a new trial on the ground that there had been a mistrial. New trial ordered. Appeal from a judgment entered upon the affirmance of the report of the referee herein in favor of the Opinion by Freedman, J.; Curtis, plaintiffs. This action was brought Ch. J., concurred. REFERENCE. QUALIFIED RE- N. Y. SUPREME COURT. GENERAL by certain judgment creditors of the defendants to set aside a conveyance of property made by the defendants, Leopold and wife, to one S., and a reconveyance by said S. to the wife of the defendant Leopold, and a mortgage made on the same property by said Leopold's Silas Davis, respt., v. Louis Leo- wife to one W. pold et al., applts. Decided May, 1880. The referee was requested to find that Mrs. Leopold paid to her grantor ten dollars, and assumed a mortgage of one thousand dollars on the property conveyed. The request was refused. The referee was L. and wife conveyed certain property to S., who reconveyed the same to L.'s wife, and she subsequently gave a mortgage thereon to one W. In an action brought by L.'s judgment creditors to set these conveyances also requested to find that the title aside, the referee was requested to find that of said property was vested in Mrs. Leopold for the purpose of paying her a debt which her husband owed her. The referee refused to find that fact, "as stated in the request." Mrs. L. paid to her grantor ten dollars and assumed a mortgage of one thousand dollars, which request was refused. Held, This fact being established by uncontradicted evidence, a refusal to find the same was error. The fact was material and entitled Mrs. L. at least to protection to the extent of the liability assumed by her. The referee was also requested to find that the title of said property vested in Mrs. L. for the purpose of paying her a debt which her husband owed her. The referee refused to find that fact, as stated in the request." Held, Such qualified refusal implies that this fact, in some other form of statement of it, existed. As there was no contradiction of the testimony proving such indebtedness, the only ground upon which the referee would be justified in rejecting it would be that the witnesses had been impeached. Had the referee made an absolute refusal to find this fact, this question of impeachment would have been presented for determination by review of the whole evidence. The referee did not reject the testimony by making such a finding, and the court does not feel justified in rejecting it. Mrs. L. should not be deprived of the protection due her as a grantee without a distinct finding which disentitles her to assume that position. upon which the referee would be guardian of a boy twelve years of justified in rejecting it would be that age to recover damages for alleged their veracity had been impeached tortious acts and negligence. The by contradictory statements on the testimony on the boy's behalf same subject made by them on showed that on October 3, 1877, another occasion. If the referee fearing he would be late in getting had made an absolute refusal to find home, he jumped on one of the the fact referred to, the question Third Avenue cars going down whether these witnesses had been town, at the corner of Fifteenth impeached would have been presented for determination by a review of the whole evidence. street, having in his hands the money to pay his fare, and intending to pay it. After the car had The referee did not reject the proceeded several blocks the contestimony of these two witnesses en- ductor came from inside the car, tirely, nor do we feel warranted in and a boy who had got upon the doing so. It is a reasonable infer- car put his hand to his nose and ence that Mrs. L.'s object in taking jumped off, when the conductor, the property was to obtain payment without asking Schultz for his fare for that indebtedness. She should or giving him an opportunity to pay not be deprived of the protection it, and without stopping the car, due to her as such a grantee with- threw him off it. He fell on the up out a distinct finding which disen- track, and a car going up passed titles her to assume that position. partially over him, breaking his Judgment reversed, and a new collar bone, so that it protruded trial granted at Special Term, with from the skin, and breaking two ribs, both arms and the thigh-joint, besides producing contusions and permanently injuring and deforming him. The conductor remembered a boy on that day putting his hand to GENERAL his nose, but denied kicking or pushing any boy. The judge charged, upon the trial, "that the costs. Opinion by Gilbert, J. PRINCIPAL AND AGENT. N. Y. SUPERIOR COURT. TERM. Schultz, by guardian, v. The jury must be satisfied that the Third Avenue RR. Co. Decided June 18, 1880. throwing off was done in the course of the conductor's employment, as such, and that if he went outside. Where the conductor on a car acts in the course his employment, and without regard of his employment as such, and with a view to defendant's interest, and on appearances to his service, acting maliciously, upon which he has to exercise his judgment, or in order to effect some purpose the RR is responsible for the manner in of his own, wantonly threw the which he acted and the consequences of plaintiff off, the defendant was not his act, though he may have acted in excess liable." That "if the conductor of his authority. acted neither maliciously nor with The action was brought by a the view to effect some purpose of Co., 12 J. & S., 1. Judgment and order affirmed. Opinion by Curtis, Ch. J.; Sedgwick, J., concurred. his own, but within the general Hoffman v. N. Y. C. & H. R. RR. scope of his employment while engaged in defendant's business, and with a view to the furtherance of that business and the defendant's interest, believing, upon the appearances before him, and upon which he had to exercise his judgment, that his duty to the defendant re INJUNCTION. DAMAGES. GENERAL TERM. quired him to act, then the defend- N. Y. COMMON PLEAS. A verdict was rendered against the defendant for $15,995 damages. A motion was made to set aside the verdict as excessive, which was denied. Judgment was entered for the plaintiff. Defendant appealed. It was claimed that the last clause of the judge's charge was erroneous, as well as the damages being excessive. John S. Dickerson et al. v. Gerson N. Hermann. Decided June 7, 1880. Where a preliminary injunction is vacated upon stipulation, the sureties on the undertaking are only relieved from liability for damages accruing subsequent to the time of its vacation; they are still liable for all damages which accrued prior thereto the same as if it had been vacated on motion or by a decision of the court. This action was to declare a chattel mortgage, referred to in the complaint, null and void, and for a perStilwell & Swain, for plff. petual injunction to restrain defendant from selling or in any way interLauterbach & Spingarn, for deft. meddling with the property described Held, That the charge is in con- in the mortgage. Plaintiff obtained a formity with the principles sus- preliminary injunction and order to tained in the Court of Appeals in show cause why it should not be Round v. Del. RR. Co., 61 N. Y., made permanent, the usual under136; Jackson v. 2d Ave. KR. Co., taking being given. The motion 42 N. Y., 274; and Mott v. Con- was denied upon Hermann filing sumers' Ice Co., 73 N. Y., 543. That certain security, and, in case of failthe defendants carry passengers only ure to do so, granted. Two weeks for hire, and it was the right and subsequently the preliminary induty of the conductor to refuse to junction was vacated upon a stipureceive a passenger who would not lation upon conditions. Upon the pay his fare, and to remove him trial the complaint was dismissed. when upon the car if he refuses to From an order of reference to ascerpay it, and the defendant is liable tain defendant's damages from the for the manner in which the con- injunction, the plaintiff appealed. ductor performs such duty, if he A. Prentice, for plff. acts under a mistake of judgment. Albert Cardozo, for deft. Held, That if the court had set In December, 1866, an agreement aside the injunction upon the hear- was entered into between the parties ing of the preliminary motion, and to the action respecting the steamthe plaintiff's complaint had been ships Atlantic, Baltic, and Western finally dismissed, that the right of Metropolis, in pursuance of which, the defendant against the sureties in March, 1867, a mortgage was for damages sustained by the pre- given to defendant's firm upon these liminary injunction could not be steamers. The Baltic was sold by questioned. That the condition of mutual agreement, and upon default the case at bar, by the stipulation, in the mortgage the Atlantic and was not rendered any more unfavor- Western Metropolis were sold in able to the sureties than it would June, 1868. Meantime the plaintiffs have been by a decision upon the commenced this action, claiming irmotion for an injunction of the kind regularities in connection with the mentioned. The only effect of the sale, and an undertaking of $1,000 stipulation was to limit the liability was given upon an injunction reof the sureties to damages caused straining the proceedings. A moprior to the date of the stipulation tion was made to increase the secuby the preliminary injunction, which, rity to $150,000, but pending the up to that time, had not been set application the injunction was vaaside. That, by the stipulation, the cated. A referee appointed to comparties to the action agreed that the preliminary injunction might be vacated, and virtually provided that the question of damages under the injunction shall be limited to the time of the hearing of the motion for the injunction. Order of reference affirmed. Opinion by Van Brunt, J.; Larremore, J., concurred. INJUNCTION. DAMAGES. TERM. The Pacific Mail Steamship Co., applt., v. William Toll, survivor, respt. Decided June 7, 1880. Where an injunction is obtained restraining certain proceedings, damages sustained thereby cannot be recovered beyond the amount specified in the undertaking on which the injunction is obtained. pute the damages from the injunc- Held, This judgment must be reversed, and a new reference is ordered, unless the defendant consent to a modification reducing the amount of his claim to $1,000, the sum specified in the undertaking. Opinion by Larremore, J.; Van Hoesen, J., concurred. CONTEMPT. N. Y. SUPREME COURT. GENERAL Decided June, 1880. The court has power to commit the defendant, in an action for divorce, to jail for a refusal the motion, to the effect that his to comply with an order of the court requir- pecuniary circumstances were such that he was unable to comply with the order for want of means to pay the sum therein directed to be paid. And it appears from the opinion of the Special Term that the judge who heard the motion held that the affidavits so read showed that defendant was "unable to comply with the order, and by reason of such inability he should not be convicted for contempt." ing him to pay a certain sum for plaintiff's expenses in prosecuting the suit. The question of defendant's ability to pay the sum so ordered, depending upon his pecuniary circumstances, cannot be raised in opposition to an application for his commitment for contempt in failing to pay the same. The only defence, upon such an application, is to show that the order has been obeyed. Relief from imprisonment for contempt can only be obtained on application to the court for that purpose, on notice, and not in opposition to a motion by the other side for punishment for the contempt. Edwin Nottingham, for applt. Appeal from an order of Special Term denying motion for order directing a precept to issue to com- Held, That the provison of the mit defendant to jail for refusal to Act of 1840, above referred to, relatcomply with an order of the court ing to costs, including section 15, previously made in this action, re- were swept away by section 303 of quiring him to pay the plaintiff's at- the Code of Procedure, still in torney a certain sum for plaintiff's force. Said section 15 had no apexpenses in prosecuting this suit. plication to the Court of Chancery Action for limited divorce, defend- then in existence, nor, after the aboant being plaintiff's husband. lition of that court, was it extended Plaintiff's motion was denied to orders thereafter made by the principally upon ground that the Supreme Court in purely equitable court has no power to imprison de- actions. It merely exempted parfendant for non-compliance with the ties from imprisonment for non-payorder for the reason that the pre- ment of interlocutory costs, leaving cept provided for by section 15, the provisions concerning payment Laws 1840, ch. 386, is an execution of money, other than costs, unagainst property, and not a body touched. execution, and that, therefore, this section had the effect to take the case of an order for the payment of a sum of money, made on special motion, out of the operation of section 1, 2 R. S., 534, see subd. 3, and to abrogate section 4 of the same title, which provides for a precept to imprison a party disobeying an order for the payment of money. The Special Term permitted defendant, against plaintiff's objection, to read affidavits in opposition to Held further, The term "execution," contained in the third subdivision of section 1, 2 R. S., 534, is there used in its technical sense, referring to process provided by law for enforcing final judgment as distinguished from an order; and the practice in regard to enforcing orders for the payment of money is. regulated by section 4 of the same title. The Special Term erred in holding that the power to order commitment does not exist. |