text:
    George Campbell et al., Resp’ts, v. Robert F. Sloane, Impl’d, Appl’ts.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Principal and agent — Accounting—Variance.
    In an action for an accounting, in which the questions at issue were the relations between the parties, as to' whether such relations entitled the plaintiffs to an accounting, and to other equitable relief, though the term given to the defendant S. in the complaint of **selling agent” was not aptly suited, yet upon evidence showing that he was an agent of plaintiffs, and that the designation was a mere misnomer, the referee is_ warranted in according the relief to which, under the proof offered, plaintiffs were entitled.

      Appeal from judgment in favor of plaintiffs entered upon report of a referee.

      Abraham Gruber (Alfred R. Page, of counsel), for app’lt; Holt & Butler (George C. Holt, of counsel), for resp’ts.
   O’Brien, J.

This action was brought for an accounting. The complaint, in substance, alleges that the plaintiffs, who were engaged in business as waterproof and India rubber manufacturers, in the city of Glasgow, Scotland, had, in the year 1888, entered into an agreement with the defendant, Sloane, by which th clatter was employed as their selling agent in the city of New York, and that at divers times, in the years 1888, 1889 and 1890, the plaintiffs shipped from Glasgow to the defendant at New York large quantities of goods and merchandise, consisting mainly of material for making up rubber garments, which were received by the defendant; that it was provided in such agreement that the goods should be shipped upon defendant Sloane’s request, and that such request should be made only to secure fulfillment of actual ordeis for such goods antecedently received by the defendant; that the defendant should sell the goods when received at such a price that the net proceeds which the plaintiffs should realize upon such sales would be not less than the invoice price of such goods at Glasgow, which net proceeds defendant was to remit to the plaintiffs as the sales were completed. It was further alleged that, in violation of this agreement, requests were sent for goods for which no antecedent orders had been received, and that sales of goods were made at a price less than the invoice price, and that the defendant had failed to remit the proceeds of sales made by him, as required by the agreement. Then followed an allegation that the defendant held, as agent of the plaintiffs, “ large quantities of goods and merchandise, machinery, furniture and fixtures, and other property, including book accounts and cash, all of which is the property of the plaintiffs.” The portion of the complaint referring to the defendant Bell avers that, prior to the making of the agreement with Sloane, Bell had acted as the plaintiffs’ selling agent in New York, but ceased to act on the making of such agreement, but thereafter became associated with defendant Sloane in his business as selling agent of plaintiffs, “but the nature of the relation between Sloane and Bell is unknown to plaintiffs; ” but that by reason of such relation Bell claimed some right in the business of Sloane, and particularly the right to sell and dispose of some portion of the property.

The relief asked was for an injunction, restraining the disposition of the property, for a receiver of the goods, merchandise, machinery, furniture and fixtures, and other property, including book accounts, and for the turning over to the plaintiffs of all property in the possession of either of the defendants belonging to the plaintiffs. Upon this complaint and an affidavit a preliminary injunction was granted, and upon the motion to continue this injunction during the pendency of the action an offer was made by plaintiffs’ attorney to give a bond conditioned for the payment of all charges of the defendant Sloane, upon condition that the latter should turn over to the plaintiffs all the goods and merchandise in his possession or under his control, or that of his codefendant, Bell. The offer having been accepted, an order was entered, providing, among other things, for a reference. It appeared as a result of this order that the defendant Sloane turned over to the plaintiffs, under their claim of title in the same, in addition to the goods and merchandise, all the machinery, fixtures and book accounts. The answer of the defendant Sloane denied that his relation to plaintiffs was that of a selling agent, but admitted the possession of certain goods, wares and merchandise consigned to him by plaintiffs; but, by way of counterclaim, alleged that he had advanced for their use and benefit about the sum of $10,000, which he claimed as a lien on the goods, and for which he prayed judgment, and it was to secure such counterclaim, if established, that the bond was given.

Upon the issues thus presented, a great amount of testimony was taken by the referee; and while it was shown that the original relation which Bell had with the plaintiffs as their agent for the purpose of selling their goods or soliciting orders had remained unchanged, and that the defendant Sloane was not, strictly speaking, their selling agent, the argument that there was a fatal variance between the allegations of the complaint and the proof, such as would have entitled the defendant to a dismissal of the complaint, or prevented the motion to conform the pleadings to the proof, we do not regard as well founded. The defendant Sloane conceded that at his request the plaintiffs had consigned large quantities of their goods, both manufactured and in piece, for which they had his guaranty that upon the sale thereof they should receive a sum equal to the net invoice price at Glasgow. .

It -would appear that the original mode of doing business, after the agreement with Sloane, at first consisted in Bell’s obtaining orders for the plaintiffs’ articles as manufactured in Glasgow, which were forwarded through the defendant Sloane to plaintiffs, and by the latter filled by consignment of the goods called for by the orders to Sloane, and by him distributed to those ordering them. Later, however, the defendants undertook, at first on a small scale, and then in a larger way, to order piece goods from plaintiffs, and, with the machinery which they had themselves procured, proceeded to manufacture here rubber garments out of such piece goods. Whether the plaintiffs ever acquiesced in or consented to the defendants’ engaging in the manufacturing business for their account, in which, as it would appear, there was a loss, was the principal question litigated upon the trial; for upon it depended the establishment of the defendant Sloane’s counterclaim. That the defendants, Sloane and Bell, held towards the plaintiffs the relation of agents is beyond dispute. And the appellant is mistaken in assuming that the complaint or the judgment of the referee was based upon the theory that a recovery should be allowed as for goods sold and delivered. The plaintiffs’ right to a return of the property and to an accounting, as shown by the complaint, was squarely placed upon the ground that the defendants held towards them the relation of agents, and having, in that capacity, obtained possession of their property, under an arrangement that they were to guaranty that not less than the invoice price should be remitted to plaintiffs, the latter were entitled to a return of the money received by the defendant Sloane upon a sale of their goods to an - amount equal to that guaranty, and upon breach of the agreement they were entitled to a return of the property which he held in his possession unsold. It will thus be seen that we do not agree with the appellant’s contention that the plaintiffs were allowed to recover on an entirely different cause of action than that pleaded. Nor do we think the criticism justified, upon the pleadings and proof, that the record presented the anomaly of one cause of action pleaded, a second and distinct cause of action proved, and a judgment on a cause of action neither pleaded nor proved. On the contrary, we think, in an equitable action of this kind, brought for an accounting, and in which the questions at issue were the relations between the parties, as to whether such relations entitled the plaintiffs to an accounting and to other equitable relief, though the term given to the defendant Sloane of “selling agent” may not be aptly and peculiarly suited to his position, the referee was not prevented, upon evidence showing that he was an agent of the plaintiffs, and that this designation was a mere misnomer, from receiving the proof and according the relief to which, under the proof offered, the plaintiffs were entitled. The issues as to the true relation between the parties, the condition of the accounts, and the amount due from one to the other, were purely questions of fact, depending for their solution upon conflicting testimony and the investigation of complicated accounts ; and under such circumstances it is only in case a distinct error or errors can be pointed out that this court will undertake to disturb the conclusion reached thereon by a referee. The duty of the court in such cases is thus stated in Roosa v. Smith, 17 Hun, 138:

“We understand this court has the power to examine the evidence and the findings of fact in cases tried before the referee or the courts; that it has the power, and it is its duty, to interfere when facts have been found without evidence, or clearly against evidence; but we do not understand it can be called on in doubtful cases, upon conflicting evidence, depending upon the character and credibility of witnesses, to review and readjust the facts upon the evidence as it shall appear to it on paper.”

The referee having found in plaintiffs’ favor upon the question disposes of the contention that they were responsible for the loss in the manufacturing business carried on in New York; and so we might say with regard to the substantial questions presented in the case; and, were it not for the error into which the plaintiffs’ counsel originally fell in claiming, in addition to the merchandise, the machinery, fixtures and book accounts as the property of the plaintiffs, there would be no ground for disturbing the judgment. Having, however, obtained an injunction on the ground of such ownership of machinery, fixtures and book accounts, and having thereunder obtained possession of them, and, so far as appeared, having still possession of them, we fail to see why credit lor the value of this property so taken should not have been allowed by the referee. The referee in taking the account charged the defendant Sloane with consignments to him from the plaintiffs at their invoice value, giving him credit for cash remitted, merchandise turned over in bond, and for damaged goods, thus leaving a debit balance of $2,023.43 ; and it was for this amount that judgment was awarded.

We had hoped, upon'an examination of the record, in order to avoid a new trial, that we could have determined the value of these articles, and permitted a modification of the judgment to that extent But, under the view taken by the referee, that the defendant Sloane was not entitled to credit for the value of the machines, fixtures, samples and patterns, because never turned over to the plaintiffs by the defendant Sloane or by anybody else, but sparse evidence of such value was admitted in the case, and it is, therefore, impossible for us to determine what allowance should be made to the defendant Sloane therefor. With respect to the machinery, it may well be, from the relation existing between Bell and Sloane, that such machinery was the property of Bell, and not the property of Sloane; but this cannot be determined from the evidence. All that appears tends to show that the machinery was procured by Bell with moneys advanced by Sloane, but whether this was under an arrangement that the title was to be in Bell or in Sloane is left in doubt. This doubt is increased when we remember that the machinery was placed in premises occupied by both Bell and Sloane.

The referee’s finding that it was not turned over to the plaintiffs by anybody is clearly without support in the evidence, because it distinctly appears from the testimony of one of the plaintiffs that twelve of the sewing machines, which, he testified, if new, would be worth about six pounds apiece, and one button-hole machine, which would be worth eighteen pounds new, but which he testified was, because old and. defective, of little value, were in his possession. In addition, one of plaintiffs’ attorneys’ firm testified that he took possession of these machines and sent them over to plaintiffs ; that the fixtures in the place he sent to a Mr. Wright, who was then the plaintiffs’ representative in this country ; and that, as to the books of account, he took them himself, though he subsequently turned them over to Mr. Wright, who wrote to the people concerning the debts due from them. It will be remembered that the conclusion that the defendant was indebted to the plaintiffs in the amount found by the referee was reached by charging the defendant with the invoice price of goods consigned, and that still the book accounts, which represented the prices obtained by the defendant Sloane for the goods sold, were being collected for plaintiffs’ account, thus preventing the defendant Sloane from collecting moneys for the very goods with which, in the account, as between him and the plaintiffs, he had been charged. In other words, in addition to obtaining the value of the consignments in the shape of a judgment based upon the invoice value of the goods, the plaintiffs took book accounts which represented the only means left to the defendant Sloane to obtain for himself payment for the goods for which, by being charged, he had accounted to plaintiffs. We think, therefore, that for the book accounts taken possession of by the plaintiffs, or transferred to them, to the extent, at least, that the same were collected, the defendant is entitled to a credit; and we also think that, the machinery and fixtures being taken from the possession of Sloane by force of the injunction order; which, concededly, the plaintiffs had no right to take, because not their property, the value of such machinery and fixtures should be credited to the defendant, unless it was proven that Sloane did not own them. As we cannot determine upon the evidence the amount of such credits, nothing remains to be done except to reverse the judgment, and order a new trial before a new referee, with costs and disbursements to appellants to abide the event.

Yah Brunt, P. J., and Follett, J., concur.


source: Caselaw Access Project

author: Herrick, J.

license: Public Domain

text:
    The People, Resp’ts, v. John J. O’Melia, App’lt.

      (Supreme Court, General Term, Third, Department,

      Filed February 15, 1893.)

    Disorderly house — Liability of landlord.
    Whether a person keeps the house himself, or leases it to another to be used as a house where people can have unlawful sexual intercourse, he is equally guilty.
    Appeal from judgment of conviction of the crime of keeping a disorderly house.

      Gleason & Dugan, for app’lt; James W. Eaton, dist. att’y, for resp’ts.
   Herrick, J.

This is almost entirely a question of fact. The recorder had the witnesses before him, and could judge of their truthfulness.

Whether he kept the house himself or leased it to another to be used as a house where people could have unlawful sexual intercourse, he was equally guilty. People v. Erwin, 4 Denio, 129. The judgment should be affirmed.

Mayham, P- J., and Putnam, J., concur.


author: Mayham, P. J.

text:
    Cordelia Hartwell, Resp’t, v. Halleck Young, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    Contract — Statute of fauds — Quantum meruit.
    DlaintifE entered into a contract with defendant to work for Mm for one year to commence two or three days later. She worked for twenty weeks and then left. In an action for the work performed by her. Held, that such contract was void under the statute of frauds and that plaintiff could recover on a quantum, meruit.

    Appeal from judgment in favor of plaintiff, entered upon the report of a referee.

      Eldorous Dayton, for app'lt; Frank K. Hasbrouck (F. A. Westbrook, of counsel), for resp’t.
   Mayham, P. J.

This is an appeal from a judgment entered upon the report of a referee.

The action was originally in a justice’s court and from the judgment rendered therein an appeal was taken to the county court for a new trial in that court, when the same was referred to a referee, from the judgment on whose report this appeal is taken.

On the trial before the justice, it was- objected that the court had no jurisdiction of the parties on the ground that neither the plaintiff or defendant resided in the town where the action was commenced, or in an adjoining town in the same county, as required by § 2869 of the Code of Civil Procedure.

The same question was raised before the referee, and upon the proof on that subject the referee held that the justice had jurisdiction. We think the finding and determination of the referee on the question of plaintiff’s residence was sustained by the evidence, and that the exception to the report on that point was not well taken.

Nor do we think there was any error committed by the referee in the receipt or rejection of evidence for which this judgment can be reversed. The original complaint before the justice was for work, labor and service rendered and performed by the plaintiff and her infant son for the defendant.

The amended complaint in the county court did not materially change the nature of the claim from that made before the justice. The answer of the defendant alleged, among other things, that the services of the plaintiff were rendered under a special contract by which the plaintiff was to wo2’kfor the defendant for oneyeai’, and that she quit said service before the expiration of the agreed time.

Also, that on the 20th of December, 1890, the plaintiff contracted and agreed with the defendant to work for him for one year from December 20, 1890, and that the plaintiff quit such service before the expiration of the agreed time, to the damage of the defendant of $75, and demands judgment against the plaintiff for that amount

The referee found that two or three days before December 20, 1890, the plaintiff and defendant made a verbal contract whereby the plaintiff and her infant son were to work for the defendant for one year from December 20, 1890, for the sum of $260.

That the plaintiff and her son worked for defendant from December 20, 1890, until May 16, 1891, when they quit the service of the defendant; that they worked twenty weeks, and that their services were reasonably worth five dollars per week, being $100, and that the defendant had paid the plaintiff $60 for such services, leaving unpaid and still due $40. The referee also finds as a conclusion of law that the verbal cont2-act was void by the statute of frauds, and that plaintiff was entitled to recover on a quantum, meruit for the value of the services of the plaintiff and her son for the time that they actually worked. The defendant excepted'to this conclusion of law, and upon this exception the principal contention in this case arises.

The question faii-ly presented by this exception is, whether a contract for services for one year to commence in futuro, which has been entered upon and partly performed by the employe, can be treated by such employe as void, so that such employe may abandon performance without any fault of the employe, and recover for the services rendered upon a quantum meruit, upon the theory of an implied agreement that the employer will pay for such services what they are fairly and reasonably worth.

Clearly the contract proved in this case, and found by the referee, could not be performed within one year from "the time it was made, and as it was not evidenced by any writing signed by the party to be charged, was, within the statute of frauds, void. 3 R S., 7th ed., 2327, § 2.

It was not, therefore, a contract which could be enforced by either party, and no action would lie for its breach. If, on the 20th day of December, 1890, the plaintiff had entered performance and the defendant had refused her and her son employment, she could not have maintained an action for a breach of the contract, and, on the other hand, if the defendant had demanded performance, and the plaintiff had refused, no action would lie for such refusal.

In Billington v. Cahill, 20 St. Rep., 615, the court held that an oral agreement to work for one year, made in the month of March, to commence on the 1st day of the next April, was void under the statute of frauds, and that no action would lie on such agreement, by the employe against the employer, for the discharge of the plaintiff without any reason, before the expiration of the year. In Oddy v. James, 48 N. Y., 685, it was held that: “ When a verbal agreement is entered into for work and labor of one of the parties for a year, to commence in futuro, an entry upon the employment with the acquiescence of the employer, but without a new contract, does not take the case out of the statute of frauds, and the employer is not liable under the contract.”

In Shute v. Dorr, 5 Wend., 204, it was held that: “A parol agreement by a parent, that his child, aged 16, shall serve a third person until he arrives at the age of twenty-one, when his master is to pay him $100, is within the statute of frauds, but if any services are rendered under such contract, there may be a recovery for the same upon a quantum meruit.” It is true that in the case last cited the contract provided for its termination before the end of the time, if the boy became dissatisfied. But the court held that the plaintiff might recover upon a quantum meruit, upon the ground either that the special contract was void under the statute of frauds, of that it had been terminated and abandoned by the parties.

In Turnow v. Houghstadter, 7 Hun, 80, it was held that a verbal contract made in February to work one year from the following May was void under the statute, and that a partial performance did not take it out of the statute, and that in an action brought upon the void contract it was proper to allow the plaintiff to amend his complaint so as to allow a recovery for the value of the services actually rendered.

But it is insisted by the appellant that before the plaintiff can recover in this action upon a quantum meruit arising out of an implied promise by the defendant to pay what the work done under this void agreement was worth, she must show that she was willing to perform the agreement in its entirety, on her part, and that the reason of her failure to do so was some act of the defendant, and in support of that position he cites Galvin v. Prentice, 45 N. Y., 162.

That was a case where the plaintiff contracted to work for the defendant for three years in learning the business and trade of hatter, and the price was graduated by the year, based upon the supposed proficiency which was made by the plaintiff, and for the third year he was by the terms of the contract to receive full journeyman wages. At the end of the second year he abandoned the, contract.

On the trial the plaintiff was permitted to amend the complaint so as to claim upon a quantum meruit for the services, and the only exception taken at the trial, and which was reviewed on appeal, was to the charge of the trial judge, in which he instructed the jury that “the contract, although void, may be considered prima, facie evidence of the value of the services.” To this part of the charge the defendant excepted, and that exception alone was presented on the appeal, so that whatever was said by the learned judge outside of that exception was obiter, and can scarcely be regarded as an authority upon the questions raised here.

None of the cases cited by the learned counsel hold that where labor is performed under a void contract that the employe must perform the entire labor required by such void contract before a recovery can be had for the work actually performed.

In Erben v. Lorillard, 19 N. Y., 302, one of the cases cited on this point in Galvin v. Prentice, Grover, J., in discussing the question of contracts void by the statute of frauds, uses this broad language: “ The contract being void and incapable of enforcement in a court of law, the party paying money, or rendering service in pursuance thereof, may treat it as a nullity, and recover the money, or the value of the money, or the value of the services. * * * When the agreement fixing the compensation is void, it furnishes no evidence of value. The parties are presumed to know the law and to understand that such compensation cannot be recovered. Their position is the same, in legal view, * * * as though no agreement had been made in fact, as there has been none in law.”

This reasoning of the learned judge would seem to leave the parties precisely as if no contract 'had been made in fact, in which case there is little doubt that the person performing the service could recover upon an implied assumpsit to pay what they were fairly worth.

But it must be conceded that the authorities on this subject do not appear to be all in harmony, and that this question upon authority is not free from doubt.

I am, however, inclined to the opinion that when parties make a contract for labor not in any way involving the investment of capital, farther than the mere compensation for services, and work is performed under such void contract, that a party performing such labor is entitled to recover for so much labor as he performs with the permission or consent of the other party to such void contract.

He would at all times be subject to discharge from such service, and his void contract would give him no immunity against the dismissal from such service; and so long as he voluntarily, with the permission of the other party, performs service to his advantage and with his implied assent, there is no reason apparent, either in justice or morals, why this void contract, and his failure to fulfill its terms, should be interposed as a defense to his recovery upon a quantum meruit.

It is also objected by the appellant that as the question of the statute of frauds was not raised by the pleadings, it cannot be available as a defense, or to uphold "a cause of action. Porter v. Wormser, 94 N. Y., 450; Wells v. Monihan, 129 id., 161; 41 St. Rep., 409.

If the technical rules of pleading obtained in justice court which prevail in courts of record, this objection would be available. But in justice court pleadings are not required to be in any particular form, and parties are not held to the observance of technical rules. Code Civ. Pro., § 2940. On the whole case I think the judgment of the county court should be affirmed.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.


text:
    William Lewis, Resp’t, v. Alfred W. Shull, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    Slander — Justification — Proof need not be beyond reasonable doubt.
    In an action for slander, in charging plaintiff with stealing, the defense was justification. The court, in substance, charged that defendant must satisfy the jury of plaintiff’s guilt beyond reasonable doubt. Meld, error; that such rule does not apply in civil cases.
    Appeal from a judgment entered upon a verdict in the Montgomery county court, and from an order denying a motion for a new trial upon the minutes of the judge.
    G. E. Phillips (Westbrook & Borst, of counsel), for app’lt; Weller & Moore, for resp’t.
   Mayham, P. J.

This action was brought for the alleged speaking of slanderous words by the defendant of and concerning the plaintiff, in charging the plaintiff with stealing twelve bushels of defendant’s oats.

The answer admits the speaking of the words, and alleges their truth in justification.

There was no direct evidence on the trial of the felonious taking of the plaintiff’s oats by the defendant; but the defendant proved circumstances and facts upon the trial from which he claims that the jury should have found the charge made by him was true. We think, under the evidence in this case, it was a proper question for the jury to determine whether or not the justification was established, and unless their verdict might have been improperly influenced by some misdirection of the judge, their finding upon that question cannot be disturbed on this appeal.

The defendant insists that there was such misdirection by the learned county judge, and that by the charge the burden was cast upon the defendant of satisfying the jury beyond a reasonable doubt that the plaintiff was guilty of the larceny charged, as in criminal cases, instead of proving, as in civil cases, his affirmative defense by a preponderance of evidence.

On the trial the judge in various forms of expression charged the jury that the defendant was bound to establish his justification, to which I think there were exceptions by the defendant sufficiently specific as to present the question of the correctness of such charge.

The learned judge, among other things in his charge upon this point, says: “ How then, in this case you must consider it just the same exactly as if you were trying this plaintiff on a charge of stealing, and he was before you indicted by the grand jury, presented upon trial, with the district attorney upon the one side, and his counsel upon the other.

“ Is there evidence enough in the case here, if presented in such a case, for you to be satisfied that this man did steal those oats ? The evidence must be just as broad as the charge. It must convince you that he is a thief, and that he stole these oats.” >

This, I think, is equivalent to charging the jury that to establish the justification the defendant must satisfy the jury by proof of the guilt of the plaintiff beyond reasonable doubt, and the learned judge in another part of his charge says: “If you come to the conclusion that that is not true, that the defendant has not shown to you conclusively, beyond the shadow of doubt, that this plaintiff is a thief, then you will find the amount of damage that the plaintiff is entitled to.”

Does this rule obtain in civil actions of this character ?

We think not, within the recent authorities in this state. It is true that by the English rule proof beyond a reasonable doubt is usually required to establish a charge of crime in a civil action. But that rule does not seem to have been followed by the recent cases in this state. In New York Guaranty & Indemnity Co. v. Gleason, 7 Abb. N. C., 334, 352, Earl, J., in pronouncing the opinion of the court of appeals, says: “In such an action the plaintiff is not bound to establish any fact so clear that it is free from doubt All that is required of him is that he shall satisfy the jury by a preponderance of evidence; and he is never called upon to free their minds of all doubt.”

While the learned judge in these remarks refers to the plaintiff, it needs no argument to show that the same rule is applicable to a defendant when he asserts an affirmative proposition in his defense which he is called upon to prove.

In Johnson v. Agricultural Ins. Co., 25 Hun, 251, this question arose, where the answer set up that the fire out of which the plaintiff claimed to recover for loss, on his policy, was caused by arson committed by the plaintiff, and the court held that the defendant was not required to show the arson beyond all reasonable doubt, as required in the prosecution of an indictment for arson, but that such defense might be established upon a preponderance of proof, as required to establish a fact in civil actions.

In Seyboll v. N. Y., Lake Erie & Western R. R. Co., 95 N.Y., 562, it was held that the party upon whom rests the burden of proof in a civil action, is not bound to establish a case free from reasonable doubt; he performs his obligations by presenting a preponderance of evidence.

In this case, Huger, Ch. J., quoted, with approbation, the rule upon this subject as stated in 3 Greenleaf’s Evidence, § 29, as follows : “A distinction is to be noted between civil and criminal cases in respect to the degree or quantity of evidence necessary to justify the jury in finding their verdict. In civil cases their duty is to weigh the evidence carefully and to find for the party in whose favor the evidence preponderates, although not free from reasonable doubt. But in criminal cases the party accused is entitled to the benefit of the legal presumption in favor of innocence, which in doubtful cases is always sufficient to turn the scale in his favor.”

We see no reason why this rule does not apply to the case at bar; and tested by it, the learned judge held the jury to a standard of proof not exacted in civil cases such as this, which we cannot say did not influence their verdict, to the defendant’s prejudice.

We think, for this reason, the judgment of the county court should be reversed.

Judgment reversed and a new trial ordered, costs to abide the event

Putnam and Herrick, JJ., concur.


author: Putnam, J.

text:
    The People ex rel. Mark Duntz, App’lt, v. Sarah V. Coon, Supt. of House of Refuge, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    1. Criminal law — Common prostitutes — Laws 1881, chap. 187.
    A female may be legally confined in a house of refuge upon a record of conviction adjudging her to be a common prostitute.

      2. Same — Constitutional Law.
    Chap. 187, Laws 1881, is not violative of either the státe or federal constitution because it provides a different term of imprisonment for females of a certain class from that which is provided for others.
    Appeal from order of the Columbia county judge, dismissing habeas corpus proceedings and remanding one ÍNellie Victory to the care of respondent. The following is the opinion of the county judge:
    J. Rider Cady, County Judge. — On May 2, 1881, the legislature enacted chapter 187, of the laws of that year, entitled “ An act to provide for the establishment of a House of Refuge for Women.” Section one thereof provided that: “There shall be
    established in this state a house of correction for women, to be located at some point within the state, outside of the counties of New York and Kings, to be known as the House of Refuge for Women.”
    Section eight of the act provided that: “ When and so soon as the said house of refuge is ready for the reception of inmates, and all the requirements of § 7 of this act have been fully com plied with, all justices of the peace, police justices, and other mag-, istrates and courts of the counties within the limits aforesaid, any law to the contrary notwithstanding, may sentence and commit all females, between the ages of fifteen and thirty years, who have been convicted of petit larceny, habitual drunkenness, of being common prostitutes, frequenters of disorderly houses or houses of prostitution, to the said house of refuge for a term of not more than five years unless sooner discharged therefrom by the board of managers thereof.”
    Section 8 was amended by § 1, chapter 17, of the Laws of 1887, passed February 16th of that year. The language of the section was changed to some extent in form, and to the section were added a series of rules to govern the action of the hoard of managers in several particulars.
    On November 19, 1887, Nellie Victory was committed to the House of Refuge for Women at Hudson by A. R. Bruce, a justice of the peace of the town of Johnstown, Fulton county, N. Y., upon a record of conviction which recited her arrest, trial and conviction before the magistrate in question, and further states that the particulars of the offense charged are as follows: “Being a common prostitute, and associating with disreputable people.”
    The petitioner herein has sued out a writ of habeas, corpus for the said Nellie Victory, and insists that she shall be discharged from the custody of the managers of the House of Refuge for Women, upon the ground that the record of conviction and the warrant of commitment thereunder do not set forth any facts upon which she can be lawfully detained.
    It is insisted by the petitioner that she could not be lawfully convicted of being “a common prostitute and associating with disreputable people.” Upon the statutes above referred to, and the language of the record of conviction and of the commitment, which have been filed with the return, the issues in this proceeding arise.
    I am of the opinion that the words contained in the commitment: “And associating with disreputable people,” should be regarded as surplusage, not affecting the substantial question which is raised.
    T am aware that the view has been recently expressed by a very learned and distinguished justice of the supreme court, that a female committed to the house of refuge upon a record of conviction adjudging her to be a common prostitute cannot be legally confined there, and is entitled to her discharge.

      In the Matter of Maggie Curran, Hudson special term, March, 1892. Hot reported.
    A different conclusion has been forced upon my mind, and, as I understand the law, it is my duty to dispose of this matter in accordance with my own conclusions, sitting as a magistrate of co-ordinate powers so far as this particular proceeding is concerned.
    As I intimated upon the argument, a principal question presenting itself to my mind in this case relates to the power of the legislature to provide that a common prostitute may be committed to the House of Refuge for Women.
    It is beyond question that the legislature possesses, under its general police powers, the right to pass laws relating to the subject of common prostitution, and to impose restrictions of a punitive nature upon common prostitutes.
    As stated by Sanger in his History of Prostitution, page 35, “ Prostitution is coeval with society. It stains the earliest mythological records. It is constantly assumed as an existing fact in Biblical history. We can trace it from the earliest twilight in which history dawns to the clear daylight of to-day, without a pause or a moment of obscurity.” It is equally true that from the earliest periods of historical knowledge it has been subjected to regulation by the police and legislative authorities of nearly all nations. Sanger’s History of Prostitution ; Acton on Prostitution ; Amos’ Laws for the .Regulation of Vice.
    It has long been the subject of legislative enactment in this state, and it has become a well established practice on the part of the legislature, in granting municipal charters, to confer upon the trustees of villages and the common councils of cities the power to enact ordinances for the restraint and regulation of prostitution, and the punishment of common prostitutes as such.
    A familiar example of this class of legislation may be found in § 30 of the charter of the city of Hudson, chapter 468 of the Laws of 1872: “ The common council shall have the care, management and control of the city and its finances. * * * It is also particularly authorized to enact ordinances for the following purposes: 3. To restrain and punish vagrants, mendicants, street beggars, and persons soliciting alms, keepers of houses of ill fame, common prostitutes, etc.”
    It is heedless to multiply instances, of statutory provisions of this general character. Certainly if the legislature can confer upon subordinate municipal bodies the power to enact ordinances for the restraint and punishment of common prostitutes, then the legislature itself must be possessed of authority to act directly upon that subject whenever it shall see fit to do so.
    The principal ground taken by the petitioner in support of the writ is that the Code of Criminal Procedure and the Penal Code of this state nowhere provide in terms for the arrest and punishment of common prostitutes, and that-, as the offense of being a common prostitute is not enumerated or defined in either of those statutes, no persons convicted of being common prostitutes can be legally confined within the walls of the House of Refuge unless committed as vagrants, or unless the commitment, or the record of conviction, sets forth the fact that the conviction took place under some municipal ordinance enacted pursuant to legislative authority. In support of these views lam referred to § 887 of the Code of Criminal Procedure contained in title 6 of part 6 of that act, which relates to “ Special Proceedings of a Criminal Nature.”
    Section 887 provides that the following persons are vagrants: “4. A common prostitute who has no lawful employment whereby to maintain herself.” It is submitted that the record of conviction in this case does not set forth an offense because to the words “A common prostitute ” are not added the other words, “ Who has no lawful employment whereby to maintain herself,” and that the only class of common prostitutes which can be punished in this state are those who have no lawful employment whereby to maintain themselves, unless the conviction is had in terms under a municipal ordinance.
    It probably will not be maintained that the provision^ of the Code of Criminal Procedure, in respect to the vagrancy of this class of persons, would have been without the scope of the legislative power if the words “ who has no lawful employment whereby to maintain herself ” had been omitted. These words were employed from motives of policy, not because they were in any legal sense essential to the definition of a class of persons upon whom the penalty prescribed might be inflicted. The term “ common prostitute ” is well defined and understood in legal nomenclature. Her calling is a recognized and deplorable form of vice productive of disorder and disease, and neither the more nor the less so whether she happens to have a lawful employment or not.
    If the view were to obtain that the acts establishing the House of Refuge for Women and defining the class of persons to be committed thereto are to be read and construed in connection with the Code of Criminal Procedure and the Penal Code, there would be controlling force in the argument submitted by the petitioner. I am, however, of the opinion that these acts so far as they relate to the commitment of common prostitutes to this institution stand alone; that the legislature, for reasons satisfactory to itself, acting within the range of its power and authority; determined to provide for the commitment of common prostitutes to this institution whether they had any lawful employment or not, and that consequently magistrates throughout the state, whether acting in obedience to municipal ordinances or not, have the power to commit such persons to this institution for confinement under the rules governing it.
    My opinion that the acts are not in this respect to be construed in conjunction with the Criminal and Penal Codes finds especial re-enforcement in the fact that they provide for commitment to the House of Refuge for the term of five years, unless sooner discharged therefrom, of any female between the ages of fifteen and thirty years, convicted of petit larceny or any misdemeanor in addition to the offenses heretofore mentioned. Under the Codes persons convicted of misdemeanors are amenable to punishment, consisting of either imprisonment for a term not exceeding one year or a fine not exceeding five hundred dollars ($500), or both. The statutes establishing the House of Eefuge provide, it will be observed, for a very much longer term of imprisonment. It seems plain, therefore, to me that the legislature in passing those statutes meant that they should stand independently, and be so construed.
    I think from the language of § 1 of chap. 187 of the Laws of 1881, that the purpose of that act was, not the establishment of a prison, as such, but rather of a “ House of Correction for Women” for the purposes of control and reformation rather than of punishment alone.
    If it be argued that the statutes establishing the House of Eefuge do not in terms enumerate the acts which shall make of a woman a common prostitute, the answer is that such a definition is unnecessary, because the term is perfectly well understood in a legal sense, and that the legislature neither defines" these acts in § 887 of the Code of Criminal Procedure, nor in the statutes enabling municipal bodies to provide for the punishment of common prostitutes, and that such acts are not ordinarily defined in municipal ordinances.
    The acts establishing the House of Refuge are not attacked upon any constitutional ground based upon the length of the term of imprisonment imposed. Their constitutionality has, as I understand it, been maintained by the supreme court at special term held at Albany, by Mr. Justice Mayham, October, 1889, in the matter of the application for a writ of habeas corpus for Margaret Curtin, not reported.
    I am, therefore, of the opinion that the commitment and the record of conviction do set forth sufficient facts to warrant the detention of the prisoner, when they recite that she was convicted as a common prostitute, and that the words “ and associating with disreputable people ” are to be treated as surplusage.
    The prisoner should, therefore, be remanded, and the application for her discharge denied.

      Duntz & Aldcroft (Mark Duntz, of counsel), for app’lt; Albert Hoysradt, for resp’t.
   Putnam, J.

Appeal from an order of the Columbia county judge, dismissing proceedings by habeas corpus and remanding one Nellie Victory, on whose behalf the writ was obtained, to the custody of Sarah V. Coon, the superintendent of the House of Refuge for Women at the city of Hudson.

Nellie Victory was, on the 19th day of November, 1887, brought before A. E. Bruce, a justice of Johnstown, N. Y., charged with being a common prostitute, and having been duly convicted, and said justice having determined her age to be seventeen years, committed her to the said House of Refuge as a common prostitute, by virtue of the provisions of chapter 187 of the Laws of 1881, as amended by chapter 17 of the Laws of 1887.

I think the county judge reached the correct conclusion on all the questions submitted to him, and his opinion renders it unnecessary to write, except briefly, upon the question as to the constitutionality of the above mentioned act of the legislature, which was not questioned or considered below.

In considering this question, we should bear in mind the well settled principle that “ every statute is presumed to be constitutional, and every intendment is in favor of its validity. When a statute is challenged as in conflict with the fundamental law, a clear and substantial conflict must be found to exist to justify its condemnation. Matter of N. Y. E. R. R. Co., 70 N. Y., 342; People ex rel. Bolton v. Albertson, 55 id., 54.

Construing the act under consideration as required by above cited and kindred cases, I am unable to see that its enactments are in violation of either the state or hational constitutions.

The relator claims that said statute conflicts with the constitution of the state, because it prevents the governor from exercising the' constitutional power of pardon as to persons committed to the House of Refuge under its provisions. I think the position is founded on a mistaken construction of the statute, and am unable to discover that it interferes, or attempts to interfere, with the pardoning power of the governor. It neither takes away such prerogative expressly or implied. In the absence of any express provision in the law interfering with the power of pardon conferred on the governor by the constitution, we should not by a forced and strained construction hold that the statute deprived him of such prerogative.

The relator also claims that the act in question violates the provisions of the fourteenth amendment to the Federal constitution, which provides that “ No state shall make or enforce any lavr nor deny to any persons within its jurisdiction the equal protection of the laws.” That the said statute imposes an imprisonment of five years on a certain class of females for a misdemeanor, while the punishment for all other females, except such class, for the same offense is imprisonment for one year or a fine or both.

The House of Refuge which the act creates is rather a reformatory than a prison, and all females in the state of the age stated are subject to the provisions of the law. Every woman between fifteen and thirty, guilty of a misdemeanor, is liable to the punishment provided therein. I think it within the power of the legislature to provide a punishment for children and young women at a different place and for a different period than the imprisonment provided for persons of a different age for the same offense.

It has never been suggested that § 700 of the Penal Code, providing that persons between sixteen and thirty years of age, committing a felony, may be sent to the reformatory at Elmira, was unconstitutional; yet under that section a person twenty-nine years old may be sent to the reformatory and perhaps be discharged within a year, while a man thirty years of age convicted of the same crime, must go to state’s prison and remain for the period of his sentence, perhaps over ten years. Under a former statute a person under sixteen years of age convicted of a misdemeanor could be sent to the House of Refuge in the city of New York. It was not necessary to specify in the commitment the time of their imprisonment, as male prisoners were under the law to be detained until their majority, and females until they reached the age of eighteen years. See People v. Degnen, 54 Barb., 105; Park v. The People, 1 Lans., 263.

It was never claimed that this statute was repugnant to the federal constitution, although in cases of misdemeanors the ordinary punishment was six months imprisonment, while under the statute in question a boy convicted of a misdemeanor was held five years or more. In cases of a felony under said statute, the detention of a person in the house of refuge would often exceed the ordinary period of imprisonment of one of mature years, for the same crime, in state’s prison.

The statute under consideration does not violate the provisions of the federal constitution to which appellant calls our attention, because it applies equally to all females between the ages of fifteen and thirty convicted of a misdemeanor. As all of the age stated are subject to» its provisions, it does not have the effect of denying to any person the equal protection of the law; also, because the house of refuge created by the act is a reformatory, not a state prison. The legislature may legally provide for the sending of young persons to such an institution, with a view of their reformation. The power of the legislature to prescribe different places of detention and different periods of confinement for criminals of different ages, committing the same crime, has been too long exercised to be now questioned.

It has been determined that the legislature may prescribe a different punishment for the same crime in different localities of the state. In Matter of Bayard, 25 Hun, 546, it was held that, although the legislature has established a general maximum punishment throughout the state for crime, it may change or increase the punishment as to particular localities. The law construed in that case provided that a person convicted of a petit larceny in the city of Cohoes should be punished by a fine not exceeding $250, or by imprisonment in the Albany penitentiary for a term not exceeding one year, or both, and said law was held not unconstitutional, although other parts of the state punished petit larceny by a fine not exceeding $100, or by imprisonment not exceeding six months, or both. But the statute applied to all citizens of the state who might be found guilty of petit larceny in Cohoes. See also Williams v. People, 24 N. Y., 407.

So, I think, the legislature may prescribe a different punishment for different ages as well as different places, and for the purpose of reforming, as well as punishing, may provide for the imprisonment of young women in the reformatory for a longer period than that prescribed by statute for older women committing the same offense in state prison.

The order should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.


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    The Troy Manufacturing Co. et al., App’lts, v. The Star Knitting Co., Resp't.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    Associations — Bond.
    The parties hereto formed an association and adopted a constitution providing that its object was by union and concert of action to protect and advance the interests of its members, and that each member should execute a bond conditioned to abide by the requirements of said constitution. Defendant executed such a bond, agreeing to abide by said constitution and any amendments that may be lawfully made thereto; to abide by and conform to the prices to be paid for work and labor as determined by said association,and all matters passed on by the committee of arbitration as between itself and its employes. Thereafter, the individual members of said association and others formed a national asscc ation, the constitution of which provided that whenever a strike or lockout should occur in any mill, and a closing of all mills in the local association to which it belongs shall be ordered by such association, the national association might, in a certain manner, vote to sustain the lockout by shutting down their mills, and any individual member refusing to stand by such decision should forfeit his bond to the local association of which he is a member. A strike having occurred in Amsterdam, a lock out was ordered, but defend* nt refused to close its mill. Held, that these facts did not constitute a cause of action on defendant’s bond.
    Appeal from judgment dismissing complaint.

      Doyle & Fitts (Charles F. Doyle, of counsel), for app’lts; E. W. Douglas (Edwin Countryman, of counsel), for resp’t.
   Putnam, J.

At the trial, on the opening by plaintiffs’ counsel, the c.omplaint was dismissed, on the ground that it did not state a cause of action, and the question for consideration is, whether the trial judge reached a correct conclusion in'his construction of the pleading.

The facts stated in the complaint, as far as necessary to detail them, are as follows: The plaintiffs and defendant, manufacturers •of knit goods, doing business in Cohoes and Waterford, in January or February, 1886, formed an association called “ Knit Goods Manufacturers Association of Cohoes and Waterford,” and adopted a constitution and by-laws, of which two articles are set out in the complaint, viz.: “Article II. Its object is by union and concert of action to protect and advance the interests of its members. Article X. Each manufacturer, firm or corporation shall execute a bond to the other members of this association in the sum of five thousand dollars as liquidated damages, with the condition that they will abide by the requirements of this constitution.”

Thereupon plaintiffs and defendant executed each to the other the bond or writing, a copy of which is contained in the complaint. It recites the formation of said association and its purpose, which was to advance the interests of all said parties in said business, the interests of the employers and employes, and for the purpose of settling any dispute between any of the members or as between them or any of them and their employes; in case of any dispute between the parties, or any or either of them, and their employes, said parties agree to submit such differences to the committee of the said association. The covenants and agreement of the parties contained in said bond are as follows, viz.: “ That they and each of them will stand to and abide by the constitution of said Knit Goods Manufacturers’ Association of Cohoes and Waterford, and any amendments, alterations and additions that may be lawfully made thereto, or any constitution that may be substituted in place of the original and first one adopted, and will stand to and abide by and conform to the prices to be paid for various work and labor in our mills and business as determined now or hereafter by said association, and will stand to and abide by and carry out the decision of any and all matters which may be passed upon and decided by the standing committee of arbitration of said association, or such committee of arbitration as may be selected under and by virtue of the constitution of said association, as between ourselves or us and our employes or each of us and our employes, or by our said committee of arbitration, either standing or selected as above, and any other committee of arbitration or otherwise, which may be authorized to act by and for our and each of our respective employes after the same shall be adopted by the association in the manner provided for by its constitution.”

The contract further provided that in case either party failed to perform the covenants in said contract, the parties so failing will forfeit to the others the sum of $5,000 as liquidated damages, to recover which sum this action was brought

Shortly after the organization of the “ Knit Goods Manufacturers’ Association of Cohoes and Waterford,” the plaintiffs and defendant also became members of “ The National Knit Goods Manufacturera’ Association,” composed of the members of said local association of Cohoes and Waterford, and the members of the local associations of Stillwater, Amsterdam, Schenectady and other places. The national association adopted a constitution which was duly signed by the parties hereto. Section four, of article five thereof is as follows: “ Section 4. Whenever a strike or lockout shall occur in any mill, and a closing, of all the mills in the local association to which such firm or corporation belongs shall be ordered by such local association, a meeting of the national executive committee may immediately be called by such local association at such place as may be designated by the chairman of the national executive committee, and this committee shall prepare a statement of the fact and causes of the strike or lockout and certify such statement to the other local associations, who shall at once proceed to vote whether they will sustain such lockout by shutting down their mills or otherwise, as may be satisfactory to the parties or the locality affected during its continuance, and a vote of two-thirds of their members, voting according to sets represented by the local association, such votes properly authenticated, shall be returned to the national executive committee, whose business it shall be to count said votes, and if it is found that two-thirds of all the sets of machinery, as represented in the national association, voted in favor of the proposition submitted, the same shall be binding upon all, and any individual members refusing to stand by the same, shall forfeit his bond to the local association of which he is a member, the same as though the local association had ordered it"

A. strike occurred in Amsterdam on September 29, 1886, and the local association of that city ordered a closing of all the mills therein. At a subsequent meeting called by the executive committee of the national association, and after due proceedings, it was resolved that all the mills represented therein, including those of plaintiffs and defendant, should be shut down on October 16, 1886. The local association of Cohoes and Waterford, hereafter called the “ Cohoes Association," by resolution duly passed, directed that the mills operated by plaintiffs and defendant should cease work at the time mentioned. Defendant, however, refused to shut down its mill, but, on the contrary, continued to operate the machinery therein and to manufacture knit goods.

The action, it must be remembered, was brought upon the sealed instrument claimed to have been executed by defendant to the plaintiffs, a copy of which is contained in the complaint, the covenants on the part of defendant and the other parties thereto contained therein being herein above set out. The alleged breach of the conditions of said bond, on account of which the action was brought, was the refusal of defendant to shut down its mill during the strike of the operatives of Schuyler & Blood, of Amsterdam. It will be observed, however, by a careful examination of the contract, that the defendant does not therein covenant to shut down its mill on the order of a national or local association, or otherwise, on account of any strike. The covenants in the bonds are, “ we ” will abide by the constitution of the association and any lawful amendment or alteration thereto or any substituted constitution, and will conform to the prices to be paid for work established by the association, and will abide by and carry out any and all matters décided by the standing committee of arbitration or such committee of arbitration as may be selected, as between ourselves or us and our employes, or by our committee of arbitration and any other committee of arbitration which may be authorized to act by and for our and each of our respective employes.

I think the trial judge was correct in holding that plaintiffs in the complaint failed to show any breach by defendant of any covenant made by it in said contract. The only provisions of the constitution of the Knit Goods Manufacturers’ Association of Co-hoes and Waterford set out in the complaint are the two articles above quoted. The complaint does not allege or show any breach by defendant of the covenants contained in the bond as to said two articles or any other article of the constitution. It is not alleged that defendant has not conformed to the prices for labor established by the association or has failed to obey its decisions as to any matter between the members, or between the members or either of them and their employes. In fact I am unable to find any breach alleged in the complaint by the defendant of the covenants contained in the contract and sealed instrument on which the action is brought.

By a careful reading of the recitals as to the purposes for which the association was formed contained in the bond in question, it will be seen that the object and intent of the contract was to enforce obedience of the members of the association to the decisions of its committees as to prices, as to disputes with each other or their or either of their employes. There is nothing in the bond looking like a covenant on the part of the defendant that it would shut down its machinery on the order of the association because a local association of Amsterdam had closed the mills of that city.

As I understand plaintiffs’ position, however, it is not strenuously urged that any breach of the condition of the bond on the part of the defendant is shown under the constitution and by-laws of the Cohoes association, in force when said bond was executed. But it is insisted that as every member of the Cohoes association subsequently became members of, and adopted the constitution of, the national association, such adoption effected an amendment of the constitution of the former and had the effect of engrafting § 4 of art. 5, supra, thereon, and that hence for a refusal of defendant to shut down its mill under the direction of the national association as provided in the said section this action can be maintained as for a breach of the covenant contained in said bond.

I think this position of plaintiffs is untenable.

The Cohoes association is an unincorporated body of manufacturers, acting together, with a constitution and by-laws adopted for its government. It is clear in my judgment that to amend its constitution and by-laws there must- be a vote of its members, associate action, in the way pointed out by its constitution and bylaws. It is also evident that the action of the individual members of the association in joining as individuals and adopting the constitution of the national association composed of said individuals and members of other local associations in Schenectady, Amsterdam, Stillwater and other places, could have no effect whatever upon the constitution. That constitution could only be changed by associate action. The action of its members in another association is not associate action.

If, however, the constitution of the Cohoes association could be changed by its members joining the national association, in an action against defendant on its bond previously executed it was for plaintiffs in their complaint to allege and show some provision in the said constitution underxwhich such an amendment could be effected. Defendant is only liable on the covenants contained in its bond. In substance, it agrees to pay as liquidated damages $5,000 if it fails to obey the constitution as it was at the time the bond was executed, or as it should be lawfully amended or changed. As we have seen, it does not appear that defendant has failed to obey the constitution as it was when he executed the bond. It was incumbent on plaintiffs to allege in the complaint facts showing that said constitution could be lawfully amended by the adoption by the individual members of the association of the constitution of another and different association. The plaintiffs in their complaint fail to set out any such facts. In the absence of such allegations, it is to be presumed that the constitution of the Cohoes association could only be amended in the usual way by associate action.

Other objections might be suggested to the above considered position of plaintiffs, but I think it requires no further discussion.

Without considering, therefore, the positions taken by defendant that the bond in suit is void as contrary to public policy, also because it was made in restraint of trade, also because the defendant corporation had no power to execute it, I think the trial judge was right in dismissing the complaint for the reasons above stated, and, therefore, that the judgment should be affirmed, with costs.

Mayham, P. J., concurs; Herrick, J., not acting.


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    Lemon Thomson, Resp’t, v. John O. Poor et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    Contract — Evidence—Oral aqreement modifying one under seal.
    Defendants entered into a contract under seal with, plaintiff by which they purchased all the hemlock bark on certain premises and agreed to peel and pay for 1,000 cords annually. Subsequently their tannery burned down, and the following year they cut but 500 cords. In an action to recover for the balance not peeled, defendants offered to show a parol con • tract made with plaintiff to extend the time and require them to cut only 500 cords annually, and that in reliance thereon they had made contracts, jHeld, that such evidence was inadmissible.
    ‘ Appeal from judgment in favor of plaintiff, entered upon a trial by the court without a jury.

      H. A. Howard (J. S. L'Amoreaux, of counsel), for app’lts; I. & J. M. Lawson (Isaac Lawson, of counsel), for resp’t.
   Mayham, P. J.

The plaintiff, by a contract under seal dated April 1, 1885, sold to the defendants all the hemlock bark on the trees on a certain tract of land owned by the plaintiff, at the price of $1.75 per cord, and in the same contract the defendants purchased such bark and agreed to peel from 800 to 1,000 cords the first year and 1,000 cords yearly thereafter, until all of such bark was peeled.

On the 7th of July, 1885, the defendants’ tannery, in the vicin"ity of such bark land, was totally destroyed by fire.

On the 3d of August, 1885, the plaintiff entered into a contract with one Wakeley to cut and deliver to a designated point all the hemlock saw-logs from the territory which shall have oeen peeled over the previóus summer in such manner as to comply with the agreement for peeling and selling hemlock bark on-this lot.

On the trial the plaintiff put in evidence this contract with Wakeley, under the objection of the defendants. The plaintiff also proved that the defendants peeled, in the year 1886, but 500 cords of this bark, for which they paid at the rate of $1.75 per cord, and that Wakeley, in the same year, peeled at the request of the plaintiff, 435 cords, which the defendants had not taken, and for which they had not paid the plaintiff.

The plaintiff in this action seeks to recover the balance claimed to be due under the contract for the 500 cords not peeled or taken by the defendants under the contract of April 1, 1885.

The answer set up a modification of that contract by which the defendant claims he was to take annually, after the first year, only 500 cords of this bark in lieu of the 1,000 specified in the contract.

On the trial the defendants offered to prove a parol contract by which they claim that they were to peel only 500, instead of 1,000 cords, each year, as set up in the answer; the offer and rulings thereon are as follows:

Lewis E. Wait, sworn for the defendants, testified:

I reside at Glens Falls, and have about five years; before that I resided in the town of Hadley, Conklingville; for the last fifteen years I have been in the employ of defendants as agent; have been doing all their business in this state connected with the tannery business.

Q. You have entire control of all their business? A. Yes, sir.

Q. Making contracts ? A. Yes, sir.

Q. Authorizing others to make contracts ? A. Yes.

Q. In 1885, did the tannery burn down ? A. Yes; they had a tannery north of Conklingville, thirteen miles, at Croweville: that burnt on the 6th or 7th of July.

Q. Did you, after that, have a conversation with Mr. Thomson in reference to the contract put in evidence ? A. I did.

Q. About what time did you have that conversation ? A. The first time I went to see Mr. Thomson was the last of November, sometime in November, 1885.

Q. State what conversation you had with him ?

Plaintiff objects to the evidence called for by the question, upon the ground that its only relevancy to the case can be to prove the agreement alleged in the answer, and that that agreement does not constitute a defense here, because it is not an agreement to extend the time for the payment for this bark, but is simply an agreement to extend the time for the peeling.

Second. That the contract set forth in the complaint is a contract under seal, and that it cannot be varied by any oral executory contract made without consideration and before breach.

Third. That the contract set forth in the complaint is a contract for interest in land, and such contract-must be in writing. Under the statute, it must all be in writing, and it cannot be added to or varied by any oral contract

The defendants offer to prove, and ask the question for the purpose of proving, that in the month of November or December, 1885, the defendants entered into an oral contract with the plaintiff for enlarging the time for delivery and reducing the quantity of bark to be cut and peeled on the Harris lot, mentioned in the contract of April 1, 1885, in evidence, to 500 cords a year, conditioned upon such change being made satisfactory to one John Wakeley, of Stony Creek, Warren county, N. Y., with whom the plaintiff had a contract to cut the logs from which the bark sold to defendants was to be taken.

That subsequently, and on or about the 25th day of February, 1886, the said defendants made the said contract satisfactory to said Wakeley, and at that time entered into the following agreement with him, to wit:

That, subsequently, the defendants, in consideration of and reliance upon said agreements made with the plaintiff April 1, 1885, and November or December, 1885, above mentioned, and the agreement entered into with John J. Wakely, under date 25th day of February, 1886, above mentioned, entered into an agreement with Shaw & Co., of Boston, Mass., for the sale of all the bark the defendants had agreed to purchase of the plaintiff under and by the contract of April 1,1885, the same to be delivered only in quantities of 500 cords each year, until the whole was delivered; and for a sale and transfer of all the rights of the defendants in and to the contract made between plaintiff and defendants, dated April 1, 1885, as changed by the contract of November or December, 1885, and for the assumption by Shaw & Co. of all the obligations of defendants under the said contract of April, 1885, as modified by the contract of November or December, 1885.

That said contracts made with said Wakeley and Shaw & Co., were made, and the obligations by defendants thereunder incurred solely upon the consideration of the making of the contract with plaintiff under date November or December, 1885, for reducing the number of cords of bark to be peeled to 500 cords a year.

That said two contracts made by defendants with Wakeley and with Shaw & Co. would not have been made, except for the agreement of November or December, 1885, made with the plaintiff.

That in the event the plaintiff is now allowed to repudiate the said agreement with him of November or December, 1885, defendants will be subjected to large and irreparable loss. That the defendants agreed to pay the said Wakely for peeling the bark a larger sum than they would otherwise have paid, in consideration of his agreement to peel 500 cords and no more annually on the Harris lot mentioned in contract of April 1, 1885.

That in pursuance of all the several agreements above mentioned, the defendants caused to be peeled 500 cords of bark, on the said Harris lot, during the year 1886, and have paid for the work of peeling the same, and for the purchase price of the bark as provided in the above mentioned contracts, and that defendants have, in all respects, complied with and performed each and every of the covenants, terms and conditions of each and all the aforesaid contracts.

That plaintiff had knowledge of all the foregoing facts at each and all times above mentioned. That the time of the performance of the said contract of April 1, 1885, was upon valid consideration extended so as to provide for the peeling and selling by defendants of only 500 cords of bark during the year 1886, or in any year thereafter.

That said contract of April, 1885, as changed, has been fully kept and performed by the parties thereto. That the bark to recover the purchase price of which this action is brought, was not ordered cut or peeled until after the contracts above mentioned were entered into, and until after May 1, 1886.

The consideration of the agreement of November, 1885, flows from and rests only on the agreements made by J. J. Wakeley and Shaw & Co., above mentioned.

Defendants concede that the contracts entered into in November or December, 1885, and mentioned in the foregoing offer, all rested in parol.

Defendants state they do not propose to prove a consideration moving between the plaintiff and defendants in any other way than by the making of the contracts with Wakeley and with Shaw & Co., as stated.

Plaintiff objects to the' question and offer upon the grounds upon which the question is objected to, and also upon the ground that there is no offer to prove a consideration passing between the plaintiff and the defendants directly. That the defendants cannot obviate the effect of the statute of frauds upon such a contract by proving subsequent agreements made in reliance upon the performance of such contract by the parties. That a contract such as the one in question cannot be varied by way of estoppel or waiver, by proving subsequent transactions or contracts made in reliance upon the contract in question.

Court rules in conformity with the ruling of general term, objection sustained, offer excluded. Defendants except. Plaintiff rests. Defendants’ counsel offers to read all the testimony given upon the former trial on the part of the defendants.

Objected to on all the grounds above stated. Objection sustained. Defendants except. Defendants offer in evidence contract between the defendants and Wakeley at page 15 of the printed case; and offer this in connection with the offer already made.

Plaintiff objects to such offer on all the grounds stated in the objection taken.

Testimony offered excluded. Exception by defendants. Defendants offer in evidence agreement between Shaw & Co. and the defendants in connection with general offer previously made.

Same objection by plaintiff. Objection sustained. Offer excluded. Exception by defendants.

Within the opinion of Learned, J., when this case was before this court on a former appeal, reported in 57 Hun, 288; 32 St. Rep., 371, we must hold that this offered evidence was properly excluded.

It was an attempt to modify by a parol executory contract without consideration, a contract in writing and under seal, before breach, when such sealed instrument conveyed an interest in land, and was required by the statute of fraud, to be in writing.

As to whether or not an equitable estoppel would be created upon the facts as offered to be proved, is not quite clear from doubt; but, as that question was also discussed by the learned judge in Thomson v. Poor, supra, we are inclined to follow the conclusion of this court as there expressed. Nor do we think that the objection raised by the learned counsel for the defendants as to the variance between the complaint and proof fatal to this recovery.

That question was discussed on the former appeal, and this court refused to uphold the judgment for the defendants on the ground of defective allegations in the complaint.

While upon the whole case I am not free from doubt, I think the judgment should be affirmed.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.


text:
    The People ex rel. P. J. Marsh, App’lt, v. Frame Campbell, Comptroller, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    Taxes — Redemption from sale — Occupancy.
    The establishing of a hunting camp, the building of a log house to he used from time to time upon hunting and fishing trips, with no other improvement or use of the land, by a person living elsewhere with his family.withnoclaimof title to or interest in the land upon which the camp or hunting lodge is established or built, does not constitute an actual.occupancy within the meaning of the statute requiring notice of redemption to be given to one who is an actual occupant of the land sold for taxes.
    Certiorari to review determination of the comptroller denying motion to redeem certain lands from a tax sale.

      J. W. Houghton (A. D. Wait, of counsel), for app’lt; John W. Hogan (S. W. Rosendale, att’y-gen., of counsel), for resp’t.
   Herrick, J.

This is a writ of certiorari to review the determination of the comptroller of the state of New York, denying the application of the relator for the redemption of certain lands, about 14,000 acres, sold by the state for the non-payment of taxes at the tax sale of 1881, on the ground that the said lands were occupied from the year 1875 up to the time of the application to redeem, and that the people of the state of New York never served notice upon such occupant as required by law.

The alleged occupant is one Alvah S. -Dunning. Upon an island about one acre in extent, situated in a lake bordering upon or included in the tract of land so sold for taxes, the island being a part of such tract, the said Dunning erected a log building, thirteen feet wide and twenty-six feet in depth, the sides five to six' feet in height; the middle of the building being about ten feet in height; the roof covered with bark. Inside, the building was divided into two rooms by a log partition; the front was thirteen by fourteen feet, no floor to it, and used as a woodshed; the second room thirteen by twelve, with a board floor, and a window in the rear. It contained a hunter’s bed, three or four camp stools, a stove, with pipe going through the roof, a frying pan, two or three kettles, water pail, tea-pot, knives and forks, cups and saucers. The island was uncultivated, the land uninclosed, and with no improvements upon it except the log building I have described. About six miles distant from this island, in another township. Dunning‘resided with his family, having there a dwell-house and outbuildings, and about an acre of cultivated ground. Dunning is a hunter and guide, and visited the log house on the island from time to time, using it as a hunting and fishing station, and taking parties there on hunting and fishing excursions.

It is a custom among the guides and hunters in that vicinity to have camps in different localities for their use in hunting and fishing, having a permanent residence elsewhere.. Dunning does not claim to own the land in question or any part of it.

No notice of sale or to redeem was ever served upon Dunning or any of his family.

I do not think it was necessary to serve notice upon him.

The object of the statute, as was said by Nelson, J., in Comstock v. Beardsley, 15 Wend., 348, in speaking of a similar statute, is to “ afford any person who might happen to be an occupant * * * an opportunity to redeem, presuming that he was either owner or in some way legally interested in the land."

Here there is no pretence of ownership or legal interest, and the case it does not seem to me comes within the spirit of the law.

I have been referred to no case defining what is meant by the words “ actual occupancy ” in the statute.

But it does not seem to me that the erection of a hunting lodge, hut or house, to be occasionally used for hunting or fishing purposes, where there is no claim of ownership of the land, constitutes an “ actual occupancy.”

It appe'ars that it is the custom of the guides and hunters of the North Woods to erect or establish so-called camps, in various localities, to be used by them in their hunting and fishing excursions ; a single hunter might have several, .located far apart, in different patents or townships, and it is hardly conceivable that the occasional and temporary use of these lodges, or camps, constitutes an actual occupancy, within the meaning of the statute, in the absence of any claim of title to the land upon which the lodge, or camp, is located. The statute seems to have contemplated an actual residence, or dwelling house; it might be without claim of title, merely the possession of a squatter, but still the establishment of a household. It reads: “ Such notice may be served personally, or by leaving the same at the dwelling house of the occupant, with any person of suitable age and discretion, belonging to his family.” Section 69, chap. 427, Laws of 1855.

This evidently contemplates a dwelling house upon the land to be sold, upon the place claimed to be occupied; it does not contemplate a service at the dwelling house of a person in New York city who has built a hunting camp in the North Woods which he uses from time to time for hunting and fishing. Dunning. had his dwelling, his family, and place of actual residence six miles away. Undoubtedly a person may have a residence in one place and also occupy land in another, as in Stewart v. Crysler, 100 N. Y., 378, where the land was used for the storage of lumber by a person who lived elsewhere; or as in Leland v. Bennett, 5 Hill, 287, where a portion of the land was cultivated, some of it used for pasture, and wood chopped and removed from it by a person who lived at a distance therefrom; but I do not think that the establishing of a hunting camp, the building of a log house to be used from time to time upon hunting and fishing trips, with no other improvement or use of the land, by a person living elsewhere with his family, with no claim or title to, or interest in, the land upon which the camp or hunting lodge is established or built, constitutes an actual occupancy within the meaning of the statute. But conceding that the facts recited constitute an actual occupancy by Dunning, it would only be an occupancy of the island; it is separable from the main land, and was not used by him in conjunction with it in such a manner as to make him an occupant of the whole tract. The use of an island an acre in extent as a hunting camp without any use of the main land, except to roam over it in* pursuit of game, does not to my mind constitute an actual occupancy of the whole tract of 14,000 acres. Thompson v. Burhans, 61 N. Y., 52; Same v. Same, 79 id., 93.

The determination of the comptroller should be affirmed, with costs and printing disbursements.

Mayhae, P. J., and Putnam, J., concur.