Harrris agt. Bennett. SUPREME COURT. HARRIS agt. BENNETT. Where a plaintiff, after suit brought, transfers his interest, the assignee should not be allowed to be substituted as plaintiff where the object principally is to make the original plaintiff a witness. Under § 121 the court possess a discretionary power in such cases. New York Special Term, Nov. 1851. Motion by assignee to be substituted as plaintiff, and for leave to continue suit in his name. After this action was commenced the plaintiff assigned his interest in the claim to his brother, who assigned it to Mr. Clarke, brother of the plaintiff's attorney. Subsequently a report of referees, after a long contest, was made in favor of the plaintiff, but was set aside on account of the admission of improper evidence. for Motion. MITCHELL, Justice.-The assignee now moves to be made plaintiff in the suit, and that the suit may be continued in his name. It sufficiently appears that the plaintiff is insolvent, and that the assignee is better security for costs than the plaintiff. But the defendant alleges, and the plaintiff's attorney substantially admits that the object of the motion is to make the plaintiff a witness, and so sustain a case which it was difficult for the plaintiff to make out before. Such an object ought not to be favored; if it were, every plaintiff when he found his case could not be otherwise sustained, thus make himself a witness. The Code, § 121, directs that in case of a transfer of interest (otherwise than by marriage, death or disability of the party), the action shall be continued in the name of the original party. This is imperative and allows no change; but it adds the court may allow the person to whom the transfer is made, to be substituted. This last is permissive only, and gives a discretion to the court which is intended to be exercised only as the ends of justice may require. Howell agt. Fraser and others. It would not be just to allow it absolutely in this case; the plaintiff would make out his whole case, and the defendant might know nothing about it. The motion can be granted only on condition that it be stipulated that the present plaintiff shall not be examined as a witness. On that stipulation it may be granted. The costs are to abide the event. SUPREME COURT. HOWELL agt. FRASER AND OTHERS. An allegation that the party "believes" a fact to exist, is equal to an allegation that the fact exists, “as he believes"; and where the law allows a statement on belief, either form of expression is equally an allegation of such fact. If a pleading is correct in substance, but not in form, the remedy is by motion, not by demurrer. New York Special Term, Nov. 1851. Motion for judgment on account of the frivolousness of the demurrer. The complaint is on a promissory note against maker and indorsers, and alleges the presentment to the maker and notice to the indorsers, in this way: "he believes that when the said note became due and payable it was duly presented for payment, and payment thereof was duly demanded, but the same was not paid; and that due notice thereof was given to the defendants, the indorsers." - for Motion. MITCHELL, Justice.-The defendants demur, and say that there is no allegation of presentment or notice; the reason assigned for this cause of demurrer is because the complaint states that the plaintiff believes that the note was presented, &c.; and it does not aver that the note was presented as the plaintiff believes, or is informed and believes; and it is said that this is an attempt to put in issue the plaintiff's belief, and not the fact that the note was presented. Howell agt. Fraser and others This is an objection merely to the form of expression which the plaintiff uses in his averment; it is to the phraseology of the plaintiff, and to no matter of substance. A statement that a fact exists as the party believes, is no more an averment of its existence than a statement that he believes it to exist; in each case it is a statement only of his belief, or on his belief; and where the law allows a statement on belief, either form of expression is equally an allegation of such fact. It might as well be said that if the complaint were that the plaintiff positively avers or says, on his own knowledge, that the presentment was duly made, that this tendered an issue on the plaintiff's saying so, or on his averring so, and not on the fact of the presentment, as that the form used tendered an averment on the belief. If a pleading is correct in substance, but not in form, the remedy is not by demurrer but by motion to make it more certain or definite, or by some other way than demurrer. The Code never was intended that judgment should be given against a party who has merits, for a matter of mere form. It directs the court, in every stage of the action, to disregard any error or defect in the pleadings which shall not affect the substantial rights of the adverse party (§ 176). It would be hard to show how the substantial rights of the defendants are injured by the mode of pleading adopted, any more than by the one which he suggests. The motion for judgment on account of the frivolousness of the demurrer is allowed, with ten dollars costs. New York and Erie Rail Road Co., Respondents agt. Coburn, Appellant. SUPREME COURT. THE NEW YORK AND ERIE RAIL ROAD COMPANY, Repondents, agt. COBURN, Appellant. on ap Where commissioners of appraisal, under the 16th section of the general Rail Road act passed April 2, 1850, make a report of their proceedings; peal to the court under the 18th section, no affidavits can be read on the review of such an appeal; the court must act solely upon the report of the commissioners. (This agrees with the decision upon this point in N. Y. and Erie R. R. Co. agt. Corey & Smith, 5 How. Pr. R. 181.) The appeal given by the 18th section declares that "on the hearing of such appeal, the court may direct a new appraisal before the same or new commissioners, &c." This does not entitle a party as a matter of right to a second hearing and appraisal. The word "may" should not be construed, in this act as imperative, that is, equal to "shall" or must." แ Erie Special Term, August 1851. At the last February special term, upon the petition of the respondents, commissioners were appointed to ascertain and appraise the compensation to be made to the appellant, for real estate proposed to be taken by the said company for their road. The commissioners made their report, and at the May term it was confirmed. Within twenty days thereafter Coburn gave notice that he appealed from the appraisal and report, and stipulated not to disturb the possession of the respondents. The appeal came on to be heard at the August special term upon notice, and the appellant also served copies of affidavits with notice that they would be read upon the hearing. No objection was taken to the form or sufficiency of the report of the commissioners. The appellant insisted, as a matter of right, that the court was bound to direct a new appraisal. He also offered to read affidavits to show that the compensation awarded was too low. The counsel for the respondents objected to the reading of affidavits. The court heard affidavits upon both sides, reserving the question of their admissibility. E. MULLETT, for Appellant. TH. P. GROSVENOR, for Respondents. MARVIN, Justice. This appeal is given by the 18th section of the general rail road act, passed April 2, 1850 The act declares that " on the hearing of such appeal, the court New York and Erie Rail Road Co., Respondents, agt. Coburn, Appellant. may direct a new appraisal before the same or new commissioners in its discretion." The affidavits can not be read upon the appeal. The appeal is from the "appraisal and report of the commissioners." It brings up their appraisal and the proceedings before them as contained in their report; and the proceedings are to be reviewed upon the report. It seems from the remarks of Justice WELLES in N. Y. and E. R. R. Co. agt. Cory & Smith (5 How. Pr. R. 181), that this has been so held at a general term in the 7th district. No authority is given to the court to receive affidavits or further evidence. The appellant insists that he is entitled as a matter of right, to a new appraisal. The language of the statute is "the court may direct a new appraisal." This is not imperative. The word may, when used in a statute, is sometimes construed as meaning shall or must. Chancellor Kent, after examining the English cases, says, “in respect to statutes the rule of construction seems to be, that the word may means must or shall, only in cases where the public interest and rights are concerned, and where the public or third persons have a claim de jure, that the power should be exercised" (Newburgh Turnpike Co. vs. Miller, 5 J. Ch. R. 113: see also Malcom vs. Rogers, 5 Cow. R. 188; Mayor of N. Y. vs. Furze, 3 Hill, 612; Minor vs. Mechanics' Bank of Alexandria, 1 Pet. 64). In the last case the rule stated makes it proper to construe may, when used in a statute, as meaning must " in all cases where the legislature mean to impose a positive and absolute duty, and not merely to give a discretionary power." It is added, "but no general rule can be laid down upon this subject, further than that exposition ought to be adopted in this as in other cases, which carries into effect the true intent and object of the enactment. The ordinary meaning of the language must be presumed to be intended, unless it would manifestly defeat the object of the provisions.". In the present case it is insisted that the legislature intended in all cases to give to the land owner the right of a new appraisal, |