Schell v. Erie R. R. Co.

one court; and when either judge acts judicially the court acts. In that court Mr. Schell brought his suit against the Erie Railway Company and others, and an injunction which should prevent his appearing at the bar of the only tribunal to which he could apply for relief, would be, as it was aptly termed by the distinguished counsel for the respondents, "a monster in jurisprudence." Everybody interested could, on motion, have been made a party to the suit made by Mr. Schell, and all the relief that any any one was entitled to could have thus been obtained.

The theory that by bringing another suit, and simply laying the venue in a different county, the court could be divided up so as to enable one branch of it to enjoin suitors from proceeding in another branch of it, is entirely inconsistent with the existence of but one court which the constitution created. That court, in the very nature of things, has no power to enjoin a suitor in it from asking to be heard, and every attempt to do so is simply and only void.

The idea that a cause by such manœuvres as have been resorted to here, can be withdrawn from one judge of this court and taken possession of by another; that thus one judge of the same and no other power can practically prevent his associate from exercising his judicial functions; that thus a case may be taken from judge to judge whenever one of the parties fears that an unfavorable decision is about to be rendered by the judge who up to that time had sat in the cause; and that thus a decision of a suit may be constantly, indefinitely postponed at the will of one of the litigants, only deserves to be noticed as being a curiosity in legal tactics-a remarkable exhibition of inventive genius and fertility of expedients to embarrass a suit, which this extraordinarily-conducted litigation has developed.

For these, among other reasons, I think the injunction of Mr. Justice CLERKE absolutely void, and no impediment to the order of Mr. Justice BARNARD.

I have not overlooked the remark of the eminent senior counsel for the appellants, that "the due order of judicial

Schell v. Erie R. R. Co.

proceedings is involved." I really think it is. No one who reviews the proceedings in this litigation, can fail to see that unless the view I have taken of the question be sound, almost endless litigation and inextricable confusion may be created in nearly every case of any importance; and above all, that if judges of the same court, instead of leaving ach case to its "due order of proceedings," shall countenance efforts to circumvent and defeat the orders and decisions of each other, the court itself will soon justly forfeit the confidence of the public, fall into disrepute, and its usefulness be seriously impaired, if not wholly destroyed. Such a practice as that disclosed by this litigation, of judges sanctioning attempts to counteract the orders of each other in the progress of a suit, I confess, is new and shocking to me. It had no existence in the practice of the court of which I was recently a member, where the judges are not only gentlemen, having confidence in each othernever ascribing improper motives in judicial action to either of their associates, and never permitting any one to impute such to either before the other-but are scrupulously careful that the conduct of every legal proceeding shall be "due and orderly," and I trust that we have seen the last, in this high tribunal, of such practice as this case has exhibited.

No apprehension, real or fancied, that any judge is about either innocently or willfully, to do a wrong, can palliate, much less justify it. For any such wrong there are abundant means of redress, and to those, unaided by judges in such artifices as have been attempted in these proceedings, every body should be left to resort.

The order appealed from should be affirmed.

BARNARD, P. J., concurred.

Order affirmed.

Haack v. Fearing.

HAACK against FEARING.

New York Superior Court; General Term, October, 1867. PARTIES.-WHEN MASTER MAY BE SUED FOR ACT OF

SERVANT.

The owner of a pleasure yacht left it in charge of a sailing-master, during his own absence on shore. There were on board the yacht a gun and ammunition, but the owner had given general orders that the gun should not be fired in his absence. While thus left in charge of the yacht, the sailingmaster ordered the gun to be fired; and this was done with such negligence as to cause an injury to the plaintiff, for which he sued the owner of the yacht.-Held, that the action was not maintainable, and that a ruling of the court on the trial dismissing the complaint, was proper. The rule that the master is liable for the servant's mismanagement of property intrusted to him by the master was not applicable, because it was no part of the sailing-master's duty to use or discharge the gun, and it was not intrusted to him to be used or discharged in any manner.

Exceptions ordered to be heard at general term.

This action was brought by Peter Haack against Henry S. Fearing, to recover damages for a personal injury sustained under circumstances which are detailed in the opinions given below.

On the trial the justice presiding dismissed the complaint; and from the judgment thereon the plaintiff now appeals.

Mr. Coudert, for the appellant.

Mr. Cadwalader, for the respondent.

BY THE COURT.-ROBERTSON, Ch. J.-This was an action for damages, for a hurt received by the plaintiff, in July, 1866, from the wadding of a cannon negligently discharged on board of a vessel or pleasure yacht (The Ram

Haack v. Fearing.

bler) of the defendant, by one of its crew during the absence of the defendant. The signal of the New York Yacht Club was generally used on board of such vessel, which indicated that she belonged to the squadron of that body, but there was no other evidence offered on the trial, of its being so. On the occasion in question the gun was discharged about two or three o'clock in the afternoon of a day in July, 1866, while the vessel in question was being towed by a steamtug to her anchorage near Hoboken, where other yachts were lying. The plaintiff received the injury while on board of a ferryboat, passing between the yacht in question and the shore.

A witness (Smith) testified on the trial that he has not often seen yachts come to their anchorage without firing a salute. It was usual for them to do so. It was customary, but not always done. But he finally said that he knew nothing as to the custom in firing salutes. Some did it and some did not. Another witness (Morrill) only knew of such a custom up to 1859. The vice-commodore of such club squadron (Major), when the accident happened, testified that there was no rule of that club which had any bearing as to firing salutes, and no universal custom by any means of firing guns by yachts while approaching their anchorage; that it was a thing done by some persons and not by others; that yachts sometimes saluted on meeting and sometimes not. He also testified that the firing of salutes did "not come under the scope of the general duty of a sailing master;" that it did "not come under his supervision unless he had been particularly requested so to do;" there was no duty of his as to firing salutes, except to obey the orders of his superior officer. A rule of the yacht club (No. 14), for setting colors in the morning and lowering them at sunset, when two or more yachts sailed in company or were at anchor in sight of each other, was the only one as to firing guns. It prescribed that in such case the time for so hoisting or lowering colors should be taken from the senior officer in command, and that no guns should "be fired in setting or hauling down the colors, except by the yacht giving the time." This was all the

Haack v. Fearing.

evidence on the trial as to the duty or any custom of firing guns on anchoring or meeting another yacht, or on any other occasion.

The mate of the yacht in question (Hoffman), who was examined as a witness for the plaintiff on the trial, testified that when the gun was fired he was getting the anchor ready, to drop it. That two years previously (being shortly after the yacht was built), because a man had been hurt by discharging such gun, the defendant gave general strict orders to all the crew not to fire any guns unless he was on board; and again in the previous summer at New London, such orders were known to all on board of the boat. They had fired such a gun a dozen times when approaching such anchorage while the defendant was on board; they sometimes fired it and sometimes not; they fired it off once or twice without the knowledge of the defendant. He was not on board at the time of the accident in question. This witness testified that he supposed the gun was fired to salute the yacht Wave, and not the tug-boat which blew its whistle; and that they had orders not to use any wadding in firing guns. The plaintiff was injured by the wadding.

On the trial the defendant's counsel moved to dismiss the complaint, which motion was granted; and the exceptions taken thereto, and those taken on the trial, were ordered to be heard, in the first instance, at general term.

I have not been able to find any evidence in this case that the gun, the discharge of which caused the injury to the plaintiff, was fired in the course of any employment or duty of the master of the vessel in question. It was not necessary in the course of its navigation, or as a matter of duty to other vessels, or in compliance with any custom governing vessels in general in New York harbor, or yachts belonging to the New York Yacht Club Squadron, if the vessel in question belonged to that squadron, or was bound by the rules of that club, of which there does not seem to have been sufficient evidence. So that the ground of the defendant's liabilty is reduced to the question, whether,