Lowndes v. Campbell — 1 N.Y. Super. Ct. 598

Majority

p. 598

Oliver M. Lowndes, Sheriff, &c. versus Matthew Campbell and others.

April Term, 1829.

Headnote

The parties to a suit in this court, and to another also, in the Supreme Court, for the purpose of bringing the matters in controversy to a speedy decision, and save costs, referred the same to disinterested persons, of their own selection, for a decision, under a stipulation, that if the issue was found in favour of the defendant the said several suits were to be discontinued ; but if in favour of the plaintiff that then a relicta for a given sum, should be delivered to the real party in interest, on which a judgment was to be entered up, for the amount, together with costs, to be taxed, including the expense of the reference. XJpon a motion by the defendants, to set aside the award of these referees or arbitrators, upon the ground principally, that certain evidence offered by them, at the trial, was rejected, it was held that the parties were precluded by the terms of their submission from questioning the award, there being no stipulation for a review.

The award was for less than $250 ; but as the action was brought for the penalty of the bond, which exceeded that sum, the plaintiff taxed his costs according to the rules of the Supreme Court. But it was held, that as the plaintiff had agreed to accept a relicta for less than $250, waiving a judgment for the penalty, (which otherwise, would govern costs,) he was entitled to Common Pleas costs only.

The plaintiff in this suit, brought an action of debt on a replevin bond, executed by the defendants; but the real party in interest

p. 599

was one Abraham Depew. Two of the defendants had previously commenced an action of trespass against Depew, in the preme Court, which was also pending. The question in controversy, related to the title to seventy barrels of apples, which had been levied on, by an execution, out of the Marine Court, in favour of Depew, against one Wheeler. The parties, “ in order to “ save costs, and bring the matter to a speedy decision,” agreed by a stipulation, signed by their respective attornies, to refer the question, as to said title, to “ three indifferent referees,” who were named. If the title to the apples, was found by the referees to be in Matthew Campbell and Ira Carpenter, (the plaintiffs in the Supreme Court, and two of the defendants here,) then the suit in this court, and that in the Supreme Court, were to be discontinued, and the parties were to exchange release. If, however, the title was found to be in Wheeler, then the referees were make a report in favour of the plaintiff, for one hundred and nineteen dollars and seven cents; and a relicta for that sum was to be delivered to Depew, on which he was to enter up a judgment for the amount, “ together with the taxable costs of this suit, in- “ eluding the costs of the referees.”

To carry this arrangement into effect, a consent and rule of reference were duly filed with the clerk.

At the trial, the plaintiff produced in evidence, a fi.fa. for §119.25, against Wheeler, in favour of Depew, issued out of the Marine Court, on which was endorsed a levy upon the apples. He also produced a bond, for a return of the apples, together with a replevin bond executed by the defendants, on which was endorsed the appraised value of the property levied on.

The defendants, for the purpose of proving the property of the apples, to be in Campbell and Carpenter, called Wheeler as a witness; but. he was objected to, on the ground of interest, and rejected by the referees, who made an award in favour of the plaintiff for §119.07, finding the title of the apples to be in Wheeler. The attorney for the plaintiff thereupon, filed the relicta, and entered a rule for judgment thereon nisi.

p. 600

Mr. T. C. Pinckney for the defendants,

now moved to set aside the award, and stay proceeding, upon the ground, first, that Wheeler ought to have been permitted to testify. He cited the following cases to this point, viz : [1 Phil. Ev. 38 to 57, and, the notes. 8 Johns. R. 377. 10 Ib. 21. 16 Ib. 89. 5 Ib. 256. 1 Ib. 491. 1 Caines’ R. 276. 1 T. R. 163. 1 Cox’s R. 332. 14 J. R. 362, 3 Johns. Cas. 82 . 2 Caines’ R. 77. 11 J. R. 185. 1 East. 20. 1 J. R. 159. 16 J. R. 89. 7 T. R. 476. Ib. 477. n. Cowen’s Treatise, 595. 4 Mass. R. 156 . 12 Ib. 20. 1 Caines’ R. 167. Peake’s Ev. 224. 2 J. R. 399.]

II. That the plaintiff’s attorney had no right to proceed on the relicta, no report having been filed, or served on the parties.

Mr. Western, contra, for the plaintiff contended.

I. That the witness was properly rejected, because, by the terms of the submission, he stood in the situation of a party, and the report could be given in evidence, for, or against him. At all events, he had an interest in the event of the suit,—he stood before the referees as a vendor, and could not be permitted to support his own title.

II. All matters, both of law and fact, were submitted to the referees, and the relicta was conclusive upon the defendants. The reference was not made under the statute, but was in the nature of an arbitration, and the relicta covers a release of errors, and the court will not interfere.

The parties in this cause, it appears, submitted the matters in controversy between them, to a tribunal of reference, made by themselves, without any stipulation for a review. They are, therefore, concluded by the award, unless the defendants can show, that the referees have been guilty of fraud. It is said, however, that the referees improperly excluded the evidence of a witness offered by the defendants. If this' be so, it

p. 601

was a mere error in judgment; and this court cannot interfere to correct it. The submission or reference was in the nature of an arbitration, and the relicta having been delivered to the plaintiff’s attorney, according to the terms of the submission, he had a perfect right to file it, and enter up judgment. There was no necessity for filing a report, for the relicta stood in the place of it by the consent of the parties, and being signed by the attorney of the defendants, it was conclusive. This motion, therefore, is denied, with costs.

It afterwards appeared, that the plaintiff^ attorney had taxed the costs according to the rules of the Supreme Court, and Mr. Western moved for costs as taxed. He insisted that the plaintiff was entitled to such costs, as the action was upon the replevin bond, which was for a sum exceeding $250. The judgment in such cases, is for the penalty and carries full costs. [Harvey v. Walker and Bardwell, 6 Cowen, R. 57.]

Mr. Pinckney, contra, contended,

That the plaintiff was entitled to Common Pleas costs only, he having accepted a cognovit for a sum less than $250. [He cited 2 Dun. Prac. 734. 1 R. L. of 1813, p. 347. Sec. 21. 1 Caines' R. 66.]

Per Curiam. If this were a case arising under the action for the penalty of the arbitration bond, then if the plaintiff succeeded, he would be entitled to costs, according to.the amount of the penalty, because the judgment would be for the penalty. But here the plaintiff agreed expressly to except a part of the penalty, in full satisfaction of his claim, and has stipulated that his recovery should be for a sum less than two hundred and fifty dollars. He is entitled, therefore, to Common Pleas costs only.

[H. M. Western, Att'y for the plffs. T.