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Fairbanks a. Tregent.

dent party who wishes to be examined, need not for that purpose attend in person.

It is said, however, that a subsequent clause of the section in question overthrows this inference. That clause, on a careful perusal, will be found to be confined to the case of a party receiving a notice that his adversary intends to be examined, and not to apply to the case of a party giving a notice that he himself means to be a witness. It provides that on receiving such notice of his adversary's intention to be examined—whether viva voce or on commission, seems immaterial-he may, if a nonresident, have his own examination taken by commission. But it is asked, and very pertinently, if it was intended by the first clause that a non-resident might, in any event, be examined on commission, why insert another clause that he might do so in the particular event of his adversary's being examined? The provision, in that view of the section, would be entirely superfluous. We are bound, however, to give it some effect, if practicable. The only way of doing so is to regard it as limiting still further the generality of the previous language. And so interpreting it, the result would be-and certainly it is not an objectionable result-that if a party wishes to be a witness in his own behalf, whether he reside within or without the jurisdiction, he shall attend in person, and submit to an examination! in the face of the court, unless the opposite party has seen fit, by, his own act, to force him to be a witness; in which case, if a nonresident, he need not make a distant journey, but may have his testimony taken on written interrogatories and cross-interrogatories, to be settled and transmitted to him.

This interpretation gives effect to all parts of the section, and merely requires the insertion in the first clause of the words "on the trial," which, it is obvious, were in the mind of the Legislature, and are necessarily to be implied, in order to make the whole provision harmonious with itself, and reasonable in its operation. The first clause of the section, in that view, would. read as follows: "A party to an action or proceeding may be examined (on the trial) as a witness in his own behalf, the same as any other witness!"

Order appealed from reversed, without costs.

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Minor a. Buckingham.

MINOR a. BUCKINGHAM.

Supreme Court, First District; Special Term, February, 1859. MOTION TO DISSOLVE INJUNCTION.-AFFIDAVIT.

An injunction was granted on the complaint alone, and the defendant moved on his answer to dissolve it. The answer was verified, not by a party, but by the attorney, by an affidavit attached to the answer, in which he stated that he was acquainted with each and every of the matters and things set forth and alleged in the answer, and that all the matters set forth in the answer were true of his own personal knowledge.

Held, that this was not only a verification, but should be deemed also an affidavit within the provisions of section 226 of the Code, and that the plaintiff was entitled to oppose the motion by additional affidavits.

Motion to dissolve an injunction.

The facts are stated in the opinion.

INGRAHAM, J.—The defendants move to dissolve an injunction: the injunction was granted solely upon the complaint: the defendants have filed their answer, and now move to dissolve the injunction.

If the motion was made solely upon the complaint and answer verified in the usual manner, the plaintiff could not read affidavits in opposition to the motion. This was expressly held by the general term of this district, in Blatchford a. The New York & New Haven Railroad Company (7 Abbotts' Pr. R., 322), and in that decision I concurred.

In this case, however, the answers set up new matter as a defence, and the answers are not verified by the party, but by the attorney, who, in his affidavit attached to the answers, states that he is personally acquainted with each and every of the matters and things set forth and alleged in the answer, and that all the matters set forth in the answer are true of his own personal knowledge.

The answer, with the usual verification, is received only as denying the equities alleged in the complaint; and for that rea

O'Shea a. Kirker.

son the plaintiff is not permitted to contradict the allegations contained in it.

In the case referred to, it is evident that the decision was made in reference to an answer verified in the usual manner. But here we have an affidavit made by the attorney, that the matters stated in the answer are within his personal knowledge, and are true. This is not only a verification of the answer as required by the Code, but it is also an affidavit containing a positive averment of the truth of all the facts contained in the answer, as fully as if made in a separate affidavit. In such a case I think this is to be regarded as an affidavit made by the attorney, as much as if he had repeated in a separate paper the matter set up in the answer. The motion is therefore made

upon affidavit with the answer, and brings the case within the provisions of section 226 of the Code, which allows the plaintiff to oppose the motion by affidavits in addition to that on which the injunction was granted.

The plaintiff may, therefore, oppose this motion on affidavits; and for that purpose the same may be re-heard on notice of two days, to be given by either party.

O'SHEA a. KIRKER.

New York Superior Court; General Term, January, 1859.

JOINT LIABILITY.-JUDGMENT.-REFERENCE.-APPEAL.

When several persons are united as defendants in an an action for a wrong, and it is alleged and proved that all jointly did the wrong complained of, the damages cannot be severed, so as to be apportioned according to their respective degrees of guilt; but the plaintiff is entitled to a judgment against all, for the amount of damage which he proves he has sustained.

Where the jury, the court, or the referee sever the damages, the plaintiff may enter judgment against all the defendants for the largest amount found against any of them, and the entry of a remittitur as to the other amounts is a matter of form. The entry of the one judgment for the larger amount is in itself an election to remit the others; and the judgment should not be reversed because there is no formal remittitur.

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O'Shea a. Kirker.

Where, on appeal from a judgment entered on the report of a referee, no attempt is made by either party to question the accuracy of the referee's conclusions of fact, the court, no matter which party may have taken the appeal, should direct such a judgment as the law pronounces upon the facts thus found. Two defendants were sued together as having jointly committed a tort, and on the trial it was proved, by competent and sufficient evidence, that they jointly did the wrong, and that the plaintiff had been damaged to the amount of $600. The referee before whom the cause was tried, severed the damages, assessing them at $150 against one defendant, and $600 against the other. On his report, the plaintiff entered judgment against both for $600, without any formal remittitur as to the lesser amount.

Held, on appeal from the judgment, that the severing of the damages was rightly disregarded in entering the judgment, and that the judgment so entered was correct, and should be affirmed, with leave to the plaintiff to modify its form (if so advised), so as to state that he elected to remit the lesser sum, and take judgment against both for the larger sum.

Appeal from a judgment entered on the report of a referee.

The action was brought by P. O'Shea against two defendants, J. B. Kirker and J. G. Shea, for libel. The cause was referred, and the referee found, as matters of fact on the issues tried before him

That the defendant John G. Shea wrote and caused to be published the alleged libellous matter set forth in the complaint; that the said John G. Shea was, at the time of the publication mentioned, in the employment of the defendant Kirker, who was then carrying on business in the city of New York, as a bookseller, under the name of Edward Dunigan & Brother; that the said Kirker saw the circular to which said libellous matter was attached after it was printed, and to which circular the name of "Edward Dunigan & Brother" was affixed, and knew of its being issued and circulated, and the same was issued and circulated from the business establishment of said Kirker. He also found, "as matter of law, that the defendant Kirker did publish the alleged libellous matter."

After further stating the facts found on the question of justifi cation, he found that the libel was wantonly and unjustifiably made and published by the defendants, and concluded his report as follows:

"As a conclusion of law, on the facts of the case, the referee finds that the plaintiff is entitled to recover damages against the defendants, for an unjustified libel.

O'Shea a. Kirker.

"The referee severs the damages, as the defendant Kirker appears to have taken little part in the libel, and is chiefly censurable for allowing the charges against the plaintiff to go forth attached to a circular, under the name of his firm, while the defendant John G. Shea, wrote and personally caused to be circulated, the alleged libellous matter.

"The referee finds that the plaintiff has sustained damages from the defendant Kirker, to the amount of one hundred and fifty dollars, and damages from the defendant John G. Shea, to the amount of six hundred dollars.

"The referee, therefore, decides and reports that the plaintiff, Patrick O'Shea, do recover judgment against the defendant James B. Kirker, for one hundred and fifty dollars, and that he do recover judgment against the defendant John G. Shea, for six hundred dollars."

Upon this report the plaintiff entered judgment against both defendants for $600.

The defendants now appealed.

James T. Brady, for the appellants.
Wm. Fullerton, for the respondent.

BY THE COURT.*-BOSWORTH, Ch. J.-The learned referee before whom this action was tried, and by whom it was decided, found as a fact, "that the alleged libellous matter was wantonly and unjustifiably made and published by the defendants," and held," as a conclusion of law on the facts of the case," that the plaintiff is entitled to recover damages against the defendants for an unjustifiable libel.

He further states in his report, that he severs "the damages, as the defendant Kirker appears to have taken little part in the libel, and is chiefly censurable for allowing the charge against the plaintiff to go forth attached to a circular under the name of his firm, while the defendant John G. Shea wrote and personally caused to be circulated this libellous matter."

He further found, that Kirker damaged the plaintiff to the amount of $150, and Shea to the amount of $600, and decided

* Present, BosWORTH, Ch. J., HOFFMAN and MONCRIEF, JJ.

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