author: PER CURIAM.

text:
    The People, Resp’t, v. Joseph A. Theobold, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Evidence—Expert.
    Where, upon the trial of an indictment for mutilating a horse by tearing out the tongue, the defendant'testifies that the tongue was-bitten off by_ the horse while he had hold of it, it is propel for the prosecution to ask s' veterinary surgeon the question, “If the tongue was in the position which the defendant testified it was, would it be possible for the horse to bite it off?"
    Appeal from a judgment affirming a judgment of the recorder’s court, rendered on a verdict of a jury convicting defendant.
    Thomas F. Kearns, for app’lt;
    V. K. Kellogg, Dist. Atty., for the People.
   PER CURIAM.

When we apply our" common knowledge and experience to the condition disclosed by the proof in this case, it is somewhat difficult to understand clearly how the injury to the defendant’s horse' occurred. Yet, when we consider all the evidence, we are unable to say that the defendant’s treatment of the horse was not unjustifiable, or that he was not guilty of such torture, mutilation, or maiming as to constitute a crime under the-provisions of section 655 of the Penal Code. That the animal’s tongue was either pulled out by the defendant, or bitten off by the animal herself while the defendant had hold of it, is undisputed. If the evidence of some of the witnesses for the prosecution was relied upon, the jury was justified in finding that the defendant tortured, maimed, or mutilated the animal, and that he was guilty of tne offense charged. Under the circumstances and facts disclosed by the evidence in this case, we are of the opinion that the question of the defendant’s guilt was for the jury, and that we should not disturb the decision of the court of sessions upon the ground that the evidence was insufficient to sustain the verdict or judgment.

The only other question which we deem it necessary to consider relates to the admission of evidence. On the trial the people called Dr. John A. Bell as a witness, who, after having testified that he resided in Watertown, was a veterinary surgeon, graduated at the Ontario Veterinary College, had practiced fifteen years, was familiar with theoanatomy of the tongue, and had heard the defendant testify, was asked: “If the tongue was in the position which the defendant testified it was, would it be possible for the horse to bite it off? ” This w*as objected to as “incompetent, immaterial, and irrelevant; reopening case; no evidence that tongue was in position that defendant testified- it was; and not proper hypothetical question.” The objection was overruled, and the witness answered: “I think it impossible. I do not think a man can force a horse’s tongue back far enough to bite it off with the grinders.” The inquiry presented by this ruling is whether this question was proper, or whether it should have been an hypothetical one. We think it was proper. It did not call upon the witness to determine the truth of the defendant’s evidence, but simply to state whether, if his testimony was true, it was possible for the animal to bite off her tongue. It was based upon'the assumed truthfulness of the defendant’s own testimony, to which he could not very consistently object. It called for an opinion based upon clearly assumed facts. This ruling was, we think, within the principle of the cases of McCollum v. Seward, 62 N. Y. 316, and Seymour v. Fellows, 77 id. 178. The case at bar is clearly distinguishable from those cited by the appellant where the rule has been stated which requires that hypothetical questions should be put to expert witnesses. In those cases the witness was required to consided the evidence of various witnesses, and to distinguish that which was material from that which was irrelevant. But in this case none of those objections exist. The question directed the attention of the witness to the testimony of a single witness as to a single fact, and was not, in effect, different than it would have been if an hypothetical question had been put assuming that fact.

We have examined the other questions raised by the appellant, but have found none that would justify a reversal. Judgment of conviction affirmed, and, after the judgment is entered in the judgment book, a certified copy of the entry shall be forthwith remitted to the clerk of Jefferson county, with whom the original judgment roll is filed, in accordance with the provisions of section 547 of the Code of Criminal Procedure,


source: Caselaw Access Project

author: PARKER, J.

license: Public Domain

text:
    George Coppell et al., Resp’ts, v. Frank C. Hollins et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    1. Railroads—Mortgages—Committee.
    Under the facts and circumstances of this case,, it was held that it was not necessary for the committee of bondholders, appointed to purchase mortgaged property and to create a new corporation and distribute the securities of such corporation, to deliver the new securities before bringing an action for an accounting.
    3. Same.
    , The fact that two of the three members of said committee acted without notice to the third member, cannot be complained of by the bond holders, who, after the appointment of the committee, agreed that this might be done.
    3. Same—Contract— Construction.
    An agreement between the bond holders, appointing such committee, to deposit bonds with a certain trust company, to be delivered to such committee on request for use in the re-organization, does not restrict the committee to such trust company of the source of a loan.
    Appeal from a judgment entered on confirmation of the referee’s .report in favor of plaintiff, and from an order confirming said report and overruling exceptions taken thereto.
    James W. Hawes, for app’lts;
    W.G. Choate, for resp’ts.
   PARKER, J.

The plaintiffs, who, together with Frank C. Hollins, were constituted members of a committee of the first mortgage consolidated bondholders of the St. Louis & Chicago. Railway Company, by virtue of an agreement executed by the bondholders, instituted this suit for the purpose of obtaining a judicial settlement of their accounts as members of such committee; the sale of the securities in their hands, or subject to their control, as such committee; and the application of the proceeds— First, to the reimbursement of the plaintiffs; and, secondly, to the distribution of the surplus among the parties entitled thereto. The bondholders’ agreement, under which the plaintiffs and Hollins were appointed a reorganization committee, was executed by the holders of the bonds of the first consolidated mortgage on the property of the St. Louis & Chicago-Railway Company. Under the properties of the company there were two prior mortgages, under the first of which there were outstanding $500,000 of bonds, and under the second it was claimed there were outstanding bonds of a like amount. Of the first mortgage consolidated gold bonds, the company authorized the issue of $4,500,000. The first bonds, numbering from 1 to 1,000, inclusive, and of the face value of $1,000,000, were reserved to take up the outstanding bonds under the first and second mortgages. The holders of the second mortgage bonds surrendered their bonds and accepted in exchange therefor the bonds issued under the first consolidated mortgage. Default having- been made in the payment of interest of both first mortgage bonds and the first consolidated mortgage bonds, suits were brought by the trustees under each' of said mortgages for their foreclosure. While the affairs of the company were in this situation steps were taken by certain of the holders of the bonds of the first consolidated mortgage, looldng to the protection of their intersts; but before any agreement was reached, a decree of foreclosure and sale was entered in the suit brought to foreclose the first mortgage, and the property advertised thereunder to be sold on the 4th day of September, 1889. Prior to the day of sale, however, and about the 21st day of August, 1889, an agreement in writing was entered into by certain holders of the consolidated bonds, of which $1,100,000 were outstanding, by which the plaintiffs and Hollins were appointed a committee to carry out the plan provided for in the agreement. Under the second clause, the committee were authorized to purchase the mortgaged premises at any sale under the provisions referred to in the agreement. The price which they were authorized to pay was limited to a sum not exceeding the amount due upon the mortgage bonds and coupons secured by the first and first consolidated mortgages, respectively, and interest unpaid, together with all liens, receiver’s indebtedness, taxes, or claims which shall be determined by the court to be prior in interest to said bonds and coupons, and interest upon such sums, and the costs and expenses of the committee. To enable them to make .this purchase, it was agreed that the bonds of the subscribers to the agreement should be placed at the disposal of the committee, who were authorized to use the same, so far as necessary, for the purpose of purchasing the property. The third clause authorized the creation of a new corporation in the event of a purchase of the property by the committee; the fourth clause provided for the distribution of the securities of such new corporation; and the fifth clause, referring to the matter of expenses incurred and to be incurred by the committee, provided “that such expenses and liabilities shall be a charge upon the bonds and coupons to be deposited as hereinbefore provided, , and upon the proceeds thereof, or of any sale of the mortgaged premises.” 'lhe committee at once procured a postponement of the sale for the purpose of obtaining the time necessary to provide for the payment for the property in the event of its purchase by the committee. Shortly thereafter, Hollins informed his associates that he had made such arrangements as would enable them to purchase the property; that his firm would take $200,600 of the new securities, the Holland Trust Company, $200,000, and Mr. Selligman, $50,000. Acting upon this understanding, the committee bid in the property on the sale under the first mortgage for the price of $570,000, ■ and paid thereon 10 per cent, of the purchase price, the sum was obtained through the Holland Trust Company. There was an extension of the railroadt property, however, which was not covered by the first mortgage, but was by the first consolidated mortgage; and, in order to secure title to that piece of property, judgment was taken in the action to foreclose the first consolidated mortgage, and the property sold thereunder for the sum of $50,000. The deed was given to George Coppell, the chairman of the committee.

In the meantime a corporation had been organized, called the St. Louis & Illinois Central Railroad Company, to take the property purchased. Articles were filed in October and ¡November, 1889, but nothing further was done to complete this organization, as some difficulty had in the meantime arisen between Hollins and his associates on the committee, due in part, possibly, to the fact that the articles last filed contained the names of directors suggested by Mr. Hollins, and whom it was presumed he could control. However that may be, it appears that, at the meeting of the committee held on the 21st of ¡November, Hollins declined to state, when requested by the chairman, how he was getting on with his financial plan, and refused to deposit with the committee his correspondence with Mr. Selligman relating to his alleged agreement to tajee $50,000 of the bonds. A little later, Hollins stated that he was prepared to take only'$100,000 of the new bonds, instead of $200,000, and for these he proposed to give old first mortgage bonds. The efforts of the committee to induce the Holland Trust Company to advance the amount which Hollins reported that the company would advance proved ineffectual. While affairs were in tins condition, and on the 6th of December, a meeting of the bondholders was held, at which it was made to appear to the bondholders that it would be impossible for the plaintiff and the defendant Hollins to act together any further; and it resulted in a proposition by a special committee of the bondholders, which was thereafter acted upon. And it was to this effect: That, while the defendant Hollins should not resign from the reorganization committee, he should not attend any further meetings, and should abide by whatever the counsel for the committee should approve.

The time for the payment of the balance of the purchase price under the foreclosure of the first mortgage had in the meantime been extended to January 6, 1890; but, the counsel for the trustees having refused to grant any further extension, the plaintiffs renewed their efforts to obtain the money necessary to complete the purchase. There is some dispute as to the character of their negotiations with the Holland Trust Company, but the trial court has found the fact to be that the Holland Trust Company refused to advance any sum of money until the bonds of the new company should be ready for delivery. It is said that the agreement of the Holland Trust Company was such that a further advance could have been enforced, but this was not a practical question, as there was then remaining but little over a week within which to procure the money necessary to complete the purchase and obtain title to the property. A resort to legal proceedings were therefore impracticable, could it be assumed that they would result favorably to the committee. In view of this situation, it was suggested that an arrangement might be made with some other trust company, to which the Holland Trust Company assented, and subsequently an arrangement was made with the Central Trust Company. But, in order to procure the loan from the Central Trust Company, the plaintiffs were obliged to pledge all of the bonds which had been deposited with them, advance all moneys in excess of $500,000 which might be needed for reorganization purposes, and personally guaranty the trust company against loss on their advance of $500,000. With the funds thus obtained from the Central Trust Company, supplemented by the moneys of these plaintiffs, they were enabled to pay the sum which the Holland Trust Company had advanced, together with the balance of the purchase money, and such expenses as were incurred in the work of reorganization. After this sale under the decree foreclosing the first consolidated mortgage, a new corporation, called the North & South Bailroad Company of Illinois, was organized, through the action of the plaintiffs, and the property which had been purchased under the several foreclosures was conveyed to the new corporation, at which time those securities which were provided for by the reorganization agreement were created, and issued by such company to the plaintiffs. The plaintiffs found it impossible to dispose of the new securities, and at different times they sent out circulars to the bondholders, notifying them to participate in the plans which were suggested for relieving the situation, which the plaintiffs found' quite embarrassing. But nothing resulted from these efforts. When November came, the Central Trust Company informed the plaintiffs that repayment of their advances must be made on or before the 1st of December. Of this fact, notice was. given to the bondholders on the 15th of November, and a plan was suggested by the plaintiffs for the talcing of the new securities by the bondholders on such terms as would accomplish the result. An answer was requested by the 2‘5th of ¡November, but none was received. Thereupon the trust company gave formal notice to the plaintiffs of the sale of the securities on the 10th of December. ¡Notices of sale were at onco mailed to each of the bondholders by the chairman of the committee, but no action was taken thereon by the bondholders, and on the day appointed for the sale all of the securities which had been pledged, including the first consolidated mortgage bonds which had been deposited, and the new securities which had been issued to the committee, were bought in by the plaintiff Withers and the firm of Maitland, Phelps & Co.-, of which the plaintiff Coppell was a member. At the time of the commencement of this action, all of such securities were in the possession, or subject to the control, of the plaintiffs. They make no other claim to these securities than that they are subject to a lien for the moneys advanced by them, or upon their credit, on behalf of the bondholders. And such claim is not unreasonable, provided, of course, the plaintiffs acted in good faith, and used such reasonable and ordinary care and caution as prudent men usually observe in the conduct of affairs of such character. It was apparently feared by some one connected with the reorganization agreement that a situation might grow out of it in whigh it would be claimed that a mistake had been made by the committee; that some other action would have been wiser, or that the securities could have been disposed of on better terms if the committee had .proceeded along different lines. The result was a provision in the agreement that the members of the committee should not be personally liable for any mistake of law or fact. This provision will not be further adverted to, for, as we view it, the plaintiffs are not called upon to invoke its aid in support of the judgment which has been rendered.

The charges preferred against these plaintiffs of acting in bad faith seems to have very trifling support. It consists mainly in the fact that there were dissensions between the plaintiffs and Hollins, but for which it is suggested that the plan of financiering which had already been adopted would have proved successful. ¡For these dissensions the defendants, among whom are Frank 0. Hollins, would hold the plaintiffs responsible. ’ It is assumed that the proper inference of fact to be drawn from the whole transaction is that the plaintiffs refused to act further with Hollins, because Hollins had so planned it that the articles of incorporation should contain only the names of directors friendly to him, and presumably under his control. If such an inference of fact should be drawn, it would not, when considered in connection with the other facts, support a finding of bad faith. It is quite evident that the plaintiffs were justified in asking to be relieved from the trust if Hollins was longer to continue actively ■with them. Down to that time, he had accomplished -but little •in the direction of substantial benefit to the committee; but he had accomplished much towards the scheme which he apparently had in mind, of controlling the management of the corporation after the committee had done its work. At the very outset, he seemed to have cultivated the appearance of being the active and forceful member of the committee, so far as financiering the reorganization was concerned. And this cultivation of appearances was, in a measure, temporarily successful, because it enabled him to have named in the articles of associationihe persons whom he desired as directors. But it was only a partial success, for this act indicated to his associates on the committee that he had schemes in view other than those embraced within the agree ment; that while working with his associates, nominally, he was attempting to secure some permanent or supposed advantage, without their knowledge. The very fact of this outside intrigue, in which he did not give his associates his confidence, was sufficient to justify them in hesitating to further act with him. But had it been the fact that the conduct of Hollins was not. such as to justify the refusal of these plaintiffs to have further personal dealings with him, yet would not materially keep out the charge of bad faith. There is nothing in that fact, standing alone, which would justify an inference that the dissension was occasioned by a desire on the part of the plaintiffs to wrong the bondholders whom they represented, or that such dissension was due to a desire on their part to profit in any way out of the enterprise, while, on the other hand, every act of these plaintiffs, so far as we can see, indicated' a desire on their'part to faithfully perform the trust committed to. them. Nor does it appear, we think, that the dissensions between the plaintiffs and Hollins have been the cause of the failure to work out the scheme of reorganization which the parties to the agreement contemplated. "When the time came for action, Hollins was not prepared to take the number of bonds which he said in the first place he would take, nor was Selligman willing to take his bonds; and the Holland Trust Company did not take the bonds which Hollins said it would take. How much of real foundation there was to Hollins’ early boast that he had provided for $450,000 of the purchase price under the first mortgage, it is difficult to say. .Its results, whatever the cause, were trifling. The failure to negotiate enough of the secruities with which to pay the purchase price was not encouraging, but nevertheless the committee, by pledging their own credit, as well as the bonds intrusted to them, together .with the securities of the new corporation, obtained the necessary money to complete the purchase. And when this had been accomplished they had done everything which they were called upon to do under the agreement, except the negotiation of such of the securities as were necessary to pay for the •property and defray the expenses of the committee, and the distribution of the rest of the stock among the bondholders who were parties to the agreement. The failure to sell the securities does not seem to have been the fault of the plaintiffs. There was no market for them. No one could be found who would invest in them. Not even the bondholders, who are defendants here, were willing to take them, if such taking involved the payment of the purchase price of the property and the expenses of the committee. The trial judge found at special term that the plaintiffs were not guilty of fraud, and that they acted throughout in good faith, and in that finding we concur.

We come now to the other questions presented by the appellants. The first is that the action was prematurely brought; the ground being that, as the delivery of the new securities to the old bondholders has not yet taken place, the trust is not terminated. If this position be a sound one, then the present indications are that such an action can never be brought. The securities cannot be delivered to the old bondholders until the committee shall have been paid for the property which they transferred to the new corporation, and upon the faith of which its securities were issued. And the action of the bondholders in the past certainly affords no assurance of a movement in that direction in the future. This statement indicates what the fact is—that the trust was practicaly terminated. All that the committee could possibly do, until after payment of the indebtedness, had been done. Every plan which they could think of had been suggested to the bondholders, in order to obtain the money necessary for the release of the securities from pledge, and their distribution among the bondholders. But all such suggestions were without results. There was nothing, therefore, to do, to relieve the situation, but bring this suit.

Appellants next say that the plaintiffs should not be repaid the money advanced by them to buy the property for the new corporation out of the securities in their hands or under their control, because, in nearly every one of the steps taken to bring about that result, two of the members acted without notice to the third. That they did act without the third is unquestioned, but these defendants are not in a position to make the objection that the office and duties of a trustee cannot be delegated by one trustee to another, for the bondholders knew, in advance of any action being taken by two members of the committee in the absence of the third, that there was no other way in which the agreement could be •carried oút. And for that reason the bondholders, at a meeting on the, 6th day of December, 1889, at which the defendant Hollins had avowed his inability to provide the means necessary to complete the purchase of the mortgaged premises, appointed ■a special committee for the purpose of arranging a basis on which these plaintiffs might proceed alone, without the intervention of Hollins. The plan approved was that while Hollins should not participate personally in the action of the committee, he should abide by the action of Mr. A. H. Joline, who had been selected by him as counsel for the committee. This proposition was accepted by the plaintiffs, and thereafter their action was taken accordingly; and certainly these defendants are not in a position to complain because the plaintiffs subsequently carried out such arrangement.

The objection taken to the substitution-of the Central Trust Company for the Holland Trust Company is without force. There is nothing in the agreement expressly or impliedly forbidding it. The only provision relating to it is contained in the second clause, and provides that the bondholders shall “deposit the bonds and coupons held by ns, respectively, with the Holland Trust Company, at it office, No. 7 Wall St., New York City, to be delivered to the committee upon request, taking therfor its negotiable.receipts; and at the same time we deposit, to the order of the committee, five dollars for each bond so deposited.’* While, the Holland Trust Company was made the depository of the bonds, and the five dollars required to be deposited with each bond, it was required tó make delivery thereof to the committee, on request. The plan upon which the committee were to proceed was marked out in the agreement, but in no wise were they restricted as to the source from which to obtain such moneys as they should be called upon to borrow or raise in order to carry out the plan. No opportunity exists to charge that the change was -capriciously made, or that the bondholders have suffered thereby; Whatever differences exist between the committee and their counsel and the officers of the Holland Trust Company as to the precise nature of the conversations between them, there is no pretense that the Holland Trust Company was willing to take the bonds that it is claimed to have promised to take. Nor is it the fact that it was willing to advance the money necessary to pay the balance of the purchase money. And, at the time of the change from the Holland to the Central Trust, there remaining only about a week of time within which to complete the purchase, and assume the first step in the plan of the bondholders and the committee. The change was, therefore, a matter of necessity.

There are several other technical objections, but they seem to us not to merit discussion. As we view the situation presented by this record, the plaintiffs, in good faith, did everything within their power to effectuate the plan of the committee. They did far more than they were called upon to do by the agreement, to protect the bondholders, by advancing their own moneys and pledging their personal credit to secure moneys for the purposes of the agreement, which they could not procure upon the faith of the securities which the bondholders intrusted to them. And the judgment awards to them no greater protection than is their due.

The judgment should be affirmed, with costs.

All concur.


text:
    Anna M. Michels, Resp't, v. City of Syracuse, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Municipal corporations—Defective sidewalk.
    The evidence, in this case, was held sufficient to present the question to the jury as to whether plaintiff’s fall on defendant’s sidewalk was caused hy defective condition of the sidewalk.

      2. Same—Notice—City.
    In an action for personal injuries caused by a defective sidewalk, the testimony of a witness that a few days before the accident he had called the attention of the city’s superintendent of public works to the condition of the walk, and the fact that he had seen five or six persons fall there,, and that he told him if they fell in the same ratio until night some one would get killed or terribly injured, is admissible to show that the city had notice of the defective condition of the sidewalk.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    Charles E. Ide, for app’lt;
    Allis & Rogers and William Kennedy, for resp’t.
   PER CURIAM.

On November 25, 1892, the plaintiff fell upon the sidewalk on the north side of East Fayette street in the city of Syracuse, and sustained an injury, to recover for which this action was brought. The action was based on the defendant’s negligence. In the latter part of October, 1892, the sidewalk, near the place where the plaintiff fell and was injured, had been relaid upon a different grade from the sidewalk connecting with it. The difference in the grade was proved to have been from four to ten inches. The plaintiff’s witnesses testified that, it was from six to ten inches, while the defendant’s that it was from four to six. The walk was connected by a flag which was placed in a sloping position, one edge being level with the walk on the higher grade, and the other being even with the walk on the lower grade. The surface of the slant from the higher to .the lower grade was twenty-seven inches. The plaintiff claimed that the defendant was negligent in permitting the" walk to remain in that condition, and that by reason of such negligence her injury occurred. The defendant claimed that the cause of the plaintiff’s injury was an accumulation of ice upon the sidewalk, resulting from the rain and snow that had fallen and froze upon the walk, and walks generally in that locality, and hence that it was not liable, or guilty of any negligence which caused the plaintiff’s injury.

The court, in submitting to the jury the question whether the defendant’s negligence caused the plaintiff’s injury, charged that if the snow or ice caused this accident, or in any way produced it, the plaintiff could not recover, and that to entitle the plaintiff to succeed, the accident must have been produced solely by the slope in the walk, and not bv reason of sleet or snow that had " accumulated or was upon it at that time. It further charged that if the snow or ice produced the plaintiff’s injury, or if the jury-was unable to say that it resulted alone from the slope in the walk, then their verdict must be for the defendant, and that if it found that it was the snow and ice, either alone or in connection with the slope, that caused the plaintiff’s injury, its verdict must be for the defendant. It is not contended by the appellant that the questions of the defendant’s neglig’enee and the plaintiff’s freedom from contributory negligence were not, under the evidence, questions of fact, and properly submitted to the jury. Its contention is that the evidence was insufficient to show that the plaintiff’s injury was the result of the defendant’s negligence, and hence the plaintiff was not entitled to recover. We think this contention cannot be sustained. The evidence introduced by the plaintiff tended to show that the injury resulted solely from the slope in the sidewalk, and that it was not ■occasioned by ice or snow. At, least one witness who was present when the accident occurred testified thát there was no snow or ice upon the wálk at that place, and that it was not slippery from the presence of either. After carefully reading the evidence contained in the record before us, we are satisfied that the question whether the plaintiff’s injury resulted from the slope in the sidewalk was one of fact, and properly submitted to the jury.

The facts in this case render it clearly distinguishable from the case of Taylor v. City of Yonkers, 105 N. Y. 202; 7 St. Rep. 332, and other similar cases cited by the appellant. In those cases there was no evidence that permitted the jury to infer that the accident was occasioned from the slope or obstruction in the walk, or that the existence of such slope or obstruction concurred in causing the injury complained of. Upon the evidence in those cases it was just as probable that the injury was occasioned by a recent accumulation of ice, as from the slope or obstruction in the walk. Under those circumstances the court held that the plaintiff could not recover. In the case at bar the plaintiff’s ■evidence tended to show that there was no ice or snow which contributed to the plaintiff’s injury, and the court charged that the plaintiff could not recover unless the injury resulted solely from the slope in the walk. This was an instruction to the effect that the plaintiff could not recover unless the jury found that the testimony of the witnesses who testified that there was no snow or ice upon the walk at the place where the injury occurred was entitled to belief. There was sufficient evidence to justify the jury in finding that the injury resulted from the slope in-the walk, and from that alone. As we had occasion to examine a similar question in Goff v. Village of Little Falls, 47 St. Rep. 729, and there cited the authorities bearing upon the question, we deem it unnecessary to further refer to them at this time. Thus, it follows that the judgment should not be disturbed on the ground that the evidence was insufficient to justify the jury in finding that the accident resulted solely from the negligence- of the defendant in permitting the existence of this slope in the walk.

We have carefully examined the portions of the charge to which the plaintiff excepted, and to which our attention has been called by the appellant in its brief, hut we have found no error that would justify an interference with the judgment, or that requires special consideration. When the whole charge is considered, it is manifest that the case was presented to the jury upon a theory that was as favorable to the defendant as it had a right to expect. If there were any errors in the charge, they were in favor of the defendant, and of those it cannot justly complain.

On the trial the plaintiff was permitted to prove by the witness Thompson that, a day or two before Thanksgiving, which was before the plaintiff’s injury, he informed the defendant’s superintendent of public works that he had seen five or six persons fall upon that inclined stone, and stated to him that if they fell in the same ratio until night some one would get killed or terribly injured. This was objected to, and subsequently the defendant moved to strike it out upon the ground that it was in evidence that there was a changed condition on the day of the accident. The motion was denied, and the appellant excepted. We think the evidence was admissible, at least so far as necessary to show that the defendant’s superintendent of public works had notice of the slope in the sidewalk prior to the plaintiff’s injury; and that the appellant’s exception was not well taken.

Judgment and order affirmed, with costs.


text:
    Michael Kehrley, Resp’t, v. Caroline E. Shafer, as Executrix, etc., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26 1895.)

    1. Justice’s court—Jury—Communications. '
    No communication -whatever ought to take nlace between the judge or justice and the jury after the case has been submitted, unless it is in open court and, where practical, in the presence -of counsel.
    2. Same.
    Where there has been a violation of this rule, the judgment will be reversed and the court will not stop to inquire whether the information given by the judge or justice was material or had any influence upon the verdict.
    3. New trial—Time or motion.
    The time for making a motion for a new trial on the ground of an error in fact which was within the knowledge of the court and contained in the case and exceptions as made and settled, is not limited by the provisions of § 1003 of the Code.
    Appeal from an order denying a motion for a new trial, made on a case and exceptions.
    W. L. Goodier, for app’lt;
    N. F. & J. Coupe, for resp’t.
   PER CURIAM.

That the case and exceptions were properly-settled in this case, we have no doubt. As settled, they disclose that after the jury had retired to deliberate upon its verdict, the court received from it a written communication asking the court to give the jury the amount claimed by the plaintiff. The court, returned the following answer:

“Hote, $107. Interest from June 12, 1879. .Meat, $6.60. Interest from June 12, 1879. Plaintiff figures the amount at $12, making in all $125.60. The jury can verify the calculation of interest.”

The defendant’s counsel objected to the court’s communicating anything whatever to the jury not in the presence of the counsel, and especially objected to the communication sent, and excepted to the course pursued by the trial judge in sending it.

It seems to be well settled in this state that no communication whatever ought to take place between the judge or justice and a jury after, a case has been submitted, unless it is in open court and, where practicable, in the presence of counsel; that where there has been an infraction of this rule the judgment should be reversed, and that the court will not stop to inquire whether the information given by the judge or justice was material, or had any influence upon the verdict of the jury. Bunn v. Croul, 10 Johns. 239; Taylor v. Betsford, 13 Johns. 487; Loan Co. v. Mix, 51 N. Y. 558; Valentine v. Kelley, 54 Hun, 78; 26 St. Rep. 481; Gibbons v. Van Alstyne, 29 St. Rep. 461; People v. Linzey, 79 Hun, 23; 61 St. Rep. 240; High v. Chick, 81 Hun, 100; 62 St. Rep. 626; Seeley v. Bisgrove, 83 Hun, 293; 64 St. Rep. 650; Wheeler v. Sweet, 137 N. Y. 435; 51 St. Rep. 77; Plunkett v. Appleton, 51 How. 469; Sargent v. Roberts, 1 Pick. 337, 344. Applying this rule to the case before us, it is quite manifest that the learned county judge erred in communicating with the jury without the consent and under the objection of the defendant, and the county court erred in not granting the appellant’s motion for a new trial upon that ground.

As the motion for a new trial, so far as this question is concerned, was founded upon an error in fact, the respondent’s contention that, under section 1002 of the Code of Civil Procedure, the motion could not be made unless noticed before the expiration of the time within which an appeal could be taken from the judgr ment, cannot be sustained. The provisions of that section, so • far as applicable here, are:

“But where it (a motion for a new trial) is founded upon an allegation of error in a finding of fact or ruling upon the law, made by the judge upon the trial, it cannot be made unless notice ■ therefor be given before the expiration of the time within which an appeal can be taken from the judgment.”

The motion here was for a new trial, not solely upon the ground of an error in a finding of fact or a ruling by the trial judge, but also for an error in fact which was within the knowledge of the court, and contained in the case and exceptions as made and settled. Without passing upon the question whether, under the circumstances of this case, errors in the finding of fact or rulings upon questions of law, if any, might be determined by us, we are of the opinion that the error of the court in communicating with the jury without the'consent of the parties was an errok in fact, which the appellant had a right to have reviewed, and that for such error the judgment should have been set aside, and a new trial granted by the county court.

It follows that the order appealed from should be reversed, with costs, and that the judgment of the county court should, be set aside, and a new trial granted, with costs to abide the event.


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    The People, Resp’t, v. John A. Williams, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Indictment—Perjury.
    In framing an indictment on a statute, all the circumstances which constitute the definition of the crime in the statute, so as to bring the accused precisely within it, must be stated ; but no other description of the manner in which the offense was committed is necessary than that contained in the statute.
    8. Same.
    An indictment for perjury, which charges that the defendant willfully, knowingly and corruptly made oath that the affidavit subscribed by him was true, that it was made in an action, that it was false, and that such false statements were material and used in the action, is sufficient without specially alleging that the affidavit was delivered by the defendant to another person with an intent that it should he uttered or published as true.
    3. Appeal—Discretion.
    The order of proof on a trial is discretionary with a trial court.
    4. Evidence—Perjury.
    Upon the trial of an indictment for making a false affidavit on appeal, evidence as to the outcome of the case is inadmissible.
    6. Witness—Cross-examination.
    The extent to which a cross-examination may go to test the credibility of a witness is largely in the discretion of the court.
    6. Same—Hostility.
    The extent to which an examination may go to prove the hostility of a witness is in the discretion of the trial court.
    7. Same.
    Where sufficient evidence of the hostility of a witness has already been given, the defendant is not harmed by the exclusion of further evidence on the subject.
    8. Trial—Charqe.
    Isolated portions of a charge will not be seized hold of for the purpose of criticism, if the charge as a whole conveys to the jury the correct rule of law on the question, although detached sentences may be erroneous.
    Appeal from a judgment convicting defendant of the crime of perjury and from an order denying a motion for a new trial on the 'minutes, and from an order denying a motion in arrest of judgment.
    Wagner & Fisher, for app’lt;
    Frank L. Smith, district attorney, for People.
   PER CURIAM.

The sufficiency of the indictment in this case presents an important question, and was the one most persistently urged on the argument by the appellant as a ground for the reversal of the judgment. In the indictment it was, in effect, alleged that the defendant willfully, knowingly, and corruptly made oath before an officer authorized to administer the same that a certain affidavit by him subscribed was true, and that the affidavit was made and entitled in an action in the supreme court. The statements contained in the affidavit were then set forth, and it was alleged that they were false. It was also alleged that a motion was noticed in the action, that upon the hearing of such motion the affidavit made by the defendant was used, and that the false statements contained in it were material to the determination of the motion.

Upon the trial, before any testimony was given, the defendant moved that the indictment be quashed and set aside upon the grounds that the indictment was insufficient and defective, that it did not state an offense or crime, that it did not state the crime of perjury, and that it was not súfficient in substance or form. The defendant also moved that the indictment be dismissed and quashed upon the specific ground that it contained no allegation that th^ defendant ever dilivered the affidavit to any person with - the intention that it should be uttered or published as true, and that it contained no allegation that the affidavit specified in the indictment was made by the defendant with any intention or purpose of having it delivered to any person, .or with the intention that it should be used in any proceeding. The motion was denied by the court, obviously upon the ground that the sufficiency of the indictment could be raised only in demurrer. In this conclusion the court was manifestly in error. Section 331 of the Code of Criminal Procedure excepts from its provisions that the objections mentioned in section 323 of that act can be raised only by demurrer the objection that the facts stated do not constitute a crime, and expressly provides that such objection may be taken at the trial, under the plea of not. guilty, and in arrest of judgment. Assuming, as we must, that the grounds upon which the decision was based were untenable, still, if the court properly-denied the motion, its ruling should be upheld, although it was placed upon erroneous grounds. Thus the question of the sufficiency of the indictment is before us for determination.

Section 96 of the Penal Code, which defines the crime of perjury, so far as it is applicable to the question in this case, reads-as follows:

“A person who swears * * that any * * * affidavit * * * by him subscribed, is true, in an action, * * * or states in his * ■* * affidavit * * * any material matter to be true which he knows to be false, is guilty of perjury."

The indictment in this case having charged that the defendant willfully, knowingly, and corruptly made oath before an officer authorized to administer the same that the affidavit by him subscribed was true, and that such affidavit was made and entitled in an action in the supreme court, and that the statements contained in it were material, and that the affidavit was used in such action, it was, we think, sufficient, under the provisions of section 96 of the Penal Code. It seems to be well settled in this state that if an indictment avers the offense as the statute defines it, the averment is sufficient. In framing an indictment on a statute, all the circumstances which constitute the definition of the crime in the statute, so as to bring the accused precisely within it, must be stated; but no other description of the manner in which the offeptse was committed is necessary than that contained in the statute. Phelps v. People, 72 N. Y. 334, 349; Eckhardt v. People, 83 id. 462; People v. West, 106 id. 293; 8 St. Rep. 713; People v. Weldon, 111 N. Y. 569, 574; 20 St. Rep. 112; People v. King, 110 N. Y. 418; 18 St. Rep. 353; People v. Rockhill, 74 Hun, 241; 55 St. Rep. 681; People v. Flaherty, 79 Hun, 48; 61 St. Rep. 197; U. S. v. Hess, 124 U. S. 483. The precise words used in a statute to define a crime need not be strictly pursued in the indictment, but words conveying the meaning of those employed may bo used. It follows that, if section 96 of the Penal Code is not in any way changed or modified „by the subsequent sections relating to the crime of perjury,, the indictment was sufficient. It is, however, contended by the appellant that section 100 is so far a part of section 96 as to require an allegation in the indictment of the matters stated in that section. Upon examining chapter 5, which relates to the crime of perjury and the subornation of perjury, we find that section 96 defines the crime of perjury. Section 97 provides that any irregularities in the mode of administering oaths is no defense to the prosecution of that crime; section 98 that the incompetency of the witness is no defense; and section 99, that the witness’ knowledge of the materiality of his testimony or statement is no defense. Section 100 declares that:

“The making of a deposition or certificate is deemed to be complete, within the provisions of this chapter, from the time when it is delivered by the defendant to any other person with intent that it be uttered or published as true.”

We think that this last section should not be construed as being so far a part of section 96, which defines the crime of perjury, as to make it a part of the statutory definition of the crime, but that its purpose was to establish a rule of evidence as to when a deposition is to be deemed complete. Hence we conclude that, as it was charged in the indictment that the defendant willfully, knowingly, and corruptly made oath that the affidavit subscribed by him was true, that it was made in an action, that it was false, and that such false statements were material and used in the action, the indictment was sufficient without specially alleging that the affidavit was delivered by the defendant to another person with an intent that it be uttered or published as true.

We find nothing in the case of People v. Albow, 140 N. Y. 130; 55 St. Rep. 253, and the other similar cases cited by the appellant, which would justify his contention. These cases are to the effect that, while a criminal charge may be supported by inference from the facts which imply the existence of the principal fact constituting the offense, yet the principal fact must be charged in the indictment. The principal fact in this case was that the appellant made a false affidavit in an action, which was used therein. This was averred in the indictment, and it contained a sufficient statement of the facts and fairly apprised the accused of the crime of which he was charged. Under such circumstances, the indictment should not be held sufficient by reason of any narrow and technical objections as to its form. People v. Spiegel, 143 N. Y. 107; 62 St. Rep. 136; People v. Buddensieck, 103 N. Y. 487; People v. Weldon, 111 id. 569; 20 St. Rep. 112; People v. Dimick, 107 N. Y. 13; 11 St. Rep. 739; People v. Klock, 48 Hun, 275; 16 St. Rep. 565. These considerations lead to the conclusion that the indictment was sufficient, and therefore that the court properly overruled the defendant’s motion to quash, the indictment and in arrest of judgment.

The appellant also contends that the court erred in admitting in evidence the affidavit made by the defendant without first requiring the people to show that it had been delivered to another person with an intention that it should be uttered or pub-dished as true. Evidence was given upon the trial which tended to show that it was thus delivered. Thus the question raised by that objection related only to the order of proof, and, as that was discretionary, we find no reversible error in the ruling.

The appellant’s third point relates to the insufficiency of the indictment,'which has been already disposed of, and hence need not be further considered. On the trial the following question was asked the witness Henry T. Sanford: “Did you cause this notice of motion to which your attention has been called to be served on Hr. Palmer?” This was objected to as not in evidence, and as incompetent. The objection was overruled, and the defendant excepted. In this ruling we find no reversible error. That the notice of motion was served as testified to by the witness, and that the affidavit of the defendant was actually read on the hearing, seem to be clearly established by the evidence in the case. ;

The defendant offered in evidence an order reversing the judgment in the action in which the affidavit was made. This was ohjected to as incompetent and inadmissible, and upon the ground that, whatever became of the judgment subsequent to the making of the motion was immaterial. The objection was sustained, and the defendant excepted. We think tins exception was not well taken. It is not apparent how the subsequent reversal of the judgment could, in any way have affected the question of the defendant’s guilt or innocence of the crime of perjury in making an affidavit used in the action. The perjury was the same whether the judgment was reversed or affirmed. People v. Hayes, 24 N. Y. Supp. 194, 201.

The defendant also offered in evidence all the papers attached to the notice of motion and affidavit of the defendant which were used on the motion. The people’s counsel objected to the admission of the papers except the notice of motion and affidavit of the defendant, which had already been admitted in evidence. This objection was sustained, and we think properly. The other, papers that accompanied the affidavit of the defendant, except the notice of motion, were in no way. material in determining the question whether the defendant had made the false affidavit for which he was indicted.

Upon the cross-examination of Alfred 0. Lewis, the defendant’s counsel in substance offered to show that the witness had verified a complaint in the action of Lewis et al. v. Yagel, which was untrue. This was objected to, and the objection was sustained. We find no error in this ruling. If the witness had been convicted of perjury, then, under the provisions of section 832 of the Code of Civil Procedure and section 714 of the Penal Code, the fact of such conviction might have been proved by the cross-examination of the witness. The court stated that, if the complaint was not true, they ought to- have had the witness indicted for perjury, and excluded the evidence, without stating the particular ground upon which it was excluded. The extent to which such an examination may go to test the credibility of the witness is largely in the discretion of the court. People v. Casey, 72 N. Y. 393; People v. Oyer and Terminer Court of New York Co., 83 id. 436, 460. We are disposed to think that the question whether this evidence should be admitted so far rested in the discretion of the trial court that its rejection was not reversible error. Upon the further cross-examination of the same witness, after he had testified, “I have a good deal of feeling against Mr. Williams so far as what he has done to me, I have, and I am going to try to punish him, to vindicate myself,” he was asked, '“How much money have you spent in trying to punish him?” This was objected to. The objection was sustained, and the defendant excepted. He was then asked, “How much time have you devoted, and how long a time, sir, in trying to convict that man?” This question was objected to as irrelevant, immaterial, and improper. The objection was sustained, and an exception taken. He then testified, “I am going to try to do all I can to vindicate myself, as far as the law goes.” We find nothing in this ruling which would justify a reversal of the judgment. The defendant was permitted to show the feeling against him existed in the mind of the witness. The evidence had already disclosed the hostility of the witness. The extent to which an examination may go to prove the hostility of a witness is in the discretion of the trial judge. As sufficient evidence of the hostility of the'witness had already been given, the defendant was not harmed by the exclusion of further evidence on that subject, and hence the ruling presents no error that would justify a reversal. People v. Brooks, 131 N. Y. 321, 329; 43 St. Rep. 294; People v. Webster, 139 N. Y. 73; 54 St. Rep. 423.

The remaining questions raised by the defendant relate to the charge of the court. The defendant’s counsel asked the court to charge:

“That if the defendant honestly believed, when he made the affidavit, that the men he saw at West Oneonta were Lewis and Lamont, although he was mistaken, he, is not guilty of perjury in that part of the affidavit.”

To this the court replied:

“I charge you that he must have made that affidavit with an intent to commit a crime, and must have knowingly asserted the material facts in that allegation to be true. Defendant’s counsel: Do I understand your honor to decline to charge in the language that I have asked? The Court: Yes. (Exception by defendant’s counsel.) Defendant’s counsel: Further, if the defendant honestly believed that one of the men that he saw come into that hotel was A. C. Lewis, and the other he took to be Lamont, although in fact it was neither of them, then he cannot be convicted of perjury, so far as that part of the affidavit is concerned. The Court: If the jury believe, under the facts and circumstances of this case, under all the evidence, that he was mistaken as to A. C. Lewis and Judge Lamont,—honestly mistaken, if they believe that,—then, of course, they should acquit him. Defendant’s counsel: You do not charge in the language that I ask? The Court: No, I charge as I have. (Exception by defendant’s counsel.) Defendant’s counsel: Further, if the witness was honestly mistaken, made that statement, and honestly believed it to be true, although he was mistaken, he is not guilty of perjury. The Court: I charge you, if you believe, under the facts and circumstances of this case, that he did believe, when he made that statement to Sanford, that he had seen Lewis and Lamont at those places, and that he was mistaken,— honestly mistaken,—you will'acquit him. Defendant’s counsel: But in the precise language I have asked, your honor does not charge? The Court: No. ("Exception by defendant’s counsel.) Defendant’s counsel: Further, that if the man Sanford did not draft the affidavit in the language of the defendant, and the defendant did not know its contents, then it is not the affidavit of the defendant, and he is not guilty of perjury. The Court: I charge you that if he swore to and subscribed to that affidavit, and the contents of it were false, and that Sanford informed him of the contents of that affidavit, he is guilty of the crime charged in this indictment. Defendant’s counsel: I except to that language. The Court: With the other facts and circumstances that I have stated. Defendant’s Counsel: Your honor declines to charge in the language which I last asked. The Court: Yes. (Exception by defendant’s counsel.) Defendant’s counsel: If Sanford, the draftsman of thq affidavit, did not draw the affidavit in the language given him by the defendant, and the defendant in good faith made the affidavit relying upon and believing that Sanford had correctly recorded his language, then the defendant is only answerable for the language that he gave Sanford, and the affidavit as he understood it was drawn; and if, at the time he gave that language to Mr. Sanford, and made the affidavit, he gave that language in good faith, believing it was true, and made the affidavit in good faith believing it contained only the language he gave Sanford, and believing that language was true, then he cannot be convicted, although he may not have seen Mr. Lewis or Judge Lamont at the times and places stated in the affidavit. The Court: I charge that, and charge, in addition to that: If this defendant made an unqualified statement of facts to Mr. Sanford, which he put in .that affidavit, which he did not know to be true, it is equivalent to a statement of that which he knew to be false. Defendant’s counsel: I except to that in this case, and ask the reverse, because there is no such allegation in the indictment at all. The Court: I charge ii. in connection with your proposition. Defendant’s counsel: I except to that.”

We think the defendant was entitled to have his first request charged, in substance, at least. The court did not at first charge the request as made, but, instead of doing so, charged that the defendant must have made an affidavit -with an intent to commit a crime, and must have knowingly asserted the material facts in the allegation to be true. But, as will be seen by an examination of the portion of the record quoted, the court charged that, if the jury believed, under the facts and circumstances of the case, that the defendant believed when he made the statement to Sanford that he had seen Lewis and Lamont at those places, and that he was mistaken,—honestly mistaken,—if should acquit him. An examination of the whole charge renders it quite manifest that the court instructed the jury in substantial accordance with the request of the defendant first above quoted. Under these circumstances we think the refusal of the court to charge as requested did not constitute such an error as would justify an interference with the judgment. Isolated portions of a charge will not be seized hold of for the purpose of criticism, if the charge, as a whole, conveys to the jury the correct rule of law on,, the question, although detached sentences may be erroneous; and. if the language employed is capable of different constructions,, that will be adopted which will lead to the affirmance, unless it. fairly appears that the jury was, or at least might have been, misled. Caldwell v. Steamboat Co., 47 N. Y. 282; Losee v. Buchanan, 51 id. 476, 492; People v. McCallam, 103 id. 587; 4 St. Rep. 291; Hickenbottom v. D., L. & W. R. R. Co., 122 N. Y. 91; 33 St. Rep. 312.

In considering whether a single proposition charged is erroneous, it should be construed in connection with the whole charge,, or so much of it as is connected with and tends to modify or explain the part claimed to be objectionable. And, although a part, of the charge excepted to, when isolated from the context, may b& err oneous yet the judgment will not be disturbed for that cause;, if it appears that the jury could not have been misled. Sperry v. Miller, 16 N. Y. 407, 413. Applying the principles of these cases to the charge under consideration, it becomes quite manifest, we think, that the refusal of the court to charge as first requested could not have misled the jury, as the true rulé of law govering the question was conveyed to it clearly by other and' subsequent portions of the charge.

The only remaining question suggested by the appellant as a ground for reversing the judgment is the following language, used by the court in its charge to the jury:

“If this defendant has walked into the temple of justice at its very alter, struck down the goddess of justice with impious hand, he should be punished, and that swiftly. But, upon the other-hand, if he is innocent, he should be acquitted of this charge, and it would be your duty, as well as your pleasure, no doubt, to do so. The.importance of this case lies beyond this trial as well as in it. Perjury is a dangerous crime, hard to meet, and hard to prove; but if it can be said that in your county perjury can walk into your courts and come out triumphant, human life, human liberty, and the rights of property in your county are jn jeopardy. Therefore I say to you, examine this evidence carefully, weigh it in the scales, of honest judgment, apply it to your intelligence, and no matter what the consequences are, because with the consequences or punishment of this crime you have nothing to do. That responsibility rests somewhere else, and you should not consider it, but weigh this evidence, and fearlessly render-such a verdict, as you think it justifies.”

The defendant contends that this portion of the charge was exceedingly prejudicial to him, and that its tendency was to inflame the feelings and passions of the'jury, and prevent it from exercising that calm and impartial examination of the evidence bearing upon the question at issue which it was its duty to bring to its consideration. When we consider this portion of the charge in connection with the whole charge, we are unable to hold that it was .misleading, or that its tendency was to excite the passions of the jury, or prejudice it in the examination of the questions involved.

Having thus considered all the questions raised by the appellant in his brief, and having found none that would justify a reversal, it follows .that the judgment and orders appealed from ¡should be affirmed.

Judgment of conviction of the court of sessions of Otsego ¡county, and orders appealed from, affirmed, and, after the judgment is entered in the judgment hook, a certified copy of the ¡entry shall forthwith be remitted to the clerk of Otsego county, with whom the original judgment roll is filed, in accordance with the provisions of section 547 of the Code of Criminal Procedure.


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    In the Matter of a Proceeding for the Appointment of an Administrator of the Estate of James Denick, Deceased.

      Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    JfeVOKCE—FOEEIGN—VALIDITY IN THIS STATE.
    Where both of the parties to a marriage contract are bona fide citizens of, and domiciled in, any state, the courts of that state have power to divorce them, -and such a divorce is valid, not only in the state where it is granted, tout in,every other state. Jurisdiction of the person of a defendant in an action for divorce may be acquired by a court of the state of which ho is a domiciled citizen, by such proceedings in the nature of service of process as the law of the state has made the equivalent of personal service within its jurisdiction.
    Piper & Rice, for app’lts;
    Charles N. Bulger, for resp’t.
    Appeal from a decree appointing an administratrix of decedent’s estate and allowing her .costs and expenses of the proceedings resulting from such appointment.
   PER CURIAM.

James Denick, at the time of his death, resided in Oswego county, N. Y. He died March 3, 1895. After his death, J axed W. Deniclc filed with the surrogate of Oswego county a petition praying for letters of administration upon the estate of the decedent, and a citation was served upon the respondent. On the return of such citation the respondent filed with the surrogate a petition asking that, as his lawful widow, letters of administration upon the estate of the decedent he issued to her. Thereupon Augusta Terpening, Eugenia Mount, Jared W. Denick, and Horatio S. Denick, who were the children of the decedent, filed an answer to the respondent’s petition, in effect denying that she was the widow of the decedent, and alleging that she had a former husband living, from whom she had never been lawfully divorced, and that she was still the lawful wife of such former husband. The issue thus raised was tried in the surrogate’s court, and after hearing the testimony, the court found that the respondent was married to Horace 1). Guernsey, her former husband, in December, 1869, and lived with him until about April, 1881; that about February, 1881, the respondent and Guernsey moved to the state of Michigan, and took up their residence there; that in April of that year Guernsey was arrested on an extradition warrant, taken to the state of New York, tried, convicted of burglary, sentenced to the state prison for three •years, served his sentence, and, when released, returned to the state of Michigan, where he has since resided. The surrogate also found that on March 13, 1882, the respondent instituted proceedings in one of the circuit courts of the state of Michigan against Guernsey, to dissolve the marriage between them, knd that such proceedings were duly had, according to the laws’ and practice of the state of Michigan; that on August 25, 1882, a final decree of divorce was duly granted, absolutely dissolving the marriage between the respondent and Guernsey; that such decree of divorce had from that date been, and still was, in full force and effect; that it was legal, and in accordance with the laws of the state of Michigan, and that under the laws of that state the respondent had a right to remarry; that on September 4, 1894, the respondent and the decedent were duly married in the state 6f Michigan, and from that time until the decedent’t death lived and cohabited together as husband and wife; and that such marriage was legal and valid under the laws of the state of Michigan. Upon the facts thus found, as conclusions of law the surrogate’s court held that the decree of divorce granted the respondent was valid, and in all respects legal, and that after August 25, 1882, the respondent had a legal right to remarry; that the marriage between the respondent and the decedent was valid under the laws of the state of Michigan; and valid in this state; that the respondent was the lawful wife of the decedent at the time of his death, and therefore became his lawful widow, and was first entitled to administer his estate. In pursuance of and in accordance with this decision, an order was duly granted, appointing the respondent administratrix of the estate of the decedent.

A careful examination of the evidence in this case shows that it was sufficient to sustain the findings of the learned surrogate, and therefore, in determining the question presented, the facts, as found, must be regarded as established. The principal and practically the only controversy between the parties is as to the validity of the divorce granted to the respondent. That the judgment of divorce is valid and binding upon the parties, if the court granting it had jurisdiction, is manifest and not denied by the appellants. So that the only question that need be determined upon this appeal is whether the court had jurisdiction to .^rant a judgment of divorce dissolving the marriage between the plaintiff and Horace D. Guernsey. When this judgment was granted the respondent and her former husband were both citizens and residents of the state of Michigan, although the husband was temporarily enduring a forced absence from the state. Under these circumstances, we are of the opinion that the courts of the state of Michigan had jurisdiction to dissolve the marriage be-" tween the parties, in accordance with the laws of that state, even though the defendant was temporarily absent, and was only constructively notified of the action against him. It seems to be settled that where both of the parties to a marriage contract are bona fide citizens of, and domiciled in, any state, the courts of that state have power to divorce them, and such a divorce is valid, not only in the state where it is granted but in every other, and that jurisdiction "of the person of a defendant in an action for divorce may be acquired by a court of the state of which he is a domiciled citizen, by such proceedings in the nature of service of process as the law of the state has made the equivalent of personal service within its jurisdiction. While a person retains the relation of a citizen of the state, he is subject to its law, which he cannot avoid by a temporary or prolonged absence, from the ■state. Therefore a judgment of divorce rendered by the courts of a state against such a citizen upon a substituted service of process, such as is authorized in the case of an absent defendant, is valid to effect a dissolution of the marriage contract, and is conclusive upon the defendant in every other state, although he was not within the territorial jurisdiction during the progress of the ■suit, and did not appear therein. Black, Judgm. § 926; Hunt v. Hunt, 72 N. Y. 217; Rigney v. Rigney, 127 id. 408, 413; 40 St. Rep. 210; De Meli v. De Meli, 120 N. Y. 485, 495; 31 St. Rep. 704; Kinnier v. Kinnier, 45 N. Y. 535. The cases cited by the appellant are clearly distinguishable from this. In those cases the general doctrine held is that a judgment in one state cannot have the effect of binding a citizen of another without his consent, or fix upon him a status which is against his will, and is in hostility to the laws of the state where he resides; and hence a court of one state cannot adjudge the dissolution of the marital relations of a citizen of another state, who is domiciled and actually residing there during the pendency of the judicial proceedings in the former state, unless there is a voluntary appearance. The distinction between the class of cases last referred to and the case at bar is that in the latter both parties were citizens and residents of the state in which the divorce was granted, while in the former one of the parties was a citizen of another state, go that the court neither had nor acquired any jurisdiction to affect his status or relations to the other party.. We are of the opinion that the judgment of divorce obtained by the respondent was valid, and dissolved the marital relations between herself and her former husband, and that the marriage between her and the decedent, which took place in the state of Michigan, under the laws of which the divorce was granted, was also valid, and, being valid under the laws of the state of Michigan, it must be valid in this state. These considerations lead to the conclusion that the order appealed from was correct, and should be affirmed.

Order affirmed, with costs payable out of the estate.

HARDIN, P. J., and MERWIN, J., concur.


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    Margaret Hatzung, Resp’t, v. City of Syracuse et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Constitutional law—Assessments.
    Chapter 817 of 1895 is constitutional since the property owners had notice of the assessment, and the only irregularity therein was the omission of requirements which the legislature might have dispensed with in the first instance.
    2. Same.
    If the thing omitted, which constitutes the defect sought to be removed, is_ something which the legislature might have dispensed with by a previous statute, it may do so by a subsequent one.
    Appeal from a judgment rendered in favor of plaintiff.
    Charles E. Ide, for app’lts;
    Knapp, Nottingham & Andrews, for resp’t.
   PER CURIAM.

The purpose of this action was to vacate and set aside' a local assessment upon the property of the plaintiff which fronts upon East Water street, in the city of Syracuse. Proceedings were instituted to pave that street, under and in pursuance of which the city entered into a contract therefor. The-work was performed by the contractors, and to pay for it the assessment in question was made. The plaintiff contends that the proceedings which resulted in the assessment were irregular in the-following particulars: (1) That the resolution directing the city clerk to advertise for bids did not become operative until signed by the mayor, four days after the publication of notice to contractors was commenced; (2) that such notice was not published in the official newspaper of the city for the length of time required by the statute; (3) that the specifications were not prepared in time, a portion of them not having been completed until two days before the proposals were to be received; (4) that the-contract was not let to the lowest bidder; and (5) that the assessment covered work for which no contract was made. The court at special term discussed all these questions, but based its decision upon the sole ground that the contract was not let to the lowest bidder.

The appellants contend that the court erred in setting aside the assessment, and insist that there were no such irregularities in the proceedings as to render them ineffectual or void. To uphold the proceedings, and as a ground for the reversal of the judgment, they also rely upon a statute subsequently passed (Laws-1895, chap. 817), which, so far as it applies to the assessment under consideration, provides:

“Section 1. All and each of the assessments heretofore made and levied for grading, paving, repaving, and improving the several Streets, avenues and portions thereof in the city of Syracuse, more particularly described as follows, to wit: Crouse avenue, from Water street to University place; East Water street, from Warren to Pine street "" * "" are and is hereby in all respects ratified, confirmed and declared legal, and the same shall be enforced and collected in the manner prescribed by law for the collection and enforcement of assessments made and levied in said city of Syracuse for local improvements. * * * ”
“Sec. 3. Ho assessment or tax heretofore or hereafter assessed, made or levied for any improvement as heretofore referred to and provided, shall be in any manner impaired or rendered illegal, invalid or uncollectible because of any omission or irregularity,, not fraudulent, preceding or attending the mating, execution and performance of the several contracts for such work and improvements.”

The respondent practically concedes that this appeal must be decided upon the law as it stands at the time the decision is rendered, and that the foregoing statute is a public one, of which the court must take notice. She, however, seeks to uphold the judgment upon the ground that this curative statute violates that provision of the constitution which prohibits the taking of property without due process of law, and is, therefore, void. That this statute, if constitutional, is sufficiently broad to validate the assessment against the plaintiff’s property, is not denied, and hence the sole question upon this branch of the case relates to the constitutionality of such statute. The earlier cases in this state relating to the constitutionality of such curative statutes seem to establish the doctrine that assessments for municipal improvements are a species of tax, the imposition of which is within the power of the legislature, and unlimited, except as specifically restrained by the constitution; and that, where an assessment for municipal improvements is irregular, the legislature itself, without notice to .the persons assessed, may make the assessment, or may authorize a reassessment. In re Van Antwerp, 56 N. Y. 261; Howell v. City of Brooklyn, 37 id. 267; People v. Mayor, etc., of Brooklyn, 4 id. 419; Thomas v. Leland, 24 Wend. 65. The respondent practically concedes that, if these authorities are to be followed, the curative statute under consideration was valid, and the judgment herein should be reversed. She contends, however, that the authorities cited have been modified, if not overruled, by subsequent cases, and as sustaining that proposition refers to the cases of Stuart v. Palmer, 74 N. Y. 183; In re Trustees of Union College, 129 id. 308; 41 St. Rep. 640; Cromwell v. MacLean, 123 N. Y. 474; 34 St. Rep. 85; McLaughlin v. Miller, 124 N. Y. 510; 36 St. Rep. 690; People v. Henion, 64 Hun, 471; 46 St. Rep. 71; Remsen v. Wheeler, 105 N. Y. 573; 8 St. Rep. 202; and Ensign v. Barse, 107 N. Y. 329; 12 St. Rep. 39, and 13 St. Rep. 613. In the Stuart Case, which involved the validity of a statute imposing an assessment for local improvements which in no way provided for a notice to the persons who were to be assessed, or for an opportunity for them to be heard, it was held that the statute was unconstitutional, as it had the effect to deprive the owner of his property without due process of law, In thaf; case it was said: “The legislature may prescribe the kind of notice, and the mode in which it shall be given, but it cannot dispense with all notice.” Assuming the correctness of this decision, and that it has the effect of modifying the ■earlier cases, still it is not controlling in this case. In that case no provision whatsoever was made for notice to the owner. In this the statute provided for notice to the owners and gave them ample opportunity to appear, and to be heard upon the question •of their assessment. After they had that opportunity, and the proceedings in other respects were found to be informal and irregular, the legislature passed a curative act confirming and legalizing the assessment thus made. Therefore the case at bar is clearly distinguishable from the Stuart Case. In re Trustees of Union College involves substantially the same principle as that ■decided in the Stuart Case, and holds that the legislature could not validate an act which was invalid because it provided for the .apportionment of a tax without notice by simply re-enacting the act. In that case, as in the Stuart Case, there was no notice whatsoever. In the Cromwell Case it was held that, where proceedings were so defective as to result in no valid assessment, and where a sale made under it conveys no title, thus leaving in the original owner his title or interest unimpaired, the legislature has no power to validate the sale, and thus transfer such title to the-purchaser at the.tax sale. In the opinion in that case it was, in effect, said that the legislature had large powers in curing defects in such proceedings as this, and that where, in the proceedings, the owner has had an opportunity to be heard before the tax was imposed, but defects have been discovered in the proceedings, if the defects are of such a nature that the legislature might have dispensed with them, or, if something had been done which the legislature might have made immaterial, the omission or irregular act might be cured by a subsequent statute (Ensign v. Barse, 107 N. Y. 329; 12 St. Rep. 39, and 13 St. Rep. 613), and that such an act might take away from a tax-payqr a defense to the further proceedings against him to collect the tax, which he otherwise would have had. Tifft v. City of Buffalo, 82 N. Y. 204. The McLaughlin Case is to the effect that where the duty of apportioning the expense of a municipal improvement by assessment is devolved upon any board or officers, some provision for notice to the property owners is essential; otherwise they would be deprived of their property without due process of law. The cases of People v. Henion, 64 Hun, 471; 46 St. Rep. 71, and Remsen v. Wheeler, 105 N. Y. 573; 8 St. Rep. 202, are to the same effect. In the Ensign Case there was an omission of the dollar mark in the statement, in the tax roll, and warrant of the amount of a tax. The assessment roll was not signed by the assessors, but the certificate referred to it as an assessment roll. In the certificate of valuation the words “solvent creditor were used instead of “solvent debtor.” In the assessment for a highway tax, the number of the road district or the date of the commissioners’ warrant was not given; and the county treasurer’s notice of sale was not delivered the 1st of September, as required by statute, but the notice was dated September 15th. And yet it was held in that case that none of these defects was jurisdictional. After a reargument in that case, the court discussed the ■question of jurisdictional defects, stating that in its former opinion the defects were not deemed jurisdictional in "any other sense than the modified one of an essential" condition under the law as it stood, and then added:

“Whether it was .so jurisdictional as that the legislature could not have dispensed with it, and therefore could not cure its omission, is a very different inquiry. A defect may be in one sense jurisdictional, relatively to the authority of the assessors acting under an existing law, and yet not so as it respects the power of the legislature to pass a statute curing the defect.”

We find in these cases no principle that would justify us in upholding the judgment herein, but, on the contrary, they are all consistent with, and tend to sustain, the validity of the statute under consideration.

An examination of the axithorities bearing upon the question renders it quite manifest that the legislature had authority to validate the proceedings under consideration. The general and established rule in relation to curative’statutes seems to be that, if the thing omitted, which constitutes the defect sought to be removed, is something which the legislature might have dispensed with by a previous statute, it may do so by a subsequent one. If the irregularity consists in doing some act or doing it in the mode which the legislature might have made immaterial by a prior statute, it may do so by a later one. It may thus ratify a contract of a municipal corporation for a public purpose, and establish municipal ordinances and proceedings irregularly adopted or instituted. Suth. St. Const. § 483; Dill. Mun. Corp. (4th Ed.) § 79; In re Delaware & H. Canal Co., 60 Hun, 204; 37 St. Rep. 839; Brewster v. City of Syracuse, 19 N. Y. 116; Town of Duanesburgh v. Jenkins, 57 id. 177; Brown v. Mayor, etc., 63 id. 239; People v. McDonald, .69 id. 362; People v. Board of Assessors of City of Brooklyn, 92 id. 430; Supervisors v. Brogden, 112 U. S. 261, 271; Anderson v. Township of Santa Anna, 116 id. 356, 364; Bolles v. Brimfield, 120 id. 759, 762. That the legislature might have dispensed with all the requirements that were not complied with in the proceedings under consideration, we have no doubt. This is hardly disputed by the respondent. Her principal insistence is that, as the curative statute under consideration did not provide for a reassessment with notice to the owners, it falls within the doctrine of the cases requiring notice, and is, consequently invalid. We think this insistence cannot be sustained. . The purpose of this statute was to validate the assessment, and the legislature, by the passage of that act, in effect adopted the apportionment and assessment previously made, and imposed the tax upon the property affected in accordance with such previous assessment. That it might do this seems to be sustained by the cases of Lennon v. Mayor, etc., 55 N. Y. 361, 367; Cromwell v. MacLean, 123 id. 474, 490; 34 St. Rep. 85; and Tifft v. City of Buffalo, 82 N. Y. 204, 210. In the latter case Folger, C. J., said:

“Where there' was municipal jurisdiction of the subject-matter, and the defects in the exercise of it are irrugularities in the mode of procedure, it is within the legislative discretion to adopt and confirm the result of the informal áct, or to send back the matter to the municipality, with power to begin again, and go forward in dhe mode prescribed by the original authority.”

It is manifest from the evidence in this case that the plaintiff had notice of the assessment and apportionment of the tax between the owners of the property fronting upon the street in question, and thus had an opportunity to appear and question the validity of the assessment as well as the proportion she should pay. It is also manifest that the omissions in the proceeding were clearly such as, within the authorities, the legislature might validate. It may be that the requirements of the statute as they existed before the passage of the curative act were not sufficiently complied with to render the proceeding regular and valid,, and yet, as the officers of the city had jurisdiction of the subject-matter, and the defects were such that the legislature might have passed a statute authorizing their omission, they were not so far without jurisdiction as to prevent the legislature from validating: them. By the curative act the legislature has made that legal which was perhaps originally without sanction, and thereby rendered the assessment against the plaintiff valid.

These considerations lead us us to the conclusion that the curative statute under consideration was valid, and that the judgment should be reversed. *

Judgment reversed without costs to either party.


author: DYKMAN, J.

text:
    The People, Pl’ff, v. Beveridge Brewing Company, Def’t. Wm. G.Hunter, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

      ■ -Corporations—Insolvent—Preference.
    A bookkeeper of an insolvent corporation is within the provision of section 1, chapter 376 of 1885. which gives preference to “ employes, operatives and laborers ” of insolvent corporations for wages.
    Appeal from an order, directing the receiver to pay the claims against the corporation, except the claim of the secretary and bookkeeper on the ground that he is not of the grade of workmen designed to be protected by the statute.
    M. H. Hirschberg, for app’lt;
    T. E. Hancock, Atty. Gen., and A. S. and W. F. Cassedy, for receiver; E. A. Brewster, for creditors;
    Benjamin M. Fowler, for def’t.
   DYKMAN, J.

This is an appeal from an order made at special term prohibiting the receiver of the defendant, an insolvent corporation, from paying the wages due William G. Hunter, its book-keeper, as a preferred claim under the statute. The action was brought to dissolve the Beveridge Brewing Company, as an insolvent corporation; and judgment was entered directing such dossolution, and appointing a permanent receiver thereof. On the 8th day of July, 1895, the receiver applied to the court for authority to pay the claims due for wages in full, by virtue of the provisions of chapter 376 of the Laws of 1895; and, by the order granted on such application, authority was conferred upon the receiver to pay the wages of all the employees, excepting those due the bookkeepers, and he has appealed from so much of the order as provides that he shall not be paid his wages, and finds and decides that he is not of the grade of workmen designed to be protected by the act in question. The statutory provision is as follows:

“Where a receiver of a corporation created or organized under the laws of this state and doing business therein, other than insurance and moneyed corporations shall be appointed, the wages of the employees, operatives and laborers thereof shall be preferred to every other debt or claim against such corporation, and shall be paid by the receiver from the moneys of such corporation which shall first come into his hands.”

The word “employees,” as used in this statute, has a broad and comprehensive signification, and includes all persons who are employed. It is derived from the French word “employé,” and lexically means one who is employed. ¡Neither construction nor interpretation can make it mean or signify any other thing, or describe any other person, or exclude any one who is employed from its scope and operation. The bookkeeper, Hunter, the appellant, was employed by the company, at a salary of $100 a month, to keep its hooks. He therefore falls directly within the class of persons whom the statute was designed to protect, and it requires a strained and unnatural construction to exclude him from the benefits thereof. The decision of the special term was doubtless based upon the case of In re Striker, reported in 73 Hun, 327; 55 St. Rep. 903, which the judge did not feel at liberty to disregard. While it must be admitted that .-the Striker Case is a decision in favor of the respondent, we think the statute must be allowed a much broader construction than it received in that case. The facts in the two cases cited in the Stryker Case as authority for the conclusion there reached are not sufficiently analogous" to this case to control us. Wakefield’s Case, 90 N. Y. 213, arose under chapter 63 of the Laws of 1863, where the controlling words are “laborers, servants,” and not apprentices, all of which are words of narrow, precise meaning. The Eemington Case, 45 Hun, 331, was unlike this in its facts. There the claims were made by the superintendent and the attorney of the company. In our view, the construction and application which the statute in question received in the case of Brown v. A. B. C. Fence Co., reported in 52 Hun, 151; 23 St. Rep. 415, is much more consonant with the intention of the legislature, as collected from the statute, than that which was given to it in Stryker’s Case. The meaning of the. word “employee,” when used in similar statutes, received careful consideration in the case of Gurney v. Railway Co., 58 N. Y. 358. The claim.there was for the professional services of a lawyer, in litigation connected with tho railroad company, and Chief Judge Church said in that case:

“It is manifest that literally and'lexically the claimant was an employee of the company; that is, he was employed by, and rendered important services for, them. So the service rendered was, in a sense, in connection with the company’s- railways; that is,, the services related to the railway and its interests and business.” \

After noticing and considering three cases, he further said:

“It will be observed, in the first place, that the word ‘employee/ used in the order, is not found in any of the statutes involved in these cases. This is a word of more comprehensive signification than ‘laborers and operatives;’ -and that a contractor is in no proper sense a servant, hut in many respects an independent party, and that a secretary is not a servant, within the ordinary meaning of that word, hut is an officer recognized by law as such, seems manifest and plain enough.

In the same case, Judge Allen said:

“All laborers and all employees of the railway corporation who have actually done service in connection with that company’s railways are embraced in the terms used. None are excluded, in terms or by implication, and all who come within the description are entitled to the benefit of the order. In the absence of any intent, apparent on the face of the order, to discriminate between different classes of employees or different kinds of service, the court cannot confine it to a single class, or to a particular service. The term ‘employee’ is the correlative of ‘employer, and neither term has, either technically or in general use, a restricted meaning, by which any particular employment or service is indicated. The terms are as applicable to attorney and client, physician and patient, as to master and servant, a farmer and day laborer, or a master mechanic and his workman. To employ is to engage, or use another as an agent or substitute in transacting business, or the performance of some' service, it may be skilled labor, or the service of the scientist or professional man, as well as servile or unskilled manual labor.”

There is no reason why any person who comes within the terms of the statute should be excluded from its beneficent protection. The statute prescribes no distinction between different classes of employees, and the person employed to keep the books labors with his hands, and contributes no-more skill or experience than many skilled laborers.

We discern no reason for discrimination against the appellant, and the order should be reversed, with $10 costs and disbursements, and an order granted for the payment of the money due him, as a preferred claim, under the statute.

All concur.


text:
    Aultman and Taylor Company, Resp’t, v. Syme, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1895.)

    Execution—Computation oe time.
    The computation of time, in order to determine whether an execution has been issued within five years after the entry of judgement, must necessarily commence with the date on which the judgment'is entered.
    Motion for reargument.
    E. F. Brown, for app’lt;
    W. H. Blymyer, for resp’t.
   PER CURIAM.

It is claimed upon the part of the appellant that the motion to set aside the orders for examination in this case should have been granted, because the judgment in the action was entered on the 14th of November, 1889, and the execution, which formed the foundation of those orders, was issued on the 14th of November, 1894, and therefore not issued within five years after the entry of judgment; and the question to be determined is whether, in the calculation of time, as prescribed by law, the first day is to í>e included in the computation or not. It seems to us, upon an examination of the statutes in respect- to the computation of time, that a different rule prevails in computing any specified number of days, weeks, or months from a specified event, from that which obtains in the computation of any specified number of years from a specified event. By the provisions of the statufes, the day from which any specified number of days, weeks, or months of time is reckoned shall be excluded in mating the reckoning. Laws 1894, chap. 447, § 27. But the section relating to computation of time by the year contains no such provision. Laws 1892, chap. 677, § 25. In order that the day upon which happens the event from which the computation is to take place should be excluded, it seems to have been thought necessary to so provide by legislation, which would not have been the case had this been the general rule in respect thereto. The computation of time, in order to determine whether an execution has been issued within five years after the entry of judgment, must, therefore, necessarily commence with the day on which the judgment is entered, as there is no provision of law, where the computation is made by years, giving the party the benefit of the exclusion of the day upon which the act is done which sets the limitation running; and as the court, in considering the question of time, takes no notice of the fraction of a day, that portion of the day which remains after the act is done must be treated as the first day.

It follows, therefore, that the order appealed from must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.


author: PRATT, J.

text:
    In the Matter of the Judicial Settlement of the Accounts of Wilbur F. Washburn, as Executor, etc., of Jarvis A. Waring, Deceased.

      (Supreme Court, Appellate Division, Second Department,

      Filed January 14, 1896.)

    1. Executors, etc.—Decree.
    By section 2552 of the Code, the decree of the surrogate, directing an executor to pay money to a person entitled to the same from the estate, is conclusive evidence-that there are sufficient assets in his hands to satisfy the sum directed to he paid.
    2. Same—Failure to obey decree. „
    Where the executor has paid personal bills and money to himself and to his attorney, he cannot be heard to excuse his non-compliance with the decree by showing that he has not the amont in his hands to pay as required by the decree. *

    Appeal from an order, adjudging the executor guilty of contempt for refusing to obey- a decree requiring him to pay a satisfactory sum.
    F. X. Donoghue, for app’lt;
    John H. Ferguson, for Frederick H. Strong, assignee, resp’t.
   PRATT, J.

This is an appeal from an order adjudging the appellant guilty of contempt for refusing to- obey a decree made in the above matter by the surrogate of Westchester county requiring the appellant to pay the sum of $1,512.55 now in his hands as executor of said estate. By section 2552 of the Code of Civil Procedure the decree of the surfogate directing an executor to pay money to a person entitled to the same from the estate is conclusive evidence that there are sufficient assets in his hands to satisfy the sum directed to be paid. The defendant cannot be heard to impeach the decree, but the same must stand as conclusive as to all questions adjudicated therein, as there has been no appeal therefrom. The accounts were passed upon, and the sums due from the executor ordered to be paid. On the neglect or refusal of the appellant to pay, an execution" was issued and returned unsatisfied. The appellant was examined in supplementary proceedings, which disclosed the fact that the appellant had paid personal bills and money to himself and also to his lawyer. While the payments may have been legally made, he cannot now be heard to excuse his noncompliance with the decree by saying he has not the amount in his hands to pay as required thereby. In re Snyder, 103 N. Y. 178; 2 St. Rep. 758; In re Kurtzman, 2 St. Rep. 655. The defense urging that the assignee of Oscar Waring is not entitled to enforce the decree against Washburn has no merit. However that might have been in the surrogate’s court, it cannot be urged at this time, as there is no power to correct the decree except in this court or upon apv peal. Smith v. Nelson, 62 N. Y. 288; Stillwell v. Carpenter, 59 N. Y. 414; Townsend v. Whitney, 75 id. 425; Code Civ. Proc., § 2743.

The order must be affirmed, with costs.

All concur.