Gilbert F. Darling, Respondent, v. Selah S. Brewster et al., Appellants

Gilbert F. Darling, Respondent, v. Selah S. Brewster et al., Appellants. (Argued December 15, 1873; decided January 20, 1874.) Where in an action in which no answer is interposed it is necessary to take and state an account for the information of the court before judgment, and a reference is ordered for that purpose, the report of the referee has the effect of a special verdict (Code, § 272); and where exceptions are filed to the report by defendant, which are overruled, the report confirmed and judgment rendered, an appeal from the judgment brings up the question whether the facts reported are sufficient to sustain the judgment, and upon a case with exceptions joined with the report, errors of law on the part of the referee may be reviewed. Where a demurrer is interposed, in an action for relief, which is overruled and no answer is put in, the material facts stated in the complaint are, for the purposes of the action, to be taken as true. (Code, § 168.) One of these purposes is to furnish evidence on the hearing, and the plaintiff-does not entirely lose the benefit of this evidence by introducing testimony, and not objecting to the defendants doing so. In such case all the evidence must be taken and considered together by the court or referee. The granting of an extra allowance by the court below in such case is within its power and discretion, with the exercise of which this court cannot interfere. This was an action by one of several joint owners of a vessel against his co-owners, one of whom, was master and others managers. The complaint alleged the performance of work and labor and the furnishing of material by plaintiff in repairing the vessel; asked for an accounting of the moneys received from the use of the vessel and of moneys paid out, materials furnished, and work and labor done for it, etc. The prayer for judgment was that an account be taken, and that defendants pay to plaintiff what may be found due to him, and for such other relief, etc. Defendants demurred to the complaint on the ground that several causes of action were improperly united. The demurrer was overruled and leave given defendants to answer. They did not do so, and a reference was ordered, with directions to the referee to take and state an account of all matters and dealings between the parties, and that he report the same, with his opinion thereon, with leave to either party to apply to the court for a confirmation of the report. The referee made his report in accordance with the order; defendants filed exceptions; on motion of plaintiff the exceptions were overruled and the report confirmed, and plaintiff perfected judgment for the amount found due him against all the defendants. Defendants appealed from the judgment; no appeal was taken from the order. Plaintiff claimed that the questions raised by the exceptions were not before the court, inasmuch as the order overruling the exceptions was not appealed from. Meld as above, the court citing Kirby v. Fita Patrick (18 N. Y., 484); S. G. (31 id., 41'7); Marshall v. Smith (20 id., 251). The court held, also, that the complaint stated but one cause of action, and that the demurrer, therefore, was properly overruled. The complaint stated the amount claimed to be due plaintiff for repairs made, by him upon the vessel. Plaintiff introduced evidence upon the accounting to sustain this claim, and defendants presented evidence tending to show a contract on the part of plaintiff to do the work for a less sum. Defendants claimed that the amount stated in the complaint could not be considered, for the reasons: 1st. That the complaint, in its demand for judgment, did not state a specific amount. 2d. That plaintiff had lost the benefit of the admis sion resulting from a failure to answer by entering into proof, and allowing, without objection, proof on the part oi defendants. Held, that the complaint did not demand, within the mean ing of section 142, subdivision 3, of the Code, the recovery of money, and so it was not necessary that an amount be specifically stated; as to the effect of the omission to answer, held as above, the court citing Flora v. Gorbeau (38 N. Y., 111). The referee took and stated the accounts down to the time of the hearing. Held, no error. {Balstrodt v. Bradley, 3 Atk., 582; Bell v. Read, id., 591; Hotaling v. Barr, 17 Conn., 556.) The referee reported that there was due to the plaintiff, from all the defendants, a certain sum, the larger portion of which was for repairs made by him, the balance for his share of the earnings. As to the latter, the complaint alleged that the defendants had received large sums as profits not accounted for, but did not allege how much, or that any one had received more than his share, nor that the receipts were by them jointly. It appeared that the receipts of the vessel came into the hands of a firm of which Bentley, one of the defendants, who was the managing agent for the parties, was a member, and the bills were paid by that firm. The testimony did not show the amounts individually received by either of the defendants individually, nor which of the defendants had money in his hands from which any share should be paid. Held, that, as Bentley was as much the agent of plaintiff as of the defendants, they were not liable to him for Bentley’s retention of the funds any more than he to them; and that the holding of the referee, that the amount found due the plaintiff was due from the defendants jointly, was error; that the accounting was imperfect, as the testimony, including the undenied allegations of the complaint, failed to show the specific relation of each of the defendants to the fund and to the plaintiff, and failed to fix upon all a joint liability, or upon any a fixed individual liability, and furnished no legal basis for the judgment rendered. The judgment was therefore reversed, and another reference ordered to take and state the accounts of each joint-owner with the common fund. It was further held that the granting of an extra allowance in such a case was in the power and discretion of the court below, with which this court could not interfere. jRichard X. Huntley for the appellants. Townsend Soudder for the respondent. [MAJORITY — Folger, J.,] Folger, J., reads for reversal, and that proceedings be remitted for a rehearing and. restatement of accounts by a referee to be appointed by the Supreme Court. All concur. Judgment accordingly.