Bonner v. McPhail , 31 Barb. 106 ( 1860 )

Lott, P. J.

The words charged to have been spoken by the defendant were not actionable in themselves. It was therefore incumbent on the plaintiff to show that they were spoken in reference to a judicial proceeding, before a court or officer of competent jurisdiction. This he has failed to do. Assuming that the charge related to the testimony given by the plaintiff in an action tried before Mr. Miller acting as referee, and that such testimony was material and pertinent, yet an additional fact was necessary to be established. It appears that the action in which the proceeding was had was pending in the city court of Brooklyn, and was triable only before the. court and a jury, unless it was legally referred to a referee duly appointed, for trial. It was a case in which the examination of a long account was involved, and was therefore properly referable, and there is no doubt that the parties had agreed previous to the trial, by an oral consent, that the issues should be tried and determined by Mr. Miller as referee. His acts under such agreement, although binding on the parties, so far as relates to the judgment rendered, did not constitute him an officer or tribunal clothed with the legal power of administering a judicial oath. That power could only be derived from an order of the court appointing him sych referee. (See Code, § 421.) Ho such order had been made at the time the words charged to have been uttered were spoken. The memorandum, “ referred to L. K. Miller,” made by the judge on his calendar of March, 1857, was not sufficient to constitute an order. An entry at least in the minutes of the court was required for that purpose. Some action of the court, shown by its records, was necessary. The order subsequently made, in December, nunc pro tunc, on the consent of the parties, does not obviate the difficulty presented in this case.

That was proper to perfect the record in the action, and to obviate any objections that might be made by either party to the acts and decision of the referee, but could not relate back, so as to charge third parties with liabilities, or to give an extra-judicial oath the effect of an oath legally administered, on which the charge of perjury could be sustained. Such an act would be subject to all the objections of an ex post facto law.

If, therefore, it be conceded that what the plaintiff stated before the referee was in fact false and material to the issue involved, yet he could not be chargeable with the crime of perjury. The plaintiff’s action was consequently not maim tainable,

Another objection raised by the defendant appears to be equally fatal, even if it be conceded that Mr. Miller was legally appointed a referee, and that an oath had been duly administered to the plaintiff in the city of Brooklyn, before his examination was commenced. It appears that the, testimony was in fact given in the city of New York, The action in which it was taken was pending in the city court of Brooklyn, That court was a court of special and limited jurisdiction, and is to be held in the city of Brooklyn. (Laws of 1849, p. 171, § 10. Laws of 1850, p. 149, § 5.) It was incompetent, therefore, for the court itself to sit in the city of New York. Any trial had there would be extra-judicial. It would have no greater effect than if it were held out of the state; and as the court had no special authority vested in it to confer on a referee the power to try a cause out of its own jurisdiction, no such power could be rightfully and legally exercised by him. He at most could only be considered as a judge of the court, for the time being, in the particular suit in which he was appointed, authorized to act to the same extent and in the same manner, and not otherwise, than the court itself.

In either view of the case the plaintiff has no cause of action. It is therefore unnecessary to consider the questions raised during the progress of the trial as to the rejection or admissibility of evidence.

The order of the city court, refusing a new trial, and the judgment in favor of the plaintiff, were erroneous and must be reversed, and a new trial ordered, with costs to abide the event.

Brown, J.

The slanderous words set out in the complaint, and which the defendant is charged with having published, are not actionable in themselves. They may become so, however, by reference to the extrinsic circumstances in relation to which they were spoken. These are, that at the time the words were spoken, the plaintiff was being examined as a witness, upon the trial of an action then pending, upon a question material to the issue, and before a court or officer having authority and jurisdiction to administer oaths and to conduct the inquiry or proceeding in which the plaintiff was sworn.* Of this principle the pleader who framed the complaint seems to have been fully aware; for it alleges “that on or about the 25th day of September last, (1857,) the plaintiff was being examined under an oath taken by him and administered by L. K. Miller, Esquire, a referee duly appointed by this court, (the city court of Brooklyn,) to hear and determine the issues in a certain action then pending in said court between the above named plaintiff and the above named defendant, and whilst giving testimony as a witness in said action, which testimony was material for him as plaintiff in said action, the defendant then and there, to wit, at the office of the referee, on the corner of Broadway and John street, in the city and county of Hew York, in the presence and hearing,” &c. spoke and published, of and concerning the plaintiff and his testimony, the alleged slanderous words, which were, “ you are a liar,” and “ to hear a man lie,” which are stated with the necessary innuendoes and averments. The words uttered, with reference to the surrounding circumstances, must have imputed the crime of perjury to the plaintiff, or the action will not lie. To this end the court or officer before whom the action was pending must have had jurisdiction of the subject matter of it, with power to administer an oath and to examine and take the testimony of the witness; for unless the court or officer had such jurisdiction and power, there could be no legal perjury committed, however false and malicious may have been the statements of the witness. (Crookshank v. Gray, 20 John. 344. Bullock v. Koon, 9 Cowen, 30.)

Upon the trial of this action the plaintiff proved the speak-, ing of the words charged, and under the circumstances men-: tioned in the complaint. He then produced the record in the action of Bonner against MePhail, in the city court of Brooklyn, in which the plaintiff was being examined as a witness, and in reference to which examination the words were spoken. This was not a formal record made up in the old form with a caption, an entry of the pleadings, an award of a venire or an ‘order of reference, a verdict or report, and the judgment of the court duly entered thereon in regular chronological order. But the record produced consisted of the complaint and answer, separately. An- order of reference to Livingston K. Mil-, ler, the caption of which was at a term of the city court of Brooklyn, at the city hall, on the first Monday of March, 1857, with a written consent at the bottom, signed by the attorneys, that the same might be entered nunc pro tunc. There was also the report of the referee, and an order for judgment there-, on, dated December 31st, 1857. The plaintiff also examined Samuel E. Harris as a witness, who produced the order book of the court, and testified that he was the clerk of the city court j that the order of reference in Bonner v. MePhail, referred to, was not entered until on or after the 12th December, 1857. That the date of the order next before the order in question, as entered in the book, was December 12th, 1857. So that the order in question must have been entered on or after that day. He also produced the calendar for the March term, 1857, on which there was a memorandum in the judge’s handwriting, “referred to L. K. Miller,” but to what the entry referred, or when made, did not appear. He also said there was no entry in the minutes of court of an order of reference in the action of Bonner v. McPhail. It therefore appeared affirmatively, upon the plaintiff’s own proof, that on the 25th of September, 1857, the time when the plaintiff, Bonner, was examined as a witness and the words were uttered, Livingston K. Miller was not a referee in the action. Ho order had been entered upon the minutes of the court, to that effect. It does not appear that any such motion had been made, or that even a written stipulation had been entered into by the attorneys for the respective parties, by which he was to become such referee. His appointment was vested in parol, if it existed at all, and gave him no sort of authority to administer oaths and examine witnesses. His acts as such were extra-judicial. The omission to obtain the order of reference, before the referee proceeded to hear the cause, was doubtless an irregularity, which the parties to the action in which it was committed might waive or correct by stipulation, so as to give effect to the report. An order entered nunc pro tunc would do this, but nothing more. If what Bonner, the witness, said on the 25th September was not perjury, by reason that Livingston K. Miller had no power to administer an oath in an action pending in the city court of Brooklyn, it could not be made perjury by any thing which the attorneys or the court might do after that time. Courts of justice speak only through their records, orders, and entries upon their journals or minutes ; and before a person can be clothed with the powers and authority of a referee in a pending action and proceed to execute its functions, there must be the fiat, of the court signified by an entry or order upon its minutes. The 49th section of the act for consolidating and referring causes, (2 R. S. 305,) declares that an entry of such reference shall be made upon the record, and day shall be given to the parties, from time to time, until the referees report, or they be thereof discharged. When depositions are used as the foundation of an indictment for perjury, the authority under which they are taken must be proved with more strictness than in other cases. If the oath was administered under a special authority or commission directed to a particular person for that purpose, the commission, shown in some form, is indispensable. (Cowen & Hill’s Notes, 1100; note 756, and the authorities referred to by them.) Eeferees are vested for the time being, and in respect to the particular action in which they sit, with some of the most important powers of the court. They may administer oaths, compel the attendance of witnesses, take their testimony, issue attachments and punish for contempts, allow amendments to pleadings, determine questions of law as well as of fact, and make reports upon which judgments may be entered. The validity of these acts depends exclusively upon the existence and force of the rule or order under which they derive their authority. Ho referee should proceed a step in the exercise of his duties, without a certified copy of the rule or order in his hands. This is his commission, and without it he should not proceed to act.

[Kings General Term, February 13, 1860.

The city court of Brooklyn is a local court, with jurisdiction limited to the bounds of the city. The hearing before the referee was had at his office at the corner of Broadway and John street, in the city of Hew York, and the oath was administered there. The defendant claims that therefor the proceeding was coram nonjudice and void. I decline to consider the force of this objection, because the defect already considered is fatal to the plaintiff's right of action.

The motion made by the defendant for a nonsuit, at the close of the plaintiff's evidence, should have been granted. And for the refusal to grant it, the judgment should be reversed and a new trial granted, with costs to abide the event.

Emott, J. concurred.

Hew trial granted.

Lott, Emott and Brown, Justices.]