Caughey v. Smith

The respondent claims that an appeal does not lie in this case, to review the action of the General Term. It appears from the printed papers that there was a verdict for the plaintiff at the circuit, where an order was made that the defendant have time to make a case and exceptions, and to move for a new trial in the first instance at General

The respondent cites to us several cases as sustaining his position. In White v. D. L. & W. R. R. Co., ( 41 N. Y., 520 ); there was a verdict for the plaintiff at circuit. The defendant moved for a new trial at Special Term. His motion was denied. He then appealed from the order of denial, to the General Term. There the order of Special Term was affirmed ; judgment was then entered on the verdict, and the defendant appealed directly to this court. The appeal was dismissed; the judgment was declared to be one entered on the determination of the Special Term. That case differs from this, in that in the case in hand, there never was an order of the Special Term.

The order at circuit in this case, suspended the entry of judgment, and no j udgment had been or could be entered, until after action at the General Term adverse to the defendant.

We would not, however, put any differing decision upon so narrow a basis as that. In Coleman v. Pleystead ( 40 N. Y., 341 ), the facts were the same as in 41 N. Y., supra, save that the judgment recited the proceedings at Special and General Terms. This decision was professedly based upon the case of Van Bergen v. Bradley ( 36 N. Y., 316 ). In the last named case the appeal was not dismissed, but the judgment appealed from was affirmed upon the merits. In the opinion delivered, it was declared however, that the judgment did not appear to have been that of the General Term; that the action of the General Term was confined to the making of an order, that a new trial be denied with costs; that the judgment entered did not purport to rest on the judgment of the General Term; and that the appeal should be dismissed. These cases seem to go upon the position maintained in Potter v. Van Vranken ( 36 N. Y., 619 ), that the appeal is not from the General Term, but from a judgment which has never passed under the review of the General Term; and, that as this court can review only an actual determination of the General Term, it has no power

We have taken a different view of such cases. The judgment entered in this and like cases, could not have been had, but for the action of the General Term denying a new trial. In fact the entry of judgment is suspended, until the order of the General Term is made. So that in reality, whatever the form may be, the judgment results from and depends upon the order of the General Term. To borrow the logician’s phrases; it is not only post hoc, but it is propter hoc. So that when an appeal is taken, it does bring up for a review a judgment which is in legal effect the action of the General Term, and which had not authority for its entry, until the order denying a new trial was made.

When the General Term in such cases denies a new trial, the successful party has the legal right to enter judgment, in the same manner as if the order denying a new trial expressly directed it, and the judgment thus entered, is deemed to be entered in pursuance of the determination of the General Term. The better practice is, to enter the order of the Geneeral Term in the judgment, whether it directs a judgment or not; so that this court may see from the judgment itself, without resort to the order, that the General Term has passed upon the questions involved; although it is not indispensable to do so. But it is not essential that the order contains express authority for entering judgment.

This court possesses jurisdiction to review any actual determination of the General Term in a judgment; and our jurisdiction is complete, if the judgment is entered in pursuance, and in consequence of such determination.

We, therefore, entertain the appeal in this case.

The following is the opinion upon the questions particularly involved in this case:

The complaint in this action is for enticing

But to maintain an action for enticement from service, it must appear that the child apprentice or servant, was at the time in the actual service of the parent or master, and that the moving cause of desertion was the inducement held out by the defendant. If before the child apprentice or servant, had ever met or communicated with the defendant, there had been an abandonment of the service, it cannot be maintained that there was an enticement therefrom by the defendant. (Butterfield v. Ashley, 6 Cushing, 249.) The solicitation to leave must be shown. (Stuart v. Simpson, 1 Wend., 376 , 379; Blake v. Layton, 6 T. R., 221.) And there must be an actual state of service then subsisting. (Butterfield v. Ashley 2 Gray, 254 .) It appears from the testimony, that the son left his father’s employ, without the father’s consent, early in August 1864; and went to the provost marshal’s office at Syracuse, and offered to enlist, but at the father’s instance he was rejected. He then returned home, and remained a few days, and again left, finally. It was without his father’s consent. It is therefore, beyond dispute that the son, of his own will, against his father’s will, left the home and service of his father early in August. He was in fact enlisted, as late as Monday the twenty-ninth day of August. He did not meet, or communicate with the defendant, until the Wednesday before that, which was the twenty-fourth of that month;

It is beyond dispute then, that the leaving of the home of the father, and the desertion of the father’s service, was the act of the son, before he had seen or communicated with the defendant, and of course before the defendant had offered him any inducement or solicitation. And equally certain is it, that no inducement or solicitation of the defendant caused the son to desert his father’s home and service.

Ho action can be maintained against the defendant by the plaintiff, on the state of facts now shown, for the enticement of his child away from his service.

But there is an allegation in the complaint that the defendant

On the question of the knowledge of the defendant that the plaintiff’s son had wrongfully left the father’s home and service there was a conflict of the testimony. But there was testimony tending to establish that fact, to which the jury had the right to give credence if they saw fit. And, if, under proper instructions they did give credence to it, and did find their verdict for the plaintiff, including therein a finding that the defendant acted with the knowledge above mentioned, there are facts enough in the case to entitle the plaintiff to retain the judgment he has recovered.

For it is shown that the plaintiff was the father of the minor, a lad of fifteen years of age. The plaintiff was, from this relation, and by reason of his liability for the support and maintenance of the minor, entitled to have his labor and services, or the wages paid for them. (2 Kent, 193.) The value to the plaintiff of those services was also shown. It is shown that the father had not emancipated the son, nor in any way consented to his leaving the father’s service, but that the son of his own will left it. The defendant knew from the appearance and otherwise of the youth that he was a minor. He knew also, that the plaintiff was the father of

And then, as to the knowledge of the defendant that the son had left the service of the plaintiff wrongfully. The plaintiff, as a witness, had given testimony from which the jury could readily infer the fact of such knowledge. The defendant, as a witness, had given testimony contradicting that of the plaintiff in this respect, and contradiction to it had also been had from the testimony of another witness called for the defendant. But the jury had a right to rest upon the testimony of the plaintiff, and to discard from their belief that of the defendant and the witness called by him. And if they have found their verdict for the plaintiff, under proper instructions from the court upon this point, we must assume that they did so rest and so discard.

And in that event it would appear that the plaintiff had made out a jprima, faeie case against the defendant, of a wrongful harboring of the minor, to the injury and damage of the plaintiff.

It remains to be seen whether any error was committed upon the trial, in the holdings of the court, to the detriment of the defendant.

The defendant offered to prove that after the death of the son the plaintiff took out letters of administration upon his estate, and in his capacity of administrator, demanded and received of the defendant the bounty money paid to the son on his enlistment, and the interest thereon. -It had already appeared that the son died unmarried, without child, with no next of kin but the plaintiff, and owing but one debt of small amount. The testimony thus offered was excluded, and the defendant took his exception thereto.

That he may ultimately receive as his own some part, results from the operation of the law, and not from his act. He will obtain it under the statute of distributions, as the next

But his act is not the moving cause in this case. Had the plaintiff been entirely quiescent, or even repellant, none the less would he have had a vested right in this bounty money on the death of his son. Had he chosen never to demand it for himself, or never to have taken out letters of administration to that end, no one else while he lived, could have done so without his consent, express or tacit. Still the right to it would have remained his, and at his decease been a part of his estate. The bounty money he obtained was not the wages of the service his son owed to him; nor was it his seeking it as such, that enabled him to obtain it. It was something other than that, which was cast upon him by the operation of the statute law, without his choice or act. In Bird v. Randall (3 Burrows, 1345), the plaintiff was defeated in an action for enticing away his servant, because he had already received in a suit against the servant, the stipulated penalty for leaving the plaintiff’s service. But mark the reason of the decision. The solicitor-general for the plaintiff arguendo conceded that if the plaintiff had once received a full satisfaction for the same thing, he could not recover a second. And the court put their judgment upon the ground, that by the recovery against the servant, he had received complete satisfaction for the injury for which in the then action, he was seeking redress against the defendant. In other words, he had sought and obtained by his own act, the same thing which he was again seeking. But such is not the case here. There

Of like character was the testimony offered by the defendant, that the plaintiff had obtained from the United States government the arrears of pay etc. due to his son. This too, was something conferred upon the plaintiff by the operation of statute law. Had the minor lived, the plaintiff could never have successfully claimed it of the government. It was not an amount due to and received by the plaintiff as an equivalent or compensation for the loss of his son’s services, to which services he was entitled as the father. It was property in general, a debt due to the estate of the minor, to which the plaintiff succeeded on the minor’s death by reason of positive and specific provisions of statute law in relation to the subject. It was not a sum of money, or a benefit, or a compensation for a loss suffered or an injury sustained, which he could have sought in either one of two ways, and having chosen one he is precluded from pursuing the other. It was not the same thing nor the equivalent for the same thing, which the plaintiff now seeks from the defendant. What he claims from the defendant is his (the plaintiff’s), and never was anothers. What he got from the government never was his until it was first anothers, and never could have been his until after it had been anothers. We may suggest an analogy which may make clear our view. If this boy, after leaving his father, and after colleagueing with the defendant, had gone as a passenger upon the cars of a railroad company, and had been injured under such circumstances as to render the company liable for negligence, and the plaintiff had some time after sued the company for his damages, which would have been the loss of the services of the son, and had recovered and received them, and then had sued the defendant for enticing away his child,' seeking to cover the same time of the son’s absence from his employ, inasmuch as the measure of his damages would have been the value of the boy’s services, the defendant might have said in bar, you have already obtained your compensa

We have said above, that the jury had a right from the testimony that was before them, to find that the defendant harbored the son of the plaintiff, knowing that he had wrongfully left his father’s service, provided that question was committed' with proper instructions.

The defendant sought to obtain from the court instructions thereon which in his view were correct. He asked for a charge, that the plaintiff was not entitled to recover, unless the jury were satisfied from the evidence, that the defendant knew that the son had left the father’s service against; the will of his father.

Doubtless, both in an action for enticing away a minor child, and for harboring one who has deserted his father’s service, it is essential to aver and prove knowledge on the part of the defendant, that the minor owed service to the plaintiff. (2 Chitty Pl., 645, 646, and note I; Stuart v. Simpson, 1 Wend., 376 .) The cases cited by the respondent’s counsel as supports for the contrary proposition ( 5 Cow. Rep., 483 ; 6 J. R., 274), were actions for wages, and not for enticing away or harboring; and 98 Mass. 6 was a criminal complaint, under a statute which was absolute in its terms, and precluded any excuse of want of knowledge. But as we have stated that in our opinion, the action for enticing away is not maintained by the testimony, we need consider the question immediately before us, only in reference to an action for harboring one who has abandoned service. And it is to be borne in mind that it is an action of tort. To charge the defendant, the plaintiff must establish that he acted with a knowledge of the plaintiff’s rights. It was the right of the

Akin to this, is the offer made by the defendant to prove that when the boy engaged with him, he told him that his father was willing that he should go into the military service of the government. This was objected to on the ground that it was a declaration of the boy in the absence of the plaintiff. The objection was sustained and the defendant took his exception. Though the defendant knew that this was the son of the plaintiff, and was a minor, still if there was an honest belief on the part of the defendant, that the youth had left his father’s service with his father’s consent, the defendant was not liable to the plaintiff in an action of this kind. (See 6 Cush., and 2 Gray, supra) It was material and important for the defendant, to show to the jury any fact, which would convince them that he had acted honestly. The testimony he offered would strongly tend thereto, nor was it liable to the objection made to it and sustained. The declarations of the minor, just at the inception of the arrangement between him and the defendant, were a part of the transaction. They were of the immediate circumstances of the case, and tended to show the animus of the defendant, and the influences under which he acted. They would not lessen the right of the plaintiff to the services of his son, and could not be heard to do so. But they might convince that the defendant did not purpose to impair the right. They would not have been available in an action by the father to recover the wages of the son; yet in this action, imputing and dependent upon a wrongful intention, they were competent to show that it did not exist in the mind of the defendant. So in an action by a husband against one for harboring the wife, it was held that the act of the defendant was rendered tortious or wrongful by reason of the improper or unlawful

We are of the opinion that the court erred in the rejection of the testimony offered.

The defendant requested the court to charge, that to support this action the plaintiff must satisfy the jury that the defendant when he put the plaintiff’s son into the service, was doing so against the plaintiff’s consent. If by this was meant (as in criticism upon it is suggested) that the jury must find that there was no cause of action unless it appeared that the plaintiff’s consent had been in fact asked, and in fact refused, it was a proposition clearly untenable. If it is meant by it that in the absence of dissent expressed to the defendant, he had a right to infer assent, then it is untenable. For the legal and natural inference is, that the father would hold on to that which is his right, and that inference must be repelled by some fact or circumstance in opposition to it, to warrant any honest action contrary to it. If it was meant

The court charged the jury that if the plaintiff’s son was under the age of eighteen at the time of his enlistment, the defendant was liable whether he knew it or not. To this the defendant excepted.

The whole charge of the court is not before us in the printed case. It may be that, if this clause could be read in connection with other parts, it might not appear objectionable.

But as it stands before us, it is thé only instruction given by the court to the jury. And as it reads thus standing alone, it rests the liability of the defendant solely upon the fact of the age of the minor. This puts out of view the question of the good faith of the defendant, and his knowledge or want of knowledge, of the desertion from the father’s service, which was in the testimony, and proper matter for the

For the several errors noticed, the judgment should he reversed and a new trial granted with costs to abide the event. All concur.

Judgment reversed.