author: Brady, J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK Respondents, v. CHARLES D. J. NOELKE and JACOB MARKS, APPELLANTS.

      Sale of lottery tickets of a corporation of another State — when an indictment therefor, is sufficient — one purchasing, with the intent of informing against the seller is not an accomplice— Gode of Criminal Procedure, sec. 399 — Gross-examination of a person who has testified in his own behalf— limits of it — what questions tend to impeach his moral character — Sem-ch wa/rrant — admissibility of, in midence — Gode of Criminal Procedure, sec. 792..
    Appeal by the defendants from a judgment of the General Sessions of the Peace in and for the city and county of New York, adjudging them to be guilty of a violation of the lottery law of the State.
    The defendants were charged in the indictment with having sold, on the 7th of March, 1882, to one Joseph Mattocks, a half ticket in the Louisiana State Lottery. They were arrested on the twenty-ninth of March by Mr. Anthony Comstock, who was a witness at the trial, and who at the time of the arrest searched their premises under the authority of a search warrant which he exhibited to them. He found and seized a quantity of lottery material, including a blank book containing the entries of tickets sold by them.
    The court at General Term said : “ A great many objections and exceptions were taken by the defendants’ counsel upon the trial. In the main they were general, no specific ground being stated. Hnder the rule which is applicable to such exceptions they may be regarded as valueless, raising no question in consequence of their general character. (Tooley v. Bacon, 70 N. Y., 34; levin v. Russell, 42 id., 251; Daley v. Byrne, 77 id., 182; Schile v. Brolchahus, 80 id., 614.)
    “ The counsel for the respondents has taken occasion to cite from the report of a western case the views of the court on that subject, which commend themselves to this court, namely: £ The practice of taking general and obscure exceptions at the moment, in order to cover the case and enable counsel on subsequent critical examination to raise points under the exceptions which have never been suggested at all to the mind of the trial judge, is objectionable on many grounds, and is contrary to the theory upon which points are allowed to be raised by exceptions.’ (Turner v. The People, 33 Mich., 363, 382; Adams v. State, 25 Ohio, 584, 587.)
    “ An examination of this case, however, has' led to the conclusion that none of the exceptions taken are of any validity, assuming them to have been presented in proper form to require this court to consider them. The first of these exceptions in the order of their importance, at least, would be those which relate to the form of the indictment. It is declared to be insufficient, for the reason that it simply alleges that the defendant sold a lottery ticket without describing the purpose or object of the lottery, or alleging that it was intended for the purpose of chance, or obtaining money, goods or valuable things, and, further, for the reason that it does not charge any offense in violation of the statute. The answer to this springs from the substance of the indictment itself, and is complete without reference to any of the adjudicated cases. It is alleged therein that the defendants unlawfully sold to one Joseph Mattocks a part of a ticket in a certain lottery not expressly authorized by law, commonly called the Louisiana State Lottery, and, further, that a more particular description of the lottery is to the grand jury unknown and cannot be given. The word ‘ lottery ’ has, it was said, no technical legal meaning. It must be construed in a popular sense, with a view of remedying the mischief intended to be prevented. It is defined by Webster, ‘ a scheme for the distribution of prizes by chance, or the distribution itself; ’ and he defines ‘ lot ’ as that which ‘causes, falls or happens; that which in human speech is called chance, fortune, hazard,’ and £ to draw lots ’ is to determine an event by drawing one thing from a number whose marks are concealed from the drawer, and thus determining an event. Worcester defines ‘lottery’ as ‘a hazard in which sums are ventured for a chance of obtaining a greater value.’ (Per Church, C. J., in WilMnson v. GUI, 74 N. Y., 63.) And in that case the language of Folger, J. (to be found in Pull v. Ruggles et al., 56 N. Y., 424), it was also said, might be adopted as a result of the accepted definitions, namely: ‘ Where a pecuniary consideration is paid, and it is determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to have for it, that is a lottery.’
    “With great deference to the suggestion of Chief Justice Chukch, it is nevertheless thought that the word ‘ lottery ’ has a technical legal meaning. It means precisely what, used in a popular sense, it described when employed in a statute affecting the subject it embraces. The legislature must be assumed to have used the word ‘ lottery ’ in its popular sense. It was the mischief of that species of gambling that was to be prevented. The people were to be protected from the allurements of the doctrine of chances by punishing the persons engaged in selling lottery tickets, and hence the statute. It would seem, therefore, to be a sufficient description of the offense to charge the sale of a lottery ticket, commonly called the Louisiana State Lottery. This is a statement in substance and effect that a chance in a scheme for the distribution of prizes was sold by the defendants, and which scheme was a violation of the law of the State.
    “ This is the effect of the word ‘ lottery ’ as used in the statutes, and in the indictment as well. It is impossible that the defendants, when thus charged, could be misled. They could not fail to understand the offense set out to be the sale of a lottery ticket for the Louisiana State Lottery, and that such lottery was to result in a distribution of prizes to successful ticket-holders.
    “ This would be a reasonably certain way of describing the crime committed.
    “ But the indictment went further than this. It set out the ticket, which is as follows:
    €© g c3 . 0> co ^ CO fcj <0 1 £ 3 S 'TS ■Hrl U3 v? ^ S' “
    “THE LOTJISIANA.LOTTEET COMPANY.
    Tuesday, April 11th, 1882 The Monthly Two-Dolla/r Drawing. This ticket entitles tbe holder thereof to one-half of such prize as may be drawn by its number in the within named drawing, if presented for payment before the expiration of three months from the date of such drawing. M. A. DAUPHIN, President.” (Printed across the face:) One four eight three six. 1 4 8 3 6
    Incorporated Aug. 17,1868.

      “ It will be perceived, upon a reading of this ticket, that it refers to ‘ the monthly two-dollar drawing,’ and declares that it entitles the holder to one-half of such prize as may be drawn, if presented for payment before the expiration of three months from the date of the drawing. The word payment conclusively shows that it was intended for the purpose of chance, and obtaining money, goods or valuable things. No other conclusion can be drawn from it by the impartial mind. This proposition is clear, unquestionable and undebatable. It has been held in a series of cases that such an element appearing in the indictment, it is sufficient under the laws of this State.
    Thus, for example, in The People v. Warner (4 Barb., 314), a case which has not been questioned, it was held that an indictment for vending a lottery ticket need not expressly aver that the ticket was of a lottery established or set on foot for the purpose of disposing of real estate, goods, money, or things in action, and that the character and description of the lottery need not form the subject of an express averment. It is sufficient if these appear argumentatively in the indictment, especially after verdict.
    “ It was contended in that case, as in this, that the indictment should expressly aver the vending of the ticket of a lottery established and set on foot for the purpose of disposing of real' estate, goods, money or things in action ; and this contention rested upon the authority of The People v. Payne (3 Denio, 88).
    “ In that case (People v. Wa/rner) the indictment charged the prisoner with £ selling a ticket in the Grand Consolidated Lottery of Delaware and Georgia, numbered 731, * * * which said ticket purported to entitle the holder thereof to one-quarter of such prize as might be drawn to its number, subject tó a deduction of fifteen per cent, payable forty days after the drawing,’ etc.

      “ The court said: ‘ The defendant has been proved to have sold a ticket of this description, namely, a ticket entitling the holder to a quarter of a certain prize, deducting fifteen per cent. It seems to us impossible to maintain that the lottery in this case was not established to dispose of prizes of real estate, personal estate, money or things in action. And it is difficult to entertain a doubt that the ‘prize’ was to be paid in money. The fortunate holder could not otherwise very conveniently receive his quarter, deducting fifteen per cent.’

      “ It mav be said in this case that it would be impossible to entertain a doubt that the prize was to be paid in money, for the reason that it must be presented for payment. It was further said in that ease: ‘ It is, however, argued that the character and description .of the lottery does not form the subject of an express averment.’ The court said : £ It is sufficient that it appears argumentatively (especially after verdict) since the enactment of the statute (2 H. S., 128, § 32), which declares that “ no indictment shall be deemed invalid, nor shall the trial, judgment or proceedings thereon be affected by reason of any defect or imperfection in matters of form which shall not tend to the prejudice of the defendant.’”
    “And in the ease of Pickett v. The People (8 Hun, 83), an indictment which charged the defendant with having willfully, unlawfully and knowingly sold what are commonly known- and called lottery policies to persons unknown to the jurors, and did then and there vend divers of said lottery policy tickets to persons to the jurors unknown, was held sufficient. Only reasonable certainty is required. The learned justice writing the opinion cited the case of The People v. Taylor (3 Denio, 91), in which the same doctrine is substantially maintained.
    “ So far as the case of The People v. Pa/yne (,supra;) is in conflict with the views herein expressed it has been, overruled. But an examination of it shows that the indictment contained nothing from which it appeared) argumentatively or inferentially, that there was to be a distribution of any property, real or personal. In the statement of the case it is said there were four counts for selling a ticket, a quarter of a ticket, a paper purporting to be a quarter of a ticket, and for bartering a paper purporting to be a quarter of a ticket in a certain lottery not authorized by the laws of the State. None of the counts stated for what purpose the lottery was opened or made, and nothing was set out from which it could be inferred. The case, therefore, is very different from the one in hand, in which it clearly appears from the ticket itself that there is to be a prize, and that it is to be paid, if won, on presentation of the ticket. * * *
    “ It was also objected on the trial that the witness Mattocks, having purchased the ticket, was an accomplice, and that under the provisions of the Code of Criminal Procedure (§ 399) no conviction is justified upon the uncorroborated testimony of an accomplice. The court upon this subject instructed the jury that they could not convict upon the uncorroborated evidence of the accomplice, and unless he was corroborated by such other evidence as tended to connect the defendants with the crime charged in the indictment. And further, that the corroboration was not sufficient if it merely showed the commission of a crime and the circumstances of it; so that the defendants had the full benefit of this rule in the instructions which the court gave. The difficulty with this proposition lies, however, at the root of it, namely, that Mattocks was not an accomplice. The ticket which he purchased was not bought with a criminal intent. It was purchased for the purpose of proving the fact of its sale by the defendants. The design of his application for a ticket was to show that the defendants were engaged in an unlawful business. There can be no doubt that a purchase made under such circumstances does not make the purchaser an accomplice. There must exist a criminal intent. This is settled both in England and in this country. (Beg. v. Mulhms, 3 Cox Grim. Cases, 526; People v. Farrell, 30 Cal., 316; Town of St. Charles v. O’Mailey, 18 Ill., 407; Campbell v. Commonwealth, 84 Penn. St., 197; Commonwealth v. Downing, 4 Gray, 29; State v. McKean, 36 Iowa, 343; Wright v. State, 7 Texas Ct. App., 574.)
    “Some of those cases are precisely in point. Indeed, it has become a necessity for the suppression of crime to resort to this mode of ascertaining whether a prohibited and criminal act may be committed, the victims of a business which it distinguishes failing in the moral courage to complain or to appear as witnesses. Without its use many crimes would increase in number and magnitude, the law be openly violated and the authorities helpless from the absence of such proof as may be required for a conviction. The utmost that can be said of the person employed is, that he is an informer, and leave to the jury the consideration of his evidence as such. Aside from this, however, it appears that Mattocks was corroborated on every point, as to Noelke at least, by his admission at the time of the arrest that he had sold to Mattocks.
    “It is also urged on behalf of the defendants to be doubtful whether, in the light of recent decisions of the Court o# Appeals, the vending of a Louisiana lottery ticket is an ofiense. This seems to be ■ a very extraordinary proposition. The Revised Statutes declare, as said in tbe case of Bull v. Buggies (per Folgeb, J., 56 N. Y., 426), that every lottery, game or device of chance in the nature of a lottery, by whatsoever name it may be called, other than such as have been authorized by law, shall be deemed unlawful. And in. the case of Grover v. Morris (73 N. Y., 476), Judge Andrews said expressly: £ Lotteries authorized by the laws of other States are unlawful here and are illegal within the meaning of the thirty-second section’ (referring to the statute). This is conclusively settled by the decisions construing other and cognate sections of the statute. And in the case of Ormes v. JDauohy et al. (82 N. Y., 443), and upon which the counsel for the appellants relies in this element of the case, although it was held that ‘ a contract made in this State to advertise a lottery in other States, in the absence of proof that such advertisement is in violation of the laws of those other States, will not be held illegal.’ It was expressly declared by the learned judge, writing the opinion of the court, that if the contract was for an advertisement of a lottery scheme in violation of our statute, then the judge erred upon the trial in denying a motion to dismiss the complaint upon the ground that the contract was void as against public policy. * * * All lottery schemes under our statute, whether they originate in this State or any other, are, under the authorities as shown, illegal, and subject those who are connected with them, by the sale of tickets, to arrest, conviction and punishment. (See Kohn v. Koehler, 21 Hun, 466.)
    “ It is also urged on behalf of the appellants that the court erred in permitting certain questions to be asked and answered by the defendant Noelke, who was examined on his own behalf. The appeal book does not contain the whole of the evidence given upon the trial. It is presented in a fragmentary form. These questions were all of them, however, germane to the offense and to the defendant’s business in connection with lottery schemes, lottery tickets and lottery policies. For example, he was asked: ‘Have you not been engaged since prior to 1877 at that place’ (namely, 238 Grand street) ‘ in the business of lottery tickets and lottery policies ? ’ The defendant declined to answer the question, lest it might tend to criminate him. The objection to this series of questions is predicated chiefly of the case of The Peojple v, Grajpo (76 N. Y., 291), in which the court said, that when the accused was offered as a witness on his own behalf, the prosecution, to entitle them to put to him, upon cross-examination, questions which are irrelevant to the issue and calculated to prejudice him with the jury, must at least be such as to clearly impeach his general moral character and his credibility as a witness, and that it was not legitimate to bolster up a weak case by probabilities based upon other transactions. These questions were clearly designed to impeach his general moral character and his credibility as a witness, because they related to transactions of an illegal character, in which, from the nature of the question, he was supposed to have been engaged. They were perfectly legitimate, therefore, although they were not all answered, as already appears from the refusal of the witness "to answer upon the ground that the answers might tend to incriminate him. * * *
    “It appears also in the case that the first witness called for the people was Anthony Comstock, who testified “that he was secretary and chief special agent of the New York Society for the Suppression of Vicethat he was a ‘peace* officer of this county’ and ‘ special deputy sheriff;’ that as such, on March 29, 1882, he went to defendant’s place of business at 288 Grand street, in the city of New York, in accordance with a search warrant issued upon certain affidavits; which search warrant was offered in evidence, and which search warrant had embodied therein a warrant for the arrest of said defendants in the indictment.
    “ The admission of the search warrant and the matter pertaining thereto was objected to on the part of the defendants upon the trial upon the ground ‘ that such document appears to refer to a different proceeding, relating to a different complaint, and having no reference to the subject-matter of this indictment.’
    “The court admitted it because the witness said that he went there with the warrant and called the defendants’ attention to the cause of arrest.
    “ It will be perceived that the objection to the admission of the warrant rested upon the proposition that it related to a different complaint, and had no reference to the subject-matter of the indictment. The counsel now arrays against it the assertion that it was issued without the authority of any statute and was an infringement upon the constitutional rights of the defendants and repugnant to tlie express provision of section 2 of the Bill of Eights. These views were not presented to the court below, and no objection of this kind was suggested. The counsel also assails it upon the ground that the statute of this State, prior to the adoption of the Code of Criminal Procedure, provided a variety of instances in which the issuance of search warrants should upon proper affidavits be admitted ; and he gives the instances and claims that none of the statutes existing were any authority for issuing such an instrument as that set forth in the case, but section 791 of the Code of Criminal Procedure defines, as he concedes, a search warrant to be 1 an order in writing in the name of the people, signed by a magistrate directed to a peace officer, commanding' him to search for personal property and bring it before the magistrate.’ And section 792 provides ‘ upon what grounds it may be issued,’ namely:
    “ 1. ‘ When the property was stolen or embezzled.’
    “ 2. ‘ When it was used as the means of committing a felony.’
    “3. ‘ W hen it is in the possession of any person with the intent to use it as the means of committing a public offense, or in the possession of another to whom he may have delivered it for the purpose of concealing it or preventing its being discovered.’

      “ The warrant in this case was predicated of proof by affidavit that certain property, to wit, what was commonly known as, or are called, lottery tickets, and certain writing cards, books, advertisements, circulars, notices offering prizes, and stating price of tickets, and when and where same may be had, documents, personal property, tables, devices and apparatus for the purpose of enabling others to sell or vend lottery policies or lottery tickets; and at, within and upon said premises, Charles D. J. Noelke and Jacob Marks did sell, vend, furnish and procure and have in their possession these articles in violation of the laws of the State of New York, with the intent to use the same as the means of committing a public offense, and to promote, maintain and carry on a common public nuisance, and averred that the justice had reason to suspect and believe that the articles and things aforesaid were then sold upon the premises of the said Noelke and Marks, situated at 238 Grand street. It is quite clear from the statement of the contents of the warrant that it justified the examination of the premises for the purposes stated, the allegation being that there was in the possession of the persons named, with intent to use it as a means of committing a public offense, certain property, viz.: tickets, cards, books, documents, tables, devices, etc. Considering the objections which are now urged for the first time on appeal against the introduction of this paper, it is quite clear that they are of no value; and further, that the original objection that it did not pertain to the offense charged against the defendant has no value, for the reason that an examination of the premises was germane to the subject of the indictment, viz.: the vending of a lottery ticket, which was the charge against the defendants, and which might be established in part by evidence found upon the premises affecting the business of selling lottery tickets there.” * * *

      Charles W. Brooke, for the appellants.

      WillAam C. Beecher, for the respondents.
   Opinion by

Brady, J.;

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Davis, P. J.;

license: Public Domain

text:
    JEREMIAH CANNON, Respondent, v. THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, Appellant.

      Policy of insurance — right of the parrty insured to assign it — law of another State— it is presumed to be the same as that of this State, though the latter differs from that held by the Supreme Court of the United States — proofs of loss may be made by ape/rson interested, though they relate to pei'sonal transactions with the deceased— Code of Ciml Procedure, sea. 839.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court:.
    This action was brought upon a policy of insurance made and issued by the appellant upon the life of one James H. Lloyd, for the benefit of himself, in the sum of $7,500. The appellant is a Wisconsin corporation, having its office and doing business at Milwaukee, in that State, and having an agency in the city of New York. The policy was made by the appellant in January, 1878, and was delivered to Lloyd by its agent in the city of New York. In July, 1878, Lloyd assigned the policy of insurance to Gaylord Watson, of Brooklyn, New York, by an absolute assignment under liis hand and seal. The premiums on the policy were duly paid from time to time at the New York agency of the appellant. In January, 1882, Lloyd died at San Francisco, California, and thereupon his assignee,. Watson, presented proofs to the appellant of the death of Lloyd and of his (Watson’s) insurable, interest, which showed in substance that at the time of the assignment to him Lloyd was indebted to Watson in the sum of $6,104.10, and that in consideration of such indebtedness, and of future credits and loans to be made to him, the assignment of the policy was executed and .delivered by Lloyd; that he thereafter extended the time of payment, and sold and delivered goods on credit and advanced money, and that Lloyd remained and continued indebted to him until his death, and at the time of his death such indebtedness amounted to $7,317.72, over and above all payments, discounts, offsets, counterclaims or allowance ; and that there was at the time of the presentation of the proofs due to him from Lloyd the sum of $7,463.64, with interest from that date; and that he (Watson) had held .and owned the policy since the same was assigned to him, and he annexed thereto a copy of his account with Lloyd, which he . declared to be just and true in all respects. The appellant refused to regard the proof as sufficient, on the ground that certified copies of letters of administration or letters-testamentary of the estate of Lloyd were not produced. Subsequently Watson assigned, by an instrument absolute in its terms, the claim against the appellant on such policy to the plaintiff Jeremiah Cannon, who, at the same time, executed to Watson an instrument reciting that such assignment had been made to him, and promising to pay to said Watson the amount collected or recovered upon said policy when the same should be collected and received by him.
    The defendant’s counsel moved to dismiss the complaint on the grounds: 1st. That the plaintiff was not the real party in interest. 2d. That the plaintiff did not furnish due proof of insurable interest in Gaylord Watson. 3d. That the plaintiff had not proved a demand upon the company to pay the policy. The court denied the motion and defendant’s counsel duly excepted. Thereafter a verdict was directed in favor of the plaintiff.
    The court at General Term said: “ If it be conceded that the policy sued upon is a Wisconsin contract,, no evidence was .offered to show that by any law of that State the assignment to Watson was void in the absence of evidence of insurable interest in him. If anything is to be assumed on that subject the presumption is, in the absence of proof, that the law of Wisconsin is the same as the law of this State. But the question in this action is governed altogether by the law ol' this State, where it is settled by authority that a policy of insurance upon the life of a party is assignable like any other chose in action, and that an assignee may hold and enforce a policy, even without showing any insurable interest in himself. (St. John v. American Mutual Ins. Co., 13 N. Y., 31; Li/ovng v. Domett, 25 Hun, 150.)
    “ The rule of this State is, however, to some extent in conflict with that held by the Supreme Court of the United States, in Wm-nock v. Dams (104 U. S., 775), which holds, in substance, that a policy of insurance on the life of a person cannot be assigned to another who has no insurable interest in his life1; and it is argued that in the absence of affirmative proof of what is the law of Wisconsin, this court should presume and hold that the rule in that State conforms to that of the Supreme Court of the United States rather than to that of this State. However plausible this argument may seem, we are of opinion that it is not sound, but that the law of the forum in which the case was tried must govern the question. It appears, moreover, by the letter of the president of the company, that no point was made of the lack of insurable interest, but only, in substance, that letters testamentary or of administration of Lloyd’s estate should be produced, because the amount payable upon the policy was in excess of the amount of indebtedness to Watson, the assignee. This virtually conceded an insurable interest to the full extent of the indebtedness, and asserted the right of the company to demand a proper receipt or discharge of the claim of such representative of Lloyd for the amount in excess of Watson’s interest. The position of the company in this respect was untenable, because the assignment to Watson was absolute of the whole claim under the policy, and it would have been fully released by payment to Watson or by recovery in his name.
    “ The objection, that the proofs could not be verified by Watson, was not taken by the company when they were presented, nor as it would seem at any time until the trial. We are of opinion that it was properly overruled because the provision of the Code referred to, which excludes the testimony of a party to an action upon the trial thereof as to any transaction had with a deceased person, has no application to the presentation of proofs of death by the assignee of a policy of insurance. Any person, however much interested and however necessary it may be to establish transactions between him and his deceased assignor, may prepare and present such proofs and verify the same as required by the company, and as a general rule he is the person who must do so.”

      Edward Solomon, for the appellant.

      H. G. Hull, for the respondent.
   Opinion by

Davis, P. J.;

Maoomber, J., concurred.

Present — Davis, P. J., and Maoomber, J.

J udgment affirmed.


author: Daniels, J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THEODORE WARE, Appellant.

      Evidence — cross-examination of witness — answers of the witness to questions which are put to discredit him, cannot he contn'adiated, if they relate only to collat&ral matters.

    Appeal from a judgment of the Court of General Sessions of the county of New York, convicting the defendant of the crime of robbery.
    The evidence tended to show that three men, of whom the defendant probably was one, entered the laundry of the complaining witness, who is a Chinaman, and by threats and force robbed him of his money on October 23, 1882.
    After the case was rested by the people, the defendant was sworn as a witness in his own behalf; on his cross-examination he was asked the following questions by the district attorney:
    Q. Now, on the nineteenth day of October — this last October — did not you enter the premises 155 Forsyth street, together with two other men, at eleven o’clock at night, and did not you and those men present a pistol at the head of a Chinaman by the name of Hong Wah ? A. No, sir. Q. One moment — did not you and the other men rob him of seventy dollars? A. No, sir. Q. No? A. No, sir.
    After the defense had concluded its evidence, the district attorney proposed and was allowed, against the defendant’s objection and exception, to show that a witness, Hung Wah, called by the people, saw the defendant Ware at his laundry in Forsyth street on the night of October 19, 1882, at eleven o’clock; he was accompanied by two other men; that, after entering the laundry, Ware pointed a pistol at his head; the other men pulled in the windows and locked the door; he was then tied up, and they took from under his pillow a roll of bills amounting to seventy dollars, and five dollars in silver out of the drawer, his property, and left; the men were all strangers to witness.
    The court at General Term said: “ The ruling of the court under which it was permitted to be given was expressed in the following language:
    “ The Court. — I shall charge the jury that the fact, if it be a fact, that Ware committed another offense on the nineteenth day of October, is no evidence whatever tending to prove that he committed the offense charged in the indictment, but that they may take that circumstance, that is, the contradiction between him and this witness, as I assume it is going to be a contradiction, into consideration upon the question of the defendant’s credibility as a witness. That is the extent of it.

      “ And from that it is clear that the evidence was received for the mere purpose of contradicting and discrediting the defendant as a witness in the case. Whether he participated in the commission of the other offense was not a material inquiry on the trial of this indictment. It was simply collateral, and the object of it was by cross-examination to show such preceding criminal conduct on the part of the defendant as would lead the jury to disbelieve the witness, or to reduce the effect they might otherwise be inclined to give to his testimony. When that course of cross-examinations has been followed, the law does not permit the party adopting it to introduce further and independent evidence to prove that the denial of the witness was false. When that is the sole effect to be given to the evidence, the party cross-examining the witness is concluded by his answer. The inquiry cannot be further extended by producing testimony of a contradictory nature. The rule upon this subject has frequently been made a matter of consideration by the courts, and it is now well established that to entitle the party interrogating the witness in this manner, by way of cross-examination, to introduce evidence to contradict his statements, the cross-examination must be directed to a material inquiry in the case, or to evidence establishing a hostile or unfriendly bias against the party in the mind of the witness. (Carpenter v. Ward, 30 N. Y., 243, 245 ; Plato v. Reynolds, 27 id., 586; Trustees, etc., v. Brooklyn Fire Ins. Co., 28 id., 153; Chapman v. Brooks, 31 id., 75, 87; Stokes v. The People, 53 id., 164, 175, 176; Schultz v. Thvrd Ave. R. R. Co., 89 id., 248).
    “ The evidence which was received concerning the commission of the other offense was in direct contravention of this rule. By the ruling of the court it was taken for no other or different purpose, and it is to be presumed that it was only used, as it was stated by the court it would be, in the consideration and determination of the case. This was a material error which could not be otherwise than prejudicial to the case of the defendant.”

      William F. Eimtzi/ng, for the appellant.

      A. J. Requier, for the respondent.
   Opinion by

Daniels, J.;

Davis, 1J. J., and Brady, J., concurred.

Judgment reversed, and new trial ordered.


author: Daniels, Jf;

text:
    FANNY E. MUSGRAVE v. JOHN H. SHERWOOD.

      Party wall — controversy as to the right to increase its height — affords no basis for an extra allowance.

    Appeal by the defendant and by the plaintiff from a judgment recovered on a trial at the Special Term, and also by the plaintiff from an order denying her motion for an additional allowance of costs.
    The action was brought to restrain the defendant from increasing the height of a party wall standing upon the premises and between the buildings of the parties.

      The court at General Term said : “ This case is now before the General Term for the third time. The points upon which the rights and obligations of the parties depend were fully considered upon the appeal from the first judgment recovered in it, by which the plaintiff’s complaint was dismissed. (Musgrave v. Sherwood, 23 Hun, 669.) By that decision the judgment was reversed, and it was concluded upon the findings of fact which had been made that the plaintiff should be allowed to recover. The case has since been tried upon evidence not varying in its material aspects from that given upon the first trial, and similar findings have been adopted by the court as the conclusions warranted by this evidence. ******

      “ There was no sum required or claimed in the action, and no subject-matter involved in it upon which a valuation could be placed for the purpose of an additional allowance of costs, placing the case within the Code of Civil Procedure (§ 3253, sub. 2); and where that may be the character of the action, no allowance under this subdivision can be made. (Grissler v. Stuyvesant, 67 Barb., 81; People v. New York, ele., Ferry Co., 68 N. Y., 71.)
    “ This case, in principle, was very much like that now presented. ‘ The subject-matter involved in the controversy was the right to erect the structure, and not the title to the materials or the value of the erections. The plaintiff claimed no right or property in them ’ (Id., 83); and because that was the nature of the controversy, the allowance which had been made was stricken out. This case is similar in its theory, and may properly be held to be governable by the decision which was then made. The order from which the appeal has been taken by the plaintiff should also be affirmed.”

      Al/mon Goodwin, for the appellant.

      William A. Beach, for the respondent.
   Opinion'by

Daniels, Jf;

Brady, P. J., concurred.

Present — Brady, P. J., and Daniels, J.

Judgment affirmed.


author: Per Ouriam.

text:
    ALFRED HARRIS, Respondent, v. D. D. BROWN, Appellant.
    Appeal— the right to, is waived by procuring leave to renew the motion which resulted in the order from which the appeal is taken.

    Motion to dismiss an appeal from an order denying a motion to vacate an order of arrest.
    Tlie appellant moved in the first instance to vacate the order of arrest upon the papers on which the same was granted. That motion having been decided against him he obtained leave of the court to-renew the same upon the original papers and additional affidavits. That motion was also decided adversely to him, and after the latter decision he brought his appeal from the first decision denying his motion founded upon the original affidavits.
    The court at General Teim said: “ The act of procuring leave to renew the original motion, and the fact that it was renewed, operated, as we think, to waive all right of appeal from the first decision. The same question was thereby brought before the same court, and the only remedy of the appellant was hy appeal from the second order, which of necessity disposed of the right to have the order vacated upon the original papers.
    “ On the second motion the respondent was at liberty to bring in additional affidavits in answer to those presented by the moving party, and to strengthen the facts upon which he obtained the original order. Under such circumstances he must abide the results of the second motion, for two reasonsThe first is, that he has abandoned the first motion by obtaining leave to renew it, and renewing it in fact; and the second is, that he has placed himself in a position where the court cannot on an appeal from the first order dispose of the real merits of the motion, because the second application might have shown a state of facts which rendered the order of arrest a proper one, although there may have been some defects in the original papers.”
   Opinion

Per Ouriam.

Present- — Davis, P. J., Brady and Daniels, JJ.

Motion granted, without costs.


author: Daniels, J.

text:
    NATHAN ARNOLD and Others, Respondents, v. AARON SHAPIRO, Appellant.

      fraudulent disposition of Ms property by a debtor, with intent to defraud his creditors— it avoids a credit upon which goods were previously or subsequently sold to him— Code of Oivil Procedure, sec. 550, sub. 2.

    Appeal from an order made at a Special Term denying a motion to vacate an order of arrest.
    The order under which the defendant was arrested was made upon the ground' that he had removed and disposed of his property with intent to defraud his creditors, and contracted the debt in contemplation of such a disposition and removal of his property. The cause of action set forth in the complaint is the sale and delivery of goods between the 6th of September and the 12th of October, 1882.
    The court at General Term said: “By the answer it has been alleged that the goods were sold upon a credit of sixty days from the 15th of September, 1882. But if the defendant had disposed of any portion of his property in contemplation of the creation of this debt, for the purpose of defrauding his creditors, that of itself would be a fraud in the contraction of the debt which would nullify the credit, even if that was given as the fact has been alleged.
    “ By subdivision 2 of section 550 of the Code of Civil Procedure, the right to arrest the debtor has been created, when, in an action on contract other than a promise to marry, he has since the making of the contract, or in contemplation of making it, removed or disposed of his property with intent to defraud his creditors, or is about to dispose of the same with like intent. The fact or facts which’ under this subdivision will authorize an arrest are not required to be set forth in the complaint. They are such as have been denominated as extrinsic the cause of action, and are to be established by the affidavits presented in support of the application for the order. And when it may be in that manner shown that the debtor either had in contemplation of the making of the contract, or after that time, removed dr disposed of his property, intending thereby to defraud his creditors, or may be about to remove or dispose of his property with that intent, the case is a proper one for an order of arrest without alleging or setting forth the facts in any form in the complaint. And when that fraudulent disposition of property has taken place at the time of the making of the contract, the fact itself would also avoid a credit obtained by means of its concealment in incurring the liability. In principle the same effect should also follow such a disposition of the debtor’s property, after he has contracted the debt and secured the credit, for it is always implied in such transactions that the debtor will make no disposition of his property which will operate as a fraud upon his creditor. The rule is very well settled that fraud in the contraction of the debt will avoid any credit agreed to be given by the contract creating the debt; and the reason on which it has arisen would seem to be equally as applicable to a disposition made by the debtor of his property when he intends thereby to defraud his creditors. The inquiry, therefore, is whether the defendant has made such a disposition of his property.”

      A. Stern, for the appellant.

      Blumensteil db Hirseh, for the respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    William Palen, Receiver, etc., Appellant, v. Ezra L. Bushnell, Respondent, Impleaded, etc.

   — Order modified as directed in opinion, without costs to either party on the appeal. Opinion by Davis, P. J. —


text:
    Joseph W. Duryee, Respondent, v. The Mayor, etc., of the City of New York, Appellants.

   —.Judgment affirmed. Opinion by Macomber, J., and Davis, P. J., and by Daniels, J., dissenting.


text:
    Thomas H. O’Connor and another, as Trustee, etc., Respondents, v. James Carrigan and others, Appellants.

   — Judgment affirmed, without costs. Opinion by Daniels, J.


text:
    Charles P. Devlin, Respondent, v. William Kelley, Appellant.
   Judgment reversed, new trial ordered, costs to abide event. Opinions by Daniels, J., and Davis, P. J., and by Macomber, J., dissenting.


text:
    Frederick Weyerhauser and another, Respondents, v. R. Graham Dun and others, Appellants.

   — Judgment affirmed. Opinion by Macomber, J.


text:
    William Watson, Appellant, v. James W. Smith, Respondent.

   Judgment affirmed. Opinion by Macomber, J.


text:
    Frances A. Mason, Respondent, v. D. Edgar Anthony, Appellant, Impleaded, etc.

   — Judgment affirmed, with leave to answer over on payment of costs of the court below and of this appeal. Opinion by Macomber, J.


text:
    The Jessup and Moore Paper Company, Appellant, v. Henry A. Burr, Respondent.

   — -Judgment reversed, new trial ordered, costs to abide event. Opinion by Macomber, J.


text:
    Mary V. Ayres, Respondent, v. James Morgan and another, as Executors, etc., Appellants, Impleaded, etc.

   — Judgment modified as directed in opinion, without costs to either party. Opinion by Daniels, J.


text:
    Mary Schmittler, Appellant, v. Adam Simon, Respondent.
   Judgment affirmed. Opinion by Davis, P. J.


text:
    James G. Bennett, Respondent, v. The Mayor; etc., of the City of New York, Appellants.

   — New trial ordered, costs to abide event. Opinion by Macomber, J.


text:
    William E. Leavitt, Respondent, v. Frederick H. Wolcott, Appellant.

   — J udgment affirmed, with costs of all parties to be paid out of the fund. Opinion by Davis, P. J.


text:
    William H. Davis, Appellant, v. John H. Morrell, Respondent.

   — Judgment reversed, new trial granted, costs to abide event. Opinion by Davis, P. J.


text:
    Willard Baker and another, Respondents, v. The New York National Exchange Bank, Appellant.

   — Judgment affirmed. Opinion by Davis, P. J.


text:
    The New York and Brooklyn Ferry Company, Respondent, v. The Mayor, etc., of the City of New York, Appellants.
   Judgment reversed, new trial ordered, with costs .to abide the event. Opinion by Davis, P. J.


text:
    Fletcher A. Mead, Respondent, v. The New York, New Haven and Hartford Railroad Company, Appellant.

   — Judgment reversed, new trial ordered, costs to abide event. Opinion by Macomber, J.


text:
    Robert P. Crowe, Individually, etc., Respondent, v. Frederick O. Lewin, Executor, etc., Appellant.

   — J udgment, affirmed, with costs. Opinion by Macomber, J.


text:
    In the Matter of the Probate of the Last Will of Mary S. Hitchcock.
   — Decree reversed; order entered as directed in opinion.. Opinion by Davis, P. J.


text:
    James Wallace, Appellant, v. John F. Wallace and another, as Executors, etc., and others, Respondents.

   —- Decree reversed ; trial directed at Circuit. Opinion by Daniels, J.


text:
    Richard G. Frost, Respondent, v. Mary Hirschberg and others, Appellants.

   — Order affirmed, with costs. Opinion by Brady, J.


text:
    The Bowery Savings Bank, Plaintiff, v. John Keenan, Defendant.

   — Order affirmed, with ten dollars costs and disbursements, to be paid by the appellant Broekway. Opinion by Davis, P. J.


text:
    In the Matter of Levi Goldenberg.
   — Order reversed, with ten dollars costs and disbursements; order entered vacating assess* ment. Opinion by Daniels, J.


text:
    Thomas H. Walter and another, Respondents, v. Jonathan O. Fowler, Appellant.

   — Order modified, as directed in opinion. Opinions by Brady, J., and Davis, P. J.


text:
    Josephine Todd, Appellant, v. Albert Weber, Jr., and others, Respondents.

   — Judgment reversed, new trial ordered, costs to abide event. Opinion by Daniels, J.


text:
    James M. Smith, as Receiver, etc., Respondent, v. Henry M. Platt and others, Executors, etc., of George W. Platt, Deceased, Appellants.
   Orders and judgments aifirmed, without costs to either party. Opinion by Brady, J.


text:
    Algernon S. Sullivan, Respondent, v. Margaret Bennis, Administratrix, etc., Appellant.
   Judgment affirmed. Opinion by Brady, J.


text:
    George Winter, Respondent, v. Margaret Eckert, Appellant.

   Orders affirmed, with ten dollars costs and disbursements. Opinion by Brady, J.


text:
    Bridget Roach, Respondent, v. Johanna Ahern and another, Appellants.

   — Judgment affirmed, with costs. Opinion by Daniels, J.


text:
    Alfred J. Pingold, Respondent, v. Phoebe B. Allen, Appellant.

   — Judgment reversed, new trial granted, costs to abide event. Opinion by Davis, P. J.


text:
    George S. Goodale, as Receiver, etc., Respondent, v. The Central National Bank of the City of New York, Appellant.

   —Judgment reversed, new trial ordered, costs to abide event. Opinion by Macomber, J.


text:
    Ambrose S. Cassidy, Respondent, v. Robert Jenkins, Appellant.

   Judgment affirmed. Opinion by Macomber, J. '


text:
    William Burns, Respondent, v. Sidney Dillon and others, Appellants.

   — Judgment affirmed. Opinion by Macomber, J.


text:
    Morris A. Myers and others, Respondents, v. Michael B. Sherman, Appellant.

   — Order affirmed, with' ten dollars costs and disbursements.


text:
    Elizabeth Patterson, Respondent, v. Jane W. McCunn, Appellant, Impleaded, etc.

   — Order affirmed, with ten dollars costs and disbursements. Opinion by Brady, J.


text:
    Alfred A. Freeman, as Executor, etc., Appellant, v. Harriet A. Coit and Florence A. Freeman.
   —Decision modified so as to allow the appellant costs and disbursements of appeal to be adjusted.


text:
    Same v. Same.
   — Order directed allowing guardian, ad Utern .fifty dollars in addition to the sum already received.


text:
    James Harden, Respondent, v. Lathrop Gardner Pope and others, Appellants.

   — Order affirmed, with ten dollars costs and disbursements to abide event.


text:
    Same v. Same.
   — Order reversed, and motion to change the place of trial granted, with ten dollars costs and disbursements to abide event.


text:
    Huldah H. Clapp, Appellant, v. Robert C. Clapp, Individually, and as Executor, etc., Respondent, Impleaded, etc.

   — Order affirmed on opinion of Barrett, J., with costs to abide event.


text:
    Jacob K. Lockman, as Executor, etc., Plaintiff, v. Thomas J. Reilly, Defendant.

   — Order reversed, with ten dollars costs and disbursements and expenses, as stated in the opinion. Opinion by Daniels, J.


text:
    James R. Turner, Respondent, v. Fire Insurance Company of Philadelphia, Appellant.

   — Order affirmed. Opinion Per Curiam.


text:
    In the Matter of Ann M. Schroeder.
   — Order affirmed, with ten dollars costs and disbursements. Opinion, by Daniels,-J.


text:
    Samuel Jackson, Respondent, v. The Union Ferry Company of Brooklyn, Appellant.

   — Order reversed, motion granted removing action from this court to Kings county, costs to abide event.


text:
    Henry W. Sharpless and others, Respondents, v. Walter K. Lits, Appellant, Impleaded, etc.

   — Order modified requiring the plaintiffs to elect within ten days after decision, between the order of arrest and the attachment, which to retain, and vacating the order of arrest or the attachment according to such election, and as modified affirmed, without costs.


text:
    Same v. Same.
   — If the plaintiffs elect to continue the attachment, order reversed, and order directed requiring additional security to be given on attachment to the amount of $2,500; and if the plaintiffs elect to hold the order of arrest, the appeal from this order dismissed, without costs.


text:
    George H. Bend, Respondent, v. Elisha Ruckman, Appellant.

   Judgment affirmed, with costs. Opinion by Daniels, J.


text:
    National Fire Insurance Company v. Celluloid Shoe Protector Company, Respondent, and Eliza G. Wilson, Appellant.

   — Judgment reversed, new trial ordered, costs to abide event. Opinion by Daniels, J..


text:
    William J. Davidson, as General Guardian, etc., Appellant, v. Henry H. Bell, Respondent.

   — Judgment affirmed.


text:
    The People of the State of New York, Respondents, v. Thomas McDonnell, Appellant.

   — Judgment affirmed.


text:
    John E. Styles, Respondent, v. John B. Fuller, Appellant.

   Judgment affirmed.


text:
    John McIntyre, Jr., and others, Respondents, v. John C. Seager and others, Appellants.

   — Order affirmed, with ten dollars costs and disbursements.


text:
    Malvina M. Seabra, Respondent, v. Antonio R. Seabra, Appellant.

   — Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    Aurelio Arango, Respondent, v. Juan B. Macias, Appellant.
   Judgment affirmed.


text:
    The People of the State of New York ex rel. John Ross, Appellant, v. Hubert O. Thompson, Commissioner of Public Works, Respondent.

   — Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Commissioners of the Central Park.
   Order affirmed, with ten dollars costs and disbursements in each case.


text:
    Jane Moncrief, Appellant, v. Melancthon C. Lockwood, Respondent.

   — Judgment affirmed.


text:
    In the Matter of Edward Roberts.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    The Diamond Match Company, Respondent, v. William Roeber, Appellant.

   — Order affirmed, with ten dollars costs and disbursements.


text:
    Zachariah E. Simmons, Appellant, v. Cornelius J. Vanderbilt, Respondent.

   — Order affirmed, with ten dollars costs and disbursements.


text:
    James M. Shaw and another, Appellants, v. Charles S. Frost, Respondent.

   — Judgment reversed, new trial ordered, costs to’ abide event. Opinion by Davis, P. J.


text:
    Julius Witkowski, Respondent, v. James W. Paramore, Appellant.

   — Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    The Bank for Savings in the City of New York, Respondent, v. Samuel H. Kniffen, as Administrator, etc., Appellant, Impleaded, with others.
   — Order affirmed, with costs of appeal to abide event. Opinion by Davis, P..J.


text:
    William C. Baur, Appellant, v. John F. Betz, Respondent.

   Order affirmed, with ten dollars costs and disbursements bn opinion of Donohue, J.


text:
    The People of the State of New York, Respondents, v. George Smith, Appellant.

   — Judgment affirmed.


text:
    James C. Fargo, as President, etc., Respondent, v. William Milburn and others, Appellants.

   — Judgment affirmed.


text:
    William S. Lamson, Respondent, v. George A. Boynton, Appellant.

   — Order reversed, without costs. Opinion by Daniels, J., and by Davis, P. J., dissenting.


text:
    In the Matter of Maria L. Clark.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    Thomas B. Kerr and others, Plaintiffs, v. George B. McAneny, Defendant.

   — Judgment ordered for plaintiffs, with costs. Opinion by Brady, J.


text:
    The Railway Age Publishing Company, Appellant, v. John J. Garnett and others, Respondents.

   — Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    William C. Rencher, Appellant, v. Stephen B. Elkins, Respondent.

   — Judgment reversed, new trial ordered, costs to abide event. Opinion by Daniels, J.


text:
    John H. Chambers, Appellant, v. William H. Appleton and others, Respondents.

   — Order and judgment affirmed.


text:
    Alfred Harris v. B. D. Brown.
   — Motion granted, without costs.


text:
    Nicholas H. Babcock v. Joseph Emrich.
   — Motion denied, with ten dollars costs.


text:
    August Plumger v. Frederick Homeyer.
   —■ Motion denied, without costs.


text:
    Thomas D. Adams v. Abram Stern.
   — Motion denied, without costs.


text:
    Phœbe Fellows, Appellant, v. Richard C. Fellows, Respondent.

   — Judgment affirmed. Opinion by Bradt, J.


text:
    George Winter, Respondent, v. Margaret Eckert, Appellant.
   Judgment affirmed. Opinion by Brady, J.


text:
    George G. Havens v. Benjamin A. Willis.
   Judgment affirmed. Opinion by Brady, J.


text:
    In the Matter of Alphonsine Mertain.
   — Motion denied, with ten dollars costs.


text:
    Etta Armstrong v. William A. Cummings.
   —Motion granted that the plaintiff pay over the amount of costs as directed in opinion, without costs. Opinion Per Curiam,.


text:
    John G. Masterton v. James Boyce.
   — Motion denied, with ten dollars costs.


text:
    Margaret Budd v. Stephen A. Walker.
   — Motion denied, with ten dollars costs.


text:
    Henry De Stuckle, Appellant, v. The Tehuantepec Railway Company and others, Respondents.

   — Judgment reversed, and judgment ordered for plaintiff, with leave to answer on the usual terms, with costs. Opinion by Davis, P. J.


text:
    Hannah Mead v. Lucretia C. Smith.
   — Motion for reargument granted, with ten dollars costs to abide event.


author: Haight, J.:

text:
    GILES EVERSON, Appellant, v. THE CITY OF SYRACUSE, Respondent.

      Taxes — should be collected from the person against whom they art assessed, although he has sold the land before such taxes were levied.

    After the assessment for the year 1876 had been made, and on or about August twenty-second of that year, one Monroe conveyed his undivided three-eighths interest in certain real estate in the city of Syracuse to the plaintiff. In Octo-' ber following the city taxes, and in December the State and county taxes, were extended and levied upon the property. Thereafter the owners of the other five-eighths of the property paid their proportionate share of the tax, leaving the three-eighths which was assessed to Monroe unpaid. The plaintiff having refused to pay the tax the defendant’s tax collector, under and pursuant to his warrant, seized certain personal property belonging to the plaintiff and sold it.

      Held, that it was the duty of the collector to collect the tax from the person against whom it had been assessed, and that in case he could not so collect it the tax became a lien upon the land.
    That he had no right to enforce the payment of the tax from the plaintiff, by the sale o f his personal property, and that the city was liable for his acts in so doing.

      Rundel v. Lakey (40 N. Y., 613) followed; Barlow v. St. Nicholas National Bank of New York (63 id., 399) distinguished.
    Appeal from a judgment, entered upon tbe report of a referee in favor of tbe defendant in Onondaga county.

      Waters, MeLewnam, <& Dillaye, for tbe appellant.

      M. A. Knapp, for tbe respondent.
   Haight, J.:

In the year 1876 the assessors of the city of Syracuse assessed certain real estate, known as the Syracuse House property, to Allen Monroe and two other persons, who tlien owned the same as tenants in common, Monroe being the owner of an undivided three-eighths thereof. After the assessment, and on or about the 22d of August, 1876, Monroe sold and conveyed his interest in the property to the plaintiff and one Jacob Crouse, who then entered into, and ever since have been, in the possession thereof. In October following the city taxes of that year were extended and levied upon the property, and in December the State and county taxes were extended and levied. The owners of the other five-eighths of the property paid their proportionate share of the tax, leaving the three-eighths which was assessed to Monroe unpaid. The plaintiff refused to pay the tax and thereupon the defendant’s tax collector, under and pursuant to his warrant, seized certain personal property belonging to the plaintiff, advertised and sold the same. The plaintiff brings this action to recover pay for the property so taken and sold.

There appears to be no conflict-in the evidence upon this branch of the case.

The referee has found that the plaintiff is not entitled to recover.

A somewhat similar question was presented in the case of Rundell v. Lakey (reported in 40 N. Y., 513). In that case the conveyance was made after the assessment, and before the tax was levied. The question was as to which of the parties was liable for the tax, the grantor or grantee. It was in that case held that the collector was not only authorized, but it was his duty to collect the tax, if not otherwise paid, by seizing and selling the goods of the person against whom the tax has been assessed, or of any goods- in his possession; that the person against whom the tax was assessed was primarily liable; that the tax levied is not a tax imposed upon the land, but that it is imposed upon the person on account of his ownership of the land; and that he is primarily liable for the payment of it; that the tax when levied simply becomes a lien upon the land.

Under this decision it would appear that the plaintiff was not liable for the payment of the tax for which his property was seized and sold.

Monroe was the owner of the real estate at the time of the assessment, and is the person named in the warrant who should pay the tax. Monroe is primarily liable. If he fails to pay, and the collector is unable to make the same out of his personal property, then the real estate may be sold. But we do not understand that the personal property of the plaintiff, in any event, would be liable to seizure and sale.

We are aware that this case in the court of appeals has been distinguished in the case of Barlow v. The St. Nicholas National Bank of New York (reported in 63 N. Y., 399.)

In that case the conveyance was made after the assessment and before the tax was levied. The action was brought for an alleged breach of a covenant against incumbrances contained in the deed. The court in that case held that the tax did not become a lien upon the real estate until it was levied by the board of supervisors, and consequently there was no incumbrance upon the land at the time the deed was executed and delivered. Nothing, however, in that case controverts or disapproves of the questions decided in the former case. • ■

The statute provides that “ Every person shall be assessed in the town or ward, where he resides, when the assessment is made, for all lands then owned hy him within such town or ward,” etc. (Art. 1, tit. 2, chap. 13, part 1 of the Revised Statutes; 1 R. S., 389.)

Section 8 of article 2 of the same title (1 R. S., 390) provides: That between the first days of May and July in each year, they (the assessors) shall proceed to ascertain, by diligent inquiry, the names of all the taxable inhabitants in their respective towns or wards, and also all the taxable property, real or personal, within the same.”

Section 9 (1 R. S., 390) provides: “ They shall prepare an assessment roll, in which they shall set down in four separate columns and according to the best information in their power :

1. In the first column, the names of all the taxable inhabitants in the town or ward, as the case may be.

2. In the second column, the quantity of land to be taxed to each person.

3. In the third column, the full value of such land, according to the definition of the term land as given in the first Title of this Chapter. -

4. In the fourth column, the full value of all the taxable personal property owned by such person, after deducting the just debts owing by him.”

This roll, under the statute, has to be completed on or before the first day of September and delivered to the supervisor of the town. As so completed it constitutes the basis on which the tax is imposed by the supervisors. A person so assessed for personal property becomes liable to pay the tax when levied, even though in the meantime he should cease to become the owner thereof by reason of its loss or destruction.

The same rule prevails with real estate; its value, in the meantime, from various causes may have greatly depreciated, yet such depreciation could not change or alter the amount of the tax to be levied.

These various provisions would seem to indicate the legislative intent to fix the liability for the tax upon the owner at the time of the assessment, or the time of the completion and delivery of the roll by the assessors to the supervisor. This is undoubtedly the case with personal property, and the statute appears to make no distinction in this regard as to real estate.

The judgment should be reversed, and a new trial ordered before another referee, costs to abide the event.

Smith, P. J., and Hardin, J., concurred.

So ordered.


author: Smith, P. J.:

text:
    RUFUS G. STARKWEATHER, Respondent, v. CLARISSA E. STARKWEATHER, Appellant.

      Alimony and counsel fees — when they should be allowed.

    In an action brought by a husband to procure an absolute divorce from his wife, upon the ground of her adultery, she put in an answer alleging that the plaintiff had. been guilty of adultery, and that she had upon that ground procured an absolute divorce from him in the State of Illinois, and subsequently married the person with whom the plaintiff claimed that she had committed the adulter- ■ ous acts for which he sought a divorce.'

      Held, that the case was one in which the court should exercise its discretion as to granting an allowance on an application made by the wife for alimony pendente lite, and for the expenses of her defense.

      Appeal from an order of the Lewis Special Term, denying the defendant’s motion for alimony pendente lite, and for the expenses of her defense in an action for divorce on the ground of her alleged adultery.
    Mills, Palmer & Morgan, for the appellant.

      Smith & Steele, for the respondent.
   Smith, P. J.:

The complaint alleges a valid marriage between the parties, and that the defendant subsequently abandoned the plaintiff and committed adultery with Thomas T. Morford. The answer admits the marriage, and alleges the subsequent adultery of the plaintiff, and that on the ground of such adultery the defendant procured a divorce from him by the judgment of a court of competent jurisdiction in the State of Illinois. The answer further alleges that after said divorce was obtained, and before the commencement of this suit, the defendant -was married to the said Thomas T. Morford. By stipulation on the part of the plaintiff, all allegations in the complaint of adultery on the part of the defendant prior to the marriage with Morford are withdrawn.

The order appealed from states that the defendant’s motion was denied upon the ground that it appears from the pleadings herein that the defendant does not stand in the relation of wife to the plaintiff.

We think the Special Term erred. ' The general rule is, that wrhere the existence of the marital relation is admitted or shown, if the husband seeks to avoid it by reason of some fact existing either at the time of the marriage or subsequently thereto, it devolves upon him to show the fact, and alimony will be granted till the fact is shown. (North v. North, 1 Barb. Ch. R., 241; Brinkley v. Brinkley, 50 N. Y., 184.) Here, as both parties admit the fact of marriage, and the husband seeks to avoid it on the ground of the alleged adultery of his wife, the case is clearly within the rule, unless it is taken out of the operation of the rule by reason of some fact stated by the wife by way of defense. The plaintiff’s counsel is understood to contend that the case is not within the rule by reason of the fact that the defendant alleges, in avoidance of the charge of adultery, that before the commission of the alleged offense she was divorced from the plaintiff and was married to the man with whom the offense is alleged to have been committed, the argument being that if her allegation is true she is not the wife of the plaintiff, and so is not entitled to alimony. But the truth of that allegation is one of the issues to be tried. The plaintiff denies it, as appears from his affidavit used in opposition to the motion, in which he alleges that, the judgment of the Illinois court is void for want of jurisdiction of his person. The plaintiff’s counsel assumes in his argument, that if the defendant fails in that issue her adultery will stand confessed, and for that reason she is not entitled to alimony. But the issue of his adultery is in the case, and if the defendant succeeds on that issue she will make out a complete defense to the action, although the decree of divorce on which she relies should be held to be void. It has been held, that in general, if a wife, who is sued for a divorce, in her answer either denies her guilt or sets up affirmative defenses, such as forgiveness or recrimination, or does both, counsel fees and alimony will be allowed her, unless the court is satisfied that she is altogether in the wrong, or has no reasonable ground of defense. (Strong v. Strong, 1 Abb. Pr. [N. S.], 358; Clark v. Clark, 7 Robt., 284.)

We think the case is a proper one for the exercise of the discretion of the court as to the granting of an allowance and its amount, and as that discretion has not been exercised, the order should be reversed, and leave given to renew the motion at Special Term, with ten dollars costs and disbursements'of the appeal.

Hardin and Barker, Jj., concurred.

Ordered accordingly.


text:
    BENJAMIN RUSSAK, as Survivor, etc., Appellant, v. JOHN SABEY, Jr., Respondent.

      Imprisonment of a fraudulent debtor — application for his discharge — when it should be granted.

    Where the warrant issued under the Stilwell act for the commitment of a debtor, did not require the performance of any specific act, he was entitled to a discharge under section 302 of the old Code, when it was shown that he was unable to perform any of the acts required by the statute to enable him to-procure his discharge.

      Qpare, as to whether since the repeal of section 302 of the old Code, any way exists whereby a person committed under the Stilwell act, prior to September 1, 1880, can procure his discharge.
    Appeal from an order of the Onondaga Special Term, discharging the defendant from imprisonment.

      Waters, McLennan dk Dillaye, for the appellant.

      Gowles dk Wright, for the respondent.
   Smith, P. J.:

It was provided by section 302 of the Code of Procedure, that in all cases of commitment under the chapter relating to proceedings supplementary to execution,” or the act to abolish imprisonment for debt, the person committed, might, in case of inability to perform the act required, of to endure the imprisonment, be discharged from imprisonment by the court or judge committing him, or the court in which the judgment was rendered, on such terms as might be just.

An action in this court having been commenced against the defendant by the plaintiff, on contract, proceedings were instituted against him under the non-imprisonment act (Laws 1831, chap. 300), before the county judge of .Onondaga county, and the judge having been satisfied that the defendant fraudulently contracted the debt upon which the action was brought, and that he had disposed of certain of his property with intent to defraud his creditors, ordered him to be imprisoned. He was accordingly committed to the Onondaga county penitentiary, on the 16th of May, 1880. In June, 1880, he applied at a special term of this court to be discharged, on the ground that he was unable to endure the imprisonment, and was unable to perform the act required. His application was granted in October of that year.

The order for his discharge does not specify, nor does it appear from the papers before us, upon which of the grounds stated in the application the discharge was granted. Section 302 authorized the granting of it on either ground, and if it is apparent that either of the grounds existed the order should be affirmed.

It is urged by the appellant that if the decision was made upon the ground that the defendant was unable to endure the imprisonment, it was an abuse of discretion, for the reason that the clear weight of evidence is against the proposition. An examination of the evidence impresses us with the conviction that the defendant failed to show satisfactorily his inability to endure the imprisonment, but the case' does not turn on that point. If, as has been suggested, the defendant was unable to perforin the act required the order may be sustained on that ground.

It was held in the case of Maass v. La Torre (6 Abb. [N. S.], 219), that although a warrant of commitment under the Stilwell act does not require the performance of any particular act, yet, if the person committed is unable to do any of the acts specified in the ■statute to procure his discharge, a case is made for the exercise of the discretionary power given by section 302. We concur in that •opinion.

To procure a discharge after commitment, under the non-imprisonment act, the defendant must pay the debt, or give security for its payment, as provided in the tenth section of said act, or execute •one of the bonds mentioned in said section. (Sec. 11 of the act.) One of said bonds is conditioned that he will apply for an assignment of his property and for a discharge; the other that he will not remove any of his property with intent to defraud his creditors. (Sec. 10.) The latter bond will suffice only in cases where the sole fraudulent design established against the defendant is that he is about to remove his property with intent to defraud, etc. (Laws 1837, chap. 418, § 1.) It has been held that the bond first mentioned will not avail a defendant who has been committed on the ground that he has made a fraudulent disposition of his property. (Matter of Brady, 8 Hun, 437; S. C., aff’d, 69 N. Y., 215.) Neither of the bonds, therefore, mentioned in the tenth section was. available to the defendant, and the proof was ample that he had no means with which to pay or secure the debt. We think that, the inability of the defendant to perform the act required, presented a case for the exercise of the discretion of the court at Special Term, and that we ought not to interfere with its decision.

We reach this conclusion with the less reluctance, because it is-somewhat doubtful whether, in the present state of the law, there would be any power to discharge the defendant in case the order-should be reversed, and he be remanded to prison. Section 302 of the old Code, which gave the power to discharge, was repealed by-chapter 245 of the Laws of 1880, which took effect September 1,, 1880. The Stilwell act, also, was repealed by the same statute, but the repeal did not affect the plaintiff’s proceeding, which had been taken before the repealing act was adopted. (Laws 1880, chap. 245, § 3, subd. 1.) If the statutory right to move for a discharge-still exists, it can only be as an incident to the proceeding itself-; but. that point is so doubtful that we would be unwilling to remand tliedefendant to prison unless the case clearly entitled the plaintiff to that remedy.

The order should be affirmed, with ten dollars costs and. disbursements.

Hardin and Barker, JJ., concurred.

So ordered.


author: HaediN, J.:

text:
    H. CORDENIO SMITH, Plaintiff, v. HIRAM K. EDWARDS, as Sheriff of Onondaga County, Defendant.

      Executory contract for the sale of personal property — when the title passes to thevendee.

    April 4, 1881, E. P. Allis & Co., and the plaintiff entered into an agreement whereby Allis & Co., “ in consideration of the sum hereinafter stated, to be-paid to them by the party of the second part, at the times and in the manner hereinafter stated,” agreed to manufacture and furnish at Milwaukee, Wisconsin, free on board the cars, certain articles of machinery, and to furnish, if required, plans for its arrangement. The plaintiff was to pay cash on. receipt of goods. Portions of the articles were shipped from Milwaukee and. Jackson, consigned to the plaintiff at Marcellus, at which place they arrived. Upon their arrival, they were attached hy the defendant, as sheriff, as the property of Allis & Co.
    In an action brought against him hy the plaintiff, the vendee:

      Held, that the title to the articles passed to the plaintiff when they were separated, and set apart for, and shipped and consigned to him, and that the sheriff had no right to seize them as the property of Allis & Co.
    Motion, by the defendant for a new trial upon exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff, directed at the Onondaga Circuit.
    The defendant, as sheriff, held an attachment in favor of a creditor of Allis & Co., and to enforce the attachment seized certain property claimed to belong to Allis & Co., at Marcellus, Onondaga county.
    The plaintiff claims to be owner of the property by virtue of an agreement for its purchase from Allis & Co. The following is a copy of the contract:
    “ This indenture, made this 4th day of April, 1881, by and between Edward P. Allis & Co., of Milwaukee, Wis., parties of the first part, and H. C. Smith, comprising the firm of H. C. Smith, of Marcellus, N. Y., party of the second part,
    “ WiPnesseth, That the said party of the first part, in consideration of the sum hereinafter stated, to be paid to them by the party of the second part, at the times and in the manner hereinafter stated, agree to manufacture and furnish, at Milwaukee, Wis,, f. o. b. cars, all to be good material and workmanship, the following articles, to wit:
    “3 double set of Corrugated Rolls, in Gray’s Pat.
    Noiseless Frames.............................. $1,800 0<j)

    “2 double set of Smooth Iron Rolls in Gray’s Pat.
    Noiseless Frames................................ 1, 000 00
    “4 No. 1 Smith Purifiers, O. $350, less 25 per cent.
    “ Doufour’s Bolting Cloth, 20 per cent disc, price list.
    “E. P. Allis & Co. guarantee H. C. Smith that the three double set of corrugated rolls will reduce the wheat and clear the bran for 100 to 125 barrels of flour in twenty-four hours for winter wheat. “ Also that Mr. Gray shall visit the mill.
    “And they also agree to furnish plans of the arrangement of machinery and work at cost within thirty days from this date, if so desired.

      “ And tbe party of tbe second part hereby agrees to pay for said articles, as follows, to wit:
    “ Cash on receipt of goods.

      “ It is hereby agreed that said E. P. Allis & Co. are to use their best endeavors to have said articles ready for shipment at the time stated herein, and also that they shall be of a stated quality, but they are not to be held liable for any pecuniary damage in either case, except to make good any unmerchantable defect which may be proved to exist in said articles when furnished.

      “ In testimony whereof, the said parties have hereunto set their hands this 4th day of April, 1881.
    (Signed) “ EDWARD P. ALLIS & CO.
    “ H. C. SMITH.
    “ Witness: W. D. Gbay.
    “L. Y. RathbuN.”

      W aters, McLennan c& Dillaye, for the plaintiff.

      Rollin Tracy, for the defendant.
   HaediN, J.:

Whether the property in question belonged to the plaintiff, the vendee, or Allis & Co., the vendors, is the principal question in this case. Plaintiff on the 4th day of April, 1881, entered into a written contract with Allis & Co., whereby he agreed to purchase and Allis & Co. agreed to sell him the property.

In the contract we find the following language, viz.:

“ Witness, That the said party of the first part, in consideration of the sum hereafter stated to he paid to them by the party of. the second part, at the time and in the manner hereafter stated, agree to manufacture and furnish, at Milwaukee, Wis., f. o. b. cars, all to be good material and workmanship, the following articles, to wit: ”

Here follows a description of the property in suit as well as some other. The contract further stipulated that “ Mr. Gray shall visit the mill at Marcellus, and the sellers were to furnish plans of arrangement of machinery and work at cost within thirty days from this date if so desired.”

It also stipulated, viz.: And the party of the second part hereby agrees to pay for said articles as follows, to wit, cost on receipt of goods.” It is hereby agreed that Allis & Co. are to use their best endeavors to have said articles ready for shipment at the time stated herein, and also that they shall be of a stated quality.

The articles specified in the contract were not all manufactured at or shipped from Milwaukee, nor do they all constitute one machine. The frames and rolls make one machine, and the purifiers are a separate machine. Some were shipped the 20th of April from Jackson, Michigan. Some were shipped from Ansonia about the 20th of May, 1881. That shipped at Jackson and Milwaukee is in question. The purifiers reached Marcellus station the last day of April, 1881, and were attached by the sheriff. The former shipped from Milwaukee reached Marcellus the 9th day of May, 1881, and were attached by the sheriff in the freight-house of the railroad company.

As the contract was in writing and provided for the sale of the property, and that it should be furnished on board of the cars free, we are of the opinion that the title passed to the purchaser when the property was thus separated for, set apart to and shipped, consigned to the purchaser. (Caulkins v. Hellman, 47 N. Y., 452.) If the property had been lost by the carrier the consignor could not have maintained an action against the carrier for the loss thereof. (Krulder v. Ellison, 47 N. Y., 36.) The intent of the parties as to when the title should pass of course is to be gathered from the contract and the surrounding circumstances. (Ogg v. Shuer, 11 Eng. Rep. [Moak], 316; Andrews v. Durant, 11 N. Y., 40; Clarkson v. Stevens, 27 Alb. Law Jour., 114.) And when,'as in this case, the facts are not in dispute the question of intent is one of law. (Terry v. Wheeler, 25 N. Y., 525; Parker v. Baxter, 86 id., 596.) There was not such a conflict in the evidence as to the surrounding circumstances, nor such an ambiguity in the language of the contract as to require the question of the intent of the parties as to the passing of title to be submitted to the jury. Kein v. Tupper (52 N. Y., 553) differs from this case. There the cotton was to be weighed by the vendors to ascertain the quantity, and to be sampled by both parties to ascertain the quality, and therefore no title passed until these acts were done.

The case of Hammett v. Linneman (48 N. Y., 399) also differs from the one before us. There was a sale for cash on delivery of coal, and the pivotal question was, whether the delivery was such as to pass the title, and whether the acts and declarations of the parties indicated an intent to waive the condition, and that the evidence justified the finding that the condition had not been waived, and therefore no title passed.

Rodgers v. Phillips (40 N. Y., 519) involved the statute of frauds, and it was held that a delivery to a carrier did not answer the statute, as there was no acceptance of the goods.

Here the contract of sale is itself valid, as it is in writing. (Halterline v. Rice, 62 Barb., 593.) The cutter which was to be manufactured had not been completed and ready for delivery, and “ appropriated to the benefit of or set apart for the purchaser with his assent and accepted by him, and therefore it was held that no title passed. It remained in the possession of the vendors unfinished when the vendors assigned and the title passed to their assignees, although plaintiff had contracted for a cutter to be made and delivered to him, which the vendors before they assigned had partially manufactured. The case was unlike the one now in hand.

At the close of the evidence there was a request to have the case submitted to the jury, to ascertain “whether the understanding of the parties was not that this property should be delivered and the title passed at Marcellus Falls instead of Milwaukee,” or “ the intent of the parties; that that would construe the contract as the jury should find upon that intent.” This request was denied, and, we think, properly. No other request was made and no other position need be considered here.

The motion for a new trial must be denied, and judgment ordered for plaintiff on the verdict.

Motion for a new trial denied.

Smith, P. J., and Bareee, J., concurred.

New trial denied and judgment ordered for the plaintiff on the verdict.