text:
    THE MAYOR, ALDERMEN, AND COMMONALTY OF THE CITY OF NEW YORK, Plaintiff and Respondent, v. THE NEW YORK AND STATEN ISLAND FERRY COMPANY, AND THE NORTH SHORE STATEN ISLAND FERRY COMPANY, Defendant and Appellant. THE PEOPLE OF THE STATE OF NEW YORK, ex rel. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent, v. WILLIAM H. PENDLETON, Appellant.
    I. INJUNCTION.
    1. Violation of, how established.

      a. May be by facts and circumstances.

    (1) The sale of a boat used on a ferry between certain points as and for a ferry boat, immediately on the rendition of a decision directing an injunction against the seller restraining him from running a ferry between these points, and the continued use thereafter of the boat for the same purposes will, with other circumstances, constitute a violation of the injunction.,
    3. Violation of, what constitutes.

      a. Substance must le regarded.

    1. Where there is an injunction against the running of a ferry between certain places, and after the injunction the point of departure, at one of the places is changed from, one wharf to another, the route in all other respects continuing to be the same, there is a violation of the injunction, notwithstanding such change.
    2. An injunction against the use of a wharf for any of the purposes of a specified ferry on a specified route, is violated by laying the boat at the wharf during the night to take in supplies of coal and water, to be used on her ferry route the next day, and for the accommodation of the boat during the night.
    n. CONTEMPT, PROCEEDINGS TO PUNISH FOR.
    1. Interkosatories, when not necessary.

      a. When the proceedings are initiated by an order requiring the party to show cause why he should not be punished for contempt, interrogatories are not necessary.
    (1) This although the order to show cause does not specify in what respect an injunction order is claimed to have been violated, and what punishment is desired. >
    2. Injunction not served, violation of.

      a. Parties simply hearing that an order for an injunction has been granted, and disregarding it, can be adjudged guilty of contempt.
    3. Injunction, service of.

      a. Service of a certified copy of an order of injunction granted by the court, is sufficient in contempt proceedings.
    Before Monell, Oh. J., and Curtis, J.

      Decided January 3, 1876.
    Appeal from two orders, the former adjudging both defendants in contempt, and the latter adjudging William H. Pendleton in contempt.
    The suit was commenced May 21, 1875, to restrain the New York and Staten Island Ferry Company from running a ferry from New York city to the eastern shore of Staten Island without a franchise or license from the plaintiff, and also to restrain the use of plaintiff’s wharf property at the foot of Whitehall Street for any of the purposes of such ferry.
    The day the suit was commenced, a preliminary injunction was granted restraining the use of the wharf property for such purpose, and an order to show cause was therewith granted why such preliminary injunction should not be continued during the pendency of the action. A motion was also made to enjoin the running of the ferry by the New York and Staten Island Ferry Company. On June 15, 1875, the motions to continue the injunction, and to restrain the running of the ferry, were granted. The defendant’s attorney read the opinion that morning. The next morning it was published in several newspapers, and the formal order of the court was entered at half-past ten, A. m., of the same day, and certified copies were between two and three, p. m., served on the defendant’s attorney, and upon the pilot and engineer of the steamboat, D. R. Martin, which was used for the purposes of such ferry; and on the morning of June 17, a certified copy of the order was served upon Wm. H. Pendleton, the president of the two defendants.
    After May 20, 1875, the point of departure from New York of the ferry boat, D. R. Martin, was changed to another pier, but it still continued to be used and advertised as a ferry boat upon, in other respects, the same route to and from Staten Island, with the same master and time-table, and it still continued to occupy the plaintiff’s wharf property at the foot of Whitehall Street, from nine o’clock every evening until the next morning, to take in supplies of coal and water to be used on her ferry route the next day, and for the accommodation of the boat during the night.
    On June 16, at noon, a bill of sale of the D. R. Martin was executed by the New York and Staten Island Ferry Company to William H. Pendleton, their president. The boat continued running as before, and on June 19, a bill of sale of her was executed by Wm. ET. Pendleton to one Charles C. Birdseye, and thereupon, on the same day, an order was granted for both defendants and Wm. H. Pendleton to show cause why they should not be punished for contempt of court.
    The motions were granted that they be punished for contempt, and from the orders entered to that effect, the defendants and Pendleton appeal.

      Sidney R. Harris, of counsel for appellant, submitted an elaborate brief, in which he urged :
    I.The injunction order must be limited to the grounds stated in the complaint and the prayer for relief, and the defendants were not bound by the order further than it was warranted by the complaint (Freeman v. Dunning, 4 Edw. ch. 598).
    II. If an injunction is capable of two constructions, proceedings for contempt will not be entertained, where a party has adopted a construction of the order, which is afterwards claimed to be erroneous (Weeks v. Smith, 3 Abb. 211). .
    III. An injunction should be so explicit upon its face as to apprise the party what he is restrained from doing without resorting to the bill (Sullivan v. Judah, 4 Paige, 444; Moat v. Holbein, 2 Ed. Ch. 188).
    IV. These proceedings are based entirely upon information and belief. Ho sources of information are stated, and therefore there was before the court no legal proof of any violation of the order of June 16 or May 21, and the court had no jurisdiction to make the order therein (Parkhurst v. Kinsman, 2 Blatch. 78 ; Magennis v. Parkhurst, 3 Green Ch. B. 433).
    Y. If Mr. Birdseye uses the boat for any unlawful purpose, the court is open to any party having the right to complain against him, to use its process for the purpose of enjoining such use; but Mr. Birdseye is entitled to be heard upon any such application, and his right to use his own property can not be affected by proceedings in a controversy to which he is not a party (People v. Albany R. R. Co., 12 Abb. 171, 175, 176).
    VI. There is nothing in the idea of constructive notice, as claimed by the plaintiffs. BTor is the knowledge of Mr. Harris of the decision of June 15, any evidence that Mr. Pendleton had such knowledge, as Mr. Harris testifies that he did not see or inform Mr. Pendleton until late in the day of June 16. Knowledge of the attorney is not knowledge of his client of a decision of court. In Hillik er v. Hathorne (5 Bosw. 710) it was held that it was not enough that defendant had heard in a general way that the case had been decided, but that he must have known the particulars. To the same effect is Elliot v. Osborne (1 Cala. 396). The rule in certain classes of cases that notice to the attorney is notice to the client, is limited to the ordinary and regular proceedings in the suit; an injunction order is not within the rule, and no case can be found holding that proceedings for willful contempt can be based on knowledge of the attorney not communicated to the client. On the contrary, the rule is, that knowledge of facts will not be imputed which relate to the motives or intentions of the principal (10 House of Lords R. 114; Ramsdell v. Craighill, 9 Ohio, 197). And the idea of notice from the publication of the decision in the city newspapers is decided adversely to plaintiffs in Morrisson v. Universal Marine Ins. Co., L. R. (8 Exch. 40); S. C. (4 Eng. R., Moak's Ed. 433).
    VII. We deny that the sale, if sufficient to transfer the legal title of the boat, could be an evasion of the injunction (12 Abb. 171). An act is not an evasion of an injunction which is strictly lawful, and against the d Ing of which there is no restraint, even if the effect should be that the injunction became inoperative. The law does not permit, by such indirection, to restrain parties, or bring them into contempt (12 Abb. 175). Before it can be claimed that Mr. Pendleton or the defendants have willfully violated the order of June 16, it must appear that Mr. Pendleton knew that a sale of the boat could not lawfully be made without evading the injunction. There is no proof of this, and an examination of the terms of the order would not give such information, and the want of it is fatal to these proceedings (People v. Compton, 1 Duer, 533).
    VIII. Mr. Pendleton acted under the advice of counsel, and it is erroneous to grant an order, as for willful contempt, where the party has strictly followed the advice of his counsel (Hawley v. Bennett, 4 Paige, 163; Ramsey v. Erie R. R. Co., 45 N. Y. 637; Billings v. Carver, 54 Barb. 40 ; Erie R. R. Co. v. Ramsey, 3 Lansing, 178). No intention to violate an order of court can be inferred from the doing of a lawful act (12 Abb. 171, 175, 176, per Judge Hogeboom).
    IX. The injunction order of May 21 was not violated by the fact that the D. R. Martin took in a supply of coal and water at Pier 1. The affidavit on the part of the defendants shows that the D. R. Martin obtained a permit from the Croton Department to take in a supply of water, which was to be delivered at that pier, and that, prior to the institution of this suit, a contract had been made for the delivery of coal to the D. R. Martin, which, by its terms, was to be delivered at that pier, and not elsewhere. It will be seen, therefore, that the D. R. Martin was necessarily obliged to resort to this pier, for the purpose of obtaining water and coal. No ferry was operated from Pier No. 1, after the preliminary injunction; no passengers or freight were transported from that pier. The D. R. Martin was, in fact, running from another pier, namely Pier No. 8. We submit, therefore, that the use of Pier No. 1, for coal and water, is no violation of the injunction.
    X. Interrogatories should have been filed by the plaintiffs before any final adjudication upon the alleged contempt (3 R. S. 536 ; 1st ed. 851-510). Where the proceedings are by order to show cause, interrogatories must be filed (1 Crary’ s Spec. Pro. 159 ; 3 R. S. 526, 1st ed. ; Albany City Bank v. Schermerhorn, 9 Paige, 375 ; McCredie v. Senior, 4 Id. 378; Pitt v. Davison, 37 Barb. 98; McCredie v. Senior, supra). This was the practice at common law (Pitt v. Davidson, supra).

    XI. The order to show cause in this proceeding does not show in what respect the injunction has been violated. This makes it a necessity that interrogatories be filed (Magennis v. Parkhurst, 3 Green. Ch. 433). And the only way that the defects of the order to show cause can be remedied, is by the filing of the interrogatories. Nor does the order to show cause state the nature of the offense, whether criminal or otherwise, nor state what punishment is asked. The English practice requires this (2 Daniells, Ch. P. 2).
    XII. We claim that the plaintiffs have not been technically regular, because there never has been any such service of the last injunction order in this case as would justify the proceedings by way of attachment. The affidavits show that the original injunction order never was exhibited, and that only a copy was served, and such service has repeatedly been held to be insufficient (Coddington v. Webb, 4 Sandford—with which opinion all judges of this court concur; Watson n. Fuller, 9 How. Pr. 425; Becker v. Hager, 8 Id. 68 ; see also section 302 of the Code, which requires the defendant to be duly served).
    XIII. If there has been any breach of the injunction or any contempt, it. has been waived (Anon, 15 Ves. 174; 1 Daniell Ch. Pr. 509),

      Wm. C. Whitney, corporation counsel, and Henry E. Davies and Julian T. Davies, of counsel for respondents, submitted an equally elaborate brief, in which they urged :
    I. The injunction is not broader than the complaint. The complaint clearly seeks two things. 1. To stop the running of an unlawful ferry. 2. To restrain the use of the plaintiff’s own wharf property for the purposes of such unlawful ferry. Even if the injunction was broader than the bill, it must be obeyed (Richard v. West, Green's Chan. Rep. 456 ; Peck v. Yorks, 32 How. Pr. 408).
    II. The property was used almost half the day as a store house at which to refurnish, refit, and preserve the boat for the succeeding day’s unlawful business. This was certainly using it in violation of the order forbidding its use “in any manner in the furtherance and assistance” of that ferry (See High on Injunctions, sec. 866). Besides being thus used to enable the boat to violate the plaintiffs’ ferry lights, by its being used to the extent stated for an unlawful purpose, the plaintiffs were exposed to claims for loss or damage (See Chap. 583, Laws of 1873, p. 895).
    III. An injunction directed to a corporation is binding on all who are authorized to act for it, although directed to a corporation by its corporate name (People ex rel. Davis v. Sturtevant, 9 N. Y. 263 ; People v. Albany & N. Y. R. R. Co., 12 Abb. 171 ; Wellesley v. Mornington, 11 Beavan, 181). Though a person be not a party by name, yet, under the name of “officers and members,” any such who, knowing of the existence of an injunction against a party, its “ officers and members ” violate it, are guilty of contempt (Rorke v. Russel, 2 Lansing, 242). A party agreed not to carry on a certain business within certain limits ; held, that he was bound not to carry it on as agent for another person, when himself enjoined from carrying on the business (Ewing v. Johnson, 34 How. 202). Held, that defendant, who had permitted another person to erect a fence on defendant’s land, which defendant was enjoined from erecting, was guilty of a contempt, because he had the power to prevent the fence being erected (Wheeler v. Grilsey, 35 Id. 139). As to officer or agent being bound by an injunction against his principal or employer (see cases cited). The president of the City Bank of Buffalo was adjudged guilty of contempt when, by concealing from other officers of the bank the service of an injunction, the effect of the order was lost as they proceeded to do the acts enjoined (Bank Commissioners v. City Bank of Buffalo, cited in 1 Barb. Chan. R. 636).
    IV. The injunction becomes operative from the time of the order for it, not from its date, or from the time of its being drawn up (High on Injunctions, sec. 852, also secs. 853 and 854; Osborn v. Tannent, 14 Vesey, 136 ; Money v. Jordan, 13 Beavan, 229; St. John’s College v. Carter, 4 Mylne, &c., 497; Blood v. Martin, 21 Geo. 127; Woodward v. Earl of Lincoln, 3 Swanston, 626). Parties hearing of an order for an injunction being granted, and disregarding it, can be adjudged guilty of contempt (Hull v. Thomas, 3 Edwds. Ch. 236). Service on a solicitor is good and sufficient to bring party into contempt, and sustain commitment (People ex rel. Morrison v. Brower, 4 Paige, 405). Where defendant has knowledge that an order has been issued, he will be liable for contempt if he disobey it (Livingston v. Smith, 23 How. 1; Ewing v. Johnson, 34 Id. 202; Matter of Feeny, 4 Bank. Reg. 70 or 223).
    V. The entire circumstances of this case made it apparent that there was a violation, and that it was carefully planned, and was willful, and therefore criminal (People v. Compton, 1 Duer, 512).
    VI. The business transacted between Staten Island and New York has been, and is to be, regarded as a ferrying business (Matter of Sylph, 4 Blatch. 24; Conway, et. al. v. Taylor’s Executor, 1 Black, U. S. Sup. Ct. 603; The Elizabethport and N. Y. Ferry Company v. The United States, 5 Blatch. C. C. 198).
    VII. A United States coasting license gives no authority to operate a ferry, and does not override state laws in regard to ferries (Gibbons v. Ogden, 9 Wheaton, 203; Conway v. Taylor’s Executor, 1 Black, U. S. Sup. Ct. 603; Fanning v. Gregoire, 9 How. (U. S.) 534; The Elizabethport and New York Ferry Co. v. United States, 5 Blatch. C. C. 198). Our own state courts have upheld this view (Steamboat Co. v. Livingston, 3 Cow. 754).
    VIII. The opinion of Judge Speib evidently characterizes the conduct of defendants and of Pendleton as a “ willful disregard ” of the injunction order. It is therefore punishable as a 11 criminal contempt” (See page 288, 2d vol. Edm. Stat. sec. 10, sub. 3 ; also page 553, sec. 1, sub. 3). When an order to show cause is granted upon affidavits, further proceeding by interrogatories is not necessary. The court can order punishment directly upon the affidavits (Yates v. Lansing, 9 Johns. 419 ; King v. Vaughan, Doug. 516; 4 Blk. Com. 287; Watson v. Fitzsimmons, 5 Duer, 629; Taylor v. Baldwin, 14 Abb. Pr. 166; Pitt v. Davison, 37 N. Y. 235; People v. Campbell, 40 Id. 133, 137; Brush v. Lee, 1 Abb. Ct. of Ap. Dec. 238). In fact, interrogatories were not necessary, as every fact alleged as misconduct was admitted, except knowledge by Pendleton of the decision of June 15, and on interrogatories nothing but this denial would have been elicited from him. The only other denials were of intentions, and as to this, the court need not take proof unless it desires it (Lathrop v. Clapp, 40 N. Y. 335, 338; Batterman v. Finn, Id. 340). For a full discussion of practice, of right to punish, amount of punishment and allowance, costs and counsel fees, see People r. Compton (1 Duer, 512).
    IX. In proceedings against parties, the papers should be entitled in the action (Brown v. Andrews, 1 Barb. 227; The People, ex rel. Young v. Craft, 7 Paige, 325 ; Stafford r. Brown, 4 Id. 360). In proceedings against persons, not parties by name, the papers should be entitled in the action down to the order, declaring them in contempt—that order and all subsequent papers should be in the name of the people on the relation of the person prosecuting (Stafford v. Brown, 4 Paige, 362; Folger v. Hoogland, 5 Johns. 235 ; People v. Ferris, 9 Id. 160).
   By the Court.—Curtis, J.

The plaintiffs insist that the use made of the property by the New York and Staten Island Ferry Company, after May 21, was a violation of the terms of the order of that date, and that the North Shore Staten Island Ferry Company and its officers also violated such order in permitting such use. They further insist, that the transfer of the boat “D.E. Martin,” was made at such a time and under such circumstances as to show that it was not a regular business transfer, made for the sole purpose of disposing of all interest in, or connection with, the boat and its future use, but that it was so planned and consummated that, though the nominal title passed, the substantial right of property and control of the boat remained with those who previously had it, thus furnishing them with means for deceiving the court, and with a cover under which to defy its orders, and to continue a violation of law, and of the plaintiff’s rights.

The appellants claim, that their use of the plaintiff’ s wharf at the foot of Whitehall Street was not a violation of the order of May 21, and that the sale of the ferry boat, by the New York and Staten Island Ferry Company, to its president, Pendleton, June 16, was without notice of the decision, and was in good faith and for value, and that his sale to Birdseye on June 19, was also for value, and was made to avoid even the appearance of a violation of the injunction by the New York and Staten Island Perry Company.

The appellants further claim, that after Wm. H. Pendleton became the owner of the boat in his individual capacity he was not restrained by the injunction, and that he had the right to use it as he did after June 16, to run a ferry from New York to Staten Island, and that Birdseye or any other person who succeeded him as owner, succeeded to the same rights.

The claim of the appellants, that the sale of the ferry boat was without knowledge of the decision, and was in good faith, and with no intent that she should be run in violation of the injunction, meets with some difficulties. It is not a conclusive circumstance, but it is a remarkable coincidence, that the sale of the boat to Mr. Pendleton should have been made on June 16, the very day the injunction order was entered, and it is extraordinary that neither the defendants nor Mr. Pendleton had heard or read of this decision, which had been already spread before the public generally by the press, and which in so important a manner affected their business, and which their attorney had read the previous morning.

It is but reasonable to suppose the attorney would have notified his clients at once of this decision, and it is strongly and repeatedly urged in the appellants’ points, that he testifies, that “he did not see or inform Mr. Pendleton” of it until about 3 p.m. of June 16, and after the sale of the boat. The affidavit of the attorney does not sustain this view of it, and while it omits to state whether or not he notified Mr. Pendleton of this decision on the previous day, it uses this language, “ It is true deponent read the opinion of Justice Vaw Vobst, the forenoon of June 15, but deponent did not see Mr. Pendleton until the afternoon of June 16, a,bout 3 p.m. as nearly as deponent recollects. That Wm. H. Pendleton resides at Staten Island; that deponent spoke to Mr. Pendleton about said decision, when he called to see deponent on the afternoon of June 16, for the first time.” If he could have corroborated Mr. Pendleton’s statement by saying that he omitted to notify him previously to this interview he could have so stated, as it is of comparatively little importance when he first “ spoke ” to him about it.

Again there is an additional circumstance not calculated to inspire confidence in the good faith of the sales of the boat. They are made for the apparent consideration of one dollar, but it is claimed by Mr. Pendleton that as a consideration he further assumed an indebtedness of the company amounting to fifty thousand dollars and upwards, incurred by the company in respect to the boat, and that Mr. Birdseye, when he bought, assumed the payment of the same indebtedness, and relieved Mr. Pendleton of his responsibility. It is singular that in transactions of this magnitude, and in the assumption of the payments of debts of third parties, there appears to have been no instruments executed to give them effect and validity, at least none are presented in the papers, nor is the appellants’ statement strengthened by the omission by the other officers of the company and by Mr. Birdseye, to say anything in corroboration. These transfers of the boat, do not seem to have been for an adequate consideration stipulated between the sellers and the purchasers, and made in the ordinary and prudent transaction of business, and when considered in connection with the continued running of the boat for the same ferry purposes, after the sale by the company, and with the other difficulties of the appellants case previously remarked, confidence is not inspired in the good faith of the sale, and the desire to avoid violating the injunction claimed by the appellants.

In the plaintiff’s moving papers it is alleged that Mr. Pendleton, the president of the companies, has publicly declared his intention of evading the injunction and process of this court, by further transfers of the said boat, and that said Pendleton in such connection has made use of the following words : “ If he brings an injunction against me as a private individual, I shall sell out to the first purchaser, and shall continue to fight if the boat has to pass through the hands of all the people in the city. In this way I think we shall keep him very busy in bringing injunctions against us.”

In answer to this, Mr. Pendleton, in his affidavit, denies that he has declared, as is stated in the moving affidavits, his intention, publicly or otherwise, of evading the injunction in this action, or either of them, or which may be commenced, or that he has any such intention.

When the allegation and the denial are placed in juxtaposition, it requires no comment to show that there is a failure to make that clear, full, and unevasive denial of the words, or words to the effect of those charged.

Among the ancient grants from the crown to the plaintiffs, none was more full and complete than that of the ferry franchises, rights, and fees, from Hew York Island to points on the shores round about. Hedged in by constitutional and legislative restrictions, and its possession retained against contestants, who urged all that research, learning and matchless ingenuity could accomplish to get possession of it, this grant yet remains still one of the most valuable assets of the city, and constitutes the only means by which the city collects any compensation from thousands for the protection of whose persons and property she incurs heavy annual expenditures.

At the same time at which this appeal was argued, the appeal from the order continuing the injunction was also argued, and has, by the concurrence of the same judges, been affirmed, thus establishing the right of the city to the ferry franchise.

But the present appeal does not involve that question, but simply whether the appellants have violated the injunction orders of the court in using and interfering with such right. It is apparent that if by pretended sales of the ferry boats to persons who have not been or can not be served with process, and then keeping them running on the ferry routes, the effect of the injunctions can be avoided, that it is simply a mode of unlawfully seizing upon and using the public property. Justice should be slow to give effect to a wrong, and when that wrong is sought to be accomplished by such a coarse of proceedings as is here shown on the appellants part there must be some remedy.

The occupation of the plaintiff’s wharf at the foot of Whitehall Street after May 21, was a violation of the order of that date, and it is impossible, after considering the proofs, to come to any other conclusion than that the sale of the ferry boat made June 16 was made after notice of the decision granting the injunction, and that it was made in bad faith, and for the purpose of evading the injunction of June 16, and of continuing the running of the ferry, and that the further sale of June 19 was merely a part of the same scheme.

These ingenious and plausible devices resorted to by the appellants, to still retain and use the plaintiff’s property notwithstanding the injunction orders of the court, serve only as indications and proofs of their willful intention to violate them. Public property, as well as private, is entitled to the protection of the law, and can not be wantonly invaded and seized, nor can the arm of the law be made powerless, by a reckless disobedience or fraudulent evasions of the orders of the court. If the doctrine of the appellants was to prevail, there would be a speedy end of property.

But the latter take the position that under any circumstances the plaintiffs are not entitled to an attachment against them, because the proceedings are irregular, as interrogatories were, not filed before the final adjudication upon the alleged contempt. In support of this, the case of Pitt v. Davison (37 Barb. 98) is cited, and if it had not been called in question, it would have gone far to establish the appellants’ claim. But when this case reached the court of appeals (reported in 40 N. Y. 235), it was reversed, and the court held that where the proceeding is by order to show cause, as in the present case, no interrogatories need be filed to enable the party to purge himself of the contempt alleged. The party charged has an opportunty to make his defense by affidavits.

The objection that the last injunction order was not served in such a way as would justify the proceedings by attachment is without force, as the papers show that certified copies of it were served upon both the attorney and Mr. Pendleton. Even parties simply hearing that an order for an injunction has been granted, and disregarding it, can be adjudged guilty of contempt (Hall v. Thomas, 3 Edw's. Chy. 236 ; People ex rel. Morrison v. Brown, 4 Paige, 405; Osborne v Tannent, 14 Vesey, 136).

Heither is the objection, that if there has been any breach of the injunction or any contempt, it has been waived, tenable. The proofs fail to show any waiver, and the case cited by the appellants (Anon. 15 Vesey, 174), is not analogous to the present case, and if it was it would not vary the procedure directed by the Code.

There appears to be no just reason why the orders appealed from, imposing fines and imprisonment for the violation of the injunction should not be affirmed with costs.

Monell, Oh. J., concurred.


source: Caselaw Access Project

author: By the Court.—Curtis, J.

license: Public Domain

text:
    THE REPUBLIC OF PERU, Plaintiff and Respondent, v. EDGAR H. REEVES, Defendant and Appellant.
    i. REVIVOR.
    1. Sole defendant, application to revive by representative OF, WHEN NOT GRANTED.
    1. Oam, not be granted, unless the deceased defendant had before his death acquired rights or benefits in the litigation,

      (a) Trademark ease. Where an action is brought to restrain the defendant from using and imitating trade-marks, and selling spurious for genuine articles, and for damages, and, after answer, a temporary injunction was granted on notice to the defendant, and without any opposition from him, and no motion was made by him to vacate or modify the injunction, and the defendant died before the case was tried,
    Held, that

      a motion made by the ad/ministn’aPrios of the defendant that the action continued against herself as such administratrix should be denied.

    Before Monell, Ch. J., and Curtis, J.

      Decided January 3, 1876.
    Appeal by Anna S. Reeves, administratrix of Edgar H. Reeves, the defendant deceased, from an order made September 30, 1875, denying her motion to have the action continued against herself as such administratrix.
    The plaintiff sues as a sovereign state. It claims to have been for the past eighty years and upwards the sole owner of the natural deposits of guano in the Chincha and Gfuanape Islands, and, since 1865, to have carried on the business, through its agents, of exporting it to the United States, and selling it there.
    This action was brought to perpetually restrain the defendant from using and imitating the trade marks used by plaintiff in the sale of Peruvian guano, and from selling mixed and spurious guanos as the genuine, and for damages for such use, imitation and sales.
    A temporary injunction was granted on July 24,1873, which was continued in force until the further order of the court, by an order made on notice to the defendant, on October 7, 1873. This was after the defendant had answered, and he did not oppose the continuance of the injunction, and never moved to vacate or modify it.
    The action has never been tried. The defendant died November 10, 1874.
    A. J. Perry, attorney, and of counsel for appellant, urged:
    I. The cause of action survives (2 R. S. 447). It is to redress ‘1 a wrong done to the property, rights, or interests of another, for which an action might be maintained against the wrong doer.”
    II. If the cause of action survive, the action does not abate by death (Code, § 121).
    III. The subject-matter of the order is a substantial right, and appeal from the order lies to the general term (St John v. Croel, 10 How. 253 ; Norton v. Wiswal, 14 How. 42, 46.
    IV. The defendant, at his death, had acquired such an interest in the prosecution of the action as entitles his representatives to have it continued. Costs had accumulated, counsel fees had been incurred, and injunction had been issued, which interfered with and injured his business, and damages may have been suffered—all to the certain detriment of the estate, if the order is permitted to stand ; and as to all of which the estate may derive protection and indemnity if the action proceeds (Livermore v. Bainbridge, 49 N. Y. 135).

      Duncan Smith, of counsel for respondent, urged :
    I. Under the Revised Statutes, an action at law abated on the death of a sole plaintiff or defendant before interlocutory or other judgment or verdict, and no proceedings could be had to revive it (3 R. S. 386, 388). In equity, a suit abated by the death of a sole complainant or defendant, the complainant or his representative could revive; but no such right existed on the part of the defendant. If the sole defendant died, his representatives could not revive the suit unless the deceased defendant had acquired some right under a decretal order therein (Souillard v. Dias, 9 Paige, 393).
    II. Section 131 of the Code has not changed the former practice, which confined the right of continuing the action to the complainant or his representatives, unless the defendant had acquired some rights in the litigation (Keene v. Lafarge, 1 Bosworth, 671 ; Livermore v. Bainbridge, 49 N. Y. 135).
    III. The rights acquired by a deceased defendant, which would entitle his representative to have the action continued, must either arise under a decree or decretal order, or from some proceeding in the action by which the defendant had become an actor (Supra, Souillard v. Dias; Livermore v. Bainbridge). In Schuschard v. Reimer (1 Daly, 459), “the defendant died, after he had obtained judgment against the plaintiffs for costs, and after they had appealed from the judgment.”
    IV. The defendant in this case had acquired no such rights in the litigation, nor are there any circumstances in the case which would justify the exercise of the power to compel the plaintiff to continue against its wish. There has been no decree or interlocutory order in the action ; no counter-claim is set up in the answer. If it be said that the defendant would have been entitled to prove that he was damaged by the injunction, in case it had appeared as the result of the trial, that the plaintiff was not entitled to it, the answer, in the first place, is, that the defendant rested quietly under the injunction for more than a year, without any effort to vacate or modify it, which he would not have done if he 'had been damaged by it, and could have shown that plaintiff was not entitled to it. And the defendant had in no respect become an actor in the suit up to the time of his death.
   By the Court.—Curtis, J.

The only question presented by this appeal is, whether upon the death of a sole defendant after issue joined and before a trial, his administratrix has the right to have the action continued against herself.

The Code, section 121, as interpreted by the courts, does not sustain the claim of the appellant, that by it such a right is conferred (Keene v. La Farge, 1 Bosw. 671 ; Kissam v. Hamilton, 20 How. Pr. 377). The practice, as it was before the adoption of the Code, and as governed by the Revised Statutes, remains in force in this respect. It would be often unjust in a case where the defendant interposed a counter-claim, or acquired rights or benefits in. the litigation before his decease, that his representatives should be debarred from having the action continued against them upon their motion. In these contingencies when existing rights should be protected, the law is construed to give the right to the representatives of the deceased defendant to have the action continued against them, and to apply for this relief by motion upon papers showing a proper case (Livermore v. Bainbridge, 49 N. Y. 125 ; McDermott v. McGowan, 4 Edw. 592; Souillard v. Dias, 9 Paige, 393).

The difficulty in the present case is, that the appellant fails to show that the defendant had acquired any rights in the litigation, or that any prejudice would result to the estate by not continuing the action. The appellant’s affidavit upon which the motion was made, sets forth nothing of that nature. The admission of her counsel stated in the order appealed from, that “ October 7, 1873, upon notice to the defendant, and without opposition from him, an order was made in this action, continuing in force until the further order of this court, the injunction order theretofore made in the action, and that the defendant never made any motion to vacate or modify the said injunction,” would seem to indicate there was no serious grievance or detriment in consequence which the appellant could establish by affidavit.

It does not appear that the appellant would derive any benefit from having the motion granted. See McDonald v. James (38 Superior Ct. Rep. 76), and no case is shown calling for the exercise of any discretionary power on the part of the court to grant it.

The order appealed from should be affirmed with costs.

Monell, Ch. J., concurred.


text:
    ALFRED H. WILMONT, Plaintiff and Appellant, v. CORNELIUS W. MESEROLE, AND OTHERS, Defendants and Respondents.
    I. EXAMINATION OF PARTIES BEFORE TRIAL AT THE INSTANCE OF THE ADVERSE PARTY.
    1. Effect of, as to a further examination at the trial.

      (a) Precludes such further examination at the trial on the same subject-matter by the party at whose instance the examination before trial was had, and who at the trial read such examination,
    UNLESS
    some reason or excuse is shown, such as the omission hy inapttertence to ask some questions, or prove some facts.
    Before Monell, Ch. J., and Curtis, J.

      Decided January 3, 1876.
    Appeal by the plaintiff from a judgment dismissing the complaint as to the defendant, Cornelius Meserole, upon the merits of the action, and further dismissing the complaint as to the remaining defendants, Washington J. Moore and Jackson M. Yauger.
    This action is brought to have certain articles of co-partnership entered into on October 31, 1872, between the plaintiff and the defendant Meserole reformed, on the ground of an omission, by defendant Meserole’s fraud, to embody their oral agreement, and also to have four several instruments relating to the dissolution of the co-partnership, and the transfer of certain of its assets, set aside as fraudulent and void, and for an accounting by each of the defendants, and for a receiver.
    The complaint further charges the defendants Moore and Yauger with having succeeded to the co-partnership business with knowledge of the plaintiff’s rights in the premises, and with intent to defraud the plaintiff.
    The answer of the defendant Meserole puts in issue the allegations of fraud and fraudulent intent, and denies that there was a mistake in the copartnership, or that they did not correctly embody the alleged oral agreement.
    The answer of the defendants Moore and Yauger denies the allegations of fraudulent intent on their part, or knowledge of the alleged rights of the plaintiff.

      Charles Meyer, attorney and of counsel for appellant, on the point stated in the head note, urged :
    I. It was error to exclude the further examination of the witness Washington I. Moore; evidence of knowledge of Meserole’s fraud on the part of Moore & Yauger was thereby excluded. He had been sworn without objection, after his deposition had been read. Any objection to his competency on the ground that his deposition had been previously read, should have been made before the witness was sworn. This not being done, the objection was waived, and the refusal to permit the witness to testify was error.
    II. The objection was not to the examination of the witness, but to his further examination. If competent to be examined, he was certainly to be further examined.
    III. The fact that the witness had been examined before trial, and his deposition read in evidence did not render him incompetent as a witness on the trial. 1. The Code provides that a party to an action may be examined at the instance of his adverse party under the same rules of examination as any other witness (§ 390). It is further provided that the examination may be had before trial (§ 391). The Code does not provide that the examination can be had on only one of these two occasions ; and the liberal, fair and just construction of the statute is that the examination may be had on either or both occasions (see definition of the word “either.” Webster’s Dictionary, Unabridged. Worcester’s). The policy of equity is to elicit all the facts material to the issues, to exclude none that may by any possibility shed light upon the controversy, to construe statutes conferring competency with liberality, and to that end to permit the examination of any witness where it does not clearly appear that he is incompetent. 2. Under these sections of the Code it has been held that a party may be examined by his opponent before issue joined (McVicar v. Ketchum, 4 Robt. 657), and before complaint served (Havemeyer v. Ingersoll, 12 Abb. N. S. 301). These examinations are had for the purpose of preparing the examining party’s case for trial or his complaint, and the examination is conducted with that view. It would be manifestly improper to prevent a further examination being had at the trial for the purpose of proving facts by the same witness, of which purpose it was not desirable to apprise him (he being adverse) before trial,lest this purpose might be defeated; or for the purpose of proving facts which have come to the knowledge of the examining party since the examination before trial, which may have taken place months or even years before. 3. The Code, in removing incompetency from a party intended, and its only purpose was, to obtain from him all the facts within his knowledge material to the issue (§ 390, Code). By a subsequent section, it gave cumulative means of ascertaining such facts (§ 391). This was not intended as an optional substitute for § 390, but as cumulative. Its purpose, and only purpose, was to enable a party to gain from his adversary evidence necessary for the preparation of his complaint or for trial. 4. § 392 provides, that such examination may be read by either party at the trial, but does not add “in lieu of his oral examination,” and the adoption of that means for that purpose does not prevent a further examination at the trial where the purpose is to elicit other facts material to the issues, which purpose it was not desirable to disclose to the adverse party before trial, or which purpose the examining party may not then have had.
    IV. it is discretionary with the court to allow a witness to be recalled. This was simply recalling the witness at the trial after his examination before trial. 1. The court seldom, if ever, refuses to recall a witness for further examination, and such refusal should be upon grounds of objection, rendering the further examination manifestly improper. No such grounds appear in this case. 2. The exercise of discretion against the further examination of the witness was legal error, so intimated in Romertze v. East River National Bank, 49 N. Y. 582, where the court below refused to permit a witness to be recalled for further cross-examination. The recall here being for examination-in-chief, the case is stronger. Where there is a doubt in the mind of the court as to the propriety of permitting the recall of a witness for further examination, such doubt should be in favor of the recall, lest material testimony be otherwise excluded.

      Wellesley M. Gage of counsel for respondents, Moore and Yauger.
   By the Court.—Curtis, J.

The case presented by the testimony of the plaintiff is one of gross imposition and fraud. He claims that his partner, the defendant Meserole, by falsely representing to him that their firm was insolvent, and about to be put in bankruptcy, and without giving him time to consult counsel, induced him to sign a dissolution of the co-partnership, and convey all the assets of the firm to him including a valuable lease, and that this was done for no other consideration than the inadequate one that Meserole would pay the debts of the firm. The plaintiff' also asks to have the articles of co-partnership reformed, alleging that by reason of the fraudulent acts of the defendant Meserole, they fail to embrace a part of the preliminary oral agreement between the parties.

The plaintiff, by his testimony, states that which, if true, appeals strongly for the interposition of a court of equity. But the judge before whom the cause was tried at the special term found, in substance, that the plaintiff’s charges of fraudulent motives and fraud on the part of the defendant Meserole, were groundless ; that there never was any oral agreement of co-partnership between the parties;that the articles of co-partnership fully expressed the intent and agreement of the parties ; and that there was no fraud on the defendant Meserole’s part in the preparation or execution of them.

He further found, that at the time of the dissolution, the co-partnership was insolvent, with liabilities to the extent of thirty-six thousand nine hundred and forty-three dollars and eighty-three cents over and above its assets, that the dissolution and transfer of plaintiff’s interest in the business, lease and other assets of the firm were drafted by an attorney employed by both parties, and in pursuance of the plaintiff’s written instructions to that effect, and that the defendant Meserole paid him a consideration of two thousand dollars.

The testimony of the plaintiff, as to the alleged fraudulent acts of his partner Meserole,is uncorroborated by other evidence, and a careful perusal discloses intrinsic difficulties and contradictions, especially in relation to the preparation of the written instructions to the attorney for the drafting of the instruments sought to be set aside. But a further examination of the voluminous case shows that plaintiff’s evidence is in conflict with that of' the defendant Meserole, and that of the attorney who prepared the instruments,and also with that of the book-keeper, Sproull, and is also in some respects, contradicted by other witnesses. In addition to this, the documentary evidence sustains the defendants case.

Under these circumstances, it is not easy to see how the learned judge at special term, whose decision we are asked to review, could have arrived at any other conclusion than one in the defendant’s favor.

The plaintiff excepted to a ruling of the court sustaining an objection to his further examining the defendant Moore. The plaintiff had exercised his option to examine the defendant, pursuant to § 390 of the Code, before trial. His examination and cross-examination, taken on October 15, 16, 17, 19, 20, 21, and 26, immediately preceding the trial, was read in evidence at the trial by the plaintiff, who then called him, and identified certain papers, and then proceeded to examine him as to what was said by the defendant Meserole, the witness having already been examined by the plaintiff in respect to conversations with Meserole. This was objected to, and no reason or ground being assigned by the plaintiff for a departure from the ordinary course of the examination of witnesses, or anything presented by which the court could see any occasion or propriety for repeating or renewing the examination-in-chief, the objection was properly sustained. It was not claimed by the plaintiff that this defendant had not already been fully examined upon the issues in the action, nor was it even suggested that by inadvertence some questions were omitted (Clark v. Vorce, 15 Wend. 193).

Though § 392 of the Code provides that such examination may be read by either party at the trial, and does not add the words ‘ ‘ in lieu of his oral examination,” it by no means follows that the party reading the examination has the right to an oral examination as to the same subject-matter. Such a result is at variance with the theory of the Code which was adopted by the legislature with the view of simplifying the practice and proceedings of the courts, and which is illy consonant with the idea that a plaintiff, after reading at the trial an examination of a defendant, the taking of which extended through a number of days, should then be at liberty to re-examine the witness orally as to the same subjects without showing any reason or excuse therefor.

There are other exceptions by the plaintiff taken at the trial, but none that call for a reversal of the judgment.

It is apparent that, as the plaintiff fails to establish his charges of fraud against the defendant Meserole, that the charges of fraudulently assisting him made by the plaintiff against the defendants Moore and Tauger, must fall. There is no evidence that implicates them in any fraudulent acts or designs.

The judgment appealed from should be affirmed with costs.

Monell, Ch. J., concurred.


text:
    THE PRODUCE BANK OF THE CITY OF NEW YORK, Plaintiff, v. JOSEPH MORTON, LEON WEIL, ALPHONSE WEIL, and AUSTIN BALDWIN, Assignee, Etc.
    I. FRAUDULENT ASSIGNMENT OF PARTNERSHIP PROPERTY.
    1. Action by a judgment ceeditob, on his own behalf and BEHALF 03? ALL OTHEE JUDGMENT CBEDITOBS, TO SET ASIDE,FOB A DECEIVES OF THE ASSIGNED PBOPEBTY, —AND FOB THE PAYMENT OF HIS DEBT.

      (a.) When not maintained.
    1. Where there were three partners who made an assignment, and the judgment obtained by the creditor was so obtained on a service of the summons on but two, and was in form against those two only, and the execution was issued against all three, and returned unsatisfied,

      Held,

    the action could not be maintained, because the remedy at lane, by judgment and execution returned unsatisfied against the three, had not been exhausted.
    II. Amendment, what will not cube the defect.

      (a) An amendment granted at the trial amending the judgment nunc pro tunc by adding the name of the third partner, as one of the parties against whom judgment was rendered, will not.
    n. NEW TRIAL.
    1. Motion fob, at geneeal teem, undeb § 367 of code.
    3. Final judgment, what does not constitute.

      (a) One setting aside a transfer as fraudulent and void, appointing a referee to take the accounts of the transferee, and a receiver to whom the transferee shall deliver and pay according to the report of the referee, and directing that the receiver pay to the plaintiff his claim out of what shall come into his hands, and hold the residue, if any, to abide the further orders of the court, is not.
    3. Judgment.
    1. Not a bar to a motion for a new trial. Laws of 1833, chap. 138.

      Before Monell, Ch. J., and Curtis, J.

      Decided January 3, 1876.
    Motion by the defendants for a new trial, on a case and exceptions, under section 268 Code, subdivision 1.
    The defendants, Joseph Morton, Leon Weil, and Alphonse Weil, co-partners, made an assignment of their property, in trust for their creditors, to the defendant Baldwin, February 4, 1874. The plaintiff sued the defendants Joseph Morton, Leon Weil and Alphonse Weil on a promissory note, June 22, 1874, The summons and a copy of the complaint were served only on the defendants Morton and Alphonse Weil, and judgment was entered against them only, by default, July 14, 1874, and docketed against them alone, in this court, and in the office of the clerk of the city and county of Mew York, after the filing of a transcript.
    An execution was issued, apparently, upon this judgment, January 17, 1875, against the property of'all three defendants, including Leon Weil, who had not been served, and against whom judgment had not been entered. The execution was returned wholly unsatisfied, February 4, 1875, and thereupon this action was commenced to set aside the assignment as invalid, and to reach the assets assigned to the defendant Baldwin by the other three defendants.
    At the trial, after the defendants’ objections to the various proceedings in the suit at law had been overruled and excepted to, and after the defendant had moved to dismiss the complaint, the plaintiff obtained an amendment nunc pro tunc of the judgment and docket by adding the name of Leon Weil. The judge found, that the proceedings at law were sufficient, and decided that the assignment was invalid, and ordered an accounting before a referee, and gave directions with respect to the confirmation of the report. He also directed that the disposition of any residue that there might be of the fund should abide the further order of the court, and granted leave to either party to apply for such other or further judgment as might be just.
    The defendant excepted to the decision.

      Fransioli, Tilney, and Mosher, of counsel for defendants, in support of the motion, urged, upon the points discussed and decided by the court:
    I. The proper course to obtain a review by the general term of the findings and of the rulings on the trial, at the present stage of this case, is by motion for a new trial (Code, sec. 268; Church v. Kidd, 3 Hun, 254; S. C., 5 Thomp. & Cooke, 454; Douglass v. Douglass, 5 Hun. 140; Stanton v. Miller, 65 Barb. 58; S. C., 1 T. & C. 23 ; Mundorff v. Mundorff, 1 Hun, 41; S. C., 3 T. & C. 170); 1. The decision filed under section 267 of the Code directs that the defendant Austin Baldwin ac count before a referee for all the property and effects or the proceeds thereof, received or held, by him pursuant to the assignment, and that a receiver be appointed to take charge of such property and effects, The plaintiff alleges that the defendant has received over three thousand dollars, and that the assigned property is of the value of nine thousand dollars or over. On the other hand, the defendants allege that the assignee has distributed all of the money except three hundred and sixty dollars and ninety-four cents. No evidence in support of these allegations was offered by either side on the trial; and it would have been premature to do so. Therefore, until the accounting shall be had, it will be uncertain how much money or property is to be delivered to the receiver, or what questions may arise on the accounting, and the judgment is not final (Prentiss v. Machado, 2 Robt. 660 ; Lawrence v. Farmers’ L. & T. Co., 15 How. 57 [Sup'r. Ct. G. T.]; Wood v. Hunt, 38 Barb. 302, 311 [
      Dist.) ; Swarthout v. Curtis, 4 N. Y. 415 ; Chittenden v. Missionary Society, 8 How. 327 [Ct. of App.]; Catlin v. Grissler, 57 N. Y. 363, 370). 2. The findings direct the receiver to pay to the plaintiff out of the property and effects to be placed in his hands the costs of this action, and the amount of the plaintiff’s original judgment, with interest. The plaintiff’s original judgment is four hundred and fifty-eight dollars and fifty cents. If the plaintiff should succeed in charging the defendant Baldwin with three thousand dollars, or nine thousand dollars, according to the allegations of the complaint, what is the receiver to do with the surplus % On this point the findings are wholly silent. But the order or judgment entered thereon expressly directs him “ to hold the residue, if any there be, to abide the further order off this court.” The plaintiff’s action is brought on behalf of itself and all other judgment creditors. The residue remains to be disposed of, and therefore the decision does not authorize a final judgment (Code, sec. 268 ; Tompkins. Hyatt, 19 N. Y. 534).
    II. The plaintiffs failed to show that they have exhausted their remedy at law. 1. The judgment in the common law action was entered and docketed only against Joseph Morton and Alphonse Weil, the two debtors who had been served with process; therefore it could not be enforced against the joint property of Joseph Morton, Leon Weil and Alphonse Weil (Code, sec. 136, subd. 1; Northern Bank v. Wright, 5 Robt. 604; Lahey v. Kingon, 13 Abb. Pr. 192; Stannard v. Mattice, 7 How. Pr. 4; Pardee v. Haynes, 10 Wend. 630 ; Nelson v. Bostwick, 5 Hill, 37, 41). The defect is not merely formal, but is one of substance (Nelson v. Bostwick, supra). 2. Viewing the plaintiff’s case in the most favorable light, they simply had the ability to enter judgment against Leon Weil, and failed to do so. In other words, Leon Weil is in the position of a defendant in default, against whom judgment has not yet been entered. But it has never been pretended that the plaintiff could issue execution or commence a creditor’s suit against a defendant in default, without perfecting judgment. 3. The difficulty is not obviated by the amendment of the judgment and docket made nunc pro tunc after the trial of this action (Farnham v. Hildreth, 32 Barb. 277).

      David J. Newland, attorney and of counsel for plaintiff, in opposition to the motion urged, on the points discussed and decided:
    I. This is not a case within the provisions of section 268; and therefore the defendants are not entitled to the provisions of that section. For, 1. Such a motion is only allowable where the decision 'filed under section 26? of the Code does not authorize a final judgment (sec. 268, Code). 2. But the decision in this cause, the findings by court, does authorize a final judgment. 3. The accounting and reference provided for in the decision was not to obtain any fact to be used for or requisite to the entering of final judgment, nor was the entry of the judgment subject to the reference. 4. The decision of the court found all the facts requisite for, and therefore authorized, a final judgment. As (a) That the assignment was null and void as to the plaintiff, (b) That the plaintiff was entitled to the payment out of the property or proceeds in the hands of the assignee, Baldwin, belonging to Morton, and the Weils, the assignors, of its judgment against said assignors, to wit, of four hundred and fifty-eight dollars and fifty cents, and interest, and the costs of this action. This was all a certain, definite sum. (c) And the accounting provided for in the decision was intended to occur, and actually began, after final judgment, and its only object was to place the moneys held by Baldwin, who, after the decision, is a mere stakeholder, a mere stranger without any title or interest in the fund, in the hands of the court, by its receiver, to satisfy the plaintiff’s judgment. 6. The only cases decided, cited below, since the amendment to section 268 of the Code, in 1867, allowing this practice, show and hold that this section applies only to cases in equity where what was formerly known as an interlocutory decree was entered (Stanton v. Miller, 65 Barb. 58; Church v. Kidd and ors., 3 Hun, 254; Bolles v. Duff, 38 How. 504). (a) But an interlocutory judgment, as formerly known, “was one sounding in damages, and where the issue is an issue of law, or when an issue of fact, not tried by a jury, is decided in favor of the plaintiff, then the judgment is, that the plaintiff ought to recover his damages without specifying their amount; for, as there has been no trial by jury in the ease, the amount of damages is not yet ascertained” (Bouviers Law Dict. 678, sec. 25).
    II. Even if the decisions allowed defendants to make this motion under sec. 268, they are too late in making the motion. For, 1. In analogy to all the practice on motions for a new trial under the Code, and well settled before the Code, motions for a new trial on a case could only be made before entry of judgment. 2. A stay should have been obtained in which to make the motion in this action, if the defendants desired to preserve their rights under the practice. 3. Or after judgment, the defendants’ only remedy was by appeal.
    III. 1. As to the judgment and transcript not showing a judgment against the three defendants: (a) The complaint shows that the three defendants were co-partners. (5) The postea or judgment entered by default was made and entered by the clerk of the court in point of law. And no detriment should come to plaintiff from the clerk’s omission, (c) The execution was issued against the three defendants regularly, (id) And by an order of the court the judgment and transcripts in the original action were amended on April 16, 1875, and made to conform to the facts, and to agree with the execution. And during the trial of this cause, and on April 19, 1875, the judgment and transcripts, as amended, were admitted in evidence. This was perfectly proper and regular, and in the discretion of the court under sec. 173 of the Code (Walsh v. Kelly, 27 How. 359; S. C., affirmed, 40 N. Y. 556). So that the judgment is against the three defendants, Joseph Morton, Leon Weil, and Alphonse Weil, from its entry, July 14, 1874. 2. The execution was issued against the three defendants, and the judgment and transcript are against the same.
   By the Court.—Curtis, J.

The relief sought in this action is the same that was prayed for in the case of Haddon v. Spader (20 Johns. 554). It was to establish and declare the great principle decided in that case by the court for the correction of errors, the chancellor says, in Gleason v. Gage (7 Paige, 123), that led the revisers and the legislature to establish the statutory provisions upon the subject of creditor’s bills. The statute thus enacted (2 R. S. 174, secs. 38 and 39), is unrepealed, except that portion that authorizes a discovery, and the remedy remains as before (Dunham v. Nicholson, 2 Sandf. 636).

The plaintiff, to sustain the present action, must show that previous to its commencement, he had complied with the requirements of the statute, both by a recovery of a judgment against the debtors, and by the exhaustion of the remedy against their tangible property through the return of an execution against them unsatisfied. The courts have unswervingly held the creditor, who sues for relief as a judgment creditor, to a strict observance of each of these pre-requisites. It has been the wise policy of the administration of justice, that the remedy at law should be exhausted before equity could be resorted to-.

Have these statutory requisites been complied with by the plaintiff? It appeared during the trial of this action, that Leon Weil, one of the three defendants sued as judgment debtors, and composing the firm of Weil Brothers & Company, and whose assets the plaintiff seeks to reach, had not been served with process in the original suit, nor had the judgment been entered against him, as alleged in the complaint, and put in issue by the answer. The statute was apparently complied with by the issue and return unsatisfied of an execution not specially endorsed, and in which his name is mentioned as one of the three judgment debtors. It was obvious that the requirements of the statute to sustain the suit had not been complied with, and after the plaintiff rested, the case was re-opened, on the application of the plaintiff, and an order was made directing the amendment mine pro tuno of the judgment and docket in the original action, by adding the name of the defendant Leon Weil as one of the parties against whom judgment was rendered.

This amendment, even if within the power of the court, which need not now be decided, fails to give that force and vitality to the judgment and execution which the framers of the statute must have contemplated as a preliminary to the creditor’s suit. The amendment did not validate the issuing and return of an execution against the defendant Leon Weil, who had not been served with process, and against whom no judgment existed to sustain the execution. Neither could the amendment make this execution enforcible or valid against the joint property of the three debtors, after it had been issued and returned unsatisfied, upon a judgment that did not authorize it.

If a creditor’s suit can be, by amendment, made effectual against a defendant who was not a judgment debtor at its commencement, and against co-defendants who are judgment debtors, without having had the full remedy at law exhausted against them, then this form of action must be sustained on some other basis than that upon which the courts have heretofore administered it (Child v. Brace, 4 Paige, 309).

The amendment can not make that a full execution of the judgment which was not so before, and the most that it can do is to place the plaintiff in a position where he may be enabled at law to duly execute it (Farnham v. Hildreth, 32 Barb. 277).

The plaintiff objects that this is not a case within the provisions of section 268 of the Code, and that the defendant is not entitled, at the present stage of the action, to obtain a review, at the general term, of the findings and rulings on the trial by a motion for a new trial. Section 268 provides that when the decision filed under section 267 does not authorize a final judgment, but directs further proceedings before a referee or otherwise, either party may move for a new trial at general term upon a case or exceptions. The decision filed under section 267, in the present case, specifically directs further proceedings before a referee, among other things an accounting before him, and then provides how either party may review his report preliminarily to confirmation, and, after directing the residue of the fund, if any, to abide the further order of the court thereupon, expressly authorizes any of the parties to “ apply to the court for such other or further judgment or decree as may be just.” This seems to bring the case precisely under the salutary provision of the Code which was intended to relieve litigants from the labor, delay, and expense of this class of proceedings before a referee, which previously had to be incurred, and the judgment made complete and final, before a review could be obtained at general term upon some question, which, if it could have been presented after the filing of the decision, under section 267, would have saved the parties from this useless burden. Where the rights of the parties to suits in equity are determined upon the hearing, but a complete disposition of the case requires accounts to be settled, this has always been done, both under the former practice and under the Code, by an interlocutory decree or judgment, as in the present case, declaring such rights and the manner of the accounting, and directing a reference to a master or- referee. The proceedings before the latter, -and the confirmation of the report, have always been considered as steps necessary and preliminary to authorizing a final judgment, unless the court saw fit to go on and take the accounting necessary to a final judgment after passing upon the rights of the parties (Mundorff v. Mundorff, 1 Hun, 42 ; Kane v. Whittick, 8 Wend. 242; Bolles v. Duff, 38 How. Pr. 505 ; Stanton v. Miller, 65 Barb. 58 ; Church v. Kidd, 3 Hun, 254).

The plaintiff also objects, that even if the defendants have the right to make this motion, they are too late, and that they should have procured a stay, and made the motion before the entry of judgment, if they desired to preserve their rights under the practice. Whatever views may have been held in regard to entertaining motions for a new trial after judgment, it is now settled that the court has power under the act of 1832 (Laws of 1832, p. 188, chap. 128) to grant a new trial on motion even after judgment (Raphaelsky v. Lynch, 12 Abb. N. S. 224; Folger v. Fitzhugh, 41 N. Y. 228 ; Tracy v. Altmyer, 46 Id. 598).

If the conclusions arrived at that the plaintiff failed to present a case entitling him to relief, and that the defendants are right in their mode of moving for a new trial, then no occasion arises for considering the other questions presented on the argument, and the defendant’s motion for a new trial should be granted with costs to the defendant to abide the event.

Monell, Ch. J., concurred.


text:
    HENRY WHITMAN, Plaintiff and Respondent, v. WILLIAM C. CONNER, Sheriff, etc., Defendant and Appellant.
    I. LEX-LOCI AND LEX-EORI.
    1. Usury.
    (1). A contract or obligation valid by the law of the state where it was made and was to be performed, can not, when sought to be enforced in another state, be held invalid as contravening the usury law of that state.

      {a) The fact that such contract or obligation is secured by a chattel mortgage executed in the state where the contract or obligation was thus made and to be performed, upon property in such other state, does not alter the rule.

    -(2) Security for such contract or obligation upon property in such other state, not invalid.

    (a) As the principal debt is not invalid, although usurious according to the laws of such other state, so the security therefor is not invalid, notwithstanding it is on property in such other state, and the party holding it is obliged to come in to the courts of such other state to enforce it.
    (b) So held where one basing his right on such security brings an action to recover the possession of the property from the sheriff who had taken it under an execution against a third person.
    S. Transfers of personal property, what law governs.

      The law oj the state in which the property is at the time of the transfer as to the steps necessary to be taken to give it validity as against creditors or subsequent purchasers or encumbrancers, governs when the transfer is relied on in the courts of that state as the basis of an action or a defense, although the transfer may have been executed in another state, and for the purpose of securing an obligation made and to be performed in such other state.
    Before Curtis and Sedgwick, JJ.

      Decided February 7, 1876.
    In this action there was a verdict rendered for the plaintiff. The court directed the exceptions to be heard: in the first instance at the general term.
    The suit was upon a claim for the delivery of per^ sonal property.
    The property in question, which consisted of horses and coaches belonging to a,livery stable in Eleventh . street, was levied upon by the sheriff, defendant, about December 26, 1874, under an execution against Sterry Fry. The judgment upon which the execution was obtained was for feed sold to Sterry Fry, the proprietor of the stable, between January 24 and July 6, 1874.
    On December 1,1874, the plaintiff, who did business at Providence, in the state of Rhode Island, under the name of Henry Whitman & Co., was the holder and owner of a chattel mortgage, executed to him at Providence, Hovember 17, 1873, by one Sterry Fry, of Hew York, to secure a then present indebtedness of one thousand four hundred and forty-one dollars and sixty cents; also all sums which should thereafter become due for advances, endorsements, or guarantees to the amount of forty thousand dollars, upon certain horses, harnesses, robes, carriages, &c., then in the city of Hew York.
    The mortgage was filed in the office of the register of the city and county of Hew York, Hovember 18, 3873, and was, with proof of filing, received and read in evidence upon the trial of the action. A copy of the mortgage, with a statement of the plaintiff’s interest, was filed in renewal of the mortgage in the office of the Register, Hovember 12, 1874.
    At the time of the renewal, there was claimed to'be'due and owing upon the mortgage between thirty-three and thirty-four thousand dollars, and a detailed statement of the account for the alleged advances and endorsements made by plaintiff to Fry, under the security of the mortgage, was put in evidence. The amount due upon the mortgage was demanded by plaintiff from Fry, in the fall of 1874, both previous to and after the renewal. ¡No part of the mortgage was paid.
    All of the transactions, upon the security of. the mortgage, between the plaintiff and Fry took-place at Providence.
    Fry having made default in the payment of the mortgage, the plaintiff took possession of the mortgaged property thereunder prior to December 5, 1874.
    A portion of the property embraced in the mortgage was the property in controversy, and which was about December 26, 1874, levied upon and taken and sold by the defendant, under the execution issued upon the judgment against Fry, which was for one thousand six hundred and twenty-four dollars and ninety-seven cents. A demand for the property was duly made upon the defendant. The value of the property taken and sold was claimed to be two thousand six hundred dollars. The defendant read in evidence the judgment roll in the action above referred to, the execution thereon, issued December 1, 1874, the statutes of Rhode Island as to the rate of interest, and the case of Pierce v. Hennessy (10 It. 1. 223). The Rhode Island statute regulating the rate of interest is as follows:
    Section 1.—Interest in the rendition ot judgments, and in all business transactions where interest is secured or paid, shall be computed at the rate of six dollars on a hundred dollars for one year, unless a different rate is expressly stipulated (chapter 128, General Laws of' Rhode Island, ed. 1872, sec. 1).
    At the close of the proofs, the defendant’s counse moved to dismiss the complaint on the grounds:

      First. That plaintiff, by his evidence, has failed to establish any cause of action against the defendant;

      S.cond. That the amount set forth in the statement, upon the re-filing of the mortgage, as due from Sterry Fry to the plaintiff, is fictitious, and that it is made up largely of an illegal amount of interest, and of an amount not covered by the mortgage ; and that whether the transaction is to be tested by the laws of Rhode Island or of the state of New York, the mortgage is void. The court refused to dismiss the complaint, and the defendant excepted.
    The jury rendered a verdict for the plaintiff, assessing the value of the property at two thousand two hundred dollars, and damages for the detention at thirty-three dollars.
    The questions argued arose upon the refusal of the court to dismiss the complaint, and defendant’s exception thereto.

      Vanderpool, Green & Cuming, attorneys, and A. J. Vanderpoel, of counsel, for appellant, urged:
    I. The transaction relied upon as furnishing the foundation for the chattel mortgage was usurious, and the' mortgage itself null and void. (1.) The knowingly and voluntarily taking or reserving a greater interest or compensation for a loan than that allowed by law is per se usurious. The offense is not condoned by want of intent to violate the statute, or by giving to the transaction another name than that of loan (Fiedler v. Darrin, 50 N. Y. 437). (2.) The defendant here can take advantage of the usury to defeat the mortgage. Any party having a lien on a chattel may avoid for usury a mortgage claiming priority (Thompson v. Van Vechten, 6 Bosw. 373, 27 N. Y. 568, 585 ; Schroepel v. Corning, 5 Denio, 236 ; Carow v. Kelly, 59 Barb. 239; Dix v. Van Wick, 2 Hill, 522). (3.) Where any part of a contract is tainted with usury, the whole contract is void (Matthews v. Coe, 56 Barb. 430; Cope v. Wheeler, 41 N. Y. 309; Giblet v. Averill, 5 Denio, 88; Price v. Lyons, 33 Id. 55; Jackson v. Packard, 6 Wend. 415; Fulton Bank v. Benedict, 1 Hall, 480).
    II. The transaction is to be governed by the laws of New York, where the subject-matter of the contract was situated, where it was to be performed, and where is the forum in which it is sought to be enforced. The plaintiff seeks here to enforce the lien of a chattel mortgage, executed upon property within the state and under the laws of the state. It is in legal effect a sale of property situated in this state, and the presumption is that the transaction is to be carried out here. The mortgage covered leases and fixtures, as well as horses and carriages. It could only be executed here. The entire transaction was one for the purpose of carrying on a business within this, state, upon the security of that business, and the plaintiff can not, because of his non-residence, have greater rights than a resident. The law of the place where a contract is to be performed governs as to its construction and validity (Jewell v. Wright, 30 N. Y., and cases cited).
    III. The statement filed by the plaintiff, in order to renew the mortgage, was fatally defective. The law requires the utmost accuracy, as well as good faith, in the statement which is to be filed. A mere clerical error in the amount is sufficient to defeat the security (Ely v. Carnley, 19 N. Y. 496 ; Id., 3 E. D. Smith, 489). The statement in this case was not the “ true statement” demanded by the statute. (1.) It included usurious items of interest. (2.) On a large number of these notes, the plaintiff had not been charged as endorser. A creditor existing or prospective of Fry would be utterly unable to find out how much had actually been advanced by the plaintiff, and how much of the sum mentioned was a contingent liability. (3.) After the assignment by Fry, on July 10, 1874, no lien could be created by him on the property, and it could not be charged with any new debt of his. Notwithstanding this, there are included in this statement advances made by the plaintiff subsequent to the assignment, and prior to the re-filing, and this although the plaintiff was aware of the assignment. (4.) It also includes large sums which became due before the mortgage was given, and which are not covered by it.. The mortgage by its terms was to cover future advances, not past.

      J. F. Harrison, attorney and of counsel for respondent,urged :
    The plaintiff’s claim under the mortgage was neither fictitious, nor tested by the law governing the place of contract—is any portion of the amount made up of an illegal rate of interest. The law of the place of contract must govern, (a.) The contract was made, and all the transactions between the plaintiff and Fry took place at Providence, in the state of Rhode Island. There is no usury law in that state. The law governing the rate of interest there simply fixes the rate at six per cent., where no agreement is made, but allows an agreement for any rate, and such a contract is enforceable. By the plaintiff’s agreement with Fry, made in Rhode Island, he was to charge Fry whatever rate he had to pay. No more than seven per cent, was charged him, unless the plaintiff was obliged to pay more, and seven per cent, was charged by agreement between plaintiff and Fry.
   By the Court.—Curtis, J.

The chattel mortgage in question was given to the plaintiff to secure sundry loans and liabilities. The transactions in reference to these occurred at Providence, Rhode Island, where the plaintiff then and ever since has resided. The chattel mortgage was dated and executed there.

It is claimed that the obligations which the chattel mortgage was given to secure were usurious, and the mortgage consequently void, and that they are governed by the laws of the state of New York.

The statute of Rhode Island directs that interes shall be computed at six per cent., unless a different rate is expressly stipulated. In the transactions secured by the mortgage, where any rate other than six per cent, was charged, such rate was so charged by express agreement between the parties. The taking of a greater rate of interest than six per cent, in Rhode Island does not vitiate contracts, nor is it punishable as an offense. This fruitful source of litigation is closed, and even the courts, disregarding all theories of its heinousness, appear impressed with the material idea, that thus inviting an influx of capital promotes the public welfare. In a state where such laws and views prevail, it is evident that the plaintiff can not be deprived of debts justly due Mm, or of realizing upon the securities he may have taken as collateral to them, because he has charged, and the borrower has agreed to pay, the current rates of interest (Pierce v. Hennessy, 10 R. I. 223).

But it is urged that the laws of the state of New York govern. Obligations incurred, dated and to be fulfilled in Rhode Island, can not beheld usurious and void under the statutes of New York because they are secured by a chattel mortgage executed also in Rhode Island upon chattels that are in New York. The principle recognized in the comity that prevails among all civilized nations, that obligations if valid by the laws of the country where made and to be fulfilled, will bé sustained in the country where they are sought to be enforced, even though usurious under the laws of such latter country, was affirmed in Gruillander v. Howell (35 N. Y. 662).

Though the New York statutes respecting usury can not be successfully invoked against these transactions in Rhode Island, the same doctrine does not apply to those statutes which regulate the filing and renewal of ■chattel mortgages made there upon personal property in this state.

It is the right of a state in which personal property is conveyed subject to a condition, without a change of possession, to prescribe such mode of recording, and of public notice, as it deems best to protect its own citizens. This is a duty under such contingencies, that it, owes to itself, partaking of the nature of an internal police regulation. Consequently, the party who takes-a conveyance of personal property of this nature without taking possession of it, is bound, in order to protect the interest he so acquires, to conform strictly to the local law.

The plaintiff holding this chattel mortgage, executed in Rhode Island upon chattels in New York, in order to protect his lien and interest thereunder, was fully amenable to every provision of the New York statutes respecting the filing, the renewal, and the statement to-be filed in order to renew it.

The law requires accuracy and good faith in the-statement which is to be filed, in order to protect the security. It is a public notice to all dealers with the mortgagor, and upon which they are entitled to rely in business transactions. When the plaintiff .elected to leave these mortgaged chattels in the possession of the mortgagor, he was required to file a true statement of his interest in the property mortgaged.

The statement filed by the plaintiff, November 12,. 1874, on the renewal of the mortgage, shows that the amount due on, and his interest in, the mortgaged property was thirty-three thousand four hundred and sixty-one dollars and forty-two cents. The plaintiff' testified on the trial that there was this amount due to-him at the time of the renewal, and that he had demanded it from the mortgagor. There was other testimony corroborating his statement. On his cross-examination he -produced an account showing the details of his statement. It was claimed that this account was obscure and loose, and that there were items that conflicted with his evidence. An examination of these details, presented inartificially and not very clearly, fails to negative the effect of the testimony as to the accuracy of the renewal statement. No testimony was introduced on the defendant’s part. There is nothing to show that the jury found incorrectly upon any question of fact, nor do the exceptions afford ground for setting aside their verdict.

There should be a judgment for plaintiff upon the verdict, with costs.

Sedgwick, J., concurred.