text:
    The People, Resp’ts, v. Patrick W. Connor, App’lt.

      (Court of Appeals,

      Filed April 14, 1891.)

    1. Rape—Resistance.
    The extent of the resistance required of an assaulted female is governed by the circumstances of the case, and the grounds which she has for apprehending the infliction of great bodily harm.
    2. Same.
    If the evidence warranted the jury in finding that a female subject to such an assault as was shown in this case, had reason to fear great bodily injury if she resisted to the extent of her ability, they were justified in finding that the crime of rape had been committed.
    3. Same.
    The fact that the prosecutrix did not in the limited time allowed her employ all the means in her power to resist the assault does not as a matter of law prove that she did not resist to the extent of her existing ability.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of court of general sessions, entered upon a verdict convicting defendant of the crime of rape.

      Henry A. Gildersleeve, for app’lt; McKenzie Semple, ass’t dist. att’y, for resp’ts.

       Affirming 31 N. Y. State Rep., 163.

   Ruger, Ch. J.

The defendant was tried at the general sessions in ¡New York and convicted of the crime of rape alleged to have been committed on the body of a female named Minnie Heath. The course taken on the trial resulted in presenting but one disputed question of fact for the jury, which was, whether the connection, admitted to have taken place between the defendant and Minnie Heath, was effected by force alone or was partially or wholly accomplished with her consent.

The jury, under a charge upon this question which has elicited the encomiums of the defendant’s counsel, found that the connection was effected against the will and without the consent of the prosecutrix; and he appeals from the judgment, entered upon the verdict, upon the ground that there was no evidence to sustain it, or rather that the jury were bound to infer consent from the evidence. The prosecutrix and defendant were the only eye witnesses to the circumstances of the alleged connection, and theirevidenceconflicted on all material points. The prosecutrix, a young, virtuous and apparently truthful girl, gave a consistent and probable account of the transaction and was supported in respect to her story by the material 'circumstances of the case. Tlíe defendant’s testimony was unnatural and improbable and tended to show that he was a reckless and unprincipled man, capable of fabricating testimony to escape the consequences of his crime. It was not strange or unnatural that under these circumstances the jury gave credit to the story of the girl and disbelieved the testimony of the defendant. This they had. the right to do, unless there were circumstances in the testimony of the prosecutrix so radically inconsistent with the theory of a constant and earnest resistance to the attempt of the defendant as to present a question of law. If her evidence showed the fact of non-consent and the exercise of all the means of resistance which, under the circumstances of the case and. the condition of her mental faculties, were within her power to make, the judgment cannot be disturbed.

Hnder the Revised Statutes rape was defined to be the act of “ carnally and unlawfully knowing any female child under the age of ten years,” or “ forcibly ravishing any woman of the age of ten years or upwards.” 3 R. S., 2476, 7th ed. The Penal Code defined with more care and precision the circumstances which should constitute the crime of rape, and included within its provisions cases which might not have been punishable under the prior statute. The crime is there defined to be an act of sexual intercourse with a female, not the wife of the perpetrator, committed against her will and consent.” The circumstances under which consent cannot be implied are expressed in six subdivisions, among which are those “ when the female is under the age of ten years ” (now sixteen, act of 1887); “ when incapable of giving consent through idiocy or other unsoundness of mind ” ; “ when her resistance is forcibly overcome, or is prevented by fear of immediate and great bodily harm, which she has reasonable cause to believe will be inflicted upon her;” and other cases not material to consider in the discussion of this case. Sec. 278, Penal Code. Such cases as come within these definitions, and such alone, now constitute the crime of rape.

The codifiers, evidently, undertook to make a comprehensive definition of the crime, including all of the cases which should thereafter be punishable as rape, and those they define in language so plain and unambiguous that the measure of resistance required of a female, subjected to felonious assault, cannot well be now the subject of misunderstanding. The substantial elements required by the Code to constitute the crime are, that the connection shall be effected against the will and consent of the female; but such consent cannot be implied unless the case is brought within the meaning of some of the conditions- named in the statute. Of course, any partial or voluntary submission to an assault will be construed now, as formerly, to amount to a consent ; but when the submission is produced by the fear of great bodily harm, the necessity of showing the same degree of resistance required in other cases is now unnecessary.

It is thus seen that the extent of the resistance required of an assaulted female is governed by the circumstances of the case, and the grounds which she has for apprehending the infliction of bodily harm. When an assault is committed by the sudden and unexpected exercise of overpowering force upon a timid and inexperienced girl, under circumstances indicating the power and will of the aggressor to effect his object, and an intention to use any means necessary to accomplish it, it would seem to present a case for a jury to say whether the fear naturally inspired by such circumstances had not taken away or impaired the ability of the assaulted party to make effectual resistance to the assault.

It is quite impossible to lay down any general rule which shall define the exact line of conduct which shall be pursued by an assaulted female under all circumstances, as the power and strength of the aggressor, and the physical and mental ability of the female to interpose resistance to the unlawful assault, and the situation of the parties, must vary in each case. What would be the proper measure of resistance in one case would be totally inapplicable to another situation accompanied by differing circumstances. One person would be paralyzed by fear and rendered voiceless and helpless by circumstances which would only inspire another with higher courage and greater strength of will to .resist an assault. A young and timid child might, we think, be easily overpowered and deprived of her virtue before she had an opportunity to recover her self-possession and realize her situation and the necessity of the exercise of the utmost physical resistance in order to preserve her virtue. It would be unreasonable to require the same measure of resistance from such a person that would be expected from an older and more experienced woman, who was familiar with the springs and motives of human action and acquainted with the means necessary to be used to protect her person from violence.

It was said by Judge Folger in The People v. Dohring, 59 N. Y., 383, that “ of course the phrase ‘ the utmost resistance ’ is. a relative one; and the resistance may be more violent and prolonged by one woman than another, or in one set of attending physical circumstances than in another. In one case a woman may be surprised at the outset, and her mouth stopped so that she cannot scream, or her arms pinioned so that she cannot use them, or her body so pressed about and upon that she cannot struggle. But whatever the circumstances may be, there must be the greatest effort of which she is capable therein to foil the pursuer and preserve the sanctity of her person." It was held that the request to charge was correct as it limited the resistance to the extent of the ability of the prosecutrix on the occasion in question and under the circumstances in which she was then, placed.

We do not see anything there decided which conflicts with the conclusions we have reached in this case. If the evidence warranted the jury in finding that a female subjected to such an assault as was shown in this case had reason to fear great bodily injury if she resisted to the extent of her ability, they were justified in finding that'the crime had been committed. We think the evidence was of this character and brought the case, not only within the meaning of the statute, but also within the rule laid down in the Dohring case. That proof showed that the defendant was a strong, robust man, fifty years of age and was engaged, in managing an intelligence office located on the comer of ¡Forty-seventh street and Tenth avenue in the city of ¡New York. The prosecutrix was a young and virtuous girl, but little over sixteen years of age, who had come to ¡New York from the country, a short time before the commission of the alleged crime, to find employment in some domestic capacity. She was staying, temporarily, with her aunt near Tenth avenue, and near the defendant’s place of business, and, not being successful in securing employment by her own efforts, on the 6th day of December, 1888, went to the office of the defendant and solicited .his aid in getting a situation. Thereupon he executed the customary contract with her, by which for a consideration then paid him, he engaged to-find her a situation as a domestic servant within thirty days provided she remained at the office during business hours, at least four days in a week. She, with a number of other females, remained in such office the required period on the 6th and 7th days of December.

On the latter day, as the other girls were leaving the office to go home at the accustomed hour, about half-past three o’clock in "the afternoon, the defendant induced the prosecutrix, by artifice, tó consent to remain until after four o’clock. The other inmates of the office having left, and the prosecutrix being unwilling, for some reason, to remain longer, about twenty minutes to four, notified the defendant that she would not stay longer than four o’clock in any event The defendant was then in the office alone, and as the girl made this announcement immediately locked the outer door of the office and drew down the shades of the windows, ■seized the girl and lifting her from the floor, bore her through an adjoining room, in which the girls were accustomed to sit, into the last room of the suite. He then laid her on her back upon a long bench, holding her down by force, and getting upon her remained there until he had accomplished his purpose. The whole trans.action occupied less than five minutes, and when it was over the defendant immediately left the room and the building, leaving the girl alone. ' Immediately upon her release she followed the defendant out of the building and went to the home of her aunt, to whom she immediately related the circumstances of the assault. She was then hysterical and in tears; her hair was dishevelled, .and her drawers, stained with fresh blood, were torn so as to render access to her person possible. A surgical examination of the girl made shortly thereafter revealed that the hymen had been recently ruptured, and her private parts were lacerated and bleeding. This prosecution was immediately instituted, and the defendant arrested before five o’clock of the same day. The prose•cutrix testified that she struggled with defendant, and used all her efforts to get away from him, from the time he seized her until the contest was over; that she used her hands and feet and .•continually requested him to release her and let her go; that she •did not halloo because she was too frightened to do so, and that ■she was in a dazed condition. We think there was nothing in this evidence that tended to show any relaxation of a purpose to resist the efforts of the defendant to deflour her person; and that the verdict of the jury was sustained by the evidence.

The defendant was a man of mature years and apparently of fair intelligence, and was engaged in a respectable business. The sudden exhibition by such a man of ungovernable passion and criminal design, with a contempt for the restraints which the law and decency impose upon all persons, could not fail to inspire a timid girl with feelings of alarm and consternation. The brutality and violence exhibited in this 'case were quite sufficient to engender that degree of fear requisite to confuse the mind and paralyze the efforts of his victim to free herself from the grasp of her assailant. The relations existing between the prosecutrix •and the defendant, her dependence upon his good will for the means of earning a livelihood, naturally tended to disarm any suspicion of violence from him and induced the belief that he would be influenced by her supplications and show some regard to her wishes. The fact that the prosecutrix did not in the limited time allowed her employ all the means in her power to resist the assault, does not, as matter of law, prove that she did not resist to-the extent of her existing ability.

Ho other point requiring serious consideration was raised on the argument before us.

For the reasons stated, as well as those so clearly expressed in the opinion below, we think the judgment of conviction should be affirmed.

All concur, except Finch and Gray, JJ., absent


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    The People ex rel. The Western Union Tel. Co., App’lt, v. Edward Dolan et al., Assesssors, etc., of Troy, Resp’ts. The People ex rel. The Western Union Tel. Co., App’lt, v. Michael A. Tierney et al., Assessors, Resp’ts. The Same v. The Same.

      (Court of Appeals,

      Filed April 14, 1891.)

    Taxes—Telegraph companies—Laws 1886, chap. 659.
    In assessing for taxation under Laws 1886, chap. 659, that part of a telegraph line lying within a certain town, the property is not to be regarded as a part of a whole nor as a complete telegraph line in operation. The amount is to be ascertained by taking the cost of the production of' those articles, such as poles, wires, instruments, arms, etc., which are in their nature personal property and capable of infinite production, and adding thereto such sums as the company may have paid or contracted to pay the owner of land for the privilege of placing its poles thereon.
    Appeals from judgments of the supreme court, general term, third department, affirming judgments of special term quashing writs of certiorari.

      Wager Swayne and Edwin A. King, for app’lts ; Wm. J. Roche, for resp’ts.

       Affirming 32 N. Y. State Rep., 599.

       Reversing Id., 605.

       Affirming Id., 608.

   Peckham, J.

We have lately held in People ex rel. West Shore Railroad Co. v. Adams, Trustee, etc., 36 N. Y. State Rep., 166, that a person, under the circumstances in which this relator stood, failing to appear before the board of assessors on what is known as grievance day, is guilty of such laches as to warrant the court in refusing to grant him any relief in the premises.

It sufficiently appears in this proceeding that the relator did thus fail to appear in the years 1885 and 1887.

This leaves only the assessment of 1886 open for inspection and review.

In the affidavit made on the part of the relator to procure the certiorari to review the assessment for that year, it is alleged that the assessment is erroneous and illegal by reason of over-valuation, and is unequal because made at a higher proportionate valuation than other real property on the roM. It is also alleged that the actual value of the property of the relator within the limits of the city of Troy, and all fixtures connected therewith, does not exceed $4,000. The writ of certiorari was duly issued, and the defendants made return thereto, and the issues were referred to a referee to take testimony, after which the matter came on for a hearing before the court at special term, which made various findings of fact, and upon the merits quashed the writ. Upon appeal to the general term that court affirmed the order of the special term, and from the affirmance the relator has appealed here. The court at special term found the value of the taxable projDerty of the defendant, and listed on the assessment roll of Troy for the year 1886, was at least $12,000.

If there be any evidence to support the finding, this court is concluded. But if it appear that in coming to that conclusion the courts below have included improper and illegal elements as a basis for valuation, then an error of law has been made which is reviewable here. Upon the hearing before the referee to take testimony, the counsel for the defendants, under the objection of the relator’s counsel, proved that the receipts of the relator’s Troy office were about $30,000. At another time before the court the counsel for the defendants objected to proof as to the cost of setting the ordinary sized pole in Troy, because, as counsel said, the property of the company was real estate, and must be valued as a whole. He also objected to evidence of the cost of freight in transporting relator’s poles to Troy, because it was not competent to reduce the value of the real estate in such manner. He made the same objection to proof of the wages of employes engaged in setting the poles.

The eleventh finding of fact by the court is that “ Except as appears from the assessment rolls in' said city, for the year 1886, there is no sufficient proof of the actual value of the relator's telegraph property as it was then established and in operation in the city of Troy as part of an extensive system for transmitting information and news by telegraph.”

In his opinion, at special term, the learned judge said: “In ascertaining the value of the real estate in question, it must be regarded as a part of a whole, of a complete telegraph line in operation. Its value, not as poles and wires simply, but for telegraph purposes, and its position with its connections and its productive capacity, are important if not controlling considerations.” At the general term in the opinion delivered the learned judge says upon this point: “ The cost of construction was by no means controlling as to the value of the relator’s property in Troy. That was only an integral part of a great system which extended over the entire state, and by itself might be of little value as compared with its value as a part of the entire system.” And in his brief before this court the learned counsel for the defendants, in justifying the valuation placed upon the relator’s property by the assessors and the court at special term, uses this language: “ In ascertaining the actual value of such property the assessors had the right and it was their duty to look beyond the cost of specific material at wholesale prices, and the cost of the labor, and to estimate such property not as an isolated piece of land, but in connection with its position, its incidents, and the business and profits to be derived therefrom.”

It is thus seen that it has been assumed as a fact by the courts below, and it is conceded by counsel, that the defendants pursued the method above mentioned of determining the value of the property of the relator in the city of Troy for purposes of local taxation. The question now to be decided is whether this method or system is valid.

For the purpose of fixing the manner of assessing what the legislature denominated “ certain real estate of telegraph companies,” it passed in the year 1881 an act (chap. 597 of the laws of that year) by which it was provided that telegraph coriipanies in the state should on a certain day in each year make a sworn statement showing the total length of their lines in each county, with the cost of construction and equipment thereof, and the assessors within each county were to assess for purposes of taxation such proportion of the cost of construction as the length of the lines in the district of the assessors bore to the total length of the lines in the county.

The legislature at the same session passsed the act (chap. 361) taxing the corporations therein named in the manner stated. Among such corporations are telegraph companies. The tax is declared to be one upon the corporate franchise or business of the corporation, is payable annually and is computed upo.n the par value of the capital stock, the percentage of tax depending upon the amount of dividends paid by the company, or if no dividends or a less amount than six per cent is paid, then the tax is to bo at the rate named in the statute upon a certain valuation cf the capital stock. In addition to this tax, and by the same act, the companies named therein are to pay to the state treasurer, as a further tax on their corporate franchises or business in this state, a certain tax upon the gross earnings in the state for the business therein. These two acts of the legislature should be construed together as in pari materia,. and in them is provided a system for the taxation of the property of telegraph companies, their franchises and business, exclusive of real estate, in the ordinary acceptation of that term, which might he owned by them. This system continued until 1886, when the legislature passed the act providing for the assessment of telegraph, telephone and electric light lines, and known as chap. 659 of the laws of that year. (This act should also be construed in connection with the act of 1881, chap. 361.) The important sections are one and two, and thev read as follows:

Section 1. The portion of any telegraph, telephone or electric light line in any town or ward in this state shall he assessed in such town or ward to the owner or person or coporation, or association in control thereof, in the manner provided by law for the assessment of lands of resident owners, and the same proceedings may be had upon such assessment and for the collection of any tax levied thereon.
Section 2. The word “ lines ” shall include the interest in the land on which the poles stand, the right or license to erect such poles on land, all poles, arms, insulators, wires and apparatus, instruments, or other thing connected with, or used as a part of such line in such town or ward, and belonging either to the owner of such line or "the person, corporation or association in control thereof.

This act superseded that of 1881, chap. 597.

Of course the land, that is, a house and lot or a vacant lot of ground owned by a telegraph company, is assessed to it in the same way it would be to any other owner. The act of 1886 does not allude to real estate or land strictly so-called. It refers to the telegraph “ line ” in the town or ward, and it is to be assessed in the manner provided by law for the assessment of lands of resident owners.

It being thus necessary to assess the lines as land, in the manner provided by law for the assessment of lands of resident owners, and the statute providing that the word “ lines ” must include among other items of value the interest in the land on which the poles stand and the right or license to erect such poles on land, it becomes necessary to inquire what is the manner provided by law for the assessment of the lands of resident owners. The Revised Statutes provide the manner. 1 R. S., 389, tit. 2, art. 1. The resident is to be assessed in the town or ward of his residence when the assessment is made for the lands owned by him within such town or ward, and the full value of such land is to be set down by the assessors in a separate column in their assessment roll. The assessors are to estimate and assess the land at its full and true value as they would appraise the same in payment of a just debt due from a solvent debtor. This is the manner provided by law for the assessment of lands of a resident owner.

What is the full and true value of this property of a telegraph company and how is it to be arrived at? To enact that certain things shall be regarded as and included in the term “ land ” or “ real estate,” does not in the least alter the essential nature or characteristics of the things which are to be thus called. To say that the word “ land,” when used in the law with reference to taxation, shall include not only the land itself but all telegraph lines, wires, poles, arms, insulators, apparatus and instruments, does not change their essential nature. They remain articles which are manufactured and which can be duplicated and supplied to any required extent at a certain known cost of production. The company may be able to procure the instruments, poles or wires at a less-cost than others, owing to their special advantages, but any one can procure such articles in all the quantities desired. The supply has always kept pace with the demand. The value of the poles, arms, insulators, apparatus, instruments and wires, would, therefore, consist of the cost of production, meaning by that term to include the value of the labor necessary to set them up and place them ready for use. If any of these articles were patented and the company did not own the patent, the price paid therefor would be their value, where they could be furnished indefinitely as desired. To call these things land does not make them land in their nature. As they are capable of indefinite reproduction, at a known cost, that cost must in the nature of the ■subject be their value for the purpose of the statute. And when that cost is shown by evidence which is uncontradicted and in no way doubtful or in fact doubted, then such cost must be deemed the value of those separate articles. But this is not all that shall be taxed under the provisions of the statute.

The interest in the land on which the poles stand and the right or license to erect such poles on land, are also to be included in the assessment of the property of the company. What is the nature oi; the interest in the land on which the poles stand? We have held in American Rapid Telegraph Company v. Hess, 36 N. Y. State Rep., 252, that a telegraph company organized under the act of 1848, and obtaining from it the right to construct its lines of telegraph upon the public streets or highways, acquired no absolute interest in the highway or the land, and that it was subject to the police power of the state, wielded through its municipal agencies, which could direct the lines to be taken down and placed in subways provided for them. This interest in the land in a street is in reality nothing more than a license granted by the state. In the language of the act it is an authon'ty to construct lines along and upon the public roads and highways. This license may also be revoked by legislative enactment. It was so stated in the case heretofore cited, American Rapid Tel. Co. v. Hess, and we feel strengthened in our views in that case by further reflection. - Therefore the value of the interest in the land in which a pole is placed in a public street by a telegraph company must be arrived at in consideration of the important fact that such interest is a mere license, and revocable at the pleasure of the legislature. It must also be observed that any other telegraph company organized under the general law maj- avail itself of the same license to enter upon the public streets. So there is really no title whatever in the company to the land thus used, and its only interest is subject to extinguishment by the legislature at any time. The-cost which the company incurred in obtaining ttie interest in the land in a public street would in this case, taking into consideration all the acts providing for the taxation of the company, be a correct criterion by which to judge of its value. As to the value of the right or license to erect the poles on land, also spoken of in the act, much the same reasoning is to be adopted; This light or license is one which any company may avail itself of if incorporated under the general act, and it costs nothing.

If the company, in placing its poles on the land of any individual, shall have paid' anything to the owner of the land for such use, or incurred any contractual liability to him, the amount paid, or the amount included in such liability, would be good evidence of the value of the right. There might be other elements entering into that question, but in this case all the poles seem to have been placed exclusively in the public streets. If the company should pay an abutting owner on a public street or highway for the use of "the interest, or any part of it, which the owner may have in .such street or highway, such payment would be part of the cost of obtaining the interest in the land and the right to therein erect the poles.

Taking the cost of the production of those articles which are in their nature personal property and capable of infinite production, as above described, and adding to that cost the value of the inter? est in the land on which the poles stand and tire value of the right to erect such poles on the land, upon the principles above indicated, and we have the total elements entering into the full and true value of the property of the company subject to taxation under the act of 1886 above cited. In the assessment for taxation under that act the property is not to be regarded as a part of a whole nor as a complete telegraph line in operation. Its value for telegraph purposes, and its position with its connections, and its productive capacity, are not considerations entering into the value of the property under the act last named. These considerations are foreign to its purpose. They largely enter into the question of the value of the business and the franchises of the company, and the value of such business and franchises is to be assessed under the act of 1881 already quoted. If it were not for that, act and its provisions for assessing the value of the business and franchises of telegraph companies for the purpose of taxation, it may be that courts would strive to give a wider meaning, if possible, to the language of the act of 1886 for the purpose of reaching these subjects of taxation. But when they are already taxed under a separate act, it cannot be supposed that the legislature intended to tax them again proportionately in every tax locality in the state.

It is obvious that the learned courts below, in arriving at their conclusions as to the proper facts to consider in deciding the question of the value of the property of the relator, viewed it as if such property were real estate in the narrow acceptation of the term, such as a piece of ground on which a house was erected or rails laid and which was owned ,by the relator in fee. The authorities cited in support of their proposition relate to railroads or bridges forming part of real estate owned in fee by the companies. In such cases it is held that in determining the value of such real estate its earning capacity is a most important feature, and that in assessing the real estate of a railroad it is to be assessed not as an isolated piece of property, but in connection with its position, its incidents and the business and profits to be derived therefrom; its productive capacity and its earnings are all to be considered, and the cost of the whole road is to be taken into account. People v. Barker, 48 N. Y., 77; People v. Hicks, 40 Hun, 600; 2 N. Y. State Rep., 294; People v. Weaver, 34 Hun, 322.

In this case under the statute of 1886, as to telegraph companies, different language is used and a different kind of property is intended to be reached for assessment. The poles, wires, instruments, arms, insulators and apparatus are included in the word lines in the statute, and they are to be assessed in the manner provided by law for assessing the lands of residents. The statute points out how that is to be done, and the property is to be assessed at its full value, together with the interest in the land on which the poles stand and the right to erect such poles on the land. This interest and this right differ wholly in character and nature from, the real estate owned in fee by the railroad or bridge company, and the rules for the valuation of that species of property are by no means appropriate for the purpose of arriving at the full value of the property of the telegraph company as enumerated in the statute of 1886. Most of this property, it is seen, is personal property and it is called land although the poles are placed in streets which do not belong to the company and in which the company has, as we have seen, no interest of a strictly-legal nature. The railroad or the bridge company on the contrary does own the fee of the real estate upon which it places its superstructure of rails or bridge, and the question arises what is the value of this real estate owned by the company upon which this superstructure has been placed and which is used for railroad or bridge purposes ? That question involves almost necessarily the inquiry as to the profitableness of the superstructure which has been placed thereon and which forms part and parcel of the real estate upon which it is laid, and this can only be answered by regarding the real estate as part of a whole portion of real estate devoted to the railroad or bridge purpose. The land, the portion of the earth on which the rails rest, is owned by the company, and the company to that extent has a monopoly. This land cannot be increased or reproduced. The structure having been placed on it becomes a part of it, and it must all be appraised at its full value as an integral part of a whole or completed instrument created for the purpose of realizing pecuniary profit. The cost of each particular portion of real estate, while one element to be considered for the purpose of determining the question of 'profits, cannot in the nature of the property be regarded as the one important consideration for the purpose of arriving at its full value for taxation.

Without continuing the comparison further it seems to me there is a clear, radical and important difference in the very nature of the propérties to be taxed, and which should lead to a different rule in the assessment of what is in fact real estate or earth in the one case, and personal property in the other, although called land.

A question as to the appealability of this order, as not involving $500, has been made by counsel for defendants. The counsel calls it a judgment of the general term. It is in truth an order, and it has been so held to be by us. People ex rel., etc., v. Keator, 101 N. Y., 601. We think the appeal is provided for by the act which gives the remedy by certiorari, and hence the point made by the counsel for the defendants is not well taken.

The orders of the general and special terms so fár as they relate to the assessment of 1886 should be reversed and that assessment should be set aside, with directions to the assessors to reassess the property of the corporation for the year 1886, in conformity with the principles laid down in this opinion, and the orders of the general term so far as they relate to the assessments of 1885 and 1887, should be affirmed. No costs to either party on any appeal.

All concur, except Finch and Gray, JJ., absent.


author: Van Brunt, P. J.

text:
    The United States National Bank, Resp’t, v. The National Park Bank of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 13, 1891.)

    1. Bills and notes—Liability'of collecting agent.
    In order to absolve an agent, who is simply an agent for collection, he must actually part with the money; he must pay over the proceeds to his principal. It is not sufficient to credit the same in account.

      %. Same—Alterations.
    The drawee of a check or bill is held to a knowledge of the signature of his correspondent, but not for a want of knowledge of the genuineness of the body of the instrument, as between himself and other persons having equal means of discovering the fact of an alteration.
    3. Same—Forgery.
    The fact that a genuine signature of the drawer had been touched up a little with a brush or quill, but not essentialy altered, does not constitute a forgery.
    Appeal from judgment entered upon the report of a referee.

      MacKenzie Semple, for app’lt; J. &. Janeway, for resp’t.
   Van Brunt, P. J.

This action was brought to recover the sum of $5,000 paid by mistake by the plaintiff to the defendant.

It appears from the uncontradicted evidence that on the 7th of April, 1884, a man calling himself John Blake called at the First National Bank of Albuquerque, N. M., and purchased a draft drawn on the plaintiff for $2,000 numbered 8605. He requested a letter to F. MacManus & Sons, of Chihuahua, to identify him should he have necessity to cash his draft at that place, whither he was going. Mr. Geary, the cashier of the Albuquerque Bank thereupon wrote a letter and gave the same to Mr. Blake, in which he stated that it was written for the purpose of identifying Mr. Blake whose signature was appended below and who carried the draft hereinbefore mentioned. This draft was presented by Blake to MacManus & Sons and cashed in the latter part of April. On the 17th of April a man styling himself James B. Wood called at the Albuquerque Bank and purchased a draft to his own order for $12.50, which was numbered 8631 and signed by the cashier of the bank, D. Geary, and drawn upon the United States National Bank of New York. Some two weeks later Blake called again at MacManus & Sons and offered the draft in suit with a request that it be cashed which was done and he left. The draft in suit was apparently a draft numbered 8631 dated April 19,1884, upon the United States National Bank to the order of John Blake for $5,000 signed “D. Geary, Cashier.” This draft when cashed by the plaintiff bore the following endorsement: “ John Blake.—Pav to the National Park Bank or order for account of F. MacManus & Sons. F. MacManus & Sons.” The Albuquerque Bank upon being advised of the presentation of this draft notified the plaintiff that it had not written the draft for $5,000 as presented, paid and returned, but had made such draft to the order of Wood for $12.50 the number of the draft remaining unchanged. The plaintiff, immediately upon notice of the raising of the amount, demanded of the defendant a return of the sum of $5,000 less $12.50, the amount for which the draft had originally been drawn, which was refused, and this action to recover the same commenced.

There were two defenses presented; the first was that the defendant bank was merely an agent for collection and had remitted the proceeds of the collection to its principal. The second was that the whole draft was a forgery.

The referee found that the draft for $12.50 was fraudulently altered, the name of the payee being changed from Wood to Blake, and the sum for which it was drawn being changed from $12.50 to $5,000, and the date being changed from April 17th to April 19th, 1884, and that the draft or paper writing when presented by the defendant to the plaintiff for payment, did not bear the signature of D. Geary, cashier, in the precise condition in which it had been by him originally affixed to said order, and that the writing purporting to be the signature of D. Geary, cashier, which was upon the alleged draft or bill of exchange when presented by the defendant to the plaintiff for payment bore evidence of having been touched up with a brush or quill pen in one or two places. The referee refused to find that the defendant had accounted for and paid over the proceeds of the draft to F. MacManus & Sons, without notice of any claim by or on the part of the plaintiff, and reported in favor of the plaintiff, and from the judgment thereupon entered this appeal is taken.

There are two questions which seem to be presented upon this appeal.

The first is whether the defendant, if an agent for collection only, has paid over the proceeds of the collection to F. MacManus & Sons, and the second is, was the signature of the- draft in question a forgery ?

Upon an examination of the evidence in the case we fail to find any which supports the allegation of the answer that the defendant paid over to F. MacManus & Sons the proceeds of these drafts.

The only evidence to support this contention seems to be the testimony of the assistant cashier of defendant and one Scott, a member of the firm of MacManus & Sons. All that the cashier swore to was that, prior to the time of notice and demand upon them, they had accounted to Ma'cManus & Sons for the $5,000 which they had received from the plaintiff. The testimony of Scott is that he forwarded this draft in due course of business to the defendant for collection, and to be credited in its account with them. There is no evidence whatever that the defendants had at the time they received notice of the raising of this draft parted with one single cent of the money collected on account thereof.

The evidence of the cashier would have been entirely true had they simply passed it to the credit of MacManus & Sons and kept the money in their own bank during the whole period which elapsed between the payment and the discovery of the fraud. If this money had been transferred actually to MacManus & Sons, it is clear that both the cashier and Mr. Scott would have so testified. There was no transfer of funds. All that was done, as appears from the evidence, was to credit MacManus & Sons with the amount; and there is no evidence whatever that MacManus & Sons ever drew against that particular credit prior to the time of the discovery of the fraud. In order to absolve an agent who is simply an agent for collection, he must actually part with the money; he must pay over the proceeds to his principal. It is not sufficient to credit the same in account. This is strikingly illustrated in the first case which is to be found in the books which settles the law in regard to the rights of parties to actions similar to the one at bar. Bank of Commerce v. Union Bank, 3 N. Y., 236. In that case the money was credited in the account of the correspondent of the Union Bank, and yet a recovery was had, clearly upon the principle that crediting in account is not equivalent to paying over the proceeds.

The same principle was enunciated in the case of the Nat. Park Bank v. Seaboard Bank, 114 N. Y., 28; 22 N. Y. State Rep., 160.

There was, therefore, no evidence calling upon the referee to find as matter of fact that the defendant had accounted to its correspondents for the moneys collected upon this draft prior to their being informed of the fraud which had been perpetrated. And the plaintiff’s right to recover is fixed, unless the signature to the draft was a forgery, the rule as laid down in Crawford v. West Side Bank, 100 N. Y., 54, being that the drawees of a check or bill are held to a knowledge only of the signature of their correspondents, the drawers, and not for a want of knowledge of the genuineness of the body of the instrument, as between themselves and such other parties as have equal means of determining the existence of an alteration; Such parties take the paper relying solely upon the reputed responsibility of their transferors and the other parties to it, and its apparent genuineness, and they therefore deal with it at their peril. They have no duty to perform in respect to it except that of guarding their own interest, and in paying and transferring it to others they take the risk of loss occurring from fraudulent alterations.

It is conceded that the paper of which this fraudulent draft consisted is the identical paper upon which the draft for $12.50 was drawn. It is conceded that a genuine signature of D. Geary, Cashier, appeared upon that draft in the place where the signature of D. Geary, Cashier, now appears. It is conceded that all the other written portions of the draft were altered as above stated. And the single question which remains is as to the genuineness of the signature D. Geary, Cashier, as it now appears upon the altered draft

The referee finds that the altered draft did not bear the signature D. Geary,"Cashier, in the precise condition in which it had been by him originally affixed to the paper, and that it bore evidence at the time it was presented by the defendant to the plaintiff for payment of having been touched with a brush or quill pen in one or two places.

It is claimed upon the part of the defendant that the evidence shows that the signature D. Geary, Cashier, is in its entirety a forgery, and that even though the. finding of the referee is correct, it is nevertheless a forged signature within the meaning of that term, and the plaintiff cannot recover.

This position of the defendant we do not think can be maintained.

It seems to be a necessary ingredient of forgery that some alteration or fabrication of an instrument or some part of it is made by which its meaning or language is changed, or whereby a new operation is given to it; and if what has been written upon or erased from an instrument has no tendency to produce this result or to mislead any person it is not a forgery or alteration. 1 Greenleaf Ev., § 566; 2 Bussell on Crimes, m. p. 319.

Therefore unless the signature “ D. Geary, Cashier,” was destroyed in its entirety, the mere touching up of the signature as found by the referee would not be such an alteration as to destroy the validity of the instrument. And this seems to have been the theory upon which the defense proceeded upon the trial, because they sought to establish by their expert testimony that all the ink upon the alleged draft was taken from the paper, and that it was (except so much of it as was printed) entirely reconstructed.

An examination of the evidence fails to convince us that the referee erred in refusing to find in accordance with this claim. The evidence upon the part of the defendants was that of experts who were unfamiliar with the signature of the cashier and who only testified, the one from some scientific tests and the others' from a comparison of the signature in question with those acknowledged to be genuine, and from the appearance of the signa-’ ture of the draft in question. The evidence of the experts who testified from a comparison of signatures seems to us to establish the strength of the plaintiff’s case. It is admitted by them that certain characteristics are always present in signatures wherel y you may detect a forgery and that these characteristics run through all the signatures of the same party whether the signatures be exactly alike or not.

The evidence upon the part of the plaintiff was that of the cashier himself and of various persons who had seen him write and were familiar with his signature, and they all swore that in their opinion that signature was the veritable signature of the cashier. How much better were they able to judge whether the characteristics by which the genuineness of the signatures is to be recognized were present than those two witnesses who had never, so far as the evidence shows, seen the cashier write, and had only seen two or three of his genuine signatures.

The testimony of the cashier is attacked because of a letter which he wrote "in reference to this signature in which he did not express himself in as positive terms as he did when testifying as a witness. This fact in no manner discredited the evidence. On the contrary it added to its weight, in that examination and consideration seem to have confirmed first impressions.

The testimony of the witness Carvalho that this signature was forged in its entirety is discredited by the testimony of every witness who was familiar with the signature of the cashier. It is incredible, had this signature been manufactured in the way claimed by [this witness, that all these persons should pronounce it a. genuine signature.

In this condition of the evidence there is no such preponderance of proof in favor of the theory advanced by the defendants as calls upon the court for a reversal of the findings of the referee. Upon the contrary, the conviction produced by a reading of the evidence is that the signature attached to the draft .in question is the genuine signature of D. Geary, cashier, touched up, perhaps, in some unimportant particulars; and, as we have seen, the rule in reference to forged instruments is that immaterial alterations do not constitute forgery, so the mere touching up of a letter or two in the signature in question in no manner destroyed the signature so that it might not still be called genuine. The integrity of the signature must be affected, and the simple crossing of a fc, or the dotting of an i, or the putting in of a period between initials, or the touching of a letter, has no consequences.

We are of the opinion, therefore, that the judgment appealed from should be affirmed, with costs.

Barrett, J., concurs; Bartlett, J., concurs in the result.


author: Barrett, J.

text:
    Leopold Wise et al., Resp’ts, v. Hugh J. Grant et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 13, 1891.)

    Evidence—Declarations of attachment debtor after levy.
    Declarations of an attachment debtor or his agent, made after levy, which tend to establish facts authorizing the Vendor of the goods in question to rescind the sale, are not admissible against the sheriff in an action to replevin such goods.
    Appeal from a judgment entered upon the verdict of a jury at circuit in favor of the plaintiffs', and also from an order denying the defendant Grant’s motion for a new trial.

      Abraham Gruber, for app’lt Grant; Horwitz & Hershfield, for resp’ts.
   Barrett, J.

There is but one serious question presented by this appeal, and that is, whether the declarations of the debtor’s son and agent, made after the levy, were admissible against the sheriff. The action was replevin for goods sold by the plaintiffs to Maier, Rothschild. Rothschild did not defend, and the question presented was raised solely by the defendant Grant. The goods were sold on the 23d day of August, 1887. Three days later the sheriff levied upon these and other goods under an attachment against Rothschild in favor of other creditors. Thereupon the plaintiff, Leopold Wise, had an interview with Abraham Rothschild, who was Maier Rothschild’s son and agent, at which the levy was discussed and the declarations in question made. The result of this interview was that the plaintiffs determined to rescind the contract of sale made on the twenty-third and to replevy the goods. They accordingly brought this action and upon the trial they proved that the goods were sold to Rothschild upon the faith of certain representations as to the extent and situation of his real estate and as to the amount of his indebtedness. It then became incumbent upon them to prove the falsity of these representations, and to that end Leopold Wise was permitted, under the plaintiff’s objection and exception, to testify to Abraham Rothschild's declarations and admissions made at the interview already referred to. We think this was error, and as there was no other evidence of the fact, it is necessarily fatal to the verdict. Rothschild was not in possession of the goods when the admissions were made, and, consequently, the cases where delarations of an assignor in possession have under certain circumstances been admitted against his assignee, Adams v. Davidson, 10 N. Y., 309, are inapplicable. The discussions on this general subject have generally related to declarations of the assignor made prior to the assignment. The inadmissibility of his subsequent declaraions to affect the title of an assignee in trust for creditors seems to have been universally conceded.

There can indeed be no doubt that the declarations in question would have been clearly inadmissible as against either a bona fide purchaser for value from Rothschild or an assignee in trust for Rothschild’s creditors. Truax v. Slater, 86 N. Y., 632 ; Bests v. Burger, 110 id., 644; 17 N. Y. State Rep., 170; Bush v. Roberts, 111 N. Y., 278; 19 N. Y. State Rep., 122. Is there any distinction in principle which makes such declarations admissible against the sheriff ? We think not. By his levy the sheriff acquired a right in the property, of which the defendant in the attachment could not deprive him by any subsequent act or declaration. Then, too, the plaintiffs in the- attachment secured a lien upon the goods in question by the levy thereon, and they could not be deprived of that lien by any subsequent act or declaration of the defendant against whom they were proceeding. It is said that the sheriff and the attaching creditors proceeded in the right of Rothschild, and stood, so to speak, in his shoes. In a qualified sense this may be true, although the attachment proceeding was strictly in inuitum. But the question is not whether the sheriff acquired a right superior to that possessed by Rothschild, which, of course, he did not, but whether Rothschild can, by a subsequent statement, admit away whatever right he did acquire. Such subsequent declaration was not admissible as a declaration against interest, for the reason that the property was then in custodia legis and not in Rothschild’s possession. It was simply a declaration in the interest of one of two contending creditors. In Alexander v. Mahon, 11 Johns., 185, the action was trover by a sheriff (who had levied on goods under a fi.fa.) against one who had distrained the same goods, claiming as landlord of the defendant in the execution. The landlord offered parol evidence to prove an acknowledgment of the tenacy by the defendant in the execution, which evidence was rejected, and, as the supreme court held, correctly. The reason assigned by the supreme court, namely, that as the testimonv of the tenant was excluded at the instance of the landlord, it did not lie with the latter to complain of the rejection of the confession, has been criticised, but the rule itself has been fully approved. This case was referred to by Kennedy, J., in his elaborate opinion in Gibblehouse v. Stong, 3 Rawle, 437, and the following observations made thereon:

In the report of the case referred to," it does not appear when the acknowledgments of Churchill so offered to be given in evidence were made; whether before or after the seizure does not appear. If made subsequently to the seizure, as we may presume that they' were, the decision is perfectly correct. The right of the sheriff, who was the plaintiff, commenced with the seizure of the goods, and to admit the subsequent declarations of the defendant in the execution to be given in evidence to defeat the sheriff's right under the seizure, would be to open a door to let in collusion and false pretenses got up between defendants in executions and third persons for the purpose defrauding and hindering creditors in the collection of their just debts.”

This reasoning is entirely applicable here. At the time of the levy the title to the goods was in Rothschild, “ subject,” as was said by Andrews, J., in Goodwin v. Wertheimer, 99 N. Y., 152, “ to the right of the vendor, on the discovery of the fraud, to reassert his original right and reclaim the property unless it has come to the hands of a bona fide purchaser.” This title was secured by the levy, and the sheriff’s position in defence thereof can not be assailed by hearsay, or by any testimony which would not be admissible as against Rothschild’s transferee, or his privy in estate or in representation.

Because of this error, the judgment should be reversed and a new trial ordered, with costs to abide the event.

Van Brunt, P. J., and Bartlett, J., concur.


text:
    Michael O’Brien, Resp’t, v. Robert J. Smith, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 13, 1891.)

    1. Lease—Rent due at time of eviction.
    Rent due at the time of an eviction is recoverable by the lessor or his assignee.
    2. Same.
    Where a lessee enters under the demise he is liable on his covenant for the rent reserved, although he did not receive full possession of the premises demised, and cannot plead the lessor’s wrongful act or neglect as a defense His remedy in such case is by counterclaim for damage in being deprived of a portion of the premises, or by independent action.
    3. Same—Seal.
    A lease, although for five years, does not require a seal, as it is merely a chattel interest and not a freehold estate.
    2. Same—Assignment—Evidence.
    Where the assignment of a claim for rent under a lease is in writing and under seal and is valid as against the lessor, the lessee has no legal interest to inquire further.
    Appeal from a judgment rendered upon the verdict of a jury, in favor of the plaintiff, which was directed at circuit.

      Magner & Hughes and C. Donohue, for app’lt; Edward W. S. Johnston, for resp’t.
   Barrett, J.

This action was brought to recover the rent of a house in Brooklyn, under a lease executed by one Margaret Smith (plaintiff’s assignor.) to defendant. The term was five years from the 11th day of September, 1883, and the plaintiff claimed the unpaid rent for the ten months commencing on the 11th day of March, 1884. The defendant, in his answer, denied the execution of the lease, ignored the assignment from Margaret Smith to the plaintiff, alleged affirmatively, first, that the plaintiff is not the real party in interest, and, second, that Margaret Smith evicted him from the property before the time for which the plaintiff seeks to recover rent. He also pleaded a counterclaim for such eviction, and asked to set off the damages resulting therefrom against the rent claimed by the plaintiff. The counterclaim, however, was stricken out at special term, because of the defendant’s failure to comply with an order duly made on motion for a bill of particulars, and it need not, therefore, be noticed further. Upon the trial the plaintiff proved the lease and assignment. The defendant then gave some evidence tending to show that he only obtained possession of a part of the house and that the plaintiff withheld possession of the other part. He also gave evidence tending to estabish an eviction by the foreclosure of a mortgage upon the demised premises executed prior to the lease. The sale under the foreclosure judgment occurred on the 31st day of December, 1884, and the deed which the sheriff gave to the purchaser was Recorded on the 16th day of January, 1885. Under the lease, the rent was payable monthly in advance. Thus the rent sued for was due and unpaid at the time of the alleged eviction.

It is well settled that rent due at the time of an eviction is recoverable, Giles v. Comstock, 4 N. Y., 270, and we need not, therefore, consider the question whether, as matter of fact, the defendant was evicted. The other point has also been settled adversely to the defendant’s contention. The rule is well stated by Judge McAdam, in his work on Landlord & Tenant (2d ed., p. 142), as follows:

“ I. That if the tenant by any wrongful act or neglect of the landlord cannot get possession of the whole subject of the demise, he is not bound to accept a part thereof, and may by declining to take part plead the landlord’s wrongful act or neglect in defense of any action the landlord might bring to recover the rent.
“II. If, however, the tenant accept part he enters under the demise, and is liable on his covenant for the whole rent, unless the covenant to pay is made dependent on receiving possession of the whole.
“ HI. The tenant’s remedy is to recover his damages arising from the failure to receive full possession, either by way of counterclaim to the original action for rent or by way of an independent action.”

This doctrine is supported by the authorities. “ An eviction,” as was said in Vanderpool v. Smith, 4 Abb. Ct. App. Dec., 464, “ consists in taking from a tenant some part of the demised premises of which he was in possession, not in refusing to put him in possession of something which by the agreement of the parties he ought to have enjoyed. The omission of a landlord, therefore, to perform such covenant does not amount to an eviction, and is no bar to the lessor’s claim for rent.' The lessee’s remedy is by an action to recover damages for a breach of the covenant.” The same language was used by Chief Justice Savage in Etheridge v. Osborn, 12 Wend., 529, and his opinion to that effect is quoted with approval in Vanderpool v. Smith. There can be no doubt that the defendant’s remedy, if he failed to receive full possession, was, as stated by Judge McAdam, by way of counterclaim or independent action. Having entered under the demise, he is liable on his covenant for the rent reserved.

The point was taken at the trial that the lease being for five years should be under seal. This point is not pressed upon the appellant’s brief, and we need not refer to it further than to say that the lease being a chattel interest, and not a freehold estate, did not require a seal. Warren v. Leland, 2 Barb., 618 ; Stoddard v. Whiting, 46 N. Y., 633; and see Babcock v. Utter. 1 Abb. Ct. App. Dec., at page 36.

The other point presented by the appellant is the claim of error in ruling out the question put to Margaret Smith, with regard to the assignment of the claim to the plaintiff. These questions were properly excluded upon the authority of Sheridan v. The Mayor, 68 N. Y., 30. The assignment was in writing and under seal, and it was a valid transfer as against the assignor. As was said by Church, Chief Justice, in the case cited, “the defendant had no legal interest to inquire further.”

The verdict was properly directed. Bach party moved for a direction in his favor. Ho request was made to go to the jury. The facts simply justified the ruling of the learned judge, and the judgment should accordingly be affirmed, with costs.

Van Brunt, P. J., and Bartlett, J., concur.


text:
    Michael O’Brien, Resp’t, v. Robert J. Smith, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 13, 1891.)

    1. Appeal—Dismissal.
    On motion to dismiss an appeal, the court cannot go outside of the record further than to ascertain whether there has been a waiver of the appeal.
    2. Same—Waiver.
    The mere fact that the appellant has brought another action to recover upon the cause of action set up as a counterclaim after the counterclaim had been stricken out for failure to furnish a bill of particulars, does not constitute a waiver of his right to appeal, and his appeal should not be dismissed because of the bringing of such action.
    Motion to dismiss appeal.

      Edward W. S. Johnston, for motion; Magner & Hughes and C. Donohue, opposed.
   Barrett, J.

The ground of the motion to dismiss is that since the appeal was .taken the defendant, appellant, has brought an action in the city court of Brooklyn against the present plaintiff to recover upon the same cause of action set up by way of counterclaim herein. It appears that this counterclaim was stricken out at special, term for failure to furnish a bill of particulars thereof, as required by an order duly made upon motion. Wo cannot see why the defendant, appellant, should be deprived of his right to review the judgment appealed from because of the bringing of such an action. It is his only remedy, if he is in error in his present contention, and he has stipulated to stay proceedings in the other action until the determination of the appeal here, and in case a new trial is awarded, until final judgment thereon. 'There is no force in the objection that the defendant, appellant, waived this appeal by the bringing of such an action. Even if the claim here made is in some respects inconsistent with the position assumed in the other action, that is no reason for the dismissal of an appeal which seeks to review a completed record made up before such inconsistent action was brought. In case of a new trial the question might be raised by supplemental pleading, or in some other proper inanner. Upon appeal, however, we cannot go. outside of the record on a motion to dismiss, further than to ascertain whether there has been a waiver of the appeal.

There has been no such waiver in this casé, and the motion to dismiss should be denied, with costs.

Van Brunt, P. J., and Bartlett, J., concur.


text:
    Simon Rothschild, Resp’t, v. The Rio Grande Western Railway Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 13, 1891.)

    Pleading—Foreign laws.
    The law of a foreign state is a fact to be alleged and proved like any other fact. It is not necessary to plead the evidence of the fact, whether . such evidence be embodied in the statutes of the foreign slate, or in the decisions of its courts. But the fact that a given proposition is the law must be stated, if such fact is essential to a recovery.
    Appeal from an interlocutory judgment overruling the defendant’s demurrer to the complaint.

      Theodore F. H. Meyer, for app’lt; William Strauss, for resp’t.
   Barrett, J.

The defendant is a foreign corporation created by the laws of Colorado and Utah. It is sued upon interest coupons attached to mortgage bonds of another corporation. The plaintiff claims that the defendant is liable upon these coupons by reason of a consolidation of the corporation which issued the mortgage bonds with another corporation, and he claims that the present defendant, by this consolidation, became liable upon these coupons. The only allegation in the complaint from which this legal liability can be inferred is in these words:

“ Thereby and under the laws of the state of Colorado and of the territory of Utah aforesaid, all the debts, liabilities and duties of said consolidating companies ana corporations respectively, thereupon attached to said new corporation, the defendant herein, and became enforceable against it to the same extent as if said debts, liabilities and duties had been incurred or contracted by it”

The demurrer is upon the ground that the laws of Colorado and Utah are facts which must be pleaded, and that the bare allegation that under these laws the liabilities of the consolidating companies became attached to the defendant and enforceable against it is insufficient to constitute a cause of action. We think the demurrer was well founded. The allegation is not a statement of fact, but of a legal conclusion from undisclosed facts. It is, in effect, saying that under foreign laws of which we know nothing, one person has become liable for another person’s debts, and it differs in no substantial particular from an allegation, which has always been treated as a mere conclusion, that the defendant is indebted to the plaintiff. It is clear that the foreign law should have been pleaded. The law of a foreign state is a fact to be alleged and proved like any other fact It is not necessary to plead the evidence of the fact, whether such evidence be embodied in the statutes of the foreign state or in the decisions of its courts. But the fact that a given proposition is the law must be stated, if such fact is essential to a recovery. The case of Berney v. Drexel, 33 Hun, 34, does not conflict with this conclusion.. There a fact was stated, namely, that upon the testator’s death his personal property, “ under the laws of France,” vested immediately in certain of the plaintiffs. That was in substance an allegation that those persons were the owners of the property which the defendants were charged with having converted; in other words, an allegation of the fact of plaintiff’s title. It is true "that this allegation was coupled with a disclosure of its legal source. But such disclosure was superfluous. It was simply a suggestion of the nature of the proof which would be adduced upon the trial to support the fact of title, as alleged. It will be observed too that the defendants in that case were sought to be charged with a common law liability, while the defendant here can only be held under the statutes of Colorado and Utah. The plaintiff here has neither pleaded such statutes nor any fact from which the conclusion that a liability for the coupons in suit attached to the defendant and became enforceable against it can be deduced.

The judgment should therefore be reversed, with costs, and the demurrer sustained, with leave to the plaintiff to amend his complaint within twenty days upon payment of the costs of the demurrer and of this appeal.

Van Brunt, P. J., and Bartlett, J., concur.


author: Van Brunt, P. J. Barrett, J.

text:
    The Crooke Smelting and Refining Company, App’lt, v. Catherine V. Towle et al., Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed February 13, 1891.)

      1. Contract—Agreement on all terms necessary to constitute.
    It is a necessary requisite to the making of a contract by correspondence that the parties should understand that they are so contracting, and that, according to their understanding, there is nothing further to be done to fix the terms of the contract.
    3. Same.
    Where defendants agreed by letter to take a lease on the general terms proposed by plaintiff, but by the subsequent correspondence it appeared that additional provisions were required on both sides which had not been agreed to, Held, that the minds of the parties had not met, and that no contract had been made.
    Appeal from judgment entered upon dismissal of complaint at circuit.

      W. E. Wyatt, for app’It; Doherty, Durnin & Hendrick, for resp’ts.
   Van Brunt, P. J.

In January, 1888, the defendants were, and for some years prior thereto had been sub-tenants of the plaintiffs. The lease under which they were so holding, by its terms, expired on the first of May, 1888. On the 17th of January, 1888, the plaintiffs wrote the following letter to the defendants :

“ Dear Sirs—The owner of this store demands a higher rental after May 1st. Should you be inclined to remain in the premises you now occupy, at a rental of $900 p. a, with conditions as in present lease, I could make it a three or five years’ lease.”

No response having been received to this letter, on the 23d of January the plaintiff wrote again to defendant, as follows:.

“ Dear Sir—Could you favor us with an answer with regard to renewal of lease. We have to come toa decision ourselves tomorrow, and shall be much pleased to hear from you.”

On the 27th of January the defendant wrote to the plaintiff, as follows:

We will accept lease for premises now occupied by us for a term of five years at a rental of $900 per a. as stated in letter of 17th inst. Should be obliged to you if you would call on us, as we would like to come to some terms about putting gas through the floors now occupied.

On the 3d of February, 1888, the plaintiff wrote to the defendant as follows:

Dear Sir.-—The Plumber reports that he finds the cause of the trouble to be that your men throw pieces of tin in the sink. I herewith send you one of the pieces extracted. Under the circumstances you will, I trust, pay the bill for repairs, which we shall send you. The damage having been done by your employes’ carelessness. In the new lease we shall have to insist upon a clause whereby you bind yourselves to pay for repairs of damages caused by your men.

With regard to the gas we will see the owner about it and let you know. We do not think there can be much objection to it.

On the 27th of February it appears that the plaintiff had a lease drawn up for five years and sent it to the defendant, by whom it was not signed, but returned some time in April. On the 1st of May the defendant moved out of the premises which remained idle thereafter for a considerable length of time and were then let at a reduced rental. This action was brought to recover the damages which the plaintiff sustained by reason of the refusal of the defendants to take the premises and accept the lease tendered by the plaintiffs.

These facts appearing upon the trial, the complaint was dismissed; and from the judgment thereupon entered this appeal is taken.

It is claimed upon the part of the appellant that a complete cause of action was made out because a completed contract for the leasing of the premises is contained in the correspondence which passed between the parties as above stated.

There can be no question but that a valid contract may be made by letters, one party making an offer and the other accepting it. But it is a necessary requisite to the correspondence making a contract that the parties should understand they were so contracting, and that there is nothing to be done according to the understanding of the parties further to fix the terms of the contract

An examination of the correspondence in question shows clearly that neither party understood that all of the terms of the lease had been fixed and determined by the correspondence which passed between them. Thus it is apparent from the defendants’ letter of January 27th that they expected to have further communications in regard to the putting in of the gas through the floors occupied by them, and in the letter of February 3rd the plaintiffs say that they will insist upon a clause additional to that which had been in the previous lease, thus showing that it was then their understanding that the terms of the letting had not been in all respects settled.

Under such circumstances when it happens to suit the pleasure of one of the parties to insist that the correspondence has made a contract such claim cannot prevail, because if the other party was insisting that a contract had been entered into they might say with perfect truth that they did not understand but what they had a right in the making of the lease to put in additional requirements.

We think, therefore, that there was no intention upon the .part of either party to enter into a contract by means of this correspondence, and the case seems to come clearly within the principles laid down in Mayer v. Mc Creery, 119 N. Y., 439; 29 N. Y. State Rep., 690.

The judgment should be affirmed, with costs.

Barrett, J.

I concur. What we have to decide is whether "the minds of the parties met. That they had not fully is evidenced by the plaintiff’s own letter of February 3, 1888. Why should we treat this letter as an attempt to modify a completed contract. It fairly imports the plaintiff’s understanding that the matter had not been finally settled in all its details by the preceding correspondence and that they still had a right to insist upon a new clause in the proposed lease.

Bartlett, J., concurs.


author:
Van Brunt, P. J. (dissenting)
      Barrett, J.

text:
    In the Matter of Jennie Simon.

      (Supreme Court, General Term, First Department,

      Filed February 13, 1891.)
    1. Habeas corpus—Traverse.
    When a traverse is interposed to a return to a writ of habeas corpus the issue is made up and no further pleading is required.

      2. Same—Vagrants.
    On habeas corpus to inquire into the detention of a child upon conviction as a vagrant, it is error for the court to treat the allegations .of the traverse as true and discharge the child without receiving evidence' as to the issues raised thereby, although the traverse is not demurred to.
    (Van Brunt, P. J., dissents.)
    Appeal from order discharging the respondent from the House of Mercy.

      E. T. Gerry, for app’lt; C. Steckler, for resp’t.
   Van Brunt, P. J. (dissenting)

Jennie Simon, aged fifteen, was on the 10th day of August, 1890, committed to the reformatory called the Protestant Episcopal House of Mercy to be and remain under the custody of the said institution during her minority unless sooner discharged by the trustees and managers thereof.

The respondent sued out writs of habeas corpus and certiorari, and the institution returned the commitment, and the magistrate made return of the commitment, annexing a copy of the sworn complaint to which the respondent, the mother of the infant, interposed a traverse, alleging that neither the said Jennie Simon nor the petitioner was examined by the police magistrate nor was any evidence offered to show that the house No. 119 Mulberry street in this city is a reputed house of prostitution, or that the said Jennie Simon was an inmate thereof, or that she -was in danger of becoming morally depraved. The commitment showed that she was committed because she was found in a reputed house of prostitution situate at No. 119 Mulberry street in the city of New York, and is and on the day last aforesaid was in danger of becoming morally depraved, in violation of the law as aforesaid.”

And the magistrate in his commitment recites as follows: “ I having in due form of law examined said complaint and the witnesses before me produced and also the said female who was duly produced for my personal inspection pursuant to law, and it appearing and having been proven to me to my satisfaction by competent testimony and evidence and by the confession of such female that the said female is and on the day last aforesaid was apparently over the age of twelve and under the age of twenty-one, to wit, of the age of fifteen, and on the day last aforesaid at. the city of New York aforesaid was found,” etc.

The magistrate in his return states that the testimony and evidence taken by him was not reduced to writing except in so far as the same is contained in said complaint and the papers of which copies were thereto annexed and made a part of the return, the complaint being the only paper at all pertinent to this inquiry.

It is undoubtedly true that upon these proceedings the question of the propriety of the conviction cannot be investigated. But it was distinctly held in the case of The People ex rel. Van Riper v. N. Y. State Protectory, 106 N. Y., 604; 11 N. Y. State Rep., 155, that if the traverse denies that there was evidence before the justice of the facts adjudicated by him it must be shown.

It is true as already stated that it was decided in the cases cited that there cannot be in these proceedings a re-trial upon the merits of the question whether the child had or had not committed any act or been found in any situation which "subjected to it restraint or imprisonment, and in that case it was held that as the conviction recites that there was proof by1 competent and satisfactory evidence of the charge made and as this recital was not contradicted, the facts alleged in the traverse furnished no ground for the discharge of the child.

But in the case at bar the traverse denies that there was any proof as to the material facts affecting the right of the magistrate to commit this child. And without the. slightest proof that the magistrate had a particle of evidence before him it is claimed that this institution has the right to hold -this child during her minority. And we have confessed upon the face of this return that although the question of the liberty of this infant during the rest of her minority depends upon this conviction, it was not considered of sufficient importance to make a record of the evidence.

But it is urged that the statute under which this commitment is had provides that if it shall be proved to the satisfaction of such magistrate by the confession of such female or by competent testimony that the female is guilty, that he has a right to commit; and that this commitment states that it had been proven to him by competent and satisfactory evidence, and by the confession of the female, that the facts hereinbefore recited exist. What was proven by confession, or what by competent testimony and evidence does not appear. And the traverse expressly states that the female was not examined before the magistrate nor was any evidence taken to establish the facts necessary to authorize the magistrate to act.

We think under the principles enunciated in the case of Van Piper above cited, that it was necessary in order to uphold this conviction to show that evidence had been taken upon these points, although the issue could not be retried.

It is a rather peculiar feature of the law in respect to these cases, that an infant may be deprived of its liberty during minority upon its confession without any corroborating evidence sustaining the charge against it, when a criminal of full age, matured and hardened in crime, cannot be convicted upon the same kind of evidence simply, namely, his own confession.

We think, therefore, that the learned judge in the court below was clearly right in the order made, there being no proof whatever that the magistrate ever had any jurisdiction.

The order should be affirmed, with costs.

Barrett, J.

I concur- in the general view of the law taken by the presiding justice, but I differ with him as to the result of this appeal. There was no demurrer to the traverse nor admission of the facts stated therein. The respondent below was not called upon to deny, in an independent pleading, the relator’s allegations. When a traverse is interposed, the issue is made up and no further pleading is required. The language of the Code is explicit : “A prisoner produced upon the return of a writ of habeas corpus may, under oath, deny any material allegation of the return, or make any allegation of fact, showing either that his imprisonment or detention is unlawful or that he is entitled to his discharge. Thereupon the court or judge must proceed, in a summary way, to hear the evidence produced in support of or against the imprisonment or detention, and to dispose of the prisoner as the justice of the case requires.”

In the case at bar, the learned judge, in place of this proceeding, treated the allegations of the relator’s traverse as true and discharged the child. -This I think was unwarranted and the order should, therefore, be reversed, and the matter remitted to the special term to proceed' to hear the evidence which may be produced by either party and thereupon to dispose of the case as justice requires.

Bartlett, J., concurs.


author: Van Brunt, P. J. (dissenting). Barrett, J.

text:
    In the Matter of Mollie Danziger.

      (Supreme Court, General Term, First Department,

      Filed February 13, 1891.)

    Appeal from order discharging the respondent from the House of Mercy.

      E. T. Gerry, for app’lt; C. Steckler, for resp’t.
   Van Brunt, P. J. (dissenting).

This case involving the same facts as were presented by the matter, In re Simon, decided herewith, the order is affirmed, with costs, upon the opinion in that case.

Barrett, J.

I think the order should be reversed and the proceedings remitted to the special term for further action. See my opinion In re Jennie Simon.

Bartlett, J., concurs with Mr. Justice Barrett


author: Daniels, J.

text:
    The People ex rel. John A. Thompson v. Rastus S. Ransom, Surrogate.

      (Supreme Court, General Term, First Department,

      Filed February 13, 1891.)

    1. Vetee ans—Removal—Confidential couet messengee not "within THE ACT.
    A court messenger, whose duties are confidential in their nature, is not entitled under chap. 119, Laws 1888, to a hearing before dismissal, but comes under the exception specified in the act.
    3. Same.
    The officer vested with authority to appoint and remove must necessarily determine whether the relations of the subordinate with him are confidential,, and where he determines that they are, this court has no power to reinstate such subordinate.

      Writ of certiorari to review the removal of the relator from his position as an attendant in the surrogate’s court.

      John E. Brodsky, for relator; John I. Townsend, for the surrogate.
   Daniels, J.

The relator was appointed a court attendant in the surrogate’s court of the county of New York. He was dismissed from that position by the surrogate, without a hearing, on or about the 18th of March, 1889. The power to make this dismissal without a previous hearing has been denied, under chap. 119 of the Laws of 1888. This act has provided that:

“ No person holding a position by appointment in any city or county o£ this state receiving a salary from such city or county (unless he has been appointed for a definite term), who is an honorably discharged soldier, sailor or marine, having served as such in the Union army or navy during the war of the rebellion, shall be removed from such position except for cause shown after a hearing had ; but this provision shall not be construed to apply to the position of private secretary or chief clerk or deputy of any official or department, or to any other person holding a confidential relation to the appointing officer.”

But the surrogate in his answer to the writ has returned:

“ That at the time of such removal and for several months prior thereto the relator had been, at his own request, assigned to duty by the respondent as a messenger to carry the verbal and written messages and instructions of the respondent necessary in the discharge of the respondent’s duties as surrogate, and that many of said messages were of a confidential character, and in the discharge of his duty in respect thereto1 the relator held a confidential relation to the respondent.”

And that subjected the relator to this power of dismissal without a previous hearing. The surrogate has returned in positive language that the relator held a confidential relation to him, arising out of the duties assumed at his own request. This seems under the act to have been a matter to be decided by the surrogate, and he has decided upon facts presenting that point that the relator’s -official relation to himself was confidental in its character. He had evidence before him upon which he was legally entitled to act, and that action cannot be reversed under this writ simply because it was adverse to the relator. The law has been so framed that the officer vested with the authority prescribed and at the same time limited by it, must necessarily determine whether the relations of the subordinate with him are confidential. The relator’s duties furnished some evidence that they were, and upon that evidence the surrogate was empowered to act as he did. What reason induced this action has not been stated in the proceedings, neither was it necessary that it should be, as long as power to dismiss arose out of the circumstance that the relations of the relator to the surrogate were, as he has returned, confidential.

The case is an unfortunate one for the relator, but this court is not vested with any power to reinstate him.

The writ, therefore, should be dismissed.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    Alexander T. Compton, App’lt, v. The Chelsea, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 13, 1891.)

    Apartment houses—Title of subscriber to apartment—Change of plan.
    According to the original plan of the defendant corporation subscribers to a specified number of shares were entitled to a substantially perpetual lease of an apartment. A certificate for that number of shares was issued to one V., who afterward sold the same to plaintiff. Thereafter the plan was changed and the expense increased, and the stock was a'so increased, the increased amount being divided among the subscribers without payment. Before the distribution the stockholders passed a resolution providing that the leases should provide for the payment of an annual rent of ten per cent on the stock held by the lessee. Plaintiff obtained possession of the apartment designated by his stock, and rented the same, but although he surrendered his certificate and received a new one for the original shares, and also for his share of the increased stock, he refused to accept any lease. His tenant having vacated, defendant took possession of the apartment. In an action of ejectment, Held, that the plans having been altered and plaintiff having assented to the new arrangement by his acceptance of the stock, could not be heard to say that he was not bound by the action of the stockholders, and that he could not claim the apartments without contributing to the increased cost of the building.
    Appeal from judgment entered upon verdict directed by the court and from order denying motion to set aside verdict and for a new trial.

      A. T. Compton, app’lt in person ; W. H. Shepard, for resp’t.
   Van Brunt, P. J.

This case has been before the general term upon a previous occasion in which it seems to have been held that this form of action may be maintained.

It is not necessary to express any opinion as to the conclusion then reached, because we think that the judgment in favor of the defendant must in any event be sustained.

This is an action of ejectment to recover possession of a suite of rooms in an apartment house. The defendant was organized under what may be called the apartment house act. The capital was fixed at $290,000, the number of shares of stock was 5,800, and the-par value of the shares was $50 each.

Before the organization of the company a prospectus was issued setting forth what it was proposed to do, and the advantages which would result from subscriptions, and showing by what investment apartments might be secured. The prospectus then goes on to say, that “if this be so” (namely, their calculations) “nay if the cost of apartments does not exceed twice the amount shown by our estimates, we claim that the great problem of how to live in New York city for people of educated tastes and refined habits, but of moderate means, is at last approaching a solution.” The circular further stated that the holding of a certain proportion of the stock would entitle the owner to a virtually perpetual lease of an apartment. Subscriptions were made and opposite the subscriptions were placed the numbers designating the apartments which the subscribers selected. Among other subscribers was a subscription for seventy shares in the name of A. B. Cruikshank and opposite to which was mentioned the apartment in question. By arrangement between the parties in January, 1883, a certificate for said seventy shares was issued to Thomas C. Van Brunt. In October, ‘ 1882, at a meeting of the trustees, by-laws were adopted by which it was provided that all questions as to the purchasing of land, the character and style of buildings to be erected and as to how and to whom and at what rent the several apartments should be leased, and as to. the apportionment and distribution of the apartments among the stockholders should be decided by a vote of the majority of the stockholders and not otherwise. At the same time and after the adoption of the bylaws the trustees adopted the prospectus aforesaid as the prospectus of the defendant. On the 14th of December, at a meeting of the stockholders, the subscribers were assigned the apartments selected by them; number 2 on the second floor, the apartment in question, being assigned to A. B. Cruikshank. No. 2 is now numbered 21. It further appeared that the certificate issued to T. 0. Van Brunt was surrendered and a new certificate No. 21 issued to him. These shares stood in his name and no transfer of the stock was made to the plaintiff on the books of the Chelsea until May, 1885, although it appears that a lead pencil mark had been made upon the books of the corporation showing that plaintiff was the owner of this stock, which lead pencil maik resulted probably from the knowledge that Van Brunt had sold this stock to the plaintiff some time in January, 1883.

The defendant commenced the construction of the house early in 1883.

At a meeting of the stockholders held in December, 1882, the plan of the building was changed whereby the cost was very much increased, and in January, 1884, the capital stock was increased from $290,000 to $500,000, such additional stock being distributed among the stockholders without anything being paid therefor. On the 23d of January, 1884, the trustees passed a resotion recommending to the stockholders at a meeting to be called thereafter that an annual rental equivalent to ten per cent of the face valuation of the stock held by each on the basis of $500,000 be the rental fixed by this company to its stockholders on their respective apartments. On the 29th January, 1884, and before the distribution of the increased stock, a meeting of the stockholders was held at which more than a majority were present, and unanimously passed resolutions, Van Brunt, the holder upon the books of the company of the seventy shares representing apartment No. 21, being present and voting therefor, that an annual rent equivalent to ten per cent of the value of the stock on the basis of an issue of $500,000. should be charged and collected from each stockholder and that the trustees were authorized to draw up a suitable form of lease to be executed to stockholders upon said basis.

In June, 1884, the trustees ordered the leases to stockholders to be executed by the -president. In September, 1884, the trustees approved and adopted the form of lease. In October, 1884, the building having been completed, the plaintiff obtained the keys of the apartment assigned to him and took possession of his apartments and expended certain moneys on the completion of the same. On the 1st of December, 1884, the plaintiff rented the premises. On the 11th of May, 1885, the plaintiff surrendered the certificate which he had received from Yan Brunt of the seventy shares and received in lieu thereof the original seventy shares and sixty-seven additional shares of the increased stock, for which nothing was paid; and thus became for the first time a stockholder of record in the company. In the summer of 1885 a lease of the apartments duly executed by the president was tendered to him. He declined not only to accept this but any lease. In October, 1886, the apartments having been vacated by the plaintiff’s tenant the defendant took possession, whereupon the plaintiff brought this action of ejectment.

Upon the trial a verdict was directed for the defendant, and a motion was made for a new trial and denied, and from the judgment and order thereupon entered this appeal is taken.

The ground upon which the plaintiff claims the right to succeed seems to be that by subscribing under the representations contained in the prospectus he became an absolute owner and entitled to the possession of the apartment represented by the seventy shares of stock which he now holds. This might be true if there had not been a change of plans, of organization, and of system in the carrying out of this entei’prise.

But it is urged that this change cannot affect the plaintiff, because he was not a party to it, and because they cannot impose an additional condition upon the stock held by him from that which it bore at the time of its first issuance. And our attention is called to the case of Driscoll v. West, Bradley, etc., M. Co., 59 N. Y., 96. This was an action to compel the defendant to transfer on its books stock purchased by the plaintiff. The defense was that the stock had formerly belonged to one Bradley who, at the time of his ownership, was indebted to the defendant and by virtue of a by-law then existing, adopted by the vote of Bradley, a transfer could not be made until the indebtedness was paid; and it was held that by a mere by-law they could not impose restrictions upon the transfer of personal property which were not authorized by the statutes.

That case presents no parallel to the one at bar, because there was no inability on the part of these stockholders to depart from the terms of the contract made by the subscription to the stock and the prospectus if they saw fit And this was all that was done ; done with the assent of the then holder of the stock to the change, and ratified by the plaintiff who accepted the additional stock which was the result of that change; the position of the plaintiff being that he can hold this additional stock without in any way assuming any portion of the burden which this additional stock represented.

The magnitude of the enterprise was increased; and this stock was issued to represent the increase. The value of the building to be erected was much greater than was originally contemplated; and this increase in stock was intended to represent the additional moneys which had been put into the building and had been raised upon mortgages upon the property. The plaintiff claims the right, after having accepted the stock representing this increased cost, to hold his apartment upon his original subscription, in a building much more expensive in character than the one to which he had subscribed.

Even if the prospectus entitled the plaintiff as matter of right to this apartment without the payment of any rent, he having assented to the new arrangement by the acceptance of the stock, if in no other way, cannot now be heard to say that he is not bound by the proceedings of the stockholders.

In the case cited the purchaser of the stock claimed that by the by-laws of the corporation they could not impress a lien upon the stock which the statute did not authorize.

In the case at bar the plaintiff for - a consideration having assented to the change in construction purposes now to keep the consideration and recall the consent.

We think that the plaintiff is not now in a position to claim the apartments without contributing to the additional expenses incurred by and with his cpnsent in the construction of the building, even though he would have been entitled thereto had he not acquiesced in and received some of the benefits of the change.

The judgment should be affirmed, with costs.

Bartlett, J., concurs.