Hicenbothem v. Lowenbein — 29 N.Y. Super. Ct. 557

Majority

p. 557

William Hicenbothem, plaintiff and respondent, vs. Abraham Lowenbein, defendant and appellant.

Headnote

A plaintiff has a right to consider two simultaneous injuries to property one cause of action; and if he does nothing to separate them, in his complaint, but alleges that they were done at the same time, if they are of the same character, and the defendant has treated them in his defense as one cause of action, there is no reason for separating them, at the trial, or in the verdict or judgment.

(Before Robertson, Ch. J., and Barbour and Jones, JJ.)

Heard June 14, 1866;

decided April 1, 1867.

This was an appeal from an order denying a motion made on "behalf of the defendant. (1.) To amend the verdict rendered in the action, or the entry thereof in the minutes, and give the defendant judgment according to such amended verdict. (2.) To have the costs of each party adjusted in his favor; to compel the plaintiff to enter judgment for such costs, and after offsetting such costs and the amount óf the verdict against each other, allow execution for the excess to the party entitled thereto. (3.) For general relief. The complaint contained four numbered paragraphs: One, setting out the peaceful occupation by the plaintiff* of certain premises, with a workshop thereon, containing certain chattels. The next, the violent throwing by the defendant of such chattels into the street and injuring them. Thirdly, the expulsion by the plaintiff of the defendant on the same occasion from such workshop, and his conversion of it (not being a fixture) to his own use.

The answer, besides controverting all the facts -set out in the complaint, (except the possession by the plaintiff of the premises in question,) set up two defenses to what it termed “ the cause of action ” in the complaint, to wit, the issuing of a warrant of dispossession of the plaintiff, his unlawful and the defendant’s rightful possession, and the performance of the acts set out in the complaint in pursuance of such warrant and right.

On the trial, the defendant’s liability for the removal of

p. 558

the property alleged in the complaint to have been injured, was made to depend upon the jury’s belief of his interference with the officer executing the warrant, and for the conversion of the building, upon the jury’s opinion of its capability of being removed without injury to the freehold.

According to the affidavits of the foreman of the jury himself, (Platt,) of the acting clerk of the court, (Reid,) two witnesses, (Welsh and D. Hicenbothem,) and the plaintiff’s counsel, which substantially coincided, such foreman, after announcing that the jury had agreed, stated that they found for the plaintiff “for the conversion of the shop, and valued it at forty dollars.”- Upon being asked if they intended to allow interest on that sum, the jurors answered affirmatively, and it was then computed at twenty-eight dollars. The plaintiff’s counsel then claimed such verdict to be a general one for the plaintiff, and the court directed it so to be entered. The acting clerk then so entered it, and asked such jury if that was their verdict, and they assented thereto. Two of the jury (Capin and Roome) deposed that the verdict rendered was a general verdict for the plaintiff, for the value of the workshop ($40) and interest (28.) The foreman of such jury and five of the jurors, (Miler, Judson, Terry, Haydoek and JPolhamus,) and three witnesses, ( Welsh, and W. and R. Hicenbothem,) deposed that nothing was said by them, or any one, as to rendering a verdict for the defendant.

The affidavit of the defendant’s counsel, (Mr. Dyett,) stated that the jury, upon being asked for their verdict, said “we find.that the building belonged to the plaintiff, and that it was worth forty dollars, and as to the rest of the case we find no damages.” That the plaintiff’s counsel claimed interest on such value, and while the foreman was calculating it the defendant’s counsel claimed that the verdict “ should be for the plaintiff as to the first cause of action, and for the defendant as to the second cause of action.” That the court assented thereto, and directed the clerk so to enter it, who entered it as a verdict “ for the plaintiff on

p. 559

the first count, damages sixty-eight dollars, and for the defendant on the second count, and so read it to the presiding judge, who added, at the suggestion of the plaintiff’s counsel, “ a general verdict for the plaintiff for sixty-eight dollars,” which was entered by the clerk, and the whole read by him, when, on the suggestion of the deponent, the word “count” was'altered to “cause of action.” This affidavit was corroborated by that of the defendant and his attorney, (Mr. Morrison.) Seven of the jurors (Alburtus, Mahr, 1lay-dock, Polhamus, Corbett, Clarkson and Judson) stated in their affidavits, read on behalf of the defendant, that the verdict as rendered by such jury was for the defendant upon the alleged ground or cause of action for the removal of or injury to the propertyfrom the premises in controversy, and for the plaintiff for the detention of the workshop and its value. Four of the jurors so deposing, (Judson, Terry, Hay-dock and Polhamus,) in an affidavit subsequently made by them, state that they did not mean in such prior affidavits to be understood as swearing that they had rendered a verdict for the defendant, but merely that their verdict was for the conversion of the workshop; One juror (Miller) stated that in the jury room they agreed to find a verdict for the defendant for the property alleged to have been injured, but subsequently stated in another affidavit that the verdict rendered was a general verdict for the plaintiff.

An addition procured by the defendant’s counsel on the day after the trial to be made by the clerk to the original minutes, as entered, was stricken out by order of the justice before whom the action was tried, upon hearing counsel for both parties. In the order made thereupon it is recited, that “ The jury in this action having found a verdict for the plaintiff, and having assessed the damages at the sum of $68, without any further or other finding, but pursuant to the instruction of said justice having stated that the said damages were for the conversion of the workshop mentioned in the com- ■ plaint in this action, whereupon the said justice directed the clerk to enter upon his minutes a general verdict for the

p. 560

plaintiff for the said sum óf $68.” The affidavit of the counsel for the plaintiff (Mr. Shaffer) stated that in order to avoid a new trial, in case of appeal, he asked the court to request the jury to state, in case of their finding for the plaintiff, for what the damages were awarded by them.”

The present motion was then made and denied, with costs, from which denial an appeal was taken.

A. R. Dyett, for the defendant, appellant.

C. Shaffer, for the plaintiff, respondent.

The evidence in this case seems to me so clearly to preponderate against the finding by the jury formally of any verdict in favor of the defendant, that independently of any personal knowledge on the subject, the court at special term was justified in refusing to change the minutes. The jury were undoubtedly in his favor as to the injury to the chattels removed from the premises in question, but were restrained from so expressing themselves by the instruction of the court, that their verdict was equivalent to a general one for the plaintiff. The defendant is therefore not entitled to any relief, unless the complaint contains two causes of action, and the defendant was deprived of a verdict upon one in his favor by the action of the court. Even, however, if there were two causes of action, if there were no question of costs, the court ought not to grant a new trial, since no objection was taken at the time to such direction of the court. (Pentz v. Sackett, Hill and Denio’s Supp. 113.) The answer in this case speaks of but one cause of action in the complaint, and put in two defenses to all the acts alleged in the complaint, jointly. The complaint sets forth the destruction of some, and the simultaneous conversion of other personal property of the plaintiff. Possibly the plaintiff might have commenced two separate actions for the goods injured and the chattels carried away as formerly, an action of trespass and one of

p. 561

trover; but both could properly come in under the head of “ alia enormia ” in an action of trespass “ de bonis asportatis.” Possibly, also, the defendant by his defenses might have divided them, by showing that the chattels converted were lawfully in his own possession when he converted them, or their possession not obtained by the same trespass, in committing which he threw the goods in the street; The plaintiff has not taken any ordinary mode of earmarking the different unlawful acts claimed by the defendant to be separate causes of action, although the nineteenth general court rule requires them/to be separately stated and plainly numbered, if intended to be separate. \ The mode of separating causes of action seems to be very indeterminate. (Hall v. McKechnie, 22 Barb. 244 .) As the plaintiff had a right to consider two simultaneous injuries one cause of action, and has done nothing to separate them in his complaint, but has alleged they were done at the same time, as they are of the same character, and the defendant has treated them in his defense as one cause of action, I think there was no reason for separating them at the trial in the verdict or judgment.

The order was correct, and should be affirmed, with costs.

When a verdict, either through fraud, mistake or negligence, is rendered contrary to the fact, the court may interfere and correct the verdict, so as to accord with the fact. In no other case can it interfere, except to set aside the verdict, and either render judgment absolute the other way or grant a new trial, upon a motion for a new trial or on an appeal from the judgment entered on the verdict.

The only question then presented in this case is, whether the record of the verdict accords with the fact. The affidavits clearly show that when the jury returned into court, after having retired to consult, they in the first place announced their verdict as follows: “ We find a verdict for the plaintiff for the conversion of the shop, and' value the same at $40.” Upon being asked whether they intended

p. 562

to allow interest on that sum, they said, “we do,” and thereupon, computed the interest and found it to be $28. The presiding judge then directed the clerk to enter the verdict as a verdict for the plaintiff for $68. The clerk did so enter it, and then said to the jury, according to the invariable practice of all courts of record: • “ Gentlemen of the jury, hearken to your verdict as it stands recorded. Tou say you find a verdict for the plaintiff, and assess his damages at $68, and so say you all.” The jury then assented to this record as being a correct record of the verdict which they, under the instruction of the court as to the effect of the verdict first announced, rendered. It follows that the subsequent alteration of the rendered verdict, by the clerk, was wholly unauthorized, and that the subsequent striking out of the alteration, and denial of the motion to re-insert it, were correct.

It is unnecessary here to consider whether the judge was correct in deciding that the verdict as announced was in legal effect a general verdict for the plaintiff. That decis-, ion was made in the course of the trial, and can only be reviewed in the same manner as a decision admitting or excluding evidence. I say the decision was made in the course of the trial, for the trial continues up to and until the verdict is récorded; and the decision in question was made before the verdict was recorded. Whether that decision can be reviewed without an exception having been taken to it; and if it cannot, whether the defendant can by some other motion put himself in a position to review that decision, are questions which do not properly arise on this appeal.

With the denial of that part of the motion which seeks to have the verdict as now recorded amended, the rest of the motion falls.

The order should be affirmed, with costs,

Cases cited

Hall v. McKechnie 22 Barb. 244 N.Y. Sup. Ct. 1856-09-01 p. 561