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Sayles agt. Wooden.
Cady, Justice.—This is an action for slander. The plaintiff has put into his complaint eighteen causes of action; or what, before the Code, would have been called eighteen counts. It appears from the complaint that the defendant sued the plaintiff before a justice of the peace, and the defendant in that action verified his answer by making oath before the justice that he believed the said answer to be true; and eleven of the eighteen causes of action set out in the complaint, consist in substance of charges made by the defendant that the plaintiff in his verification of that answer swore false, or swore to a lie. The other seven causes of action alleged in the complaint do not in terms refer to that verification.
The defendant has put in three distinct answers or defences. The first denies each and every allegation in the complaint. In his second or further answer, he avers, that the facts set forth in the complaint are not sufficient in law to constitute a cause of action, in as much as the verification to the answer of the said plaintiff, as set forth in said complaint, would not if such answer were false constitute the offence of perjury; nor could the plaintiff have been indicted for perjury upon such verification at the time the slanderous words are alleged to have been uttered; and he craves the same benefit of this objection to the complaint, as if he had demurred to the complaint for that cause. In his third and further answer, he says, if he did speak and publish the several slanderous words in the complaint alleged, the same were true in substance and fact.
The plaintiff in his reply, instead of treating the defendant's second answer as a demurrer to the complaint, denies upon information and belief the allegations therein contained, thus taking issue thereon, as if the second answer contained allegations of facts, when in truth it contains only matters of law.
To the third answer the plaintiff has demurred, and specified various grounds for such demurrer; but, to decide the cause, it will not be necessary to examine the various grounds alleged for the demurrer. It will be enough to say that a plea in slander, that the words alleged to have been spoken are true, would not
Holbrook agt. Homer.
enable the plaintiff to prepare for trial. Suppose a defendant has said of a plaintiff, he is a thief; he has committed perjury; he is a murderer; and the speaking of such words is alleged in the complaint, and the defendant answers: if I have said that you are a thief, that you have committed perjury, and are a murderer; the words are true: how could the plaintiff prepare for trial? It would be impossible. When a defendant in an action of slander intends to justify the speaking the slanderous words, he must state such facts as will show the plaintiff guilty of the crime imputed to him (4 How. Pr. R. 98, 347). If all the causes of action stated in the complaint had in terms referred to the plaintiff's verification of his answer before the justice, he would then have known that all that he need prove was that that verification was true; but the 9th, 10th, 11th, 15th, 19th and 16th causes of action, stated in the complaint, contain no reference to the verification of the plaintiff's answer before the justice.
Again, hypothetical pleading is not allowable (5 How. Pr. R. 14, McMurray agt. Gifford).
I am, therefore, of opinion that the defendant's third answer is bad, and that the plaintiff is entitled to judgment thereon.
HOLBROOK agt. HOMER.
An auctioneer who receives goods for sale, under an agreement that he is to re
ceive for his compensation all over a certain price, reserved by the owner, is liable to arrest under $ 179, where he does not pay over the reserved price
after sale, according to the agreement, after demand. A special motion for an exoneretur to be entered on an undertaking, or that the
sureties be discharged from all liability thereon, on the ground that the action is one in which the defendant can not be arrested, is irregular. The object of such a motion can only be obtained under $ 204.
Albany Special Term, October 1850. This was a motion for an order that an exoneretur be entered upon the undertaking
Holbrook agt. Homer.
made and filed in the action, or that the sureties be discharged from all liability thereon, upon the ground that the action was one in which the defendant could not properly be arrested.
The following facts appeared in the case: The plaintiff, a resident of New York, sent in July and August 1849, a quantity of engravings, frames, glass and fixtures to the defendant, then an auctioneer doing business at Albany, to be sold; the defendant to have all he could obtain above a certain price reserved, for his commissions in effecting the sales. On the 6th of October 1849, defendant wrote the plaintiff, informing him of the sale of a part of the property, and that the balance was subject to his order; and requesting him to draw on the defendant at thirty days for the reserved prices of the property sold; which the plaintiff did accordingly. The draft was accepted by the defendant but not paid. This action was soon after commenced and the defendant arrested, pursuant to an order granted in the cause and held to bail on the 12th of April 1850. The bail justified before notice of exception, which was afterward served, but the second justification waived by agreement between the parties upon the assent of the sureties to stand as bail.
A. Dean, for defendant, examined at some length the law applicable to this class of cases, and contended that an auctioneer could not be arrested in such a case; the law did not apply to him in the ordinary transaction of his business, particularly where a draft had been drawn upon time by a party entitled to the proceeds of a sale, and the auctioneer had accepted the draft. Though he failed to pay, the transaction had become a mere matter of contract and credit (see Code of 1848, § 154: Code of 1849, § 179; 2 How. U. S. Rep. 202; 7 Met. R. 320; 1 Code Rep. 106, White et al. vs. McAllister). Implied trusts exist in all cases, and it would be unsafe to construe the statute to apply to all these, or any other than express trusts.
R. H. NORTHROP, for plaintiff, in opposition. The defendant was but the factor, agent or auctioneer of the plaintiff; the property before sale, and the reserved price after, was the property
Holbrook agt. Homer.
of the plaintiff, and the defendant was not authorized to convert it to his own use, without plaintiff's consent. There was no contract made between the parties by which the title to the proceeds of the sale became vested in the defendant for a day, he did not ask permission to use the money and had no right to appropriate it to his own use. He desired the plaintiff to draw for it at thirty days, a reasonable time to collect it in, and no more. His neglect to pay it in the manner proposed did not change the title to it, though he again bound himself to pay by accepting the draft. The answer admits defendant received the money; if it was plaintiff's money, defendant was liable to arrest for not paying it
The order asked for can not be granted. If defendant was not liable to an arrest, he should have moved to vacate the order before justification by the bail under $ 204 of the Code; the object of this motion can not be attained except under that section, which gives ample relief, if the order is granted improperly or in an improper case. The provisions to exonerate bail do not apply to this case (see 191).
Watson, Justice.—I think the defendant was liable to arrest under § 179. If he were not, the object of this motion could only be obtained under $ 204. The provisions of the Code (§ 191) as to the exoneration of bail do not apply to this case. tion must be denied, with ten dollars costs.
The moCorning and Winslow agt. The Troy Iron and Nail Factory and Burden.
CORNING & WINSLOW agt. The Troy IRON AND NAIL FACTORY AND
H. BURDEN. Where the plaintiff appears to be entitled to a decree for a perpetual injunction,
he may have a temporary injunction also, pendente lite, provided it is necessary to protect him from injury. The law in regard to injunctions has not been materially changed. (The case of Cure agt. Crawford, 5 How. 293, not
concurred in). It is not enough for a plaintiff, to entitle him to a temporary injunction, to show
that the continuance of the acts complained of will do him an injury; he must also show that it is a case in which he will be entitled to final relief by
injunction. The obstruction of water courses are such grievances as call for the equitable
remedy by injunction (Story's Eq. Juris. $ 927; Eden on Injunctions, 108;
Angell on Water Courses, v 444, &c.) Where the defendants constructed a large reservoir above their mills, by dam
ming the stream and erecting a dyke for the purpose of securing a more equable and continuous flow of the water; which gave to them a control over the water; and which plaintiffs claimed, were exerted by the defendants to the great damage and injury of the plaintiffs in the use of their mills and machinery below, on the same stream (notwithstanding it appeared that said reservoir might, with proper management, have been beneficial to plaintiffs); and it appearing that both parties were equally entitled, as riparian proprietors, to the use of the stream, held, that the plaintiffs were entitled to an injunction, pendente lite, of an action for damages for such injuries, and to secure protection against future injuries of like character.
Albany Special Term, May 1851. This was an application for an injunction to restrain the defendants from closing the waste gate of their dam or reservoir. An injunction had been allowed by a justice of this court at chambers, which was subsequently modified on application of the defendants, and an order made to show cause at special term why an injunction order should not be made according to the prayer of the complaint. The application was made on the complaint and affidavits, and was also resisted on affidavits. Many affidavits were read on both sides. The facts are sufficiently stated in the opinion of the court to show what questions of law were decided.
Hill & PORTER, for Plaintiffs.