author: Duer, J.

text:
    Haggerty v. The Allaire Works.
    An agreement by a creditor, to take from his debtor, stock in an incorporated company, at its par value, and to appropriate the same, on account of the debt due the creditor, will be construed as relating, exclusively, to that portion of the debt which is unsecured; and it will be extinguished by the assignment of that debt to a third person, with the assent of the debtor. Or, if not extinguished, it follows the debt, and its performance devolves upon the person to whom the debt is assigned.
    Where a portion of a debt is assigned to a third person, with the debtor’s assent, the latter, in an action by the creditor, to recover for the part of the debt not assigned, cannot allege errors in the settlement of an account, between him and the plaintiff, in respect to the debt assigned, nor set off erroneous credits against the claims of the plaintiff. His remedy is to have them deducted from the debt assigned.
    An agreement between mortgager and mortgagee, to raise the interest upon a bond and mortgage, from six to seven per cent, is valid in law; the consideration of forbearance being necessarily implied, and the continuance of the agreement being necessarily co-extensive, with the forbearance.
    Such an agreement is binding upon purchasers of the mortgaged premises, though made after the purchase by them, if it appears that the agreement has been adopted and acted upon by them.
    (Before Oakley, Ch. J., Sandford & Doer, J. J.)
    November 3, 8, 29, 1851.
    Appeal from a decree, made at special term, by Justice Sand-ford.
    The complaint was filed by John Haggerty, to procure the satisfaction of four bonds, secured by mortgages on the lands and property of the Allaire Works, in the city of New York, by a foreclosure of the mortgages, as follows :
    1. Bond, by James P. Allaire, to the executors of G-. Smith, (and assigned in 1844 to plaintiff,) dated December 11,1824, for $11,000, and interest (raised from six per cent, to seven per cent, by agreement of Jas. P. Allaire, in December, 1842) from June 11, 1844.
    2. Bond, by J. P. Allaire, to the executors of Smith, (assigned in 1844, to J. Haggerty,) dated June 17,1826, for $3,000, and interest, at seven per cent, from June 7,1844.
    3. A bond of J. P. Allaire to Jas. Boorman, (for his firm,) dated June 6, 1839, (assigned to John Haggerty, June 6, 1849,) for $10,000, and interest at seven per cent, from January 22d, 1850.
    4. A bond of Jas. P. Allaire to John Haggerty, dated June 6,1839, for $10,000, and interest at 7 per cent, from date.
    These bonds were secured by three mortgages of Allaire, bearing even date with the bonds, respectively; the two latter by one mortgage. Jas. P. Allaire owned the lands at the date of the mortgages, on the 20th of January, 1842. John Haggerty conveyed to the Allaire Works, the premises included in the Boorman mortgage (which embraced the lands in the other mortgages), subject to the existing mortgages thereon, amounting to $58,350 of principal, which with the interest was part of the consideration, and was assumed to be paid by the grantees. The mortgages in suit were part of these existing mortgages. The defences set up by the answer were :—1. That the agreement to raise the interest on the $11,000 bond, was not binding on them, it having been made after the purchase of the mortgaged premises by them. That the interest on the $3,000 bond was only due from June 17,1844. That the interest on the $10,000 bond to John Haggerty was only due from January 20, 1844. 2. A claim for errors in an account which it was alleged was settled, April 5,1850. 3. A claim that J. Haggerty had agreed to take $30,000 of the stock of the United States Mail Steamship Company, at par value, on account of the debt of the Allaire Works, which stock they had offered to him and he had refused, and. on which the defendants claimed there was a loss of $5,000. The replication alleged, that on the 5th of April, 1850, besides the bonds and mortgages in suit, the defendants owed the plaintiff upwards of $110,000, and Jas. P. Allaire owed him upwards of $61,000. That a general arrangement was then made, to which the defendants were a party, which expressly acknowledged the amounts of the bonds and mortgages in the complaint to be due to the plaintiff, and to be unimpaired and unaffected, and by which the plaintiff, in consideration of $80,000, released Allaire from his debt and transferred to him the debt of the defendants, (excepting the debts secured by the mortgages mentioned in the complaint,) and also the stock J. Haggerty held in the Allaire Works ; Allaire undertaking to apply the amount, as far as necessary, to pay up in full the said stock of J. Haggerty in the Allaire Works, and to indemnify J. Haggerty against all claims of the company and its creditors against him as such stockholder ; which transfer and release embraced all transactions referred to in the answer, prior to its date. It also traversed the various allegations of errors, and also alleged that the amounts owing to the plaintiff by Allaire and the defendants exceeded what he received by the arrangement, by more than such alleged errors. And also set up that these errors, if any, were to be settled with Allaire, to whom the debt was transferred, and with whom the defendants settled, if they did settle it. It denied the agreement as to the stock in the U. S. Steamship Company, and denied any damages, and all right for the defendants to offer the stock to him in payment, or that anything ought to be thereupon deducted from the bonds and mortgages.
    The issues thus joined came on to be tried before Mr. Justice Sandford, without a jury, on the 20th day of March, 1851. The plaintiff gave in evidence the mortgage and bonds, the assignments and agreements mentionéd in the complaint, and also the instruments of release, transfer, and acknowledgment of April 5th, 1850, between the plaintiff and James P. Allaire, and to which the defendants were parties ; also, the agreements to raise interest on the $10,000 mortgage, made December 30, 1842, and receipts for interest thereon, at the rates of seven per cent., dated July 11, 1843, Feb. 12,1844, and July 27,1844— the two former from J. P. Allaire, and the two latter from the treasurer of the defendants ; and the deeds of January 20th, 1842, by which the defendants were to pay the interest. The agreement of April 5th, 1850, recited the bond of $10,000 to John Haggerty, of June 6th, 1839, and the interest thereon, as being due without any qualification.
    The defendants gavé in evidence a statement of January 20, 1844, signed by the plaintiff, showing the interest on this bond charged from 20 January, 1843, to 20 January, 1844, to form part of a balance of $2601 21, for which a note on demand was given by Allaire to Haggerty. This note was in J. Haggerty's hands, and was released to J. P. Allaire by the release of April 5,1850.
    As to the claim for alleged errors in the account of Haggerty, with the Allaire Works, it appeared in evidence that on the 5th April, 1850, J. Haggerty, with the assent and admission of the defendants, transferred to J. P. Allaire, for $80,000, not only this balance of $156,715 35, but also released Allaire from a bond for $42,837 19, the said note for $2,601 41, and a note for $1,400, with interest, and assigned and transferred to him 531 shares of stock in the Allaire Works.
    As to the U. S. steamship stock, it appeared that the Allaire Works were desirous of obtaining the contracts for the machinery of the steamers Pacific (amounting to $225,000) and Baltic ($240,000); but it was made a condition of their obtaining the contracts, that they should take $20,000 stock in the ship Pacific, and $10,000 in the ship Baltic on account of the work to be done.
    It was finally agreed, that the company, to get the contracts, would make the subscription for the stock, and that Mr. Haggerty, who was then pressing the company for his claim, would take the stock and appropriate it on account of the debt of the defendants, Mr. M’Hvaine understanding that it was to be credited at its value, and Allaire stating in his testimony that plaintiff was to take it “ in the same manner ” as the defendants.
    The contracts for the machinery did not speak of the taking of the stock in payment, which was a verbal understanding. The contracts were made before the actual subscription by the defendants for the stock. The subscription was Oct. 4, 1849. The payments on the contracts began as early as July 25,1848, and deductions were made from each payment under the contract, of ten per cent., so as to fill up the stock, and the $30,000 was not made up until June 5, 1850, when the defendants were entitled to it. The stock was issued about June 22,1850. No evidence was given of the actual value of the stock, nor of any loss sustained by the defendants in relation thereto.
    They held the stock at the time of the trial. No tender of the stock before suit brought was shown, but the defendants tendered to the plaintiff, in open court, a transfer of the $30,000 of stock, which tender the plaintiff refused to accept.
    The counsel for the defendants claimed and insisted, that the interest on the bond and mortgage to John Haggerty and Mary R. Smith, for $11,000, should be computed at the rate of six per cent., instead of seven per cent., per annum. That the interest on the bond and mortgage to John Haggerty, for $10,000, should be computed from January 20, 1844. That the sum of 99 dollars and 17 cents, paid for interest on the bond and mortgage to Robert Lenox, accruing prior to the 20th of January, 1842, should be credited to the defendants. That interest on the said sum of $99 17 should be allowed to the defendants, and that the amount of the cost of the $30,000 of stock, with interest, should be deducted from the amount due the plaintiff, and that he should be adjudged to receive a transfer of said stock in lieu of so much money. The counsel for the plaintiff resisted all the above claims of the defendants, and claimed judgment as prayed for in the complaint. The court thereupon, decided, 1st. That an agreement by the defendants to change the rate of interest on the bond and mortgage of $11,000, from 6 to 7 per cent., was sufficiently proved, and that interest should be computed at that rate on- the said bond and mortgage. 2nd. That the payment of the interest up to January 20,1843, on" the bond • and mortgage to John Haggerty, for $11,000, had been proved, but that the facts proved respecting the giving of the note by James P. Allaire to the plaintiff, for the interest from January 20,1843, to January 20,1844, in connexion with the subsequent compromise and surrender of said note, under the agreement of April 5, 1850, did not establish a payment of the said interest accruing January 20, 1844, and that interest should be computed on the said bond and mortgage from January 20,1843. 3rd. That the defendants were entitled to be credited with the sum of $99 17, paid on the Lenox bond and mortgage, but not with any interest on. that sum. 4th. That no allowance should be made to the defendants on account of the $30,000 of stock. That so far as the agreement respecting said stock was proved, the plaintiff was not bound to take the said stock, or to give credit on the mortgages in suit to the defendants for any sum whatever on account thereof. That the agreement, if legal, and proved, and whatever its construction might be, would only entitle the defendants to damages for the plaintiff’s refusal to take said stock ; that no such damages had' been proved, and that if proved, they could not be set off in this action. To each and every of the said decisions, as well upon the questions of law, as of fact, the counsel for the defendants duly excepted.
    The court then directed that judgment be entered for a foreclosure of the said mortgages, and a sale of the mortgaged premises to pay the amount due the plaintiff. That in computing the said amount there should be allowed to the plaintiff, 1st. On the bond to John Haggerty and Mary R. Smith, executor and executrix, dated June 17, 1826, $3,000, with interest, at 7 per cent, from June 17,1844. 2nd. On the bond to the same parties, dated December 11,1824, $11,000, and interest at 7 per cent., from June 11,1844. 3rd. On the bond to James Boor-man, dated June 6,1839, $10,000, and interest from December, 1849. 4th. On the bond to John Haggerty, dated June 6,1839, $10,000, and interest from January 20, 1843. And that from the above sums there should be deducted the sum of $99 17, above mentioned, without interest. To which directions severally the defendants’ counsel excepted, and from the judgment entered he appealed to the general term.

      D. Lord, for the plaintiff.

      H. F. Clark, for the defendants.
   By the Court.

Duer, J.

The decree of Mr. J. Sandford, at special term, must be affirmed as modified upon the following grounds:

I. The credit of $30,000, claimed by the defendants, is rejected, because, (1.) The agreement of the plaintiff to take from the defendants $30,000 of the stock of the New York and Liverpool United States Mail Steamship Company, and to credit the defendants with the same at its par value, assuming such agreement to have been proved, is construed by the court as relating exclusively to that portion of the debt due to the plaintiff, which was then unsecured, and consequently was extinguished by the assignment of that debt to Allaire, with the consent of the defendants; or if not extinguished, it followed the debt, and its performance devolved upon Allaire. (2.) That the articles of agreement and settlement of the 5th of April, 1850, even upon the supposition that the original intention of the parties was different from that which has been stated, are conclusive evidence that the whole principal of the debt secured by the bonds and mortgages was then due and owing, and this express admission of the defendants precludes the supposition that the debt so secured was subject to any deduction whatever on account of the credit which is now claimed. (3.) That as the legal construction and effect of the articles of agreement" could not be contradicted and varied by parol evidence, the proof offered by the defendants of the declarations made by the plaintiff, during the negotiation, which led to the articles of agreement, or at the time of the execution thereof, was properly rejected. (4.) That the rejection by the judge of evidence offered in relation to the stock of the steamship Panama, was immaterial. The evidence could only have been material' as bearing upon the question whether the $30,000 stock was to be taken at par, and for the purposes of our judgment this has been assumed to be the meaning of the agreement.

II. That evidence of the credits alleged to have been given erroneously to the plaintiff, in the settlement of his account of $156,715, was properly rejected, since if the defendants are not wholly precluded by the settlement from alleging the existence of such errors, they are entitled to deduct the sums which they involve from the debt as assigned to Allaire, but not to set them off against the claims of the plaintiff in this action.

III. That interest on the bond and mortgage for $11,000 was properly computed at 7 per cent, from the 11th of December, 1842. (1.) Because the agreement for raising the interest from 6 to 7 per cent., was valid in law, the consideration of forbearance being necessarily implied, and the continuance of the agreement being coextensive with the forbearance. (2.) Because it was sufficiently proved that the agreement was adopted and acted upon by the defendants, and it was therefore unimportant whether it was originally made by Allaire under their authority.

The court is of opinion that the judge erred in not crediting the defendant with the payment of interest on the bond of $10,000 from January, 1843, to January, 1844, and order the decree to be modified accordingly.


source: Caselaw Access Project

author: Oakley, C. J.

license: Public Domain

text:
    Augustus H. Brahe & Henry Kayser v. Marcus T. C. Kimball & Joseph Beesley.
    When entries on the boot of a defendant are read by his counsel upon the trial, without objection, they are evidence, bearing upon the fact they were adduced to prove¡ and the charge of the judge, submitting them as such to the consideration of the jury, is not, for that reason, liable to an exception.
    When the question is, whether a credit was given to A & B as partners, or to A alone; the subsequent admission by B of the liability of the firm, may be received as evidence of the fact, since the effect is not to charge A with a debt, to which he would not otherwise have been liable, but to discharge him in part from an'admitted liability.
    Motion for a new trial denied, and judgment at special term affirmed with costs.
    Before Oakley, Ch. A, Mason & Paine, JA
    October 6th,
    Nov. 8th, 1851.
    This was an action to recover the amount of two promissory notes, one for $294, the other for $222 18, given by the defendants to the plaintiff.
    The defence was a set-off for goods sold to the plaintiffs, as partners, composing the firm of Brahe & Co. The jury found a balance due to the defendants of $41 6, for which sum, with costs, judgment was entered in their favor.
    The plaintiffs appealed from this judgment, and the cause was now heard upon the following bill of exceptions.
    Afterwards, to wit, on the 22d day of April, of April Term, A.D. 1850, this cause came on to be tried before the Honorable Lewis H. Sandford, one of the justices of this court, and a jury of the city and county of New York, duly chosen, sworn, and empanneled for that purpose.
    The defendant offered evidence of the loss of an order-book in which it was alleged were certain entries affecting the liabilities of the plaintiffs, for the purpose of having their claim in this action reduced or extinguished by a set-off.
    The evidence was as follows :

      James Marshall—The order-book I have testified about, in which the entry was written, is lost; it mysteriously disappeared on or about the 14th day of November last; the book had but one usual place, being near the place where Mr. Kim-ball cuts. There are two entrances to the store, one from Broadway and one from Warren street; as near as I can recollect, the book stood within three yards of the Warren street door; I saw this order-book when I opened .the store On the morning the book was missing, and about six and a half o’clock; I do not recollect opening the back door ; sometimes the men came in early for their work, and I let them out this back door; I did not miss the book until eight o’clock in the morning, when Mr. Beesley came in ; as near as I can recollect, one or two of our journeymen were in; I don’t recollect bolting the door after letting them out; all this time the front entrance was open ; a search was made for this book all over the store; Mr. Beesley came in, and went to get the order book, and could not find it; from the time of seeing the book in the morning, up to the time of the discovery of the loss, Mr. Kimball was not in the store.
    . Cross-examined—The book was always kept at night on the cutting counter ; I am always there before seven o’clock in the morning ; I recollect seeing the book on the counter that day; this order-book contained the different orders, the items and description of goods ; there were two journeymen in that morning; these books were not used by journeymen ; I had heard of this suit being commenced before the loss of this book.
    The defendants next called

      Joseph Beesley, one of the defendants, who being sworn, testified :—My order-book has been lost; I missed it on the 14th of November last; I searched all over the store for it ; I missed it about eight o’clock in the morning, almost immediately after I arrived.
    Cross-examined—Have not made any inquiries of the journeymen who were in the shop about this book.
    The defendants next called

      Marcus T. C. Kimball, one of the defendants, who being sworn, testified:—I had an order-book ; it has been lost; I can’t recollect the date of the loss ; it was some time after this suit was commenced ; it was missed quite early in the morning, prior to my arrival at the store; it was three years old last September ; Beesley and-Marshall said they had it out examining it, and afterwards missed it; we made search and examination for it, but could not find it.
    Cross-examined—I don’t know, I have no idea what has become of it. Mr. Beesley and Mr. Marshall said they had seen the book the morning it was lost; they had gone to enter an order, when they discovered the book was missing ; I got to the store between seven o’clock and eight o’clock ; the store is opened between six and seven generally; nothing was said about any one having been in ; the book was of no value to any one but ourselves ; it contained measures and orders generally. .We gave publicity to the loss, and spoke to police officers in the matter ; it was valued as a record of measures of persons abroad.
    The defendants here offered to give parol evidence of the contents of the said order-book, to which the plaintiffs objected,. on the ground that sufficient evidence of the loss of said book had not been given. The court overruled the objection, and decided that in the judgment of the court the proof was sufficient, and permitted the evidence ; and the plaintiff excepted, and the exception was duly noted.
    The defendants introduced their day-book on the trial, and a witness testified to, and concerning entries therein without objection. The plaintiffs introduced in evidence the defendants’ ledger, and the index thereto, and read entries therefrom. It was sought by the defendants, by the evidence given, to charge the plaintiffs for certain goods shipped to one Peter Wagner in New Orleans, and alleged to have been sold to them by the defendants.
    There was evidence on the part of the defendants tending to show that the plaintiff Brahe had ordered the goods in question, after the firm of Brahe & Co. had been formed.
    The point to be submitted to the jury, was to say whether or not the credit was given to Brahe alone, or to A. H. Brahe & Co., the plaintiffs.
    There was also evidence that after the goods, or some of them, had been ordered, the plaintiff Kayser had called on the defendants, and requested the defendants to draw on Wagner for the amount, and said that if the defendants would draw on Wagner, he, Wagner, would more readily pay defendants than Brahe & Co. Beesley concluded to do it, as a favor to Brahe & Kayser.
    The judge charged the jury, that in reference to the point whether / the credit was given to Brahe alone, or to Brahe & Co., the jury might, in connexion with the entries in the defendants’ books, consider the testimony on the other side, that Kayser called on the defendants subsequently to the goods being ordered, to request them to draw on Wagner.

    To this portion of the charge the plaintiffs, by their counsel, excepted, and the exception was duly noted.
    The jury returned a verdict in favor of the defendants against the plaintiff for forty-one dollars and six cents.
    N. B. Blunt, for plaintiff,
    said he should not press the first exception, that the order-book was improperly admitted in evidence, but contended, that the exception to the charge of the judge, was well taken.

      R. J. Dillon, for defendants, contra.

   By the Court.

Oakley, C. J.

The objection, that the proof of the loss of the order-book, was insufficient, was very properly abandoned. It was plainly untenable.

It is" not necessary to determine, whether the entries in the books of the defendants, which were read by their counsel, upon the trial, were proper evidence of the facts, they were adduced to prove. No objection was made to them at the time, nor were they read subject to any future objection. They became evidence, therefore, in judgment of law., by the admission and consent of the counsel for the plaintiff, and it was the duty, of the judge, to submit them as evidence, to the consideration of the jury. His omission to do so, would have furnished to the defendants,. a far more reasonable ground of exception. .For the same reasons, the judge was justified in calling the attention of the jury to the subsequent declarations of Kayser, as a part of the proof, that credit had been given to the firm, and not to Brahe, individually, and had this -evidence been objected to, when offered, we do not think the objection could have been sustained. -The admission by Kayser, of the liability of the firm, no matter when made, was clearly good evidence against himself; nor under the circumstances, could the reception of the evidence, furnish any ground of complaint to Brahe, since its effect was not to charge, him with a debt, for which, otherwise, he would not have been liable at all, but to diminish in part, an admitted liability, by making it joint, instead of several and sole.

The exceptions are overruled, and the judgment, at special term, affirmed with costs.


author: Oakley, Ch. J. Duer, J.

text:
    Thomas Wintermute, Respondent, v. Oliver Clark, Appellant.
    To charge a defendant, as an innkeeper, it is sufficient to prove, that he received, as guests, all who chose to visit his house, without any previous agreement, as to the duration of their stay, or the terms of their entertainment.
    The liability of an innkeeper, as such, ceases, when the relation between him and the guest, is dissolved.
    That relation ceases, when the guest pays his bill, and leaves the house, with the declared intention of not returning. In such a case, it is, at his own peril, that he leaves his baggage behind him.
    The innkeeper is not then responsible for its safe keeping, unless it is specifically committed to his charge, and then, only, as an ordinary bailee.
    Held, that in the case before the court, the question, whether the liability of the defendant, as an innkeeper, had not ceased, before the loss of a trunk and its contents, for the recovery of the value of which, the suit was brought, directly arose upon the evidence, and ought, upon the trial, to have been submitted to the jury.
    Ques., whether a father is, in judgment of law, the owner of the wearing apparel of a son, who, although a minor, was not a member of his father’s family, and was endeavoring, by his own labor, to provide for his own support?
    Jugdment, at special term,, reversed, and new trial granted.
    (Before Oakley, Ch, J.; Sandfokd and Due a, J.J.)
    (November 19, 29, 1851.)
    This was an appeal by the defendant, from a judgment rendered at a special term, upon a verdict in favor of the plaintiff.
    The action was brought to recover of the defendant, as a common innkeeper, the value of a trunk and its contents, alleged to have been lost by his negligence, or that of his servants.
    The complaint charged, that on the 12th March, 1850, and before that time, the defendant was an innkeeper, keeping a common inn in Chambers street, in the city of New York, and that on that day, Sandford Wintermute, the son and servant of the plaintiff, an infant under the age of twenty-one years, was received into the said inn, as a traveller or guest, and then and there, brought into the said inn, a trunk, containing wearing apparel, and other articles, of the value of $100, and that after-wards, and whilst the said Sandford was still abiding in the said inn, the said trunk and its contents, through the mere carelessness and negligence of the defendant, and his servants, were wrongfully taken away, by some person or persons, to the plaintiff unknown, and were thereby wholly lost to the plaintiff.
    The answer, after taking issue upon the principal averments in the complaint, alleged that Sandford Wintermute, on the 13th of March, 1850, paid his bill, and departed from the house of the defendant, and that all the property of the plaintiff, which, before that time, he had placed in the care, or custody, of the defendant, or his agents, was thereupon delivered to him.
    The reply took issue upon this alleged delivery.
    Upon these pleadings, the cause was brought to a trial before Mr. Justice Duer, and a jury, on the 15th of May, 1851.
    It was proved, on the part of the plaintiff, that his son, Sand-ford Wintermute, then about nineteen years of age, left his father’s house, in New Jersey, in the early part of March, 1850,. and came to the city of New York, with the intention of becoming a clerk in a store—that he took with him a trunk, containing the wearing apparel, and other articles mentioned in the complaint, and which were worth between sixty and seventy dollars—that on some day, about the middle "of March, between the hours of 9 & 10 P. M., he, and one Beamer, went to. the-public house- in Chambers street, kept by the defendant, and! engaged lodgings for the night—that the trunk in question, was then placed in the charge of the defendant, who directed where-it should be placed, and declared it would be safe—that some days thereafter, Sandford Wintermute called upon the defendant, and inquired whether his trunk was found, that the defendant replied that it was not, that it had probably gone with the baggage of passengers in the Ohio, and that if not brought back, he would satisfy Wintermute for it.
    Upon this testimony, the plaintiff’s case was rested.
    The defendant then called as a witness, Burr Clark, who-testified that he was the brother and clerk of the defendantthat he knew Sandford Wintermute ; that he, together with Beamer, put up at the defendant’s house on the evening of the 12th of" March, 1850; that they came about 11 o’clock; that they brought with them a trunk • that' he directed them to set it down in the room where the office of the house was kept, near the door between it and the corner of the wall; that the defend1•ant was at'the time in bed ; that'Beamer took breakfast and left the‘house' in the morning 'between 9 and 10 ; that' shortly: after, Sandford came into the office, when the witness was alone, and called for breakfast,' that witness replied it was too late for breakfast; that witness thereupon demanded pay "for his dodging, that Sandford replied he had not lodged there but had ■ slept elsewhere,'to which-witness answered that it was not material,-as a room'had been taken by, amPkept for him, and that he must pay for it; that there was-no other person in-the room at the time ; that he did pay witness, therefor, stating that he was about to have the house and not to return, and thereupon turned round and proceeded towards his trunk, which sat there in the same place it had been placed in:.by'Sandford and Beamer,'the ■ night before, and that the witness thought, but was not certain, that Sandford proceeded to open it; that- he, witness, passed out of -the room and was engaged in an adjoining room fifteen-minutes, or half an hour, and that on his return he did-not'-look "for, or notice the trunk, nor had he seen it since.
    “And here the defendant rested his case.
    ' The plaintiff then produced Sandford "Wintermute, who, being sworn, testified that on his arrival, after engaging a room at defendant’s house, and leaving his trunk in the place where he was direCte'd, he spent the night With his'friends, he returned tie next day and paid for his lodgings, he came there again in the afternoon and then missed his trunk, he had intended to have stayed there until he got a place as clerk l when he missed it, defendant stated he thought it had gone with the Californians; he did ■not' take his trunk from said house, nor did he ever see it again; that he called again several days afterwards with Baxter and-asked for his trunk ; that defendant then' told him they had not found it,, that "if had no doubt gone with the Californians, and if.it did ■ not come back, he would- satisfy him. ' On -his cross-examination, -he-said he had lodged there before ; that it was customary to - pay for lodgings and other things as you got ■ them; that he cotild -not'say whether he had-stayed there-more than one-night -before; he paid for each meal as he got it, and for his -night’s • lodgings as he got them ; that -he did not remember that he saw Bis'trunk when he paid his'- bill-in-, the morning, nor-that Be then -said- that • he - would ■ return. His direct - ■ examination - being,- resumed, he testified that he did not pay the witness, Clark, at all, on the morning of the 13th day of March, that he paid the defendant in person for his lodging, in. silver, .a two shilling piece. Nobody else was then by.
    The plaintiff then re-called Burr Clark, who testified that defendant keeps lodgers and boards by the plate, that persons can come there and lodge without having meals ; can stay without paying at the time ; there is no such custom as that of paying for things when one gets them, except that persons' usually paid for the articles ordered for their meals at the time¡ eaeh article being a separate charge ; am positive that I saw him go to the trunk, that it was there at the time he paid his bill, and that Sandford said he was going out of town, and should not return ; I directed Sandford to set the trunk down the night before; Sand-ford was not there in the afternoon to my knowledge; I cannot say whether the trunk was there when I returned; I did not look for it; I came back in about half an hour, he was not there when I returned ; he recollects that the young man was there before.
    When the testimony was closed, the judge charged the jury that upon the evidence the defendant must be regarded as a common innkeeper, and that the only question for their determination was, whether the trunk had been taken by Sandford Wintermute, since, if they believed it had been taken by any other person, even after Sandford had paid his bill, the defendant was liable. That as it was clearly proved that the trunk had been placed in the charge of the defendant, the burden of proving its restoration rested upon him, and consequently unless the jury believed that Sandford had taken the trunk with the fraudulent intent of charging its loss upon the defendant, and was guilty of perjury in swearing that he had not taken it, they must find for the plaintiff.
    To each and every portion of this charge the counsel for the-, defendant excepted.
    The jury found a verdict for the plaintiff for $55, for which sum, with costs, judgment was duly entered.

      C. N. Potter, for the appellant (the deft.).
    The defendant was not a common innkeeper, for the proper definition of an inn is a house for the reception of travellers •only, or, if other guests are received, it is only in favor of travellers that the common law liability of an innkeeper attaches, and Sandford Wintermute was not a traveller. The counsel cited Thompson v. Lacy, 3 B. & Ald. 283; 2 Lord Raymond 867; 3 Hill. 491; Story on Bailments, §§. 475, 477 ; Bacon’s Abridg. Title Inn (C.), 1, 3, 5, 6.
    If this point is against me, still, upon other grounds, the plaintiff was not entitled to a verdict. The young Wintermute was not the guest of the defendant when the loss happened ; he •had paid his bill and gone away with the intention of not returning. The relation between him and the defendant, and with it the liability of the defendant as an innkeeper, had wholly ceased, and it is only as an innkeeper that he is, or can be charged. If the delivery of the trunk was necessary to be proved, it was sufficiently proved by the testimony of Burr Clark. In addition to the authorities before cited, the counsel referred, to 1 Salk. 388; 5 Term R. 213: 9 Wend. 114; 5 Barb S. C. R. 560; 10 Metcalf 472.

      J. Anthon, for plaintiff.
    The admissions in the answer, and the unquestioned testi mony in the case, justified the judge in his charge that the defendant was an innkeeper. On this point, two of the cases cited by my learned opponent, Thompson v. Lacy, 3 B. & Ald. 283; and McDonald v. Egerton, 5 Barb. 560, are direct authorities in our favor.
    In all other respects the charge of the judge was correct. The material issue made by the pleadings was the actual restoration of the trunk, and of this there was no proof whatever. The judge was therefore right, in saying that the only question to be determined by the jury, was whether the trunk had been taken by young Wintermute, for, if taken by a stranger, the defendant was certainly liable.
   By the Court.

Oakley, Ch. J.

In order to charge the defendant as an innkeeper, it was not necessary to prove that it was only for the reception of travellers that his house was kept open. It was sufficient to prove that all who came were received as guests, without any previous agreement as to the duration of their stay or the terms of, their entertainment, and such was the proof actually given. There may be a distinction between the liability of the keeper of an inn and of a mere boarding-house, where transient persons are not received at all, and none are received but for a certain time and upon certain terms. But it is not pretended that' the defendant’s house was a mere boarding-house. It was a public house of entertainment for all who chose to visit it, which is the true definition of an inn.

It is plain, however, that the liability of an innkeeper, as such, in any particular case, continues no longer than the continuance of the relation between him and the guest. That relation ceases, when the guest pays his bill and leaves the house,, with the declared intention of not returning. In such a case it is at his own peril, we apprehend, that he leaves his baggage or other property behind him. The innkeeper has a right to believe that he has taken it with him, and is, therefore, no longer responsible for its safe keeping, unless it is specially committed to his charge ; and then, only, as an ordinary bailee. His common law liability is at an end.

Whether young Wintermute, in the case before us, had not ceased to be the guest of the defendant, before the trunk was lost, and, consequently, whether the liability of the defendant for its safe keeping, had not then ceased, was a question that directly arose upon the evidence, and which, therefore, as the turning question in the cause, ought to have been submitted to the jury. That it was, in fact, submitted, is not asserted, and the charge of the judge, as stated in the case, clearly shows that it was not. To repair this omission, a new trial must be granted, and an opportunity thus be given to the defendant, of obtaining the verdict, to which, under a proper direction, a jury may think him entitled.

It has occurred to us, that there is a difficulty in the way of the plaintiff’s recovery, which, it is proper, should be stated, for the consideration of the counsel. It seems to have been conceded, upon the trial, that as Wintermute, the son, was a minor, the property in the trunk, and its contents, was vested in the father,-in whose name,-therefore,-this suit wasproperly brought, ■ but, whether this concession' was necessary to have- made/We 'think, may bé- seriously- doubted. The'son whsnoTbnger a member of his' father’s family, but had left- his home With the intention of providing for his own support; and whether, under these circumstances, the father continued to be the owner of the’ wearing apparel, and Other articles; which the son' had been permitted" to take With him, for his own- exclusive'use,-is a question, that may' deserve to bé considered.-

Duer, J.

The grounds of the charge, which I gave to the jury, were, that, under the pleadings,-the defendant wgs bound to prove, affirmatively1,- the- redelivery df the trunk,- and that' the requisite proof of this fact, had' not been given: I am U'oW satisfied,-that there was evidence, from Which, the jury, if they credited'the defendant’s Witness, would have been-warranted'to infer the fact of a redélivery, and consequently, that'the question ought' to have been submitted t'o the jury. If is upon' this ground; that 1 concur in granting a tiew trial.

The difficulty,-which the Chief Justice has suggested, as to the right of the plaintiff, to maintain this action, I am inclined to think-, will not be overcome,- unless, .upon' the next trial, further and mofe satisfactory evidence- of the ownership of the father shall be given. As the- case stands,-the prestimption; it seems' to me, is" against his title:

Judgment reversed: and' new trial granted', with costs to abide the évent.


author: Sandford, J.

text:
    Launitz v. Dixon.
    At common law, a certiorari suspended all further proceedings, hy the court, or officer, to which it was issued, and all such subsequent proceedings were erroneous. In the case of summary proceedings, under the statute, to recover the possession of land, the rule has been altered, so far as the proceedings upon the application to the justice, are ooncerned. Hence, when a certiorari is issued, it suspends the effect of the judgment of the justice, in every collateral matter, and in every thing else, except, what remains to be done hy the justice himself. It does not prevent him from issuing his warrant, to dispossess the tenant, but this is all.
    Accordingly, where on summary proceedings, instituted by a landlord, for the removal of a tenant, a warrant was granted, and the proceedings were subsequently removed to the supreme court, by writ of certiorari, and the cause was pending in that court, on the return to the writ: Held, that the effect of the judgment of removal, rendered by the justice, was suspended, during the pendency of the writ, and that it could not be made the foundation of an action, to recover the fractional part of the rent, which had accrued at the time of the issuing of the warrant, nor the expenses of the summary proceedings.
    A judgment for the removal of a tenant, if removed to an appellate court, by certiorari, does not, in a collateral suit, prove the landlord’s right to re-enter, or that the tenancy had ceased.
    In such cases, if a certiorari be issued, it stays the landlord’s action, to recover for rent, or use and occupation, as well as the expenses of the summary proceedings. If issued while the actions are pending, the certiorari suspends the force of the judgment, before the justice, as well as the right to recover expenses.
    Motion to set aside the report of a referee,' on a case made.
    (Before Oakley, Ch. J., Sandfoed and Dveb, J. J.)
    (Nov. 20,
    Nov. 29, 1851.)
    This was an action brought to recover a balance of account, alleged to be due from the defendant-, for the rent of certain premises, in the city of New York, and for marble, sold and delivered to the defendant.
    The complaint set forth :—(1.) That plaintiff furnished warehouse room to the defendant, in premises, situated on the third floor of a building, then located at No. 536 Broadway, in the city of New York, from the 1st February, 1849, to the 1st February, 1850, and that the same was worth $50. (2.) That he furnished certain other rooms, being two garret rooms, on the same floor of said building, to the defendant, at the rate of $100 per year, and that the sum of $5 55, was due for the use of the same from February 1st to February 20th, 1850. (3.) That the plaintiff sold to the defendant, between the 18th of September, 1849, and the 21st of February, 1850, marble work of the value of $105 16. (4.) That by the terms of the letting of the two garret rooms before mentioned, it was ¿greed by and between the plaintiff and the defendant, that the plaintiff should be entitled to possession of the said rooms, on giving the defendant a notice of his intention to build. That he did give the defendant such notice, but that the defendant refused to give up to the plaintiff the possession of said rooms. That the plaintiff applied to the justice of the third district of New York, for process to remove the defendant. That process was granted, and that the costs and expenses of obtaining the same, and which were paid by the plaintiff, amounted to the sum of $31 75. The complaint admitted a payment by the defendant, of $75, and claimed a balance due of $106 16.
    The answer of the defendant, denied that the plaintiff had furnished to him warehouse room, as alleged in the complaint, and that the defendant was indebted to the plaintiff in any amount for the same; and averred that the defendant hired the premises thereinafter mentioned from the plaintiff, with the understanding, that he should have whatever room he might want for the necessary storage, Ac., without additional charge, as he and his partner had used and occupied the same prior to the 1st day of May, 1849. (1.) That defendant hired the said premises, at 536 Broadway, for the full end and term of one year from May 1st, 1849, at the rate of $100 per year, payable quarterly, on the usual quarter days, and that he had regularly paid the rent therefor, according to agreement, and that no rent was due as alleged in complaint. (2.) That the plaintiff had not sold to the defendant, marble work, of the value of $105 16, but of the value of $100 16, only.
    The answer also denied that the plaintiff was to have possession of the premises, on giving notice of his intention to build, and that such notice, as averred in the complaint, was given; and averred that the defendant had caused a writ of certiorari to be issued out of the supreme court, to remove the proceedings before the justice, which writ had been allowed, and that the same was now pending, undetermined, in the supreme court.
    The cause was referred to P. T. Woodbury, Esq., as sole referee, by consent of parties, on the 21th December, 1850. The referee reported in favor of the plaintiff, and his report stated, as facts proved before him, that prior to the commencement of the action, the plaintiff had sold and delivered to the defendant a quantity of marble, at a price agreed upon between the parties; that said marble had been paid for in part, and that on the day of the commencement of this action there remained unpaid on said marble the sum of twenty-four dollars and eleven cents; that from the 1st to the 20th of 21st of February, 1849, ■ the defendant used and occupied the garret rooms belonging to the plaintiff, situated at 536 Broadway, in the city of New York, under a rent agreed upon between the parties of one hundred dollars per annum, and under a further agreement that whenever the plaintiff should notify the defendant to vacate said premises in order that he might remove the building situated upon the same for the purpose of rebuilding, the defendant should then vacate the same ; that the plaintiff did give such notice, and the defendant was finally removed from said premises in the manner hereinafter stated, and that the proportional rent for the period intermediate, February 1st and February 20th aforesaid, was five dollars and fifty-five cents ; that from the 1st of February, 1849, to the 1st of February, 1850, the defendant had the partial use and occupation of a room known as the polishing shop, on the second story of the building there situated at 536 Broadway, New York,, belonging to the plaintiff, and that the use and occupation defendant had of the said rooms was not as appurtenances to the other rooms he rented of the plaintiff in the same building, and was not included in the lease of the same, and that the fair value of such use and occupation was twenty dollars for the period aforesaid; that on or about the 20th day of February, 1850, the defendant was removed from the possession of the two garret rooms hereinbefore mentioned, under certain summary proceedings to obtain possession thereof in favor of the plaintiff, had before the justice of the third district justice’s court of the city of New York, and that the legal disbursements incurred therein by the plaintiff were nine dollars and twenty-five cents. The sums so reported, with interest, amounted to. the sum of $62 33. It appeared in evidence before.the referee, that the summary proceedings before the justice had been removed by certiorari to the supreme court, and were still pending there, as averred in the answer of the defendant. The main question raised before the court, and passed upon by them in their decision, was, as to the right of the plaintiff to recover the rent feom February 1st to February 20th, and the costs of the summary proceedings, while the certiorari was pending in the supreme court.

      M. Be Molte, for defendant, argued the following, points :
    The pleadings admit the proceedings to have been removed to the supreme court by certiorari. If removed, the plaintiff could not recover for the reasons stated below.
    The referee erred in ruling “that the claim for disbursements incurred in the summary proceedings, in favor of the plaintiff, to dispossess the defendant, although there was then pending a certiorari on said proceedings in the supreme court,, was a legal cause of action.” (1.) The removal by certiorari, from its nature, keeps the proceedings pending, and the rights and liabilities of the parties as open as though the parties-were still before the court of original jurisdiction. Nothing is changed except the tribunal having jurisdiction (4 Black. Com. 321, 472; 2 Rev. Stats. 607, § 48 to 51, 3d Ed.). (2.) The superior court has no jurisdiction of a suit or proceeding between the same' parties, involving the same subject matter, which is pending in another court; and such objection may be taken by answer (Code, § 144, 147). (3.) At common law a certiorari operates as a stay of proceedings (2 Bac. Ab. Cert. G. & K.). (4.) It still so operates, except when limited by statute (Lynde v. Noble, 20 Johns. R. 82). (5.) The Rev. Stats, do not limit it as regards, the subject matter in controversy. The statute applies simply to the landlord’s right of being placed in possession (2 Rev. Stats. 607, § 48, 3d Ed. Reviser’s notes to 2d Ed., R. S. (vide 3 R. S. 766, § 47, 2d Ed.) Smith v. Moffatt, 1 Bar. S. C. R. 68). The right of the plaintiff to recover his disbursements, is of course subject to the usual restriction, viz.: the ultimate determination of the proceedings (2 Rev. Stats. 607, § 48 to 51; 3d Ed.). (6.) The court will not construe the statute differently.

      a. The statute is in derogation of the common law, and is to be construed strictly. (Prouty v. Prouty, 5 How. Pr. R. 93.)

      b. The construction contended for, will leave the defendant without a remedy in case the proceedings are ultimately decided in his favor (Vide sections cited supra 2 R. S.).
    c. If it does not destroy the defendant’s rights, such a construction will be highly and unnecessarily inconvenient.
    If the referee held correctly as to the last point, still he was not authorized in finding the sum of $9 25 (2 Rev. Stat. 738, § 56, 3d Ed.; Id. 728, § 36; Id. 343, § 127; Id. 736, § 54. Sess. Laws, 2849, Chap. 193, § 5).

      W. Bachard for the plaintiff.
    Tn cases of summary proceedings to recover possession of land, the prevailing party recovers costs, and may bring an action for the recovery thereof, and the proceedings on such application are not stayed by a writ of certiorari, nor any other writ or order (2 R. S. p. 607, secs, 48, 49, 50; Dyett’s Summary Proceedings, p. 51, 104, § 50, 351, 180).
   By the Court.

Sandford, J.

There is no complaint of the first item allowed by the referee, the $24 11 balance of the marble account. As to the $20 allowed for the use and occupation of a part of the room adjoining those described in the plaintiff’s lease to Dixon & Stoney, in 1845, if the question were submitted to us as jurors, we think we should have decided against the plaintiff. The language of the receipt for rent, dated February 2d, 1850, together with the mode of occupying the room during the whole time the defendant was a tenant, goes far to show that it was considered as a part of the demised premises, iind that the words “ except that part,” in the lease dated March 15,1850, were intended to be confined to so much of the room ;as was occupied as a polishing shop, and not to extend to the whole room. But the referee has found, on the evidence, that the occupation by the defendant of a part of this room, was distinct from, and not embraced in the premises demised by the lease in 1845, and the subsequent parol lettings of the same ; and the preponderance of testimony is not such as to warrant us in disturbing his conclusion.

The remaining items allowed by the referee, viz., the rent from February 1st, to February 20th, 1850, and the costs of the summary proceedings to remove the defendant from the premises, depend upon the same question.

The defendant was removed from the premises under the proceedings for that purpose before the justice, but the proceedings were removed to the supreme court by a writ of certiorari, allowed March 9,1850, and the cause is still pending in that court on the return to that writ.

At common law, a certiorari suspended all further proceedings by the court, or officer to which it was issued, and all such subsequent proceedings were erroneous. (Bac. Abr. Certiorari, G. & K; Patchin v. Mayor, &c., of Brooklyn, 13 Wend. 664.) Except in the single particular of an execution, already issued and in the process of being executed, the certiorari suspends entirely the force of the judgment sought to be renewed. This rule has been altered by the statute relative to summary proceedings to recover the possession of land, &c., so far as the proceedings upon the application to the justice are concerned. (2 R. S. 516, § 41.) Except as to these, the common law still prevails. Hence, when a certiorari is duly issued in such a case, it suspends- the effect of the judgment of the justice in every collateral matter, and, indeed, in everything, except what ■ remains to be done by the justice himself upon the application before Mm. It does not prevent the justice from issuing his warrant to dispossess the tenant. He may proceed to judgment and execution,, that isr to such execution of his judgment as the law points out. But this is all. His judgment does not, in a collateral suit,, prove the landlord’s right to re-enter, or that the tenancy has ceased, if it appear that the judgment has been removed to the supreme court by a certiorari.- The same principle applies to a suit by the landlord to recover his expenses incurred before the justice The justice can grant no execution for those costs. They can only be recovered by an action against the tenant. The action for such costs, as well as an action for rent, or use and occupation, up to the date of the dispossession, is not a proceeding on the application before the justice. Both grow out of it, but the justice has nothing to do with either, and they are in no sense proceedings before him, or on the summary application.

To such suits, therefore, the common law rule applies. If a certiorari be issued before they are commenced, they are stayed altogether until the writ is in some manner finally disposed of. If issued while such suits are pending, as the certiorari suspends the force of the judgment before the justice, the landlord’s right to recover his expenses there is also suspended. If the justice's judgment be reversed, he has no right to the expenses ; if it be affirmed, his right to them revives. While the certiorari is pending, the suspended justice’s judgment furnishes to the landlord no evidence of a right to those costs.

So as to the rent for the fraction of a quarter, for which the referee, in this case, reported in favor of the plaintiff. His whole right to sue for that rent before the end of the quarter, rested on the justice’s judgment in the summary proceedings. But the certiorari, while pending, took away the efficacy of that judgment. So far as the right to the fractional rent is concerned, the case stands by reason of the certiorari, as if no such judgment had been given. The plaintiff, therefore, had no evidence to warrant him in suing for the rent until the end of the quarter, that is, until May 1st, 1850, and the referee erred in permitting him to recover for it. The report is equally erroneous as to the expenses before the justice. No right to recover them was shown, or could be shown, while the certiorari was pending.

We must, therefore, reverse the judgment, and set aside the report, unless the plaintiff will consent to reduce his recovery to the amount of the two items first mentioned.


author: Oakley, Ch. J.

text:
    Emery Matthews, Respondent, v. Moses S. Beach & Alfred E. Beach, Appellants.
    When circumstances, that, could only be admitted in evidence, in mitigation of damages, are set up as a defence, they are a proper subject of demurrer.
    In an action for a libel, mitigating circumstances can only be pleaded, when the libel is justified.
    A demurrer to an answer, which specifies those parts of the answer, which are excepted to, as an insufficient defence, is not too broad. It must.be construed as applying only to the parts specified.
    Whether a publication, adjudged to be libellous, is merely a report of the proceedings before a police magistrate, or a positive affirmation of the truth of the facts, which it states, is not a question to be submitted to the jury. It is a question of - construction, which the court is bound, and is alone competent, to determine.
    In all civil suits, the question of libel, or no libel, when it arises solely upon the face of the publication, is a question of law, upon which, the jury must follow the direction of the court.
    It is no ground of exception, that the judge advised the jury, that under the circumstances proved, the damages ought to be more than nominal.
    The jury is bound to presume, that a libellous publication has not been explained, or retracted, unless the fact is proved by the defendant.
    Judgment, on demurrer, affirmed. Exceptions overruled, and new trial directed.
    (Before Oakley, Oh. J. Sandeobd and Dueb, J. J.)
    (November 21;
    November 29, 1841.)
    This was an action for a libel, and that the points argued, and the decision of the court, may be properly understood, it will be necessary to give the pleadings. They are as follow :
    City and County of New York, ss. The complaint of Emery- Matthews against Moses S. Beach and Alfred' E. Beach, respectfully showeth, that- on the 27th- day of June, in the year one thousand eight hundred and fifty, at the city of New York, the said Moses S. Beach, and Alfred E. Beach, under the name and firm of Beach Brothers, were the editors, printers, and proprietors of a certain public newspaper, printed and published in the said city, under the name and title of “ The Sun that on the said 27th day of June, A. D. 1850, the said Moses .S. Beach and Alfred R Beach, maliciously intending to wrong and injure the complainant, and to bring Mm into public scandal and disgrace, and to break him up and ruin him in his occupation and business, and to cause it to be believed that he was a swindler and cheat, and had obtained money by false pretences, did in a certain number of the said newspaper, headed and entitled “ The Sun,” New York, Thursday morning, June 27th, 1850, price, one cent, print and publish the following false, scandalous, and malicious libel of and concerning the complainant, and his business and occupation : that is to say,
    “An assault was committed last Tuesday night, on a respectable man named Peter N. Horsely, in Broadway, by two emigrant runners, named Adams and Matthews, who knocked Mm down and grossly maltreated Mm. The quarrel, it is represented, originated by Mr. Horsely, asking the fellows to refund money that had been paid to them by some of his friends for worthless steamboat tickets. The complainant appeared before Justice Lathrop, at the Tombs, and stated the circumstances, but the justice refused to issue a warrant. Proceedings were then entered into before the mayor, and means taken to bring the offenders to justice.”
    The complainant therefore prays judgment against the said Moses S. Beach, and Alfred R Beach, for the damages which he has sustained by reason of the premises, to the amount of one thousand dollars.
    And the above named defendants, for answer to the complaint in this cause, deny, on information and belief, that they published of and concerning the plaintiff in this action, the article in the said complaint contained and alleged to be a libel.
    And the said defendants deny that by the publication of the said alleged libel they intended to wrong and injure the plaintiff, or to bring him into public scandal or disgrace, or to break him up in Ms occupation, or business, or to cause it to be believed that he was a swindler or cheat, or that he obtained money by false pretences, as is alleged in said complaint.
    And they aver that they published an article in the words set forth in the complaint, in good faith, believing it to be true, and because they believed it contained information which it was important for the public to know, and as the report of proceedings, which took place before Justice Lathrop, as one of the police justices, of the city and county of New York, and they aver, on information and belief, that one Peter N. Horsely, in the said complaint named, did, on or about the 25th of June, 1850, or on some day thereafter, and before the 29th of said June, A. D. 1850, appear before Jeremiah Lathrop, one of the police justices of the city and county of New York, and make a complaint, which complaint the defendants believe to be true, that one Peter W. Adams, and one Matthews, had, on or about the 25th day of June, 1850, assaulted and beat the said Horsely, in the public street, in the city of New York, and they further aver, that the said assault, so complained of, was also represented by the said Horsely, and the defendants believe truly, to be committed upon him by said Adams and Matthews, or one of them, because he, said Horsely, then and there requested the said Adams and Matthews, or one of them, to refund certain money that had been paid to them, or one of them, by a friend of the said Horsely, of whose name, however, defendants are ignorant, some days previously, for a ticket, which it was represented, by said Adams and Matthews, or one of them, would insure the said friend, of the said Horsely, a certain passage on the Hudson river,' from the city of New York, to some other place on the said river, and which passage, the said ticket did not secure, and for which the said ticket turned out to be insufficient, but which representation of the said Horsely, the defendants believe to be substantially true.
    Defendants further aver, that said assault is the one referred to in the publication alleged in plaintiff's complaint to be libellous, and that said police justice, Lathrop, did, on or about the 28th day of June, 1850, issue a warrant for the arrest of said Adams and Matthews, or one of them, founded on the complaint of said Horsely, as aforesaid.
    The complainant, by his attorney aforesaid, demurs to the said answer of the defendants, for insufficiency, and states, as the grounds of his demurrer, that all the averments and allegations in the said answer contained, and each and-every one of them, from the words “ and they aver, that they published an article," down to the end of the said answer, are and is insufficient as a justification or defence of the said, libel,, to. bar or preclude the-complainant from having and maintaining his action, aforesaid, against the defendants, and that no complaint, made by one Peter N. Horsely, against complainant, or Adams, for an assault (either before, or after the publication of the libel), is a defence' or justification of the charge against complainant (in said libel contained) that the complainant had sold Horsely worthless steamboat tickets. The said answer is insufficient, because it does not state, that the complaint to the police justice was made before the publication of the libel; and it does not state that Horsely represented that complainant had.sold to his friend the worthless tickets, but the answer leaves it uncertain, which one of them, Adams or complainant, was charged before the justice with the assault; or which one of them he represented, had sold to his friend the worthless tickets; or on what day, whether before or after the publication of the libel, Horsely made his complaint and representation to the police justice.
    The demurrer was argued before Mr. Justice Campbell, at a special term, in May, 1851. Judgment, with costs, was given for the plaintiff.
    Upon the issues, made by the pleadings, striking out those parts of the answer that were overruled by the demurrer, the' cause was brought to trial, before Duer, Justice, and a jury, on the 7th October, 1851.
    The judge decided that the publication was admitted by the-answer, and that the only question was, whether the plaintiff' was one of the persons to whom the libel referred. The publication was therefore read without further proof.
    To this decision the defendants' counsel excepted.
    Several witnesses were then examined, on the part of the-plaintiff, but their testimony, as it has no bearing upon the questions argued, is omitted.
    The counsel for the defendants, in addressing the jury, insisted' that the damages ought to be no more than nominal, upon the grounds that the publication was a fair report of what had occurred in a public police office, and that it was plain that the defendants liad not acted from private malice, and there was no evidence that the plaintiff had sustained any damage.
    The judge charged the jury, in substance, that the publication was, on its face, a libel, and if they believed that it referred to the plaintiff, the amount of damages that might properly be given, was the only question they had to consider.
    That there was little weight in the circumstances that had been urged in mitigation of damages. The libel was not a mere statement of the proceedings before the police magistrate. It neither was, nor purported to be, a report of those proceedings. It was a distinct positive affirmation of the truth of the facts which it states, and was therefore a publication which the defendants could not be justified in making, unless they were prepared to establish its truth. That it was not necessary to show that the defendants were actuated by personal malice, or that the plaintiff had sustained any special damage. When a publication is libellous the law imputes malice to its author, and presumes that the person libelled sustained an injury, entitling him to a compensation in damages. That if the defendants, after a due investigation into the truth of the facts, had published a mere report of the proceedings before the magistrate, there would be some ground for saying that the damages ought to be no more than nominal. But the case was widely different. It was in evidence that the plaintiff had called upon the defendants, and had given them the opportunity of apologizing for, and retracting the libellous charges, and that they had promised to do so ; but this promise had not been fulfilled. The charges had not been retracted, and the plaintiff ivas, therefore, in a measure, compelled to bring his suit. Under these circumstances, the damages should be more than nominal. They should be sufficient to indemnify the plaintiff, and to operate as a penalty upon the defendants.
    The defendants’ counsel excepted to this charge, and in the case, the exceptions are stated as follows :
    His honor having concluded his charge, defendants’ counsel asked him to instruct the jury that it was their right to interpret the alleged libel, and say whether it was the affirmation by defendants of any fact as within their own knowledge, or the statement of what had been represented in a public proceeding.

    His honor refused so to charge, and said to the jury that, as matter of law, the libel was, and must be taken to be a direct affirmation by the defendants, as he had already stated to them.

      The counsel for the defendants then duly excepted to the-refusal to charge, and to the ruling of his honor, just stated, as. to the construction of the libel as matter of law.
    The defendants’ counsel also asked his honor to state to the' jury that there was no evidence that the defendants had not' published an explanation or retraction of the article in question.
    His honor said to the jury that they must assume that there had been neither; because, if there had been, the defendants could, and should have proved it.
    To this instruction the defendants also, in due form, excepted.
    The defendants’ counsel then observed that his honor had infringed on the prerogative of the jury, in stating that the damages should be more than nominal.
    His honor then said to the jury that he did not mean to tell them what amount of damages they should give—that was a question for them, and if they thought the plaintiff should only recover nominal damages, they had a right to say so by their verdict.
    The defendants’ counsel excepted to what his honor had told the jury as to what, in his opinion, should be the damages ; and also excepted to his having given them his opinion at all on the subject of what the damages should be.
    The jury found their verdict for the plaintiff, and assessed his damages at five hundred dollars, for which sum, with costs, judgment was duly entered.
    The defendants appealed to the general term, and the cause was now before the court upon the whole record and on the hill of exceptions,

      J. T. Brady, for the defendants.
    The judgment upon the demurrer was erroneous. The' demurrer ought to have been overruled as too broad. It was to the whole answer, although a part only was alleged to be bad. Passing over this objection, still the demurrer ought not to have been allowed; for although the facts stated in that part of the answer, which was held to be bad, may not have amounted to a justification, according to the decision of this court, in Stanley v. Webb (4 Sand. S. C. R. p. 21,) yet they were admissible in evidence in mitigation of damages, and for that reason ought to have been retained in the answer (Code, §§ 89, 154, 159, 165). But, admitting that these mitigating circumstances were not matter proper to be inserted in the answer, this part of the answer was then irrelevant or redundant, and as such was not a proper subject of demurrer; it might have been stricken out upon motion (Code, §§ 153,160).
    If the judgment upon the demurrer shall be sustained, still the errors of the judge upon the trial, as they appear upon the bill of exceptions, entitle us to a new trial. The judge erred in holding that the publication was admitted by the answer, but this exception is not meant to be proposed, since it may be said that the publication was afterwards sufficiently proved! But the principal error of the judge was, his refusal to let the jury pass upon the meaning of the publication, and his undertaking to settle its construction as a question of law. The decision of the court of errors in Dolloway v. Turrill, 26 Wend. 383, conclusively shows, that in doing so he invaded the province of the jury. That decision has established the right of the jury, to determine in all eases, civil as well as criminal, whether a publication is libellous or not. They have an exclusive right to judge of its meaning and application (Ch. J., This is saying that in libel suits the jury are judges of the law, as well as of the facts ; to my ears it is a new and strange doctrine). It is the doctrine that the court of- errors has estar blished, for their decision, in the case referred to, can bear no other interpretation; and if it has not been followed, it is because the attention of judges has not been directed to it. The judge also erred in charging the jury that they must assume that the -defendants had not published any explanation or retraction of the article, said to be a libel (Johnson v. Johnson, 4 Wend. 630); arid his charge throughout, and especially upon the question of malice, was calculated to make an erroneous impression upon the minds of the jury, and to give a false direction to their verdict. In effect, he instructed the jury, not only to find for the plaintiff, but to give him more than nominal damages. But for his dharge, the damages would probably have been only nominal.

      L. Gardenier for plaintiff.

      The demurrer is limited to the new matter in the answer, and does not embrace the issues made by the denial of averments in the complaint, and it was properly allowed, since the new matter is not a bar to the action, although it is pleaded as such. It is not offered as “ mitigating circumstance, nor could it be, as the truth of the libel is not justified,” Stanley v. Webb, 4 Sand. S. C. R. 31; Fry v. Bennett, 9 Leg Ob. p. 336 (ante p. 54) Graham v. Stone 6 How. P. R. p. 15. As to the bill of exceptions, not one of the exceptions is well taken. The judge was clearly right in refusing to instruct the jury, that it belonged to them to interpret the alleged libel, and to say whether it was the affirmation of any fact, as within the knowledge of the defendants, or the statement of what had been represented in a public proceeding, and he was right in charging, as matter of law, that the libel was, and must be taken to be, a direct affirmation by the defendants, of the truth of the facts, which it stated. (Root v. King, 4 Wend. 113; 7 Cow. 607 and 637; Gardner v. Picket, 19 Wend. 186; Nichols v. Goldsmith, 7 Wend. 161.) The judge was also right, in refusing to charge, that there was “ no evidence, that the defendants had not published any explanation or retraction of the libellous article, and in instructing the jury, that they must assume, that none had been published. (Root v. King, Gardner v. Picket, ut sup. Hotchkiss v. Oliphant, 3 Hill 546.) The allegation, that the judge invaded the province, and infringed the right of the jury, by stating that the damages should be'more than nominal, is groundless, since he also told them, that he did not mean to direct them, as to the amount of damages; and that they were at liberty to give nominal damages, if they thought no more should be recovered. He had a perfect right, to express his opinion, to the jury, upon the question of damages, if he did not positively instruct them. (Washburn v. Cook, 3 Denio 101; Jackson v. Zimmerman, 12 Wend. 299; Dod. v. Lyon, 10 John. 447; 3 Hill 180; 4 How. P. Rep. p. 448.
   By the Court.

Oakley, Ch. J.

We cannot say that the demurrer is too broad. It is true, it commences by stating that the plaintiff demurs to the answer, which, unexplained, means the whole answer ; but it immediately specifies the parts of the answer to which exception is taken, and to which, as constituting an insufficient defence, the demurrer is meant to apply. The specification corrects the previous error, and were it otherwise, the mistake is purely formal, and as such, is amendable of course, in any stage of the proceedings.

Confining the demurrer to the new matter in the answer, the judge, at special term, could not have done otherwise than allow it nor can we hesitate to affirm his decision. The allegations in this part of the answer, substantially are, that the alleged libel was a faithful report of the ex parte proceedings before the magistrate, and it is exactly this defence, that in Stanley v. Webb, we have adjudged to be insufficient. The decision in that case has been too frequently represented as that of a single judge, but it was, in truth, the judgment of the court at a general term, which, consequently, we are bound to follow. In saying this, we are not to be understood as intimating that we entertain any doubt of the propriety of a decision, which is sustained, as it seems to us, not only by an irresistible force of authority, but by cogent reasons of public policy.

It was said that, admitting that the new matter demurred to, does not amount to a full defence, still the facts set forth are admissible in evidence, in mitigation of damages, and therefore ought not, by sustaining the demurrer, to be struck out from the answer. But we adhere to our decisions in Newman v. Otto (4 Sand. S. C. R. p. 668), and in Fry v. Bennett, that in actions like the present, mitigating circumstances can only be pleaded, when the truth of the libel is justified, and that when pleaded, it must be stated, that they will be given in evidence, solely in mitigation of damages, since otherwise the plaintiff has a right to believe that they are relied on as a bar to his action, and upon that ground may justly demur to them. In this case, the libel is not justified, and the mitigating circumstances are not pleaded as such, but as a defence.

It was also said, that if the new matter in the answer is not a defence, and ought not to have been inserted at all, the plaintiff, instead of demurring, should have moved to strike it out as irrelevant or redundant. The answer is, that matter set up as a defence, cannot be treated as irrelevant or redundant. It may be struck out as frivolous, but in all cases, when such a motion can properly be made, the plaintiff has an election, to make it, or demur. For these reasons, the judgment on the demurrer is affirmed.

We pass to the exceptions taken on the trial.

The objection to the ruling of the judge, in permitting the libel to be read to the jury, without proof of publication, upou the ground that its publication was admitted by the answer, was, in a measure, abandoned. We think that the judge rightly construed the answer, as making an issue, not upon the publication of the libel, but, solely, upon its application to the plaintiff; but if this construction was erroneous, the error is immaterial, since the publication was conclusively proved in the progress of the trial.

The next exception is that upon which the counsel for the defendant seemed to place his chief reliance. It is, that the judge erred in the construction, which, as a matter of law, he gave to the libel, and in his refusal to submit the question of its true meaning to the consideration of the jury. We are of opinion, however, that the judge was entirely correct in the charge that he gave, and in his refusal to alter it. The construction of the libel was, under the circumstances, an unmixed question of law, which he was bound, and was alone competent, to determine. We agree with him, that the publication in question, is a distinct and positive affirmation of the truth of the libellous charges which it contains, and is not a mere statement of the representations that had been made to a magistrate, in a public proceeding ; and such being its legal and manifest construction, he would have committed a grave error, had he submitted the interpretation of the libel, as a question of fact, to the determination of the jury. It is undoubtedly true, that there are cases, in which the meaning and application of a libel, as questions of fact, ought to be determined by the jury, without any positive instruction on the part of the judge; but this is only when the meaning and application depend upon extrinsic facts, upon which the jury must of necessity pass, or when the terms of the publication are so ambiguous, that they arc just as capable of being understood, in an innocent sense, as in that, which alone would render them, actionable. (Tempest v. Cham bers, 1 Starkie, 56; Delany v. Jones, 3 Esp. R. 191; Decker v. Tabor, 12 John. R. 240; McKinly v. Rob, 20 John. 356; Goodrich v. Wolcott, 3 Cow. R. 231.) But where no extrinsic facts are necessary to be proved, and the words of the publication are not susceptible of being understood, in any other than a libellous sense, the judge is bound tó give a positive instruction to the jury, and the jury equally so, to follow his direction. The question is then an unmixed question of law; and were it true, that in all cases, civil as well as criminal, it is the exclusive province of a jury, to interpret an alleged libel, it is manifest, that no demurrer would lie to a declaration, upon the ground, that the words charged are not actionable ; nor upon the same ground could a judgment ever be arrested.

We have been told, however, that the doctrine, that libel or no libel is, in all cases, a question for the jury, novel as it may seem, has been established, as the law of this state, by the decision of the court of errors, in Dolloway v. Turrill (26 Wend. 383). Nor can it be denied that the language of one or two of the senators, who delivered opinions in that case, may be fairly cited in support of the argument; but upon examining the report, it is evident," that the judgment, reversing that of the supreme court, proceeded upon the sole ground, that the words of the alleged libel were plainly susceptible of an innocent sense, and, consequently, that the question in what sense they were in fact used, ought to have been submitted to the jury. The decision, therefore, was not an arbitrary change of the law, as it has always been understood and administered, but is plainly reconcilable with the prior cases to which we have referred.

The remaining exceptions it is scarcely necessary to notice.

If the defendants had published a retraction of the libel, the fact, if proved, would have operated to diminish the damages. The burden of proving it, therefore, rested upon them. In the absence of such proof, the non-existence of the fact, was a just and legal inference.

The judge had a perfect right to express his opinion to the jury, upon the question of the damages that might reasonably be given, and the opinion that he gave was fully justified by the evidence. The advice given by a judge to a jury, is never a subject of exception, although, when erroneous, it may, in some cases, furnish a sufficient motive for an exercise of the discretion of the court, in granting a new trial.

The exceptions are overruled, and the judgment at special term affirmed, with costs.


text:
    Reynolds, and others, v. Davis & Brooks.
    Whatever may be the proper rule, as to following the decisions of the present supreme court, by the superior court, in a given suit, in respect to the principles of law involved, the latter court is not bound by the decisions of the former, when plainly erroneous, as to what facts were established, in the suit.
    If the facts, .assumed in the opinion, delivered by the supreme court, in a particular case, are so erroneous, that it is impossible, for the superior court, to know what would have been the decision of that court, on the facts, as they appear to the superior court, tire latter court will decline to adopt it as a controlling decision.
    Although a previous judgment, of the superior courts between the same parties, be not res judicata, so as to constitute an estoppel, or bar between the parties, yet, it is the duty of the court, to adhere to its decisions, deliberately made, until they are overruled by a higher tribunal; unless, it be made to appear, ¡that such decisions are palpably erroneous.
    M., residing at Gottenburgh, consigned a cargo of iron to the defendants, at New York, with instructions, to remit the proceeds to the plaintiffs, at London, as the consignor’s agents or bankersthey having made advances to M., upon the shipment, with the understanding, that M. should transmit to them, bills of lading, and the usual shipping documents, and that they should receive the proceeds. But the defendants were not informed of this arrangement Held, that, whatever -was .the private understanding, or the actual state of affairs, between M. and the plaintiffs, the defendants, not being notified of it, had all the usual rights of factors, in respect to the shipment of iron; and, that the plaintiffs had no lien upon it, in virtue of their advances, as against the defendants’ claim, for a general balance against the consignor.
    (Before Oakley, Cu. J, Sandford and Duras, J. J.)
    (November 6, 9, 10, 1851;
    December 27, 1851.)
    This action was brought in the superior court, for the reco; very of William Malm’s share (one-half) of the proceeds of sales of 200 tons of iron, shipped by him in Gottenburgh, on board of the ship Christina, bound for New York, and of 100 tons of iron, shipped by him, on board of the ship Bohemia. Both shipments were consigned to the defendants for sale. The cause was referred to referees, who reported in favor of the plaintiffs, for the proceeds of both cargoes; this report was afterwards set aside, and the causes ordered to be tried by a jury. On the trial, the judge instructed the jury, that the plaintiffs were entitled to recover, for the proceeds of the iron, by the Christina, but were not entitled to recover for that shipped by the Bohemia. Each party sued out a writ of error, upon the judgment of the superior court; and the supreme court decided, that the plaintiffs were entitled to recover the proceeds of both cargoes ; and, accordingly, reversed the decision of the superior court, in relation to the cargo of the Bohemia. The cause was then sent back to the superior court, where a verdict was taken before his honor, Judge Sanford, for the amount of Malm's share of the proceeds of both cargoes.
    The plaintiffs were bankers, transacting business in London, under the firm of T. W. Smith & Co,, and also carried on business in Liverpool, as merchants, under the same firm. William Malm was a merchant, residing in Gottenburgh, engaged in the purchase and shipment of iron, and the defendants were merchants of New York, at the commencement of these transactions with Malm and the plaintiffs. The plaintiffs had advanced to Malm, the cost of his share of these shipments, upon his engagement to transmit them, bills of lading, and usual shipping documents. Malm did, accordingly, inclose and send to them, the shipping documents, with instructions to Davis & Brooks, to remit the proceeds of his share of the cargo to the plaintiffs. But there was no proof to show that the defendants were notified of the advances made by the plaintiffs, upon the shipments, or of the state of the accounts, between them and Malm. The defendants claim to retain the proceeds of the sales of iron, by virtue of a lien, for a general balance due to them from Malm.
   By the Court.

Sandford, J.

The plaintiffs claim to recover the net proceeds of two cargoes of iron, consigned by W. Malm to the defendants, the one by the brig Christina, the other by the ship Bohemia. The two shipments were distinct and unconnected, and, in some respects, were dissimilar.

This court, several years ago, decided that the plaintiffs were entitled to recover the proceeds of the Christina’s cargo, but were not entitled to recover the proceeds of the Bohemia’s cargo. Each party brought a writ of error, to remove, to the late supreme court, the judgment adverse to them respectively, and the cause came on to be heard before the present supreme court, after it had ceased to be an appellate tribunal to this court. The supreme court affirmed the decision as to the cargo of the Christina, and reversed that as to the cargo of the Bohemia, and our first inquiry is, how far we are to be governed by the decisions thus made ?

It is claimed by the plaintiffs’ counsel, that the present supreme court, having the right to affirm or reverse the former judgment of this court, its judgment is as binding upon this court, in this case, as if it were still an appellate court; while the defendants’ counsel contends that although it might affirm or reverse the particular judgment, yet, as it is only in fact a co-ordinate tribunal, it cannot give the law to this court in this case, any more than it can in a suit commenced, since the change in its appellate jurisdiction.

It is not strictly necessary that we should determine this point, because the opinion of the supreme court furnishes a sufficient and entirely independent reason, for our declining to be governed by its judgment. Owing, undoubtedly, to the immense mass of manuscript in which the facts of the case were buried, that court assumed, as a basis for its decision, a state of facts materially different from that actually presented by the case. The great advantage afforded to us by the printing of the voluminous correspondence which was put in evidence, and the more full argument of counsel, enables us to perceive, in the plainest manner, the errors alluded to- And whatever may be the proper rule as to our following the decision of the present supreme court in a prior suit, as to the principles of law involved, it cannot be seriously urged, that we are bound to follow its decision, when plainly erroneous as to the facts that were established in the suit. The erroneous facts assumed in the opinion delivered in this case, are such, that it is impossible for us to know what would have been the decision of the court on the facts as they now appear. We must therefore decline to adojjt it as a controlling decision.

In the next place, how are we situated in regard to the judgment heretofore pronounced in our own court ?

Although it is not res adjudicata, so as to constitute an estoppel or bar between the parties, we think it is the duty of the court to adhere to its decisions, deliberately made, until they are overruled by a higher tribunal, unless, indeed, it be made to appear that such decisions are palpably erroneous.

In this case, so far as the cargo of the Bohemia is concerned, we were fully satisfied, on the argument, that the former decision of this court was right. It was a voluntary shipment by Malm, not growing out of, or in any manner connected with, the previous shipments. It was not only not pre-arranged, but it was also unexpected. No advice was communicated to the defendants that the plaintiffs had advanced to Malm, or accepted his bills for that cargo, until after Malm’s failure to remit the proceeds of the defendants’ cargo of sugar, in 1836. It was, in short, an isolated consignment to the defendants, with instructions to remit to the plaintiffs, as the consignor’s agents or bankers. Whatever was the private understanding, or the actual state of affairs, between Malm and the plaintiffs, as it was not notified to the defendants, they had all the usual rights of factors, in respect of this' shipment, and the plaintiffs had no lien upon it, as against the defendants' claim for their general balance against the consignor.

As to the cargo of the Christina, it may be true, as the counsel of both parties seemed to agree, that in principle and in fact, it does not differ from the case of' the Bohemia, but this court, on the former argument, held otherwise, and we do not feel at liberty to review that decision. It is very clear that the point is not so plain or palpable, as to bring the case within the exception we have laid down on that subject. One or more of us would be inclined, if the matter were open for examination, to adopt a different conclusion ; but having been once decided here, we cannot recall the conclusion then formed.

The verdict and judgment must be adjusted accordingly, giving judgment in favor of the plaintiffs, for the Christina’s cargo,, and against them, for that of the Bohemia-

Judgment accordingly.