text:
    JAMES H. BATES, Respondent, v. DUDLEY H. NORRIS, Appellant.

      Costs under §§ 3228, sub. 4, on recovery of less than $50—Reduction of claim by payments after action brought—Practice—Error of referee in directing judgment for costs.

    Plaintiffs’ right to costs, under § 3228, sub. 4, Code Civ. Proe., depends upon the amount of ■ the recovery, and not on the amount due at the commencement of the action; and where payments since the beginning of the action are proved, reducing the recovery to less than fifty dollars, plaintiff may not have costs unless awarded by the order allowing the supplemental answer setting up said payments, or unless his right thereto has been preserved by stipulation valid under General Rule 11.

      Where the judgment entered follows the report, the proper mode of reviewing an error of the referee, e. g. in directing judgment for costs on a recovery of less than fifty dollars, is by appeal, and not by motion to vacate the judgment.
    . In this case, court, on an appeal from an order of the special term, directing the clerk to tax full costs for plaintiff as though the recovery were for fifty dollars, ordered that the clerk disallow said bill of costs and strike the same from the judgment.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 3, 1888.
    Appeal from an order denying defendant’s motion to set aside the judgment entered on the report of a referee; and also' appeal from an order directing the clerk to readjust the bill of costs presented by the plaintiff, and to allow plaintiff full costs as though the recovery had been for the recovery of fifty dollars or more.
    The facts appear in the opinion.

      Wyatt & Trimble, for appellant:—
    I. Plaintiff having recovered less than $50 is not entitled to costs. § 3228, sub. 4, Code Civ. Proc. That the action was commenced to recover more than fifty dollars does not affect the question. He must recover more than fifty dollars. He chose to accept payment, and proved a portion of such payment before the referee, and recovered less than fifty dollars. The defendant, and not plaintiff, was entibled to costs.. Rice v. Childs, 28 Hun 303; Brown v. Richardson, 7 Rob. 57; Bendit v. Annesly, 27 How. Pr. 184; Keeler v. Van Wie, 49 Ib. 97. The fact that the referee directed judgment for costs cannot help the plaintiff; the former had no power to allow or disallow costs. His direction should have had no effect. Fuller v. Conde, 47 N. Y. 90; Benedict v. Hale, 4 Civ. Proe. 316 ; Lanz v. Trout, 46 How. Pr. 94; Sturges v. Spofford, 58 N. Y. 103; Broadway v. Scott, 31 Hun 378.
    II. There is no agreement proved to pay full costs. Plaintiff claims that defendant agreed to pay full costs; in other words, that the latter having paid $119 on a claim of $92.56, promised at a time when the taxable costs at the greatest were $15 to pay about $85; this is simply preposterous, and is clearly and fully denied. The burden of proving t;hat the payment was made without prejudice to his right to costs, was with plaintiff; in this he fails. The order giving leave to serve a supplemental answrer is significant on the question of this alleged agreement, if there was such an agreement, why was the motion granted, with ten dollars costs to abide the event.
    III. If there was any agreement, it must be held to apply to only such costs as could at the time of the alleged agreement be taxed. Latham v. Bliss, 6 Duer 661; O’Keefe v. Shipherd, 23 Hun 171; Warfield v. Walters, 30 Barb. 395.
    IY. Any agreement or understanding to pay costs is denied by defendant. It is not pretended .or claimed that the agreement is in writing or reduced to the form of an order. It is therefore a very proper case for the application of Rule 11 of the General Rules of Practice. Mason & Hamlin Organ Co. v. Pugsley, 19 Hun 232.
    V. The motion to set aside the judgment was the proper remedy. There was nothing due plaintiff, and defendant had the right to show this, and set the judgment aside. Even allowing that $166 was due, the motion to set aside the judgment was proper. Jones v. Cook, 11 Hun 230; Broadway v. Scott, 31 Ib. 378; Black v. O’Brien, 23 Ib. 82; Leonard v. Columbia Steam Navigation Co.. 84 N. Y. 55; Binsse v. Wood, 37 Ib. 526 ; Hammond v. Morgan, 101 Ib. 179 ; Syms v. Mayor, 105 Ib. 153; Sugden v. Hughes, 27 Hun 373. The judge below, in his opinion, states that the question should have been presented on appeal from the judgment. The learned judge overlooked the fact that an appeal would not lie from the judgment which had been taken by default, the hearing before the referee being by default. Stoughton v. Lewis, 1 How. Pr. N. S., 98 N. Y. 331; Innes v. Russell, 58 N. Y. 388 ; Flake v. Van Wagenen. 54 Ib. 25; James v. Shea, 28 Hun 74; 98 N. Y. 625.

      Philip Carpenter, for respondent:
    I. The judgment cannot be vacated upon the ground that costs were improperly allowed. The defendant’s rights in this regard can all be settled upon his appeal from the order directing the clerk to tax costs. Rice v. Child, 28 Hun 303. If the judgment can be disturbed at all for an error of the referee in directing judgment for costs, it must be by appeal from the judgment and cannot be done on a motion to vacate. The error is one of law. “The report stands as the decision of the court.” Code Civ. Proc. § 1228.
    II. The order directing the clerk to tax full costs was properly granted, because the original claim was for $92, and was only reduced to less than $50 by payments after the action was commenced, and these payments were made by the defendant and accepted by the plaintiff, with the distinct understanding that they were in no way to affect the question of costs; that the sums “paid were to be credited upon the full amount of debt and costs; ” that “ the defendant should pay the costs.” Rice v. Child, 28 Hun 303. Rule 11 has no application where a party has been led to rely on the verbal stipulation to his disadvantage. Court Rules (Hun, 1884), p. 89, notes (8) and (9), and cases cited; People v. Stephens, 52 N. Y. 306. Again, this agreement was not “ in respect to the proceedings in a cause ” within the meaning of Rule 11. It was simply in reference to the receipt of money in settlement of the cause of action and costs.
   By the Court.—Ingraham, J.

We do not think that any ground was presented that would justify the court in setting aside the judgment entered in this action. The judgment follows the referee’s report; if the referee erred, the proper method of review was by appeal. The order denying the motion to set aside the judgment must therefore be affirmed with ten dollars costs, and disbursements.

The defendant also appeals from an order of the special term directing the clerk to readjust the bill of costs presented by the plaintiff, and to allow the plaintiff full costs, as though the recovery had been for fifty dollars or more.

The complaint in the action demanded judgment for a sum of money only, and the right to costs is governed by subdivision 4 of section 3228 of the Code. . It is there provided that the plaintiff is not entitled to costs, unless he recovers the sum of fifty dollars or more. In this action the report of the referee found, as a conclusion of law, that at the date of the report the defendant was indebted to the plaintiff in the sum of one dollar and sixty-six cents, with interest from the 15th day of June, 1887, and on that report judgment was entered for the plaintiff for that amount.

Under the provisions of the Code above mentioned, the plaintiff would not be entitled to costs. The fact that at the commencement of the action the plaintiff’s demand was greater than fifty dollars does not entitle plaintiff to costs. The section referred to makes the right to costs depend upon the amount of the recovery; not on the amount due at the commencement of the action, and as the provision is mandatory, neither the court nor the referee has power to give the plaintiff costs, in such an action, unless the recovery exceeds fifty dollars. The provision in the report of the referee that plaintiff should have judgment, with costs, was void, and did not authorize the court or clerk to enter judgment for costs.

Plaintiff could have insisted upon his costs as a condition of leave to serve a supplemental answer, setting up the payments since the commencement of the action. Having failed to obtain such a provision in that order, his right to costs depended upon the amount of his recovery. Nor can the courts enforce a verbal stipulation that the payments made on account of the demand set up in the complaint should not affect the right of the plaintiff to his costs. If the stipulation was that the judgment should award the plaintiff costs, notwithstanding the recovery was less than fifty dollars, it was within the provision of Rule 11, of the General Rules of practice and could not be enforced unless in writing. If it was an agreement outside the proceeding in the action, it cannot affect the right of the plaintiff to costs in the action, as that depends upon the amount of the recovery.

Defendant not having applied for costs, no question is presented as to his right to costs as against the plaintiff.

The order appealed from must be reversed, and the clerk directed to disallow the plaintiff’s bill of costs, and to strike the same out of the judgment, limiting the amount recovered by the judgment to the amount found due by the referee, with ten dollars costs, and disbursements, to the appellant.

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


source: Caselaw Access Project

author: By the Court.—Ingraham, J.

license: Public Domain

text:
    PATRICK DERVIN, Appellant v. HENRY HERMAN, et al., Respondents.

      Negligence—Master and servant—Liability of master for injuries caused by defective condition of elevator.

    In an action to recover for injuries alleged to have been caused by the negligence of defendants while plaintiff was employed by them, it appeared that when plaintiff was employed, he was referred by one of the defendants, to C., a co-employee, for instructions as to his duties, among which was closing the store at night; that C. told him to fasten certain doors by using the elevator, that on the clay of the accident, in pursuance of his custom and of said instructions, he got on the elevator for that purpose and started it, but was unable to stop it, and it continued to go up, and crushed him between the door and the platform of the elevator, causing serious injuries. It further appeared that at that time, the elevator was being repaired, of which defendant was ignorant, and that the person employed by defendants to make the repairs had, on stopping work for the night, detached the connecting rod, so that the elevator could be started, but could not be stopped, and that in such condition it was unsafe for use.

      Held, that a dismissal of the complaint was error; that the evidence was sufficient to support findings that plaintiff was authorized or directed to use the elevator as he did, and that the accident was caused by the unsafe condition of the elevator, for which the defendants are liable; and further, that the question of plaintiff’s contributory negligence, should have gone to the jury.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 3, 1888.
    Appeal from judgment entered on the dismissal of the complaint on a trial before a jury.

      Nelson Smith and G. Washhourne Smith, for appellant.

      Horwitz & Hershfield, for respondents.
   By the Court.—Ingraham, J.

The plaintiff, an employee of the defendants, was injured on an elevator in the store of the defendants. At the time of the accident, the elevator was being repaired, and the person employed to make the repairs, had on stopping work for the night, detached the connecting rod, so that the elevator could be started but could not be stopped, and in such condition it was unsafe to be used. The plaintiff whose duty it was to close up the store, and who had been in the habit of using the elevator when engaged in that duty, got on the elevator for that purpose and started it, but was unable to stop it, and it continued to go up and crushed him between the door and the platform of the elevator, causing very serious injuries..

The plaintiff testified that when he commenced work, one of the defendants referred him to Campbell, the shipping clerk, to instruct him as to his duties, among which was closing up the store. Campbell told him to fasten certain iron doors by using the elevator, and he used it on the afternoon in question, in the same way as instructed by Campbell; that he had no knowledge that the elevator was being repaired, and had not been notified that it was unsafe and not to be used.

At the close of the plaintiff’s case, the court dismissed the complaint, and from the judgment entered on such dismissal, the plaintiff appeals.

The evidence would sustain a finding of the jury that the plaintiff was authorized, or instructed, by the defendants, to use the elevator in the manner that he did, in the performance of the duty which he was employed to perform, and that the accident was caused by reason of the unsafe condition of the elevator at the time of the accident'. It was the duty of the defendants to use reasonable care and caution in providing for the use of their employees suitable tools and machinery, and to maintain such machinery in repair. Fuller v. Jewett, 80 N. Y. 53. And if, through the neglect of that duty on the night of the accident, plaintiff was injured, without fault on his part, we are unable to see why defendants would not be liable. That this accident did happen by reason of the unsafe condition of this elevator, and that such unsafe condition was caused by the act of the person employed to repair the elevator, is established by the evidence. The responsibility of the defendants for the acts of the person employed by them to repair the elevator, is firmly established in this state. “ The acts which the master, as such, is bound to perform for the safety and protection of his employees, cannot be delegated, so as to exonerate the former from liability to the servant who is injured by the omission to perform the act or duty, or by its negligent performance, whether the nonfeasance, or misfeasance, is that of a superior officer, agent or servant, or a subordinate or inferior agent or servant, to whom the doing of the act, or the performance of the duty has been committed¡ In either case in respect to such act or duty, the servant who undertakes or omits to perform is the representative of the master and not a mere co-servant with the one who sustains the injury. The act or omission is the act or omission of the master, irrespective of the grade of the servant whose negligence caused the injury. Fuller v. Jewett, supra.

The master cannot exempt himself from liability for the omission of this duty, by delegating its performance to another, or, having required work to be done, by omitting precautions and inquiries as to the time and manner of its performance : and the negligence of the master, co-operating with that of a servant, in producing injury to a co-servant, renders the master liable. Benzing v. Steinway, 101 N. Y. 552.

The unsafe condition of this elevator was caused by the act of the person employed to repair it, and who left it in such an unsafe condition that Avhen once started it could not be stopped. For the act of that person the master Avas responsible.

The question of contributory negligence on the part of the plaintiff, Avas a question for the jury, and on the case as it stands, we think the court erred in dismissing the complaint.

The judgment must be reversed, and a new trial ordered, Avith costs to the appellant, to abide the event.

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


author: O’Gorman, J. Per Curiam.

text:
    MORRIS STEINBOCK, Respondent v. GEORGE A. EVANS, et al., Appellants.

      Sureties on bail bond—what will not exonerate—Stipulation in action on fraud—when does not ivaive right to execution against person.

    A stipulation in an action founded on fraud, whereby plaintiff was induced to loan defendant money on his note, giving defendant time to pay, and providing that, in case of default, plaintiff shall enter judgment and have the same right to enforce it by execution as he could have had if entered on verdict in his favor, does not waive the right to issue an execution against the person upon a judgment entered in pursuance of the stipulation. This, although the defendant in such stipulation expressly disclaims any admission of the truth of the allegations of fraud.
    The sureties on the bail bond of such defendant, cannot defend under such stipulation, on the ground that on a judgment entered thereon, an execution against the person could not issue.
    The effect of the stipulation is merely to extend time, which extension not depriving the sureties of their right to demand that proceedings should be taken against their principal, nor of their right to surrender their principal, does not exonerate the sureties.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 3, 1888.
    Appeal by defendants from judgment entered upon the decision of a judge at special term.
    The following opinion was delivered by the court at special term:
   O’Gorman, J.

This action is brought to enforce against defendants their obligation as sureties on a bail bond -given by one Rogers in an action against him, in which the plaintiff here was plaintiff and in which Rogers was arrested.

The gist of that action was fraud on the part of Rogers, whereby the plaintiff was induced to lend him money on a note. Rogers in his answer denied the fraud.

When that case was reached for trial on the calendar and about to be tried, a written stipulation was entered into between the respective attorneys, which stipulation is set forth at length in the defendants’ answer in this present action. The main question now is as to the true construction of that stipulation.

The defendants contend that it involves the abandonment by the plaintiff there of all charge of fraud against Rogers and the right to arrest him or to issue execution against his person in that action; and that all liability of the sureties there, who are the defendants in this present action, thereby terminated.

I should, perhaps, be of that opinion but for the following provision in the stipulation: In case the plaintiff shall enter judgment herein upon the defaults in either of the payments above provided, he shall have the same right to enforce said judgment so entered, by execution, as he could have, had such judgment been entered, upon the verdict of a jury in favor of the plaintiff in this action.” I cannot see any purpose in that provision unless it be to secure to the plaintiff his right to issue execution against the person of Rogers.

Rogers had, by a preceding clause of the stipulation, withdrawn his answer. The plaintiff had not withdrawn or modified his complaint which charged fraud on the part of Rogers. A verdict in his favor would have involved a finding of fraud as the necessary ground and gist of the action and also, as a consequence, the right to issue execution against the person of Rogers. The plaintiff’s right to issue execution against the property of Rogers existed of course, and needed no consent on the part of Rogers, inserted in the stipulation to preserve that right.

The judgment actually entered, although entered by virtue of the stipulation and by consent of the attorney of Rogers, was yet founded on a complaint alleging fraud, not denied by an answer of Rogers, and with the same force and effect as if the fraud alleged had been proved to the satisfaction of a jury.

The disclaimer of fraud made by Rogers in the stipulation did not affect the judgment record in which the fraud stands affirmed, and admitted, because not denied.

This, I think, is the true construction of the stipulation taken as a whole. It meant that the plaintiff was to lose none of his rights against Rogers by reason of the indulgence he extended to him as to time for payment, etc., and in case the terms on which that indulgence was granted were not complied with. The issue of execution against the person of Rogers was therefore, justifiable and valid.

• The next contention of the defendants is that the stipulation involved an extension of time to Rogers for payment of the claim in suit and a delay on the part of the plaintiff in putting his legal remedies into execution which exonerated the defendants here who were his sureties.

By the terms of the stipulation the time allowed Rogers to pay the plaintiff Avas four months. Before issue of the execution against his person, Rogers placed himself outside the jurisdiction of this court. The defendants were not parties to or even aware of the stipulation when it was made, and made no request that plaintiff should proceed against Rogers with promptitude or without delay.

The sureties on a statutory bail bond have all the rights of sureties and are discharged if the creditor, on their request that he should proceed against the principal, refuses to do so. Toles v. Adee, 84 N. Y. 239; Remsen v. Beekman, 25 Ib. 556. But the mere extension of time to pay did not, in the absence of such demand, exonerate the sureties. Ducker v. Rapp, 67 N. Y. 471.

The sureties had always the right to protect themselves by surrendering their principal to the sheriff under section 591 of the Code.

Tliis case was tried by me without a jury, and, in my opinion, the plaintiff is entitled to judgment for the relief demanded in his complaint, with costs.

The following is the stipulation referred to in the above opinion:—

“ The answer heretofore served in this action by the defendant is hereby withdrawn. The plaintiff hereby stipulates not to enter judgment herein until the 29th day of March, 1886. If the defendant shall on or before the 29th day of March, 1886, or before the plaintiff shall have entered judgment herein, pay to the plaintiff the sum of $3,000 on account of the note held by the plaintiff, then the plaintiff agrees not to enter judgment herein until the first day of July, 1886. If the defendant shall on or before the first day of July, 1886, or before the plaintiff shall have entered judgment therein, pay to the plaintiff the sum -remaining due on said note with interest thereon and with the costs of this action, then the plaintiff’ will discontinue this action and will deliver to the defendant the said note. In case the plaintiff shall enter judgment herein upon the defaults in either of the payments above provided, he shall have the same right to enforce said judgment so entered by execution as he could have, had such judgment been entered upon the verdict of a jury in favor of the plaintiff in this action. The defendant recognizes by this stipulation his full liability to the plaintiff upon the said note, but hereby disclaims any admission of the. truth of the allegations of fraud in the complaint contained, and enters into this stipulation solely as a means of providing security for the payments above provided for, and of providing a remedy in case of a default in the said payments. Dated New York, March 8, 1886.”

The court below found that “ the said agreement was made without the consent of knowledge of, and without notice to these defendants” ; and that the defendants in'this action were not informed of said agreement at the time of its execution, nor did they since learn of it until the commencement of this action.” It also appeared from the findings, that prior to the entry of judgment, defendant went to Europe and there remained.

Stickney & Shepard, attorneys, and Nelson S. Spencer. of counsel, for appellants :

I. The plaintiff failed to prove the fraud alleged in the complaint in the action against Rogers, and consequently acquired no right to issue execution against Rogers’ person and the liability of his bail has not accrued. The execution against the person was void. The sureties undertook that in case the plaintiff obtained a right to have the body of his debtor in execution of a judgment, that they would pledge themselves for his appearance. This right the plaintiff has failed to obtain. The statute, § 549, Code Civ. Proc., required him not only to allege fraud, but to prove it. It provides that the plaintiff cannot recover unless he proves the fraud. Plaintiff did not prove the fraud in this action. He never even went to trial. Instead of doing so he arranged a settlement of the action with Rogers, whereby the case is left, in effect, one where the defendant has obtained a verdict in his favor on the question of fraud, but where the plaintiff has subsequently obtained a judgment (in the words of § 536), “ upon the contract only.” It will not be seriously contended that in such a case an execution against the person could be issued or bail held liable. The learned judge errs in saying that “ a verdict in his [plaintiff’s] favor would have involved a finding of fraud, as the necessary ground and gist of the action.” It would not do so if there were no proof of fraud and if the defendant, as in this case, consented to a verdict against him upon the contract liability.

II. The plaintiff, by making the stipulation with Rogers, expressly waived his charges of fraud, and consequently the right to issue execution against, his body and the liability of his bail. The learned trial judge suggests that the clause in the stipulation providing that plaintiff should have the same right to enforce a judgment to be entered by execution that he could have, had a judgment been entered upon the verdict of a jury in his favor, secures him a right to execute the judgment against Rogers’ person. It is submitted that this clause does not have this effect. The stipulation must be read as a whole. These words under such circumstances, can refer to nothing but an execution against property. Even upon the assumption that they were intended to include an execution against the person, they must, upon familiar rules of construction, be read so as to give effect to the entire stipulation. This they would not do if they should be held to include an execution against the person. The subsequent provision disclaiming the fraud would be nullified, as it is only upon the basis of that fraud, and of proof of it, that the plaintiff would be entitled to a judgment which would give him the right to issue such an execution. This construction is not affected by the suggestion that this right existed of course. It is a frequent occurrence, that, for abundant caution, provisions which secure rights which the law itself confers, are inserted in stipulations. If the plaintiff had intended to acquire the right to a body execution, he would have named it specially. And even if the plaintiff could have saved himself thus the right of a body execution as against Rogers, he could not do so as against the sureties. They were absolutely entitled to a proof of the fraud before he could recover against them. To dispense with proof of fraud would be an alteration of their contract, to which they must consent before it could bind them. They did not consent.

III. The plaintiff extended the time within which Rogers’ debt could be collected and thereby released the sureties.

With the action against Rogers marked ready for trial, and with full knowledge that if he could prove his case he could procure a judgment against Rogers at once, the plaintiff deliberately extended Rogers’ time to pay the debt four months—from the 8th of March until the 1st of July. In the meantime Rogers left the country. Such an agreement released the sureties. Bower v. Tiermann, 3 Den. 378 ; Ross v. Ferris, 18 Hun 210; Rathbone v. Warren, 10 Johns. 587; Ducker v. Rapp, 67 N. Y. 464. It is no answer to these authorities to .say that the bail could have at any time surrendered their principal.' They are sureties with all the rights and remedies of sureties in other cases. Toles v. Adee, 84 N. Y. 222. In the nature of things, they would not be justified in making a surrender without some fact or suspicion of fact as the basis of their action. But they had no fact or suspicion which would move them to make a surrender. They were utterly ignorant of the situation of the matter. And there is no provision of law which throws upon them the burden of discovering private arrangements out of court between their principal and his plaintiff such as was made in this ease. They depend and have a right to depend upon the guaranty which the law gives them that their contract shall be enforced strictissimi juries. If the plaintiff had taken his judgment when he could have procured it on the 8th of March, they would then have been advised that they would shortly be called upon to make good their engagement and could have taken the necessary precautions to insure Rogers’ appearance in answer to an execution against his person. But before judgment was entered Rogers had left the country and their ability to Surrender him was gone.

Randolph B. Martine, attorney, and James Patrick, of counsel, for respondent:

I. In the stipulation withdrawing the answer, it is specially provided that the plaintiff shall have all the rights to enforce his judgment that he would have had if the judgment had been entered after a trial upon the merits. This clause would seem to be conclusive.

II. It is, however, respectfully submitted that the defendants in this action (the bail) cannot set up or avail themselves of any objection to the judgment, in Stein-bock against Rogers, its manner of entry, or question the right to personal execution; these objections are personal to the defendant and cannot be raised by his bail when they are sued upon the bond given by them. Bensel v. Lynch, 44 N. Y. 162; Jewett v. Crane, 35 Barb. 208; Gregory v. Levy, 12 Ib. 610; Crowell v. Brown, 17 How. Pr. 68; How v. Frear, 21 Ib. 343; Lovee v. Carpenter, 3 Abb. Pr. N. S. 309; 30 N. Y. 581; 6 Ib. 561; 28 Ib. 318.

III. The position taken by the appellant that by reason of the fact that time in which to pay the claim Avas given by the stipulation AvithdraAving answer, the bail are released from their obligation is untenable. The extension Avas nothing more than a step in the action in which the plaintiff was attempting to enforce the payment of his claim, it was in no sense an extension of the liability of the sureties, and does not fall Avithin the rule of principal and surety as applied to ordinary cases of contract. The bond Avas an obligation to produce the body of the defendant, pursuant to the mandate of the court and not to pay the claim. No allegation is made in the pleadings of defendants or proAren on the trial, that they suffered any loss Avhatever, or Avere in any manner injured by said stipulation. In Toles v. Adee, 84 N. Y. 222, the court say that there must be injury to the surety or bail arising from the act complained of by them to constitute a defense, and further that where the bail bond is given in accordance Avith terms of the statute and the right to deliver up the principal in exoneration at any time therefore exists the bail are fully protected, and cannot complain of delay in issuing execution or entering judgment against their principal. See also Emery v. Baltz, 94 N. Y. 40; Warner v. Beardsley, 8 Wend. 194; Thompson v. Hall, 45 Barb. 214 ; Singer v. Troutman, 49 Ib. 182; Herrick v. Borst, 4 Hill 650; King v. Baldwin, 17 Johns. 384; Fulton v. Matthews, 15 Ib. 432; Hubbell v. Carpenter, 5 N. Y. 177 ; Field v. Cutler, 4 Lans. 195. As to the effect of the right of bail to surrender principal at any time in exoneration, see Metcalf v. Stryker, 31 N. Y. 255.

Per Curiam.

The judgment should be affirmed with costs, upon the opinion delivered by the learned judge at special term.


author: Sedgwick, Ch. J. Per Curiam.

text:
    JAMES J. COOGAN, Appellant v. JOHN H. OCKERSHAUSEN, Respondent.

      Will—Implied charge—Implied power of sale—Bights of creditors over real property—Code Civ. Proc. §§ 2749, 2759—Exceptions, necessity of to insure review on appeal.

    When a will first directs the payment of the testator’s debts, and then devises all the rest, residue and remainder of his estate to his executor in trust, the legal effect of these provisions is to make the payment of the debts an implied charge upon the land, and the executor has an implied power of sale for the purpose of paying the debts, and in the exercise of that power will convey a good title to the property.
    Under §§ 2749 and 2759, Code Civil Procedure, the creditors, in such a case, have no claim on the land, except through said implied charge and power of sale, and the purchaser from the executor is under no obligation to see to the proper disposition of the purchase money; consequently, where title is offered under such a power, the purchaser may not object on the ground that the land will remain subject to the rights of the creditors, within three years, etc., it in no way appearing that the execution of said power is impracticable.
    Where the judgment entered is in accordance with the findings of fact and conclusions of law, and there are no exceptions to either, it is doubtful whether the case presents any question for review.
    Before Freedman and Ingraham, JJ.

      Decided January 3, 1888.

      Appeal from judgment entered on decision of the court at special term without a jury.
    Action to recover $250, which plaintiff paid to defendant under a contract made by defendant as executor of one Taylor, for the sale of property known as No. 240, Lexington avenue, New York city, and also the sum of $50 counsel fees.
    The complaint alleged that at the time fixed for the completion of the contract“ three years had not elapsed, since the death of the said Taylor, and there were claims against the estate of the said Taylor unsettled, and more than the personal estate of said Taylor,” and claimed that, for this reason, defendant could not give a good title.
    Further facts appear in the opinion.
    The court at special term, on finding for defendant, wrote the following opinion :
   Sedgwick, Ch. J.

The testator directed in his will: “I direct all my just debts and funeral expenses to be paid as soon as practicable after my decease.” All “ the rest, residue and remainder of his estate ” he devised to his executor, in trust, etc.

The will, by the legal effect of these provisions, made the payment of the debts a charge upon the land. White v. Kane, 51 Super. Ct. 295, and the numerous earlier cases. It is to be kept in mind, however, that the charge was not express, but implied.

The executor of the will, who was the devisee in trust, had an implied power of sale for the purpose of paying the debts. Story Eq. Jurisp., § 1064, b and note 3.

The specific objection to the power of the executor to convey a title is, that the land will remain subject to the right of the creditors within three years, etc., to apply to the surrogate for a decree that the land be sold for the purpose of paying debts which the personal estate was not sufficient to discharge. This right of the creditor is claimed to be established by sections 2749, et seq., of the Code of Civil Procedure. I assume that if in the present case the creditors might have a right to proceed under the statute, the objection made to the title would be good. The exception contained in section 2749 would not prevent an application being competently made to the surrogate. The exception is of real estate expressly charged with the payment of debts, etc. The present case concerns an implied charge. But before the surrogate can make a decree of sale he must find (§ 2759) that the property “is not subject to a valid power of sale for the payment of ” the debts; with a limitation that will be noticed. The statute does not refer to an express power. If there be an actual and valid, although implied, power the surrogate cannot make the decree.

, I am therefore of the opinion that the creditors have no claims upon the land, and will have none excepting through the implied charge, and power of sale that have been specified. The plaintiff is under no obligation to see ¡to the proper disposition of the purchase-money.

Hyde v. Tanner, 1 Barb. 75, differs from the present case because it had regard to the right of executors, etc., or of creditors, through them, to apply to the surrogate for leave to sell under the Revised Statutes. Those statutes permitted the sale of land without regard to the fact that the executor had power of sale, although if there were an express charge the land could not be sold.

■It has been shown that under the Code, if there be a valid power of sale, the land cannot be sold, with the limitation that will now be examined. Section 2759 declares that if there be a valid power of sale, the surrogate may make the decree, “ if it is not practicable to execute the power” and “the creditor has effectually relinquished the same.” These words do not include the present case, for there is no obj ection made that the power, if it exist, cannot be practically executed.

Cardozo & Newcombe, for appellant.

Thompson & Koss, for respondent.

1 think, further, that the powers of sale contained in the devises in trust were valid.

I have said nothing as to the personal property being the primary fund for the payment of debts, because the plaintiff places his objection to the title on the ground substantially that there appears to be a deficiency of personal property to pay debts.

Per Curiam.

The trial judge found as a fact that the defendant was ready and willing, and had full power and authority as executor of George G. Taylor deceased, to convey the property contracted to be sold, to the plaintiff, at the time, and in the manner provided in the contract of sale, and that the plaintiff failed and refused to fulfill the agreement on his part, or to receive or accept a conveyance of said premises from the defendant, as provided by said agreement. And, as a conclusion of law, that the defendant is entitled to judgment against the plaintiff dismissing the complaint with costs.

The will of the testator is not included in the record, and there are no exceptions to the findings of fact nor to the conclusions of law.

As the judgment entered was in accordance with the findings of fact and conclusions of law, it is doubtful, under the authorities, whether the case presents' any question for review. See Dainese v. Allen, 36 Super. Ct. 104 and cases cited. The supreme court appears to have held that the court has power to reverse, without exceptions, for a manifest error of law ascertainable from the findings actually made. Mandeville v. Marvin, 30 Hun 288.

On the question presented, however, we agree with the Chief Judge that the will made the payment of the testator’s debts a charge upon his real estate, and to carry out the provisions of the will directing payment of the testator’s debts, the executor of the will had an implied power of sale for the purpose of paying the debts, and in the exercise of that power to convey a good title to the property.

The judgment is therefore affirmed on the opinion, of the Chief Judge at special term, with costs.


author: By the Court.—Truax, J.

text:
    ADOLPHUS F. WARBURTON, Respondent v. JOHN P. CAMP, Appellant.

      Trusts created by acceptance of an assignment directing certain payments —Evidence, contradicting or varying written instruments, rule as to, not applicable to one not a party to it.—Trust in personalty may be created by parol, and grafted on a ivrilten instrument which makes no reference to it.

    An assignor of a claim may, as part of the consideration for the assignment, })rovide and direct that upon the collection of the claim portions of it shall be paid to certain designated persons other than himself, in which case the assignee by acceptance of the assignment becomes a trustee for the designated persons, to the extent of the portions directed to be paid to them, and upon the collection of the claim, an action will lie against him by them for the portions so directed.

    A parol agreement made at the time of the executing an assignment of a claim, as a part of the transaction, that a certain person should be paid a certain sum out of the proceeds of the claim when collected, may (although it be not embodied in the written instrument) be proved on behalf of such person, he not being a party to the instrument.

      Such parol agreement will create a trust in the assignee to make the payments agreed to be made.
    One in whose favor such a trust by parol is created may maintain an action as if the trust were embodied in the written instrument.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided January 3, 1888.
    Appeal from a judgment in favor of the plaintiff.
    The case was tried before the court without a jury. The facts sufficiently appear in the opinion.

      Wingate & Cullen, and George W. Wingate of counsel, for appellant.

      A. B. Cruikshank, attorney and of counsel, for respondent.

       The case did not involve any question as to whether the trust in favor of the plaintiff was merely voluntary, and therefore capable of revocation before payment, as there was no claim that the assignors had ever revoked it, or ever desired so to do.—Reporters.

   By the Court.—Truax, J.

In the year 1877, the plaintiff was doing business with one Bonynge, since deceased, under the name and style of Warburton and Bonynge. The plaintiff, at the instance and request of one Heath, rendered certain services for said Heath during the years 1877, 1878, in certain proceedings between said Heath and one Loren Ingersoll and another. It had been agreed between Heath and Isaiah T.Williams and Royal S. Crane that they (said Williams and Crane) should have an interest to the amount of $10,000, in the claims against Ingersoll and another, which were then in the process of litigation.

Prior to the 22d of August, 1878, plaintiff had rendered services of the value of $186.48, which sum the said Crane promised to pay. On that day the said Crane, who was the attorney for the said Heath, also agreed with the plaintiff that he should receive the said sum of money and interest thereon from July 1, 1877, out of any sum of money thereafter obtained from the said Ingersoll; and said Crane as attorney for the said Heath, signed an instrument which purported to give plaintiff a lien upon the said sum to that amount. There is no evidence in the case that Crane was authorized by Heath to make such a contract.

In September, 1878, Heath was Awarded $10,000. Plaintiff’s services were of the value of $900. On the 13th day of February, 1879, the said Williams and Crane assigned to the defendant their interest in the said sum of $10,000, and subsequently and in May, 1884, the defendant received said sum with interest and costs.

In May, 1879, Crane entered into another agreement with plaintiff which is not binding upon the defendant, because prior to the time this agreement was made Crane had assigned all his interest in the claim against the Ingersolls to the defendant, and, therefore, had nothing which he could. assign, or on which he could give an equitable lien to plaintiff.

It was claimed on the trial and on the argument of this appeal, that the defendant took said assignment in trust for various purposes, among which was the payment to plaintiff of said sum of $900, and interest, and that said assignment was made with notice to the defendant of plaintiff’s lien.

The assignment to the defendant is in writing. It mentions the consideration that the defendant was to pay for the assignment, and provides for the distribution in a certain way of the proceeds of the award. The plaintiff’s name was not mentioned in this assignment, nor was there any provision in the assignment that any sum should be paid to him. It is not claimed that at the time of the making of the assignment the defendant personally had notice of any hen that the plaintiff had on the award, but it was alleged that one Loomis was the agent of the defendant in the transaction in which said assignment was made, arid that as such agent, he had notice of the lien. The negotiations relating to the assignment from Williams and Crane to the defendant were conducted entirely by said Loomis. At the time this assignment was made, and as part of the transaction, Crane, one of the assignors, told said Loomis that he, said Loomis, must agree that the plaintiff should be paid first, and thereupon said Loomis wrote on a card a memorandum of the sums to be paid out of the award, and one of the sums mentioned in this memorandum is the sum claimed by the plaintiff herein. It is to be noticed that the assignment was made after the award had been made. This evidence warranted the finding of the trial judge that Loomis was the agent of the defendant in the transaction, but it did not warrant the further finding that the assignment to defendant was made with notice of plaintiff’s lien, for at that time plaintiff had no lien on the thing assigned.

I am of the opinion that the agreement under which the plaintiff is entitled to recover if at all is to be found in the transaction of February 13th. Part of that agreement is in writings signed by the said Williams and Crane. By accepting the assignment the defendant bound himself to pay out of the award certain sums of money, which were specified in the assignment, but as part of the transaction, and as part consideration for the assignment he, through his agent Loomis, agreed to pay to the plaintiff out of the fund the sum of $900, and an action can be maintained against him therefor. Remington v. Palmer, 62 N. Y. 31.

It is well settled in this state, that an agreementeither by parol or writing, to pay a debt out of a designated fund does not of itself give an equitable lien upon the fund or operate as an equitable assignment thereof (Williams v. Ingersoll, 89 N. Y. 509), and for this reason, if for no other, the plaintiff cannot recover under the alleged agreement testified to by him, to the effect that he was to be paid out of the first money that was received out of the award.

If plaintiff had been a party to the instruments through which defendants acquired the award, he would be precluded from contradicting or varying those instruments by parol evidence; but as he was not a party to them, he is not bound bv them, and may show what the real agreement was. Coleman v. The First National Bank, 53 N. Y. 388.

The fact that the alleged trust is not in writing will not defeat the plaintiff’s right of action, for a trust of personalty may be created without writing. Gilman v. McArdle, 99 N. Y 451.

I am of the opinion that defendant took the assignment of the award subject to the trust to pay plaintiff the sum of $900.

Judgment is affirmed with costs.

Sedgwick, Ch. J., concurred.


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

text:
    GEORGE H. STONEBRIDGE, Jr., as Receiver, &c., Respondent v. JAMES D. SMITH, as President of The New York Stock Exchange, Appellant.

      Stock exchange; committee on admission, power of to dispose of proceeds of sale of seat—Injunction against disposition, threats insufficient to maintain.

    The committee on admission of the New York Stock Exchange has comjjetent and legal power and authority to pay out of the proceeds of sale of a seat in the Exchange, belonging to a suspended member, the claims described in and authorized to be paid by the articles of the association of said exchange.
    Threats by an officer or member of the Exchange, even if he happen to be a member of said committee, to make an improper distribution (it not appearing that the committee had taken any action, or made any declaration on the subject), are insufficient to sustain an ad interim injunction against the President of the Exchange, his agents and attorney, and tire officers, committees and members of the Exchange, restraining them, pendente lite, from disposing of, or in any manner interfering with (except to preserve the same), the whole or any part of the proceeds of the sale of the seat of suspended member.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 6, 1888.
    Appeal by defendant, from order continuing order of injunction, pendente lite.

    The injunction order restrained and enjoined James D. Smith, as President of the New York Stock Exchange, his agents and attorneys and the officers, committees and members of the New York Stock Exchange, and each of them, pending the determination of the action, from disposing of, or in anywise or manner interfering with (excepting to preserve the same), the whole or any part of the proceeds of the sale of the seat or membership of Edward C. Fox, in the New York Stock Exchange.

      Carter & Ledyard, attorneys, and Lewis Cass Ledyard, of counsel for appellant, on the questions considered in the opinion, urged:
    I. The precise provisions of the constitution of the New York Stock Exchange, invoked by the defendant in this case, in force at the time of Fox’s suspension are: Article 14, § 3. If any suspended member fails to settle with his creditors within one year from the time of his suspension, his membership shall be disposed of by the committee on admission, and the proceeds paid, pro rata, to his creditors in the Stock Exchange. This was amended before the suspension of Fox so as to read : “ § 3. If any suspended member fails to settle with his creditors, and apply for re-admission within one year from the time of his suspension, his membership shall be disposed of by the committee on admission, and the proceeds paid, pro rata, to his creditors in the Exchange.” These provisions are lawful, reasonable and of binding force on all members of the Exchange, and empowered the committee on admission to pay out of the proceeds of the sale of the seat of the suspended member, the claims authorized to be paid by the articles of association. President, etc., of the Delaware & Hudson Canal Co. v. The Penn. Coal Co., 50 N. Y. 251; Gingerly v. Johnson, 3 Weekly Notes of Cases 541; Thompson v. Adams, 93 Pa. St. R. 55; Evans v. Winter, 1 W. N. C. 181; Weston v. Ives, 97 N. Y. 222.
    II. No action can be maintained before an adjudication by the committee. Gebhard v. New York Club, N. Y. Daily Register, Nov. 15, 1887; Platt v. Jones, 49 Super. Ct. 779.
    III. The plaintiff has a perfect, complete and adequate remedy at law in an action against the Exchange, for money had and received, if the committee pays over any part of the proceeds to persons not entitled. Weston v. Ives, supra.

    IV. No declaration of any officer or member of the Exchange, even if he happen to be a member of the committee on admission, can establish any threatened improper disposition of proceeds, or violation of duty by the committee.

      Henry Bischoff, Jr., attorney and of counsel for respondent, on the question considered in the opinion, argued:—
    Í. The provisions of the constitution so far as they seek to confer upon the committee on admission power and authority to decide upon the validity of claims upon the proceeds of the sale of the membership of Edward C. Fox, are void as against public policy and the constitutional law of the state. Austin v. Searing, 16 N. Y. 223.
    II. If they are not absolutely void, the authority of the committee on admissions is nevertheless limited to valid and subsisting claims entitled to preference pursuant to the provisions of the constitution and by-laws. It is urged on plaintiff’s behalf that the claims presented to the committee on admission, for payment out of the proceeds of sale in dispute, are not valid and subsisting claims, and are not entitled to payment out of such proceeds of sale; that such claims are fraudulent and fictitious and made only to defraud the plaintiff, and that at the time such fraudulent claims were created, the constitution and by-laws of the Stock Exchange provided that only debts arising upon unsettled contracts should be preferred in payment, and that none of the claims presented are upon unsettled contracts; and that the N. Y. Stock Exchange, its officers and members, are about and threaten to pay such, pretended claims out of the proceeds of sale. The committee has no power to admit- such claims. Wesson v. Ives, 97 N. Y. 222.
    The appellant is threatened with a loss of his property owing to the fraud and collusion of Fox and certain members of the Exchange pretended to be creditors and entitled to payment out of the proceeds of the sale of Fox’s seat, and the impotency of the N. Y. Stock Exchange, its committees, officers and members to resist the payment of such claims. It also appears from the moving papers that the N. Y. Stock Exchange has threatened to pay such pretended claims out of such proceeds of sale, and this allegation is uncontroverted. An in-j unction is therefore both proper and necessary. Christopher v. Mayor, 13 Barb. 567 ; S. C. 5 Abb. 41; Mitchell v. Stewart, 3 Abb. (N. S.) 250; Blatchford v. Ross, 54 Barb. 42; S. C., 37 How. Pr. 110 ; 5 Abb. (N. S.) 434 ; Great Western Railway Co. v. Birmingham, &c., Railway Co., 2 Phillips Ch. 597; Code Civ. Proc. § 604, subd. 1; § 820.
   By the Court.—Sedgwick, Ch. J.

The plaintiff is the receiver of the property of a partnership. One of the partners, Edward C. Fox, had been a member of Stock Exchange. His seat had been bought with partnerskip money. He became insolvent, and was suspended under the rules of the Exchange. Under those rules his seat had been sold, and the plaintiff has the right to the proceeds of the sale that Fox would have had in the circumstances.

There are three articles of the constitution of the Exchange which relate to the disposition of the proceeds of a sale of a seat. The respondent denies that one of these controls this case, inasmuch as it was made after the suspension of Fox. This appeal will be determined irrespective of this subject, and the other articles alone will be considered.

These articles are: “If any suspended member fails to settle with his creditors, within one year from the time of his suspension, his membership shall be disposed of by the committee, and the proceeds paid, pro rata, to his creditors in the Exchange; ” and that passed after-wards : “ If any suspended member fails to settle with his creditors and apply for re-admission within one year from the time of his suspension, his membership shall be disposed of by the committee on admission, and the proceeds paid, pro rata, to his creditors in the Exchange.”

The complaint claims that by conspiracy between Fox and certain members of the Exchange, persons claiming to be creditors have filed with the committee on admission “ claims to said proceeds upon debts or demands against said Fox, which are wholly or partly fictitious, and wholly or partly have no foundation in fact, and do not come within the preferences established pursuant to the constitution and by-laws of the Exchange; and that the N. Y. Stock Exchange, its officers and members, threaten to pay said fraudulent and fictitious claims to the injury of the plaintiff.”

The relief asked is an accounting of the proceeds of sale, a judgment “ directing the payment to this plaintiff, as receiver, of the sum received by said N. Y. Stock Exchange, or said James D. Smith as President, or of such part thereof as the said receiver may be entitled to receive,” and that during the pendency of this action, the defendant as such president, and all the officers and members of said Stock Exchange, having custody or control of the said fund may be enjoined and restrained from in any way or manner disposing of, or parting with any part or portion of said fund.

Under the articles that have been quoted, the committee on admission have competent and legal power and authority to pay, out of the proceeds, the claims described by the articles, but of course no other claims. A threat by any officer or member of the Stock Exchange, even if by chance such individual were a member of the committee, would not tend to show that the committee, as such, threatened to make an improper distribution of any part of the money. It does not appear that the committee have taken any action, or made any declaration on the subject. It is to be presumed that their action will be legal. The supposed admissions of the answer on the subject of what power in this regard the committee have, do not extend to what the committee propose to do, or intend to do, as a •committee.

The complaint does not demand that the committee act upon the subject, but demands that they shall not act. The plaintiff has no right to any part of the fund, until the committee has exhausted its power. And the complaint does not allege that no part of the fund could be paid validly by the committee.

Not applying what has been said to any part of the cause of action, excepting the.demand for an injunction, and applying it to the order of injunction, I am of opinion that the injunction infringes the right of the committee on admission to proceed in a proper way to make a proper disposition of the fund.

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

Freedman and Ingraham, JJ., concurred.


text:
    CHARLES W. HASSLER, as Trustee, &c., Appellant v. HENRY B. TURNBULL, Respondent.

      Referee, refusal to grant motion, unless his fees are paid, in the absence of bad faith, etc., constitutes at most, error—Motion to set report aside not the appropriate remedy therefor.

    Where there was a stipulation that each party should pay the referee’s fees, for proceedings taken by him, and after several meetings the plaintiff rested, the referee’s fees at that time amounting to a certain sum, which under the stipulation was payable by plaintiff, and thereafter plaintiff moved to reopen the case, which the referee refused to allow unless paid the fees then due. Held, That at the most (there being no evidence of bad faith, or bias, or corruption), the action of the referee was but error, for the correction of which the setting aside of his report and vacating the order of reference, on a motion therefor, was not the appropriate remedy.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 6, 1888.
    Appeal by plaintiff from order denying plaintiff’s motion to set aside the report of a referee and for a new reference.

      J. B. Sabine, attorney, and Charles W. Hassler, of counsel for appellant, cited as bearing on the questions involved :
    Greenwood v. Marvin, 29 Hun 99; Burrows v. Dickinson, 35 Hun 492; Hassler Trustee (No. 2) v. Turnbull, 10 Civ. Proc. R. 240; Gray v. Fisk, 1 J. & S. 484; Ellsworth v. Smith, 56 How. 237, 238 ; Roosa v. S. & B. R. R., 12, How. 297; Harlem Bank v. Todd, 4 Week. Dig. 64; Baylies1 Trial Pr. 292.

      Walter S. Pinckney, attorney and of counsel for respondent.
   By the Court.—Sedgwick, Ch. J.

On the affidavits, it must be held that it was understood that each party-should pay the referee’s fees for the proceedings taken by such party, during the proceeding. In June, 1885, the plaintiff: rested without having paid the fees due by him. The amount was $105. In June, 1886, the defendant having taken no proceedings, the plaintiff moved to open the case, to introduce further testimony. The referee refused to grant said motion, unless the plaintiff would pay the fees that had accrued, and which the plaintiff had promised to pay. Thereafter, the plaintiff and defendant consented to close the case. It was submitted. The referee’s report dismissing the complaint, was filed. Before judgment was entered, the motion below was made to set aside the report and vacate the order of reference, on the ground that the conduct of the referee in refusing to re-open the case was improper. The affidavit in support of the motion averred that there had been no understanding that each side should pay the fees during the progress of the case. The determination of the learned judge, that there was such an understanding, should not be reversed.

It may be granted that the referee should not make it a condition of deciding in favor of the plaintiff, that fees due by the latter should be paid, even if the referee would be justified in refusing to hear the motion for non-payment of fees. It does not, however, appear that at the most, the referee’s action was other than erroneous. There may be a question as to whether there was not error. There is no evidence of bad faith, or bias, or corruption. If there were only error, the remedy claimed below of setting aside the report and of vacating the order of reference, was not appropriate, and the learned judge was right in his decision.

Order affirmed with $10 costs.

Freedman and Ingraham, JJ., concurred.


text:
    WILLIAM A. WHEELOCK, Respondent v. MICHAEL NOONAN, Appellant.

      Contempt—disobedience of injunction order—inability to perform act— poverty.—Appeal—what not waiver of.

    The judgment herein enjoined the defendant from keeping upon plaintiff’s premises certain rock and stone, placed there by defendant, and ordered defendant to remove the same, on or before March 15, 1886. The judgment, etc., was duly served on defendant, but he wholly failed to-comply therewith. On proof of these facts, the court, on proceedings taken, found defendant guilty of contempt, and further that said contempt defeated and prejudiced plaintiff’s rights, etc., and fined defendant $100, and further ordered that defendant be imprisoned until he should pay the fine and costs, and do and perform the omissions and things required by said judgment. Held, That the case was brought within the provisions of § 2281, Code Civ. Proc., and as the misconduct proved .consisted of an omission to perform an act or duty which it was yet in the power of the defendant to perform, the order made was proper.
    In opposition, defendant endeavored to show that he was physically unable to perform the act required, and that by reason of poverty he was unable to have the rock removed by others. Held, That whether such facts, if proved, could be urged in opposition to this motion, or whether the proper practice was to commit the accused, and remit him to motion for relief under § 2286, Code Civ. Proc., need not be decided—it not being clear from the evidence that defendant was unable to perform the judgment of the court within the time fixed, or that he is now unable to perform it, and it appearing that he has at present some property.
    That defendant in such a case, has taken advantage of a stay of proceedings for ten days to allow time to make a motion to be relieved from imprisonment, does not preclude him from appealing from the contempt order containing the provision for the stay.
    Before Truax and Ingraham, JJ.

      Decided February 6, 1888.
    Appeal from order adjudging the defendant guilty of contempt, for a refusal and neglect to obey and perform the judgment in this action, and committing him to the county jail; there to be kept and imprisoned, until he shall pay the fine and costs imposed, and do and perform the matters and things required in and by the judgment of the court, as set forth therein.

      L. Laflin Kellogg, for appellant:
    I. The defendant was physically and financially unable to comply with the decree of this court. The affidavits upon which the order to show cause was granted, simply showed failure to obey the decree. They did not show ability to obey. The defendant’s answer to this motion was in these words: “Since the rendering of the judgment of the court in this action 1 have been physically unable, personally, to obey the same, or remove the stone by my own hands, and I am and have been, financially and pecuniarily, unable to pay others for its removal.” If anything more was needed the defendant, who was tendered for that purpose, could have been examined under order of the courts. This course was not pursued. The proof shows that defendant is without money or assets, covered with judgments and enjoined from disposing of his assets, too poor to support his family, it must be evident to the court that the defendant is powerless to obey the decree.
    II. Inability to obey the decree or order of a court is a complete defense of proceedings to punish for contempt. Rapelje on Contempts, 155 § 115; Cochran v. Ingersoll, 13 Hun 370; 73 N. Y. 613; Doran v. Dempsey, 1 Bradf. 490; McCartin v. Van Sickle, 10 Bosw. 694; Goodenough v. Davids, 4 Monthly Law Bull. 35 ; Hogue v. Hayes, 53 Iowa 377; Ex parte Bigg, 64 N. C. 202; Adams v. Haskell, 6 Cal. 316; Re Hills, 13 Phila. Pa. 340.
    III. The commitment should not have been ordered in the first instance, when the defendant’s inability had been shown. Cochran v. Ingersoll, 13 Hun 370; 73 N. Y. 613. It is true as claimed that section 2281, Code of Procedure provides that one guilty of contempt must be punished. It is also true that section 2286 allows a defendant guilty of contempt to apply for a release. But unless the court find that the defendant is able to perform, the court has no power to make the order for perpetual imprisonment. Code, § 2285.
    IV. The order appealed from is defective in that it contains no adjudication that the defendant is guilty of contempt, and that such misconduct was calculated to and did impair, defeat, impede and prejudice the rights of the parties to the action. § 2281 Code Civ. Proc.; Mahone v. Mahone, 5 Civ. Proc. Rep. 58; Swenarton v. Shupe, 40 Hun 43; Albany City Bank v. Schermerhorn, 9 Paige 372; Clark v Bininger, 75 N. Y. 344; People v. Rogers, 2 Paige 102 ; Fischer v. Raab, 81 N. Y. 235; Sandford v. Sandford, 40 Hun 540. The recitals in the order, if complete, are insufficient. “ It must be made to appear and be adjudicated.” Fischer v. Raab, 81 N. Y. 238. “ It must be ascertained and adjudicated.” Sand-ford v. Sandford, 40 Hun 540. The recital in this case is not that the misconduct was calculated and did defeat, etc., but that the contempt was calculated and did defeat, etc. It is hard to see how the contempt had any effect except as between the court and the prisoner.

      Martin & Smith, attorneys, and George A. Strong of counsel, for respondent:
    I. The court really erred in defendant’s favor, for the proper practice is to adjudge the contempt first, and then allow the excuse of poverty to be presented. Code, § 2286. The excuse of poverty, by express provision, is only received, from an offender in actual confinement, .and cannot be presented, upon the motion to punish for contempt. Ryckman v. Ryckman, 34 Hun 238 ; Matter of Snyder, 103 N. Y. 181. Cochran v. Ingersoll, 13 Hun 370, is distinguishable.
    II. Admitting that the issue of poverty could be tendered upon this motion, the order was right upon the merits. Clark v. Bininger, 75 N. Y. 349; Matter Snyder, 34 Hun 302 ; 103 N. Y. 181; Wheelock v. Noonan, Daily Reg., Nov. 23, 1887.
   By the Court.—Ingraham, J.

By subdivision three of section 14 of the Code, it is provided that the court has power to punish, by fine and imprisonment, a party to an action for any disobedience to a lawful mandate of the court, other than a payment of a sum of money, and by section 2266 of the Code, it is provided that in a case specified in section 14, the offense must be punished as prescribed in that title. By section 2269 it is provided that the court or judge authorized to punish for the offense, must, upon being satisfied by affidavits of the commission of the offense, either make ■ an order requiring the accused to show cause before it why he should not be punished for the alleged offense, or issue a warrant of attachment. Section 2283 provides for the proceeding upon the return of the order to show cause, where such an order is made, and it is there provided that if the determination is to the effect specified in section 2281, viz.: that the accused had committed the offense charged, that it was calculated to or did actually defeat, impair, impede or prejudice the rights or remedies of a party to an action, the court must make a final order accordingly, and direct that he be punished by fine or imprisonment, or both, as the nature of the case may require, and upon service of a copy of the order so made, the offender may be committed "without further process. By section 2285 it is provided that where the misconduct proved consists of an omission to perform an act or duty which it is yet in the power of the offender to perform, he shall be imprisoned only until he has performed and paid the fine imposed.

The judgment in this action enjoined and restrained the defendant from keeping and maintaining, upon certain premises of the plaintiff, the whole or any of the rock or stones which the defendant theretofore placed upon the said premises, and ordered and directed the said defendant to remove from the said premises all of said rocks and stones, such removal to be fully completed on or before the 15th day of March, 1886. It appeared that such judgment was on the 6th day of January, 1886, duly served upon the defendant, and that said defendant had neglected and refused to comply with said judgment, and had not removed from the premises all of the said ' stones or rocks on or before the 15th day of March, 1886. On this proof, the court found that the defendant had been guilty of the contenipt charged against him, in that he had refused and neglected to obey and perform the judgment of the court, and further found that the said contempt was calculated to and did defeat, impair, impede and prejudice, the' lawful right of the plaintiff herein to have so removed from his premises mentioned in said judgment, the rock which the defendant had previously placed thereon; and it was thereupon- ordered that a fine of one hundred dollars be imposed upon the defendant for his above mentioned contempt, and further ordered that the defendant be committed to the common jail of the city and county of New York, there to be kept, imprisoned, until he should pay the fine and costs imposed as aforesaid, and do and perform the omissions and things required in and by the said judgment of the court.

The evidence before the judge at special term was sufficient to sustain the finding that the defendant had been guilty of the contempt, and that said contempt did defeat and prejudice the plaintiff’s right, etc., and the case was thus directly brought within the terms of section 2281 of the Code, and as the misconduct proved consisted of an omission to perform an act or duty which it was yet in the power of the defendant to péform, the judge was justified in directing that the defendant be imprisoned until he perform the act and pay the fine imposed.

In opposition to the motion, the defendant endeavored to show that he was physically unable to perform the act required to be done by the judgment, and that by reason of poverty he was unable to have the rock removed and so comply with the judgment of the court.

Whether such fact if proved could be urged in opposition to this motion, or whether the proper practice was to grant the order committing the accused, and if he wished to be relieved from imprisonment to require him to make amotion to be so relieved under section 2286, of the Code, it is not necessary to determine, as from the evidence presented to the court, it is not by any means clear that the defendant was unable to perform the judgment of the court within the time that the judgment directed it to be done, or that he is now unable to perform it. His explanation of the disposition of the moneys received by him is not entirely satisfactory, and it is clear that he has at present some property. Under such circumstances, we are of the opinion that the court was right in granting the order and reserving the determination of the question of the defendant’s ability to obey the judgment to be determined on a motion to be relieved' from the imprisonment, when such terms could be imposed as would best protect the interests of the plaintiff.

We think therefore that the order should be affirmed with ten dollars costs and disbursements.

As to the motion to dismiss the appeal, on the ground that the defendant has accepted the privilege allowed him by the order appealed from, we do not think that motion should be granted.

The order committed the defendant for contempt and stayed the proceedings for ten days to allow the defendant to make a motion to be relieved from imprisonment. The defendant had the legal right to make such a motion. He did not make it in pursuance of any permission contained in the order appealed from. There was, therefore, no acceptance by him of any benefit under the order that would prevent him from prosecuting the appeal.

That motion must therefore be denied, without costs.

Truax, J., concurred.


author: Per Curiam.

text:
    JACOB LORILLARD, Respondent v. WILLIAM P. CLYDE, et al., Appellants.

      lies adjudicada—defense not withdrawn and not supported by testimony.

    Where the judgment roll in a prior action between the same parties is, prima facie, an adjudication against the defendant, on a defense set up by the answer in both actions, it is not competent for defendant, upon the admission of the judgment roll in evidence, in the action pending, to show, by witnesses that, in the former action, he had given no testimony in support of the defense in question, the said defense not having been withdrawn.
    If said defense in the prior action, were not withdrawn and not supported by the testimony, an adjudication must have been made competently against defendant.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided February 6, 1888.
    Appeal from judgment entered upon verdict of jury, and upon order denying motion for new trial made upon the minutes.
    Action to recover an instalment under contract by which defendants on their part, guaranteed and agreed to pay plaintiff, in each and every year of the term of seven years succeeding July 1, 1874, dividends of not less than seven per cent, upon the par value of the stock of a certain corporation, amounting to the sum of $150,000, subscribed and paid for by plaintiff.
    Further facts appear in the opinion.

      Boardman & Boardman, attorneys, and Benjamin F. Tracy of counsel, for appellants :
    I. The rule that an action brought to recover instalments falling due upon a contract must include all the instalments due at the time of bringing the action is elementary and so well settled that it is hardly necessary to cite authorities in support thereof. Guernsey v. Carver, 8 Wend. 492; Stevens v. Lockwood, 13 Ib. 644; Bendernagle v. Cocks, 19 Ib. 207; Secor v. Sturges, 16 N. Y. 548.
    II. The judgment recovered in the action brought in this court is not an adjudication between these parties, if the several instalments do not constitute one entire cause of action. It is true that in that action the defendants’ answer set up another action pending in the City Court of Brooklyn to recover for the same identical cause of action, and that notwithstanding this plea, the plaintiff had judgment. But no such defense was presented to the court upon the trial. The defendant waived that defense in that action, gave no proof in support of it, and it was not passed upon by the court. Under such circumstances the judgment is not res adjudícala.

    III. The defendant had a right to prove on the trial of this action that in the former action pending in this court no proof was given on the trial in support of his plea in abatement, and that that defense was not submitted to the court for its adjudication, and he had a right to prove this by parol. Lorillard v. Clyde, 102 N. Y. 65 ; Doty v. Brown, 4 Ib. 71; Wood v. Jackson, 8 Wend. 9; Lawrence v. Hunt, 10 Ib. 80; Dunckel v. Wiles, 1 Kern. 420.

      Varnum & Harrison, attorneys, and Asa Bird Gardiner and Richard L. Sweezy of counsel, for respondent:
    It has been conclusively adjudicated by the prior judgments in this court, and in the City Court of Brooklyn, that as between these parties, and upon this contract, successive actions may be brought, and successive recoveries had, although for instalments all due when the action for the first instalment was brought. Lorillard v. Clyde, 102 N. Y. 59. A judgment is conclusive in all subsequent litigations between the parties thereto, -upon all matters of law or fact presented by the pleadings and litigated on the trial, or which are involved in the judgment, whether actually litigated or not. Tuska v. O’Brien, 68 N. Y. 446; Marcellus v. Countryman, 65 Barb. 201; Dunham v. Bower, 77 N. Y. 76 ; Smith v. Heimstreet, 54 Ib. 644. Defendants claim that the moneys sued for in this action, and also in the two prior actions, being all due when the former action was commenced in this court, in November, 1881, constituted but a single cause of action, and should all have been included in said prior action in this court. But "they raised this defense in both the prior actions, and the plaintiff, nevertheless, recovered in both of them. It has, therefore, been twice adjudicated that this is not a good defense; that these several claims did not constitute a single and indivisible ‘cause of action, but that separate actions could be brought for the same. Lorillard v. Clyde, supra.

   Per Curiam.

In the trial below, two judgment rolls were offered in evidence by the plaintiff. It was then, and on the argument of this appeal, assumed that, prima facie, the judgments were adjudications against the defendants on an issue made by the answer in this action, of the same kind as made in the answers in the former actions.

To show that actually the adjudications were not made in the former actions, the defendants asked of a witness questions, framed to show that in the former actions the defendant had given'no testimony in support of the defenses. These questions were properly excluded, because,' although testimony might not have been given, the defenses were not withdrawn. If not withdrawn and they were not supported by testimony, adjudications must have been made competently against the defendants.

Judgment and order affirmed with costs.