text:
    MARY E. HILL, Appellant, v. HUBERT O. THOMPSON, as Commissioner of Public Works of the City of New York, Respondent.

      Decided March 3, 1884.

      New York Oity.—Groton Aqueduct Department, rules and regulations as to distribution of water.

    The Commissioner of Public Works, in the exercise of a sound discretion may place a water-meter in any building, in the city of New York (except private dwellings), where water is furnished for business consumption, at the expense of the owner or occupants of such buildings; and this is so, though the' sole actual consumption of the water so supplied is for the uses of the employees, etc., in said building. The statutes conferring this discretionary power upon the Commissioner of Public Works are not unconstitutional.
    Tile Department of Public Works, and the Commissioner thereof, under the Laws of 1870, its successor ; the laws and rules and regulations in regard to water meters and rents for water ; and authority and power of the Commissioner of Public Works in the premises, considered by the court.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      This action was brought by the appellant to obtain an injunction to restrain respondent from placing a water-ureter upon the premises of appellant, known as Nos. 26, 28 and 30 Frankfort street, in the city of New York, and the issues in the case were tried at special term, which resulted in a judgment dismissing the complaint, and this appeal is from that judgment. The facts and the points of law in the case appear fully in the opinion of the judge at special term, referred to and approved by the court, of which the following is a copy:
    “This action is brought to obtain an injunction restraining the defendant, as Commissioner of Public Works of the city of New York, from placing a water-meter upon the premises of the plaintiff, known as Nos. 26, 28 and 30 Frankfort street in said city.
    “By chapter 224 of the Laws of 1842, The Mayor, &c., were authorized to organize a department with full powers for the management of the Croton Water Works and distribution of the Croton water. Pursuant to the authority thus conferred, the common council, on September 7, 1842, passed an ordinance to regulate the water works of said city of New York (Revised Ordinances of 1845, page 175).
    “By section 7, title 2 of these ordinances (page 177), the Croton Aqueduct Board was directed to fix from time to time the rate, of rents to be paid by the inhabitants for the use of water, and to prescribe rules and regulations relative to the collection of such rates, such rates and rules to be subject to the approval of the joint aqueduct committee of the common council.
    “ Chapter 383 of the Laws of 1849 gave legislative approval to the plan embodied in the ordinance of 1842, and created a Croton Aqueduct Department in the city of New York. The eighteenth section of the act (page 544) authorized the establishment of a scale of rents, to be called ‘ regular rents,’ apportioned to different classes of buildings in reference to their dimensions, values, exposure to fire, ordinary uses for dwellings, stores, shops, private stables and other common purposes, number of families or occupants, for consumption of water, as near as practicable, and authorized the local authorities to modify, alter and amend and increase such scale from time to time, and to extend it to other descriptions and establishments. It was provided that such ‘regular rents’ should become a charge and lien upon such houses and lost respectively. The nineteenth section of the act provided that hotels, factories, stables and livery stables and other buildings consuming extra quantities of water might, in addition to t£ie ‘ regular rents,’ be charged with additional rents, to be called ‘ extra rents.’ By section 27 (which was directed to be printed on the back of each permit) it was provided that the rules and restrictions for the use of the water printed on each permit should be notice to the water-takers, and should authorize the execution and recovery of any penalties which the Croton Aqueduct Board might impose, in addition to cutting off .the use of the water for violation of the rules.
    “Under this authority, the common council on May 1, 1850, passed an ordinance establishing the scale of water rents of the Croton Aqueduct Department. With some amendments, this ordinance, which may be found in the volume known as the Revised Ordinances of 1859, page 143 (see also Revised Ordinances of 1866, page 160), continued to be the scale of water rents in ETew York, in actual operation up to the year 1870. This ordinance with great detail prescribes various rates of charges for the several stores and kinds of buildings, and for the different classes of business that are specifically enumerated ; and it also provides that a charge of not less than one cent for 100 gallons shall be made to all manufacuring and other businesses requiring a large supply of water. All matters not specified in the ordinance, are, by it, reserved for special contract with the Croton Aqueduct Board.
    “Under this ordinance and the authority conferred thereby upon the Croton Aqueduct Board to make special charges for the use of water in cases where- no rates are fixed, the use of a water-meter was frequently resorted, to to determine the actual consumption of water, and to adjust the charge to be made or rent to be demanded therefor. In such cases the meter belonged to the city, and when the object of its use was accomplished it was returned to the city. The exercise of this right was recognized and approved by the courts, and the charge was held to be a rent and not a tax (Treadwell v. Van Schaick, 30 Barb. 444; Trustees of the Canon Street Baptist Church v. The Mayor, &c. of N. Y., 1 Hoffman?s Laws, 286).
    “The main difference between the so-called regular rent, depending upon the size, character and general use of a building, and the extra rent chargeable in the discretion of the Croton Aqueduct Board for extra consumption, was, that the first constituted a lien upon the land, while the payment of the latter could only be enforced by cutting off the supply of water.
    “By chapter 137 of the Laws of 1870, entitled 1 An act to reorganize the local government of the*city of New York,’ a department of public works was created, to which were transferred, among other things, all the powers and duties of the Croton Aqueduct Board. The head or chief officer of this department was directed to be known by the title of ‘ Commissioner of Public Works.’
    “By chapter 383 of the Laws of 1870, section 13, the Commissioner of Public Works was authorized, in his discretion, to cause water-meters of approved pattern and suitable for the purpose, to be designated by said Commissioner, to be placed in all stores, shops, hotels, manufactories, public edifices, at wharves, ferry houses, stables, and in all the places in which water is furnished for business consumption by the Department of Public Works, and all expenses for meters, their connections and setting, and water rates, were made a lien upon the premises supplied.
    “ By section 5 of chapter 574 of the Laws of 1871, it was provided—‘That the said Commissioner of Public Works shall, from time to time, establish scales of. rents for the supply of Croton water, which rents shall be collected in the manner now provided by law,’ This prevision was expressly saved from repeal by section 119 of the Charter of 1873 (chapter 335).
    “ The provisions of the Act of 1870 were, with some modifications, incorporated into the Charter of 1873, the seventy-third section of which provides as follows : ‘. . . . The Commissioner of Public Works is hereby authorized in his discretion to cause water-meters, the pattern and price of which shall be approved by the Mayor, Comptroller and Chief Engineer of the Croton Aqueduct, to. be placed in all stores, workshops, hotels, manufactories, public edifices, at wharves, ferry house's, stables, and in all the places in wThich water is furnished for business consumption by the Department of Public Works, except private dwellings, so that all water so furnished therein or thereat may be measured and known by the said department, and for the purpose of ascertaining the ratable portion which consumers of water should pay for the water therein or thereat received and used. Thereafter, as shall be determined by the Commissioner of Public Works, the said department shall make out all bills and charges for water furnished by them to each and every consumer, as aforesaid, to whose consumption a meter as aforesaid is affixed, in ratable proportion to the water consumed, as ascertained by the meter on his or her premises or places occupied or used as aforesaid. All expenses of meters, their connections and settings, water rates and other law ful charges for the supply of Croton water, shall be a lien upon the premises where such water is supplied as now provided by law. . . .’
    “ The provisions of chapter 383 of the Laws of 1870, and of chapter 335 of the Laws of 1873, contain the only specific expression of the legislative will upon the subject of water-meters, but they are not necessarily inconsistent with the existence of the power to place meters, exercised by the Croton Aqueduct Board prior to 1870, except so far as private dwellings are concerned. The object and effect of the statute of 1873 was not, therefore, to confer a new right to attach water-meters to the supply pipes'of the buildings where water was consumed, for that right had been previously exercised for many years with the approval of the courts. Its purpose is, as was the purpose of the statute of 1870, to compel the water taker to bear the expense of the introduction of a meter, and to make such expense and the charge for extra consumption a lien upon the land. The question as to whether or not the water takers are using the water in such quantities that the ordinary rate insufficiently remunerates the city, is left for the decision of the Commissioner of Public Works in the exercise of his sound discretion, the only limits upon the exercise of that discretion being that the pattern and price of the meters to be used should be approved by the Mayor, Comptroller, and Chief Engineer of the Croton Aqueduct, and that no meter should be placed in a private dwelling.
    “ The language of the statute of 1873 is plainly applicable to the premises of the plaintiff. The buildings thereon are four stories in height and are used as stores, workshops and manufactories. Among the tenants are lithographers, a woodcut printer, a printer of newspaper envelopes, a composing printer, a book publisher, a printing ink storekeeper, a rubber and leather storekeeper, &c.
    “ It is contended, however, that nevertheless the statute does not apply, because all the water used by these tenants for business purposes, comes from a tank on the fourth floor, which is supplied with well water by an engine on adjacent premises, because the Croton water used is used only for the purpose of drinking and washing hands, and because the value of the whole quantity of Croton water thus actually consumed does not, according to the established rates, come up to the regular rate imposed upon the buildings as such, and payable in any event. In other words, the claim is that the Legislature intended to give to the Commissioner the power to place meters in stores, workshops, &c., only when the water supplied to them is furnished for business consumption. Such a meaning cannot be given to the language of the statute, if regard is had to the ordinary rules of grammatical construction. Nor do the rules of statutory construction permit it. The sentence in question, which is plain of comprehension as it stands, would have to be subjected to alterations and additions before it could be made to convey the meaning which the plaintiff desires it should have. Such additions, for instance, would be the words, ‘that is to say,’ to be inserted after the word ‘stables,’ or the word ‘other,’ to be inserted before ‘ places.’ Besides, the adoption of the meaning contended for by the plaintiff, would lead to absurdities in the practical enforcement of the statute.
    “Irrespective, therefore, of the question of actual consumption of Croton water for business purposes, the Commissioner of Public Works, in the exercise of a sound discretion, may place a meter in any building other than a private dwelling, which falls within one of the classes of buildings enumerated in the statute, and the occupants of which have it within their power to use more water than the regular or building rate covers. Within these limits no court have a right to interfere with or control the exercise of his discretionary power by substituting its own judgment for his. It is only when its interference is necessary to prevent abuse, injustice, or oppression, the violation of a trust or the consummation of a fraud, that a court of equity has power to review the exercise of discretionary power vested by law in a public officer (Davis v. The Mayor, &c. of N. Y., 1 Duer, 498 ; affirmed as The People, &c. v. Sturtevant, 9 JSt. T. 263).
    “ The case at bar presents no such exceptionable feature. The fact that the tenants are restricted by the plaintiff in their use of the Croton water is not enough. This is no guaranty to the city that they will always respect the restriction. The power and the temptation to use the Croton water in the course of their business exist, and the Commissioner of Public Works is not to be expected to provide and maintain an efficient system of espionage or regular inspection at short intervals to prevent them from making the most of the opportunity. It is the office of the water-meter to prevent such a result.
    “ True, no deduction will be made from the regular rate if the quantity of water consumed, as shown by the meter, should amount, at meter rates, to a smaller rate. But if it should amount to a larger sum, the regular rate will be deducted. At any rate, if the plaintiff will be as vigilant hereafter as she is at present to enforce the restriction imposed upon her tenants, she will suffer no loss from the introduction of the meter.
    “Nor is there anything in the danger apprehended from a bursting of the meter. The cost of properly protecting the meter against frost is very slight, and if properly protected it will no more burst in cold weather than the lead pipe through which the water flows into the building. "In the two instances given by the plumbers- called by the plaintiff where meters did burst, it appeared that no precaution had been taken to prevent such an accident. Other grounds have been urged, and especially the change wrought in the drainage facilities of the premises by the erection of the Brooklyn Bridge. 1 have duly considered them all, but fail to find in them any reason which would justify an interference with the discretion lodged by law in the Commissioner. The constitutional objections urged against the statute conferring this discretionary power upon the Commissioner are clearly untenable. The statute is in the nature of a police regulation. 1't-s object is not only to save money or secure revenue to the city, but also to enhance the comfort and convenience of its citizens in general and to afford better means of protection for their property. Laws and ordinances relating to the comfort, health, convenience, good order and general welfare of the inhabitants, are comprehensively styled police laws, and it is well settled that laws and regulations of this character, though they may disturb the enjoyment of individual rights, are not unconstitutional though no provision is made for compensation for such disturbances.”

      John J. Hill, for appellant.

      E. Henry Lacombe and Arthur E. Hasten, for respondent.
   By the Court.—Sedgwick, Ch. J.

The word “furnished” in the clause named “in which water is furnished for business consumption” does not embrace the idea of use. It means provided or offered for use. The word consumption refers to use. The clause means “in which water is provided for use, in business.” Water, when used in a business, must be used through the agency of some person engaged in the business. The statute does not discriminate between the business uses as to quantity or purpose. If, for any purpose, persons employed in the business, use the water, it is a business consumption. If water is used for the business, in the same methods and to the same extent as it is generally by a family in a dwelling, nevertheless the former is a business use.

It may be that the statute intends to accomplish a certain purpose by directions as to matters which will sub-serve that purpose with certainty, although some of these matters by themselves, it may be imagined would not have called for legislative direction. The object may have been to secure a certain compensation for water used in large quantities in business, but it being difficult to discriminate between such conditions as in the present would or would not show what quantity would be used in the future, the direction was that when the place was devoted to business, a water-meter might be placed to measure such water as could in fact be used.

I therefore think, that if the words water furnished for business consumption qualified stores, shops, &c., the plaintiff’s stores would be within the section. I think, there is no such qualification, because, if there were such an intention, the general clause would have covered the preceding particulars, and there would have been no need of specification.

The plaintiff is not obliged to have any pipes to furnish water in her premises. Whether or not she shall take it rests in her will. If she choose not to have pipes, the defendant cannot place in her premises a meter and cannot subject her building to the danger of the meter leaking or bursting, or to the expense of the meter being a lien upon the real estate. If she chose to take the benefit to any extent, under the statute, the benefit must be taken, in the form and with the limitations prescribed by the statute. As the consequences are such as she voluntarily assumes, if she allow the water to be furnished at all, there is no ground for arguing that the statute that gives the defendant certain powers or gives a lien for the expense of the meter is unconstitutional, or that damage to the premises are to be apprehended from the meter.

This case and its facts and points were so fully discussed by Judge Freedman in his opinion, now approved, that it is not necessary to proceed further.

The judgment is affirmed, with costs.

Truax and O’Gorman, JJ., concurred.


source: Caselaw Access Project

author: By the Court.—Sedgwick, Ch. J.

license: Public Domain

text:
    WILLIAM T. RYLE, Respondent, v. WILLIAM P. BROWN, Appellant.

      Decided March 3, 1884.

      Promissory notes, fraud in incurring debt evidenced thereby.—Ownership in plaintiff of notes, sufficient to maintain action.

    The ownership, of promissory notes in the plaintiff, where the debts evidenced thereby were incurred by the fraud of the maker, the defendant, is sufficient to sustain an action brought under § 549 of the Code of Civil Procedure, to recover damages for the fraud of the defendant in the creation of the indebtedness for which the notes were given ; provided, as in this case, the plaintiff alleges and proves the fraud of the defendant in the inception of the original debt.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal by defendant from judgment entered on verdict of jury, and from order denying his motion for a new trial made upon the judges minutes.
    The action was upon certain promissory notes of defendant, the complaint alleging that the debts evidenced by them were incurred by the fraud of defendant.
    The facts appear further in the opinion.

      Vanderpoel, Green & Cuming, for appellant.

      Preston Stevenson, for respondent.
   By the Court.—Sedgwick, Ch. J.

The first objection to the recovery, is, that this cause of action was never assigned to the plaintiff. Certain goods were obtained from the father of the plaintiff by the defendant by false representations as their jury has found. Shortly after the goods were so obtained, the defendant gave the notes, on which this action is brought. The plaintiff’s father died and his executrix assigned by writing certain things to the plaintiff. There is no doubt that the notes were assigned. If it were important tó be determined, it is doubtful whether the cause of action for damages was assigned by reason of the promissory note being transferred, unless it is within the clause, and all the property of every nature and description which belonged to said William Ryle, deceased, and which were used, employed or invested by said William Ryle, now deceased, in and about his business, of the purchase and sale, and manufacturer of silk and silk goods, &c.” It may be doubted whether this cause of action for damages was ever used, employed or invested in the btisiness.

The matter is not pertinent, for the plaintiff’s ownership of the notes is sufficient to sustain this action, provided he alleges and proves, as he has, that the debts evidenced by the notes were incurred by the fraud of the defendant (§ 549, Code Civ. Pro.).

There is another suggestion, that in purchasing the goods originally there was a distinct and definite debt created. That if afterwards these notes were given by an arrangement subsequent to the sale, it could not be sensibly claimed that the giving of these notes were for any fraudulent purpose, or that there was fraud in making them. There is no basis of fact for this argument to rest upon, for it cannot be held on the testimony as matter of law that the giving of the notes was not provided for in the original bargain.

The plaintiff was allowed to give in evidence another statement than that made to the plaintiff’s assignor by defendant of his property and debts. It was in writing. It was objected to as not being contemporaneous in such a sense as to justify its being admitted as evidence. The date of the statement was September 3, 1880, and of the present transaction, March, 1881. The former statement was allowed to remain in the hands of his brokers for the purpose of being used by them in selling his notes down to the time of his insolvency. In this way it was a question for the jury, whether it was not a continuous statement from him, so long as it remained in his broker’s hands.

The defendant when on the stand as a witness, was asked whether he still had charge of the operation of the machinery, formerly owned by him, for his assignee. There was no ground for the exclusion of this question. It was no more than asking on cross-examination the business or employment of a witness.

The conveyances to and from Mr. Brower were relevant, as tending to show the legal ownership of property, that the defendant represented to be his own.

The request, which implied that in order to recover in • the action, the plaintiff must satisfy the jury, that his assignor parted with the goods solely upon defendant’s representation, was properly 'denied. It would be enough if the plaintiff satisfied the jury, that the goods would not have been parted with unless the defendant had made the false representations.

Judgment affirmed with costs, and order appealed from affirmed, with $10 costs.

O’Gorman, J., concurred.


author: By the Court.—O’Gorman, J.

text:
    DAVID C. CARLETON, Appellant, v. THE MAYOR, ETC., OF NEW YORK, Impleaded with THOMAS DARCY, Respondents.

      Decided March 3, 1884.

      Ejectment —writ of possession.

    Judgment having been rendered for plaintiff in an action of ejectment, he went into possession of the premises thereunder, and said judgment was affirmed by the general term. Thereafter the court of appeals reversed said judgment aud ordered that the complaint be dismissed and said judgment was subsequently made the judgment of this court, but no provision for restitution was made therein.

      Held, that it was within the general powers of the court at special term to issue a writ of possession to render said judgment effectual.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
    There are two appeals in this action, both by plaintiff, one from an order of this court, made at special term, February 21, 1883, that a writ of possession issue directing the sheriff of New York county to deliver to the defendants, the mayor, &c., the possession of the premises the right to which is in controversy in this action ; and the other from an order of this court made at special term, April 2, 1888, denying plaintiff’s motion to vacate the above mentioned order, and to stay all proceedings under it.
    A motion by plaintiff to vacate the judgment and for a new trial, was granted upon payment of costs within ten days. Further facts appear in the opinion.

      H. B. Philbrook and Erastus Cooke, for appellant.
    I. If the plaintiff was entitled to a new trial and the vacation of the judgment, the defendants could not be entitled to a writ of possesion, or what would vacate or defeat the effect and intention of such order.
    II. The defendants asked for no writ of possession. Their motions were only to amend the order on the remittitur that they might have such a writ in case the motion was denied.
    III. —The remittitur did not order a writ of restitution on the delivery of the possession. This could only be done by the court of appeals or the general term of this court, under the Code. The special term had not the right to do it.
    Nor could the special term enlarge Judge Freedman’s order, made six years before, opening the default and allowing the city to answer. The city obtained on that motion all that it asked and all the court intended to give, and the defendants, the mayor, &c., acquiesced in the order and proceeded to trial under it. It is doing a great deal to defeat the plaintiff’s fight to a new trial and the advantages the law and court had given him, to give the defendants the possession of the property on the ground that Justice Freedman, in making the order, might have done so, six years before; and this without the defendants asking for it.
    As a question of law, it is in reality settled by the decisions of the court of appeals in Young v. Bush, 18 Abbott, 171, and in Marvin v. Brewster Iron Mining Co., 56 N. Y. 671. The special term had no right to grant the writs.
    IV. Generally, where a judgment which has been executed, is afterwards ‘reversed or set aside, the court will order restitution. In the case of a new trial in ejectment, however, the statute establishes a different rule. 2 R. S. 310, § 41. Vacáting the judgment under this statute shall not in any way affect the possession obtained under the judgment. But the defendant’s right to a writ of possession depends upon his having a judgment.
    Then, according to the rule claimed by the respondents, if the defendant had been put into possession under his judgment, the vacating of that judgment would entitle plaintiff to restitution—which would leave him where section 41 placed him, until final judgment under the new trial. As this case stands, however, there is nothing to restore. The plaintiff remains in possession under his first recovery, which possession, the statute says, shall not be disturbed except under a judgment in favor of the defendant. Such a judgment does not exist.

      George Andrews, corporation counsel, and T. B, Clarkson, for respondents.
    There can be no doubt that after the judgment of the court of appeals was made the judgment of this court, these defendants were entitled to be restored to the possession of the premises. Plaintiff had obtained possession of the premises by the process of this court, issued upon his judgment by default obtained September 26, 3876. That judgment had been vacated by this court on the default being opened in March, 1877, yet, by force of the statute, he still held possession (R. S. part 3, chapter 5, title 1, § 37) [41], Then followed the judgment of this court of December 30, 1880. When this judgment was reversed and the plaintiff’s complaint was dismissed, plaintiff’s possession had nothing but the statute to stand on. The judgments of the court, by which he held possession, were gone. One was vacated, the other reversed. But this same section 37 [41] provides that “if the defendant recover in any new trial hereby authorized” (that is, authorized by that title), “he shall be entitled to a writ of possession in the same manner as if he was plaintiff.” It was under this section that defendants were granted the order appealed from. Plaintiff had obtained possession under a judgment by default. A new trial was granted under section 34 [38] of the above chapter and title of the Revised Statutes. On this new trial a verdict was rendered, on which this court directed that the plaintiff have judgment. But the court of appeals reversed this judgment, it said in effect that the judgment ought to have been for the defendants, and judgment was accordingly entered for them, dismissing plaintiff’s complaint—turning him out of court as having no cause of action. The defendants, therefore, have recovered in a new trial mentioned in said section 37 [41], and are entitled to the writ of possession authorized by the order appealed from.
    Plaintiff opposed defendants’ application on the ground that he applied for a new trial. But that was no defense to plaintiff’s motion. As the matter stood at the time the motion was argued, no new trial had been granted, and the defendants were entitled under the statute to their order. This court, on appeal, is to decide whether the order appealed from was, at the time it wras made, a proper one. It cannot take into consideration what has occurred since. But even if this court can take into "consideration the fact that a mew trial has been granted to plaintiff, that is no ground for reversing this order. The same section 37 [41] is the only statute on which plaintiff can base his right to retain possession. The plaintiff did take possession of the premises by virtue of a recovery in ejectment—that is, under his judgment obtained by default on September 26, 1876. On application of defendants, a new trial was then granted under the title and chapter of the Revised Statutes heretofore referred to, but the plaintiff still held possession. We claim, then, that the law was exhausted. On this new trial plaintiffs obtained judgment, and they are entitled to their writ of possession. The first part of the section has been complied with, and its office is ended. The last clause now comes into force, and its command is peremptory.
    Respondents call the attention of the court to the form of writ- found in Burrill’s Appendix (2d edition, p. 589, § 1159). This form is changeable to suit either of two cases: 1st. “Because that” (the original) “writ did wrongfully, unadvisedly and erroneously issue;” 2d. “Because the judgment upon which that” (the original) “ writ did issue hath since that time been wholly reversed, annulled,” etc.
    The court possesses the power, when its judgment is reversed or when in any manner it acquires knowledge that its writ of possession did wrongfully issue, to issue a writ of restitution. A judgment is not necessary to support a writ of restitution. The order of the court, made on its acquiring knowledge that its former writ was improperly issued, is a sufficient basis. This not only has long been the law, as appears from the standard authority referred to, but it is- now enacted in the Code of Civil Procedure (§ 1323), that “where a final judgment or order, is reversed .... upon appeal, .... the general term of the same court .... may make or compel restitution.....”

      Respondents, therefore, claim that under section 37 [41] of the statute before referred to„ they are entitled to the writ of possession ; but that if the court should feel any doubt on the point, under respondents’ original application, wherein they asked for other relief, this general term may modify Judge Ingraham’s order so as to give respondents an order under section 1323 of the Code of Civil Procedure, that plaintiff restore to the mayor, &c., the possession of the premises within a given time. Then, in case of refusal, plaintiff can be punished for contempt or a precept may issue to the sheriff.
    But whether respondents are to have any relief, depends on the construction and effect the court shall give to section 37 [41], If the court shall decide that plaintiff, having taken possession of the premises by virtue of a recovery in ejectment and retaining possession, notwithstanding that judgment was vacated on application of defendants,—that now when defendants have recovered in a new trial authorized by section 34 [38], he can still retain possession by merely getting the judgment against him and in favor of defendants vacated, then these defendants are not etitled to the relief demanded. But if the court shall give effect to every part of said section 37 these defendants are entitled to some relief.
   By the Court.—O’Gorman, J.

After some preliminary litigation of this action, not necessary to be now considered, a verdict was, on June 9,1879, rendered herein by a jury in favor of the plaintiff on trial of an issue of fact establishing the plaintiff’s title to a certain lot of land in 120th street in the city New York, subject to the opinion of this court at general term. Afterwards on December 30, 1880, the general term ordered judgment in favor of the plaintiff for the recovery of the said lot and for costs. The mayor, etc., of New York appealed therefrom to the court of appeals ; and the court of appeals, on or about the 15th of December, 1882, reversed said judgment, and ordered that the plaintiff’s complaint be dismissed with costs. On the 3d day of January, 1883, the judgment of the court of appeals was made the judgment of this court.

The plaintiff gave notice of a motion to be heard at the special term of this court on January 18,1883, for an order vacating the said judgment and for a new trial of the action, under section 1525 of the Code of Civil Procedure. The mayor, etc., also noticed a motion to be heard at special term on the same day, for an order that said judgment of the court of appeals, and also the judgment of this court entered thereon, should be amended, so as to award to the defendant, the mayor, etc., restitution of the premises. These motions were heard together, and on the 21st day of February, 1883, an order of the special term was entered (Ingraham, J.), that a writ of possession issue to the sheriff, etc., directing the delivery to the defendants, the mayor, etc. of the possession of said 'premises. From this order the plaintiff has appealed.

The plaintiff argues that on the judgment of this court, as it now stands, there is no authority for such an order, because the judgment as entered does not in terms provide for the issuing of a writ of possession. The only claim which plaintiff can set up to the right of possession of the lot in question, depends oh the judgment in his favor obtained on and before June 9, 1879, and the judgment of the general term of December 30, 1880, affirming the same. But these judgments were reversed by the court of appeals on December 15,1882, and thereupon ceased to have any force or vitality. The case stood as if they had never existed.

If it had been in terms provided in the judgment of the court of appeals, that the defendants, the mayor, etc., should recover possession of the lot, and that a writ of possession should issue against the plaintiff therefor, no question as to the propriety of that step by this court could well have arisen. But notwithstanding the absence of these words in the judgment, the power to issue the writ of possession, is a consequence of the judgment, and existed, in my opinion, in the special term, in order to carry out the necessary logical effect of the judgment, and revder it effectual.

The order of February 21,1883, directing the issue of a writ of possession of the premises in question, to the mayor, etc., as landlord of the defendant Darcy, appealed from by the plaintiff, is, therefore, affirmed, without costs.

As to -the order of the special term, granting a new trial, that question was disposed of by the decision of this court made on May 9, 1883.

Sedgwick, Ch. J., and Freedman, J., concurred.


author: By the Court.—Ingraham, J.

text:
    CHRISTOPHER B. KEOGH, et al., Respondents, v. STEPHEN A. MAIN, Appellant, and THOMAS MULRY, et al., Respondents.

      Decided March 3, 1884.

      Mechanics' liens—acts 1880 and 1875.—Verification.

    The mechanics’ lien law of 1875 was not repealed by Laws 1880, ch. 486, and still remains applicable to the city of New York.
    Accordingly a verification under the general law of 1880, “ that the statements therein contained are true to the best of his linowlege, information and belief,” not being in accordance with the form prescribed by the Law of 1875, the claim so verified gives no lien.
    The statute of 1875 requires that the verification shall be true to the knowledge of the person making the same, and a verification that “the same is true to the best-of his own knowledge,” is insufficient and confers no lien.
    Before Sedgwick, Ch. J., and Ingraham, J.
    Appeal by defendant Main from judgment in favor of plaintiff and defendants Mulry, foreclosing certain mechanics’ liens, on property of the defendant Main, in the city of New York.
    The facts are stated in the opinion.

      Jones, Roosevelt & Carley, for appellant.
    I. The notices are not verified as required by the statute of 1880. It is an essential perequisite to the creation of the lien that the notice should in its statements comply with the requirements of the statute (Beals v. Congregation B’Nai Jeshurun, 1 E. D. S. 654; Fogarty v. Wick, 8 Daly, 166), and be verified as required by the statute (Conklin v. Wood, 3 E. D. S. 662). But the act of 1880, under which the liens are claimed, does not apply to the city of New York, and for this reason there can be no recovery in this action. The plaintiffs and the defendants base their right to a judgment of foreclosure and for sale on the sole ground that they have acquired a lien under said statute. This act does not apply to the city of New York (McKenna v. Edmundstone, 14 Weekly Dig. 494 ; aff’d 91 N. Y. 231; see also Whipple v. Christian, 80 Id. 523). It is needless to say that no lien having been acquired, the court had no power to decree foreclosure and sale. There is no lien to foreclose (Conkright v. Thomson, 1 E. D. S. 662).
    II. The respondents cannot be permitted to claim that though they failed to obtain a lien under the statutes of 1880, they proved a state of facts upon which the court could adjudge that under and by virtue of the notice filed, they acquired a lien under another and different statute. The issue tendered and tried, was whether a lien was acquired under the statute of 1880. No amendment of the pleadings was made or even asked for, and no such amendment should be allowed now. The notice of lien is not amendable (Beals v. Congregation B’Nai Jeshurun, 1 E. D. S. 654-658).
    III. But the notices were insufficient to create a lien under the Act of 1875. By the statute “the verification must be to the effect that the statements are true to the knowledge of the person making the same.” In the case of the plaintiffs, the verification is that the statements are true to the best of his (the deponent’s) knowledge, information and belief. And in the case of the defendants Mulry, it is “that he has read the said notice and knows the contents thereof, and that the same is true to the best of of his (the deponent’s) own knowledge.” It does not even appear from anything contained in the verification that either of the persons making the affidavit had any knowledge in respect to the truth of the statements in the notice. It could have been made in the form in which it was made by a stranger, and he not have been convicted of perjury if every statement in the notice was false. A notice improperly verified is void (Conklin v. Wood, 3 E. D. S. 662). Omitting the latter part, the ,form of verification prescribed be the Code is almost identical with the form of verification prescribed by the Mechanics’ Lien Law of 1875 (§5, ch. 379, Laws 1875). It has been invariably held that a verification to the best of a person’s knowledge, or in any other form than that the same is true to the knowledge of the person making the same (excepting, of course, where-it only purports to be on information, etc., as authorized by the Code), amounts to no verification at all (Van Horne v. Montgomery, 5 How. Pr. 238; Williams v. Riel, 11 Id. 374; Tibballs v. Selfridge, 12 Id. 64 ; Sexauer v. Boner, 10 Abb. Pr. N. S. 335). A notice of lien which is not properly verified is void, and furnishes no foundation for a judgment (Conklin v. Wood, 3 E. D. S. 662; Hollagan v. Herbert, 2 Daly, 253; Kechler v. Stumme, 36 Super. Ct. 337).

      Robert P. Harlan and Everett D. Barlow, for plaintiffs, respondents.

      William P. Mulry, for respondent Mulry.
   By the Court.—Ingraham, J.

This is an action to foreclose a mechanics’ lien on premises No. 23 West Twenty-third street, in the City of New York, owned by defendant Main.

The court ordered that the premises in question be sold, and directed that from the proceeds, after paying the costs, the referee pay to plaintiff the amount of a mechanics’ lien ; and second, to pay to the defendants, Thomas Mulry and Thomas M. Mulry, the amount of a mechanics’ lien filed by them, and from this judgment, defendant Main appealed.

Plaintiff’s lien was filed and verified under chapter 486 of the Laws of 1880, and was not verified in accordance with the provisions of chapter 379 of the Laws of 1875. Section 5 of that act requires that the claim must be verified by the oath of himself, or of one of several united in interest, or of some other person. The verification must be to the effect that the statements contained in the claim are “true to the knowledge of the person making the same.” The verification to the plaintiff’s lien is “ that the statements therein contained are true to the best of his” (deponent’s) “knewlledge, information and belief.” This is clearly insufficient under the statute of 1875, and as there was no claim filed and verified as required by the statute of 1875, plaintiff could have no lien on the premises under that statute (Fogarty v. Wick, 8 Daly, 166 ; Conklin v. Wood, 3 E. D. S. 662).

In McKenna v. Edmondstone (91 N. Y. 231), the court of appeals held that the mechanics’ lien lay of 1875 was not repealed by chapter 486 of the Laws of 1880, but that the act of 1875 was in force in the city of New York ; and in Childs v. Bostwick (62 How. Pr. 146) the general term of the court of common pleas held a lien verified as in this case was insufficient and failed to give a valid lien.

The verification of the claim filed by the defendants, Thomas Mulry and son, is also defective. The statute requires that the verification should be true to the knowledge of the person making the same. The verification is, that “the same is true to the best of his own knowledge.” It may be true to the best of the knowledge of the person verifying the claim, and at the same time such person have no actual knowledge of any of the facts stated in the claim.

The legislature has provided that the claim must be verified by a person who has knowledge of the facts stated. Without the filing of a claim -so verified, there is no provision of law which gives a lien, and the person filing such claim has no lien on the premises (Fogarty v. Wick, 8 Daly, 166).

It follows, therefore, that the judgment should be reversed, and a new trial ordered, with costs to abide the event.

Sedgwick, Ch. J., concurred.


author: Per Curiam.

text:
    FRANKLIN MARSH, Respondent, v. JOHN H. MASTERSON, Appellant.

      Decided March 3, 1884.

      Bes adjudieata.—Action for copartnership accounting.—Action at law for balance due.

    The complaint alleged an agreement between plaintiff and defendant, whereby the plaintiff, in consideration of certain services to be rendered by him in defendant’s business, was to be paid on half of the profits thereof, after making certain deductions, and it stated the amount of said profits and of said deductions, and demanded judgment for the balance. The answer set up as a defense in bar, a judgment in a former action brought by plaintiff against defendant to recover the same profits upon an allegation of copartnership, in which former action a judgment of dissolution and an accounting was asked by plaintiff. It appeared that the proof in the two actions was identical, except that in the present action no reference was made to a copartnership, and the referee in this action found that the proof in the former action sustained the allegations of the complaint herein. Upon a trial of the first action, judgment was entered; which, after reciting the finding of the referee that there was no copartnership, dismissed the complaint.

      Held, that said judgment was not a bar to the present action ; that the present cause of action was not litigated in said former action, and could not have been without an amendment of the complaint, which would not have been proper, and which, in any event, plaintiff was not bound to ask for.
    Before Sedgwick, Truax and O’Gorman, JJ.
    Appeal by defendant from judgment entered on the report of a referee.
    The action was for the recovery of an amount equal to half of the profits of a business done by the defendant as a builder, as compensation to plaintiff, for his services under a special agreement with the defendant.
    The facts appear in-the opinion.

      Wheeler H. Peckham, for appellant.
    In the complaint in the former case, the plaintiff alleged that he was entitled to half the profits of a certain business, and asked to have them ascertained and paid to him. In the complaint in the present suit, it appears that he alleges that he is entitled to the same half of the same profits of the same business—but he alleges that they amount to a certain sum, and asks to recover such sum. Both suits are brought on the same contract. Plaintiff in one suit calls that contract a contract of partnership, and in the other a contract for hiring; but in each suit the contract sued-on is the one which was made on the 6th May, 1872, in the conversation between plaintiff and defendant. Whether this- contract is called one of partnership or of hiring is unimportant. It is the one contract sued on in both suits. There is, then, absolute identity in the contract and the breach which form the subject matter of the two suits, the only difference is in the name which the plaintiff chooses to give to the contract, and in the form of the remedy asked. The prayer, however, is of no consequence; for, where there is an answer, any relief may be granted consistent with the case made. For instance, in the complaint herein and calling the contract one of hiring for half the profits as compensation, the plaintiff is entitled to an account precisely the same as if it be called á partnership (Collyer's Partnership, note 2, to § 44, p. 44, 5th Am. Ed.; 7 Jarman Conv. by Sweet, 11, note a). In many of the cases it will be seen that notwithstanding a clear right to an account, no partnership was held to subsist either as between the parties or as to third persons (Holmes v. Old Colony Railroad Corp., 5 Gray, 58). There would indeed seem to be no doubt that had the' plaintiff’s alleged agreement for compensation been proved in the former case it would have sustained his bill and entitled him to an account (1 Story's Equity, §§ 442-459 c ; Fairchild v. Robinson, 7 Robt. 572).
    Now, if this same claim could have been made in the first suit, if in that suit the plaintiff could have proved the very contract he now alleges, and have had an accounting thereon, then the former suit is a bar, for a former adjudication is quite as much a bar, for all that could have been proved therein, as for all that was proved therein (Embury v. Connor. 3 N. Y. 522; Clemens v. Clemens, 37 Id. 74; Bloomer v. Sturges, 58 Id. 176; Jordan v. Van Epps, 85 Id. 436). The court says: “It is not necessary that it shall appear by the record of the prior suit that the particular controversy sought to be precluded was then necessarily tried and determined ; it is sufficient if there might have been judgment in the first action for the same cause alleged in the second” (Smith v. Smith, 79 N. Y. 634). It was never intended that a plaintiff should claim a right in successive different actions alleging in each a different reason. He is bound in the first to allege all his reasons and to bring forth every ground for his claim.

      John Todd and William A. Coursen, for respondent.
    A matter or cause of action is res adjudícala when it is actually merged in a judgment, or the same point has already been decided between the same parties; and if, by law a judgment could have been given for the plaintiff in a former suit, for precisely the same cause of action as that for which the present suit is brought, it has within the rule, passed into judgment, and is res adjudícala. But in order to bar the second action the circumstances must be such that the plaintiff might have recovered in the first for the same cause alleged in the second (Stowwell v. Chamberlain, 60 N. Y. 272, 276 ; Palmer v. Hussey, 87 Id. 303). And whether the matter might have been tried in the former action must appear from the record alone: whether it was tried may be proved by parol (Campbell v. Butts, 3 N. Y. 173; Smith v. Smith, 79 Id. 634; Young v.
      Rummell, 2 Hill, 479, 481; Dunckle v. Wiles, 6 Barb. 515, 529).
    The record shows that the first action between the parties in this case was an action in t he nature of a suit in equity, wherein the plaintiff sought relief: 1st. That the partnership between the plaintiff and the defendant be dissolved. 2d. That a receiver be appointed, in the usual form and with the usual powers, to wind up the affairs of the partnership ; to pay the creditors and to divide the surplus between the plaintiff and the defendant, etc. The answer of the defendant was a general denial, and the decision of the court on the trial was as follows ; “ This cause having come on to be heard in its regular order on the calendar, and having heard the allegations and proofs of the parties, I do find the following conclusions of fact: 1st. That the plaintiff and defendant did not enter into any co-partnership as alleged in the complaint herein of at all. And as a conclusion of law, I find that the complaint herein be dismissed, and that the defendant have judgment with costs.” And judgment was entered accordingly simply dismissing the plaintiff’s complaint. The case at bar is an action at law to recover for work, labor and services rendered by the plaintiff to the defendant under a special agreement between them. The trial of the first action having been had before the court without a jury, the facts found by the court are conclusive upon the parties, and will be considered as res adjudícala, for all purposes (Bissell v. Kellogg, 60 Barb. 617).
    The pleadings in the first action show that the only issue raised in that action was the issue of partnership between the plaintiff and the defendant, and the record shows that the issue of partnership was the only one litigated upon the trial and the only one decided by the court, and it was the only one which could be tried in that action, for when the issue of partnership was decided against the plaintiff, the action was at an end, and the defendant was entitled to judgment (Arnold v. Angell, 62 N. Y. 508). The doctrine of res adjudícata applies only where a party has had a full opportunity to assert his rights, and ask for the remedy, in an action presenting or affording the opportunity to present the claim and where an issue is or can be legitimately framed to try it, and the court has jurisdiction, both of the parties and of the subject matter (Dawley v. Brown, 79 N. Y. 390, 397; Stowell v. Chamberlain, 60 Id. 272 ; Matthews v. Duryee, 4 Keyes, 525, 538; Campbell v. Consalus, 25 N. Y. 613; Burdick v. Post, 12 Barb. 168; Baker v. Rand, 13 Id. 152, 160).
    On the face of the record the judgment in the first action decided only that the plaintiff and the defendant were not copartners, and there is nothing before the court to show that anything else was decided in that action. A judgment is no evidence of a matter to be inferred from it by argument. The rule is, that it must clearly and distinctly appear from the record, or from proof aliunde the record, when such proof is admissible, that the particular ground urged was considered and passed upon by the court, in the former suit, or the adjudication will not operate as a bar in a subsequent action. The onus of proof, too, in such case, is on the party who relies upon the adjudication as a bar, and he must make it appear that the precise point was considered and passed upon in the former suit (Vaughan v. O’Brien, 57 Barb. 491, 495).
   Per Curiam.

The complaint alleges that the plaintiff and defendant entered into an agreement, whereby in consideration of the plaintiff’s overseeing, taking charge of and laboring in the business of defendant, the defendant agreed to pay the plaintiff for such services one-half of all the profits of said business, after making specified deductions. It further alleged what the profits had been after making the deductions; that the half of the profits amounted to $10,500 ; and that the defendant was indebted to plaintiff in such sum, less the credit hereinafter mentioned ; that the defendant was entitled “to a credit on account of $2,637.80 and it demanded judgment for the difference.

The answer made a general denial, and for a separate defense, that the plaintiff had commenced another action in this court for the same identical cause of action in the complaint herein set forth; that the defendant appeared and answered therein ; that such proceedings were therein had that it was by the court duly considered and adjudged, on the merits, that the complaint of the plaintiff be dismissed, etc.

The complaint in the action pleaded in the answer, alleged that the plaintiff entered into partnership with the defendant for the purpose of carrying on a certain business ; that by the terms of the copartnership agreement, each partner was to share equally in the profits, the defendant to be allowed certain amounts. These amounts are the deductions referred to in the present complaint. It made further allegations of fact relevant to a right of plaintiff to dissolve the partnership, and asked judgment of dissolution and for an accounting.

The answer to this complaint was a general denial. Upon the trial of the issues, the court found that the plaintiff did not enter into any copartnership as alleged in the complaint or at all, and the judgment, after reciting this finding, was that the complaint be dismissed.

The referee found in the present action, that the former action referred to the business described in the present complaint, and that the profits, one-half of which the plaintiff here claimed, were the one half profits referred to in the former complaint. He also found that the testimony in this action proved the allegation of the present complaint.' The testimony in the two actions was about the same, the important difference being that in the former action the plaintiff testified to the defendant’s proposing to him to go into the partnership business, and in this action the plaintiff left out the word partnership.

The learned counsel for defendant claims that as the plaintiff sought to recover one half of the same profits in both actions, and could have had a jndgment.for an accounting as to the profits in the former action, and as the right is based by the plaintiff here upon the same contract, that he formerly brought his action upon, the former judgment is conclusive.

The identity of the relief demanded, for instance, as the defendant’s counsel claims, an accounting, does not of itself make the former action a bar. In Child v. Gibson (2 Atk. 603), Lord Hardwick said, ‘1 Every plea that is set up as a bar must be ad idem. Therefore if a judgment or decree be pleaded, it must appear to be ad idem.....The defendant only pleads that a bill was brought for an account and a decree made. For it is extremely hard to say that because the plaintiff failed in the case which he made on the former account, that now he has made a new case and brought a new bill, he shall not be allowed to go on, but be barred by a plea of a former decree in the same matter.” And it is not enough that the property in controversy in both actions is the same (Dawley v. Brown, 79 N. Y. 398).

It is necessary to show that the proof in the second action would have been available in the first action. In Miller v. Manice (6 Hill, 122), the court said, “It is no answer to the defense óf a former recovery that the form of action in both suits is not the same. . . . For if the same question was submitted to the jury in the first action and the evidence in the last suit, if it had been given in the first action, would have been equally available as in the last, to entitle the plaintiff to recover under the state of pleadings in both, then the verdict and judgment in the first action .... is an absolute .bar to any recovery,” in the second action. “But where the form of the first action was such that the proof necessary to a recovery could only be brought forward in a different form of action .... the failure of the plaintiff in one suit is no bar to their recovery in the other, although it is for the same cause of action for which they attempted to recover in the first suit.” In the present case, the cause of action is upon a contract to pay money for services, while the first was an action based upon the alleged existence of a partnership.. The case of Rice v. King (7 Johns. 20), cited in several cases down to Steinbach v. Relief Fire Ins. Co. (77 N. Y. 501), declares that What is meant by the same cause of action, is where the same evidence will support both the actions, although they happen to be grounded on different writs.” In fact, the testimony given in the present action was irrelevant in the first action, in a substantial sense. The court had to hear it, in the first place, but when in the end it appeared to have no tendency to support the case of a partnership, it then wras shown to be irrelevant. For instance, if the acts sworn to by plaintiff had been in a paper signed by the defendant, the court would have excluded it as not tending to show a partnership.

In substance, the defendant’s position is that the plaintiff might have, in the first instance, brought an action like the present, but that does not show that the present claim was ever adjudicated, or that it might have been, in a former action. It could not have been, except by an amendment of the complaint. An amendment to conform the pleadings to the proof would not have been proper, for the amendment would have introduced another cause of action. If asked for upon motion, it would at least have been within the discretion of the court to deny the application. But the plaintiff is not now to be held to an obligation to have made such an application, any more than the defendant was under obligation to disregard the form of the first ‘ action, and to have allowed plaintiff to take a judgment for an accounting. The defense on this ground must be overruled.

The objection to the finding of the referee, upon the main issue of fact, is based substantially upon the idea that the referee was confined to the testimony given by the plaintiff. In reality, the referee was bound to look also at the testimony for the defendant which supported the plaintiff’s claim in important respects.

Some objections were taken to the admission of certain books. The testimony shows that the defendant proved all the matters that the books were intended to prove. In some cases, the contents were admissible against the defendant, because made by Ms agents. There was a certain presumption that he had seen them and recognized their correctness. In one instance, a witness testified to certain things in a book, as having occurred, when all he knew was that the book contained them, and the book was not itself verified. In this case, the defendant himself swore to the facts set out in the book.

In estimating the price to be asked for constructing a building, the defendant considered that by the proposed arrangement, he was to be paid in a second mortgage upon the lot and building, to the extent of $15,000. He inquired what the cash value of such a mortgage would be and was told, and it could be sold for not more than its face less ten per cent. He thereux^on added $1,500 to this estimate. In order to carry on the work, he procured money by selling certain securities that he had theretofore held for investment, which was made necessary, perhaps, because of what would otherwise be money jjayments made from time to time, being made in gross at the end in a second mortgage. He did not sell the mortgage, but kept it and was paid in full. He claimed a right to deduct from the XU'ofits the discount referred to. This was inadmissible, for whatever his expectation as to a possible loss in disXiosing of his security, he in fact received the whole and lost no part of the sum by which he increased Ms estimate. The terms of his contract with the plaintiff, justified his charging interest on the juoceeds of his securities, that he used in carrying out the contract.

He further claimed a right to charge certain sums he X>aid to architects for their favor in supervising work done by him. The plaintiff was not asked for a consent to this and gave none. As against him, it was not j>retended to be a charge usual in such business, even if the law could recognize it at any time.

He also claimed a credit for taking, in lieu of money due to him, two bonds which turned out to be worthless. This was a voluntary act on his part, for his debtor was responsible and could have paid in money. This gratuity to another was not a business expense.

Judgment affirmed, with costs.


text:
    JACOB F. WYCKOFF, Respondent, v. ELISHA W. ANDREWS, Impleaded, &c., Appellant.

      Decided March 3, 1884.

      Pleading—frivolous answer—promissory note—indorsers—waiver of demand and notice after maturity.

    To justify judgment on an answer as frivolous, it mustly be clearly bad, not calling for deliberation upon the issues it attempts to make.
    Accordingly, where, in an action against tlfe indorsers on a promissory note, the complaint does not allege demand of payment, protest and notice, but pleads a waiver thereof in writing by defendants, “ at or about the date of the maturity of said note,” and does not allege any promise of payment by defendants, dehors the note, judgment cannot be rendered upon an answer as frivolous, which in substance, alleges that such waiver was not in fact made until after the maturity of said note, although at the time of such waiver, defendants thought that said note had not matured.
    Before Sedgwick, Ch. J., and Truax, J.
    Appeal by defendants .from an order granting plaintiff’s motion for judgment on the ground of the frivolousness of the answer.
    The facts appear in the opinion.

      Redfield, Hill & Lydecker, for appellant.
    If the answer is conceded to be true, can the giving of this waiver raise a contract of new promise by the iqdorser, for, that is the object of the plaintiff in pleading the waiver % It is incredible, that a man should be held to have made a promise under such a state of facts. It is elementary law that such a waiver, given after the default of the holder, does not create a new promise without proof that the. indorser in signing the waiver had knowledge of the default when he signed it. By omitting presentment and notice, the holder lost a recourse to this defendant (Spies v. Gilmore, 1 N. Y. 321 ; Cayuga Bank v. Warden, Id. 413 These omissions of the holder may be waived by the indorser’s subsequent promise ; only that promise must be made with full knowledge that he has been discharged by the neglect of the holder (Tebbetts v. Dowd, 23 Wend. 379 ; Story on Bills, § 361; II Daniels Neg. Inst. § 1149).

      W. I. Butler, for respondent.
   Per Curiam.

The only question on this appeal is whether the answer was frivolous. To support a judgment ordered for such reason, the answer must be clearly bad, not calling for deliberation upon the issues it attempts to make. There appears, however, a question of which it cannot be said that it admits of an answer that cannot be rationally and intelligently debated.

The complaint is against the indorsers of a promissory note. The complaint does not allege that demand of payment and notice of non-payment were or were not made and given. It alleges “ that at or about the date of the maturity of said note, each of the said individual defendants, in writing, duly and wholly waived demand of payment, protest and non-payment, and protest of said note.” The complaint does not aver that the defendant at the time of the alleged waiver or at any time dehors the noté, promised to pay it, or its amount.

The answer alleges as to the waiver, that it was in fact made after the maturity of the note, although at the time of waiver, the defendants thought the note had not matured. Such is the effect of the answer, although the form is “ that on the day of said waiver this defendant was wholly ignorant, the said note was then over-due and unpaid,” etc. Of course, if the fact had been as the defendant believed, the waiver would have justified the plaintiff- in not demanding payment, etc.

On the answer as to the waiver being after maturity, a question is, what is the effect of waiving a demand which should have been made in the past. If waived before maturity, the principle of estoppel in pais, binds the indorser. But otherwise, how are rights that have become fixed, affected ? If there be a promise to pay after maturity, the law is well settled. But does a mere waiver, and no more, create an implied promise which would be of value equivalent to an express promise. Or do the waiver, and the circumstances under which it was made, make a question for the jury as to whether the parties understood that the indorser did promise to pay with a knowledge of the laches. If there be a waiver of the kind pleaded, and it proves, in any way, as matter of law or of fact, through a jury that the defendant promised to pay, is the plaintiff to show that the defendant had knowledge of laches, or the defendant to show that he had not. At least, some of these questions are of a relevancy and solidity that prevents its being frivolous to raise them.

The order below should be reversed with $10 costs, and disbursements to be taxed, and the motion below denied with $10 costs to defendant, to abide event.


text:
    ROBERT GRAY, Appellant, v. MARY E. RYLE, as Executrix, etc., Respondent.

      Decided March 3, 1884.

      Foreign executor—jurisdiction over.— Waiver of objection to laclo of jurisdiction.

    In an action against a foreign executor where the complaint does not allege nor the proof show, that defendant had brought into this state assets of the estate, the court is without jurisdiction to enforce any liability of the defendant in said capacity. This concerns the power of the court, not the person of the defendant, and therefore the objection is not waived by appearance and an answer on the merits.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal by plaintiff from judgment, dismissing complaint, entered upon findings at special term.

      Action to recover from the defendant, in her representa-. tive capacity, a certain sum alleged to have been dué to the plaintiff from William Ryle in his lifetime by virtue of a contract made between said Ryle and plaintiff. The defendant was charged in the complaint in her capacity as executrix of said Ryle’s estate, by appointment of the surrogate of Passaic county, New Jersey. The complaint contained no allegation as to the existence of assets of the estate in this state. The defendant did not demur, but appeared and answered on the merits.
    At the opening of the trial the counsel for the defendant moved to dismiss the complaint for lack of jurisdiction in the court to adjudicate anything herein against the defendant—the complaint showing that defendant’s representative capacity arises solely by virtue of her appointment as executrix by a foreign court under a foreign probate. The court took the motion under advisement, and subsequently filed the following decision granting the motion :
    Textax, J.—There was no need of the defendant’s taking the objection that the court had no jurisdiction, by answer, because that fact appeared on the face of ‘the complaint. She could have taken that objection by demurrer. This she did not do, but demurs on the trial, and asks that the complaint be dismissed, because it appears on the face thereof that the court has no jurisdiction. But the plaintiff contends that this objection was waived by the appearance and answer of the defendant on the merits. I do not so construe the Code. Section 488 (subd. 1 and 2), provides that the defendant may demur to the complaint when it appears upon its face that the court has no jurisdiction of the person of the defendant, and (2d) that the court has no jurisdiction of the subject of the action. This objection is not waived by a failure to demur (§ 499). There was no need of taking the objection by answer, because it appeared on the face of the complaint (§ 498).
    The complaint must be dismissed, with costs.

      Christopher Fine, for appellant.
    I. The defendant by appearing in the action, not demurring, but answering on the merits, has waived the objection that the court has not jurisdiction of the person of the defendant (Code Civ. Proc. §§ 488, 498, 499).
    There are two kinds of jurisdiction, one as to the person (which may be waived), another as to the subject-matter (which cannot be waived). It will not be pretended that this court does not have jurisdiction of the subject-matter of the action; the defendants’ only contention is that the “ court does not have jurisdiction of the person of the defendant,” because the defendant is a foreign executor. The defendant having answered on the merits, and neither demurred or answered that the court had no jurisdiction of the person, has waived that objection and is now estopped from raising it (McCormick v. Penn. R. R. Co., 49 N. Y. 303 ; Spyer v. Fisher, 37 Id. 94; Dart v. Farmers’ Bank, 27 Barb. 337; Hovey v. McDonald, 4 N. Y. 606 ; Eitel v. Bracken, 38 Super. Ct. 7).
    II. This court may maintain a bill in equity against a nonresident or foreign executor, even when a common law action could not be maintained—that is, may have jurisdiction of the subject matter without reference to the question of the waiver by the non-resident executor of the question of the jurisdiction of the person (Garlick v. Garlick, 33 Barb. 92; Campbell v. Tousey, 7 Cow. 64; McNamara v. Dwyer, 7 Paige, 236, 241; Slater v. Carrall, 2 Sandf. 573).

      Preston Stevenson, for respondent.
    I. The rule is well settled that the courts of any state foreign to the jurisdiction which appointed an executor or administrator, have no jurisdiction of actions by or against him in his representative capacity merely (Vaugn v. Northrop, 15 Peters, 1; Kerr v. Moon, 9 Wheat. 565 ; Vermilyea v. Beatty, 6 Barb. 429 ; Metcalf v. Clarke, 41 Id. 45 ; Field v. Gibson, 56 How. 232; aff’d l0 Hun, 274; Matter of Webb, 11 Hun, 124; Story's Conflict Laws, § 513, et seq.). Where, however, an obligation, or quasi obligation, to domestic creditors arises from the personal acts of a foreign executor within the jurisdiction—e. g., his bringing assets within the jurisdiction, by misappropriation or otherwise, in a manner prejudicial to the interests of persons resident there who are interested in the proper administration of the estate—a court of equity will take jurisdiction of an action against him to compel him to discharge his trust—i. e., by requiring him to administer the assets within the jurisdiction in accordance with the law of the state of his appointment (McNamara v. Dwyer, 7 Paige, 239 ; Gulick v. Gulick, 33 Barb. 92 ; Montalvan v. Clover, 32 Barb. 196 ; Campbell v. Tousey, 7 Cow. 64).
    II. But the plaintiff claims that the defendant has waived the jurisdictional objection just argued by answering to the merits of the action. His theory is that the objection goes to the jurisdiction of the court over the person of the defendant, and that such objection can be waived notwithstanding the express language of the statute (Code, § 499). We submit that neither ground of plaintiff’s contention is valid, a. The objection is not to the jurisdiction of the person of the defendant, but to the jurisdiction over the subject-matter of the action, and of course the latter objection is never waived, even wrere there no statute provision in regard to it. b. But further, if it be admitted that defendant’s objection must be deemed one to the jurisdiction of the person, it cannot help the plaintiff in this action. The statute (Code, § 499) expressly says that “ the objection to the jurisdiction” is never waived. The objection that the court has no jurisdiction of defendant’s person which is recognized as a ground of demurrer by the Code is very different from that arising by reason of a defective or even an absence of service of process, which can be availed of only on motion, and which is waived by appearance and answer without objection. The former objection is one that goes to the power of the court to adjudicate as truly as does the objection of a want of jurisdiction over subject-matter, and in principle, therefore, it cannot be distinguished from it. The objection that may be taken by demurrer is not that the defendant was not properly brought within the jurisdiction by due service of process, but that,' in the nature of the case, the court cannot take jurisdiction of his person. Such objection therefore can no more be waived by appearance and answer than can that to the jurisdiction of the subject-matter (Nones v. Hope Mutual Life Co., 5 How. 96; Valarino v. Thompson, 7 N. Y. 576).
   Per Curiam.

This was an action against a foreign executrix. The plaintiff did not allege nor was there proof that the defendant had brought into this state, assets of the' estate. This court was without jurisdiction to enforce any liability of the defendant, as executrix. This concerned the power of the court and not the person of the defendant.

Judgment affirmed, with costs.


text:
    JOSIAH HARRIS, Respondent, v. HIRAM H. DURKEE, Appellant.

      Decided March 3, 1884.

      Affidavits on arrest—defective certificate to jurat talcen out of state—avoids the order—cannot he amended.

    Where the affidavit upon which an order of arrest is granted, is verified out of the state and the certificate to the notary’s jurat does not conform to Code Civ. Pro. § 844, the affidavit is a nullity, and the order should be vacated. The defect is jurisdictional, and the court has no power to order that the affidavit be taken from the files for the purpose of having the certificate amended.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    This is an appeal from an order made at special term denying the defendant’s motion to vacate an order of arrest, and allowing the plaintiff to amend an affidavit on which the order of arrest was granted, by obtaining a proper certificate of the prothonotary annexed thereto.
    The order of arrest was granted under subdivision 3 of section 550 of the Code of Civil Procedure, in an action for moneys received in a fiduciary capacity, upon affidavits made by plaintiff and others. Plaintiff’s affidavit was taken at his residence in the state of Pennsylvania, before a notary public, and the certificate of the prothonotary of the court of common pleas was attached.
    Defendant moved to vacate the order of arrest on the ground, among others, that the certificate of the prothonotary to said affidavit was defective in the following particulars : (1) It did not state that D. Stewart Elliot, the party before whom the affidavit was taken, was a notary public; simply that he was an “acting ” notary. (2) It did not state that he was authorized to take affidavits, or acknowledgments of deeds to be recorded in this state. (3) It did not state that the prothonotary was acquainted with the handwriting of the notary.
    Plaintiff asked permission to amend by procuring a new certificate, and was allowed so to do, upon terms, by the court, and from the order made and entered to that effect the defendant has appealed.

      Bagley & Thain, for appellant.
    I. Under section 844 of the Code of Civil Procedure, affidavits may be taken before an officer authorized to take, and certify acknowledgment of deeds, and when certified by him to have been taken before him, and accompanied with like certificates as to his official character and genuineness of his signature, as are required to entitle a deed acknowledged before him, to be recorded within this state, &c., may be used as if taken and certified in this state by an officer authorized by law to take and certify the same. The nature of the certificate to be attached to deeds acknowledged in a foreign state, is defined in section 2, chap. 259, Laws of 1858 ; and in section 1, chap. 208, Laws of 1870 ; 2 R. S. 7th ed. pp. 22, 27 and 22, 29. From an examination of those provisions it will appear that the certificate attached to plaintiff’s affidavit is defective in the particulars above pointed out. The affidavit, not being accompanied with the proper certificate, was a nullity.

      II. The justice erred in allowing the affidavit to be taken from the file for the purpose of procuring thereto a proper certificate.
    III. The defendant moved only upon the papers upon which the order was granted, and the motion should have-been heard and diéposed of upon these papers only (Code Civ. Pro. § 568). It was contrary to the letter and the spirit of this section to allow the amendmént. This was to arrest a citizen contrary to law, and after arrest to present the proof which the law requires should have been made as a condition precedent. The defect in the papers is-jurisdictional (Jones v. Platt, 60 How. Pr. 73 ; Southern I. N. Co. v. Sherwin, 1 Civ. Pro. R. 44; Kapelovitz v. Kersburg, 4 Week. Dig. 303). Section 793 of the Code of Civil Procedure does not authorize an amendment of the affidavit on which a provisional remedy is granted, by adding a proper certificate. The affidavit is not a process, pleading or other proceeding within the meaning of that section. If an affidavit on which a warrant of attachment is issued under section 636 is insufficient, the attachment will be set aside. See cases cited under that section in 1 Bliss Code.

      Rollin G. Beers, for respondent.
    The defect in the certificate of the prothonotary was clearly amendable (Code Civ. Pro. §§ 793, 794). Plaintiff actually performed every requisite act in preparing his proof for the court. At the most there existed only an insufficiency in certifying to the due performance of such acts. Amendment has been allowed after the decision of a motion so as to supply a jurat to an affidavit used upon the motion (Hees v. Snell, 8 How. Pr. 185). Leave to file an affidavit of verification to complaint and-an affidavit verifying the signature of defendant’s admission of service, so as to sustain judgment entered by default, was granted on defendant’s motion to set aside the judgment for irregularity (Jones v. United States Slate Co., 16 How. Pr. 129; White v. Bogart, 73 N. Y. 256). Lack of undertaking requisite as condition precedent to suing may be supplied, and such an undertaking, if insufficient, may be amended (Milbank v. Broadway Bank, 3 Abb. N. S. 223 ; Kissam v. Marshall, 10 Abb. Pr. 424). Undertaking on arrest amendable (Bellinger v. Gardiner, 12 How. Pr. 381). “The only objection of force is that the affidavit (to procure attachment) was sworn to before a commissioner in Kentucky, but no certificate of the secretary of state has been obtained as required by the statute. That act requires that before any such affidavit shall be entitled to be used, the certificate shall be annexed. Here it has been used by the judge, and although the objection might have been then made, still I do not think it fatal. The omission may be amended and stipplied. The plaintiff may take the original affidavit from the files for that purpose ” (Lawton v. Reil, 34 How. Pr. 465; 51 Barb. 30). “There is no step in any action or proceeding, which, if imperfectly taken, is not the subject of amendment” (Eagan v. Moore, 2 McCarty Civ. Pro. R. 337).
   Per Curiam.

The paper purporting to be an affidavit, on which the order of arrest was granted, was not an affidavit, because the acknowledgment or certificate of proof did not comply with the Laws of 1848, chapter 195, section 3, as amended by the Laws of 1867, chapter 557. It is as though ‘the order of arrest had been granted on an unverified written statement. This the judge, who granted the order, had no power to do. The defect was a jurisdictional one,, and the court had no power to order the affidavit to be taken from the files and sent to another stqte there to be acknowledged as required by the law above referred to.

The order appealed from is reversed, with $10 costs, and disbursements to be taxed; and the order of arrest is vacated with $10 costs.


author: By the Court.—O’ Gorman, J

text:
    WILLIAM PERZEL, Appellant, v. SHERIDAN SHOOK, et al., Respondents.

      Decided March 21, 1884.

      Bill of particulars—motion to strike out demand for—when granted.—Practice.

    Defendants set up in the answer three counterclaims—two for work, labor and services, and the third for moneys paid, laid out and expended for plaintiff. The reply admitted the counter-claims based on work, labor, &c., and plaintiff thereupon demanded “abill of particulars” of all the counter-claims. Defendants moved to strike out said demand, the moving affidavit furnishing full particulars of the only counter-claim not Admitted by plaintiff, which motion was granted.

      Reld, that defendants pursued proper practice in moving to strike out said demand, and that the motion was properly granted.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal from order striking out demand for bill of particulars.
    Plaintiff brings this action to recover thirteen hundred and twenty-six dollars for breach of contract.
    The answer, among other things, sets up three counterclaims, two of them for work labor and services performed for plaintiff by parties who are alleged to have assigned their claims therefor to the defendants, and the third alleges “ that between the 20th day of August and the 1st day of September, 1883, defendants laid but and expended for the plaintiff and at his request, for gas, labor, and materials, and paid and advanced to plaintiff, the sum of one hundred and fifty-five dollars and twenty-two cents.”
    The plaintiff replied admitting the performance of the work, labor and service alleged in the answer as the basis of the first and second counter-claims but denied the third counter-claim, paragraph 13 of the answer.
    Plaintiff then served on defendants a demand for a bill of particulars of all the counter-claims set up in the answer.
    The defendants moved to strike out the demand for a bill of particulars, and in the affidavit set forth the particulars of the third counter-claim. The motion was granted and from the order striking out that demand the plaintiff brings this appeal.

      Stafford & Graff, for appellant.
    The word account, as used in section 531 of the Code, means any indebtedness consisting of several items. The absolute right of a party to demand a copy of an account pleaded is not limited to an action on an account stated (Fullerton v. Graylord, 7 Rob. 556 ; Dowdney v. Volkening, 37 Super. Ct. 318; Barkley v. Rens. & S. R. Co., 37 Hun, 516).
    The court had no power to strike out appellant’s demand for a bill of particulars. (1.) The counter-claims alleged in the answer are all accounts, within the meaning of that word as used in section 531 of the Code. The right to demand the bill of items of these accounts is absolute in the plaintiff, and the court has no coritrol over it. The statutory provision is that when a party alleges an account, but does not set forth a copy of it, he “ must deliver to the adverse party, within ten days after the demand thereof, a copy of the account.” The next sentence in section 531 makes the granting of a bill of particulars discretionary with the court, thus emphasizing the fact that in the case provided for in the preceding sentence, the court has no discretion or power. (3.) But the power of the court to strike out a demand in any case is denied (Barkley v. Rens. & S. R. Co., 27 Hun, 516). Even incases where the right is not absolute, the proper practice is to make the demand before moving in court to get particulars (Shaffer v. Holm, 28 Hun, 268), and if the party upon whom the demand is made does not choose to comply, the proper practice is for him to remain inactive, and for the party who has even the absolute right to move at special term to have evidence of items of which particulars have been refused precluded on the trial (Moore v. Belloni, 43 Super. Ct. 190).

      T. Albert Hnglehart, and A. A. Cauldwell, for respondents.
    The motion to strike out was regularly made and is the correct practice (Dowdney v. Volkening, 37 Super. Ct. 313).

      The demand was clearly irregular as to the counterclaims in the fourteenth and sixteenth paragraphs. These counter-claims weré by the reply, expressly admitted. The plaintiff, therefore, could not benefit by any particulars of the same, and it follows defendants should not be compelled to perform the useless labor of preparing and serving same (Dowdney v. Volkening, supra).

    The demand was clearly irregular as to the counterclaim in the thirteenth paragraph, (a.) Section 531 of Code provides the manner of procuring: 1. Copy account, 2. Bill of particulars. If an “account” is desired, it is only necessary to serve a demand. If a bill of particulars is desired the court may direct the same. The plaintiff’s counsel, expressly desiring a “bill of particulars” and not a “ copy account,” attempted to procure it by “ demand,” although it could only be obtained by order of the court. This should not be permitted, for the court-is not compelled to direct a bill of particulars, the language of the Code being that the court “may, in any case, direct.”
   By the Court.—O’ Gorman, J

.In answer to the plaintiff’s complaint, and as counter-claims, the defendants alleged the assignment to them of certain claims against the plaintiff, as set off in paragraphs 14 and 16 of the answer; and also set up as a further counter-claim, in paragraph 13, the payment, &c., by defendant, of certain moneys in plaintiff’s behalf. Plaintiff replied admitting the allegations contained in the 14th and 16th paragraphs of the answer. They then made a demand fora bill of particulars of all the counter-claims. The defendants thereupon moved to set aside and strike out said demand for a bill of particulars, setting forth in their affidavit on the motion, the particulars of the only counter-claim not admitted by the plaintiff in his reply, and which amounted to $155.22. The motion was granted with ten dollars costs, and plaintiff has appealed.

It is hard to see what good reason the plaintiff had for requiring to be informed of the particulars of demands, which they in .their reply expressly admitted to be correct; and as to the only claim which they did not admit to be correct, the defendants in their motion-papers, supplied a bill of particulars in sufficient detail. If the question was as to the propriety of granting an order to compel defendants to serve a bill of particulars under these circumstances, the court in the exercise of the broad discretion vested in it, it would have been justified in denying the motion (Butler v. Mann, 9 Abb. N. C. 49).

To leave the question as to the propriety of the plaintiff’s demand in doubt, until the case came on for trial, might prove an embarrassment and a hindrance to a speedy determination of the issues. The motion to strike out the demand was, therefore, proper ; and this practice was approved of Dowdney v. Volkening (37 Super. Ct. 313).

The order appealed from is affirmed, with ten dollars costs, and the disbursements of the appeal.

Sedgwick, Ch. J., concurred.


author: By the Court.—O’ Gorman, J.

text:
    ELIZABETH M. MEHESY, Appellant, v. HIPPOLYTE KAHN, et al., Respondents.

      Order for inspection of boolcs, etc.—when granted

    The granting of power to search through the books of account to find isolated entries not particularized, to enable plaintiff to frame his complaint, rests in the discretion of the court, and it should only be allowed where the purpose and necessity of such examination are apparent.
    According, where in an application for an order to examine defendants’ books to ascertain the names of persons to whom defendants had sold certain merchandise in contravention of their agreement to sell only to plaintiff, in order to enable plaintiff to frame the complaint, the petition alleges that defendants did so sell to other persons,—Held, that the application should not be granted; that the knowledge or information which enabled plaintiff to make this distinct and definite statement, was enough to enable plaintiff to frame her complaint.

      Decided March 21, 1884.
    Before Sedgwick, Ch. J., Freedman and O’ Gorman, JJ.
    Appeal from order of special term denying petition of plaintiff for inspection and copy of entries in account books of defendants in order to ascertain the names of the persons to whom defendants had sold'“hare bellies,” in violation of their agreement with the plaintiff, and in order to enable the plaintiff to frame her complaint.

      Simpson & Werner, for appellant.
    The discovery sought is material and necessary, and in the present case absolutely indispensable. 1. Its materiality appears by reference to the written contract. The defendants contracted to give their entire product of bellies during the period mentioned, and that they did not do so is shown by the petition presented. 3. Its necessity is shown by the allegations that the names and amounts are recorded in the books named, during the period designated, and that the petitioner “has no means whatsoever, outside of said books, of discovering or determining the amount of hare bellies which the defendant had or obtained, or parted with and sold and delivered to parties other than your petitioner, and in violation of the contract,” and this after the positive averment that the defendants did sell and deliver to other parties in violation of the contract. The plaintiff cannot possibly prepare a complaint, and truthfully verify it, as required by statute, without a disclosure, and if a complaint were by any possibility framed and served, the cause of action could be readily defeated by an application on the part of the defendants for a bill of particulars.

      Benno Loewy, for respondent.
   By the Court.—O’ Gorman, J.

There are many reasons why the decision of the special term should not be disturbed.

The granting the order applied for was very much within the discretion of that court, and we see no reason to believe that such discretion was not properly exercised in this instance.

The plaintiff states in her verified petition, that the defendants did sell largely to other persons, and offered her the refuse after such sales of the best material. If she is possessed of knowledge or information sufficient to enable her to make this distinct and definite statement under oath, there can be no difficulty in framing a complaint calling for a definite verified answer to that allegation.

The power to search through the defendant’s account-books in order to find isolated entries, not particularized, to enable the plaintiff to frame a complaint, is open to great abuse and should only be granted where the purpose and necessity of such examination are apparent. At a later stage of the proceedings, when the issues between plaintiff and defendants shall have been developed, other appropriate measures can be taken by the plaintiff to obtain the information now sought, if it be found to be then necessary.

The order appealed from is affirmed, with ten dollars costs.

Sedgwick, Ch. J., and Freedman, J., concurred.