author: Duer, J. Duer, J.

text:
    George W. Bowman v. Henry Sheldon and others.
    The title of an affidavit embraces the name or style of the court as well as the names of the parties.
    Hence an error in the name of the court, when it is certain that the party upon whom the affidavit was served could not have been misled, is to be disregarded, under § 406 of the code.
    the denial of a motion by the default of the moving party, is not a bar to its renewal when the default is excused.
    -v hen there are several grounds upon which a motion may be made, that upon wmeh the moving party means to rely must be specified in the notice.
    *ae ahd rule of the Supreme Court, as plainly applicable, is binding npon the Superior Court.
    hence notice oí a motion to strike out matter from a complaint which was served more tuan twenty days after the service of a complaint, held to be irregular and void.
    An extension oiule time to answer, is a waiver of all objections to the complaint, and a bar to a motion to strike out irrelevant matter, unless the right to make the motion is expressiy given.
    August 16, 1852.
    This was an application, on the part of the defendants, to strike out certain parts of the complaint. The parts proposed to be stricken out, were specified in the notice, but the grounds of the motion were not stated.
    The time for answering the complaint expired on the 30th of July, and on the 27th of July, the defendants obtained an order extending the time to answer for thirty days, but the order contained no enlargement of the time for making this or a similar motion. On the same day, 27th July, notice of a motion to strike out the same parts of the complaint which the present application embraces, was served on the plaintiff; the notice was for the 7th of August, but no counsel for the defendants attending on that day, the motion was denied with costs. Notice of the present motion was served for the 18th August.

      A. L. Jordan, for defendants,
    in order to meet the objection that the application was too' late, and that a similar motion had been denied, offered to read his own affidavit explaining and 'excusing the non-attendance of counsel on the 7th August.

      Bowman, plaintiff,
    in person, objected to the reading of the affidavit, on the ground that, it was entitled “ Supreme ” instead of “ Superior ” court. He referred to the decision of the court of appeals, in Clickman v. Clickman (1 Comst., 610), as a con-elusive authority.
    Jordan—contra
    —said that, as there was no other suit between the parties (which Bowman admitted), the affidavit plainly referred to the motion before the court; the error in the style of the court was cured by § 406 of the code.
   Duer, J.

—Following the words of the code, I think I am bound to say, that this affidavit is just as valid and effectual, as if 'it were “ duly entitled.” The code says, § 406, “It shall not be necessary to entitle an affidavit, in the action, but an affidavit made without a title, or with a defective title, shall be as valid and effectual for every purpose as if it were duly entitled, if it intelligibly refers to the action or proceeding in which it is made.” As this is the only suit between the parties, the plaintiff could not have been misled by the error in the name of the court. He knew at once that it was a clerical mistake. He knew that the affidavit refers to this action, and was meant to be used in support of this motion.

I cannot regard the observations of Bronson, J., in Clickman v. Clickman, as a positive decision of the court of appeals, for in that case, the error in the name of the court was in the notice as well as in the affidavit, and it was truly said that such an error is not helped by the code. Here, the notice is correct,. and by its accuracy demonstrates and corrects the mistake in the affidavit to which it refers.

Nor can I assent to so narrow a construction of section 406 (ante 367) as to limit its application to the cases in which the error or defect is in the names of the parties. The title of an affidavit, I think, embraces its entire heading ; that is, the name or style of the court as well as the names of the parties, and to give effect to the intention of the legislature, the words “defective title "must be understood in their broadest sense ; that is, as equally applying, whether the title be inaccurate, as merely incomplete, or as positively erroneous. The plain meaning of the code, it seems to me, is, that an affidavit is, in all cases, to be deemed sufficient, as to its form, which “ refers intelligibly to the action or proceeding in which it is made," and the question as to its admissibility is, therefore, settled, when the court is satisfied that the party upon whom it was served could not have been misled.

The affidavit was then read. Bowman then stated that there were other preliminary objections that he considered to be fatal. They were,

1. That "the denial of the motion on the 7th of August was a bar to its renewal, the right to renew it not being then reserved (Suyder v. White, 6 How. P. R. 321).

2. That the notice was irregular, as not specifying the grounds of. the motion (Ellis v. Jones, 6 How. P. R. 296; May v. Wilson, 10 Bar. R. 321).

3. That the notice was also too late, not having been given within twenty days after the service of the complaint, as required by the 43d rule of the superior court. Lastly, that the defendants, 'having obtained an order enlarging the time to' answer, had thereby submitted to answer the complaint as it stood, and were precluded from excepting to it (1 Bar. Ch. P. 101).

After argument, the judge reserved his decision on these objections, and heard the motion on the merits.

Duer, J.

I certainly would not have entertained this motion, had the former been heard and denied upon the merits, but the denial of a motion by the default of the moving party, if the default, as in this case, be sufficiently excused, is no bar to its renewal.

The proceeding, however, would have been more regular and, as will appear, safer for the defendants, had their counsel moved to open the default, so as to have enabled him to bring the motion to a hearing upon the original notice.

The other preliminary objections upon which the plaintiff insisted, are much graver in their character. If irrelevancy were the only ground upon which a motion to strike out parts of a pleading could be sustained, the omission to state the ground in the notice I should hold to be immaterial; but where there are several grounds upon which a motion may be granted, those upon which the moving party means to rely must be distinctly stated either in the notice or in the affidavits that accompany it, and to the grounds thus stated the party will be confined upon the hearing.

I consider this to be the established practice, and the rule is in itself so reasonable and just that I have no inclination to depart from it.

Under the provisions of the code, irrelevancy is not the only ground of a motion, like the present; matter which is redundant may be stricken out as well as that which is irrelevant, and the terms are certainly not equivalent. Matter which is irrelevant, it is true, is also redundant, but the converse is by no means true. A needless repetition of material averments is redundancy, although the facts averred, so far from being irrelevant, may constitute the whole cause of action.

Nor is this all; the power of the court to strike out matter as scandalous, is certainly not affected by the provisions of the code; it is essential to the due administration of justice, and to the protection of the feelings and character of suitors. In the court of chancery, however, the exception for scandal was always -considered as distinct from that of impertinence, although plainly comprehended under it, as it is now under that of irrelevancy (Coffin v. Cooper, 6 Vesey, 573; Wood v. Morrell, 1 John. Ch. R. 106), and the reasons for the distinction, from the important bearing of the. question upon that of costs, still subsist. It follows from these observations that the notice, in this case, from its entire omission of the grounds upon which the motion was meant to be placed, is certainly defective, and as the defect is not supplied by the affidavit, I must hold it to be insufficient and irregular. The motion must therefore be denied, but if there were no other grounds for its denial, I should give to the defendants the privilege of renewing it. The other objections raised by the plaintiff must therefore be considered.

The notice, passing over the objection to its form, it was next said upon another and distinct ground, is wholly void. It was served when the right to make this motion was lost by delay. The 43d rule of the supreme court, which, as plainly applicable, is binding upon us, expressly declares that a motion to strike out irrelevant or redundant matter must be noticed before demurring or answering, and within twenty days from the service of the pleading to which it relates. It is not denied that the time thus limited may be enlarged by the order of a judge, but, in this case, no such order was obtained, and when the notice was given, not only twenty, but more than thirty days, had elapsed from the time of the service of the complaint.

The answer to this objection was that notice of the first motion was served within the twenty days which the rule prescribes, and that as this was rendered ineffectual by an unforeseen accident, the delay thus occasioned ought not to prejudice the defendants, since it is' only where a want of due diligence may be justly imputed that delay in noticing a motion is a bar to its consideration.

I am not satisfied that the answer thus given is sufficient; I am unable to see that the prior notice can with propriety be invoked in aid of a new and distinct motion. If the defendants wished to retain the benefit of this notice, they should, by a proper application, have obtained a re-heáring of the motion to which alone it refers. At present I can look only at the notice upon which the motion before me is founded. It is true, that where the time within which a motion must be made rests in the sound discretion of the judge by whom it is to be heard, an affidavit, excusing a delay that otherwise might be deemed unreasonable and fatal, may be read in support of the motion, and in such cases the right of the party to give the notice depends alone upon the sufficiency of the excuse, but where the time within which an act must be performed is positively fixed by statute, or by a rule of court, I apprehend, that in all cases where the time, thus limited, has been suffered to elapse, and no order for its extension has been obtained, the performance of the act is nugatory and void. It follows that the service of the notice in this case was an unauthorized act. It violated a rule that the defendants were bound to observe, and from the observance of which they had not been released. To render the notice valid, a prior order, enlarging the time for its service, was indispensable.

Even were I justified in treating this motion as now before me upon the original notice, I should still be under the necessity of refusing to consider it upon the merits. So entire is the analogy between an exception for impertinence in courts of equity, and a motion to strike out irrelevant matter under the code, that it is reasonable to consider them as subject to the same rules. Now, in the court of chancery, it was fully settled, not only that a defendant could not except to the bill for impertinence, when he had answered or demurred, but that he could not except, when the time for answering had been extended. The obtaining such an extension was construed as a waiver of all objections to the bill, and as a submission to answer it in its actual form. In the case of Isham v. Williamson (7 Leg. Obs., 341), it was held, by Mr. Justice Mason, that these judicious rules are not at all varied by the provisions of the code, and he therefore decided, that a plaintiff, who had obtained an extension of time to reply, was precluded from moving to strike out irrelevant matter from the answer; nor can I doubt that this decision, had it been appealed from, would have been affirmed by the court. In many cases, more than' twenty days are required to prepare a suitable "answer to a complaint, and in some, a reply to an answer, but the time is more' than sufficient for determining whether a pleading contains irrelevant or redundant matter that ought to be stricken out, and a case rarely occurs, in which it may, with propriety, be extended. Hence, it is perfectly just, that an order enlarging the time to answer, should be regarded as an admission by the party obtaining it, that he means to answer the complaint as it stands, and should, therefore, operate as a bar to a future motion for its alteration, unless, by the terms of the order, the right to make the motion is expressly given, and it is to be understood, that these rules equally apply where an extension of time is granted by the adverse party.

On the 27th day of July, the defendants obtained an order, extending the time to answer, and on the same day the notice of the former motion was served. It does not appear, and it is quite immaterial, whether the notice was served before or after the order was obtained; if the -notice was first served it was superseded by the order, if the order was first obtained, the notice was irregular and void.

For the several reasons that have been given, I must deny this motion, without entering at all upon a consideration of its merits, but as ten dollars costs were allowed to the plaintiff on the denial of the former motion, the costs of the present, fixed at the same amount, must abide the event of the suit.


source: Caselaw Access Project

author: Campbell, J.

license: Public Domain

text:
    John Cook v. T. Stokes Dickenson.
    An ora'er, aenying an application for an allowance, under the § 308 of the code, is not an appealable order.
    (Before Oaklet, Campbell, and Paine; J. J.)
    August, 1852.

      J Sherwood, for plaintiff.

      H. Brewster, for defendant.
    An application was made to one of the justices of this court, for an allowance under the § 308 of the code. The application was denied, and a notice of appeal was given to the general term. The counsel for the defendant, on notice, now moved to dismiss the appeal, on several grounds, but relied principally on the objection that the application was made to the discretion of the court, and the order denying it, is, therefore, not appealable.
   By the Court.

Campbell, J.

The code provides that, where the action is for the recovery of money, or of real or personal property, and a trial has been had, the court may, in difficult or extraordinary cases, make an allowance in addition to the taxable costs, of not more than ten per cent, for an amount not exceeding five hundred dollars, and not more than five per cent, for any additional amount, and also, that such allowances may be made in cases of partition, foreclosure, attachment, for construction of wills, and also, in any case where the prosecution or defence has been unreasonably or unfairly conducted.

The general rule before the code was, that there could be no appeal on a question of costs merely, when the giving or withholding such costs was in the discretion of the court. (See 3 Don. C. P. 100; 1 Barbour 376; Winslow v. Collins, 3 Paige 88.) These applications for extra allowances are eminently to the discretion of the court. When it shall have been determined that the case is a difficult or extraordinary one, or that it has been unreasonably or unfairly conducted or defended, still the question as to the amount to be allowed, within certain limits, remains entirely within the discretion of the court.

The counsel for the plaintiff, contended that, under the new provision in § 349, of the amended code of 1852, where an appeal may be taken, when the order made at special term “ affects a substantial right," his proceedings were regular. It is difficult to determine precisely the meaning of the term substantial right.” The word “ right ” is of extensive and varied signification. We speak of a right of action, a right of possession, a right of property, a writ of right. A substantial, or real, or actually existing right, I apprehend, must mean some legal right to which the party who appeals, claims to be entitled. It may grow out of some adjudication of the court, on a question of fact, or of law, or both. But it must be something1 to which the party is entitled ; not something which he seeks from the favor, or asks from the discretion of the court.

We are all of opinion, that the order, in question is not appealable. The motion to dismiss the appeal must therefore be granted.


text:
    William H. Clark v. The Metropolitan Bank.
    Motion for consolidation of suits, or stay of proceedings.

      A. Hilton, for plaintiff.

      D. Lord, for defendant.
   Campbell, J.

The plaintiff has commenced sixty-four suits, all of which are at issue, for the recovery of separate penalties of one thousand dollars each, for an alleged violation of the act of May 7th, 1839, entitled “an act concerning foreign bank notes." The defendant moves for an order consolidating all these suits, or staying proceedings in all of them except number one, until the trial or other final determination of such last mentioned suit, on the ground that the questions, which will arise, and the defence, in all such suits, are substantially the same. The statute prescribes, 2 R. S. 480, § 38, that “ whenever several suits shall be pending in the same court, by the same plaintiff, against the same defendant, for causes of action which may be joined, the court, in which the same shall be presented, may," in its discretion, if it shall appear expedient, order the several suits to be consolidated into one action."

I do not think it would be expedient to consolidate all these actions, and thus render necessary a trial which would be probably both protracted and embarrassing. At the same time it is manifest that all these numerous suits for separate penalties under the same act, ought not to proceed, at least for the present. I understood it to be conceded by the counsel for both parties, that the suits divided themselves into two classes. It seems to me that it would be just that the plaintiff should notice and bring to trial two of the suits which may be selected by him, one from each class, and that all proceedings in the remaining suits should be stayed until the trial of such two selected suits, with liberty to the defendant, after such trials, to renew the motion for “a consolidation of the remaining suits, or for a further stay of proceedings,” and with like liberty to the. plaintiff, to apply for a consolidation, or to bring the remaining suits to trial; or that the defendants consent that they abide the event of the suits tried, if they were to appeal from the judgment or judgments, if any may be recovered against them. And as the calendar made up on the 1st of October, will be continued through the remainder of the year, the plaintiff may, if he chooses, place the remaining causes on such calendar, but without costs to the plaintiff, if there shall be an order for consolidation, or further stay of proceedings, or if there shall be consent that they abide the event of the suits which may be tried.

Duer & Bosworth, J.J., concurred.


text:
    The Deacon, Elders, &c., of the German Reformed Church, in Forsyth street, City of New York, v. Frederick Busche.
    In religious corporations, the church property, real and personal, is vested in the trustees, and the use of the property, and the employment of the minister, ought to be sanctioned by them.
    It is the right of the trustees to withhold their assent when there is reason to believe that the employment of an individual, as minister, though selected by a majority, would destroy the peace and harmony of the church.
    September, 1852.

      F. A. Talmadge, for complainant.

      De Motte for defendant.
   Campbell, J.

A temporary injunction order was granted against the defendant, restraining him from further officiating as the pastor of the German Reformed Church, in Forsyth street, and at a subsequent day he offered to show cause why the injunction should not be continued. It seems that no suit has been instituted, but the parties being anxious to have a decision on the merits of the controversy, I took the affidavits and other papers, with a view of examining the question, and determining the respective rights.

The moving parties are three out of four of the deacons, three out of four of the elders, and six out of nine of the trustees, and they insist that the defendant was not regularly, and according to the rules and by-laws of this church, elected its pastor, and they ask that he may be restrained from occupying the pulpit, and otherwise officiating as the pastor. The defendant, with the remaining officers of the church, and, as they allege, a majority of the congregation, insist.that such election of, the defendant, as pastor, was legal and valid.

A meeting of this congregation, for the purpose, among other things, of electing a pastor, was held on the 31st of May last, at which election there were several candidates. The votes cast for the defendant were more numerous than those cast for any other, but did not constitute a majority of all the votes. It is contended by the defendant, that he, having a plurality of votes, was duly elected.

The rules and by-laws of the church are in German, and each party has furnished me with a translation, and in that of the plaintiffs, it appears that it is necessary that there should be a majority of the votes cast for some one person before such person can be elected pastor, while by the defendant’s translation, it seems a plurality of votes is sufficient, and the defendant sets forth in his affidavit, that the practice in the church has heretofore been in accordance with his construction. On examination, 1 find that the German word used in these articles, means either majority or plurality. This is an independent church, and as I understood, has no connection with any ecclesiastical body, and there is no means of ascertaining the true meaning of these rules, by reference to those of any other church. I can hardly think, however, that it could have been the intention of the founders of this church, to call a pastor who received less than a majority of the votes of the congregation. ■ It may well be, where there were several candidates, that preferences may have been waived, and he who received the largest number of votes, has been declared elected by, and with the consent of the congregation assembled, and without a further formal ballot. But where the election, as in this case, is contested and resisted, I am' constrained to say, from my examination of the meaning of the word thus differently translated, that a majority of votes was required.

But in this case, not only was the election determined by a minority of votes, but a small minority of the trustees and other officers of the church in communicating to the defendant his alleged election, also undertook to fix his salary, in reference to which, it is not pretended that any vote of the congregation was taken. (See 3 R. S., p. 248, § 8.)

Again, by statute, (3 R. S. 246, § 4,) all the church property, both real and personal, is vested in the trustees, and they have the entire control over it. The use of the property, and the émployment of the minister, ought to be sanctioned by the trustees, as the representatives of the rights of the whole congregation. If the pastor is to receive a salary, the payment should be authorized by the whole members of the congregation, at a regular meeting, called for that purpose (see Lawyer v. Cipperly, 7 Paige 281) ; if not, “ the trustees will violate their duty by suffering him to be thus employed.” I dp not understand, from any of the papers before me, nor was it pretended on the argument, that the congregation had, at such meeting, fixed the salary, or that any sanction had been given by the trustees to the salary named by the officers who conducted the meeting of the 31st of May.

Even therefore, if, as contended by the defendant, he was elected pastor, on the 31st of May, by a majority instead of a" plurality of votes, no compensation having been fixed by the congregation, and the sanction of the trustees not having been given, I do not think he has any legal right to the occupation of the pulpit of this church. It may be doubtful whether the trustees need the aid of the court in this matter.

I have already remarked that, this application is made on behalf of a large majority of the officers, including elders, deacons, and trustees ; and I cannot express my views of it better than by quoting from the opinion of the chancellor, in the case of Lawyer v. Cipperly, before referred to, and which was a case, in many of its features, analogous to this. “ It is the right, if not the duty, of the trustees, to withhold their assent, where there is reason to believe, that the employment of the individual selected by the majority of the church, be he orthodox or not, will destroy the peace and harmony of the congregation or of the church. In such cases also, ministers of religion who profess to be disciples of Him who brought the religion of peace and good will in all the relations of life, should not suffer themselves to be the means of fanning the flame of discord, or sowing the seeds of strife in any church or congregation with which they are connected.,,


text:
    William G. Smith v. Patrick Danvers, Oliphant Christie, and John Glass.
    Where several importers own the real estate where the business is carried on, each owning a part in severalty, and where the copartnership have erected buildings and made improvements on the lands, on a dissolution of the partnership, and appointment of a receiver the lands will be treated as forming a part of the partnership assets.
    Sept. 15th, 1852.
    Motion for a receiver, and injunction, founded on complaint and answer.

      George Bowman, for plaintiff.

      James T. Brady, for defendants.
   Campbell, J.

In the fall of 1851, the plaintiff, and the defendants, Christie and Danvers, entered into a copartnership, for a term of years, for the purpose of the manufacture of machinery, forging, &c. The capital stock was to be eleven thousand dollars, of which the plaintiff agreed to contribute three thousand dollars, the defendant Danvers, six thousand dollars, and the defendant Christie, two thousand dollars. Previous to the final consummation of the arrangement for this copartnership, the defendant, Danvers, had purchased eight lots of land, on 52d and 53d streets, in this city, and which were afterwards selected as the place where the business of the copartnership should be carried on. Two of these lots were conveyed to the plaintiff, two other lots to defendant Christie, and Danvers held the title to the remaining four lots. The whole capital was never paid in ; but only portions, by each of the partners. A part of the capital paid in, was applied in part payment of the real estate, and the remainder used in the purchase of tools, and other necessary articles, and also in the erection of suitable buildings, for the carrying. on of the business. A blacksmith’s shop was put up on the lots held by Danvers, and also a building for a forge, on the same lot, com-menced ; and a well was dug on the lots held by Christie.

For reasons not necessary now to consider, and in relation to which, the parties differ, the enterprise was never carried out, and the copartnership was finally dissolved by mutual consent and stipulation. By the same instrument, however, by which the dissolution was effected, the parties to- the original copartnership, together with the defendant Glass, agreed to form a joint stock association, apparently with the intention of incorporating themselves under the provisions of the act of 1848. It would seem from the memorandum of this agreement, that it was intended that the property of the copartnership should be put into the new association at a valuation. Biit this memorandum contains no name for the new association, fixes no capital, and no time for its continuance, and so far as the defendant Glass,- is concerned, contains no agreement on his part to contribute anything. The instrument is so vague and uncertain, that I am unwilling to consider it as of any effect on this motion, except as to the positive agreement which it contains for a dissolution of the original copartnership. The defendant Danvers, in his answer, alleges, that there are debts due by the copartnership to a considerable amount, and both he and the plaintiff claim compensation for labor and personal services performed for the copartnership.

Under these circumstances, I think, the motion for a receiver should be granted, and the injunction should be continued. An order may be entered referring it to John L. Mason, to take and state the account between the partners, and to ascertain what debts, if any, are due, and to appoint a receiver of all the copartnership property, including the eight lots, with power to sell the same, and convert it into money, and to pay the debts which shall be found due, and to bring the balance of the money into court to abide the further order of the court.


author: Bosworth, J.

text:
    Wm. C. Braisted v. Thomas Johnson & Nathaniel W. Roberts.
    An agreement in writing, signed by a party, extending the time to answer, is as obligatory in all respects, as if signed by his attorney. The entry of a judgment before the extended time has elapsed, will be set aside as irregular, with costs, even though the attorney was ignorant when hs entered it, that his client had given the extension.
    Sept 18, 1852.
    This action was brought against Johnson as maker, and Roberts, as endorser, of a note. The former appeared by attorney, and the latter in person. The complaint was served on the 28th of January, 1852.
    Plaintiff's attorney extended the time to answer, on different occasions, the last one expiring April 11th, 1852. On the 9th of April, the plaintiff in person was paid $153 63 on account, and extended the time 20 days; on the 22d he was paid, the further sum of $153, and extended the time to answer to the 1st of June, which extensions were in writing, and signed by the plaintiff. On the 28th of April, plaintiff's attorney entered .judgment for want of an answer, for the full amount demanded in the summons, having previously given notice of the adjustment of costs. On the day the judgment was entered, and after the roll was filed, but before the judgment was docketed, he was informed by the defendant, Roberts, of the extension given by his client, and of the payments made to him, and was notified that if a judgment was docketed, a motion would be made to set it aside, with costs, and plaintiff's attorney promised to stay the docketing of the judgment, and the issuing of the execution. On the 8th of June he docketed the judgment with the county clerk, and issued execution thereon against both defendants, with directions to collect the whole amount of the judgment, with interest, from April 28th, 1852. On affidavits stating these facts, and that plaintiff was indebted to Roberts for money lent, and professional services, and on a general affidavit of merits by Johnson, a judge at chambers set aside the judgment for irregularity, with costs, and gave defendants 20 days to answer. From that order the plaintiff appeals.

      R. E. Mount, Jr., for plaintiff.

      A. McIntire, for defendants.
   Bosworth, J.

There is no pretence that the agreements for extension of time, differ in terms or legal effect, from the plaintiff’s understanding of them at the time they were signed. If they had been signed by his attorney, the entry of the judgment would have been clearly irregular, as it took place before the extended time to answer had expired. Unless a stipulation giving time to answer, signed by the party in person, may be repudiated by himself, and without notice to the adverse party, then the entry of a judgment in violation of it is irregular. The 40th rule of the supreme court recognizes an agreement, in respect to the proceedings in a cause, as equally binding, when signed by the party, as when signed by his attorney, or counsel.

The 65th rule of this court, adopted in 1848, was to the same effect. The 121st rule of the court of chancery, established in 1837, was in terms substantially like that of the 40th rule of the supreme court. The 37th of the new rules of the supreme court is to the same effect.

The object of the rule requiring agreements, in respect to the proceedings in a cause to be signed by the party against whom they are alleged, or by his attorney or counsel, undoubtedly was, to prevent contentions between gentlemen of the profession, arising out of verbal agreements, and to save the court from the unnecessary labor of determining from conflicting affidavits, what agreement had in fact been made. The controversies of that character usually resulted from the misapprehension of the one party or the other, as to what was actually intended to be conceded, or agreed to, by the attorney for the other side. All this was effectually obviated, by requiring the agreement to be in writing, and signed by the party making it.

As it was competent for a party to settle the controversy, or give time for the payment of the debt, there would not seem to be any good reason for prohibiting him from personally consenting to additional time for doing any act necessary to be done in the orderly conduct of the proceedings in a suit.

Hence the rules of the court on this subject treat the agreement of the party as binding as that of his attorney or counsel: and it is as irregular to take a proceeding in disregard of his express written agreement, as of that of his attorney or counsel. As between him and the opposite party the unauthorized proceeding is unjust and irregular. It is his own fault that his agreements in relation to the suit are not communicated to his attorney. For this the opposite party should not be punished, nor made to suffer.

Ho blame can attach, or injury result to the attorney. The consequences of the irregular proceeding are visited upon the party, on whose behalf, and by whose fault they have been taken. The court is not disposed to encourage the interference of a party, who has appeared by an attorney, with the ordinary proceedings in a cause. But there is no doubt of his legal right to do so, and if he chooses to deliberately exercise it, his agreements are as valid as those of his attorney, and proceedings taken in violation of them are equally irregular. The entry of the judgment was irregular, and the order appealed from setting it aside for irregularity, was correct. Having been properly set aside for irregularity, it was proper to charge the party who had taken the irregular proceeding, with costs of the motion. The order appealed from must be affirmed, with costs.


text:
    In the matter of the Petition of John Jay and T. W. Clerke. Commissioners, &c.
    As the jurisdiction of the Superior Court is defined hy statute, it is doubtful ■whether it can exercise any power beyond those that are expressly given.
    The case is different with the Supreme Court, which, as a court of general jurisdiction, possesses (mutatis mutandis) all the powers of the Queen’s Bench in England.

      Held, that it was inexpedient to grant the process of the court to compel the attendance of witnesses, to he examined under a commission from a foreign country, the case not being provided for by statute

      Oct. 19.—The following petition was presented to the judge holding the special term :
    The application of the undersigned John Ja.y and Thomas W. device, acting commissioners duly nominated and appointed by the Court of Queen’s Bench, in the kingdom of Great Britain, with full power and authority to examine, cross-examine, and re-examine certain witnesses, at the city of New York, as well on the part of John Henry Wardwell, the plaintiff, as on the part of Thomas Frederick Beale, the defendant, in a certain action, on promises, now depending in the said court at Westminster, upon viva voce questions to be put to them, the said several witnesses, as fully appears by the said original writ, sealed with the seal of the said court, and witnessed by John Lord Campbell, at Westminster, the 21s't day of July, in the sixteenth year of her Majesty’s reign, now exhibited to this court, a true copy -whereof is hereunto annexed, Respectfully showeth—
    That the undersigned, as such commissioners, and by virtue of the power and áuthority by the said writ conferred, entered ■ upon the performance of the duties therein imposed upon them, on the fourteenth day of October, instant, and have been attended by Mr. Stephen D. Van Sehaick, as counsel for the said plaintiff, and by Messrs. JohnB. Dillon and Richard O’Gorman, as counsel- for the said defendant, and that they have in part examined one witness on the part of the said plaintiff, to wit: Augustus Frederick Braham, who was brought before them.
    That the further execution of the said writ of commission has been interrupted, by the neglect and omission of persons, whose testimony is said to be material in the said cause, to attend and testify therein, in pursuance of summonses addressed to them respectfully by your petitioners, as such commissioners, desiring their attendance for the said purpose at a time and place in the said summonses specified.
    And the said commissioners further show, that although clothed with full power and authority, by the aforesaid writ from the said court of queen’s bench, to do all such acts and things as may be necessary and lawfully done for the due execution thereof, they have, as they are advised and believe, no power or authority of themselves, without the aid or assistance of a judge or court of law appointed or. established by this state or the United States, to compel the attendance of any witnesses whatsoever, for the purpose of testifying under the said writ of commission ; and they further show that unless they are so aided and assisted with process issuing, out of a court of competent jurisdiction, to compel the attendance of such witnesses, for the purpose of securing whose testimony the said writ of commission was issued, the said commissioners will be utterly unable properly to execute the said writ, and will be compelled to return the same to the said court of queen’s bench, in great part unexecuted, on the ground that the counsel were unable to procure, and the commissioners were unable to compel, the attendance of witnesses deemed essential
    The undersigned, therefore, in consideration of the said facts, and by virtue of the powers and authorities in them vested, as such commissioners, by the said court of queen’s bench, do now, on behalf of said court, respectfully invoke such aid and assistance in the execution of the said writ,-as this court is competent to give, and as by the law and comity of nations, courts of justice in different countries are accustomed mutually to extend to each other for the furtherance of justice, and to prevent a failure or "delay thereof. And the undersigned do especially ask that this honorable court will accordingly grant them one or more writs of subpcena ad testificandum and of subpcena duce tecum, to compel the attendance of all persons within the jurisdiction of the said court, whose testimony the plaintiff and defendant in the said cause, may desire to take under the said writ of commission.
    John Jat, T. W. Clerke, Commissioners.

      New York, Oct. 20, 1852.
    John Jay and T. W. Clerke were heard in person in support of their petition, and urged the following considerations :—
    By the law of nations, courts of justice of different countries are bound mutually to aid and assist each other, for the furtherance of justice, and the power to grant such aid in regard to the procurance of the testimony of witnesses in a foreign country, is held to be within the inherent power of all courts of justice. (1 Greenleaf on Evidence, § 320.)
    The correctness of this principle has been . distinctly and practically recognized in the United States courts. (See Nelson et al. v. The United States, 1 Peters’ C. C. R. 236, note a.,) where the proper form of letters rogatory to a foreign court or judge is given, stating that in a certain suit pending in our court, it is suggested that there are witnesses within your jurisdiction without whose testimony justice cannot be completely done between the parties, and requesting that you will, in furtherance of justice, by the proper and usual process of your court, cause such witnesses as shall be named to you, to appear before you, or some competent person, at a precise time and place, and there to answer, &c. &c., and concluding with these words,-“Jlnd we shall be ready and willing to do the same for you in a similar case when required.”
    This recognition of the principle and practice of extending material aid in these cases, and this direct engagement and promise to do the like for foreign courts of justice, would seem to render it clear that our United States courts would feel distinctly bound to aid the execution of this writ of commission, if requested so to do by a letter rogatory, or a commission sub mutua vicissitudinis obtentu ac in juris subsidium.

      The chief object of letters rogatory is to inform the court abroad of the pendency of the cause, the names of the witnesses, and to request them to cause their depositions to be taken in due course of law, for the furtherance of justice. (1 Greenleaf on Evidence, § 320.)
    These objects are substantially obtained in this case, by an exhibition to the court of the original writ, with the petition of the commissioners, and the aid requested being a matter not of strict right and rigid form, but of national comity and mutual courtesy and convenience, the court would scarcely deny the aid required, on the ground that it was not formally demanded by letters rogatory.
    But the United States courts do not exercise this authority by virtue of any statutory provision, nor of any special power to them belonging. They exercise it by virtue of powers inherent in all courts of justice, aud which belong equally to our state tribunals.
    And in view of the intimate commercial and social relations existing between the city of New York and the ports of Great Britain, and the fact that this writ of commission from the court of queen’s bench, is addressed to commissioners in this city, and is intended to be here executed, it has seemed to the commissioners proper to ask the aid required from this superior court of the city of New York, as a matter, in their opinion, absolutely within its general authority, and resting entirely in its discretion and courtesy.

       The entire case is reported ex relatione John Jay, Esq. The views of the 4 judge were delivered orally.

   Duer, J.

I will take the papers, and examine the authorities you have cited. My present impression is, that your application ought to be made to the supreme court. As the jurisdiction of this court is limited and defined by statute, it may be doubted whether we can exercise any powers, beyond those which are expressly given, or which are plainly necessary to the exercise of those which are given. Our process must not be issued, unless it is certain that we can enforce obedience. It must not issue, to be contemned with impunity. You shall have my decision to-morrow, October 20th.

Duer, J.

I am reluctantly compelled to deny this application for aid, which is addressed to the discretion of the court, on grounds of national comity and courtesy, and which, were it not for doubts in regard to my jurisdiction, I should cheerfully grant.

The superior court of the city and county of New York, is a court created by special statute, of local and limited powers, and it does not therefore occupy towards the courts of foreign countries, the same position with our federal tribunals, or the supreme courts of the several states.

Its constitution differs widely from that of the supreme court of this state, which possessed originally all the powers that belonged to the court of queen’s bench, on whose behalf these commissioners invoke our aid. As we remarked in Kanouse v. Martin, (3 Sandford’s Superior Court Reports, p. 653,) it _ is a remarkable fact that the powers and jurisdiction of the supreme court, as formerly organized, were not defined in either of the constitutions of the state, or in any act of the legislature, and from its first organization by the colonial legislature in 1697, excepting so far as its powers may have been restricted by statute, it has possessed the power, and exercised the jurisdiction, civil and criminal, appellate and original, of the court of king’s bench in the mother country.

Were this court possessed of the power of the supreme court as pro hac vice, in Kanouse v. Martin, I should have no hesitation in promptly acceding to the application ; but, as the case stands, I must decline to exercise a doubtful authority.

Our revised statutes, singularly enough, contain no provision, conferring upon our courts and judges generally, specific statutory jurisdiction in cases like this, to aid foreign courts in the execution of foreign commissions, by issuing process to compel the attendance of witnesses. Yet.there appears to be intrinsic evidence of a belief on the part of the revisers, that they had made such provision, and members both of the bench and of the bar have occasionally been misled into the like belief.

■ The fourth article of chap, vii., title 3d, third part of the revised statutes, is entitled, “ Of depositions taken in this state, to be used in courts of other states and countries,” but the body of the statute relates only to other states, and the 56th section (44) of article 6th, in the same chapter, provides particularly for the service of summons, in all cases, “ where, by the provision of law, any judge or other officer is authorized to summon any person to appear as a witness, either before such judge or officer, to give testimony, or to have his deposition taken, or before any persons named in any commission issued by a court of any other state or country.” But no such provision of law is to be found in- the statute, and the authority referred to when exercised, must be exercised by virtue of inherent general powers.

Until therefore the legislature of this state, or the congress of the United States, shall supply the omission of our revisers, by the passage of an act, conferring upon our courts and judges of special jurisdiction, the power to aid, by their process, the execution of foreign commissions, such power can, perhaps, be safely exercised only by the federal courts, and state tribunals invested with general common law powers.

In regard to the federal courts, a precedent was established by Mr. Justice Washington, in the case of Nelson v. The United States, (2 Peters’ C. C. R. 236), which affirmed their right, and their willingness to issue their process in aid of a foreign court.

In that case, letters rogatory were addressed to the judicial authorities, praying the court or judge, by the proper and usual process of the court, to cause the witnesses to appear and answer, and the court expressly declared in conclusion, that they would be ready and willing to do the same for them in a similar case when required.

The supreme court of this state possesses, I presume, a like right, by virtue of its larger inherent powers, already referred to ; and that court will not be trammelled in considering such an application, by any doubts, arising from a restricted and limited jurisdiction, of their authority, to extend, to these commissioners of the court of queen’s bench the assistance they require.

In the principle, as stated by Professor Greenleaf, that, by the law of nations, courts of justice of different countries are bound mutually to aid and assist each other for the furtherance of justice (1 Greenleaf on Evidence, § 320), I fully concur; and I regard it as a principle, the propriety and necessity of which are likely to be felt with constantly increasing force as the commercial relations of Europe and America "become more intimate and more numerous. The duties imposed upon us by national comity and courtesy, are illustrated and enforced by the advantages to ourselves, of the universal recognition of the principle, as a part of the law of nations, for our suitors are frequently liable to require reciprocal aid from the judicial tribunals of foreign countries, and our courts, without such aid, will find it, in some cases, impossible to administer equal justice.

If it then be their right and duty to aid foreign courts in the procuring of testimony, in reply to letters rogatory by the law of nations, they may certainly, by virtue of these intrinsic powers, in the exercise of a wise discretion, and a liberal courtesy, waive a rigid adherence to strict forms and precedents, and aid foreign courts by the usual and proper process. Even when no such letters have been received, the issuing of a commission by a foreign court may be reasonably considered, and accepted, as sufficient evidence of its wishes. It is plain that letters rogatory do not confer jurisdiction. They only supply adequate motives for its exercise, and its exercise is therefore equally justified in all cases, where the same motives, national comity, and the furtherance of justice, are proved to exist. The only difference between letters rogatory, and a commission, is, the absence in the latter ofoa formal request.

I do not wish to be understood as deciding that this court does not possess the power to grant the aid asked for, but as the application of the commissioners shows that they have instant occasion for assistance, to secure the attendance of witnesses, and as doubts have forced themselves upon my mind, touching my authority, based simply upon the more narrow statutory jurisdiction of this court, and as no such question can arise in reference to the power of the supreme court, I think it proper to recommend the applicants to invoke the aid of that court, which, if I am correct in the views I have expressed, will be unhesitatingly and cheerfully granted.

Campbell, J., and Bosworth, J. concurred in the opinion, that it was not expedient to grant the prayer of the petition.

         A subsequent application was made to the supreme court, aud granted; and thus the commission, that otherwise would have failed, -was fully executed.