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Jellinghaus v. The New York Insurance Co. stances of the case, of an alleged misapprehension of the meaning of the 4th Rule of January Term, 1799, allowed the motion to be made."

In Savage v. Hicks, (2 Wend., 246, in 1829,) thirty years after the practice had been settled, that such a motion could not be made after judgment perfected, the Court granted that relief, on the ground that a case had been made in good faith and served before the judgment was entered. It was an inadvertence of the attorney that he had omitted to obtain a stay of proceedings until the case could be heard. (Hawkins v. The Dutchess and Orange Steamboat Co., 7 Cow., 467.)

In the present suit as in that, a case was duly made and settled, and it was done in good faith. In this suit, after the case was settled, the attorneys met together and compared it with an engrossed copy, so that it could be ascertained that the defendants' attorney might have it printed or copies made for the hearing, without any hazard of future changes by a motion to resettle it or otherwise, and both attorneys undoubtedly then supposed that the defendants could be heard upon it as a matter of strict right.

During the interval between the passage of the act of April, 1832, (supra,) and the enactment of the Code, the right to be heard after judgment perfected, in actions in the Supreme Court, was a strict right.

The Code, as enacted in 1848, did not permit a judgment to be entered until after the expiration of four days from the verdict. (Laws of 1848, p. 538, $ 220.)

As amended in 1849, judgment could be entered at once, and it became final after the expiration of four days, “ unless the Court or a Judge thereof ordered the case to be reserved for argument or further consideration, or granted a stay of proceedings. (Laws of 1849, p. 667, $ 265.)

This language might be understood as authorizing a motion for a new trial after judgment entered, provided an order was obtained within the four days directing it, or staying proceedings.

The Code, as amended in 1852, authorized the Justice trying a cause to "stay the entry of judgment and further proceedings thereon" until a motion for a new trial could be heard and decided, whether made upon the grounds of surprise or irregu

Jellinghaus v. The New York Insurance Co.

larity, or upon a case or bill of exceptions. (Code of 1851, $264.)

In 1852, sections 264 and 265, so far as they affect the questions of practice now under consideration, were enacted in their present form. They omit the provision found in section 264 of the Code of 1851, as to staying the entry of judgment, and as section 264 now reads, the clerk must enter judgment in conformity with the verdict if a different direction be not given by the Court.

However plain the practice may appear to those who understand it correctly and are perfectly familiar with it, I think the evidence is entirely satisfactory that it was misunderstood in the present instance, and that the attorney was using respectable diligence to prepare for a hearing upon the case, which he had made in entire good faith. He presents grounds addressing themselves more forcibly on behalf of the equitable interposition of the Court than are disclosed by the report of Savage v. Hicks ; and as no injury can result to any party from granting the relief sought, while possibly the ends of justice may be promoted, the defendants should be permitted to be heard.

At the same time I deem it proper to say, that to justify the granting of such relief the case should be one of unquestionable mistake, and evincing perfect good faith, and should be merritorious, and even then to grant such relief is going to the extreme verge of judicial discretion.

The judgment may be set aside on payment of the costs of entering it, and of the subsequent proceedings, including $10 costs of this appeal, and giving security for the payment of the verdict, with interest and costs; but the plaintiff's attorney, by electing to admit due service of a notice of appeal from the judgment, as of a day when it might have regularly been served, may retain the judgment and restrict the defendants to a hearing of their exceptions upon such appeal.

Ordered accordingly.

Ruberry v. Binns et al.


1. On an application for a discovery of books, in order to enable the plaintiff

to prepare his complaint, if it appear that the plaintiff is seeking to recover moneys received by the defendants, as his factors and agents, selling his goods, and they have not rendered accounts of sales in full, the Court will order them to render such account or give a copy of their book showing such sales from the time of the last account of sales rendered. The plain

tiff, upon those facts, is entitled to such account of right. 2. But under color of an application for such a purpose, the plaintiff is not

entitled to examine the defendants' books at large, or to have copies of them, for the purpose of seeing whether they conflict with the accounts of sales heretofore rendered. (Before Woodruff, J.)

At Special Term; March 10th, 1860.

The plaintiff herein having commenced this action by service of the summons, applied by motion to compel the defendants to produce their books of account and submit them to the plaintiff for his inspection, or to furnish the plaintiff sworn copies of so much and such parts of their books as contained any memorandum or entry relating to goods consigned to them, as the factors and agents of the plaintiff, for sale; and the ground on which the discovery was sought was, that the defendants were such agents and factors, that the action was brought to recover from them the property and proceeds of sales, and that the discovery is necessary to enable the plaintiff to frame his complaint in this action.

The defendants showed, in opposition, that they had rendered full and detailed accounts of all sales made down to July, 1859.

Weeks & De Forest, for the plaintiff, in support of the motion.

J. D. & T. D. Sherwood, for the defendants, in opposition thereto.

WOODRUFF, J. As the agents or factors of the plaintiff, the defendants are bound to render accounts of goods sold and moneys collected, and the right of the plaintiff to have such an

Heinemann v. Waterbury.

account, upon the facts stated in the affidavits on both sides, admits of no controversy; and it is reasonable that the plaintiff should have the information which such an account would fur. nish, before he is compelled to frame his complaint.

But there is no necessity that he should be permitted to examine the defendants' books at large. He can frame his com. plaint without any such aid.

He presumptively knows what goods the defendants have received. He has received accounts down to July last. He is not entitled to a discovery for the purpose of exploring the books to see whether perchance he may not discover something in conflict with the accounts rendered.

The defendants must furnish a sworn statement of all sales made and moneys collected since the 1st of July last, or produce and deposit with the clerk of the Court such of his books as will show those sales and receipts.

Costs of motion, $10, to abide the event.

EMIL HEINEMANN, Plaintiff, (Appellant,) v. BENJAMIN WATER

BURY, Defendant, (Respondent.)

1. Upon the filing of the decision of a Referee determining the cause, it is

the duty of the clerk to enter the judgment directed by such decision; and if the prevailing party does not choose to furnish to the clerk a judgment roll, it is the duty of the clerk to collect from the files such papers as con

stitute such roll, and attach thereto a copy of the judgment. (Code, $ 281.) 2. It is optional with the prevailing party to furnish a judgment roll or not,

and he cannot be compelled by an order the Court to cause a judgment roll

to be filed. 3. An order requiring the prevailing party to cause the judgment roll to be

filed, and to pay costs of the motion, is an appealable order, and will be

reversed. 4. The question whether, when a judgment by default has been directed to

stand as security, but the defendant suffered to defend, a second judgment should be entered on a subsequent recovery of verdict or decision by a Referee in favor of the plaintiff, discussed by HOFFMAN, J. (Before HOFFMAN, WOODRUFF, PIERREPONT, MONCRIEF and ROBERTSON, J. J.)

Heard, March 17th; decided, March 31st. 1860.)

Heinemann v. Waterbury.

The order appealed from in this case is as follows: On reading and filing affidavit of Benjamin Waterbury and notice of motion and order to show cause, and after hearing, &c., ordered that the plaintiff cause the judgment roll in this action, upon the report of the Referee therein, to be filed within ten days after service of a copy of this order, and pay to the defendant's attorney $10 costs of this motion.

The notice of motion was for an order directing the plaintiff to file the judgment roll, or permitting the defendant to do so.

The affidavit on which the motion was made set forth that the action had been referred to a Referee, who made his decision on or about the 16th of January, 1860, in favor of the plaintiff; that the costs were taxed on the plaintiff's notice on the 3d of February, 1860; that on the trial some exceptions were taken by the defendant's counsel to the ruling of the Referee; that the defendant desired to appeal to the General Term from the decision, and in order to do so is desirous that the judgment should be entered and the judgment roll filed; that the plaintiff's attorney has been requested to enter the judgment and file the judgment roll, but has declined to do so.

It appears from an order in the cause of the 24th of December, 1858, that a motion had been made to set aside an inquest, judgment and levy under an execution in the cause, on which motion the defendant was permitted to have a trial of the issues joined in the action, for which purpose it was referred to W. Mitchell to hear and determine the issues joined therein, and that the judg. ment already entered, and the levy under the execution issued therein, stand as security for any amount that may finally be recovered by the plaintiff. Permission was given to have the execution and levy vacated upon certain terms as to security. It is not stated whether those terms were complied with and the execution and levy set aside or not.

From the order peremptorily directing the plaintiff to cause a judgment roll to be filed as above stated, the plaintiff appealed.

Jeremiah Larocque, for appellant,

Among other things, insisted that there could not be two judgments in the same action.

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