text:
    Laimbeer v. Allen and Whittlesey.
    The party verifying a pleading under the code, must subscribe his name to such pleading or to the affidavit appended.
    An answer, regular in all respects except in the omission of the signature of the party to its verification, should not be disregarded, until notice is given of the defect and an opportunity afforded to correct it.
    June 18, 1849.
    Motion to set aside a default and judgment. The defendant in time, served an answer, signed by their attorneys, and certified by a commissioner to have been verified before him by both defendants. Neither of toem, however, appeared to have signed the answer or the affidavit which the commissioner certified. The plaintiff’s attorney, treating the answer as a nullity, and without communicating with the attorneys for the defendants, entered a default and perfected judgment against the latter.

      T. C. T. Buckley, for the motion,
    cited 3 J. R. 540; 25 Wen. 699; 3 Hill, 476.

      J. J Radcliffe, for the plaintiff,
    cited Amended Code, § 157 ; 1 Barb. Ch. Pr. 155, 603, 604; 1 Code Reporter, 63, 114; 2 Moulton’s Ch. Pr. 27 to 29.
   By the Court. Sandford, J.

The answer was unquestionably defective, in the omission of the signatures of the parties verifying it. The practice has long been settled and uniform, that an affidavit should be signed by the deponent. A deposition, taken down by the officer, stands upon a different ground. (Clark v. Sawyer, 3 Sand. Ch. R. 352,414.) But the plaintiff’s attorney, instead of entering a default, should -have notified the opposing attorneys of the defect, and if they did not promptly obviate it, he might then have treated it as a nullity, and proceeded to enter his judgment. We find this practice was established several years since, in the supreme court, and it is so fair and reasonable that we adopt it without hesitation.

Motion granted.


source: Caselaw Access Project

author: By the Court. Sandford, J.

license: Public Domain

text:
    Poillon v. Houghton and others.
    On an order, (in equity,) overruling a demurrer with costs, the prevailing party, may under the act of 1847, tax his costs and collect the same by a precept in the nature of an execution against personal property.
    It is not necessary to enrol such an order. The taxed costs, must however be filed, before such an execution can be issued.
    June 21, 1849.
    Motion to set aside a precept in the nature of a fieri facias against goods. On the 19th of May, 1849, the general term, of this court, made an order overruling the defendants demurrer to the bill in equity of the plaintiff, (filed in the supreme court, and transferred to this court under the act of April, 1849,) with costs, and permitting the defendants to answer in twenty days, on payment of costs. The time to answer was afterwards extended. On the 6th of June, the plaintiff taxed his costs of the demurrer at $56 73 5 but he never filed his taxed bill of costs. On the 11th of June, he issued to the sheriff of New York, a precept under the seal of the court, commanding him to levy those costs of the goods and chattels of the defendants. The sheriff levied on personal property by virtue of the precept. There was no order of the court directing or allowing a precept to issue, and no notice of applying for it, was given to the defendants.

      F. Sayre, for the defendants.
    P. Y. Cutler, for the plaintiff.
   By the Court. Sandford, J.

The provisions of the code of procedure, cited by the plaintiff, have no application, as they do not affect suits pending prior to the code.

The order overruling the demurrer, is an absolute order upon the defendants to pay the costs thereby occasioned. Under the former practice, the plaintiff would have enforced payment j>y process of contempt; but this was abolished by a statute on the 24th of November, 1847, which provides that such costs may be collected by process in the nature of an execution against personal property, founded on the order of the court directing their payment. (Laws of 1847, ch. 390, page 491.) The precept in this case is such a process, and is thus warranted by the act cited.

The provision of the statute requiring an enrolment before execution, (2 R. S. 183, § 104,) and the consequent rule of the supreme court in equity, (Rule 77,) which is also the rule of this court; reltae to final decrees alone. The order in question is purely interlocutory, so that no enrolment was necessary.

It is claimed that the 119th rule of the supreme court in equity, gave the defendants twenty days after the filing and service of a taxed bill, in which to pay these costs. That rule was framed in reference to the existing practice of imprisoning for contempt, in not paying such costs ; the penalty being a commitment by an ex parte order, if the costs were not paid within the twenty days limited. We apprehend that with the abolition of the commitment, the reason of the rule ceases, and it should not be applied to the substituted remedy. We think the costs when taxed, under the present law, constituted a judgment, which is due and payable like any other judgment in a court of record. Waiving that point, there is another objection which is more difficult to be overcome. The plaintiff has not filed his taxed bill of costs ; and the 88th rule of the supreme court in equity, is imperative that the taxed costs shall be filed, before the party shall be entitled to issue an execution or other process for their collection. This omission makes the precept in question irregular, and it must be set aside, on the defendants stipulating to bring no action. On such stipulation being given, the plaintiff must pay ten dollars costs of the motion.


author: Sandford, J.,

text:
    Megrath and Hasbrouck v. Van Wyck.
    A defendant cannot treat an amended complaint as a new suit, although it wholly change the nature of the action. His remedy, if any, is by a motion to set it aside.
    June 30, 1849.
    The suit was commenced on the 26th of May, by a summons and complaint, in the nature of a replevin for goods taken. On the 1st of June, the plaintiff served an amended complaint, in which the action was set forth as founded upon a promise to pay for the same goods. On the 16th of June, the defendant served an answer, entitled “ in the first action, replevin,” together with a notice of trial. On the 19th of June he served another answer, entitled “ in the second action, in nature of assumpsit.” The plaintiff now moved to set aside the answer first served, or for other relief.
   Sandford, J.,

after advising with Oakley, Ch. J., and Vanderpoel, J., granted the motion without costs, with leave to the defendant, within six days to move to set aside the amended complaint as irregular,'and if that motion were granted, then the first answer to stand, and the second to be set aside.


text:
    Bagley v. G. and E. M. Smith.
    A notice of the entry of the judgment, given to-foreclose an appeal, is a proceeding in the cause, within the meaning of an order staying proceedings on the judgment; and will be set aside as irregular.
    June 20, 1849.
    After a trial in this cause and a verdict for the plaintiff, the defendants on the 26th of April last, obtained and served a judge’s order staying the proceedings, and granting them thirty days in which to prepare a case or bill of exceptions. On the 14th of May, the order wag modified by the judge, so as to allow the plaintiff to'perfect his judgment, “and all other proceedings on the judgment to be stayed.” On the 18th of May, the plaintiff served on the defendants’ attorney, a notice of the entry of the judgment. On the 23d of June, the defendants filed and served a notice of appeal, and gave the requisite security.
    The plaintiff now moves to dismiss the appeal; and the defendant moved for an enlargement of the time, or an amendment of the notice, or that the orders to stay, &c. bo deemed notices of appeal, or for relief in some other mode, if irregular.

      D. P. Hall, F. B. Cutting, and D. Lord, for the defendants.

      J. Slosson, and E. Sandford, for the plaintiff.
   Sandford, J.,

after advising with Oakley, Ch. J., and Vanderpoel, J., held the appeal to have been made in time. The notice of the entry of the judgment was a proceeding in the cause, which was prohibited by the stay of proceedings, and was set aside as irregular, on the defendants stipulating to give to the plaintiff ten days in which to except to the defendants sureties on the appeal. Leave given to the plaintiff to serve a new notice of the entry of the judgment, and his motion to dismiss the appeal denied. No costs to either party.


text:
    The People, Ex rel. Rumsey, v. Woods and others.
    Where after a default, the plaintiff amends his complaint, (not in mere matter of form,) he must serve the same on the defendant. A judgment entered thereon without such service, is irregular.
    June, 1849.
    Motion by Woods to set aside the judgment entered against him in this suit, as irregular. The plaintiff served a summons and complaint on three defendants. Woods suffered the matter to go by default. The other two defendants demurred to the complaint. Some months afterwards, the plaintiffs amended their complaint, in a substantial matter, and not in mere form. No copy was served on Woods, or notice given to him. Subsequently the plaintiffs proceeded to assess their damages against Woods and the others, and perfected judgment.

      J. Cook, for Woods.

      C. C. Egan, for the plaintiffs.
   Sandford, J.,

after advising with Oakley, Ch. J., and Yanderpoel, J., said, the judgment is irregular and must be set aside. The practice contended for on behalf of the plaintiff, would be very unjust. It by no means follows, that because Woods did not defend the original complaint, that he was not desirous to answer to the complaint as amended. He should have been served with notice of the amendment so as to give him an opportunity to answer, if he were so advised.

Rule accordingly.


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

text:
    Smith and another v. Norval.
    A bond as security for costs, conditioned that the plaintiffs shall pay to the defendants the costs which he might recover in the suit, is a sufficient compliance with the statute which requires a bond conditioned to pay, oil demand, all costs that may be awarded to the defendant in such suit.
    July, 1849.
    Appeal from an order at chambers, denying a motion made by the defendant to take from the files as irregular, a bond given as security for costs under an order of the court for that purpose. The plaintiffs were non-resident. The condition of the bond filed was, that if the plaintiffs should pay to the defendant the costs which he might recover in the suit, the bond should be void.

      C. S. Roe, for the defendant.

      A. Child, for the plaintiffs.
   By the Court. Oakley, Ch. J.

The statute prescribes that security for costs shall be given in the form of a bond in the penalty of at least $250, <fcc., “ conditioned to pay, on demand, all costs that may be awarded to the defendant in such suit.” (2 R. S. 620, § 4.) This bond, it is true, does not pursue the language of the statute, but so far as it differs, it is more favorable to the defendant than the form prescribed. The obligors will be liable immediately, if the defendant’s costs are not paid as soon as he obtains a judgment. The spirit of the statute is fully carried out by this condition, and we think it a sufficient compliance.

Order affirmed.


text:
    Elson v. The New York Equitable Insurance Co.
    Where the defendant appears in the cause, though he omit to answer, he is entitled to notice of the adjustment of the costs; and a judgment entered without such notice, is irregular.
    Aug. 1st, 1849.
    Motion to set aside a judgment entered by default. The defendant served notice of his appearance, with an order extending the time to answer. The latter being irregularly served, was disregarded, and the plaintiff immediately entered judgment, without giving any notice of the adjustment of the costs.
   Duer, J. (The Chief Justice concurring.)

Notice of the adjustment of the costs must be served in all cases where, the defendant has given notice of his appearance in the action. (Amended Code, § 311, 414.) The statute requires this, and the court cannot dispense with it. The former mode of taxing costs without notice, and then giving notice of re-taxing, is no longer possible, for the judgment itself is irregular, if notice be omitted after the defendant appears in the action. The judgment must be vacated.


author: Mason, J.

text:
    Boutel v. Owens.
    A confession of judgment, without action, is not authorized by the code, on a demand for a trespass upon real and personal property.
    A confession of judgment, out of court, by a defendant in custody, on an arrest at the suit of the plaintifffor the cause of action confessed, made without the counsel, advice or presence of some attorney named by the defendant, and attending at his request, to inform him of the nature and effect of the confession before he signed it; is void, and the confession and judgment will be set aside on motion.
    Aug. 31, 1849.
    This was an order to show cause why the judgment entered by confession in this action and all subsequent proceedings, should not be set aside.
    It appeared from the affidavits, that the plaintiff keeps a segar store in Carmine-street, and has a sign in front, a wooden figure of a woman as large as life, holding segars; and that the defendant, who kept a grocery store directly opposite, on the 10th instant, when extremely excited by liquor, attacked the wooden figure, and mutilated it by breaking the arms and head; and that, at two o’clock on the following morning, while still under the influence of liquor, he attacked the store of the plaintiff, breaking a panel, and otherwise injuring the outer door. Owens was immediately arrested for these outrages, and taken to the station house of the police in the vicinity, when the plaintiff agreed to settle the matter for fifty dollars, and a note was drawn and signed by the defendant for that amount, payable in six months. The police justice, however, before whom the defendant was brought, required the plaintiff to give up the note to him, and then immediately destroyed it, saying that the defendant was not in a fit condition to do business. The plaintiff then commenced a civil action against the defendant in the court of common pleas, and obtained an order from Judge Ulshoeffer, to arrest and hold him to bail in the sum of $500. Under this order the defendant was arrested and taken to the office of the plaintiff’s attorney, and while in the custody of the sheriff, on the same morning, gave a confession of judgment in this court, for one hundred and seventy-five dollars, in the manner prescribed in sections 382 and 383 of the code, authorizing confessions of judgment without action. The confession was as follows, after the title of the cause:—
    “Judgment is hereby confessed by me, Ferris Owens, in favor of the above named Antoine Boutei, for the sum of one hundred and seventy-five dollars, which judgment is based upon the following facts: On the the LOth day of August, 1849,1 committed trespasses upon his store and personal property therein, to the amount of two hundred dollars, which damage is liquidated by the said Boutei and myself at one hundred and seventy-five dollars, that being the sum above stated, and for which I hereby confess judgment in the above entitled action or cause.

      “ Dated Aug. 20, 1849.
    Ferris Owens.”
    Appended to which was Owens affidavit of the truth of the statement.
    The defendant now states in his affidavit, that he was at the time when he agreed to give this confession, very much alarmed and excited, that he had no legal adviser to apply to or with whom he could communicate, and was ignorant of the legal effect of the paper, and supposed that he would by signing it, obtain a discharge from the arrest. The affidavits on the other side did not deny these allegations. The attorney for the plaintiff stated that he told the defendant he had better consult some counsel before executing the paper, and that Owens left the sheriff’s office, and shortly after came into the chambers of the supreme court with a man who he said was his counsel, but “ whose name, place of business, and office, are unknown to the deponent; and they both read the statement or confession together, and pronounced it correct” And the sheriff’s assistant, in his deposition, says that a person with the defendant read the papers, but it was not alleged that this person was the counsel of the defendant, or that he was a counsel or attorney of the court.
    It was contended by the counsel for the defendant, that the judgment was void, and ought to be set aside unconditionally, as it was confessed while the defendant was under arrest, and in actual custody of the sheriff, without the presence of any counsel attending in his behalf; and at any rate, that the court, in the exercise of its equitable jurisdiction, should allow the defendant to come in and defend upon the merits. The plaintiff’s counsel contended that the plaintiff’s proceedings were entirely regular under the section of the code before referred to, and that the old practice as to confession of judgment out of court, does not apply to those confessions under the code.

      H. Hunt, for the defendant.

      C. Shaeffer, for the plaintiff.
   Mason, J.

It has long been a rule of the English courts, that no warrant of attorney executed by any person in custody of any sheriff or other officer, for the confessing of any judgment, shall be valid or of any force, unless there be present some attorney on the behalf of such person in custody, to be named by him, and attending at his request to inform him of the nature •and effect of such warrant of attorney before the same is executed ; and the attorney is required to subscribe his name to the due execution thereof. This rule was adopted in this form in the fourth year of George II., and it appears to have been an amendment of, or engrafted on, a prior rule, adopted in the time of Charles II. It has been constantly adhered to in England, from that time to the present. In the case of Hutson v. Hutson, 7 T. R. 7, the court held that a defendant, under the pressure of an arrest, ought to be considered incapable of waiving the benefit of the rule, and that in all cases he should be protected by the advice of an attorney expressly attending for him; and in the case of Walker v. Gardner and others, decided in 1832, (4 B. & Ad. 371,) the court of kings bench set aside a judgment and ordered, the warrant of attorney to be cancelled, because the attorney who attended on behalf of the defendant, and witnessed the execution of his papers, was not his attorney, but an attorney named and procured by the plaintiff.

This rule was never adopted in terms by the supreme court of this state, but the practice of the court appears to have always been in accordance with it. This is shown by the case of The Manhattan Co. v. Brower, 1 Caines, 511, decided in 1804, and the case of Evans v. Bayley, 2 Wend. 243, decided in 1829. In the recent case of Wilder v. Baumstauck, 3 Howard Spec. T. R. 81, Mr. Justice Welles applied the rule to a case where a defendant confessed a judgment while in custody on criminal process, and set aside the judgment because he had no attorney attending on his behalf.

If this judgment, then, had been confessed under the old system, it would unquestionably have been the duty of the court to set it aside. And I do not see that the adoption of the code makes any difference. The code, indeed, is silent on the subject, but the code does not provide, or purport to provide, for every case. There was no statute or rule of court on this subject, under the old practice, yet the propriety of thus protecting a defendant against oppression while under arrest, was so manifest, that the court always acted on the principle of the English rule. A change in the form of proceeding, has not wrought any change in the principle. The reason of the rule still remains the same. Defendants under arrest, need the same advice, assistance and protection, whether the papers are drawn up according to the forms formerly in use, or according to the code.

The counsel for the plaintiff, contends that the code has provided for this case, and that he has strictly complied with its requirements. An examination, however, of the section relied on, conclusively shows that those sections have no application to a case like the present.

The chapter in which these sections are found, is entitled “confession of judgment without action.” Now, in this case there was not only an action in the court of common pleas, but the defendant was in custody by tirtue of an arrest made in the action, and the confession was for the same cause for which that action was brought.

Section 382, which is the first section of this chapter, defines the cases in which such a judgment without action may be entered, viz., either for money duo or to become due, or to secure any person against contingent liability on behalf of the defendant, or both ; that is, a party may confess a judgment without action, in favor of his creditor, whether the debt has become due and payable or not, and also by way of security to a person who has become surety for him, although the liability of the surety may not have become fixed, as, for instance, an accommodation indorser before the-note has fallen due. These are the only cases for which this chapter provides. The next section points out the manner in which the confession in such cases must be made. Now here there was no debt and no suretyship, but a trespass. The liability was not contingent but absolute, and it was a liability not of the plaintiff to third persons on behalf of the defendant, but of the defendant to the plaintiff, for damages occasioned by the trespass.

The confession of judgment, then, in this case, was wholly unauthorized by this chapter in the code.

It is not necessary to decide in the present motion, whether, since the code, a judgment may be confessed out of court, in a case like the present. It is sufficient to say that this judgment cannot be sustained, as one authorized by any express provision of the code. And if a judgment by confession out of court "can be given in such a case, independent of the code, the judgment in this case is void by reason of its having been confessed by the defendant while in custody of the sheriff, under an order for arrest at the suit of the plaintiff in this action, without the presence and counsel, and advice of some attorney named by him, and attending at his request, to inform him of the nature and effect of the confession, before he executed and signed it.

This view of the case renders it unnecessary to discuss the ether point raised on the argument.

Judgment and execution set aside, with ten dollars costs.


author: Mason, J., Sandford, J., Oakley, Ch. J.,

text:
    Fisher and others v. Curtis. Perry v. Montgomery. Cole v. Kerr.
    An attachment against property, under section 227 of the amended code, cannot be issued in this court, except in those actions in which the court has jurisdiction, e. g. by the residence of the defendants; or has acquired it, by the service of process on them.
    An attachment against a non-resident, issued before, but served at the same time with the summons, is irregular and will be set aside.
    Aug. 27; Sept.;
    Nov. 17; 1849.
    In the first suit- above, an application for an attachment was made to Mason, J., at chambers, under the fourth chapter of title seventh of the amended code. (§ 227.) The defendant, was not a resident of the city and county of New York, and had not been served with the summons issued in the action.
   Mason, J.,

after examining the provisions of the code, and showing that this court had not by the code, and had not acquired by service of the summons, jurisdiction over the defendant, proceeded as follows:

The attachment authorized by section 227 to 243, of the amended code, is a new and important remedy, which did not exist under the old system. Unlike the attachment against absent and absconding debtors, under the revised statutes, which was for th.e benefit of all the creditors, and as to which the jurisdiction of the justices of this court is not taken away; this attachment is for the benefit of the individual creditor. It is requisite, however, in order to its being issued, in every case ; 1st. That there should be an action pending; by § 227, the attachment is authorized only in an action, and by § 99, an action is not commenced for any purpose until the complaint is verified : 2d. It must appear among other things required by 1229, that the defendant is either a foreign corporation, or not a resident of this state, or has departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent.

Where a debtor whose place of residence is in this city, absconds from the state, or conceals himself within the same, to avoid the service of the summons, then this court has jurisdiction to issue the attachment, because it can entertain the action. So also in the case of a non-resident debtor, who may have been served with process in the city; because then the court has jurisdiction of the case by the actual service of the summons. But when a debtor is a non-resident, and the summons cannot be served on him, this court cannot issue the attachment, because it cannot entertain the action.

The application must be denied.

In Perry v. Montgomery, Sept. 1849, an attachment was issued before the service of the summons, against a non-resident of the city. It was served with the summons, and a motion was made to set it aside.

Sandford, J.,

after advising with Oakley, Ch. J., and Vanderpoel, J., held that the attachment was irregular, and ordered it to be set aside.

In Cole v. Kerr, Nov. 17, 1849, which was precisely similar in its circumstances, except that after the service of the summons and attachment, the defendant put in an answer;

Oakley, Ch. J.,

after consulting with Vanderpoel and Sand-ford, J. J., held that the attachment was irregular, and must be set aside. He said this did not affect the continuance of the suit, nor the issuing of a new attachment.


author: By the Court.

text:
    Stanton v. The Delaware Mutual Insurance Company.
    The provision of the amended code of procedure, for the inspection and taking copies of books, papers, &c , does not repeal the provision of the revised statutes relative to the production of books and papers.
    To obtain an order for a discovery under the latter, to aid in preparing an answer, the petition must show the nature of the document and its necessity for that purpose.
    Sept 27, 1849.

      T. Sedgwick, for the defendants.

      C. B. Moore, for the plaintiff.
   By the Court.

This is a suit on a policy of insurance on a vessel claiming for a total loss, or in a certain alternative, for a partial loss. There was as it is alleged, a technical, but not an absolute total loss. No answer has been put in. The defendants present a petition for a discovery, to enable the party to answer, which presents the question, whether this proceeding to compel a discovery under the revised statutes, is not repealed by the provision on that subject in the code 'l

We have looked into the subject, and will state our conclusion. The practice under the rules of the old supreme court, and in this court, was assimilated. The course was to present a petition, setting forth the nature of the case and the occasion of the discovery, with a certificate of counsel, that the discovery was necessary. This court in carrying into effect those rules, early came to the determination, that it would not, in ordinary circumstances, permit an inspection, or order a deposit of books or papers ; unless there was a. charge of forgery, or some similar pressing reason existed for directing it. We thought a contrary practice would be liable to very great abuse. Our practice was, to order sworn copies, which usually answered all the objects of the law, which was to enable the adverse party to prove the contents of his opponent’s books, or of papers in his possession. In every such instance, the other party could produce the original document on the trial, and then the copy would not be used.

The code originally provided a rule for the inspection of papers, which was not very broad. It gave a right to take a copy, which implied an inspection of the original. If compliance with the order were refused, the court might exclude the paper from being given in evidence, or punish the party refusing, or both. The amended code extended the provision to books and documents, still giving the right to a personal inspection, and to take a copy. (Sect. 388.) The codes differed essentially from the revised statutes in this, that by the latter, copies were not to be taken, (involving an inspection,) except under an order of the court; and the court in the discretion it thus exercised, would not, except in very rare cases, direct it.

Now, does the provision of the code repeal the revised statutes as furnishing a remedy inconsistent with the former 1 We think not. The two systems may well stand together. If a party come by petition under the revised statutes, and ask for a discovery, he has a right to it. It is a different proceeding from that under the code. The court exercises different powers in respect of it, having a discretion as to the manner of ordering it, and there being provided a different mode of enforcing the discovery. There is no incongruity between the two systems, and they may stand together.

The new rules of the supreme court show the court did not deem the code to have superseded the old system. That court has made rules which carry out the latter, in respect of sworn copies and the like. The application before us comes under the old system. There is not enough in the papers, to show why or how it is necessary to have the discovery asked, in order to prepare the answer. This should be shown, as well as the nature of the documents.

Application denied.

       In the case of Moore v. Pentz, President of the Mechanics Banking Association, an order had been made for the inspection of certain books of the bank. On an application founded on an alleged compliance with the order before Mason, J., lie delivered the following opinion on the point above decided. The decision in the principal case was not mentioned on the argument.—Sec the next page.


text:
    Moore v. Pentz.

      W. M. Evarts, for the plaintiff.

      R. E. Mount, Jr., for the defendant.

      (April 8th, 1850.)
   Mason, J.

The power of the court to require the production of the books, is undoubted. The statute (2 R. S. 199, § 21,) gives the court the power to compel any party to a suit, to produce and discover books, &c. The next section directs the court to prescribe, by general rules, the cases in which such discovery may be computed, and th a proceedings for that purpose. And the tenth rule of the supreme court, which is, also, by statute, .the rule of this court, framed in pursuance of this direction, provides that the order granting the discovery, shall specify the mode in which the same is to be made, which may be either by requiring the party to deliver sworn copies of the matters to be discovered, or by requiring him to produce and deposit the same with the clerk of the county in which the trial is to be had, unless otherwise directed by the court. One object in requiring the deposit to be made with the clerk of the county in which the trial is to be had, undoubtedly is, that the books maybe within reach, to be produced on the trial, if necessary. The same object will be effected in this case, by requiring the defendant to produce them on the day of trial, and deposit them with the clerk of this court, to remain with him during the trial of the cause; and such is the order of the court, with regard to the books mentioned in the plaintiff’s notice.

The powers of this court, under the statute, being amply sufficient to warrant the order. I have not considered the other point suggested by the counsel for the plaintiff, viz. whether this court has now all the powers on this subject formerly possessed by the court of chancery ? That question may become important, if the books should not be produced, and the counsel for the plaintiff should not deem the consequence of non-production given by the 20th section of the statute, to be sufficient to enable him to recover, but should desire to compel the actual production of the books in court. But at present it is unnecessary to discuss that point


text:
    Wood v. Harrison and Montcrieff.
    Trial of an equity suit before a jury under the code, where the defendants rights Were distinct, &c.
    Oct. 25, 1849.
   At nisi prius.—The complaint set forth that the plaintiff at a receiver’s sale, on the 2d of November, 1848, became the purchaser of the leasehold interest of one Britton, in the premises known as No. 10 Dey street. That the receiver making the sale, was vested with all the right which Britton had on the 22d day of April, 1848; the same having been transferred to such receiver in a creditor’s suit in equity, commenced on the day last mentioned, by J. E. and C. Andrew against Britton, upon a judgment and unsatisfied execution. That the sale was made in pursuance of an order of the court, and a conveyance executed by the receiver to Wood.

The complaint further stated, that early in 1847, Britton obtained a lease of No. 10 Dey street from the owners, for a term of ten years from the 1st of May, 1847, at the yearly rent of $700, on condition that the defendant Harrison would become his surety for the rent. Harrison agreed to be such surety, if B. would assign him the lease as security. Accordingly, the lease was executed to Britton, Harrison executed a covenant to the lessors to pay the rent, and B. assigned the lease to Harrison, as his security therefor. That on the 26th of August, 1848, Harrison leased the premises to the defendant Montcrieff, for the residue of the term demised to Britton, and put M. in possession. That M. had full notice of Andrew’s suit against Britton, and of their claim to B.’s interest in the lease. That Britton took possession May 1st, 1847, and continued in possession until after Andrew’s suit was commenced. That on the 18th of November, 1848, the plaintiff offered in writing to Harrison, to substitute good and sufficient security in his place on Britton’s lease, (and stated that the lessors would accept the same,) if he would assign-the lease to the plaintiff. That Harrison positively refused to assign the lease'Xtpon any terms.

The complaint prayed that the defendants might assign to the plaintiff, the lease and all the right which they and Britton had therein, and give the plaintiff possession of the premises j on his furnishing to Harrison a release and discharge of his suretyship and liability for the rent, and procuring a responsible person to become surety upon the lease in his stead. And for such other or such further relief, as the nature of the case might require, and to the court should seem meet.

The defendant Harrison, in his answer, stated that he refused to become security for the rent, unless he should have the absolute control and ownership of the lease; and that the lease having been executed before Britton had applied to him, he signed the covenant, and at the same time received from B. an absolute assignment of the lease. That Harrison was in truth the lessee, and that Britton never had any actual interest in the premises, and he never had the possession of the lease. That the lessors have refused and do refuse to change the security, and to accept any person in place of H. as covenantor for the rent. That the plaintiff has no right, title or interest in the lease. That the court has no power to compel the lessors to substitute another person as security; and certainly not, without making them parties to the suit. Nor can the court compel the defendant to assign the lease and give possession to the plaintiff; because he has transferred all his interest to Montcrieff, who is in possession and entitled to the lease.

The answer of the defendant, Montcrieff, set up that he obtained his lease from Harrison, in good faith and without any notice of the facts relied upon in the complaint to sustain the plaintiff’s title. It also put in issue those facts.

On the trial, before Sandford, J., the respective parties gave evidence in support of their claims as made by the pleadings, and the plaintiff proved that if Harrison had assigned the lease to him when requested, he could have sold it for $500.

After the cause was summed up to the jury, the judge submitted to them in writing, six questions, as embracing all the material issues, and desired their answer to each. The questions, with the answers made by the jury after retiring and deliberating, were as follows:

D. Evans and E. Sandford, for the plaintiff.

H. Hilton and J. Cochran, for the defendants.

1. Was Britton the principal and Harrison the surety, in the lease when it was executed 1 (Answer, They were,)

2. Was the assignment from Britton to Harrison, intended to be absolute ; or was it made as security to Harrison, in respect of his covenant to pay the rent ? (Answer, As security.)

■3. Did the lessors in the lease, give their consent to release Harrison from his covenant, and accept some other surety, or will they now release him? (Answer, No.)

4. Did the tenant Montcrieff, when he received his lease from Harrison, have any knowledge or information that Harrison was a surety or trustee for Britton ? (Answer, No.)

5. Did Montcrieff then have any knowledge or information as to Andrew’s proceedings against Britton, and his claim to enforce his judgment against the lease of No. 10 Dey street? (Answer, No.)

= 6. What was the lease worth when the offer was made by Wood to Harrison, to substitute other security? (Answer, $500.)

The Judge, after hearing counsel as to the judgment to be given on the verdict, gave judgment for the plaintiff against Harrison, for $500, and the plaintiff’s costs of the suit; and in favor of Montcrieff against the plaintiff for his costs.


author: Sandford, J., (after advising with his associates,) Sandford, J., (after conferring with the Chief Justice and Vanderpoel, J.,)

text:
    Partin v. Elliott & Thackstone. Taggard v. Gardner.
    A parly may be examined as a witness at the instance of the adverse party, "in all cases, after issue and before the trial, upon an order of a judge ; without the existence of any circumstance which would authorize a commission op an examination conditionally under the revised statutes. /'
    Such examination may be had, on five days notice requiring it, without any order of a judge; the party being subpoenaed and paid his fees as a witness.
    Nov. 14, and Dec. 1849.

      Order in the first case for the examination of the defendants as witnesses for the plaintiff. The cause was at issue and ready for trial. The defendants attended and objected to the order, as not warranted by the code. That the party cannot be examined as a witness before the trial, except on a commission, where he resides out of the state, or conditionally on the grounds prescribed for taking testimony conditionally in the revised statutes.

      C. E. Appleby, for the plaintiff.

      W. Bliss, for the defendant.
   Sandford, J., (after advising with his associates,)

directed the parties to submit to the examination. He said, it is difficult to give any satisfactory operation to the word “ conditionally,” in the 390th section of the amended code. It clearly does not mean that the party cannot be examined before the trial, when residing here, in no other cases than those in which a witness may be examined conditionally by the revised statutes ; because the 391st section is positive and express, that the examination may be had before the trial, at the option of the party claiming it. Moreover, an examination at the trial, does not seem to be contemplated, after such an examination as that now ordered. This proceeding is expressly instead of being had at the trial,” and the examination may be read by either party on the trial. (§ 392.) The object which the commissioners on practice and pleadings had in view, in reporting what is now section 391, can only be attained by giving to it the construction for which the plaintiff contends. The examination before the trial, was designed to aid parties in preparing for trial; irrespective of the residence of the party sought to be examined, or the probability of his being able to attend the trial. (Commissioners First Report, 1848, pages 244, 245.) The 290th section contains in a condensed form, the provisions of the first section of the act of December, 1847, authorizing parties to examine their opponents as witnesses. (Laws of 1847, Ch. 462, page 630.) In adding the further provisions contained in section 391, the function of the word “ conditionally,” was in a great measure, if not wholly superseded.

Order accordingly.

In Taggard v. Gardner, in December 1849, the plaintiff had given the defendant, who resided in the city of New York, five days notice, requiring him to appear before a justice of this court at chambers, and be examined previous to the trial, as a witness in the cause. No order of the court had been obtained for that purpose, but the defendant was regularly supoenaed to attend at the time and place specified in the notice, and was paid his fees for attending as a witness. The defendant denied the right of the plaintiff to compel him to testify in this manner, and insisted that an order of the court was indispensable.

Sandford, J., (after conferring with the Chief Justice and Vanderpoel, J.,)

decided that the plaintiff’s proceeding was regular, and the defendant must submit to the examination. He said a previous order from a justice of the court was not necessary, unless a shorter time than five days be for some cause desirable and proper. If the party notified and subpoenaed, having a reasonable time given to him, fail to attend, he will be liable to punishment as for a contempt of court.


author: The court

text:
    Merchant v. The New York Life Insurance Company.
    The complaint may be amended in the amount claimed by the plaintiff, in an action on contract for the recovery of money only, even after a reply repeating the original claim, and both pleadings verified.
    Nov. 14, 1849.
   The court

decided that in a proper case, the complaint may be amended in the amount claimed in an action on contract for the recovery of money only. The cause'was at issue; the plaintiff in his reply, having reiterated the claim and the amount, as in his complaint

R. Dodge, for the plaintiff.

W. Bliss and O. Bushnell, for the defendants.

Both pleadings were verified by the plaintiff. On his applying for a discovery of books and papers, the defendants, (xvho had in the meantime been examining their books to ascertain the amount due to him,) sent to his attorney a stipulation that he might take judgment for the amount of his claim. The plaintiff persisted in his demand for a discovery, and stated in his affidavits, that on examining certain statements made by the defendants, he had ascertained that there was due to him more than twice the amount claimed in the complaint. That these matters were exclusively within the defendants’ knowledge, and he never had any means of knowing how much was due to him, except from their books and the published statement of their affairs.

The plaintiff avowing his intention to move to amend his complaint, the question as to the power to amend in respect of the amount claimed, was fully argued on the motion for a discovery.

         Reference was made to sections 128, 129,142,169,246,247,275 and 276, of the amended code; and to the i’irst Report of the Commissioners on Practice and Pleadings, p. 195.


text:
    Castellanos v. Beauville and others.
    Where in trespass, separate defences are made by several defendants, in good faith, and not for costs, each is entitled to a full bill of costs on succeeding in the suit.
    Where, after being commenced separately, the defences are united under the same attorney, or are in truth and effect united, during the residue of the suit, there can be but one set of costs for all.
    Nov. 17, 1849.

      Taxation of costs.—The suit was trespass, against Beau-ville, Samanos, and W. Jones, sheriff. The latter appeared by his attorneys, Messrs. Brown & Matthews, and put in a plea. Beauville and Samanos appeared, and put in a joint plea by W. Skidmore, their attorney. The defence of B. and S. was jointly conducted until the second trial, when Samanos was-acquitted. At that stage of the matter, Brown & Matthews became Beauville’s attorneys, on a substitution for Skidmore, and conducted the suit till its termination in a judgment for all of the defendants. On taxing the costs, a full bill was claimed for each defendant.

      Brown & Mathews, for the defendants.

      H. P. Hastings, for the plaintiff.
   By the Court. Oakley, Ch. J.

The defences of Beauvile and Samanos were conducted by the same attorney, and on the same plea while S. continued in the suit, and there can be only a single bill of costs for both during that period. After that, the defence of Beauville and the sheriff was conducted jointly by the same attorneys for both. It is not the case, therefore, of a separate defence by separate attorneys. There separate bills are allowed, where the defences were so conducted in good faith, and not for costs. Where in truth and in effect the defences have been united, there can be only one bill taxed. The result is, there must be one full bill of costs taxed for the sheriff, and another for Beauville and Samanos, to the period when the sheriff’s attorneys became the attorneys for B. No costs will be taxed to B. after that, as there was thereafter one entire defence for him and the sheriff.


text:
    Southart v. Dwight.
    Where a discovery is sought of a paper, stated on oath to have been delivered to the adverse party ; to excuse himself from discovering it, he must swear, positively, that it is not in his possession or under his control; or must state facts, which with his denial on his knowledge, information and belief, are equivalent to a positive negation on oath.
    Dec. 1849.
    This was an application by the plaintiff, for an order on the defendant, to discover a certain receipt. The affidavit of the plaintiff, made in support of the application, averred positively, that he had made and signed the receipt in question, and had delivered it to the defendant. The application was opposed, and an affidavit of the defendant produced, in which he swore that he had no recollection of such a receipt, that he had. searched for it, but without finding it, and that he believed it was. lost or mislaid, and to the best of his knowledge and information, no such receipt was in his possession, or under his control.
   Sandford, J., (after advising, with two of his associates,)

held that the affidavit of the defendant did not make a sufficient answer to the application of the plaintiff. A party, to excuse himself from making a discovery of any papers alleged on oath by the adverse party, to be in his possession, must make an affidavit in the terms prescribed by the revised statutes, and swear positively that the papers are not in his possession, or under his control. He must make such an examination as to enable him to do this ; or state facts with his denial when expressed as it is here, which will show that such denial is equivalent to the positive oath required by the statute.


author: The Court, (Sandford, J.,)

text:
    Appleby v. Elkins.
    Form of complaint on a promissory note by indorsee against maker, approved on demurrer.
    On overruling a demurrer to a complaint as frivolous, leave to answer will not be given, without an affidavit of merits.
    December Special Term, 1849.
    Demurrer to a complaint. The statement of the complaint was as follows:
    “That the defendant on the first day of August, 1849, made his promissory note in the words following:—‘New York, August 1st, 1849. Two months after date, for value received, I promise to pay to the order of Noah Ripley, one hundred and sixty dollars. G. B. Elkins.’ And delivered the same to the said Noah Ripley, who thereupon indorsed the same to the plaintiff; that the said defendant did not pay the said note when it became due, and that the defendant is indebted to the plaintiff upon the same note in the sum of $160, besides interest.”
    The defendant demurred, for the following causes :
    “ 1st. That the complaint does not show that the plaintiff is the lawful holder of the note on which the action is brought 2d. It is not averred that the said note is due. 3d. The complaint does not state facts sufficient to constitute a cause of action.”
    The plaintiff moved for judgment, on the ground that the demurrer was frivolous.

      C. E. Appleby, for the plaintiff.

      J. N. Balestier, contra.
   The Court, (Sandford, J.,)

held the demurrer to be frivolous, and directed judgment for the plaintiff. There being no affidavit of merits, leave to answer was refused.


author: Sandford, J.

text:
    Hartwell v. Kingsley.
    Where a defendant moves to dissolve an injunction on his answer only, without replying upon affidavits in addition thereto; the plaintiff cannot read in opposition to* the motion, his reply Verified, or any affidavits other than those upon which the-injunction was granted.
    December, 1849.
    Motion to dissolve an injunction, made upon1 the sworn answer of the defendants.

      E. W. Stoughton, for the defendant,

      L. S. Ashley, for the plaintiff.
   Sandford, J.

The plaintiff seeks to read Ms reply duly verified, and sundry affidavits recently made, in opposition to- the-motion to dissolve the injunction which is founded upon the answer only. It is true the answer must be sworn, in order to1 move upon it; but it is nevertheless the answer, and the application to dissolve, is not made upon affidavits on the part of the-defendant, within the meaning of section 226 of the amended) code. The previous section shows clearly, that the answer is a document entirely distinct from the affidavits, upon which with) or without the answer, the motion to dissolve the injunction may be made. The answer cannot be used at all in support of the motion, unless it be verified; so that when the code here speaks of an answer, it means a sworn answer. The plaintiff therefore, by the express terms of the 226th section; is precluded from opposing the motion by affidavits or proofs in addition to those on which the injunction was granted.

         This point was so ruled by the whole court in March 1849, on an appeal froms an order at chambers, in the case of v. Barker. See to the same effect, ruled in the supreme court in this district by Hurlbut and Edwards, J. J., Servoss v. Stannard, 2 Code Reporter, 56.


text:
    Florence v. Bates.
    On a motion to show cause why an injunction should not issue, the defendant may read in opposition to the motion, the affidavits of third persons, although he has put in his answer denying the whole merits of the complaint. The answer in such case is only used as an affidavit.
    The rule adopted in Maryland, and some other states, that on a motion to dissolve an injunction, if the equity of the-case made by the bill is not denied, but new matter is set up in avoidance which is a complete defence to the action, the court cannot regard such new matter, but must continue the injunction to the hearing, has not been adopted in this state. Semble.

    St is also contrary to the practice in England, where a defendant is entitled to a dissolution of the injunction as a matter of course, upon the allowance of a plea to the whole bill. Semble.

    January, 1850.
    The facts of this case -are sufficiently -stated in the opinion.

      C. F. Grim, for the plaintiff.

      J. T. Brady and John Graham, for the defendants.
   Mason, J.

The plaintiff in this case brought his complaint for an injunction, to restrain the defendant from darkening his windows, by the erection of a building, and also from selling liquor on his premises, contrary to the covenants contained in an agreement made between the defendant and the assignor of -the plaintiff.

An ex parte application having been made to a justice at chambers, upon the matters stated in the complaint, he directed notice to be given to the defendant to show cause why the injunction prayed for should -not issue, and granted a temporary injunction in the mean time.

The defendant on the return -of the order, showed cause by his answer to the complaint, duly verified, and also by the affi-davits of several persons in support of the answer, and the motion has been argued at length by the respective counsel. The questions raised on -the argument were principally those of practice, some of which have never been, as far as I can discover, settled in this state.

The plaintiff’s counsel in the first place, objected to any affidavits being read in support of the answer. That objection, however, is overruled by the case of the Village of Seneca Falls v. Matthews, (10 Paige, 504,) in which the chancellor expressly held, that in a case like the present, upon an order to show cause why a preliminary injunction should not be granted, whether a temporary injunction is or is not allowed in the meantime, the defendant has a perfect right to introduce his own or any other affidavits for the purpose of showing that the injunction should not be granted as asked for, and that he may use such affidavits in a case of that kind, although he had put in his answer, denying the whole equity of the bill, or has neglected to answer the bill fully, so that his answer may be excepted to for insufficiency ; for the answer, he adds, in such a case is only used as an affidavit on the part of the defendant, in opposition to the complainant’s application.

The plaintiff’s counsel next insisted that he was entitled to the injunction, because the facts on which the equity of the bill rests were not denied by the answer, and contended that on this motion the court could not regard matter in avoidance, set up in the answer and supported by the affidavits, however conclusive such matter might be against the plaintiff’s right, but the defendant must continue under injunction until the hearing. And the cases cited by the counsel from Maryland, certainly support the proposition. In the Bellona Company's case, (3 Bland Ch. R. 442—445,) it is stated by the chancellor, to be “ a well established rule, that on a motion to dissolve an injunction, the ■ defendant can only ask for a dissolution, upon so much of his answer as is properly responsive to the bill; no new matter in avoidance, making its appearance for the first time, can in this stage of the cause, be allowed to form any part of the defendant’s motion for a dissolution. It is a direct and responsive denial of the facts composing that case, on which the plaintiff’s equity rests, which alone can entitle the defendant.” The same doctrine is held in other cases reported in the Maryland reports, and also in Linsey v. Etheridge, (1 Dev. & Battle’s R. 38.) With all due respect to these authorities, I confess myself so dull as not to see the force of their distinction. If a defendant in answer to a bill asking for an injunction against the violation of a covenant alleged to have been entered into by him, should deny that he executed the covenant, the injunction according to these cases would not be granted, or if granted, would be dissolved. If, however, he should admit that the covenant had been made, but should set up a release by the plaintiff, so that it was no longer in existence, the injunction must be granted, or if granted, continued till a final decree. What greater potency or virtue there is in an oath denying an allegation, than in an oath confessing and avoiding it, I cannot divine.

Such a doctrine has never, I believe, been held in this state. There is indeed a dictum to that effect by Chancellor Kent, in Minturn v. Seymour, (4 J. C. R. 499,) in which that eminent judge says of the answer in that case, that it endeavored to strengthen the defendant’s case by the introduction of new matter, and if the defence rested on such new matter, and had admitted the equity set forth in the bill, then according to the reason of the thing, and the general rule declared in Allen v. Crobroft, (Barnadiston Ch. R. 373,) the injunction ought to have been continued to the hearing. “ But in this case,” he added, “ the equity of the bill is denied.” The case from Barnadiston was cited on the argument of this motion, and fully bears out the position contended for. Chancellor Bland, in Simon v. Clagget, (3 Bland. Ch. R. 162,) remarked that he was inclined to believe that this very case had been mainly instrumental in establishing the rule in the court of chancery in Maryland. But he also remarked, that the rule was not mentioned in any English abridgment, digest, compilation or book other than that book, wherein the case referred to is reported, and he referred to Lord Manfield’s celebrated condemnation of the book, as reported in Zouch v. Woolston, (2 Burrows, 1142.) The reporter says “Lord Mansfield absolutely forbid the citing that book, for it would only be misleading the students to put them upon reading it. He said it was marvellous, however, to those who knew the Sergeant, and his manner of taking notes, that he should so often stumble upon what was right; but yet that there was not one case in his book which was so throughout.”

The case in Barnadiston is not only unsupported by any other English authority, but is also in opposition to the principles of the English decisions on this point.

Thus it is well settled in England, that if a plea to the whole bill be allowed, the plaintiff may move for a dissolution of the injunction, because a plea allowed is to be considered as a full answer. (Drewry on Injunctions, p. 411. 3 Daniel’s Pr.) But a plea allowed is an admission of the facts alleged by the plaintiff in his bill, and that they would be a sufficient foundation for a decree, but for the new matter set up in the plea. The defendant is not compelled, however, to wait until he has proved his plea; he is entitled to a dissolution of the injunction, as soon as the court have decided that the plea, if true, is a good defence to the action; and by parity of reasoning, if the defendant set sup his defence by answer instead of by plea, he is equally entitled to a dissolution of the injunction, or to prevent its being issued, upon the court being satisfied that the matter set up in the answer, if true, would constitute a good defence. Since then, we find the established rule with regard to pleas, to be such as I have stated, and the English authorities, with the single exception of the case from Barnardiston, make no mention or the distinction taken in the American cases above cited, between a simple denial of the case made by the bill and matter set up in the answer by way of avoidance ; I think I am justified in saying, that the rule contended for by the plaintiff, is without precedent in England, and he has failed to show any precedent in this state.

I shall, therefore, for the purposes of this motion, take into consideration the matters set up by way of avoidance of the complaint, in the answer and the accompanying affidavits. It will be perceived I have, in the examination of this question, considered the rule to be the same, whether the application is on the part of the plaintiff for an injunction, or on behalf of the defendant for the dissolution of one already granted. The same principles govern either mode of presenting the question.


text:
    Engle v. Bonneau.
    An execution may be returned in less than sixty days, and whenever returned unsatisfied, the creditor may proceed under section 292 of the code, without regard to the period it was in the sheriff’s hands.
    If the debtor show any fraud or collusion in omitting to levy on property, the court will take care the fraud is not effectuated.
    The execution must be actually returned by the sheriff, before the supplementary proceeding can be commenced.
    No costs to a defendant on this proceeding, on his procuring it to be dismissed, without an examination.
    Dec. 27, 1849.
    The defendant appeared pursuant to an order of one of the justices of the court, issued upon a proceeding supplementary to the return of an execution unsatisfied. The affidavit on which the order was obtained, stated that the sheriff had returned the execution. It was shown, however, that it had not been filed when the order was made. On this and several other grounds, the defendant moved to dismiss the proceedings with costs.

      Western and Coren, for the plaintiff.

      B. L. Billinge, for the defendant.
   Sandford, J.

It is objected that a party cannot proceed under section 292 of the code, until after the expiration of the sixty days during which an execution may run; although the execution be in fact returned unsatisfied and filed. This is insisted in analogy to the established practice on creditor’s bills in the late court of chancery. (3 Paige, 311.)

The code is consistent with the course pursued by the plaintiff here, who had his execution returned in thirty days after it was issued. I have advised with my associates, and my conclusion, I am authorized to say, is theirs also. We desire to establish a uniform practice on the subject, and we find that this course is sanctioned, both in the supreme court and the common pleas in this city. For the decisions in the supreme court we refer to 1 Code Reporter, 107, note.

It may, therefore, be deemed the established practice in this court, that whenever an execution has been regularly issued and returned unsatisfied, the creditor may proceed against the judgment debtor’s things in action, under section 292 of the code; without regard to the time during which the execution was in the hands of the sheriff. If collusion or fraud in making the return, or in omitting to levy upon property, be shown, the court will take care that the proceeding shall not be made an instrument to carry the fraud into effect.

The averment as to things in action, &c., expected to be reached by this examination, is one required by the practice of the court. It is not a statutory provision, and it may now be supplied by a supplementary affidavit.

There is, however, a fatal defect in the plaintiff’s proceedings, in the fact that the execution was not actually returned, until several days after the order for the defendant’s examination was made.

The order must be discharged, but without costs. The 301st section does not give the defendant costs in these cases, unless he has been examined.


text:
    Corlies v. Delaplaine.
    A motion to strike irrelevant or redundant matter out of a pleading, will not be granted, where the party before moving, answers or replies to such pleading.
    January 15, 1850.
    Motion to strike irrelevant matter out of an answer. It appeared that before moving, the plaintiff had replied to the answer.

      M. Porter, for the plaintiff.

      J. F. Delaplaine, Jr., for the defendant.
   Sandford, J.,

after advising with Oakley, Ch. J., and Paine, J., denied the motion, because the plaintiff had put in a reply before he gave notice of his application. He said it was deemed best to require the party to object promptly, to matter alleged to be redundant or irrelevant; and answering the pleading should be considered as a waiver of such objection.

Motion denied.


text:
    Droz v. Lakey and Pine.
    A party obtaining a verdict, is not bound to wait four days before entering and perfecting his judgment.
    The four days mentioned in the code, after which judgment becomes final, are intended to enable the losing party to obtain a stay of proceedings, in reference to a case.
    If he obtain an order staying proceedings within the four days, he may move to set aside the verdict as against evidence, notwithstanding the entry of the judgment,
    Jan. 19, 1850.
    Appeal from an order of a justice at chambers, denying a motion to set aside a judgment.
    In two days after a verdict for the defendants, they proceeded to enter and perfect judgment. The plaintiff desiring to move to set aside the verdict as against evidence, obtained an order to stay proceedings on the second day, but after the entry of judgment, and subsequently prepared a case.
    Insisting that judgment could not be perfected until the expiration of four days from the entry of the verdict, and of the direction of the court for judgment thereon, he moved to set aside the judgment as irregular. He contended that unless it were set aside, he could not make his motion for a new trial.

      B. F. Winslow, for the appellant,
    cited Amended Code, sections 264, 265, 269, 280,1281, 323; Graham’s Pr. 296, 336 to 338; 1 Wend. 31.

      W. E. Curtis, for the defendants,
    referred to section 220 of the original code, section 08-1 of the amended code, and 1 ©ode Reporter, 125;
   By the Court.

Upon the rendition of a verdict, the justice who tries the cause directs an entry of the judgment to he rendered thereon, unless he desires to consider the matter further. And judgment shall be entered by the clerk, in conformity to the verdict, which shall be final after the expiration of four days, unless there be an order reserving the case or staying the' proceedings-. (Amended Code, § 264, 265.). The clerk is to make up the- judgment roll immediately after entering the judgment. (Ib. § 281.) This is restricted in effect by the two days-previous notice required for the adjustment of the costs.

We think the intent of section 265, was not to delay the entry ■of the judgment, or its completion in form, until after the expiration of four days; but that a judgment so entered and completed, will become absolute and final, unless before the end of four days, the losing party shall obtain from the court or a justice, a stay of proceedings. If he desire to move for a new trial on the ground that the verdict is against evidence, he may obtain a stay for that purpose within the four days, and then move at special term on a case. If his motion be granted, the judgment never becomes final, and will be vacated of course. The defendants have been regular, and the plaintiff must be content with the order at chambers which preserves all his rights.

Appeal dismissed.


text:
    Anon.
   On an appeal from chambers, the court decided that on a motion to strike matter out of a pleading'as irrelevant, redundant or frivolous, it would be governed by the consideration whether it was in any way questionable as to the matter being good in point of law. If there were any reasonable doubt as to the matter being pertinent, the court should put the party to his demurrer. In respect of matter palpably redundant or frivolous, the court will strike it out of course,

January 26, 1850.


text:
    Ring v. Mott.
    The issuing of a commission to take the testimony of a witness out of the state, though usually directed, is not a matter of strict Tight.
    Where a commission is likely to produce great injury to the adverse party, terms •will be imposed, and in extreme cases it may be wholly refused.
    January 26, 1850.
    Appeal from an order at chambers, denying a motion of the plaintiff for a commission. The action was of an equitable -nature. A brother of the plaintiff, whose family resided in New York, and who was an officer of the customs here, left tiome for the island of Cuba in October, 1849, for the benefit of his ■health. Previous to his departure, the plaintiff proceeded to examine him conditionally, but the cross-examination, which was very long, had not been completed, when he was obliged •to leave.
    The commission was opposed, on the ground that the witness was a resident of the state • and because, as stated in affidavits, his cross-examination required the presence of numerous books of account and valuable vouchers, which it was impossible to send to Cuba and produce to him there ; and the omission to have the witness examined upon them, would be dangerous to the defendant’s rights.

      J. I. Ring and O. Hoffman, for the plaintiff.

      R. H. Bowne and W. C. Wetmore, for the defendant.
   By the Court.

The issuing of a commission is in the discretion of the -court It is usually done as of course, with or without a stay of proceedings, but it is not a matter of strict right. • The court must be governed in the exercise of its discretion, by what it is apparent will be the consequences'; and if it is evident that great injustice will be likely to ensue to the adverse party, it is far from being of course to grant it. In such a case, the court will either impose terms so as to preserve the rights of the adverse party, or will even refuse it, if no way for their protection can be devised.

       The cause stood over to enable the parties to make an arrangement,


text:
    Hill v. Muller.
    Where an answer to the allegations of the complaint or some of them, might subject the defendant to a criminal prosecution, he need not admit or deny such allegations on oath. He must put in a sworn answer, in which he may state, that by answering on oath the particular allegations specified, he may subject himself to a criminal prosecution; and as to- the residue of the complaint, he will answer in the usual manner. Such an answer will be deemed to put in issue the allegations of the complaint which the defendant excuses himself from answering.
    February, 1850.
    The facts sufficiently appear in the opinion of the court.
   Mason, J.

This is an action for assault and battery. The complaint is verified, and the plaintiff requires an answer under oath. The defendant applies for leave to put in an answer without oath, on the ground that an answer under oath might subject him to a criminal prosecution.

The 133d section of the code of 1848, required all pleadings to be verified by the oath of the party or his attorney, except where the party would be privileged from testifying to the same matter, in which ease the verification might be omitted; and it also declared that no pleading if verified, should be used in a criminal prosecution against the party as proof of a fact admitted or alleged in such pleading. If this section were still in force, the defendant would be excused from verifying his answer, since there is no rule better settled than that a witness cannot be compelled to criminate himself. The principle of the rule has also been incorporated in the constitution of 1846, which provides that no person shall be compelled in a criminal case to be a witness against himself. The constitution of 1821 contained a similar clause.

In the amended code, however, this protection to the rights of parties has not been inserted, and the counsel for the plaintiff insists that the legislature intended by this omission to compel a defendant in all cases to answer the specific allegations of the complaint, under oath, when the complaint had been sworn to, and that without regard to the question whether the answer would or would not criminate the party. If he is right in this position, it would be in the power of the plaintiff to deprive his adversary of the benefit of this most salutary rule. Such, however, could not have been the intention of the legislature; and we ought not so to interpret their meaning as to bring it in conflict with the terms or spirit of the constitution, if it is susceptible of a construction in harmony with both ; and we apprehend that the legislature did not intend to interfere in the least with the principle that a man cannot be obliged to criminate himself. That had been settled by higher authority. All they meant to say was, that a party who wishes to avail himself of such a defence, or rather excuse, must do so under the sanction of an oath. He is not precluded from saying that an answer to the whole or any particular allegation of the complaint may subject him to a criminal prosecution, but if he does offer that excuse, he must verify it by his oath. This would be in analogy to the doctrine of courts of equity, from whence many of the principles of pleading adopted in the code, are taken. It is the established rule in those courts, that answers and pleas, except in some few cases, must be verified by the oath of the party, unless the complainant expressly waives the oath; yet it has always been held, that a defendant could plead that an answer might subject him to a criminal prosecution, or might set up the same excuse in his answer. Such a plea or answer, however, does not deprive the plaintiff of the relief he asks ; its only effect is to put him upon proof of his case. The facts charged, on which he founds his claim, are considered as denied, precisely as if the defendant had put in an answer denying them specifically. Such was the rule as laid down by Lord Hardwicke, in Brownsword v. Edwards, (2 Ves. Sen. 243,) and such is the rule in England at the present day. (Beames’ Pleas in Equity, 267, &c.)

The defendant in this case, therefore, cannot put in an answer without oath, but he may state under oath, that an answer to the specific allegations of the complaint would, or might subject him to a criminal prosecution; and such statement, when verified as required by the code, is to be deemed as putting in issue all the allegations of the complaint, in the same manner and with the like effect as if they had been each of them denied by the defendant. If there are any allegations in the complaint which the defendant may safely answer, he must do so in the ordinary way.

Order accordingly, but without costs to either party.


author: Mason, J., (after advising with Duer and Campbell, J. J.) Maule, J.,

text:
    The Washington Bank of Westerly v. Palmer.
    A stockholder in an incorporated company, is not a party to the action, nor a person for whose immediate benefit it is prosecuted, within the meaning of section 399 of the code, and is therefore a competent witness in favor of the corporation.
    February, 1850.
    The facts are stated in the opinion of the court.
   Mason, J., (after advising with Duer and Campbell, J. J.)

The plaintiffs have examined under a commission issued in this cause, their president, cashier and notary. On their cross-examination, they each of them stated that they were stockholders in the bank. A motion is now made for a new commission to re-examine the same witnesses, upon the idea that they were incompetent by reason of interest, and that the objection upon that ground has been removed.

The 398th section of the code declares that no person offered as a witness shall be excluded by reason of his interest in the event of the action, The next section (§ 399,) is as follows: “ The last section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended, nor to any assignor of a thing in action assigned for the purpose of making him a witness,” and it is supposed or feared by the counsel for the plaintiff that the witnesses may be excluded under some one or other of the clauses of this 399th section.

Stockholders in a corporation are not in form parties to a suit brought in the name of the corporation, that is, they are not parties to the record, and are not individually liable for costs, nor are they individually entitled to receive the amount which may be recovered, as plaintiffs are. It was indeed held at one time by the supreme court of the United States, that for the purpose of determining the question of jurisdiction in suits brought by a corporation, they would so far consider the individual stockholders parties, as to take notice of the places of their residence, and that they would not entertain a suit by the corporation, if it could not have been maintained by all the individual stockholders. But this doctrine was overturned in the late case of the Louisville Rail Road Company v. Letson, 2 Howard U. S. R. 497, 554, in which, the court, after a very elaborate argument, distinctly say the corporators as individuals are not parties to a suit brought by a corporation, but parties having an interest in the result.

The only question then is, whether the individual stockholders can be said to be persons for whose immediate benefit the suit is prosecuted or defended. It cannot surely be a correct interpretation of this phrase “ immediate benefit,” to apply it to every person who would be pecuniarily affected by the result of the suit, for that would annul the preceding section, which admits as witnesses persons thus interested. A creditor of the plaintiff, whose debt would be paid out of the recovery, or a party interested in a fund which would be increased by the amount of the debt sued for, has an interest in the event of the suit, but the suit is not for the immediate benefit of such a person, because the money does not go directly into his hands as his property. Oh the other hand, a person to whom the debt in suit has been assigned, and who by virtue of the assignment would be entitled to receive it directlv from the debtor, is one' for whose immediate benefit the suit is prosecuted.

These sections of the code, are taken substantially from the British act of the 6th and 7th Victoria, commonly called Lord Denman’s act, and .the decisions under that act are in accordance with the views above expressed. Thus in Hart, administrator, v. Stephens, 6 Ad. & Ellis, N. S. 937, the plaintiff, administrator of a married woman, called the husband of the deceased, to prove admissions by the defendant of the debt within six years ; and it was held by the court that the husband was competent, notwithstanding his possible benefit from his wife’s estate. In the case of Hill v. Ketching, 3 Man. Grang. & Scott, 299, which was an action for broker’s commissions, the plaintiff called one Cramond as a witness, who stated on his voir dire, that he had no claim against the defendant, but in consequence of his having introduced the plaintiff to the defendant, tie should receive half the commission from the plaintiff, if he recovered," pursuant to an agreement with him to that effect, and the custom among brokers. It was therefore contended that the witness came precisely within the terms of the proviso in Lord Denman’s act, being a person in whose immediate and individual behalf the action was brought. The case was very fully argued, and carefully considered. All the judges delivered their opinion on this and the other points involved. Chief. Justice Tindal .said, “ if it had appeared that the plaintiff had made over to Cramond a moiety of the commission, then I should have said that Crammond was a person in whose immediate and individual behalf the action was in .part .brought, but that is not so. Cramond, though she claims a moiety of the commission under a separate and distinct agreement with the plaintiff, has no right to lay his hand upon any portion of the money to be recovered in this action.” •

. This remark applies with great force to the witnesses in the present case. They may have a right to dividends to be declared, out of the profits, if there shall be any, and those dividends may be increased by the amount which the plaintiff may recover in this suit, but they have no right to lay their hands on any portion of the money to be recovered.

Maule, J.,

observed that Cramond was no party to the contract with the defendant, and therefore could have no right to sue, and was not necessarily, nor could he be properly a party to the record. That the meaning of the proviso in the act was, that no person who is the formal party to the record shall' be called as a witness, nor any person who, though not the formal plaintiff, is yet substantially so. For instance, suppose a man assigns a bond, and sues the obligor on behalf of the assignee, the latter would be a person for whose immediate and individual behalf the action was brought, and therefore not an admissible witness.

These views appear to me to commend themselves as clear ahd sensible expositions of the act, and to apply with great force to the case before me; and I should have had no hesitation in saying that the witnesses examined under the commission in this cause were entirely competent, and that a second commission was useless, were it not that a directly contrary decision has been given at a general term of the supreme court held in Delaware county in June last, in the case of The President of the Bank of Ithaca v. Bean and others, (2 Code Reporter, 133.) The court there held that the stockholders compose the corporation, and that to say the suit is brought for the immediate benefit of the corporation, and not that of the stockholders, is making a distinction in a case where none is perceptible, and decided that the president of a bank, who is also a stockholder, is not a competent witness for the plaintiff. With all due respect for the learned judges who pronounced that decision, I cannot acquiesce in its correctness, or in the reasoning on which it was founded. But yet, upon this interlocutory motion, I do not think it proper to withhold from the plaintiff the opportunity of obviating objection, if he wishes to do so; and will therefore allow a second commission to issue upoe terms.

         The principle of this decision was affirmed by Duer, Mason, and Campbell, J. J., in Davies, &c., assignees of Wilder v. Crabtree and others, in the general, term, December, 1850. It was there decided that the assignor in a voluntary general assignment for the benefit of creditors, was a competent witness in a suit brought by his assignees. And see Bank of Charleston v. Emeric, and Erie R. R. Co. v. Cook, post.


author: Oakley, Ch. J.

text:
    Voss v. Fielden.
    Where sufficient time has elapsed, prima facie, to have obtained the return of & commission, issued with a stay of proceedings, the stay will be vacated on motion of the adverse party ; and on the cause being called for trial, the party taking; the commission must establish the grouuds for a further stay, if there be any, for the return of the commission.
    February 9, 1850.
    The facts appear in the decision, which was made by the Chief Justice, after advising with two of his associates.
   Oakley, Ch. J.

In October 1848, the defendant obtained a-commission, with a stay , of proceedings, to examine witnesses at Buenos Ayres. The plaintiff now moves for leave to proceed to-trial. By advices received in October last, there is reason to-think that some progress has been made in the examination; and affidavits are produced by the defendant, tending to show that there has been no unreasonable delay. The plaintiff claims that he ought to have an opportunity to meet the allegations in these-affidavits, and that the defendant ought to move for a further' stay.

On considering the matter, we think the rule ought to be, that the parties in a case like this have liberty to go to trial at the-next term. If the commission be not then returned, it will be-incumbent on the other party to apply for a further stay. This will give to the party desiring to go to trial, an opportunity to-answer the statements on which his adversary relies for continuing the stay of proceedings and obtaining further time to procure >the testimony.

Such will be the practice in future, where it appears that sufficient time, prima facie, has elapsed, for the execution and «return of the commission.


text:
    Cook v. Dickerson.
    The code of procedure has not repealed or altered the provisions of the revised statutes, prescribing the security and the terms on which injunctions may issue to stay proceedings at law.
    An injunction to stay an execution, at the suit of the defendant, granted without a deposit and bond, or an order of the court dispensing with the deposit, and allowing a bond in lieu of it and a bond executed accordingly, is irregular, and will be set aside.
    'The fraud in the recovery of the judgment, which will enable the court to dispense with a deposit and bond, is such a fraud as a false statement, a substitution of one paper for another, or the like. A failure to perform a promise or condition on which the judgment was given, is not such a fraud.
    Feb. 9, 1850.
    Dickerson recovered a judgment against Cook by confession, •and execution was issued and levied. Thereupon this complaint was filed to set aside the judgment and execution, on the ground of fraud, in this, that there was an agreement by D. that if C. would confess the judgment he, D., would cancel a certain mortgage held by him, and deliver up certain other securities to Geok. The complaint prayed for an injunction, application for which was made ex parte to one of the justices at chambers, and it was allowed by him, on the execution of a security by Cook in the form of an undertaking, as prescribed by the code. No bond was taken under the provisions of the revised statutes, «nor any deposit made of the amount of the judgment. A motion to set aside the injunction was subsequently made and granted at the special term, from which order Cook appealed.

      S. Sanxay, for the appellant.

      H. Brewster, for the respondent.
   By the Court.

The first question is whether the injunction was regular under the circumstances, and we are of opinion that it was not regularly granted, and the order setting it aside must be affirmed. The only security taken was under section 232 of the code; and the undertaking there provided, applies only where there is no provision by statute for other security.

The revised statutes, (2 R. S. 189, 190, § 141 to 149,) require, that before the issuing of an injunction to stay proceedings in a personal action after judgment, a deposit shall be made of the amount of the judgment, and a bond with sureties executed for the payment of the. damages and costs to the adverse party. Power was conferred on the chancellor,” to dispense with the deposit, and receive a sufficient bond for the amount of the judgment ; and when the ground óf the injunction is that the judgment was obtained by actual fraud, “ the chancellor” had power to dispense with both deposit and bond.

It is contended, on the part of Cook, that these provisions are' repealed by the code, and a new system substituted.

We think not. The code refers repeatedly to existing statutory provisions as to giving security on various proceedings. There is no inconsistency between the requirements of the revised statutes to which we have referred, and the undertaking to be given under the code in all cases of injunction. Both systems may work harmoniously together, and there is no reason for holding that the simple undertaking prescribed in the code, is a substitute for the well matured and important provisions of the former law on the subject.

As to the actual fraud alleged. It is true, that if the justice at chambers could not dispense with the security, and deposit on this ground, the court could do so when moved to dissolve or set aside the injunction. We have, therefore, looked into that matter. The statute does not mean the kind of fraud set up in this complaint, which is merely a breach of promise. It is complained that Dickerson has not performed what he agreed to do, if Cook would confess the judgment. The fraud meant, is such as substituting one paper for another, a false representation of facts, and the like. The statement made may be a good ground for the court to interfere to relieve Cook; but he must give the security according to the statute, and have relief on establishing a proper case for it.

Order affirmed, with leave to Cook to give security in ten days, according to the statute, in which event injunction to stand.