Citation Numbers: 6 Daly 183
Judges: Daly
Filed Date: 12/6/1875
Status: Precedential
Modified Date: 2/5/2022
This action, brought to recover damages laid at $20,000, for slander, was originally commenced in the Superior Court of the city of Hew York, and issue joined therein. Plaintiff made a motion in that court on March 2, 1874, for an order sending the cause to the Marine Court for trial. Defendant did not appear to oppose the motion, and upon proof of due service of notice of the motion upon him, an <order was made on that day that the action “ being for slander, be, and the same hereby is, transferred to the Marine Court for
The first question presented is that of jurisdiction.
The transfer of the cause from the Superior Court to the-Marine Court was ordered pursuant to the Marine Court Act of 1872 (L. 1872, ch. 629, § 3, sub. 12), which reads as follows: “ Any other court of record in the city and county of New York shall have power, by an order to be entered by its direction on its minutes, to send any action of libel, slander, assault, battery, criminal- conversation, seduction, malicious prosecution, or false imprisonment, pending, or that may hereafter be brought in said courts of record, after issue has been joined therein, to-the said Marine Court for trial, and a certified copy of such order shall be delivered to and filed with the clerk of the said Marine Court, and entered by him in its minutes, and thereupon the said Marine Court of the city of New York shall have immediate and exclusive jurisdiction of such action, and the said jurisdiction of the said court, as to the amount of the recovery in such action, costs and additional allowances therein, shall, for the purposes of said action, be the same, and as full and comprehensive as that of the court from whence the same proceeds.”
In the ease of Hart v. Hatch (6 N. Y. Supm. Ct. Rep. 186),. the general term of the Supreme Court of this district, upon an appeal from an order of that court removing a cause in that.
In the case of Alexander v. Bennett, the Court of Appeals (60 N. Y. 204), upon an appeal from an order of the Supreme Court removing a cause from that court, under the act of 1874 (ch. 545, § 4), an act containing a general provision for transfer of cases from courts of record to the Marine Court for trial,, where the defendant had also objected to the order of removal, decided that the court had no power to make such order.
The decision, in both of these cases, was put upon the express ground that one of the parties to the cause removed had objected to and opposed the order of removal, and that the Supreme Court had no power to divest itself of jurisdiction and refuse to try the cause and send it for trial to another court,, against the wish of the litigants, or any of them. The Court of Appeals declares the exercise of its own jurisdiction by the court in which the action is pending, is the constitutional right of the parties, and intended for their benefit, and it is the duty of the court to exercise it and adjudicate the controversy. But the court farther declares that “if the statute had required the consent of the parties to the action, as well as the court, to the transfer of jurisdiction over it to another court, a different question would be presented.” And the Supreme Court, in the case cited, declares that “if both parties had consented, an entirely different case would be presented, for even a constitutional right may be surrendered by consent.”
It would seem, from these decisions, that the legislature has. the power to make such a provision for the transfer of causes, if it be made dependent upon the consent of the parties to the litigation ; and if the statutes authorizing the removal may be read as containing a proviso that the order transferring the cause shall be made with the consent of the parties, they would not be unconstitutional. I am of opinion, under the decisions, that the statutes should he so read and construed.
In the case of Embury v. Connor (3 N. Y. 511), the constitutionality of a legislative provision (L. 1813, ch. 179), concern
As it is the duty of the court to construe all legislative enactments so as to give effect to them, and not conclude them to be unconstitutional because a literal reading would indicate that they violated some principle of the organic law, the better -opinion would be that this provision of the Marine Court Act authorizing the transfer, of causes from other courts, should be read as containing a provision that such transfer should be made upon, or with the consent of the parties to the action, and not -otherwise. It is no arbitrary exercise of power to construe the act as including a provision making its operation depend upon the consent of the parties interested, since without their consent it is wholly inoperative and harmless, and they may surrender .any constitutional right by consent.
As to the merits of the appeal. The appeal comes before us on a case and exceptions, and was argued on the case and exceptions without objection. The gravest question, as it seems, to me, is that of damages, and I cannot but conclude that the amount allowed by the jury was excessive. The plaintiff Heath had been a partner of Ingersoll, the person convicted of a crime in connection with the well known “Bing” frauds, by which the city suffered the loss of many millions of dollars. Ingersoll had sued the plaintiff for a dissolution of their copartnership this defendant was a witness upon the trial of that cause, and was contradicted by plaintiff, who was a witness on his own behalf. In reference to this suit, defendant said to one of his. clerks, Francis Burdett, in the course of a conversation, “I know Heath to be a liar and a perjurer, and he perjured himself on the last civil suit; ” and on another occasion he said to-William 0. Taylor, another of his clerks, “ If any man perjured himself, Mr. Heath had.” On other occasions, commenting on the conviction of the same Ingersoll and one Farrington, for a crime connected with the above mentioned “Bing” frauds,, defendant said, in a conversation with his said clerk Burdett, “ It is a shame those parties should be in Sing Sing when another equally guilty should be left to go free.” And on another occasion said to his partner, one Jones, “Heath is a thief, and I can prove it by a whole regiment of men;” and on another occasion said to Jones, in the presence of the clerk Taylor, “I have no doubt Heath (the plaintiff) shared the plunder robbed from the city by Ingersoll and others.”
It will be observed that these statements were made by defendant to his own partner and clerks, and in his own store ;• not in the presence of plaintiff, nor to any one who he had any reason to believe would repeat them to plaintiff. The plaintiff recovered because the words were actionable per se, and there was no attempt to show special damage. The clerk Burdett
In the case before us, the jury evidently regarded the slander uttered by defendant as an attack on Heath for having testified against Ingersoll, and, unless severely punished, as calculated to deter others from testifying against great political culprits or public officers charged with crime. Whatever the consideration that weighed with the jury, they must have been under considerable excitement caused by the trial, and it is not too much to assume that it was connected with the public prosecutions of the city’s plunderers had shortly before. I can see nothing in the case of such importance or peculiar aggravation as to war
The judgment should be reversed, and a new trial ordered, costs to abide the event.
Ohables P. Daly, Ch. J., and Loew, J., concurred.
Judgment reversed, and new trial ordered.