author: Bradley, J.:

text:
    DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Plaintiff, v. JOHN M. BURKHARD, GEORGE FRITCHIE and KATHARINE FRITCHIE, Defendants.

      Guaranty — when the sv/rety is discha/rged ly cm extension of the time of payment.

    This action was brought upon a written agreement, dated June 9,1881, by which the defendants agreed with the plaintiff that one Florack, “ who has purchased or is about to purchase anthracite coal of said company, shall and will pay said company, at such time or times, and at such prices as may be agreed upon between the said company and the said Frank J. Florack, for all coal that may be shipped to him up to the 1st day of May, A. D. 1882, and in default of his so doing, we agree to pay for the same, whether the indebtedness be in open account or embraced in notes, drafts or bills of exchange.”
    In pursuance 'of this agreement, coal was shipped to Florack until, but not after, November 5, 1881, payment on account thereof being made by him, from time to time, after the shipment of coal had been so discontinued. The company took from Florack notes for the amount due, which matured in January and February, 1882. When these notes fell due, payments were made thereon, and new notes, falling due prior to May first, were taken for the balance.

      Beld, that the extension of the time of payment given to Florack, by renewing his notes, discharged the defendants from all liability on their agreement.
    That the defendants’ liability was not altered by reason of the fact that, under the arrangement for the sales and purchases, Florack was to settle monthly, but that, if he was unable to then pay, the plaintiff would accept his notes, due in from one to three months, and would be as lenient as it could be, if he was unable to pay them when they became due.
    •' Motion by tbe plaintiff for a new trial on exceptions taken at tbe Monroe Circuit, and ordered to be beard at General Term in tbe first instance.
    The action was brought on an instrument made by tbe defendants, as follows: “ For a valuable consideration to us in band paid by tbe Delaware, Lackawanna and Western Railroad Company, at and before tbe execution hereof, the receipt of which is hereby acknowledged, we do hereby agree to and with tbe said company that Frank J. Florack, of tbe city of Rochester, State of New York, who has purchased, or is about to purchase, anthracite coal of said company, shall and will pay said company, at such time or times, and at such prices as may be agreed upon between the said company and the said Frank J. Florack for all coal that may be shipped to him up to the 1st day of May, A. D. 1S82. And in default of his so doing,, we agree to pay for the same, whether the' indebtedness be in opea account or embraced in notes, drafts or bills of exchange.
    “ Witness our hands and seals this 9th day of June, 1881.
    “ JOHN M. BURKARD. [l. s.]
    “ GEORGE FRITCHIE. [l. s.]
    “ KATHARINE FRITCHIE. [l. s.]
    The plaintiff had shipped some coal to Florack before the agreement in question was made, and afterwards, and until and not after November 5, 1881, continued to ship coal to him, amounting altogether to the sum of $15,142.69, upon which he from time to time made payments. On the 20th day of October, 1881, Florack gave to the plaintiff his note of that date, due at three months, for $2,500, which matured on the 23d January, 1882, when a payment of $838.75 was made, and a new note at three months given ■for the balance, $1,700. On the 21st November, 1881, Florack gave the plaintiff his note, due at three months, for $2,596.58, which matured 24th February, 1882, when a payment of $1,040.82 was made on it, and a new note given for the balance, $1,596, due at one month. This matured on 27th March, 1882, when $226.37 was paid on it, and a new note made due at one month for the balance, $1,378.45, on which was subsequently paid $415.98, leaving a balance due on this note of $952.47.
    This action is brought to recover an amount equal to that remaining due on the two notes which matured April 26 and April 30, 1882. The complaint makes no reference to the notes, but charges-the sale and delivery of coal to Florack and default in payment of such balance, and at the trial the plaintiff offered to surrender up the notes. The plaintiff was nonsuited as to Katharine Fritchie, because it appeared that she was a married woman when she executed this agreement, and a verdict was directed for the other defendants.

      IV. P. Goodelle, for plaintiff.

      Sullivan da Morris, for defendant Burkard.

      Satterlee dk Yeoman, for defendants Fritchie.
   Bradley, J.:

The married woman defendant was not bound by the agreement. The only question presented in this case is whether the extension of time of payment given to Florack, and produced by the renewal of his notes, operated to discharge the male defendants from liability on their agreement of guaranty. Their relation was that of sureties and their liability rested wholly in the agreement to answer for the default of their principal, who it may be assumed had credit on the faith of the obligation of the defendants. The intention of the parties must be derived from the language used in the written undertaking. And in its interpretation the words employed will be deemed used in their popular sense. And their meaning, application and purpose, with a view to ascertaining the intention of the parties, may be aided, if necessary, by extrinsic, surrounding and attending circumstances, but the language of the instrument thus interpreted must- govern. (Crist v. Burlingame, 62 Barb., 351; Merchants' Nat. Bank v. Hall, 83 N. Y., 338; White's Bank v. Myles, 73 id., 339.) And as against the defendants as such sureties, the terms of the undertaking will not be extended by implication in support of their liability. Their contract is strictissimi juris, and the rights of the parties to it must depend upon the terms which the guarantor has prescribed by it. (Ludlow v. Simond, 2 Caines’ Cas., 57; Barns v. Barrow, 61 N. Y., 39; Ward v. Stahl, 81 id., 406; Holl v. Hadley, 5 Bing., 54.)

But in the matter of interpretation of the terms of a guaranty to ascertain what is in fact expressed by it, the guarantor has no^ advantage over parties to other contracts in which the question of liability of sureties is not involved, and the same rules of construction to that extent will be applied with a view to give it. effect according to the fair import of its terms. (Gates v. McKee, 13 N. Y., 232; Crist v. Burlingame, supra; Douglass v. Reynolds, 7 Peter, 113; Evansville Nat. Bank v. Kaufmam, 93 N. Y., 273.)

The agreement in question is a special guaranty, and creates an obligation to answer for default of the principal in payment for coal sold to him by the plaintiff. And it is a continuing one, and relates without restriction to all sales of coal so made to him during the period of time prescribed. (Pratt v. Matthews, 24 Hun, 387.) The parties contemplated that the sales should be on credit, and on such credit as should be agreed upon by the plaintiff and the purchaser. Thus far, no question can arise on construction. The evidence tends to prove that the system was to settle the twentieth ■day of every month, and then pay. And such was the arrangement under which the sales and purchases were made and the coal delivered, but that if he was unable to pay, then the plaintiff would accept Floraclc’s note, due from one to three months, and would be as lenient as it could be if he was unable tc meet the indebtedness when it became due. That was the agreement which the defendants undertook Floraek should perform with the plaintiff. And it was not important whether his liability -was in open account, or in notes, drafts, or bills of exchange. And it may be assumed that the defendants’ liability would have arisen on default in payment of the two notes of dates October 20 and November 21, 1881. The question arises, and such is that of this controversy, whether their liability was defeated and their obligation released by the taking of the subsequent notes in renewal of those first taken for the debt 2 The plaintiff’s counsel contends that the liability of the defendants was not thus limited, but that they undertook to pay on default of ■their principal without reference to the term of credit, and the renewal of the notes was but an extension of the term of credit within the contemplation of the parties to the agreement of guar-, anty. It will be observed that the contract is that Floraek shall pay for the coal at such time or times as may be agreed upon between the plaintiff and him, and to pay on his default to do so. That is the undertaking and the only one the defendants have .assumed. If any other or different contract than that is required to support this action, the plaintiff cannot recover.

The time fixed, by the agreement under which the coal was pnr■chased, to pay for it, expired when those notes first given became due. And the giving of the subsequent notes was the subject of a new agreement, and while it in effect was the giving of further •credit for coal, it was also an arrangement for renewal of the matured notes. It involved more than a sale on credit, or an agreement for credit, pursuant to which a sale was made and went ■beyond it. It embraced an additional and new element in the arrangement for credit to be accomplished by the renewal of the notes for two and three months. This was done after the credit within and contemplated by the contract of sale had expired. (Smith v. Townsend, 25 N. Y., 479.) But the learned counsel for the plaintiff suggests and contends that the defendants’ undertaking to pay was absolute on default of their principal; that no definite time of payment was to be agreed upon; that in view of the understood course of dealing between it and Elorack, it could not be contemplated that each shipment of coal should create a distinct indebtedness, payable at any definite time, or that the amount of it would become fixed and determined until the expiration of the period covered by the guaranty, and, therefore, the extension of the time of payment by the renewal notes was fairly within the , contract, because they became due before the expiration of the time over which the guaranty extended. None of those propositions, except the concluding one, require any consideration.

The plaintiff and Elorack were not, nor was either of them, required to continue the deal during the whole time embraced within the terms of the guaranty. They were at liberty to, and did, terminate the sale and purchase of coal between them with the 5th day of November, 1881, the cause for which is not important. The deal then closed. The balance due the plaintiff became a fixed amount of indebtedness. The credit was afterwards fixed by an agreement which produced the notes of October and November for the amount. And- although the precise term of credit was not agreed upon when the coal was delivered, it became definite when the notes were taken, and that credit as then fixed became that contemplated by the agreement when the coal was delivered, within the meaning of the instrument of guaranty. The suggestion is made that the undertaking that the principal will pay “ at such time or times ” as may be agreed upon, imports that succeeding terms of credit may be given to pay the same - amount or balanee, and that it is entitled to such interpretation, because the language does not limit the credit to that first given. That construction might have support if there had been but one transaction or purchase in view. The word times ” has relatively the same application as the word prices ” in the instrument, and its reasonable interpretation, in connection with the other provisions, would seem to apply it to the distinct purchases, respectively, rather than to a repetition of credit for the same designated shm or balance of 'indebtedness. And this view is not weakened by the provision which makes the agreement applicable to default in payment of notes, etc., inasmuch as the default must be in payment at such time or times as may be agreed upon for the coal and the agreement between them for credit, for it embraced the giving and acceptance of notes for balances on the monthly settlements. To say that a promise by a surety to pay in default of his principal, who was to have a credit agreed upon by him with his creditor, would hardly be deemed to include a series of credits, defaults and liabilities. But it is said that the remark on the part of the plaintiff as part of the arrangement, that it would be as lenient as it could be if he could not meet the indebtedness, implies that the credit might be extended by renewal of notes. That is not a very definite term, but relates to the matter of enforcement of payment, and imports indulgence, and the converse of rigor and severity, and not the placing of any obstruction in the way of exercising the power of enforcing collection by a new and binding agreement of extension of credit. It is difficult to see how this could be construed or understood as an arrangement which would include an extension of credit by renewal of paper. The mere matter of leniency would not legally prejudice the rights of the delendants. And in the matter of construction, a strained and unnatural interpretation will not be given when it impairs their rights.

Mere delay in proceeding to collect of Elorack would not affect the liability of the defendants to the plaintiff, or their right to pay and take measures for reimbursement and protection as against their principal. But a valid agreement between the plaintiff and him for extension of time of payment would have the effect to deny to the defendants, during such time, any right of payment and subrogation ; and hence it is that such extension given by a creditor to his principal debtor, without the consent of his surety, operates to discharge the latter. The taking by the plaintiff the renewal notes suspended until their maturity, all remedy, either by the plaintiff or the defendants, against the maker, on account of the debt secured by those notes. (Place v. McIlvain, 38 N. Y., 96; Pomeroy v. Tanner, 70 id., 551.) And it necessarily follows that if those extensions of credit were not within the contemplation of the agreement of guaranty, the liability of the defendants ceased, and their obligation was discharged when those notes were taken by the plaintiff.

In Samuell v. Howarth (3 Merivale, 272), the plaintiff guaranteed the payment to the defendant for any goods the latter might supply to one Henry between the 2d of April, 1814, and the 2d of April, 1815. Sales were made on credit of six and nine months, payable at the expiration of the credit in notes at three months, which were given ; and at maturity renewal notes were taken of the principal debtor without the consent of his surety. The latter filed a bill to restrain prosecution at law and for relief against the guaranty, and that it be declared at an end and void. The court sustained the in junction, and held that the complainant was entitled to the relief. And Lord Eldon, in delivering the opinion, held that the renewal of the notes was not within the contract of guaranty; and that because the right of remedy of the surety was suspended by such extension of time of payment, the latter was discharged from liability, and added: It has been truly stated that the renewal of these bills might have been for the benefit of the surety; but the law has said that the surety shall be the judge of that, and that he alone has the right to determine whether it is, or is not, for his benefit.” That case bears some resemblance to this, if we are right in the construction given to the defendants’ guaranty. (And see Combe v. Woolf, 8 Bing., 156; Howell v. Jones, 1 Cr. Mee. & Ros., 97; Bangs v. Strong, 7 Hill, 250; Bangs v. Mosher, 23 Barb., 478; Fellows v. Prentiss, 3 Denio, 512; Hibbard v. Gurney, 64 N. Y., 457; Greene v. Bates, 74 id., 333.)

And the conclusion follows that by taking the renewal notes the plaintiff relinquished the liability to it of the defendants, assumed by that instrument. In Merchants' National Bank v. Hall (83 N. Y., 338), the transfer as security was made and taken in view of the method of conducting banking business, and in anticipation of the general course of that business which is so universal that it is a matter of which courts may take judicial notice. The security there was a continuing one, given on account of credit of the debtor upon his papar held by the bank, and that credit was continued by the usual method of banks by renewal of the paper. The court held that such manner of credit was within the contemplation of the parties to the instrument, for the reason before mentioned, which does not apply to the transaction in question here.

. We see no force in the contention that the liability of the defendants continued during the entire period mentioned, without reference to the extension of credit and the manner which it was given during that time, and that because the renewal notes matured and default in payment of the amount of them was prior to May 1, 1882, it was within the contemplation of the agreement as its terms fairly import. The time mentioned in the guaranty had no such purpose or application. It had relation to defaults in payment for the coal pursuant to the agreement under which it was purchased* and related to any purchases made within that time without reference to the time of default, whether before or after the 1st day of May, 1882. (Davis v. Copeland, 67 N. Y., 127.) This is the reasonable construction of the undertaking and in harmony with all its provisions. Any other view requires the introduction of implication, which is not justified as against the defendants.

The suggestion that the defendants might have protected themselves against prejudice, by directing the plaintiff to collect of Florack, does not seem to be pertinent to the questions involved. That, however, may not have resulted in any advantage to them. The failure of the plaintiff to proceed would not necessarily have afforded them any remedy. That would have depended upon the solvency of their principal then and his subsequent insolvency, both of which must be established by evidence and neither by presumption. (Pain v. Packard, 13 Johns., 174.)

The assignment of Florack to defendant Burkhard for the purpose of indemnifying and saving harmless the defendants from loss* damages, costs and expenses in consequence of the obligation in question, made June 7, 1882, does not have the effect to charge them, or either of them, with liability in this action, nor can it be treated as a waiver on the part of Burkhard of any right of defense. The action is upon the agreement and the right of recovery depends wholly upon the obligation created by it. (Otsego Co. Bank v. Warren, 18 Barb., 290; Tower v. Durell, 9 Mass., 332.) The plaintiff may, however, have the property so assigned for such purpose appropriated in jiayment of the claim in an appropriate action for such relief. (Keyes v. Brush, 2 Paige, 311; Clark v. Ely, 2 Sandf. Ch., 166; Ten Eyck v. Holmes, 3 id., 428.)

Tbe exceptions to tbe exclusion of evidence were not well taken. That offered in relation to talk between Florack and tbe plaintiffs’ agents, “ in regard to the leniency they should exercise in regard to payment,” etc., did not purport to relate to any renewal of notes, or to the making of any valid agreement to extend time of payment, and was immaterial. And there was no question of fact for the jury in respect to the intent of the parties to the guaranty when it was executed. Its construction in that respect under the evidence, was a question for the court. None of the plaintiffs’ exceptions are well taken.

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

Barker, P. J., and Corlett, J., concurred; Haight, J., not sitting.

Motion for new trial denied, and judgment ordered for the defendant on the verdict.


source: Caselaw Access Project

author: Barker, P. J.;

license: Public Domain

text:
    PETER KUNEY, Respondent, v. THE AMAZON INSURANCE COMPANY, Appellant.

      Foreign corporation — when its general agent in this State is presumed to Time powet to appoint sub-agents.

    Appeal from an order of the Special Term denying the defendant’s motion for a new trial, on a case setting forth the evidence and the exceptions made after a verdict had been rendered in the plaintiff’s favor for the sum of $345 damages. On a former trial the plaintiff was nonsuited; the nonsuit was set aside at tñe General Term and a new trial ordered.
    The action was brought to recover damages for the breach of a parol contract for the insurance of the plaintiff’s property alleged to have been made by the defendant. Between the time of making the alleged agreement and the refusal of the defendant to issue the policy demanded, the property was destroyed by fire. The chief controversy is over the question whether the contract sued upon and proved on the trial was made by one lawfully representing the company and authorized to make the contract.
    The defendant is a foreign insurance company, chartered under the laws of the State of Ohio, having its home office in Cincinnati. In 1871 it established an agency in this State, at the village of Seneca Balls, for the purpose of doing a fire insurance business in all its branches, as authorized by the law of its creation, and appointed Josiah T. Miller, of that place, to manage and superin■ tend the same. His general powers and functions are set forth in his commission, and are as follows: “ Josiah T. Miller is hereby appointed and duly constituted an agent of the Amazon Insurance Company of Cincinnati, Ohio, with full powers to receive proposals for insurance against loss or damage by fire and lightning, to act ad surveyor, to appoint surveyors for property to be insured in Seneca county, New York, and vicinity, and insurance thereon to make, by policies of said Amazon Insurance Company, countersigned by' said Josiah T. Miller, agent, and renew the same, grant assent to assignments or transfers, and in all other matters and things, to .attend to the business and duties of said agency in manner and form prescribed by the company.” The company supplied Miller with blank policies signed by the executive officers of the company, which he was authorized to fill up and deliver to applicants for insurance. On his consent being given to assume the proposed risk, he was authorized to fix the premiums to be paid on all applications, the time the contract was to run, and if any special conditions were deemed necessary to be inserted in the policy to protect the rights and interests of the company, he was also authorized -to dictate the same. Daily reports were made by the agent to the borne office containing a statement of the business done and transacted on the previous day; but previous to the fire no mention was made of this transaction. The charter of the company was not given in evidence.
    The negotiations for the contract and the promise to make out and deliver to the applicant a policy were not made and conducted by Mr. Miller, the agent, personally. The plaintiff’s application was made to one Jacoby, then living at Seneca Falls, and he, assuming to represent the company, agreed with the plaintiff’s agent upon the terms of the insurance. Jacoby at the same time made a memorandum, which contained every fact necessary to be determined for the purpose of filling in the blanks of one of the company’s policies in the hands of their agent. This transaction between J aeoby and the plaintiff’s agent did not come to Miller’s personal knowledge until after the loss occurred.
    The court at General Term said: “ The defendant, to escape liability on this contract made in its name by one purporting to act for it, disclaims that Jacoby was authorized in any form or manner, or tinder any circumstances, to, make and conclude a contract of •this character.
    “ The plaintiff’s position on the question of Jacoby’s authority to make the contract is this: that Miller, as the general agent of the company, having charge of its agency at Seneca Falls, was authorized under his commission and by virtue of ,his position as superin ten dent of the defendant’s business at that place, to employ all the-necessary agents, clerks and surveyors to enable him to conduct the-business with- accuracy, intelligence and promptness. That when he did, in fact, employ others to act .under him to do such things-as he himself might do within' the limits of his powers and in connection with his agency, their acts and contracts would be-binding on the company the same as if made personally by Miller,, the general agent.
    “We concur in the plaintiff’s position as a legal proposition necessarily resulting from the nature of the power expressly delegated,, and from the character of the business and the distance the local offices were from the home department of the defendant’s business. It is not to be presumed the. company expected or intended that its general agent, in a foreign State, would give personal attention to all its affairs, and he himself make every contract of insurance entered into by the company within the territorial limits of his-agency. No such limitation on his powers is contained in his written commission, and it is unreasonable to suppose that the company intended to that extent to restrain his action and operation. He was authorized to insure property in several of the largest counties in the State, where a great amount of valuable property seeks insurance agains.t loss by fire.
    “ With a view of ascertaining the defendant’s rights under the contract, we are to construe Miller’s powers, so far as the right to appoint clerks and assistants is concerned, the same as we would the powers of an agent of a London company, who might be sent here for the same purpose under like instructions, to act as its agent in one of the commercial centers of the State. It is known, and so well and generally known, that no court would be justified in shutting its eyes to the fact that agents and superintendents representing foreign corporations, authorized to make insurance or to engage in commercial transactions, usually have powers delegated to them by the corporations whom they represent, commensurate to the transaction of the business carried on under their supervision. The proper protection to our own citizens dealing with such corporations through their agents located among us, require the court to hold, as a matter of law, that such is a fair and reasonable inference, since foreign corporations are transacting such a vast amount of business in the various departments of trade and commerce and the incidental business connected therewith, there has been an inclination in the courts to adhere to this presumption and not to depart from it unless the limitations placed upon the powers of such an agent are disclosed to the persons who deal with them. Upon this identical subject, the highest federal court has expressed its opinion and formulated a rule of law for its own guide as follows: ‘ The powers of the agent are prima facie coextensive with the business intrusted to his caris, and are not narrowed by limitations not communicated to the person with whom he deals. An insurance company, establishing a local agency, must be h$id responsible to the parties with whom they transact business, for the acts and declarations of the agent within the scope of his employment, as if they preceded from the principal.’ (Insurance Company v. Wilr Jei/nson, 13 Wall., 222.)

      “ This rule was maintained and applied in this State, in the case of Pechner v. Phoenix Insura/nce Company (65 N. Y., 195), and it. was hold that£ what the company itself can do at its home office, can, in general, be done by such an agent, who, in the place where the contract is made, represents the company in respect to it. Any other rule would be inconvenient and would greatly interfere with dispatch in business.’ In that case the defendant was created, and was doing business under the laws of the State of Connecticut, and the contract in question was made by one of its agents in charge of the business established in one of the villages of this ■State.

      “ In Bodi/ne et al. v. Exchange Fire Insurance Company (51 N. Y., 123), it was said by the court: ‘ We know, according to the •ordinary course of business, that insurance agents frequently have clerks to assist them; and that they could not transact their business if obliged to attend all the details in person, and these clerks can bind their principals in any of the business which they are authorized to transact. An insurance agent can authorize his clerk to contract for-risks, to deliver policies, to collect premiums, and to take payment of premiums in cash or securities, and to give credit for premiums, or to demand cash, and the act •of the clerk in all such'cases is the act of the agent, and binds the company just as effectually as if it were done by tbe agent in person.’ ” * * *

      Charles A. Hawley, for the appellant.
    . J. N. Hammond, for the respondent.
   Opinion by

Barker, P. J.;

Haight and Bradley, JJ., concurred.

Motion for new trial denied, and judgment ordered for the plaintiff on the verdict.


author: Haight, J.;

text:
    WILLIAM T. BROOKS, Appellant, v. DANIEL M. HANCHETT, Respondent.

      Practice — motion to make a complaint more definite and to state eamses of action sep- , arately — within what ti/meit must be made — Code of Oivil Procedure, see. 546 — General Mule No. 22 — when the right to make such a motion is waived, by prom . cwing an extension of the time to answer or demur.

    Appeal from an order of the Monroe Special Term, requiring the plaintiff to separately state and number the several causes of action set forth in his complaint.
    The complaint in this action was served on the 2d day of August, 1881. It appears from the opposing affidavits read upon the hearing of the motion that the defendant’s time to answer or demur was extended by stipulation until September 18, 1881, and that the additional time was stipulated to answer or demur only, and for no other purpose. The motion papers herein were served on the 18th day of September, 1881. The time for the defendant to answer was again extended to and including the 1st day of October, 1881, by an order of the county judge of Orleans county. The order of the county judge was not dated, and did not show whether or not it was procured before or after the time*to answer or demur had expired as extended by stipulation. It thus appears- - that the motion papers herein were served forty-six days after the service of the complaint. The notice of motion is for a rule or order that the plaintiff be required to separate and number the several causes of action and the statement of facts constituting each cause of action set forth in the complaint, and that the complaint be made more definite and certain in the respecta mentioned, etc.

      The court at General Term said: “ Section 546 of the Code provides that ‘ where one or more denials or allegations contained in a pleading are so indefinite or uncertain that the precise meaning or application thereof is not apparent, the court may require the pleading to be made definite and certain by amendment.’
    “ Rule 22 provides that ‘ motions to strike out of any pleading matter alleged to be irrelevant, redundant or scandalous, and motions to correct a pleading on the ground of its being ‘ so indefinite or uncertain that the precise meaning or application is not apparent/ must be noticed before demurring or answering the pleading, afid' within twenty days from the service thereof.’
    “ The motion herein is to have the complaint made more definite and certain, and consequently it should have been made within twenty days from the date of the service of the complaint, in order to be within the provisions of the rule. (Walker v. The Gh'a/nite Bank, 1 Abb. [N. S.], 406; Colton v. Jones, 7 Robertson, 164; Roosa v. Jhe Saugerties a/nd Woodstock Turnpike Road Co., 8 How., 287; The N. Y. Ice Co. v. The Northwestern Insxira/nce Co., 21 How., 234; Barber v. Bennett, 4 Sandf., 705.)
    “ Again, it appears that the defendant procured extensions of time to answer or demur, both by stipulation of the plaintiff and the order of the county judge, and in procuring the stipulation and order he did not reserve the right to move to correct the complaint. This was a waiver of all objections to the complaint and a bar to the motion. It involves an admission that the complaint is in form to require an answer. (Bowman v. Sheldon, 5 Sandf., 657; Garrison v. Carr, 3 Abb. [N. S.], 266; Marry v. James, 34 How., 238.) Hpon the merits we do not discover any serious objection to the complaint.” * * *

      John H. White, for the appellant.

      J. D. Decker, for the respondent.
   Opinion by

Haight, J.;

Barker and Bradley, JJT., concurred.

■ Order appealed from reversed, with ten dollars costs and disbursements, and motion denied, but with leave to the defendant to, answer or demur within ten days after service of a copy of this order.


author: Corlett, J.

text:
    FRANK HARDING, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Action for the wrongful removal of a passenger from a railroad car — right to recover damages for injuries to feelings.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for anew trial made upon a case and exceptions.
    The action was brought by the plaintiff to recover damages resulting from his being wrongfully put off one of the defendant’s trains by the conductor thereof.
    The plaintiff’s evidence tended to prove that the conductor was aggressive and insulting; that he called him a dead beat and accused him of trying to ride from Belmont to Wellsville without paying his fare; that he was injured considerably by being jerked around in the train; that he was sore across the back where he struck the car seat; that he felt the injury four or five weeks.
    At the close of the case the plaintiff’s counsel stated : “ I understand-the court to charge that if the plaintiff is entitled to recover, he is entitled to recover compensatory damages — his actual damages. I wish further that the jury may bo instructed that actual or compensatory damages include not only the actual injury to his person, money paid, loss of time, but, also, the jury may take into account the injury to his wounded feelings.”

    “ The Court — Yes, I charge that.”
    The defendant’s counsel then asked the court to charge that there was no evidence to show that the conductor acted maliciously or wantonly towards the plaintiff. The court declined so to charge, to which the defendant’s counsel excepted. The defendant’s counsel then asked the court to charge that there was no evidence justifying any verdict other than for actual damages. The court, in answer to this request, replied that depended upon the question of maliciousness on the part of conductor. The defendant’s counsel excepted.
    ■■ The court, at General Term, said: “ The question as to whether injury to the feelings may be taken into account in estimating compensatory damages has been very ably discussed in the brief of the learned counsel for the defendant, his argument being that they •cannot, unless such injury to the feelings resulted from bodily injuries. In Hamilton v. Third Avenue Railroad. Company (53 N. Y., 25), the learned judge delivering the opinion states that such injury to the feelings may be taken into account in determining the amount of compensation. But a decision of the question was not involved in that case.
    “ In the recent case of Quinn v. Long Island Railroad Company (34 Hun, 332; 20 N. Y. Wk. Dig., 358), the question ■seems to have been decided in favor of the plaintiff’s position. The judge delivering the opinion says: This precise ■question has not been decided in this State. In the case of Ransom v. New York and Erie Railroad (15 N. Y., 415), the Court of Appeals held that bodily pain and suffering of plaintiff from the injuries were proper subjects of compénsation, and in deciding this case cited with approval Segar v. The Town of Barkhamsted (22 Conn., 290), where the instruction to the jury was that they had the right to consider all the circumstances of dangers and peril attending the accident.
    “ ‘ The conclusion of the appellate court in that case was that the injury is not confined to his wounds and bruises upon his body, but ■extends to his mental suffering.’
    “But this question is not necessarily l’aised by the exception.
    “ The cases cited by the learned counsel for the defendant agree that whether there was mental anguish resulting from the injuries or not was a question for the jury, and if there was, plaintiff was entitled to be compensated for it. (Matteson v. N. Y. C. and H. R. R. R., 62 Barb., 364; affirmed 35 N. Y., 487.) In •this case the plaintiff’s testimony tended to show, that he received injuries. The charge excepted to is silent as to whether the injury to the feelings, which the jury were instructed they might take into account, were such as resulted from bodily injuries to the plaintiff, or from other' causes. If such wounded feelings were produced by the bodily injuries, then the jury could legitimately consider them on the question of compensation.
    “ It must be assumed that the court charged in that sense, in the absence of anything to show that a more extended meaning was intended. If the counsel for the defendant had asked the court to charge that wounded feelings could not be taken into consideration, unless they were produced by the bodily injury, and the court had refused that request, the question argued would have been presented.

      “ But a general exception to a charge so framed, so as to be proper in one sense, is not available. ' It must be made to appear affirmatively that it was erroneous. A failure to request the court to limit the application of the charge, makes the exception useless.” (Parsons v. Brown, 15 Barb., 590; Newman v. Cordell, 43 id., 448, 459; Bell v. McMaster, 16 N. Y. Wk. Dig., 470, 472; Booth v. Boston and Albany R. R. Co. 73 N. Y., 38; Distin v. Rose, 69 id., 122.)
    The judgment and order must be affirmed.

      Hr C. Sprague, for the appellant.

      Fro/nle Harding, for the respondent.
   Opinion by

Corlett, J.

Present — Barker, P. J., Bradley and Corlett, JJ.; Haight^ J., not sitting.

Judgment and order affirmed.


text:
    MEHETABEL G. CRAIN, Respondent, v. JOHN WRIGHT, Appellant.

      D&dse of real estate — when the devisee takes in fee simple — what delivery of a deed j is sufficient to pass title.

    Appeal from a judgment in favor of the plaintiff, entered upon a verdict rendered át the Niagara Circuit, and from an order denying a motion for new trial made upon the minutes of the justice before whom the action was tried.
    This action was brought to recover the possession of lands. On the 9th day of October, 1854, one John Wright died, seized of the lands in question, leaving a last will and testament, which has been duly admitted to probate, in and by which he devised certain property as follows : “ Unto my dear wife Anna I give and bequeath fifty acres of land off the north end of my farm, to have and to hold for her benefit and support; and I also give to my aforesaid wife Anna all my household furniture, beds and bedding. Unto my son, John Wright, Jr., I give and bequeath all the remainder of my property after paying the following legacies, respectively: ” [Then followed certain legacies.]
    The defendant, John Wright, Jr., entered into the possession of the farm, including the fifty acres devised to Anna, and still continues to occupy the same. Anna Wright, the widow, lived with him until her decease, December 27, 1873. On the 9th day of June, 1873, she executed two deeds, one conveying to the respondent the thirty acres described in the complaint, being part of the fifty acres willed to her by her husband, and the other conveying the remaining twenty acres to her son Francis Wright. The deeds were acknowledged, and after her death recorded in the office of the clerk of the county.
    The court at General Term said: “ The first question which it becomes necessary to determine is, whether or not Anna Wright took a fee to the lands in question under the will of her husband. It is contended on the part of the appellant that' the words, ‘ to have and to hold for her benefit and support,’ limit the devise to an estate for life. The question thus presented is not free from difficulty. The statute provides that the term ‘ heirs,’ or other words of inheritance,, shall not be requisite to create or convey an estate in fee, amd every grant or devise of real estate, or any interest therein, hereafter to be executed, shall pass all the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of such grant.” (R. S., tit. 5, part 2, chap. 1, § 1 [1R. S., 748].) The intent to pass a less estate than a fee, does not appear by express terms, so that the only question is whether or not such an intent is necessarily implied from the words used. The first clause of the sentence is • absolute in terms: “ I give and bequeath] fifty acres of land off the north end of my farm.” Then follow the words, “ to have and to hold for her benefit and support.” She is to have and to hold both for her benefit and support. It is true that her death would terminate her support, and it could not be held for that purpose afterwards, and it is quite possible that her right to support would not descend to her heirs. The word “ benefit,” however, has a broader and more comprehensive meaning. It embraces every use to which she may demote the land, and we are inclined to the opinion that it is ■sufficiently comprehensive to give her a fee. This conclusion appears to be borne out by the case of Campbell v. Beaumont (91 N. Y., 464). The will in that case provided as follows : “I leave to my beloved wife Mary Ann, all m3' property * * * to be enjoyed by her for her sole use and benefit, and in case of her ■decease, the ■ same, or such portion as may remain thereof, it is my will and desire that the same shall be received and enjoyed by her .son Charles.’ It was held in that case that she took a fee, and that the provision that so much as may remain after her decease be received by Charles, was not sufficient to show an intent on the part of the testator to limit the estate given to the wife.
    “Again, the will gives to John Wright, Jr., call the remainder of my property,’ etc. It is quite apparent that the testator intended by his will to dispose of his entire property, both real and personal. The words ‘ the remainder of my property,’ undoubtedly referred to that which remained after taking out the devise to the wife. The word £ property’ covers both real and personal. No allusion is made to an estate in remainder, and if such an estate was created by the will, we should then be of the opinion that such estate had not been disposed of, so that on the termination of the life estate the land would go to the testator’s heirs-at-law. This result does not appear to us to have been the intention of the testator. He undoubtedly intended to dispose of his entire estate, both real and personal.
    “ It is contended, in the second place, that the deed from Anna Wright to the plaintiff was never delivered so as to vest the title in the plaintiff. It appeared upon the trial that after Anna Wright had executed the deeds, that the3' were left lying upon the table at the plaintiff’s house; that Anna Wright then took the deeds from the table and handed them to the plaintiff’s husband, saying that she wanted he should take care of the deeds, and she didn’t want them exposed during her lifetime, for the reason that her first will had got out and had made a fuss, and on that account she didn’t want these deeds to get out and make another fuss; that she wanted no one to know it except those who were obliged to know it. She said further, after her death, she wanted Mehetabel (the plaintiff) to have hers and Francis his. It appeared further that the plaintiff’s husband took the deeds to the office of Judge Holmes and left them in his custody and keeping; that after the death of Mrs. Wright, Francis’ deed was sent to him and the plaintiff’s deed was recorded in the office of the clerk of the county. The court submitted to the jury the question as to whether or not it was the intention of Mrs. Wright, at the time that she handed the deeds to the plaintiff’s husband, to have them take effect as a present disposition of the property, or to operate as a testamentary disposition •after her death. The jury found in favor of the plaintiff, and it appears to ns that under the evidence, such finding is conclusive.
    “The intention -of the party at the time of the delivery of the deed was doubtless a question for the jury. The rule is correctly stated in the case of Hathaway v. Payne (34 N. Y., 92-105). It is there stated that when a deed is executed and not immediately delivered to the grantee, but handed to a stranger to be delivered to the grantee at a future time, whether it is to be considered as a deed of the grantor presently or as an escrow, depends upon the intent of the parties to be gathered from the words used and the purposes expressed; that where the future delivery is to depend upon the performance of some condition, it will be deemed an escrow; where it is merely to wait the lapse of time or the happening of some contingency and not the performance of a condition, it will be deemed the grantor’s deed presently.
    “In the case under consideration no condition was attached to the delivery of the deed. The only request made was that it should not be exposed during her lifetime.
    “ In the ease of Tooley v. Dibble (2 Hill, 641), a father executed a deed conveying to his son a farm, and placed it in the hands of a third person, with instructions to deliver it to the son after the father’s death. After the father died the deed was delivered to the son. It was held that the title of the son took effect at the time it was delivered to the third person for him, and that this deed, before the father’s death, passed the title.
    “ In the case of Ruggles v. Lawson (13 Johns., 285), a father executed a deed to his two sons, and delivered.it to a third person, with instructions that it be delivered to his sons in case he should die without making a will. He subsequently died without a will and the deed was delivered tp his sons. It was held that this was a valid deed and took effect from the time of its first delivery.” (See, also, Hunter v. Hunter, 17 Barb., 25; Belden v. Carter, 4 Day, 66; Wheelwright v. Wheelwright, 2 Mass., 447.) * * *

      George C. Greene, for the appellant.

      jBichard Crowley, for the respondent.
   Opinion by

Haight, J.;

Barker, P. J., and Bradlev, J., concurred.

Judgment and order affirmed.


author: Hardin, P. J.:

text:
    THE REMINGTON PAPER COMPANY, Appellant, v. ANNA M. O’DOUGHERTY and DENNIS O’BRIEN, Individually and as Administrators, etc., of PATRICK O’DOUGHERTY, Respondents.

      Action to set aside fraudulent conveyances — the burden of proving fraud rests on the plaintiff— when a set-off of judgments will root be ordered.

    This action was brought by the plaintiff, a judgment creditor of the defendants Patrick and Anna O’Dougherty, to set aside a deed absolute in form, but in fact a mortgage, given by them to the defendant O’Brien, April 27, 1877, on the ground that the conveyance was fraudulent and void, aDd also to set aside an assignment of a mortgage upon the property from the defendant Anna to O’Brien, which was made at the same time. O’Brien, at the time of receiving the deed and mortgage, gave to the grantors a written instrument reciting that the grantors were indebted to him in a large sum for legal services already rendered, and that other actions were still pending, and agreeing to act as their attorney in the said litigations, and that after their termination he would reconvey the property and mortgage, upon the pay. ment of such sum as would justly compensate him for his past and future services. This instrument was not acknowledged or recorded.

      Meld, that the conveyance and assignment were valid securities in the hands of O’Brien, and that he was entitled to hold them to indemnify himself for his services rendered and to be rendered.
    That the burden of establishing a fraudulent intent upon the part of O’Brien rested upon the plaintiff. .
    That the fact that the transfer covered substantially all the property of the debtors did not conclusively establish its fraudulent character.
    On June 13, 1877, O’Brien obtained a judgment, by.confession, against Patrick ■ O’Dougherty for $1,500, for his services as attorney and counselor.

      Meld, that in determining in this action the amount for which O’Brien was entitled to claim a lien upon the property so transferred to him, the value of his services was not conclusively limited to the amount of this judgment.
    At the time of the assignment of the mortgage to O’Brien an action to foreclose the same was being conducted by him, in Anna O’Dougherty’s name, in which action a judgment in her favor was subsequently entered, which was affirmed by the General Term and the Court of Appeals on 'appeals taken thereto by the plaintiff.

      Meld, that the judgment against the present plaintiff for costs, recovered in that action, would not be set off on its application against the judgments it had recovered against the O’Doughertys.
    In a judgment creditor’s action, formerly brought by the plaintiff against the O’Doughertys, the validity of the mortgage transferred to O’Brien was affirmed. In that action two judgments for costs were, after the assignment of the mortgage to O’Brien, recovered by the O’Doughertys against the plaintiff; there was an understanding between the O’Doughertys and O’Brien that the latter should have all costs accruing in such litigation.

      Meld, that these judgments could not be set off against the judgment recovered by the plaintiff against the O’Doughertys.
    Appeal from a judgment, entered in Jefferson county upon the report of a referee, refusing to set off judgments between the defendants O’Doughertys and the plaintiff, and dismissing the complaint in this action as a creditor’s bill for the collection of plaintiff’s judgment out of certain property transferred by the O’Doughertys to the defendant Dennis O’Brien ; and finding that these transfers were not fraudulent in fact, and also awarding a foreclosure of the deed taken by the defendant O’Brien, which was declared to be a mortgage security, and also providing for the distribution of any surplus moneys which might arise from such foreclosure and sale.
    In January, 1876, the plaintiff commenced an action in this court against Anna M. O’Dougherty and Patrick O’Dougherty to set aside certain conveyances and to collect certain judgments held by plaintiff. The defendants defended the action, O’Brien being their attorney. Prior to that time O’Brien had performed a large amount of professional services for the O’Doughertys, and had only been paid forty dollars on account of the same.
    On the 24th day of January, 1876, the day the answer in the creditor’s bill above-mentioned was served, Patrick and Anna M. O’Dougherty entered into an agreement in writing with O’Brien, whereby they agreed to pay him a fair and reasonable compensation for his services already performed,'and which were to be performed, in said-creditor’s suit. O’Brien thereupon defended said creditor’s suit and also brought an action to foreclose a mortgage held by-Anna M., -which the creditor’s bill sought to set aside and cancel as a fraudulent lien.
    The referee decided in favor of the plaintiff in the creditor’s suit, except as to a certain mortgage given to Anna M. O’Dougherty,whichhe held was a good and valid security, and in the action to foreclose-said mortgage found there was $9,448 due upon it, and directed, a foreclosure of the same. Judgment was entered in the creditor’s-suit against the O’Doughertys on the 23d day of May, 1877, for $418.46 costs. From this judgment the O’Doughertys, by O’Brien, their attorney, appealed to the General Term, where the same was modified and affirmed and judgment against the defendants for $176.69 costs entered in Jefferson county clerk’s office February 5, 1879. The defendants then appealed to the Court of Appeals, where the judgment was modified and affirmed, without costs. The plaintiff appealed from so much of the judgment in the creditor’s suit as upheld the mortgage to Anna M. O’Dougherty. The judgment was affirmed at General Term and. judgment for $115.69 costs against plaintiff entered' on the 12th day of February, 1879. The plaintiff then appealed from said judgment of affirmance to the Court of Appeals, where it was again affirmed and judgment for $432.95 costs entered against plaintiff December 2, 1880. The plaintiff also appealed from the decree adjudging a foreclosure of the mortgage to Anna M. O’Dougherty. The judgment was affirmed at General Term and judgment for $111.29 costs entered against plaintiff February 12,1879. The plaintiff then appealed to the Court of Appeals, where the judgment was-again affirmed and judgment for $146.95 costs entered against plaintiff December 2,1880. O’Brien was the attorney for and conducted! the above suits and appeals for the O’Doughertys.
    Before any judgment was rendered in the creditor’s suit, and om the 25th day of April, 1877, Patrick and Anna M. O’Dougherty executed to said O’Brien deeds of certain property, and Anna M-* O’Dougherty also assigned to him the mortgage held by her together with the cause of action and all rights she might have under any decree to be entered in the same and all costs and. damages that might be recovered in the same. O’Brien at the same time gave back to the O’Doughertys an agreement in writing, reciting that said transfers were held as security for the services he had already performed or might render in the future, and agreed to prosecute and defend said suits and prosecute and defend any appeals therefrom which might be necessary, and also agreed, after the termination of the litigation, to reconvey on payment of what was justly due for his services.
    On the 23d day of March, 1881, judgments were entered against Anna M. O’Dougherty for forty-six dollars, which were afterwards assigned to the plaintiff. The plaintiff thereafter commenced this action against O’Brien and Patrick and Anna M. O’Dougherty, April 25, 1881, for the purpose of procuring a decree adjudging the transfers and conveyances to O’Brien fraudulent and void, and for a decree setting off the judgments recovered by the O’Doughertys against those recovered by plaintiff against them, and procured an injunction restraining the collection of said executions against it during the pendency of the action. Patrick O’Dougherty died after tlm commencement of the suit, and O’Brien and Anna M. O’Dougherty were appointed his administrators and duly substituted as defendants in his place.
    It was agreed during the trial, by all the parties, that if the referee found the property conveyed to O’Brien was a valid security in his hands, there might be inserted in the report such provisions as were necessary to enable him to collect the amount due him out of the property. The referee accordingly ordered the pleadings amended so as to contain all necessary averments to authorize a sale of said property, and directed a foreclosure thereof.

      Dorwin ds Brown, for the anpellant.

      O'Brien do Emerson and James A. Ward, for the respondents.
   Hardin, P. J.:

Appellant contends that the referee erred in finding that the trans fer to O’Brien was made in good faith and without intent to defraud the plaintiff, and insists that the transfers were a fraud upon their face, and that the instruments that were given in respect thereto are insufficient and unsatisfactory to establish their “ Iona fidesP In support of this contention, the appellant insists that the deed of April 25, 1877, executed by Patrick and Anna M. O’Dougherty to ■defendant O’Brien, comprised a consideration of $5,000, and was absolute in terms, and that the defeasance executed by O’Brien on that day was- not acknowledged or recorded, and that the bond and mortgage given by Patrick O’Dougherty and by him transferred to Anna O’Dougherty, and by her assigned to the defendant 0’B,rien, April 27, 1877, was for some $9,000, and that thereafter, on May 9, 1877, O’Brien took a chattle mortgage from Patrick and Anna M. O’Dougherty to secure $500 as services as attorney and counselor, and that Anna O’Dougherty recovered a judgment against Patrick O’Dougherty, February 15, 1876, for $1,437.40, which was assigned to O’Brien, and that O’Brien obtained a judgment against Patrick O’Dougherty June 13, 1877, by confession, for $1,500 for his services as attorney and counselor, and that these transfers and •conveyances are indicative of fraud and subject the transactions between the attorney and the clients to suspicion and criticism such as would obtain between near relatives, and that the terms of the transfers being apparently absolute on their face, give. rise to an inference of frand.

It appears in the evidence that when the transfers were made the O’Dougherty’s had been carrying on litigations for over ten years, having manifold suits in the various courts of this State, and that 'O’Brien had been counsel in the several litigations ; many of the ■litigations were already closed and some of them 'remained in the courts, and it was evident that there would be further litigations had in the suits then pending, and it is suggested that the securities so made to O’Brien were with a fraudulent intent and for the purpose of heading off creditors of the O’Dougherty’s, and especially this plaintiff. It is also suggested that there was no definite ascertainment of the services performed, or to be performed, by O’Brien. It is also suggested that Patrick O’Dougherty died after the commencement of this action, and Dennis O’Brien and Anna M. O’ Dougherty were substituted as administrators of his estate, and put in no answer to this action.

It is also suggested that James O’Dougherty testified to admissions of Patrick O’Dougherty in respect to the transfer of some of the property, tending to show that the transfers made to O’Brien were fraudulent in fact.

Upon the other side of the question it is suggested that.the testimony of James O’Dougherty was only competent against the defendant or the estate of Patrick O’Dougherty, and that his declarations could not bind the other defendant. We think it is clear that the declarations of Patrick O’Dougherty were not controlling against Anna O’Dougherty, nor were they competent evidence against the defendant O’Brien. It also appears in the evidence that in January, 1876, the O’Doughertys executed an agreement which is important upon the question now under consideration. That agreement, after specifying seven litigations,, continues as follows, viz. :

Whereas, Dennis O’Brien has been retained by and has acted as attorney and counselor in each and every of the above actions for Patrick O’Dougherty or Anna M. O’Dougherty, and has been paid thereon the sum of forty dollars only; now, therefore, we, said Patrick and Anna M. O’Dougherty, do hereby covenant and agree with the said O’Brien, that we will pay to him, for his services in the cases above named, a fair and reasonable compensation.

“ Signed and sealed.

“PATRICK O’DOUGHERTY, [l. s.]

“ANNA M. O’DOUGHERTY, [l. s.] ”

It appeared from the evidence that the litigations had increased so that the services of O’Brien had been considerably extended prior to April, 1877. In that month the transfers, to which we have already alluded, were executed to O’Brien. It is very evident that there was no intent that they should be absolute conveyances and transfers. Such fact is established in the testimony of Anna O’Dougherty, and also in the testimony of O’Brien.

In addition to the positive testimony of O’Brien on that subject; the defeasance produced in writing, and read in evidence, bearing date April 27, 1877, between O’Brien and Anna M. and Patrick O’Dougherty, states, among other things, as follows, viz. :

Whereas, Said AnnaM. and Patrick are indebted to said O’Brien in a large sum for legal services and expenses ; and whereas, several suits are now pending in the courts of this State'against them, and which must be litigated at the General Term, and perhaps in the Court of Appeals; now, therefore, it is hereby agreed that the said O’Brien shall and will act as attorney for said Anna M. and Patrick in said suits, and prosecute and defend the same and make appeals therein to the Court of Appeals, if necessary, and do all other acts and things that may be necessary in and about said actions; and to pay said O’Brien for all services heretofore rendered, ■and to secure payment for all services that may be hereafter rendered ; said Anna M. and Patrick have this day conveyed to O’ Brien by deed certain lands described in said deed, and said Anna M. has ■also transferred to O’Brien a mortgage and decree and suit for the foreclosure thereof, being a mortgage made by said Patrick to John O’Dougherty. Now, therefore, I hereby agree that after said litigation is terminated, I will convey to Anna M. the lands thus deeded to me and the mortgage thus transferred upon payment to me of such sum as shall justly compensate me for my future services in said suits, and also in case she shall refund to me the amount now my due, and for payment of which said conveyance and transfer is made, with interest thereon. The deed by me to be without warranty, except as to my own acts.

“ Witness my hand and seal the day and year first above written.

“(Signed.) D. O’BBIEN.”

We are of the opinion that upon the evidence before the referee he was warranted in finding as he did, that the transfers and conveyances were made for the purpose of securing O’Brien for his services rendered and to be rendered, and that the same was taken •and accepted by the said O’Brien without any fraudulent intent. It was entirely competent to receive parol evidence in respect to the intent of the parties in making and accepting the conveyances and transfers. (Horn v. Keteltas, 46 N. Y., 605.) It was, therefore, entirely competent to receive evidence by parol that the deed was intended as a mortgage, and when that fact appeared in connection with the defeasance, the deed and defeasance were to be ■construed together as one instrument. (Odell v. Montross, 68 N. Y., 499; Meehan v. Forrester, 52 id., 277; Bainbridge v. Richmond, 17 Hun, 291.) After a careful consideration of all the evidence bearing upon the question of fraud, we are of the opinion that the referee’s report in that regard should not be overturned. We are therefore of the opinion that the conveyances and assignments made by the O’Doughertys to O’Brien were valid securities in his hands, and that he was entitled to hold them to indemnify himself for services rendered and «to be rendered.

The burden of establishing fraudulent intent upon the part of O’Brien was upon the plaintiff, and we think the evidence sufficiently sustained the conclusion reached by the referee. (Woodworth v. Sweet, 51 N. Y., 8; Dudley v. Scranton, 57 id., 424.) It was-incumbent upon the plaintiff to establish a fraudulent intent upon the part of O’Brien, or that he participated in, or knowingly acted with, any fraudulent intent which the O’Doughertys may have had in making the transfers. (Hall v. Arnold, 15 Barb., 599; Carpenter v. Muren, 42 id., 300; Ruhl v. Phillips, 48 N. Y., 125; Jaeger v. Kelley, 52 id., 214; Dudley v. Danforth, 61 id., 626; Parker v. Conner, 93 id., 118.) It was contended by the plaintiff because the transfers covered substantially all the property of the O’Doughertys, therefore they were to be regarded as fraudulent. While such fact may be a circumstance, with others leading towards the-finding of such an intent, it is not controlling or conclusive. A debtor in failing circumstances and an insolvent debtor, may legally prefer one creditor to another, and where he does so by a transaction that is free from fraud, that transaction will be upheld when challenged by other creditors. (Auburn Exchange Bank v. Fitch, 48 Barb., 344; Bedell v. Chase, 34 N. Y., 386; Murphy v. Briggs, 89 Id., 446; Knapp v. McGowan, 96 id., 76.) We are of the opinion that the securities were available to O’Brien for future services, for advances, inasmuch as, contemporaneous with the execution of them, he agreed to make such advances and render such services. (Robinson v. Williams, 22 N. Y., 380; Ackerman v. Hunsicker, 85 id., 43; affirming S. C., 21 Hun, 53; Simons v. First Nat. Bank, 93 N. Y., 269.)

It is insisted by the appellant that the judgment for $1,500, confessed by Patrick O’Dougherty to O’Brien, conclusively stated the limit of O’Brien’s services in behalf of Patrick O’Dougherty, and that because it was against him individually, it cut off the right of O’Brien to recover for services performed for Patrick and Anna "H. O’Dougherty jointly, or in virtue of their joint agreement to pay for such services of O’Brien.

‘While wc regard the confession of judgment as some evidence of the extent of the liability of Patrick O’Dougherty, we do not consider tlie same to be conclusive evidence as between the present plaintiff and O’Brien; nor do we think the judgment is sufficient to cut off, in equity, the right of O’Brien as against the appellant, or the right to enforce securities in his hands intended to cover services rendered prior and subsequently to the confession of judgment, either for Patrick O’Dougherty or Anna O’Dougherty, or for them jointly.

Section 1278 of the Code of Civil Procedure provides that a judgment by a confession of one debtor “ is not a bar to an action against all the joint debtors upon the same demand.” (Orleans Co. National Bank v. Spencer, 19 Hun, 579, opinion of Hardin, J.)

It must he borne in mind that O’Brien is seeking in a court of equity to maintain his right to enforce securities given to him for services rendered prior to the delivery of them and subsequently. His equitable rights in the premises were not cut off by the confession yf judgment. (O'Dougherty v. Remington Paper Co., 81 N. Y., 496; Millard v. Missouri, K. and T. R. Co., 20 Hun, 191.)

Second. It appears that after the assignment of the John O’Dougherty mortgage to O’Brien, in a suit to foreclose the same, conducted in Anna O’Dougherty’s name, two judgments for costs were recovered against the present plaintiff; one a judgment of affirmance in the General Term, and the other a judgment of affirmance in the Court of Appeals. It is quite apparent that Mr. O’Brien conducted the litigations respectively in those judgments, and, as attorney, would be entitled to a lien upon the judgments under the old rule giving the attorney a lien upon judgments for costs, as well as under section 66 of the Code of Civil Procedure. (Ennis v. Curry, 22 Hun, 584.)

Having taken an assignment of the bond and mortgage involved in the action, he also held the legal title to the judgments recovered in the action to foreclose the mortgage. It may be said that the costs involved in the judgments, and the judgment sustaining the decree and foreclosure, were incidents attaching to and following the legal title to the bond and mortgage.

We are therefore of the opinion that the plaintiff was not entitled to have an offset against these two judgments. (Ennis v. Curry, 22 Hun, 584.)

Third. There were two other judgments recovered against the plaintiff in the name of Patrick and Anna M. O’Dougherty, in the creditors’ suit which was brought by the plaintiff against the O’Doughertys. As between Patrick and Anna M. O’Dougherty it would seem, by inquiring into the circumstances leading up to the recovery of the two judgments for costs, that the judgments equitably were the property of Anna M. O’Dougherty; however, that circumstance, in the view we take of the case, is not very important or controlling. It seems by the bond that before the recovery of the last two judgments named, the bond and mortgage was assigned by Anna M. O’Dougherty to the defendant O’Brien, there was proof sufficient to warrant a finding that there was an agreement between her and O’Brien that he should have all the costs that should accrue in any of the litigations made as early as April, 1877.

■ O’Brien might have been substituted as a party in the place of his assignor (Code of Civil Pro., § 756), and he would have been entitled to have prosecuted the appeal, and possibly would have been liable for costs, had they been awarded against the nominal party after he had taken an assignment of the bond and mortgage. (Code of Civil Pro., § 1296; Hobart v. Hobart, 23 Hun, 484.) "We are of the opinion that the plaintiff was not entitled to have a set-off ordered against the judgments. (Stilwell v. Carpenter, 59 N. Y., 414; S. C. [modified], 2 Abb. N. C., 238; Ennis v. Curry, supra; Munger v. Albany City Bank, 85 N. Y., 580; Perry v. Chester, 53 id., 240; Hoyt v. Godfrey, 3 Civil Pro. R., 118.)

It follows from the views already expressed that the learned referee was right in refusing the decree to set off the plaintiff’s judgments against the judgments mentioned, in the complaint

Fourth. During the progress of the trial it was stipulated that the answer of the defendant might be amended so as to ask for a foreclosure of the mortgage and the enforcement of O’Brien’s lien upon the premises described in the mortgage ; the amendment was allowed, and the referee’s report and the judgment hereby provide for the foreclosure of the mortgage executed to the defendant O’Brien. During the progress of the trial it became important to ascertain the extent of O’Brien’s claim, and upon a conflict of evidence offered in support of it and of evidence challenging it, the referee reached the conclusion that O’Brien was entitled to hold the deed or mortgage and the assigned mortgage or security •held by him, unless he had received therefrom or had been paid the sum of $4,793.93-and interest to the date of the report, amounting to $963.08, making a total of $5,367.01.

From the conflicting evidence before us we are not able to discover what items, or to what extent certain items, were allowed by the referee to reach the conclusion that there was $4,793.93 due to O’Brien. While we are not prepared to say that the referee’s findings are against the weight of evidence in respect to the amount due, we are not satisfied that he charged against O’Brien’s services the several amounts due or to be recovered upon the four judgments already referred to. There is no finding of fact upon that subject by the referee. We assume these judgments had not been collected of the plaintiff, and that they are collectible, and that the defendant O’Brien has, or will receive, the amount due thereon, ultimately.

We think the referee should have deducted from the sum which he found accrued in favor of O’Brien the amount of these judgments, with costs, and ascertained the balance remaining unpaid to O’Brien. We are also inclined to think, that the judgment in this case, directed by the referee, should have provided for the enforcement by O’Brien of the .John O’Dougherty mortgage, prior to a sale upon the deed mortgage. Equitably, as he holds two securities for the payment of the same debt, he should be required to enforce •the bond and mortgage before making the sale of the real estate mentioned in the deed or mortgage of April, 1877.

In that respect we are inclined to think that the judgment should be modified, if it should remain to be enforced.

We have come to the conclusion to reverse so much of the judgment as awards to O’Brien $4,397.93 and interest thereon, and to order a new trial, with costs to abide the event, unless the defendant shall stipulate to deduct from such amount found due to O’Brien the amount of the four several judgments hereinbefore referred to, and also stipulate to enforce the bond and mortgage before any sale shall take place, upon the decree awarding a foreclosure of the deed mortgage, in which case the judgment, as so modified, shall be affirmed, without costs to either party of this appeal.

Boartcman and Eollett, JJ., concurred.

So much of the judgment as awards defendant O’Brien $4,397.93 and interest thereon reversed, and a new trial ordered, with costs to abide the event, unless the defendant O’Brien shall stipulate to deduct from such amount the amount of the four several judgments referred to in the opinion, and also stipulate to enforce the bond and mortgage assigned to him before any sale shall take place upon the decree awarding a foreclosure in favor of defendant O’Brien in ease the stipulations are given the judgment, as so modified,, shall be affirmed, without costs to either party of this appeal.


author: ELakdin, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. WILLIAM MENKEN, Appellant.

      Pleadings in criminal case — how affected by the Code of Criminal Procedwre, secsi. 273, 375, 323 —form of indictment — motion in arrest of judgment — when a ver* diet will not be set aside because of the misconduct of the jurors.

    Sections 273 and 275 of the Code of Criminal Procedure, abolishing the existing forms of pleadings in criminal cases, and providing that thereafter the form and sufficiency of such pleadings should be determined by the rules therein prescribed, was only intended to enable the pleader to set forth the accusation against the prisoner plainly and precisely, without unnecessary repetition. They were not intended to limit the indictment to a single statement, in one count, of the offense charged, or to deprive the people of the right to state the-'acts constituting the supposed crime in different counts, in language appropriate to meet such circumstances and features of the event as should be developed by the evidence given upon the trial.

      People v. Pugg (98 H. Y., 537) followed.
    Where there is one good count in an indictment, and evidence to support it, a conviction will be sustained, although other counts contained in the indictment are defective.
    On December 9, 1884, the defendant moved in arrest of judgment, upon the ground that “Lieutenant-Governor Hill, who, it is known, is to be governor of the State of Hew York on the first day of January next, and to whom any application of pardon for defendant must be made, appeared as counsel for the People in this case.”

      Held, that the motion was properly denied.
    That there was no provision in the Constitution or statutes of this State which prevented the lieutenant-governor from aiding a district attorney in the prosecution of a capital case.

      That as the ground upon which the motion was made was not specified in section 323 of the Code of Criminal Procedure, and as the enumeration there of the grounds upon which such a motion might be made was probably intended to exclude its being made upon any other ground, the denial of the motion was, for that reason, proper.
    The verdict of a jury in a criminal case will not be set aside for irregular or improper conduct upon the part of the jurors, unless it be shown that the defendant was prejudiced thereby.
    Appeal from a verdict and conviction of murder in the first degree, and the judgment entered thereon.
    On the evening of the 6th of January, 1884, while some lads were hunting for rabbits in the western portion of Woodlawn cemetery, in the town of Elmira, in the county of Chemung, and they were near the western boundary of that cemetery, one of the' lads, on looking through a board fence, saw an object under the bridge in what is known as “ Heller’s creek,” which attracted his attention ; upon a closer investigation it was discovered to be the body of Katie Bredehoft. Intelligence of the discovery was communicated to the proper officials, and prompt efforts were made to discover the identity of the remains and the circumstances preceding and attending her death. The investigation led to the arrest of the defendant in Flatbush, and the discovery in his possession of articles of jewelry and personal property of the deceased. The defendant was indicted, charged with having feloniously caused the death of Katie Bredehoft, and a trial was had in the Chemung Cyer and Terminer in April, 1884. During the trial an order was made for the-jury to visit the place where the remains were discovered, and the jury did so, without the presence of the prisoner or his counsel-It subsequently turned out that there was on the left side of the bridge, and standing on a line with the planking which extended out over the side of the bridge, a small post between two and three feet in height, and that between the time when the order was made for the jury to visit the place and the time when they in fact visited it, that post was, by some person or persons unknown, removed and the hole thereby occasioned filled up. After the-conviction of the defendant a motion was made for a new trial,, based upon the irregularity already referred to, and it was granted by the judge presiding at the Oyer and Terminer where the conviction took place.

      Subsequently the venue of the action was changed from the county of Chemung to the county of Broome, and a second trial was had in the month of December, 1884, at Binghamton, which resulted in a conviction of the defendant of the crime of murder in the first degree. After the rendition of that verdict a motion in arrest of judgment was made and denied, and a motion to set aside the verdict for alleged irregularities of the jury was made upon affidavits, and opposed by affidavits tending to explain and overcome the affidavits used in behalf of the motion. That motion was also denied, and the papers used in connection therewith have been, by an order of this court, annexed to the judgment-roll. January 15, 1885, the defendant served a notice of appeal to this court “ from the verdict and conviction of murder in the first degree, and the judgment and sentence in this action, by which sentence said defendant is condemned to be hung on. the 1st day of January, 1885, and which verdict and conviction was rendered and had on the 5th day of December, 1884, and which judgment and sentence was rendered and pronounced on the 9th day of December, 1884.” No bill of exceptions has been settled and signed as authorized by •sections 456 and 461 inclusive of the Code of Criminal Procedure, and no printed case was brought before this court. The appeal was brought on for argument upon the judgment record and copies of the affidavits used upon the motion for a new trial.

      Gabriel L. Smith, for the appellant.

      John B. Stamchjield, district attorney, for the People.
   ELakdin, P. J.:

By an inspection of the record we find that the indictment against the defendant contained nine counts. In the Oyer and Terminer, held in April, 1884, the defendant interposed a demurrer to the indictment, and the people made answer to that demurrer, and thereupon an argument was had before the court, and the demurrer was overruled. In the-statement of the grounds of demurrer found in the record, we find the following language used by the defendant, viz.: “He demurs to said indictment as a whole, for that the same does not conform substantially to the requirements of sections 275 .and 276 of chapter 442 of the Laws of 1881, entitled an act to establish a Code' of Criminal Procedure and the several amendments thereto ; and among other reasons why the same did not conform to-the said sections, this defendant alleged that said indictment did not contain a plain and concise statement of the acts constituting the crime charged in the indictment without unnecessary repetition.

" 2. He demurs to that portion of the indictment which is written before the second count, and which is supposed to be the first, count, for that the same does not conform substantially to the requirements of sections 275 and 276 of the Code of Criminal Procedure of the State of New York:

"First. That it does not contain a plain and concise statement of the acts constituting murder in the first degree without unnecessary repetition.

"Second. That it does not allege that the acts charged against the defendant were committed with a design to effect death.

Third. That it does not allege that the said defendant, her the said Katie Brcdehoft, willfully and feloniously did kill and murder.

"Fourth. That it does not contain a plain and concise statement of the acts of the defendant which it alleged constituted the crime of murder in the first degree committed by him.

"Fifth. That there is in said count much unnecessary repetition.

"Sixth. That the acts charged in the said count to have been committed by said defendant do not constitute the crime of murder in the first degree.”

He also stated substantially the same grounds of objection or demurrer to the second, third, fourth, fifth, eighth and ninth counts, and then follows in the indictment a statement, as follows, viz.: “ Said defendant alleges in support of each and every hereinbefore set forth demurrers, that said indictment and each count thereof sets forth much immaterial matter and many immaterial allegations, which are improper and unlawful to set forth in said indictment, and which is wrongfully and unlawfully set forth in said indictment to. the great hurt and prejudice of said defendant, and that there is much unnecessary repetition contained in said indictment and in each count thereof, which is improperly and wrongfully set forth therein to the great hurt and prejudice of said defendant, and that said indictment contained many unnecessary counts, which are unlawfully and wrongfully set forth in said indictment to the great prejudice of said defendant; therefore, said defendant prays judgment of this court that said demurrer and each thereof be allowed.”

In the answer which was interposed by the people to the demurrer it was alleged, viz.:

First. That the facts therein alleged are not true.

Second. That if true they are no grounds for the demurrer and constitute no defense to the indictment.

The record further stated that after hearing defendant’s counsel in support of said demurrer, and the district attorney in opposition thereto, it was ordered by the court that the demurrer be disallowed and the defendant allowed to plead to the indictment, and he thereupon interposed the plea of “not guilty.” It is now insisted by the learned counsel for the defendant that an error was committed in overruling the demurrer.

Section 273 of the Code of Criminal Procedure abolished “ all the forms of pleading in criminal actions ” existing prior to its adoption, and it prescribed that “ hereafter the forms of pleading and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this Code.”

Section 275 of the Code of Criminal Procedure is as follows, viz.: “ The indictment must contain: 1. The title of the action, specifying the name of the court to which the indictment is presented and the names of the parties. 2. A plain, and concise statement of the act constituting the crime, without unnecessary repetition.”

Section 276 provides, viz.: “The indictment should be signed by the district attorney, and may be substantially in the follow-' ing form: ” Then following this in that section is á skeleton of an indictment with various blanks in respect to the formal parts of the indictment, and in brackets are found these words, viz.: [“ Here insert the name of the crime,” etc.]

It is to be observed that in none of the statutory regulations relating to an indictment, is there an inhibition against using several counts, or against varying the language in different counts to meet any aspect of the evidence which may be presented tending to support the general charge against the defendant.

A general knowledge of the prolix and elaborate indictments heretofore used under the common law, which is the foundation of our criminal practice in this State, as well as a recall of the modes that were in use prior to the adoption of the Code of Criminal Procedure, legitimately lead to the supposition that the object of the legislature in adopting that section, relating to pleadings in criminal actions, to which we have already referred, wras to enable the pleader, “in plain and concise statements,” to set forth the accusations against the prisoner, without any unnecessary repetition.

From a reading of that section we are not induced to believe that it was the intention of the legislature to deprive the people of the right to state the acts constituting the supposed crime in different counts, in language appropriate to meet such circumstances and features of the event, as should be developed in the full and careful investigation which takes place in the progress of a trial. Nor can we suppose that it was the intention of the legislature to limit the indictment to a single statement in one count of the offense charged against the accused.

Evidently it was the intention of the legislature to prescribe a more liberal and flexible system of pleadings in criminal cases than that which obtained under the common law, or which was in vogue in this State prior to the adoption of the Code of Criminal Procedure.

In support of this view section 684 must be borne in mind. It is as follows, viz.: “Neither a departure from the form or mode prescribed by this Code in respect to any pleadings or proceedings, nor an error or mistake therein renders it invalid, unless it have actually prejudiced the defendant or tend to his prejudice in respect to a substantial right.”

The position taken by the learned counsel for the defendant in this case now in hand, we think, is fully met and answered by the opinion of the Court of Appeals, delivered in April, in the case of The People v. Rugg (98 N. Y., 537). We, therefore, make the following quotation from the opinion in that case, viz.: “ Upon the trial

the defendant interposed a demurrer to the indictment against him upon various grounds, which the court overruled and the defendant excepted to the decision. It is urged that this was erroneous for the reasons which will presently be considered. It is said that the indictment was drawn in defiance of sections 273 and 275 of the Code of Criminal Procedure.”

“ By section 273 all forms of pleading in criminal actions heretofore existing are abolished and the forms provided by the Code substituted in their place. Section 275 provides for the form of the indictment and declares what it shall contain, and, among other things, a plain and concise statement of the act constituting the crime without unnecessary repetition. The claim that the provisions of this section have been violated cannot be upheld, nor can it be said that the phraseology employed in the indictment is so uncertain and difficult as not to be comprehended upon a perusal of the same, or that it does not intelligibly and fairly present, in language sufficiently plain and concise, the real character of the offense intended to be charged against the defendant. We are unable to perceive any such-deviation from the rule prescribed by the statute as would justify the conclusion that the indictment is demurrable on that account. The indictment contains four different counts, charging the commission of the offense in somewhat different forms. While to some extent it follows the old form prior to the enactment of the Code of Criminal Procedure, it cannot be said that it contains useless and unnecessary words which violate its provisions. In view of the circumstances connected with the crime, with which defendant was-charged, it contained a plain and concise statement of the crime alleged within the spirit and meaning of the Criminal Code. It is not pointed out to us, nor are we able to discover any language in the indictment which evinces a disregard of the provisions of the Code or a deviation from the principles intended to be established thereby.

Nor is there any ground for the claim that the indictment , charges more than one crime. Although it contains different counts, it merely states the commission of the same offense in different forms so as to meet the evidence which might be presented upon the trial. As there was no direct proof by an eyewitness of the commission of the offense charged, and as it was connected with the commission of other crimes, it was entirely competent for the pleader to allege in different counts such facts as might, by possibility, be presented upon the trial, and as the proof as to these could not be anticipated with exactness, such allegations were proper and within the provisions of the Criminal Code. There is nothing in these provisions which compels the-pleader to confine tlie indictment to a single statement of the facts where the proof is uncertain. The object of the pleading is to inform the defendant of the crime alleged against him, and when this is done without needless repetition, it cannot be urged that he has not been fully advised of the character of the crime for which he is indicted.

Nor can it be said that each of the counts charges the crime to have been committed in precisely the same manner and by precisely the same means. On the contrary, the indictment contains allegations in each of the counts showing a somewhat different state of facts, and varying the circumstances under which the crime is alleged to have been committed. This is in strict accordance with the provisions of the Oode of Criminal Procedure, and furnishes no ground for a demurrer, and there was no error committed by the judge in overruling the same.” (See, also, Cox v. The People, 80 N. Y., 500; Dolan v. The People, 64 id., 485.)

From an inspection of the record we may reasonably infer that there was no eye witness of the crime, and that the people were required to establish the accusations made against the prisoner in the indictment by circumstantial evidence, and that the means by which the crime was committed were not clearly and definitely ascertainable or ascertained at the time the indictment was prepared; hence the the case was a proper one for the application of the proposition given in section 279 of the Oode of Criminal Procedm’e, which is as follows, viz. : “ The crime may'be charged in separate counts to have been committed in a different manner or by different means; and where the acts complained of may constitute different crimes, such crimes may be charged in separate counts.”

As has already been stated, there was no demurrer interposed to the sixth, seventh and ninth counts of the indictment, and upon that record it is not to be said that the conviction did not taire place under either one or the other of these counts in the indictment.

It is well settled that where there is one good count in an indictment, and evidence to support it, the conviction must be sustained, although the indictment contained other counts which are defective. (People v. Davis, 56 N. Y., 95; Phelps v. People, 72 id., 365; Pontius v. People, 82 id., 339; Hope v. People, 83 id., 419.)

We are of the opinion that no error was committed by the court in refusing to compel the district attorney to elect under which charge in the indictment he would try the defendant. The application made in that behalf was addressed to the discretion of the court, and the court committed no error in denying the application. (Hawker v. People, 75 N. Y., 487; Armstrong v. People, 70 id., 38; Code of Crim. Pro., sec. 684.)

Second. It appears from the record, that on the 9th day of December, 1884, in the Oyer and Terminer of Broome county, that a motion in arrest of judgment was made. The language of the record is as follows, viz.: “ The defendant’s attorney thereupon moved an arrest of judgment'on the ground that Lieutenant-Governor Iiill, who, it is known, is to be governor of the State of New York on the first day of January next, and to whom any application of pardon for defendant must be made, appeared as counsel for the people in this case,” which motion was denied by the court, and defendant’s counsel excepted. We think the court committed no error in denying the motion. There is no provision of the Constitution of the State, or the statutory law, which prevents the lieutenant-governor from aiding a district attorney in the prosecution of a capital case. Surely, a lieutenant-governor of the State, even though it be known that he is to succeed to the office of governor, has a legal and constitutional right to aid in the enforcement of the criminal laws of the State.

Section 6 of article 4 of the Constitution, provides that in case of resignation of the governor, the powers and duties of that office shall devolve upon the lieutenant-governor for the residue of the' term

Section 7 of that article provides, “ if during a vacancy of the office of governor the lieutenant-governor shall be impeached, displaced, resign or die, or become incapable of performing the duties of his office, or be absent from the State, the president of the senate shall act as governor until the vacancy be filled or the disability shall cease.”

There was nothing before the Oyer and Terminer to indicate that the presence of the lieutenant-governor as counsel for the prosecution of the defendant, has in any manner impaired, lessened, interfered with or prejudiced the rights of the defendant. It was very proper for the Court of Oyer and Terminer to assume that the duties devolving upon the executive branch of the government, in. accordance with the provisions of the Constitution, would he properly performed whenever occasion should arise for their enforcement.

Again, section 467 declares that a motion in arrest of judgment is an application that no judgment be rendered upon a verdict against the defendant, and that section provides that such application “ may be founded on any of the defects in the indictment mentioned in section 393.” The grounds enumerated in section 323 do not embrace the ground or objection relied upon by the defendant in the motion for arrest of judgment now under consideration. An enumeration of the grounds upon which an arrest of judgment may be made in that section of the statute, was probably intended to ■exclude any other grounds. The exception taken by the defendant to the denial of a motion for arrest of judgment, presents no error.

Third., Our attention is directed to an order made by the Oyer and Terminer, denying a motion made for a new trial, made upon ■affidavits, upon the alleged irregularities or misconduct of the jury, subsequent to the charge of the court and before the delivery of their verdict. It seems that the jury had been kept together during the progress of the trial under the charge of an officer, and “ took their dinner in the dining-room of the restaurant of Icke & Hanley, on Collier street, in the city of Binghamton,” at tables separated and apart from those occupied by other people. The charge to the jury was finished about half-past six o’clock in the evening, and two officers were sworn to keep the jury in accordance with the provisions of the statute. The jury was taken to the restaurant and seated at the tables theretofore used by them, and the same servant girls who had been accustomed to wait upon them asked them respectively for their orders for their meal, and the orders were filled and they received their supper in usual mode and then returned to the court-room and deliberated upon their verdict.

Numerous circumstances relating to the events to which we have referred were shown in the affidavits read in support of the motion for a new trial; answering affidavits were read. In the determination of the motion, the Court of Oyer and Terminer was called upon to ascertain and determine whether the jury had “been guilty of any misconduct by which a fair and due consideration of the case has been prevented.” (Code Crim. Proc., § 465, subdiv. 3.) It has been held in numerous cases that an irregularity which did liot prejudice the substantial rights of the defendant “ would not vitiate the verdict unless it be shown that the defendant was prejudiced thereby.” (People v. Draper, 28 Hun, 2; Hartung v. People, 4 Park. Cr. R., 319; Ostrander v. People, 28 Hun, 48.) We think it was very clearly and satisfactorily shown in the opposing affidavits that nothing transpired in the presence of the jury calculated to, or which did, interfere with or influence their deliberations or prevent a fair and due consideration of the case. We therefore approve of the conclusion reached by the learned trial judge and sustain the order made. We have considered the questions presented to us in this record, and are of the opinion that the-conviction and judgment should remain.

i Our decision, therefore, will be that the verdict and judgment and orders be affirmed, and that the judgment of the Oyer and Terminer of Broome county be enforced.

Eollett and Merwin, JJ., concurred.

Judgment, conviction and orders affirmed.