text:
    THE PEOPLE ex rel. Emanuel Meyer, Plaintiff, v. LOUIS HARTMAN, Defendant.

      [Decided December 3, 1870.]
    The mere recital of jurisdictional facts in an order made by a surrogate revoking letters testamentary, is not sufficient to show such jurisdiction.
    Surrogate courts are courts of limited jurisdiction, and jurisdiction must in all cases be shown, and cannot be intended.
    If a proceeding before a surrogate is not an original proceeding, but of a matter over which he had already acquired jurisdiction, then such jurisdiction will continue. But if the proceeding is original, then everything required by the statute to confer jurisdiction must appear.
    A power to remove an executor is wholly independent of any other power given to surrogates; and to show its valid exercise, it is necessary to show that all things required by the statute had been done.
    Before Monell, McCunn, and Spencer, JJ.
    The action was against the defendant Hartman as the surety upon the bond of his co-defendant Wuest, the executrix of the last will of Peter Wuest, given under section 18 of 2 Rev. Stat., 72.
    Letters testamentary were issued to Mrs. Wuest in September, 1866. The condition of the bond was that as such executrix she would faithfully execute her trust and obey all orders of the surrogate. The bond was dated and executed in January, 1867.
    In October, 1868, the surrogate made a decree directing the executrix to pay a debt due to the relator Meyer. On default, the surrogate assigned the bond to the relator for prosecution.
    On the trial before Mr. Justice Jones and a jury, the defendant offered in evidence a certified copy of an order of the surrogate, which was as follows:
    “At a Surrogate’s court held in and for the County of New York, at the Surrogate’s office, in the city of New York, on the 1st day of May, 1867.

      “Present—Gideon J. Tucker, Surrogate.
    “In the matter of the estate of Peter Wuest, deceased.
    “Louis Hartman, of the city of Hew York, one of the sureties of Magdalena Wuest, executrix of the last will and testament of Peter Wnest, late of the city of Hew York, deceased, having heretofore presented his application to the surrogate of the county of Hew York, setting forth that he desired to be released from responsibility on account of the future acts or defaults of the said executrix, and praying for relief pursuant to the statute in such case made and provided, and the said surrogate having thereupon issued a citation requiring the said Magdalena Wuest, executrix aforesaid, to appear before him and give new sureties, and the said Magdalena Wuest having failed to appear and give new sureties, as required by said citation, and having failed to ask for further time, it is ordered, and the surrogate of the county of Hew York, pursuant to the statute in such case made and provided, doth order, that the letters testamentary on the last will and testament of said Peter Wnest, deceased, heretofore granted and issued by the surrogate, bearing date the 13th day of September, 1866, be and the same are hereby revoked, and all authority and rights of the said Magdalena Wuest, as such executrix aforesaid, are hereupon to cease.
    “And it is further ordered that the letters of administration,, with the will annexed, of the goods, chattels, and credits of said. Peter Wuest, deceased, be granted to Mary Schroh, daughter and only next of kin to said testator, on her application for the’ same, and upon her executing a bond as required by law.
    “In testimony whereof, I have hereunto affixed my seal of office, at the surrogate’s office, in the city of Hew York, the day and year above written.
    “ Gideon J. Tucker,
    “ Surrogate.”'
    This order was objected to on the ground—
    1. That there was no evidence that the surrogate had jurisdiction to make such order by any application of a surety, or citation of the executrix.

      2. That the certificate annexed to the order did not entitle the copy to be read in evidence.
    3. That the surrogate was not authorized to make the order in favor of the surety.
    The court overruled the objections and the order was read in evidence.
    A verdict was thereupon directed for the defendant.
    The plaintiff excepted, and the court sent the exceptions to the General Term.

      Mr. Roger A. Pryor for the plaintiff.

      Mr. Jacob A. Gross for the defendant.
   By the Court:

Monell, J.

It must be conceded that the order of the surrogate of the 1st of May, 1867, revoking the letters testamentary to Mrs. Wnest, if enough was shown to confer jurisdiction upon that officer to make the order, was a complete exoneration of her surety from liability under the decree of October, 1868. The statute declares (sec. 32, Laws 1862, p. 417) that upon such revocation the authority and rights of the executor shall cease, and the surrogate is given the same power to require such executor .to account as is conferred by the Eevised Statutes, sec. 36, ibid.

It must also be conceded that the various proceedings, which •are recited in the order of revocation to have preceded the granting the order, if such proceedings were in fact had, were sufficient, so far as they go, to confer jurisdiction upon the surrogate •to make the order.

But it is claimed in the first place that such recitals are not evidence of such proceedings ; and in the second place, that if such recitals were evidence they do not recite enough facts to give the surrogate jurisdiction.

Surrogates’ courts being courts of limited powers, their jurisdiction must in all cases be shown and cannot be intended. Hence, in this .case, the surrogate’s power to make the order of revocation will not be presumed, and if enough did not appear from the proof introduced to show jurisdiction the direction of the learned justice was erroneous.

If the proceeding by the surety to relieve himself from responsibility for the future acts or defaults of the executrix was an original proceeding, then probably tlie order without the recital of the preliminary proceedings was sufficient to show jurisdiction. For when a court or officer of limited powers has once acquired jurisdiction of a subject-matter, it will continue on all the subsequent proceedings in the same matter ; and then every intendment and presumption will be in favor of his jurisdiction on such subsequent proceedings (Monell v. Dennison, 17 How. Pr. R., 422; McCarthy v. Marsh, 5 N. Y. R., 268).

Therefore, if the proceeding to obtain the order of revocation in this case was not a new or original proceeding, but a mere subsequent proceeding in a matter on which the surrogate had already acquired jurisdiction, then, probably, the proof was sufficient.

But I am of opinion that the proceeding to remove the executrix was wholly a new and original proceeding, standing by itself and not aided by any acquired jurisdiction on any previous subject-matter, so that the jurisdiction which the surrogate had to issue the testamentary letters did not reach forward and confer jurisdiction upon him so as to bring his subsequent orders within the rule I have stated.

The power conferred on the surrogate to remove executors and administrators is wholly independent of any other power which he may exercise. The precise grounds upon which he may move and the manner of proceeding are prescribed specifically by statute, and must in all cases be strictly observed.

It was necessary, therefore, to show in this case, not only that an application in conformity to the statute was made by the surety to the surrogate and a citation issued thereupon, but also that such citation had been served in the manner prescribed by the statute. That was not done. The application and issuing the citation were perhaps sufficiently proved by the recitals in the order, but there was'no proof whatever in the order or otherwise of the service of the citation upon the executrix, which service was not only required by the statute, but was a jurisdictional fact necessary to be proved on the trial, and is vital to the validity of the order; and the defendant claiming under it was bound to show affirmatively that such service had been made.

In Jackson v. Robinson (4 Wend., 436), the plaintiff claimed to ■recover under a deed from an administrator executed under an order of the surrogate directing a sale of the intestate’s real estate, and it was held that it must be shown that all the proceedings to confer jurisdiction had been taken. In that case all the proceedings were shown.

But in Conim v. Merritt (3 Barb. R., 341), a similar case, the proceedings preliminary to the order of sale were not shown. There was no proof that an account had been delivered to the surrogate, nor of the publication of the order to show cause, ■each of which the court said were necessary for jurisdiction. “ The notice -to appear is in the nature of a first process to summon the parties, and is indispensable to give the surrogate jurisdiction.” The court also held that there were no presumptions to be derived from the order of sale in favor of its validity.

In People v. Barnes (12 Wend., 492), in an action on an administrator’s bond, it was held to be necessary to show, not only the order directing the prosecution of the bond, but also the decree for the payment of the debt, and the neglect or refusal of the administrator to comply with it. These were jurisdictional facts, and the court would not presume that the decree was duly made.

The People v. Corlies (1 Sandf., 228) is to the same effect, where it was held that power to order the prosecution of an administrator’s bond is given in specified cases only, and jurisdiction of the subject-matter can be shown only by proving the, existence of one of .such authorized cases.

In Dakin v. Hudson (6 Cow., 221) there had been a decree of the surrogate to pay a debt and an execution against the person of the administrator'. In an action for an escape, it did not appear that the surrogate who made the decree was the same surrogate who had granted the letters. That was held to be fatal; that it should be shown that the facts upon which the surrogate acted gave him jurisdiction of the subject-matter and of the persons before him.

These cases sufficiently illustrate the rule which requires all jurisdictional facts to be averred and proved, as well' as the effect of omitting such averment and proof.

The omission, therefore, to prove in this case the service of a citation upon the executrix, made the proof of jurisdiction defective, and the plaintiff ought to have had a verdict.

We place our decision solely on the ground of such defective proof, and therefore do not deem it necessary to express any opinion upon the sufficiency of recitals in an order as evidence of the proceedings recited.

The exceptions should be sustained, the verdict set aside, and a new trial ordered, with costs to the plaintiff to abide the event.


source: Caselaw Access Project

author: Monell, J.

license: Public Domain

text:
    GEORGE BERNER, Plaintiff and Respondent, v. G. M. MITTNACHT, Impleaded, etc., Defendant and Appellant.

      [Decided December 3, 1871.]
    The examination of a party as a witness is subject to all the rules applicable to the examination of any other witness, and the testimony of a party can be impeached only in the several modes in which ordinary witnesses can be impeached.
    Evidence of a particular fact is not admissible to impeach a witness. Hence proof of an accusation of a crime is not admissible as affecting the credibility of a witness. It is not only proof of a single fact, but is hostile to the presumption of innocence.
    Where on proof that a witness had been -charged with having committed perjury, the court charged the jury that it was admissible as affecting the credit of the witness— held, the instruction was erroneous.
    While disparaging questions may be put to a witness for the purpose of affecting his general credit, they must relate to his own acts or declarations, and not to the acts or declarations of others.
    Before Monell, McCunn, and Spencer, JJ.
    The action was upon a promissory note made by Eittig and indorsed by Mittnacht, and payable “ at Ho. 1 Tryon row, in the city of Hew York.” The complaint alleged presentment of the note for payment at the place named therein, and the non-payment thereof. And further, that Mittnacht, the indorser, was present at such presentment, and had actual knowledge of such non-payment, and waived formal notice thereof, and then and since has promised to pay the note. The answer of the indorser, Mittnacht, alleged that the note was not presented for payment to the maker, and denied notice of non-payment or waiver thereof, and also the alleged promise to pay.
    The action was tried before Mr. Justice Jones and a jury.
    The defendant (Mittnacht) moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action, which motion was denied. Evidence was then given in relation to the presentment of the note, the alleged knowledge of the defendant of such presentment, and of his promises to pay. In the course of the cross-examination of the defendant, who had been examined in his own behalf, he was asked, “ Have' you ever been arrested on a charge of perjury ? ” which question was objected to on the ground that the fact should be proved by the record, and the objection was sustained. Subsequently the deputy clerk of the Court of Sessions was called, and produced a bond which he testified had been given by the defendant Mittnacht, and which the plaintiff offered in evidence. It was objected to by the defendant, but the objection was overruled and the bond read in evidence. The defendant excepted.
    The bond was dated the 12th day of April, 1369, and executed by defendant, and a surety for the appearance of the defendant before the Court of Sessions, on the first Monday in May, to answer any indictment that might be found against him upon a charge of perjury, made by one Gabriel M. Gernsheimer. The bond recited that the charge was made before William Dodge, police justice ; that such an offence had been committed; that there was probable cause to believe the defendant guilty thereof, and the offence being bailable, ordered the accused to find bail in the sum of $5,000 to appear before the Court of General Sessions to answer to any indictment.
    In submitting the questions of fact to the jury, the court instructed them, amongst other matters, as follows:

      “ There is one other remark that I wish to call attention to : it is in relation to the charge of perjury brought against the defendant ; a charge of this sort is admissible in evidence as affectmg the credibility of a witness against whom it is made, but it is, no doubt, open to explanation. A charge made, and allowed to go unexplained, might have considerable influence in affecting the credibility of a witness against whom it is made, but the force of it depends entirely upon the explanation given by the witness. The bare fact that some person in the community undertakes to make a charge against another is no guarantee of the truth of the charge ; it is only after investigation, it being denied, that it should at all weigh in affecting his character ; for otherwise it would be the easiest thing in the world to make a charge against a man, and thereby affect his testimony. In this case, it appears this charge was made by the party in a suit against him. The defendant in this suit, Mr. Mittnacht, had brought a proceeding, charging him with obtaining goods under fraudulent pretences. The party so proceeded against brought this charge of perjury. The defendant denied the charge, and has given a bond, in which bond it is asserted that there is probable cause for believing the charge true. He gives security to appear, before the court for trial, in case an indictment is found; an indictment has not been found. The bond states he is to appear on the first Monday of May ; it is now the 24th, and no indictment has yet been found; nor does it follow that if an indictment should be found, the defendant would not be acquitted. The case is exactly in the same condition as this suit. Here one man charges another with having given his indorsement to him as security-for an advance made to another, and the other party denies that, and the question is before you for determination. In the other case one man makes a charge against another for perjury, which is denied, and there is, as yet, no adjudication upon it. It is for you to say whether, under all the circumstances, this charge should affect the testimony of the defendant.”
    The defendant excepted to the charge. The plaintiff had a verdict. The defendant appealed.

      Mr. Christopher Fine for appellant.
    The learned judge, before whom the cause was tried, erred in receiving in evidence a bond alleged to have been given by the defendant, Mittnacht, on an ex parte complaint of perjury, made against him to affect the defendant’s credibility.
    It is a general principle that every man is considered innocent until he has been tried and convicted, and thus proved guilty.
    There having been no trial or conviction, the defendant should have been presumed innocent of the base charge made against him, and the reception of. this bond in evidence was a violation of this principle.
    It is a contradiction of terms and of principles to say that a man shall be presumed innocent until proven guilty, and at the same time allow a mere and an ex parte charge of perjury to be given in evidence, and taken as against his truth and veracity, for, surely, if he is innocent of the charge, it should not be allowed to affect his credibilty (The People v. Gray, 7 N. Y., 378; Lipe v. Eisenlord, 32 N. Y., 229).
    “ In impeaching the credit of a witness the examination must he confined to his general reputation, and not be permitted as to particular facts; for every man is supposed to be capable of supporting the one, but it is not likely that he should he prepared to answer the other, without notice, and unless his general character and behavior be in issue he has no notice ” (1 Greenleaf on Evid., § 461; Swift’s Evid., 143; 2 Phil. Evid., 954, 5th Amer. ed.; In rex v. Rockwood, 4 St. Tr., 681).
    In this case the original complaint for perjury, said to have been made against the defendant, was not produced, but a bond, said to have been signed by the defendant (but no proof of signature), and in which the contents of the written charge or complaint is given, and the opinion of the committing magistrate that there was probable cause to believe the defendant guilty thereof, was received in evidence; which bond, if signed by the defendant at all, was signed under the coercion of imprisonment.

      Mr. James M. Smith for respondent.
    The admission of the evidence was proper (see Shepard v. Parker, 36 N. Y., pp. 617-18-19; G. W. Turnpike Co. v. Loomis, 32 N. Y., p. 127: see Le Beau v. The People, 34 N. Y. R., p. 223; see 32 N. Y., Lipe v. Eisenlord, 229).
    These last cited are the latest cases, and fully sustain the ruling of the court in admitting the evidence. In the language of the opinion in the ease in the 32d N. Y., above cited: “ There is no case which holds it is error to exclude evidence immaterial to the issue offered upon cross-examination for the purpose of discrediting the witness,” * * * but there is no case where a judgment has been reversed or a new trial granted for the exclusion or admission of such evidence, until the case of The People v. Blakely (4 Park., Criminal Reports). (In this case the General Term reversed the decision below because disparaging questions were not admitted.)
    In the case under consideration an act of the witness was offered in evidence on cross-examination to impair his evidence. He was permitted to give an explanation of the matter and so to reheve himself from the damaging effect of his own act.
   By the Court :

Monell, J.

The evidence introduced in this case, and which the learned justice charged the jury was admissible as affecting the credibility of the witness, was of a single charge. A complaint of perjury had been made against him, and he was bound over to answer any indictment which might be found.

This evidence was not followed by any proof of a trial and conviction. But the witness was allowed to make such explanation in respect to the charge as he was able, and the jury were instructed to say whether under all the circumstances the charge should affect the testimony of the witness.” »

The examination of a party as a witness is subject to all the rules applicable to the examination of any other witness, and the testimony of a party can be impeached only in the several modes in which ordinary witnesses can be impeached.

It is well understood that evidence of particular facts are not admissible to affect the credibility of a witness (2 Phil. on Ev., 291), and the latitude which is allowed to the discretion of a judge upon the cross-examination of a witness does not permit of a departure from the established rules of evidence..

It is not necessary to determine whether proof of conviction for an offence would be admissible to impeach a witness. It would be evidence of a particular fact, and probably therefore inadmissible. The proof in this case was of an accusation of crime, which was not only proof of a single fact, but the effect it was allowed to have with the jury was in direct hostility to the presumption of innocence which every accused person is entitled to.

A leading case in support of this position is Jackson v. Osborn (2 Wend., 555). For the purpose of impeaching a witness, it was offered to prove that he had been indicted for perjury. The evidence was excluded. "Upon exceptions it was held that the evidence was properly rejected. The court say the credibility of a witness is not to be impeached by proof of a particular offence.

In Hannah v. McKellip (49 Barb., 342) the defendant was ¿xamined as a witness on his own behalf, and on his cross-examination he was asked, “ Have you ever been charged with swearing falsely?” which was objected to on the ground that it was not admissible to impeach him. The objection was overruled. A new trial was granted for error in overruling the objection.

The principle is also sustained by the case of The People v. Gay (7 N. Y. R., 378), where it is said that the law presumes an accused person to be innocent, and the single fact that he has been complained of and held for trial for the commission of a crime does not affect his moral character.

In Lipe v. Eisenlord (32 N. Y. R., 229) a witness testified on cross-examination that he was under indictment for murder, and the judge was requested to charge the jury that such fact affected the credibility of the witness. But he declined so to charge. The court, in sustaining the refusal, said it had no power to try the issue upon the indictment, and until the witness was found guilty by the petit jury the law presumes him to have been innocent.

"While, however, it is true that proof of charges preferred against the accused are not proper for the purpose of impeaching him, yet a judge, in the exercise of his discretion, may admit disparaging qnestions, when put for the purpose of impairing his general credit. But the rule is confined to the acts or declarations of the witness, and does not extend to the acts or declarations of others. Thus it might have been within the discretion of the judge to have allowed the inquiry of the witness whether he had not sdorn falsely on some occasion, but not whether others had accused him of having sworn falsely.

It is presumed that the learned justice gave his instruction to the jury under the belief that the bond was so far the act of the witness as to commit him to its contents, and hold him responsible for its recitals. He had signed it, and it recited that he had been charged with having committed perjury, and that there was probable cause to believe him guilty.

Even if the recital could be construed into an admission by the witness that there was probable cause to believe him guilty, it would not be sufficient to rebut the presumption of innocence. It will not be contended, I think, that upon the traverse of an indictment for the offence charged, the recital would be sufficient to convict, and thus cast the burden upon the accused of proving his innocence. It would not, I apprehend, be any evidence whatever against the witness, and I am not willing to give it any consequence whatever.

I am, therefore, of the opinion that the evidence was improper • and the instruction to the jury erroneous.

The judgment should be set aside and a new trial ordered, with costs to the appellant to abide the event.


text:
    SEYMOUR N. MARSH, Plaintiff, v. EDWARD ELLSWORTH et al., Defendants.

      [Decided December 3, 1870.]
    Where, upon an application for a bankrupt’s discharge, a creditor preferred charges of perjury against the bankrupt and one of his witnesses—held, in an action by such witness for an alleged libel, that if these charges were material to the bankruptcy proceeding, they were privileged, and that the burden was upon the plaintiff to show they were not material.
    Where, on the trial of such action, it appeared that the bankrupt’s proceeding was attacked on the ground of fraud—held, the charges were material.
    Before Monell, McCunn, and Spencer, JJ.
    The action was for a libel. Upon an application by one Caldwell for a discharge under the United States bankruptcy law, the plaintiff was examined as a witness. Subsequently the defendant, a creditor of Caldwell, filed objections to his discharge. One of the specifications was as follows :
    “ Third, and the said creditor (Edward Ellsworth, meaning) charges the said bankrupt (George Caldwell, meaning) with procuring his wife and the said Seymour H. Marsh (this plaintiff) to testify falsely in the course of their examination in the proceedings (meaning said proceedings in bankruptcy) in regard to material facts in relation to these proceedings (meaning such proceedings in bankruptcy) ; in inducing said Marsh (meaning this plaintiff) to testify that the said bankrupt (meaning said George Caldwell) was only a salaried employe of said Marsh & Co., and that the share of the business assets and property of the said firm, which in truth and in fact belonged and belongs to the said bankrupt, had, prior to 1854, been the property of one Joshua Read, and since 1854 had been and now is the property of said Eleanor J. Caldwell,” thereby intending to and accusing this plaintiff of committing perjury in Ms said examination before said register.
    The complaint alleged that the defamatory statements so made against the plaintiff were made without any reasonable or probable cause, and were wholly immaterial upon the controversy pending before the United States District Court, and were made in writing over the signatures of each of said defendants, and were wholly untrue, malicious, and wilful, and made with the purpose and intention on thepa/rt of the defendants of defaming and injuring this plaintiff.

    The defendants denied the want of probable cause, or that the statements were immaterial upon the pending controversy.
    On the trial before Mr. Justice Jones, the proceedings in bankruptcy, including the specification containing the alleged libel, were given in evidence.
    The justice held that the objections and specifications were material upon the controversy pending before the United States District Court, and were therefore privileged, and he directed a verdict for the defendants. The plaintiff excepted, and the court sent the exceptions to the General Term.

      Mr. Ira D. Warren for plaintiff.
    “ The privilege of parties and attorneys, solicitors and counsel, in respect to words or writing used in the course of judicial proceedings reflecting upon others, is limited to matters which are pertinent and material. If he goes out of the way to asperse or vilify another by words or writing, not material to the controversy, he is without protection” (Gilbert v. The People, 1 Denio, 41; Ring v. Wheeler, 7 Cowen, 725).
    “Words spoken by counsel or published by a party in judicial proceedings do not fall within that class of privileges for which no action will lie, however false or malicious may be the charge against the reputation of a private individual.” “ The jury must be satisfied that there was actual malice.” “ That malicious motive may be inferred from the palpable irrelevancy of the words to the subject in controversy ” (Suydam v. Moffat, 1 Sandf., 463, 464).
    “ A privileged communication means nothing more than that the occasion of making it rebuts the prima facie inference of malice arising from the publication of matter prejudicial to the character of the plaintiff, and throws upon him the onus of proving malice in fact; but not of proving it by extrinsic evidence only; he has still the right to require that the alleged libel itself shall be submitted to the jury, that they may judge whether there is evidence of malice on the face of it” (Wright v. Woodgate, 2 Crompton, Meeson & Rosco, 573).
    We say, therefore, that the accusation was wholly immaterial, because it now appears that the plaintiff did not testify to what he was accused of.
    The court erred in not submitting the question to the jury, as requested by the plaintiff, viz.: “ whether the defendants, when they made the charges contained in the specifications, made them in good faith, or in the belief that they were pertinent or material to any question in the case, or whether they were actuated by malice, and used the words for the purpose of defaming the plaintiff.”
    This proposition has been expressly decided (White v. Carroll, Court of Appeals; Albany Law Journal, vol. 1, page 357; Suydam v. Moffat, 1 Sandf., 463, 464; Hastings v. Lush, 22 Wend., 414).

      Mr. William A. Coursen for defendants.
    The complaint shows that all the proceedings on the part of the defendants were in opposing the discharge of the bankrupt. The answers set forth more fully the same matters as a defense. and in addition thereto, the answer of the defendant Ellsworth denies that the specification complained of was made by him or with his knowledge or authority. The answer of the other defendant denies malice or immateriality in the specification, and states the same to have been made solely in the course of professional duty. The United States bankrupt law (section 30) makes “ any fraud whatever contrary to the true intent of the act ” a ground for refusing the discharge. It is admitted (or certainly undeniable) that the specification to which exception is taken by the plaintiff, was filed for the purpose of charging a fraud against the bankrupt law upon the defendant Caldwell. If he did procure the plaintiff to testify to-what was false in matters which might have prevented his (Caldwell’s) discharge, then he was clearly guilty of a fraud provided for in the law. The point seems hardly to have sufficient uncertainty to admit an argument. We have only to put the questions in this wise: Suppose that what the plaintiff did testify to was false, and that he so testified under the procurement of Caldwell % Suppose that the testimony, to the effect that Caldwell had been only a clerk in the firm of Marsh & Co., was not true, then as the schedule of property of the bankrupt (Caldwell) had no mention of any interest or assets on his part in the firm of Marsh & Co., the discharge of the bankrupt would have been necessarily refused.
    There is no reasonable question in reference to the law in the case.
    “Words spoken or written in a legal proceeding, pertinent and material to the controversy, are privileged, and the truth of the statement cannot be drawn in question in an action for slander or libel. And where the statement is privileged within this rule, it is unnecessary in this action of libel for the defendant to deny the allegation of malice.”
    These are the words in the head-note of Garr v. Selden (4 Comstock, 91), and they correctly express the point decided in that case—and they more than cover the point in favor of defendants in this case. The defendants in this action both deny the allegation of malice, and one (Ellsworth) denies the making or publishing of the libel. Surely these words (the alleged libel) were written in a legal proceeding, and were without doubt “pertinent and material to the controversy.”
    The “ controversy ” was concerning the discharge of the bankrupt (Caldwell), and that discharge would not have been granted if the statement or specifications referred to as a libel contained the truth.
    We refer also to the opinion of the General Term of this court on this action, on the appeal of the defendant from a decision of the Special Term overruling a demurrer to the complaint—36 Howard, P. R., page 532. By that opinion it appears that no doubt existed in the mind of the court in regard to the law applicable to this case. It further appears that the only question in the case, not in favor of the demurrer, was the absence of any allegation in the complaint showing the materiality of the alleged libellous matter (36 Howard, p. 537). That point is entirely cleared up by the answer of the defendants and the testimony in this case now before this court.
   By the Court:

Monell, J.

When this ease was up on the appeal from the order overruling the demurrer to the complaint, this court held (36 How. Pr. R., 532) that words spoken or written in a judicial proceeding by any person haring an interest therein were absolutely privileged, and no action would lie therefor, however false, defamatory, or malicious they might be, provided the matter was material to the inquiry before the court, and that the onus was upon the person speaking or writing the defamatory words to show their materiality to the controversy ; and the only question then before the court was whether such materiality appeared upon the complaint, there being no other paper before the court, and the court held that the facts stated in the complaint did not show that the defamatory matter was pertinent and material upon the proceeding pending in the bankruptcy court.

On this trial the defendants gave in evidence such of the proceedings in the bankruptcy court as were necessary to show the materiality, as it was claimed, of the matter complained of, and we think they show clearly that the specifications were material, and therefore privileged. They were used in opposing the bankrupt’s discharge, and were certainly material under the section of the bankrupt act which makes “ any fraud whatever contrary to the true intent of the act ” a ground for refusing a discharge.

We think the defense was complete, and there was no question for the jury.

¡Neither was the good or bad faith with which the defamatory words were written at all in issue. They being absolutely privileged, it was immaterial with what motive they were written. The testimony, therefore, which was objected to, was of no consequence, and did not prejudice the plaintiff.

The exceptions should be overruled, and judgment ordered for the defendants upon the verdict.


text:
    JOSEPH S. PRIEST, Plaintiff and Respondent, v. THE HUDSON RIVER RAILROAD COMPANY, Defendants and Appellants.

      [Decided December 3, 1870.]
    In an action against a railroad corporation for an assault and battery committed by its servant upon the plaintiff, while in discharge of his duties as such servant—held, that the action having been brought more than two years after the cause of action arose, was barred by the statute limiting such actions to two years.

      Held, further, that it did not become a different action by being against the master.
    Before Monell, McCunn, and Spencer, JJ.
    This ease was tried before Judge Jones and a jury. The action was brought for personal injury.
    The plaintiff was about entering one of the defendants’ cars at Troy, when the brakeman stationed there to see that passengers had procured tickets before entering the car demanded the plaintiff’s ticket. The plaintiff said he had had no time to procure one. Whereupon the brakeman seized the plaintiff, struck him, and thrust him from the ear.
    The occurrence was in December, 1866. The action was commenced in April, 1869.
    The defendants set up the statute of limitations as a bar.
    The principal allegation in the complaint was, “ that at the time of his entry upon the cars of the defendants, the defendants through their agent violently assaulted the plaintiff and struck him several blows, and seized him by the collar of his coat and jammed and pressed him forcibly against the sides and railing of the car, and threw him down, and trampled and stamped upon him after they had thrown him down, and other outrages, indignities, injuries, and enormities on the plaintiff then and there committed, so that the plaintiff was severely bruised, wounded, and injured thereby, and was made ill and lame and disabled from, attending to his business ever since, and was compelled to employ medical attendance and to expend a large sum of money, to wit, the sum of fifty-seven dollars, in curing himself of said injuries, and has ever since and for a long time will be lame and unable to attend to his business to his damage five thousand dollars.”
    A motion to dismiss the complaint, on the ground that more than two years had elapsed since the cause of action occurred, was made and denied.
    The jury gave the plaintiff a verdict, and the defendants appealed from the judgment and also from an order denying a motion for a new trial.

      Mr. Frank Loomis for appellants.
    The motion to dismiss the complaint should have been granted at the close of the case, on the ground that the action was barred by the statute of limitations. It is not disputed that the cause of action (if any) arose on the 24th of December, 1866, and that this action was not commenced until the 8th of April, 1869. By section 74 of title 2 of the Code, it is provided that civil actions can only be commenced within the periods prescribed by that title after the cause of action shall have accrued, but the objection that the action was not commenced in time can only be taken by answer.
    That objection was taken by the answer in this case.
    The time within which this action should have been commenced is prescribed by sec. 91 or by sec. 93.
    The relation of common carrier to a passenger did not exist between the parties, and if it had it could not have changed the nature of the cause-of action set out in the complaint and made out by plaintiff’s evidence, viz., assault and battery (Sanford v. Eighth Av. R. R. Co., 23 N. Y., 343).
    That relation did not exist, because the proof shows, without any conflict, that the defendants refused to receive the plaintiff as a passenger until he should procure a ticket, and that his entry into the car was effected in spite of the resistance of defendants’ agent seeking to enforce a proper regulation.

      In this case the entry of the plaintiff was lawfully opposed from the start, and the only question is, are the defendants liable for the unnecessary and undue violence of their agent, which the plaintiff’s evidence tended to establish.
    It is not pretended that such undue violence was expressly authorized in any way by the defendants before this occurrence, or approved by them afterwards, and “ the servant is not impliedly authorized by his master to do that which the master himself being present would not be authorized to do ” (Mali v. Lord, 39 N. Y., 381).
    In Hibbard v. N. Y. and Erie R. R. Co. (15 N. Y., 455), Brown, J., says: “ In removing a passenger from the cars who refuses to pay his fare or exhibit his ticket, the servants of the company are limited to the use of just so much force as may effect that object, and no more. * * * This is the extent of their authority, and if they exceed it, they, and not the company, are responsible for the consequences.”
    This case is cited with approval in Weed v. The Panama R. R. Co. (17 N. Y., 362), and in Mali v. Lord (supra), and the doctrine of the quotation is also approved in Sanford v. Eighth Av. R. R. Co. (supra), Comstock, J., declaring it to be “ good law i/n the abstract,” but not applicable to that case.
    In Hibbard v. N. Y. and Erie R. R. Co. (supra), Comstock, J., says: “ But if he (the conductor) mistook the authority conferred upon him * * * when he committed the trespass * * * it cannot alter the law or change the rights of the parties. Sis own mistake as to the extent of his powers cannot make the railroad company liable for acts not i/n fact authorizedP .

    The evidence of the plaintiff showed that the acts of the defendants’ agent, in excess of appropriate force, were wilful and malicious, and for the purposes of the motion the court was limited to a consideration of the plaintiff’s evidence.
    It is well settled that the master is not liable for the wilful and malicious acts of the servant (Weed v. Panama R. R. Co., 7 N. Y., 362; Mali v. Lord, 39 N. Y., p. 381).

      And it has been held that a corporation is not liable for such acts even when they were authorized and sanctioned by the president and general agent thereof (Richmond Turnpike Co. v. Vanderbilt, 1 Hill, 480, and 2 Comstock, 479).

      Mr. Abraham R. Lawrence for respondent.
    There was no error in the denial of the second motion of the defendant’s counsel for a dismissal of the complaint, on the ground that more tiran two years had elapsed since the cause of action accrued.
    The action was not barred by the statute of limitations. It did not come within the 93d section of the Code upon which the defendant’s counsel relied .as a bar. That section provides that an action for “ libel, slander, assault and battery, or false imprisonment,” shall be commenced within two years after the cause of action shall have accrued (see sections 93 and 74).
    This is not an action for assault and battery as such, but it is an action for a violation of the duty which the defendants owe to every passenger, to carry and convey him safely and without injury from the acts of their servants, employes, and agents.
    The case is embraced by the fifth subdivision of the 91st section of the Code, and could be properly commenced at any time within six years from the 24th day of December, 1866, the day the plaintiff was injured.
    In Meyer v. The Second Av. R. R. Co. (8 Bosworth, p. 305), this court held, in a case in many respects similar to this, that it is to be deemed “a part of the employment of a driver of a city railroad car to put a person off the platform of the car who may be there without right, or contrary to the regulations of the company / and also that it is by the company confided to such driver to determine whether the person is there without right, or contrary to such regulations; and a forcible and malicious ejectment of a passenger from the car by a driver, is an act in the course of his employment as a servant of the compamiy. Held, further, that, where the evidence is conflicting, the question whether the plaintiff was on the car as a passenger and was pushed off, or was there without right and dropped off, is one for the jury and not for the court to determine.”
    Judge Redfield, in the last edition of his Law of Railways (vol. 1, p. 508), says: “ It has long been settled that corporations are liable for torts committed by their agents in discharge of the business of their employment and within the proper range of such employment (see, also, Angell and Ames on Corporations, p. 302, sec. 10, 3d ed).
    How, in this case, Brown, the ticket puncher or agent, had been stationed by the defendants at the cars to prevent persons from entering the cars who had not paid for and received a ticket.
    Hot crediting the story of the plaintiff that he had arrived too late by the Vermont train to enable him to purchase a ticket, he proceeded to attempt the ejection of the plaintiff from the cars, and to inflict the injuries upon the plaintiff which form the subject of this action.
    Could anything be clearer than that it was the duty of the justice who presided at the trial to permit the case to go to the jury upon the points, whether Brown was acting in the course of his employment, and whether he had used unnecessary force or acted wantonly in discharging his duty ?
    If the nonsuit had been granted the court must have set it aside (Meyer v. Second Av. R. R. Co., Bosworth, p. 305).
    The justice properly left it to the jury to say whether Brown used undue force in attempting to enforce the regulation of the defendants in regard to tickets, and also to determine whether the defendants’ instructions to their agents were as the superintendent, Toucey, or the ticket puncher, Brown, had testified.
    The evidence was conflicting on these points, and the determination of the questions was strictly within the province of the jmy-
   By the Court:

Monell, J.

It was conceded on the argument that if this was an action for an assault and battery, it was barred by the statute. The ninety-third section of the Code requires that actions for “libel, slander, assault and battery, or false imprisonment ” shall be commenced within two years. But it is claimed that the case of the plaintiff falls within the fifth subdivision of section 91, of “ any other injury to the person or rights of another not arising on contract, and not hereinafter enumerated.”

The allegations in the complaint are those of an assault and battery committed upon the person of the plaintiff by the defendants’ brakeman. Had the action been against the brakeman it would have been for an assault and battery.

Has it become a different action by being against the employer or principal, under whose authority or direction the injury was done?

Since the abolition of “ forms ” of actions, which includes the denomination of actions, and reducing all to one form under the denomination of a “civil action” (Code, section 69), it has not been easy to interpret such parts of the Code as, very singularly, still preserve, to some extent, the denomination of actions. Assault and battery, libel, and slander are in the main but injuries to the person. Yet we find both in apparently inconsistent attitudes, as we do in the two sections already referred to.

To prevent the statute from attaching, it is necessary to determine that the action is for an injury to the person other than an assault and battery, and that can be done only by making a distinction between an action against the master and an action against the servant.

The old action of trespass was of three kinds: 1. Trespass for injury to the person, accompanied by force (vi et arms), such as assault, battery, or false imprisonment; 2. Trespass for injuries to personal property ; 3. Trespass for injuries to real property.

Trespass on the case, or commonly called “case,” lay for injury-to the person or the personal rights or property not accompanied by force or not immediately injurious.

Under the old form of action, I cannot doubt this would have been trespass, assault and battery, and not trespass on the case.

The liability of the defendants proceeds upon the principle of • agency. Their employó, in performing his assigned duties, committed the assault, and even if it was wilful and accompanied by more than necessary force, it was done in the course of his employment as the servant of the defendants (Meyer v. Second Av. R. R. Co., 8 Bosw., 305).

The distinction between trespass and case, though finely drawn, was strictly preserved until the adoption of our new code • of practice ; and it was not unusual to nonsuit a plaintiff who had mistaken his “ form ” of remedy.

Trespass was the oldest form of action.

Trespass on the case was given later, and in England first by the statute of 13 Edw. I., and was more comprehensive than trespass.

The same strictness with which these forms of action were separated in England may be illustrated by the case of Savignae v. Roome (6 Term R., 125), when the action was “ case ” against the master for wilful injury by the servant. The court arrested the judgment on the ground that the action ought to have been “ trespass.” Afterwards the plaintiff brought trespass, alleging negligence as the cause of the injury (see 2 Bl., 442), and was non-suited, on the ground that the action ought to have been “ case.” And the decisions are reconcilable. Under the forms, for a wilful act “ trespass ” lay, for a negligent act “case ” was the remedy.

In this country, however, and particularly in our State, this rigid strictness was greatly relaxed before the Code, and trespass and case were mostly concurrent remedies.

Assuming, then, as the plaintiff must assume, that the liability of the defendants arises from the act having been done by their servant in the course of his employment, and not negligently or unskilfully (for if it was wilfully done outside of his employment the master would not be liable—Wright v. Wilcox, 19 Wend., 343), then it follows that it was a joint trespass for which a joint or several actions against either could be sustained.

But the action would be for the same cause, for what a master does by his servant he does by himself.

I am of opinion, therefore, that the action in this case was for assault and battery, and for such cause was maintainable against the defendants, all being principals in the trespass.

There may be some difficulty in reconciling the difference in the limitation of actions for personal injuries other than assault, etc., but the legislature could never have intended to include in actions for personal injuries all the actions enumerated in the ninety-third section. But they did intend, I think, to continue, in effect, the distinction which arises from the well-understood meaning of words, and hence to confine to two years’ limitation, whenever it can be seen from the statement of the cause of action that it is for an assault and battery, etc.

I am of opinion, therefore, that the defense ought to have prevailed.

The judgment and order should be reversed, and judgment absolute granted to the defendants, with costs.


author: Freedman, J. Monell, J.

text:
    ISABELLA HENDERSON, Plaintiff and Appellant, v. EUGENE JACKSON, Defendant and Respondent.

      [Decided December 3, 1870.]
    Upon appeal every presumption is in favor of the correctness of the order appealed from.
    The decision of a motion by the Special Term, upon conflicting evidence, will not be disturbed by the Appellate Court upon a disputed question of fact involved therein.
    Before Monell and Freedman, JJ.
    Appeal from an order made at Special Term, setting aside a precept issued by plaintiff to collect the costs awarded by an order of this court made at General Term.
    A demurrer by the defendant to the complaint was overruled at Special Term, and judgment ordered for plaintiff, with leave to defendant to answer over.
    From this order the defendant appealed, under section 349 of the Code, to the General Term, and the order was affirmed with costs of the appeal.
    An adjustment of costs was had, and a precept issued to collect the same.
    On defendant’s motion the precept was set aside at Special Term, and from the latter order plaintiff appealed.

      Mr. Henry Brewster for appellant.

      Mr. Roger A. Pryor for respondent.
   By the Court:

Freedman, J.

I am inclined to think that plaintiff had a right to issue a precept for the costs of the appeal only. The rule laid down in Mora v. Sun Mutual Insurance Company (13 Abb., 304; 22 How., 60), and Palmer v. Smedley (13 Abb., 185), in relation to costs of demurrer, does not apply to the costs on appeal from an order overruling a demurrer. It appears, however, that on the motion to set aside the precept there was a conflict of evidence as to the contents and terms of the precept. The affidavit of defendant’s attorney states distinctly that the costs, both at Special and General Term, were taxed and adjusted, and that the precept was issued for the costs so adjusted. This statement was denied,by plaintiff’s attorney, but neither the precept, nor a copy, was submitted.- • Upon an appeal every presumption is ■ in favor of the correctness of the order appealed from, and as the judge below may have believed the assertions of defendant’s attorney in preference to those made by the attorney for the plaintiff, his decision of the motion upon the disputed question of fact involved therein cannot be held erroneous.

The order should be affirmed, with ten dollars costs.

Monell, J.

(concurring). As another illustration of the necessity of having the precept before us that we may see what it was, it is stated in the affidavit of the defendant’s attorney that it was a “ precept or process against the defendant.” That is not denied, and for aught we know, it may have been an execution against thb person of the defendant.

The plaintiff must not complain of the result of this appeal, as he could easily have had all the necessary facts and papers before the court.

I concur in affirming the order.


author: Freedman, J.

text:
    JOHN THOMAS, Plaintiff and Appellant, v. CORNELIUS B. PAYNE, Defendant and Respondent.

      [Decided December 3, 1870.]
    Upon appeal from a judgment entered upon the report of a referee, the court will not disturb the finding of fact by the referee where there is sufficient evidence to sustain such finding.
    Before Barbour, C.J., Monell and Freedman, JJ.
    Appeal from a judgment entered upon the report of a referee, dismissing plaintiff’s complaint.
    The action was brought for the recovery of $4,500 damages alleged to have been sustained by the plaintiff in consequence of a false representation made to him by defendant in the sale or exchange of some stock.
    The representation complained of was contained in a printed pamphlet or circular published by the authority and with the consent of the defendant, but which the referee found was not printed and published for the purpose of deceiving and defrauding the public or the plaintiff.

      Mr. A. J. Requier for appellant.

      Mr. James Taylor for respondent.
   By the Court:

Freedman, J.

This action was not brought to rescind the contract and recover back the stock given in exchange, but it is an action to recover damages for a false and fraudulent representation. We have carefully examined the evidence, and deem it sufficient to support the finding of the referee that the pamphlet or circular, which contained the said alleged representation, was not printed and published for the purpose of deceiving and defrauding the public or the plaintiff. The determination of this point, upon the question of fact involved therein, in favor of the defendant, is fatal to plaintiff’s claim in any aspect of the case.

We have also examined the exceptions taken by the plaintiff at the trial, and are of the opinion that they are untenable.

The judgment should be affirmed, with costs.


author: Spencer, J.

text:
    DIONUS NEFF, Plaintiff and Respondent, v. MAX FRIEDMAN and Others, Defendants and Appellants.

      [Decided December 3, 1870.]
    Parol testimony to explain the meaning of “unavoidable accident ” excluded. The • words “unavoidable accident” are synonymous with “inevitable accident.”
    Before Monell and Spencer, JJ.
    This was an appeal from a judgment and from an order denying a motion for a new trial.
    The judgment was entered upon a verdict of a jury rendered in favor of the plaintiff for an amount alleged to be due to him from defendants, for his services as a foreman of a factory for the manufacture of cork hats, under a written contract dated at Philadelphia, August, 1866, by the terms of which plaintiff was to receive $30 per week from the defendants. The last clause of the said contract reads as follows:
    “ This agreement to stand and hold good for the term of one year from this date, unless it be rendered void by unavoidable accident, breach of faith in either party, or by mutual consent.”
    The defense consisted of a denial of the facts set forth in the complaint, except the alleged partnership of the defendants and the execution of the contract.
    On the trial the plaintiff and defendant were the only witnesses examined. Their testimony, bearing upon the points at issue, was as follows:
    The plaintiff testified that he resided at Ro. 154 East Fourth street, in the city of Rew York; that he was a cap-maker; that he went into the service of the defendants under said contract at Philadelphia, and continued to work for them there about eight months, ceasing work on the 20th day of April, 1867.
    “ On the 21st day of April Hr. Friedman sent me word that I should stop work; I did not see him, for he had left Philadelphia; my family was in Hew York; next Saturday Mr. Friedman returned to Philadelphia, and I remained in Philadelphia; I asked him why I should quit work; he said that at present they had goods enough, and wanted to stop for a few weeks; I then asked him how it was, as he had given me a contract for a year; he replied, that the contract did not amount to anything, as he had told me that he would give me work as long as he had work, and no longer; I had told him before that I could not go on such conditions unless he would give me a contract for a year, which he did; then Mr. Friedman said he wanted to stop for a week or two; I said I would agree to that, if he would pay me one-half my wages, but I was not willing to stop any longer; Mr. Friedman then told me to meet him at the Metropolitan Hotel, in Hew York, and that he would pay me for two weeks there; on the strength of this I came to Hew York, and I met him at the Metropolitan Hotel on the 27th April, and he paid me $20; about three or four days after this he gave me $10 more; he then asked me if I had anything to do; I said Ho; he said, Wait about a fortnight longer; about a fortnight afterwards he paid me $15 more: he then went into his office, wrote a receipt and asked me to sign it; I asked him why; he told me to read it; I told him I could not read English; I wanted him to tell me the meaning of the receipt; he told me the receipt was to show he had paid me $15 for the week; I asked him why he did not require a receipt before and why he required it this time; he told me the receipt was to show his partners that he paid me $15 for the week; I then signed it, and he gave me the $15; I did not read the receipt.
    “ I saw him after this, but never got any more money; he told me they would commence work again by and by, and he would give me a chance.
    “ Subsequently, I told him I should have to try a different course; I told him he would have to give me work and pay me, or I would have to do something different. The season was over and I could not get another place.”

      The testimony of the plaintiff in regard to what transpired prior to the meeting at the Metropolitan Hotel was not contradicted nor varied by the testimony of the defendant, Max Friedman, which was substantially as follows:
    “After Mr. Heff had left Philadelphia, he called on me by appointment at the Metropolitan Hotel. He said he had nothing to do, and would like me to give him some money; I gave him $20. A few days afterward he came again. I said, I do not like to have you running after me. I do not owe you anything; you know the contract was such, that in case we could not get any cork, and consequently could not work, that the contract was ended.’ He said he needed some money; I said I would give him $15 if he would give me a receipt in full for all claims; he agreed to give it. I wrote and translated it to him. I told him that it was a receipt in full of all demands and all claims; that as we could not get any cork we could not work. He then signed it, and I paid him the money.
    “ I have never conversed with him since. He has never tendered to me his services. At that time he only said he wanted some money. He did not tender his services.”
    On the cross-examination, the witness testified: “ When I last paid Mr. Heff, he did not ask when he could work again, nor express his willingness to go to work at any time I wanted him. He did not say that he insisted upon his contract for the balance of the year. I never saw him after that receipt was given, to my knowledge, except once, when I met him in the street a few weeks ago. I read him the receipt in English and German.” Defendant also testified that the receipt was lost. That it was a receipt in full of all claims and demands.
    Other portions of the testimony and exceptions thereto appear in the opinion.

      Mr. Wm Henry Arnoux for appellants.

      Mr. Charles Goepp for respondent.
   By the Court:

Spencer, J.

The main questions in this case were questions of fact—namely: the employment of plaintiff under the contract, and his discharge by the defendants, and their subsequent neglect or refusal to continue the employment of defendant—and were properly submitted to the jury by the court below.

The jury had a right to accept the testimony of plaintiff as-to what transpired after he went to New York, and to reject that of defendant, and assuming that they did so, there was sufficient evidence to sustain their verdict; but the fact testified to by plaintiff that he was actually discharged from the service of the defendants, by the order of defendant, Max Friedman, is not contested nor denied. The fact that plaintiff afterwards, at the request or by the order of defendant went to New York, and there met him for further orders, and for payment of the week’s wages due on the 21st of April, does not change the effect of •this discharge at the latter date.

Under these facts and circumstances, I am of the opinion that no formal tender of service was necessary; but if I am wrong in ■this conclusion, it appears to me that it sufficiently appears from .the evidence that the plaintiff met defendant Max Friedman afterwards as directed, and held himself subject to his order ,* in ■other words, was ready and willing to resume work under the contract,” and I think the jury had a right to base a verdict upon •those facts, and it should be sustained.

H the foregoing views are correct, it follows that the ruling of the court, in refusing to nonsuit or to dismiss the complaint, was correct, and thus I hold. I also think the court below was right in the exclusion of the testimony offered by defendant, to explain the meaning of words unavoidable accident,” as used in the contract.

This was not .a qualification or limitation in the contract that required any notice in the complaint, nor one in reference to which plaintiff was bound to furnish any testimony. The cases •cited by appellants’ counsel are not in my opinion applicable to a clause of this kind in a contract. The forms of bills of lading and common carrier contracts that recite the exceptions of “the dangers of the seas,” “the act of God, and the public enemies,” etc., are of a kindred character to the exceptions in this contract. Although it might be a proper matter of defense for defendants to plead and prove that this contract was rendered void by “ unavoidable accident,” “ breach of faith” or by “ mutual consent,” yet I think it was not incumbent upon plaintiff to charge or prove the negative proposition, that none of the facts or acts embraced in these several exceptions had occurred. The words “ unavoidable accident ” are synonymous with “ inevitable accident.” The latter words, and their meaning and effect, have been considered and interpreted many times by our courts. They have been considered as intelligible to the courts, and as plain and unambiguous, and having a clear and accepted meaning.

Ho evidence as to the meaning of the words “ unavoidable accident ” could have been properly received by the court or submitted to the jury. The defendants proposed to show that a prospective "lack of material of manufacture was embraced in these words, a meaning so contrary and inconsistent with the ordinary and accepted interpretation of the same, that any person of ordinary understanding of the English language would readily perceive that the effect and terms of a contract in writing might be destroyed by the introduction of such testimony, and I hold it was properly rejected by the learned judge before whom the case was tried.

The only other exception in the case that I think demands consideration, is that to the ruling of the court in excluding the answer to two questions asked of the plaintiff:

First.—Had you nothing to do after you came to Hew York prior to the 17th day of August, 1867 ?
Second.—Prior to the 17th day of August did you endeavor to obtain a situation %

Immediately prior to these questions being asked, the witness had stated upon defendants’ inquiry (in substance) that since he came to New York he had been looking for work and could get none, and immediately after these questions were excluded • by the court, the following questions and answers occurred :

Q. Between the 22d of June, 1867, and the 17th August, 1867, did you endeavor to obtain a situation ?
A. I did.
Q. Where %
A. I called at Haldeberg’s, Broadway, Wolf’s and several other places, but the season being over, I could not get work; also applied to Silverman, Broadway. I worked in my own house between the 22d of June, 1867, and the 17th of August, a little,but don’t think I earned $5 during the whole time. ■

I hold that these last questions and answers brought out and fully established, as evidence in the case, the facts sought by the excluded questions; or in other words, the evidence sought by the defendant in the questions, excluded, was introduced and obtained by and allowed to him under another form of question; and if there was error in the exclusion of the evidence under the first questions, it was corrected and obviated by its reception under the subsequent questions, and I can see no cause for a ■ reversal on account of these exceptions. The requests made by defendant to the court to charge, and which were refused, and exceptions taken, were based upon the condition or hypothesis that plaintiff had left the factory and service of defendants at Philadelphia voluntarily, and without the consent or assent of defendants. The only testimony upon that point is that of plaintiff heretofore reviewed, which shows or tends to show that plaintiff was discharged by defendants, and that he left in consequence thereof, and went to New York by request of defendants.

■ I think the evidence did not authorize the court to charge as requested, and it would have been error to have done so, or at least the court was not bound to charge as requested upon the evidence before it.

The exceptions should be overruled, and the judgment of the court below sustained.


author: Monell, J. Jones, J.,

text:
    RUFUS W. LEAVITT and Others, Plaintiffs and Appellants, v. CHARLES H. DABNEY and Others, Defendants and Respondents.

      [Decided December 31, 1870.]
    The court has no power to award damages to a defendant in an injunction suit
    In such an action, the only security a defendant has is the undertaking required by the 223d section of the Code.
    Upon final judgment dissolving an injunction, the sureties become liable to the defendant for the damages he has sustained by reason of the injunction.
    Such damages may be ascertained by a reference, or otherwise, as the court may direct, and when ascertained are conclusive upon the sureties; and an action at law upon the undertaking may be maintained for their recovery.
    But in the injunction suit, the court cannot, by its judgment or otherwise, direct the payment of such damages ; and if the undertaking is signed by sureties only, and not by the plaintiff, the latter cannot be made liable.
    Whether, if the plaintiff has signed the undertaking, a defendant may not claim damages in his answer, and have them in such case a part of the judgment, is left an open question. Per Jones, J.
    Before Monell, McCunn, and Jones, JJ.
    Appeal from an order.
    In this case a preliminary injunction order had been obtained from a justice of this court, restraining the defendants from parting with certain moneys which had been put in their hands to pay the interest about to fall due upon certain Peruvian and Chilian bonds.
    Upon obtaining the injunction the plaintiffs gave an undertaking, with two sureties, but not executed by themselves, that the plaintiffs would pay to the defendants such damages, not exceeding one thousand dollars, as they might sustain by reason of the injunction.
    Subsequently, a motion was made at the Special Term, by the defendants, to dissolve the injunction, which upon consideration was granted (see 7 Robt., 350).

      Afterwards a final judgment was entered in favor of the defendants against the plaintiffs, dissolving the injunction.
    Thereupon, a motion was made for an order requiring the plaintiffs to pay the damages which the defendants had sustained by reason of the injunction, and it was referred to a referee to ascertain and report to the court the amount of such damages.
    Upon the coming in of the referee’s report, a motion was made for its confirmation, and for a further order requiring the plaintiffs to pay to the defendants the amount of damages, as reported by the referee, which motions were denied on the ground of want of jurisdiction.
    The defendants appealed.

      Mr. Charles Tracy for appellants.

      Mr. L. Bradford Prince for respondents.
   By the Court:

Monell, J.

The printed case with which we have been furnished upon this appeal does not contain a copy of the judgment, and we are, therefore, unable to ascertain precisely what it contains. It appears from one of the moving affidavits that judgment final for the defendants had been entered, but nothing further is stated of its contents; and we cannot, therefore, say whether it contains any provisions which will aid the defendants in reversing the order in this case. On the contrary, every presumption is in favor of the correctness of the order, and we are, therefore, bound to assume that the judgment dissolving the injunction did not contain any provision or direction for ascertaining or for paying these damages.

This leaves the question of jurisdiction to depend upon the power of the court to enforce, by order, the payment of injunction damages, after final judgment in the action, where such judgment contains no provision directing their payment.

Such a provision in the judgment, if erroneous and not within the power of the court to make, could only be corrected on appeal, and until corrected could probably be enforced.

This was not a proceeding to reach in any shape the liability of the sureties upon the undertaking given by the plaintiffs. In their case the liability does not attach until final judgment, that being expressly provided for in the instrument they have executed, and nothing need be contained in the judgment, either to declare their liability or to provide for its enforcement. It is enough that by the final judgment it is adjudged that the plaintiffs were not entitled to the inj unction. Thereupon the court may proceed to ascertain the damages, by reference or otherwise, and the report of the referee will be conclusive upon the sureties, of the amount for which they are liable (Methodist Church of N. Y. v. Barker, 18 N. Y. R., 463). Such liability, however, cannot be enforced by order, the only remedy being by action against the sureties upon the undertaking, in which action the amount ascertained by the referee will be conclusive upon the sureties (id.).

In the case just cited it is distinctly held that, as regards any proceeding to reach the liability of sureties, a final judgment is no bar to a reference to ascertain the damages; for the reason, as heretofore stated, that such liability does not attach until final judgment.

The liability of sureties is wholly upon a written instrument and must be ascertained from a construction of the instrument itself. If they undertake to pay the damages, it is only after a final judgment against their principal, and there is therefore no analogy whatever between this secondary liability of the surety and any primary liability there may be of the principal. In the one case such liability rests upon the written engagement of the surety; in the other upon the power of a court of equity to award damages against a party whose injunction has caused such damage.

There is nothing, therefore, either in the nature of the sureties’ liability, or in the mode in which it may be enforced, which can aid us in determining the questions in this case, which depend for their solution upon what shall be ascertained to be the power of the court, and not upon the agreement or undertaking of the party.

It therefore becomes necessary to inquire whether a court of equity may award damages against a party who has improvidently engaged its restraining power over an adversary, after the court has removed such restraint, and determined that the party was not entitled to it. It may be that the court has such power, but a careful examination of the subject will lead us, I think, to a different conclusion. An injunction order is not a writ of right. The granting of it is entirely in the discretion of the court, and it can be properly granted only when the cause of the plaintiff’s action, or the facts upon which his application is founded, are such as to entitle him to the relief sought. The sufficiency of such cause of action or facts is to be judicially determined, and, although the determination may be afterwards reversed, it does not, and I think should not, follow that the finally unsuccessful party should suffer for the error of the court.

The 31st rule of the late Court of Chancery, to which I shall presently more fully refer, and the provision in the Code requiring security, apply only to injunctions issued upon ex pa/rte applica- ■ tions, and such applications can be made only before the defendant has answered (Code, sec. 221). Where the court, upon a hearing of both parties, grants an injunction, either perpetual or pendente lite, no undertaking or security on the part of the plaintiff is required. Yet the court may finally adjudge that the plaintiff was not entitled to the injunction.

And such a case may fairly test the question. A case of no preliminary or expa/rte inj unction, but an injunction granted at the hearing without an undertaking, which is afterwards vacated and get aside by the court.

Can the court, in such a case, in its judgment dissolving the injunction, award damages to the defendant against the plaintiff?

The power of a court of equity to award, damages is very limited, and is exercised only in exceptional cases. The general rule is that such courts will not entertain actions for compensation or damages, except as incidental to other relief, and where the subject is of such a nature that an adequate remedy at law is not provided.

And sometimes where having obtained jurisdiction for one purpose that court will, as an incident to such purpose, give indemnity by the way of damages to prevent circuity of action.

But when the remedy at law is ample, no power is vested in eqnity to make recompense in damages.

The rule in chancery, to which I have referred, was framed by Chancellor Walworth in 1830, and by him made, for the first time, a rule of that court. He was undoubtedly led to the adoption of the rule by his conviction of the want of power in the court to give an injured defendant any indemnity; and as vice-chancellors and masters in chancery, whose offices were created under the constitution of 1821, were empowered to grant ex jpa/rte injunctions, it may have been thought that the discretion of those officers might sometimes be unsoundly exercised.

After the incorporation of this rule into the system of equity practice its observance was strictly enforced by the chancellor, which illustrates its importance in his eyes.

Hence, in Loveland v. Burnham (1 Barb. Ch., 65), where' a master had approved of a bond in the minimum fixed by the rule, the chancellor dissolved the injunction on the ground of the insufficiency of the security. The chancellor said, The officer allowing the injunction should always require a bond for a » larger sum than §500, where, from the nature of the case, there is reason to suppose the damages occasioned by the injunction, if it should continue until the termination of the suit, will exceed the minimum fixed by the rule.”

And the codifiers and the legislature, in adopting so valuable a precedent into the Code, were doubtless impressed with its importance, especially in view of the greater facility in obtaining injunctions under the judiciary system of 1846.

The views expressed by the chancellor in the case of the Cayuga Bridge Co. v. Magee (2 Paige, 116), were pointed and to the purpose, illustrating the propriety of the rule, under what he believed to be the total want of power in the court to make recompense for damages sustained by reason of an injunction.

In that case, the injunction had suspended the proceedings of the defendants in the erection of a bridge across the Seneca river, and they had sustained serious loss in consequence of the restraint. The case came before the chancellor upon bill and answer, and in dissolving the injunction.and dismissing the compaint,he said:

“I regret that in this case it is not in the power of the court to remunerate the defendants for the loss they have sustained. The injunction has compelled them for a time to suspend.their operations to the great damage of their work, which was partially completed. * * * The new rules of the court (rule 31) have provided for cases of this kind hereafter, by requiring a bond from the complainant to pay the damage sustained by the defendant in consequence of an injunction if the justice of the case turns out to be in favor of the latter.”

And in another case (Loveland v. Burnham, ubi supra) this want of power is clearly to be implied from the object, as there stated by the chancellor, for adopting the 31st rule. He says (p. 67): “ The obj ect of this rule was to afford to the party enj oined full and ample security for all damages he might sustain by reason of the allowance of an injunction against him without giving him an opportunity of being heard in opposition to such allowance. And whenever the injunction is issued without the requisite security to indemnify the defendant against such contingent damage, it will be the duty of the court to set aside the injunction, with costs.”

The chancellor had previously enjoined the exercise of a sound discretion in granting preliminary injunctions (N. Y. Printing and Dyeing Est. v. Fitch, 1 Paige, 97), and frequently afterwards recognized the importance of the rule which he had adopted (see cases hereafter cited). And this court at an early day established the requirements of the practice in regard to the security on injunctions, by providing (Sheldon v. Allerton, 1 Sandf., 700), that the plaintiff’s own vmdertahing would not be received unless he would justify as being a freeholder or householder, and worth double the sum specified, etc.

And a general rule, court rule 6, requires sureties who are to be approved by a judge to justify in all cases.

The rule in chancery, as well as the Code, allows the bond or undertaking of the plaintiff only to be received and without surety. But, if the court can award damages in the action, then the obligation of the plaintiff without surety does not add to the indemnity of the defendant, and the rule or the provision of law which allows of the individual bond or undertaking of the plaintiff must have been conceived in the belief that the court possessed no other means of protecting the defendant.

This is farther illustrated in Sullivan v. Judah (4 Paige, 444), where the chancellor again assigns, or perhaps, more properly speaking, implies, as a reason for adopting his rule, that it was one of those cases in which the master should have required security from the complainant before he allowed the injunction, at leant in the complainant's own bond.

Why in the complainant’s own bond, if the court could award damages against him in the action ?

In a later case the chancellor again says (Carroll v. Sand, 10 Paige, 298), the object, of allowing injunction masters to dispense with sureties in certain cases, was to enable the complainant to give his own bond, when his personal responsibility, in the opinion of the master, would afford ample protection to the defendant.

Although these cases do not, perhaps, hold in express terms that a court of equity has no power to award damages, yet the total want of any such power is plainly to be inferred, as well from the expressed regret of the chancellor that it was not in the power of the court to remunerate the defendant ” as from the necessity which led to the adoption of the 31st rule and the similar provision in the Code.

The bond required by the rule in chancery and the undertaking required by the Code of Procedure afford, therefore, the only protection to a defendant against the consequences of an injunction. Such undertaking may be signed by the plaintiff only, or may be on behalf of the plaintiff and signed by sureties only, or it may be signed by the plaintiff and sureties (Leffingwell v. Chave, 19 How. Pr. R., 54). In either case, the undertaking is the only security and protection to the defendant for his damages by reason of the injunction.

In a case, therefore, where the undertaking has not been signed by the party, but by other persons, the court has no power, either by its judgment or otherwise, to award damages against the party; nor can such damages be awarded against the sureties in such action or judgment. The undertaking is the onbg security, and when a final judgment is rendered, an action at law may be maintained upon it; and that is the only remedy, whether it is the undertaking of the plaintiff alone, or with sureties, or with sureties alone (Methodist Church v. Barker, supra).

I do not, therefore, agree with the learned chief-justice that ' upon the dissolution of an injunction during the progress of a cause, before final judgment, it is competent for the court to ascertain the defendant’s damages, and require their payment by order or otherwise. And I have also endeavored to show that he is also in error in supposing that such damages can be awarded in and by the final judgment. The power to do so does not exist, and the defendant can look only to the undertaking for his indemnity, which after judgment in the injunction suit he can enforce in an action at law.

We were referred by the appellant’s counsel to some cases which he claimed sustain the power of the court.

Askins v. Hearns (3 Abb., 184) was an undertaking upon an order of arrest, and the question was whether the undertaking should have been executed by the plaintiff. It was held it need not be. But the court, in its opinion, say the sureties are an additional protection, and that the plaintiff is also liable,.although not a party to the, undertaking. And in Patterson v. Bloomer (37 How. Pr. r., 450, and 38 id., 280; 7 Abb., N. S., 376) there is a dictum to the effect that the court may make an order ■ against a plaintiff who has not signed the undertaking, directing him to pay the damages.

It may be enough, perhaps, to say that the undertaking in the first case was given in an action at la/w, where the power to give damages is different from the power possessed by courts of equity, and it may be that, in an action for a tort, a court of law may award damages against a plaintiff, when a court of equity would possess no such power. But I do not think it can.

The latter case, however (Patterson v. Bloomer), was an undertaking in an injunction suit, not signed by the plaintiff. The plaintiff had obtained leave to discontinue, without prejudice to the defendant’s rights on the undertaking. The defendant thereupon moved for a final adjudication and a reference to ascertain his damages. Upon the referee’s report coming in, it was finally adjudged that the plaintiff was not entitled to the injunction, and an order was made “directing the plaintiff and his sureties to pay the amount found by the referee.” Upon this order a judgment was entered, execution returned unsatisfied, and a supplemental order for the plaintiff’s examination was obtained.

The motion was to set aside the judgment and order, which was granted; and upon that motion the remark was made, that the court could make the order directing the payment of damages, which order could be enforced by attachment.

But I do not think the question was carefully considered in either of the cases cited. It was not involved in them, and no reference is made to any adjudications supporting their views. And I think.I have shown that they cannot, upon a careful examination of the subject, be supported. And certainly the case of The Methodist Church v. Barker (ubi supra) is a direct authority that, as respects the sureties, the only remedy is by action upon the undertaking.

Even the power to ascertain the damages is not inherent in the court, but is derived from the Code, which provides for the mode of their ascertainment. This conferred power was recognized, under the rule in chancery, in Garcie v. Sheldon (3 Barb., 232), where the court say that, without the clause required to be inserted in the bond, consenting that the damages shall be summarily ascertained upon a reference, the court would have no jurisdiction to direct such a proceeding.

The other cases to which we were referred do not bear upon the questions I have been discussing.

From the views which I have expressed, it follows, if they are correct, that the ground upon which the decision below was placed, namely, that provision for these damages should have been made in the judgment, cannot be sustained.

But as I think a different reason exists for sustaining the order appealed from, it must be affirmed.

The conclusions are: 1st. The court has no power by its judgment in the action to award damages against the plaintiffs. 2d. The only indemnity to a defendant in an injunction suit is the undertaking required by the Code. 3d. The liability upon the undertaking arises only after final judgment dissolving the injunction. 4th. That after such final judgment the defendant’^ damages may be ascertained by a reference. 5th. That the amount ascertained by the referee is conclusive upon the persons signing the undertaking. 6th. That only an action at law can be maintained upon the undertaldng, in which action the amount ascertained by the referee will be the measure of recovery.

Order affirmed, with costs.

Jones, J.,

in concurring, desired to leave it an open question whether, where the plaintiff has signed the undertaking, the defendant might not set up by answer that he had sustained damages by reason of the injunction, and have such damage awarded to him by the judgment.