Salters v. Ralph , 15 Abb. Pr. 273 ( 1862 )

Br the Court.^*—Barnard, J.

The two motions on which the orders appealed from were made were heard together in the court below. The motion for a stay of proceedings was noticed before the judgment was entered.

TJpon the hearing of this motion, plaintiff interposed the fact of his having obtained judgment as a bar; defendant answered to this that the judgment was irregular, and that he had a motion then on the calendar to set it aside for irregularity.

The judge heard the motions together, and rendered his decision, setting the judgment aside for irregularity, and staying the proceedings. There is no objection to this course.

The judge having set aside the judgment for irregularity, the action was then pending, and formed no obstacle to granting the motion for a stay. The judge might have directed the motion to vacate the judgment to be heard first, and adjourned the motion for a stay over until his decision; and then, having set aside the judgment, it would have formed no obstacle to the motion for a stay.

Instead of taking this course, he heard both motions together, and having heard both, and having become possessed of all the facts, he was at liberty to decide, and was correct in deciding the motions in the same manner as if he had first set aside the judgment before hearing the other motion. The judgment being out of the way, the stay was properly granted under the circumstances. From this it results that if the judge was correct in setting aside the judgment for irregularity, both orders should be affirmed. If he was in error in setting it aside, both orders should be reversed, as on the ground of favor the judgment should not have been vacated, and terms should have been imposed on granting permission to answer.

It is now to be considered whether the judgment was irregular. This case is distinguishable from Clement a. Cash (21 N. Y, 253); Bagley a. Peddie (16 Ib., 469); Cotheal a. Talmage (9 Ib., 551). In all those cases the clauses relied on expressed in clear and unmistakable terms and words, that the sum was agreed on between the parties as ascertained and liquidated damages. Those cases proceed on the ground that the language employed showed that the parties, at the time of entering into the contract, had estimated the damages to result from a breach of the agreement, and had settled on the amount thereof to be paid. In this case there is no such agreement. The stipulation here is for a forfeiture. If this is to be deemed stipulated damages, then there has certainly been a great revulsion in the law on this subject; for, instead of its being any longer difficult to frame a clause which shall have the effect of liquidating damages, it will have become difficult to frame a clause which shall not have that effect. In. Bagley a. Peddie, it is laid down as one of the rules for determining whether a given clause liquidates the damages, that “ where the word penalty is used, it is generally conclusive against its (the clause) being held liquidated damages, however strong the language of other parts of the instrument in favor of such construction.” How, the case at bar falls directly within this rule. True, the word “ penalty” is not used, but the word “forfeit,” which has the same legal effect, is; and it is through the single word “forfeit” only, that plaintiff can make any claim whatever to the $250.

There is nothing in the language of the other parts of the instrument which in the slightest degree favors the construction that this sum was intended to he agreed on as ascertained and liquidated damages.

Having come to the conclusion that this is not a case of liquidated damages, it is clear that notice of assessment of dam ages was necessary, and such notice not having been given, the judgment was irregular.

The permission to defendant to answer was, under the circumstances, proper.

Orders affirmed, with $10 costs of appeal on each motion.

* Present, Ingraham, P. J., Leonard and Barnard, JJ.