text:
    GEORGE BRISBANE, Appellant, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Respondent.

      Corporation — liability of, for transferring stock without production of certificate — right of, to pay dividend to the administrator of one in whose name the stock stands.

    Appeal from a judgment, entered upon the trial of this action at the Special Term.
    The plaintiff brought this action to compel the defendant to issue to him a certificate for ten of its shares to which he claimed to be entitled as the transferee of ten shares of the stock issued by a corporation to whose rights and obligations the defendant is shown to have since succeeded, or in case of the inability of the defendant to issue such certificate for damages to the extent of the value of such stock. This certificate, of which the plaintiff was the transferee, was a certificate issued to Samuel Benedict, and it contained the statement that he was entitled to ten shares of the capital stock of the corporation issuing it, transferable only on the books of the company <ipon surrender of the certificate. Benedict executed a power of attorney, indorsed upon the certificate, appointing the plaintiff his attorney irrevocable to sell and transfer to the plaintiff the whole or any part of the shares specified. This power was given on the 1st day of January, 1856, but no transfer of the shares was made under its authority during the .lifetime of Benedict. After his decease and in the year 1876 his administrator procured a transfer of these shares upon the books of the defendant to himself. The certificate issued for the shares themselves was not and could not be by him produced, and according to its terms he was not entitled to the transfer of the shares which he caused to be made, and the defendant it was claimed made it without authority. It was for that reason held that the defendant was liable to that extent to the plaintiff in this action.
    In the intermediate time a stock dividend of fifty per cent had been declared in favor of these shares, and further dividends in cash had also been specifically credited to them on the books of the defendant. This stock dividend and the cash dividends, with the exception of one of them, were credited to Benedict, who appeared on the corporate books to be the owner of these shares, and they were accordingly paid over to his administrator at or about the time of the transfer of the shares themselves. The plaintiff insisted upon his right to recover the value of the stock dividend and the amount of the cash dividends paid to the administrator, but these portions of his claim were rejected as not well founded by the decision finally made in the action.
    The court at General Term said: “ His title to the dividends rests upon a different basis from that of his right to the shares themselves, for those shares could not lawfully be transferred without the surrender of the certificate which had been issued to authenticate the right of the person named in it to them. But as long as the books of the company contained evidence that the person who received the certificate ivas still to be regarded as the owner of the shares it had an authentic record upon which it could lawfully act, and that determined the disposition' which should be made of the dividends. Benedict stood upon the books of the company as owner of the shares. Nothing appeared to impeach his title; and as they were only transferable upon the surrender of the certificate, as long as that had not been done, no other alternative existed than to regard him as still the owner of the shares. To obtain the dividends upon the shares he ivas not bound to produce the certificate which had been issued for the stock, but he could do so upon the fact of his recorded title as long as no evidence appeared from which his right could be impeached or questioned. Payment to him under such circumstances would be a lawful and proper disposition of the dividends. This was the view which was taken of the subject in Smith v. American Coal Company (7 Bans., 317), and it is sustained by what was said upon the same subject in McNeil v. Tenth National Bank (46 N. Y., 325). And it was also considered to be a settled principle of law in Manning v. Quicksilver Mining Compa/ny, decided by the court in March, 1881. (24 Ilun, 360.)
    When Benedict died this right, as it appeared to exist in him, passed to his administrator, who by virtue of that relation acquired the same title to the dividends that Benedict could have asserted in case he had lived. A payment to him was authorized by the evidence of title standing upon the books of the corporation, and his failure at the time it was claimed to present the certificate issued for the shares was not a circumstance subjecting his title to suspicion, or justly rendering it a subject of inquiry.
    If notice had been given by the plaintiff of his right to receive the dividends accruing upon the shares, the case would undoubtedly require a different determination.”

      A. N. Weller, for the appellant.

      Hamilton Odell, for. the respondent.
   Opinion by

Daniels, J.;

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

J udgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    OLIVER W. BUCKINGHAM and LEONARD PURDSON, Jr., Appellants, v. EDWARD WHITE and Others, Defendants, and CHARLES G. KEYS, Respondent.

      Attachment — examination of apa/rty refusing to give a certificate of the property of the debtor held by hvm — what proceedings may be taken against him — Oode of Oml Procedure, secs. 650, 651.
    Appeal by the plaintiffs from an order denying an application made on their behalf, for an order requiring Charles G. Keys to furnish a certificate or statement of the property of the defendants, alleged to have been seized under an attachment.
    The court at General Term said: “ It was made to appear that Keys had been requested and had refused to make the certificate specified in section 650 of the Code of Civil Procedure. Because of that refusal he was required to appear and submit to an examination under oath, and that examination appears by the recital in the order to have taken place. After that there seems to have been no authority which the court could have been required to exercise for the purpose of obliging the respondent to make and deliver the certificate. The remedy of the plaintiffs, on the contrary, was precisely that which was adopted by them of examining him under oath as to the facts and circumstances, which they were entitled to have discovered under the authority of section 651 of the Code of Civil Procedure.
    That remedy they have taken, and it was a consummation of all that the Code had prescribed concerning such a proceeding. The respondent could not after that be ordered to make the certificate which he had previously refused to give, and as a consequence thereof had been subjected to an examination under oath on the application of the plaintiffs.”

      John J. Adams, for the appellants.

      Francis S. Bangs for Keys, respondent.

         See post, page 577.

   Opinion

Per Curiam.

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

Order affirmed.


author: Davis, P. J.;

text:
    CATHARINA DENTZ, Respondent, v. JOHN P. O’NEILL, Receiver of the Continental Life Insurance Company, Appellant.

      Application for a policy of life insur ornee — warrantees—construction of questions as to medical attendance.

    Appeal from a judgment in favor of tlie plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    This action was brought upon a policy of insurance issued by the Continental Life Insurance Company upon the life of Simon Dentz, late husband of the plaintiff.
    Numerous questions were raised upon the appeal, but the General Term considered that it was unnecessary to decide any of them except one, upon which it held that the appellant was entitled to a reversal of the judgment and a new trial. By the application for the policy the answers to the several questions contained in the application were declared to be warranties and “ that if the same or any part thereof are in any respect untrue, or if any concealment has been practiced therein,. * * * the policy to be issued hereon shall be void.” Among the questions contained in the application were the following: “ 14. Name and residence of the party’s usual medical attendant ? ” To this question the applicant answered : “ Have none.” “ 15. Has the said party within seven years consulted any other medical man than such as named above ? If so, whom, for what and when ? ” To this question the applicant answered: “ No.” Evidence was given on the trial tending to show that Dr. O. H. Kleinschmidt, of Georgetown, D. C., who was the attending physician of the applicant at the time of his death, had been his usual medical attendant, but the evidence on that subject raised a question of fact for the jury which was disposed of by the verdict. The evidence also tended strongly to show that within seven years next preceding the applicant’s death Dr. Kraus and Dr. Reilly, both physicians residing in Washington, had been consulted by the applicant, and each of them had on various occasions given him medical advice and attendance.

      In relation to the fifteenth question the court charged as follows: “ The fifteenth question is: £ Has the said party within seven years consulted any other medical man than such as named above \ If so, whom, for what and when ? ’ If he had no usual medical attendant and he has answered that interrogatory correctly the answer in the negative of the succeeding query would necessarily be correct because he had. not consulted any usual medical attendant.” To this charge exception was taken.
    The court at General Term said: “We think this charge was clearly erroneous. The fourteenth question called for the name and residence of the applicant’s £ usual medical attendant.’ The fifteenth calls for a statement whether the party has, within seven years, consulted any other medical man than a usual medical attendant, and if so to state whom, for what and when. The answer that the applicant had no usual medical attendant clearly did not justify him in saying that he had not within seven years consulted any other “ medical man ” than such a usual medical attendant, if in fact he had consulted a “ medical man ” who was not his usual medical attendant. His answer in the negative in such case would not, as charged by the learned judge, necessarily be correct, but would be untrue and incorrect. The idea of the court seems to have been that the fifteenth question has reference only to a usual medical man, named in response to the fourteenth question ; and, if none be named, then it would necessarily be correct for the applicant to answer that he had not, within seven years, consulted any other medical man, however many might have advised or attended upon him. The mistake seems to be in supposing that the words in the fifteenth question, “ any other medical man than such as named above,” have reference to some physician to be named in the answer to the fourteenth question, whereas the plain purpose and scope of the questions are to ascertain whether he had consulted any physician other than a usual medical attendant. In effect the applicant in this case declared that he had no usual medical attendant, and that within seven years he had not consulted any medical man.
    The two answers amount to an explicit declaration that he had consulted no physician whatever. If in fact he had consulted several physicians his answer was necessarily untrue and defeated the object of the question, which was in part to make inquiry of any physician he should name as having been consulted by him, whether he was a usual medical attendant or not. To hold that he might answer both these questions in the negative because he could properly answer the former in that manner, is to allow him to assert falsely a warranty that he had consulted no physician within seven years, because he could truly assert that he had no usual medical attendant. This construction would be a palpable violation not only of the object of the interrogatories but of their plain letter and spirit.
    The judgment must be reversed and a new trial ordered, with costs to abide event.

      O. W. Wingate, for the appellant.

      Samuel A. Blatehford, for the respondent.
   Opinion by

Davis, P. J.;

Brady and Daniels, JJ., concurred.

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


author: Daniels, J.

text:
    WILLIAM A. COIT, Respondent, v. EMILY L. GREY and Others, Appellants.

      Action to establish title to real estate, to remore a cloud upon the title — when it can be maintained.

    Appeal from a judgment in favor of the plaintiff, entered on a trial had at a Special Term.
    The court at General Term said : “As this case is now presented the simple point to be determined is, whether the action was properly sustained to ascertain and declare the plaintiff’s title to certain real estate in his possession. The property was owned by his wife, with whom he intermarried in 1827. At the time of her decease she left a will in form devising this property in trust during his life for the benefit of her sons, daughters and granddaughters.
    As issue of the marriage were born alive he became entitled to a life estate in this property as tenant by the curtesy. (Hatfield v. ■Sneden, 54 N. Y., 280.) This devise in trust during his life was plainly in conflict with his life estate and must therefore yield to his paramount right. But the facts necessary for the justification of such an adjudication do not all appear upon the face of the will. Some of them are required to be shown by extrinsic evidence. The devise, therefore, became a cloud upon his title which he was authorized to maintain an action to remove. (Marsh v. Brooklyn, 59 N. Y., 280; Keteltas v. Keteltas, 72 id., 312.) Evidence showing a record title in the testatrix at the time of her decease would render the trust declared by her in this clause of her will, in form at least, a perfectly legal devise. That creates a cloud upon the plaintiff’s title as life tenant, and the rule prevailing in equity is-that an action will be entertained to set aside a deed or instrument although it may be void at law, provided it purports to affect real estate, and will cast a cloud upon it. And when the preceding conveyances, in connection with the instrument, will enable the party to make out a prima facie title under it, a cloud is created. ( Woo’d v. Dewey, 16 N. Y., 519, 526, 527, 528, 529, 530.) This will is an instrument of that nature which it was within the jurisdiction of this court to declare inoperative so far as it in terms devise 1 in trust the plaintiff’s life estate.”

      WilUam N. Dyhman, for the appellants.

      N. Cothren, for the respondent.
   Opinion by

Daniels, J.

Beady, J., concurred; Davis, P. J., concurred except as to the costs of the appeal.

Judgment affirmed, without costs.


text:
    ROBERT P. CHANDLER and Others, Plaintiffs, v. HOLLIS L. POWERS, Assignee, etc., and Others, Defendants.

      Action to annul a general assignment — creditors who a/re preferred in it aré entitled’ to he made parties to it— Code of Civil Procedure, sec. 452.
    Appeal from an order denying a motion, made on behalf of the-appellants, to be allowed to become parties defendant in the action.
    The court at General Term said: “ The applicants are preferred creditors in a general assignment which it is the object of this action to annul. They have a direct and specific lien upon property forming the subject of the assignment, and therefore are interested in maintaining it. They are interested in the subject-matter of the action within the plain meaning of the terms used in section 452 of the Code of Civil Procedure.
    The order should have allowed them to be made parties for the protection of that interest.”

      Randall & Deshon, for the petitioners, H. B. and James Murchie, appellants.

      JSTelson Smith, for the plaintiffs, respondents.
   Opinion

Per Curiam.

Present — Davis, P. J., Beady and Daniels, JJ.

Order reversed and prayer of petition granted, costs to abide event of action.


text:
    JOHN O’BRIEN, Respondent, v. DAVID R. GARNISS, Appellant.

      Action to obtain a construction of a will and have a trust adjudged void — what may be interposed by the trustee as á counter-claim.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action at a Special Term.
    The action was brought to obtain a construction of the last will and testament of one Martin Walsh, and to have the title and right of possession of certain lands therein devised adjudged to be in the plaintiff. The defendant was a trustee (appointed by the court after the refusal of the trustees named in the will to act as such) of certain trusts declared in the will. He set up in substance that he was such a trustee, duly appointed and authorized to execute the trusts of the will, and that the acts charged against him were done by him as such trustee, and as a counter-claim alleged in substance that the plaintiff, in violation of his rights as such trustee, had unlawfully collected divers rents arising out of the trust property and converted the same to his own use and refused to account therefor. And he prayed as affirmative relief for a judgment in his favor against the plaintiff for the rent so collected, and in effect that the trusts of the will and the rights thereunder be adjudicated in his favor. The plaintiff replied to the alleged counter-claims, putting the same in issue.
    At the time of the testator’s death the plaintiff was in possession of the house described in the will as No. 807 Mott street, and continued such possession, receiving and collecting the rents for his own use. The defendant after his appointment as such trustee served notice of such appointment upon the plaintiff and the tenants in occupancy of No. 307 Mott street, and claimed the possession and rents of such premises and forbade the payment thereof to plaintiff. He also threatened and instituted or interfered with summary proceedings against tenants for non-payment of rent, and in short claimed and sought to enforce his claim that he was as trustee entitled to the control of the property and to the rents thereof.
    Upon the trial the defendant proved his appointment as trustee by this court and made divers offers to show the facts alleged in the answer as to the collecting of the rents by plaintiff of No. 307 Mott street, and also the collecting of the rents of lot No. 309 Mott street described in the will and devised in trust for certain minor grandnieces of the testator. Everything was excluded by the court on the ground that the matters alleged and offered were not the subject of a counter-claim. The defendant duly excepted.
    The court at General Term said: “ Ve think the court erred in the view taken of the action and of the rights of the defendant thereunder. It was tried as though it were an action of trespass at law or on the case for wrongfully interfering with the plaintiff’s tenants, but this was neither the object nor scope of the action.
    The defendant was brought into a court of equity upon a complaint setting forth the will of the testator, the probate of the same, the appointment of plaintiff to be executor, the appointment of defendant as trustee of the several trusts created or attempted to be created by the will, the allegation of the invalidity of the trusts in relation to No. 307 Mott street, the several acts of the defendant claiming that property as trustee and asking for an adjudication construing the will and declaring the trust void as to said No. 307 Mott street, and that plaintiff took the absolute title of the same under the will in fee, and was entitled to the possession and rents of the same. The trustee was at liberty in such an action to invoke a construction of the will in respect of all the trusts, and to have his rights and duties ascertained and declared by the court, and to pursue the plaintiff by seeking any remedy against him to .which a full construction of the trusts and of other facts touching the acts of the plaintiff in relation to the trust property alleged in the counter-claim should entitle him in the judgment of the court. His answer was sufficient for that end, and there was no need to turn him over to another suit for a determination of his rights and duties, and the enforcement of such portion of the trusts as might be held valid as against the plaintiff, and an accounting for moneys received by him which belong legally to the defendant as such trustee. The language of the Code of Civil Procedure (§ 501) is abundantly broad to cover such a case:

      “ 1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action.”
    Here the subject of the action is the construction of the will and the validity of the trust under which defendant assumes to act, and the object is to declare the trust void, and the plaintiff takes title by devise free from the trust; and the counter-claim seeks to establish the trusts, and to compel an accounting to the trustee for moneys alleged to have been collected by the plaintiff in hostility to the trusts, both as they affect the property claimed by plaintiff and other property embraced in the language of the trust, in which plaintiff asserts no personal interest, but the rents of which he is alleged to have received and converted to his own use. That this counterclaim and relief are connected with the subject of the action within the meaning of the Code cannot admit of doubt.
    It was error, therefore, not to have proceeded with the trial, as one asserting a counter-claim which might have established the validity of the trust as to one of the parcels of the property, and the liability of plaintiff to account to defendant for the moneys he should be shown to have received from that, while it, at the same time, might declare the trust affecting the property claimed by him to be invalid, and that he was entitled to keep the rents he had received from that.
    If other parties were proper or necessary to the disposition of the counter-claim the court could order them brought in, or could have reserved their rights, and no objection was made on such a ground.”

      Thomas Bracken, for the appellant.

      A. JR. JDyett, for the respondent.
   Opinion by

Davis, P. J.;

Brady and Daniels, JJ., concurred.

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


author: Davis, P. J.

text:
    Erastus Colvin, Respondent, v. The Courier Company, Appellant.

   Judgment affirmed. Opinion by

Davis, P. J.


author: Brady, J.

text:
    In the Mattes of Lewis Roberts.
   Order modified as directed in opinion, and affirmed as modified, without costs to either party. Opinion by

Brady, J.


author: Davis, P. J., and Brady, J.

text:
    Sarah Ann Green, Respondent, v. James W. Elwell, Appellant.
   Judgment affirmed. Opinions by

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


text:
    Jacob Simon, as Administrator, etc., Appellant, v. James Flannagan and others, Respondents.

   Judgment affirmed. Opinion by

Brady, J.


text:
    Catharine H. Marx, Appellant, v. Edward McGlynn, Executor, etc., and others, Respondents.

   —Order affirmed, with costs to the parties to be paid out of the fund. Opinion by

Daniels, J.


text:
    The People of the State of New York ex rel. William Ryan, Appellant, v. The Board of Police Commissioners of the City of New York, Respondents.

   Order affirmed. Opinion by

Brady, J.


author: Daniels,'J.

text:
    The People of the State of New York ex rel. Julia C. Shaw, Appellant, v. John McCarty and others, Respondents.

   Proceeding reversed, with costs to the relator. Opinion by

Daniels,'J.


text:
    Paul Zeiser, Respondent, v. International Navigation Company, Appellant.

   Order affirmed, without costs, and with permission to defendant to answer in twenty days on payment of costs of the demurrer. Opinion by

Daniels, J.


text:
    William R. Travers and another, Executors, etc., Respondents, v. John McB. Davidson, as Executor, etc., Appellant, Impleaded, etc.

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

Daniels, J.


text:
    Eliza Jane Christy, Respondent, v. Homœopathic Life Insurance Company, Appellant.

   Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    Francis Blackburne, Jr., Respondent, v. Ferdinand Weisgerber, Appellant, Impleaded, etc.

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

Brady, J.


text:
    Magdalena Johst, Appellant, v. Frederick S. Howard and others, Respondents.

   J udgment affirmed, with costs. Opinion by

Davis, P. J.


text:
    James F. Mahon, v. Albert F. Smith.
   Judgment affirmed. Opinion by

Brady, J.


text:
    Anselmo Schloss, Appellant, v. James N. Plumb and another, Respondents.
   Judgment reversed, new trial ordered, with costs to abide event. Opinion by

Brady, J.


text:
    David Stephenson, Respondent, v. Frederick Licht, Appellant.
   Judgment reversed, new tidal ordered, with costs to abide event. Opinion by

Daniels, J.


author: Daniels, J., and by Brady, J.,

text:
    The Corn Exchange Bank, Respondent, v. The Nassau Bank, Appellant.

   Judgment affirmed. Opinions by

Daniels, J., and by Brady, J.,

dissenting.


text:
    Almira Hancock, Respondent, v. George W. Rand and others, Appellants.

   Judgment affirmed. Opinion by

Brady, J.


text:
    William L. Pomeroy and others, Appellants, v. Alfred D. Israel and another, Respondents.

   Judgment affirmed. Opinion by

Davis, P. J.


text:
    John McKeon, Appellant, v. John H. Horsfall, Respondent.

   Order reversed, without costs. Order to he entered as directed. Opinion by

Davis, P. J.


text:
    Henry L. Nagle, Respondent, v. Robert MacFeeters and another., Appellants.

   —Judgment affirmed. Opinion by

Daniels, J.


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

text:
    John P. Stremmel, Appellant, v. Henry Ries, Respondent.
   Judgment reversed, new trial ordered, costs to abide event. Opinions by

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


text:
    Cornelius J. Ryan, Respondent, v. Silas W. Cochran, Appellant.

   Judgment affirmed. Opinion by

Davis, P. J.


text:
    Cornelius J. Ryan, Respondent, v. Silas W. Cochran, Appellant.

   Order affirmed, witli ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    John Finlay and others, Respondents, v. Cornelius H. Webster, Jr., Appellant.

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

Daniels, J.


text:
    Frank Lambert, Respondent, v. William G. Browning, Appellant.
   Judgment modified as directed, and affirmed as modified, without costs to either party. Opinion by

Daniels, J.


text:
    Leonard Ellis, Respondent, v. Levi Ellis, Appellant.

   Judgment reversed, new trial ordered, with costs to abide the event upon payment by tbe defendant of the costs of the trial. Opinion by

Daniels, J.


author: Per Guriam.

text:
    Samuel R. Platt and another, Executors, etc., Appellants, v. Charles H. Van Amburgh and others, Respondents.
   Judgment affirmed. Opinion

Per Guriam.


text:
    Joseph Agate, Respondent, v. Walter K. Martin, Appellant.
   Judgment reversed, new trial ordered, with costs to abide the event. Opinion by

Daniels, J.


text:
    Horace Andrews and Howard Ellis, Respondents, v. Thomas M. Tyng, Appellant.

   Judgment reversed and new trial ordered, unless plaintiff, within twenty days after notice of decision, make the stipulation suggested by the opinion, in which case judgment, as reduced by such stipulation, affirmed without costs. Opinion by

Daniels, J.


text:
    Isabella Wallace, Respondent, v. Frank R. Marks and others, Appellants.

   Judgment and order affirmed. Opinion by

Daniels, J.


text:
    Cyrus H. McCormick, Appellant, v. Pennsylvania Railroad Company, Respondent.

   Judgment reversed, n.ew trial ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    George Winter, individually and as Executor, etc., Respondent, v. Margaret Eckert and another, Appellants. Nicholas Stinger, as Executor, etc., Appellant, v. George Winter, individually and as Executor, etc., Respondent.

   Orders affirmed, with ten dollars costs and disbursements, to be paid by the appellant personally. Opinion by

Davis, P. J.


author: Daniels and Lawrence, JJ.

text:
    Thomas Boland v. The People of the State of New York.
   Judgment affirmed. Opinions by

Daniels and Lawrence, JJ.


author: Lawrence, J.

text:
    Washington E. Hall v. The People of the State of New York.
   Judgment affirmed. Opinion by

Lawrence, J.


text:
    George H. Burnett, Respondent, v. Sarah J. Burnett and others, Appellants.

   Order affirmed, without costs. Opinion

Per Curiam.


text:
    Cornelius Brinckerhoff, Appellant, v. Sarah S. Perry, Respondent.

   Order affirmed, with ten dollars costs and disbursements.


text:
    Thomas J. Pope, Appellant, v. The Copley Iron Company (Limited), Respondent.

   Order affirmed, with ten dollars costs and disbursements.


text:
    Joseph M. English, Respondent, v. Morton C. Fisher, Appellant.

   • — ■ Order affirmed, without costs. Opinion

Per Curiam.


text:
    Ferdinand Blancke, Administrator, etc., Appellant, v. Otto Zenke and Henry Zenke, Respondents.

   Decree affirmed, with costs.


text:
    Arthur I. Griggs, Respondent, v. John S. Brooks and others, Appellants. Same v. Same.
   Order reversed and motions granted, costs to abide event. Opinion

Per Curiam.


text:
    Charles H. Katt and another, Appellants, v. The Germania Fire Insurance Company, Respondent.

   Order of reference reversed, without costs, and appeal from order denying the motion to vacate stay dismissed, without costs. Opinion by

Davis, P. J.


text:
    Marcus T. Hun v. John W. Salter.
   Order affirmed, with ten dollars costs and disbursements.


text:
    George Bell, as Executor, etc., Plaintiff, v. Bernard Heilberger and others, Defendants.

   Order modified by directing payment of the referee’s fees and costs of two motions, to wit, twenty dollars, by the claimant, Langenbach, and as so modified affirmed, with ten dollars costs and disbursements of appeal.


text:
    L. D. Alexander and another, Respondents, v. The Chesapeake and Ohio Railway Company and others, Appellants.

   Order modified by directing the payment of the costs of trial, to wit, fifteen dollars for preparing for trial, thirty dollars for trial and ten dollars costs of opposing motion, and directing that the bonds be either deposited in the court or that they remain, pending the action, on deposit in the Central Trust Company, and as so modified affirmed, with costs of the appeal.


text:
    Henry Kroegek and others, Appellants, v. Charles M. Maxwell, Respondent.

   Order affirmed, with ten dollars costs and disbursements.


text:
    The Irving National Bank of New York, Appellant, v. Jay L. Adams, Respondent.

   Order affirmed, with ten dollars costs and disbursements.


text:
    Agnes R. Boucicault, Respondent v. Dion Boucicault, Appellant.

   Order modified, as directed in opinion. Opinion Per Guriam. Order to be settled by

Daniels, J.


text:
    The Royal Baking Powder Company, Respondent, v. George Sherrill and others, Appellants.
   Judgment affirmed. Opinion

Per Guriam.


text:
    Peter Van Zandt Lane v. Jedediah R. Haywood.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Margaret Coffey, Respondent, v. George W. Crossman and another, Appellants.

   Order affirmed, with ten dollars costs and

disbursements.


text:
    Andrew Stewart, v. Isaac Van Winkle.
   Order affirmed, without costs. Opinion

Per Guriam.


text:
    Evaristo Llorens, Appellant, v. Jacinto Costa and others, Respondents.

   Order affirmed, wfith ten dollars costs and disbursements.


text:
    Trenor W. Park, Respondent, v. Milo C. Huling, Appellant.

   Order affirmed, with ten dollars costs and disbursements.


text:
    Mary Stacom, Respondent, v. Freelove Moon, Appellant.

   Órder reversed and place of trial changed. Opinion

Per Guriam.


text:
    Silas C. Evans and Thomas P. Ball, Respondents, v. The Bolivia Ice and Lumber Company, Appellant.

   Judgment affirmed.


text:
    William M. Wilson and another, Appellants, v. Ann Maria Deen, Respondent.

   —Judgment modified by striking out the words “to the relief sought in this suit, nor ”— and as modified affirmed, without costs to either party.


text:
    Willard Baker and another, Appellants, v. The New York National Exchange Bank, Respondent.

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

Per Curiam.


text:
    Safeguard Fire Insurance Company, Appellant, v. John Greenway, Respondent.

   Judgment affirmed.


text:
    Mary Bowman, Appellant, v. Thomas Bowe and others, Respondents.

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

Per Curiam.


text:
    Etta Armstrong, Appellant, v. William A. Cummings, Respondent.

   Order affirmed, with ten dollars costs and disbursements.


text:
    De Witt C. Mather, Plaintiff, v. Samuel T. Mather, Executor, etc., and others, Defendants.

   Order affirmed, with ten dollars costs and disbursements.


text:
    Mary F. Rogers, Respondent, v. Sarah James and others, Appellants.

   Order affirmed, with ten dollars costs and disbursements.


text:
    Virginia B. Matthews, Appellant, v. Edwin Tufts, Respondent, Impleaded, etc.

   Order reversed and motion denied, with ten dollars costs and disbursements.


text:
    Levi M. Bates and others, Respondents, v. Julius Levy, Appellant, Impleaded, etc.

   Order affirmed, with ten dollars costs and disbursements.


text:
    Erastus H. Benn, Respondent, v. The First National Bank of Elmira, Appellant.

   Order modified so as to direct a change of the place of trial from the county of New York to the county of Chemung, upon the defendant stipulating that the plaintiff may take the testimony of such witnesses as he desires to examine, residing in the cities of New York and Brooklyn, before a referee to be designated here, to be read upon the trial with the same effect as though the witnesses were personally present; and if the defendant shall fail, within twenty days from the service of the order herein to stipulate to that effect, the order is affirmed, with costs to abide the event.


text:
    In the Matter of George W. Erskine.
   Motion to vacate the order of General Term denied.


text:
    In the Matter of the National Trust Company.
   Motion for reargument denied. Opinion by

Davis, P. J.


text:
    David D. Acker and others, Appellants, v. George W. Miller, Respondent.

   Order affirmed, with ten dollars costs and disbursepnents.


text:
    James Whitman, Plaintiff, v. Louisa M. Simon, Defendant.
   Order affirmed, with ten dollars costs and disbursements, on the opinion of Cullen, J., in the court below.


text:
    Wilhermina Kilian, Appellant, v. The Mayor, etc., of the City of New York, Respondent.

   Judgment reversed, new trial ordered, with costs to abide event. Opinion by

Davis, P. J.


text:
    Elizabeth Russell, Respondent, v. Henry D. Minor, Appellant.

   Motion denied, without costs.


text:
    Joseph A. Vose v. Francis S. Street.
   Motion denied, without costs and without prejudice.


text:
    John J. Duryea v. William C. Traphagen.
   Judgment and order affirmed, with costs. Opinion by

Davis, P. J.


text:
    The Baltimore and Ohio Railway Company, Appellant, v. Alexander T. Arthur and another, Respondents.

   Order reversed. Order to be entered as directed in opinion. Opinion

Per Curiam.


text:
    William H. H. Jones, Appellant, v. George H. Randall, Respondent.

   Order affirmed, with ten dollars costs and disbursements, on the opinion of

Lawrence, J.


text:
    Alfred W. Ladd, Appellant, v. The Terre Haute Car and Manufacturing Company, Respondent.

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

Brady, J.


text:
    Edmund R. Morris v. Ira B. Tuthill.
   —Motion denied in case the plaintiff satisfies the judgment obtained against defendant and assigns certificate of real estate purchased by him on the execution sale, otherwise granted. Opinion

Per Curiam.


author: Per Qwriam.

text:
    George J. Desh v. Oliver W. Barnes.
   Motion for reargument denied. Opinion

Per Qwriam.


text:
    Philip H. Adee, v. Charles G. Cornell and others.
   Motion granted as far as to relieve the receiver from payment of costs, but without prejudice to right of respondent to apply for order directing payment of costs awarded to respondent by the persons at whose requests the application for leave to prosecute was made.


text:
    Darius Miller v. Elmore A. Kent.
   Motion to modify order granted. Order to be settled by

Brady, J.


text:
    Peter K. Knapp and another, Respondents, v. Augusta S. Knapp and others, Appellants.

   Judgment reversed and new trial ordered, the question of costs reserved. Opinion by

Brady, J.


text:
    John Sullivan, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.
   Judgment reversed and new trial ordered.


text:
    John Gray and another, Respondents, v. The New York Floating Elevator Company, Appellant.
   Judgment and order affirmed, but without prejudice to a motion to be made on a case at Special Term for a new trial on the questions of fact. Opinion by

Davis, P. J.


text:
    Edward D. James v. George Shea.
   Reargument ordered.


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

text:
    In the Matter of Lube. In the Matter of Harriet A. Walter, as Executrix, etc. In the Matter of Bach.
   Order modified as directed in opinion, and affirmed as modified, without costs to either party. Opinion by

Davis, P. J., and by Daniels, J.,

dissenting.


text:
    Fire Department of New York, Respondent, v. James H. Morrow, Appellant.
   Order reversed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    Elbert S. Jemison and others, Appellants, v. The Citizens’ Savings Bank of Jefferson, Texas, Respondent.
   Order reversed, without costs. Opinions by

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


text:
    Samuel H. Randall, Respondent, v. Emelyn P. Carpenter, Appellant.

   Orders on both appeals affirmed, without costs to either party.


text:
    Samuel Baron, Respondent, v. Jacob C. Cohn, Appellant, impleaded, etc.

   Order modified as directed in opinion, and affirmed as modified, without costs of appeal.


text:
    Eugenia Roche, Respondent, v. Francis J. Moissen, Appellant. Same v. Same.
   Orders affirmed, with costs to abide event.


text:
    In the Matter of the Guaranty Company of North America.
   Petition granted.


text:
    In the Matter of the Fidelity and Casualty Company.
   Petition granted.


text:
    In the Matter of William Leonard. In the Matter of A. Warwick, to Vacate Assessment, etc.
   Orders affirmed. See opinion

Per Curiam.


text:
    In the Matter of Cornelia A. Gilman.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


author: Bockes, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. TIMOTHY F. BUSH, Respondent, v. WILLIAM L. THORNTON, Appellant.

      Bribery — when it rests upon the people to show that individual voters were bribed— the bribery does not disqualify the pa/rty guilty of it from holding office — nor does his inability to truthfully take the oath of office disqualify him from holding the office.

    This action was brought by the people to oust from his office a county judge who had received the highest number of votes cast at the election, and who had, after receiving the certificate of the board of county canvassers, taken and subscribed the required oath of office, upon the ground that prior to the election he had publicly promised the electors of the county that he would, if elected, perform the duties of his office for $1,300 less than the amount of his salary as fixed by the statute.

      Held, that all votes cast for the defendant under the influence of such promise were illegal, and in a proceeding in the nature of a quo wa/rranto against him should be rejected.
    That in such proceedings it was incumbent on the relator, in order to have judgment of ouster against the defendant, to prove affirmatively that of those who voted for him a number equal at least to the majority certified in his favor cast their votes for him under such improper influence.
    That neither the bribing of electors nor the offer to them of a bribe by a person receiving the certificate of election would render him ineligible or disqualify him from holding office, in the absence of a constitutional or statutory provision declaring such disability.
    Nor in like case would the fact that he could not truthfully take the oath of office render him ineligible.

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

      Thornton A. JViven, for the appellant. -

      T. F. Bush, for the respondent.
   Bockes, J.:

The facts in this case on which the questions of law involved in it must turn should, as I think, be briefly stated. The relator and the defendant were rival candidates for the office of county judge of Sullivan county at the general election in November, 1878, and were the only candidates in nomination and voted for at that election, save as there were a few votes for that office returned as scattering, not necessary to be here noticed. By the certificate of the board of county canvassers it was declared that the whole number of votes cast at that election for the office of county judge was 6,179, of which number 8,211 were for the defendant and 2,947 were for the relator. The defendant was declared to be duly elected, and the certificate of his election was awarded to him in due form. Thereupon he took and filed the requisite oath of office and January 1, 1879, entered upon the duties of the office. He continued to perform the duties of the office until the commencement of this action in December, 1879, and, also, until ousted therefrom by the judgment herein January 21, 1881. The salary of the office at the time of the election was, and for six years next preceding that time had been, fixed by law at $2,500.

The facts relied on as a basis for the judgment of ouster were the following, to wit: Preceding the election and in view of his candidacy the defendant made public, general and repeated promises and pledges to the electors of the county that he would, if elected, accept $1,200 in full for his services as county judge; and he issued a card directed to them and gave it circulation and publicity throughout the county, which card was as follows:

* * * *■ -* *

I here repeat that if elected to the office of county judge I will pledge myself to take only $1,200 for my services; that I will pay out of my own pocket the coal necessary to heat my law office; that I will pay for all stationery and letter heads, and will see that those persons needing blanks shall pay for them themselves. If by so doing I have committed a criminal offense let Judge Bush make the most of it by lodging a complaint against me before the next grand jury.

Has heaping on taxes become a virtue in this county, and an attempt to reduce them become a crime ? Let the people answer.

W. L. THORNTON.”

He also executed a bond with two sureties to the treasurer of the county in the penal sum of $10,000, whereby he bound himself, if elected, to perform the duties of county judge for $1,200, and that in case the supervisors should persist in raising the balance of $1,300 this sum should be turned over to the poor fund to the credit of the county. And this sum having been raised for the year 1879 he placed it to the credit of such fund as he had promised he would do.

As above stated the defendant received the highest number of votes for the office, and was by the board of county canvassers awarded the certificate of election in due form and on the 27th of November, then next following, he took and subscribed the oath of office as follows:

STATE OF NEW YORK,

County of Sullivan,

I do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of New York, and that I will faithfully discharge the duties of the office of county judge and surrogate, in and for said county, according to the best of my ability.

A.nd I further solemnly swear that I have not directly or indirectly paid, offered or promised to pay, contributed or offered, or promised to contribute any money or other valuable thing as a consideration or reward for the giving or withholding a vote at the election at which I was elected to said office, and have not made any promise to influence the giving or withholding of any such vote.

WILLIAM L. THORNTON.

Sworn before me, this 27th day of November, 1878.

G. Pendell, Dep. Cleric.

Some evidence was given in regard to the number of votes on tbe poll-lists and tax-rolls of the towns of Fallsb.urgh, Liberty and Rockland, but this evidence was deemed of no importance in the view taken of the case by the learned judge before whom it was tried.

No proof was given on the trial, nor was any offered showing or tending to show by just legal intendment that any vote was cast for the defendant by reason of his promises and pledges to accept $1,200 for his services in case of his election ; the learned judge holding in effect that such proof was wholly unnecessary to the establishment of the case against the defendant as charged. On this subject the learned judge said: “I am aware that there is no evidence from any witness who voted at the election for the defendant that he did so in consequence of such pledges and promises. This I regard immaterial, and so stated at the trial when the relator proposed to give evidence of such a characterand the case was determined, in one view of it, upon the correctness of this conclusion. This presents one of the questions for our consideration on this appeal.

The learned judge also further held that by making and publishing the promises and pledges above alluded to, to the voters of the county, with intent to procure votes thereby, the defendant rendered himself incapable of truthfully subscribing and taking the oath of office prescribed by the Constitution; and, as matter of law, that the taking and subscribing the oath was null and void, and that he was in no better position to retain the office and to discharge its duties than if he had neglected to take the oath; and, further, that by rendering himself incapable of truthfully taking the oath of office, he became ineligible and incapable of entering into and holding it. These conclusions present another question here for our determination.

In the first place let us notice the precise legal position of the defendant as his case is presented on admitted facts.

He was charged by a direct proceeding in the name of the people, by the attorney-general, with unlawfully intruding himself into the office of county judge, and he was called upon to show by what right and authority he held and exercised the functions of that office. Thus he was required in due form of law to show his right to the office. Now, in the first instance, the burden of proof was ■on the defendant. He was bound to show his title to the office. This requirement was met and answered by the production of the record of his election, made and filed by the proper officers, showing his due election to the office, and also by proof that he had subscribed and taken the requisite oath. It was averred and admitted in the pleadings that he held a certificate of election from the board ■of county canvassers in due form, and correctly made from the regular returns of the votes cast at the election. This certificate declared him to have been duly elected to the office according to law. This was his muniment of title to the office, and was a perfect protection to him against the charge of usurpation, so long as its integrity and validity remained unimpeached. On this state of facts the case was with the defendant, and now the burden of proof was cast upon the relator to show that the former held and exercised the right of ■office without authority of law, notwithstanding he held the certificate of his election in due form. The correctness of this conclusion is well supported by authority, if indeed any were necessary •on so plain a proposition. (The People v. Cook, 8 N. Y., 67; The People v. Pease, 27 id., 45, 55; The People v. Thacher, 55 id., 525; Phelps v. Schraw, 26 Ohio St., 550.) These cases and many others hold that the certificate of election, duly made and filed according to law, establishes the right of the party named in it to the office as therein declared. True, it is but prima facie ■evidence of his right and title, but it remains his perfect protection until its correctness is overthrown or its integrity impeached. How may this be done 1 This inquiry is answered by the decision in The People v. Pease, above cited, where it is held that upon atrial of a quo warrcmto to determine the title to an office depending upon ■a general election, the question is, who received the most legal votes ? It is, then, to this subject that our examination must be here directed. It is made to appear from the pleadings and proofs that the whole number of votes cast for county judge in the county was 6,179; of which number the l’elator received 2,947 and the •defendant 3,211, scattering or disallowed twenty-one; showing a majority of 264 in favor of the defendant over the relator. Now, is it made to appear that there were 265 or 264 illegal votes counted for the defendant ? It was laid down in Ex parte Murphy (7 Cow., 153), that the fact should be shown affirmatively that a sufficient number of improper votes were received for the successful party to-reduce it to a minority if they had been rejected; or the election should stand. In The State v. Olin (23 Wis., 309), it was held that, the burden of proof was upon the party denying the legality of a vote actually cast, and that this rule applied to a vote obtained by bribery. And, again, in The State v. Purdy (36 Wis., 212), a case-very similar on the facts to this in hand, the learned judge, in concluding his very elaborate and able opinion, says : “ It follows from the foregoing views that if the defendant succeeds in showing, as he alleges in his answer, that a number of the electors, exceeding the majority of the relator, were influenced to vote for the latter solely by reason of the offers or propositions made by him as aforesaid, the votes so obtained should be rejected.” Now, it is conceded that there is no proof, in any individual instance, that an illegal vote was given to or counted for the defendant; yet the entire number of 3,211 votes cast for him at the election was rejected by the court, and on the ground that it was to be presumed that enough of them were invalid or illegally cast to overcome his majority, because of his general public promises and pledges made to the voters that he would, if elected, perform the duties of the office for $ 1,300 less than would be allowed him by law. This ruling, we think, was-erroneous. In effect, it was a rejection of the entire vote given tollina with no affirmative proof that a single illegal vote was cast for him. The presumption indulged and acted upon by the court at Special Term was as effectual against the whole as against any one vote. If there was any admission or proof which would operate to render any one specific vote illegal, the same existed in this case as to all, and all alike should be held to be illegal, there being no-proof that any one vote was cast uninfluenced by the defendant’s promises and pledges. Indeed, this was the effect of the decision at Special Term. But there was in fact no evidence showing, either positively or by fair and just legal intendment, that even one illegal vote was cast for the defendant at the election. Grant that his promises and pledges should be considered as the offering of a bribe for votes, and there is no proof that any voter accepted the bribe by casting his vote on the faith, or by reason of the illegal offer. It cannot be fairly presumed that a person committed an offense on proof simply that he was tempted. The court should not presume, in the absence of any satisfactory evidence of the fact, that any voter acted in giving his vote both immorally and criminally. This was a matter to be proved — a fact to be substantiated by competent evidence — before it cbuld be made the basis of judicial action. The offer of a bribe to a voter, with no evidence that he accepted the offer, should not be held to disfranchise him. So it should not be held that the offer of a bribe generally to the electors of the county, with no proof of its acceptance by any one, disfranchised all or any such persons as voted in accordance with the request or wishes of the party tendering the bribe. It is very manifest that such disfranchisement would work a great wrong. It would deprive honest voters of their just rights as good and faithful citizens. It was said in The People v. Cicott (16 Mich., 305): “No voters who have honestly voted ought to lose their ballots unless it is impossible to give them effect.” In this case it may seem highly probable that some of the electors accepted the alleged bribe and gave the defendant illegal votes. This, however, is not made certain either by direct proof of the fact or by fair and necessary legal intendment. But admit probability to exist, then to how many, to what number of the electors, will even such probability apply ? Not to the ■entire number cast for the defendant, being a majority of the electors of the county. Such conclusion would be most startling, manifestly most unreasonable and unjust. Then where can the line be drawn with such legal certainty as to make it a basis of judicial action ? No more at number 264 or 265 than, at any higher or lower number. Then it cannot be said that it is affirmatively established that a sufficient . number of illegal votes were counted for the defendant to place him in a minority had they been rejected.

The certificate of election held by the defendant therefore remained unimpeached, as there is no suggestion of mistake, irregularity or fraud either in the returns made by the inspectors of election from the several election districts, or in the ultimate canvass by the board of county canvassers. It is not disputed that the board of canvassers made a true statement of the votes, and of all of them, cast at the election, and for whom given. There is no pretense of mistake, error or irregularity committed by the inspectors of election at an election district, as was charged and made a subject of examination in The People v. Thacher, and in The People v. Cook, above cited, and also in The People v. Saxton (22 N. Y., 309). Indeed tbe truthfulness of the certificate is not denied; that is, it is not disputed that the board of county canvassers truly certified the exact number of votes cast at the election and for whom cast; and that on allowing the votes to the respective parties, as in. fact given at the polls, the defendant had a majority of 264 over his competitor for the office. Therefore, in the absence of aiBrmative proof that there were at least 264 illegal votes (that is, in this case, at least 264 votes cast by bribed voters) allowed to the defendant in the county canvass, the judgment of ouster against him cannot be sustained on the ground that he did not receive a majority of the legal votes cast at the election.

Relying upon this ground as a basis for a judgment of ouster against the defendant, the relator must make the affirmative proof above indicated or fail in the action. {Ex parte Murphy, 7 Cow., 153; The People v. Pease, 27 N. Y., 45, 55, 56; The People v. Thacher, 55 id., 525; The State v. Olin, 23 Wis., 309; The State v. Purdy, 36 id., 213.)

The next question demanding our attention is this: Whether the promises and pledges made by the defendant to the electors of the county, to the effect that if elected to the office of county judge he would perform the duties of the office for $1,300 less than the amount fixed by the statute for such services, disqualified him from taking and holding the office; in other words rendered him ineligible to its acceptance.

The rights to hold office and to exercise its functions and to enjoy its honors and emoluments constitute the highest privileges of citizenship. In our form of government these rights inhere in every male citizen of full age, unless incapacitated to have and enjoy them by reason of some express provision of the Constitution or law; and the courts cannot take those rights away save by virtue of a declared power of disfranchisement based on some specified wrongful or criminal act. Wrong doing or criminal conduct which will constitute or work ineligibility, or disability to hold office, to be enforced through the judicial power of the State must be expressly defined and declared by the Constitution or laws. Granting, then, that the promises and pledges made by the defendant to the. electors of the county in this case constituted an offer of a bribe to them to cast their votes for him, where in the Constitution or in the law is such offer declared to create ineligibility to office ? We do not find it to be so declared in terms either in the Constitution or laws of this State. The offer of a bribe to an elector is unquestionably a grave offense and is punishable as such, but it is punishable only in the manner and to the extent prescribed by the Constitution and laws. Section 2 of article 2 of our State Constitution excludes from the right of suffrage every person who shall either accept or offer a bribe for the giving or withholding of a vote at any election. And by statute bribery of an elector as well as the offer to him of a bribe, having in view the influencing of his vote, is made a misdemeanor punishable by fine and imprisonment. Such are the penalties prescribe^ by the Constitution and laws of our State against those offenders. But they are not declared to be also ineligible to office, or to be disqualified from holding office. Now it is a canon of construction applicable alike to constitutions and laws relating-to criminal or quasi criminal matters, that when either defines an offense and imposes a penalty therefor, the specification of such penalty is an implied prohibition against all additional punishments and forfeitures. In The State v. Pritchard (36 N. J., 101, 105) it was insisted that inasmuch as the law prohibited a convict from being a witness in a judicial proceeding, and in consequence thereof the Constitution'deprived him of the right of suffrage, as a necessary result there was a deprivation also of the prerogative to hold office. Beasley, Ch. J., answered that this was a manifest non sequitur. The learned judge added: “ Because as a punishment the law has denounced the loss of two of the rights of citizenship it does not follow that a third right is to be withheld from the delinquent.”' And, further, he says: “ Indeed the reverse resxxlt is the reasonable-deduction, because it is clear on common principles that no penalty foj; cifime but that which is expressly presei’ibed can be executed. The fact that several penal conseqxiences are annexed by statute to-the commission of a breach of the law cannot warrant the aggravation by the judicial hand of the punishment prescribed.” And Danforth, J., in Bonnell v. Griswold (80 N. Y., 135), says: “I cannot imply a term into a statute for the purpose of extending or imposing a penalty.”

It follows, therefore, that no punishment or forfeiture can be imposed by the court upon the defendant for the offense here claimed to have been established against him, other than such as are prescribed by the Constitution and laws. These do not embrace disqualification to hold office for the offense here alleged.

This conclusion disposes of the suggestion that disqualification to hold office, although not within the letter is within the spirit of the provisions of the Constitution and laws, which prescribe penalties and forfeitures against persons guilty of the offense of bribery at elections. The cases to which we are cited in support of this suggestion (The People v. Allen, 42 N. Y., 404, and The People v. Albertson, 55 id., 50) have here no application, as it is entirely manifest that disqualification to hold office is not, by any fair construction, within the intent of the Constitution and laws denouncing penalties and forfeitures against bribery at elections. What was intended by the Constitution and laws in that regard is specifically and distinctly stated in them, and by settled principles of construction the penalties and forfeiture there prescribed cannot be added to or enlarged by intendment. Nor has the statute, which declares that an office shall become vacant in case the incumbent shall be “ convicted of an infamous crime, or of an offense involving a violation of his oath of office ” (1 R. S. [6th ed.], 420, sub. 5 of § 40), any application here. The conviction there alluded to means a conviction by a direct proceeding against the incumbent on criminal indictment. There is no pretense that the defendant has been so convicted. (See, also, Cave v. Shaver, 3 Watts & S., 338.)

We are also cited to cases where persons have been excluded from public bodies for bribery in procuring their appointment or election thereto, but in those cases such bodies were empowered to determine questions of membership. Those eases do not touch the question of disability to hold office presented to the court on a proceeding by or in the nature of a quo warrcmto.

It is strenuously urged by the defendant’s counsel that the promises admitted to have been made by the defendant to the electors of the county, that if elected he would perform the duties of the office of county judge for $1,300 less than the sum fixed by law for such services, were not offers or an offer of a bribe within the meaning of the Constitution; that they constituted a pledge merely to correct a subject of just complaint made by tbe people against what they deemed an oppressive legislative burden upon them; that the promises were made in the interest of a just reform, with no criminal intent. But this argument seems to be borne down by the weight of authority. In view of the numerous cases, both in England and in this country, in which the subject of selling offices and of the bidding for offices has been under discussion, we must hold such promises and pledges as were made by the defendant to the electors of the county in this case to be reprehensible in the extreme, being against public policy, and in fact criminal, being no less than an offer in the nature of an intended bribe to the electors to whom they were made. In view of what has been said in the following cases, and in those therein cited, further examination of and comment upon this subject is quite needless: Hall v. Gavitt (18 Ind., 390); Carrothers v. Russell (63 Iowa, 346); The State v. Purdy (36 Wis., 213); Walsh v. The People (65 Ill., 58); State v. Dustin (5 Oregon, 375); State v. Collien (18 Am. Law Reg. [N. S.], Mo., 768); State v. Stevens (23 Kan., 465); Tucker v. Aikin {7 N. H., 113); Carlton v. Whitcher (5 id., 196); Meredith v. Ladd (2 id., 517); Alvord v. Collien (20 Pick., 418; King v. Plympton (2 Lord Raym., 1377); Rex v Vaughan (4 Burr., 2494); Waldo v. Martin (2 Carr. & Payne, 1.) These cases, as vre think, warrant the conclusion that the promises made by the defendant to the electors were in violation of public policy, and indeed criminal, even by the common law. But as herein above stated, they did not per se, and in the absence of all constitutional and legislative declaration, create as a penalty a disability to hold office.

In England bribery in procuring an office created a disability to hold it. (5 and 6 Edw., 6, chap. 16; and 49 Geo. III, chap. 126.) In Iowa it is provided by law that an election to a county office may be contested “ when the incumbent has given or offered to any elector * * * any bribe or reward in money, property or thing of value for the purpose of procuring his election.” Carrothers v. Russell {supra) was decided in vie^ of that statutory provision. In Kansas it is declared by constitution that no person guilty of giving or receiving a bribe, or offer to give or receive a bribe * * * shall be qualified to vote or to hold office.” The ease of The State v. Stevens (23 Kan., 456) was a proceeding for mandamus and has no application to the question of disability here under examination. In Oregon it is declared by constitution that “ every person shall be disqualified from holding office during the term for which he may have been elected, who shall have given or offered a bribe, threat or reward to procure his election.” It was in view of this provision that The State v. Dustin (supra;) was decided. In Wisconsin the statute declares a disqualification to hold office against such persons as should obtain it by bribery; and in Ohio disqualification is declared by law. Research has not been further extended, and it may be that similar constitutional or legislative inhibitions may exist in some other States of the union. We have not in this State any similar provision, either in the constitution or laws. It may be here pertinently asked, what need of expressly declaring this inhibition in those States if it existed there, as it is claimed to exist here, without so declaring it ? The disability was doubtless made constitutional in some State.s and was declared by law in others, under the belief, well founded too, as we think, that it was necessary to make such express declaration and provision in order to create the disability thus pronounced. We are cited to no case in which it has been held that disability to hold office exists in the absence of a constitutional or legislative provision so declaring.

The case of The State v. Purdy (supra), very much relied on by the relator’s counsel, does not decide that disability in the party to hold office was created or caused simply by his attempt to bribe the electors; but the decision proceeded on the ground (unnecessary if the other could be vindicated) that the right of the contestants for the office depended upon the question as to which of them received the highest number of legal votes, holding those votes to be illegal on principles of public policy, and as cast in violation of law, which were given under the influence of the improper promises and pledges made to electors. We conclude, therefore, that in the absence of constitutional or statutory provision so declaring, that ineligibility to office or disability to hold office cannot be pronounced by the court because of bribery or attempting to bribe electors. Yotes east under the influence of a bribe proved to have been so given should not, on grounds of public policy and because of the criminality of the act, be counted; but this goes to the count — to the allowance of the vote — and does not touch the question of disability to hold office because of bribery. Whether a law declaring such disability would or would not be just and politic in this State is a subject for consideration by the legislative branch of the government. It is the business and duty of courts to enforce laws. They cannot make them, however desirable they may be or however great the necessity for their existence.

It was further held, at Special Term, that the defendant was not eligible to the office to which he was elected by the electors of the county, because he could not truthfully take the oath of office ; that because he could not truthfully take the oath of office he was in no better position to retain the office and discharge its duties than if he had neglected to take the oath.

This ruling we deem to be unsound. Where, in the Constitution or the laws of this State, is it declared that false swearing in taking the oath of office disqualifies a person from holding the office to which he was elected ? We are not cited to any such constitutional or statutory provision, nor are we aware of any. Such false swearing may be perjury, but the crime of perjury has certain pains and penalties attached to it by law. Can the court add to them any others not declared either by the Constitution or laws ? This question is answered by our conclusion on the subject last above considered. As has been already stated, it does not lie with the court to enhance the pains, penalties and forfeitures provided by law for the punishment of crime; nor can it add any disability to these pains and penalties not expressly declared by the Constitution or laws.

Disability to hold office would follow indictment and conviction of perjury, as the statute declares that an office shall become vacant in case the incumbent shall be convicted of an infamous crime.

The law requires that a person elected to office shall take and subscribe the requisite oath of office, and that if he shall omit so to do within the prescribed period the office shall become vacant. But it does not further declare that the office shall also be deemed vacant if the officers shall not swear to the truth in taking such oath, or that he shall in that case be disqualified from holding the office. The law denounces against the offender certain pains, penalties, forfeitures and disabilities, and these, and none other, the court may inflict and impose. Thus we are of the opinion that the Special Term was in error in holding the defendant was disqualified from bolding the office because he was guilty of false swearing in taking the oath of office. This, too, may be perhaps a very proper subject for consideration by the legislative branch of the government. The courts can, however, deal only with the law as it exists, without adding to it or detracting from it in order to meet exigencies not anticipated or provided for.

It follows that the judgment must be reversed.

Boardman, J., concurred; Learned, P. J., concurred in the result.

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


author: Bocees, J.:

text:
    ARTHUR S. COUCH, Respondent, v. THE ROCHESTER GERMAN FIRE INSURANCE COMPANY, Appellant.

      Policy of insurance — condition against the use of kerosene — when it is waived by knowledge of its use by the company — when the company is chargeable with, its agent’s knowledge.

    A condition, in a policy of insurance issued upon a factory, avoiding it in case petroleum should be used or kept therein, will be deemed to have been waived if it be shown that, at the time of issuing the policy and accepting the premium thereon, the company knew that the factory was to be run at night and was to be lighted by kerosene oil; and knowledge of such facts by its agent is the knowledge of the company.
    It is unimportant how or when knowledge of such facts was obtained by the agent, if in fact he possessed it at the time of issuing the policy and accepting the premium.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    This action was brought upon an insurance policy issued upon the plaintiff’s building, which was used for drying hair. The policy contained among the usual printed conditions the following clause: * * * “ if gunpowder, fireworks, phosphorus, naptha, benzine, gasoline or petroleum fluid, or crude earth or coal oils, or any other articles of an extra hazardous or specially hazardous nature are used or kept on the premises, except that kerosene oil may be used for lights in dwellings; or if campheue, burning fluid or refined earth or coal oils are kept for sale, stored or used on the premises in quantities exceeding one barrel at a time, at any one time, without written consent,” then the policy should be void.
    No permission to use any kind of oil was written in the policy. On the night of the fire there were used for lights on plaintiff’s premises two ordinary lanterns filled with “ head-light oil.”
    The court at the trial held that “ head-light oil” was kerosene oil within the meaning of the policy.
    The plaintiff introduced testimony tending to prove a knowledge upon the part of the defendant’s agents that pflaintiff intended to work nights and burn oil for lights, and a consequent waiver of the condition of the policy by defendant. To such evidence the defendant’s counsel objected. The objection was overruled, the evidence was admitted and the court held it to be a question for the jury “ as to whether there was a knowledge on the part of this defendant when it issued this insurance policy, or whether the agents were informed by plaintiff that the factory was to be run in the night and that they were to use kerosene oil as a means of lighting it.”

      Erasf/us P. PI art, for the appellant.

      Jacob Schwartz, for the respondent.
   Bocees, J.:

The learned judge on the trial held that the use of head-light oil,” for lighting the building described in the policy of insurance, being a refined petroleum product, constituted a breach of the condition of the policy prohibiting the use of petroleum and kerosene for such purpose, and rendered it inoperative and void unless the .defendant’s company had knowledge, when it issued the policy, that the “ factory ” was to run during the night-time, and was to be lighted by the use of kerosene oil. We are inclined to concur in the ruling, that the use of head-light oil ” for lighting the building was a breach of the condition of the policy prohibiting the use of kerosene oil and other fluids manufactured from earth or coal oils. Such is the plain meaning of the condition on which the defense is based; and the sole question therefore is, whether such condition was or was not waived by the knowledge of the defendant, at the time of issuing the policy, that the factory was to be lighted by the use of “ head-light oil.” The appellant insists (1) that such knowledge of itself would not operate as a waiver of the condition; and (2) that if it would so operate, the fact of knowledge was not established by the proof.

First, then, let us inquire as to the effect of knowledge by the company on the issuing of the policy, that the “factory” was tobe run during the 'night-time, and was to be lighted by the use of “ head-light oil.” This inquiry is answered favorably to the respondent by the decision in Bennett v. The North British, etc., Ins. Co. (81 N. Y., 273). In that case the policy contains a condition that it should be void if “ refined coal or earth oils are kept for sale, stored or used on the premises without written consent,” and it was held that inasmuch as the agent of the company inspected the premises and was informed that kerosene oil was used for lighting, and saw the means provided for that purpose, the policy was not avoided by the use of kerosene without written consent. Judge Andrews says: “ It cannot be supposed, without imputing bad faith to the defendant’s agent, that the use of kerosene for lighting was intended to be prohibited. The inference, from the facts found, is that its continued use was contemplated. * * * The acts of the parties were a practical construction of the language 'of the condition, to the effect that kerosene, as used by the insured, was not within it.” It was also there further suggested that the defendant might not only be deemed to have waived the condition, but also, within the decision in Van Schoick v. The Niagara F. Ins. Co. (68 N. Y., 434), to be estopped from setting up the forfeiture. These expressions of Judge Andrews had, as it seems, the concurrence of all the members of the court. Besides, they are fully in accord with other decisions both in the Supreme Court and in the Court of Appeals. (Broadhead v. Lycoming Ins. Co., 14 Hun, 452; Chase v. The People's Ins. Co., 14 id., 456; Dacey v. The Agricultural Ins. Co., 21 id., 83, 89 ; Miaghan v. Hartford F. Ins. Co., 24 id., 58; Richmond v. Niagara F. Ins. Co., 79 N. Y., 230, 237; Whited v. Germania Ins. Co., 76 id., 415.) In the light of these authorities, knowledge by the company at the time of the issuing of the policy, and its acceptance of the premium, that the factory was to be run during the night-time, and was to be lighted by the use of head-light oil,” would preclude the defense here urged.

Then, secondly, was knowledge of such facts by the defendant established by the proof ? On this question the jury found for the plaintiff.' Is the evidence sufficient to support the verdict ? The decisions are numerous to the effect that the knowledge of the agent in a case like this is the knowledge of the company. Then had the defendant’s agent knowledge, when he negotiated the insurance, of the means employed and to be employed in lighting the factory ? How or when the knowledge was acquired, if possessed at the time of issuing the policy, was immaterial. (Broadhead v. Lycoming F. Ins. Co., 23 Hun, 397.) On looking into the case it will be seen that there was some evidence, and, if fully credited, sufficient evidence submitted to support the verdict. Certainly there was evidence tending to show that the agent possessed such knowledge. The contrary cannot with fairness be pretended or maintained. It must suffice to say that there was proof on this branch of the case sufficient to make it one of fact for the jury.

It is urged that the evidence showing or tending to show that the agent possessed the knowledge with which it was sought to charge him was inadmissible. The principal objection urged is that the knowledge or information obtained by the agent or imparted to him, was acquired at a time or at times other than when this insurance was under consideration; that the observations made by the agent as to the means of lighting the factory, and the conversations had with him relating to that subject, were wholly disconnected with the obtaining of this insurance. But, as above stated, how or when the information wras obtained was unimportant, if in fact possessed at the time the policy was issued and the premium was accepted. {Broadhead v. Lycoming F. Ins. Co., supra.) We find no sufficient ground to support the objection that the evidence was improperly received. There was, it is true, a sharp conflict on some if not all of the material questions of fact, but it was for the jury to settle these controverted questions of evidence.

The order and judgment appealed from must be affirmed, with costs.

Boaedman, J., concurred; Learned, P. J., concurred in the result.

Judgment and order affirmed, with costs.


text:
    W. IRVING MILLER, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Special verdict cannot be enlarged by intendment— stolen goods must have been feloniously received, to authorize a conviction.

    Upon the trial of an indictment charging the prisoner with having feloniously received stolen property, knowing it to have been stolen, the jury brought in a verdict in writing, finding “the prisoner guilty of receiving stolen goods, knowing them to be stolen.”

      Held, that the verdict was a special one and could not be enlarged by intendment; and that as it did not find that the prisoner received the goods feloniously, it was not sufficient to sustain a conviction.
    Writ of error to the Court of Sessions of Schenectady county to review the conviction and sentence of the plaintiff in error of receiving stolen goods, knowing them to have been stolen. The first count of the indictment charged that the plaintiff in error feloniously broke into a freight car in the night-time and carried away five barrels of flour, and the second count charged him with having feloniously received the said five barrels of flour, knowing them to have been stolen.

      J. II. Chite, for the plaintiff in error.

      J. T. Schoolcraft, district-attorney, and W. P. Ooodelle, for the people.
   Bockes, J.:

A leading and, as I think, the controlling question in the case arises on the form of the verdict and the effect to be given it. There was no conviction of the prisoner under the first count of the indictment for burglary. As to this there is no question; then does the record show his conviction under the second count, for feloniously receiving stolen property, knowing it to have been stolen. "When the jury first returned into court the verdict was given as follows: “ We find the prisoner guilty under the last count in the indictment of receiving stolen goods, knowing them to be stolen.” This was a general verdict of guilty under the second count, and would have been all that was necessary to a perfect reqOrd conviction had it been placed on the record and remained there as the final verdict of the jury. The count averred that the prisoner feloniously received, etc., and a verdict of guilty under such count would have been a finding against him on this averment. But it seems that this verdict was not accepted. It was not entered in the minutes of the trial. It being objected to, the court said to the jury: “ Gentlemen — If you wish to do so, you may now retire and consult again, and put your verdict in form.” Thereupon the jury retired to their room, and having further deliberated, returned and gave their verdict m writing, as follows: “We find the prisoner guilty of receiving stolen goods, knowing them to be stolen.” This verdict was accepted as the final verdict of the jury, and was entered as rendered in the minutes of the trial kept by the clerk, and was the only one of which record was made. This -was not a general verdict of guilty, as it would have been had it been given, guilty under the second count of the indictment, or guilty as therein charged. But it was a special verdict. A special verdict cannot be enlarged by intendment. It cannot be held to mean more than is expressed by it. So the verdict cannot be held to be a finding that the prisoner felonioxisly received the property, although it be found that he received it, knowing it to have been stolen. It was held in The People v. Johnson (1 Park., 564), that in order to constitute the crime of receiving stolen goods, knowing them to have been stolen, the stolen property must be received feloniously. This was "also held in Chatterton v. The People (15 Abb., 147), where Olerke, J., says: “A person may indeed receive goods and know them to have been stolen without being guilty of a criminal act, for he may receive them with the intention of restoring them to the owner.” The verdict, therefore, here rendered was insufficient to convict the prisoner, as it was not a general verdict of gnilty as charged in the second count of the indictment, and as a special verdict it did not find him guilty of feloniously receiving stolen goods, knowing-them to have been stolen. The conviction and judgment must consequently be reversed.

Learned, P. J., and Boardman, J., concurred.

Judgment and conviction reversed, and case remitted to Sessions for new trial.