author: O’Gormax, J.

text:
    CHARLES F. WILLIS, Respondent, v. WILLIAM BELLAMY, et al., Appellants.

      Lis pendens—cancellation of.

    In an action to compel specific performance of an agreement to convey real estate or for the return of $500 paid by plaintiff on account of the purchase price, the court at special term adjudged that defendants were unable to convey and plaintiff was not entitled to specific performance, but had a lien on the premises for said $500 and interest. This judgment the general term, on defendant’s appeal, reversed, and ordered a new trial as to some of the defendants. Pending a motion for re-argument, defendant moved that the lis pendens filed in the action be canceled.

      Held, that as none of the events provided for in section let!, Code Civ. Pro., had occurred, the motion was properly denied.
    Before Sedgwick, Oh. J., and O’Gorman, J

      Decided March 1, 1886.
    Appeal on the part of the defendants from an order denying a motion for the cancellation' of a Us pendens filed by plaintiff.

      Burnett & Whitney, and Ediuard B. Whitney, for appellants.
    —I. This motion was proper if plaintiff could make no further claim for a conveyance of the property in this action. The provision of Code Civ. Pro. § 1614, as to final judgment is new, and has not previously been construed. But it need not be construed to require a final judgment terminating the whole litigation, as distinguished from the particular Us, which is referred to in the notice as pendens. A statute is to he construed according to its intent—to the mischief aimed at, and the remedy sought. The mischief aimed at by the new provision of the Code, was that no provision existed for removing Us pendens notices after they had become useless to plaintiff, while still harmful to defendant, and this Us pendens is useless to plaintiff in any sense recognized by the law, if he can never have specific" performance. The language of the statute does not restrict the court to a needlessly narrow application of it. When an action is divisible, there may be more than one final judgment in it, as we shall see ; and the Code does not in terms call for “ the final judgment therein terminating the whole action.” As against anything but the most precise verbiage, the intent governs (Smith v. People, 47 N. Y. 330). Especially “the statutes regulating the mode of procedure, like all rules of practice, should be liberally construed in furtherance of justice ” (Hartnet v. Wandell, 60 N. Y. 346).
    II. Plaintiff could make no further claim for a conveyance of the property in this action. This motion was opposed, and apparently denied, on the ground that plaintiff could raise the question of specific performance on the new trial, which has been ordered by the court on defendants’ appeal. But that portion of the judgment which denied specific performance, not having been appealed from by defendants (See Willis v. Bellamy, 52 Super. Ct. 373), was not before the court; and the court did not have any jurisdiction to consider it (Kelsey v. Western, 2 N. Y. 500). Nor did the court consider it. Their order was “ that the said judgment, so far as appealed from by said defendants, be reversed, a new trial ordered,” &c. The plaintiff and the court below apparently fell into the error of following the cases which hold that a new trial ordered in an action at law, must be a new trial of all the issues. See Story v. N. Y. & Harlem R. R. Co. (6 N. Y. 85).. -This is because a judgment at law is a unit; for the same reason, such a judgment cannot be partially reversed, and cannot be partially appealed from (Cromwell v. Burr, 12 Week. Dig. 120). If this technical rule applied to all judgments, the Code Would not expressly provide for partial appeals (§ 1300),' and for partial reversals (§ 1317). The rule is so technical and arbitrary that it is not to be extended. It is not extended even to judgments at law covering several causes of action, which have frequently been affirmed as to one cause of action, while a new trial is ordered as to another. See Lawson v. Pickney (40 Super. Ct. 187) ; Goodsell v. Western Union Tel. Co. It has never been carried further than to deny the right to split a single legal cause of action involving various items, as in Wolstenholme v. Wolstenholme File Manufacturing Co, (64 N. Y. 272). And the opinion in that case concedes the propriety of a partial reversal of an equitable judgment. When the reversal is partial, the new trial is, of course, partial also (Adair v. Brimmer, 95 N. Y. 35). The fact that the question was still open in this court, whether the whole complaint shall be dismissed as against the defendants Anna M. Bellamy and Katharine B. Johnson, cannot affect the decision of the present motion. That question turns upon plaintiff’s claim to make the amount of his $500 deposit a lien upon their land, and recover it from them ; which claim is so totally inconsistent with specific performance, that entering judgment for the one relief waived the other (Murphy v. Spaulding, 46 N. Y. 556). It may be suggested that the special term held it proper under the complaint to grant specific relief against the land—namely, to make the $500 a lien upon it. It would be proper to consider such a suggestion if the notice were a notice of that claim. Such a notice would be not only inconsistent with, but vastly less harmful to defendants f.ha.n the present notice of claim for the whole land.
    III. The court below has not exercised its discretion, one way or the other, denying the motion as premature.

      William Settle, for respondent.

      Reported supra, 46.

   By the Court.

O’Gormax, J.

The question in dispute in this case is whether a notice of lis pendens, duly filed, should be cancelled before the entry of final judgment in the action.

A motion by defendants for cancellation of the lis pendens here, was made at the special term of this court and denied, on the ground that the motion was premature, and from this decision the defendants appeal.

It was a matter resting in the discretion of the court, and the decision should not be disturbed without manifest cause.

The action was to compel specific performance of an agreement to convey title to real estate, or for the return to plaintiff of $500 paid on account of the purchase money. The action was tried at special term, and the court adjudged that the defendants were unable to convey, and that the plaintiff was not entitled to specific performance, but had a lien on the premises in question for the money so paid by him, with interest. From this judgment, the defendants appealed to the general term of this court, by whom the judgment was reversed and a new trial was ordered as to some of the defendants. An application was afterwards made to the general term for re-argument, which has not yet been decided.

The Code of Civil Procedure provides in section 1674 that after the action is settled, discontinued, or abated, or final judgment is rendered therein against the party filing the notice of lis pendens and the time to appeal has expired, . . . the court may, in its discretion, on motion, direct that the notice of lis pendens be canceled of record.

None of these events has taken place in this action.

The right to file a notice of Us pendens is statutory (Code, § 1670), and the provisions of the statute should be strictly followed in all their essential requirements.

, The order appealed from must be affirmed, with $10 costs.

Sedgwick, Oh. J., concurred.


source: Caselaw Access Project

author: — O’Gorman, J.

license: Public Domain

text:
    ADAM EMMERICH, Appellant, v. PETER HEFFERAN, et al., Respondents.

      Creditor's action—when lies—evidence of fraudulent intent.—New trial on ground of newly discovered evidence.

    An action by a judgment creditor to set aside conveyances on the ground that they were made to hinder, delay and defraud creditors, cannot he maintained upon proof merely that the conveyances were made without consideration, and while the indebtedness to plaintiff existed. Northampton Bank v. Kidder, 50 Super. Ct. 246, followed, as to granting new trial on ground of newly discovered evidence.
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.

      Decided March 1, 1886.
    Appeal from a judgment in favor of the defendant, and also from an order refusing plaintiff’s motion for a new trial made subsequent to the trial, on a case made, and on the ground of newly discovered evidence.
    The action was brought by a judgment creditor to set -aside certain conveyances made by his debtor.
    The judge before whom the action was tried, found that plaintiff’s claim, for which he subsequently obtained judgment against defendant Peter Hefferan, was in existence in and prior to December, 1882 ; that on December 29, 1882, said defendant -transferred his property to his wife through their son, for the consideration of $1, and at the same time took, back from her a power of attorney, authorizing and empowering him to collect the rents thereof, and also to mortgage, sell and convey the property ; that action was commenced on plaintiff’s claim in January, 1883, and on August 2, 1883, judgment was entered and execution issued and returned unsatisfied; that this judgment was opened, and thereafter judgment was again rendered in favor of plaintiff, and execution issued thereon, and returned unsatisfied.
    The alleged newly discovered evidence upon which the application for a new trial was based, was the testimony of one Mooney, who was present at the making of the transfers in question, to the effect that the defendant Peter Hefferan told him that certain parties had claims against him for a house in Fortieth street, which he had sold (which was plaintiff’s claim), and that he did not propose they should get a cent, which was the reason why he was making the transfer ; and that the said Catharine Hefferan, when the transfer was being made, declared that the property still belonged to her husband, and that he could have it whenever he wanted it. And also testimony taken in supplementary proceedings, subsequent to the trial, in which proceedings defendant Peter Hefferan testified that the property transferred belonged to him and was earned with his own labor ; that it was all the property he had; that he transferred it to his son for nothing, who conveyed it to his mother ; and that at and prior to such transfer he knew of the claim of plaintiff being made against him, also that whatever moneys he had since made, he had also turned over to her ; and the defendant, Catharine Hefferan, testified that she gave nothing whatever for the property, but received it as a present from her son, and that she did not know whether she was at the office when the deeds were executed.
    On the motion for a new trial on the case and on the ground of newly discovered evidence, the following opinion was delivered:

      “ Ingraham, J.—It is evident from an examination of the case as settled, and the affidavits, that the action was tried by plaintiff’s attorney upon the theory that it was only necessary for him to prove, to entitle plaintiff to a judgment, that the conveyances made by Peter Hefferan to his wife were made without consideration, and made at the time the indebtedness to the plaintiff was in existence. The judge before whom the case was tried held that that was not sufficient, and dismissed the complaint. That decision I shall not review on this motion, but will leave the plaintiff, if he wishes to review the judgment, to his appeal.
    “In the case of the Northampton Bank v. Kidder (50 Super. Ct. 246), in affirming an order denying a motion for a new trial, the court says : ‘ To grant a party a new trial after such determination, in order to enable him to prove what, upon the first trial, he considered and treated as immaterial and irrelevant, though involved in the issues, would not be sanctioned by authority, but on the contrary, would establish a dangerous precedent, for in every such case a party must be held bound by the course pursued by his counsel. If the rule were otherwise, all a defeated party would have to do in order to obtain a new trial would be to retain new counsel and start a new theory.’
    “ It does not appear but that the plaintiff could have called the defendant or defendants’ son, through whom the conveyance was made, as witnesses on the trial, and the fact that on a subsequent examination in supplementary proceedings the defendant Peter Hefferan testified to the existence of a state of facts at the time of the conveyance that would have aided plaintiff if such testimony had been given on the trial, is not under the rule ground for granting a new trial. The fact that since the trial plaintiff has discovered evidence of declarations made by the grantor to the grantee is not such newly discovered evidence as would justify the granting of this motion. These declarations would be only evidence as against the party making them and would be material only for the purpose of showing the intent with which the conveyances were made. As before stated, however, it is evident that plaintiff did not consider that direct evidence of the defendants’ fraudulent intent was necessary. Under all the circumstances, I do not think that plaintiff has made out a case that would justify me in granting this motion.
    “Motion must, therefore, be denied, with $10 costs to the defendant to abide the event.”

      Wm. G. Me Crea, for appellant.

      Townsend, Dyett, & Einstein, for respondents.
   By the Court.

— O’Gorman, J.

— This action was brought by the plaintiff, a judgment and execution creditor of defendant, Peter Hefferan, to set aside a voluntary conveyance of real estate made by him to his wife, through their son as intermediary, and without any valuable consideration, on the ground that the same was made with intent to hinder delay and defraud creditors.

The action was tried at special term without a jury. Judgment was entered for the defendant, and from this judgment the plaintiff appeals.

It is the law that no conveyance shall be adjudged fraudulent as against creditors and purchasers, solely on the ground that it was not founded on a valuable consideration (Genesee, etc. Bank v. Mead, 92 N. Y. 637; 2 R. S. ch. 137, § 4). Fraudulent intent must be proved as matter of fact, either directly or by necessary inference, and at the trial of this case, no such proof was made.

The learned trial judge did not find any fact tending to-prove fraudulent intent, nor was he requested by the learned counsel for the plaintiff to do so ; and the judge did find, as a fact, that the conveyances were not made with fraudulent intent.

In some cases of this kind, it has been an important inquiry, whether the person making the conveyance as to which fraud was imputed, was, at the time the conveyance was made, without means sufficient to pay his debts (Cole v. Tyler, 65 N. Y. 73 ; Popfinger v. Yutte, 49 Super. Ct. 312; Dunlap v. Hawkins, 59 N. Y. 342; Fox v. Moyer, 54 Id. 125 ; Genesee, etc. Bank v. Mead, supra). No evidence on this subject was produced in the case at bar, and the action appears to have been tried on the theory that, proof of the conveyances having been made without consideration, and while the indebtedness to plaintiff existed, was sufficient to entitle plaintiff to a judgment in his favor. The learned trial judge was right in holding otherwise.

A motion was made at special term for anew trial, on the ground of evidence, discovered since the trial, tending to show defendants’ fraudulent intent. From the denial of this motion an appeal is also taken.

In the case of Northampton Bank v. Kidder (50 Super. Ct. 246), the proper rule as to granting or denying a motion of this kind is clearly laid down.

The motion was addressed to the discretion of the court, and we see no reason to doubt but that in this case, that discretion was properly exercised.

The judgment is affirmed, with costs, and the motion for a new trial is denied, with $10 costs.

Sedgwick, Ch. J., concurred.


author: Per Curiam.

text:
    CHARLES F. BERWIND, et al., Appellants, v. THE GREENWICH INSURANCE Co., Respondent.

      Marine insurance—seaworthiness, when proof of essential to recovery.— Evidence.

    In an action on a policy of marine insurance, the protest of the captain, which stated that the boat had sprung a leak and had sunk, was given in evidence as part of a notice of loss that the policy provided should be served upon the insurers. The declarations contained therein were not shown to be true. Meld, not evidence on the main issues in the case, e. g., as to the loss and its cause.
    Where the policy excepts from the perils insured against those arising from “rottenness, inherent defects and other unseaworthiness,” the assured, to recover thereon, must show that the vessel was seaworthy when lost, either by direct proof of the fact, or by showing a cause of loss that would exclude an inference of unseaworthiness.

      It seems, that if the immediate cause of loss be unseaworthiness caused by a former peril, which was one of those insured against, a recovery may, in such case, be had.
    The evidence herein as to cause of loss and seaworthiness, reviewed by the court, and held not sufficient to carry the case to the jury.
    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided March 1, 1886.
    Appeal from judgment dismissing complaint upon the merits, entered upon direction of the court at trial term before a jury.
    Action was upon a policy of marine insurance for the loss of a canal-boat.
    The facts appear in the opinion.'

      Wilcox, Adams & MacTclin, and George Bethune Adams, for appellants.

      Butler, Stillman & Hubbard, and Wilhelmus Mynderse, for respondent.
   Per Curiam.

When the court dismissed the complaint, no testimony had been given to show the loss or its cause. The protest of the captain, which stated that the boat had sprung a leak and had sunk, was given in evidence as a part of a notice of loss that the policy provided should be served upon the insurers. The declarations of that protest were not shown to be true, and were not evidence in the cause on the main issues.

But if it be supposed that the protest was evidence as to loss, it still is true that it does not show a loss from any peril insured against. It is not necessary to determine whether there was any implied warranty of seaworthiness. In general, whether the warranty of seaworthiness be implied or expressed, or whether the burden of showing compliance rests upon the assured, or of showing a breach rests upon defendant, the failure to show compliance or the proof of a breach prevents a recovery, although the loss did not occur from unseaworthiness. The warranties alluded to, when they exist as independent stipulations, also have the effect of restraining the general perils of the seas insured against at the time the warranty applies, to extraordinary perils, and not to such risks as it is presumed a seaworthy vessel will meet safely. In the present case, such an effect does not rest upon the inference from an independent warranty. There is, from the perils which the defendant takes upon itself, an exception specifically of “ rottenness, inherent defects, and other unseaworthiness. ” If the vessel were in fact rotten, inherently defective or unseaworthy, and that caused the loss, there could be no recovery, unless, perhaps, the cause of the loss was the immediate effect of some peril insured against. In this case, unseaworthiness from such a former peril is not shown. Therefore, to recover, the plaintiff should have shown that the peril was not one forming an exception, and which by the policy the insurers were not to bear. To do this successfully, the plaintiff was bound to prove in one way or another that the boat was seaworthy when lost, and this could be proved either by direct proof as to seaworthiness, or by proving a cause of loss that would exclude an inference of unseaworthiness at the time. There was no proof of the specific cause of loss. The captain’s protest declared that the vessel unaccountably sprung a leak and took in water. He was unable to specify the cause. There was no proof of a storm, or unusual waves or winds. There was no direct proof of the seaworthiness. Some time before she had been seaworthy, and had been repaired. Her condition at a later day than August 28, was not proved. Then she was a seaworthy vessel for the purpose of carrying coal, or doing a general freighting business around the harbor of New York, as a witness testified. The same witness testified that if, after she left his dock, “ she had one heavy cargo on her, she might have been rendered unseaworthy; she might have been ruined by one cargo.” No proof having been given to show how she had been used, or what had been her adventures, from the time she left the dock until she unaccountably sunk, about eight weeks afterward ; the, only just inference would be that her condition had changed from that of seaworthiness to unseaworthiness. At any rate, the testimony would not have justified the jury in finding that she was lost from a peril other than that of rottenness, inherent defect, or unseaworthiness. The plaintiff did not prove directly or circumstantially that the vessel was seaworthy at the time of the loss, so as to make a question for the jury on that point.

Judgment affirmed, with costs.


text:
    HENRIETTA DEMPEWOLF, Appellant, v. WILLIAM HILLS, Respondent.

      Bill of particulars.—Slander.

    It is not the office of a bill of particulars to apprise the defendant of the nature of the plaintiff’s proofs or of the names of his witnesses.
    Accordingly, where in an action for slander averred to have been spoken “ in the presence and hearing of divers persons,” upon defendant’s demand, a bill of particulars, showing the specific time and place of the slander, was given, and defendant thereupon obtained an order that plaintiff serve a statement in writing of the names of all the persons in whose presence or hearing the slander was uttered,—Held,, that the order should be so modified, as to require the plaintiff to furnish the name of some one person in whose presence plaintiff claims the slander was uttered.
    Before Sedgwick, Oh. J., and Tbuax, J.

      Decided March 1, 1886.
    Appeal by plaintiff from order directing plaintiff to serve a further bill of particulars.
    The facts appear in the opinion.

      Marshall P. Stafford, for appellant.
    I. The sole purpose of a bill of particulars in an action for slander is that the defendant may have the time and place at which the words were spoken pointed out so definitely and distinctly that he may know with certainty the occasion to which the complaint refers (Jones v. Platt, 60 How. Pr. 278; Solomon v. Stock Ech’ge, 49 Super. Ct. 139 ; Butler v. Mann, 9 Abb. N. C. 49). The bill of particulars already served in this case tells the defendant that the words complained of were spoken in his own place of business in the city of New York on March 5, 1885.
    II. The order appealed from would tend to establish a most unjust and pernicious rule of practice (Butler v. Man, supra). Even if the name of some one individual were necessary to enable the defendant to know the occasion referred to, the plaintiff ought not to be compelled to give him the names of all the persons she proposes to call as witness on the question of uttering the slander.

      Edward S. Clinch, for respondent.
    The general term of the first department has held that the bill of particulars demanded was proper (Stiebeling v. Lockhaus, 21 Hun, 457 ; Gardinier v. Knox, 27 Id. 500).
   Per Curiam.

The complaint was upon an alleged slander of plaintiff by defendant, averred to have been spoken “in the presence and hearing of divers persons.” The defendant demanded a bill of the particulars of the time and place of the slander. This was served without any information as to the names of persons in whose presence or hearing the slander was claimed to have been uttered. The order appealed from was then made, that plaintiff serve “a statement in writing, of the names of the persons in whose présence or hearing ” the plaintiff claimed the slander was uttered.

The defendant claimed that the order was necessary to enable him to draw his answer and prepare for trial. Less than the names of all persons claimed to have been present, would enable the defendant to draw a truthful answer which would deny or admit the slander. And to prepare for trial, it was not necessary to do more than specify a particular occasion, to which the defendant might direct his preparation. It is not the office of a bill of particulars, to apprise the defendant of the nature of the plaintiff’s proof, or of the names of his witnesses. On the trial, it would not be just that the plaintiff should fail because of some person, among others ■ named in the bill, not being present, although there might be no doubt that the speaking relied on by plaintiff was the one actually referred to in the bill served. The order made below should be so modified, that it require a further bill to give the name of some person in whose presence the plaintiff claims the words were spoken.

The order, as modified, is affirmed, with $10 costs to abide event.


text:
    ROBERT M. G. DODGE, Respondent, v. GEORGE ALGER, Impleaded, &c., Appellant.

      Trial—exceptions to charge and refusals—False imprisonment—Excessive damages—Evidence—admission in pleading.

    Where several requests to charge were submitted to the court, some of which were charged as requested, some in a modified form, and others were not charged, and the court declined to charge the requests otherwise than as charged, and a single general exception was taken as follows: “to the refusal to charge as requested, and severally to each refusal to charge, and to the charge.” Held, that such exception presented no question for review.
    An admission of a material fact in the answer is evidence against defendant on said point.
    A party who directs a police officer to arrest another under circumstances not justifying an arrest, is responsible for such wrongful arrest.
    In an action for false imprisonment the fact that plaintiff has a family is material, as affecting the kind and degree of mortification and inconvenience caused by the arrest.
    In such an action, a witness for plaintiff was asked when and how he learned of the arrest, which was objected to as immaterial and irrelevant. The answer was, “through the New York papers of July 20 or 21.” Nothing further was said as to the contents of the publication, nor was any claim for damages made on account of such publication by plaintiff or alluded to in the charge. Held, that defendant could not have been injured by such evidence, and that its admission was not ground for a new trial.
    In an action for false imprisonment, a verdict for $3,000 was set aside by the court as excessive, and on a second trial a verdict of $2,750 was rendered. Held, that as a second jury had deliberated upon the damages, compensatory and exemplary, it would not be proper to set the verdict aside as excessive, in a case concerning the protection of the law to the personal rights of citizens.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided March 1, 1886.
    Appeal from judgment entered on verdict of jury, and from order denying motion for a new trial made upon judges minutes.
    The action was for damages from false imprisonment. The defendant was president of an insurance company. The plaintiff was its secretary. As secretary he had the key of the company’s safe. The defendant, on a certain day, required, in the company’s office, the plaintiff to deliver the key and leave the office. The plaintiff declining to do this, the defendant called upon a police officer and requested him to arrest the plaintiff. The police officer made the arrest, and plaintiff was discharged by the police magistrate.

      Wheeler & Cortis and Everett P. Wheeler, for appellant.

      G. A. Clement, for respondent.
   Per Curiam.

Before the jury were charged, the counsel for the defendant handed up eighteen requests to charge. The charge was correct in respect of the subject matters of the several requests. It is, however, claimed that the judge should have been more specific as to the law concerning exemplary damages, and should have charged, as requested, that if the defendant had done no intentional wrong or had done only what he believed to be his duty,—that if he believed in good faith that he was carrying out the instructions of his superior officers,—no exemplary damages could be recovered. The judge charged that exemplary damages might be recovered if the action of the defendant proceeded from malice or from a personal motive and not from a fair and honest desire to use the law properly. He submitted to the jury whether there was any evidence of malicious intent, of intent to injure the plaintiff, or any other intent than to serve the interests of the company by which the parties were employed.

At the end of the charge the court said, I decline to charge the requests otherwise than as I have charged. The defendants excepted to the refusal to charge as requested, and severally to each refusal to charge, and to the charge. This was a single exception in the' general terms that have been given, and without particularity. This presents no question for review. The law is stated in Smedis v. B. & Rockaway B. Co. (88 N. Y. 14). In that case, there were fifteen requests to charge. At the end of the charge, the court declined to charge except as already charged, having charged substantially as requested in most instances. There was then a general exception like the one in this appeal. The court said : “ It is well settled that when several requests to charge are submitted to the court, some of which are charged as requested, some charged in a modified form, and others not charged, an exception in the form in which it appears in this case cannot be sustained. The exception must be more specific and point out the particular request to which it is intended to apply.”

The court correctly held, under objection and exception, that the defendant was responsible for unlawfully arresting the plaintiff, or in directing a police officer to arrest him, under circumstances that did not justify the arrest. The answer of the defendant contained an admission, in substance, that the defendant requested the policeman to make the arrest. This was evidence, and was to be considered with the testimony of the police officer, who, called by defendant as a witness, showed that the arrest was actully made at the instigation and request of the defendant. No fact in testimony contradicted this. The general term has already held, in a former appeal in this case, that there was no justification for the arrest.

The plaintiff, as a witness, was asked, after objection, “Have you a family?” This was. not immaterial; it affected the kind and degree of mortification and inconvenience caused by the arrest.

A witness was asked, “When and how, did you first hear of the arrest.” The question was objected to, as calling for an immaterial and irrelevant answer. The answer was, “ Through the New York papers of July 20, or 21.” Nothing more was said as to the contents of the publication, and no claim for damages on account of the publication was made by the plaintiff, or alluded to in the charge. The defendant could not have been injured by the answer.

The jury assessed the damages at $2,750. On a former trial the verdict was for $3,000, and the court set aside the verdict for the excessiveness of the damages. As a second jury has deliberated upon the damages, compensatory and exemplary, it would not be proper to set the verdict aside, for the amount of the damages in a case which concerns the protection which the law gives to the personal rights of citizens.

Judgment and order appealed from affirmed, with costs.

         The opinion referred to was delivered January 5, 1885 (See mem. 51 Super. Ct. 537), and the court held that, “The act of Alger in causing the arrest of the plaintiff was not justified by the evidence. The plaintiff at the time was secretary of the company. He had been asked to resign, but he had not been removed. He still had a legal right to be where he was, at the post of duty. The question of the amount of damages to which the plaintiff was entitled was for the jury, and not for the court. We cannot say that nominal damages was the measure, of defendant’s liability. The result reached is, that as to the defendant Palmer, the judgment and order is affirmed, with costs ; but that, as to the defendant Alger, it is reversed, and a new trial ordered, with costs, to abide the event.”


text:
    JAMES F. MILLIKEN, Appellant, v. THE WESTERN UNION TELEGRAPH Co., Respondent.

      Pleading—Telegraph companies— Contract.

    A complaint in an action against a telegraph company for breach of an alleged contract to deliver at plaintiff’s residence, a cable dispatch addressed “Mentor, New York,” which alleges a promise on the part of the company, and that the plaintiff offered to “pay ard reward said defendant in advance for said service,” which was refused, but which does not show that the promise of the company was made in consideration of the reward or of the agreement to pay the same, fails to state facts constituting a cause of action, and is demurrable on that ground.
    -Such a complaint cannot be upheld on the ground that the trust and confidence of plaintiff in the company formed a sufficient consideration for the contract, where it is not alleged that defendant parted with property on the faith of defendant’s promise, or omitted to do anything which, but for defendant’s promise, he might have done for his own benefit.
    Primarily, the breach of a legal duty on the part of the telegraph company to deliver the message to the party to whom it is addressed, upon tender of proper compensation, gives an action in tort only ; but if an implied contract to do the duty, which may be stated in the complaint as if specifically made, arises from the circumstances, then the complaint should state the defendant’ legal obligation in respect of the thing promised to be done by the alleged contract.
    This rule applied to a case where the alleged promise by the company was to deliver a message at a place other than their office, viz., at plaintiff’s address.
    Before Sedgwick, Oh, J., and Truax, J.

      Decided March 1, 1886.
    Appeal by plaintiff from judgment dismissing complaint entered upon order sustaining demurrer to complaint.
    The ground of demurrer was that the complaint did not state facts sufficient to make a cause of action.

      William L. Snyder, for appellant.
    I. The trust and confidence induced by undertaking any service for another, is a sufficient consideration to create a- duty in the performance of it. Here defendant admits that it undertook to perform the service, and hence it is hable for the neglect or omission to perform it (1 Parsons Contr. 447; Coggs v. Bernard, 2 Ld. Ray. 919; Hammond v. Hussey, 51 N. H. 40 ; Jenkins v. Bacon, 111 Mass. 373 ; Knowing v. Manly, 49 N. Y. 192). 1. The defendants having promised to render the service, and the plaintiff having tendered payment therefor, it cannot now be said that the contract was not within the line and scope of its business. Hence a legal duty devolved upon defendant to perform the undertaking (West. Union Tel. Co. v. Fontaine, 58 Ga. 436 ; Same v. Blanchard, 68 Ga. 299 ; Same v. Shotter, 18 Cent. Law Jour. 230 ; N. Y. & Wash, Pr. Tel. Co. v. Dryburg, 35 Pa. St. 298 ; Parks v. Alta Cal. Tel. Co., 13 Cal. 423 ; Leonard v. Tel. Co., 41 N. Y. 544; Tyler v. West. Union, 60 Ill. 421; 2 Parsons Contr. 257, f). 2. The tender of money, or offer to pay money, is, in all respects, equivalent to payment, as between the parties to such a contract. Plaintiff exhausted all the means, by an offer to pay, and could do nothing more on his part. If defendant chose to waive its right to take the money, such waiver will not defeat the rights of plaintiff in this action (Tyler v. West. Union Tel. Co., 60 Ill. 421). 3. This court has held this doctrine in the late case of McPherson v. Western Union Tel. Co. (52 Super. Ct. 232), where a demurrer to the complaint was sustained on the ground that it failed to allege payment or tender. 4. Here the complaint shows an offer to pay, and waiver of such payment by defendant.
    II. If defendant had performed, and had delivered the message, it could have recovered in an action against plaintiff for the service so rendered, as such service would have been rendered at his request, and an action will lie against it for damages for failure to deliver.
    III. Should this court affirm the judgment below, the law thereby established will be this : A telegraph company, in order to escape liability in every case, has only to refuse to take payment in advance, since under the decision below, the element of payment in advance is essential to constitute a contract. This idea of taking pay before the service is rendered is not in harmony with usage or custom in other branches of commerce, and the rule has been adopted by telegraph companies solely for their own convenience and benefit.

      Dillon & Swayne, and David Keene, for respondent.
    I. The plaintiff being a person to whom a cable message was addressed, and not the sender of the message, and no privity of contract being shown with the sender, if any liability has been incurred to him by the defendant, it is a liability ex delicto and not ex contractu (Dickson v. Reuter’s Tel. Co., L. R. 2 C. P. Div. 62 ; affirmed, L. R. 3 C. P. Div. 1; Playford v. United Kingdom Electric Teleg. Co., L. R. 4 Q. B. 706 ; Story Contra. § 981).
    II. A tender of compensation does not afford a ground for an action where there was no legal obligation resting upon the defendant to enter into a contract with the party by whom the compensation was tendered. As the defendant had already been paid in full by the sender, it could not accept compensation over again for the same service from another party, and therefore it is clear that there was no legal obligation resting upon it to enter into a separate and independent contract with this plaintiff to perform a service for which it had been paid already by another party. Let the plaintiff sue upon the contract made by the company with the sender of the message, or, if not, let him sound his action in tort. He cannot establish an independent and separate contract by the company with himself—1st, because it would have been unlawful for the defendant to have accepted compensation from the plaintiff for the same service for which it had already been paid in full by the sender ; 2d, no consideration can be shown. All that plaintiff claims in his complaint is to have made a tender, which was refused by the defendant. The refusal of the defendant to accept pay or reward proves the voluntary nature of the alleged promise and the absence of any intention to enter into a contract.
    III. A telegraph company is liable on contract only to the sender of the message, except where the sender of the message is the agent of the receiver, in wiaich case the latter, being the real party in interest, may allege that fact in his complaint, and sue upon the contract entered into by the company with his agent, the sender.
    IV. But a telegraph company does not incur in regard to the saíne message for a single consideration a liability upon two distinct and separate contracts wholly independent of each other, one with the sender and one with the receiver. A telegraph company is only entitled to receive compensation once and from one party, and it enters only into one contract with regard to each message.
    V. An attempt therefore on the part of a receiver of a message to (jold a telegraph company liable to him ex contractu, other than upon the contract entered into between the company and the sender of the message must necessarily fail, because, no matter what the receiver may allege in his complaint, it will be apparent upon the face thereof that no consideration passed between him and the company, without which, of course, he would only allege at most a nudum pactum, and not a contract (Thorne v. Deas, 4 Johns. 84).
   Per Curiam.

The complaint avers that the defendant is a corporation, &c., that the business of defendant is to “ receive and transmit messages by telegraph over wires, &c.,” and “to receive, transmit, and deliver messages from abroad,” sent over submarine telegraph cables, for connection with its lines of wire, &c.; that one Liner sent from Paris to plaintiff, addressed as “ Mentor,” at New York, a message concerning the business of plaintiff; that plaintiff went to defendant’s office, and informed its servants that he was the person intended by “ Mentor,” and gave to them his address, which they registered in a book ; that said servants represented to the plaintiff that any message sent by cable from Paris to New York, would be received by and through defendant in New York, and said defendant undertook, promised and agreed with plaintiff to deliver said message when received, to plaintiff, at the address he had given, safely, promptly, with diligence and dispatch, and plaintiff then offered to pay and reward said defendant in advance for said service, and for registering plaintiff’s name and address, but said defendant “then declined to receive or accept pay or reward that the message had been received by defendant, but defendant had not delivered it, &c., to the damage, &c.

The cause of action which the plaintiff relies on, is the contract to deliver the message at his address, and its breach. The averments do not show, however, that the so-called contract was supported by any consideration. The complaint alleges that the plaintiff offered “to pay and reward said defendant,” but it is not averred that the. promise was made in consideration of the reward, or- of a promise to pay a reward. A tender or offer to pay money, to have significance, must be of money, a promise to pay, which otherwise appears to form the consideration.

It is argued that according to the averments of the complaint, the trust and confidence of the plaintiff in the defendant is a sufficient consideration. In cases where trust and confidence it is said have been sufficient consideration, property has been entrusted to the promisor, on an express or implied promise to do something with or concerning the property. It appears in this case that the plaintiff not only did not part with property, but did not omit to do anything which, but for the defendant’s promise, he might have done for his own benefit.

It is further urged that it was the legal duty of the defendant to deliver the message, if a proper compensation were offered. Primarily, a failure to do that duty would give an action in tort and not in contract. But if an implied contract to do the duty arises from the circumstance, and which may be stated in the complaint as if it had been specifically made, then the complaint should state the defendant’s legal obligation in respect of the thing promised to be done by the alleged contract. In the present case, the contract is not to deliver at defendant’s office, but beyond its line of wire or its office, to another place in the city, and by means not in the nature of a telegraphic communication. The complaint does not aver that it was the legal duty of the defendant, either in general, or do the plaintiff particularly, to do this.

As the defendant’s alleged promise is not in respect of any alleged legal duty, and is not supported by any consideration, the judgment is affirmed, with costs.


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    WOLF DAZIAN, et al., v. NAPOLEON J. HAINES, Jr.

      Construction of instrument.—I Vainer and estoppel.

    An agreement for the manufacture and delivery of certain costumes to he ordered, provided that payment therefor should be made on completion of the order and the bill being signed by a designated person, to whom the articles were to be delivered as correct. The designated person wrote on the margin of the bill on one line “ Number of dresses received,” and on the line below, the word “ correct,” and placed his initials thereon before the words as written. It was in evidence that on the presentation of the bill defendant made no objection to it, hut promised to pay it. The trial judge, on motion of defendant, directed a verdict for defendant on the ground that the certificate was not in compliance with the agreement, and denied plaintiffs’ request to go to the jury on the question. Plaintiffs’ exceptions to these rulings were ordered to be heard at general term.

      Meld (1.) That the certificate was a compliance with the agreement; that it appeared to be meant by the words “ Number of dresses received ” that the order had been completed, and by the word “correct,” that the bill was correct and in the form required. (2.) That the promise to pay was evidence of a waiver of strict compliance, if there had not been such in fact, or would be an estoppel in plaintiff’s favor if it should appear that, if defendant had informed plaintiffs that he required a different form of certificate, the plaintiffs could have procured it.

      Before Sedgwick, Ch. J., Truax and O’Goeman, JJ.

      Decided March 1, 1886.
    Plaintiffs’ exceptions ordered to be heard in first instance at general term, after dismissal of complaint.

      Rose & Putzel, attorneys, and Gibson Putzel, of counsel, for plaintiffs.

      John H. V. Arnold, attorney, and of counsel, for defendant.
   Per Curiam.

The plaintiffs proved the following facts : W. Dazian is one of the plaintiffs. The defendant delivered to him, this paper, viz.: “I hereby agree to pay to. W. Dazian $2,000 for costumes for opera, ‘ Trip to Africa,’ on completion of order, and bill being signed by Mr. A. Neuendorf as correct on or before May 11, 1884. N. J. Haines, Jr.” The costumes, by arrangement, were to be delivered to Neuendorf, and they were in fact delivered to him before May 11, 1884. Bills of the costumes were made headed, “Mr. N. J. Haines, Jr., bought of W. Dazian.” On the margin of the bills Neuendorf signed the letters “ Ndff.” opposite “Number of dresses received,” and in another line “Correct.” These bills were in this state presented to the defendant, who made no objection to the manner of certification used by Neuendorf, and he promised to pay the amount charged in them. Afterwards he declined to pay, and on the trial defended the action on the position that the bills had not been signed by Neuendorf, as correct, in accordance with the condition of the agreement. The learned judge was inclined to think that the position was sound, but ordered the exception to his ruling to be heard in first instance at general term.

It would appear that the words on the margin do not form a complete sentence. The expressions call for words to be supplied. In a vernacular use of words or in their strictly grammatical use, the word “ correct ” following “received” would not qualify “number of dresses.” Nothing would suggest a departure from the natural, usual phrase “ Correct number of dresses received.” It is conceivable, however, that there might be an intention to say “ Number of dresses received was or is correct.” This supplies words that were not used, and before that is done, it is proper to ask whether this case does not suggest that different words should be supplied. The first thing to be done, is to compare the words with the condition of the agreement. It seems that there were two’ conditions—one “ on completion of order,” and the other “the bill being signed by Mr. A. Neuendorf as correct.’ As Mr. Neuendorf was the party who received the dresses, and therefore the one who would know whether the order had been completed, and the one to whom the defendant would resort to learn if the order had been completed, these facts suggest that the plaintiffs would procure something from Neuendorf to satisfy the defendant that the order had been fulfilled. Returning to the words on the margin of the bills, if the word ‘c correct ” is understood to be preceded by “ The bills,” then there are two phrases to be distributed to the two conditions. The first is, number of dresses received—-that is, the order has been completed. The second is, the bill is correct, and is in the form required. The latter construction appears to have been meant.

It is further to be considered that the promise to pay by defendant after the presentation of the bills to him was evidence of a waiver of strict compliance, if there had not been such in fact; or of an estoppel in plaintiffs’ favor, if it should appear that if the defendant had informed the plaintiffs that he required a different form of certification, the plaintiffs could have procured it.

The plaintiffs’ exception should be sustained, the verdict set aside, and a new trial ordered, with costs of the appeal to abide the event.


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    GEORGE D. BAREMORE, Respondent, v. FREDERICK B. TAYLOR, Appellant.

      Bill of particulars—minuteness may he excused—excuse insufficient—time to pj'ocure particulars.

    Where a party is unable to give minute particulars he may be excused from giving them, if the substantial rights of the other party may be guarded.
    The verification to a vague bill of particulars by the attorney of the party, setting forth that it is true as he verily believes, and that the reason why it is not made by his client is that his client is not in the city and county of New York, and a further affidavit by the attorney that in his opinion no further particulars can be given, and that his client was then in or near San Francisco, California, furnish no sufficient excuse ; for non constat, but that the client has the means of making a competent bill, and that by correspondence he can control its form and himself verify it.
    Upon proper application time to procure particulars may be given if necessary.
    Before Sedgwick, Oh. J., and O’Gokman, J.

      Decided March 1, 1886.
    Appeal by defendant from order that within twenty days the defendant’s attorney serve upon the plaintiff’s attorneys a bill of particulars, as directed by a former order, and that in case of default a defense of payment be stricken from the answer.
    The answer alleged that for “ any moneys at any time heretofore paid, laid out or expended by the plaintiff, for the defendant’s assignee, or at his request, the said plaintiff has been heretofore fully paid.” An order was made directing the defendant’s attorney to serve upon plaintiff’s attorneys the particulars of the payment pleaded in the answer. The bill of particulars served alleged, u The said defendant also paid to the plaintiff’s assignor in cash from time to time, the same being one half primage collected from carriers of freight; in many instances the said prim-age was collected by the plaintiff’s assignor himself, who would thereupon appropriate his portion thereof; no account was kept of these small payments, and the defendant is unable to specify the total amount; but the amounts so paid or collected constituted full payment for all services rendered, except in the case of commission sales, when the defendant had agreed to pay the plaintiff’s assignor a brokerage or commission.”
    This bill was verified by the affidavit of one of the attorneys for defendant, that the bill is true as he verily believes, and that the reason the affidavit is not made by the defendant is that he is not within the city and county of New York. The attorney made a further affidavit, which was read on the proceeding in which this appeal were taken, that in his belief no further particulars could be given, and that “ at present the defendant is at ornear San Francisco, California.”

      Shipman, Barlow, Larocque & Choate, attorneys, and Solomon Hanford, counsel, for appellant.

      Johnes, Benner & Wilcox, attorneys, and Henry C. Wilcox, of counsel, for respondent.
   Per Curiam.

Where it is made to appear to the court that a party is unable to give minute particulars, he may be excused from giving them, if the substantial rights of the other party may be guarded. Upon proper application, time may be given to procure particulars, if necessary.

In the present case the bill of particulars is vague, and no reason is shown for the defendant not being able to be exact as to times and the description of the sums paid. The verification by the attorney does not show that the defendant himself has not the means of making a competent bill, and it does appear that by correspondence the defendant could control the form of the bill and could himself verify it, or show why he is unable to be exact. For that purpose, twenty days were given by the order appealed from, and under proper circumstances that time could be enlarged.

Order affirmed, with $10 costs and disbursements to be taxed.


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    JOHANN NAUMANN, Respondent, v. THE BREWERS’ ICE COMPANY OF NEW YORK, Appellant.

      Motion to dismiss—when exact ground to be stated—misapprehension of evidence by trial judge.

    Where, upon a motion to dismiss the complaint for insufficiency of evidence, defendant’s counsel must from the circumstances have perceived that the trial judge was under a misapprehension as to the exact words of the evidence, and that the evidence as apprehended by the judge would justify the denial of the motion, he should by stating the exact ground of the motion call the judge’s attention to such misapprehension, and if he fails to do so an exception to the denial of his motion will not be sustained.
    Before Sedgwick, Oh. J., Truax and O’G-orman, JJ.

      Decided March 1, 1886.
    Appeal by defendant from judgment entered on verdict for plaintiff, as directed by the court.

      Guggenheimer & Untermeyer, attorneys, and Samuel Untermeyer, of counsel, for appellant.

      Oliver M. Benedict, attorney, and of counsel, for respondent.
   Per Curiam.

The action was for loss of service, &c., caused as alleged by the negligence of defendant’s servant in allowing a heavy piece of ice to fall from one of defendant’s ice-wagons, upon plaintiff’s son, thereby wounding him and requiring plaintiff to procure medical attendance, &c. There was some proof or presumption of negligence in not loading the cart so that the ice should not fall.

At the end of plaintiff’s testimony, the defendant asked the court to direct a verdict in its favor, on the ground that no negligence had been shown on the part of the defendant or its servants. If the cart from which the ice fell were the property of defendant, there was sufficient evidence of negligence in allowing the ice to fall. If the name of defendant were on the ice-cart, there was evidence as to the ownership of the cart being in defendant. It appears that the judge assumed that there was evidence on the second point. The testimony proved that upon the cart were the words “Brewery Ice Wagon, No.'l,” and it is apparent that the judge believed that the witness to this had given the name of the defendant. The judge told the defendant’s counsel on the trial that he might go to the jury if he pleased, but this he declined. The counsel must have perceived that the judge was under a misapprehension as to the exact words upon the cart, and should then have given the exact ground of the motion, or have gone to the jury:

Judgment affirmed, with costs.


text:
    DANIEL B. CLAFLIN, et al., Respondents, v. ALEXANDER V. DAVIDSON, as Sheriff, Appellant.

      Costs—Claim and delivery—Chattel replevied and not redelivered—Verdict in such action, when need not fix value.
    When the verdict in a claim and delivery action awards to the plaintiff a chattel which had been replevied, and which had not afterward been delivered by the sheriff to the unsuccessful party, or a person not a party to the action, the plaintiff is entitled to full costs. The limitation in the last clause of subdivision 2 of § 3228 does not apply to such a case.
    Under the facts above stated the value of the chattel is not required to be fixed by the verdict.
    Before Sedgwick, Oh. J., and O’Gorman, J.

      Decided March 1, 1886.
    Appeal by defendant from order directing clerk to tax costs in plaintiffs’ favor.
    The action was to recover chattels. The defendant as sheriff, had taken the chattels by an order of attachment. The coroner replevied the chattels and delivered them to the plaintiff, in whose possession they thenceforth remained. On a trial by a jury the verdict was for plaintiff, but the verdict did not fix the value of the chattels.
    The plaintiffs presented a bill of costs to the clerk for taxation, who refused to tax it on the ground that the value of the chattels not having been fixed by the jury pursuant to § 3228, sub. 2, Code Civil Procedure, there was no basis on which to tax costs.
    Plaintiffs thereupon moved at special term for an order directing the clerk to tax the bill of costs; and also appealed from the clerk’s decision to the special term.
    The motion and appeal were heard at special term, before Ingraham, J., who granted the motion, delivering the following opinion :
    “Ingraham, J.—Sections 1726 and 1727 of the Code provided the cases in which the jury must fix the value of the chattel. By section 1726 it is provided that where a verdict, report or decision awards to the plaintiff a chattel which has not been replevied, or where it awards to the prevailing party a chattel which has been replevied and afterwards delivered by the sheriff to the unsuccessful party or a person not a party to the action, it must also, except in the cases specified in the next section, fix the value of the chattel at the time of the trial.
    “ In this case the verdict awarded to the plaintiffs a chattel which had been replevied, and which had not afterwards been delivered by the sheriff to the unsuccessful party, or a person not a party to the action, and the case therefore is not within section 1726 of the Code. Section 1727 provides for the cases where the verdict or decision is in favor of the defendant.
    “The verdict did not fix the value of the chattel. There is no provision in the act that requires it to fix the value of the chattel where it awards the possession of the chattel to a person to whom it had been delivered.
    “ By section 3228 of the Code c the plaintiff is entitled to costs upon the rendering of the final judgment in his favor in either of the following cases: 1st. In an action. . . . 2d. In an action to recover a chattel; but if the value of the chattel or all the chattels recovered by plaintiffs, as fixed, together with the damages, if any, awarded to him, be less than fifty dollars, the amount of his costs cannot exceed the amount of the value and the damages. ’ Reading this section with sections 1726 and 1727, I think it must have been the intention of the legislature to limit this provision to the.case in which the jury or the court were authorized to fix the value of the chattel, and I think the true meaning of the section is that the plaintiff is entitled to costs in an action to recover the value of a chattel, except that in an action in which the jury are authorized to find the value of the chattel, that if the value of the chattel and the damages do not exceed fifty dollars, the costs cannot exceed the amount of such value and the damages.

      “ I am' inclined to think, therefore, that the costs should have been taxed by the clerk. Motion should therefore be granted, and the clerk directed to tax the bill of costs presented by plaintiff. No costs.”
    An order was thereupon entered granting the. motion and ordering the clerk to tax the bill of costs ; from which order this appeal is taken.

      W. Bourhe Cochran, attorney, and of counsel for appellant.
    ■ Arnonx, Bitch, & Woodford, attorneys, and Haley Fishe, of counsel, for respondent.
   Per Curiam.

Order affirmed, with $10 costs and disbursements to be taxed, upon opinion below.


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    THOMAS S. HENRY, as Receiver, &c., v. PHILANDER DERBY, et al. In the Matter of the Application of Defendants for an Order directing Willis M. Ranney to Pay the Costs of the Action. Willis M. Ranney, Appellant, Philander Derby, and Others, Respondents.

      Costs, compelling persons not parties to record to pay—motion for, service of notice on what attorneys insufficient—Ex parte order, one not party to the record—Findings, effect and validity of.

    Neither the attorney for a receiver appointed in supplementary proceedings in an action brought by him, nor the attorney for the plaintiff in the action upon the judgments in which the supplementary proceedings were instituted, represents the plaintiff in the original action in a proceeding instituted to compel him to pay the costs of the receiver’s action. An order compelling such plaintiff to pay said costs, made on notice only to either or both of such attorneys, is an ex parte order as to such plaintiff.
    Where an order is made under which proceedings might be taken at once against a person not a party to the record or his property to enforce it, and such order is ex parte as to him, he has an interest in having it set aside so that proceedings on it might not even be begun ; and it is proper for him to move to set it aside, and the motion should be granted.
    Findings in an action brought by a receiver appointed in supplementary proceedings, to the effect that the action was brought at the request of the judgment creditor, on whose judgment the supplementary proceedings were instituted, and that he was beneficially interested in it, he not being a party to the action, are without validity as to him.
    Before Sedgwick, Oh. J., and Ingraham, J.

      Decided March 1, 1886.
    Appeal by Willis M. Ranney from an order denying his motion to vacate an order directing him to pay the costs of the action.
    The facts appear in the opinion.

      Riddle & Ward, attorneys, and Charles M. Hough, of counsel for appellant,
    argued :—I. The order was void for want of jurisdiction .in the court to make it. The service of notice of the application upon the attorney of the nominal plaintiff did not confer jurisdiction to grant it (Carnahan v. Pond, 15 Abb. Pr. 194; Ward v. Roy, 69 N. Y. 96).
    II. Service of notice of the application upon the attorney who had appeared for Mr. Banney in another action, in another court, in another county, some six months before, did not confer jurisdiction upon this court to grant it. Generally, an attorney’s authority ends with the entry of judgment (Welradt v. Maynard, 3 Barb. 584 ; Lusk v. Hastings, 1 Hill, 656). After much discussion it was held that, in the absence of statutory provisions to the contrary, notice of motion for a receiver of a judgment debtor might be served upon the latter’s attorney in the action, because the proceeding was a proceeding in the action, the parties and the court being the same (De Berner v. Drew, 57 Barb. 438). Ho case has gone farther than this. But, surely, the collection of defendants’ costs in Henry v. Derby, in the superior court, is not “ a proceeding in the action,” of Ranney v. Chichester in the Kings county supreme • court, and to contend that an appearance in one is an appearance in the other, is idle (Howard Ins. Co. v. Halsey, 4 Sandf. 565 ; 8 N. Y. 271).
    III. The proceeding to charge a third party with the, costs of an action, authorized by section 3241, is a special proceeding, and the Code expressly requires personal service, in every instance, of the notice or other paper by which a special proceeding is commenced (§ 433). Even if it were the plaintiff that defendant was seéking to collect the costs from, the supplementary proceedings he would institute would be a “special proceeding” (Code,
      § 2433). And so much the more is it a special proceeding by which he now seeks relief, not only different from that demanded in his answer, but against a person whose name did not appear in the summons (Roe v. Boyle, 81 N. Y. 305 ; Marvin v. Marvin, 78 Ib. 541). The preceding cases were, it is true, under the statute, and the present one under the Code ; but, so far as this motion is concerned, the provisions of the two are identical. And proceedings under this Code provision also have been judicially held to be special proceedings (Matter of Tyng, 17 Week. Dig. 234).

      J. A. Burnham, attorney and of counsel for respondents,
    argued. I. There is nothing in section 3247 of the Code which requires personal, or, in fact, any other notice of the application to be served upon the person sought to be charged with the payment of the costs. The pre-requisite to granting the order is that the court shall determine that the “action is brought in the name of another by a transferee of the cause of action, or by any other person who is beneficially interested therein.” Where this question has not been determined prior to the application for the order, the party sought to be charged is doubtless entitled to an opportunity to be heard upon the question of his liability ; but where, as in the case at bar, the very judgment granting the costs has determined that the was brought for the beneficial interest of the party sought to be charged, thereby disposing of the only question which could be litigated upon the hearing of the application, it is respectfully submitted that the order might have been granted ex parte upon the judgment-roll alone.
    II. A receiver in supplementary proceedings represents not only the debtor, but the creditor at whose instance he was appointed (Cummings v. Egerton, 9 Bosw. 684). Under section 3247 the party “interested is hable for costs in the like cases and to the same extent as if he was the plaintiff.” Rule 79 of the General Rules of Practice provides that: “Whenever a receiver appointed under proceedings supplementary to execution shall apply for leave to bring an action, he shall present and file with his application the written request of the creditor in whose behalf he was appointed, that such action be brought; or else he shall give a bond, with sufficient security and properly acknowledged and approved by the court, to the person against whom the action is to be brought, conditioned for the payment of any costs which may be recovered against such receiver. And leave to bring actions shall not be granted except on such written request, or on giving such security.” The combination of these rules makes it emphatically clear that for all the purposes of liability for costs the judgment creditor, at whose instance and in whose behalf the receiver is appointed, is to be regarded as the real plaintiff. The filing of the written request that the action be brought is in itself a voluntary submission to the jurisdiction of the court, and any order or judgment thereafter made or rendered in the action thus brought at his request, binds him as if he were the nominal as well as the real plaintiff. A judgment is conclusive upon the parties to the action and their privies. The term “parties” in this connection is not restricted to those who are parties upon the record. It includes all who have a direct interest in the subject matter of the suit, a right to make a defense or control the proceedings (Bates v. Stanton, 1 Duer, 79.; Burr v. Bigler, 16 Abb. Pr. 177). A receiver is the privy by representation of the party at whose instance he was appointed (Pinkham v. Borst, 24 How. Pr. 246). The real parties in interest in an action at law, though they were not the nominal plaintiffs, are, in equity, bound by the judgment, equally as though they had been nominally parties (Southgate v. Montgomery, 1 Paige Ch. 41). The attorney for the nominal plaintiff is, therefore, the attorney for the real plaintiff, and notice of any application to bind the latter is properly served upon the attorney of record of the former (Code, § 799).
    III. The judgment creditor is charged with the costs of this suit because of the fact that, having recovered the judgment in the former action, this case was prosecuted for his sole benefit. And notice in the former action, or in the supplementary proceedings, might properly, indeed must have been, served upon his attorney of record therein. Therefore, since this application was made against him as the plaintiff in the former action, notice was properly served upon his attorney in said action (Code, § 199). After the double service thus made, either of which would have been sufficient, it becomes apparent how purely technical and devoid of real merit the question involved in this appeal is.
    IV. The application under section 3241 of the Code is a motion in the action, and not a special proceeding. The language of this section is that “ the court may by order direct the person so liable to pay them.” “in application for an order is a motion ” (Code § 168). And the order must, of course, be granted in the action. The former proceeding under the Revised Statutes: 3 R. S. (Banks’ Sixth Ed.) 534, § 321 ; 2 Edmonds Ed. 643, § 44, was a special proceeding, and for this reason the cases cited by appellant below are not in point.
   Per Curiam.

The action was brought by a receiver appointed in supplementary proceedings and resulted in the dismissal of the complaint, with costs. Costs having been taxed, the defendant, moved under section 3241 of the Code, that Willis M. Ranney be compelled to pay the costs on the ground that, the action had been brought at his request. Notice of that, motion was served upon the attorney for the plaintiff, in the action in which the receiver was appointed, and the attorney for the receiver, but was not served on Ranney personally. The court granted the motion. Subsequently, a motion was made on behalf of Ranney, who appeared by attorney, for the purposes of that motion only, to vacate the order requiring him to pay such costs. This motion was denied, and from the order denying that motion plaintiff appealed.

If the order directing Ranney to pay the costs had any validity, proceedings might be taken at once against him or his property to enforce.such order. He had an interest in having it set aside so that proceedings upon it might not even be begun. This order adjudicated him to have been beneficially interested in the action brought by the receiver, and that action was brought at his request. Such an order could not be made without notice to him so that he could be heard, and oppose.

The finding in the action that it had been brought at his request, and that he was beneficially interested in it, was without validity as to him, as he was not a party to the action. It cannot be said that the notice to the attorney for the receiver was notice to Ranney, because, before it could be held that the attorney for the receiver was acting for Ranney, the court must find that the receiver brought the suit at Ranney’s request, or on Ranney’s account, and that fact was in controversy, and was the fact to be tried on this motitin. Nor Was notice to the attorney for Ranney in the action on which the receiver was appointed, notice to Ranney. That attorney’s authority to appear for Ranney ceased on the entry of the judgment in that action, and there is no evidence that he was subsequently employed by Ranney. ■

The original order having been entered ex parte so far as Ranney was concerned, his proper proceeding was to move to set it aside, and we think that motion should have been granted.

The order appealed from is reversed, with $10 costs and disbursements, and the motion below granted, with $10 costs.
      Note. It appeared in the appeal book that the request required by Rule 79 had been filed by the judgment creditor, who was a non-resident. This, however, is not adverted to in the opinion, because the merits of the application to charge the judgment creditor with costs were not involved in the motion to vacate the order so charging him, on the ground of its invalidity.


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    GEORGE CAMPBELL, Appellant, v. AMERICAN ZYLONITE CO., Respondent.

      Examination of plaintiff before answer—sufficiency of affidavit for.

    Non-presentation of an affidavit of merits does not render order extending time to answer null.
    In an action brought against a corporation to compel the transfer to the plaintiff of stock represented by a certificate, and the issue of a new certificate to him, an affidavit by the treasurer of the corporation that the person in whose name the stock stands, and to whom said certificate was issued, had, before action commenced, notified the corporation that he owned the stock and plaintiff had no title ; that the circumstances under which plaintiff claimed to have obtained said certificate, and the title to the stock, were peculiarly within the knowledge of the plaintiff, and not within the knowledge of the defendant or of the affiant, and that, in the belief of the affiant, an examination of plaintiff would disclose facts material and necessary to enable defendant to frame its answer, is sufficient to support an order for the examination of plaintiff before answer.
    Before Sedgwick, Oh. J., and Ingraham, J.

      Decided March 1, 1886.
    Appeal by plaintiff from an order denying his motion to vacate and set aside an order for his examination.
    The complaint alleged that defendant, on September 27, 1880, issued for value and delivered to Edwin M. Felt, a certificate for one hundred shares of its capital stock, of the par value of $100 ; by the terms of which certificate it was provided that the stock was transferable only by assignment on the back thereof, recorded in the books of the company, either in person or by attorney, and the surrender of the certificate ; that on September 29, 1880, Mr. Felt signed and sealed an assignment and power of attorney and indorsed the same on the back of the certificate, the name of the assignee and attorney not being inscribed therein in the blank spaces left for that purpose ; that said shares of stock were, on September 4, 1885, offered for sale in the city of New York, and purchased by the plaintiff for $5,050, and the certificate was then and there delivered to plaintiff, who caused his name as assignee, and D. B. Wilmot, as attorney, to be written in the blanks therefor, and said assignment indorsed on said certificate ; that thereafter plaintiff presented- said certificate with said assignment on the back thereof having the blanks therein filled up as aforesaid, to the defendant, and offered to surrender said certificate and assignment, and demanded a transfer to him of said stock on the books of defendant, and demanded that defendant should issue a new or other certificate of stock to him in place of the certificate as offered to be surrendered ; that defendant refused to comply with such demands, and refused to recognize the plaintiff as the owner and holder of the stock, and prayed, (1) That defendant be directed, upon the surrender of said certificate, and the assignment thereof, to transfer said stock upon the books of said defendant to this plaintiff; (2) That the defendant also issue to this plaintiff a new certificate of the like amount of shares of its capital stock as is mentioned in the certificate now held by said plaintiff ; (3) That the plaintiff recover the costs of this action, and have such further and other relief as to the court may seem proper and just.
    Defendant before answering, and on November 9, 1885, procured an ex parte order directing that plaintiff be examined and his deposition taken pursuant to sections StO-S'TS of the Code of Civil Procedure, and that for that .purpose he attend before one of the judges of this court, on March 25, 1885, at an hour and place therein specified.
    This order was obtained upon the affidavit of the defendant’s treasurer setting forth the organization of the company, its place of business, its appearance in the action, the name of its attorney and his office address, the residence of the plaintiff in the action, the name of plaintiff’s attorneys in the action, and their office address, the pendency of the action, its general nature, the place of business and residence of the affiant, and then proceeding : “As an officer of the defendant I desire to be examined George Campbell, the plaintiff herein, who resides, I am informed and believe, at No. 130 West loth street, city, county and state of New York, and is of full age. The testimony of such person is material and necessary for me, to enable me to frame an answer herein.
    “ 5. The facts which render such testimony material and necessary are, among others, as follows : The defendant has been served prior to the commencement of this action and to the demand for the transfer of the stock, as alleged in the complaint, with a notice, of which the following is a copy :
    New York, Sept. 25th, 1885. £ To the American Zylonite Company,
    £ Mr. Wood, Treasurer.
    £ Having learned that a certificate for 100 shares of the stock of this company, issued to me, has been presented to you by Mr. George Campbell for transfer, I hereby notify you that I claim this certificate to be my property and that I am the owner of it, and that Mr. Campbell has no legal title to it, and the same cannot be transferred to him, and that I shall hold the company liable for any loss I may suffer if such transfer be made.

      ‘ Very respectfully,
    £ Edwin M. Felt.’
    “ lb is peculiarly and particularly within the knowledge of the plaintiff what were the circumstances attending the sale of the stock referred to in the complaint, alleged in the complaint as having occurred on September 4, 1885 ; who offered the same for sale ; upon what notice such sale was held ; where it was held ; who were present when it was made ; who sold such stock to the plaintiff ; who delivered the same to him ; the nature and extent of the notice the plaintiff may have had of any claim that such stock did not belong to the party selling the same, and of the equities of said Felt in said certificate ; what amount, if any, of the alleged purchase price for said stock has been actually paid by the plaintiff, to whom such amount or amounts were paid ; and at what dates and where, and of plaintiff’s knowledge of all proceedings affecting said alleged sale before and after the same. I believe that such examination will disclose facts material and necessary to enable the defendant to frame his answer, all of which are peculiarly within the knowledge of the plaintiff, and not within that of either defendant or deponent.
    “6. I desire, as an officer of the defendant, to use the testimony taken on said examination in the preparation of the answer herein.

      “ 7. The time to answer herein expires to-day, November 9, 1885, and no extension of time has been had.”
    Plaintiff on the complaint and the affidavit on which the order for examination was made, and an affidavit showing that the original time to answer had expired, and that an extension of time obtained by defendant was procured without presenting, filing, or serving an affidavit of merits, moved to vacate or set aside the order. This motion was denied, and from the order entered upon its denial, the present appeal was taken.

      Wilmot & Gage, attorneys, and Be B. Wilmot, of counsel for appellant,
    argued :—I. The defendant was in default—the time in which to serve an answer having expired. This objection was made upon the return of the order to show cause, and the order for the examination. In the order of examination, dated November 9, 1885, a provision was made extending time to answer, but, as no affidavit of merits had been presented, served or filed, the extension was a nullity (Gen’l Rule, 24 ; § 782 Code).

    II. The affidavit upon which the order was granted is defective, (a) It fails to state the nature of the defense sought to be interposed, (b) It fails to show the facts sought to be elicited are necessary and material (General Rule, 83; Schepmoes v. Bousson, Abb. N. C. 481; Robertson v. Russell, 20 Hun, 243; Code Civ. Pro. § 872). Mere averment of necessity and materiality is insufficient (Crooke v. Corbin, 23 Hun, 176 ; Robertson v. Russel, 20 Ib. 243 ; Matter of Bryan, 3 Abb. N. C. 289 ; Corbett v. De Comeau, 44 Super. Ct. 306 ; Shethar v. Babcock, 1 Civ. Pro. 83). (c) It does not set out what facts, if elicited, would constitute a defense (Shaw v. Van Rensselaer, 60 How. 143 ; Williams v. Harden, 1 Barb. Ch. 298 ; Beach v. Mayor, 14 Hun, 79 : Green v. Allen, 7 Week. Dig. 250).
    III. The facts alleged and set forth in the affidavit as necessary and material, and those which it alleges the examination may disclose, would not constitute a defense to the action (Cushman v. Thayer Manf. Co., 76 N. Y. 365 ; McNeil v. Tenth National Bank, 46 Ib. 331; N. Y. & N. H. R. R. Co. v. Schuyler, 34 Ib. 30, 80). It makes no difference, and it is wholly immaterial whether or not Campbell gave adequate consideration for the stock, or “what were the circumstances attending the sale of the stock . . . who offered the same for sale ; upon what notice such sale was .held ; where it was held ; who were present ; who sold such stock; . . . the notice plaintiff may have had of any equities of said Felt in said certificate,” etc (Cushman v. Thayer Manf. Co., 76 N. Y. 365 ; McNeil v. First National Bank, 44 Ib. 331 ; N. Y. & N. H. R. R. Co. v. Schuyler, 34 Ib. 30, 80). The case of Hutchinson v. Lawrence (29 Hun, 450), differs materially from this. There Hutchinson was not able to ascertain what transpired which produced his dismissal, or whether or not the rules and regulations relating thereto had been complied with; he asked for an order to examine the president of the exchange, who knew what had taken place, in order that he might ascertain the facts which were clearly material and necessary to properly frame his complaint, while, as we have shown, the facts sought to be inquired into under the affidavit and order appealed from, are not material to any defense which the defendant seeks to or could interpose.

      Charles Howard Williams, attorney, and of counsel for respondent.
   Per Curiam.

We think the affidavit sufficiently alleges the nature of the defense. The defense as indicated is. that E. M. Felt was the owner of the stock that plaintiff claimed and which he asked to have transferred to him. Sufficient appears to show that an examination of plaintiff is necessary to enable defendant to properly prepare its answer.

The plaintiff and Felt claim the stock, and in order to properly plead Felt’s title to the stock, it is necessary to allege the circumstances under which plaintiff acquired his title. These circumstances must be within plaintiff’s knowledge, and the treasurer of the defendant alleges that the facts are not within the knowledge of the deponent or of the defendant.

The defendant, so far as appears, has no interest in the ownership of this stock except to protect itself, and under the circumstances it should have an opportunity to investigate plaintiff’s title before it is compelled to answer the complaint.

An examination of the affidavit on which the order was granted, has satisfied us that the facts alleged were sufficient to bring the case within the statute.

The order extending the time to answer was not a nullity because of the absence of the affidavits of merits. It was a mere irregularity which could be cured by allowing such an affidavit to be filed, and until such order was vacated by the court or the judge who granted it, it was valid.

The order should be affirmed, with $10 costs and disbursements.