author: Daniels, J.: Davis, P. J.: Beady, J. (dissenting):

text:
    THE MERCHANTS’ NATIONAL BANK OF THE CITY OF NEW YORK, Plaintiff, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF NEW YORK, Defendant.

      Board of supervisors — liability of for tas illegally collected—State too:—board of sup&i-visors do not act as representatives of State in collecting—: Chap. 108, Laws of 1863 — construction of.

    The predecessor of the plaintiff was compelled to pay $29,503.14, the tax imposed for the year 1862, upon $1,701,000 of its capital, which was then invested in United States securities. Of this amount $16,231.38 were for the purposes of the city of New York, $7,492.71 for the county, and $6,788.05 for the State tax. The imposition of the tax having been declared illegal, this action was brought to recover the amount so paid. Held (1), that the plaintiff was entitled to recover the amount of the county and State tax; the State tax is a debt imposed upon the county at large, and the board of supervisors do not act as the representatives of the State in collecting it; (2), that the plaintiff was not entitled to recover the amount of the tax paid for the purposes of the City, for the reasons that the county had never received such amount, and that it has never been authorized to raise and pay the same to the plaintiff.
    Chapter 108, Laws of 1868, authorized the board of supervisors to raise such additional amount of money as might be necessary to supply any deficiency in the product of the taxes of the year before, as such taxes were based upon erroneous assessments; but it did not authorize them to raise money to reimburse what might thereafter.be collected from the city on account of the tax being erroneous, nor to enable the county to pay claimants what they otherwise might recover from the city. (Brady, J., dissenting.)
    Motion for a new.trial, on exceptions ordered to be heard in the first instance at the General Term.
    The predecessor of the plaintiff, the Merchants’ Bank of the city of New York, was obliged to pay $29,502.14, that being the amount of the tax imposed for the year 1862, upon $1,701,000 of its capital, which was invested in government securities, and therefore not subject to taxation.' The impost was declared to be illegal by the Court of Appeals. It appeared that $15,221.38 were levied and collected for the purposes of the city, $7,492.71 for the county, and $6,788.05 to pay the tax due to the State. Upon the trial the court ruled that the plaintiff was entitled to recover against the defendant the portions respectively collected for county and State purposes only, and a verdict was accordingly rendered.

      John E. JBurrill, for the plaintiff.

      E. Delafield Smith, for the defendant.
   Daniels, J.:

The conclusion maintained by Mr. Justice Bradt, that the plaintiff was lawfully allowed to recover a verdict for the amount of the tax imposed and collected for State and county purposes, is fully sustained by the reasons he has given in support of it. But those given for holding the county liable for the amount of the tax received by the city, are not as controlling. It is conceded that no such liability can be maintained, unless it has been created by chapter 108 of the Laws of 1863. And that concession was necessarily required, in consequence of the decision made in the .case of the Bank of the Commonwealth v. Mayor, etc., of New York. Whether the county can be properly rendered liable for the amount of the tax received by the city, must therefore depend entirely upon the provision made by that act. That does not expressly create the liability. It merely provides that the said supervisors “ are also hereby authorized and required to order and cause to be raised, in the manner aforesaid, such additional amount of money as may be necessary to supply any deficiency in the product of the taxes of and for the year 1862, which were authorized to be levied and raised for city and county purposes, and which were based upon assessments which the Supreme Court of the United States have adjudged and declared to be in part erroneous.” The amount authorized to be imposed and raised by this enactment, is by its terms expressly limited to any deficiency in the product of the taxes of the year 1862, in consequence of the adjudication that the taxes were in part erroneous. The object was to supply the county with the sum which on that account, was made deficient. The law so describes and declares it. It was not provided by this act, that the county should impose and collect additional taxes for the purpose of reimbursing what possibly might afterward be collected from the city on account of the tax being in part erroneous, nor for the purpose of enabling the county to pay claimants what they otherwise might possibly have the right to recover from the city. The theory of the act is, that some of the taxes had proved incapable of collection because they had been declared unlawful by the decision which was mentioned. In that way a deficiency in the county funds was assumed to have been created, and that, it was the object of the act to provide means for supplying. It was not to create a fund for the payment of demands which might afterward be made because taxes actually received had been improperly, imposed, but only to supply any deficiency in the product of the taxes of the year 1862. It did not provide the county authorities with the means of paying subsequent demands for what the city had received in the orderly course of other statutory provisions. And it is not to be supposed, and it certainly was not shown, that any amount was ever levied or collected for that object. For that reason the county has not now, and never has had, in its treasury, that part of the tax collected of the plaintiff and paid to the city, nor any sum, whatever, for its reim-. bursement. The action, in substance and effect, is to recover money had and received by the defendant, belonging to the plaintiff. It never did receive that paid to the city, and never has been authorized to receive any for the purpose of paying that amount to the plaintiff.

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

Davis, P. J.:

I concur in the opinion of Justice Daniels. It was not shown, that the money authorized to be collected under the act of 1863, was raised and came into the hands of the supervisors.

Beady, J. (dissenting):

The predecessor of the plaintiff, the Merchants’ Bank of the city of New York, was obliged to pay $29,502.14, that being the amount of the tax imposed for the year 1862, upon $1,701,000 of its capital, which was invested in government securities, and therefore not subject to taxation. The impost was declared to be illegal by the Court of Appeals. It appears that $15,221.38 were levied and collected for the purposes of the city, $7,492.71 for the county, and $6,788.05 to pay the tax due to the State. Upon the trial, the court ruled that the plaintiff was entitled to recover against the defendants the portions respectively collected for county and State purposes only, and a verdict was accordingly rendered. It was conceded that the defendants were liable for the amount collected for the purposes of the county, but not otherwise. Exceptions were taken to the rulings, as follows, by the plaintiff, to the exclusion of the portions assigned to the city; and, by the defendant, to the allowance of the portion allotted to the State; and all were directed to be heard in the first instance at the General Term. The questions to be considered are presented by these exceptions. The expenses of the State government are provided for, annually, by an act of the legislature, which declares the rate of taxation upon all the real and personal property of each county. The mode of ascertaining the amount of-such estate, taxable, is by State assessors, who make the valuations and submit them to the board of equalization, whose duty it is to determine the amount of the assessment of such estate, on which the tax shall be levied. The result is communicated to the board of supervisors of the several counties, by a circular from the comptroller, which also declares the amount of tax to be levied for the State from each county. The legislature, also, annually, enact a bill authorizing what is called the “ county tax levy,” and another called the city tax levy, and by which the supervisors of this county are authorized and required to raise, by tax on property subject to taxation, the sums named in addition to the several sums required to be levied by special laws, which necessarily includes the sum to be paid to the State. These enactments generally contain a clause or section making it the duty of the board of supervisors of this county to include in the amount to be raised, three per cent on the aggregate amount, to provide for deficiencies in the actual product of the tax, but it was omitted in the tax levies of 1862.

The board of supervisors, under and by virtue of these acts, ordain that there shall be imposed upon the estates, real and personal, subject to taxation, an aggregate sum, presenting as well a specification of the items of which it is composed. The taxable property of this city and county is assessed by deputy tax commissioners, who, under the direction of the commissioners of taxes and assessments, assess the taxable property in the districts assigned them, and the result is set forth in detail, in the annual record of the assessed valuation of real and personal estate. The assessment rolls are delivered to the supervisors, and by them, when corrected, are sent to the receiver of taxes, with warrants attached, to enforce the payment of the sums imposed. The moneys collected are paid to the city chamberlain, who is also the county treasurer, It will thus be perceived that the money paid in discharge of taxes, whether for city, county or State purposes, passes through the receiver to the chamberlain, who represents the city and county by holding the funds of both.

The amount of the tax due to the State, must, from the annual returns made to him of the valuations of real and personal estate, be charged by the comptroller against each county treasurer, who shall be prosecuted by the attorney-general if he refuse or neglect to pay it.

The object of the proceedings before the board of equalization, is to determine fairly the contribution which each county shall make to, or the quota it shall pay toward, the expenses of the government of which it is a part, according to the value of its estates, real and personal; while those in reference to the taxes for the city and county of New York by the board of supervisors, are to settle fairly and equally the amount which individual owners, or the property of persons and corporations subject to taxation, shall pay toward the expenses of the city government, and of discharging obligations imposed upon the city or county by special laws.

The contribution, if it may be so called, to the expenses of the State government, is, in fact, the discharge of a debt due from the county; an obligation assumed by its relation to the government, for the protection afforded it, and the advantages enjoyed. It is charged at once to the county treasurer, and its payment may be enforced by action. The board of supervisors are not, in reference to it, the agents or representatives of the State in any aspect. The State declares the sum which must be paid, according to the system adopted for ascertaining it, and becomes a creditor, but it furnishes the means to each county for collecting the amount of its indebtedness, thus established, out of property within its own boundaries, by acts of the legislature authorizing an impost for that purpose. These acts provide, as we have seen, for the manner of determining the property taxable, statements of which, contained in the assessment rolls, are transmitted to the board of supervisors, who supervise and correct them. The direct assessment or tax is an act of theirs, and not of the State. The latter creates a debt which must be paid, and the former, by authority duly conferred, proceed to raise the money to pay it. If error be made by the board of supervisors, the consequences, if any, must fall upon it, and not upon the State. The State tax to be paid, is not to be levied of any specific .property, but of that of the entire county, and if that property be sufficient for the purpose, as it must be, the tax must be paid. It would not be a successful response to say to the State, that, by reason of an error of the board of supervisors in the estimate of values of real and personal estate, the tax had not been collected. The duty to pay is imperative.

For these reasons, it seems to be wholly immaterial upon the question of the defendant’s liability to refund a tax illegally levied and collected, whether it was, in part, a portion of the tax due to the State from the county generally, and particularly, when it appears that all the taxes are amalgamated in the hands of one treasurer; that is, all received and held by him, whether of the city, county or State. It is perhaps inaccurate to say, of the State,” otherwise than to designate the sum to be paid to the State. The taxes collected are those of the city and county, with the existing obligation of the latter, out of its share, to pay to the State the debt due. This view has been substantially declared by the legislature in reference to the claim herein asserted, for we find in the county tax levy of 1863, authority to raise “ such additional amount of money as may be necessary to supply any deficiency in the product of the taxes of and for the year 1862, which were authorized to be levied for city and county purposes, and which were based on assessments which the Supreme Court of the United States have adjudged and declared to be in part erroneous.” The judgment of the Supreme Court referred to, was pronounced at the December term, 1862, in the case of the Bank of Commerce v. N Y. City; and it was there decided that the securities of the United States, such as held by the plaintiff, were exempt from taxation.

The supervisors were, it must be further said, by the act of the legislature just mentioned, made the quasi trustees of the fund to supply the deficiencies; that is, to raise a sum of money equivalent to that paid to the city and county, as a substitute therefor, and which would necessarily be required to refund to the persons who had paid the taxes erroneously and illegally imposed. The provision thereto, it will be perceived, is in the county, and not the city tax levy, and was designed as an appropriation to the county for the exigency to which it related. It was therefore the creation of a fund for the county, and the county treasurer became, under that act and the several laws referred to relating to taxes and their collection and deposit, the custodian of the money, on behalf of the county, for those whom it might concern. That this was so, is evident from the fact that the county had already its quota of the whole tax, which was levied and paid, and which included the erroneous tax under consideration. The tax levied was not therefore deficient in point of fact. It had yielded, so far as we are advised, the sum intended to be raised, but would be so, if the city and county were obliged to refund, in consequence of the decision of the Supreme Court of the United States, herein-before mentioned. Hence the act putting the county in a financial position to answer these demands. This seems to be a fair and just interpretation of the act. It has, however, even a broader signification and effect, than to provide for the obligations of the county arising upon the facts disclosed. The city, as well as the county, had received its quota of the general tax, and nothing was due to it. There was no deficiency as before suggested, and the provisions of the act mentioned, rendered it impossible that there should be. The obligation of the city was transferred by it to the supervisors, who were invested with the power of raising the money to meet, and therefore charged with the duty of paying back or refunding, the illegal taxes paid. The necessity of separate actions was thus avoided, and the whole subject placed under their control for adjustment. For these reasons, we think the court erred in ruling that the quota paid to the city, was not a valid claim against the defendants, but was right in declaring them responsible for the quota paid the county, and out of which it was required to pay the sum due to the State.

It is not necessary to discuss the effect of the cases cited by "the defendant’s counsel. The statute of 1863 presents an entirely different question from any of those disposed of in the cases mentioned, because the effect of it, as shown, is to provide a fund for the payment of the taxes illegally levied and collected. The court "below was doubtless controlled by the case of Bank of the Commonwealth v. The Mayor, in which it was held, that the tax imposed having been annulled and declared invalid, the city was responsible for the portion received by it, but not for the quota paid to the county. The statute of 1863 was not referred to on the argument of this appeal, and it may be that the attention of the presiding justice was not called to it. Whether the defendants would be responsible for the quota paid the city, in the absence of that statute, it is not necessary to declare. If this were an action against the city to recover such sum, this court might sustain it upon the theory that the city’s indemnity was provided for by the act of 1863, and leave the city to secure it. However that may be, it is clear that the object of that act was to provide a fund to be applied to the payment of claims founded upon the illegal levy and collection of the taxes of 1862, a levy acknowledged by the legislature to have been improper. It was money paid and received by the county for the benefit of the owners of such demands. Neither the city nor the county had any claim upon it, for aught that appears. Neither had refunded any of the tax received, and both had been paid in full. The liability of the defendants in an action like this, seems to be settled by the case of Newman v. Supervisors of Livingston County, assuming them to hare received the money of the plaintiff wrongfully. It is true that they paid out certain portions of it, but they were invested with power, and it became their duty, to reimburse themselves, and, in that way, to prepare for the demand. This authority is equivalent to a receipt off the money, and the fund should be applied, in the first instance, to the payment of 'the claims for which it was intended. In the simple forms of procedure created by our Code, circuity of action should be avoided, and there seems to be good reasons why it should not be in this case. The judgment should be reversed and new trial ordered.

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

       43 N. Y., 184.

       Laws of 1863, chap. 108.

      Laws of 1859, p. 702.

       See Acts of 1861, pp. 564, 666.

       Laws, pp. 860, 817.

      Laws of 1859, p. 678.

       Laws of 1848, p. 317, § 1, art. 2.

       Act of 1848, supra, .§ 8, art. 1.

       1 R. S. (4th ed.), 686.

       1 Rev. Stat. (5th ed.), 926, §§ 8, 12.

       Laws, p. 168.

       2 Black., 620.

        Supra.

       43 N. Y., 184.

         Supra.

       45 N. Y, 676.


source: Caselaw Access Project

author: Davis, P. J.: Daniels, J.:

license: Public Domain

text:
    THOMAS LENAHAN, Plaintiff in Error, v. THE PEOPLE, Defendants in Error.

      When jmy caimot act upon their own knowledge of facta not proved in the case— 3 B. 8. (5ft ed.), 944, § 38 — indictment underr.

    The prisoner was convicted of an assault with intent to kill. The offense was committed about nine o’clock in the evening of the 5th of August, 1874, on Fifth avenue, between Fifty-third and Fifty-fourth streets, in the city of New York. Testimony was given on behalf of the prosecution, tending to show that the street, at that point, was generally deserted at that time of night, and that the prisoner was found standing near the place where the crime was committed very near the time of its perpetration.
    The court charged the jury that they had a right, of their own knowledge, to take notice of the circumstance that at that time, the fifth of August, no part of the city, was more likely to be deserted, even as early in the night as nine o’clock, than that part of the avenue. Held, that this was error. The fact referred to was not one which could be regarded as one of general' notoriety, and for that reason proof was necessary to establish its existence.
    The statute under which the plaintiff was convicted, provides that “ every person who shall be convicted * * * of an assault and battery upon another, by means of- any deadly weapon, or by such other means and force as was likely to produce death, with intent to kill,” shall be punished as therein stated. Held, that it was not necessary to allege in the indictment, or prove upon the trial, that the assault was “ with a deadly weapon.”
    Facts of which courts and juries may take judicial notice stated. (Davis, P. J.)
    Writ of error to the Court of General Sessions of the city and county of New York, to review the conviction of the plaintiff in error of an assault with intent to kill, under the provisions of 3 Bevised Statutes (5th ed.), 944, section 38.

      Wm. F. Howe, for the plaintiff in error.
    The indictment should have alleged that the assault was with “ a deadly weapon.”
      (O’Leary v. People, 4 Parker, 187; People v. Davis, 4 id., 61; People v. Shaw, 1 id., 327; 2 Wharton’s, § 1274.)
    i?. K. Phelps, district attorney, for the defendants in error.
   Davis, P. J.:

The plaintiff in error was convicted on the third, count of the indictment. It is claimed that the conviction cannot be sustained, because that count contains no averment that the assault was “ with a deadly weapon.” The count charges that the prisoner feloniously made an assault upon one Horace Galpen, and him, the said Horace Galpen, with a certain piece of lead, which the said Thomas Lenahan in his right hand then and there had and held, willfully and feloniously, did beat, strike, cut and wound, the same being such means as was likely to produce the death of him, the said Horace Galpen, with intent him, the said Horace Galpen, then and there feloniously and willfully to kill.

The statute upon which the count of the indictment is drawn, is' by no means limited to assaults atid batteries with intent to kill, by means of any deadly weapon. Its language, so far as it bears upon this case, is: Every person who shall be convicted * * * of an assault and battery upon another, by means of any deadly weapon, or by such other means or force as was likely to produce death, with intent to kill,” shall be punished, etc. An assault and battery by means of any deadly weapon, with intent to kill, is only one of the alternatives of the provision; the other is an assault and battery, with like intent, by such means and force as was likely to produce death. And the latter offense is accurately and particularly set forth in the count. We think there is no merit in the point raised by counsel.

A very large number of objections and exceptions were made and taken on the trial, most of which were altogether frivolous.

Indeed, if we regard the error book as containing a fair photograph of the proceedings upon the trial, it is painfully apparent that the conduct of the prisoner’s counsel in presenting his objections and taking exceptions, was so discourteous and indecorous toward the court as to have deserved severe censure. We do not regard it important to consider all the exceptions” argued before us, because our conclusion upon one of them renders it necessary to reverse the judgment, and order a new trial. The crime for which the plaintiff in error is convicted, was committed at about nine o’clock of the evening of the fifth day of August last, at a point on Fifth avenue near Fifty-fourth street." The blow was struck by a person who stealthily approached Mr. Galpen from behind. „ Mr. Galpen was able to give only a general description of the person, and identify the prisoner with him, by saying that the person he saw li was about the height and build and general appearance of the prisoner * * * and had on a dark straw hat, of a rather peculiar shape, and also a dark coat.” Mo witness saw the blow struck, but very strong circumstantial evidence was .given on the part of the prosecution to show that the prisoner was the guilty person. One of the circumstances was the deserted condition of the avenue at the time, and that nobody but the prisoner was seen near the spot where the occurrence happened.

The prisoner swore, in substance, that he did not strike the blow; ■ that he had come to Fifty-first street to meet a female, according to appointment, and there saw a woman and several men having some difficulty; that, upon the outcries of the woman, a police officer came, and that fearing he would be clubbed, he ran up Fifth avenue toward Fifty-fourth street, and, while running, heard Mr. Galpen’s cry of murder, and saw him running across the avenue ; that he kept on to the place where Galpen was when struck, and there saw and conversed with the peoples’ witnesses (who had before stated their conversation with him), and that he ran away from that point, down Fifty-fourth street, -fearing that he might be arrested as one of the persons who had caused the outcries of the woman on Fifty-first street. The prisoner’s counsel urged the theory upon the jury, that the blow was struck by some person who had been concealed in an area, and suddenly' had sprung out upon Galpen, and then fled or concealed himself as the prisoner was approaching from Fifty-first street. In view of this testimony and theory on the part of the prisoner, it is quite apparent that the condition of Fifth avenue, as to whether it was deserted at the time, or whether persons were passing along it in that vicinity, became a-question of some materiality ; and on this subject the learned judge, in the course of his charge said : “ And here let me remind you that the complainant testified (and that you may consider an important piece of evidence), that when he was walking along and heard this stealthy step behind him, the street appeared to be deserted. You will recollect the time; it was on the fifth of August; you wont forget the place—it was the Fifth avenue; you have a right, of your own knowledge, to take notice of the circumstance that at that time, the fifth of August, no part of the city was probably more likely to be deserted, even as early in the night as nine o’clock, than that part of the avenue.” To the last sentence of this portion of the charge, the prisoner’s counsel excepted. We think the exception was well taken. The condition of the street, as to whether deserted or not, at the time and place described, was a fact to be proved, like other circumstances in the case; and if the proof on that' subject, was insufficient or unsatisfactory, the prisoner was entitled to any advantage that might grow out of that fact. The evidence could not be helped out by the jury, by taking notice from their own knowledge, that as early as nine o’clock of the night of the fifth of August, that part of the Fifth avenue was more likely to be deserted than any other part of the city. It is not important whether or not we think that this charge probably had no material influence on the minds of the jury. We cannot, with certainty, be legally assured that it did not, and therefore we cannot treat it as having worked no legal prejudice to the prisoner. Possibly the jury may have given less consideration to the prisoner’s own statement, by casting this notice from their own knowledge into the scale against it. There-are many things of which courts and juries may take judicial notice, without evidence to prove their existence, extent or validity: the general statutes, the rules of common law and the decisions of the superior courts; the jurisdiction and sovereignty exercised defacto by their own government; the local divisions of their own county, and the relative positions of such divisions; who are public officers, elected or appointed under general statutes; what rivers are public highways; the common and ordinary modes of transacting commercial business; the ordinary duration of human life, as a scientific fact; the meaning of English words and terms of art; the ordinary measurement of time into years, seasons, months and days; and other facts of universal experience and acceptance; but no authority has come within our observation that justifies judicial notice, or notice upon the personal knowledge of the court or jury, of the condition of the streets of blew York, in any respect, at any given time or place. The remark of the learned judge was, doubtless, a hasty and inadvertent one, but it unfortunately falls, when excepted to, within that class of errors which courts of review are not at liberty to disregard.

The judgment and conviction must be reversed, and a new trial ordered.

Lawrence, J., concurred.

Daniels, J.:

The prisoner was tried and convicted of the crime of an assault with intent to kill. The offense was committed about nine o’clock in the evening of the 5th day of August, 1874, on Fifth avenue, between Fifty-third and Fifty-fourth streets, in the city of Flew York. There was no substantial doubt, under the evidence, of the commission of the crime, by some person. Whether the defendant was that person, was the real point in controversy. The evidence given for the purpose of establishing the fact that it was he who committed the crime, was circumstantial in its character, and it in part consisted of proof that the street, at the time, was generally deserted at that point, and the prisoner was discovered standing near the place where the crime was committed, very near the time of its perpetration. That the street was actually deserted at that early period of the evening, was not conclusively shown, for the complaining witness simply stated that it appeared to be in that condition; that it was very much so for two or- three blocks. Whether he was accurate in his recollection on this subject, was a material circumstance in the case, for if he was right in that respect, then the circumstance that the prisoner was found in the immediate vicinity of the place where the crime was committed, very soon afterward, showed that he probably was so situated that he might have committed it, and, if no other persons were about there, afforded reason for believing that he was the guilty person. This fact was one which directly tended to establish the guilt of the prisoner, and the more strongly it was fortified, the more satisfactory would be the presumption against him which that circumstance would warrant. For the manifest purpose of allowing the jury to consider it as an established fact in the case, the court charged them that they had a right, of their own knowledge, to take notice of the circumstance, that, at that time, the fifth of August, no part of the city probably was more likely to be deserted, even as early in the night as nine o’clock, than that part of the avenue. The court evidently perceived the importance of this circumstance in its bearing upon the probability of the guilt of the prisoner, and therefore allowed the jury to establish it by there own knowledge, in case the evidence in the case proved unsatisfactory in that respect. What that knowledge might be, neither the prisoner nor his counsel had the means of knowing. So that, upon this portion of the case, he was probably tried upon evidence, of the extent and effect of which, both were wholly ignorant. The fact referred to was not one which could be regarded as of general notoriety, and for that reason proof was necessary to establish its existence. And that proof the prisoner was entitled to hear, and be at liberty to controvert. The rule would be an exceedingly dangerous one, which would leave the jury at liberty to supply defects., in the case of the prosecution or defense from their own knowledge, and it has no authority to sustain it. The furthest that the courts have ever gone in that direction, has been to take notice of whatever ought to be generally known within the limits of their jurisdiction ; and whether a certain street in a large city is likely to be deserted at nine o’clock in the evening, is clearly not within that rule.

There may very well have been and probably were persons upon the jury that tried the prisoner, who never were on that part of Fifth avenue, at nine or near nine o’clock in the evening in the month of August. And yet, if others had been there sufficiently to know the nature of the street at that time, the jury were left at liberty to act upon their knowledge. That gave the jury the power to act upon simple unsworn evidence of the existence of a material fact, and it was in direct violation of the well settled rules of law. If all the jurors had been upon that portion of the avenue, and had observed its deserted appearance on other occasions, it would not follow from that fact, that it was in that condition on the evening in question. And they would not he justified in concluding that such was the fact at that time, from observations of that nature. The conclusion in that state of the case might or might not be a correct one. And where it is attended with such a state of uncertainty, it should be established by evidence, and not left to be conjectured by the jury. Upon the impropriety of the course pursued in this respect on the trial of the prisoner, nothing further need be added than what was said in the case of People v. Zeiger.

The prisoner’s counsel excepted to what was said upon the subject by the court to the jury. Many other exceptions were taken to the charge, not now requiring examination, and also to evidence received, which was of an exceedingly questionable nature, to say the least of it. But as that was merely pertinent to the fact of the crime having been committed, which was conceded through the case, it could not possibly have prejudiced the prisoner, and for that reason would not constitute any proper ground for directing a new trial. •

But leaving the jury at liberty to conclude from their own knowledge, that the portion of the avenue where the offense was perpetrated, was likely to be deserted at the time when it was con> mi tied, and, for that reason, to place the weight of that circumstance against the prisoner in considering the probability of his guilt, was a manifest error. And for that the judgment should be reversed and a new trial ordered.

Judgment and conviction reversed, and new trial ordered.

       Browne v. Scofield, 8 Barb., 239; People v. Herkimer, 4 Cowen, 345.

       People v. Breese, 7 Cowen, 429; Chapman v. Wilber, 6 Hill, 475; Bronson v. Gleason, 7 Barb., 472.

         People v. Nevins, 1 Hill, 154.

       Browne v. Scofield, 8 Barb., 239.

       Johnson v. H. R. R. R. Co., 6 Duer, 634.

       3 Wait’s Law and Pr., 366 et aeq.

       Wheeler v. Webster, 1 E. D. Smith, 1; Wilkie v. Bolster, 3 id., 337.

       Greenleaf on Evid., § 6,p. 10; Smith v. N. Y. Central R. R. Co., 43 Barb., 225, 231; Swinnerton v. Columbian Ins. Co., 37 N. Y., 174,189.

       6 Parker, 855.


author: Davis, P. J.:

text:
    WILLIAM REDMOND and another, Respondents, v. WILLIAM HOGE, WILLIAM L. HOGE and GEORGE M. DOWNS, Impleaded with the ENFIELD MANUFACTURING COMPANY, Appellants.

      Foreign corporations —funds of in this State—receive^' of when mag be appointed, — parties to action.

    Where a foreign corporation, proceedings for the dissolution of which have been commenced in its home State, has a fund deposited in this State with one of its officers, who refuses to pay over the same to the persons entitled thereto, and who is shown to be an unsafe depositary of such fund, and such corporation has no property, and none of its directors reside in its home State, and the affairs of the corporation are managed and the meeting of its directors held in this State, this court has jurisdiction of an action brought by a stockholder of such corporation, residing in this State, to secure the appointment of a receiver of the company to take and hold such fund, and pay therefrom the creditors of the company and divide the residue among the stockholders.
    It is not necessary to make all the stockholders parties to such action.
    Appeal from an order of the Special Term, appointing a receiver of the money and funds of the defendant, the Enfield Manufacturing Company, now in the hands of the defendants, William Hoge and George M. Downs, and their firm of William Hoge & Co., and directing them to pay over to said receiver $15,726, on account of said moneys.

      John E. Burrill, for the appellant.
    The court had no jurisdiction over the corporation. (Prouty v. Lake Shore & Michigan Southern R. R. Co., 52 N. Y., 367; Board of Public Works v. Columbia College, 17 Wall., 521; Thompson v. Whitman, 18 id., 469; Cooke v. State Nat. Bank, 52 N. Y., 111; Merrick v. Van Santvoord, 34 id., 208; Day v. Newark Co., 1 Blatch., 628.) The court has no power to wind up the affairs of a foreign corporation. (Howe v. Deuel, 43 Barb., 504; Latimer v. Eddy, 46 id., 61; Robertson v. Bullions, 11 N. Y., 243; Belmont v. Erie R. R. Co., 52 Barb., 668; Atty.-Genl. v. Utica Ins. Co., 2 Johns. Ch., 370; Murray v. Vanderbilt, 39 Barb., 147; Howell v. Chicago & Northwestern R. R. Co., 51 id., 383.)

      Henry Nicoll, for the respondents.
   Davis, P. J.:

It. appears in this case, that the defendant, the Enfield Manufacturing Company, is a corporation, created under the laws of the State of Connecticut, and that, while in business, it carried on the same at Enfield, in that State.

At a meeting of the stockholders, on the 29tli of March, 1872, it was resolved that the affairs of the corporation should be wound up, its property sold, and its debts paid, and its remaining assets divided among the stockholders ; and the directors were directed and authorized to carry out the resolution; that the property of the corporation was afterward sold by the directors, except about $25,000 in value; and in the month of December, 1872, the sum of $140,000 was divided ratably amongst the stockholders; that an order, under the statute of Connecticut, was obtained from the Superior Court of that State, limiting the time for creditors to present their claims, and barring all claims not presented before the 10th day of August, 1872; that all claims were so presented before the 10th day of August, 1872; that the unsettled claims do not now exceed the sum of $10,000; that since the month of December, 1872, the whole of the property of the corporation, with a small exception, has been converted into money, and that the proceeds are in the hands of the appellants, William L. Hoge, as secretary and treasurer, and William Hoge & Co., as depositaries, It is shown, also, that the plaintiffs are stockholders to the amount of 2,000 shares each; that the defendant, William Hoge, owns ovei 8,000 shares, and more than a majority of the whole stock; tha the defendants, William L. Hoge and George M. Downs, each owi one share of the stock; that William Hoge is president of th* company; that William L. Hoge is secretary and treasurer; tha the plaintiffs and defendants are the directors of the company that defendant, Downs, is copartner of William L. Hoge, and the; constitute the firm of William Hoge & Co., in whose hands th moneys of the company are alleged to be. It is also allege* by the plaintiffs, that the moneys of the corporation hav been used in the business of William Hoge & Co.; that sai* company have suspended payments, and are insolvent, an are an unsafe depositary of trust funds; and the fact that the have suspended payment and. have procured an extension for th payment of their debts from their creditors, is admitted; but it is denied that they are insolvent; and it is also denied that they have used the moneys in their business, otherwise than bankers are accustomed to use the moneys of their depositors.

The plaintiffs also allege that, at a meeting of the directors, on the twenty-eighth of May last, at which were present the plaintiffs and the appellants, a resolution was offered by one of the plaintiffs, requesting an immediate distribution of the proceeds of the property of the corporation amongst the. creditors, after deducting so much as might be necessary to cover the claims against the company, which resolution was voted down by the appellants; that another resolution, reciting that, “ Whereas the cash funds of the company are now on deposit with Messrs..William Hoge & Co. in this city, and which firm is in an embarrassed state, not meeting its obligations,” and directing that the cash funds be at once deposited in the United States Trust Company to the credit of the company, to be drawn out only on checks signed by the directors,” was also voted down by the appellants. It is also alleged, and not denied, that none of the property of the corporation is now in the State of Connecticut, and that none of the directors reside in that State; that the affairs of the corporation have been and are managed in the city of New York, where all the meetings of the directors have been and are held. It appears also in the papers, that in September, 1872, on the petition of one Coffin, a stockholder, the Superior Court of Connecticut appointed William W. Eaton a receiver of the property of the company; that he accepted the trust and filed his bond. The suit was arranged and discontinued, but it appears from the report of the receiver, and from his petition, and from the order discharging him, that the assets of said company were detained in the city of New York,” and that the receiver “never has had or been permitted to have possession of any of the assets of said corporation;” and it is averred in the complaint, that unless plaintiffs can have relief in the courts of the State of New York, where the appellants reside, they will be without remedy against them.

The relief prayed for, is, that a receiver of the company be appointed, to whom the said William Hoge, George M. Downs and William L. Hoge shall be directed to assign and transfer all the property and funds of the corporation in their hands or in the hands of William Hoge & Co. That.' the accounts of said William Hoge, as president of said company, be settled and adjusted; that the amount of unpaid debts of the corporation be liquidated; and that the remainder be distributed amongst the stockholders of the corporation, in proportion to their shares of stock.

The case is an extraordinary one, and certainly- calls for the application of some remedy, if it be in the power of the court sitting in equity to grant any. It is objected by the appellants: first, that all the stockholders are not made parties to the action; and that the suit is not averred to be brought on behalf of all the stockholders. The defendants do not state the names or residences of the other 'stockholders, but simply allege that there are others. We do not think it necessary that all the stockholders should be joined as parties. And if it be material that the plaintiff should aver that the suit is brought on behalf of themselves and all other stockholders, that is a defect that may be easily cured by a formal amendment. 1 The" relief prayed for is for the benefit of all ■ the stockholders, and the rights of all will be fully protected, if the plaintiffs shall be successful, to the same extent as though they were actually named as parties.

It is objected, secondly, that the Enfield Company is a foreign corporation, and that this court has acquired no jurisdiction over it. This objection is based upon facts asserted by counsel, but which nowhere appear in the papers. It is said that the corporation has not appeared in the action. It is not shown by the papers whether the company has or has not appeared as a party. It cannot be assumed, for the purpose of aiding the appellants to defeat the proceedings, that the corporation has not or will not appear. It is certainly for its interest to appear, for the protection of the assets alleged now to be in unsafe hands; and, since its depositaries are shown to be beyond the reach of the Connecticut courts, the fair assumption is, if one is to be made at all, that the corporation has appeared, or will appear. The defendants, however, should have shown affirmatively, the fact on which they rely, and then it would be a question for the court, whether the power of absolute control over the corporation, which the defendants hold as its president, secretary and treasurer, and as a majority of the directors, would not be so apparent that the court would consider the non-appearance of the corporation in the suit, as a matter so fully within their power, and, if available, so potent as an instrument' of injustice to the corporation itself, that it would not hear the appellants assert it as a defense for themselves.

It is in the third place insisted that the object of the action is to wind up the affairs of a foreign corporation, and distribute its property among the parties entitled to it. We do not understand the object of the action to be the dissolution and winding up of the affairs of the Enfield Company. The corporation seems already to have been practically dissolved and terminated, but we must asume it to have a legal vitality, because its debts are not fully extinguished, and its assets wholly distributed. The object, however, of this action, is to reach and preserve a portion of its assets, which are beyond the jurisdiction of the Connecticut courts, and within our own, and are in the hands of officers of the corporation who cannot be sued in Connecticut, and who have power to prevent suit by the corporation itself in our courts, and which funds are shown by other officers and stockholders to be in a precarious condition. The complaint does not ask that the corporation be dissolved by our courts, nor that its affairs be wound up; nor that its general property be distributed. Its sole aim is at the particular fund now in danger, the preservation of which is the chief object, and its payment and distribution to stockholders, are secondary and incidental objects of the action. The papers show on both sides that the corporation is in the process' of winding up its own affairs according to the laws of Connecticut, and that the courts of that State have been invoked and have accordingly made orders in aid of that process, and this suit, in one point of view, may be said to be ancillary to that proceeding. Yet it neither controls nor terminates it.

Judgment complete and final in this case, will not terminate the corporate existence of the Enfield Company; nor in anywise affect the control which the laws and the courts of Connecticut have over such corporate existence. The whole scope and story of this action may be stated almost in a sentence. The officers who have complete control of a foreign corporation, now in process of voluntary dissolution, being all residents of this city and having in their possession here, certain funds of the corporation, which their own insolvency has put in jeopardy, and neither they nor the funds being amenable to the jurisdiction of the State under whose laws the corporation was created and exists, refuse to make application of such funds to the creditors and stockholders in conformity to the proceedings for dissolution, or, to put the same in a place of safety. They possess, being all the executive anda majority of the administrative officers of the corporation, such power of control, that no suit can be commenced by the corporation itself, to protect the fund. Is a court of equity of the State powerless, at the suit of a minority of the officers, who are stockholders and personally interested in the application and distribution of the fund, to appoint a receivership of the particular fund, and apply it, first to the creditors of the corporation, and, secondly, to the stockholders, in accordance with the proceedings for dissolution in the home State of the corporation ? We have clearly jurisdiction of the persons of the officers in the State. We have jurisdiction of the property, because it is within our territory. The plaintiffs are also citizens of our State, and show themselves to be remediless both in Connecticut, and in the federal courts. We are not prepared to say, until some higher tribunal shall admonish us to the contrary, that this court has not, under such- circumstances, power to intervene, so far as relates to the property actually within the State. The court is not powerless, in such a case, to enforce any judgment it may render, so long as it is limited to the particular fund which it finds here and takes from the hands of persons over whom its jurisdiction is complete and puts it into the safe keeping of its own officers; and we are aware of no authority which denies to us jurisdiction in a case containing all the elements of that before us.

It is idle to answer that the courts of Connecticut have jurisdiction over the corporation ; for such jurisdiction, so far as it affects the questions and remedies here, is futile. Its impotency was illustrated in the proceeding commenced in the Superior Court of that State, in which Eaton was appointed receiver, and in which he was forced, in substance, to report that all the assets of the corporation, were detained in the city of New York, and that “ he never has had, nor been permitted to have, possession of any of the assets of the said corporation.” A receiver, if appointed there, must resort to our courts to reach the appellants and the fund in their hands, by an action similar to the present, and become, substantially, the receiver of this court, in order to acquire possession of the fund. But, while no such officer exists in Connecticut, there seems to us no sound reason why the jurisdiction of this court may not be invoked to preserve a fund now in the hands of persons in our jurisdiction, and in danger of being lost by their insolvency or improper use.

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

Daniels and Barrett, JJ., concurred.

Order affirmed, with ten dollars costs, besides disbursements.


author: Davts, P. J.: Lawbenoe, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CATHARINE MURPHY, v. THE BOARD OF EDUCATION OF THE CITY OF NEW YORK.

      Teachers in public schools in city of New York—power of trustees to remove—discretionary— appeal to board of education — how heard— Ohap. 351, Laws of 1864— Trustees—stated meetings—presumption as to notice of-

    At a meeting of the school trustees of the Fourteenth ward, of the city of New ' York, at which four of the five trustees were present, a resolution was unanimously adopted, in pursuance of chapter 351, Laws of 1864, removing the relator from her position as teacher in one of the schools in the said ward. Subsequently this resolution was filed with the board of education, and the approval of two of the three inspectors was indorsed thereon. Eeld, that the action of these officers was regular. The statute does not require the approval of the inspectors to be given at the meeting of the board of trustees, or to precede the action of that body; it is enough that it is given in writing after the board has acted.
    The act of 1864, authorizing an appeal from the decision of the trustees to the board of education, makes no provision for a judicial trial on the sworn testimony of witnesses. The manner of investigating the appeal is left wholly in the sound discretion of the board of education.
    The statute vests the power of removal in the trustees, subject only to the approval of the inspectors, and where they are satisfied as to the incompetency of a teacher, with or without evidence, their power to remove him therefor cannot be questioned. (Per Lawrence, J.) /
    The power of the board of education to hear appeals from the action of the trustees, in removing teachers, is discretionary and not obligatory, and this court has no power to reinstate a teacher, by the reversal of the action of the board of education and of the trustees. (Per Lawrence, J.)
    Trustees are to be deemed to have notice of a stated meeting held pursuant to their by-laws.
    Certiorari to reyiew the proceedings of the board of. education on appeal from an order of the trustees of the Fourteenth ward of the city of New York, removing the relator from her position as an assistant teacher in one of the public schools in the said ward.

      WillÁam H. Rooney, for the relator.

      E. Delafield Smith, for the respondent.
   Davts, P. J.:

The relator was an assistant teacher in the male department of grammar school No. 21, in the Fourteenth ward of the city of New York, on the 29th of January, 1874. The board of trustees of common schools of the Fourteenth ward, at a meeting held by them, passed the following resolution: Resolved, that Miss

Catharine Murphy, - sixth assistant teacher in the male department of grammar school No. 21, in accordance with the recommendation of the city superintendent be, and she is hereby removed for in competency.” On the thirtieth of January a copy of this resolution was served on the relator, and another copy was filed with the clerk of the board of education. On' the fourth day of February the relator appealed to the board of education. On the sixth of February a majority of the inspectors of the district approved the removal of the relator, in writing, by signing a certificate to that effect, at the bottom of the copy of the resolution of the trustees, then on file with the board of education.

The board of education, pursuant to section 45 of the rules and regulations of said board, referred the appeal to the committee on teachers.' The relator, pursuant to notice, appeared before the said committee, on the 10th of February, 1874, in person and by counsel, and filed with the committee a series of objections to the proceedings of the trustees and inspectors, and to the regularity of her removal; upon which she insisted that, the removal, for all the purposes of this appeal, was and is irregular, and the appeal must therefore be sustained.” The committee overruled the objections and adjourned the hearing of the appeal to the seventeenth of February. On the seventeenth of February the relator again appeared, and presented and read to the committee a paper in the form of an affidavit,'to which she offered to make oath, but was informed by the committee that it was unnecessary to do so. The hearing-was then further adjourned to the twenty-fourth of February, at which time the relator appeared. The committee proceeded to hear the statements of the assistant superintendent, Mr. Harrison; an inspector of the district, Mr. Hunter; and one of the trustees of the ward, Mr. Smith; and of the relator, on her own behalf. The relator requested and insisted that the statements should be on oath, and the persons named should be sworn as witnesses. The committee refused to require the statements to be on oath. The relator also offered to' prove the facts alleged in her statements presented to the committee on its first meeting; the substance of which was that the principal of said male department ivas incompetent, both as a principal and teacher,” and that her incompetency was due to the incompetency and neglect of the principal. The committee refused to receive such proof, or to enter upon any investigation of the allegations against the principal or other persons named in the statement. The committee reported to the board a statement setting forth their proceedings, with a resolution approving the action of the trustees in removing the relator, together with a resolution requesting the trustees to transfer her to some position in one of the primary departments. On the 4th of March, 1874, the board of education disposed finally of the appeal by the adoption of the report of the committee and the resolutions therein contained.

The teachers employed in the public schools of the city do not hold a public office; they are simply employes of the trustees of the schools in whose service they are engaged; but the manner of employing and of removing them is regulated, to some extent, by statute. The twelfth section of the act relative to common schools in the city of New York, passed April 25, 1864,- provides that The board of trustees for the ward, by the vote of a majority of the whole number of trustees in office, may remove teachers employed therein, other than principals and vice-principals, and may. also remove janitors, provided the removal is approved, in writing, by a majority of the inspectors of the district; and provided, further, that any teacher so removed shall have a right to appeal to the board of education, under such rules as it may prescribe; and the said board shall have power, after hearing the answer of the trustees, to reinstate the teacher.” - • The number of trustees in each ward is five; and the number of inspectors in each district is three, The papers show that the relator was removed at a stated meeting of the board of trustees, four trustees being present, and that the resolution of removal was unanimously adopted; and it appears that two of the three inspectors afterward approved such removal in writing. The action of these officers, respectively, was strictly regular under the statute. It is not necessary that the approval of the inspectors should be given at the meeting of the board of trustees; nor is it required to precede the action of the latter body. It is enough that it is given in writing after the board have acted; and its indorsement in this case upon the resolution filed with the board of education was, we think, a proper and effective mode of expressing the approval.

The relator had taken her appeal before the approval of her removal by the inspectors. That might have been a proper ground for dismissing the appeal as prematurely taken, but was certainly no good reason for reversing the proceedings appealed from. Both parties having gone on with the appeal as though regularly taken, we are not at liberty to consider any question of regularity relating to the time or form of the appeal.

The more material points made, are, first, that the statements of the several parties were heard by the committee without oath, and that the committee overruled the request of the relator that the witnesses be sworn.

The statute makes no provision for a judicial trial on the sworn testimony of witnesses. The manner of investigating the appeal I is left wholly to the sound discretion of the board of education. I All that is said in the act on the subject, is, that the teacher so removed, shall have a right of appeal to the board of education, subject to such rules as it may prescribe; and the board shall have power, after hearing the answers of the trustees, to reinstate the teacher.” This supervisory power is not necessarily in the nature of a judicial trial of issues "of fact. The substantial duty of the board is, to see that iujustice has not been done to the teacher by the trustees, and that the removal has not been made upon improper or inadequate grounds. The delicate nature of the duty devolved upon the trustees, to see to it that unfit or incompetent persons are not put or kept in charge of the children who' attend the common schools, forbids the idea of a trial with the formality and strictness that belong to courts. It is only necessary to suggest that they must often act upon moral convictions, rather than established facts, and upon evidences of unfitness, physical, mental, or moral, that would not, in courts, be such proof as would justify a verdict of guilt of specific offenses or immoralities. Before the act of 1864, above quoted, their power over the subject of removing teachers, was subject to no restraint or review except that which the common law imposes upon all contracts between the employer and the employed. The law has only limited this power by specifying that it shall be exercised by a vote of the majority of the whole number 'of the trustees in office, and that the removal shall receive the approval in writing of a majority of the inspectors of the district. Where these requirements concur, the power of removal is as complete as ever, with the exception. that the teacher may appeal to the board of education and be reinstated, if that body, “ after hearing the answer of the trustees f are not satisfied that the removal was proper. To convert these proceedings into machinery for the formal trial of issuable questions of fact, would not, we think, be carrying .out the policy or intent of the law, and would be disastrous to the well-being and good administration of the schools.

The second point, in substance is, that the committee refused to take testimony in relation to the competency of the principal of the department in which the relator was an assistant teacher. This refusal was altogether right. No such question was properly brought before the board by the appeal. The relator could not exculpate herself by inculpating another, nor excuse the incompetency (which the offer on her part seemed to admit) by showing that it was caused by the alleged incompetencv of her superior. The fact, if established, would only have shown that both ought to have been removed, and not that she ought to be reinstated. The certiorari should be dismissed, with costs.

Daniels, J., concurred.

Lawbenoe, J.:

Assuming that this court has the power, on a writ of certiorari, to review the proceedings and decision of the board of education, in relation to the removal of teachers in the common schools of the city of New York, I have failed to discover, on_examining the case presented, any error which would warrant us in disturbing the action taken by that board.

Prior to the year 1864, the power to contract with and employ teachers in the schools was vested in the trustees in the several wards, under such general rules and regulations as the board of education might adopt. In the case of Gildersleeve v. The Board of Education, the General Term of the Court of Common Pleas held, Chief Justice Daly delivering the opinion, that the power to employ teachers necessarily implied the right to remove them. And this court held, in the case of the People ex rel. McHugh v. The School Officers, that, under the law as it then stood, the board of education had no appellate jurisdiction over the trustees of common schools in the exercise of their power to dismiss teachers of the ward schools. It appeared, in that case, that the board of education had passed a by-law, giving to a dismissed teacher the right to appeal to the board of education, when removed by the trustees. The court held that the right to prescribe general rules and regulations for the trustees in employing teachers, did not give to the board of education authority to supervise the action of the trustees in appointing or removing teachers. Just after the last cited case had been decided, the legislature passed an act by which it was provided that teachers, other than principals and vice-principals, should be appointed by a majority of the trustees; and that, “ The board of trustees for the ward, by the vote of the majority of the whole number of trustees in office, may remove teachers employed therein, other than principals and vice-principals, and may also remove janitors, provided the removal is approved in writing by a majority of the inspectors of the district, and provided further, that any teacher so removed shall have a right to appeal to the board of education, und&r such rules as it may prescribe, and the said boa/rd shall have power, after hearing the answer of the trustees, to reinstate the teacher.”

This act was undoubtedly passed to remedy the defect which the case of McHugh, above referred to, had shown existed in the laws relating to common schools in the city of New York, and was designed to give to the board of education that supervisory power in the matter of the removal of teachers, which McHugKs ease had settled did not reside in the board of education. But it will be observed that the power which is, by the act of 1864, vested in the board of education, is discretionary. That board has the power, on appeal, to reinstate a teacher, but there is no obligation on the part of the board of education to make such reinstatement. It appears by the case, that the board of education, pursuant to the power conferred by the act of 1864, adopted the following rule in relation to the hearing of appeals taken by teachers:

“ Section 45. Upon the dismissal of or application for the dismissal of a teacher, the board of trustees shall file with the clerk of this board a copy of the resolution directing the same, and notify the teacher, in writing, of the cause of such application. Said teacher shall have the right to appeal to this board within ten days after the service of the notice aforesaid, and said appeal shall be immediately referred to the committee on teachers, to examine into the facts and circumstances of the case, and report to this board. Pending the consideration of such appeal, no salary shall be paid to any teacher acting in the place and stead of said» appellant, without first obtaining the consent of this board, nor shall any appointment to the position occupied by the appellant be acknowledged by this board. If this board shall decide that there is no good cause for such dismissal, then said teacher shall be entitled to the position and salary he or she had at the time of such application, with pay.” The following rule was also adopted: Section 64. No teacher or janitor shall be appointed or removed, nor shall any work or supply be ordered or procured, nor shall any pay roll, or bill, or other claim be passed in any ward, except at a meeting of the board of trustees for the ward; and the making of every appointment or removal, and the passing of every pay roll, bill or other claim shall be certified to have taken place at a meeting of the board of trustees for the ward, at which a quorum was present, and the certificate shall be signed by the presiding trustee and the recording officer of the board, or else by a majority of the trustees.”

It appears by the return to the writ, that, on January 29, 1874, the board of trustees of the ward in which the school was situated, passed a resolution removing the relator for incompetency, and, that on the thirtieth day of January following, a certificate of such removal, containing a copy of the said resolution, was filed with the clerk of the board of education; and by said certificate it also appeared that the resolution was unanimously adopted at a stated meeting of the board of trustees of the Fourteenth ward. A copy of this resolution, with- a notice stating that the same was unanimously adopted at a meeting of the board of trustees, held on the 29th of January, 1874, was, on the 30th of January, 1874, served, on the relator; which notice was signed by three of the trustees of the ward, the president of the board being one of those signing. The certificate filed with the clerk of the board of education, was signed by four of the trustees, including the president of the board. There were, at that time, five trustees in each ward.

On the 4th of February, 1874, the relator appealed to the board of education ; and on the sixth of February two of the three inspectors of the second school district, approved of the action of the trustees in removing the relator, by certifying, in writing, to that effect. This approval was made and signed at the hall of the-board of education. The appeal taken by the relator was referred by the board of education to the committee on teachers, pursuant to the rule aforesaid. The relator and the trustees, or some of them, appeared before said committee, by whom an examination of the case was had; and, after considering said appeal, the committee sustained the action of the trustees, and, on the 4th of March, 1874, made a report to the board of education in favor of dismissing the appeal; which report was subsequently adopted by the board of education.

The relator’s counsel has argued before us, that all the proceedings for the removal of the relator were irregular and void.

I. It is contended that the resolution removing states that she was removed for incompetency, and that no proof of such incompetency had been laid before the board'of trustees, at the time the resolution of removal was adopted.

The answer to this point seems to me to be, that the power of removal was vested in the trustees, subject only to approval by the inspectors; and that if they were satisfied as to the relator’s in competency, with or without evidence, their power to remove the relator therefor cannot be questioned.

II. It is objected that the sole basis for the relator’s removal was the recommendation of the city superintendent to the board of trustees; and that the board was not authorized to act on such recommendation.

As the trustees were authorized to remove, it is immaterial whether their action proceeded upon their personal knowledge, or upon communications made to them by other persons.

III. It is further objected that it does not appear, affirmatively, that the removal was effected by the vote of the majority of the whole number of trustees, as required by the act of 1864.

The reply to this point is, that it appears that the resolution was unanimously adopted at a stated meeting, and that the certificate is signed by a majority of the trustees. In Gildersleeveds case it was held that the trustees are to be deemed to have notice of a stated meeting, held pursuant to the by-laws. As it nowhere appears that any one of the trustees was absent from the meeting, and as more than a majority of the trustees certify that the resolution of removal was unanimously adopted at a stated meeting, the presumption is that all the trustees were present when the resolution was adopted. At all events, the- certificate is presumptive evidence that a quorum was present.

IY. The approval of the inspectors was regular. There were, by law, three inspectors in this school district. I find nothing in the statute which requires the inspectors to give their approval to the removal of a teacher at a meeting of the trustees, or simultaneously therewith. Even if such approval should, hy law, have been given before the relator appealed, the point cannot avail the relator, because it proves only that the relator’s- appeal was premature. The cases cited by the relator’s counsel do not apply to this case, inasmuch as they are cases in which the power to remove is vested in two bodies designed bylaw to meet either in joint session or simultaneously. The act of 1864 contains no such requirement. The inspectors are not a board, and do not act as a board, but as individuals, clothed with certain official powers.

Y. All the points made by the relator’s counsel, in relation to the course of procedure on the appeal to the hoard of education, and as to the refusal to examine witnesses under oath, are, in my judgment, not well taken.

The statute has not prescribed any particular mode of procedure on the' part of the board of education, nor is there any requirement that witnesses shall be examined under oath. The by-law passed pursuant to the act of 1864, provides that the appeal shall be referred to the committee on teachers, “ to examine into the facts and circumstances of the case, and to report to this board.” It also provides that “if the board shall decide that there is no good cause for such dismissal, then said teachers shall be entitled to the position and salary he or she had at the time of such application, with pay.” Here, the committee on teachers made such examination and reported their conclusion to the board of education, by which board the report was adopted. ' The hoard of education, instead of deciding that there was no. good cause for the removal of the teacher, by adopting the report of the committee, affirmed that there was good cause therefor. 1 find no irregularity in this part of the case.

' YI. While it is now settled in this State, that upon a certiorari the court can examine into the proceedings of an inferior tribunal, and even into the merits of the case, I do not understand that it has power to overrule or nullify the judgment of the inferior tribunal, in a case where the judgment has been given in the exercise of a discretionary power. In this case, it will be observed that the act of 1864 has vested in the board of education a discretionary power upon the hearing of appeals from the action of the trustees in removing teachers. The board has power, after hearing the answers of the trustees, to reinstate a teacher. The exercise of such power is not obligatory or mandatory. It is discretionary or permissive after hearing the answer of the trustees. Now, in this ease, the court is asked virtually to reinstate the teacher by the reversal of the action of the board of education and of the trustees. The is no such power vested in the court.

Upon a thorough examination of the whole case, I am satisfied that this is not a case in which the court should interfere, even if vested with the power so to do; and I am, therefore, of opinion that the writ should be quashed, with costs to the respondents.

Writ dismissed, with costs.

       See Laws of 1864, p. 825.

       Laws of 1873,chap. 112, §§6, 7.

       Gildersleeve v. The Board of Education, 17 Abb., 207; People v. School Officers, 18 Abb., 170.

       Section 12, Laws of 1864, page 825.

      Laws 1851, chap. 386, § 10, Laws 1854, chap. 101, p. 241.

       17 Abb., 207.

         18 Abb., 165.

       Laws of 1864, p. 835.

       Laws of 1864, pp. 822, 824.

       17 Abt>. 207.

       Laws 1864, p. 832, et seq.

         Laws 1864, p. 825.

       Laws 1864, p. 835, sec. 13.

       People ex rel. Banks v. Board of Education, 3 Abb. ($T. S.), 185.


author: Babbett, J.:

text:
    THOMAS GILL and EFFIE MORTON, Appellants, v. THE PEOPLE OF THE STATE OF NEW YORK, Respondents.

      Oourt of Special Sessions—otyeatiom to jurisdiction of—how waived—appeal from —Certiorari—what is brought up by—Indictment—when good—prisoner testifying in his own behalf—cross-examination of.

    From the return to the writ of certiorari granted in this case, it appeared that the relators were originally brought before a committing magistrate and that they then elected to be tried before the Court of Special Sessions. Held, that by so doing they waived all objections to the jurisdiction of that court.
    After the relators had been convicted of keeping a disorderly house, their counsel desired the court to note an appeal to the Court of General Sessions. Upon the argument before the General Term, their counsel claimed that after such appeal the prisoners could not he committed to the penitentiary. Held, that the writ brought up only the record and the proceedings to and including the judgment, but nothing subsequent thereto.

      Qucei’e whether there is any appeal from the Court of Special Sessions except that provided by article 4, title 3, part 4, chapter 2 of the Revised Statutes.
    An indictment is good if the day and year can be collected from the whole statement, though they be not expressly averred.
    Where a prisoner testifies in his own behalf, it is the duty of the court to interrogate him as fully as may be necessary, to test the truth of his direct testimony.
    Wbit of certiorari to the Court of Special Sessions of the Peace in the city of ISTew York, to review the conviction of Thomas Gill and Effie Morton, of the misdemeanor of keeping a disorderly house.

      Peter Mitchell, of counsel for the appellants.

      P. K. Phelps, district attorney, for the respondents.
   Babbett, J.:

(1.) The justices of the Special Sessions return to the writ of certiorari that the appellants were originally brought before a committing magistrate, and there upon elected and required to be tried by such Court of Special Sessions. This return is not traversed, nor is there anything in the record, impugning its truth. This disposes of all the objections to the jurisdiction of the court.

(2.) At the close of the trial, and after the prisoners had been sentenced, counsel desired the court to note an appeal to the Court of General Sessions for a rehearing of the ease. The point is now made, that, after such appeal, the court erred in committing the prisoners to the penitentiary. The notice given to the court below, was not of an intention to remove the conviction by certiorari, and an offer to become bound in a recognizance to appear at the General Sessions, as provided by article 4, title 3, part 4, chapter 2 of the Revised Statutes. These provisions were abolished by chapter 769 of the Laws of 1857, but seem to have been restored by chapter 339 of the Laws of 1859.

We have not been referred to any law, giving a direct appeal to the General Sessions, with a rehearing in- that court, to a person convicted at the Special Sessions, except, perhaps, in cases of petit larceny, or assault and battery, not riotous; and then only where the prisoner had not demanded such trial. But the question does not properly arise upon certiorari. That brings up the record and the proceedings to and including, but not subsequent to judgment, and we have simply to determine whether any error has been shown, such as would justify a reversal of the judgment. If, as claimed, the judgment became void by a simple appeal to the General Sessions, then this certiorari was improperly issued, and should be quashed. The remedy in such case would be to offer the Special Sessions bail for trial at the General Sessions, and if this were refused, to procure the release of the prisoner, pending the new trial, upon habeas corpus issued for the purpose of fixing and taking such bail.

(3.) The remaining points call for no special consideration. That, as to the constitution of the court, has been decided adversely to the views of the appellants by the Court of Appeals. The objection to the form of the judgment of the court below, is not well taken. It is questionable whether even the particular situation of the house, by way of local description, need be stated. The objection to the form of the complaint, is equally untenable. It was not taken at any stage of fhe proceedings below, and the idea now advanced is certainly somewhat far fetched, viz., that a complaint is to be deemed barred by the statute of limitations, because no specific date is named. The complaint, however, does substantially aver that upon the 24th day of May, 1874, the appellants were the keepers of the disorderly house in question; that is clearly to be gathered from the entire complaint and its verification. The rule is well settled, that the indictment will be good if the day and year can be collected from the whole statement, though they be not expressly averred,

(4.) There is nothing in the exceptions as to the admission of testimony, nor was the objection specified under the appellants’ fifth point, taken to any particular question. It is evident from a perusal of the entire case, that the prisoners were not prejudiced by the admission of illegal evidence.

(5.) The remaining ground upon which a reversal is claimed, is that the court below erred in specially interrogating the prisoner. Gill chose to take the stand as a witness upon his own. behalf, and it then became perfectly proper, and indeed the duty of the court, to interrogate him as fully as might be needful to test the truth of his direct testimony.

(6.) We have gone over.the evidence, and are quite satisfied that the prisoners were guilty, and that the judgment was correct.

The conviction and judgment of the Court of Special Sessions should therefore be affirmed.

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

Judgment and conviction affirmed.

       The People v. Riley, 5 Park. 0. R., 404; Laws of 1855, chap. 337, § 5; Laws of 1859, chap. 491, § 1.

        2 R. S. (Banks’ 4th ed.), p. 903, § 55.

       § 25.

       § 1.

      2 R. S. (Edmonds’ ed.), pp. 739, 740, §§ 22, 23, 26.

       2 Bish. Cr. Pro., § 111.

       Star. Cr. Pl., ed. 55; 1 Bish. Cr. Pro., § 391.


author: Westbrook, J.:

text:
    SYLVANUS JUDD and another, Respondents, v. CHAUNCEY A. SMITH, Impleaded with WALTER MURRAY, Appellant.
    Oheek— drawer of, is not liable without presentment and notice.

    An action will not lie on a bank check against the drawer until after notice of presentment and non-payment.

      IbwJcer v. Anderson (21 Wend., 372) followed.
    Appeal by the defendant, Smith, from an order giving plaintiff judgment on account of the frivolousness of a demurrer to the complaint.

      L. B. Bunnell, for the appellant,
    cited Harker v. Anderson (21 Wend., 383), Boehm v. Sterling (7 T. R., 419), Cruger v. Armstrong (3 John. Cas., 5), Merchants’ Bank v. Spicer (6 Wend., 443).

      A. Prentice, for the respondents,
    cited Gough v. Staats (13 Wend., 549), Mohawk Bank v. Broderick (10 id., 304), Murray v. Judah (6 Cowen., 490), Bowen v. Newell (8 N. Y., 190).
   Westbrook, J.:

The complaint contains two causes of action, and each separately stated. The first is upon a check, dated Jersey City, August 17, 1872, drawn by the defendant, Smith, for the sum of $1,407, upon the Union Bank, and payable to the order of the defendant, Walter Murray. The second is upon a similar check of $1,320, dated Jersey City, August 24, 1812. Copies of both checks are given in the pleading, and they are averred to have been indorsed The complaint further states that.the checks were presented for payment, and payment was refused, whereupon they were protested for non-payment, and notice of demand of payment, non-payment and protest given to the defendant, Murray. The complaint fails to state that notice was given to the defendant, Smith, but claims a specified sum as due from both defendants to the plaintiffs on each check, for both of which specified sums they ask judgment, with interest and costs. The defendant, Smith, demurred to the complaint for the alleged reason that it did not state facts sufficient to constitute a cause of action.” Motion was made by plaintiffs for judgment, on account of the frivolousness of the demurrer, which was granted at the Special Term; and from such order and judgment the defendant, Smith, appeals. by the defendant, Murray, and delivered for value to the plaintiffs.

The appeal presents the single question, whether the complaint should have averred notice of the presentment and non-payment of the checks to the drawer.

In Harker v. Anderson it was held, Judge Co wen delivering the opinion, that “ an action does not lie on a bank check against the drawer, until after notice of presentment and non-payment.”

Edwards, in his Treatise on Bills and Promissory Notes, says: :£It is clear, also, that in an action against the drawer of a check, the holder cannot, in general, recover unless he shows that it has been presented for payment and dishonored, and that notice of nonpayment has been properly given.

Whilst there is some confusion in the cases, as to the time within which a check payable on demand should be presented, there seems to be none in regard to the necessity of a demand of payment, a refusal to pay, and a' notice thereof to the drawer, before he can be made liable by suit. If, therefore, the complaint in an action upon a written instrument, should state every fact which it is necessary to prove upon the trial to hold the parties to it, then this demurrer was well taken. The case of Conkling v.

Gandall, is directly in point to prove the affirmative of this proposition, and for the reasons therein given the complaint in this action must be held insufficient and the demurrer well taken.

The order appealed from should be reversed, with costs.

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

Order reversed, with costs.

       21 Wend., 372.

       Page 396.


author: Westbrook, J. :

text:
    OLIVER B. HINMAN, Respondent, v. JASON M. BOWEN and CHARLES M. NICHOLS, Appellant.
    Partnership— agreement of new member to pay debts of old, firm— right of creditor' to maintain an action on.

    This action was brought to recover money loaned, in 1867, to the defendant Bowen, who was ¡then carrying on business in the city of New York. Subsequently the defendant Nichols entered into partnership with Bowen, upon the agreement that the new firm should assume and pay the debts of Bowen. Upon the trial of this action, which was brought against the new firm, Nichols offered to prove that he was induced to enter into the agreement by fraudulent representations made to him by Bowen, and claimed that the promise to pay the old debts was void on account of such fraud. The court excluded the evidence. Upon an appeal from the judgment, held, that the evidence was proper and should have been received; whatever would he a defense to an action on the promise, brought by the defendant Bowen, would also he a defense to an action brought by the plaintiff.

      Merrill r. Green (55 N. Y., 370) followed.
    Appeal, by the defendant Nichols, from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      W. Sowa/rd Wait, for the appellant Nichols.

      Benjamin K. Phelps, for the respondent.
   Westbrook, J. :

Hpon the trial of this cause, which took place at the New York Circuit held hy Mr. Justice Barrett, on the 18th day o April, 1872, the plaintiff claimed to recover the sum of $2,00 with interest, which he had loaned about the 15th of August 1867, to the defendant Jason M. Bowen, who was then engaged i the business of importer of fancy goods, at .No. 43 Maiden lane, in the, city of New York. The right to recover against the defendant Nichols, was founded upon a subsequent partnership agreement between Bowen and Nichols, by which the new firm assumed to pay the debts of Bowen, of which this was one. The plaintiff was not a party to’the contract between Bowen and Nichols, but claimed to recover upon the promise which had been made to Bowen when the partnership was formed. Upon the trial the defendant, Nichols, insisted that he had a right to prove that he was deceived by Bowen as to the assets which were turned over to the partnership, and that if he made any promise, it was void on account of fraud perpetrated by Bowen. This evidence the court excluded, and ruled that any agreement between Bowen and Nichols, or any fraud that was perpetrated by Bowen on Nichols, even if proved, would not, under the circumstances, operate to prevent the plaintiff from recovering. The cause was evidently tried upon the theory, that if the debts of Bowen were assumed by the new firm, then the plaintiff could recover without regard to the equities existing between Bowen and Nichols. The learned judge, in charging the jury, said: The simple question for you to determine in this case, is, whether there was an agreement between Mr. Bowen and Mr. Nichols, in entering into this partnership,- that J. M. Bowen & Co., the new firm, should take the assets of Mr. Bowen which he had in the business then existing, and in consideration of taking the assets from him, should pay the liabilities of the business then existing. If that agreement was made, then the plaintiff is entitled to recover here.” It will be observed that the right to recover is not put upon the ground of the adoption and ratification of the contract by Nichols after the discovery of the fraud, if any such fact existed, but upon the simple ground of the original promise. Doubtless the court was influenced by the case of Lawrence v. Fox, in which it is held, that an action lies on a promise made by the defendant, upon valid consideration to a third person for the benefit of the plaintiff, although the plaintiff was not privy to the consideration.” It would seem to be a corollary from this proposition, that a cause of action having accrued to this plaintiff, he alone could discharge it, and that he should not be held responsible for any fraud in procuring a promise to which he was no party. In the recent case, however, of Merrill v. Green, the Court of Appeals held, that’ where a partner had given a bond to pay the debts of the firm on receiving its assets, upon an action brought upon such bond by a creditor of the firm to whom it had been assigned, that such obligation and promise, not having been made to the creditor bringing the action, but to the other partner, it was subject to the equities existing between the parties to it. In that case it was held that a note given to, and owned by, the partner assuming to pay the debts — by the one to whom the bond was given ■—■ was a valid counterclaim against the claim of the creditor suing upon the bond.

I am unable to distinguish the principle of that case from the one before us. The court in that action held, that “ the bond was subject to the same defense against the plaintiff that it was in the hands of Roberts at the time of the assignment.” The good sense of this rule is apparent. There can be no sound reason to hold a party to a promise made for a third person’s benefit, when such promise was procured by fraud, any more than to one made directly to another, when obtained by the same means. Ho one should profit through a fraud practised upon another, even though he is no party to it. In all cases of a promise to A for the benefit of B, the consideration proceeding from A, that consideration should be a legitimate subject of inquiry; and as the plaintiff in this case relies upon a promise made to another, whatever would be a defense to an action brought by the party to whom the promise was made, will also be a defense against this plaintiff. As the case was not tried upon this theory, but upon its exact opposite, there must be a new trial. Indeed, it is very doubtful whether an action can be maintained by the plaintiff upon the promise at all.. Without, however, passing upon that question, it is quite clear that there must be a new trial for the reason above stated, with costs to abide event.

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

Hew trial granted, costs to abide' the event.

       20 N. Y., 268.

       55 N. Y., 270.

       See remarks of Grover, J., on page 273.