A bill of particulars was furnished by the plaintiffs, under an order of the court; and by this bill the plaintiffs specified eight items of damage which consisted of loss of interest on the value of his property, loss of occupancy of the building, damage to the building, occasioned by the defendant's failure to inclose it; and increased cost of completing it. These items of damage did not constitute an account. It has repeatedly been held that when there is no account between the parties, in the ordinary acceptation of the term, the cause cannot be referred, although there may be many items of damage. Camp v. Ingersoll, 86 N. Y. 433. This rule has been applied in actions on policies of insurance where there are many items of loss. It is contended that the counterclaim set up in the answer, of which a bill of particulars was also ordered and furnished, will require the examination of a long account. Even if this should be assumed, it would not make the action referable.

"The character of the action is determined by the complaint. The answer cannot change it. If the action is a referable one the answer cannot make it nonreferable;" Per Church, Ch. J., in Welsh v. Darragh, 52 N. Y. 590; and on the same principle, if the action is nonreferable a counterclaim set up in the answer cannot make it so, as was held by this court in Townsend v. Hendricks, 40 How. Pr. 143.

The defendant has a constitutional right to trial by jury on the issues presented by the complaint and answer, and he does not waive that right by setting up, in addition to his defenses, a counterclaim. If the plaintiffs prevail in the action, it may never become necessary to try the counterclaim. Should the counterclaim ever require examination a reference can be ordered as to it after trial of the issues. Townsend v. Hendricks, supra, p. 164. The plaintiffs rely upon the fact that the motion for a reference was made upon an affidavit of one of the plaintiffs' attorneys, which states that the trial of the issues will necessarily involve a long account, and that there was no opposing affidavit. But the motion was also founded upon the pleadings and the several bills of particulars, and they are all now before the court. From an examination of them the court can judge as well as the attorney whether any account will be involved in the trial of the issues; and no opposing affidavit is necessary to enlighten us on that point.

The order should be reversed and motion denied, with costs in both courts.

All concur.

Theodore BRINCKERHOFF et al., Appts.,

V.

Henry BOSTWICK et al., Respts. An action by a stockholder of a bank in behalf of all others similarly situated, against directors of the bank, to call them to account as trustees, held to be an equitable action to enforce a common-law, as distinguished from a statutory, liability, and hence triable by the court, or if issues properly framed are tried by a jury, they are to

be reviewed by the court as in equitable actions, although the ground of the liability of the defendants is negligence and fraud.

(Decided May 13, 1887.)

APPEAL by plaintiffs from an order of the Supreme Court at General Term in the Second Department, reversing an order of the Dutchess Circuit granting plaintiffs' motion to strike the cause from the circuit calendar, to be tried as an equity action by the court without a jury. Reversed.

Reported below, 43 Hun, 458.

This action was commenced January 10, 1880, by Theodore Brinckerhoff, one of the stockholders of the National Bank of Fishkill, in behalf of himself and the other stockholders, against the trustees of the bank, to call them to account as trustees. The bank and its receiver, who was also one of the trustees, having neglected and refused to prosecute the trustees, were also joined as defendants.

A demurrer to the complaint interposed by defendants was sustained at special term and the judgment of the special term was affirmed on appeal to the general term; see 23 Hun, 237; but on appeal to this court such judgments were reversed and the demurrer overruled. See 88 N. Y. 52.

The defendants by writ of error, then removed the action into the United States Supreme Court, which court dismissed the writ and remanded the cause.

See 106 U. S. 3 (Bk. 27, L. ed. 73).

The cause came on for trial March 24, 1884, when the plaintiffs were nonsuited and the complaint dismissed upon the ground that the cause of action was barred by the three years' limitation of the Code, § 394.

From the judgment of dismissal the plaintiffs appealed to the general term, where the same was affirmed.

On the cause being remitted to the supreme court, plaintiffs moved for an order appointing a referee. The special term denied the motion, and the plaintiffs appealed to the general term, where the order of the special term was affirmed. Defendants then placed the cause on the Dutchess Circuit Calender for the December Term, 1885, and on the same being moved for trial, plaintiffs objected and moved that the cause be stricken from the calendar to be tried as an

equity actior by the court without a jury. This motion was granted, with leave to defendants to apply for an order framing issues as to the alleged misconduct, to be tried by a jury. From the order granting the motion, defendants appealed to this court at general term, where the order was reversed and plaintiffs ap pealed to this court.

The facts appear from the opinion.

Mr. O. D. M. Baker, for appellants: The legal relation between the directors and stockholders of the bank is that of trustees and beneficiaries.

Kane v. Bloodgood, 7 Johns. Ch. 129; Angell & Ames, Corp. §§ 312-314; Robinson v. Smith, 3 Paige, 222; Cumberland Coal Co. v. Sherman, 30 Barb. 571; Butts v. Wood, 37 N. Y. 318; Heath v. Erie R. R. Co. 8 Blatchf. 347; Perry, Trusts, 207; Jackson v. Ludeling, 21 Wall. 616 (88 U. S. bk. 22, L. ed. 492); Casserly v. Manners, 9 Hun, 695; Hun v. Cary, 82 N. Y. 65; 1 Morawetz, Corp. § 237.

It was so adjudicated in this action, when here before.

Brinckerhoff v. Bostwick, 88 N. Y. 52; 99 N. Y. 185.

The directors of a corporation are liable to the stockholders for losses resulting from their negligence or misconduct.

1 Potter, Corp. § 324.

The action is equitable in form and was brought against the directors of the bank, in their character as trustees for the stockholders, to obtain from them an account of their dealings with and disposition of the corporate funds and property intrusted to their management, and to compel them to make good the losses resulting from their alleged negligence and breaches of trust.

The burden of the case is and will be with the defendants, until they have accounted and given evidence tending to excuse the conceded losses resulting from their management.

Marvin v. Brooks, 94 N. Y. 71.

No constitutional or other right to a trial by jury exists in this case.

I. Before the Code this cause would have stood upon the equity side of the court, and would have been heard and disposed of according to the practice of the court of chancery.

"The trial by jury in all cases in which it has been heretofore used, shall be inviolate forever."

Under chapter 325, Laws of 1825, "To prevent fraudulent bankruptcies by incorporated companies, to facilitate proceedings against them, and for other purposes," it was held that the jurisdiction of the court of chancery had thereby been so extended as to enable that court to entertain a bill against a corporation for a misuse of its franchise.

Atty-Gen v. Bank of Chemung, 1 Hopkins, Ch. 673; Atty-Gen. v. Bank of Columbia, 1 Paige, 511; Verplanck v. Mercantile Ins. Co. 2 Paige, 438, 451.

In 1832 came the revision of the statutes, with this provision in article second, title four, chapter eight, part three, viz.:

"

Sec. 33. The chancellor shall have jurisdiction over directors, managers and other trustees and officers of corporations:

1. "To compel them to account for their official conduct, in the management and disposition of the funds and property committed to their charge;

2. "To decree and compel payment by them to the corporation whom they represent and to its creditors, of all sums of money, and of the value of all property which they may have acquired to themselves or transferred to others, or may have lost or wasted, by any violation of their duties as such directors."

Robinson v. Smith, 3 Paige, 222; Cunningham v. Pell, 5 Paige, 607.

This procedure and these provisions of the statutes were in force when the Constitution of 1848 was adopted.

This is not one of the cases in which trial by jury had then "been heretofore used.'

Wynehamer v. People, 13 N. Y. 427; Re Em

4 N. Y. Colonial MSS. 28.

The first Constitution of the State, adopted April 20, 1777, did not create or declare any judicial system, but recognized and continued, with other courts, the court of chancery and its jurisdiction as existing April 19, 1775.

See SS XXIV, XXV, XXVII, XXXII. The right to trial by jury in such cases as this plainly did not exist when the first Constitution went into effect, and the provision therein, "XLI. That trial by jury in all cases in which it hath heretofore been used in the Colony of New York shall be established and remain inviolate forever," had no application.

From March, 1814, cases of this character have always been prosecuted on the equity side.

Brumly v. Westchester Co. Mfg. Soc. 1 Johns. Ch. 366; Atty-Gen. v. Utica Ins. Co. 2 Johns. Ch. 371; Ogden v. Kip, 6 Johns. Ch. 160. Article VII, § 2 of the Constitution of 1822 provided:

Kimbark, 39 Barb: 108-120; S. C. 27 N. Y. 147; Sheppard v. Steele, 43 N. Y. 53-57; Van Marter v. Hotchkiss, 4 Abb. App. Dec. 485.

The powers of the chancellor in respect to officers of corporations, specified in subdivision 2, section 33 of the Revised Statutes, became vested and remain in the supreme court under the Constitution of 1848, and the Judiciary Act, chapter 280, Laws 1847, § 16.

II. By the Code the method of trial is made to depend upon the character of the demand for judgment, and the right to trial by jury, aside from specific cases of which this is not one, is expressly limited to "An action where the complaint demands judgment for a sum of money only."

§ 968.

17, 33; Laws 1788, chap. 4; Rev. 1832; 2 Edmond's Stat. 400, §§ 49-53; Kelly v. Kelly, 3 Barb. 419; Laws 1880, chap. 245, § 3, subds. 1-2.

Mr. Milton A. Fowler, for respondents: There is but one question before the court: Is this an action on contract or in tort ?

If in tort the defendants claim that they have a right to a trial by a jury.

This is simply an action to recover damages from the defendants on account of their alleged fraud, negligence, deceit and dishonesty, while holding office as directors of the Fishkill National Bank. To maintain the action the plaintiffs must first prove such fraud, negligence, deceit and dishonesty.

If the plaintiffs recover judgment, the surviving directors who are made defendants herein are liable to arrest under the execution. And this right to arrest exists without the necessity of obtaining an order of arrest pendente lite, for the reason that it is an action "to recover damages for * * * misconduct or neglect in office."

Code, § 549, subd. 2.

This therefore is clearly an action for tort. In whatever court the action must be brought, the liability, if any exists, is a common-law liability; and the rules relating to common-law actions apply to the trial of this action.

When this case was first before the court of appeals it was held by the court that the jurisdiction of courts of equity, in cases like the one at bar, exists independently of any statutes, and that the statutory enactments relating to such cases, are merely declaratory of a jurisdiction long previously conceded to exist."

88 N. Y. 52, 57-59.

When this case was before the court the second time the court in its opinion says:

"It is not claimed that the liability which the plaintiff seeks to enforce in this action against the directors is one created by any statute; but as we held when the case was here before, it is a common-law liability, springing out of their relations to the bank and the manner in which they discharged, or omitted to discharge, their obligations and duties as directors thereof." 99 N. Y. 185.

In an action for damages for tort, like the present, the defendants have a constitutional right to trial by jury.

N. Y. Const. art. 1, § 2; McMaster v. Booth, 4 How. Pr. 427, 429; Townsend v. Hendricks, 40 How. Pr. 143.

The court of chancery never had the right to try, without a jury, an action for damages on the ground of fraud.

Bradley v. Aldrich, 40 N. Y. 504, 510, 511; Barlow v. Scott, 24 N. Y. 40-46; Hun v. Cary, 82 N. Y. 65; McMaster v. Booth, 4 How. Pr. 427; 19 Wend. 108; 3 Denio, 380.

Counsel for plaintiffs confused the terms "an action for an accounting" and "an action against directors or trustees to call them to account ;" and in some of the cases cited by him, the court has failed to discriminate between the two kinds of action, for the reason that such discrimination was not essential in determining the issues presented.

The gravamen of the action is damages for negligence or malfeasance; and the distribution of the damages resulting from the wrongful

acts is only an incident. In such case the trial by jury cannot be denied.

Bradley v. Aldrich, 40 N. Y. 504-510; Hun v. Cary, 82 N. Y. 65-79; Wheelock v. Lee, 74 N. Y. 495, 500; Davison v. Associates of the Jersey Co. 71 N. Y. 333.

Peckham, J., delivered the opinion of the

court:

This action has already been held by this court to be an equitable one. It is brought by plaintiff Brinckerhoff in his own behalf, as stockholder of the bank and in behalf of all others similarly situated, against defendants, who were directors of the bank, to call them to account as trustees for the manner in which they have discharged their trust. Of such actions courts of equity have always had jurisdiction. Brinckerhoff v. Bostwick, 99 N. Y. 185.

Nothing in the opinion in this case when last here, and reported supra, gives color to the idea that the case was regarded otherwise than as an equitable one. The judge it is true, in delivering the opinion, said that defendants' liability was not created by statute but was a common-law liability, springing out of defendants' relation to the bank, and the manner in which they discharged their obligations and duties as directors thereof. The expression "common-law liability" was obviously used in contradistinction to that of a liability imposed by statute, and had no reference whatever to a liability enforceable at common law, in distinction from one cognizable in equity.

Since the first decision of this case by this court (88 N. Y. 52), other stockholders upon their petition have been added as plaintiffs, and the judgment demanded against the defendants is that they may be adjudged to pay the damages sustained by the plaintiffs, and that the receiver may recover, collect and receive the same for the benefit of the creditors and stockholders of the bank, or else that plaintiffs may recover, etc.

Under the allegations of the complaint and upon the very numerous bases of liability respecting the several defendants, it is hard to see exactly what kind of a verdict could be directed as to form, in case the action were to be regarded as a common-law one, and the jury were to give a verdict for the plaintiffs which should cover the whole case and upon which judgment should be entered. The verdict might be for different sums against different defendants, and founded upon distinct liabilities growing out of different acts as to each; and yet the foundation of the verdict in regard to the facts found against each defendant would be problematical in the extreme.

The sums for which defendants might be liable may not only be different, but the total liability of all might exceed the total damage proved, and thus there would be a verdict for different sums against the different defendants and an excess of total liability over the damage proved, and provision would have to be made for such a state of facts in the judgment to be entered, which ought to be based upon a special application, on notice, to the court, and upon its directions then given. All this shows how entirely impracticable would be a reference to a jury of the whole issue as in a common-law action, with a general verdict and a judgment

In Hun v. Cary, 82 N. Y. 65, there was but one negligent or improper act alleged, that being the purchase of the lot and erection of the building on it under the circumstances proved. The damage was plain; it was of the same amount against all who were liable at all, and a general verdict in damages could properly be given which could be entered without any further application to the court and would be final in regard to the rights of all parties. The court said that under such circumstances it was not error to try the issue there involved by a jury, and that there were no equitable rights to be adjusted and no occasion to appeal to an equitable forum. The difference between the cases is wide and material. The cases cited by defendants' counsel as to the right of trial by jury in cases of fraud, etc., do not apply here.

waived his right to a jury trial, but that the rule was different in the case of a defendant, who could not be deprived of a jury trial in a proper case, because plaintiff demanded equitable instead of legal relief. In other words, if defendants had asked for a trial by jury of the issue as to damages (the equitable relief of a specific performance having passed away by the conveyance of the land by the defendants to other parties), such request would have been granted, and it would have been no answer to such application to show that the action was originally for equitable relief. This case is nothing of the sort.

But without doubt there are issues which ought to be tried by a jury, and the order of the special term very wisely provided for framing issues for such a trial.

The order of the General Term should be reversed and that of the Special Term affirmed, with costs in both courts.

a party alleges a cause of action of an equitable nature he must prove one, so far as the question of a trial by jury is concerned; and he cannot escape such tribunal by alleging an equitable cause of action and, while wholly failing to prove it, obtain a trial by the court of a common-law action arising out of the transaction. To show that there is an issue of fraud in a case does not necessarily make the case one for a jury, or give a defendant a legal right to such a trial as if it were a common-law action.

An action with an issue of fraud in it could and can now certainly be tried by the court (unless issues were properly framed for trial by jury), even against the desire of defendants, as in an action to set aside a deed or other instrument on the ground of fraud. This action is an equitable one, and the issues to be tried by a jury are to be reviewed by the court in the same manner as in equitable actions; and the plaintiff does not fail to show the equitable nature of this action by proving the allegations of his complaint, even though the ground of the liability of the trustees whom he is seeking to call to account is their negligence and fraud. A court of equity still has jurisdiction of such an action.

The case of Davison v. Associates of the Jersey Company, 71 N. Y. 333, 340, is of the same general nature as Bradley v. Aldrich, supra. The case was brought to enforce the specific performance of a contract for the sale of land

Caroline M. MITTNACHT, Appt.,

v.

John KELLERMANN, Respt.

District Court of the City of New York, by chapter 344 of Laws of 1854, or chapter 484 of Laws of 1862, to order an action for claim and delivery to be transferred from that court into the court of common pleas. Hence, an undertaking given on the removal of such an action, not being made under any statutory authority, is void and cannot be enforced, and, being without consideration, cannot be supported as a common-law bond.

2. The undertaking was conditioned to pay any judgment that the court of common pleas should render against defendant. Held, that by this was intended a valid judgment, and that as the common pleas acquired no jurisdiction by the unauthorized removal and none by subsequent proceedings, the judg ment rendered by it was void and not covered by the undertaking, even if the undertaking could be maintained in any view.

The facts and questions raised appear from the opinion.

Mr. Christopher Fine, for appellant: The defendant did not plead the supposed or assumed invalidity or irregularity of the agreement or undertaking, or by plea or otherwise make any pretense that he was induced to make and execute the agreement in question, by coercion, fraud, or even mistake; and he cannot now be heard to make such claim.

Vose v. Cockcroft, 44 N. Y. 415, 428; Re Cooper, 93 N. Y. 507, 512; Schreyer v. Mayor, 7 Jones & S. 1, 3; McKyring v. Bull, 16 Ñ. Y. 297; Cummins v. Barkalow, 4 Keyes, 514; Stafford Pacement Co. v. Monheimer, 9 Jones & S. 184-188; Darlington v. Mayor, 2 Robt. 274; Potts v. Sparcon, 3 Dow. Pr. Cas. 630; Barnett v. Glassop, Id. 625; Codd v. Rathbone, 19 N. Y. 37, 39; Dubois v. llermance, 56 N. Y. 673, 674; Brennan v. Mayor, 62 N. Y. 365, 369. But even if the supposed illegality of the agreement or undertaking had been pleaded, the defendant would be estopped from denying the recitals therein contained, or the legality of the obligations voluntarily assumed by the obligors.

Sureties will not be permitted to deny that the surrogate had jurisdiction of the case, or to take the bond and issue the letters of administration.

People v. Falconer, 2 Sandf. 81, 83, citing: Pritchett v. People, 6 Ill. 525; Morse v. Hodsdon, 5 Mass. 314; Decker v. Judson, 16 N. Y. 440, 442, 448; Jarvis v. Sewall, 40 Barb. 449, 453; Field v. Van Cott, 15 Abb. Pr. N. S. 349,352,354; citing many cases. Bowne v. Mellor,6 Hill, 496; Cutler v. Dickinson, 8 Pick. 387; Cecil v. Early, 10 Gratt. 198; Cox v. Thomas, 9 Gratt. 312.

The defendant who voluntarily becomes surety for a substituted trustee, is precluded in an action on such undertaking from denying his liability as surety, though the proceedings were irregular and erroneous, and upon a direct proceeding (for that purpose) might have been set aside or reversed.

People v. Norton, 9 N. Y. 176, 178; Supervisors of Rensselaer v. Bates, 17 N. Y. 242, 245, 246. In an action by a sheriff upon a bond given by a deputy sheriff to indemnify the sheriff, etc., the surety in such bond is concluded by a judgment recovered against the sheriff in an action brought against him for the neglect of of the deputy, etc.

Fay v. Ames, 44 Barb. 327, 333, 334; Fake v. Whipple, 39 N. Y. 339, 345.

The defendant is estopped from asserting the invalidity of his own proceedings.

Onderdonk v. Voorhis, 36 N. Y. 358: Kelly v. Mc Cormick, 28 N. Y. 318, 320; Harrison v. Wilkin, 69 N. Y. 412, 417, 418; Diossy v. Morgan, 74 N.Y. 11, 13, 14; Methodist Ch. v. Barker, 18 N. Y. 463, 466; Herman, Estoppel, p. 273, SS 251, 252, p. 266, § 244; p. 271, §§ 249, 250; Speake v. U. S. 9 Cranch, 29, 36 (13 U. S. bk. 3, L. ed. 645, 648); Cro. Eliz. 756; Coleman v. Bean, 3 Keyes, 94; Hill v. Burke, 62 N. Y. 111, 117; Franklin v. Pendleton, 3 Sandf. 572, 575. But the undertaking or agreement in question is a valid instrument and binding upon the obligors.

The recital of the pecuniary or valuable consideration moving to the defendant could not, as matter of law, be contradicted for the purpose of defeating the agreement; nor in fact was any such denial or attempt made.

McCurtie v. Stevens, 13 Wend. 527; McCrea v. Purmort*, 16 Wend. 460; Bank of the U. S. v. Housman, 6 Paige, 526; Merriam v. Harsen, 2 Barb. Ch. 232, 267; Barnum v. Childs, 1 Sandf. 58.

The undertaking having been voluntarily executed, its validity did not depend on the lawfulness of the order of removal.

Skellinger v. Yendes, 12 Wend. 306; Pervey v. Sleight, 1 Wend. 518, 520; Flagg v. Tyler, 3 Mass. 304; Bowne v. Mellor, 6 Hill, 496, 497.

The doctrine that a bond is void, as given colore officii, under the provision of the Revised Statutes, applies only to securities executed to the officer, and not to those taken to, and for the benefit of, the parties suing out the process.

2 Rev. Stat. p. 286, § 59; Cadwell v. Colgate, 7 Barb. 259; Ring v. Gibbs, 26 Wend. 510; 3 Greenl. (Me.) 615; 8 Id. 426; 5 Mass. 541.

The agreement or undertaking in question is a valid contract on the part of the defendant, based upon a sufficient and valuable consideration, and should be enforced.

Methodist Ch. v. Barker, 18 N. Y. 463, 466; Brown v. Sprague, 5 Denio, 545, 552, 553.

The undertaking in question would be valid and of binding force and effect, by virtue of the statute providing for removals of causes from the district courts to the common pleas for trial, where the amount involved over $100, even if such undertaking did not contain a valid consideration.

Mr. Jacob L. Hanes, for respondent:

The original judgment of the marine court, and the several affirmances thereof were right and should stand, because the alleged undertaking upon which the action was brought being to Jacob A. Mittnacht personally and only, and not having been assigned by him to the plaintiff, she had no right to maintain an action thereupon.

The so-called undertaking upon which this action is brought (not being under seal, and being without consideration) could have no legal force or validity, unless it was prescribed by statute.

Post v. Doremus, 60 N. Y. 371.

It has, however, never been pretended that said alleged undertaking had any statutory prescription or authorization, otherwise than by the New York District Court Act (chap. 344, Laws of 1857), section 3, subdivision 3. But, as section 3 of that Act first prescribes the instances in which said district courts could have jurisdiction, without including therein actions of replevin, and the other authorizes removal, with prescription of undertaking thereon, only in those actions commenced in pursuance of that section, in which the claim or demand should exceed $100, it is clear that no power or jurisdiction of removal of an action of replevin was thereby given; and any supposed order of removal, or undertaking for removal, in such case must be void.

Curtis v. Besson, 6 Daly, 432.

The justice of the district court who received the alleged undertaking, being wholly without jurisdiction so to do, or to make any order of removal thereupon, the respondent is not es

*See editorial note and indexed citations, Lawyers' edition. [Ed.]