author: BooKES, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GEORGE CLEMENTS, Appellant.

      Indictment for perjury — the falsity of the facts sworn to by the accused, must be averred therein — evidence of good character — must be considered by the jury in all cases.

    The defendant was convicted of the crime of perjury in willfully swearing, to the best of his knowledge and belief, to the truthfulness of a quarterly report made to the hanking department of the State, by the State Bank of Fort Edward, of which bank he was the cashier, which report purported to contain a true statement of the condition of the bank on a certain day therein named. Upon an appeal from the judgment of conviction, it appeared that the indictment did not charge, by direct averments, that the statements made in the report and schedule thereto attached on which the crime of perjury was founded were, or that either of them was, false or untrue; that while it averred, in various forms, that the defendant had knowledge that these statements were false and untrue, it did not directly aver that they were, or that either of them was, in point of fact, false and untrue.

      Held, that the omission of this allegation was a fatal defect, which required the judgment to be reversed and the defendant to be discharged.

      Upon the trial, evidence was given by the prosecution and by the defendant, tending to sustain and refute respectively, the charge that the defendant committed the crime in swearing to the truthfulness of the report. Evidence was also given showing the defendant to have been of good character in all respects, and no evidence was given or offered to gainsay this fact. The judge, in his charge to the jury, said that “ such proof is always admissible on a criminal trial, but it is not a defense. When the crime is sufficiently established it is not entitled to any influence.” After referring to other cases in which evidence of good character was entitled to great weight, as in those in which it was uncertain by whom the offense had been committed, he added: “If you become convinced that this report, the subject of this indictment, was false; that defendant, at the time, knew it to be false, then previous good character is of no avail whatever.” On being asked to charge “ that evidence of good character is required to be considered by the jury on the question of guilt,” he declined to charge any differently from what he had already charged.

      Held, that he erred in so doing. (PemsenY. The People, 43 N. Y., 6; Stover v. The People, 66 N. Y., 315; People v. Hoeit, 23 Hun, 60-65, followed.)
    Appeal from a judgment of tlie court of Oyer and Terminer of Washington county, convicting the defendant of the crime of perjury and sentencing him to State’s prison for the term of five years and six months.

      Hughes da Northup, for the appellant.

      Edgar Hull, district attorney, for the respondent.
   BooKES, J.

This is an apiieal from a conviction and sentence of the defendant to the State prison for perjury. The defendant was convicted in the Washington county oyer of the crime of perjury, in willfully swearing, to the best of his knowledge and belief, to the truthfulness of a quarterly report, made by the State Bank of Fort Edward to the banking department of the State, of which bank he was cashier ; which report purported to contain a true statement of the condition of the bank on the morning of March 22, 1884.

We are of the opinion that the conviction and judgment in this case must be reversed. There are several errors, as we think, in the admission of evidence, and also error in the charge of the learned judge to the jury, and in his refusal to charge as requested, which require a reversal, as above indicated.

But in view of our conclusion on the objection to the sufficiency of tbe indictment, hereafter considered, we deem it unnecessary to examine these subjects of error. There is one exception, however, going to the charge of the learned judge and to his refusal to charge as requested, that may well be briefly noticed. The charge of perjury was based on an averment that the defendant committed the crime in swearing to the truthfulness of the report, “to the best of his knowledge and belief; ” and evidence was given tending to sustain this charge. The defendant put in proof of a countervailing character, which, as was claimed, showed that the report was according to the best of his knowledge and belief; and he was himself examined as a witness in his own behalf, and gave evidence tending to sustain such alleged defense. Further evidence was also given, showing the defendant to have been of good character in all respects; and no evidence was given or offered to gainsay this fact.

On this branch of the case the learned judge charged the jury as follows :

Defendant has offered proof of his previous good character. That kind of proof is always admissible on a criminal trial, but it is not a defense. When the crime is sufficiently established it is not entitled to any influence. There are cases where that kind of testimony ought to have great weight. Take the case of the commission where it was uncertain who the perpetrator was; and circumstances pointed strongly towards one, so that they tended to establish the crime against him, but leaving it somewhat uncertain; in such a case proof of previous good character would weigh strongly, and it has been said, and very properly, that a man who has a clean character has always one standing witness with him. How far that kind of evidence ought to have weight in the determination of this case depends on how you conclude in regard to the act. If you become convinced that this report, the subject of this indictment, was false ; that defendant at the time knew it to be false, then previous good character is of no avail whatever.

Touching these remarks, which were in the nature of instructions to the jury, the defendant’s counsel requested the judge to charge “ that evidence of good character is required to be considered by the jury on the question of guilt before determining the question of guilt.” The learned judge replied to this request: “I decline charging any differently from what I have as to that.”

To this ruling the defeud ant entered exception. This instruction, as we think, should have been given, and its refusal was error. The tenor of the charge was to the contrary of this request. It was to the effect that the proof of defendant’s good character should not be considered by the jury, if, upon the other proof in the case, they should reach a conclusion that he was guilty. But the defendant’s good character was a subject to be taken into consideration by the jury, in determining his guilt or innocence in the first instance.

Were it otherwise, the evidence would go for nothing’in the case; and this, too, when the question was whether the defendant had committed perjury in swearing to matters “to the best of his knowledge and belief,” the evidence against him being circumstantial to a very considerable extent, if not wholly so, and as to which there was at least some proof of an exculpatory character — a case of all others where good character might and probably would be an important factor bearing upon the question of innocence or guilt. But the question here presented is not an open one. It is settled favorably to the exception on authority, The charge here given is much like that given in Remson v. The People (43 N. Y., 6). The judge in that case instructed the jury that when the evidence is positive, leading to a conviction, logically and fairly derived, of guilty from all the testimony, the simple fact that a person possesses previous good character will be of no avail; that it is only in cases where the jury have a well-reasoned doubt, a doubt logically arrived at, arising from all the testimony that evidence of good character steps in and takes effect. The court held that such charge was clearly erroneous, and well calculated to mislead the jury to the prejudice of the prisoner, and it was then said that “ it was delusive to say to the jury that the fact of good character was to be considered in every case, no matter what the other testimony might be, and yet that in a class of cases, by reason of the character of the other evidence, good character would be of no avail; that is, that the jury must exclude from their minds, in the consideration of that class of cases, all evidence as to character. It was in effect saying to them that in such cases evidence of good character was not admissible to affect the result, although permitted to be laid before them. It was error to charge the jury that in any case evidence of good character would be of no avail. "There is no case in which the jury may not, in the exercise of sound judgment, give a prisoner the benefit of a previous good character. No matter how conclusive the other testimony may appear to be, the character of the accused may be such as to create a doubt in the minds of the jury, and lead them to believe, in view of the improbabilities, that a person of such character would be guilty of the offense charged; that the other evidence in the case is false, or the witnesses mistaken.” We extract freely from this case because of the direct application of the argument to this in hand.

To the same effect is the decision in Stover v. The People (56 N. Y., 315), and in People v. Moett (23 Hun, 60-65). The conviction and judgment should be reversed because of the error above considered, even if the record disclosed no other ground of error.

But we are of the opinion that there is a radical difficulty in the ease, growing out of the insufficiency of the indictment. An objection to the sufficiency of the indictment was raised by demurrer; also at the close of the case on the people’s evidence; and also by motion in arrest of judgment after verdict. Passing some other points of alleged insufficiency, we do not find.it charged by direct averment that the statements made in the report and schedules thereto attached, on which the crime of perjury is predicated, were, or that either of them was false or untrue. It is averred, and in various forms of averment, that the defendant had knowledge that those statements were false and untrue; but there is no direct averment in the indictment that they were, or that either of them was, in point of fact, false and untrue. An averment that the defendant knew they were untrue is quite different from an averment that they were in fact untrue. The one goes to the fact, the other to knowledge of the fact. The indictment is not framed on the theory that the defendant swore to knowledge and belief without having any knowledge or,grounds for his belief, as to the facts sworn to by him; hence, that he was guilty of perjury, whether the facts sworn to by him in the report were or were not true; for it is laid in the indictment that he well knew such facts were false and untrue.

The averment that he well knew that the statements sworn to by him were false does not supply an averment that 'such statements were untrue, in fact, or obviate its necessity. Both averments were necessary to make the pleading good in this ease.

It is laid down in "Wharton’s American Criminal Law that “the geuei’al averment that the defendant swore falsely, etc., upon the whole matter will not be sufficient; the indictment must proceed by particular averments (or, as they are technically termed, by assignments of perjury), to negative that which is false. It is necessary that the indictment should thus expressly contradict the matter falsely sworn to by the defendant.” (Sec. 2259.) And, further, that in a case like the present, where the accused swears to his belief, it is necessary to aver that the fact sworn to was otherwise, and that he knew the contrary to what he swore to. (Sec. 2261.) The rule of pleading as here laid down is that both averments are necessary in a case like the present. In the People v. Gates (13 Wend., 311), where the defendant was indicted for obtaining the signature to a bond and promissory note by false pretenses, the court said: “ It is not sufficient merely to state that the defendant did falsely pretend, etc., setting forth the several pretenses; but after stating the false pretenses at large, the pleader must, by averments, falsify each pretense which he intends to rely on at the trial, as he would in an indictment for perjury.” In that case the indictment was held insufficient, the court holding that the prosecution must fail: 1. Because the indictment was insufficient; and, 2. If insufficient, then it was unnecessary and improper to receive the evidence of any false pretenses, because none were laid. The Code of Criminal Procedure, section 291, also recognizes the necessity of setting forth in the indictment “ proper allegations of the falsity of the matter on which the perjury is assigned.” The necessity for such averment arises out of the settled rule that all facts and circumstances necessary to constitute the offense must be specifically stated in the pleading, and that facts not averred cannot be proved, or go for nothing if proved. (The People v. Gates, supra; The People v. Miller, 2 Park. Crim. Rep., 197.)

On principle, and on the authorities above cited, the omission from the indictment of the averment above considered is fatal to it, and the conviction thereunder cannot, therefore, be allowed to stand. Without such averment the record is imperfect, as it fails to show the commission of the offense of which the defendant is convicted. The objection rests on more than a mere technicality; it goes to the merits of the case as presented on the record. The conviction and judgment must be reversed, and inasmuch as the indictment is insufficient, the defendant must be discharged.

The conviction and judgment should be reversed and defendant discharged.

Leaened, P. J., and LaNDON, J., concurred.

Judgment and conviction reversed and prisoner discharged.

       Decided January 4, 1887.


source: Caselaw Access Project

author: Bocees, J.:

license: Public Domain

text:
    THE NATIONAL TRADESMAN’S BANK, Respondent, v. MARGARET WETMORE, Appellant.

      Action by a creditor' to set aside a fraudulent conveyance made by a debtor — it cannot be maintained by a general creditor — proof of the nonpayment of a claim, allowed by the legal representatives in another State, does not show that the plaintiff has exhausted his legal remedies,— although the law of that State will not permit a suit to be brought.

    Upon the trial of this action, brought by the plaintiff to set aside as fraudulent, as against his creditors, a conveyance of certain lands made by one Wetmore to the defendant, his wife, it appeared that the said Wetmore, a resident of Connecticut, in 1882, and while indebted to the plaintiff, a national bank carrying on business in that State, as an indorser of certain promissory notes discounted by the bank for Wetmore, conveyed an interest owned by him in certain real estate, situated in the State of New York, to his wife through a third person. On February 19, 1883, Wetmore made a general assignment for the benefit of creditors, which, by the laws of Connecticut, did not convey , any title to or interest in lands out of that State. While suits brought against Wetmore upon the said notes were pending, he died, and the plaintiff being prevented by the laws of Connecticut from obtaining a judgment against the representative of [an insolvent estate, proved its claim against the commissioners appointed under the laws of Connecticut, who allowed the same, but paid no part of it.

      Held, that as the plaintiff was simply a creditor-at-large of Wetmore, he had no standing in court to demand the relief sought.
    That the proceedings against the estate of the insolvent merely settled and determined the amount due, and did not amount to a judgment, and that, even if it were deemed a judgment, there had been no execution issued thereon.

      Quare, as to whether a judgment recovered in another State, with execution thereon unsatisfied there, would aid the plaintiff’s case.

      Appeal from a judgment in favor of the plaintiff, entered in Fulton county upon the trial of this action by the court without a jury.
    In the year 1882, and prior to the twenty-eighth day of December of that year, the plaintiff, a national bank located at New Haven, Connecticut, discounted for one Abner C. Wetmore, a resident of Meriden, Connecticut, who carried on business at New Haven, eleven promissory notes, amounting in the aggregate to $5,104.69. At the time of procuring these discounts and loans, Wetmore was the owner of an undivided one-third part of about 11,230 acres of land situated in the county of Hamilton, in this State, and on the 28th day of December, 1882, he deeded these lands to one Campbell, who on the same day deeded them to the defendant, Wetmore’s wife, and the deeds were recorded in the Hamilton county clerk’s office January 3, 1883, and appear on the record to have been duly signed and sealed, and to be in due form to pass the title to real estate. Both these deeds were voluntary and wholly without consideration, and were made, as claimed by the plaintiff in this action, with the intent to hinder, delay and defraud the creditors of Wetmore, to the knowledge of the defendant. On or about the 19th day of February, 1883, Wetmore made a general assignment, for the benefit of creditors, to one Eli Ives, who, on the nineteenth of April, following, resigned his trust, and one Charles P. Ives was appointed trustee in his stead. By the law of Connecticut this assignment did not convey any title or interest in lands out of that State.
    As the promissory notes before mentioned became due, suits were brought upon them, and upon an overdraft, by the plaintiff, in the courts of Connecticut, against Wetmore; and while the suits were pending, and before judgment had been recovered in any of them, Wetmere died intestate, and Charles P. Ives was subsequently appointed administrator of his estate. The plaintiff thereupon took }Droceedings to revive the suits against the administrator, who applied to the probate court and obtained an order that Wetmore’s estate should be settled as an insolvent estate. Under the laws of Connecticut no judgment can be obtained against the representative of an insolvent estate, in course of settlement as such, except for debts due the United States or the State of Connecticut, or for the expense of tlie last sickness, or the funeral charges of the decedent. The administrator then appeared in the actions brought by the plaintiff, and set up by plea in abatement in each of those actions, the fact that the estate of Wetmore was in course of settlement as an insolvent estate, and that the cause of action was not within either of the excepted classes, which was sustained by the court, and judgment was rendered dismissing each of the suits.
    Commissioners were duly appointed to take proof of claims against the insolvent estate, and their report showed preferred claims to the amount of $296.93, and unpreferred claims to the amount of $29,257.89, including $6,177.64 allowed to the plaintiff. The' total amount realized by the trustee of the assigned estate was about $575, of which about $200 remained in his hands on the 29th of January, 1885, after paying necessary expenses. At that time no part of the $296.93 preferred claims had been paid. There are no other assets of either the assigned or decedent’s estates in Connecticut or elsewhere, unless something may be realized in a suit brought by the trustee to set aside certain deeds made by Wetmore on the 18th day of December, 1882, of two parcels of real estate in Connecticut.
    The court found that the plaintiff had exhausted its legal remedies, and directed a judgment in its favor, declaring the amount duo the plaintiff to be a lien upon the real estate conveyed to the wife, and directing that the same be sold by the sheriff.

      & c& L. M. Brown, for the appellant.

      H. li. Durfee, for the respondent.
   Bocees, J.:

The plaintiff was simply a creditor-at-large of Abner C. Wet-more, deceased, the late husband of the defendant, to whom, as is alleged, his lands described in the complaint were transferred without consideration and in fraud of the rights of his creditors. Should the title thereto be adjudged to have remained in the husband to the time of his death, still the plaintiff would then have had no lien thereon, either general or specific, for the satisfaction of its claim against him; nor was there then or at any time thereafter, any trust in favor of the plaintiff as respects those claims impressed thereon, legal or equitable, by virtue of any writing creating or declaring such trust. This being so, the plaintiff has no standing in court to demand and have the relief sought herein, to wit: to have the transfer of the premises to the defendant adjudged fraudulent and void, and payment of its claims against Abner C. Wet-more, deceased, decreed t-o be made therefrom.

This conclusion is settled by many decisions. (Evans v. Hill, 18 Hun, 464; Adsit v. Sanford, 23 id., 45 ; aff’d Adsit v. Butler, 87 N. Y., 585; Geery v. Geery, 63 id., 252; Estes v. Wilcox, 67 id., 264; Adee v. Bigler, 81 id., 349.) If it be, as is insisted, that the plaintiff makes a case showing that all attempts by other proceedings to obtain satisfaction of its claims would be absolutely unavailing, still that would not change the settled rule of law declared in the above and other cases.

It is conceded, of course, -that in the case of a creditor’s bill there must be judgment and execution, and, under some circumstances, a return of execution unsatisfied in whole or part, in order to give the creditor standing in the court to demand and have the removal of a fraudulent transfer by the debtor of his property. This necessity grows out of a statutory requirement (2 R. S., 173, 174, § 38 ; Code of Civ. Pro., §§ 1871, 1872); but the same rule obtains in all cases where this relief is sought, irrespective of such statutory provision. This was so determined in Adsit v. Butler (supra), where the subject was discussed at length and on authority; and, indeed, this rule was recognized by the Special Term in this case, but it was found that here the plaintiff had exhausted its remedy at law, and therefore had standing in court to have the relief demanded.

In this conclusion of the learned judge, we think he was in error. The plaintiff was a general creditor, without judgment and execution. Before commencing this action it had taken no proceeding to collect its claim and demands. There had been a proceeding in the Probate Court of Connecticut, under the insolvent laws of that State, wherein commissioners in insolvency had been appointed to administer upon the estate of the debtor, Abner C. Wetmore, who was insolvent and had made an assignment for the benefit of his creditors. The plaintiff presented its claims to those commissioners in insolvency, and the latter allowed them and determined their amount; but nothing was realized thereon from that proceeding. Now, this proceeding, in its results, did not amount to a judgment in favor of the plaintiff against Abner C. Wetmore for the amount of the claims of the former against the latter. There was no adjudication that the plaintiff recover the amount against Wetmore. It but settled, determined, the amount due the former from the latter, for the purpose of that proceeding, nothing more; and if deemed a judgment, still there was no execution thereon, even if a judgment recovered in another State with execution thereon returned unsatisfied there, would aid the plaintiff’s case. The learned judge was in error, as we think, in holding that the plaintiff had exhausted its remedy at law, wiki in ihe requirements of the decisions above cited. This conclusion necessitates a reversal of the judgment without considering other questions discussed before us on the argument ; and as this objection to the recovery goes to the right of action as made on the complaint, judgment final should be awarded in favor of the defendant, with costs.

Judgment reversed, judgment final ordered for the defendant, with costs.

Learned, P. J"., concurred; Landón,.J,, not sitting.

Judgment reversed,' and final judgment for defendant ordered, with costs.

       Decided January 4, 1887.


author: Bockes, J.:

text:
    WILLIAM F. TAYLOR, Respondent, v. ELIJAH J. MILLARD, Appellant.

      Easement — a purchaser of a servient tenement is not bound by an easement not disclosed by deeds or apparent use.

    In 1850 a farm, consisting of 170 acres, was partitioned by a parol agreement between two brothers, Elijah and John, who owned it as tenants in common; seventy acres were set apart to Elijah and 100 acres to John, it being agreed that Elijah and his heirs and assigns were to have the right to enter annually upon the portion assigned to John and gather one-half of the apples growing in an orchard which was situated thereon. In pursuance of his agreement, Elijah and those claming under him annually entered upon the said 100 acres and gathered one-half of the apples, without objection on the part of those owning and using the same, until the fall of 1884, when the plaintiff, who had in March, 1880, purchased the said 100 acres from a person to whom John had conveyed them in 1870, objected to the taking of the apples, and brought this action to recover the damages occasioned thereby.

      Held, that, as there was nothing in either of the conveyances, nor in the apparent use of either of the tenements by their respective owners, showing or indicating the actual existence of the right now insisted on, and as the plaintiff was bound only by what the record disclosed, he was protected in his absolute title by the recording act.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, rendered upon the trial of this action in the County Court of Rensselaer county.
    From the year 1836 and up to on or about the year 1850, John Millard and Elijah Millard, his brother, were tenants in common of a certain farm of about 170 acres of land, situate in the town of Berlin, in the county of Rensselaer and State of New York, and on which was and is situate the apple orchard concerning which this action is brought. In or about the year 1850 the said brothers, being tenants in common, made a parol partition of the 170 acres. It was specified and agreed upon this partition that Elijah should have seventy acres of land, and John the remaining 100 acres, upon which the orchard was wholly and entirely situated; and it was also specified and agreed upon in the same partition that Elijah, his heirs and assigns, was to have the right to enter annually upon the portion partitioned off to John, the said 100 acres upon which was said orchard, and to gather ope-half the apples growing and to grow upon the trees of said orchard. In pursuance of this partition, John and Elijah went into possession and occupancy of their respective portions — John occupying the 100 acres and Elijah the seventy acres — and Elijah went each year upon the premises of John and took from the orchard situated thereon one-half the annual crop of apples of said orchard, and continued to do so without objection on the part of John or of any other person up to the time of his (Elijah’s) death, in 1854. Elijah left a last will, which was duly admitted to probate by the surrogate of Rensselaer county in 1856. It devised the seventy acres, Elijah’s share of land under the partition, to Elijah J. Millard, his nephew, the son of John Millard, and the defendant in this action. The said will also contained a clause giving to Elijah J., his heirs and assigns, “ all the testator’s right, title and interest to the apples growing or to grow in the orchard situated on the one hundred acres.” Under and by virtue of these provisions of the will, Elijah J. Millard, the said nephew of the testator, took possession of the seventy acres, and went yearly upon the adjoining 100 acres and into the orchard in question, and took therefrom one-lialf the annual crop of apples, and continued to do so up to 1861, when he deeded the seventy acres and all his right, title and interest therein (together with all the appurtenances) to his sister-in-law, Mary E. Millard. Ever since this conveyance the defendant has gone on the adjoining land, the said 100 acres, and gathered yearly one half the said apples, under the authority and direction of Mary E. Millard, until the autumn of 1884, when the plaintiff, Taylor,' objected, and in December of the same year brought suit against the defendant in the Justice’s Court. Meanwhile, on March 23, 1870, John Millard, one of the original tenants in common, conveyed the 100 acres which he occupied under the parol partition, to William A. Millard, one of his sons, who subsequently, with his wife, on March 25, 1880, conveyed the same premises to the plaintiff in this action.

      Henry L. Landon, for the appellant.

      Samuel Foster, for the respondent.

      Decided January 4, 1887.

   Bockes, J.:

If the right to enter and take the apples in question be deemed to be a mere license, resting in parol, it was revocable at the pleasureJ of the owner of the inheritance. This is settled in Cronkhite v. Cronkhite (94 N. Y., 323), and in many other cases. It is doubtful whether this right, however considered, not evidenced by any valid grant or reservation giving it effect as a grant, can be regarded and treated in law as an easement. (Wiseman v. Lucksinger, 84 N. Y., 31; Pierce v. Keator, 70 id., 419; Huntington v. Asher, 96 id., 604.) It is insisted that the right, being coupled with a grant or its equivalent, growing out of a parol partition between former owners, and supported by a consideration, constitutes .an easement attached to the seventy acres as the dominant tenement, resting upon the 100 acres as the servient tenement. The difficulty is that there was no valid grant in writing of the right or privilege here asserted by the defendant. It rested in parol merely. It was not contained in any grant, or declared by any reservation in a grant. So it was not, as it could not be, made a matter of record. Consequently the recording act supervened under which the plaintiff here may claim and have protection. John Willard in 1870 conveyed the 100 acres to William Á. Willard by deed, and the latter in 1880 conveyed the premises by deed to the plaintiff. Neither of these conveyances contained any reference to the right insisted on by the defendant; and both deeds were duly acknowledged and recorded. There was nothing in either of these conveyances, nor was there anything apparent in the use of either of the tenements by their respective owners, showing or indicating the actual existence of the right now insisted on. The plaintiff’s record title gave no indication of its existence; and he was bound only by what the record disclosed as to the title of the premises conveyed to him, with what was apparent in its occupation and use. It follows, therefore, that the plaintiff, as the case is made on the record before us, is protected in his absolute title by. the recording act. We need consider no other question in the case.

The judgment should be affirmed, with costs.

Learned, P. J., and Landon, J., concurred.

Judgment affirmed, with costs.


author: Learned, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. OSCAR F. BECKWITH, Respondent.

      Order granting a new trial, after a conviction of a crime, upon the ground of newly discovered evidence — the people eannot appeal therefrom.

    The defendant' having been tried and convicted of murder in the first degroe, the judgment and conviction were, upon an appeal taken by him, affirmed by the General Term and the Court of Appeals. Thereafter, upon the motion of the defendant, an order was made, under subdivision 7 of section 4G5 of the Code of Criminal Procedure, granting a new trial upon the ground of newly discovered evidence. Upon the hearing of an appeal taken by the people from this order to the General Term.

      Held, that the appeal should be dismissed, as no appeal by the people from such an order was authorized.

      Appeal, taken by tbe people, from an order granting a new trial to tbe defendant, on the ground of newly discovered evidence, under subdivision 7 of section 465 of the Code of Criminal Procedure, made by Mr. Justice Ingalls, at chambers, and entered in Columbia county on the 26th day of November, 1886.
    The defendant was tried, at the Columbia Oyer and Terminer, before Mr. Justice Ingalls and a jury, upon an indictment charging him with the murder of one Simon A. Yandercook, at the town of Austerlitz, in said county, and convicted of murder in the first degree by a verdict rendered November 20, 1885, and judgment of conviction was thereupon duly entered in said county.
    The defendant appealed from said judgment to the General Term of the Supreme Court, where the same was affirmed, and judgment of affirmance was entered in Columbia county, May 2,1886.
    From said judgment of affirmance defendants appealed to the Court of Appeals, where the same was in October, 1886, affirmed, and the case was remitted to the same Supreme Court to be proceeded upon according to law.
    The motion for a new trial was made on November eleventh, and the order appealed from was entered on November 26, 1886.

      A. B. Qardinier, district attorney, for the appellant.

      L. F. Longley, for the respondent.
   Learned, P. J.:

Section 462 of the Code of Criminal Procedure, states what a new trial is ; and the following sections down to and including section 466, declare when it can be granted and for what causes. Chapter 65 of the Laws of 1882, amended section 466, so that in case of a sentence of death, the application may be made before execution, and to any justice of the Supreme Court or Special Term thereof, of the judicial department where the conviction was had. The subsequent section 518 declares in what cases the people may appeal. These are two, and no other. First, upon a judgment for the defendant on a demurrer to the indictment: second, upon an order of the court arresting the judgment. Both of these, it will be seen, are questions of law. The first is evidently so. And a reference to section 467, defining a motion in arrest of judgment, shows that such a motion raises only questions of law. For we have no doubt that the second subdivision of section 518 refers solely to motions in arrest of judgment. Now, inasmuch as the Code, after careful provisions as to applications for new trial above referred to, proceeded to specify by section 518, the cases where appeals may be taken by the people, and omitted to mention orders for a new trial, we are satisfied that no appeal in such cases is allowed. And this is consistent with general principles. The granting of a motion for a new trial involves a decision of fact rather than of law ; an exercise of sound judgment, upon matters of fact. When such a decision has been made, favorable to the defendant, it, is somewhat like the verdict of a jury in his favor. The people should have no right to appeal, unless such right is unquestionably given. The people, however, urge that on the affirmance of the judgment by the Court of Appeals, the proceedings were remitted to the Supreme Court. And they further urge that by sections 548 and 549, the record is in this court, and all orders are to be made here, which are necessary. They further urge that, as the order for a new trial was made by a justice of this court, an appeal lies to the General Term, substantially as an appeal would lie in a civil action. But we do not agree with this view. This action is still a criminal action. Notwithstanding the new trial was granted after affirmance by the Court of Appeals, and after the cause had been remitted here, still the motion was made under section 466 of the Code of Criminal Procedure, as now amended. An appeal, if it lies at all, must be authorized by the provisions of that Code. It is further urged by the people that section 518 uses the words : An appeal to the Supreme Court,” and hence it does not apply to an appeal in that court. But the answer is that if the appeal is not authorized by this section, it is not authorized by any. Section 485 authorizes the clerk to include in the judgment-roll, a copy of the minutes upon a motion for a new trial; and section 517 gives an appeal to the defendant from the judgment, including the proceedings forming part of the roll. But such appeal is not given to the people. And it may be doubted whether even the defendant could bring up By appeal an order denying after judgment a motion for a new trial. A majority of the court were of the opinion that such an appeal would not lie, in the case of People v. Hovey (37 Sup. Ct. N. Y. [30 Hun], 354). At any rate there is nothing authorizing an appeal by the people. The people also urge that the order appealed from practically arrests judgment. But the phrase a motion in arrest of judgment,” has long been familiar; and it is defined in accordance with its old meaning in section 467, to which we have already referred. It is evident that it is to such a motion only that section 518. subdivision 2, refers. The appeal should be dismissed.

Bockbs and Landón, JJ., concurred.

Appeal dismissed.


author: Landon, J. :

text:
    HANNAH EVERSON, Appellant, v. ANDREW McMULLEN, Respondent.

      Release of premises from the lien of a mortgage — when the court wffl not revive the mortgage in favor of the owner of the premises, as against the widow of the mortgagor claiming dower therein.

    In 1877 the plaintiff’s husband died, seized in fee of certain premises upon which there was an outstanding mortgage of $12,000, executed by the plaintiff and her husband. The premiseswere sold by the husband’s executor, subject to the mortgage, for the consideration of one dollar. The purchaser thereafter sold to the defendant a portion of the said premises, which had been, prior to the sale, released and discharged from the said $12,000 mortgage, the release stating that it was made ‘ ‘ to the intent that the lands hereby conveyed may be discharged from the said mortgage.”
    In this action, brought by the plaintiff to recover her dower in the said premises, so sold to the defendent, the defendant claimed that although the $12,000 mortgage had been satisfied as to the premises conveyed to him, the mortgage debt had not been paid, except to the extent of $500; that other mortgages had been executed by the grantees of the husband’s executor in substitution for so much of the original mortgage as could fairly be apportioned to this portion of the whole premises; that this was done simply for the convenience of the new pur. chasers of the several parcels, and that that portion of the $12,000 mortgage ought, in equity, to be revived and reinstated, and that the defendant should be subrogated to the rights of the original mortgagee, and the plaintiff’s claim of dower be limited to the equity of redemption.

      Held, that regard being had to the nominal price paid for the equity of redemption; to the fact that the widow’s claim for dower was not released at that sale; to the intent expressed in the written release; to the favor extended by the law to the widow’s claim; to the absence of circumstances showing any mistake other than of law, the defendant had not made a case entitling him to z-evive and reinstate against the plaintiff a mortgage in which he never had any interest, and under which he derived no title.

      Appeal from an interlocutory judgment entered in Ulster county, upon the trial of this action by the court without a jury.
    The action was brought by the plaintiff to recover her dower in certain lands of which her husband died siezed.
    The court found that Morgan Everson, the plaintiff’s husband, at the time of his death, in 1875, was seized of the property in question subject to a mortgage executed by himself and the plaintiff, his then wife, of $12,000 and some accrued interest, owned and held by the Rondout Savings Bank; that the mortgage covered o.ther lands as well as the lands in question ; that in 1877 the lands covered by the said mortgage were sold by the said Morgan Ever-son’s executor, and the sale was duly advertised and fairly conducted in the day-time, and the property was bid in by one Samuel D. Ooykendall for the sum of one dollar, subject to the said mortgage, and accrued interest of something over $2,000; that the said Coykendall immediately assigned his bid to one Charles M. Preston, and the said executor conveyed said premises directly to said Preston ; that said Preston and wife thereupon executed and delivered to the said Rondout Savings Bank a bond and mortgage for $2,000 upon said premises covered by said original mortgage, in payment of said accrued interest; that thereafter said Preston and wife conveyed the said property, covered by the said mortgages, to one Abel A. Crosby, subject to the said mortgages; that the said Crosby and wife afterwards conveyed the premises described in the complaint herein to the defendant, and at the time of this transfer the Rondout Savings Bank satisfied the $2,000 mortgage and released the said premises conveyed to the defendant from the lien of the $12,000 mortgage, and at the same time defendant executed back to the said bank a bond and mortgage on the said premises described in the complaint for $5,500; that the said mortgage was given for the purpose, and was intended to take the place of, the satisfied mortgage and the amount released from the original mortgage, less the sum of $500, which was paid in cash; and that there was no intention on the part of the parties thereto that the giving of the new mortgage should be regarded as a payment, but that the latter mortgage was to be substituted as a continuation, proportionately, of the Everson mortgage and the satisfied mortgage; that the creation of it, and the release of the Everson mortgage in part, and the satisfaction of the mortgage given for interest, as direct liens, occurred at the same time, and that the transaction was not intended as payment ; and that no part of the lands mortgaged by the Eversons has ever stood free and clear of incumbrances since their mortgage; and held, as matter of law, that the plaintiff was entitled to dower only in the equity of redemption of the premises described in the complaint.

      G. D. B. Hasbrouck, for the appellant.

      Charles M. Preston, for the respondent.
   Landon, J. :

The plaintiff’s husband died seized in fee of the premises. She had joined with him in executing the $12,000 mortgage, which, •with interest, was unpaid at his death. By joining in the mortgage she released her claim for dower in favor of any person who should thereafter acquire title to the premises under the mortgage. She did not unite in any of the conveyances made since the death of her husband, and under which defendant holds title to the portion of the premises now in question. She has not in any way released her claim of dower except by joining in the $12,000 mortgage. The premises in question have been, since the death of her husband, released from the lien of the mortgage. Her claim of dower is not opposed by any release executed by her, and none exists. It must, therefore, be allowed, unless the mortgage containing her release can be revived and reinstated by the defendant as a bar to her claim of dower. (Runyan v. Stewart, 12 Barb., 537; Hitchcock v. Harrington, 6 Johns., 290; Collins v. Torry. 7 id., 278; Coates v. Cheever, 1 Cow., 479 ; Bartlett v. Musliner, 28 Hun, 235.)

If the $12,000 mortgage were still a subsisting lien upon the premises, the widow would, against the mortgagee, only be entitled to dower in the equity of redemption of which the husband was seized, unless she or her husband’s personal estate contributed to the redemption of the land from the lien of the mortgage.

The defendant here claims that although the mortgagee has been satisfied as to the premises conveyed to him, the mortgage debt has not been paid, except to the extent of $500; that other mortgages Srave been executed by the husband’s grantees in substitution for so much of the original mortgage as could fairly be apportioned to this portion of the whole premises, and this was done simply for the convenience of the new purchasers of the several parcels of the whole premises, and that equity ought to revive and reinstate that portion of the $12,000 mortgage thus released, and that the defendant should be subrogated to the rights of the original mortgagee, and that the plaintiff’s claim of dower be limited to the equity of redemption. This view was adopted by the trial court.

"We are cited to cases in which the purchaser of the husband’s equity of redemption has, instead of paying the mortgage upon the premises, taken an assignment of it, and been allowed to assert the mortgage against the widow’s claim of dower. (Delisle v. Herbs, 25 Hun, 485 ; Russell v. Austin, 1 Paige, 192.) Also where the mortgagee enters under the mortgage and the husband releases the equity of redemption to him. (Van Dyne v. Thayre, 19 Wend., 162.) And where the heir has been compelled to redeem the land the widow, who united in the mortgage, in order to obtain dower, has been obliged to contribute her ratable proportion óf the moneys paid to redeem the mortgage. (Swaine v. Perine, 5 Johns. Ch., 491.) And where, having the power of sale as executrix of her husband, she sold the land, and her husband’s mortgagees took the purchaser’s mortgage in place of the one held by them against her husband for purchase-money, the substituted mortgage was reckoned as to the proceeds of the sale the same as the original mortgage in estimating dower between herself and the heirs. (Evertson v. Tappen, 5 Johns. Ch., 511.) The court said they were not called upon to decide whether she would have a claim of dower against the purchaser, but intimated that she was probably barred by her own deed. In all these cases the original mortgage was actually or equitably in life. Here the original mortgage no longer exists with respect to the premises held by the defendant.

The husband’s equity of redemption was sold after his death by his executor for one dollar. The purchaser, no doubt, deducted the amount of mortgage from the actual consideration. This circumstance was regarded in Hitchcock v. Harrington (6 Johns., 294) as showing that the mortgage was redeemed for the benefit of the title acquired under the husband. It was, of course, known that the sale by the executor did not bar the widow’s dower, and that the only way this could be done, without her consent, was to sell the premises under the mortgage. If the sale had also been of her claim for dower, possibly the premises would have brought more.

Of course, the mortgage could have been kept on foot by assignment, as in the cases cited, but this was not done. Perhaps the mortgagee was unwilling to assign a part interest in the mortgage. He could not have been compelled to do so. The release of these premises from the lien of the mortgage declares that it was made, “ to the intent that the lands hereby conveyed may be discharged from the said mortgage.”

Regard being had to the nominal price paid for the equity of redemption ; to the fact that the widow’s claim of dower was not released at that sale; to the intent expressed in the written release of the mortgage; to the favor extended by the law to the widow’s dower; to the absence of circumstances showing any mistake other than that of law; we do not think that a case was made ehtitling the defendant to revive and reinstate against the plaintiff, a mortgage in which the defendant never had any interest, and under which he has derived no title. He was purely a volunteer with respect to the original mortgage. He desired to buy the land in which the widow had a claim of dower, subject to diminution because of the mortgage. Instead of buying it subject to the mortgage, he had that mortgage discharged, so- that his title would be originally free from it. He, therefore, never was surety for the payment of the original mortgage, and is not entitled to subrogation. ( Willies v. Harper, 1 N. Y., 586.)

The interlocutory judgment should be modified so as to direct the referee to proceed in accordance with this opinion. Costs of this appeal allowed to the appellant. (Code Civil Pro., § 1224.)

Learned, P. J., Bocees, J., concurred.

Judgment interlocutory, modified according to opinion, with costs of appeal, judgment to be settled before Landon, J.


author: Landon, J.:

text:
    RUSSELL WHEELER and Others, Respondents, v. DAVID M. JONES, Appellant.

      Extension of time of payment of a debt — not necessarily effected, by the acceptance, as collateral security, of accounts not then due.

    The defendant, being indebted to the plaintiffs for goods, wares and merchandises sold to him, assigned, as collateral security, certain accounts against other persons, not yet due, by a written instrument which, after reciting his indebtedness to ,the plaintiffs, stated that “ for the purpose of securing sáid debt to said firm I do hereby sell, assign and set over to them the following accounts and demands, to wit: ”

      Held, that the plaintiffs did not, by accepting the assignment of the said accounts, extend the time of payment of the debt then due to them, to the time when the said accounts would become due.

      Cary v. White (53 N. Y, 139) followed; Durkee v. National Bank of Fort Edward (36 Hun, 565) distinguished.
    Appeal from a judgment in favor of the plaintiffs, entered iu St. Lawrence county, upon the decision of the court upon a trial before the court without a jury.
    The action was for merchandise sold by the plaintiffs to the defendant; it was admitted that the plaintiffs were entitled to recover $778.30, unless they had by accepting the following assignment as collateral security, extended the time of payment; it being also admitted that the several assigned accounts were not due at the time of the commencement of this action : “Whereas, I, David M. Jones, of Canton, am justly indebted unto the firm of Russell Wheeler, Son & Co., of Utica, N. Y., in the sum .of thirteen hundred and sixty dollars and sixty four cents; now, therefore, for the purpose of securing said debt to said firm, I do hereby sell, assign and set over to them the following accounts and demands, to wit: ” (then follow the names of ten different persons, with a statement of trie amount of the account against each one, the aggregate being $1,688.)

      Chamberlin dé Hale, for the appellant.

      W. H. Sawyer, for the respondents.
   Landon, J.:

Cary v. White (52 N. Y., 139) is to the effect that when there is no agreement to extend the time of the payment of the' original debt, or no substituted agreement made respecting the debt, the mere taking of a mortgage payable at a future time as collateral security for the original debt, does not operate --to extend the time for its payment. Durkee v. National Bank of Fort Edward (36 Hun, 565), is to the effect, that when the original debt is past due, and the debtor at the request of his-creditor, gives him a mortgage to secure its payment, which mortgage appoints a future day of payment, and provides that if payment- be then made the mortgage shall be void, then the creditor by accepting the mortgage, accepts its terms.

In the former case the collateral mortgage does not in terms refer to the original debt, nor fix a new day for its payment; in the latter case the original debt is by express terms in the mortgage made payable'' at a future day. In the case at bar the assignment does not by its terms extend the time of payment of the original debt. Certain accounts against third parties, due in the future, were assigned to the plaintiffs as security, upon the agreement of the plaintiffs that as these accounts became due, they should collect the same and apply ’the avails in payment of the indebtedness, The plaintiffs now had the original unchanged promise of the defendant and the assigned claims against third parties, but they did not fix a new day of payment of the old debt. They fixed the time when they would apply the proceeds of the assigned accounts, namely, when they should collect them; but they did not agree to postpone collecting the original debt until they slrould collect the assigned accounts.

Learned, P. J., and Bockes, J., concurred.

Judgment affirmed, with costs.


author: Landón, J.: Learned, P. J.:

text:
    JANSEN HASBROUCK, Respondent, v. NELSON H. BURHANS, Appellant.

      Evidence — the recital in a sheriff’s deed that am, execution has been issued, does not prove that fact — statute of limitations — Code of Oivil Procedure, sees. 865, 868, 878 — when a possession will he deemed adverse.

    Upon the trial of this action of ejectment, in which both parties claimed title under one Smedes, the plaintiff proved the recovery of a judgment against Smedes, in the Common Pleas of Ulster county, on January 19, 1818; that the deputy county clerk had made diligent search for an execution or fieri facias upon the judgment and could not find any. He then read in evidence, under the defendant’s objection, a sheriff’s deed, dated October 15,1818, conveying the interest of Smedes to one Hasbrouck, undgr whom the plaintiff claimed, which deed recited the issue of a fieri facias and the seizure and sale of the property. Neither Hasbrouck nor the plaintiff ever entered into possession of the premises, which were, at the the time of the recovery of the judgment and of the sale, in the possession of Smedes, and which, after his death, remained in the possession of his children and those claiming under them, down to the time of the commencement of this action. No other evidence tending to show the existence or issue of the writ of fieri facias was given.

      Held, that a finding by the trial court that an execution was duly issued could not be sustained.
    That the recital, standing unsupported by any evidence of possession of the premises under the deed, or recognition by Smedes of its validity, or other acts in pais tending to support the deed or the recital, was not evidence of the fact of the issue of the execution.
    That presumptions are indulged either in favor of, or in opposition to, ancient deeds, according to the matters in pais which accompany them, and that in this case, no possession having been taken thereunder, the natural presumption was that the deed had performed no function, because, from the lack of the execution, it could not rightfully perform any.
    That the plaintiff was barred by the statute of limitations, as neither he nor his devisor had, been seized or possessed of the premises within twenty years before the time of the commencement of this action, and as the premises had been held adversely for more than twenty years by Smedes and those claiming under him.

      Semble, that assuming the deed to have been valid, and that Smedes’ occupation had been that of a tenant at will under the plaintiff, yet as there was no written lease or rent reserved or paid the possession of Smedes, and those claiming under him would have become adverse at the end of twenty years, and the plaintiff’s title would be barred by the forty years of their subsequent adverse possession.

      Appeal from a judgment in favor of the plaintiff, entered in Ulster county upon the decision of the court after a trial before the court without a jury.

      Wm. Zounsberry, for the appellant.

      Howard Ohiyyp, Jr., for the respondent.
   Landón, J.:

The action is ejectment. Both parties claim title under Philip Smedes, who was in possession of the premises in 1810, and continued in possession until his death, about the year 1826.

The plaintiff claims to establish title as follows: He proved the recovery of a judgment by one Swart against Philip Smedes in the Court of Common Pleas of JJlster county, January 19, 1818, for the sum of .$506,72, and eighteen dollars and eighty-three cents costs. He then proved by the deputy county clerk that he had made diligent search for an execution or fieri facias upon this judg ment, and could not find any in the clerk’s office. He then read m evidence, over the objection of the defendant, a deed dated October 15, 1818, from Charles Bruyn, sheriff of the county of Ulster, to Abraham Hasbrouck, purporting to convey to him the interest of Philip Smedes in the premises in question. This deed recited the issue to the sheriff of the writ of fieri facias, commanding him, in the usual form of an execution, to collect for ¥m. Swart $506.72? etc., of etc., Philip Smedes, and that having thereupon seized and sold the premises in question to Abraham Hasbrouck, he therefore now conveys all the interest of Philip Smedes therein to said Hasbrouck. No other evidence was given of the existence or issue of the writ of fieri facias. The plaintiff next proved that he was the residuary devisee of Abraham Hasbrouck, which devise vested in him whatever title Abraham Hasbrouck had to the premises.

It appeared that Abraham Hasbrouck never took possession of the premises. Philip Smedes continued in possession during his life; upon his death his widow, Margaret, remained in possession until her death, which occurred about 1848. Philip and Margaret had a daughter Maria, who lived with her mother on the premises, and continued in possession until her death in April, 1881. Maria left two children, James and Sarah, and the children of a deceased son, Andrew. In 1882, James and Sarah conveyed to Sarah Turk, who thereupon brought an action of partition making the children of Andrew Smedes parties. This resulted in a judgment and sale, under which the defendant, in 1883, obtained the title under which he took and retains'possession.

The court gave judgment for the plaintiff, finding among other things that an execution was duly issued to the sheriff, upon the judgment of 1818, against Philip Smedes. We think this finding cannot be sustained.

The issue of the execution to the sheriff was vital to his power or jurisdiction to sell. He had no power to sell unless ho had the execution. (Jackson v. Hasbrouck, 12 Johns., 213; Yates v. St. John, 12 Wend., 74.) He was a ministerial officer, but, as such, was .charged with no power or duty touching these premises with respect to this judgment, except at the instance of William Swart, who, in order to set him in motion and clothe him with power, must first have placed an execution in his hands. The doing of this by Swart would have been strictly a private act, in which the public would have had no concern. Hnless the recital of the issue of the execution in the deed is evidence of its issue, there is no evidence, and. the deed of 1818 would be worthless, because not shown to be authorized.

It is undoubtedly settled law that the recital, standing alone, unsupported by any evidence of possession under the deed, or recognition by Philip Smedes of its validity, or other acts in pais tending to support the deed or the recital, is not evideuce of the fact of the issue of the execution. (Jackson v. Roberts, 11 Wend., 425 ; Hill v. Draper, 10 Barb., 454; Hardenburgh v. Lakin, 47 N. Y., 109 ; Reed v. McCourt, 41 id., 435; Williams v. Peyton, 4 Wheat., 77.)

The learned counsel for the plaintiff cites cases in which it is held that public officers are presumed to have done their duty, and that official acts are presumed to have been regularly and properly performed. (Hartwell v. Root, 19 Johns., 345; Doe v. Phelps, 9 id., 169; Ford v. Wadsworth, 19 Wend., 334; Wood v. Morehouse, 45 NY., 368; Clute v. Emmerick, 21 Hun, 122; Rice v. Davis, 7 Lans., 393 ; Ensign v. McKinney 30 Hun, 249.) These cases do not aid the plaintiff, for the reason that until it is shown that the sheriff had an execution, it is not shown that he had any duty to do. The recital in the deed may bind the plaintiff and all persons in privity with him, but with respect to Philip Smedes and the defendant, the recital remains the mere declaration of a stranger, until the authority to make it is produced. The objection to the admission of the deed was that it was irrelevant and immaterial; this objection was made after the evidence of the existence of an execution had been exhausted. The plaintiff could not have produced any further evidence, and hence the objeetion was sufficient. The search by the county clerk, and his failure to find an execution, standing alone, affords no presumption of its loss. There must, in addition, be some evidence that the execution some time existed. (Leland v. Cameron, 31 N. Y., 115 ; Mandeville v. Reynolds, 68 id., 528.) Presumptions are indulged either in favor of, or in opposition to, ancient deeds, according to the matters in pais which accompany them. ( Clark v. Owens, 18 N. Y., 434; Willson v. Betts, 4 Den., 212.) If the plaintiff were defending a possession timely taken under the deed of 1818, and since continued, the presumption would be strong that the recital of the issue of the execution was true. We should naturally reason that if it had not been true Philip Smedes would not have surrendered his land, and that the end accomplished resulted from the performance of all the acts necessary to that end. But where there has been no possession, and no other acts indicating any claim under the deed, and the deed recites an execution upon which its validity depends, and no other trace of that execution can be found, we should naturally conclude that the deed had performed no function ; because, from the lack of the execution, it could not rightfully perform any. Such a deed under such circumstances, instead of gathering vigor with time, waxes stale.

The omission to take possession may be excused or explained consistently with the right to take it. Here no explanation is offered except that the Smedes were poor colored people. If their long possession was an indulgence granted by Hasbrouck some slight evidence to that effect ought to be given. Philip Smedes was in possession as owner in 1818, the date of the sheriff’s deed. Before the deed his possession was adverse to Abraham Hasbrouck; after the deed there is no affirmative evidence that it was changed. The justice finds that he continued to occupy the premises after the deed as before. After him his widow, his child and his grandchildren, in their turn, succeeded him, down to 1883, sixty-five years after the date of the deed. The twenty years which the law fixes as the limit beyond which it is not usually necessary to pre serve evidence of a right actually claimed and exercised have been three times exhausted. They, or the defendant, their grantee, need not prove the origin of their right; the right is presumed because they have held it so long. Besides, the plaintiff is barred by the statute of limitations, neither he nor his devisor having been seized or possessed of the premises within twenty years before the commencement of this action. (Code Civil Pro., § 365.)

Suppose the deed of 1818 to have been 'valid, then the occupation by Philip Smedes would be deemed to have been under and in subordination to the legal title. (Code Civil Pro., § 368.) Such subordinate possession, in the absence of explanation, will be deemed a tenancy at will. (Jackson v. Sternbergh, 1 Johns. Cas., 153; Russell v. Doty, 4 Cow., 576; Jackson v. Graham, 3 Caines, 188.) There was no written lease and no rent reserved or paid. Peter Smedes and those holding under him would, therefore, be deemed to be such tenants at will for twenty years after the date of the deed of 1818. (Code Civil Pro., § 373; Whiting v. Edmunds, 94 N. Y., 314.)

The section last cited, which is a re-enactment of the Revised Statutes, declares that “ this presumption shall not be made after the periods prescribed in this section.” That is to say, when there is no written lease the tenancy will not be presumed to continue after twenty years from the last payment of rent. It must, therefore, thenceforth be presumed that the former tenant held under a right adverse to his former landlord. Such adverse holding would have been started in 1838, and having been continued for forty-two years, suffices to bar the plaintiff’s right of action.

Some evidence was given of the declaration of James Smedes, one of the three heirs-at-law of Maria Smedes, to the effect that the plaintiff owned the premises. Maria Smedes died in April, 1881. James died in August, 1832, and the plaintiff’s son, who testified to this declaration, fixes the date of it a year, and possibly two, before James’ death. If it was made while Maria was living, it would not be competent to characterize her holding, however it might characterize his own if made after her death. If force should be given to this declaration, it would affect only one-third of the premises, and the plaintiff has recovered them all.

The judgment should be reversed and a new trial granted, costs to abide the event.

Bocees, J., concurred.

Learned, P. J.:

I think that this action is barred by the statute of limitations. The possession of Philip Smedes was originally adverse to any rights of plaintiff or of his ancestor. And it seems to me that tbe possession of Philip Smedes and of his successors has continued to be adverse. I concur in the result.

Judgment reversed, new trial granted, costs to abide the event.


text:
    THE NATIONAL BANK OF GRANVILLE, Respondent, v. JACOB COHN and Others, Appellants.

      Fraudulent assignment — it must be set aside if any pwrt thereof was made with intent to defraud.

    A general assignment, transferring the property of a firm for the purposes of paying the individual debts of the partners, as well as the firm debts, is wholly void as to firm creditors, and must be set aside.
    It cannot he sustained, in so far as it transfers the firm property to pay firm debts, and set aside as to that portion which provides for the payment of the individual debts.
    Appeal from a judgment in favor of the plaintiff, entered at the Washington Circuit upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    On September 25,1884, the defendants, Cohn and Stein, brought an action and obtained an attachment against the property of Baldwin & Hull, a firm doing business at Granville, Washington county. The sheriff of that county, to whom the attachment was issued, on September 26, 1884, levied upon property then in the store and constituting, as the defendants claim, the stock in trade and fixtures of the attachment debtors. Judgment was entered in that action against Baldwin & Hull, on October 21, 1884, for $422.91, and an execution was on the same day issued to the sheriff, who, by virtue thereof, sold part of the property so levied upon, and applied the proceeds to the satisfaction of the execution. On September 13, 1884, however, an instrument had been executed by the firm by which it transferred its entire stock of goods to the plaintiff to secure the indebtedness and liabilities of the firm, or either of the partners. At the time of this assignment the firm owed the plaintiff $5,300, and Hull’s individual indebtedness to the plaintiff was $2,473.70. The property so assigned constituted all the assets of Baldwin & Hull. The plaintiff claimed title, under the assignment mentioned, to the property levied upon by the sheriff, and brought this action to recover its value.
    Townsend, Dyett & Einstein, for the appellant.

      F. W. Betts .and M. D. Grover, for the respondents.
   Landon, J.:

I think this judgment should be reversed upon the ground that .the assignment was void against the defendants, who are firm creditors, with attachment, judgment and execution. It is conceded that the provision of the assignment transferring the firm property to the plaintiff, in order to secure the individual debts of the members of the firm, cannot be upheld, but it is claimed that the portion of it transferring to plaintiffs the firm property to pay the firm debts, can be. The question is, whether this assignment was made with the intent to hinder or defraud creditors ; that is, firm creditors. It was given and received for the purpose, among other things, of applying the firm property to pay the individual debts of the members of the firm. Suppose that expressed purpose is carried out; the effect is both to hinder and defraud such creditors. The effect being known, the intent to accomplish it is just as plain as if it had been confessed in the instrument itself. And to this effect are the cases Wilson v. Robertson (21 N. Y., 587); Barney v. Griffin (2 id., 365); Kirby v. Schoonmaker (3 Barb. Ch., 48); Fiedler v. Day (2 Sandf., 594). It can make no difference whether the assignment is to a trustee or to a creditor, or is in the nature of a mortgage. In either case the purpose declared will, if carried out, enable the plaintiff to hinder and delay the firm creditors in obtaining satisfaction of their debts, and will defraud them to the extent that the firm property is applied to individual debts. In whatever form such an intent is sought to be accomplished, the law condemns it. (Billings v. Russell, 101 N. Y., 226.) When it is conceded that that part of this assignment which appropriates the firm property to the payment of individual debts is void against the firm creditors, then it is conceded that by making this assignment the parties to it intended to withdraw some portion of the firm property from the reach of the firm creditors, and consequently the intent was to defraud such creditors to the extent of the firm property thus placed beyond their reach. The statute does not say that the part of the assignment made with such intent shall be void, but that the assignment itself shall be void. The statute condemns the whole .instrument if any part of it shows that the instrument itself was made with this prohibited intent. (Curtis v. Leavitt, 15 N. Y., 97 ; Billings v. Russell, supra.)

Cases like Darling v. Rogers (22 Wend., 483), in which the void parts of an assignment are separated from the valid, and the latter upheld, have no application. There particular provisions are forbidden and condemned ; here the prohibition is not simply directed to the particular provisions, but to the whole instrument, if made with the prohibited intent, of which these particular provisions are conclusive evidence.

The cases of Leitch v. Hollister (4 N. Y., 211); Dunham v. Whitehead (21 id., 131), do not aid the plaintiff. They are to the effect that a failing debtor may give to his creditor a mortgage of his property to secure payment of his debt, and such mortgage is not void because providing for the return of the surplus to the debtor after the debt shall be paid. They do not touch the vice in this instrument which we have considered, namely, the intent to appropriate firm property to the payment of individual debts to the prejudice of firm creditors, an intent which is fatal to a mortgage as well as to an assignment.

Learned, P. L, concurred.

Judgment reversed, new'trial ordered, costs to abide event.


author: LANDON, J. :

text:
    AMBROSE W. ADAMS, as Constable, etc., Appellant, v. JOHN H. TATOR, Respondent.

      Defects in a constable’s bond — 1 Revised Statutes, 346, sea. 21,
      as amended by chap. 788 of 1872 — until removed the constable’s acts are to be treated as those of an officer de jure as to third persons.

    This action was brought by tjhe plaintiff, as constable of the town of Fulton, Schoharie county, to recover the value of certain personal property which he had levied upon and advertised for sale at public auction, by virtue of two executions, issued by a justice of the peace upon two judgments against one George G. King; this property the defendant, claiming the same under, a chattel mortgage given to him by King, but not filed until after the levy, took and carried away after the levy and before the sale.
    Upon the trial it appeared that the bond filed by the constable upon his election, in February, 1885, complied with the requirements of section 21 of 1 Revised Statutes, 346, but did not contain the provision prescribed by chapter 788 of 1872, (• making the person signing the same liable to pay for any damages which might be occasioned by any act or thing done by the constable by virtue of his office.
    On January 12,1886, the day before the trial, the plaintiff executed and filed with the town clerk a new bond, with the same sureties as in the first, which complied with the statute as amended in 1872.

      Held, that the trial court erred in granting a motion for a nonsuit, made upon the ground that at the time of making the levy the plaintiff was not a constable de jure, and, therefore, had no right to bring this action as constable.
    That, as the plaintiff had been duly elected, had taken the oath of office and filed the bond required by the statute prior to the amendment of 1872, he was not merely a de facto officer, but an officer de jure, with a title defeasible only by the action of the people in the nature of a quo warranto, or by the action of a justice of the peace declaring a vacancy to exist, and appointing another person to fill it.
    That, even if the plaintiff was merely a de facto officer, it might be doubted whether the rule preventing such an officer from asserting his title to his own advantage, at the expense or to the injury of another, but holding his acts to be valid, so far as to protect third parties from injury, should be so applied as to deprive the judgment creditor of the lien which attached to the judgment debtor’s property upon the delivery of the execution to the defacto constable.

      Appeal from a judgment dismissing the complaint, entered upon a nonsuit granted at the Schoharie Circuit.
    The plaintiff brought this action as constable of the town of Fulton, Schoharie county, to recover the value of certain personal property which he had levied upon and advertised for sale at public auction, by virtue of two executions issued by a justice of the peace upon two judgments in favor of one Mickle against George G. King; which property the defendant, claiming the same under a chattel mortgage given to him by King, but not filed until after the levy, took and carried away after the levy and before the day of sale. At the close of the plaintiff’s testimony the defendant moved for a nonsuit, upon the ground that, at tire time of making the levy the plaintiff was not a constable de jure, and therefore had no right to bring this action as constable. The court granted the motion. The alleged defect in the plaintiff’s title to the office of constable consisted in the fact that the bond filed by him in the town clerk’s office, upon his election to-the office in February, 1885, omitted the following provision prescribed by chapter 788, Laws of 1872: “And, also, jointly and severally agree and become liable to pay each and every such person for any damages which he may sustain from or by any act or thing done by said constable by virtue of his office of constable.” This was an addition to the provisions of 1 Revised Statutes, 346, section 21, which required that the obligors should “ jointly and severally agree to pay to each and every person who may be entitled thereto, all such sums of money as the said constable may become liable to pay on account of any execution which shall be delivered to him for collection.” The bond given by the constable conformed to the provisions of the Revised Statutes before the amendment of' 1872. On January 12, 1886, the day before the trial, the plaintiff executed and filed with the town clerk a new bond, with the same sureties as in the first bond, in conformity with the statute as. amended in 1872. The plaintiff apparently made a prima faeie case in other respects, and the nonsuit was granted.

      S. Z. MayTiam, for the appellant.
    IK. O. Lamont, for the respondent.

       Decided January 4,1887.

   LANDON, J. :

The plaintiff was duly elected, took the oath of office, filed such a bond as the statute required before the amendment of 1872, but omitting the additional clause prescribed by that amendment, and in good faith entered upon the discharge of his duties. This bond, was good to the extent of its provisions. (People ex rel. Comstock v. Lucas, 93 N. Y., 585.) The plaintiff, therefore, was not merely a de facto officer, but an officer de jure, with a title defeasible, only upon the action of the people in the nature of a quo warranto, (Foot v. Stiles, 57 N. Y., 399; People ex rel. Woods v. Crissey, 91 N. Y., 635). or upon the justice of the peace declaring a vacancy and appointing another to fill it. (Horton v. Parsons, 37 Hun, 12.)

The statute (1 R. S. [5th ed.], m. p. 316, § 16 [21], says the neglect by a person chosen constable to give the prescribed bond within the time limited for that purpose, (eight days after he shall be notified of his election), shall be deemed a refusal to serve. This is not a self-executing vacatur of the office. If no bond at all is filed, the justices of the peace, in whom the power to fill a vacancy in this office is vested (1 R. S. [5th ed.], m. p. 318, § 61 [36], may, no doubt, exercise the function of deeming the neglect to file a bond the refusal to serve, and then proceed to fill the vacancy. But the time in which the constable shall file a bond is merely directory. (Dutton v. Kelsey, 2 Wend., 615.) And if the constable file it in good faith after the time prescribed, and before the justices have declared the vacancy, it follows that he will make good his title. (People ex rel. Williamson v. McKinney, 52 N. Y., 371.)

In this case, the constable having filed a bond which contained some, but not all, of the provisions of the statute, could not, in fairness, be deemed by the justices to have refused to serve, especially when they knew he was serving, without giving him an opportunity to file a perfect bond. But grant that they had the power to do it, and we must grant it, still they did not declare the office vacant, and hence the plaintiff was not ousted. He was hot an usurper like an alien, or a woman or a minor, who are declared ineligible, and who, therefore, may not assume to hold the office, for lack of legal capacity to be able to fill it. He was eligible; he had been chosen ; he simply followed the old form instead of the new in preparing his bond; he was the rightful officer with a flaw in his title, which might or might not oust him, and which nobody except the people, by their justices of the peace, or attorney general, had any authority to urge, or act upon, to his downfall.

On the day before the trial, the plaintiff executed and filed a new bond, with sureties, in the form prescribed by the statute. We do not think it was necessary for him to do this in order to maintain this action, but if the foregoing views are correct, this new bond cured the defect in his title, and a quo warranto could not then oust him. But the bond does not confer title; it only enables the officer to keep it. If the plaintiff acquired title by the election in February, 1885, and then took the oath of office and entered upon its duties, and when the trial took place, his title vas indefeasible, in the absence of any statute forbidding his levying an execution without first filing his bond, it is difficult to see upon what ground it could be held he had no title to the office in the meantime.

The general rule with respect to defacto officers is, that the office is so far void as to prevent the officer from asserting it to his own advantage at the expense or to the injury of another, but is valid so far as to protect third parties from injury; in other words, void as to himself, but valid as to strangers. (People ex rel. Hopson v. Hopson, 1 Denio, 574; Weeks v. Ellis, 2 Barb., 320; Matter of Kendall, 85 N. Y., 302.)

If the plaintiff was merely a de facto officer, it may be doubted whether this rule should be so applied as to deprive Mickle, the judgment creditor, of the lien which attached to the judgment debtor’s property upon the-delivery of the executions to the de facto constable. (Code Civil Pro., § 1405.) That lien could only be made available by means of levy and sale. The constable was the official agent, through whom Mickle must realize upon his lien. {People ex rel. Comstock v. Lucas, 93 N.Y., 538.) The defendant had a chattel mortgage upon the same property, but he did not file it until after the execution was delivered to the constable, and therefore his lien was subsequent to Mickle’s. (Hathaway v. Howell, 54 N.Y., 97.) The defendant, when he seized and carried away the property, did so without right. But, if by interposing the defect in the constable’s title, he can compel an abandonment of the levy, he can thus displace the lien of the execution and obtain for his chattel mortgage priority of lien over any subsequent execution or levy. Besides, the goods of the execution debtor having been taken from him upon the execution, he has the right to insist that they shall be applied in satisfaction of it. (Peck v. Tiffany, 2 N. Y., 456.)

The rule that the acts of a defacto officer are valid as to strangers, ought to be so applied as to prevent this loss to Mickle. It may be that he would have his action for his loss against the constable, but the difference between a right of action against the constable, and the goods in the hands of the constable upon the execution, may be the difference between losing his claim and collecting it. The action against the defendant is brought by the constable. His right of action is founded upon the special property acquired by virtue of the levy. (Barker v. Binninger, 14 N. Y, 280.) But as was said in Howland v. Willetts (9 N. Y., 174), “ the sheriff acts for and in behalf of the plaintiff in the execution, and that the plaintiff is the substantial party, the one immediately and directly interested in the levy and the property or money acquired by virtue thereof.” (Root v. Wagner, 30 N. Y., 9.) The rule that the defacto officer’s acts aré valid as to third parties, ought, it seems, to be so applied as to be valid against a third party’s wrong, when that wrong is employed to defeat the execution creditor’s subtantial right of property.

The judgment should be reversed and a new trial granted, costs to abide the event.

Learned, P. J., and Bocees, J., concurred.

Judgment reversed, new trial granted, costs to abide event.


text:
    CECILIA G. M. PRESTON and Others, Appellants, v. ELMER E. PALMER and Others, Respondents.

      Will — the right of a devisee to take thereunder is not affected by the fact that he willfully murdered the testator.

    This action was brought to have the will of one Francis B. Palmer, so far as it devised and bequeathed property to the defendant, Elmer E. Palmer, declared void, upon the ground that Elmer E. Palmer willfully murdered the testator in order that he might prevent a revocation of the will and have the immediate enjoyment of the property. It was conceded upon the trial that Francis died of strychnine poison, and that Elmer had been convicted of murder in the second degree for killing him, and been sentenced to the Elmira State Reformatory therefor, where he was then imprisoned.

      Held, that under the laws of this State Elmer was entitled to take the property devised and bequeathed to him by the will of his grandfather, although he himself willfully murdered him.
    Appeal from a judgment in favor of'the defendants, entered in St, Lawrence county upon the report of a referee.
    The object of the action was to have the will of Francis B. Palmer, so far as it devised and bequeathed property to the defendant, Elmer E. Palmer, declared void, upon the ground that Elmer E. Palmer willfully murdered the testator, in order that he might prevent a revocation of the will, and have the immediate enjoyment of the property. The case was referred to the Hon. W. H. Sawyer, who found the following facts : For many years prior to April 25, 1882, Francis B. Palmer was the owner of the real property described in the complaint (a farm of about 130 acres), and 'a large amount of personal property. April 25,1882, he died of strychnine poison.williully administered to him by the defendant Elmer Palmer, with the intent and for the purpose of producing his death. Francis made his will in 1880. It gives his two daughters, the plaintiffs, fifty dollars each, and the residue to his grandson Elmer. Elmer was aware of the provisions made for his benefit by his grandfather’s will, and was desirous of entering into immediate possession of the property, and administered the poison with that intent. The testator had expressed disapproval of Elmer’s conduct, and presumably would have altered his will had he known or suspected Elmer’s murderous intent. The farm and personal property was worth about $5,500, and Elmer had no property of any considerable amount. The deceased left no descendants except his two daughters, the plaintiffs, and the grandson Elmer, a boy about twenty years old, who is unmarried, and had lived in the family of his grandfather for a long time.
    The will has been probated and the administrator, with the will annexed, is acting thereunder and in possession of the property, and, unless enjoined, purposes giving Elmer the enjoyment of the real and personal estate. It was conceded on the trial that Francis died of the strychnine poison. It was further conceded that Elmer was convicted at the St. Lawrence Oyer and Terminer of murder in the second degree for the killing of Francis by strychnine poison and was sentenced to the Elmira State Reformatory therefor, where he has since been and now is imprisoned. The tenant' and widow are in default. The referee deduced, as conclusions of law, from these facts the following: That in this State the transmission of prop-
    erty by will and its descent are creations of statute, and governed thereby; that nothing remains to courts but to enfore the statutes as they are, the old maxims of the common law being overridden thereby; that no exception exists under the statute to the right to take by will on account of crime; that, though Elmer wickedly and maliciously compassed the death of the testator, he is still entitled, under the statutes, to take under his will and enjoy the fruits of his crime. To a request to find that the motive of Elmer in murdering Francis was to obtain the speedy enjoyment of the property, and to prevent the revocation by Francis of the provisions of the will beneficial to him, the referee responded; “I so find substantially.” lie refused to find, as a conclusion of law, that Elmer had no right to terminate the enjoyment by Francis of his property, or prevent the revocation of the will. He further refused to find that Elmer is estopped from claiming the benefits of the will, a possible revocation of which he prevented by his crime.

      Leslie W. Bussell and O. E. Sandford, for the appellants.

      W. M. EawJeins, for the respondents.

       Decided January 4, 1887.

   Landon, J. :

We concur in the conclusions of law found by the learned referee. Elmer E. Palmer is permitted by our law to take the property devised and bequeathed to him bjr the w-ill of his grandfather, although he himself willfully murdered him.

The civil law, and the law in those countries which derive their jurisprudence from it, as we are instructed by the diligence of counsel, liolds otherwise. (Domat Civil Law, part 2, book 1, tit. 1, § 3; Pothier on Successions, chap. 1, § 2, art. 4, § 2; Poullier, vol. 4, p. 113; Duran ton, vol. 6, p. Ill; Marcade, vol. 3, p. 42; Spanish Partidas, 994.)

The Civil Code of Lower Canada (sec. 610) copying from Code Napoleon (sec. 727), reads as follows: “ The following persons are unworthy of inheriting, and, as such, are excluded from successions : 1. He who has been convicted of killing or attempting to kill the deceased.”

Section 893, substantially like sections 955,1046, Code Napoleon: “ The revocation of a will may be demanded: 1. On the ground of the complicity of the legatee in the death of the testator.”

It is manifest that we have omitted in our State to provide for the like contingency.

¥e are cited to the case of The New York Mutual Life Insurance Company v. Armstrong (117 U. S., 591), in which it was held that the beneficiary and owner of a policy of life insurance, by murdering the insured, forfeited all rights under it. The court said: As well might he recover insurance money upon a building that he had willfully fired.” That was a case of contract; it certainly could not be held that the company had promised to pay the insurance money to the murderer of the person whose life is insured. Such a contract would be so unreasonable and against public policy, that the courts could well hold that the minds of the contracting parties had never met upon such a proposition, and if they had, the contract would be void.

But a will is not a contract. It is the designation in the forms prescribed by statute, by the testator, of the persons who shall enjoy his property after he is dead. The law has pronounced its sentence upon this murderer, and that sentence does not embrace incapacity to take under this will. If, as we do not think, he is, by virtue of the sentence, civily dead, he did not become so until sentenced, and the sentence did not relate back to the testator’s death, and therefore could not affect any question at issue here: Perhaps this case wiil suggest to the law makers the imposition of such incapacity in like cases. But as it has not been imposed by the legislature, we cannot declare it.

The judgment is affirmed, with costs.

Learned, P. J., Bookes, J., concurred.

Judgment affirmed, with costs.


text:
    RUTSEN HUNT, Appellant, v. CHARLES A. VAN DEUSEN, Respondent.

      Representations oñ a sale of chattels — when they constitute a wcm-ranty, which survives the acceptance of the goods — a rule of damages will he followed - notwithstanding proof that the vendee sustained none.

    The defendant accepted an offer of the plaintiff to butcher fifteen hogs, owned by him, and sell the pork to 'the defendant, upon the statement of the plaintiff that there were not any stags, coarse or unmerchantable hogs among-them, and that they were a choice, first-class lot. It was proved upon the trial that upon an examination of the dressed hogs, which were delivered during the defendant’s absence from his store, it was found that one of them, weighing 394 pounds, was, when butchered, a hog from which only one' testicle had been taken in castration, the other not being found, and that the pork-of such an animal was not merchantable and was of little value.

      Held, that the representations u-pon which the defendant agreed to buy the pork were a warranty of quality, and that there was a breach thereof, which was not waived by the acceptance of the pork, and which entitled the defendant to recover, as damages, the difference in value between the pork as it was and such pork as it was represented to be.
    That it was error to compel the -defendant, who made the pork into sausages and lard, to.answer that he sold the sausages and lard at the ordinary price, as the plaintiff could not, because of the dexterity of the vendee, escape from the damages .as measured by the rule above stated.
    That it was not competent for the plaintiff to prove, by several witnesses, that each-of them had had a hog of this description, and how he treated it, and that he did not discover that the pork differed from his other pork.
    Appeal from a judgment by tbe County Court of Columbia county, reversing a judgment of a justice of tbe peace in favor of tbe plaintiff. , -
    Tbo plaintiff bad fifteen live hogs, and offered to butcher them and sell tbe pork to tbe defendant. The defendant asked if there were any stags, coarse or unmerchantable bogs among them; be said no, they were all a choice first-class lot. The plaintiff agreed to buy tbe pork at seven dollars per hundred. Some time after-wards tbe plaintiff delivered tbe dressed bogs at tbe store of tbe defendant during bis absence. Upon examination, one of them, of 394 pounds weight, was found to be very coarse. . It was proved on the trial that it was, when butchered, a hog from which only-one testicle had been taken in castration, the other not being found.. Evidence was given tending to show that the pork of such an animal was not merchantable and was of little value. The plaintiff had judgment for the price of the pork, which judgment was reversed by the County Court, and the plaintiff appeals.

      Newkirk <& Chase, for the appellant.

      Nawver c& Cochrane, for the respondent.

       Decided January 4, 1887.

   Landon, J.:

The representations upon which the defendant agreed to buy the pork were a warranty of quality. There was a substantial breach of that warranty, that was not waived by the acceptance of the pork. (Brigg v. Hilton, 99 N. Y., 517.) The plaintiff cites Gilbert Car Company v. Mann (24 W. Dig., 483), decided by us. ¥e held in that case that the car which the plaintiffs manufactured and delivered under an executory contract, containing a warranty as to quality, was accepted under such circumstances as precluded the defendant from insisting upon the warranty. The defendant in' that ease, notwithstanding the warning of the plaintiff, insisted upon the use of- green wood, which caused the defect. The defendant here did nothing to waive his right to rely upon the warranty.

The measure of damages was the difference in value between the pork as it was, and such pork as it was represented to be. The defendant made the pork into sausages and lard. He was required to answer, notwithstanding his objection, that he sold the sausage and lard at the ordinary price. The object of this was to show that by his methods he protected himself from actual loss. But that fact does not avail the vendor. He must respond according to the terms of the contract, and cannot, because of the dexterity of the vendee, escape from the damages measured by the rule above stated. (Muller v. Eno, 14 N. Y., 597.) It was not competent for the plaintiff to prove, as he did by several witnesses, that each one of them had had a hog of this description, and how he treated it, and that he did not discover that the pork differed from his other pork. The defendant could not be prepared to meet these individual cases, but only to establish the' general fact in such eases, and the particular fact in this case.

The judgment should be affirmed, with costs.

Learned, P. J. and Bockes, J., concurred.

Judgment of county court affirmed, with costs.