Geraud agt. Stagg.

And it is a very significant fact, that in the Code of Procedure, as reported to the legislature by the commissioners, and passed in 1848, the sections above cited did not contain the words "as to any or all of the parties." They were introduced by amendment in 1849, and the legislature must, I think, have intended to give additional meaning to the section, and to give the power to the courts which the natural signification of the language imports.

Our attention is called to one case bearing upon this subject, decided since the amendment of the Code above mentioned, in the supreme court, sitting in general term in Chenango county. (Farrel agt. Calkins, 10 Barb. 348.) The justice who pronounced the opinion of the court rests the decision of the question solely upon the cases referred to above, without considering whether or not the new language employed in the Code of Procedure has changed the rule. But the reporter adds a note to the case, that a motion was made for a re-argument, on the ground that the Code had changed the rule, and the court denied the motion, adhering to their opinion.

If we had any information, or could be informed in any proper manner, that the defendant below, who did not appeal, is not satisfied to suffer the judgment to stand, so far as it affects him or his property, I might regret that I am compelled, by my examination of the subject, to differ from the supreme court, and that regret would be greater if it did not seem at least doubtful whether the question was maturely considered in that tribunal. As the views of that court on that question are not reported, I am without the aid of the reasoning upon which their conclusion that the Code has made no change, is founded.

I am aware that there may be cases in which the court, though they may be deemed to have power enough, will not reverse a judgment as to one, and leave it to stand as to another, where to do so would work injustice. If the cause of action was in its nature joint only, and where the defendants, if liable to the plaintiff, were also liable to each other for contribution, and whenever a several judgment could not have been

Geraud agt. Stagg.

rendered in the court below, the appellate court would not convert the judgment into one which it would have been erroneous to enter in the inferior tribunal. It might justly awaken surprise, if a remittitur should come from the court of appeals, directing such a change in the judgment as gives it a form, in which, had it been so entered below, the court of appeals must have reversed it. So, where the order for reversal is on a ground not final between the parties, and a new trial is therefore necessary, if the cause of action be joint only, such order must embrace all of the defendants. And when, on the reversal of the judgment of the justice, the plaintiff is put to a new suit, if the cause of action be joint, the reversal must reach all the parties; otherwise the parties who had not appealed might plead the former judgment in bar, and defeat the recovery (as the case might be) against the only solvent man of their number. But it is sufficient to say of all these cases, and no doubt others might be suggested, that this power embraces a control over each case to prevent any inconvenience or injustice. The court "may reverse as to any or all"-and they are bound to do this with due regard to every consideration affecting the rights of the parties which can be brought to their notice; and, on appeals from the justices' courts, that duty is especially enjoined.

In actions of tort, in which a several judgment was proper, the former rule was in the highest degree technical. There was no substantial justice or equity, when a plaintiff in such case had recovered a judgment against three, which the court were satisfied he was, by the law and the evidence, entitled to have against two of them, in dismissing him from court, compelling him to pay costs to all parties, and go through the labor and expense of another suit, to recover what the court say it was just he should have had in the first instance. I think the legislature have saved that necessity now by a more liberal and more rational rule.

And especially is this true in such an action when, as in the present case, the defendant, who alone is affected by the judgment, does not ask our interference. By not appealing, he inti

Geraud agt. Stagg.

mates that he is satisfied with the result.

Sometimes a de

fendant, so situated, may have good reason to apprehend that he should fare worse on a second trial. It is eminently reasonable and just that he should be permitted to retain his positionprotected by the judgment against further prosecution.

In the case before us, having decided, on the appeal, that the action ought not to have been maintained upon grounds that would exonerate both defendants, a love of justice might probably lead us to desire that the other defendant could be relieved if he desires it, but he is not before us; and as a several judgment against him might have been rendered below, and as no right to contribution exists between defendants in such an action, the appellant can sustain no possible injury by suffering the judgment to stand. No right or interest of either the appellant or respondent is prejudiced; and we are, I apprehend, to confine our attention to them. If we are right in our views, the rule must be a general one.

I am constrained to think that the direction was correctly given at the term in which the appeal was decided, and therefore that the motion must be denied. Upon a question of doubt, and supported as he is by authority entitled to great respect, the novelty of the question should relieve the appellant from payment of costs on the motion.

Nicoll and others agt. Pinner and others.

SUPREME COURT.

SOLOMON T. NICOLL and others agt. MICHAEL PINNER and others.

Where the plaintiffs, on the proper requisition to the sheriff, and giving the proper undertaking, took the property from the defendants, which was afterwards returned to the defendants on their requisition, accompanied by a counter undertaking; and, on a motion by defendants to set aside all the proceedings of the plaintiffs, on the ground that their affidavit did not show, as required by the Code, (§ 207,) that the plaintiffs were the owners of the property, Held, that it appearing that a question of fraud was involved as to the ownership, the court could not undertake to decide that upon affidavits, but must leave the defendants' undertaking, and all the proceedings, to stand as they were until that question was tried.

New-York Special Term, January, 1854.

THIS is an action in the nature of replevin. A requisition to the sheriff, requiring him to take the property and deliver it to the plaintiffs, was endorsed by them on the affidavit required for that purpose; upon the receipt of which, together with the prescribed undertaking, the sheriff made the usual seizure. The property, however, was afterwards returned to the defendants on their requisition, accompanied by a counter undertaking.

The defendants insist that the seizure by the sheriff was illegal, and a motion is made to set aside all the proceedings, on the ground that the affidavit filed on behalf of the plaintiffs did not show, as required by the Code, (§ 207,) that the plaintiffs were the owners of the property.

-, for defenaants.
for plaintiffs.

ROOSEVELT, Justice. True, the person making the affidavit swears positively that the plaintiffs "are the owners;" but then, it is said, he does not show that they are; on the contrary, he admits facts, it is said, which go to show that they

Drake agt. Cockroft.

are not. That they were once the owners is undisputed-that they made a sale is undisputed; but if that sale, as is alleged, was fraudulent, they remain the owners still. Can I say that, on the face of the affidavit, there was no fraud? That is the precise issue to be tried. Until it is tried, what hardship can result in leaving the undertaking of the defendants to stand? They have the property, and can dispose of it as they see fit. Should the trial result, as they insist it will, in a verdict in their favor, their undertaking will then, by its very terms, be discharged, and they will have that of the plaintiffs to look to for damages. Should it result otherwise, however, as it may, the plaintiffs, in that event, might be seriously prejudiced should they be without any undertaking to secure them the fruits of the verdict.

Under the circumstances, justice, it seems to me, is most likely to be done by leaving the parties in statu quo. Motion denied, without costs.

NEW-YORK COMMON PLEAS.

DRAKE, respondent, agt. COCKROFT, appellant.

An answer which, without denying any fact stated in the complaint, merely says that "the defendant denies that the plaintiff is entitled to the sum of money demanded in this action, or any part thereof," will be struck out on motion.

In an action by a landlord to recover the rent reserved by the lease, the tenant cannot set up as a counter-claim a mere trespass by the landlord, and destruc tion of personal property upon the demised premises.

Such a trespass is not "a cause of action arising out of the contract or transac tion set forth in the complaint as the foundation of the plaintiff's claim, nor connected with the subject of the action.”

Whether, in an action at law, the Code has extended the doctrine of recoupment to any cases to which it did not apply before the Code? Doubted