author: Brown, J.

text:
    George W. Smith, Receiver, v. Robert Beattie.
    A W of sale, absolute upon its face, transferring property to be held as seeurity for the payment of a debt due the vendee, is, in character and effect, a mortgage, and is to be treated as such.
    In such case, the mortgagee acquires only a lien upon the assigned property: the residuary interest of the mortgagor therein may still be reached by his creditors.
    And where, in such case, the assignee is to complete the process of the manufacture of the assigned property, and prepare the same for sale, such condition is not inconsistent with his rights and duties as mortgagee; and, consequently, does not render the assignment void.
    The facts of the case sufficiently appear in the opinion of Bbowh, J.

      C. A. Smith, for the appellant.

      W. A. Whitbeck, for the respondent.
   Brown, J.

The plaintiff prosecuted this action as receiver, appointed in proceedings supplementary to the execution upon a judgment rendered in the Court of Common Pleas of the city of Mew York, wherein the Baldwin Company were plaintiffs, and one Arthur Donally defendant. After stating the recovery of the judgment, the supplementary proceeding and his appointment as receiver, the plaintiff in his .complaint proceeds to allege, that after contracting the debt upon which the judgment was recovered, and on the 10th day of May, 1859, Donally, the judgment debtor being insolvent, and with intent to delay and defraud his creditors, made and delivered a bill of sale for the consideration of one dollar therein expressed, hut without any real or valuable consideration to the defendant Beattie absolutely, hut really upon secret trust for Donally, of certain goods and merchandise, looms and carpets, and also a certain debt against E. S. Higgins & Co. for $1,500, and another debt against Ellery, Wendt & Hoffbauer for $600, all of which property the defendant converted into money with like intent to defraud &c., which property and debts were of the value of $3,000 and upwards, and concluded by demanding judgment that the defendant account to him for such property and proceeds. The answer admitted the execution of the biE of sale, and delivery of the property, except that the debt of Ellery, Wendt & Hoffbauer was but $270. It also admitted that at the time of its execution, DonaEy was embarrassed in his circumstances, and unable to provide means to carry on his business, which was that of manufacturing carpets, or make his property marketable and available to pay his debts. .That he was at the time indebted to Beattie in the sum of $2,500. That the assigned property consisted of implements of trade, fixtures and materials used in the manufacture of carpets, and that at the time of the transfer there was a parol understanding and agreement between the defendant, the judgment debtor, DonaEy and several of his creditors, that the former would take possession of the property, expend whatever money and labor was necessary to make it saleable in the market, convert it into money and after deducting therefrom the money expended with the debt due to him, pay over the residue, if any, to DonaEy for distribution amongst his creditors. That he afterwards proceeded to execute the agreement, and expended $2,000 in making additions -to the stock of materials, and for work and labor in preparing the same for market. The answer also alleged that on the 6th day of January thereafter, DonaEy being insolvent, did, by an instrument in writing duly executed, make a general assignment of his property and effects to one John B. Moore, and did therein prefer the defendant, and direct him to be first paid out of the proceeds of the assigned property the debt due to him from DonaEy, together with such money as he had expended in manufacturing and preparing the property assigned to him by the biE of sale, for sale in the market. That" the defendant, thereupon, immediately assigned and delivered over to John B. Moore, as a part of the trust property assigned by DonaEy to him, all the property received by him under the bill of sale, with aE additions made thereto by the defendant. That afterwards, on the 1st day of February, 1860, the assignee, John B. Moore, made a careful examination of the sum due to the defendant, as creditor of Donally, and for expenditures upon the property transferred under the bill of sale, which was ascertained to be $4,585.20, and which was thereupon paid to him in satisfaction of his claim. Upon these pleadings the trial of the action was referred to a referee who disaffirmed the plaintiff’s allegation of fraud, and found ah the material allegations of the answer to be true, adjudged that the defendant Beattie was not liable to account to the plaintiff, and ordered the complaint to be dismissed with costs to the defendant. Judgment was entered upon the report, which was afterwards affirmed at the General Term of the Common Pleas.

I have quoted thus liberally from the pleadings to show precisely what is the real question in controversy. Arthur Donally, the judgment debtor, is not made a party', nor is John B. Moore, to whom the former made the general assignment of his property. It is not said or suggested that the assignment to him is fraudulent, or made to delay the creditors of the assignor. All we are to determine is the good faith of the bill of sale which transferred a portion of the debtor’s property to Beattie. It was absolute upon its face, and, therefore, thought to be obnoxious to the charge of fraud. This suggestion ignores and disregards, altogether, the parol agreement to hold the property as security for the payment of Beattie’s debt made at the time of its execution. Evidence of this agreement was properly admitted at the trial, upon the authority of Despard v. Walbridge (15 N. Y., 374, and 4 Seld., 416). This gave the bill of sale the character and effect of a'mortgage, and nothing more. It was a mortgage of a part of the debtor’s property to secure a particular debt. The mortgagee acquired nothing but a lien upon the assigned property, and the residuary interest, after the satisfaction of his debt, might have been reached by another creditor and appropriated to the payment of his claim. (Leitch v. Hollister, 4 Com., 211.)

It is also contended that the agreement, that the assigneeshould complete the assigned property in process of and in part manufactured, and prepare the same for sale in the market, rendered the same fraudulent and void as against creditors within the principle of the case of Dunham v. Waterman (17 N. Y., 9). That was the case of a general assignment by an insolvent debtor, which consisted of unfin ished machinery and materials, in trust for the payment of debts, with an express provision that the assignees should complete the manufacture, and work up the materials at the expense of the assigned fund, and prepare the same for sale in the market, as in their judgment might be advisable, so as to realize the greatest amount of money therefrom, and apply the proceeds when converted into money to the payment of the debts. The deed of assignment was adjudged fraudulent and void, not that the court denied the power to the trustees, by a reasonable expenditure of money, to complete and perfect the unfinished work in the exercise of a reasonable discretion, but because the debtor could confer upon his assignee no such power without creating delay, which the courts could not control and correct. The distinction was between a duty imposed by law and a power conferred by force of the deed. If an assignment containing such a provision was held valid, the courts must also hold that the debtor had a right to confer the power and vest it in his assignee, as a condition upon which he parts with his property. The ease of a mortgage, of specific unfinished machinery, or goods in process of manufacture, with an agreement that the mortgagee should proceed to complete them for use and sale as security for the payment of a debt, does not fall within the principle or reason of the rule referred to, because the mortgagee does not acquire the entire legal and equitable interest in the property, and the residuary .interest may be reached by execution or bill in equity at the suit of any other creditor.

The counsel for the plaintiff has made a critical examination of the testimony, and the result of the figures referred to therein, to show that in the settlement with the assignee John B. Moore, Beattie, the defendant, was allowed $200 to which he was not entitled. I decline to follow him in his examinations and estimates, for the obvious reason that if the bill of sale is not open to imputation of fraud, but is to be upheld as legal and valid, and as the plaintiff has not' sought to impeach the deed of assignment to John B. Moore, the former is not now in a condition to question or put in controversy the accuracy or good faith of the settlement between the latter and the defendant in this action.

The judgment of the court below should be affirmed with costs.

All the judges concurring,

Judgment affirmed.


source: Caselaw Access Project

author: Denio, Ch. J. Davis, J.

license: Public Domain

text:
    Alonzo Doty and Charles N. Button v. William Carolus.
    Where no exceptions are taken on the trial, and no conclusions of fact stated, which can raise any questions of law, and no conclusions of law are stated, this court has no jurisdiction to review the case.
    The General Term had jurisdiction to set aside the report of the referee, as being against evidence, if they had found it impeachable on that ground. But on affirming the judgment, it has left nothing for this court to do in the premises.
   Denio, Ch. J.

This case comes here on an appeal from a judgment of the Supreme Court, rendered on the report of a referee. The recovery is in favor of the plaintiffs for $350.15 and costs, and the appeal is by the defendant.

The plaintiffs resided in Washington county, and during the fall and winter of 1855-’56 were engaged in forwarding potatoes and apples to the defendant, who had a place of business at the Washington market in the city of New York, to sell on commission. The referee found that the proceeds of the defendant’s sales of the plaintiffs’ produce amounted to $4,703.82. Against this, the defendant claimed to be allowed the sum of $4,857.67, for money paid the plaintiffs on their drafts, and for commissions and expenses. Among the drafts which the defendant had paid were three, which were signed by the plaintiff Doty alone, and the amount expressed in them respectively was directed to be charged to the account of Doty. Two of these were for $500 each, and the other for $200. It appeared that, prior to the commencement of the dealings mentioned, the plaintiff Doty had transactions of a similar nature, on his individual account, with the defendant, and that, during the continuance of the dealings first mentioned, Doty continued to forward produce to the defendant on his own account, to be sold on commission. The question as to the allowance of the three drafts of Doty against the defendant’s indebtedness to the plaintiffs as partners, was one of the principal points litigated on the trial. The plaintiff Button and the defendant were each examined as witnesses for themselves, and their evidence, which was nearly all the testimony in the case, was very contradictory.

The referee found, as conclusions of fact, that there was a balance in the defendant’s hands, which he owed to the plaintiffs, of $350.15; that he allowed two of the drafts signed by Doty alone, on the ground that they were paid by the defendant under such circumstances as to warrant the defendant in supposing them to be on the joint. account of the plaintiffs. As to the remaining one, being a draft for $500, dated December 24, 1855, and signed by Doty alone, he found that it was not drawn on the joint account of the plaintiffs, and that it was not paid under such circumstances as to warrant the defendant in supposing it to be on the joint account of the plaintiffs.

There were no exceptions taken on the trial which are now insisted on, and there are no conclusions of fact stated which raised any question of law; and there are no conclusions of law stated, except that the plaintiffs are entitled to' recover the balance above mentioned.

We have no jurisdiction, as has been decided a great many times, to sit in review upon the determination of questions of fact. The case depended very much upon the relative credit to be given to the parties as witnesses in their own interest. The Supreme Court, at General Term, had jurisdiction to set aside the report, as being against the evidence, if they had found it impeachable for such a cause; but they determined that it ought to be affirmed. The defendant was not well advised in seeking relief against that judgment here, where a jurisdiction to examine it does not exist.

The judgment must be affirmed.

Davis, J.

This action was brought to recover a balance claimed to be due from defendant to plaintiffs for the proceeds of property sold by the former on commission. It was tried before a referee, who found that defendant had received, as such proceeds, and in money from plaintiffs, the sum of $4,103.82; that he had paid drafts drawn by plaintiffs in the course of their dealings, and “ drafts drawn by the plaintiff Doty alone, and paid under such circumstances as to warrant defendant in supposing them to be on the joint account of the plaintiffs,” which, with other payments, charges and commissions, amounted to $4,357.67, leaving a balance due from defendant of $350.15, for which the referee ordered judgment. The referee found that one draft drawn by Doty alone, dated December 24, 1855, was not on joint account of plaintiffs, nor drawn and paid under such circumstances as to warrant defendant in supposing it to be on the joint account of plaintiffs, and he therefore rejected the same.

The evidence in the case on every question involved was conflicting; and it is impossible to say that there was not some evidence tending to establish every fact as found by the referee. The exceptions to the report, therefore, only raised questions of fact for consideration on this appeal; and it is the well settled law that such questions' are not open to review in this court, under the circumstances of this case. (Haut v. Bloomer, 3 Kern., 341; Magee v. Baker, 4 id., 435; Oldfield v. New York & Harrlem R. R. Co., 4 id., 310; Smith v. Grant, 15 N. Y., 590; Otis v. Spencer, 16 id., 610; Ingersoll v. Bostwick, 22 id., 425; Grant v. Morse, id., 323; Phelps v. McDonald, 26 id., 82.)

It is argued with much earnestness by the appellant’s counsel, that there was no more reason for the rejection of the $500 draft drawn by Doty alone than for several others drawn in the same form by him, and which were allowed; but the referee has found that the others “were paid by defendant under such circumstances as warranted him in supposing them to be on the joint account of plaintiffs,” while as to this particular draft he has found directly the reverse, and also that it was not drawn on the joint account of plaintiffs. Inconsistency, if there be any (which is not manifest, however), in these conclusions is not error of law, because there was conflicting evidence which would have prevented our interference if the referee had rejected all the drafts drawn by Doty alone.

The judgment should be affirmed with 10 per cent damage.

All the judges concurring,

Judgment affirmed.


author: Johnson, J.

text:
    The People of the State of New York and Barnabas Osborn and Josiah Albertson, Jr., Plaintiffs, v. Ira B. Tuthill, David Billard and Chauncey W. Tuthill, Defendants.
    Two things must concur to qualify a person to become a voter at an election held by an incorporated religious society, after its first election: 1. Stated attendance on divine worship in the church, congregation or society, for the term of one year previous to such election; and, 2. Contribution to the support of such church, &c.
    Stated attendance must be interpreted to mean the personal presence of the voter statedly at the religious meetings of the society. The regular attendance of the wife or other member of the family is not sufficient.
    Persons attending the religious meetings of the society but a few times in the course of a year, or only occasionally, though regular contributors to its support, are not voters within the meaning of the seventh section of the act for the incorporation of religious societies.
    The contribution and support must be according to the usages and customs thereof; which implies that the contributions must be of a vital and substantial character. Per Johnson, J. *
    An election is not to be set aside and declared void, merely because certain illegal votes were received, which did not change the result of the election.
    This is an action of quo warranto, brought to try the title of the defendants to the office of trustees of the “ Religious Society of Cutchogue, in Southold.”
    The complaint alleged that on the 7th day of March, 1801, the religious society of Cutchogue, in Southold, county of Suffolk, and State of New York, was duly incorporated, in pursuance of the act' entitled “ An act to enable all religious denominations in this State to appoint trustees, who shall he a body corporate for the purpose of taking care of the temporalities of their respective congregations, and for other purposes therein mentioned,” passed April 6th, 1784; and six persons were then duly elected trustees of the temporalities of the society of Cutchogue, in Southold, and county of Suffolk, by which name, style and title it was declared in the certificate of incorporation that they and their successors should forever thereafter he called, and that the said corporation still exists. That on and previous to the 1st day of March, 1861, Ira B. Tuthill, David Billard, Barnabas Osborn, Oliver Corey and William Wickham were trustees of the said corporation and religious society; and that a meeting of the male members of the said corporation and religious society had been duly called and notified, and was held on the said last mentioned day, to elect three trustees thereof in place of the said Barnabas Osborn, Ira B. Tuthill and David Billard, whose terms of office as such trustees expired on the 7th day of March, 1861, the trustees so to be elected to hold their office for three years from the said last mentioned date; that at the said meeting, Ira Tuthill and Jacob H. Tuthill, two of the members of the said religious society, were chosen to preside at such election, and it was thereupon resolved to vote by ballot; that the whole number of ballots received and counted by the said presiding officers was thirty-seven, of which number twenty-one ballots contained the names of Ira B. Tuthill, David Billard and Chauncey W. Tuthill, and sixteen ballots contained the names of Barnabas Osborn, Josiah Albertson, Jr., and Luther Akerly, for trustees of the said religious society and corporation; that of those who voted for the said Ira B. Tuthill, David Billard and Chauncey W. Tuthill, and whose votes were received and counted and went to make up the said number of twenty-one, the following were challenged, viz.: Philip Tuthill and Ira B. Moore, on the ground that they did not contribute to the support of the said religious society, according to the usages and customs thereof; Silas H. Moore and William E. Gould, on the ground that they were not stated attendants upon divine worship in the said religious society, and did not contribute to the support of the said religious society according to the usages and customs thereof; and Platt T. Gould, on the ground that he did not contribute to the support of the said religious society according to the usages and customs thereof, and was not a member of the said religious society, but was a member of another religious society at Uorthville in said county; that the said grounds of challenge, respectively, were true, and that the said persons so challenged were not members of the said religions society, nor entitled to vote at said election; that at the said election the following persons presented their ballots to said presiding officers and offered to vote for trustees of the said religious society, whose votes were challenged and were not received by the said presiding officers, on the sole ground that they had not been stated attendants upon divine worship in the said religious society for the last preceding year, viz.: William M. Betts, William 0. Betts, Charles Betts, Alfred Smith, Benjamin P. Tuthill, Israel Davis and B. D. Carpenter.; and that at such election the said presiding officers publicly proclaimed to the meeting that it made no difference how long any person had been a member of the said religious society, nor how long he had been a stated attendant upon divine worship in the said religious society and had contributed to the support thereof according to its usages and customs, nor whether he had contributed to its support as aforesaid during the last preceding year, and the family of such person had statedly attended on divine worship in the said religious society for the last preceding year; that no person was entitled to "vote nor would be permitted to vote at such elections, unless he had himself personally attended the meetings of the said religious society for divine worship the greater part of the time for the last preceding year, unless prevented by ill health.
    And the plaintiffs averred that the said William H. Betts, Benjamin P. Tuthill and Alfred Smith have been members of the said religious society and pew holders in the church edifice thereof for more than twenty years, and the said B. D. Carpenter for more than ten years, — and during all these periods they have respectively contributed to the support of the said religious society according to the usages and customs thereof. And that they have respectively, during all the said times—they and their respective families—statedly attended on divine worship in the said religious society. That the said William 0. Betts, Charles Betts and Israel Davis are, and for more than one year previous to the said election have been, stated attendants on divine worship in the said religious society, within the meaning of the statute in such case made and provided,, and pew holders in the church edifice thereof, contributing to the support of the said religious society according to the usages and customs thereof, — and that the said William M. Betts, William 0. Betts, Charles Betts, Benjamin P. Tuthill, Alfred Smith, Israel Davis and B. D. Carpenter are neither of them members of any other religious society. That the said William M. Betts, William O. Betts, Charles Betts, Benjamin P. Tuthill, Alfred Smith and Israel Davis respectively intended to vote, and would have voted for,—and the ballots so offered by them contained the names of the said Barnabas Osborn, Josiah Albertson, Jr., and Luther Akerly, for trustees of the said religious society. That the plaintiffs do not know for whom the said B. D. Carpenter intended to vote, but they are informed and believe that he did not intend to vote for, nor did the said ballot so offered by him contain the names of the said Ira B. Tuthill, David Billard and Chauneey W. Tuthill, or either of them. That the plaintiffs believe that George Youngs, a member of the said religious society, offered to vote at such election, and presented his ballot to the said presiding officers, containing the names of the said Barnabas Osborn, Josiah Albertson, Jr., and Luther Akerly, for such trustees, and that his vote was not received or counted by the said presiding officers. That Isaac T. Moore offered to vote at such election, and presented his ballot to the said presiding officers, which the plaintiffs believed contained the names of the said Ira B. Tuthill, David Billard and Chauneey W. Tuthill, and the same was challenged. That while the said challenge was pending and inquiriés were being made touching the qualifications of the said Isaac T. Moore, Ira Tuthill, one of said presiding officers, declared in a loud voice and with great vehemence that he was a legal voter, and directed him to put in his ballot, and the said Isaac T. Moore deposited his ballot with a great number of other ballots which had been received by the said presiding officers for each set of candidates and not distinguishable from them. That the person challenging such vote insisted upon his right to inquire into the alleged qualifications of the voter, and persisted in his inquiries, and the said Isaac T. Moore thereupon took one of said ballots, so received by the said presiding officers, but whether the one which had been so deposited by him the plaintiffs are unable to state. And it being made to appear that the said Isaac T. Moore had not contributed to the support of the said religious society, he did not insist upon his claim to vote at such election, — and the said ballot, so taken by him, was not returned to the said presiding officers, nor received or counted by them. And the plaintiffs • averred that the said presiding officers exhibited gross partiality by receiving the votes of all persons whom they supposed intended to vote for the said Ira B. Tuthill, David Billard and Chauncey W. Tuthill, whether challenged or not, — and by challenging upon their own motion, and refusing to receive, the votes of persons whose qualifications were far superior to some of those whose votes were received, when they supposed that such last-mentioned persons intended to vote for the said Barnabas Osborn, Josiah Albertson, Jr., and Luther Akerly.
    And the plaintiffs averred that if only legal votes had been received by the said presiding officers, and mo legal votes had been rejected by them,—-and if the said election had been properly conducted by the said presiding officers,—the said Barnabas Osborn, Josiah Albertson, Jr., and Luther Akerly would have received the greatest number of the votes at the said meeting, and would have been declared elected as such trustees of the said religious society. But that the said presiding officers unlawfully and wrongfully made their certificate, in writing, declaring that the said Ira B. Tuthill, David Billard and Chauncey W. Tuthill were elected trustees of the said religious society at such meeting, — and the said Ira B. Tuthill, David Billard and Chauncey W. Tuthill now claim to be trustees of the said religious society by virtue of such election, ■—and they assume to call meetings of the said trustees, and claim to be a majority of the said board of trustees of the said religious society, and pass resolutions as such board of trustees,—and as such trustees, they have collected and received the pew rents of the said religious society to the amount of about one hundred dollars, and refuse to apply the same to the payment of the salary of the minister of the said religious society, to whom the’ same belongs and is due. And that the said Ira B. Tuthill, David Billard and Chauncey W. Tuthill have usurped and unlawfully held, used and exercised, and still do unlawfully hold, use and exercise the office of trustees of the said religious society. And that the said Barnabas Osborn, Josiah Albert-son, Jr., and Luther Akerly, are rightfully entitled to the said office of trustees of the said religious society, and to all the rights, privileges and franchises thereof,— and have been so entitled since the said seventh day of March, 1861.
    Wherefore the plaintiffs demanded that it might be ad judged, that the said Ira B. Tuthill, David Billard and Chauncey W. Tuthill, the defendants, have usurped and unlawfully held and exercised the said office of trustees of the temporalities of the religious society of Cutchogue, in Southold and county of Suffolk,—and that they still do unlawfully hold and exercise the same,—and that they may be ousted and removed therefrom. _ And that it may be further adjudged, that the said Barnabas Osborn, Josiah Albertson, Jr., and Luther Akerly, are entitled to the said office,—and have been so entitled since the said 7th day of March, 1861.
    The defendants, in their answer, admitted the allegations of the complaint as to the incorporation of the religious society, &c. But they stated, in addition to such allegations, that the church, in connection with said religious society of Cutchogue, is Presbyterian in its form of government, and Ira Tuthill and Jacob H. Tuthill, who presided at the annual meeting on the 1st of March, 1861, were both elders of the said church, and the said Ira Tuthill was a deacon of the said church, and the only deacon that was present at the said meeting. And they alleged that Philip W. Tuthill, Ira B. Moore, Silas H. Moore, William E. Gould and Platt T. Gould were each and all members of the same religious society, and legal voters at the said meeting. That the said Philip W. Tuthill is the son and a member of the family of Ira Tuthill, who is a pew holder of the said religious society. He is also, and has been for the past year, chorister of the said society, and leads the choir Without compensation, although the society had before paid fifty dollars a year for like services. That the said Ira B. Moore is a son and a member of the family of Calvin Moore, who is a member and pew holder of the said society. He also during the past year, up to ¡November, 1860, had the care and charge of the meeting house. That the said Silas H. Moore is also a son of the said Calvin Moore, and lived with him a part of the year. That he was a stated attendant on divine worship in the said society, and contributed at the collections and occasional subscriptions in behalf of the said society, but not as a yearly subscriber or pew holder distinct from his father. That William E. Gould is a son of Platt T. Gould, who is and was a member of the said religious society, a pew holder, a contributor, and a stated attendant upon divine worship with the said society, and he, the said son, is a pew holder Avith his father, also an occasional attendant upon divine worship in the said society, and a contributor. That the said Platt T. Gould is a member of the Congregational church of ¡Northville, some five or six miles distant from his residence, but he is not a stated worshipper with the said society of ¡NbrthvilLe, and that it is not according to the usage and custom of the said religious society of Cutchogue, for young men who are members of said society, and who live with their fathers who are pew holders, to become yearly subscribers or pew holders for the support of public worship distinct from their parents. That William M. Betts, William 0. Betts, Charles Betts, Alfred Smith, Benjamin P. Tuthill, Israel Davis and Benjamin D. Carpenter were not legal voters, nor was either of them a legal voter at the said annual meeting, and the votes of each and all of them were properly challenged and rejected. That the said William M. Betts, although he has for many years hired a pew, yet he has not for many years attended dÍAÚne worship with the said society, except perhaps a funeral, or half a day at the president’s fast, nor do any of his family attend divine worship except his daughters. That the said William O. Betts was not, and had not been during the past year a pew holder or a contributor to the support of the said society, and had not been an attendant upon divine worship in the said society at all. That the said Charles Betts was not, and had not been for the past year a pew holder ,or contributor to 'the support of the said society, or an attendant on divine worship therein. That the said Benjamin D. Carpenter was a pew holder, but he was not and had not been for five years an attendant upon divine worship in the said society at all. That the said Alfred Smith was a pew holder, but was not, and had not been during the past year an attendant at all on divine worship in the said society, except that he went to church three Sabbaths immediately before election. That the said Benjamin P. Tuthill was not, and for the past year had not been a stated attendant on divine worship in the said society; that he had attended worship only occasionally, and at most not more than three or four times during the year. That the said Israel Davis was not, and for the past year had not been a stated attendant on divine worship in the said society-; and that he attended divine worship only occasionally, and a very few times during the, year. That George Youngs, named in the complaint, was not a legal voter; that he for the past year was not, and had not been a stated attendant on divine worship in the said society, but had attended worship principally at Matte-tuck. That Isaac T. Moore was a son of the said Calvin Moore and a member of his family, and was and for the past year had been a stated attendant on divine worship in the said society, and at the said election he put in a vote for the defendants as trustees, and afterwards, in dissatisfaction with the manner in which he was opposed as a voter, he withdrew the same ballot he put in, as was believed; but the ballot withdrawn by him certainly had on it the names of the defendants for trustees, and no other names. That the presiding officers of the said meeting had the act to provide for the incorporation of religious societies at such meeting, and that, from the said act, they clearly, plainly and correctly announced the qualifications required to become a voter at the meeting; that their decisions upon challenges of voters were just and impartial, and their rejection and admission of votes were in every case correct and according to law, except perhaps the ease of William E. Gould, who was supposed to have been a stated worshipper; and that the meeting was conducted orderly and properly, &e. That no one having a legal right to vote was deterred or prevented from voting or offering to vote, by anything said or done by the said presiding officers, or by any person or persons who opposed the construction of the law contended for by the relators and their friends. That no illegal vote was received, except the said William E. Gould, or legal vote rejected; and that the defendants denied each and every allegation of the said complaint inconsistent with the facts stated in this paragraph of the answer. That they received from the said presiding officers a certificate of their election as trustees of the said society for three years, from the 7th day of March, 1861; and they have since claimed, and still claim to be lawful trustees of the said religious society; and they have, as such trustees, received- pew rents to the amount of seventy-three 40-100 dollars only; and they have performed other duties devolving upon the trustees of the said society; and they denied from their best knowledge, information and belief, that they have usurped or unlawfully held or exercised the said office of trustees.
    The action was tried at the Suffolk Circuit, in April, 1862, before Justice Bbows, without a jury.
    The main questions on the trial was, whether six persons, who hired pews, or paid money for seats, but attended divine worship only occasionally, or not at all, were lawful voters for trustees. Philip Tuthill was chorister, and as such, performed without compensation, the services for which they had before been paying $50 a year. He was also a single man; lived in the family of his father, who was an elder of the church and hired a pew. Ira B. Moore was sexton, and as such, was paid for his services; but he swept the house without compensation. He also was single, and lived with his father, who was a member of the church and hired a pew. The judge held that the services of Philip Tuthill and Ira B. Moore were useful and valuable contributions, and entitled them, to the same rights and privileges as those possessed by persons who rendered their support in the shape of money.
    The judge found, as a matter of fact, that Alfred Smith, Benjamin P. Tuthill, William M. Betts, William 0. Betts, Benjamin D. Carpenter, Eugene Goldsmith and Israel Davis were not stated attendants upon divine worship in said society for one year before the time of the election, and decided, as matter of law, that they were not entitled to vote, and that their votes were properly rejected. He also found as matter of fact, that Philip Tuthill and Ira B. Moore were stated attendants upon divine worship in said society, and had contributed to its support for one year before the time of the election, and decided as matter of law, that they were entled to vote, and that their votes were properly received. The judge also decided as matter of law, that the evidence as to the qualifications of Platt T. Gould, William E. Gould and Silas Henry Moore was contradictory to some extent. The judge also decided as a matter of law, that if the votes of the said Platt T. Gould, William E. Gould and Silas H. Moore were rejected as unqualified, it would not change the result. And the said judge also decided as matter of law, that the said defendants had not, nor had any or either of them usurped the said office of trustees of the said religious society, and that judgment should be entered in their favor. To which several decisions the plaintiffs duly excepted. They also excepted to the said decision as far as it related to Chauncey W. Tuthill.
    The plaintiffs appealed to the General Term, which reversed the judgment, and granted a new trial.
    From that judgment the defendants appealed to this court.

      George Miller, for the appellants.

      William Wickham, for the respondents.
   Johnson, J.

By the seventh section of the act for the incorporation of religious societies, it is provided, that no person shall be entitled to vote at any election held by any society incorporated under the act, after the first election, “ until he shall have been a stated attendant on divine worship in the said congregation or society, at least one year before such election, and shall have contributed to the support of said church, congregation or society, according to the usages and customs thereof.” Two things, it will be seen, must concur to qualify a person to become a voter at any such election; stated attendance on divine worship in the church, congregation, or society for the term of at least one year previous to the election, and contribution to the support of such church, congregation or society.

The first question to be determined is, what constitutes stated attendance on divine worship % It is obviously something more than mere attendance. It is attendance of a particular nature or character. The term stated is used to characterize the nature or kind of attendance which shall confer one part of the qualification or right. Stated,” as defined by "Webster, is “ settled, established, regular, occurring at regular times, not occasional; as stated hours of business.” A stated attendant is one who attends statedly, which is defined to be “ regularly at certain times, not occasionally.” The distinction between an attendant of that character and one whose attendance is irregular, and at uncertain periods, or occasional only, is plain and well understood. Indeed it is too plain and obvious to be aided much by attempts at exact description or definition. Regular attendance, at the stated times for worship, as established in the church, or society or congregation, as distinguishable from irregular or occasional attendance, is what is necessary. This attendance must be personal, and cannot be supplied by another. The regular attendance of the wife, or other member of the family, will not answer. And no amount of contribution to the support -of the church or society can be accepted in lieu of this personal presence statedly. It is plain enough that the persons whose votes were- challenged and rejected at the election in question were not such attendants as the statute requires to constitute legal voters. Tor the year preceding the election, they had been, as clearly appears from the evidence, irregular and occasional attendants, at most. Host of them seem to have been regular contributors to the support of the society for many years, but not regular attendants on divine worship for the year preceding. They had one qualification, but not both, and their votes were properly rejected. It is unnecessary to determine in this case how often a person must attend at the stated periods for worship, in the course of the year, to be a stated attendant. It is enough to say, that persons who attend a few times only in the course of the year, as- compared with the number of stated times for worship within such year, and at irregular and uncertain intervals, are clearly not stated attendants.

The next question is, in what manner a person must contribute to the support of such church or society, in order to be a qualified voter. He must contribute to its support according to the usages and customs thereof. This undoubtedly means substantial and vital aid and support. Personal attendance and countenance might in one sense contribute to the support of such an organization. But that is not the contribution intended by this provision of the statute. The statute means the necessary, material support, without which the organization cannot exercise its ordinary functions and perform its customary and appropriate duties and ministrations. It means the parting with, and contribution of, a portion of one’s worldly substance, in the usual and customary way, to be used in meeting and defraying the expenses incurred by the church, congregation, or society in the support of public and divine worship. Herely attending as a worshipper, or taking a leading or a subordinate part, in the exercises, or rendering some special gratuitous service, will not answer this requirement of the statute. If the service rendered, however, is such as is usually and customarily hired and paid for by such organizations, and is by some understanding, or agreement express or implied, rendered as an equivalent, or in lieu of a contribution in money or property, such service would undoubtedly be a contribution to the support of the church, society, or congregation within the sense and meaning of the statute. The test is, does the contrituition, whatever it may be, go immediately and directly to the support of the public worship maintained by the church, congregation or society. In this view contributions made, not for the support and maintenance of the religious incorporation, but for the support or promotion of some other object or enterprise in which the church, congregation or society may be engaged, however valuable or praiseworthy, as Sunday schools, missions, and the like, will not be sufficient.

The obvious and sensible policy of the statute was to secure the government, and control of the temporalities of each of the. religious incorporations formed under it, to such of its members or supporters as should manifest their attachment to its tenets and doctrines, and their interest in its success and usefulness by their habitual presence and countenance, and ■ their habitual contributions to its support. It is quite plain, too, that upon no other principle or policy could these corporate bodies, depending as they all do upon mere voluntary contributions for their maintenance and support, be permanently kept up, their existence continued, and their usefulness maintained. According to these views, the General Term was right in holding that Philip W. Tuthill and Ira B. Moore were not legal voters, neither of them having, upon the undisputed evidence in the case, contributed to the support of that society for the previous year, according to any usage or custom thereof. But this being so, I do not understand upon what ground the judgment of the Special Term could have been reversed. Excluding their votes could not have changed the result. The result would not be affected, unless there were other illegal votes also received which should have been rejected. Whether there were others or not has not been determined, either by the Special or General Term. There appears to have been thirty-seven votes cast in all, and the defendants received twenty-one of these. So that rejecting these two votes the defendants will still have a clear majority, and were legally elected. It is not found, and does not appear that any other illegal votes were received. dSTo fact is found in regard to the two votes, which were not passed upon by the judge who tried the cause, and we cannot say they were illegal. Rejecting, therefore, the two votes which were held to have been improperly received by the General Term, the incumbents have still a majority of presumptively legal votes. The election is not to be set .aside and declared void, merely because two votes were received from persons not entitled to vote, if there was still a majority of legal votes for the ticket declared to be elected. I am of the opinion, therefore, that the judgment of the General Term should be reversed, and that of the Special Term affirmed.

Wright, Mullin and Hogeboom, JJ., were for reversal; Ingraham, J., was also for reversal, but solely on the ground that the two illegal votes made no difference in the result; Davies, J., and Denio, Ch. J., were in favor of affirmance.

Judgment reversed.


author: Davies, J. Johnson, J. (dissenting.)

text:
    Warren Ackley and Demarias Ackley, Appellants, v. Levi Tarbox and another, Respondents.
    In an action brought in the name of the husband and wife for damages to the separate property of the wife, the joining of the name of the husband is unnecessary; and, under the 113d section of the Code, it maybe stricken from the proceedings, either before or after judgment.
    It is, therefore, not such an error as calls for a reversal of the judgment; but his name will be stricken out, on motion, leaving the judgment to stand in thji name of the wife.
    This aetioh originated in a justice’s court, and was brought to recovel’ the value of ¡a cow, the separate property of Demarias Ackley, one of the plaintiffs, and which was alleged to have been taken and converted by the defendants. In the complaint before the justice, which was in writing, it was averred, that the cow was the property of Demarias Ackley, one of the plaintiffs, and the wife of the other plaintiff Warren Ackley, who is joined in this suit as husband. The defendants took issue, denying that Demarias Ackley was the owner of the cow; and a jury haying been empanneled, they rendered a verdict for the plaintiffs; whereupon the justice gave judgment for the amount of the verdict and costs, in favor of the plaintiffs, and which on appeal was affirmed by the county court. The Supreme Court, at General Term, reversed the judgments of the county court and the justice’s court, on the sole ground, that in actions concerning the separate property of a married woman she must sue alone, and cannot join with her husband. (See 29 Barb., 512, S. G.)

    The plaintiffs appealed.

      John H. Reynolds, for the appellants.

      L. L. Bundy, for the respondents.
   Davies, J.

It is manifest from the complaint that the action in' fact was that of Demarias Ackley, in relation to her separate property, and that Warren Ackley was made a party plaintiff, solely as her husband, and a nominal party only. At the time this action was commenced, it was not as well settled as it is now that the wife, for injuries to her separate property, may maintain an action in her own name without joining her husband. He was undoubtedly made a party plaintiff, ex ábundcmte cautela, and to obviate any objection which might have been made by the defendants, that the action could not be maintained by the wife without joining the husband. He was clearly an unnecessary party, and his name on the record could produce no embarrassment to the defendants. He claimed no interest in the subject matter of the controversy, and, in fact, was not a party litigant. His presence upon the record was a matter of supererogation. Section 173 of the Code was framed to meet a case like the present. It declares that the court may, before or after judgment in furtherance of justice, amend any pleading, process or proceeding, by adding or striking out the name of any party. As soon as the objection was taken that the husband was an unnecessary party, as he clearly was, it was the duty of the court to have stricken his name from the proceedings in the action. It can now be done, and the judgment stand as it ought, a judgment in favor of the wife for injury to her personal property.

The judgment of the Supreme Court should be reversed, and the judgments of the county court and the justice’s court affirmed.

Johnson, J. (dissenting.)

The Code (§ 114) provides that when a married woman is a party to an action her husband must be joined, except in two cases: 1. Where the action concerns her separate property; 2. Where the action is between herself and her husband. In these two cases it is provided she may sue alone without any guardian or next friend. The intent and meaning of this section of the Code, to my mind, is very plain. When the wife is a party the husband is to be joined in all kinds of actions, and whatever may be the subject of the litigation, except two, and in those two he is not to be joined, but she is to sue alone. It is claimed that the language of the first subdivision of the section, “ she may sue alone,” is permissive merely, and leaves it optional with the wife whether in such a case she will sue alone or join her husband with her. But the same language is used in the second subdivision, which relates to a case where it is impossible to join the husband as co-plaintiff or co-defendant. This renders it quite certain that the object of the statute was not to give the wife, or the husband, an election whether the husband should be joined in an action which concerns the separate property of the wife, but simply to provide for the cases in which a married woman should sue and be sued, as though she were unmarried, and dispensing with the guardian or next friend, which was before necessary in every action by a married woman where her own rights or interests were the subject of the litigation. It is simply a provision by which she may sue alone as though she were a single woman, without any next friend or guardian. It was intended to take away the right of the husband to join or be joined, and make the action that of the married woman exclusively and the judgment conclusive upon her, the same as upon any other party. Previous to the Code, it was the well settled practice in chancery that the husband was not a proper party where the action related to the separate property of the wife. And where the husband was joined in such a case it was regarded as the suit of the husband, and the wife was not bound or concluded by the decree, but might have another action. (Paulet v. Delaval, 2 Ves., Sen., 666; Hughes v. Evans, 1 Sim. & Stu., 185; Reeve v. Dalby, 2 id., 464; Sigel v. Phelps, 7 Sim., 239; Wake v. Parker, 2 Kern., 60; England v. Downs, 1 Beav., 96; Owden v. Compbell, 8 Sim., 551; Grant v. Van Schoonhoven, 9 Paige, 255, 257; Bowers v. Smith, 10 id., 193, 201; Smith v. Kearney, 9 How. Pr., 466; Stewart v. Kissam, 2 Barb., 493; Alston v. Jones, 3 Barb. Ch., 397; Sherman v. Burnham, 6 Barb., 414.) I have no doubt that it was intended by the Code to adopt the chancery rule in actions concerning the wife’s separate property, and such, I think, is the decided preponderance of authority since the Code was adopted. The objection of the misjoinder of the husband was not taken by the answer, but was raised by way of motion for nonsuit, when the plaintiffs rested their case. The defendant could not demur on that ground in a justice’s court. A demurrer is only allowed in that court when the pleading is not sufficiently explicit to enable the other party to understand it, or contains no cause of action or defense. (Code, § 64, subd. 6.) But a defendant may, in his answer, give notice of any fact constituting a defense. (Subd. 4 of same section.) It maybe somewhat questionable whether the defendant, by answering without raising this question of misjoinder did not waive it. Such was the rule formerly in equity. (Bowers v. Smith, supra; Rafferty v. King, 1 Kern., 601; Talmage v. Pell, 9 Paige, 412.)

In actions of law, however, the defendant could demur on account of the misjoinder, or plead it in abatement, or make it the ground of a motion for nonsuit on the trial. (Graham’s Pr., 2d ed., 94, 95, and cases there cited.) Chitty says: If the objection do not appear upon the face of the pleading it would be a ground of nonsuit on the trial.” (1 Chitty, 76.) Otherwise, according to this authority, the defendant should demur, or he might move in arrest of judgment. But here, although the objection appeared upon the face of the complaint, the defendant could not demur in that court, nor could he plead it in abatement; and the only way in which he could raise the question was by motion for a nonsuit. This, I have no doubt, he had a clear right to do, in such a case, whatever may be the rule in courts of record.

' But it is claimed on behalf of the plaintiffs that if the defendant was entitled to a nonsuit, it was only as to the husband; that the wife was clearly entitled to judgment, if the husband was not, and that the judgment should not be reversed for the refusal to nonsuit both plaintiffs. But it is difficult to see how the justice could have rendered a judgment in favor of the wife and against the husband co-plaintiff. The provisions of §274 of the Code-are not extended to courts of a justice of the peace by § 64, subd. 15. By this subdivision the provisions of the Code respecting forms of action, parties to actions, the rules of evidence, the times of commencing actions and the service of process upon corporations, are made applicable to justices’ courts, but not the provisions of chapter 6 relating to the manner of entering judgments. Indeed, neither section of chapter 6 of the Code is made applicable to those courts; nor could any of them well have been made applicable. As no cause of action was shown in favor of the plaintiffs, the objection was fatal to the action. It is laid down in Cowen’s Treatise, 2d ed., 557, in respect to actions for wrongs, if too many are made plaintiffs the objection is fatal to the action, at whatever stage it be made, before the cause is finally submitted.” And besides, if the action in such a case, is the action of the husband, and his right fails, the action before the justice must necessarily fail also. I am of the opinion, therefore, that the judgment of the Supreme Court is right, and should be affirmed.

All the other judges being in favor of reversal,

Judgment reversed.


text:
    John McIntyre and others, Appellants, v. Benjamin Clapp, Respondent.
    To exclude evidence offered by the defendant tending to maintain one of the issues tendered by him, upon the hypothesis that, if the jury should believe certain evidence offered by the plaintiff to be true, then the defendant would be estopped from setting up and maintaining such issue, is erroneous.
    It is erroneous for the court to assume as true what belongs to the jury to ascertain, and then make that assumption the basis of excluding testimony otherwise legitimate and proper.
    This action was brought by the plaintiffs as copartners, to recover an account against the defendant for storing potatoes as warehousemen for him, and services in and about the same. The defendant sets up four defenses, the last of which is, that the potatoes were stored under a special contract, by which they were to be safely kept and stored for a certain reasonable reward and compensation, to be paid to the plaintiffs ; that the plaintiffs promised safely to keep them in good condition, and deliver them on request. He then alleges the plaintiffs’ carelessness and negligence in respect thereto; thau the defendant’s potatoes were thereby injured by frost or otherwise, and that he had sustained loss or damage thereby to the amount of one hundred and fifty dollars. On the trial, a witness for the plaintiffs, a son of the plaintiff Smith, was-called, and proved a conversation between the defendant and the father of the witness, in the spring of 1855, showing a liquidation and settlement of the account for storage, and a promise to pay the sum agreed upon. The defendant called various witnesses for the purpose, among others to impeach the witness Smith, and then called a witness to contradict, and who did contradict this witness as to the quantity of potatoes that had been stored, and then offered to show, by the same witness, that these potatoes were stored under a special agreement between the parties at four cents per bushel, through the winter, and the plaintiffs were to insure the defendant against damage by frost to the potatoes; and that the potatoes thus stored were damaged by frost during the winter, to an amount exceeding in value the price agreed on for storage. This was objected to by the plaintiffs’ counsel, and the offer was overruled by the court, the evidence excluded and the defendant’s counsel excepted. The judge, in his charge to the jury, stated that he had ruled out the defendant’s offer as to the special agreement to insure against damage by frost, inasmuch as the defendant would be estopped from setting it up by his subsequent agreement, if they believed the witness by whom the subsequent agreement was sought to be proved.
    To this portion of the charge the defendant excepted. The jury found a verdict for the plaintiffs, upon which judgment was entered. The General Term ordered a new trial, and the plaintiffs appealed from that order, and stipulated that if the same should be affirmed, judgment absolute might be entered against them.
    The cause was submitted on printed points by

      Wait and Reynolds, for the appellants.

      James Gibson, for the respondent.
   Davies, J.

The only question presented for consideration in this appeal is, as to the correctness of the ruling of the judge at the trial excluding the evidence offered by the defendant. The reason given by the judge for such exclusion, in his charge, is, that if the jury believed the testimony of Smith, then that evidence was improper, inasmuch as the defendant was estopped by the agreement testified to by Smith, from setting up the agreement offered to be given in evidence by him. But this was begging the very question which the jury had to decide; and if the proposition stated was a legal and correct one, it furnished no ground for the exclusion of the evidence offered. If sound, it was eminently proper to have so said to the jury, in commenting upon the effect of that evidence, but it furnished no ground for its exclusion. Smith’s testimony had been seriously impeached, and in one particular contradicted. The evidence offered by the defendant tended to weaken if not wholly to discredit it, and if it would not have had that effect, then it was admissible, as setting up a distinct and substantive cause of defense, and which it is conceded would have been available to the defendant, unless he had done something to preclude him from availing himself of it. This it is not pretended he had done, unless he was estopped from setting it up, and whether so estopped or not, depended entirely on the testimony of Smith. If he was not credited, then the foundation of the estoppel was gone, and the relevancy of the excluded testimony is conceded. The exclusion of the testimony, therefore, necessarily assumed the credibility of the testimony of Smith; thus drawing from the jury the consideration of that question, and deciding it by the court. This is in substance conceded by the judge in his charge to the jury. Without intimating any opinion as to the effect of the evidence, and whether or not the defendant would have been estopped, by the agreement testified to by Smith, if the jury should have found that such an agreement had in fact been made, I am clearly of the opinion that the testimony offered was improperly excluded, and that the order of the General Term granting a new trial should be affirmed.

Johnson, J. (dissenting.)

The jury having found that the defendant made the agreement testified to by the plaintiffs’ witness, shortly before removing the potatoes, the plaintiffs were, of course, entitled to recover the amount thus agreed upon. That question was properly submitted to the jury, and there was no exception to the charge in that respect. The exception which was taken to the charge was to that part of it, only, in which the judge stated that he had ruled out the evidence offered as to the insurance upon the potatoes, and gave a reason why the defendant was not entitled to introduce it. Ho exception could be taken to that part of the charge, as it related only to matter not before the jury. It was simply telling the jury that the defense offered had been ruled out in the course of the trial, and there was nothing before them for then consideration but the agreement which was alleged by the plaintiffs to have been made between them and the defendant shortly before the potatoes were removed. This was true, and furnished no ground of exception. The evidence offered having been ruled out, the question was not before the jury; and conceding that the judge in stating that fact, gave an insufficient or unjustifiable reason for having shut it out, no exception could be taken to it as it presented nothing for the jury to act upon.

The plaintiffs are therefore entitled to retain their verdict, and to have their judgment upon it, unless there was some error committed in the course of the trial, in receiving or rejecting evidence. The only ruling in this respect, complained of, is that rejecting the evidence offered of the contract of insurance of the potatoes against frost. That ruling was clearly right. It was new matter constituting, if true, a perfect defense to the action, but matter which should have been pleaded in order to entitle the defendant to prove it. Ho such matter had been set up or even hinted at in the answer.

The fourth answer set up distinctly an ordinary contract of bailment, and assigned as a breach the negligence and carelessness of the plaintiffs, by means of which the potatoes became frozen and injured. This is a contract entirely different from the one offered to be proved.

The contract set up in the answer, and the one offered to be proved, are altogether different, and there is no rule of law which will allow the one to be proved under a complaint or answer, counting upon, or setting up the other. They are essentially unlike in" their entire scope and meaning. It seems to have been assumed by the Supreme Court that this evidence thus offered was rejected upon the ground that the defendant was estopped by reason of the new agreement from proving any other. But this does not appear from the case. Ho such ground of objection appears to have been taken by the plaintiffs’ counsel, and the law certainly will not presume that an insufficient and untenable ground was taken, when one perfectly tenable is so obvious. It is for the party alleging error to see that the evidence of it is spread upon the record, or the contrary will be intended. It is quite true that had the defendant set up this contract in his answers he should have been allowed to prove it, and to show, if he could, that it was still subsisting, and had not been waived or annulled by a new agreement subsequently made. As long as it was an open question whether the new agreement had been made the defendant certainly was not estopped from attempting to establish a prior agreement, and that it was still in force. But the case presents no such question. There was no such ground of objection. Even admitting that what the judge said to the jury in his charge, is to be taken as evidence of the reason which operated upon his mind in rejecting the offer, it is no evidence of the ground of the objection taken by the plaintiffs’ counsel. An erroneous reason given by the judge is never permitted to affect a decision otherwise correct. But this remark of the judge to the jury affords no legal evidence whatever either of the grounds upon which the question was decided, when it was raised and passed upon, or of the grounds of the objection taken. It may afford, perhaps, plausible grounds for conjecture, but nothing more. If the objection, or the decision, was placed upon any such ground, and the defendant intended to rely upon the ruling as erroneous, it should have appeared affirmatively in the case. But the exception is to the ruling generally, which for aught we can see was perfectly correct. Of course a new trial cannot be granted or sanctioned merely because the ground of the objection to evidence offered does not appear in the case. I am of the opinion, therefore, that the order granting a new trial is erroneous, and should be reversed, and judgment ordered for the plaintiffs on the verdict.

All the other judges being for affirmance,

Judgment affirmed.