author: By the Court—Robertson , J.

text:
    Charles French, Plaintiff and Appellant, v. James C. Willet, Defendant and Respondent.
    1. The Revised Statutes do not imperatively make it the duty of a retiring Sheriff to assign over, at the end of his term, to the new Sheriflj a debtor taken in execution, who is upon the jail limits, so as to make him, if he omits so to do, liable to the judgment creditor in the amount of the debt, as though it were an escape.
    2. Such omission will not charge, prima facie, the retiring Sheriff with the whole debt.
    3. In an action for damages for such omission, an omission by the plaintiff to cause the prisoner to be retaken, by issuing a second execution to the new Sheriff, may be considered in mitigation of the damages.
    4. Evidence of the mere possession of money by the prisoner, several years before the defendant went out of office, is inadmissible.
    5. Evidence of cause of his not assigning the prisoner, is admissible, if notin justification, in mitigation of damages.
    (Before Robertson, White and Monell, J. J.)
    Heard, November 13, 18G2;
    decided, April 25, 1863.
    This was an appeal by the plaintiff from a judgment entered on a verdict for nominal damages recovered by him on the trial of the cause.
    In February, 1856, the plaintiff recovered a judgmen against one Plin White, for $12,588.56, and after execution against property issued and returned unsatisfied, an execution against the person was issued in April, 1856, to the defendant, then Sheriff of the Oity and County of Hew York, on which he held White, on January 1st, 1859, when his term of office expired.
    John Kelly was elected Sheriff to succeed the defendant, qualified and gave the security required by law, and on January 11th, 1859, the County Clerk’s certificate that Sheriff Kelly had so qualified and given security was served on the defendant, who did not, however, deliver White to his successor. White had previously given a bond for the limits, which the defendant still held. The plaintiff brought this action to recover his damages.
    The cause was heard at Special Term in 1860, upon a demurrer to the complaint, and the decision is reported in 4 Bosw., 649.
    The demurrer being overruled, the defendant answered, putting in issue the judgment, and in mitigation of damages pleaded that White, at the time the judgment was recovered, was utterly insolvent and irresponsible, without any means or property out of which the judgment could have been collected or satisfied, and had ever since so been. " The action came on to be tried before Mr. Justice Eobebtsob, and a Jury, on the 13th day of January, 1862.
    The defendant being examined as a witness, was asked why he had not assigned over the prisoner, White. The question was objected to by the plaintiff’s counsel. The objection was overruled, and to such ruling the plaintiff’s counsel excepted.
    A. “He came back to get a few days, to get security to satisfy Sheriff Kelly, and the ten days expired before he gave security; he has not got it yet, and of course he was on my hands, and that was the way of it.”
    White being examined was asked:
    Q. “ Have you been using considerable sums of money during the last few years?”
    This question was objected to as indefinite. The objection was sustained, and the plaintiff’s counsel excepted.
    Q. “ Have you been in the habit of using considerable sums of money since 1856 ?” (Objected that the inquiry should be limited to since 1859. Objection sustained, and plaintiff’s counsel excepts.)
    Q. “Have you been spending considerable sums of money for any purpose since 1856 ?”
    (Objected to as too remote. Allowed. Defendant excepts.)
    A. “I have spent money since 1856; I cannot tell how much; I cannot give any idea of the amount.”
    Various further inquiries, in regard to the defendant’s expenditures and losses since 1856, were put and answered.
    At the close of the trial the counsel for the plaintiff requested the Court to charge that the defendant -was prima facie liable for the amount due on the original judgment, and that he might reduce the damages by proof that White was so poor as to be unable to pay. These requests the Court refused, except so far as he should thereafter charge the Jury according to them.
    The substance of the charge which was given, so far as material, is stated in the opinion of the Court.
    J. E. Parsons and J. T. Brady, for plaintiff, appellant. .
    I. The Court erred in refusing to permit the plaintiff to show by the cross-examination of White that he had been using considerable sums of money between 1856 and 1859. The plaintiff sought to show the use and consequent possession by White of means before 1859', to be followed up by questions compelling him to account for the disposition of the means to the possession of which he should testify. The Court, on the defendant’s objection, fixed the year 1859 (the escape was as of January 1,1859), as arbitrarily limiting this branch of inquiry. This was error.
    If. The plaintiffs also sought to show by White whether he had parted with money in any other way than by returning money borrowed and for personal expenses, between 1852 and 1856; the object was, 1st, if hé testified that he had not parted with money, to claim that he then must have had on January 1,1856, and if not accounted for subsequently on January 1,1859, what other witnesses should testify he had received; and 2d, and principally, if he testified to having parted with means, to ask in what way, so as to show that on January 1, 1859, he had them under his control, as a trust or deposit, or in any other way he should state. The Court, though permitting the defendant to offer evidence to show that during the same period White had nothing, held an objection well taken that the same period of time was too remote within which to permit the plaintiff to prove in this way that White did have means. This was error.
    III. It was error to permit the defendant to testify why he did not assign over White to Sheriff Kelly.
    1. Because his reason could not excuse his non-performance of a statutory duty strictly enjoined.
    2. Because if it could, the reason must have been pleaded in justification of the admitted fact, that White was not assigned.
    3. An answer, the inquiry being held admissible, and the Jury thereby having the right to infer that they might consider the evidence, was likely to, and did, injure the plaintiff in inducing the Jury to infer that defendant had not been willfully' derelict.
    IV. The whole scope of the charge and rule laid down by the Judge in reference to damages, was erroneous.
    1. The rule of damages, the Judge charged, was the same as that in the case of a voluntary escape. In that case the Sheriff is prima facie liable for the amount of the execution. (Patterson v. Westervelt, 17 Wend., 543; Latham v. Westervelt, 26 Barb., 256; Humphrey v. Hathorn, 24 Id., 278 ; Ledyard, v. Jones, 3 Seld., 550.)
    2. And the damages can only be reduced by evidence that the judgment debtor is so poor as to be unable to pay the judgment, in whole or in part; if indeed, in case of a voluntary escape, it may be so reduced. (Potter v. Lansing, 1 Johns., 215; Brooks v. Hoyt, 6 Pick., 468 ; Burrell v. Lithgow, 2 Mass. R., 526; Spafford v. Goodell, 3 McLean, 97.)
    3. Neither justice nor the intention of the statute permit that the Sheriff may suffer a judgment debtor, able to pay, held on execution for fraud, who would rather remain in custody than pay, for that reason to go at large. The result-would be to legalize the enormity which this case illustrates: White was proved to have abundant means; he swore that he held on to it against all efforts to obtain it from him ; and for that reason the defendant is suffered to permit White to go at large with impunity.
    4. A rule of damages dependent on the disposition of the judgment debtor possessed of means, to withhold them against the coercive power of an execution against his person, would be too vague, indefinite, and uncertain to govern a Jury.
    5. The intention of the Legislature may be drawn from the legislative enactments providing for the execution debtor’s discharge; which can never be till he has made an assignment of all his property for the first benefit of the plaintiff in the execution. This shows that the Legislature never intended that an execution debtor, possessed of means, should go at large. (3 B. S., 5th ed., 105.)
    6. The arrest of the execution debtor operates as a satisfaction of the judgment. (Cooper v. Bigelow, 1 Cow., 56.) It even discharges the lien of the judgment on the debtor’s real estate. (Jackson v. Benedict, 13 Johns., 533.) The Sheriff is entitled to, and receives his poundage, from which amount of damage, at all events, the right to a new execution, and consequent privilege of again paying poundage, cannot save the plaintiff. (Adams v. Hopkins, 5 Johns., 252; Scott v. Shaw, 13 Id., 378.) And the plaintiff may not issue an execution against the property. (3 R. S., 5th ed., 643, § 7.) If the execution against the person were a mere means of coercion, looking merely to compelling payment of the debt, why should it suspend the plaintiff’s right to levy on property the debtor may have, or operate as a discharge of the lieu of the judgment on real estate. (Scott v. Shaw, 13 Johns., 378.) If, therefore, the debtor escape, the presumption is that the plaintiff thereby has lost his debt; he has lost that which is made equivalent to a satisfaction of his debt, and the amount of damage sustained is, therefore, prima facie the amount of the debt.
    7. And it was error for the Court to charge that the plaintiff had the right to issue a new execution.
    8. In cases of voluntary escape, though a new execution may be issued by the plaintiff, that circumstance cannot be considered in favor of the Sheriff. (Lansing v. Fleet, 2 Johns. Cases, 3.)
    If the plaintiff elect to prosecute the Sheriff, which he has the right to do, he may not thereafter hold the execution debtor, and so may not be met by the plea, in mitigation of damages; that he has the right to retake him. (Rawson v. Turner, 4 Johns., 473; Wesson v. Chamberlain, .3 Comst., 333.) The provision that a prisoner escaping “ may be retaken on a new execution against his body,” (2 R. S., 364, § 8; same stat. 1 E. L., 426, § 24; 8 and 9 Wm. III, ch., 27,) is intended for the benefit of the plaintiff, not of the Sheriff, who cannot, after a voluntary escape., retake on the old execution. (Lansing v. Fleet, 2 Johns. Cas., 10.)
    It is only a voluntary return or a recaption by the Sheriff before the commencement of the suit, that can absolve thé Sheriff. (3 E. S., 5th ed., 734, § 69; Id., 736, $ 85.)

      A. Vanderpoel, and D. D. Field, for defendant, respondent.
    1. The appellant must fail, on his exception as to the admissibility of defendant’s reason for not assigning over the prisoner. 1. The reason why a thing was not done at the precise time that the law required, is surely admissible in an action for neglecting to do it. It was proper to prove that it was not owing to willful neglect, but that an effort was made to obey the requirements of the law, in the usual manner, which effort failed without the defendant’s fault.
    2. The question called forth no other evidence than was already in the case. (Weisser v. Denison, 10 N. Y. R., [6 Seld.,] 68; Robbins v. Codman, 4 E. D. Smith, 315; Onondaga County Ins. Co. v. Minard, 2 Comst., 98 ; Shorter v.
      People, Id., 193; Rooney v. 2d Ave. R. R., 18 N. Y. R., 368.)
    3. Even if the question was improperly allowed, the appellant cannot avail himself of this, because the answer was proper. (Dolittle v. Eddy, 7 Barb., 74.)
    II. The other exceptions were not well taken. The appellant suffered no injury from the allowance of the amendment, in any form, the Court having charged that the defense set up in that amendment was worthless, and the Jury having found accordingly.
    III. The exception to the charge as a whole, cannot but fail. Unless the charge taken altogether is plainly injurious, a general exception to the whole charge is of no effect. One correct instruction would defeat the exception. (Camden R. R. v. Belknap, 21 Wend., 354; Labron v. Woram, 1 Hill, 91; Hayden v. Palmer, 2 Id., 205; Whiteside v. Jackson, 1 Wend., 418; Haggart v. Morgan, 5 N. Y. R., 422; Hunt v. Maybee, 7 Id., 266; Hart v. Rensselaer, &c., R. R. Co., 8 Id., 37; Abbotts’ Dig., “ Exceptions,” vol. 3, p. 8.)
    IV. The exception to that part of the charge, wherein the Jury is instructed that the plaintiff had the right to issue a new execution against the person of White, is untenable. (Mumford v. Armstrong, 4 Cow., 553; Sharp v. Caswell, 6 Id., 65 ; Jackson v. Bartlett, 8 Johns., 361; 3 R. S., 643, § 8; Scott v. Henley, 1 M. & Rob., 227; McGuinty v. Herrick, 5 Wend., 240; Com.Dig., “Escape,” E; Bacon’s Abr., “Escape,” C; Butler v. Washburn, 5 Foster, [N. H.,] 251; Colley v. Morgan, 5 Geo., 178; Shuler v. Garrison, 5 Watts & Serg., 455; Smith v. Hart, 1 Brevard, [S. Car.,] 146; Thomas v. Weed, 14 Johns., 255; Rawson v. Dole, 2 Id., 254; Duncan v. Klinefelter, 5 Watts, 141; Brooks v. Hoyt, 6 Pick., 468; Patterson v. Westervelt, 17 Wend., 543; Platt v. Sherry, 7 Id., 238, Nelson, J.; 2 R. S., 437, § 63, 1st ed.; 3 Id., 736, § 84, 5th ed.; 2 Id., 434, § 47, 1st ed.; 3 Id., 734, § 68, 5th ed.; Johnson v. Macon, 1 Wash. R., [Va.,] 4; Renick v. Orser, 4 Bosw., 384.)
    V. The Court very properly left the question of the possible effect of a new execution to the Jury. The charge as to the measure of damages was correct. (Hilliard on Torts, II, 342, [1st ed.;] Stryker v. Merseles, 4 Zab., 542; Billingsly v. Rankin, 2 Swan, [Tenn.,] 82; Robinson v. Harrison, 7 Humph., 189; Mickles v. Hart, 1 Denio, 548; Stevens v. Rowe, 3 Id., 327; Williams v. Mostyn, 4 Mees. & W., 145; 2 Jur., 643; 1 Horn & H., 217; 7 Dowl. P. C., 38; Barker v. Green, 2 Bing., 317 ; 9 Moore, 584; Boyton’s Case, 3 Co., 44; Bridge v. Grand Junction R. R. Co., 3 Mees. & W., 248; Potter v. Lansing, 1 Johns., 215; Patterson v. Westervelt, 17 Wend., 543; Latham v. Westervelt, 26 Barb., 256; Loosey v. Orser, 4 Bosw., 391, 402, 403 ; Arden v. Goodacre, 11 C. B., 371, 15 Jur., 776 ; Spafford v. Goodell, 3 McLean, 97; Chase v. Keyes, 2 Gray, 214; Weld v. Bartlett, 10 Mass. R., 474; Humphrey v. Hathorn, 24 Barb., 278.) The case of Ledyard v. Jones (3 Seld., 550) is doubtful in point of law, and, moreover, inapplicable to the present case.
    VI. Beside the statutory definition of an escape already referred to, it is apparent from the 73d section of the same statute, that the failure of the old Sheriff to deliver over a prisoner to the new Sheriff, does not relieve the prisoner from custody. If, after the expiration of ten days, the old Sheriff does not deliver over, the new Sheriff may “ take possession of such jail, and take the custody of the prisoners therein confined," and compel the delivery of the process and documents.
    Hothing is to be intended to charge tfie Sheriff for an escape. (Boyton's Case, 3 Coke, 44.)
    According to the common law, until the prisoners are delivered.over to the new Sheriff, they remain in the custody of the old Sheriff, notwithstanding the commission of the new Sheriff and the writ of discharge and delivery. (Hempstead v. Weed, 20 Johns., 64; Partridge v. Westervelt, 13 Wend., 500; Currie v. Worthy, 2 Jones L., [N. C.,] 104; Johnson v. Macon, 1 Wash., [Va.,] 4; Arthur v. Bokenham, 11 Mod., 150.)
    VII. The question as to how far the old Sheriff can have the benefit of a limit bond, or re-imprison, if he discovers that his sureties are insufficient, may be, and is, a very different matter. These are inconveniences and risks which he runs by not assigning. (Hempstead v. Weed, 20 Johns., 64.)
   By the Court—Robertson , J.

Before the revision of the statutes of this State in 1830, a retiring Sheriff was only relieved from the custody of prisoners by a writ of discharge, the form of which was prescribed in the same statute with the commission to the new Sheriff. (1 Rev. Laws, 418, §§ 1, 5.) The transfer of such custody to the succeeding Sheriff was then not a duty, but the privilege of the outgoing officer for his own protection. (Hemstead v. Weed, 20 Johns., 73.) A contrary doctrine had previously been laid down by Bacon in his Abridgment, (vol. 2, p. 517, Escape in Civil Actions,) which was not sustained by the authorities cited by him therefor. One of the resolutions in Westbre’s Case, (3 Rep., 72,) incorrectly cited in Buller’s N. P., (p. 68,) fully sustained it, however, and it was accordingly so held in the case just referred to. (20 Johns., 73.)

In that case, also, Spercer, J., in delivering the opinion of the Court, draws a distinction between prisoners in close custody and those on the limits or jail liberties, and holds that, as to the latter, all conflict of power between the two. Sheriffs ceases. He adds, “ that there is no want of authority on the part of the old Sheriff to retain the custody.” He then declares the question of the right of the Sheriff to commit to prison in case the sureties for the limits are bad, to be quite another and distinct one, and intimates that perhaps he could not commit to the jail of the county, but concludes that such inability might be merely one of the inconveniences and risks which he would escape by assigning prisoners who were not in jail at the end of his term.

Being at large within the jail liberties, which never was an escape on mesne, nor perhaps even on final process, is expressly declared not to be so by statute. (2 R. S., 434, 1st ed., 47.) The phrase, “ any prisoner who would be entitled to the liberties of any jail, upon executing such bond,” is declared by the Revisers to have been inserted in that provision to remove a doubt suggested in 9 Johns., 84, and 7 Id., 479, 3 R. S., 2d ed., 746, app. A new provision was also added in the same article, (2 R. S., 434, $ 44,) allowing a Sheriff to recommit a prisoner in case his sureties for his remaining on the jail liberties should prove insufficient. That was a slight variation of an existing provision. (1 Rev. L., 429, § 6.) There is no provision for a commitment to close custody, in any other case. The power of the Sheriff to admit a prisoner to the jail liberties without taking a bond, which is now made statutory, (2 R. S., 437, §§ 62, 63; 3 Id., 737, 5th ed.,) is given as a reason, in the Revisers’ notes, (3 R. S., 2d ed., 748, app.,) for limiting his liability for an escape on mesne process to actual damages. (1 Rev. L., 425, § 19.)

The article of the Revised Statutes which is supposed to have changed a retiring Sheriff’s privilege of assigning prisonersflon the limits, to a duty, so as to make him liable absolutely, as on an escape, for the debt for which they are imprisoned, will be found, on examination, not to have made any such marked changes in the previous law as to show an intention to' produce such a result. (2 R. S., P. III., Ch. VII, Tit. 6, Art. 5.) The first section of that article (2 R. S., 438, § 67; 3 Id., 5th ed., 737, § 88) provides for the service on the old Sheriff, instead of a writ of discharge, of a county clerk’s certificate that his successor had qualified. The next section (§ 68) declares that upon the service of such certificate the powers of the old Sheriff, except where excepted by law, shall cease. This language is not stronger than the 5th section of the former statute in reference to the effect of a writ of discharge. (1 Rev. L., 418.) This provision, literally construed, without the exceptions contained in it, would make every writ directed to him fall powerless from his hands, allow prisoners in his custody to escape, and render him functus officio, officially dead. But the exception, properly construed, will "be found large enough to include everything to prevent such disastrous results. These two sections (67 and 68) are avowed by the Revisers to be a mere substitute for a writ of discharge. (3 R. S., 2d ed., 748,- app.) The next section gives the old Sheriff ten days in which to deliver to his successor the jail with its contents, prisoners confined therein and official documents in his hands. This certainly must be one of the exceptions to the previous section, alluded to therein, because it assumes that the custody of such jail, contents, prisoners and documents, still remains with the old Sheriff until the end of the ten days. This is stated in the Revisers’ notes to have been simply declaratory, (3 R. S., 2d ed., 748, app.,) and collected from various authorities which they furnish. Both it and the next section (§ 70) are also said therein to have been inserted merely to remove doubts and settle difficult questions raised in old cases which are therein referred to; the case for which the 70th section is intended, is mentioned therein. as being in 7 Johns., 138. Hone of such cases, authorities or questions, relate to the delivery of prisoners on the limits. The 71st and 72d sections, which relate to the execution of unexecuted process, are , the only new provisions, and so avowed to be. (3 R. S., app., ubi si{p.)

The article of the Revised Statutes containing the sections under discussion, is entitled merely, “Proceedings on the election or appointment of a new Sheriffthe title of that which immediately precedes it is, “ Of escapes and the liabilities of Sheriff therein.” It is not, therefore, in the former that we should expect to find a provision to make a Sheriff liable for an escape or quasi escape. Hor is there anything in that article indicating such an intention, unless by the 68th section of it, the power of the old Sheriff to detain prisoners until delivered or assigned to his successor, is taken away eo instanti on the service of a certificate, or is only prolonged by the 69th for ten days, at the end of which time there is to be a general jail delivery. But, by the 73d section, the new Sheriff has a right to take possession, of the jail, its contents, prisoners confined therein, and official documents, after the ten days; and yet, under the doctrine contended for, such prisoners are supposed to be out of every one’s custody, by force of the previous 68th and 69th sections. The legal mode of the new Sheriff’s obtaining possession of such building, documents and persons, is declared to be the same as that of getting possession of books and papers. (1 R. S., 124.) That mode is the commitment of the delinquent officer until he delivers up what is demanded, and the issuing of a search warrant to seize and bring it before the inquiring officer, who is to cause the same to • be delivered to the complaining party. That presupposes a custody by the retiring officer of whatever he possessed by virtue of his office, and a capability of its being delivered to his successor. The law did not intend that a prisoner legally • free and unlawfully held in custody by the old Sheriff, should be handed over to his successor by means of such proceedings. Prisoners confined in jail were, therefore, legally detained in custody by a retiring Sheriff until he delivered them to his successor. Prisoners on the limits were equally in his legal custody, and he was responsible for their remaining there, unless the sureties became insufficient, and he had a right to rearrest them and deliver them to his successor. The same' sections of the same article were interpreted by a former eminent Chief Justice of the former Supreme Court of this State, (Savage, J., in the case of Partridge v. Westervelt, 13 Wend., 500,) as not containing provisions materially variant from Ihe common law. He noticed the only deviation from it in thereby making the transfer of the prisoners no longer a privilege but a duty; and he held specifically that the Revised Statutes retained the principle of the common law as to prisoners at large on the liberties remaining in custody of the old Sheriff until assigned to the new one. He declined to give any opinion, however, as to those in close' confinement. It is clear that “the jail” spoken of, both in section 69 and section 73, is the building, because those sections also speak of “its contents;” the words “confined therein,” used in such sections, could also only apply to prisoners in close custody. Indeed, no delivery could well he made of “ the liberties

Hinds v. Doubleday, (21 Wend., 223,) is cited as authority for the doctrine that an omission by a retiring Sheriff to assign a prisoner on the limits, for ten days after service on him of a certificate of his successor having qualified, is an escape. That was' an action, by the retiring Sheriff, ■ against sureties on a limit bond, for an escape after the end of his official term. The election and qualification of a new Sheriff, service upon the plaintiff of the proper certificate thereof, and the delivery to the former by the latter, of all prisoners confined in jail, including the prisoner in question, were pleaded in bar. To this the plaintiff replied, that he had not assigned such prisoner to his successor. The only question, therefore, which could arise on such pleadings was, whether the delivery of the prisoner to the new Sheriff, without an assignment, took him out of the custody of the old, so as to relieve him from the consequences of an escape; and this was the only point upon which the Court was bound to pass. It held the pleas to be a good bar, because the Sheriff had lost all control over the prisoner by the delivery merely of him to his successor, to whom alone the responsibility of his safe keeping would attach. The replication was disposed of by saying that the control of the plaintiff could not continue beyond the ten days mentioned in section 69, and no excuse was shown for not executing an assignment. If any excuse had been admissible, the liability of the plaintiff in that case for a constructive escape, in not either delivering or assigning, might not have been absolute, and of course his control of the prisoner might have continued longer than such ten days. It is true that the learned Judge (Beoxsost, J.) who decided that case, incidentally discussed the effect of the omission of an old Sheriff to deliver his prisoners to his successor in ten days after service of a certificate, and concluded that the 68th, 69th and 71st sections of the article of the Bevised Statutes, already alluded to, took away all powers from the retiring Sheriff, instantly on the service of the certificate in the 68th section, laying stress on the language of that section. But that position, in fact, proves too much, as it proves the instantaneous paralysis of the authority of the old Sheriff on service of the prescribed certificate. But the same learned Judge took no notice of the exception contained in such section, or of the 73d section; and did not undertake to point out how a prisoner at large in the liberties upon a bond is to be committed to close custody, by the Sheriff who originally arrested him, while his sureties are sufficient; nor is anything said of illegal detention. He was also silent as to the custody of the prisoners during the interregnum of ten days, or until the delivery to the new Sheriff. The law cannot require the violent capture by the old Sheriff of parties on the limits, in order to put them into jail; or, if so, permit a new Sheriff thus to get possession of those thus illegally detained in jail by its delivery. The whole of such discussion, which was imma- ■ terial to the real point in the case, overlooked the most important and controlling provisions in the statute. I cannot, therefore, consider the case of Hinds v. Doubleday as overruling the views of Ohief Justice Savage, in Penbridge v. Westervelt, (ubi sup.,) in regard to the authority of retiring Sheriffs over prisoners at large in the jail liberties, or as establishing that the Bevised Statutes intended to abolish the rule in Hempstead v. Weed, (ubi sup.)

Besides this, the Bevised Statutes expressly provide that going at large on the jail liberties shall not be an escape. (2 E, S., 434, § 47; 3 Id., 5th ed., 734, § 68.) They also define what an escape is, (2 B. S., 437, § 63; 3 Id., 5th ed., 736, § 84,) and do not provide for the recovery of any damages unless for wandering beyond the limits of such liberties. In this case the prisoner in question (White) never was beyond the limits. The new Sheriff had as much right to take him as the old, if the latter had actually lost his custody and could not commit him. In so extensive liberties as exist in this country, it would be rigorous to require a Sheriff to hunt up, in ten days, a prisoner concealed within them, or to pay the debt.

The liability of the defendant in 'this case, therefore, was clearly not for an escape, and the rules applicable to such a liability are not strictly applicable to it.

This Court, when this case was before it at Special Term on demurrer, put such liability on the ground of a breach of duty by violating the statute, for which nominal damages at least were recoverable. (4 Bosw., 649.) Of course, for an escape, unless the party was entirely insolvent, the damages could not be reduced to that extent, as was held in two cases in the same volume. (Renick v. Orser, 4 Bosw., 384; Loosey v. Orser, Id., 391.) The learned Judge who delivered the opinion on such occasion admitted the possibility of a diminution or reduction of damages by the detention of the prisoner by the new Sheriff if he remained in his custody, or by his taking him under the 73d section, to the extent of even an absolute annihilation of them. This, perhaps, is an ingenious and the only mode of reconciling the provisions of the 73d section with the views of Judge BROirsosr, in Hinds v. DouMeday, which wholly ignore its existence, and rest on the 68th section for support. It may be doubted whether the failure by the retiring Shériff to deliver a prisoner can, as towards any one but his successor, be considered a breach of a duty imposed by a part of a statute entitled “ of proceedings on the election of Sheriffs,” unless by the most express enactment of liability, and whether all liability for any failure of duty in regard to the custody of a prisoner to a party at whose instance such prisoner is under arrest, was not intended to be disposed of in a previous part of the same statute entitled of escapes and the liability of Sheriffs thereon. It is not very easy to determine what is the measure of damages for such a breach of duty to such party, if it exists. Of course, the only injury which could arise therefrom must be the prisoner’s remaining in the custody of the old Sheriff rather than the new, in which only the comparative vigilance or responsibility of the two Sheriffs would be concerned, and the plaintiff could only be damnified by the loss of any superiority of the new Sheriff in that respect.

Although strongly impressed on the trial with the belief that the defendant was not liable at all, I deferred to the authority of the decision in this Court made in this case and just referred to, and, therefore, abstained from charging that the omission of the defendant had produced an escape. One of the requests of the plaintiff’s counsel to charge was, “ that the defendant is prima facie liable for the amount of the original judgment.” The instruction given was, that where the plaintiff has utterly lost his remedy against the party charged, and there is no evidence to show that he was not worth the amount, the law presumes he has lost his whole debt, and he is entitled to recover the whole amount. Also, that the question was how much the plaintiff had lost, which he could have obtained by the prisoner remaining in custody (of the defendant) until the beginning of this suit.. Further, thát “in an ordinary case of escape, * * where there is no “ evidence that the judgment against the prisoner would “not have brought the full amount, the plaintiff is enti- “ tied to recover the full amount.” Moreover, that “ if the “ Jury thought the coercion of the party, from the time of “ the failure to assign to the commencement of the suit, “ would have brought the money from him, the plaintiff “ had suffered damage to the full amountand, finally, that they were to consider the responsibility of the party in custody, in determining how far his detention in jail would have brought the money from him before the commencement of this'action. These were much more liberal rules in the plaintiff’s favor than, in my view at present, he was entitled to. Olearly, the omission to deliver, unless it amounted to an escape, did not charge the defendant prima facie with the whole debt. There was no evidence that such omission merely was the cause of such a loss, or, indeed, of any injury. Probably, under the decision at Special Term already adverted to, the proper instruction would have been that the plaintiff, having proved no special damage by the supposed breach of duty to him, was only entitled to nominal damages.

Exceptions were, however, taken by the defendant’s counsel, to what he termed such parts of the charge as stated “ that the plaintiff had a right to issue a new execution, and that either that right, or the omission to “ issue such execution, or the possibility of taking White “ (the prisoner) on it, could affect the question of damages or enter into the consideration of the Jury; and that the “ object of an execution against the person is to coerce “payment, and that the plaintiff’s loss could be deter- “ mined with reference to, or be affected by, such power “ of coercion, or that the effect of an execution against “ the person, as causing such coercion, could affect the “ question of damages.”

In reference to a new execution, the charge to the Jury as, in substance, merely that the plaintiff, in an action /or an escape, might possibly, if he chose, exercise the same coercion, by obtaining the same control over the prisoner’s body by a new execution as he had by the old, and such possibility might be taken into consideration; that they, however, had a right to take into consideration, in the case before them, “ that the party had been within reach of process, by which the plaintiff might have taken him “into custody.” Bothing was said of a new execution. The phrase beginning, “ but you have a right to take into consideration the fact that the plaintiff might possibly have recovered the amount of the judgment,” &c., is evidently, from the use of the word “ but,” a mere qualification of the preceding statement of the rule in case of an escape. The words “plaintiff,” “judgment,” and “his body,” plainly refer to the imaginary case of escape only Indeed, “ his ” can only properly refer to “ the party who escapes ” as an antecedent. So that “ you have” is equivalent to “ one has ”—not an unfrequent form of expression.

The 73d section (ubi sup.) of the statute under consideration evidently provides “ a process,” by which prisoners of old Sheriffs can be taken into custody by their successors. Of course the expression in the charge, that the plaintiff could have taken the prisóner into custody, does not mean literally that he could arrest him personally, and no exception is made on that score. It is equivalent to saying he could have had him taken into custody by lawful means. It may not be impossible that a new Sheriff may require a new execution to take and retain a prisoner in custody, charged in execution in a civil action. It could certainly do no harm if the prisoner were detained in custody on the original execution, and it might be possible that some such step was necessary to be taken by the plaintiff in order to compel a new Sheriff to take the, custody of prisoners from a predecessor. There was no request to charge that it could not be issued, or that it was useless; and that not being done, if the Jury had even been instructed that they could take into consideration a power of reception thereon, it would not have been error, because it would tend to define the extent of the injury.

The power of issuing a new execution by a plaintiff in case of an escape is sustained by both statute and common law. (2 R. S., 685, § 20; 3 Id., 5th ed., 643, § 8; 1 R. L., [1813,] 426, § 24; Wesson v. Chamberlain, 3 Comst., 333.) And I think there can be no doubt that an execution against the person is a means of coercion, and neither a compensation nor a punishment, since the insolvency of the prisoner can be given in evidence in mitigation of damages. If a new execution had been available in this case, the Jury had a right to take that fact into consideration in determining how much the plaintiff lost, because he could not avail himself of any remissness on his own part. (Bridge v. Grand Junction, Sec., 3 Mees. & W., 248.) Since the reason of the rule for excluding the consideration of the power of issuing a new execution in case of an escape is not applicable to an action of this kind, which is, that the same ground would justify an escape from every suecessive execution, ad infinitum. (See Arden v. Goodacre, 11 C. B., 371; S. C., 15 Jur., 776; Ledyard v. Jones, 4 Sandf. S. C., 67; S. C., 3 Seld., 550.)

Any power in the new Sheriff to take into his custody prisoners not delivered or assigned, and his actual taking by virtue* thereof, undoubtedly arise from some continuing authority of the original execution. And yet, if he should be indisposed to take such custody, the plaintiff might quicken his action by a new execution, when he would be bound to decide whether he would proceed under the statute or the execution. If the plaintiff could do that, then certainly it would be no harm for the Jury to take into consideration both the power of the Sheriff under the 73d section, and the aid to that power afforded by a new execution. The only question upon that point would be, whether the plaintiff would suffer the same damages in both cases, whether he could not or could issue a new execution.

The only real questions in the cause on the merits were, whether the plaintiff suffered the same damages as in case of an escape; and if he did not, what such damages were, and what considerations of existing circumstances or rights tended to enlarge or diminish them. The power of issuing a new execution seems to me to be one of such circumstances even where there is no escape. But, as I have said before, there was no charge, that the plaintiff could arrest the defendant by a new execution, but only that he could take him by process, which could as well refer to setting the new Sheriff in motion under the 73d section, as by a writ directed to him. The real point was, whether the prisoner was so discharged from custody as to give the' plaintiff a right to recover the whole of his claim, or only a part, in consequence of such discharge. There was, therefore, no error in the refusal of the requests to charge, or any part of the charge excepted to.

Exceptions taken to the admission or rejection of evidence were equally untenable. The first exception was to the admission of evidence of the prisoner having used considerable money since 1856. Evidence of his having spent considerable money was allowed. It did not appear what was intended by “ usedif it meant the same as spent, the question was answered; if it did not it was too vague and remote to show the possession of any property in 1859, the time of the defendant’s supposed omission. There must be a limit to all such inquiries, and three years is too far back to commence a fishing inquiry.

An objection taken to the inquiry for the defendant’s reason for not assigning the prisoner in question was properly overruled. He had already answered in the negative, the plaintiff’s inquiry, whether he had assigned the limit bond in this case, and that his reason for not delivering up such prisoner was that the new Sheriff had refused others. If his answer to the» question excepted to had been that his reason was a matter which formed a legal excuse, it might have turned out to be a defense or a mitigation of damages; particularly if the defendant was only answerable for delay in assigning, and not" for anything which would defeat the claim. As it was the answer only became immaterial.

There was, therefore, no error in either the charge, refusal to charge, admission or rejection of evidence. The charge was, perhaps, more favorable to the plaintiff than he might have been entitled to ; but he cannot complain of that.

The judgment and verdict must therefore be affirmed, with costs.


source: Caselaw Access Project

author: By the Court — Robertson, J.,

license: Public Domain

text:
    Griffith W. Griffith et al., Plaintiffs and Appellants, v. Thomson R. Hadley, Defendant and Respondent.
    Surprise, and gross inadequacy of price are sufficient grounds for setting aside a judicial sale of real estate, upon fully indemnifying the purchaser.
    The sale of several distinct and separate parcels of land, greatly exceeding the debt to be collected, in one mass, to the prejudice of the debtor, is a .sufficient ground for setting aside a sale of real estate, even without indemnity to the purchaser.
    (Before Robertson, White and Monell, J. J.
    Heard, November 22;
    decided, December 20, 1862.
    This was an appeal from an order made on an application to set aside a sale made by a Receiver appointed in supplementary proceedings taken on a judgment recovered in this action.
    The Receiver was appointed in June, 1862. An order was obtained by him, by default, authorizing him to sell the defendant’s real estate, on advertising it in a daily newspaper in New York for three weeks. It was so advertised, and sold on Saturday, the 20th of September last, to the present appellant, Mr. Burrell, by whom it was conveyed, on the 26th of the same month, to a Mr. Butler. Mr. Butler was not a party to these proceedings, nor was he notified of the application, and he did not appear in this Court, either at General or Special Term. His affidavit was used by Mr. Burrell, on the application at Special Term. Under what circumstances, or with what knowledge that was obtained, does not appear.
   By the Court — Robertson, J.,

(after stating the facts.) The evidence is conflicting as to whether the Receiver’s attorney informed - the defendant’s attorney that the day of sale was the 30th of September, the preponderance being rather in favor of his being informed that it was the 20th. But, from the evidence, there can be no doubt he thought the date given him was the 30th. Preparation was made by him, and also an effort to pay the judgment before that time. The conveyance of the property by the purchaser, on the 26th, after knowledge of the defendant’s claim, also indicates some unfairness or eagerness to take advantage of his position. There is enough in the facts of the case to warrant the Justice who decided the motion to infer such surprise as would entitle the defendant to have the sale opened upon terms. The property was probably sold at a great undervalue and after very little, if any, competition. Upon indemnifying the purchaser liberally, the Court was justified in ordering a resale. Upon that ground the order was probably not appealable, as lying within the discretion of the Court. But there jvas, also, another ground on which the sale was sought to be set aside as.irregular, to wit, that the property consisted of several houses and lots, on different sides of the Bowery, in this city, and in 83d street; the debt to be collected being less than two hundred dollars, and the value of such interest greatly exceeding that sum; the purchaser paid $1,050 for it, and demanded $1,000 for a release The Revised Statutes expressly provide for sales in par cels, in case of sales on execution by a Sheriff. (2 R. S., 369, § 38; 3 R. S., 5th ed., 650, § 38.) This, however, has been held not to make the sale void, but only voidable in case of a sale in mass. (Cunningham v. Cassidy, 7 Abbotts’ Pr., 183; S. C., 17 N. Y. R., 276.) Still, where there is a prejudice, the sale may be set aside without even indemnifying the purchaser. (See cases reviewed in Breese v. Bange, 2 E. D. Smith, 474.) This was an equally good ground for setting aside the sale.

The order, therefore, made was correct, and should be affirmed, with costs, without prejudice to the rights of Butler, who is not a party to this motion.


author: By the Court—Robertson, J.,

text:
    Oliver D. Ward et al., Plaintiffs and Appellants, v. Newman Arenson, Defendant and Respondent.
    1. Under the provisions of the Revised Statutes relating to proceedings as for contempts to enforce civil remedies, (2 R. S., 534,) an attachment to bring a person before the Court, to answer for alleged disobedience of an order of the Court, or a Judge, requiring him to appear in person, cannot 0 be granted without proofj lyr affidavit, both of the service of such order and of the failure to appear.
    2. A copy of such affidavits must, according to such statutes, be served on the person charged, a reasonable time before the return of the attachment, to enable him to prepare his defense.
    (Before Robertson, White and Monell, J. J.)
    Heard, November 29;
    decided, December 20, 1862.
    This was an appeal from an order discharging an attachment against the defendant, for not appearing pursuant to an order directing him to appear and be examined touching the possession by him of property as a judgment debtor on supplementary proceedings.'
    No papers of any kind accompanied the attachment, except an affidavit showing the service of the first order, and another showing the. difficulty of serving an order to show cause instead of an attachment in the first place. The attachment recites the recovery of the judgment, the issuing of the order to be examined and the failure of the defendant to appear before the Justice who made it, on its return day. It did not specify how such failure to appear was established, or whether any affidavits were used to obtain the attachment. It was tested in the name of a different Justice than he before whom such debtor was ordered to appear, and allowed, by the former, ten days after the day on which the defendant was required to appear. A prior attachment was issued, tested in the name of a third Justice of this Court, and allowed by him on the day of the return of the original order, but the defendant was not arrested upon it. Upon the second attachment the defendant gave a bond, with surety, to appear on the return of the attachment, and abide the order and judgment of the Court. He appeared on such return day, when an adjournment was had until next day, at which time the attachment was discharged. The order appealed from does not recite any affidavits or any other documents on which it was made.
   By the Court—Robertson, J.,

(after stating the facts.) There is no evidence of the service on the defendant of any affidavits, or of the presentation of any to thé' Court, on which to found the application for an attachment. The Revised Statutes require that a Court, in all cases but two, specified therein, where any misconduct is committed, otherwise than in its view and presence, shall be satisfied by due proof, by affidavit, of the facts charged, and shall cause a copy of such affidavits to be served on the party accused, a reasonable time, to enable him to make a defense. One of such excepted cases is provided for in the next section, and the other is that of disobedience to a subpoena. (2 R. S., 535, § 3.) Ho such coursp was adopted in this case. A failure to appear can hardly be said to be misconduct committed in the presence of the Court, and it was evidently understood by such statute not to be so, when disobedience to a subpoena was expressly excepted. The contempt is not made out without proof both of the service of the order and the failure to appear. If either is required to be made out by affidavits, both must be, and such affidavits must be served to enable the party charged to purge himself of any contempt by disproof of the facts constituting it, if it can be done. The attachment was irregular and properly set aside.

The order must be affirmed with costs.


author: By the Court—Monell, J.

text:
    John A. Heroy et al., Plaintiffs, v. William Gibson, Defendant.
    1. In proceedings supplementary to execution against a judgment debtor, under the Oode of Procedure, the creditor is entitled to have a Receiver appointed, although the only property discovered is such as might be sold on execution.
    2. An order refusing to appoint a Receiver in such a case is appealable.
    (Before Robertson, White and Monell, J. J.)
    Heard, November 20;
    decided, December 20, 1862.
    Appeal from an order denying a motion for the appointment of a Receiver.
    The plaintiffs having recovered a judgment against the defendant for $218.90, and having issued execution, which was returned unsatisfied, instituted supplementary proceedings against him. Upon his examination he testified that he owned a lease of ten lots of land on the northeast corner of Broadway and Thirteenth street, in this city, for a term of 20 years from May 1,1860, at a ground rent of $8,000 a year for the first ten years, and of $12,000 for the last ten years, and taxes, upon a part of which he had erected a building. That he had rented a portion of the lots for ten years, at a rent of $8,500 for the first five years, and $9,000 for the last five years, the buildings to be erected to remain at the end of the lease. That parts of the building erected by the defendant were rented at an aggregate rent of about $4,000 per annum. He further testified that he owned two lots in Hew ark, U. J., unless sold for taxes. Other supplementary proceedings had been instituted against the defendant, but no Receiver had been appointed. Upon these facts the plaintiff creditor applied for the appointment of a Receiver, under section 298 of the Code of Procedure, which was denied, and he now appealed.

      W. W. Niles, for plaintiffs, appellants.

      J. Townshend, for defendant, respondent.
   By the Court—Monell, J.

The examination of the judgment debtor disclosed property sufficient to satisfy the judgment, but it was a chattel interest in real estate, subject to levy and sale under an execution, (Averill v. Taylor, 8 N. Y. R., [4 Seld.,] 44; 2 R. S., 367, § 24,) and the question arises whether it was proper to appoint a Receiver of property which could be reached and sold under an execution.

The execution had been returned by the Sheriff wholly unsatisfied, and the order for the examination of the judgment debtor was therefore properly made.

The proceeding supplementary to an execution, as provided by the Code, is to some extent a substitute for a creditor’s bill under the late Chancery practice, although the remedy given by the latter has not been taken away, (Catlin v. Doughty, 12 How. Pr., 458;) and the rules adopted with reference to proceedings under those bills, are' held to apply to those proceedings, except where altered by the Code or the practice under it. (Griffin v. Dominguez, 2 Duer, 658; Lilliendahl v. Fellerman, 11 How., 528.) There is this difference to be observed, however, between a creditor’s bill and these proceedings. The object of the former was to obtain a discovery in aid of the execution at law, as well as for relief against property which could not be sold on execution. (2 Barb. Ch. Pr., 148.) And it was required to be charged in the bill that the defendant had some property or equitable interests or things in action which ought to be applied to the payment of the judgment. The Code provides that, upon the return of an execution unsatisfied, the creditor “is entitled to an order requiring the debtor to appear and answer concerning his property.” Ko proof is required that the defendant has property. It was not uncommon in Chancery, upon the defendant’s disclosing property subject to levy, to suspend the suit, to enable the creditor to take out a new execution; the object of the bill being, as before observed, to aid the execution. The creditor filing the bill and obtaining the discovery did not, however, secure a priority over creditors whose executions might have been previously issued, and under which levies had been made. And other creditors might come in and participate in the avails of the discovered property, where the bill was filed for such purpose. (Wilder v. Keeler, 3 Paige, 164.)

Under the Code, the power to require a debtor to appear and be examined concerning his property is absolute and unconditional. The proceeding is instituted for the benefit of the individual creditor, who obtains a priority of payment out of the property of the debtor disclosed upon his examination, and no other creditor can participate in the avails of the property so as to defeat such priority.

Ko provision is made for suspending the examination of the judgment debtor and the issuing of a new execution to reach property disclosed by him, but, in lieu of it, the Judge may order (§ 297) any property in his hands, not exempt from execution, to be applied towards the satisfaction of the judgment. This section, however, applies only to such property as is capable of manual application, which may be passed to and be made available to the creditor by delivery merely, and not to rights and interests incapable of being divested of title in the debtor, except by an instrument in writing.

As a cumulative assistance to the .creditor, where the property is of an intangible nature, the Judge is 'authorized (§ 298) to appoint a Receiver.

The only cases in which the Court.of Chancery refused to appoint a Receiver was, where it appeared from the bill that the defendant, previous to the return of the execution at law, had property which could have been levied on by such execution. (Parker v. Moore, 3 Edw., 234; Congden v. Lee, Id., 304.) And the reason was, that in such case the complainant had no right to file his bill. (Id.)

Until the adoption of the Constitution* of 1846, the principles of law and equity were administered by separate and distinct tribunals. Courts of law had no power to compel discoveries; and hence it was that the Legislature conferred a jurisdiction upon the Court of Chancery to supply this defect. (2 R. S., 173, § 38.) After exhausting the remedies provided for courts of law for enforcing their judgments, the creditor was obliged to invoke the aid of another tribunal to reach rights and interests which were not the subjects of levy and sale under execution.

The two systems have now been blended into one, and the same tribunal administers both law and equity in appropriate cases.

The appointment of a Eeceiver in these supplementary proceedings has become almost a matter of course, whether the debtor discloses property or not, (Lent v. McQueen, 15 How., 313,) the object being to compel the application of property concealed by the debtor, or which, from its nature, cannot be levied on, to the payment of the creditor’s judgment.

I am of opinion that the Code has so far changed the proceedings that the examination is no longer in aid of the execution, but it is to compel the direct application of the debtor’s property which the Sheriff has failed to find, or which is not subject to levy, to the payment of the creditor’s debt. This may be done in one of two ways, by ordering its application under section 297, or by the appointment of a Eeceiver under section 298. There is no inconsistency in these two remedies; they stand independent of each other, are cumulative merely, and are granted upon a different state of facts. Tangible property may be ordered to be delivered under section 297; over all other property disclosed by the debtor, a Eeceiver shall be appointed.

I have no doubt an appeal may be taken from the order under section 349 of the Code.

The order should be reversed.


author: Robertson, J. Bosworth, Ch. J.

text:
    The Continental Bank, Plaintiffs and Respondents, v. Moses B. Bramhall, Defendant and Appellant.
    Under section 162 of the Code of Procedure, a complaint against the maker of a promissory note is sufficient where it sets forth a copy of the note, and alleges that a specified sum is due thereon from the defendant to the plaintiff, although the note is, by its terms, payable to a third person, and there is no allegation of an indorsement by him.
    (Before Bosworth, Ch. J., and Robertson and Barbour, J. J.)
    Submitted, December 13;
    decided, December 27, 1862.
    This was an appeal from a judgment rendered in favor of the plaintiff against the defendant, upon motion, on the ground of the frivolousness of a demurrer.
    The complaint, which named “The Continental Bank” as the plaintiff, alleged that- the defendant made his promissory note, of which a copy was set forth and by which it appeared that it was payable “ to the order of IT. A. Murdock, Prest.,” and further alleged that the defendant, for value received, delivered it to this plaintiff, which it alleged to be a duly authorized corporation, and added, in the usual form, an allegation that the plaintiff was now the owner and holder, and that defendant had not paid it, and that there was due a specified amount thereon. Two other notes, in similar terms, were set forth in the same way.
    The defendant demurred to the complaint, assigning as ground thereof, that it did not state facts sufficient to constitute a cause of action.
    The plaintiff moved at Chambers, in July, 1862, before Mr. Justice Mokell, for judgment on the pleadings, under section 247 of the Code of Procedure, on account of the frivolousness of the demurrer, and the motion having been granted, the defendant appealed to the Court at general term.

      John Slosson, for the defendant, appellant.
    I. The complaint should have averred that the note was indorsed by the payee. (Edwards on Bills, 684; Morgan v. Bank of State of N. Y., 1 Duer, 434; affirmed, 1 Kern., 404; 1 R. S., 768, § 1; Canal Bank v. Bank of Albany, 1 Hill, 287.)
    II. It alleges no excuse for the want of indorsement, .such as that the name of the payee was fictitious, or that he was the president of the plaintiffs.
    III. Averment of delivery does not dispense with the necessity of an indorsement. (3 Kent, 9th ed., 116, note, citing 17 Conn., 511; 3 Sandf. Ch., 77.)
    IV. The allegation of ownership does not answer the objection, for even if the property in the note passed by delivery, an indorsement is still the condition of payment, or there must be some proof to obviate its necessity.
    V. Even if delivery be sufficient to pass the property, it will not justify a.suit on the note without indorsement. The action must be on the original consideration, and this complaint is nothing else than a declaration on the note itself, and the possession of it, which possession is all the plaintiff insists on as entitling him to a recovery. (Chitty on Bills, 5th Am. ed., 227.)

      William Allen Butler, for the plaintiffs, respondents.
    Cited, Code, § 162; Prindle v. Caruthers, (15 N. Y. R., 425;) Keteltas v. Myers, (19 Id., 231;) Holstein v. Rice, (15 How. Pr., 1;) Haight v. Holley, (3 Wend., 263.)
   Robertson, J.

In the 162d section of the Code ;it is pro.vided that in an action or defense, founded upon an instrument for the payment of money only, it shall be sufficient for a party to give a copy of the instrument, and state that there is due to him thereon, from the adverse party, a specified sum, which he claims. This was held, in Prindle v. Caruthers, (15 N. Y. R., 425,) to create an exception to the general rules of pleading prescribed by section 142, requiring a statement of the facts constituting a cause of action. A similar provision formerly existed relative to suits on contract upon any written instrument or record. (Laws of 1840, p. 333, § 17, and Rule 99, of Supreme Court Rules, of May Term, 1845.)

In the case of Alder v. Bloomingdale, (1 Duer, 602,) it was held that the contract of an indorser was not simply for the payment of money within the meaning of section 162, the liability being conditional, and demand and notice being essential to fix it upon the indorser. The Supreme Court of this District, however, considered the name of the indorser written on the copy as an indorsement, and all allegations of demand and notice superfluous. (Roberts v. Morison, 11 N. Y. Leg. Obs., 610.). In Lord v. Chesebrough, (4 Sandf. S. C., 696; 1 Code R. N. S., 322,) in this Court, the name of the indorser, who was the maker, appeared, and it was alleged to have been indorsed, and that a certain sum was due to the plaintiff; but it was held to be insufficient, for not showing how he acquired title to it. But I apprehend that Prindle v. Caruthers overrules that view, which was taken in that case by the Supreme Court, (10 How., 33,) as has been held by this Court in Butchers’ & Drovers’ Bank v. Jacobson, (15 Abbotts’ Pr., 218.) The case of Keteltas v. Myers, (19 N. Y. R., 231,) is also to the same effect.

The judgment and order must, therefore, be affirmed, with costs.

Bosworth, Ch. J.

This complaint is clearly insufficient in substance, unless it is within section 162 of the Code, and, by force of that, sufficient.

It neither alleges an indorsement by the payee, nor a demand of payment before suit brought. (Merritt v. Todd, 23 N. Y. R., 28.)

But Prindle v. Caruthers (15 N. Y. R., 425) is to the point, that the complaint is good as a pleading, under § 162 of the Code. That declares, that a complaint'on such an instrument is sufficient, where it sets forth a copy of it, qnd alleges that a specified sum is due thereon, to the plaintiff. All that is done in this complaint. Judgment should be affirmed.


author: By the Court—Bosworth, Ch. J.

text:
    James Mason, Plaintiff and Respondent, v. Zebedee Ring, (Administrator and in his own right,) Defendant and Appellant.
    1. In an action of an equitable nature, where a judgment in favor of the plaintiff had been so far opened by the Court of Appeals as to allow the defendant, an administrator, to establish a cross claim for services rendered by his intestate during a number of years, the Court below ordered a reference to examine and report on such claim, and at the same time required the defendant to furnish a bill of particulars of the services, specifying their nature and character and the respective amounts claimed, and, as far as practicable, the dates and amount of each item of such service.

      Held, that this order was not intended to require such a bill as is demand-able of right, in actions of a legal nature, but rather to limit the defendant’s claim to the matters contemplated by the decision of the appellate Court, or, if any further claim was to be made, to require as particular a statement of it as the defendant could furnish.
    2. Hence, although the services were not rendered under a general employment at an annual salary, such order is satisfied by a general statement of a claim for services as general agent and manager, in taking charge of the affairs and property of the plaintiff for a specified number of years, at a specified rate per annum, if the defendant makes oath that he cannot give items more minutely.
    3. If the defendant would claim to recover moneys paid by the'intestate for the expenses of agents other than himself, such payments should be stated separately from his claim for services.
    4. In such a case, an order for a further bill of particulars should not require more than the original order, and in so far as it does, it should be modified * on appeal.
    (Before Bosworth, Ch. J., Moncrief, Robertson, Barbour and Monell, J. J.)
    Heard, November 8;
    decided, December 27, 1862.
    Appeal from an order requiring a further bill of particulars. In this action the plaintiff sought to set aside a conveyance of laud which he had made to James J. Eing, deceased, of whose estate the defendant, Zebedee Eing, was the administrator, and which was intended as a compensation for the intestate’s services and disbursements as attorney and counsel and otherwise, during a period of about thirteen years.
    Upon añ appeal to the Court of Appeals, that Court held that the conveyance should be set aside, but that, nevertheless, the defendant was entitled to recover compensation for the intestate’s services, and opened the judgment appealed from for the purpose of having the value of the services, other than professional, ascertained and allowed to the defendant, and for this purpose directed the Court below to proceed by reference or otherwise.
    On the 29th of November, 1861, the plaintiff applied to this Court, upon the remittitur and affidavits, and obtained an order referring it to Henry Nicoll, Esq., to inquire and report on such claim. The order of reference contained a further provision “ that the defendant, within thirty days after the entry of this order, serve upon the plaintiff a bill of particulars of such alleged services, duly verified, specifying the nature and character thereof, and the amounts claimed therefor respectively, and as far as practicable the dates and amount of each item of such service.”
    Under this order the defendant served a bill of particulars in which the items of his claim were stated as follows:
    “ Services by James J. Jing, as the general agent and manager of the plaintiff, in attending to and taking charge of the affairs and "property of the plaintiff from July, 1844, to November, 1855, eleven years and four months, at $5,000 per annum, $56,666.66.
    “ Commissions upon cash received by J. J. Jing, for plaintiff, as found by the Judge on the trial, $168,225.66, at 5 per cent, $8,411.28.'
    “ Services by J. J. Jing, in attendance before the Legislature at the several sessions of 1850 and 1851, for several weeks at each session, to obtain a repeal or modification of statutes affecting the plaintiff’s interests, at the instance of the plaintiff, estimated, including expenses paid for himself and other agents, as worth $10,000.”
    The verification of this bill of particulars stated that it was made up as far as it was practicable, and as fully as deponent was able to state the same. ' *
    The plaintiff then moved at Special Term for an order requiring that the defendant make the bill more definite. The defendant opposed this motion by an affidavit to the effect that the bill delivered contained, as far as practicable, the dates and amounts of each item ; that he had never seen an^ accounts between the intestate and the plaintiff, except such as had been given, in evidence on the trial, and that the services referred to in the bill of .particulars were rendered on an understanding that the compensation was to be contingent upon success in the services; that the intestate did perform the services, but the defendant was utterly unable to give particulars of the specific services ; that during twelve or thirteen years the intestate devoted all jus time to the plaintiff’s affairs, and, as deponent believed, made no memorandum of particular services, by reason of his confidence in the plaintiff; and that deponent was unable to give a more particular account than was contained in the bill of particulars.
    The Court granted an order, which was dated the 23d of February, 1862, requiring the defendant to make the first item more definite by delivering a bill “stating whether he relies on a general employment at a yearly salary, and if he does, by stating therein the time at which, and period for which, the said James J. Ring was so employed; also the precise nature and character of that employment, its terms, the purposes, if any, for which the said James J. Ring was so employed, and the special services, if any, that under such general employment he was to render; and it is further ordered that if the said defendant seeks to recover under such first item for any particular services %lone, not part of any general employment, in such further bill of particulars, he state separately the dates, items, and values of such particular services, and each of them, as the defendant seeks to recover for, or purposes to prove under, the said first itemand also requiring him to make the third item more definite “by stating therein what part of the said item of $10,000 in the said third item mentioned, is for expenses paid, and what such expenses were, and how incurred, and to whom, when and how paid, and what part is claimed as compensation for services, and the specific nature and character of these services, and whether a general employment, and the nature thereof, or, if not, the particulars of such services, and, so far as practicable, the dates and values thereof.”
    From this order the defendant took the present appeal.

      Wm. Curtis Noyes, for the defendant, appellant.

      H. A. Cram, for the plaintiff, respondent.
   By the Court—Bosworth, Ch. J.

The order of the 29th of November, 1861, not having been appealed from by either party, it is just, for all the purposes of this appeal, to regard it as one with which it is the duty of the defendant to comply. And it is also just to hold, that a compliance with it is all that the plaintiff has a right to demand.

That requires the defendant to furnish “ a bill of particulars of such alleged services, * * specifying the nature and character thereof, and the amounts claimed therefor, respectively, and, as far as practicable, the dates and amount of each item of such service.”

The defendant does not claim that the services were rendered under “ a general employment at a yearly salary,” but, on the contrary, alleges, and the case shows, that they were not.

The order appealed from requires the defendant, if he claims to recover, under the first item of the bill of particulars already furnished, for any particular service not rendered under a general employment at a yearly salary, “ to state separately (on a further bill of particulars) the dates, items and values of such particular services, and each of them, as the defendant seeks to recover for, or purposes to prove, under the said first item.”

That first item reads thus, viz.: “ Services by James J. Ring, as the general agent and manager of the plaintiff in attending to, and taking charge of the affairs and property of the plaintiff from July, 1844, to November, 1855, 11 years and 4 months, at $5,000 per annum, $56,-666.66.

This states the nature or particular character of the services for which the defendant claims to recover, and the amounts claimed therefor.

It, therefore, is a literal compliance with the terms of the order of the 29th of November, 1861, unless it is practicable for the defendant to itemize the services more minutely, than by a division of them into periods of á year each.

The defendant swears that it is not, and states why it is not; and unless his sworn statement in regard thereto is false on its face, it should be accepted as true.

In such an action as this, it was not the practice of the Court to assume authority to order a bill of particulars, prior to the amendment of § 158 of the Code, made in 1851. (Laws of 1851, App., p. 56, § 158; Cornell v. Bostwick, 3 Paige, 160.)

The order of the 29th of November, 1861, should be construed with reference to the practice in such cases, and especially with reference to the views of the Judges of the Court of Appeals, as expressed in their written opinions, which state the inquiry this Court was to make on the cause being remitted to it.

Judge Selden’s opinion contains these passages, viz.: It is contended on the part of the appellant, that the intestate was entitled to a compensation for his services, as the general managing agent of the plaintiff, for a long period.”

“ The Judge has found that from the year 1844 to 1856, the intestate took charge of all affairs and property of the said plaintiff, paid his hills, managed his property, and supplied him with money from time to time.” * *

“ There seems to be no just reason why he or his representatives should not receive a reasonable allowance for his twelve years service.”

And thereupon the Court of App'eals directed the judgment to be opened, to inquire iuto the value of the intestate’s services, other than professional.

The first item of the bill of particulars states the services as thus described in Judge Selden’s opinion; and it would seem that there could be no doubt what matters the Court of Appeals intended should be investigated; nor any as to the nature of the defendant’s claim.

Looking at the order of November 29, 1861, with reference to Judge Selden’s opinion, it would seem to have been framed with a view to compel the defendant to limit his claim to the matters which that opinion specifies, or if any further claim was to be made, to require as particular a statement of it as the defendant could furnish, and at/all events a statement of its nature and character, and of the amount claimed.

But it Avas not intended to require the defendant to furnish such a bill as is demandable of right, in actions at law, at the peril, in case of failure from inability to do so, of being precluded from all inquiry into the matters, which the cause was remitted for the especial purpose of having examined, after it had been adjudged that the defendant was of right entitled to be compensated therefor; and for not compensating for which, the judgment of this Court was reversed. 1

The order appealed from goes further than the order of Nov. 29, 1861, and requires a specification of the date, item, and value of each service, as the defendant seeks to recover for it, or purposes to prove it, and assumes that it is an insufficient bill of particulars, where a party seeks to recover a yearly compensation for services claimed to have occupied the substance of the time of each year, and to have been continued through a period of twelve years.

This is exacted, in order to make a compliance with an order which only requires a statement of the nature and character of the services, and the amounts claimed therefor, with such a specification of items, and 'dates, and amounts of the services respectively, as it was practicable to make.

And it is exacted in disregard of the defendant’s affidavit, that it is out of his power, for reasons which he states, to give further particulars.

I think the order appealed from goes much further than that of November, 29th, 1861, and that the defendant has complied with the latter, according to its spirit and just interpretation, when considered in connection with his affidavit, and the opinion referred to.

The bill of particulars furnished is valuable to the plaintiff, in that it limits the defendant’s claim (so far as this item is concerned,) to the matter expressly within the contemplation and judgment of the Court of Appeals in opening the judgment, whereas the order of reference is sufficiently comprehensive to admit proof of any service not professional, no matter to what it may relate.

Although the order of reference is not in terms so limited, yet the opinion of the Court of Appeals shows, that the judgment was opened for the express purpose of enabling the defendant to prove and obtain compensation for about twelve years of services by the intestate, as managing agent for the plaintiff. That such object may not be defeated, or its attainment obstructed, the first item of the bill of particulars should be regarded as a compliance with the order of November 29, 1861, which, in respect to that particular matter, should not be construed as requiring any more of particularity as to items than is practicable ; the fact of practicability being tested by the nature of the claim itself, the facts and circumstances of the case, and the uncontradicted affidavit of the defendant.

The order appealed from does not call for anything further, in regard to the second item in the bill of particulars.

In respect to the third item, it may be justly said, that the bill furnished does not comply with the order of November 29, 1861. It does not state what sum is claimed for the services rendered in 1850, or in 1851, or in both years, as an aggregate.

The alleged services and disbursements are estimated in gross at $10,000.

The defendant can state how much is claimed for the services rendered in 1850, and in 1851, separately, and the nature of the services, and he can state what he claims for disbursements. The defendant’s affidavit, in its denial of ability “ to give a more particular account of such services, (the services of which it speaks,) is not so pointed that it should be regarded as referring to the services covered by this third item.

It is not clear that the order of reference, as entered, will permit an inquiry whether the intestate expended money by authority of the plaintiff, in paying the expenses of agents other than himself. The order directs an inquiry whether the intestate “ had * * a just claim against the plaintiff for services not professional, * * and the amount of such claim,” and that is the only inquiry which it, in terms, authorizes.

If the intestate rendered special services in 1850 and 1851 for the plaintiff, at Albany, for which compensation should be made, possibly his necessary expenses in going, staying there, and returning, may be estimated under a claim for the services. But it is not apparent that money disbursed to defray expenses of other agents, or to promote the objects of the agency, and not forming part of his necessary personal expenses, can be.

I think the order appealed from should be modified, by requiring such particulars to be furnished of the services covered by the third item, as the order of November 29, 1861, requires, and that, in so far as it demands further particulars in respect to the first item, it should be reversed.

Ordered accordingly.