There is no question in this case except such as arises upon proceedings to assess damages upon a stipulation for judgment absolute.
I cannot concur in the opinion for two reasons: (1) The orders are not appealable to this court. There are some propositions on that point that I will state from the adjudged cases in this court and that I suppose no one will dispute.
No appeal to any court will lie from a judgment entered upon default. (Code Civ. Proc., sec. 1294.)
The proceedings for assessing damages after default in answering and proceedings for assessing damages upon a stipulation for judgment absolute are the same and governed by the same rules. In the latter case the proceeding is the same as upon an ordinary inquest.
However the assessment is made, whether by a sheriff with a jury, by a judge at Circuit with or without a jury, or by a referee, the questions are always the same, and the rules for reviewing the trial of an action do not prevail or apply.
In each case a motion may be made to set aside the inquisition, and when it appears that injustice has been done, the court may set it aside, but it is all a matter of discretion, and *Page 297 when refused, a judgment or order entered upon the inquisition is not reviewable upon legal grounds.
In no case can there be any appeal beyond the Supreme Court. There is no provision of the Code that authorizes any exceptions to be taken in such a proceeding, and no provision that authorizes an appeal. The disposition of the inquisition in the Supreme Court always rests in discretion, and only questions of law raised by exceptions can be reviewed in this court.
The Supreme Court cannot send such a case here on a certificate that certain specified questions of law have arisen that should be reviewed in this court. Every one of these propositions have been taken from the decisions of this court. (Bossout v. Rome,W. O.R.R. Co., 131 N.Y. 37; Bassett v. French, 155 N.Y. 46;Lewin v. Lehigh Valley R.R. Co., 169 N.Y. 336.)
The case last cited came here from the Appellate Division with a certificate that five separate questions of law were involved, but we dismissed the appeal on the ground that the court had no jurisdiction to hear such an appeal. I am unable to see how that case differs from this.
1. But the opinion from which I dissent suggests a very simple way to avoid all the rules above stated, and by means of which all such cases can be brought to this court. All that is necessary to do is to get the sheriff, with or without his jury, to certify that the damages have been determined as matter of law and not as matter of fact, or in the exercise of discretion, and what was never appealable before becomes appealable then. He can thus create a question of law to be transmitted to this court through the certificate of the Appellate Division. He can change the character of the whole proceeding by removing it from the domain of discretion to that of pure law. Of course, the judge at Circuit with or without a jury or a referee can do the same thing since they are all dealing with the same questions, that is, assessing damages as upon a default. It makes no difference that the courts have said over and over that the proceedings are, in their very nature, *Page 298 always subject to discretion, the sheriff can convert them every time into one of pure law and he can do anything in that way that either a judge or referee can do since they are acting in the same capacity. It would be only reasonable to suppose, from what this court has said, that such certificates had no application to such a proceeding and had no effect upon the nature or character of the determination. If the sheriff could not make a question of law for the Appellate Division, it is difficult to see how that court can make one for us.
2. On the merits, I think the opinion is equally wide of the mark. It all rests on one proposition and that is that this court in deciding the principal case, where it was held that the plaintiff was entitled to judgment absolute, held that the defendant's liability was upon contract. (City Trust, S.D. S. Co. v. Am. Brewing Co., 174 N.Y. 486.) I hope it will never be imputed to this court that it has solemnly decided that a party is liable as a principal upon a contract such as a liquor tax bond that he never signed or executed and had never seen or heard of. Kurtz applied for the license and got it. He signed the bond as principal and the plaintiff as surety. But it is said that the defendant was behind Kurtz, and, as an undisclosed principal, the state licensed it, although it never applied for one and the state officers could know nothing about its qualifications to receive a license; and Kurtz, having signed the bond as principal, he bound the defendant as an undisclosed principal although the defendant's officers never heard of the bond or of the fact that the plaintiff had become surety for Kurtz. All this, it is said, this court has most solemnly decided and that is the cornerstone of the opinion in this case.
This court, I am glad to say, never decided anything of the kind. Here is what the court said in the opinion. The italics are my own:
"Plaintiff could recover of Kurtz, and probably would were he responsible, but why may he not recover from the party which, while benefitting by the suretyship, committed *Page 299 the injury? — from the hidden principal that by a wrongfulact, prohibited by the conditions of the bond and forbidden by statute, caused a loss to this plaintiff?
"Ever since Justinian said, `The maxims of law are these: to live honestly, to hurt no man and to give every one his due,' it has been a leading object of jurisprudence to compel wrongdoers to make reparation. Now it is a general rule of law that aperson commits a tort and renders himself liable for damages who does some act forbidden by law if that act causes another substantial loss beyond that suffered by the rest of the public, and that rule covers this case.
"Defendant, through its agent Kurtz, induced plaintiff to become a surety on the bond for Kurtz, and then, in violation of the statute, it conducted a nickel-in-the-slot machine on the premises, by means of which misconduct the surety was compelled to pay the penal sum of the bond. In other words, defendantcommitted an act forbidden by law, and the direct effect of its act was to cause plaintiff a substantial loss beyond that suffered by the rest of the public, and for the damage thussustained it should respond to plaintiff." (City Trust, S.D. S. Co. v. American Brewing Co., 174 N.Y. 486.)
If I can understand the meaning of language, I should say that the defendant was held liable for a wrong or tort in placing the slot machine in the saloon and thereby producing a forfeiture of the bond upon which the plaintiff was surety. That is plain enough and that makes the decision sensible and reasonable. But because the judge called the defendant a "hidden principal" that phrase is seized upon to change the decision to a judgment oncontract, which makes it quite unreasonable and indefensible.
In giving construction to one of our own decisions I would always prefer the theory that makes the decision sensible and reasonable rather than the one which makes it absurd, but I fear that the opinion in this case rejects the former and adopts the latter. The law of agency knows such a thing as a "hidden principal," but it has not the slightest application to the case at bar. I assume that no concealed principal could *Page 300 procure admission to the bar through an agent, or to the civil service list, or procure a license to traffic in liquors, or acquire any other right or privilege that requires personal qualifications or is granted only upon personal application. Of course, the defendant could not have committed a tort and violated a contract at the same time by the act of putting a slot machine into the saloon. It is reasonable enough to say it committed a wrong, but just how it made a contract and broke it has not yet been explained and I fear never will be. Of course, it is necessary in order to reverse the orders before us to impute to one of our own decisions what seems to me to be an absurdity. But I fail to see anything in the case before us that requires us to put such a strain upon law and common sense.
The prevailing opinion as it appears to me sanctions two novelties. The first one is that the sheriff or other assessing officer in default cases can, with a stroke of his pen, break down all the barriers that this court has erected against appeals of this character to this court, by simply stating that the damages have been determined or certain items rejected as matter of law and not as matter of fact or discretion. Since the practice in cases of ordinary appeals or decisions has no application to inquests, I am unable to see where the sheriff gets the power to change the legal effect of the determination by any such statement.
The second one is that this court has solemnly decided in174 N.Y. 486, that a corporation, by putting a slot machine into a saloon, kept by an individual who held a liquor tax certificate and had given a bond, became thereby the principal upon that written instrument and made all the promises and covenants in the same, although none of its officers ever signed or executed the bond and had never seen or heard of it and became responsible upon the bond as upon contract to the surety who paid it, although the defendant never had any business transaction whatever with the sureties. All this is based upon the words "hidden principal" contained in the opinion. These, to my mind, are two very extraordinary *Page 301 propositions, and since I am not able to see my way clear to concur in either of them, I will be recorded for affirmance or the dismissal of the appeal.
CULLEN, Ch. J., BARTLETT and VANN, JJ., concur with HAIGHT, J.; GRAY, J., reads dissenting memorandum and WERNER, J., concurs; O'BRIEN, J., reads dissenting opinion.
Order reversed, etc.