author: Balcom, J.

text:
    Rider & Trotter v. The Union India Rubber Company.
    The defendant used the property of the plaintiffs in its (the defendant’s) "business, under the belief of its managing agent that the company had purchased it; and the plaintiffs left the same in the possession of the Company, because it was their intention to sell the same to the company, and they expected the company would páy for it.

      Held, 1. That the possession of the defendant being lawful, the statute of . limitations was no "bar to a recovery for the tise of the property for the six years next before the commencement of the suit.
    2. That notwithstanding the fact that the plaintiffs intended to sell the property to the defendant, and expected the latter would pay them for the same, the law would imply an agreement by the defendant to pay the plaintiffs the value of the use of the property during the time the same was used in its business.
    3. That a former suit, brought by the plaintiffs, against the defendant, to recover the value of the same property as upon a sale thereof, and a judgment therein for the defendant on the ground that there was no sale and delivery of the property to the defendant, were not a bar to the present action to recover the value of the me of the property; and that tfie defendant was estopped from insisting that the plaintiffs could have recovered the value of the property, in the former1 suit, had they produced all their evidence.

      This action was brought in the New York Superior Court on the 10th day of October, 1856, by the plaintiffs as assignees of Goodyear & Ely. Two claims or causes of action were stated in the complaint. The first was for $1000, the alleged value of the use of one steam heater or curer, twenty-one work tables, one cylinder, stove, one cast iron stove, two hundred and seventy-three pounds stove pipe, two pair shears, one set tin scales and weights, one pair patent shears and fire shovel, three coal scuttles and one pan, oril counter, two willow baskets, one marking pot, one date box and three inkstands, one tin letter' box, nail box and hammer, nine stools, one wire basket, one show case, one sign and pole, one blower, poker and fan, and six large packing boxes, from the 1st day of November, 1848, until the 1st day of October, 1855. It was alleged in this claim that the property was worth $824, when the defendant commenced using the same; but that the same, or the larger part thereof, had been consumed and rendered worthless by the defendants during the said time they had used .the same.
    The second alleged claim or cause of action was, that on or about the 1st day of September, 1855, the plaintiffs demanded a return of the above mentioned property, then being of the value of $200, and also then being in possession of the defendant; and that the defendant neglected or was unable to return the said property, or but a small part thereof. That the defendant had since purchased the said work tables from the plaintiff’s, which were of the value of $30, at the time of such demand, for which the defendant was entitled to credit.
    The plaintiffs demanded judgment against the defendant for $1000, with interest- from October 1, 1855, and costs.
    Four different defenses were set up in the answer. Two of them were a former suit in bar, and the statute of limitations, which are sufficiently noticed in the opinion of Judge Balcom.. The other defenses need not be particularly stated, as no question was raised respecting them.

      The action was tried before a justice and a jury, at a special term of the Superior Court, in April, 1859. It appeared on the trial that the plaintiffs derived title to the property in question as assignees of Henry B. Goodyear and William F. Ely, for the benefit of the credit'ors of the latter. The defendant was incorporated in August, 1848, and commenced business at Harlem in the fall of the same year. The plaintiff Eider was then treasurer of the defendant, and continued*as such until the 19th day of January, 1852. The plaintiff Trotter was president of the defendant (the company) from the time it was organized, until 1851. • The defendant used the property in the business of the company from November, 1848, until the greater portion of it was worn out, destroyed or injured. The plaintiff Trotter demanded the property of the defendant, in October, 1856. The demand was made upon the secretary of the company. The secretary replied by telling him to take the goods if he could find them, but that the company did not acknowledge the plaintiffs owned any. Trotter testified that the plaintiffs took all the articles that were not destroyed or worn out; that the heater was broken to pieces, and other articles were then used up or worn out and thrown into the company’s yard.
    The plaintiff Eider testified that the property in question went into the possession of the defendant in November, 1848, and that “it was the intention of the plaintiffs to sell all these articles to the company, and for that reason they were left in the possession of the company.” Also, “I don’t know that any of the articles in the complaint mentioned were ever sold; we expected the company would pay for them.” •
    Emory Eider testified that he was managing agent of the company up to the summer of 1850, and that the .company used the property in question in their factory at Harlem. He was asked by the plaintiff’s counsel: “Was there any agreement known to you, between Trotter and Eider, assignees, and the company, about the use of this property ?” (The defendant’s objection to the question was overruled and an exception taken.) The witness then answered: “There w.as. The company were to buy them. That was the only agreement between the parties.” He also testified that he understood from Trotter, about six weeks after the company was organized, that the company was to buy this property of the assignees. That he, as managing agent of the company, took the responsibility of using the property in question in the company’s business. “We had use for the property and we expected to buy it; I knew it was to be sold. I supposed the company had bought it of the assignees of Goodyear & Ely. I proposed to Trotter that we should buy the articles. I am not aware that the subject of buying these articles was talked over at the meeting of the directors.”
    The plaintiffs proved, undqr the objection and exception of the defendant, that the value of the property in question was $824, when the defendant commenced using the same; that the value of the annual use of the same was at least ten per cent of the value and interest on the value, and that such value was reduced ten per cent by depreciation, each year.
    The plaintiffs put in' evidence a judgment roll, which showed that they sued the defendant in the H. T. Superior Court in 1854, and claimed in that suit to recover the value of the property in question in this action, on the ground that they had sold and delivered such property to the defendant; and that they failed to recover the value of such property in that suit, on the ground that they did not sell and deliver to the defendant any of such property. The defendant’s counsel objected to the judgment roll, on .the ground that the defendants never claimed, and did not then claim, that they purchased this property of the plaintiffs. But the objection was overruled, and the defendant’s counsel excepted.
    At the commencement of the trial of this action, the plaintiffs expressly waived the right to recover the value of the property in question, and stated that they went for the value of the use only. When the plaintiffs rested, the defendant’s counsel moved for a nonsuit, without specifying any ground therefor. The motion was denied, and the defendant’s counsel excepted.-
    The defendant’s counsel put in- evidence resolutions and by-laws of the company, for the purpose of showing that the plaintiffs could not, when officers of the company, make any valid contract for the sale of the property to the defendant, or for the use of it by the defendant; and he claimed that the defendant did not make any valid agreement with the plaintiffs as assignees, either for the use or purchase of the property, and that" the defendant purchased the property of Rider & Brothers.
    The defendant proved by one Shepard that the curer was not much used after February, 1853, when he became -secretary ; that it might have been used two months after he went there in February, 1853; that they certainly did not use it after the winter or spring of 1854; that it was then used up.
    When the evidence was closed, the' defendant’s counsel moved that the complaint be dismissed, on the grounds,
    “ 1st. It is in proof that the defendants commenced using the property in November, 1848, and demand was made October 1,1855 or 1856, and therefore no action can be brought for the property.
    2d. There is no proof of hiring, and no rent or value of use can be recovered, unless there be a hiring.
    3d.. The plaintiffs not being able to recover the property, can not recover for the rent.”
    The motion was denied; and the defendant’s counsel excepted “upon each ground.”
    The judge charged the jury as follows: “The defendants claim that they took possession and have used the property as purchasers thereof, from Rider & Brothers, under the resolution of November, 1848; that they took possession as purchasers with the consent of the ■ plaintiffs, and of Rider & Brothers, in the belief that all such articles were included in the purchase from Eider & Brothers. If the plaintiffs included in their purchase from Eider & Brothers the articles in question, or if they acquiesced in the payment of the $30,000, by the defendants, and consented to their taking possession and using the articles under the belief that such articles were included in the purchase, they are now estopped from claiming title in themselves, as assignees of Goodyear & Ely, and can not recover for the articles, and the defendants will he entitled to a verdict.
    If, on the contrary, the articles were not included in the purchase, and the plaintiffs did not acquiesce in the payment of that sum by the defendants, and consent to their taking possession of and using the articles under a belief that the articles were included in the purchase, then the plaintiffs are entitled to recover, the value of the use for the period during which the property was used, within six years anterior to the commencement of this suit, (October 10,1856,) as you shall find that value to be, under the evidence, with interest from the commencement of suit.” .
    The defendant’s counsel excepted to that part of the charge which allowed a recovery for the use for any portion of time, more than six years having elapsed since they began the use: and also to that part which allowed the jury to find interest, it being an unliquidated account.
    The jury rendered a verdict in favor of the plaintiffs for $500 damages, and $88.50 interest thereon.
    The defendant’s counsel, upon a case and exceptions, made a motion at a special term for a new trial, which was denied, and judgment was rendered on the verdict against the defendant, with costs. The order denying the motion for a new trial, and the judgment, were affirmed at a general term of the Superior Court, and the defendant appealed to this court.

      A. Thompson, for the appellant.

      John T. Hoffman, for the respondents.
   Balcom, J.

The verdict of the jury settled the question that the defendant did not purchase the property of Eider & Brothers, or obtain or use .the same in a way to estop the plaintiffs from claiming title in themselves as assignees of Goodyear & Ely; also that the plaintiffs were the owners of the property.

The facts in the case are, in substance, as follows: The defendant used the property in its (the company’s) business, under the belief of the managing agent that the company had purchased it; and the plaintiffs left the same in the possession of the company, because it was their intention to sell the same to the company, and for the reason that they expected the company would pay for it.

The property was such as the company needed in its business, and the plaintiffs assented to its use by the company until they demanded it, on the 9th day of October, 1856, which was one day. prior to the time this action was commenced.

The statute of limitations was no defense to the action; for the plaintiffs were not permitted to recover for the use of the property, except during the time the defendant used it, within six years next before the commencement of the action. (See Davis v. Gorton, 16 N. Y. Rep. 255; Sherwood v. Phillips, 13 Wend. 479.)

I am unable to see how the prior use of the property by the company^ relieved the company from paying for the use of it within the six years; for the company was not guilty of a wrongful conversion of the same before it was demanded of the secretary. Its previous use by the company was with the knowledge and assent of the plaintiffs, and therefore was lawful.

The question whether-the plaintiffs could recover the value of any portion of the property, as for a conversion thereof at the time the same was demanded, is not in the case. For the plaintiffs, at the commencement of the trial, waived all claim to its value, and went for the value of the use only,

The former suit and judgment were not a bar to this action. The defendant’s counsel objected to the roll in" that suit being given in evidence, on the ground that the defendant never claimed and did not then claim that it purchased the property of the plaintiffs. The defendant is therefore estopped from now insisting that the plaintiffs could have recovered the value of the property in the former suit, if they had given all their evidence, on the ground that the same was sold and delivered to the defendant; and that the former suit and judgment were a bar to this action, within the rule laid down in Miller v. Manice, (6 Hill, 114.)

The judgment roll in the former suit was competent evidence to establish the fact that the defendant never purchased the property in question of the plaintiffs. But if such evidence was unnecessary, under the disclaimer of the defendant’s counsel that the defendant never claimed and did not then claim that it purchased the property of the plaintiffs, there was no legal error in admitting the roll in evidence. It only proved a fact which the defendant’s counsel conceded. ,

The defendant’s counsel contends that the plaintiffs could not recover for the use of the property, because the defendant took possession of it and used it under the belief of its managing agent that the company had purchased the same, and because the plaintiffs intended to sell it to the company and expected the company would pay them for the1 same. He relies upon Smith v. Stewart, (6 John. 46,) and Bancroft and wife v. Wardwell, (13 id. 489,) to sustain this proposition. The former case shows, that where there is a contract for the purchase of land, under which the purchaser enters into possession, but afterwards refuses to complete the purchase, the vendor can not maintain an action of assumpsit against him for use and occupation, but must resort to an action of trespass and ejectment to recover the mesne profits. ¡Nothing different was decided in the latter case; and no intimation wras made in either of those cases that the defendant could avoid liability for the use of the land when properly proceeded against therefor. Those cases therefore are not, in principle, against the recovery in this action, but rather favor it.

It is clearly just and equitable that the defendant should pay for the use of the property in question, while the same was used in its business; and the plaintiffs have only recovered for such use within the six years next before the commencement of the action.

The defendant, as has been seen, was not a wrongdoer in using the property, and was benefited by its use. The plaintiffs did not give or intend to give the use of the same to the defendant; and notwithstanding the fact that they intended to sell the property to the defendant and expected the defendant would pay them for the same, I am of the opinion the law implies an agreement by the defendant to pay the plaintiffs the value of the use of the property while the same was used in its business.

Implied contracts “ are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform.” (1 Cowen’s Tr. 2d ed. 47.)

The defendant is a corporation, and did not act in a manner to make a contract for the purchase of the property. Its managing agent did not profess to make any agreement either for its purchase or use. He testified that “we (meaning the company) had use for the property, and we expected to buy itand that he, as managing agent of the company, took the responsibility of using the same in the company’s business. Reason and justice, therefore, dictate that the defendant should pay the value of the use of the property while the same was used in its business; and I hold that the law implies the defendant agreed so to do.

The intention of the plaintiff to sell the property to the defendant, and their expectation that the defendant would pay for the same, do not, under the circumstances, forbid the idea of an implied agreement on the part of the defendant to pay for the use of the property, though I confess the point is not free from difficulty.

I should have been better satisfied with a judgment for the value of the property at the time the same was demanded of the defendant, and for the sum it had been depreciated by being used by the defendant. But the judgment is less than it would have been if it had been given in conformity to such a rule; and as all forms of action are abolished by the code, the defendant can not complain of the judgment as it now is.

A new trial would only damage the defendant; for the plaintiffs could recall their waiver of the value of the property, and recover a larger judgment, on another trial, than they now have.

The point has not been made by the defendant’s counsel, that interest was not allowable from the time the action was commenced,

My conclusion is, that no error was committed on the trial to the prejudice of the defendant, and that the judgment of the Superior Court should be affirmed, with costs.

Davies, J. also read an opinion in favor of affirmance.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Crans and Van Duzer v. Hunter and others.
    A debtor can not have the benefit of a compromise and release effected by his agent, with bis creditors, without adopting all the representations made by the agent, to the creditors, in negotiating the same.
    The release will be no better in his hands than if he had personally obtained it and made the same representations to the creditors, to procure it, that his agent made to them.
    The compromise of a doubtful claim is a good consideration for a promise to pay money; and when an action is brought upon such a promise, it is no answer to show that the claim was not a valid one.
    Where it is not entirely certain that creditors can not avoid a compromise, and release of their debtors, for the misrepresentations which constituted an inducement for them to execute it, if the debtors, on a demand being made upon them for the unpaid portion of their debt, compromise the claim by giving their notes for the amount, the notes are valid, and the makers become legally liable to pay the sum for which they were given.
    Such notes may he retained, and enforced, by the holders, without returning, or offering to return, the goods or money received by them under the former compromise.
    This action was brought in the Supreme Court to compel the defendants to deliver up to the plaintiffs for cancellation two negotiable promissory notes for $100 each, which the plaintiffs had executed and delivered to the defendants, and which had not become due ; and to recover back the money the plaintiffs had paid to the defendants in taking up two other promissory notes for $100 each, which had become due. „
    The action was tried before a referee. The following facts were indisputably established by the pleadings and evidence, to wit: The plaintiff Crans was indebted to the defendants for merchandise, on the 25th day of July, 1856, in the sum of $980.34. On that day Crans effected a compromise with the defendants and most of his creditors, by conveying what real property he had in this state, (his wife joining in the conveyance,) and also what personal property he had in this state, to one Hubbard, in trust for the creditors who were parties to the compromise. The defendants, and such other creditors as were parties to the compromise, in consideration of the execution .of the trust d'eed by Grans and his wife to Hubbard, executed a release under seal to Grans, and delivered the same to him, by which they released all claims and demands they had against him. The property so conveyed to Hubbard only paid the defendants, and other creditors of Grans similarly situated, about fifty cents on a dollar of their demands. #

    At the time the compromise was effected, the defendants knew Grans owned a valuable farm and some personal property situated in Pennsylvania. Hubbard acted for Grans and one of the firms whom Grans owed, and who were parties to the compromise, in effecting the compromise. He represented to the defendants that the Pennsylvania property was incumbered for all and more than it was worth, whenjt was not incumbered for as much as it was worth. He also stated to the defendants that it would be best for Grans’ creditors to make the compromise; ánd upon these reprsentations of Hubbard the defendants executed the release, and became parties to the compromise.
    About the 1st of March, 1858, Grans went into the defendants’ store in the city of Hew York, when the defendant Buckley said to him; “We, have never given up -the old matter yet; [the debt released.] We know we signed the release, but we never calculated to give that matter up; we calculated to have something more out of it; and now what are you going to do about it ?” Grans- replied that he supposed it all settled. Buckley" then accused Grans of lying to the defendants when the old debt was contracted, by representing that his property was worth double what it was in fact worth; or said that Grans’ property was not worth over one half he represented it to be.” Buckley then figured upon the old account and made out that over $500 remained unpaid thereon. And Grans and the plaintiff Van Duzer, on the 4th day of March, 1858, in consideration of the premises and to pay the balance of such account, executed and delivered to the defendants four negotiable promissory notes for the payment of $100 each. Two of which had become due and were paid by the plaintiffs before this action was commenced. Two of such notes had not become due, and were owned and held by the defendants when this action was commenced, and were in the words and figures following, viz:
    “ WaDery, March 4, 1858.
    $100. Twelve months after date, we promise to pay to the order of Hunter, Buckley & Co., one hundred dollars at Waverly Bank, Waverly, H. Y., value received.
    (Signed) Cbans & Yak Duzeb.”
    “ Waverly, March 4, 1858.
    $100. Sixteen months after date, we promise to pay. to the order of Hunter, Buckley & Go., one hundred dollars at Waverly Bank, Waverly, H. Y., value received.
    (Signed) Cbans & Yan Duzeb.”
    The plaintiffs demanded these notes, and the money they paid in taking up the other two notes, of the defendants prior to the commencement of the. action. The defendants refused to comply with the demand. The plaintiffs obtained an injunction restraining the defendants from negotiating the two notes which the plaintiffs had not paid.
    The referee found the following conclusions of fact and law, viz: The release was procured from the defendants under the following circumstances. One John W. Hubhard, acting on behalf of Mr. Brown, another creditor of Grans, visited him at Waverly; after talking over Grans’ affairs with him,' Hubhard called on the defendants, with the knowledge and consent of, and by an arrangement with, the plaintiff Grans, to induce his creditors to execute the said compromise. On exhibiting the schedule of property proposed to be transferred, all of which was in Hew York, the defendants Buckley and Hunter inquired about the Pennsylvania farm, which Grans had represented to them before that he owned; Hubbard replied that that farm was incumbered for more than it was worth; and that the property on the schedule was all he had, except his Pennsylvania property. Grans had not authorized him to make- this representation,! hy any thing he had said. Huhhard himself acted in good) good faith. The representations of Hubbard constituted an inducement to the defendants to sign the release.
    At the time the release was executed, Grans owned half of a farm of 156 acres in Bradford county, Pennsylvania, his interest in which was worth $6875, which was incumbered by three judgments of $1000, $1500 and $1672. The last mentioned judgment was $5000 on the record, but it had been paid down to $1672. But this fact was not known to,. Hubbard or the defendants. At the same time Grans owned half of the personal property on the farm, which half was worth $675. He also then owned half of another lot,, whióh half interest was worth $675; he also then owned half of another lot, which half interest was worth $125; and he also owned a wood lot worth $100.
    The defendants heard, some months before the four notes ^ were given, that this Pennsylvania farm was in fact worth some $2500 more than the incumbrances upon it. They had received under the trust deed some $450, and had never returned or offered to return what they so received, and never gave any notice that they should treat the release as void for fraud in obtaining it. The four notes for $100 each were voluntarily given, and not obtained by duress. But there was no legal consideration for either of them. Two of them were paid at maturity and two were still held by the defendants.
    The referee also found that the plaintiffs were not entitled to recover back the money they paid to the defendants when they took up two of the $100 notes. But that the plaintiffs were entitled to a surrender of the other two $100 notes, and were also entitled to recover costs.
    The defendants’ counsel excepted to the findings of the referee so far as they were against the defendants.

      Judgment was entered in favor of the plaintiffs upon the decision of the referee, and in conformity therewith.
    The judgment was affirmed at a general term of the Supreme Court in the first district. The defendants appealed therefrom to this .court.
    The case was submitted upon printed briefs.

      Sidney S. Harris, for the plaintiffs.

      E. More, for the. defendants.
   Balcom, J.

Crans could not have the benefits of the compromise and release without adopting all the representations that Hubbard made to the defendants in the negotiations for the same. The release was no better in his hands than if he had personally obtained it and made the same representations to the defendants to procure it that Hubbard] made to them. (Bennett v. Judson, 21 N. Y. Rep. 238; 23 Wend. 260; 1 Hill, 317.)

The referee found that Hubbard represented to the defend-' ants that the farm in Pennsylvania, of which Crans owned1 one half, “ was incumbered for more than it was worth,” and that such representation “ constituted an inducement to the defendants to sign the release.” He also found that only §1672 was due upon the $5000 judgment, which was one of the liens on the farm; and his figures show that Crans’ half of the farm was worth $2703 more than all the incumbrances on it at the time the compromise wa-s effected; and that the value of the other real and personal property Crans then owned in Pensylvania was $880. Crans retained all this property; and the defendants then supposed what property he had in Pennsylvania was incumbered for more than it was worth. He did not deal fairly with the defendants. I say this, because the misrepresentations which Hubbard made to the defendants are to be deemed his misrepresentations. The defendants only obtained about half of their debt by the compromise. Over $400 of the same remained unpaid. The defendants therefore had at least a doubtful claim against Grans for that sum, when he and Yan Duzer gave them the four promissory notes in question, for $100 each. The referee therefore erred in holding that “there was no legal consideration” for either of such notes. It is well settled that the compromise of a doúbtful claim is a good consideration for a promise to pay money; and that when an action is brought upon such a promise, it is no answer to show that the claim was not a valid one. (Stewart v. Ahrenfeldt, 4 Denio, 189; Seaman v. Seaman, 12 Wend. 381; Russell v. Cook, 3 Hill, 504.)

It is not entirely certain that the defendants could not have avoided the compromise and release for the misrepresentations that constituted an inducement for them to become parties thereto, and recover their debt of Grans. Hence when Grans compromised the defendants’ claim for the unpaid portion of such debt,- and he and Yan Duzer gave the notes in dispute therefor, they became legally liable for that portion of the debt included in the notes. (See Stafford v. Bacon, 1 Hill, 532.) The notes, therefore, were valid.

The appellants’ counsel claims that the notes were valid, for the alleged reason that a promise by a debtor, after the execution of a voluntary release under seal by the creditor, at the debtor’s request, to pay the balance of the debt, is founded on a sufficient consideration-and is binding. He has submitted a very interesting brief in support of this propo- “ sition. There is considerable authority that sustains it. (See Willing v. Peters, 12 Serg. & Rawle, 177; Comyn on Con. 4th Am. ed. p. 20; Downsend v. Hunt, 3 Croke’s Rep. 408; Tuck v. Tooke, 12 Moore, 438; 4 Man. & Ry. 393.) The authorities in this state and Massachusetts seem to be" the other way, (see Stafford v. Bacon, 1 Hill, 532; S. C., 2 id. 353,) where it is stated that the opinion of Helso) - Ch. J., to the contrary, published in 25 Wendell, page 38a. was delivered to the reporter by mistake. (See also Valen tine v. Foster, 1 Metcalf, 520.) But the view I have taken of the case renders it unnecessary to express any opinion upon this question. (See Goulding v. Davidson, 26 N. Y. Rep. 604.)

The' decision of the referee can not he sustained for any insufficiency in the answer. The complaint contains the allegation that the release was given by the defendants “ with full knowledge of all the material facts affecting their rights.” They denied this, and had the right to controvert the same. Besides, %e parties litigated the case upon the merits, and it is too late for the plaintiffs to object to the sufficiency of the answer. (1 Kernan, 237; 3 id. 127; 18 N.Y. Rep. 585; 20 id. 355; Dauchy v. Tyler, 15 How. Rep. 399.)

There is nothing in the point made by the plaintiff's counsel that the defendants could not retain and enforce the notes without returning, or offering to return, the goods or money received by them under the compromise. Grans waived the right to require this, if he ever possessed it, when he settled with the defendants, and delivered to them the notes in question. He agreed, when he gave the notes, that they might retain whatever they had received or would receive under the compromise, and that he and Van Duzer would pay them $400 besides, according to the tenor and effect of the notes they gave therefor.

For the foregoing reasons I am of the opinion the judgment of the Supreme Court should be reversed, and a new trial granted, costs to abide the event.

Denio, Oh. J. also delivered an opinion for reversal.

Judgment reversed, and a new trial ordered.


author: Emott, J.

text:
    The People v. Cornelius Vanderbilt.

    A crib or pier, erected in the waters of the harbor of New York, is a public nuisance, unless the party erecting the same is authorized to build it, at that place, by some power competent to confer an authority.
    By a resolution of the common council of the city of New York, passed in May, 1853, and appoved by the mayor, permission was given to the defendant to widen a small pier on the south side of .pier No. 1 North river, on the 'southerly side, so as to make the same forty feet wide, and that it be extended parallel with pier No. 1, to the exterior line, at a distance of one hundred and fifty feet from said pier, under the direction of the street commissioner. EM, that the mayor and common council had no authority to grant the defendant such permission.

      Edd, also, that the crib sank by the defendant, and the proposed pier, were a purpresture, and were^er se a public nuisance. That the offer, therefore, to prove that the crib and proposed pier were not, and would not be, an actual nuisance, and would not injuriously interfere with or affect the navigation of the river or bay, was properly overruled.
    The act of March 27,1821, “ to provide fo.r the expense of extending the battery in the city of New York,” &c., did not authorize the common council to pass such a resolution; inasmuch- as the defendant was constructing the proposed pier for private objects, and not for the purpose of extending the battery.
    The remedy to prevent the erection of a purpresture and nuisance, in a bay or navigable river, is by injunction at the suit of the attorney general.
    ' Appeal, from a judgment of the Supreme Court. The action was brought to restrain the defendant from énlarging a pier, known as pier Ho. 1 Horth river, adjoining the battery. See report of the case, in the Supreme Court, 38th Barbour, 282; where the ' facts are fully stated. The Supreme Court, at general term, affirmed the judgment of a special term, by which the defendant was perpetually enjoined from proceeding in the erection of the pier &c., and was directed to abate the alleged nuisance, and to remove the same. The defendant appealed to this court.

      Wm. Allen Butler, for the plaintiffs.

      C. A. Bapallo, for the defendant.

       Decided March term, 1863.

   Emott, J.

It. can not he douhted that the crib or pier which the defendant commenced erecting in the waters of the harbor of New York was a public nuisance, unless he was authorized to build such a structure at that place by some power competent to confér such authority. Woolrych says: “An obstruction in a public river is a nuisance,” such as the erection of a wharf “so as to narrow the river;” and “at the common law any encroachment upon a public stream was considered to be purpresture; that is to say, the making of that several and private which ought to be common to many.” (Woolrych on Waters, Law Lib. 4th series, vol. 53, pp. 192, 195.) It was held in Hart v. The Mayor of Albany, (9 Wend. 571,) that it is not lawful for an individual, without grant, to construct and moor a floating storehouse or vessel for the receiving and delivering of goods and merchandise in any public river, or in any port or harbor, or in the basins or docks thereof; and that such permanent appropriation and exclusive occupation of a public river, &c., is an obstruction to its free and common use, and is indictable as a public nuisance. (See The People v. Cunningham, 1 Den. 524.)

The defendant claimed at the trial, and still claims, that he was authorized to construct the proposed pier by a resolution of the common council of the city of New York, which was passed by such council, and approved by the mayor of that city on the 16th day of May, 1853. By that resolution permission was attempted to be given to the defendant to widen a small pier on the south side of pier No. 1 North river, "on the southerly side, so as to make the same forty feet wide, and that it be extended parallel with pier No. 1, to the exterior line, at a distance of one hundred and fifty feet from said pier, under the direction of the street commissioner.

The mayor and common council of New York had no authority to grant the defendant such permission. It ha? been held in England that a legal grant from the crown can not make an erection in a public river for private purposes legitimate; and that the right of the public to the unobstructed use of navigable waters is paramount to any right of property in the crown. (Woolrych on Waters, Law Lib. 4th series, vol. 53, p. 194.)

The defendant’s counsel insists that the “act to’ provide foi the expense of extending the battery in the city of New York, and for other purposes,” passed March 27, 1821, (Laws of 1821, p. 158,) authorized the common council of that city tc pass the resolution in question. But he is mistaken. Foi it is obvious that the defendant was constructing the proposed pier for private objects, and not for the purpose of extending the battery; and the act referred to, after providing for the extension of that part of the city called the battery “into the bay and North and East rivers,” not exceeding six hundred feet, declared that the title to the land that distance under the water was vested in the mayor, aldermen and commonalty of the city of New York, “to remain for the purpose of extending the said battery for a public walk, and for erecting public buildings and works of defense thereon, but without any power to dispose of the same for any other use or purpose whatsoever, and without any power of selling it, or any part thereof.”

The defendant sank the crib, and was constructing the proposed pier further into the waters of the bay and North river than any person could lawfully erect one, according to chapter 763 of the laws of 1857, (vol. 2, page 638,) or chapter 522 of the laws of 1860, (p. 1062.) The defendant can not avoid liability for what he did and intended to do, on the ground that the proof does not show that the people sustained or would sustain any actual damages by the crib or proposed pier. It was held in the case of The King v Ward, (4 Adol. & Ell. 384,) on a trial of an indictment for a nuisance in a navigable river and common king’s highway, called the harbor of Cowes, by erecting an embankment in the water-way, that a finding of the jury that the embankment was a nuisance, but that the inconvenience was counterbalanced by the public benefit arising from the alteration, amounts to a verdict of guilty; also that it is no defense to .such an indictment, that although the work be in some degree a hindrance to the navigation, it is advantageous in a greater degree to other uses of the port.

The crib sank by the defendant and the proposed pier were a purpresture, and were per se a public nuisance. (See Waterman’s Eden of Injunctions, vol. 2, p. 259, ch. 11.) The offer, therefore, of the defendant’s counsel to prove, by the testimony of witnesses, that the crib and proposed pier were not, and would not be, an actual nuisance, and would not injuriously interfere with or affect the navigation of the river or bay, was properly overruled^

The remedy to prevent the erection of a purpresture and nuisance in a bay or navigable river is by injunction at the suit of the attorney general. (Wat. Eden of Injunctions, vol 2, ch. 11; Davis v. Mayor &c. of New Yorh, 4 Kern. 526; Attorney General v. Richards, 2 Anst. 603.)

In the case last cited, the information stated that the defendants had erected a wharf or key, two docks and other buildings, between high and low water mark, in Portsmouth harbor, so as to prevent the boats and vessels from sailing over that spot, or mooring there, &c., and prayed that the defendants might be restrained from making any further erections; that those made might be abated and the harbor restored- to its ancient situation; and the court decreed that the buildings be abated.

The judgment in' the case at bar is, that the defendant be restrained from erecting the proposed pier, &c., and that he remove the crib within thirty days after service upon him of a copy of the judgment.

Ko authority has been cited to show that it was erroneous to require the defendant to remove the crib, and I think dhere is none. This part of the judgment is right upon principle, and is somewhat supported by the case of Attorney General v. Richards, (supra,) and it ought to stand.

The judgment of the Supreme Court should be affirmed, with costs.

Selden, J. also delivered an opinion for affirmance;

All the Judges concurring in the result,

Judgment affirmed.


author: Denio, Ch. J. Emott, J.

text:
    Mary Hartung, plaintiff in error, v. The People, defendants in error.

    H., having been convicted of murder, and been sentenced in March, 1859, to be executed, this court-reversed the judgment, because the legislature had subsequently (in 1860) enacted a statute which forbade the execution of sentences of that character, and had required that such convicts should be imprisoned for one year, and then executed, if the governor should issue his warrant for that purpose; the court considering the provision for imprisonment and death in the same case, to be an ex post facto law, and holding it to be void. Eeld, that H. could not be again tried and convicted for the same murder. That the reversal of the judgment against her, proceeding as it did upon the absence of any law for the punishment of her offense, had effectually exempted her from being again tried and sentenced for the murder charged in the indictment,, as it shielded her from the execution of the sentence already pronounced; and was equivalent to an acquittal upon that charge.

      Eeld, also, that the effect of the act of 1860, “in relation to capital punishment,” &c., was to forbid, from the time of its passage, the infliction of the penalty of death, simply, and unconnected with any other punishment, in any case, and tó substitute for such penalty the year’s imprisonment, and then the putting to death of the offender, in some form, if the governoi shall so determine. That the substitute might have the full effect intended as to future offenses, but could have no operation in respect to those already committed.

      Held, further, that the Act of April 17,1861, (chap. 303,) “inrelation to cases of murder,” &c., repealing the Act of 1860, and restoring the previous statutes, did not affect the case of H.; the judgment reversing and annulling her conviction having been previously pronounced, and being res adjudícala between the people and her.
    It was also held, that' the award of a new trial by this court, on reversing the previous judgment, was improvidently entered, the prisoner being entitled to her discharge, as the facts involved were contained in the record.
    Error to the Supreme Court. The decision sought to be reviewed-and reversed is reported in 23 Howard’s Prac. Eep. 314. The facts are there fully stated. The judgment was that the judgment of the court of oyer and terminer should be reversed, and the demurrers to the replications overruled, with leave to the defendant to rejoin, or to withdraw the special pleas in bar, and to proceed to trial upon the plea of not guilty, to the indictment, &c.

      Wm. J. Hadley, for the plaintiff in error.

      Ira Shafer, district attorney, for the defendants in error.

       Decided March term, 1863.

   Denio, Ch. J.

When the case of the plaintiff in error came before us on a former occasion, she had been convicted of murder upon a legal trial, and had been sentenced to be executed. This court then reversed the judgment, because the legislature had subsequently enacted a statute which forbade the execution of such sentences as that which had been pronounced against her, and had required that such convicts should be subjected to imprisonment at hard labor for one year, and, as we construed the legislative intention, should thereafter be executed if the governor should issue his warrant for such execution. We considered this provision for imprisonment and death in the same case to be an ex post facto law, and held it to be void, because the constitution of the United States had prohibited the states from enacting such laws. It was considered to be ex post facto, because it attempted to change the punishment which the law had attached to the offense of the prisoner when it was committed, not by remitting some desirable portion of it, but by altering its kind and character. The principle of the judgment then rendered has been since reaffirmed and applied in the case of Shepherd v. The People, decided in December last, but not yet reported,

Laying out of view for the moment the act relating to murder, passed in the year 1861, and considering this case as uninfluenced by that act, the inquiry is, whether this convict can be again tried and convicted for the same murder ? The legislature, by declaring that persons under sentence of death when the act of 1860 was passed, instead of being executed according to their sentences and according to the law as it had existed up to that time, should be put to hard labor for a considerable period, and afterwards hold their lives at the pleasure of the executive, and be executed when in his discretion he should think proper so to order, did respectively repeal, as to that class of offenders, the prior law for the punishment of murder. As the punishment' attempted to be substituted for that provided by the antecedent law which had been abolished, could not be applied on account of the constitutional prohibition, it followed inevitably that the interference of the legislature had rendered it impossible that the prisoner should be punished under either law. It was not a sufficient answer to the difficulty to say that the members of the legislature did not probably intend to grant impunity to offenders in the situation of the prisoner. They did intend to abrogate as to her, and as to all persons in the same situation, the former punishment, and that design they effectually carried out. They intended also that such offenders should be punished in another way, but this they could not effect on account of the constitutional inhibitions. ■ The reversal of the judgment against this prisoner, proceeding, as it did upon the absence of any law for the punishment of her offense, has effectually exempted her from being again tried and sentenced for the murder charged in the indictment, as it shielded her from the execution of the sentence already pronounced. If a new verdict of guilty should be returned on a second trial, it would be impossible to render a judgment of death pursuant to the revised statutes, because the legislature had forbidden her to be punished in that way. It would be as true after such fresh trial and verdict, that she was a person who had been under sentence of death, when the act of 1860 was passed, as it was when we reversed the judgment; and the same reason which compelled us to reverse that judgment would preclude the giving a similar judgment upon the second verdict, and would require the reversal of such second judgment, if one should be rendered. It would be equally impossible to pronounce the compound judgment of imprisonment at hard labor, and a subsequent execution, as'mentioned in the act of 1860, because the con-st! tutionál objection to that law would apply to the case after a second trial, and a new conviction, in the same manner as it did to the judgment rendered upon the first conviction. It is therefore apparent to my mind, that in reversing the judgment which had been rendered against the prisoner, we necessarily determined that the legislature had so interfered with the arrangements for the punishment of the crime of murder, that a particular class of offenders, embracing the' prisoner, could not be punished at all. It was the duty of the court of 'oyer and terminer to give effect to that judgment, in its disposition of the prisoner’s case, upon the record being remitted to that court. ‘ The order which it made was in accordance with the law as it was here adjudged, and unless the act of 1861 affects the case, we think it was the only order which it could lawfully make.

There is a view of this case which requires some further explanation. If it were true that the only part of the act of 1860 which was designed' to reach the case of offenses committed before that act was passed was the 10th section, which declares that persons then under sentence of death or awaiting sentence upon a conviction for murder should be punished' in a particular way, and if all other provisions of the act were prospective only, then inasmuch as the substituted punishment could not be inflicted, on account of the ex post facto character of the provision contained in that section, it might be argued that the section was void, and that it being the only provision abolishing the punishment provided by pre-existing laws, the prisoner ought to have been left to suffer according to her sentence, which was pronounced under and in accordance with these laws. It is therefore a material inquiry whether, b.y the true construction of the act, the former punishment was abolished generally, and the new one substituted in respect to all offenses of murder already committed ? The act commences, in the first section, by declaring that no crime thereafter committed, except treason or murder in the first degree, shall be punished with death. The following sections, to the 6th inclusive, are devoted to the new definition of murder in the first and in the second degrees, and to the mode of punishing these offenses, namely, by one year’s imprisonment at hard labor, and then by a capital execution if and when the governor shall issue his warrant as to the first, and by perpetual imprisonment at hard labor as to the second degree. If the act had stopped here, it ought, I think, to have been considered as wholly prospective, and it would have left the pre-existing law's to apply to offenses committed prior to the act. But the seventh section, which immediately follows, is an alteration of the section of the revised statutes which denounced the penalty of death for treason, murder and the first degree of arson. It declares that it shall be amended so as to read as follows: “Every person who shall hereafter be convicted of treason, murder, and arson in the first degree, as those crimes are respectively defined in this title, shall be punished as herein provided.” The words “herein provided” must be construed to refer to the provision for punishment contained in the act, and not the one mentioned in the revised statutes, though if the section as thus amended kept its place in the title of the revised statutes, to which it belongs, according to the system of amendments made in-that form, the reference would be to those statutes. But such a reading would leave all these offenses without any punishment whatever, and certainly could not have been intended. Where new provisions or modifications of existing provisions are enacted by declaring that a particular section shall be amended so as to read in a given manner, -in the form made use of in this case, the new part is to be construed, as regards the subject upon which it is to take effect, .in the same manner that an independent statute, having the same provisions, ought to be construed. (Ely v. Holton, 15 N. Y. Rep. 595.) In interpreting this section upon that principle, the new punishment mentioned in it is attached to all future convictions, without regard to the time when the offense was committed. It is possible that such a verbal construction might, if there were nothing of a contrary tendency in the act, be forced to yield to the principle that a retrospective effect is not generally to be given to an act of the legislature- when it can be avoided, But this could' only be accomplished by rejecting the natural meaning of the language. Passing over these seventh and eighth sections as not material to the present question, we come to the tenth, which, as already mentioned, declares that all persons then (that is, at the time- of the taking effect of the statute) under sentence of death, or convicted of murder and awaiting sentence, shall be punished as if convicted of murder in the first degree under the act;-that is, by both imprisonment and death. This renders it perfectly certain, as it seems to me, that the change of punishment was intended to apply to offenses already committed. Persons who had been convicted before the act was passed must, of course, have committed the offenses of which they were convicted prior to that time. There might be a good reason for suffering offenders, who had been condemned ip the course of criminal proceedings, to receive the punishment which the law had annexed to their offenses, though it might at the same time be judged proper to change the punishment of those who had riot yet been presented; but there can be no conceivable motive for inverting the position, by suffering the old law to remain as to offenders who were yet to be tried, while such as had received judgment under the former law should have their sentences changed by legislative enactment. The reason for a change of punishment in regard to actual convicts would apply with greater forc,e to offenders who had not yet been prosecuted. Thff intention of the legislature seems to me very plain. The amendihent of section one of the fourth part of the revised statutes prescribed the new punishment for all future convictions; and as it was not intended that the old punishment should ever be resorted to, the case of persons who had been actually sentenced or tried and convicted, and who were awaiting sentence, was taken up, and their punishment changed by the usual expedient of a "legislative revision, so as to conform them t'o the altered rule, which had-been established respecting future convictions, and for all other cases. The last section of the act furnishes additional evidence to the same effect. It repeals, by their numbers, twelve sections of the revised statutes. The repeal is absolute, direct and immediate. Those sections, it is said, “are hereby repealed.”' On looking at those repealed sections it will be seen that they contained provisions inconsistent with the new mode of punishment, though well suited to the former method. Section twelve required the execution to take place at a time not more remote than eight weeks from the time of the sentence, which of course would not admit of the year’s intermediate imprisonment. Section thirteen required the judge who presided at the trial, immediately to send to the governor a statement of the conviction and sentence, with his notes and the testimony. There was no other apparent motive for this repeal, except that it was re-enacted in the same language in the new statute. The repeal of the fourteenth section, which empowered the governor to require the opinion of certain judicial officers upon the statement, proceeded.upon some motive not apparent to me. The sixteenth, seventeenth, eighteenth and nineteenth sections of the revised statutes provided for the case of convicts alleged to have become insane, after being sentenced to death. A summary inquiry to determine the fact of insanity was to be instituted before a jury, and if the convict was thereby found to be insane, the execution was to be suspended until the sheriff should receive a warrant from the governor, or from the justices of the supreme court, directing the execution. The inquiry as to the existence of insanity would be pertinent under either system of punishment; but to the arrangement which required a preliminary imprisonment of one year, and then the governor’s determination that execution should take place, the provision which gaye the judges ■ authority to issue the warrant would be hostile. The sixteenth and seventeenth sections were therefore' allowed to stand, and the eighteenth was amended by the eight section of the act of 1861, by repealing the part allowing the judges to issue the warrants. The section was changed in another particular, not material to the present question. By the nineteenth section the governor was authorized, as soon as he should be convinced of the sanity of the convict, to appoint a time and place for his execution. As this might. interfere with the year’s preliminary imprisonment, at hard labor, the section was embraced among those which were repealed. Three of the repealed sections, the twentieth to the twenty-second inclusive, make certain provisions for the case of a female sentenced to death, and discovered to be pregnant. An inquiry into the fact is directed, and the execution is to be suspended until the impediment shall have ceased to operate, when the governor is authorized to fix a day for it to take place. This would be unnecessary and inapplicable where a year’s imprisonment is required to intervene between the sentence and the capital infliction, though coherent and judicious as applied to the former law. A similar motive existed for repealing sections twenty-three and twenty-four, because, under their provisions, a capital execution might take place within one year from the time of the sentence. They required the Supreme Court to appoint a time for the execution of a capital sentence, when the time fixed by the sentence itself, had, for any reason, passed by, and to issue their warrant to the sheriff for that purpose. This would take from the governor the discretion which the new mode was intended to vest in him, and might require the execution to take place within the year.

The reason for the repeal of section twenty-five, which declared that the punishment of death should be by hanging, it is more difficult to understand. As it seems clear that it was designed by the authors of the statute that capital punishment should in some cases be inflicted, I am inclined to suppose that the repeal of this provision was inadvertent. It is not, however, necessary to solve that doubt. The actual and immediate repeal of the sections is certain, and the consequence is the same, whatever may have been the motive which led to it.

One of the sections of the revised statutes, stated to have ■been repealed by the last section of the act of 1860,-is section twenty-nine. There is no such section in that title, the section numbers ending at section twenty-seven; but the substance of an act of 1846 (ch. 118) is incorporated into some of the late editions of the revised statutes, and is there numbered twenty nine, and it is this provision which is attempted to be repealed. (See R. S., 5th ed., vol. 3, p. 938.) It provides for the case of a prisoner under sentence of death, being confined, in a jail in another county from that in which he was convicted, in consequence of the proper jail being unsafe, &c.; and the direction is, that the sheriff of the county in which he is actually confined shall, on the day appointed for the execution of the sentence,” perform that duty. It was seen that this enactment, if literally followed, would compel an execution without allowing a space for the year’s imprisonment, and hence it was repealed.

I have been thus particular to state the effect of this repealing section, which took effect immediately upon the passage of the act of which this is a part, in order to show the persistent determination of the legislature that no capital execution under the former laws should thereafter take place, and to establish that there is no ground for saying that the change of punishment was intended to be prospective merely, or that there was an implied saving in the statute' in respect to offenses theretofore committed. The plain direction, by which the new rule is applied to all future convictions ; the express provision made to embrace the cases of offenders already convicted and sentenced, and the present repeal and amendment of all those portions of the revised statutes which would conflict with the immediate operation of the new mode of punishment, demonstrate, I think, the design of the legislature to apply that mode to all future execution of sentences of death, whenever the offense was committed, and whenever the conviction took place. I have not overlooked the rule of interpretation, by which general language in a statute is required to be construed prospectively and not retrospectively, unless a contrary intention plainly appears. A somewhat strained construction is allowed in such cases, •when necessary to prevent injustice or public inconvenience, and in furtherance of a presumed general intention of the legislature., But the section of this statute, by which offenders, who had been actually tried, convicted and sentenced when it was passed, are expressly subjected to the new punishment, forbids any such forced construction in the present case: We know with absolute certainty that it was designed by the authors of the law to' apply the new punishment to the case of offenders who had been already convicted under f,hé antecedent law, and we can not therefore refuse to give effect to the language by which they, in terms, subject all ¡future convicts' to such new penalty, upon any suggestion that they did not intend what their language naturally imports. The- effect of the provisions of this statute therefore is, to forbid, from the time of its passage, the infliction of the penalty of death, simply and unconnected with any other punishment, in any case, and to substitute for such penalty the year’s imprisonment, and then the putting to death of. the offender in some form, if the governor shall so determine. The substitute may have the full effect intended as to future offenses, but can have no operation in respect to those already committed, for the reason which has been mentioned. But the pre-existing law having been displaced by a repeal, to make room for the substituted system, it can not be resorted to for any purpose, though such substituted system, in one aspect of it, can not be upheld.

Some portions of the opinion prepared by Mr. Justice Sutherland, in Shepherd v. The People, (supra,) may be considered hostile to a portion of the reasons given for the judgment in' Hartung v. The People, as reported in the 22d volume of the N. Y. Beports, and which I have now more fully explained; but so far as that opinion conflicts with these reasons, it was unnecessary to the determination of the case, and was not concurred in by a sufficient number of the judges to pronounce a judgment.

We are of opinion that the act of 1861 does not affect the case of the plaintiff in error. If it could apply to persons in the situation in which she was when the act of 1860 repealed the penalty to which she was subject by the antecedent law, it must be by retracting the repealing clauses and reinstating such antecedent law, and directing its application to her case and to the cases of all other persons similarly situated. But while the repeal remained unaffected by any subsequent law, the process against the plaintiff in error came before this court in the regular course of justice, and the question was presented whether the conviction and judgment which had been pronounced respecting her should be affirmed and executed, or should be reversed and annulled as unwarranted by the then existing law; and the judgment was that it should be reversed and annulled.

No question can now be made as to the legal propriety of that determination. It is res adjudicata between the people of the state and the plaintiff in error. Now, acts done and closed, pursuant to a law which is subsequently repealed, must endure and stand, and be good and effectual notwithstanding such repeal. (Dwarris on Statutes, 534.) This was. the case as to the alleged offense of the plaintiff in error. When the process against her was presented for final adjudication in this court, and it was found that there was no law authorizing the punishment of her imputed offense, a judgment was pronounced in her favor, which absolved her from being again legally questioned for that offense. It was equivalent to an acquittal upon that charge, for it was the judgment of a court of competent jurisdiction, that in the then state of the law she could not be subjected to punishment. The effect of the repealing act of 1860 was to expunge the prior law from the statute book as completely as though it had never existed. If the legislature was competent to change this state of the law by a repeal of the repealing act, and to thus blot out such first repealing act, so that it could not •thereafter be availed of, which it is not necessary to deny, still it could not, in my judgment, destroy the effect of a judgment pronounced in the meantime, and while the first repealing act was in force. Suppose a person had been prosecuted after the passage of the act of 1860, and before its repeal by the act of 1861, for an alleged murder committed before the passage of such first mentioned act, and had been acquitted, not for want of proof of the corpus delicti, but upon the ground on which we proceeded when this case was before us for the first time, namely, that the act of 1860 had repealed the provisions of the revised statutes for the punishment of murder, no one, I suppose, would maintain that such a person could be again prosecuted for the same offense, after the enactm'ent of the statute of 1861. Such prosecution, in my judgment, would be liable to be defeated by two conclusive objections: first, that.the act of 1861, as applied to such a case, would be an ex post facto law, and unconstitutional. By the repeal of the provisions of the revised statutes, and the trial and acquittal of the offender, while such repealing law was in force, the act of the prisoner, though not innocent in a moral sense, would be dispunishable. A legislative act restoring the repealed law would have precisely the same effect as though the offense had not been punishable originally, but had been made so for the first time by the restoring act. Such a law would be within the spirit of the constitutional prohibition, and would, in my opinion, be void. The other objection referred to, would arise under the constitutional injunction that no person shall be twice put in jeopardy for the same offense. These would be good pleas at the common law,.and the'constitution only affirms the principle, and renders it unalterable by any exertion of the law-making power. But it does not apply when the indictment was defective, so that no lawful judgment could be rendered upon jt, or in the case of a mistrial, as where there was no verdict, or where the trial jury did not consist of the full number of twelve jurors, or where a new trial had been ordered on account of erroneous’rulings on the first trial, or in cases of the like nature, nor where the jury was discharged upon necessity without rendering a verdict. In this class of cases it may be said that the accused was never in legal jeopardy. But when neither the indictment nor the trial was subject to any legal ’exception, but the conviction or judg- ' ment has failed of its natural effect by the interposition of the government or of the prosecution, it would be contrary to the spirit and intention of the rule, and of the constitutional provision in affirmance of it, if the accused could be subjected to another trial for the same offense; and, moreover, as it seems to me, it would be manifestly unjust and-oppressive. If the legislature can authorize a second tria, where there has heen a conviction which has become ineffectual by its own interposition, it may do so when there has been an acquittal. The two cases fall within the same reason. I have not considered it necessary to refer to the numerous cases where the rule and its exceptions have been the subject of judicial exposition, because the most material of them have been very carefully examined in the opinion in the beforementioned case of Shepherd v. The People. That case itself is a precedent for the judgment I am about to recommend in the present instance. The offense of Shepherd, which was arson in the first degree, was committed prior to 1860, and his trial, upon which he was convicted, took' place , in the early part of 1861, and before the enactment of the' act of that year. He was sentenced to perpetual imprisonment, in intended obedience to that act. The revised statutes, in force when the act of which he was accused was perpetrated, did not, as we held, warrant the mode of punishment, and the act of 1860 was held to be void in its application to that case, as being an ex post facto law. We were, of course, bound to reverse the judgment of the oyer and terminer, which had been affirmed by the Supreme Court, and the question then arose whether it was proper to award a new trial, or whether the accused should be discharged. This involved the consideration of the effect of a trial and verdict perfectly legal and regular upon an indictment in all respects sufficient, and where the only error consisted in pronouncing a judgment which was not warranted by any law. It was determined that the prisoner had been once placed in jeopardy in the sense of the constitutional provision, and we added to the reversal of the judgment an order that he should be discharged. The question did not arise, whether he could have been sentenced under the provisions of the' revised statutes, as no such sentence had been given. The point adjudged was the same which is now presented. In neither case was there any defect or error in the indictment, trial or verdict. In the case of Shepherd the judgment was illegal; in that of the present plaintiff in error, the judgment had become illegal by the repeal of the law by which it was once authorized; but we held in the case of Shepherd that the former convic-> tion precluded the possibility of a second trial, and on that ground we made the order for the discharge of the prisoner. The principle thus settled shows that the judgment of the oyer and terminer in the present case was correct.

I have intentionally omitted, in what h^s thus far been said, to make any reference to the order which was entered for a new trial when the judgment against the plaintiff in error was reversed. If the effect of the judgment of reversal under the circumstances, and for the reasons upon which it proceeded, was such as to render another conviction impossible, the order so entered would not deprive her of the benefit of that judgment. It did not in terms direct a new trial upon the issue of not guilty of the murder of which she stood charged, and in connection with the reasons which were given for the judgment of reversal, it could not well have been so understood; for we, hold that whether guilty or not, the legislative interposition and the constitutional prohibition against changing the punishment which existing laws had attached to an offense already committed_, prevented any sentence against her. Besides, her guilt of the act charged had been established by an unexceptionable trial and verdict. If she had been punishable under the revised statutes,' notwithstanding the act of 1860, the judgment was correct as it stood, and there was no reason for reversing it. If the provision substituting a different punishment had been constitutionally valid, there was still no reason for reversing the judgment, for the governor and sheriff could have executed the writ of the legislature, and it Avas the design of the act that it should be executed by those officers in the case .of a conviction and sentence which remained unexecuted when the act of 1860 passed, without any further resort to the courts. The judgment of reversal, even independently of the reasons given, necessarily affirmed that she could not he punished under either of these legal provisions, and as there were no other modes of punishment, it followed that she could not he punished in any way. The formal order for new trial, if it meant a new trial for the murder, upon the issue which had been once tried and determined, would have been plainly inconsistent with judgment of reversal, as well as with the reasons upon which it proceeded. If it had been understood as a mandate to the oyer and terminer to proceed with the case in accordance with the principles established by the judgment of reversal, the discharge of the prisoner might have been ordered by that, court without a further trial, the facts involved being contained in the record. Enough appears in the case, as now presented, to show that the award of a new trial was improvidently entered, and the whole case being legitimately before us, on this writ of error, we are bound to give effect to the law as it has been pronounced, and we accordingly reverse the judgment of the Supreme Court, and affirm that of the oyer and terminer, and direct the prisoner to be discharged.

Emott, J.

delivered an opinion, in which he examined at length the question whether it was necessary that a judgment should have passed "to support a plea of autre fois convict—which was discussed in the Shepherd case. The learned judge had not seen the opinion in that case, but arrived at the same conclusion as Mr. Justice Sutherland had done. He also concurred in the opinion of Judge Sutherland, that such a reversal as that in this case does not impair the right to plead the former conviction in bar. “ The reversal in this court of the former judgment in this case is strongly analogous to the result of praying benefit of clergy in England in its consequences. This fact remains, notwithstanding that this prisoner has been tried, convicted and sentenced without error in the process, indictment, pleadings or trial. As this appears from the record itself, I have no hesitation in saying that the replications were e no answer to the pleas.”

Judge Ehott declined to consider the effect of the repeal • of the statute of 1860, and the passage of that of 1861, as necessary to his determination that the judgment should be affirmed.

All the Judges concurring with Denio, Oh. J.

Judgment affirmed.

         Since reported, 25 N. Y. Rep. 406,


author: Wright, J.

text:
    William G. Sands, Receiver of the Ætna Insurance Company of Utica, v. Jacob Sanders, jun.

    An assessment, in form, need not specify the name of the party hound to contribute, nor the amount of the note. A general assessment is good by which the receiver declares that each premium note is assessed to the full amount thereof.
    When it appears to a receiver, from the liabilities of the company, and the times at which the liabilities accrued^ and from an examination of all the ■ classes and notes of the company, that there is no note that is not chargeable, to its entire amount, for liabilities which justly attached during the existence of the policy accompanying such note, a general assessment upon all the notes, without regard to classes, and to their full amount, is unob- . jectionable.
    All the notes of a mutual insurance company constitute its capital, whether they be'in one department, or another; and if the necessity exists, resort must be had-to the entire fund.
    If a company divides its applications for insurance into three classes, one of which is the "hazardous department,” and a premium note is in that department, the maker is first liable to contribute for losses in that department; but if the losses do not exhaust such note, what is left is applicable to the payment of losses in the other departments during the running of his policy.

      This action was upon a premium, note, of which the following is a copy:
    “$180.00. For value received, in policy Ho. 1477, dated 8th October, 1851, issued by the iEtna Insurance Company of Utica, I promise to pay the said company, or their treasurer for the time being, the sum of one hundred and eighty dollars, in such portions and at such time or times as the directors of said company may, agreeably to their charter and by-laws, require. Jacob Sanders, Jr.”
    The consideration of the note was a policy of insurance, which insured the defendant’s property for one year from October 8, 1851. The company was chartered on the 28th March, 1851, under the act entitled “An act to provide for the incorporation of insurance companies,” passed April 10, 1849, and was located at Utica, in the county of Oneida. On the 16th January, 1854, an order was made at special term, by Judge Pratt, restraining the company from further exercising its corporate rights, which order directed a reference for the appointment of a receiver, on which reference Edward Eames was appointed receiver. By order of the 19th February, 1855, this court at special term ordered an assessment by said Eames; and notes were by him assessed, including the defendant’s note, which was assessed for losses which accrued whilst said note was in "force. The assess'ment was made to pay losses in the hazardous department. This assessment was confirmed, and notice of the assessment was published for three successive weeks in only two daily newspapers in Oneida county. The collection of this assessment was stayed by injunction, in an action brought by Hubbard and Terry against the company and the receiver. The principal ground of the injunction complaint was, that the assessment was made principally to pay losses which had accrued on policies of insurance, for which a premium in cash was paid in lieu of a premium note; which action was tried on the 27th October, 1856, before Justice Wm. F. Allen, when Mr. Kernan and Mr. Grridley were heard for the plaintiffs, and Mr. Kellogg and Mr. Hunt for the defendants. The court found, as a question of law, that the premium notes were not liable to be assessed for losses arising upon insurances based on a cash premium, and that the said assessment should be set aside and vacated; and it was adjudged that the premium notes were not legally liable to be assessed for claims for losses on policies issued for' a cash premium, and the assessment was set aside. But on the 4th Monday of June, 1856, this finding and order, so far as it 'adjudged to the prejudice of creditors upon the liability of the assets to’pay their claims, on motion of said creditors was vacated, (reported 22 Barb. 597,) and the order at special term was affirmed on appeal, and an order was made referring it to Joseph Benedict, as referee, to take proof of the assets of the company and of the claims due from the company, and the creditors were made parties defendant. Hot, until the 16th June, 1860, was the injunction which stayed the receiver from assessing or collecting notes vacated or modified, when the same was set aside on motion of the attorney for the creditors. This referee notified all the creditors, including this defendant, of- the reference to prove claims, and both Mr. Kernan and Judge Grridley attended the reference for Hubbard and Terry and the other note makers, and the losses as adjusted were for losses where premium notes were given to
    the amount of.....' . $13,025 99
    Losses in cash department on policies issued for a
    cash premium only, . . •. 124,104 60
    $137,130 59
    The entire notes of the company, including premium and original stock notes, amounted to $167,428.96.
    An order of June 9, 1856, directed the appointment of a receiver in place of said Fames, and said Sands, the plaintiff, was duly appointed. The company was dissolved by judgment, in the case of Thompson and other judgment creditors against the company, and by the said judgment'of the 3d Monday of June, 1860, dissolving the company, the plaintiff was confirmed in his appointment as receiver. And the said judgment recognized the claims allowed by said Benedict,, referee, and directed the new receiver to adjust and allow claims. The judgment also directed the receiver to make and collect assessments.
    The assessment was made' on the 23d June, 1860, and each of the premium notes was assessed to the entire amount due thereon, and the assessment was ordered to be paid by the 22d day of August following. The assessment was published as required by the by-laws of the company. The by-laws provided that notice of the assessment be published for three weeks, not less than thirty days prior to the time fixed for payment, in three papers published in Oneida county. Section 8 of the charter provided that any person applying for insurance might pay a cash advance premium and give no premium note. Section 11 allowed the company to divide its applications into classes, and restricted the assessment of premium notes to its class. It does not appear by the by-laws that the company had several departments, and yet practically there were different departments. The assessment was confirmed by order, of the 26th of June, 1860. Personal demand of payment was made of the defendant on the 23d of June, 1862, and the payment, was refused.
    The note was assessed by this plaintiff to its entire amount, to pay losses which accrued whilst the policy accompanying the same was in force.
    The action was tried before' a referee, who found that the defendant’s note was in the hazardous department, and that the losses which accrued in that department, “and which are due and not paid, for the time the defendant’s note and policy were in force, were more than can be collected on the notes of that department, which were in force and were liable for the losses and expenses which accrued during the year that the defendant’s note and policy were in force.”
    The plaintiff was nonsuited for the reasons,

      First. That the assessment of the receiver Eames is invalid, as the notice thereof was published in but two newspapers in the county of Oneida.

      Second. The assessment of the plaintiff of the 23d day of June, 1860, is void, as the same is general, and thereby all the notes in all classes and of all dates were assessed to their full amount.
    On appeal at general term, no opinion was delivered by the court, the court regarding a former decision made in the case of this plaintiff against Smith Shoemaker, as controlling this action. The evidence in the Shoemaker case was adopted and made a part of this case, with the same exceptions and rulings.
    An appeal was had from the judgment ordered at general term to this court.

      Henry R. Mygatt, for the appellant.

      Henry P. Townsend, for the respondent.

         Decided April term, 1863.

   Wright, J.

The action being upon a premium note of the defendant, an assessment was a necessary condition to its maintenance. In February, 1853, and after the company in which the defendant was insured became insolvent, Eames, the then receiver of such company, assessed the note in action to the amount of $64.57, for losses which accrued while the defendant’s policy and note were in full force and effect, and for expenses for which his note was chargeable. The collection of this assessment was stayed by injunction in a suit brought against the company and the receiver, and such injunction was not vacated or set aside until June, 1860. On the 23d of June, 1860, the plaintiff (who before that time had been appointed receiver in the place of Eames) assessed the defendant’s note to its full amount for losses and for expenses and liabilities accrued while the note and policy were in force, and also for expenses and liabilities incurred in executing the plaintiff’s trust as receiver, and which expenses were chargeable upon his note, If either of these assessments were regular and valid, the plaintiff was improperly nonsuited.

The only ground for claiming the assessment made by Eames to be illegal, is that notice thereof was published in two newspapers, printed in the county of Oneida. I do not think this was such an irregularity as to invalidate the assessment, and constitute a defense to the action. There was no provision in the charter of the ¿Etna Insurance Company for giving notice of assessment on the' premium notes; but one of its by-laws, adopted in 1851, prescribed the mode, viz: By publication in three newspapers printed in Oneida county, three weeks successively, the last publication of which shall not be less than thirty days prior to the time fixed for payment; and in such other newspapers as the directors or the executive committee may deem necessary or expedient.” It is not important now to inquire what would have been the effect of the omission (o publish the notice in three newspapers printed in such county, of an assessment made by the directors or a receiver prior to 1853. In 1853, in remodeling" the general law for the incorporation of fire insurance companies, the directors of any mutual insurance company were authorized, after ascertaining the loss or damage by fire sustained by any member, or after the rendition of any judgment against the company for loss or damage, “to settle and determine the sums to be paid by the several members thereof, as their respective portions of such loss, and publish the same in such manner as they shall see fit, or as the by-laws shall have prescribed.” (Laws of 1853, ch. 466, § 13.) The statute thus left the manner of publication of notice of the assessment to the discretion of the directors. They might pursue the mode prescribed by the by-laws of the company, or any other mode of publication deemed advisable and proper.

Another provision of the statute would seem to strengthen this construction. Assessments are to be paid within thirty days next after publication of the notice; but a neglect or refusal to do so within such timé would not piit the assessed member in default so that an action could be sustained against him by the directors. Before he is in default, and a right of action upon his ‘note is given to the directors, he must not only have neglected or refused to pay within the time, but there must have been a personal demand for payment of the assessment made upon him, (ch. 466 of Laws of 1853, § 13.) The only object of the publication is to notify the members of the assessment, and the amount they are required to pay, and afford them an opportunity to make payment. All this is effected by the personal demand for payment, required to be made, and hence no injustice could be done by lodging with the directors a discretion as to the manner of publication. It is enough, however, for the purposes of this case, that since the statute of 1853, the directors of a mutual insurance company are not required to publish an assessment for losses in such manner “as the by-laws shall have prescribed,” unless they choose to do so. Having authority to publish it, “as they shall see fit,” they may adopt a mode of publication other than that prescribed by the by-laws, without invalidating the assessment. It may be conceded that it is a prerequisite to a recovery upon a premium note that there should be a publication of the assessment. But the statute has not restricted the mode of publication, but left it optional with the, directors to pursue that prescribed by the by-laws of the company, or such other “as they shall 'see fit.”

The receiver of an insolvent mutual insurance company is clothed with all the powers possessed by the directors for making and collecting assessments, (ch. 71 of Laws of 1852, § 2.) The referee has found that the. receiver Eames, in this case, published the notice of the assessment made by him in but two papers printed in the county of Oneida. The by-laws of the company provided that the publication should be in three newspapers. Eames was ne more than the directors would have been, at the time the assessment was made, restricted to the manner of publication prescribed by such bylaws. It is conceded that he published the assessment in two newspapers printed in the county of Oneida; and it was proved and found as a fact by the referee that the defendant was persqpally notified of it before the action was brought. Having a discretionary power or authority as to the manner of publication, the assessment was not invalid, nor was there a failure to put the defendant in default for not paying, for the reason that the latter was not notified of the assessment through the medium of three, instead of two newspapers printed in the county of Oneida.

The assessment of the receiver Sands was not objectionable, for the reason assigned by the referee. An assessment, in form, need not specify the name of the party bound to contribute, nor the amount of the note. A general assessment is good, by which a receiver declares that each premium note is assessed to the full amount thereof. There is no indefiniteness or uncertainty about it, and the maker of each note is distinctly informed of the sum he is required to pay thereon. It was no objection to the assessment, in this case, that the premium notes in all classes and of all dates were assessed. All the assets of the company that came to the hands of the plaintiff as receiver, were the capital stock notes, amounting to about §100,000, and premium notes of all classes and dates to the amount of §67,000; and these assets were insufficient to pay the losses and expenses due from the company. The company had divided its applications for insurance into three classes, one of which was known as the hazardous department, and the premium note of the defendant was in that department. The amount of losses in the hazardous department, due and unpaid, which accrued during the year the defendant's note and policy were in force, was more than could be collected on the notes of that department which were in force, and were liable for the losses and expenses of that year. In addition, the losses and expenses of the company were more than the stock and premium notes of all classes and fiates would pay. When it appears to a receiver, from the liabilities of the company, and the times the liabilities accrued, and from an examination of all the classes and notes of the company, that there is no note that is not chargeable to its entire amount for liabilities which justly .attached during the existence of the policy accompanying such note, a general assessment upon all the notes, without regard to classes, and to their full amount, is unobjectionable. All the notes of the company constituted its capital, whether they be in one department or another, and if the necessity exists, resort must be had to the entire fund. An assessment made to-day of one class to pay all the losses of that class, and an assessment to the residue of that class, at a future day, to pay the losses of another class, the assets of which are exhausted, would be idle and attended with unnecessary expense and delay, when the same could all be effected by one assessment. The defendant was liable to be assessed for losses occurring in the three classes of this company during the existence of his policy. If it required an assessment to the full amount of his note to pay such losses, the receiver could make it.

It is true that as his note was in the hazardous department, and his policy run for but one year, he was first liable to contribute for losses in that department, but if these losses did not exhaust his note, what was left was applicable to payment of losses in the other departments accruing during the year that his policy ran, and this was the precise condition of all the other premium note policy holders. The defendant, however, in this case, can not complain that the assessment was of the full amount of his note. It was proved, and the fact was distinctly found by the referee, that the ascertained losses accruing during the year that the defendant’s policy was in force, were more than could he collected on the notes of the hazardous department, which were in force and liable for the losses of that year. The receiver was consequently justified in assessing the defendant’s notes to the full amount, and it was not for him to object that the notes in other classes and of other dates than his own were assessed.

I am of the opinion that both assessments were valid, and that the plaintiff was improperly nonsuited.' The judgment of the Supreme Court should he reversed and a new trial ordered.

All the judges agreed to the validity of the last assessment. Davies, Rosekrans and Baloom, JJ., concurred as to Barnes’ assessment, and Emott, Denio, Selden and Marvin, JJ., dissented from the opinion as to Barnes’ assessment.

Judgment reversed.