establish their right to maintain the action as such trustees, which distinguishes the case from Natter v. Blanchard, 153 App. Div. 814, 138 N. Y. Supp. 969, on which counsel for respondent appears to rely. [3] It was evidently intended to execute the contract under seal, for in the witness clause it is recited that the defendant has caused "its corporate seal to be hereto affixed," and that "the second parties have hereunto set their hands and seals." The contract was executed for the defendant by one Mack, its president, and it was signed by the parties of the second part, the firm name only. The firm signature was affixed opposite two statutory substitutes for seals, which were typewritten. If, as is quite likely, this makes the lease a sealed instrument (G. V. B. Mining Co. v. First National Bank of Hailey, 95 Fed. 23, 36 C. C. A. 633; Rusling v. Union Pipe & Construction Co., 5 App. Div. 448, 39 N. Y. Supp. 216, affirmed 158 N. Y. 737, 53 N. E. 1131), the action could be maintained only in the right of the parties who are, by express terms, parties thereto (Henricus v. Englert, 137 N. Y. 488, 33 N. E. 550; Porter v. Baldwin, 139 App. Div. 278, 123 N. Y. Supp. 1043. See, also, Spencer v. Huntington, 100 App. Div. 463, 91 N. Y. Supp. 561, affirmed 183 N. Y. 506, 76 N. E. 1109). But in the view we take of the other point it is unnecessary to decide whether or not it is to be deemed a sealed instrument. It follows that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event. All concur. (160 App. Div. 678) BLOCK V. NUSSBAUM. (Supreme Court, Appellate Division, First Department. February 20, 1914.) 1. LIBEL AND SLANDER (§ 94*)-PLEADING-ANSWER-JUSTIFICATION. Where the complaint alleged the writing of a letter by defendant, in which he stated that R. felt that plaintiff had obtained money from him by false representations, and should be punished, that he concurred in that view, and, after stating the basis on which they would settle, that plaintiff could consider himself most fortunate, with an innuendo that defendant meant that plaintiff had committed larceny and would be fortunate to be able to settle without being prosecuted therefor, an answer, alleging certain representations by plaintiff promissory in their nature, was insufficient, as the representations would not support a criminal or civil action, and the justification was therefore not as broad as the charge. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 219225; Dec. Dig. § 94.*] 2. LIBEL AND SLANDER (§ 97*)-PLEADING-ANSWER-RELEASE. In an action for libel, a defense pleading a general release was not demurrable, though plaintiff claimed that it was confined to a different matter, and did not extend to the cause of action for libel; this being a matter to be pleaded by way of reply. [Ed. Note. For other cases, see Libel and Slander, Cent. Dig. §§ 234236; Dec. Dig. § 97.*] Appeal from Special Term, New York County. Action by Louis Block against Myer Nussbaum. From an order. overruling demurrers to two separate defenses, plaintiff appeals. Modified and affirmed. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ. Kindleberger & Robinson, of New York City (E. Crosby Kindleberger, of New York City, of counsel), for appellant. William B. Ellison, of New York City, for respondent. CLARKE, J. This is an action for libel. The complaint is based upon a letter dictated by the defendant to a stenographer employed by him, and written out in typewriting, and read over by said stenographer before being signed by the defendant, and thereafter sent through the United States mails to the person to whom it was addressed, then acting as attorney for the plaintiff, who thereupon read the same. The portion of the letter complained of is as follows: "In respect to proposition of purchase of stock in the Universal Sanitary Appliance Company of Mr. Riley and myself at the outset I want to make this observation: Mr. Riley has consulted counsel and I fear I cannot handle the situation as readily as I thought last Friday; he feels that Block has obtained moneys from him by false representations and that he should be punished for same. I most heartily concur in that view and feel as he does about it. I am, however, endeavoring to put through the proposition to purchase our stock, as I told you, to get rid of it, but it must be done on a different basis than proposed, that is, your proposition should be modified as follows: [Then follow nine paragraphs of details.] In conclusion I simply desire to add what I have already stated, that under all the circumstances Block can consider himself most fortunate." The innuendo is that defendant meant that Riley felt that plaintiff had committed the crime of larceny by false representations, for which he should be sent to state prison as a thief, and that the defendant concurred in that view, and that the plaintiff, should the various terms of settlement be accepted, would be most fortunate and lucky to be able to settle without being prosecuted for larceny. The first separate defense by way of a complete defense and justification for said. letter details, at considerable length, a certain transaction between plaintiff and his wife and Riley and the defendant. For a second separate defense the answer sets up a general release under seal. Plaintiff demurred to the first and second separate defenses upon the ground that thy were insufficient in law upon the face thereof, and from the order overruling said demurrers appeals. [1] The demurrer to the first separate defense stated as a complete defense was improperly overruled. If the facts alleged had been stated as a partial defense, or in mitigation of damages, it would have been good. But, if the statements in the letter are taken, as charged by the innuendo, as alleging the criminal offense of obtaining money by false representations, for which plaintiff should be convicted and sent to jail, or, as a civil offense which would support an action for deceit upon false representations, the facts set forth in the separate defense are insufficient as a complete defense. They do not meet the charge. The representations are promissory in their nature, hence insufficient to support either the criminal or the civil action. The justification is not as broad as the charge. [2] The demurrer to the second defense was properly overruled. The general release, on its face, was sufficient in law. If such general release was intended to be confined to the transaction in regard to which the contract (Exhibit A attached to the answer) had to do, to wit, the purchase and sale of the stock and the repurchase thereof, and is not to be extended, notwithstanding the generality of its language, to a cause of action for libel which plaintiff at the time he executed did not know he had, as claimed by the appellant, this must be shown by way of reply, or by an equitable action to reform, limit, or set it aside. It is good enough upon its face to withstand demurrer. The order appealed from should be modified by providing that the demurrer to the first separate defense should be sustained, and, as modified, affirmed, with $10 costs and disbursements to the defendant, with leave to the defendant to serve an amended answer within 20 days of the service of the order to be entered hereon, upon payment of $10 costs of motion. All concur. (160 App. Div. 832) JERMYN v. SEARING et al. (Supreme Court, Appellate Division, First Department. February 20, 1914.) 1. APPEAL AND ERROR (§ 569*)—SETTLING CASE ON APPEAL. Code Civ. Proc. § 25, provides that after a judge is out of office he may settle a case in an action tried before him while he was in office, and may be compelled to do so by the court in which the action is pending, while section 997 declares that when a party intends to appeal from a judgment rendered after a trial on an issue of fact, or to move for a new trial, he must make a case and procure the same to be settled by the judge, or, in case of the death or disability of the judge, in such manner as the court directs. After judgment in an equity case for plaintiff, the judge resigned from the bench, accepted an appointment as ambassador to a foreign court, and removed to the foreign country. Thereafter defendant appealed, and served its proposed case on appeal. Held, that as an ambassador in a foreign country was not susceptible to an order of a local court, there was a case of disability, and the case should be settled in the manner in which the court shall, by its order, direct. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 25302545; Dec. Dig. § 569.*] 2. APPEAL AND ERROR (§ 569*)-PROPOSED CASE-ORDER FOR SETTLEMENT. A motion for an order directing the settlement of a proposed case on appeal upon the disability of the judge who tried it is premature, when made before the time for the allowance of proposed amendments to the proposed case. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 25302545; Dec. Dig. § 569.*] Appeal from Special Term, New York County. Action by Joseph J. Jermyn against Frederick F. Searing, the Empire Trust Company, and others. There was a judgment for plaintiff, and Empire Trust Company appeals from an order directing the manner of settling a case on appeal. Order reversed. See, also, 139 App. Div. 933, 124 N. Y. Supp. 1118. Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes William D. Guthrie, of New York City (Thomas F. Gilroy, Jr., and Abraham Tulin, both of New York City, on the brief), for appellant. Montgomery Hare, of New York City (Effingham N. Dodge, of New York City, on the brief), for respondent. CLARKE, J. This was an equity action tried before Mr. Justice Gerard, and a judgment was entered in favor of the plaintiff on June 30, 1913. The defendant Empire Trust Company has appealed from said judgment, and served its proposed case on appeal on October 17, 1913. The time for the plaintiff to serve proposed amendments had not expired when this motion was made. After the entry of judgment Mr. Justice Gerard resigned from the bench, and accepted the appointment of American ambassador to the German Empire, and is now residing in the city of Berlin, exercising his official functions. [1] Upon this state of facts appellant made a motion for an order directing in what manner the case on appeal herein should be settled and signed. Section 25 of the Code of Civil Procedure provides: "After a judge is out of office, he may settle a case or exceptions, or make any return of proceedings, had before him while he was in office, and may be compelled so to do, by the court in which the action or special proceeding is pending." The usefulness of an order or judgment of the court depends upon the power to enforce its obedience. It is obvious that the American ambassador to Germany, while performing his duties at Berlin, cannot be "compelled" to perform an act by process of this court. Section 997 of the Code of Civil Procedure provides: "When a party intends to appeal from a judgment, rendered after a trial of an issue of fact, or to move for a new trial of such an issue, he must, except as otherwise prescribed by law, make a case, and procure the same to be settled and signed, by the judge, justice or the referee, by or before whom the action was tried, as prescribed in the general rules of practice; or, in the case of the death or disability of the judge, justice or referee, in such manner as the court directs." Upon the termination of the term of office of a judge, while his general judicial powers and jurisdiction cease eo instanti, yet, by the provisions of section 25 of the Code of Civil Procedure, supra, his judicial power, limited to the settlement of a case upon appeal, is expressly preserved. Therefore he comes within the provisions of section 997 of the Code of Civil Procedure, supra, and, in the event of disability, the case on appeal is to be settled in such manner as the court directs. When Ambassador Gerard accepted his appointment from the United States government, left the jurisdiction, and took up his abode. abroad for an indefinite period under that appointment, a case of disability contemplated by section 997 arose. Litigants may not have their substantial rights jeopardized or delayed by the voluntary action of a former justice. They are not to be compelled to follow him wherever he may be called by duty or pleasure over the known world, nor is the court to be left helpless to enforce its order. [2] We are of the opinion that the motion was prematurely made because before the proposed amendments to the proposed case on appeal were served, it was impossible to determine whether any and, if so, how serious a controversy would arise between the parties. When that situation develops, an application may be renewed to the Special Term for settlement in such manner as it may direct, either before the justice there presiding, or, if necessary, a referee may be appointed. The order appealed from is therefore reversed, without prejudice to such further motion, as indicated, as may be determined upon, and, under the circumstances, without costs to either party. All concur. WORCESTER-BROOKLYN REALTY CO. v. BAILEY. (Supreme Court, Appellate Division, Second Department. February 13, 1914.) SET-OFF AND COUNTERCLAIM (§ 8*)-EQUITABLE SET-OFF. Where a vendor who was insolvent, in order to give the land he was desiring to sell a false and fictitious value, executed a mortgage thereon without consideration, which plaintiff assumed as part of the purchase price, and after the sale the mortgage was assigned to another, plaintiff was not limited to pleading the fraud as a defense to the mortgage, but was entitled to sue to recover damages for the fraud, for the purpose of setting off the same against the mortgage, which was a cloud on his title. [Ed. Note. For other cases, see Set-Off and Counterclaim, Cent. Dig. 8 9-11; Dec. Dig. § 8.*] Appeal from Special Term, Kings County. Actions by the Worcester-Brooklyn Realty Company against Edward Bailey and against the Millbourne Realty Company. From interlocutory judgments overruling a demurrer to the amended complaint. in each action, defendant appeals. Affirmed. This action has been brought by plaintiff, the owner in fee, of a parcel of vacant land in Kings county, for the cancellation of a certain alleged second mortgage of $25,000, secured on said parcel of land. The cancellation of said mortgage is asked for upon the ground that said mortgage was made by plaintiff's grantor to one Edwin E. Bolton, without consideration, and for the purpose of giving a false, fictitious, and deceptive value to said parcel of land with intent to deceive and defraud plaintiff in the purchase of same, and represented a part of the purchase price of said parcel of land, at the time of the sale and conveyance to plaintiff of said parcel of land by said grantor, subject to said mortgage, and which said mortgage has since been assigned, without consideration and subject to plaintiff's equities, by said Bolton to the defendant Millbourne Realty Company, which company is now the holder thereof; that said mortgage was fraudulent in its inception; was made without consideration; is a cloud upon plaintiff's title to said parcel of land; is void and unenforceable owing to the fraud and consequent damage perpetrated on plaintiff by said grantor in the sale to plaintiff of said parcel of land, which said damage, amounting to upwards of $35,000, plaintiff, by counterclaim, set-off, and recoupment, affirmatively sets off against the whole of said mortgage, plaintiff's said grantor being insolvent so that a money judgment in favor of plaintiff and against said grantor for the amount of said damage would be worthless, and that said mortgage should be delivered up and surrendered to plaintiff for cancellation, and be canceled of record. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |