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the standpoint both of the courts and the litigants, that the entire contention of the parties should be asserted and disposed of in a single action, where all of the evidence relating to claim and counterclaim may be fully presented. Under the circumstances here disclosed, if plaintiff had originally begun two separate actions, one for liquidated and the other for unliquidated damages, since both were for breaches of the same contract and must be sustained by precisely the same evidence, except as to the amount of damages, these actions would have been properly consolidated. Code of Civil Procedure, § 817; Dunning v. Bank of Auburn, 19 Wend. 23; Bendernagle v. Cocks, 19 Wend. 207; Wilkinson v. Johnson, 4 Hill, 46; Goepel v. Robinson Machine Co., 118 App. Div. 160, 103 N. Y. Supp. 5; Curley v. F. & M. Schaefer Brewing Co., 35 Misc. Rep. 131, 71 N. Y. Supp. 318; Reformed Prot. Dutch Church v. Brown, 54 Barb. 191; Jex v. Jacob, 19 Hun, 105. In Miller v. Baillard, 124 App. Div. 555, 108 N. Y. Supp. 973, this court said:

"The purpose of this statute was to prevent a plaintiff from harassing a defendant by prosecuting different suits for causes of action which could be joined.”

Except to unnecessarily harass the defendants, it is difficult to see what advantage would accrue to the plaintiff by prosecuting her actions separately. In Dunning v. Bank of Auburn, supra, the court said:

"When the defendant moves to consolidate two or more actions between the same parties, he should show that the causes of action are such as may be joined in the same declaration, and that the questions which will arise in both of the actions are substantially the same. The affidavit should state, either that no defense is intended, or that the defense will be substantially the same in both. If these matters are not controverted by the plaintiff, and it does not appear that he will suffer any great delay, or other prejudice, the motion will be granted."

Each of the conditions there referred to exist in this case. Plaintiff should not be permitted to do by indirection what she may not do directly. She cannot be allowed to sever two causes of action contained in one complaint, which, if made originally the subject of two actions, would have been consolidated, upon proper application therefor.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.

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DONOVAN V, DONOVAN. (Supreme Court, Appellate Division, First Department. November 8, 1912.) DIVORCE ($ 269*)- ALIMONY-DECREE-ENFORCEMENT—CONTEMPT-DEMAND.

A demand is necessary to lay a foundation for proceedings to punish & defendant for contempt in failing to pay a decree rendered against him directing the payment of alimony,

[Ed. Note.--For other cases, see Divorce, Cent. Dig. $$ 756-763; Dec.

Dig. $ 209.*]
For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexos

Appeal from Special Term, New York County.

Action by Bridget Donovan against Edward F. Donovan. From an order adjudging defendant in contempt for failing to pay a decree directing the payment of alimony, he appeals. Modified and affirmed.

Argued before INGRAHAM, P. J., and CLARKE, SCOTT, MILLER, and DOWLING, JJ.

Jacob Landy, of New York City, for appellant.
Milton M. Goldsmith, of New York City, for respondent.

PER CURIAM. The only evidence as to the demand of any specific sum is the statement of the plaintiff that on May 15, 1912, she personally demanded payment of the sum of $330 then due. As a demand is necessary to lay a foundation for a proceeding to punish for contempt, the order appealed from must be modified, by inserting the sum of $330, in place of $616, wherever the latter appears, and, as modified, is affirmed, with $10 costs and disbursements to the respondent.

EVANS v. WHITE. (Supreme Court, Appellate Division, First Department. November 1, 1912.) JUDGMENT (8 143*)—DEFAULT SETTING ASIDE.

Where, when the trial of a cause was reached, the defendant's counsel was actually engaged in the trial of another action, which had commenced the preceding afternoon, and no opportunity was afforded the defendant to procure other trial counsel, and his request to have the case held pending the completion of his counsel's engagement was denied, a default entered must be opened, and the judgment vacated,

[Ed. Note.—For other cases, see Judgment, Cent. Dig. 88 269, 270, 272– 291; Dec. Dig. 8 143.*] Appeal from Special Term, New York County.

Action by John H. Evans against John White. From an order denying a motion to open a default and set aside a judgment, defendant appeals. Reversed, and motion granted.

Argued before INGRAHAM, P. J., and CLARKE, SCOTT, MILLER, and DOWLING, JJ.

John V. Bouvier, Jr., of New York City, for appellant. William H. Griffin, of New York City, for respondent. PER CURIAM. It appears without dispute that, when the trial of this case was reached on the morning of June 18th, the counsel for defendant was actually engaged in the trial of another action, which had been commenced on the preceding afternoon. No opportunity was afforded the defendant to procure other trial counsel, nor should he have assumed, before the morning of the 18th, that his request to have the case held pending the completion of his trial counsel's engagement would have been denied. It is obvious that the default taken under these conditions must be opened, and the judgment taken thereunder vacated and set aside. *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

137 N.Y.S.-69

The order appealed from is therefore reversed, with $10 costs and disbursements, and the motion granted, the cause to be restored to the preferred calendar of the court for trial as soon as it can be reached.

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HAWKINS v. KUHNE.

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(Supreme Court, Appellate Division, Second Department. November 1, 1912.) 1. ASSAULT AND BATTERY (8 18*)_CIVIL LIABILITY-PERSONS LIABLE.

The order of an acting police captain to "take out the prisoners," meaning that those charged with felony be photographed and measured, rendered him liable for damages for the assault, that is, the wrongful photographing and measuring, since every person concerned in the commission of a tort, or who orders another to commit it, is a principal, and liable therefor.

[Ed. Note. For other cases, see Assault and Battery, Cent. Dig. $$

17, 18; Dec. Dig. $ 18.*] 2. FALSE IMPRISONMENT (8 15*)--EXTRADITION-CABLEGRAM-ARREST WITH

OUT WARRANT.

Where plaintiff, who was charged with embezzlement in a cablegram from Porto Rico · which requested that he be held pending extradition, was released by a magistrate on the ground that the cablegram was insufficient to justify issuing a warrant, his rearrest by the defendant as acting captain of police rendered such officer liable for false imprisonment, although he did it under the direction of the district attorney.

[Ed. Note.--For other cases, see False Imprisonment, Cent. Dig. 88 567; Dec. Dig. $ 15.*] Appeal from Trial Term, Kings County.

Action by Paul D. Hawkins against August Kuhne. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before JENKS, P. J., and BURR, THOMAS, WOODWARD, and RICH, JJ.

James D. Bell, of Brooklyn (Jesse W. Johnson, of Brooklyn, on the brief), for appellant,

William Henry Corbitt, of New York City (Arthur F. Gotthold, of New York City, and Ernest J. Ellenwood, of Brooklyn, on the brief), for respondent.

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WOODWARD, J. This action was brought to recover damages upon a complaint containing two counts, one for an assault and the other for false imprisonment. The learned trial court held that the plaintiff was entitled to recover, and left it to the jury to determine the amount of the recovery, under appropriate instructions that the damages were to be compensatory only, including expenses, not exceeding a certain sum. The jury returned a verdict for the plaintiff in the sum of $1,788.09, and the defendant appeals from the judgment on the verdict and from the order denying his motion for a new trial.

[1] Such ruling is equivalent to a direction of verdict for the plain. tiff for a fair compensation, to be determined by the jury, and may be objectionable in any case on at least one of two grounds: First, that the evidence presents a disputed question of fact for the determination •For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep's Indexes

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of the jury; or, second, if there is no such question, still as matter of law the plaintiff would not be entitled to recover.

The plaintiff had been in the employ of a light and power company in Porto Rico some two years prior to April, 1908. He was, during the latter months of that time, general manager for the company at a salary of $125 a month, payable one half at the middle and the other half at the end of the month. Payments thereof had been made from time to time by checks on the company, drawn by the plaintiff as such manager, and with the assent of its president and vice president. On the 21st or 22d of that month, the plaintiff drew and cashed such check for the sum of $62.50, salary for the last half of the month, and went by train to San Juan, 60 miles distant, from which place he wrote the company that he had left their employ, and sailed for New York on the same or the following day. His employment with the company was to begin on his leaving the United States and continue until his return thereto.

The Governor of Porto Rico cabled the district attorney of New York, requesting the arrest and detention of the plaintiff pending the arrival of rendition papers upon a charge of embezzlement. The cablegram came to the hands of the defendant, a member of the New York police force, and he caused the plaintiff to be arrested on his arrival here during the night of April 27, 1908, and locked up in a police station until the next morning. There is no complaint, however, because of this arrest or detention. On the following morning, April 28th, the plaintiff was taken before the defendant, then acting police captain, at police headquarters, as were also other persons under arrest for other causes.

The defendant, having questioned such prisoners concerning the charges against them, including the plaintiff (who declined to make any explanation of the alleged embezzlement), ordered the police officers in charge of the prisoners to “take them out,” meaning thereby that those accused of minor offenses should be taken before a magistrate, and that those accused of felonies should be photographed and measured, as was the custom and rule of the police department. The plaintiff was accordingly taken into another room, apart from the defendant, where he was photographed and measured, and prints of his thumbs and fingers were taken for use and preservation in the "Rogues' Gallery,” pursuant to that rule or custom, and against the plaintiff's protest and claim, without avail, that he should be taken before a court and allowed to communicate with counsel.

This order of the defendant, together with the taking of such photograph, measurements, and imprints, constitute the first cause of action; and there is no dispute whatever as to the facts out of which the cause arises. The defendant himself testified that he was the superior officer in charge on that occasion. And when asked what he meant when he said, "Take them (the prisoners] out,” he answered:

"Those charged with misdemeanor to be taken to court, and those charged with felony to be taken upstairs to be measured according to rule.”

Again :

“After the inspection was completed, I told the detectives in charge of these prisoners to take them out. By that I meant that those who had been

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accused of minor offenses, misdemeanors, were to be taken before the magistrate, and those who had been accused of felony or offenses grarer than that of misdemeanor were to be taken out and photographed and measured. That is what my order meant."

It is also in evidence and uncontradicted that the defendant subsequently said:

"I am the man who is responsible. I took them” (the photographs and measurements), "and I am going to give them now to you" (the witness).

The testimony, therefore, presents no disputed question of fact for the determination of a jury in respect to the first cause of action. Counsel for appellant say in their brief:

"We do not question that the taking of the plaintiff's picture before conviction was an illegal act.

We do not question that an assault was committed on the plaintiff.”

This is in accord with a thorough examination and discussion of the law in the recent case of People ex rel. Gow v. Bingham, 57 Misc. Rep. 66, 107 N. Y. Supp. 1011. But counsel say that the defendant did not commit the assault, or, at least, the question of whether he did or not was for the jury, not for the court, to determine. This position is untenable. There is not a word of dispute as to the part the defendant took or acted in the premises, nor even as to his intent in doing what he did do. He ordered that the plaintiff be "taken out," meaning thereby, and knowing in fact, that the conceded assault should and would be committed, or, which is the same thing, that the photograph and measurements should be taken. “That," he says, “is what my order meant.

I am the man who is responsible." Not only so; it is apparent that the person or persons to whom the order was given understood and executed it as the defendant intended they should.

With the fact of the assault itself, and the acts and intent of the defendant himself, in relation thereto, alt admitted, nothing was left for determination but a pure question of law for the court—the defendant's legal relation to or liability for that wrong. An assault is a tort, and it is a fundamental principle of law that every person concerned in the commission of a tort, or who, whether present or absent, directly or indirectly counsels, induces, procures, commands, or orders another to commit it, is a principal and liable therefor.

In Green v. Kennedy, 46 Barb. 16, the plaintiff was arrested by a police officer without a warrant and taken before Superintendent Kennedy, the defendant, who ordered that the plaintiff be locked up, which was done, and he sued for the assault and false imprisonment. The defendant moved on the trial to dismiss the complaint, so far as the alleged assault and battery were concerned, on the ground that the evidence failed to show that he authorized, ratified, or was cognizant of or in any way connected with it. The motion was denied. The court, affirming a judgment for the plaintiff, said in part:

"The defendant, by directing the imprisonment of the plaintiff, was guilty of it. When he told the officer who made the arrest to take the plaintiff back and lock him up, in contemplation of law he did the act which the officer did who followed the direction. He is not permitted to show that the

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