13 Barb. 183 | N.Y. Sup. Ct. | 1852
One branch of the defense interposed by the answer in this case was the pendency of a former action. The reply denied that an action was pending for the same cause at the commencement of the suit, and alledged that prior thereto such action was discontinued,' of which the defendant had notice; thus raising an issue of fact. After the jury had been empanneled, the judge, at the suggestion of the counsel for the plaintiff, and against the objection of the defendant’s counsel, decided to first try this issue, thus, as the defendant complains, compelling him to enter upon a part of his defense before the plaintiff had gone through with his case. This, however, is not an error that can be reviewed on a bill of exceptions. The order in which proof shall be received on a trial is in the discretion of the judge; (1 Cowen & Hill’s Notes, 710 to 720. 3 Barb. S. C. Rep. 407;) and is not reviewable on error or appeal. (People v. Baker, 3 Hill, 159. Rapelye v. Prince, 4 Hill, 119. Lansing v. Russell, 2 Comst. 563, and cases cited. 6 Barb. 109.)
It was then proved that prior to the 16th of January, 1849, an action for the same cause, was commenced by the plaintiff against the defendant, by the service of a summons and complaint. The defendant, on the day mentioned, employed an attor
By the uniform practice of this court an action could not properly be discontinued without the entry of a rule for discontinuance, and the payment of the defendant’s costs. (10 John. 367. 1 Wend. 13. 7 Id. 511.) The rule was always indispensable; and formerly, although the defendant had only employed an attorney, and no notice of retainer had been given at the time the rule to discontinue was entered, there must have been an offer to pay, or payment of costs to the defendant; else he might the rule as' a nullity. (12 Wend. 191. 4 Hill, 167) case however of White v. Smith, (4 Hill, 167) subsequently overruled by the court for the correctior Hill, 520.) In that case a suit had been commenced . an attorney employed for the defendant. The plain ceiving notice of retainer, entered a rule for disumuance, without paying or tendering any costs, and commencecfuh?íimií suit against the defendant for the same cause, to which he pleaded the pendency of the first suit in abatement; and it was held that the defendant not having appeared in the first, suit until after the second was commenced, was not entitled to costs, and that the rule formed an answer to the plea; otherwise, had the defendant appeared in the first suit before entry of the rule.
The rule, therefore, has always been requisite, and when the defendant has appeared, tender, or payment of costs, to legally discontinue an action. The code of procedure mahes no specific provision on the subject; nor do the present rules of the court. The code however recognizes the defense, (§§ 144, 147,) and provides that when the rules and practice of the court in civil ae
To discontinue "the first action, then, it was necessary that a rule should be entered ; or if the practice of formally entering common rules is now abolished, and a notice to the party substituted, the costs of the defendant, there being an appearance, should at least have been tendered or paid; and so the judge seems to have decided. But there was neither a rule nor an offer to pay, or payment of costs ; and this branch of the defense, as the proof stood, was established. The court was trying an action while a former action for the .same cause was pending and undetermined.
To relieve from this embarrassment the judge, after the issue had been tried, allowed the plaintiff to enter a rule at the special term he was then holding, for the discontinuance of the former action, nunc fro tunc as of the 3d of March, 1849, and to pay or tender five dollars for costs in the former action, and decided that upon such rule being entered, and payment, or tender made, to overrule the defense of a former action pending. Thereupon such a rule was entered, the costs tendered and refused by the defendant, and the trial was directed to proceed, on the other issue.
Thus summarily was this branch of the defense disposed of by the court; a defense which if it did not reach the merits, at least should have been controlling on the question of costs. It was a ground for demurrer, (Code § 144,) and not appearing on the face of the complaint in the second action, the objection was properly taken by answer, (§ 147.) Had a demurrer been ifiterposed, and decided in the defendant’s favor, the statute would have given him costs of the trial. The objection being taken by answer, and the issue proved, had the plaintiff been nonsuited or his complaint dismissed, costs would have followed. To permit the plaintiff to manufacture a state of facts, nunc
And how can we tell that that preparation was made to try the cause upon its merits that otherwise would have been made, had not the defendant relied for success on the preliminary issue ? On the case, as presented we think the judge erred.
Whilst examining the sister and principal witness for the plaintiff, it was proposed to prove by her, that the health of the plaintiff was impaired in consequence of the breach of the promise of marriage. This proof was objected to by the counsel for the defendant, but the objection was overruled, and the proof received. The complaint contained no special allegation of such damage; and it cannot be gaid that the direct, natural and necessary consequence of a breach of the contract was to impair the health of the plaintiff. (12 Wend. 64.) Unless special damages are averred and stated in actions of this character, evidence of damage should be confined to that which is the direct, natural
Parker, Watson, and Wright, Justices.]
Other exceptions were taken by the defendant, but as a new trial must be granted, for the reason stated, it is unnecessary to particularly examine them.
The judgment of the circuit court must be reversed, and a new trial ordered, with costs to abide the event.
Watson, J. concurred.
Parker, P. J. dissented.
New trial granted.