessarily have to be given to the evidence suggested, there is- still the other fact, which the plaintiff does not propose to controvert, namely, that at the time of her marriage to the defendant, she was a married ■woman. Such fact of itself rendered a marriage with the defendant wholly void. (Bishop on Divorce, vol. 1, § 299.)

Under any aspect, therefore, even though the court had the power to open the judgment, and this was a case in which such power should be exerted, the plaintiff would be without any substantial relief. Her former marriage stands as a perpetual bar to her claiming to be the wife of the defendant. More than six years have elapsed since a solemn judgment of this court was pronounced against the plaintiff. What new relations the parties, or either of them, have formed, does not appear. But the security and quietude which such judgment has afforded, should not be disturbed, except for most clear and conclusive reasons. I find nothing in the papers before me which furnishes any such reasons.

The motion must be denied.


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    Frederick G. Eldridqe et al., survivors &c., plaintiffs, vs. Robert Troost et al., defendants.
    1. To constitute a general partnership, nothing more is necessary than that the parties agree to carry on or conduct a specified business, and to share in its profits and losses. The business may be of a general nature, or it may relate and be confined to certain designated transactions. In either case the partnership becomes general.
    2. A firm in New York, and another in Calcutta, agreed to carry on business between those cities, upon joint account. The particular kind of business was the shipment of goods (the description not designated) from Calcutta, for sale in New York. The agreement provided for the mode of payment; the manner of sale; the division of profits and the sharing of losses. No period of duration was prescribed, and there was no limit to the amount or number of shipments. Held, that under this agreement the parties became general part-, ners.
    3. Such agreement contained a provision that the profit and loss should “be equally divided between the parties, and settled in New York upon the winding tvp of each shipment." Other parts of the agreement, however, indicated quite clearly that the above provision was not designed to control the manner of doing business, or to absolutely require the complete isolation of each shipment, so as to render it a separate transaction not to be affected by any other. Held that the agreement did not make each shipment a separate transaction, so as to take from it any of the characteristics of a general partnership as to all.
    4. Held, also, that the course of business between the parties under the agreement might be resorted to in giving a construction to the above clause thereof.
    5. Held, further, that any goods or assets in the hands of the New York parties, being the property of the joint enterprise, whenever shipped, must be applied to the payment of the joint debts.
    6. And that the assignees of the New York firm acquired no other right or title to such property than their assignors possessed. That in the hands of the. latter, equity would give the creditors of the Calcutta and New York firms a preference over the individual debts of either, and the goods or assets must be subjected to the same equity in the hands of their assigns.
    (Before Monell, J., at Special Term,
    November, 1866.)
    In January, 1864, Troost, Schmidt & Co., of'New York, and Atkinson, Tilton & Go., of Calcutta, entered into an agreement to carry on a business between those cities upon joint account. The parties in New York were to furnish the. parties in Calcutta with letters of credit for the shipment of goods at Calcutta to Hew York, and for advances on consignments. Ho commissions were to be allowed for the purchase in' Calcutta, or for the sale in Hew York. The parties in Calcutta were to purchase and ship such goods, and at such times as they should deem most for the interest of all the parties, under general advices from the parties in Hew York, who were to sell the same for such prices as they should deem most for the interest of all the parties, and remit to meet the bills drawn against the shipments, at the time of sale,' whether before 'or after such bills became due, and charge the account with the rate of exchange actually paid. The profit and loss was to be equally divided between the parties, “ and settled in New York upon the winding up of each shipmentThe proceeds of consignments, over the advances and charges, were to be remitted to the parties in Calcutta, to be paid to the owners of the goods consigned. If the proceeds were not sufficient to earn the advances and charges, the parties in Calcutta were to collect the deficiency from the owners, and if any loss should accrue in not collecting such deficiency, or in remitting to meet the bills, such loss should be borne equally by the parties.
    In pursuance of such agreement, Troost, Schmidt & Co. furnished the parties in Calcutta with a letter of credit on the firm of Abraham Troost & Co., of Manchester, England.
    The general course of business under the agreement was as follows: The firm in Calcutta, on purchasing or advancing on goods at that place, drew bills on the firm in Manchester, and delivered them in payment or for the advances. They then shipped the goods to the firm in Hew York, where they were sold and remittances made to the firm in Manchester to meet the bills. . Separate bills were drawn for each shipment, and advices of such bills forwarded to Hew York with each consignment. The firm in Hew York opened and kept a separate account of each shipment, crediting or charging therein all profit or loss upon such shipment, and as far as was practicable, or perhaps possible, closing the same upon their books.
    The transactions under the agreement, embracing a large number of shipments, continued until the fourth of December, 1866, when the firm in New York, becoming insolvent, made a general assignment of all their property to the defendants Buckley and Mozle, in trust to pay their debts.
    The firm in Manchester also went into bankruptcy about the same time, (Dec. 3, 1866.)
    In May, 1866, the Calcutta house shipped to New York, by the Medusa and Audubon, 4750 bags of linseed, and drew upon such shipment two hills amounting to ¿63786, 3 shillings, which were accepted by the house in Manchester. One of said bills has been protested for non-payment; the other has not matured.
    The plaintiffs allege that they are ignorant of the holders of said bills, but that the plaintiffs are liable thereon, as drawees, for the full amounts thereof.
    The goods shipped by the Medusa and Audubon were sold by the house in New York, and the proceeds credited on their books; the two drafts drawn against the shipment, and the expenses, were charged, and the balance, being the profit, was carried down and placed to the credit of the shipment.
    At the time of the failure of the New York house they held unsettled various shipments of goods from the house in Calcutta, the value of which, over any charges thereon, is more than sufficient to pay the full amount of said two' bills.
    All bills drawn upon such unsettled various shipments have been paid, and the only outstanding obligations arising under said agreement are the two bills above mentioned.
    The relief demanded is, that the goods held by the New York house at the time of their failure, or the proceeds thereof, being the unsettled various shipments above mentioned, be applied to the payment of the said two bills, and that the defendants Buckley and Mozle, as assignees, account and pay over to the plaintiffs one half of any balance there may be.

      W. Z. Larned, for the plaintiffs.

      T. C. T. Buckley and J. W. Gerard, for the defendants.
   Monell, J.

The question in this case arises between the plaintiffs and the general creditors of Troost, Schmidt & Co., represented by their assignees, Messrs. Buckley and Mozle. The property in question, or its proceeds, passed to the assignees under the general assignment, and is held by them upon the trusts therein declared.

If a general partnership, or what was in the nature of a general partnership, existed between the plaintiffs and Troost, Schmidt & Co., under the agreement of January, 1864, in respect to the transactions conducted under such agreement, then the property of such partnership must be applied to the payment of the partnership debts. If, however, each shipment was intended and understood to be a single and independent transaction, having no connection with any others preceding or following it, then, as claimed by the defendants, the plaintiffs have no equity to be protected against their liability upon the bills in question.

The relation of the parties is to. be ascertained, first, from the agreement, and second, from the course of business transacted under it.

That a general partnership may exist in respect to a single adventure, cannot be doubted, (Collyer on Part. § 17, 55;) and it may also be made to extend over any number of adventures agreed upon by the parties. Under such an agreement the partnership becomes general, only for the purpose of such adventure or adventures, and for no other purpose, and it subjects the partners to all the liabilities, and gives them all the rights of general partners in the particular adventure. (Heyhoe v. Burge, 9 Com. B. 431. Salomons v. Nissen, 2 T. Rep. 675.)

To constitute a general partnership, nothing more is necessary than that the parties agree to carry on or conduct a specified business, and to share in its profits and losses. The business may be of a general nature, or it may relate and be confined to certain designated transactions. In either case the partnership becomes general.

In this case the parties agreed to carry on a business between Calcutta and New York, upon joint account. The particular kind of business was the shipment of goods (the description not designated) from Calcutta, for sale in New York. They provided for the mode of payment; the manner of sale; the division of profits, and the sharing of losses. No period of duration was prescribed, and there was no limit to the amount or number of shipments. Under such an agreement it cannot be doubted that the parties became general partners.

But it is claimed that such partnership was limited and confined to each shipment, and that any liability incurred for one shipment could not attach to another; and in support of this the clause in the agreement, “ that the profit and loss shall be equally divided between the parties, and settled in New York upon the winding up of each shipment,” is relied upon.

It was doubtless the intention of the parties that there should be frequent and speedy settlements, and that their transactions should not run for any great length of time without being closed. It was for the interest, and probably for the convenience, of both, that returns should be made upon the termination of each adventure. The house in Calcutta was interested in receiving its share of the profits, and the house in New York in being reimbursed for any loss. Hence, they provided that any .deficiency in the sale of goods, upon which advances had been made, should be collected from the owners in Calcutta, and any losses arising from remittances to England should be borne equally. So far, therefore, as it was practicable or possible, each shipment was to be wound up, and its results ascertained. Other parts of the agreement, however, seem to' indicate quite clearly that the provision I have quoted was not designed to control the manner of doing business, or to absolutely require the complete isolation of each shipment, so as to render it a separate transaction not to be affected by any other. The goods were to be purchased and'shipped in the discretion of the parties in Calcutta, and sold in the discretion of the parties in Yew York. The latter were to remit to meet the bills drawn against the shipments, at the time of sale, whether before or after the bills became due. It might happen that bills would mature before favorable sales could be made, and the bills go to protest with the .goods on hand; and it could not, therefore, have been the intention to deprive the parties of the right, as it seems to me it would have been their duty, to take any other of their joint property to meet their engagements. Besides, the winding up of each shipment is, in express terms, confined and restricted to the settlement of the profits and losses of such shipment, and not to the payment of bills drawn against the same.

The agreement, therefore, did not, in my opinion, make each shipment a separate transaction, so as to take from it any of the characteristics of a general partnership as to all.

The course of business also gave a construction to the agreement. The answer admits that at the time of the assignment there were on hand, unsettled, “ various shipments made under the arrangement,” and that the goods and assets mentioned in the schedule annexed to the complaint were portions of such shipments remaining undisposed' of. Such portions were the remnants of distinct shipments by seven different vessels, arriving at different periods, none of which had been closed or settled. Besides, goods sent by the Medusa and Audubon, against which the drafts in question had" been drawn, were long since sold and the avails used in paying-other bills.

Thus the parties in Yew York did not practically admit any obligation to separate each transaction, or to close each distinct shipment.

It is clear, therefore, I think, both from the agreement and the course of business under it, that the parties intended their relations to the business should be that of general partners, subjecting themselves to all the liabilities of partners, with their corresponding rights.

From this conclusion it necessarily follows that any goods or assets in the hands of the New York parties, being the property of the joint enterprise whenever shipped, must be applied to the payment of the joint debts. (Smith v. Wriqht, 1 Abb. Pr. Rep. 243.)

The defendants Buckley and Mozle are mere trustees, and not purchasers. They acquired no other right or title-to the property in question than their assignors, Troost, Schmidt & Co., had. In the hands of the latter, equity would give the creditors of the Calcutta and New York firms a preference over the individual debts of either, and the goods or assets must be subjected to the same equity in the hands of their assigns.

The plaintiffs, therefore, are entitled to an account from the defendants Buckley and Mozle of all property and assets which came into their possession under the assignment, and which was derived from the joint adventures of the plaintiffs and Troost, Schmidt & Co., for which purpose there must be a reference.

The plaintiffs must also have judgment, that out of said assets and property, if sufficient, the said assignees pay to the plaintiffs the amount of said outstanding drafts, or so much thereof as said assets and property will pay; and if any balance remains, that said assignors pay to the plaintiffs their costs of this action, to be taxed, together with the one equal half of the residue, if any.