text:
    In the Matter of the Petition of DEVILLO JACKSON, Respondent, v. IRA D. JACKSON, an Alleged Lunatic, Appellant.

      Proceedings for the appointment of a committee of a lunatic — w hat allegation as to his unsoundness of mind will confer jurisdiction upon the Oounty Oowrt — what constitutes an unsoundness of mind — right of the Oounty Oowrt to direct that the issue of fact be tried before a jury in that court.

    A petition to a < 'ounty Oourt for the appointment of a committee of the person and estate of a person alleged to he of unsound mind, stated that he was “of unsound mind and understanding, and so far deprived of his reason and understanding as to be altogether unfit and unable to govern himself or to manage his affairs.”

      Meld, that the allegation as to unsoundness of mind was sufficient to confer jurisdiction upon the County Court.
    XJpon the trial [before the jury the commissioner charged the jury “ that to constitute a case of unsoundness of mind which will justify the court in assuming control of the person and property of a person by a committee, his mind must he so far impaired that if it had never been elevated above that state of capacity ■ from his birth it would have constituted a case of idiocy. ”

      Meld, that this charffe was erroneous.
    Upon the return of a commissioner, with the findings of a jury, to the County Court, that court may, in a proper case, direct the issue of fact to be tried before a jury in the County Court.
    Appeal from an order of tbe Madison County Court, denying a motion to set aside an order appointing a commissioner in proceedings de lunático inquirendo, and also from an order setting aside tbe finding of tbe jury and ordering a trial of an issue of fact before a jury in Madison County Court.
    In May, 1884, the petitioner caused to be served upon tbe alleged lunatic notice of an application for a commission. Tbe lunatic .appeared and tbe application was denied, but with'leave to renew tbe same upon additional papers on the eleventh day of June. Tbe petitioner understood it to be postponed to tbe twelfth of ■June, and did not appear tbe eleventh, and, consequently, an absolute order was entered denying said application. On tbe sixteenth of said June, tbe petitioner made an ex parte application to tbe county judge, for a commission upon additional facts and affidavits. Tbe .same was granted. Tbe appellant moved to set aside this ■commission. Tbe court denied this motion, and from that order ■one of tbe appeals herein is brought. Tbe commission was executed, and thirteen of tbe nineteen jurymen found in favor of tbe appellant. Tbe commissioner, on the 16th day of August, 1884, filed tbe commission, tbe return thereto, tbe testimony taken on tbe trial and his charge to tbe jury. Tbe inquisition was set aside, on tbe ground of an error in the commissioner’s charge to the jury. There are two appeals herein, one from tbe order refusing to set aside the commission, and another from the order setting aside the inquisition.

      H. L. Oates and D. L. Atkins, for the appellant.

      8. D. White, for the respondent.
   Hardin, P. J.:

Section 340 of the Code of Civil Procedure confers jurisdiction upon county courts, concurrently with the Supreme Court, of proceedings as to the custody of the person and the care of the property of a resident of the county who is incompetent to manage his affairs by reason of lunacy, idiocy or habitual drunkenness * * *■ and for the appointment of a committee, etc.

Section 2320 confers jurisdiction upon this court over the custody of the person and the care of the property of a person incompetent, to manage himself or his affairs in consequence of lunacy, idiocy or habitual drunkenness. Section 3343 prescribes the rule to be observed in construing the sections already referred to, and declares-that “ the words lunacy and lunatic embrace every description of unsoundness of mind except idiocy.”

Devillo Jackson, in May, 1884, presented to the County Court of Madison a petition in which he alleged that Ira Jackson, who resided in Brookfield, in that county, was of unsound mind and understanding, and so far deprived of his reason and understanding as to be altogether unfit and unable to govern himself or to manage his-affairs * * * and prayed for the appointment of a committee of the person and property of Ira Jackson.” The averments of the unsoundness of mind, with the other facts stated, were sufficient to confer jurisdiction upon the County Court. The averment of the fact of the existence of unsoundness of mind of Ira Jackson was of a fact and sufficient in form and substance to' admit of proof thereof under the statutes just referred to. (Riggs v. The American Tract Society, 84 N. Y., 330; S. C., on second appeal, 95 id., 503.) "When the finding of the jury was carried before the County Court, with the proceedings theretofore had in that court and before the commissioners, it appeared that the commissioners, among other instructions given to the jury in the charge, had said, viz.: “ That to constitute a case of unsoundness of mind, which will justify the-fourt in assuming control of the person and property of a person by a committee, his mind must be so far impaired that if it had-never been elevated above that state of capacity from his birth it would have constituted a case of idiocy. An exception was taken to that part of the charge, which we think was properly sustained by the County Court.

In the case just cited from 95 New York (at p. 511), Judge Danforth says: “ One may be of unsound mind, and yet be neither an idiot nor an imbecile,” and he adds that a person may be of unsound mind who is far short of a state of idiocy. (See, also, Barker's case, 2 Johns. Ch., 232; Matter of Mason, 1 Barb., 436; In Matter of Burr, 17 id., 13; Delafield v. Parish, 25 N. Y., 103.) A person may be wholly incompetent to manage himself and his affairs in consequence of lunacy ” and still be removed from a state of idiocy, •or a state which if it could be supposed to have existed at his birth would be greatly removed from idiocy. (In Matter of Burr, 17 (Barb., 13; Code, § 2320.)

According to section 2336, upon the return of the commission with the inquisition, it was the duty of the court to make such order by way of directing a new trial or hearing or upon the petition as justice requires. The application was addressed very much to the •discretion of the court and-was to be considered on its merits. (Matter of Rogers, 9 Abb. N. C., 141.) We are persuaded that the •discretion of the County Court took the right directions, and we .are satisfied with its order directing a trial of the question of fact before a jury in that court. ¥e are of the opinion that both orders appealed from should be affirmed, with costs of the appeal in one •case to abide the final award of costs.

Follett and YaNN, JJ., concurred.

Orders affirmed, with one bill of costs in this court to abide the final award of costs in the County Court of Madison county.


source: Caselaw Access Project

author: Haedin, P. J.:

license: Public Domain

text:
    HARRISON S. DEAN, as Executor, etc., of SUSAN ROSEBOOM, Deceased, Respondent, v. JEROME B. ROSEBOOM, Appellant.

      Action by an executor — when lie will not be charged personally with the costs of cm unsuccessful action.

    The plaintiff, while the sole acting executrix of one Roseboom, brought this action upon a promissory note made by the defendant to the order of the . deceased. After the commencement of the action the defendant, who was also appointed an executor in the will, qualified and set up that fact as a defense-thereby procuring a dismissal of the complaint. A judgment dismissing the complaint and for costs was entered in the defendant’s favor, and thereafter he moved to have the plaintiff charged personally with the payment of the-costs.

      Held, that the motion was properly denied.
    Appeal from an order of tbe Jefferson county Special Term denying a motion to charge tbe plaintiff personally with tbe costs of this action.
    The plaintiff and the defendant were named as executors in th& last will of Susan Roseboom, deceased, and both appeared at the probate thereof before the surrogate. The plaintiff took out letters; the defendant declined to qualify. The defendant hadinhis possession all the personal property of the testatrix, except certain notes amounting to $400, described in the complaint, which he had executed to the deceased in her. lifetime and which had now fallen into the hands of the plaintiff, his co-executor. At the request of the legatees in the will the plaintiff brought this action as executor against the defendant to recover the amount of the notes. After the action was commenced the defendant also took out letters testamentary and set up that fact as a defense to the action. The defense was sustained and judgment in the trial court and on appeal was rendered in favor of the defendant, who, some four years thereafter, made the motion above mentioned, from the order denying which this appeal is taken.

      O'Brien, Mnmerson dk Ward, for the appellant.

      Dor win ds Brown, for the respondent.
   Haedin, P. J.:

Section 1814 cannot be applied in tbis action, as it was passed after tbis action was commenced and relates to actions commenced after tbe passage. Tbis action was commenced April 16,1879, and tbe section was not passed until May 6, 1880.

“When tbe action was brought the plaintiff was tbe sole executor who bad qualified to act as such. If tbe action had continued on that state of facts it might have been maintained. But, instead thereof, defendant, on tbe 1st of May, 1879, qualified and set up that fact as a defense, and by means of it obtained a holding at circuit and at General Term that an action at law could not be maintained by one executor against a co-executor.

It was tbe act of tbe defendant subsequent to tbe commencement of tbe action which prevented a recovery at law by tbe plaintiff. (See opinion of Smith, J., Smith v. Lawrence, 11 Paige, 206; McGregor v. McGregor, 35 N. Y., 221; Sanford v. Sanford, 45 N. Y., 723; Hunter v. Hunter, 19 Barb., 632; Whitney v. Coapman, 39 Barb., 482.)

We cannot say that tbe plaintiff was guilty of mismanagement or bad faith in bringing tbe action. It was tbe subsequent act of tbe defendant which ousted tbe court of its jurisdiction in the premises.

In Olcott v. Maclean (11 Hun, 395) a complaint was dismissed, without costs, where an act of congress bad deprived tbe State court of jurisdiction after action brought. (See S. C., 10 Hun, 277; Code Civ. Pro., §§ 3246, 1836.)

Tbe facts which appeared at tbe trial as to whether tbe action was brought, and as to tbe plaintiff’s right then to maintain it, and tbe subsequent act of defendant in qualifying as an executor were proper to be taken into consideration in determining whether the costs should be paid by plaintiff, either out of bis individual property or out of tbe property of the decedent.” (Sec. 1836.) Prom the form of tbe judgment it is reasonable to infer that tbe court did consider these facts and award a judgment against tbe estate only. There is no direction in tbe judgment given by tbe trial court that they be paid “by tbe party personally.” (Sec. 3246.) It was said in Tolman v. S. B. and N. Y. Railroad Company (92 N. Y., 327), that section 3246 refers to costs in a final judgment rendered in an action. Tbis action was upon notes payable to the testatrix, or her order, and had not been indorsed, and they were assets belonging to the estate, and an action in the name of the sole representative of the estate was proper, instead of in the individual name of such representative. This appeal is from an order made upon a motion, made some four years after the entry of judgment.

We are of the opinion that the Special Term was right in denying the motion, and the order should be affirmed, with ten dollars costs and disbursements.

Eollett and YaNN, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author:
Follett, J.:
      BoardmaN, J.: Hardin, P. J.:

text:
    PARKER P. CLARK and GEORGE H. CLARK, Respondents, v. DANIEL E. TAYLOR and HENRY A. JONES, as Assignee, Appellants.

      General assignment — token it will be set aside as to a creditor induced to refraim from entering a judgment by the fraudulent representations of the assignor.

    September 4, 1882, the plaintiffs were about to enter a judgment against one Taylor, whose time to appear had expired.. If such judgment had been then entered the amount thereof could have been collected upon an execution then issued thereon. To induce the plaintiffs to refrain from so doing Taylor agreed that he would pay the claim, by frequent partial payments, before November first, and that if he concluded to make a general assignment he would give the plaintiffs notice of his intention so to do twenty-four hours before executing it. Taylor also then made a statement as to his assets and liabilities, in which the former were greatly overstated and the latter understated. The proposition having been accepted Taylor paid $117.14 on the claim prior to September twenty-seventh. On September twenty-eighth Taylor, without giving any notice to the plaintiffs, made a general assignment to the defendant Jones, containing preferences, the plaintiffs being placed in the fifth class. Thirty minutes after the assignment had been recorded the plaintiffs judgment was entered and an execution issued thereon, which was returned unsatisfied.
    Upon the trial of this action, brought by the plaintiffs to set aside the assignment as fraudulent as to them, the court found that Taylor intended to make the assignment at the time of entering into the agreement, and made the agreement for the purpose of preventing the plaintiffs from exercising their legal rights and to gain time in which to make the assignment.

      Held, that the assignment was fraudulent as to the plaintiffs, and should, as to them, be set asid

      Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court without a jury.

      D. P. Morehouse, for the appellant Taylor.
    Rhodes, Goon c& Higgmgs, for the appellant Jones, assignee.

      F. E. Hamilton, for the respondent.
   Follett, J.:

This is an appeal from a judgment, entered upon the decision of the Special Term, setting aside a general assignment as fraudulent and voidable as against the plaintiffs. September 4, 1882, the plaintiff had the right to immediately enter a judgment in the Supreme Court against Daniel E. Taylor for upwards of $500, his time in which to appear in the action having expired. ITad this right been exercised and an execution issued, the evidence shows that the plaintiffs’ demand would have been collected. To induce the plaintiffs to refrain from enforcing these remedies, Taylor agreed with the plaintiffs’ attorney, that if a judgment was not entered, he would by frequent partial payments, pay the claim before November 1,1882, and if he concluded to make an assignment, he would notify the plaintiffs’ attorney of his intention twenty-four hours before its execution. During this conversation Taylor made a statement of his assets and liabilities, and the evidence conclusively shows that his assets were greatly overstated, and his liabilities greatly understated. The plaintiffs’ attorney assented to Taylor’s proposition and the agreement was reported to and ratified by the plaintiffs. Prior to September 27, 1882, Taylor paid on the claim $117.14. September 28, 1882, Taylor without notifying the plaintiffs’ attorney •executed a general assignment for the benefit of creditors, to ■defendant Jones. The creditors were by the assignment divided into classes, to be paid in full in their order, the plaintiffs being placed in the fifth class.

The assignee accepted of the trust and took possession of the assigned property on the same day, and at eight a. m. of the next day recorded the assignment. The plaintiffs’ attorney learning of the assignment after it had been recorded, entered the judgment thirty minutes after the assignment, and issued an execution which was returned imsatisfied. This action was brought to set aside the assignment because Taylor violated his agreement. There is substantially no dispnte about the terms of the agreement, the attorney swearing that twenty-four hours’ notice was to be given, and Taylor swearing that reasonable notice was to be given, and admitting that he gave none.

It is settled in this State that an assignment for the benefit of creditors is not voidable because it prevents a creditor from acquiring a lien by an impending judgment, attachment or execution. The mere fact that a preferential assignment delays or defeats a creditor about to acquire a legal lien upon the assigned property, does not affect the validity of the assignment. "Whether this assignment is fraudulent and voidable as against the plaintiffs depends upon the intent of the assignor. If it was conceived and executed for the purpose of depriving the plaintiffs of a valuable legal right, it is voidable as against them.

The court finds that when the agreement was made the defendant then intended to make the assignment, and that he made the agreement and representations for the purpose of preventing plaintiffs, from exercising their legal right, and to gain time in which to make the assignment. If this is a fact, and if it wrought an injury to the plaintiffs (as it clearly did), it was a fraud which invalidates the assignment as against the plaintiffs. An assignee is not a purchaser in good faith, but stands in the shoes of the assignor. The defendants insist that the evidence is insufficient to establish a fraudulent intent. It appears that an assignment had been actually drafted before the agreement of September fourth, which fact was not stated to the plaintiffs’ attorney, though it was stated by Taylor that he had thought of making an assignment but the exigency had passed. It was not true that the exigency had passed ; the note upon which suit was brought had not been arranged, as stated, and the action was still pending, which fact' was not disclosed. It is-conceded that the assets were over and the liabilities were understated, and that the assignment was executed in violation of the assignor’s agreement. Considering these facts in connection with the other facts in the case, we cannot say that the finding is against the evidence.

In Jaques v. Greenwood (12 Abb., 232) the defendant in á judgment moved to vacate it with leave to answer, and obtained an order staying the issuing of an execution pending the decision of the motion, upon the agreement of their attorney that they would not make an assignment. Before the motion was decided, defendants made a general assignment for the benefit of creditors, which, for this reason, was .set aside as fraudulent as against the plaintiffs in the judgment. In Spear v. Wardell (1 N. Y., 144), a debtor against whom proceedings under the non-imprisonment act were pending made a general assignment. In an action brought by the creditors to set aside the assignment for this reason, it was held that though the creditor acquired no lien by his proceeding, he-acquired a right to a preference over the other creditors, which could not be defeated by a voluntary assignment, which was held to-be a fraud upon the act and upon the creditor’s right. In Hauselt v. Vilmar (2 Abb. N. C., 222), the defendants in a judgment moved to vacate it and foi leave to answer, obtaining an order staying the-issuing of an execution pending the decision of the motion. While the evidence was being taken before a referee, the defendants threatened to file a petition in bankruptcy. The motion coming on to be heard upon the evidence, the defendant asked for a postponement, which was opposed befeause of the threat, and thereupon defendants’ counsel assured the court that proceedings in bankruptcy would not be taken, and the motion was postponed. Afterwards, and on the same day, ‘defendants made a general assignment. The plaintiffs in the judgment brought an action to sot aside the assignment as fraudulent as against them ; but it was sustained, the court holding that there was no agreement not to make an assignment; that what was said about not going iñto bankruptcy was incidental and was-not the cause of postponing the creditor’s right to issue an execution. This judgment was affirmed at General Term (11 J. & S., 574), and in the Court of Appeals (76 N. Y., 630), but this question was not discussed in either court. Jaques v. Greenwood (supra) is referred to (2 Abb. N. C., 227), and is not criticised. It should be borne in mind, in this case, that the plaintiff’s attorney had made out the judgment-roll, was on his way to enter it in the clerk’s office when he met Taylor, and had the conversation referred to, and had Taylox* not made this agreement and l’epresentations, that in a few minutes an execution could have been levied upon the stock which would, have secured the claim.

The judgment of the Special Term is affirmed, with costs.

BoardmaN, J.:

I concur with some hesitation ; but it seems to me that the finding that Taylor made his false representations on September fourth, to prevent the entry of a judgment, and with intent at that time to take advantage of such delay by making an assignment that should cut off plaintiffs’ collection, brings the case within the statute.

Judgment affirmed, with costs.

Hardin, P. J.:

Upon evidence sufficient to support it, the trial judge found that the defendant Taylor agreed with plaintiffs if he was pressed in any way, or if he was threatened, he would at once notify the plaintiffs’ attorneys so that they might enter judgment and issue an execution thereon ahead of any assignment or other creditor.”

Taylor thereby in effect assented to a lien, in favor of plaintiffs, upon his property. He did not notify plaintiffs or their attorney, but made an assignment to Jones with preferences for the benefit of his creditors, and thereby attempted to defraud the lien and to give others his property, instead of allowing the plaintiffs’ lien to ripen thereon. Jones, the assignee, acquired no better title or right to the assigned property then Taylor had. He was not a purchaser in good faith for value. Equitably he took it charged with the lien or equity of plaintiffs, created by the promise of Taylor. Taylor made the promise in consideration of delay and obtained forbearance from the plaintiffs, and in good conscience and in equity ought to be bound by the agreement. It is„but reasonable and equitable that Jones, the assignee, should take the assigned property of Taylor cum onere.

The Special Term followed out the lien to its legitimate conclusion, a.nd declared the assets in the hands of the assignee chargeable with the payment of the balance due the plaintiffs, after crediting the payments amounting to $117.14. His conclusion meets the equities of the case and declares the proper result. We are of the opinion that the judgment is just and equitable and should be sustained.

The judgment should be affirmed, with costs.

Judgment affirmed, with costs.


author: Boardman, J.

text:
      In the Matter of the Application of the NEW YORK, WEST SHORE AND BUFFALO RAILWAY COMPANY to acquire title to lands of CORNELIA M. GENNET and Others.

      Damages for taking land for railroad purposes — the amount thereof, how far subject to review — the owner is entitled to the value of railroad tracks unlawfully constructed on his land by the company.

    Appeal from an appraisal of damages made by commissioners appointed to appraise the damages to be occasioned by the taking of lands for the purposes of a railroad, and from an order of the Special Term confirming their report.
    The land taken .consisted of a part of a village lot, which was. bounded on the blue line of the canal, together with the rights of the respondents in a public street upon which it fronted. The railroad company had, without authority, entered upon the land and laid and constructed their tracks thereon before instituting these proceedings. Exclusive of the superstructure upon it, the value of the land taken was placed at from $200 to $1,800. The commissioners fixed the value at $775. The value of the superstructure was placed by the commissioners at $225.
    The court, at General Term, said : “ The commissioners viewed the premises and had means for making up their judgment not possessed by this court and which could not be returned to us. We see nothing in the amount of this award which would, under the evidence, justify us in calling it excessive or unreasonable. Especially is this true when the rights of the respondents in German street are given to the railway company without any value haying been put thereon. The interest of adjoining owners in the highway had some value. (See authorities cited at page 9 of Appendix to “ Eail-road Laws of New York,” Albany, 1883; Washington Cemetery v. P. P. and C. /. R. R. Co., 68 N. Y., 591.)

      “Any structure wrongfully placed upon tbe lands by the railway ■company became by that act a part of the land and entered into its value. The case tends to show that the railway company entered upon the lands in question without right or authority from the •owners and built the road in part thereon. The property so put upon the land added to its value and was properly included in the appraisal as property of the landowners to be taken by the railroad company. (Matter of Long Isla/nd It. It., 6 Thomp. & Cook, 298, and note; Bloodgood v. Mohawk and II. R. R. Co., 18 Wend., 9; Frear v. Hardenbergh, 5 Johns., 272.)

      “ The competency of evidence of the value of improvements put upon the premises has been considered. The condition of the premises when these proceedings were instituted was the proper subject of inquiry, and evidence of their condition at a prior time and before valuable improvements had been put thereon, was properly excluded. The cost of structures put upon the land was not competent and such evidence was properly rejected. The value of the land and structures thereon was alone to be determined. The cost is not a rule of damages. Courts will not disturb appraisal of damages for technical errors in the admission or rejection of evidence, unless it is apparent that such errors led to unjust results. The awards will be sustained unless the commissioners have clearly gone astray and disregarded legal principles as in Matter of New York, Lackawamna and Western Railroad v. Arnott (27 Hun, 151); In re New York, West Shore and Buffalo Railroad Company v. Dud-lesion (29 id., 609): Troy a/nd Boston Railroad Company v. Lee (13 Barb., 169).”

      Everett c& Lewis, for the petitioner, appellant.

      Watts T. Loomis, for landowners, respondents.
   Opinion by

Boardman, J.

Present — HardiN, P. J., and Boardmaet, J.

The order of confirmation and report of commissioners affirmed, with costs.


author: LaNdoN, J.: LeabNed, P. J.

text:
    THE PEOPLE OF THE STATE, OF NEW YORK, Respondent, v. ARTHUR CIPPERLY, Appellant.

      Sale of adulterated milk — the legislature cannot establish, by statute a standard by which its adulteration is to be conclusively established —1884, eha/p. 202.
    The defendant was convicted, under chapter 202 of 1884, of the offense of selling impure, unhealthy, adulterated and unwholesome milk. Upon an appeal taken hy him from the judgment convicting him:

      Held, that so much of section 1 of the said act as provides that “no person or persons shall sell or exchange, or expose for sale or' exchange, any unclean, impure, unhealthy, adulterated or unwholesome milk,” is, if the prohibition he limited to milk to he used for the purposes of food, constitutional and valid, it being plainly within the power of the legislature to pass such an act as a police regulation to protect the public health.
    That so much of the thirteenth section of the said act as provides that “in all prosecutions under this act relating to the sale and manufacture of unclean, impure, unhealthy, adulterated or unwholesome milk, if the milk be shown to contain more than eighty-eight per centum of water or fluids, or less than twelve per centum of milk solids, which shall contain not less than three per centum of fat, it shall be declared adulterated,” is unconstitutional and void, because it deprives the defendant of his liberty and property without due process of law, in that it deprives him of the right, upon the trial of the charge against him, to have the issue determined according to the evidence of the fact, and compels him to submit to the statutory declaration thereof without having the truth ascertained. (Learned, P. J., dissenting.)

      It seems, that if the result of the statute is to prohibit the sale of pure and wholesome milk, then within the case of People v. Marx (99 N. Y., 377) the act would be void as being beyond the legislative power. (Landon, J.)

      Appeal from a judgment of tbe Court of Special Sessions of the city of Albany, entered upon the conviction of the defendant of the offense of selling adulterated milk.
    The defendant was arrested for a violation of chapter 202 of the Laws of 1884, in selling adulterated milk; he was tried before the Court of Special Sessions, held by the recorder of the city of Albany, convicted and fined twenty-five dollars. Upon the trial it appeared that the defendant was engaged in selling milk; that a sample of his milk was procured from the same can he was selling from, and that upon being tested it was found to contain more than eighty-eight per cent of water, less than twelve per cent of milk solids and less than three per cent of fat. It also appeared that nothing had been put in the milk and nothing taken from it. The defendant asked for his discharge upon the ground that the law was in violation of his constitutional rights. Objection was also taken by the defendant that no criminal intent was shown, and exceptions taken to the exclusion of evidence by which it was proposed to show that defendant had no criminal intent.
    The sections of the statute upon which the decision of the question involved depends, read as follows:
    SeotioN 1. No person or persons shall sell or exchange, or expose for sale or exchange, any unclean, impure, unhealthy, adulterated or unwholsome milk, or shall offer for sale any article of food made from the same or of cream from the same. This provision shall not apply to pure skim cheese made from milk which is clean, pure,, healthy, wholesome and unadulterated, except by skimming. Whoever violates the provisions of this section is guilty of misdemeanor and shall be punished by a fine of not less than twenty-five nor more than two hundred dollars, or by imprisonment of not less than one or more than six months, or both such fine or imprisonment for the first offense, and by six months’ imprisonment for each subsequent offense.
    Seo. 13. In all prosecutions under this act, relating to the sale and manufacture of unclean, impure, unhealthy, adulterated or unwholesome milk, if the milk be shown to contain more than eighty-eight per centum of water or fluids, or less than twelve per centum of milk solids, which shall contain not less than three per centum of fat, it shall be declared adulterated, and milk drawn from cows within fifteen days before and five days after parturition, or from animals fed on distillery waste, or any substance in the- state of putrefaction, or fermentation, or upon any unhealthy food whatever, shall be declared unclean, impure, unhealthy and unwholesome milk. This section shall not prevent the feeding of ensilage from silos.

      Eugene Burlingame, for the appellant.

      D. Cady Herrick, for the respondent.
   LaNdoN, J.:

The defendant was convicted under chapter 202, Laws of 1884, of the offense of selling adulterated milk. It is objected that sections 1 and 13 of the act in question are unconstitutional. The first section of the act provides that “ no person or persons shall sell or exchange or expose for sale, or exchange any unclean, impure, unhealthy, adulterated or unwholesome milk.” Assuming that it was within the legislative intention to limit this prohibition to the purposes of food, we think it was plainly within the legislative power to pass this section, so far as quoted, as a police regularion to protect the public health. This'seems to be well established by authority. (People ex rel. Cox v. Special Sessions, 7 Hun, 214; Blazier v. Miller, 10 id., 435; Commonwealth v. Waite, 11 Allen, 264; Commonwealth v. Farren, 9 id., 489.) Similar statutes have long stood unchallenged. (Chap. 467, Laws of 1862; chap. 544, Laws of 1864; Polinsky v. People, 73 N. Y., 65.)

The defendant, however, was convicted by force of the thirteenth section of the statute, which provides that “in all prosecutions under this act relating to the sale and manufacture of unclean, impure, unhealthy, adulterated or unwholesome milk, if the milk be shown to contain more than eighty-eight per centum of water or fluids, or less than twelve per centum of milk solids, which shall contain not less than three per centum of fat, it shall be declared adulterated.” The milk in question was shown to contain eighty-eight and ninety-six thousandths per centum of water and two and six hundred and fifty-six thousandths per centum of fat, and as it fell short of the statutory standard it was by force of the statute declared to be adulterated, and the defendant was convicted, notwithstanding he adduced evidence tending to show that the milk was entirely a natural and wholesome product, and wholly unadulterated or diluted.

If experience has shown that milk which does not possess the ingredients specified in the statutory standard is unwholesome and unfit for food, it may well be within the power of the legislature to prohibit its sale. But such is not this prohibition. The defend • ant was not charged with selling milk containing more than eighty-eight per centum of water, and less than twelve per centum of milk solids. He was charged with selling “ impure, unhealthy, adulterated and unwholsome milk.” Upon that charge he was entitled to a fair trial according to the “ due process of law.” “ Due process of law/ says Judge Cooley, quoted with approbation in Bertholf v. O'Reilly (74 N. Y., 519), in each particular case, means such an exertion of the powers of government as the settled maxims of the law sanction, and under safeguards for the protection of individual rights as those maxims jirescribe for the class of cases to which the one in question belongs.” Due process of law gave to the defendant the right to con test the allegation that the milk was adulterated or impure or unwholesome. True, he gave his evidence, but the statute silenced its effect. There can be no trial if only one party is permitted to present his proofs, or if the statute requires judgment to be pronounced against the defendant upon proof by the people of some other fact not in issue. The legislature cannot restrain a party from setting up a good defense to an action against him. (Cooley’s Const. Limitations, 369.) But it is said the legislature may make and alter rules of evidence. There is no doubt that in civil cases the legislature can make certain facts prima facie evidence of another fact. (Howard v. Moot, 64 N. Y., 262; Hand v. Ballou, 12 id., 543.) And it has been held competent for the legislature to provide that certain facts, having a tendency to prove the existence of another fact, shall, in criminal eases, be prima facie evidence of the latter fact. (Commonwealth v. Williams, 6 Gray, 1.) But the court was careful to hold that the presumption might be repelled by the circumstances or by other proofs. (Commonwealth v. Wallace, 7 Gray, 222; Commonwealth v. Rowe, 14 id., 47.) Here the statute denies the accused that protection. The legislature cannot make certain facts conclusive evidence which ■ in their nature are not so. (People v. Lyon, 27 Hun, 180.) Evidence to secure a conviction should be such as to satisfy “ the judgment of his peers,” or of whatever tribunal that determines the fate of the accused. The legislature may prescribe rules for the .admission of evidence, but cannot compel the trial court to hold it ■conclusive of the defendant’s guilt, without regard to that court’s conviction or judgment as to its conclusiveness. If the legislature can compel the courts to render judgment contrary to their convictions of the truth, produced by the evidence, then the legislative power can coerce the judicial power; a proposition destructive of ■the co-ordinate departments of the government.

If the testimony on the part of the defendant was true, his milk was not unhealthy, adulterated nor unwholesome- — -he was innocent in fact. Certainly, the testimony that tended to show that he was ■careful, honest and innocent in this transaction ought to have been considered, and, if believed, ought to have resulted in his acquittal. But, under this statute, such evidence can have no weight. The -statute regards per centages only. Eighty-eight per centum of water is permitted. The evidence of the chemist showed an excess -of less than one-tenfh of one per centum, and upon that fraction the •statute required the defendant’s conviction right or wrong.

~We think that the thirteenth section of the act, which requires that, upon a trial for selling adulterated milk, .the milk shall be declared adulterated if it do not contain the per centage of ingredients specified in the statute is beyond the legislative power, because it deprives the defendant of his liberty and property without due process of law, in that it deprives him of the right upon the trial of the charge against him, to have the issue determined according to the evidence of the fact, and compels him to submit to the statutory declaration thereof, without having the truth ascertained.

If the result of the statute is to prohibit the sale of pure and wholesome milk, then within the principle reaffirmed in the recent -case of People v. Marx (32 Albany Law Jour., 6) that, “it is one of the fundamental rights and privileges of every American citizen to adopt and follow such lawful industrial pursuits, not injurious to the community, as he may see fit,” the prohibition would be beyond the legislative power.

Tbe production and sale of pure and wholesome milk is a lawful industrial pursuit, and is not injurious to the community. The act is not designed to prohibit that. It aims, as it properly may, to-suppress the sale of impure and adulterated milk. It prescribes, that upon any prosecution for the sale of impure or adulterated milk its per centage of water and milk solids may be shown. This, it is competent for the legislature to do. But wherein it provides, that upon the fact “being shown that the per centages do not comply with, the statutory standard, the milk shall be declared adulterated,, it seeks to compel the trial court to pronounce judgment upon that fact alone, without regard to what the truth may be shown to be,, and therein perverts the due process of law.

Conviction reversed and the defendant discharged.

.Bocees, J., concurs.

LeabNed, P. J.

(dissenting):

In Bertholf v. O'Reilly (74 N. Y., 509), the Court of Appeals asserted in the strongest language that the legislative power had no-other limitation than the constitutional restraints and limitations, and that laws cannot be declared void because they are opposed to-natural justice.

The principle of the case of Wynehamer v. People (13 N. Y., 378), as to the destruction of existing property, is not, in my opinion,, applicable to the present case. It would be a great stretch of that principle to say that the statute in question deprived persons of their property who owned cows at the time of its passage, because it. interfered with, or even deprived them of, the use of the milk which the cows might yield.

But the defendant takes the broader ground that the legislature-cannot, under the constitution, prohibit the sale of milk drawn from healthy cows, which, in its natural state, falls below the standard fixed by the act, unless such milk, or the articles made from it, are-in fact unwholesome or dangerous to public health. How is that question of fact to be determined ? The court cannot take judicial notice whether milk below the standard is or is not unwholesome or dangerous to public health. Is that to be a question for the jury ? If so, the court must charge a jury, in each case, that if they find-milk below that standard to be -unwholesome, then the statute is ■constitutional; if they find it to be wholesome, then the statute is unconstitutional. Evidently a constitutional question cannot be ■settled, or rather unsettled, in that way. The constitutionality would vary with the varying judgments of juries.

Either then the legislature can, under the constitution, forbid the •sale of milk below a certain standard, whether such milk be in fact wholesome or not; or else they cannot do this, whether that milk be in fact wholesome or not. If they may fix a standard, they must judge whether or not milk below that standard is wholesome. The courts cannot review that judgment.

As was said in another case, “ wherever there is a general right ■on the part of the public, and a general duty on the part of the landowner, or any other person to respect such right, we think it is competent for the legislature by a specific enactment to prescribe a precise practical rule for declaring, establishing and .securing such right.” And it was further said, by way of illustration, that to erect a powder magazine or slaughter-house so near a village as to be dangerous, would be a nuisance at common law, and that the legislature might establish an authoritative rule •determining the distance within, which such a structure should not be erected. (Commonwealth v. Alger, 7 Cush., 95.) Certainly if ¡such a law were enacted, a court could not say that the distance prescribed was too great, or leave it to a jury to determine that point, and thereby to decide on the constitutionality of the law. It ■cannot then be material to the present question whether milk below the standard fixed by the statute is or is not wholesome. The question must be whether the legislature can establish any ■standard of purity.

Courts have chosen to speak of laws of the kind in question and ■of similar classes of laws as passed under “the police power.” This phrase throws no light on the question of constitutionality; but only serves as a classification. How very uncertain its limits are may be seen from the fact that Blackstone (cited as authority in Watertown v. Mayo, 109 Mass., 315) includes, under this head ■of police power, clandestine marriages, bigamy, etc. (4 Bl. Com., 162). The object however of classing statutes of this kind under the head of police power has been to afford an argument which should except them from tbe constitutional prohibition against depriving a. person of property without due process of law.

Now, it is very plain that courts have nothing to do with the-question of the wisdom, or even, according to our courts, with the-natural justice of any particular law. Courts cannot say that the’ legislature has the constitutional power to pass a judicious law to regulate the sale of articles of food, but have no constitutional power to pass an injudicious law on that subject. It has been said with truth that “ under the guise of police regulations personal rights and private property cannot be arbitrarily invaded; ” that »the courts are to scrutinize the act and see whether it really relates-to and is convenient and appropriate to promote the public health; ” that “ the courts 'must be able to see that it has at least in fact some-relation to the public health; that the public ’health is the end aimed at and that it is appropriate and adapted to that end.” (In re Jacobs, 31 Alb. L. J., 84.) Now, an examination of the present law clearly shows that it relates to, and is appropriate to promote-the public health. "Whether its details are wise we do not know.. But its object is evident and is good. Its first section forbids the-sale of unclean, impure, unhealthy, adulterated or unwholesome-milk. Then its thirteenth gives a statement of some conditions-wliich are included within the terms adulterated, unclean, impure, unhealthy and unwholesome milk. There is nothing, as I think,, wrong in this mode of legislation. A law may describe an offense-by some general word, and may then say that this word shall-include such and such things. This thirteenth section declares that milk drawn from cows within fifteen days before and five days after parturition shall be declared unwholesome, etc., and the same of milk from animals fed on distillery waste, etc., and that milk below a certain stated standard shall be declared adulterated. Now, this-is equivalent to saying that no person shall sell milk drawn from cows within that time of parturition, or fed on distillery waste, or milk below a certain standard. And the mere circumstance that section first contains a general prohibition, and section thirteenth a particular specification does not, in my opinion, affect the validity of the statute.

The case of People v. Lyon (27 Hun, 180) is quite different. There the defendants wore indicted for selling liquors to be drunk etc. The court charged that if a person was seen to drink in the shop this was prima facie evidence that the liquor was sold by the occupant with intent that the liquors should be so drunk. The court held that the statute which made the lawful act of a third person, with which the accused was not connected, prima facie evidence of his guilt deprived him of his right to a trial by jury and was unconstitutional. The present law only says that a sale of milk below a certain standard is a sale of adulterated milk within the meaning of the law; that a sale of milk from cows fed on distillery waste or from cows within a certain time of parturition is a sale of unwholesome milk within the meaning of the law. This is not a rule of evidence, but an explanation of the meaning of the words used in the statute.

This regulation of a certain standard is like the provision referred to in Commonwealth v. Alger (ut supra), where a law establishes a certain distance from a village nearer than which a powder magazine or slaughter-house should not be erected.

But it is urged by the defendant that this statute may prevent the sale of milk which is in fact pure and unmixed with water. "What determined the legislature to fix this standard we do not know. But it may be supposed that different kinds of food produce different degrees of richness of milk. And it may be known to the legislature that certain kinds of food, the softened and innu-tritious grain, left after the production of ale or grape sugar, will cause a great flow of watery milk; and it may be known to the legislature that this watery milk, supplied as food to children, cheats them with the appearance of nourishment, and deprives them of that nutritious food which they need. It may be known to legislators, then, that milk below the standard which they fix by this law is unsuitable for food and should not be sold. At any rate, all this is a matter for the legislature. In the case above cited, In re Jacobs, where perhaps the courts went as far as is safe in declaring a law unconstitutional, the opinion of the court shows that the decision was based on this view, viz., that the law was, on its face, not intended to promote the public health, and would have no such result. As has been said in other cases, it was intended to accomplish other results, in the guise of guarding the public health. Now. there; is nothing in the present law which has any other result in view than tbe public health. No large manufacturers are to be protected against the competition of single workmen. The law is general in its scope, not limited to two cities. The only fault to be found is that it is unwise, as the defendant claims, to make a certain standard the test, and to forbid the sale of milk below that test. Whether that is wise or not, it is net for us to say. It is a provision evidently intended for the public health. No other intention can be gathered from the law. Plainly none other existed. And in view of the peculiar difficulties which surround the attempt to secure wholesome milk to the people, it is by no means certain that the establishing of a definite standard is not a judicious provision.

In Wynehamer v. The People (ut supra), the law under consideration prohibited, with certain exceptions, the sale of intoxicating liquors. It will be seen, at page 487, that all the judges were of the opinion that it would be competent for the legislature to pass such an act, provided it was plainly prospective. In the later case of Metropolitan Board of Excise v. Barrie (34 N. Y., 657), the right of the legislature to regulate and control the traffic in intoxicating liquors was affirmed. Now, if the legislature may control and regulate the sale of intoxicating liquors, why may they not exercise a similar power as to the sale of milk ? Their control as to such liquors extends to those which are pure as well as to those which are adulterated.

Since the fourteenth amendment was adopted the Constitution of the United States contains a provision similar to that provision of the State Constitution, under which it is claimed that this law is void. It is settled that that amendment does not impair the so-called police power, and it was decided that, under that police power, even a municipality might jrrohibit washing and ironing in public laundries within certain limits and between certain hours. (Barbier v. Connolly 113 U. S., 27.) Now here is a business which is useful and proper. It is what was called, In re Jacobs, a lawful business, yet at certain times it was absolutely prohibited. The same principle was again laid down in Soon Hing v. Crawley (113 U. S., 703), the court saying that the right of a man to follow his calling “ must be exercised, subject to such general rules as are adopted by society for the common welfare.”

In the recent case of The People v. Marx (99 N. Y., 377) the ■court say the object of the law then under consideration was “ to ■drive the substituted article from the market and protect those ■engaged in the manufacture of dairy products against the competition of cheaper products.” In other words, the object of that law, like that of a protective tariff, was to protect the home industry of the farmer against the city industry of the manufacturer. And the ■court held the law to be void, because it “ prohibits an important branch of industry for the sole reason that it competes with another .and may reduce the price' of an article of food.” Evidently the present law has no such characteristics. It is not intended to prohibit any branch of industry or to prevent competition. Its sole •object is to regulate and control the quality of a certain article ■of food, in the interest of the health of the people. And if the legislature, knowing the difficulty of guarding against the watering ■or other adulteration of milk, deem it best to fix a standard of richness, I think this is within their power, and that, too, irrespective ■of the question whether the milk is diluted after it is taken from the cow, or whether it is made watery in the animal itself by giving such food as will produce a great flow of what might well be called milk and water.

I think the judgment should be affirmed.

Present — Leaened, P. J., JBooees and LaNDON, JJ.

Judgment and conviction reversed.

      99 N. Y., 377. — [Rep.


author: Bocees, J.: L AND ON, J.: Leaened, P. J.

text:
    CHARLES B. KING, Respondent, v. PATRICK J. FLYNN and REBECCA T. FLYNN, Appellants, Impleaded with JOHN H. FINN.

      Proceedings to punish for contempts — distinction between dml and criminal con-tempts— Code of Civil Procedure, tit. 3, chap. 17 — limits of the indemnity to be allowed to a party injured by a contemmt punishable civilly — Code of Civil Procedure, secs 8 to 14.
    Where proceedings are instituted by a party to a civil action to have another party thereto adjudged guilty of a contempt for refusing to answer questions propounded to him on his examination under an order made for that purpose, pursuant to section 873 of the Code of Civil Procedure, the misconduct can ■only be punished as prescribed in title 3 of chapter 17 of the said Code.

      The provisions of the said Code, prescribing the punishments to he inflicted upon one adjudged guilty of a criminal contempt, do not apply to such a proceeding.
    The punishment to be imposed upon a person adjudged in contempt, in a proceeding taken by a party to a civil action, is by a fine sufficient in amount to indemnify the aggrieved party for the “loss or injury” occasioned by the misconduct complained of, together with the costs and expenses incurred by him in the vindication of his right.
    Quaere, as to whether the fine of $350, the imposition of which is authorized by section 3284, should not when collected be paid into the county treasury. (Bocees, .1.)
    That, as in this case the only loss or injury sustained by the plaintiff was a. fruitless attendance before the officer appointed to take the examination, his indemnity should not be greater than the amount fixed by law for similar or analogous services, and should not in this case exceed ten dollars.
    That the costs and expenses incurred by the plaintiff in vindicating his rights-should be included in the allowance, but should be-limited to motion fees and disbursements.
    That counsel fees could not be included therein.
    Appeals from orders, made at Special Term, adjudging the defendants guilty of contempts and imposing fines upon them.

      Hale <& B-ulldey, for the appellants.

      Charles B. Kvng, respondent, in person.
   Bocees, J.:

This is an appeal by each of the defendants — by the defendant Patrick Flynn from an order granted herein, declaring him in contempt for refusing to answer questions propounded to him on his examination, under an order made for that purpose, pursuant to-section 873 of the Code of Civil Procedure, and imposing a fine of $200 because of such contempt, and by the said Patrick’s wife from-a like order imposing upon her a fine of $100.

Tiie proceeding was taken in a civil action by a party thereto not for the purpose of having the defendants punished criminally under the provisions of the Code of Civil Procedure, making the-misconduct charged punishable as a criminal or quasi criminal offense. (Secs. 8,9,10 and 11.) It is expressly declared. by section 12 that the last four sections cited shall not extend to a special proceeding to punish a person for a violation of duty or other misconduct specified in section 14, entitled “ contempts punishable civilly.” Nor has section 874 of the Code of Civil Procedure here application. That section contemplates a case where the party fails to attend to be examined pursuant to an order made therefor; not to a case, like the present, when the party refuses to answer proper' questions on or during the examination. This proceeding was taken under section 14, which gives to the court power to punish misconduct “ by which a right or remedy of a party to a civil action or special proceeding pending in the court may be defeated,, impaired, impeded or prejudiced” in the several cases there specified, one of which instances of misconduct specified is the refusing “to answer as a witness.” (Sub. 5.) This was the misconduct sought to be punished by this proceeding. The mode of proceed-ure to be observed having that end in view is pointed out in title 3, chapter 1Y of the Code of Civil Procedure, entitled “Proceedings to punish a contempt of court other than a criminal contempt,”' commencing with section 2266, which latter section refers in terms to the cases within the purview of section 14; and it should be here noted that section 2266 expressly declares that the misconduct of a party, like that here charged, “ must be punished as prescribed in this title.”

Now it will be seen on an examination of the several sections of title 3, above cited, that the punishment to be imposed upon the person adjudged in contempt in a proceeding taken by a party to a civil action, having in view punishment for a contempt “ other than a criminal contempt,” is by fine with compulsory process for its enforcement, sufficient in amount to indemnify the aggrieved party for his “ loss or injury ” by reason of the misconduct charged, together with the costs and expenses incurred by him in the vindication of his right; the same to be imposed upon the offender, and collected and paid over to him/ that this is all the “aggrieved party” is entitled to claim and have is manifest from the reading of the several sections of the Code referred to, although an additional fine not exceeding $260 may in some instances be imposed. (Sec. 2284.) It may, perhaps, be reasoned out that the additional fine beyond the complainant’s costs and expenses, authorized to be imposed by that section, should be directed to be paid when collected into the treasury of the State. (See sec. 2290 and other secs, in tit. 3.) But to whom such additional fine, when imposed, should be paid we need not here determine, as in this case there was do imposition of sucb additional fine. This is shown by the terms of the orders themselves, even were it a case where that might have been done. By that against Patrick Flynn, he was ordered and adjudged to pay to the plaintiff a fine of $200 to indemnify him for loss and damage he had sustained because of his (Patrick’s) misconduct; and by that against Mrs. Flynn, she was ordered uid adjudged to pay a fine of $100 to answer a similar indemnity, because of her misconduct. These sums, according to the order, were to be collected and paid over to the plaintiff as an indemnity to him.

In the course of the argument stress was laid by counsel ón the fact that the orders declare that the conduct of the defendants on the examination was defiant, willful and contumacious; but this is of no particular significance in this case, where the proceeding was by a party to a civil action to punish for a contempt other than a criminal contempt, and where the order was made for his indemnity only. As above stated, sections 8, 9, 10 and 11, which define and provide for criminal contempts, are declared by section 12 not to extend to the present case, being one provided for by section 14, punishable civilly.

The question then is presented whether, in view of the provisions of the Code applicable to the subject, the imposition of the fines to the amount of $300 for the purpose declared in the orders, to wit, as an indemnity to the plaintiff for the loss and damage he had sustained in the premises (see orders) can be justified in law under the facts and circumstances of this case.

¥e may pass that part of the original orders adjudging the defendants in contempt, as that subject was disposed of by their affirmance in that respect by this court on the former appeal. The matter of complaint now to be considered is the amount imposed as a fine and directed to be paid over to the plaintiff for his indemnity as in the orders specified. It may be here observed that the costs and expenses attending the former appeal are not here to be considered at all. Those costs and expenses were looked to and disposed of on that appeal; so too the correcting of the origiual orders as to some informalities is here of no importance. We take the case as a simple motion a't Special Term to determine whether the questions propounded to the defendants respectively on the examination, to wbicb answers bad been by them refused, were proper questions to be answered, and if they were, then to have the parties sent back to the referee to make answer, with the imposition of such fine as was authorized by law, because of their contumacy. It is with this last subject that we have here now to deal, other. matters being out of the way, having been disposed of on the former appeal.

We have above seen that the fine in this proceeding was limited by the provisions of the Code, and by the terms of the orders themselves, to the matter of the plaintiff’s indemnity. The question determined by the Special Term, and now before us for review, is, in what respect and in what amount the plaintiff had suffered “ loss or injury,” because of the defendants’ refusal to make answer as directed by the order of the court. This subject, and this only, was sent back to the Special Term on the former appeal for examination and decision. It was said in the opinion then written that the “ Special Term should have determined the case without a reference, by imposing the payment by the appellants of such sum as would indemnify the plaintiffs against loss and damage, because of their misconduct here of no great amount.” Indeed, there was no loss or injury occasioned to the plaintiff by reason of the misconduct charged, save a mere (to some extent) fruitless attendance before the officer who was to take the examination. The plaintiff suffered no loss of property because of the defendant’s misconduct. They disobeyed the order of the court in refusing to make answer to certain questions put to them as witnesses, and by so doing the rights of the plaintiff were impeded and perhaps prejudiced ; and thus a loss or injury was sustained by him because of it to the extent of an attendance before the officer without a result to which he was entitled; and for this loss or injury he was entitled to indemnity. Now, what sum would be an indemnity for such loss or injury? Would it be more than the sum fixed by law for attendance upon a special motion before the court ? Or for the taking of a deposition ? An allowance by way of fine of an arbitrary, gross sum without proof of actual loss or injury was inadmissible. It was said in Sudlow v. Knox (7 Abb. [N. S.], 411), in speaking of a case like the present, where the accused was to be fined such Bum as would compensate for the damages sustained by the party from Ms misconduct, that “ these damages must be ascertained by the like evidence * * * as upon the trial of an action brought for the injury,” and further that the amount is no more discretionary in proceedings under the statute as for contempt, to procure redress, than in an action brought for that purpose.” So, it was held in Simnonds v. Simmonds (6 W. Dig., 263) that when a fine was to be imposed sufficient to indemnify the party injured, the court had no power to fix the amount arbitrarily, but must, in determining it, rest upon facts proved. There are other cases to the effect that where a fine is impos ed for indemnity or recompense it should not exceed the actual damages sustained by the injured party. As a general rule the lou; or- injury in a case like the present, resting in some service of the attorney rendered ineffectual because of the misconduct of the party, should be measured by the amount fixed by law ; or if not so fixed, then by the amount fixed by law for similar or analogous services. Tested by this rule, and in view of the authorities above cited, the amount of loss or injury to which the plaintiff was entitled, by way of recompense and indemnity to him, did not exceed ten dollars against the defendants respectively. There was no legal proof, nor could there be in the nature of things, to make his damages fairly and justly to exceed such amount, by reason of the defendants* refusal to answer the questions propounded to them on the examination. But this amount did not of course cover all that might be included in the fines to be imposed. Besides such matter of damage, there was to be included the costs and expenses of the proceedings incurred by the plaintiff on his application to vindicate his right of examination. But it was decided in the People ex rel. Scudder v. Cooper (10 W. D., 77, per Learned, P. J.), that nothing could be allowed therefor beyond motion fees and disbursements. A counsel fee was not admissible. (Sudlow v. Knox, supra; Power v. Athens, 19 Hun, 171, per Learned, P. J.) There were some expenses for disbursements which, perhaps, should be allowed, as appears by the affidavit of the plaintiff, to wit: paid for serving order on Flynn, one dollar and fifty cents; paid for entering and certifying orders, four dollars and eighty cents; eight affidavits, one dollar; and postages, twenty-two cents; aggregate, seven dollars and fifty-two cents. Many other matters of expense are put forward in the papers, but it is a full and complete answer against tbeir allowance, that they were not allowable as costs or disbursements, and as to many of them, that they were wholly unnecessary. All that was necessary to be done was the preparing •of a short affidavit, with order to show cause, much the same, and no more-than usually attends the making of a plain, ordinary special motion in the progress of a cause in court.

In conclusion, we are of the opinion that the orders appealed from .should be modified by reducing the amount of the fine against Patrick Flynn to twenty-seven dollars and fifty cents; and that .against Mrs. Flynn to twenty dollars, and that neither party should have costs of appeal against the other.

So ordered.

L AND ON, J.:

A criminal contempt is a misdemeanor (Penal Code, § 143), and •whenever sought to be punished by indictment under the Penal ■Code, or summarily by the court in whose presence it is committed •(Code of Civil Pro., § 10), or upon attachment upon the relation of the public prosecutor or of a private party, the proceeding is for the vindication of public justice. This proceeding is instituted by this plaintiff for his own indemnity, and he is only entitled to that measure of redress which will afford him that indemnity.

As now presented, the defendants are not called upon to answer .as for criminal contempt.

I conclude to concur with brother Bocees upon the ground that, although Patrick might have been proceeded against for criminal contempt, he was not in this proceeding.

Leaened, P. J.

(dissenting):

I should agree with the opinion of my brother Bocees if I were •satisfied that this were not a case of criminal contempt ” under •section 8 of the Code. Turning to the order of December 22, 1883, we find it recited that Patrick J. Flynn contumaciously refused to answer questions and evaded the same, and used contemptuous and insulting language to the judge before whom the •examination was had, reciting the language; and then follows “from all which this court decides that Patrick J. Flynn is guilty of a willful, intentional contempt

On the appeal from that order to the General Term that court in its opinion stated that defendant’s conduct was “defiant and contumacious; ” that the rulings of the officer were “ contumaciously spurned.” The order of the General Term affirmed that, order of the Speeial Term “ in so far as it adjudged Patrick J, Flynn in contempt as therein stated.”

It seems to me, therefore, to have been decided by this term that Patrick J. Flynn was guilty of “ contumacious behavior and a con-tamacious and unlawful refusal to answer.” This brings the case under section 8, sudivisions 1 and 5, and under section 9 ; and takes it out of the class of cases provided for in section 14, subdivision 5, and sections 2266, et sey. That is, the Special Term and the General Term decided that his conduct was a criminal contempt. If so, the fine is not limited by the damages sustained by the plaintiff. The order as to Rebecca was different in the omission of the word “ intentional ” and the omission of the recital of any contemptuous langugage used to the court.

I think, therefore, that as to Rebecca the order should be modified as stated in the opinion of Judge Bocees ; as to Patrick, affirmed. No-costs to either party.

Orders to be modified. (See opinion of Bocees, J.) Order to be settled by Bocees, J.


author: Learhed, P. J.: Bocees, J.

text:
    THE SARATOGA COUNTY BANK, Respondent, v. AMOS LEACH, Appellant.

      Mvidence — transaction with a deceased person — what testimony does not relate thereto within the meaning of section 829 of the Code of Givil Procedure.

    This action was brought upon a promissory note purporting to be made by the defendant to the order of one Leach, by whom it was indorsed and transferred to the plaintiff. The defense was that the signature of the defendant was forged. Upon the trial the defendant, having been sworn in his own behalf, was shown the note and asked, “ Is the signature to this paper, marked ‘ A.’ (the note in suit), your signature?” An objection interposed by the plaintiff that the question was inadmissible, under section 829 of the Oode of Civil Procedure, as calling for a personal transaction with the payee, .who was then dead, was sustained by the court.

      Held, that it erred in so doing. (Bocees, J., dissenting.)

      Appeal from a judgment- of the Saratoga County Court, affirming a judgment in favor of the plaintiff rendered by a justice of the peace.
    This action was brought to recover the amount due on a promissory note, purporting to have been made by the defendant to Abram C. Leach, and indorsed by the latter to the plaintiff. The defense was that the name of the defendant was a forgery.
    The plaintiff proved that the note was received by the bank from the payee named in it, by whom it was indorsed, and for whom it was discounted ; he also gave evidence to the effect that the signature to the note was that of the defendant; also that the payee was dead. The defendant was then sworn in his own behalf and was asked this question : “ Is the signature to this paper, marked ‘A’ (the note in suit), your signature 1 ” The objection was interposed that the question was inadmissible under section 829 of the Code of Civil Procedure, it appearing that the payee, from and through whom the plaintiff derived title to the note, was dead. The objection was sustained. The defendant then offered to show, by his own testimony, that his signature to the note was a forgery ; that he never saw the note until that day and never signed it. It was thereupon stated in behalf of the plaintiff that no objection would be made to any offers made by the defendant, but that objections to questions would be interposed when put. No ruling was made on the offer, and the case was submitted without further proof or offer of proof. The plaintiff had judgment for the amount of the note which on appeal was affirmed by the County Court.

      ■W. B. French, for the appellant.

      G. A. Wald/ron, for the respondent.
   Learhed, P. J.:

As a general rule at this day every person is a competent witness. In order to give a proper construction to the exception contained in section 829, we must understand the reason. That plainly is the unfairness of permitting one person to testify to a personal transaction or communication with another, when the mouth of the latter is closed by death, so that he cannot give his version of the transaction or communication.

Now applying that reason to the present case we see that for a person to testify in regard to a name at the bottom of a note, “ that is not my signature,” has no element of unfairness. The genuineness of a signature is a matter which may be shown by evidence not in the least connected with any personal transaction between the alleged maker and the payee. It is not a transaction personal between maker and payee.

"When there is an attempt to prove a verbal contract or a conversation between a witness and a deceased party, the only possible evidence may be that of the two persons. But the genuinensss of a signature is shown by comparison and by the testimony of those familiar with handwriting. Indeed to a great extent the testimony of the person whose the signature is claimed to be, is based only on familiarity with his own signature, and is, therefore, of the same character with that of other witnesses to handwriting.

There is another difficulty. The plaintiff insists that because he has given prima faoie evidence of the genuineness of the signature, the defendant cannot testify in his own behalf to the contrary. Suppose then that the defendant by other evidence had overwhelmed this prima facie evidence, could the plaintiff still insist that the testimony which the defendant offered to give by himself as a witness was concerning a personal transaction.” According to the supposition, the “ personal transaction ” would have been practically disproved by competent evidence. It will be found, very generally if not always, that the point whether or not the testimony is concerning a personal transaction appears by the testimony itself which is offered, and is not dependent upon some other matter which is in dispute.

The plaintiff urges that as he had proved prima facie the signature, the law presumed from that fact the delivery, and that the delivery must have been a personal transaction, and hence the defendant cannot himself testify that the signature is not his because that testimony inferentially denies the delivery, which must be a personal transaction. It is not quite accurate to say that the genuineness of the signature is the presumptive evidence of delivery. Rather it is the plaintiff’s possession, which is presumptive evidence of delivery. Proof of the genuineness of the signature of a note which is in the maker’s possession, affords not the least presumption that the note has been delivered. The possession by the maker ■affords a presumption to the contrary. On the other hand, the possession by the payee, or one claiming under him, does afford a presumption of delivery. Therefore the argument fails that for the alleged maker to testify that the signature is not his, is to give ■evidence touching the fact of delivery, and hence of a personal transaction with the payee. The personal transaction, if any, must have been the delivery of the note (by whomever signed) to the deceased by or for the defendant. On this point the defendant was not questioned. In illustration of these views we refer to Pinney v. Orth (88 N. Y., 447, at 451) ; Lewis v. Merritt (98 id., 206).

.Judgment reversed, with costs of all courts.

LaNdoN, J., concurred.

Bocees, J.

(dissenting):

It will be observed that the case stands simply and alone on the ■excluded question put to the defendant, whether he signed the note in suit — that is, in effect, whether he made and delivered the note to the payee, from and through whom the plaintiff derived title to it.

I am of the opinion that the ruling of the justice was correct. -On the proof before the court there was a legal presumption ; that is, it stood proved that the defendant made and delivered the note to the deceased payee. The defendant proposed to disprove that fact by his own testimony. This necessarily involved a personal transaction between himself and the deceased from whom the plaintiff derived title. It is said that the proof proposed to be given went but to disprove a legal inference deducible from the evidence put in on the part of the plaintiff. But such evidence would he inadmissible coming from the defendant in a ease like the present. (Johnson v. Spies, 5 Hun, 468; Jacques v. Elmore, 7 Hun, 675; Wilson v. Reynolds, 31 Hun, 46.) But, in point of fact, the proposed evidence pointed directly to a personal transaction between the defendant and the deceased. It related to the making and delivery of the note by the former to the latter — a personal transaction between them. That this was such cannot well be disputed. (Van Gelder v. Van Gelder, 81 N. Y., 625; Denman v. Jayne, 16 Abb. [N. S.], 317.) (Holcomb v. Holcomb, 95 N. Y., 316, 325.) Suppose the defendant had been allowed to answer that he did not sign the note, and the justice had then (the case being submitted on. all the evidence) given judgment for the defendant, that is, had. given judgment in accordance with the defendant’s testimony. In-that case would not the defendant’s evidence have gone directly to the matter of a personal transaction between himself and the deceased 1 Certainly such would be .the case, and the evidence-given bearing on such transaction, which the deceased, if living, might by his own testimony contradict, would constitute the basis, of the decision. Plainly, as I think, the question to the defendant was inadmissible. (See remarks of Smith, J., in Welch v. Adams,. 1 Eastern Rep., 545, 546.) The following cases have a bearing on the question and, as I think, sustain the ruling here complained of. (Mulqueen v. Duffy, 6 Hun, 299; Wilson v. Reynolds, 31 id, 46, 17; Oliver v. Freligh, 36 id, 633.) Evidence otherwise inadmissible in a case like the present may be admissible to contradict a statement made by another witness. (Gorham v. Price, 25 Hun, 11 Pinney v. Orth, 88 N. Y., 451.) Such, however, is not the case. (See, also, Koehler v. Adler, 91 N. Y., 657, 658; Lewis v. Merritt, 98 N. Y., 206, which are claimed to support the appellant’s position.) I see nothing, however, in the reasoning in these cases-against the i-uling here challenged. Now, the proposed evidence in answer to the excluded question, was that which the deceased payee, if living, might, by his own testimony, contradict, and did not go-to the contradiction of the statement of another witness. It should hence be excluded, as I think, because within both the letter and policy of the law as declared in section 829 of the Code. The only case I find in support of the claim that the question was admissible-is Evans v. Ellis (22 Hun, 160) reported in a brief memorandum. It is without a citation of any authority in its support and without any reasoning upon the subject, and seems against the entire current of the decisions. It can hardly be deemed authoritative.

In my opinion the judgment of the County Court affirming that of the justice should be affirmed.

Judgment reversed, with costs of all courts.


author: Landon, J.:

text:
    CHARLES E. PATTERSON, as Receiver, etc., of the MERCHANTS AND MECHANICS’ BANK OF TROY, Appellant, v. DANIEL ROBINSON and JAMES E. PINKHAM, Respondents, Impleaded, etc.

      'Trustees of a Manufacturing corporation — 1848, chap. 40, sec. 23 — to what (creditors the ti'ustees, assenting to the contracting of debt in excess of the amount of its capital stock, a/re liable.

    'The construction given by this court (in the decision of this case, reported in 36 Hun, 622) to section 23 of chapter 40 of 1848, to the effect that if the indebtedness of any company organized under such act should at any time exceed the amount of its capital stock, the trustees of such company assenting thereto should be personally and individually liable for such excess to Üte creditors of the company to whom such excess is owing, approved and reaffirmed upon a reargument of the case.

      Jlornorv. Henning (93 U. S., 228); Merchants' Bank of Newburyport v. Stevenson (10 Gray, 232); Anderson v. Speers (21 Hun, 568), distinguished.
    This case was brought before the General Term upon an appeal from a judgment in favor of tbe defendants, entered upon the report of a referee.
    The action was brought and a recovery sought against the defendants, as trustees of the Schaghtieoke Woolen Mills, under the provisions of section 23 of chapter 40 of 1848. The appeal was ■decided at the May term of that court, and the opinion then delivered by Landon, J., is reported in 36 Hun, 622.
    The defendants’ counsel afterwards moved for a reargument and the court directed a submission of briefs as upon such reargument, and thereupon the following opinion was handed down :

      O. Gambell, for the appellant.

      Smith, Fwrsmam áe Cowen, for the respondents.
   Landon, J.:

We are asked, upon a motion for a reargument, to reconsider our ■construction of the twenty-third section of the statute (chap. 40 of 1848), aud we are cited to Hornor v. Henning (93 U. S., 228); Merchants' Bank of Newburyport v. Stevenson (10 Gray, 232); Ander son v. Speers (21 Hun, 568), as controlling constructions of this and like statutes at variance with the construction adopted by us, to tha eifect and in tbe language oí the section, that “ if the indebtedness of any such company shall at any time exceed the amount of its capital stock, the trustees of such company assenting thereto, shall be personally and individually liable for such excess to the creditors of the company,” to whom such excess was owmg. it seemed to us that tha words we have added in italics, were required by the language of the section, if response is to be made to the question which this case presents, namely, what creditors ?

We saw that this excess of indebtedness was due by the contract of the company, and without regard to the statute, indeed wholly independent of the statute, to the creditors to whom the contract of the company made it due. We felt that no statute could deprive-such creditor of the benefit of his contract engagement with the company. Such being the contract relation between the company and such creditor, we thought that when the statute stepped in, and added to the contract liability of the company for such excess of indebtedness, the j>ersonal and individual liability of the trustees assenting thereto, it added it to the liability of the company where-that liability was placed, namely, to the creditors to whom the company was liable for it. We saw no language in the statute at variance with such a construction, certainly none which seemed to imply that the liability of the assenting trustees for such excess of indebtedness should be diverted from the creditors to whom the company owed such excess, and be donated to, or conferred upon, or shared among the creditors to whom the company did not owe it. And we had the more confidence in this construction, because of our opinion that section 23, unlike some other sections of the act, did not impose this personal liability as a penalty for wrong done or duty omirted, but as the terms upon which such excess of indebtedness might, with safety to the creditors, be permitted to the company. And referring to cases in which somewhat similar provisions of the statutes had received the construction of our Court of Appeals, we felt that the construction adopted by us was in harmony with the construction which that court had already adopted. The cases to which we are ■ now referred were not cited upon the former argument, and in view of the importance of tha case we have consented to reconsider the question with the aid of the able briefs of counsel.

In Hornor v. Henning, the statute under which the action arose was practically identical with section 23 of our statute. The complaint recited that the Washington City Savings Bank had incurred an indebtedness of $850,000, in excess of its capital stock, to which excess the defendants, its trustees, had assented; that the bank owed the plaintiff $4,000, and by virtue of the statute a cause of action therefor had accrued to him. The plaintiff did not 'allege that any of the excess of indebtedness had been contracted with him by the bank. The trustees demurred to the complaint. The court sustained the demurrer. The plaintiff’s theory, as stated in the opinion of the court, was, that the excess of indebtedness for which the assenting trustees were liable was in the nature of a penalty, and that any creditor could sue the trustees for it without regard to any other creditor, and without regard to the ability of the bank to pay.

The court held that this theory was unsound; that by this statute it was intended that so far'as this excess of indebtedness over capital stock was necessary, the trustees who had assented to it should make good the debts of the creditors who had suffered by their breach of trust; that this liability constitutes a fund for the benefit of all the creditors who are entitled to share in it in proportion to the amount of their debts, so far as it would be required to pay them, and that in that aspect of the case an equity action for the benefit of all would be the proper remedy. It does not appear, nor does the learned counsel for the defendants here claim, that the point was presented or considered whether the remedy was given to the creditor to whom the bank had created the debt after its indebtedness exceeded its capital stock.

The court, in the case cited, followed the case of Merchants' Bank of Newburyport v. Stevenson (10 Gray, 232), in which the statute expressly stated that the liability of the assenting trustees should be “ to the extent of such excess for all the debts of the company then existing.” It is plain that under such a statute all the debts of the company stood upon an equal footing, and, of course, all the creditors were interested. The remark of the United States Supreme Court, that the Massachusetts statute was “in the identical form of words which we are construing in the present case,” leads us in view of the marked difference in language between the two statutes, to suppose that in Hornor v. Henning the case as presented did not call attention to the rights of a creditor to whom by contract the company owed the excess, as distinguished from the rights of all the creditors. Anderson v. Speers (21 Hun, 568) was, in its essential facts, very much like Hornor v. Henning. The action was by a creditor, not a creditor to whom the company had contracted the excess, and the defendant demurred because of a defect of parties, in that the other creditors were not joined. The court following Hornor v. Henning and Merchants’ Bank v. Stevenson sustained the demurrer. The question under examination here does not appear to have been presented or considered.

Passing the case of Merchants Bank v. Stevenson as irrelevant because of the language of the Massachusetts statute, we are constrained to say that Hornor v. Henning and Anderson v. Speers cannot be considered as authoritative against the claim of a creditor to whom the company contracted the excess of indebtedness in the absence of the consideration by either court of such claim. We do not find ourselves overruled in the construction which we gave to the statute in our former opinion. That construction seems to us to be required by the language of the section, and also supported by the current of authority in this State. (Weeks v. Love, 50 N. Y., 568.)

If this construction is correct the liability of the assenting trustee is a contract and not a penal liability. The assenting trustee, knowing that the indebtedness of the company has reached at least an amount equal to the capital stock, concurs with the company in contracting further indebtedness. He knows that the statute, in case he assents, makes him also liable. He gives his consent, and thereby under the statute pledges his liability. The statute says to the assenting trustee “you may contract as many debts as you choose to become personally liable for.” The learned counsel for the defendants insists that section 23 is in its language similar to section 13, and that it is well settled that the liability under section 13 is penal. (Merchants’ Bank v. Bliss, 35 N. Y., 412.) Section 13 provides that if the trustees “shall declare and pay any dividend, * * * tbe payment of wbicb would render it insolvent, or wbieb would diminish the amount of its capital stock, they shall be jointly and severally liable for all the debts of the company then existing, and for all that shall be thereafter contracted, while they shall respectively continue in office.”

The section seeks to deter the trustee from despoiling the company to the profit of the stockholder and to the ruin of the creditors. Such a wrong has no connection with the contracting of the debt, but it imperils its payment, and the liability affixed upon the offending trustee may well be called a penalty. There is no such flagitiousness in the act of assenting to an excess of indebtedness over the amount of the capital stock. It may be wise and right, at any rate the intent may be honest. Why affix a penalty upon performance of a good act ? Such is not the policy of the law. It may lead to reckless speculation, but speculation is no offense, and the statute prudently tempers the venture for gain by making the assenting trustee a partner with the company in the risk of loss, or more accurately, in liability to such creditor. And if this view is ■correct, the creditor for the excess cannot be deprived of his recourse to the assenting trustee by any decrease in the aggregate indebtedness of the company, or otherwise than by his own consent or by payment to him.

Upon the reversal of the judgment, we assumed, possibly too readily, that there was no .dispute about the material facts, at any rate that the defendants could not hope to have them found more favorably to them. Such being the case, the question was presented, what judgment do the undisputed facts require, and it was proper for us to pronounce that judgment, since there would be no need for a new trial to settle the facts. (Price v. Price, 33 Hun, 432.)

The defendants’ counsel now insists that such is not truly the case. If the referee had pronounced the same judgment against them which we think proper upon these facts, the defendants might have excepted to his conclusions of fact and possibly have procured a reversal thereupon. We are not so firm in the conviction that the ■defendants cannot better their condition upon a new trial, as to pronounce such trial a needless and merely dilatory effort.

We, therefore, direct that the order be modified so as to direct that as to the defendants Robinson and Pinkham, the judgment be. reversed, the reference discharged, a new trial granted, costs to abide, the event.

LbaeNjsd, P. J., and Bocees, J., concurred.

Judgment modified by granting new trial, referee discharged, costs to abide event.


author: LaNDON, J.:

text:
    JANE GREER and Others, Respondents, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Conveyances of city lots — the presumption is that a lot hounded on a street extends to the center thereof.

    The plaintiff claimed title to a lot of ground in the city of Albany under a deed,: in which the premises were described as “all that certain lot, with the buildings thereon, situate on the west side of North Market street, beginning on the south-east corner of the lot of the late John Fondey, Jr., and runs thence westerly along said lot 402 feet; thence southerly thirty-three feet; thence easterly to the south-west corner of the cellar wall of the house now standing upon the lot intended to be conveyed; thence easterly along the same cellar wall to the street aforesaid, and thence northerly along said street, about thirty-two feet eight inches, to the place of beginning.”

      Meld, that in the absence of evidence to show that the south-east corner of the Fondey lot was on the west side or line of the street, the plaintiff’s lot extendea to the center of the street.
    Another lot was described as situated “ on the west side of North Market street and hounded on the east by North Market street, thirty-nine feet three inches, etc.”

      Meld, that the lot extended to the center of the street.
    The same construction was given to the conveyance of a lot, one of whose lines extended “to the front of said lot on Watervliet (North Market) street, and thence north along said street to the place of beginning.”
    Appeal by the defendant from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to recover damages occasioned by the laying of railroad tracks upon the lands of the plaintiffs and the running of trains thereon.

      Hale <& BuTkley, for the appellant.

      Amasa J. Parker, for the respondents.
   LaNDON, J.:

IE the plaintiffs’ title to the lots 820 and 822 extends to the-centre line of Broadway, then the judgment should be affirmed.

The description of one parcel is all that certain lot with the buildings thereon situate on the west side of North Market street, beginning in the south-east corner of the lot of the late John Eon-dey, Jr., and runs thence westerly along said lot 462 feet; thence southerly thirty-three feet; thence easterly to the south-west corner' of the cellar wall of the house now standing upon the lot intended to be conveyed; thence easterly along the same- cellar wall to the-street aforesaid; and thence northerly along said street about thirty-two feet eight inches, to the place of beginning.”

The presumption of law is that a conveyance of land bounded upon a highway carries the title to the center thereof. This presumption furnishes the rule of construction of such a conveyance unless the contrary intention is indicated by the language of the deed. (Perrin v. N. Y. C. R. R. Co., 36 N. Y., 120; Bissell v. Same, 23 id., 64; Story v. N. Y. Elevated R. R. Co., 90 id., 180.)

The result of this rule is to resolve doubtful expressions in favor of the center line. A street is a monument, the same as a stone or tree, and its center is the terminus of the line extending to it unless its exterior line is indicated. (White's Bank v. Nichols, 64 N.Y., 65.)

If the point of beginning had been in the west side of the street there would be authority for the position that .the street was excluded. (Kings County Fire Ins. Co. v. Stevens, 87 N. Y., 287; English v. Brennan, 60 id., 609.) That the lot is on the westerly side of the street, however, within the cases above cited, does not exclude the street, for that indicates its location with reference to the street, without defining its exterior lines. Here the point of beginning is the south-east corner of the lot of Eondey. As that is not shown to be in the side or line of the street, the same rules allow us to locate it in the center of the street. There is no hostile grant or claim asserted to the fee of the street, and the presumption carrying the title to the center is not repelled by hostile claims. “ To the street ” goes to the center because the street, as before shown, is a monument. “Along the cellar wall to the street ” does not necessarily mean that the course ends with the wall; therefore we are at liberty to follow that course “ to the street,” i. e., to its center. Tlie courses and distances yield to the monuments, unless the contrary intention is made to appear, and it is not in this case. “Along the street ” means along the center line. If it was intended to exclude the street, it would hare been easy to have employed words elearly indicating that intent, as “ along the west ■side of the street,” “ to the. west side,” “ bounded against ” or “ butting upon ” (Phelps v. Webster, 134 Mass., 17), or some words showing that the entire corpus of the street was excluded.

The other parcel is thus described : “All that certain lot of ground, with the buildings thereon, situate in the fifth ward of the ■city of Albany, on the west side of North Market street, and bounded on the east by North Market street thirty-nine feet three inches, on the north by a lot of ground said to belong to Robert Dunbar, 284 feet two inches ; on the west by Orchard street thirty-five feet seven inches and three-quarters of an inch, aud on the south by a lot of ground said to belong to the said Charles Chapman 284 feet two inches.” The rules already discussed lead to the conclusion that this parcel extends to the center of the street. One of the grantors of this lot held under a description, one of whose lines extended “ to the front of said lot on Watervliet (North Market) street; thence north along said street to the placé of beginning.” “ Fronting on Clyde street ” was held to extend to the center line. (Wallace v. Fee, 51 N. Y., 694.) The “ front of said lot” means the front line, and if that is “ on Watervliet street,” there is no reason why it should not be on that part of it which the law, in the absence of words of exclusion presumes, namely, the center.

Cther particulars are pressed by the appellants, but, we think, they are of less force than those above considered.

The judgment should be affirmed, with costs.

LeaRNEd, P. J., and Bocees, J., concurred.

Judgment affirmed, with costs.