Meyer v. Lent ( 1855 )

By the Court.—Denio, J.

—The question upon this appeal is, whether a judge, before whom a motion is heard at a special term, can direct the responding party to appear before him and be examined orally touching the matters of fact involved in the controversy; and upon his refusing to submit to such examination, can determine the matter against him, as upon the confessions of the allegations presented by the party making the motion.

I am unable to find authority for this in the provisions of the Code of Procedure, or in the practice of the court as it exists, independently of the Code. If the plaintiff’s affidavit in opposition to the motion was equivocal, and evaded instead of denying what had been alleged by the defendant, a case may have been presented where the judge would be authorized to consider the defendant’s case substantially admitted, and to have determined the matter in his favor without any further proceedings. If the case did not warrant such a disposition of it, he might have denied the motion absolutely, or without prejudice to another application, or an action by the defendant to establish the satisfaction of the judgment; or he might have referred the question to a referee, or have awarded an issue. He was not, in my opinion, authorized to call the plaintiff before him to answer interrogatories, and in default of his appearing, or in case of his refusing to be examined, to determine the matter against him as upon a confession. The proceeding contemplated by the order of March 12th was not a trial before a referee, for no reference had been ordered. Nor was it a trial before a court, for there was no action pending, and no issue had been joined upon a question of fact. Before the trial of an issue in an action, the respective parties may call their adversaries ; and if they refuse to attend and testify, they may be punished as for contempt, and the complaint, answer, or reply of the party so refusing may be stricken out. (Code, § 394.) But there is no such provision for the determination of a motion. In such a proceeding, it is not the practice of the court to hear oral testimony at all. I am not surprised that the learned judge should have been desirous of unravelling the case before him— which had been very obscurely stated in the papers on both sides—in the most direct and expeditious way; and it may very well be that the method contemplated, if submitted to, would have led to a satisfactory solution of the difficulty with but little delay and expense. Still, it should he kept in mind that there is great safety in abiding by established forms. If the practice which was adopted in this instance should be sanctioned, a precedent would be established which would permit every judge, in such a case, to institute an inquiry by means of oral testimony; and as the law makes no provision for preserving a record of the evidence, or for a review upon a case or bill of exceptions, the determination would depend upon the discretion of the magistrate. I have, therefore, no hesitation in saying that the proceeding cannot be sustained; and, as the final order was made on the ground that the defendant’s case was adjudged to be admitted or proved, not by a consideration of all the evidence before the judge, but as a consequence of the plaintiff’s contumacy, I am of opinion that the order should be reversed for that'reason alone.

If we should look into the affidavits with a view to determine the- motion upon the statements contained in them, we should be unable to arrive at the conclusion that the judgment had been fully satisfied. A portion of the judgment of the Supreme Court, in the action between these parties, was for a specific performance of an executory contract for the conveyance of a house and lot of ground. There is no pretence that such a conveyance has been executed. The defendant’s case is, that the plaintiff has received a collateral satisfaction for this as well as for the pecuniary judgment. The plaintiff had taken proceedings to establish a mechanic’s lien upon the buildings upon which he had expended labor and materials, and it is shown that he, in the first instance, received mortgages as a substitute for this lien, and that eventually and after the judgment in the action those mortgages were paid to the amount of ten thousand dollars. The amount would indicate prima, facie that the liens, and consequently the mortgages and the payment thereof, was co-extensive with the whole amount to be paid by the defendant to the plaintiff, including the payment to be made by means of the lot, which the defendant agreed to convey; but the plaintiff denies on oath that the liens embraced the claim for the conveyance of the lot, or that he has ever received any satisfaction or security for the non-performance of the defendant of that obligation. In another part of his affidavit, the plaintiff says there were other liens besides those arising out of his contract with the defendant, for other labor and materials expended on these buildings, to the amount of eight thousand dollars, which he caused to be removed and the amount of which entered into the consideration of the mortgages. If this allegation is^ true, the payment of the mortgages did not fully pay the indebtedness, for which the plaintiff recovered his judgment. It is certainly a little remarkable that the plaintiff did not specify these other claims, and show how he became connected with them. The plaintiff’s affidavit was not sufficiently frank and explanatory to have warranted the judge in denying the defendant’s motion. At the same time I do not think he could, against the direct averments in the plaintiff ’s affidavit, have decided that the judgment in all its branches had been satisfied. The proper order to have been made was for a reference to try the question whether the judgment had been fully paid, and if not fully paid whether any portion of it had been paid, and what portion. Upon the trial before the referee, either party will be entitled to the general provisions of law to examine his opponent, and to produce such other evidence as may be in his power. I am in favor of reversing the order appealed from.

Order reversed.