author: Barker, J. :

text:
    PATRICK W. MURPHY, as Executor, etc., Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Evidence— examination of a party before trial — when it cannot be read in evidence upon the trial of a new action brought after his death by his execuioi'.

    The plaintiff's testator, having hoen injured while in the employment of the defendant, brought an action against it to recover damages therefor. In this action he was examined as a witness in his own behalf, before trial. The defendant appeared and cross-examined him. While this action was pending the testator died, and thereafter this action was brought by the plaintiff, his executor, to recover the damages occasioned to the widow and next of kin of the deceased by his death.-

      Held, that the deposition of the deceased taken in the first action, could not, against the defendant’s objection, be read in evidence upon the trial of this one.
    Appeal from a judgment, entered upon a verdict in tbe plaintiff’s favor, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    Charles D. Murphy, the plaintiff’s testator, received injuries from which he died, while in the defendant’s employ and in the line of his duty. The deceased survived the injuries some fourteen months. In his lifetime he commenced an action against the defendant, which was pending at the time of his death. After issues were joined in that action, the plaintiff was examined as a witness in his own behalf, in pursuance of section 870 of the Code of Civil Procedure. On such examination the defendant appeared and cross-examined the deceased. On the trial of this action such examination was read in evidence by the plaintiff against the defendant’s objection, and thereupon an exception was taken.
    This is an original action commenced after the death of testator, founded upon the act of 1847, chapter 450, and the several acts amendatory thereof.

      Brown c& Garfield, for the appellant.

      J. K. Fuller, for the respondent.
   Barker, J. :

If the defendant was guilty of a breach of duty which it owed the deceased, as the same is set forth in the complaint, then he in his lifetime had a cause of action against the defendant.

Although the defendant did not make satisfaction of this cause of action in'the lifetime of the deceased, by the rules of the common law, the right of action did not survive his death. (Broom’s Legal Maxims, 409 ; Chitty’s Pleadings, 69 ; Whitford v. Panama R. R. Co., 23 N. Y., 465.)

This rule of the common law applied to all actions of tort-Many of such actions were preserved from abatement by death under the provisions of 2 Revised Statutes, 447, §§ 1, 2. By section one,, for wrongs done to the property, rights or interests of a deceased per-' son, an action could be maintained by his executors or administrator against the wrong-doer, in the same manner and with a like effect in all respects as in actions founded upon contracts. By the second section it was provided that the provisions of the first section should not extend to injuries to the person of the testator or intestate.

It will be observed, that in actions preserved from abatement by this statute, the recovery was for the benefit of the estate of the deceased person. (Cregin v. Brooklyn Cross-Town R. R. Co., 75 N. Y., 192.)

The right of action given by the act of 1847,- and as afterwards amended, is for the benefit of the husband, widow and next of kin of the deceased, and the same is required to be prosecuted in the name of his personal representatives.

The right of action given by the act of 1847 (chap. 450) to the personal representatives of one whose death has been caused by the wrongful act or default of another, is a new right of action created by the statute, and is not the mere continuation by the personal representatives of the right of action which the deceased had in his lifetime. (Littlewood v. The Mayor, 89 N. Y., 24-27 ; Whitford v. Panama R. R. Co., supra; Perkins v. N. Y. C. R. Co., 24 N. Y., 197; Crowley v. Panama R. R. Co., 30 Barb., 99.)

The statute does not provide for continuing a prior right of action nor for transferring a right • of action to other parties. (Safford v. Drew, 3 Duer., 640; Chicago v. Major, 18 Ill., 349.)

The deposition of the deceased taken in the action prosecuted by him in his lifetime was not competent evidence in the action. That action terminated with the death of the plaintiff therein and all interlocutory proceedings went down with it, and are not saved by section 881 of the Code of Civil Procedure. While the plaintiff is the personal representative of the deceased, the action is prosecuted for the benefit of those who do not claim under him, but is an original cause of action, that did not exist in the lifetime of the deceased.

The defendant sought to maintain on the argument of this appeal, that the plaintiff should have been non-suited upon the whole case, but.as there must be a new trial for the error pointed out, we deem it most prudent not to consider the exceptions which go to the plaintiff’s right of action, as the evidence upon another trial must necessarily be materially different from what it was on the one under review.

New trial granted, with costs to abide the event.

Present — Smith, P. J.; Hardin and Barker, JJ.

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


source: Caselaw Access Project

author: Hardin, J. : Barker, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSEPH BORK, Appellant.

      Sentence imposed by a tribunal irregularly constituted — presumption inf mor of the regularity of its action — when any irregularity therein is waived by thefailu/re of the defendant to object — conviction for aconversion of publicfunds — 1875, chap. 19 — the verdict need not state the amount of the loss sustained —right of the appellate court to pronounce an appropriate judgment upon reversing an erroneous one — Code of Criminal Procedure, chap. 4.

    A judgment, convicting tlie defendant of the crime of embezzling and converting property and funds of the city of Buflalo, was affirmed by the General Term and the .Court of Appeals. The verdict was rendered at a term of a Court of Oyer and Terminer held by a justice of the Supreme Court and two justices of Sessions, in May, 1881. In May, 1888, a judgment was entered against and a sentence imposed upon him at a term of the same court. It appeared from the caption of the minutes kept by the clerk upon the day that the defendant was sentenced, and from the caption of the judgment as formally prepared and entered by him, that the said Court of Oyer and Terminer was held by a justice of the Supreme Court and two justices of Sessions. It appeared from the • record that the defendant was present in court when the sentence was pronounced and that when asked if he had any legal cause to show why judgment should not be pronounced by the court against him, he said nothing.
    Upon an appeal by the defendant it was claimed that the judgment and sentence was rendered void, by the presence in the court of the two justices of Sessions, as, at the time the sentence was pronounced, a Court of Oyer and Terminer was by section 23 of the Code of Criminal Procedure, as amended by chapter 360 of 1882,.required to be held by a justice of the Supreme Court without an associate.

      Held, that, considering the effect of section 542 of the Code of Criminal Procedure providing that after hearing the appeal the court must give judgment without regard to technical errors or defects, or exceptions which do not affect the substantial rights of the parties, and the legal presumption that the Court of Oyer and Terminer held in May, 1883, was regularly opened and held, together with the defendant’s acquiescence in the proceedings, and his failure to then object to the constitution of the court, the objection should be overruled and the conviction and sentence affirmed. (Barker, J., dissenting.)
    Chapter 19 of 1875, providing for the more effectual punishment of peculation and other wrongs affecting public moneys and rights of property, authorizes one convicted of the offense thereby created to be punished by imprisonment in a State prison, or by a fine not exceeding “five times the loss resulting from the fraudulent act or acts which he shall have so committed, aided or abetted, to be ascertained as hereinafter mentioned, or by both such imprisonment and fine.” The third section provides that “when rendering a verdict of guilty upon the trial of any person indicted under this act, the jury may find and state with their verdict the amount of loss resulting from the offense of the defendant.”

      Held, that the statute was permissive only and not mandatory, and that it was not essential to the validity of a verdict that it should state the amount of loss resulting from the offense of the defendant.
    That, in any event, the defendant could not object to a general verdict of guilty on account of the omission of such statement unless he had previously requested that such statement should be embodied therein.

      It seems, that, under the provisions of chapter 4 of the Code of Criminal Procedure, an appellate court has power upon reversing an erroneous or void judgment, to itself pronounce an appropriate judgment upon the verdict rendered, where the latter, and all the proceedings prior thereto, are regular and correct. (Per Barker, J.)

      It seems, that the legislature may confer on a court, separate and distinct from the trial court, the right to pronounce sentence on a verdict convicting the accused. (Per Barker, J.)
    Appeal by the defendant from a judgment convicting bim of the crime of embezzling and converting the property and funds of the city of Buffalo, rendered against him in and by a Court of Oyer and Terminer, held in the city £nd county hall at the city of Buffalo, in and for the county of Erie, on the 3d day of May, 1883; and also from an order denying a motion for arrest of the judgment made on the 9th day of April, 1883. The defendant was convicted at a term of the Oyer and Terminer in Erie, held in June, 1881. Thereupon, before sentence was pronounced, a stay was granted, and a case and bill of exceptions were made, and the same were heard before this court in January, 1882, and the conviction affirmed at the April term, 1882. Thereupon the defendant appealed in April, 1882, from the judgment entered upon that decision, to the Court of Appeals, and the judgment was affirmed in that court in 1883. (See 91 N. Y., 5.) The cajition of the minutes kept by the clerk on the day of the term held in May, 1883, at which the defendant was sentenced, reads, viz.: “ At a Court of Oyer and Terminer held in the city and county hall in the city of Buffalo, in and for the county of Erie, on the 3d day of May, 1883. Present, Hon. Charles Daniels, justice presiding; Fayett Read, Seth A. Abbott, justices of sessions.” Then follows the title of the cause, and the record then proceeds to state, viz.: “The defendant, Joseph Bork, having been held and convicted at a term of this court in the month of June, A. D. 1881, of * * *. Defendant appears in court in person. Defendant being asked by the court if he had any legal cause to show why judgment of the court should not now be pronounced against him, said nothing.” “Defendant sworn, etc. * * * Defendant sentenced to be confined in the State prison at Auburn, N. Y., at hard labor for the term of five years. (A copy.) Charles H. Avery, deputy clerk.” Then follows a similar caption to the one already stated, then a recital of the proceedings from the finding of the indictment down to the trial in 1881, and the conviction by the jury and the sentence.
    Chapter 19 of 1875, under which the defendant was convicted provides, in its first section, that a person convicted of the offense thereby created shall “be punished by imprisonment in a State prison for a term not less than three years or more than ten years, or by a fine not exceeding five times the loss resulting from his fraudulent acts or acts, which he shall have so committed aided or abetted, to be ascertained as hereinafter mentioned, or by both such imprisonment and fine.” The third section provides that “ when rendering a verdict of guilty upon the trial of any person indicted under this act, the jury may find and state with their verdict the amount of loss resulting from the offense of the defendant.”

      Norris Morey, for the appellant.

      Edward W. Hatch, district attorney, for the respondents.
   Hardin, J. :

Section 542 of the Code of Criminal Procedure reads as follows: After hearing the appeal, the court must give judgment without rega/rd to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” This section was adopted to prevent technical errors or defects ” from defeating the ends of justice. And all such errors or defects as do not affect the substantial rights of the party complaining, the court must disregard in considering the case before it upon appeal.

It is now urged that since the amendment of section 28 of the Code of Criminal Procedure in 1882, “a Court of Oyer and Terminer is held by a justice of the Supreme Court without an associate.” (Chap. 360, Laws of 1882.) We held in Ostrander v. The People (29 Hun, 519) that after the passage of the act of 18S2 there was no law authorizing justices of Sessions to sit in the Oyer and Terminer. Our decision in that case was subsequently affirmed by the Court of Appeals. We may properly assume that when the Oyer and Terminer of the 3d of May, 1883, was opened, and a justice of this court appeared and presided, a regular court was held, as the law authorizes.

It is a universal presumption in respect to judicial proceedings, criminal as well as civil, that they have been conducted according to law, unless the contrary is clearly made to appear. The law also presumes that judicial officers have discharged their duties according to the requirements of the law, until the contrary appears. In the case in hand the Court of Oyer and Terminer appears to have been presided over by a justice of this court in the proper place, and in the proper building for holding Courts of Oyer and Terminer in Erie county. Such court had jurisdiction of the subject-matter and the person of the defendant, as the record before us shows, and nothing to the contrary is shown or claimed by the defendant. If we grant that the caption contains a recital not authorized by the law, may it not be disregarded as surplusage, and at most showing a technical error which does not affect the substantial rights of ” the defendant.

When he appeared in the court on the 3d day of May, 1883, he did not object to the jurisdiction of the court, nor that it was not holden by the proper authority. Strengthening the presumption that the officer authorized by law to hold a. Court of Oyer and Terminer did then and there discharge his duty, is the absence of .an objection or exception to the proceedings then had. For the first time the objection to the organization of the court on the 3d day of May, 1883, is taken after the court has completed its duty in the premises. The defendant apparently was silent, acquiescing in the proceedings as conducted by the court when the sentence was pronounced. We incline to the opinion that the remarks of Judge Andrews in People v. Cornetti (92 N. Y., 88), are applicable here. That judge said, as follows: It is claimed that the Court of Oyer and Terminer by which the prisoner was tried was not legally constituted, the allegation being that the justices of Sessions, who in part composed it, were not legally designated or elected. This point' is taken here for the first time. It was not raised at the trial, and there is no evidence and no exception bearing upon it. It must be assumed therefore that the court was properly constituted, and that the justices of Sessions who acted, were duly designated according to law.”

Again, in People v. Hovey (92 N. Y., 554), the court in considering when an exception should be taken, says, “ an exception to a •charge taken after a criminal trial had terminated, and where, if erroneous, the jury could not have been instructed to disregard the erroneous instructions, does not present any question of law for the consideration of an Appellate Court.” This case differs from those decided before the adoption of section 542 which cases relate to mere irregularities. Here we have a court in which sat a justice of this court, clothed with full power to conduct the court, and such court, the record says, imposed a sentence without any objection or exception being taken thereto.

In Commissioners of Highways v. The Judges (7 Wend., 264), it was said by tbe court that tbe fact that tbe certificate was made by twenty freeholders did not vitiate it, though only twelve were required by the statute, and in the same case Judge Nelson said, “the objection that one of the judges who decided the appeal had before passed upon the same question, might be considered- as warranted by the provision of the statutes forbidding officers acting in appellate tribunals from taking part in the decision of matters before determined by them (2 R. S., 275, § 3), had it been urged when the question was under consideration before the judges; but was it not; the appeal was contested solely upon the merits, and the commissioners are now too late to avail themselves of the objection. It might have been and probably was waived. It would promote litigation and contravene well established principles now to allow it as well taken.”

We think we must obey the letter and spirit of section 542 of the Code of Criminal Procedure, and that to do so we should sustain the judgment before us. (2.) The opinion of Barker, J., as to the questions made as to the form of the verdict meets with our approval. (3.) The views ' already expressed lead to an affirmance of the order refusing a discharge of the prisoner on a writ of habeas corpus.

Judgment affirmed, order denying motion for arrest of judgment affirmed, and order refusing a discharge of prisoner affirmed.

Smith, P. J., concurred.

Barker, J.:

The indictment on which the defendant was tried and convicted, is based upon charges which constitute a violation of the provisions of chapter 19 of the Laws of 1875, entitled, “An act to provide more effectually for the punishment of peculation, and other wrongs affecting public moneys and rights of property.”

The property and funds wrongfully and illegally converted by the appellant to his own use, as described in the indictment, consisted of one hundred bonds, issued by the city of Buffalo known as the city and county hall bonds, of the denomination of $1,000 each, and of the value of $1,000 each, the property of the city of Buffalo.

A more particular reference to the indictment and statement of the nature of tlie offense described, is unnecessary for the purpose of this appeal.

The trial on the indictment was had at a Court of Oyer and Terminer, held in and for Erie county, in May, 1881, Mr. Justice Daniels, presiding, and the justices of Sessions sitting and acting as his associates. The form of the verdict as rendered by the jury and recorded by the clerk was, that the prisoner is, “ guilty of the crime as charged in the indictment.”

Before sentence was pronounced on the conviction, a stay was granted and the rulings made on the trial, to which the defendant took exceptions, were reviewed in this court, and in the Court of Appeals, on a bill of exceptions, and in both courts the conviction was sustained and a new trial denied. On filing a remittitv/r from the Court of Appeals, with the clerk of Erie ■county, the order and judgments of the Supreme Court and the Court of Appeals were made the judgment of the Court of Oyer and Terminer, thereupon and on the 9th day of April, 1883, the defendant moved in arrest of judgment, which motion was denied. The record before us does not disclose the grounds upon which the motion in arrest of judgment was founded. At a subsequent day, .and on the 3d day of May, 1883, at a term of the Court of 'Oyer and Terminer, held in and for Erie county, judgment was pronounced on the verdict and the prisoner was sentenced to be confined in the Auburn prison, at hard labor, for the term of five years.'

One of the grounds upon which the appellant now seeks to reverse the judgment is, that unauthorized persons, to wit, the justices of Sessions in and for the county of Erie, were present and acted as members of the Court of Oyer and Terminer, when the sentence was made up and judgment pronounced' against the prisoner.- If such be the fact, and the same is made to appear by the record, then the judgment is illegal and void, and the prisoner is •suffering punishment administered by a tribunal unknown to the law of the land.

Formerly, Courts of Oyer and Terminer, as organized under the judiciary act (Laws of 1847), except in the city and county of New York, were composed, of a justice of the Supreme Court, who presided,. the county judge, and the justices of the peace, designated as members of the Court of Sessions; with a provision that the presiding justice and any two of the other officers mentioned therein, ■constituted a quorum and had power to hold a court. In June, 1882, the organization of the court was changed, and the court as now constituted consists of a justice of the Supreme Court without any associate; the words of the eactment being as follows: “A Court of Oyer and Terminer is held by a justice of the Supreme Court, without an associate.” (Section 23 of the Code of Criminal Procedure, as amended by chapter 360, Law;s of 1882.)

An inspection of the record, as set forth in the appeal-book, dis closes the fact that when Bork was sentenced there were present and acting as members of the court, and participating in its deliberations, other persons than the justice of the Supreme Court who presided. In the papers embraced in the judgment-roll is a copy of the minutes of the trial; a copy of the minutes of the motion made in arrest of judgment; a copy of the minutes of the judgment as directed and required by section 185 of the Code of Criminal Procedure. In the caption of the clerk’s minutes, as kept by him on the day the prisoner was sentenced, is a statement of the persons who were present and acting as members of court, the whole of which is as follows :

“ At a Court of Oyer and Terminer, held at the City and County Hall, in the city of Buffalo, in and for the county of Erie, on the 3d day of May, 1883.

“Present — Hon. Charles Daniels, Justice Presiding.

“ Hon. Fayette Read and Seth A. Abbott, Justices of Sessions.”

Then follows the judgment, as prepared by the clerk and signed by him, the caption of which is in the following words, viz.:

“State oe New York:

“ At a Court of Oyer and Terminer, held at the City and County Hall, in the city of Buffalo, in and for the county of Erie, on the 3d day of May, 1883.

“Present — Hon. Charles Daniels, Justice Presiding, and

“ Hon. Payette Read and Seth A. Abbott, Justices of the Sessions.”

The judgment, after making the usual formal recitals referring to the indictment, trial and conviction, concludes in these words:

And (Bork) was thereupon, on the 3d day of May, 1883, sentenced to be imprisoned in the State prison at Auburn, at hard labor, for the term of five years.

“ J. E. EWELL, Clerk”

In all courts of record in this State it is the province, as well as the duty of the clerk, to keep a minute-book or record of the proceedings of the court, in which he states the day of trial, the name of the judge who presides, and also the names of his associates, when he has any; and this book, with all its entries, is, as a general rule, under the complete control of the- court to which such entries relate.

We must conclude, therefore, that when the prisoner was sentenced, Eayette Read and Seth A. Abbott, two persons not legally members of the Court of Oyer and Terminer, were present and acting as members of the court, and deliberated with Mr. Justice Daniels in preparing the judgment, which they together, all acting as members of the court, pronounced- on the prisoner. These individuals were judicial officers — the members of another tribunal. We may take judicial notice of the fact; who are the members of the several courts of record in this State, and it is for us to understand from the record before us, that these individuals were the justices of the peace designated as members of the Court of Sessions, in and for the county of Erie, at the time judgment was pronounced in this case. As such officers were formerly members of the Court of Oyer and Terminer, and the change in the organization of that court had then but recently taken place, this circumstance most likely explains why they deemed it their duty and were permitted to act as members of the court when Bork was sentenced. Although the trial took place before the court, as organized under the judiciary act, the judgment on the verdict should have been pronounced by ■the court organized as the statute now provides. (Ostrander v. The People, 29 Hun, 513.)

The legal proposition presented by the learned counsel for the appellant, that the judgment is void for the reason that the court was not legally constituted, does not, in my opinion, admit of any doubt. The court had jurisdiction of the subject-matter as well as the person of the prisoner; the trial and conviction were regular in all respects, and free from error. The question under consideration does not, accurately speaking, involve the jurisdiction of the court in which he was tried and sentenced. The precise question is, was the court'legally organized when the judgment was pronounced? If there is anything settled in the jurisprudence of this State, it is that no man shall be condemned and punished by the judgment of an unauthorized tribunal. To create a judicial tribunal is one of the functions of government, and it is against public policy to recognize judgments and decrees of a self-constituted court. In civil actions the judgments of unauthorized judicatories are sometimes held binding on suitors, as mere arbitrations, when the proceedings are conducted with their consent, but never in criminal prosecutions, for the punishment that follows a conviction may, and often does, involve life and liberty, and is not limited to the loss of property. It is a maxim of the law that consent never confers jurisdiction. This applies as well to consent which creates a tribunal as to that which submits matter to a subsisting tribunal which is an utter stranger to it. (Germond v. The People, 1 Hill, 345,)

A court is as much disorganized and without power to act, when one or more unauthorized individuals participate in its deliberations and judgments, as when it acts without the presence of those who are necessary to constitute a quorum as required by some provision of positive law. The cases which I will now mention prove, as far as judicial decision can establish any proposition, that the tribunal which pronounced judgment against the prisoner on the verdict of conviction was illegally constituted and unknown to the law of the land.

In Oakley v. Aspinwall (3 Comst., 541) it was held that if any one of the members of a court is disqualified to sit in a particular case by reason of his consanguinity to one of the suitors, he cannot properly and legally act as a member of the court, though it should be with the express consent of all the parties in interest. This rule was applied in that case, where one of the members of the Court of Appeals was disqualified by reason of his relationship to one of the parties, although all the parties gave express consent and requested the disqualified judge to sit, and there was in fact a quorum of the court without his presence. The judgment in which he participated was declared void and vacated on motion. In the opinion of the court the statute on the subject of the disqualification of judges was quoted and the provision of the statute is: £iNo judge of any court can sit as such in any cause to which he is a party or in which he is interested, or in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties.” (2 R. S., 275, § 2; Revisers Notes, 3 R. S., 694.) The court, in remarking upon the rule of the common law, and of the provisions of the statute, says, viz.: “After so plain a prohibition, can anything more be necessary to prevent a judge from retaining his seat in the cases specified ? He is first excluded by the moral sense of all mankind; the common law next denies him the right to sit, and then the revisers of our law declared that" they intended to embody this universal sentiment in the form of a statutory prohibition, and so they placed this explicit provision before the legislature who adopted it without alteration and enacted it as the law. The exclusion wrought by it is as complete as is in the nature of the case possible. Tfie judge is removed from the cause and and from the bench; or if he will occupy the latter it must be only as cun idle spectator and not as a judge. He cannot sit as such. The spirit and language of the law are against it. Having disqualified him from sitting as a judge, the statute further declares that he can neither decide nor take part in the decision of the causes as to which he is divested of the -judicial function. Nor ought he to wait to be put in mind of his disability, but should himself suggest it, and withdraw as the judge, with great propriety, attempted to do in the present case. He cannot sit, says the statute. It is a legal impossibility, and so the courts have held it.” (Edwards v. Russell, 21 Wend., 63; Foot v. Morgan, 1 Hill, 654.)

The statute applicable to the case we have in hand declares the Court of Oyer and. Terminer shall be held by a justice of the Supreme Court, without an associate.

In the case of The People v. Shaw (63 N. Y., 36) it was held that if a quorum of the court, as provided by the statute which created it, was not present when the verdict of the jury was received, it was error, and the judgment pronounced thereon was reversed. In the opinion of the Supreme Court the same view was taken, and is reported in 3 Hun, 272.

In Caneemos case (18 N. Y., 128), he consented to be tried by a jury of eleven qualified jurors, and was convicted of the crime of murder. The Supreme Court sustained the conviction, on the ground that the prisoner could waive his constitutional right to be ti-ied by a jury of twelve. The Court of Appeals reversed the judgment and set aside the conviction, and ordered a new trial, holding that the prisoner could not waive his right to be tried by a jury composed of the number provided by the constitution of the State, and the verdict of conviction, was a nullity. The court further held that when an issue was joined on an indictment, the trial must be by the tribunal and in the mode which the constitution and the laws provided, without any essential change ; that the public officer prosecuting for the people has no authority to consent to such a change, nor has the defendant.

On the authority of these cases, the judgment appealed from must be held erroneous and void. The following cases are cited as authority on these propositions: Blend v. The People (41 N. Y., 604); The People v. Dohring (59 id., 374); Hinman v. The People (13 Hun, 266;) Chambers v. Clearwater, (1 Keyes, 310); Foot v. Morgan (1 Hill, 654) ; Germond v. The People (1 id., 345); The People ex rel. Tweed v. Liscomb (60 N. Y., 571).

As the defect in the organization of the court deprived it' of the character intended by the law creating it, .this court must take notice of the defect, although the appellant on this appeal, for the first time, makes the objection to the validity of the sentence. (People v. Petrea, 65 How. Pr., 59 [Ct. of App. Dec.].)

For the reason that the judgment is a nullity, it cannot stand and must be reversed. The question now arises whether this court has power to give a new judgment on the verdict; and if n.ot,.must the record be remitted to the Oyer and Terminer with directions to proceed on the conviction and pronounce the appropriate sentence on the verdict, or should the judgment be reversed, and a new trial ordered, or the prisoner absolutely discharged? The Code of Criminal Procedure has abolished writs of error, and substituted an appeal as the only mode of reviewing a judgment in a criminal action. (Sec. 515.)

As the judgment in this action was pronounced after the Code went into operation, the record is brought before us on appeal as provided by section 517. By the Revised Statutes, as amended by chapter 226, Laws of 1863, relating to writs of error in criminal cases, it was provided: If the Supreme Court shall affirm such judgment, it shall direct the sentence pronounced to be executed, and the same shall be executed accordingly. If the Supreme Court shall reverse the judgment rendered, it shall either direct a, new trial or that the defendant be absolutely discharged, according to the circumstances of the case. Provided, however, that the appellate court shall have power upon any writ of error, when it shall appear that the conviction has been legal and regular, to remit the record to the court in which such conviction was had, to pass sentence thereon as the said appellate court shall direct.” (2 R. S., § 24, m. p. 741.) There can be no doubt but that this section is repealed, and the provisions of the Code on the same subject substituted in lieu thereof. Section 962 declares that the provisions of the Code apply to criminal actions, and to all other proceedings in criminal cases, which are therein provided for from the time when the same took effect (which was September 1, 1881); that all such actions and proceedings theretofore .commenced must be conducted in the same manner as if the Code had not been passed. Although this action was commenced and a trial had before the Code went into operation, the provisions of the same relating to giving judgment on appeal are applicable, because the judgment on the verdict and the appeal therefrom are proceedings in the action instituted after the Code took effect, and are not such proceedings as are embraced in- the exception as mentioned in the section.

Entertaining jurisdiction on this appeal, at the instance of the appellant, is giving a construction to the statute in accordance with these views. Chapter 4 of the Criminal Code contains provisions relating to the power of the appellate court to give judgment on disposing of the appeal. The directions are, after hearing the appeal, the court must give judgment without regard to technical errors or to exceptions which do not affect the substantial rights of the parties. The next section (sec. 543) provides: “ Upon hearing the appeal the appellate court may, in cases where an erroneous judgment has been entered upon a lawful verdict, correct tbe judgment to conform to tbe verdict. In all other cases they must either reverse or affirm the judgment appealed from, and in cases of reversal may, if necessary or proper, order a new trial.” If the judgment against the defendant be reversed without ordering a new trial the appellate court must direct his discharge. If the judgment be affirmed the original judgment must be carried into execution as the appellate court may direct, and if the judgment be corrected the corrected judgment may be carried into execution as the appellate court may direct. There is also the further provision that when a judgment in the appellate court is given it must be entered in the judgment-book and a certified copy of the entry forthwith remitted to the clerk, with whom the original roll is filed, and the papers returned to the appellate court must there remain a record and not be remitted to the court below.

The verdict in this case was in every respect valid and legal, and I am of the opinion that the judgment pronounced thereon is void. The question now arises, has this court on correcting the error and setting aside the void judgment the power and authority to pronounce an appropriate judgment on the verdict as it stands. I am of the opinion that the provisions of the Criminal Code, which we have mentioned, confer such power, and that it is our duty to give the judgment which the law pronounces on the verdict.

Prior to the act of 1863 if an erroneous .judgment was pronounced on a legal and regular conviction on the trial of a good indictment, and the judgment was reversed on a writ of error in an appellate court, such court had no power to remit the proceedings to the court below to proceed on the verdict and give the appropriate judgment, nor could the appellate court give a new judgment, but under the provisions of the statute and the law as it then stood the defendant was entitled to an absolute discnarge on a reversal of the judgment ■which had been given against him. (Shepherd v. The People, 25 N. Y., 406; McKee v. The People, 32 id., 239; Ratzky v. The People, 29 id., 127; The People v. Taylor, 3 Denio, 97; O’Leary v. The People, 4 Parker’s Crim. R., 187.)

The decision in People v. Shepherd, was founded on the idea that there was not, previous to the act of 1863, any authority in the appellate court, on the reversal of a judgment, wrongfully pronounced, when the trial and conviction was regular, either to pronounce the proper judgment, or to remit the record to the court where the sentence was pronounced, with directions to that court to pass the appropriate sentence, and that in the absence of any such authority upon the reversal of the judgment, the prisoner was entitled to his discharge.

It was, as we think, the clear intent, of the legislature in amending section 24 of the Revised Statutes, by adding the provision contained in the act of 1863, to retain the verdict when the trial and conviction was regular and legal on a good indictment when the judgment was reversed and set aside, because of some error in the form or substance thereof. To accomplish this end, specific power was given the appellate court to formulate the appropriate-judgment and to remit it, with the record, to the court in which conviction was had, with directions to pass sentence on the verdict in the form and to the effect as prepared by the appellate court.

In Ratzky’s .case the judgment was reversed because of error in the form and effect of the same, and as no error occurred on the trial and the indictment was good and sufficient, the Court of Appeals prepared the judgment which should be pronounced on the verdict and sent the same with the record to the court below to be pronounced on the defendant.

If we were reviewing the judgment in this case on a writ of error issued under the provisions of the Revised Statutes, we should not on reversing the judgment discharge the defendant nor award him a new trial, but should formulate a new sentence and direct the Oyer and Terminer to pronounce the same. We are entirely satisfied that it was the purpose of the legislature in adopting section 242 and 243 of the Criminal Code, to keep and preserve the verdict in all cases where the same is lawful, and if an erroneous judgment has been pronounced thereon by the trial court on appeal therefrom, then that the appellate court should give the proper judgment.

There is no provision in the statute as it now stands for remitting the record to the court below, with directions to that court to proceed anew and pronounce the appropriate sentence. Without a statute on the subject conferring the power, this court is without authority to give such directions, and the court below has none to-proceed anew on the subject. Unless the statute does confer on this court the. power to give a new judgment, on the reversal of an erroneous one, when the verdict is lawful, then in every such case the defendant is entitled to an absolute discharge, for the reason ¡that the trial and conviction already had would be a complete bar to another trial and conviction. (Shepherd v. The People, supra; McKee v. The People, supra.)

Authority full and complete is conferred on this court to correct an'erroneous judgment and to conform it to the judgment when the judgment is lawful. But, it is said, as this judgment is void, it cannot correctly be held erroneous within the meaning ©f the statute, so as to bring the same within its previsions. I da not concur in the suggestion, and on the contrary believe the judgment erroneous as well as void within the sense and meaning of the statute, so that w,e may give the appropriate judgment on the verdict. A judgment may be erroneous and not void, and it may be erroneous, because it is void. It is within the power of the legislature to confer on a court, separate and distinct from the trial court, the right to pronounce sentence on a verdict convicting the accused.

A judgment now given by this court on the verdict will be, it is true, a new judgment, to stand in the place of the present void judgment. So are all corrected and modified judgments in criminal or civil actions, in a certain sense, new judgments. Suppose a sentence wholly unauthorized by law, be pronounced on a legal verdict by a competent and duly organized court, the same is erroneous and void, for the reason that the same is without sanction of law. On appeal therefrom, this court has the undoubted right, under the provisions of the present statutes, to correct the same and conform it to the verdict. In doing this the court does make up and give a new judgment in every respect. No part or feature of the void judgment can be retained. The judgment now under consideration is erroneous and void, in the same sense as in the case supposed, but for a different reason. The phrase “erroneous judgment,” as used in section 543, should be considered to embrace void judgments, as well as those which are merely erroneous, and the power to correct judgments and conform them to the verdict should be held to include those that are erroneous because they are void. It cannot be doubted but such was the intention of the legislature. • It cannot reasonably be supposed that the legislature was ignorant of the well-established rule of law, that if there has been a legal conviction on a good indictment, the accused cannot be re-tried on the same indictment after an erroneous judgment on the verdict has been reversed and set aside, nor can it be believed that in codifying the law on this subject it did not intend to preserve the provisions of the Revised Statutes, conferring en the courts of review ihe power to give a proper judgment on a legal verdict, on reversing an erroneous and void judgment, and thus to secure the punishment of guilty persons who have been legally convicted, and not allow law-breakers to escape altogether, by reason of error in pronouncing the judgment of the law on a just conviction.

The form of the verdict is set forth in the record, and if for any reason the same is incomplete and does not pass upon all the issues as required by the statute, the question was properly brought to the attention of the trial court on the motion in arrest of judgment. It is now argued that the motion should have been allowed and the judgment arrested for the reason that the verdict did not contain any finding or statement of the loss sustained from the offense committed by the defendant as required by the statute under which the indictment was found.

It is not claimed by the learned counsel for the defendant that a request was made on the trial, by the people or the defendant, that the jury find and state with their verdict the amount of the loss sustained by the city. The fact which may be found by the jury under the statute, is no part of the verdict. It must be stated with the verdict when the fact is found. The language of the statute is: “ When rendering a verdict of guilty upon the trial of any person indicted under this act, the jury may find and state’with their verdict the amount of loss resulting from the offense of the defendant.”

The offense which the statute defines and declares to be punishable may exist, although the municipality whose money or property has been wrongfully converted has not suffered any loss. After the offense became complete, by a wrongful conversion, a full restoration may have been secured, with or withont the assent of the wrong-doer.

I am unable to discover that it was the intention of tbe legislature that, in every instance when a conviction takes place, the jury must pass on the question of loss, and consequently hold, that if there be omission so to do, the verdict is incomplete, and for that reason a mis-trial must be adjudged. The statute is not imperative and peremptory in terms; the language is permissive. Although the act relates wholly to matters of public concern, this provision of the statute should not be regarded as imperative. Should the defendant plead guilty, he would then be legally convicted, and the court could lawfully pronounce sentence without any finding by a jury as to the extent of the loss.

Let it be conceded that this provision of the statute was inserted solely in the interest of the accused, that does not seem to be a sufficient reason for requiring a construction to be given to the statute, making it the duty of the court on every -trial to instruct the jury to pass on the question of loss.

This is like the case where the sheriff or other officer is empowered to let to bail. Before such an officer is derelict in duty he must be requested to perform the duty required. We put this with that class of cases, which we do not deem it necessary to cite, which hold, that there must be a request made of officers or public bodies to act and discharge the duty imposed on them by law, before it can be said that they have not discharged their official duty, to the injury of the complaining person.

I am of the opinion that the verdict was complete, and that there was not a mis-trial because the jury failed to find the extent of the loss sustained by the city.

Judgment and orders affirmed.


author: Hardin, J.:

text:
    MARY ANN BOARDWAY, Respondent, v. JAMES SCOTT, Appellant.

      Costs — when a question of title is involved in an action for mesne profits — when the decision of the trial judge as to costs is not conclusive upon the parties.

    The plaintiff alleged in the first count of her .complaint that the defendant had wrongfully entered into the possession of certain premises, an undivided one-seventh interest in which was owned by the plaintiff’s assignor, and sought to recover the rental value and mesne profits thereof. In the second count she alleged the wrongful entry of the defendant and the recovery of a judgment in an action of ejectment brought against him by the plaintiff’s assignor, and sought to recover the same rental value and mesne profits. The defendant’s answer contained a general denial, an averment of ownership in himself and his grantors, and a claim to be allowed for permanent improvements made while holding under color of title adversely to the plaintiff’s assignor. Upon the trial, by the court without a jury, a judgment for twenty-two dollars and twenty-eight cents was ordered for the plaintiff and costs were awarded to the • defendant.

      Held, that a question as to the title to real estate wras involved in the issues raised by the answer and that as the plaintiff had succeeded, she was entitled to recover costs.
    That, as the plaintiff’s right to the costs was governed by the statute, the award of costs made by the trial judge was not final and conclusive upon the parties, and that the court at Special Term had power to set aside the judgment for costs entered in the defendant’s favor.
    Appeal from an order made at tbe Oswego Special Term setting aside and vacating a judgment entered Marcli 12, 1883, awarding to the plaintiff, as damages, twenty-two dollars and seventy-eight cents, and awarding costs to the defendant.
    The complaint contained two counts, in the first the plaintiff claimed to recover, as the assignee of one Henderson, who owned an undivided one-seventh of the premises, the rental value thereof from the defendant who had wrongfully entered into possession thereof; in the second, she set out the recovery of a judgment in an action of ejectment brought by Henderson against the defendant tO’ recover the possession of the said undivided oneheventh of the said premises, and sought to recover the same rental value as mesne profits,

      B. B. Bv/rt. for the appellant.

      J. A. Hathaway, for the respondent.
   Hardin, J.:

' Plaintiff brought this action to recover mesne profits, and in her complaint set out the necessary averments to support a recovery. Defendant put in answers which contained (1) a general denial, (2) an averment of ownership of the property described in the. complaint, (3) ownership in his grantors and conveyances from them, and that he and his grantors ever since 1858 had been tenants in common with plaintiff’s assignor; also set up “permanent improvements ” made in good faith, ■ “ while holding under color of title, adversely to plaintiff’s assignor,” in reduction of the damages of the plaintiff, as was permissible under section 1531 of the Code of Civil Procedure.

After a trial by the court without a jury it was found by the-court that in 1858, by warranty deed of the plaintiff’s assignor,. Joseph Henderson took title to one-seventh of the premises referred to in the complaint, and that the defendant and those under whom he claimed had no title to said one-seventh, though the defendant on the 19th of March, 1868, “entered into possession of said premises, and has solely occupied them to this time.” It was also-found that the plaintiff’s assignor in an action commenced on the-17th day of May, 1878, in this court, recovered the said one-seventh of the said premises, and that the defendant put in a general answer denying all the allegations of the complaint, and that upon a trial of that issue, there was a recovery by the plaintiff’s assignor against the defendant, and a judgment entered August, 1879. Thereupon this action was commenced on the 11th of March, 1882. The court found that the plaintiff was entitled to recover twenty-two dollars and twenty-eight cents, and “ that the defendant is entitled to recover of the plaintiff his costs and disbursements in the defense of this, action, and judgment is hereby ordered accordingly.” The defendant filed the decision of the trial judge and entered such a judgment, to wit, for the plaintiff, for twenty-two dollars and twenty-eight cents damages; for the defendant’s costs and disbursements, seventy-five dollars and eighty cents.

Hpon a motion made by the plaintiff that judgment was set aside ' and the appeal of the defendant is from that order. The principal question insisted upon relates to the question as to which party is entitled to costs of this action. 1’n Ainslie v. The Mayor (1 Barb., 1 IT) it is said, that to recover in an action like the one before us, the plaintiff, to entitle himself to recover, was bound to show that he (or his assignor), had at the time the trespasses mentioned in the declaration were committed, the actual possession of the premises in question, or a title to said premises.

In the complaint before us the plaintiff alleged his assignor Joseph Henderson, was and had been “ owner in fee and entitled to the possession, use and rental value of the undivided seventh of the real estate” described, and that the defendant wrongfully entered into possession and wrongfully ousted said Henderson and claimed to own the same “ in fee absolute.” The complaint also alleged that Henderson had been for twenty years past “ owner in fee of the undivided one-seventh ” of the lands described, and that the defendant wrongfully entered into possession thereof, and that an action was brought by Henderson, and a recovery had as already stated, and that, after judgment had been entered, Henderson assigned to the plaintiff “his right, title and interest in and to the rental value and mesne profits specified therein, and also the entire cause of action against said defendant as herein specified,” etc.

In addition to the defense already stated, the defendant averred “that on the 26th day of October, 1863, one Owen Henderson and wife, for a full and valuable consideration, sold and conveyed by warranty deed the whole of the premises described in the complaint in this action to one Eugene Le vaque; that the defendant derived title to said premises by mesne conveyance from said Levaque.” According to the rule we have alluded to, laid down in Ainslie v. The Mayor (supra), it was incumbent upon the plaintiff to show title to one-seventh of the lands described. Plaintiff could not show the actual possession of one-seventh in his assignor; it was therefore incumbent to establish title, and that was averred, and consequently it was admissible to prove it. It was denied, and it was therefore incumbent upon the plaintiff to give proof thereof to sustain his allegations, as well as to overcome the allegations set up by the defendant.

Plaintiff by record evidence, or by the judgment-roll, might establish the title of her assignor. Whichever mode of proof was resorted to, it was incumbent upon her to establish title in her assignor to the one-seventh of the land. The trespass of the defendant eonld not have been established without proof of title in the assignor. (Thompson v. Bower, 60 Barb., 478.) It was incumbent upon the plaintiff to show the defendant’s tortious holding, although the measure of damages is that which would obtain in assumpsit for use and occupation. (Holmes, Admr., v. Davis, 19 N. Y., 488; Code of Civil Proc., § 1531; Van Alstine v. McCarty, 51 Barb., 326.) From what has been said, we conclude the pleadings presented a question of title to real estate, and that it was necessary to prove title, and that such title was shown, and the plaintiff therefore, upon a recovery, was entitled to costs of this action. (Kelly v. The Manhattan Beach R. Co., 81 N. Y., 233.

This case differs from Rathbone v. McConnell (21 N. Y., 466) where the plaintiff relied upon his possession of lands and the defense set up a license, and therefore no question of title was involved. Here, as in Powers v. Conroy (47 How., 85, affirmed October, 1874, in this department), the right of plaintiff’ asssignor to possession was challenged, and it became necessary not only to allege but to prove title to real estate. (See, also, Elite v. Quackenbush, 6 Hill, 538.)

But it is said by the appellant that the award of costs by the trial judge is “binding and conclusive between the parties.” We do not think so. If the costs had been in the discretion of the court the position would be tenable. But they were governed by the statute, and the judge could not thus break into or set aside the statute. It was his duty to obey it. If he inadvertently overlooked or disregarded it, we cannot for that reason disregard it. Having come to the conclusion that a question of title was presented by the pleadings and by the proofs on the trial, the statute regulates the award of costs. The question has been discussed in cases binding upon us and which have our approval. (Lanz v. Trout, 46 How., 94; approved in Black v. O'Brien, 23 Hun, 84; Sturgis v. Spofford, 58 N. Y., 103; Code, § 3228.) So much of the judgment as awarded costs to the defendant was erroneous, and it was within the discretion of the Special Term to set that part aside, or the whole thereof, and allow a new judgment to be entered in accordance with the decision of the trial court and the statute in respect to costs. That part of the order which authorized a substitution 'of the reply in this action for the one erroneously inserted in the judgment-roll was proper. The question presented is novel and somewhat involved by the direction given by the trial judge as to costs, and therefore we may properly withhold costs of this appeal.

Order affirmed, with disbursements.

Smith, P. J., and Barker, J., concurred.

Order affirmed, with disbursements only.


author: Bardin, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. ROSELLE GRAVES, Appellant.

      Court of Sessions — power of, to suspend sentence during good behavior — itma/y impose the sentence upon the re-arrest of the defendant.

    On December 30, 1879, tbe defendant, who had been indicted in the Court of Sessions of Onondaga county for an assault with a deadly weapon, withdrew a former plea of not guilty and entered one of guilty. The court then suspended sentence during the defendant’s good behavior and he was allowed to leave the court. On November 23, 1881, he was indicted for rape. On February 21, 1883, he was arrested and taken before the same court, over which another judge then presided, and sentence being moved for upon the indictment found against him in 1879, he was sentenced to the penitentiary for two years and six months.

      Meld,, that the court had power to impose this sentence, and that an application for his discharge upon a habeas empus was properly denied.
    Appeal by tbe defendant from an order made by Mr. Justice Vann, refusing to discharge him from imprisonment, and remanding him to the Onondaga County Penitentiary.
    On the 10th day of December, 1879, in the Onondaga County Court of Sessions, the defendant was indicted for the crime of assault with a deadly weapon, and upon being arraigned on the 10th day of December, 1871, he pleaded not guilty, and on the thirtieth day of the same month, in the same term,' he withdrew his plea of not guilty and entered one of guilty; the court was then presided over by Judge Rei&el, and sentence was suspended during good behavior and the prisoner was allowed to depart from the court. On the 23d day of November, 1881, he was indicted by the grand jury for the crime of rape. On the 21st day of February, 1883, the prisoner having been arrested, was taken before ■a term of said, court, at which Judge Northrup, county judge, •presided, and sentence was moved by the district attorney on the indictment'found in 1879, and the appellant was then and there sentenced “ to imprisonment in the Onondaga County Penitentiary for the period of two years and six months.”
    On the 20th of March, 1883, his counsel sued out a writ of habeas corpus, alleging the imprisonment under this sentence to be illegal, and Justice Vann dismissed the writ after hearing arguments and remanded the prisoner.

      M. Z. Haven, for the appellant.

      H. Hoyt, district attorney, for the respondent.
   Bardin, J.:

Upon this appeal we are called upon to inquire whether the Court •of Sessions of Onondaga county, at the time the sentence was pronounced upon the defendant, had lost jurisdiction of the case ■or the prisoner, so that it could not legally pronounce sentence and ■order judgment. The prisoner had pleaded guilty to the indictment, his plea had been regularly entered and no sentence had been given by the court upon such conviction. No conditional or •qualified sentence had been given, and the defendant at all times ■after his plea remained liable to the farther action of the court. Power remained in the Court of Sessions to give sentence. It had in no manner deprived itself of such power or jurisdiction of the •subject-matter or person of the accused. Such power .to pronounce sentence was properly exercised, and the'judgment entered thereon is regular and binding upon the accused. It does not lie in his -mouth to say that he deserved and ought to have received sentence •earlier, as he did not demand it and no injury by the delay to him is •shown, or inferable from the record now before us.

We regard the essential question involved in this case so firmly resolved against the appellant, by the authorities, that we do not deem it useful to open the same for fresh investigation and adjudication. (Thatcher’s Criminal Cases, 269 ; Commonwealth v. Dowdican's Bail, 115 Mass., 136; People v. Mueller [Cook Co. C.], opinion of Bonnen, J., reported in Crim. Law Mag. [Sept. 1883], p. 725 ; 1 Bishop on Crina. Law, § 880; Weaver v. The State, 11 Post [Mich.], 296; Reg. v. Ryan, 7 Cox’s Cr. Cas., 109 ; Pegalow v. The State, 20 Wis., 61; 1 City Hall Rep., 4, 7, 21, 28, 41.)

The Court of Sessions properly exercised its power in the premises, and the habeas corpus was properly dismissed and the prisoner remanded, and we must affirm the order made.

Smith, P. J., and Barker, J., concurred.

Order affirmed.


author: Hardin, J.

text:
    CORNELIA E. ROSA, as Executrix, etc., of WILLIAM V. V. ROSA, Deceased, Respondent, v. WILLIAM A. JENKINS and Others, Appellants, Impleaded, etc.

      Costs — discretion of the court as to, in equitable actions not reviewable on motion — the clerk must follow the dscision of tne court as to — additional allowance in foreclosure cases limited to two and one-half per cent — Code of Civil Procedure, sec. 3253.
    The discretion exercised by a court in awarding costs in an equitable action cannot be reviewed upon a motion, the remedy of the party aggrieved is by an exception to the finding and an appeal from the judgment Woodford v. Bucklin (14 Hun, 444) followed.
    Where, upon the trial by the court of an action brought to foreclose a mortgage, the complaint is directed to be dismissed as to some of the defendants, “with twenty-five dollars costs,” this means that these costs are to be paid by the plaintiff, and the clerk has no authority to enter a judgment directing them to be paid out of the proceeds of the sale.
    Section 3253 of the Code of Civil Procedure limits the amount of the extra allowance which may be made in an action brought to foreclose a mortgage to two and one-half per cent upon the sum due, or claimed to be due, upon the mortgage, not exceeding in the aggregate the sum of $200. The language of the section differs from that of section 309 of the old Code, as amended by chapter 431 of 1876.

      Boclces y Hathovn (17 Hun, 87) distinguished and not followed.
    Appeal by certain of the defendants, who were impleaded with numerous others, from a judgment entered in Jefferson county, in this action brought to foreclose a mortgage upon real estate.
    The findings made after a trial at the Special Term stated that there was due upon the mortgage the sum of $2,478.58, and that the plaintiff was entitled to “ judgment of foreclosure and sale, and that an extra allowance of costs of five per cent” be made to him; it also directed that the complaint as to Fanny M. Clark and others, administrators of John B. Clark, be “and the same is hereby dismissed with twenty-five dollars costs,” and ordered that a judgment be entered accordingly. The appeal came up upon exceptions to the findings, no case containing the evidence being presented.

      J. W. Fenton, for the appellants.

      Mullin da Griffin, for the respondents.
   Hardin, J.

According to our decision in Woodford v. Budklin (14 Hun, 444), the discretion exercised in an equity action as to costs cannot be reviewed upon a motion, and must be challenged by an exception to the findings and an appeal from the judgment. Therefore the appellants are entitled to review the exercise of discretion in respect to the extra allowance of costs, and the award of costs of twenty-five dollars to defendant Clark and others, as administrators of John B. Clark. First. As to the award of costs to the defendant Clark, of twenty-five dollars, the finding is silent as to how these costs shall be paid. They are therefore presumably payable by .the plaintiff, whose complaint as to those defendants is ordered dismissed. In the absence of a case showing what took place at the trial, we have not the proper data to enable us to say that the discretion in awarding the costs was improperly exercised. We, therefore, must assume the court had proper ground for making the award of those costs. (Morrison v. Agate, 20 Hun, 23; Noyes v. Children's Aid Society, 3 Abb. N. C., 37.) Second. In the judgment presented to us we see no evidence that it was inspected, settled and directed by the court. We therefore assume that the decision of the trial term was filed, and that the judgment was entered ex parte by the clerk, and that there is no other warrant for it than such as is given by the findings of fact and law made by the trial court. But the judgment as entered contains the following, viz.: “ It is also further ordered and adjudged that plaintiff’s complaint herein as to the defendants Fannie M. Clark,” * * * be and the same is hereby dismissed, with twenty-five dollars costs and disbursements, payable out of proceeds of sale, to such defendants’ attorneys.” We find no warrant for the words “payable out of proceeds of sale” in the decision made by'the trial judge. Doubtless, upon a motion, the judgment might have been made to conform to the decision, but we have power to strike out the provision inserted unwarrantably in the judgment, and should do so. That will leave the costs payable by the plaintiff, and save the property from being charged therewith.

Third. As to the allowance of costs of five per cent. First. We think section 3253 of the Code of Civil Procedure limits the amount of an extra allowance in mortgage foreclosure cases to the sum of “ two and one-half per cent upon the sum due or claimed to be due upon the mortgage,” and that the aggregate cannot exceed the sum of $200. The language of that section differs from the language of section 309, as amended by chapter 431 of the Laws of 1876. The case of Bockes v. Hathorn (17 Hun, 87), was decided while the amendment of 1876 was in force. We think the language of section 3253 restricts the allowance in mortgage foreclosure cases to two and one-half per cent, and that the effect of the language of section 3253 is to lay down substantially the rule adopted by the Court of Appeals in Hunt v. Chapman (62 N. Y., 338). It follows, therefore, that the exception to the finding of law allowing five per cent is well taken. . ,

The judgment should be modified (1) by striking therefrom the words payable out of the proceeds of sale to such defendants’ attorneys,” as they appear after the words dismissing the plaintiff’s complaint, with twenty-five dollars costs and disbursements, and amended so as to award twenty-five dollars costs and disbursements against the plaintiff; and (2) by striking therefrom two and a-half per cent upon the amount found due upon the mortgage, and that as the same is so modified, the same should be affirmed, with costs to the appellants, payable out of the surplus arising upon the sale of the mortgaged premises, if sufficient, and if the same be insufficient in whole or in part, then by the respondent.

Smith, P. J., and Barker, J., concurred.

Order modified as stated in opinion, and as modified, affirmed, with costs.


text:
    WILLIAM H. SMITH and Others, Respondents, v. THOMAS KELLEY, Appellant, Impleaded, etc.

      Receiver of rents and profits — when appointed in an action to foreclose a contract for the sale of land.

    In an action, brought by a vendor against his vendees, and a person who has purchased from the latter their interest in one-half of the premises, to foreclose the original contract for the sale of the land upon the failure of the vendees to pay the amount due, the court may, in its discretion, appoint a receiver of the rents and profits during the pendency of the action, where it appears that the whole of the premises are an inadequate security for the amount remaining due upon the contract, and where it appears that the premises are chiefly valuable for use during the continuance of the oil business, and that they are rapidly depreciating in value by reason of the fact that the oil business is rapidly decreasing at that point.
    Appeal from an order, made at the Erie Special Term, appointing a receiver.
    The action was brought for a foreclosure of a contract for the sale and purchase of land against the original vendees Canfield and Pemberton, and against Thomas Kelley, who purchased from them their interest in one-half of the premises and made certain improvements thereon. Kelley was the only defendant who answered, setting up the facts of his purchase from the original vendees and his improvements, and asking that his part of the property should not be resorted to except, in the case, that the proceeds of the sale of the other part should be found insufficient to pay the plaintiffs’ debt.
    Affidavits were produced at the Special Term tending to .establish that the whole premises are inadequate as security for the payment of the amount remaining due upon the original contract of sale, that the original vendees are insolvent and that the premises are chiefly valuable for use during the continuance of the oil business, and are rapidly depreciating in value by reason of the fact that the oil business at the said point is rapidly decreasing.

      I). II. Bolles db Son, for the appellant.

      Gary db Bumsey, for the respondents.
   Hardin, J.:

Erom the papers used at the Special Term it appears that the legal title to the premises in question was at the time of making the contract of sale, and has ever since remained, in the plaintiffs. Seven hundred and fifty dollars and interest became due on the contract on the 24th of September, 1882, and has not been paid. At the time of the commencement of this action the plaintiffs were entitled to the possession of the premises by reason of that default, and to maintain ejectment therefor, and the defendants were not entitled to notice to quit. (Hotaling v. Hotaling, 47 Barb., 168 ; Jackson v. Miller, 7 Cow., 747; Pierce v. Tuttle, 53 Barb., 155.) If this action were to foreclose a mortgage held by the plaintiffs upon the premises, it is clear that the facts shown upon the motion presented a proper case for the appointment of a receiver. (Astor v. Turner, 2 Barb., 444; Mutual Life Ins. Co. v. Spicer, 12 Hun, 117; Howell v. Ripley, 10 Paige, 43 ; Quincy v Cheeseman, 4 Sandf., 405 ; Wall Street Fire Ins. Co. v. Loud, 20 How. Pr., 95.) There was no offer at the Special Term or upon the argument before us by Kelley to give security for the rents and profits in case there should be a deficiency in the sale of the premises under the decree, nor to pay into court or to the plaintiffs the amount which Kelley undertook to and agreed to pay for a portion of the premises.

The appellant does not, therefore, bring his case within the excejptions to the general rule in respect to the appointment of a receiver, where the mortgaged premises are inadequate and the party liable to pay the debt is insolvent. (The Sea Ins. Co. v. Stebbins, 8 Paige, 465.) The same case is authority for saying that Kelley was a proper and necessary party defendant. But it is insisted that the equities of Kelley are superior to those of the plaintiff, and that he has a right to the possession of the premises and to the rents and profits of the same during the pendency of this action, because he purchased a portion of the premises of the original vendees and made certain expenditures and improvements thereupon.

We think, however, that the plaintiffs holding the legal title to the premises hav,e the superior equity in the rents and profits of the premises. Whatever interest or rights the defendant Kelley has in the premises were acquired of the vendees, and are subsequent to and subordinate to the superior and legal title and equity of the plaintiffs. The plaintiffs have an equity which they have in no manner forfeited. They are seeking to foreclose a land contract and have the premises sold- and the contract debt paid, and until the debt is paid they should be permitted to have the rents and profits placed in the hands of a receiver to await the event of the sale. If a deficiency arises out of the sale, the rents and profits will then be available to discharge the deficiency. If, on the other hand, no deficiency arises at the sale, the defendant Kelley will be entitled to a return of the rents and profits accruing from that portion of the premises to which he is entitled to possession as between himself and his vendors, Canfield and Pemberton. ■

In the case in hand the plaintiffs right to the rents and profits arises from the circumstance that they have the title to the premises, as well as out of the equitable consideration arising from the personal relation of the parties to the property. The application for the appointment of a receiver was addressed to the equitable discretion of the court. That discretion has been exercised in favor of the sequestration of the rent and profits for the better protection of the plaintiffs. "We are not prepared to say that discretion was abused, nor that it was not exercised in accordance with the precedents. The case of Syracuse City Bank v. Tallman (31 Barb., 201) differs from the one in hand. There a third person took, for a valuable consideration, an assignment of the rents of the mortgaged premises before a default had occurred in the payment of the mortgage debt, and before there was any reason to anticipate that the mortgagor would become insolvent. And it was held that the equity of the assignee was superior to that of the mortgagee, and it was held that the assignee was entitled to hold the rent that accrued before the commencement of the suit. Here the rights of Kelley were taken subject to and with the full actual knowledge of the rights of the plaintiffs. His right to possession arises under an assignment of an interest in the contract which the plaintiffs are seeking to foreclose. We think the Special Term violated no rule of law or equity in appointing a receiver upon the case made.

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

Smith, P. J., and Barker, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Hardin, P. J.:

text:
    MILTON SMITH and MARY D. OSBORNE, as Administrators, etc., of THOMAS A. OSBORNE, Deceased, Respondents, v. CORNELIA A. KIBBE, Appellant.

      Joint accommodation malcer — effect of a judgment recovered against him alone — it is not affected by his death.

    October 27, 1874, Lucinda Bond and one Osborne, for her accommodation, executed a joint promissory note, which was subsequently purchased from Mrs. Bond by one Wilson with knowledge of the fact that Osborne was an accommodation maker. Thereafter Wilson brought an action on the note against Osborne alone and recovered a judgment against him thereon on May 18, 1876. Osborne died April 21, 1877, and thereafter the judgment was assigned by Wilson to the defendant.
    In this action, brought by Osborne’s administrators to have the judgment vacated • and the estate released from all liability therefrom:

      Reid, that the entry of the judgment severed the joint liability of the makers of the note, and that thereafter the judgment-debtor alone was liable therefor.
    That the death of the debtor did not relieve his. estate from liability upon the judgment and that the.action could not be maintained.
    Appeal from a judgment in favor of the plaintiff, entered in Chautauqua county upon the report of a referee.
    The action was brought to have the estate of the plaintiffs’ intestate declared absolved from all liability upon a note and a judgment entered upon it, which was recovered against the deceased in his lifetime, to wit, on the 18th day of May, 1876, in this court for $306.72. The note, which was a joint one, was made on the 27th of October, 1874, by Lucinda Bond and Thomas A. Osborne,, the plaintiffs’ intestate, who was an acconfmodation maker. Mrs. Bond sold the note to George Wilson, who recovered a judgment thereon against Thomas A. Osborne alone. Wilson knew when he took the note that Osborne was an accommodation maker. Osborne died intestate on the 21st of April, 1877. After that time Wilson assigned the judgment to the defendant, who claims that the judgment is valid and a lien upon the property of the deceased.

      H. C. Kingsbury, for the appellant.

      A. A. Van Dusen, for the respondeos.
   Hardin, P. J.:

When the judgment was recovered against Osborne alone the creditor elected to treat him as the several debtor. Osborne made no defense. The judgment entered against, him upon his joint note was valid as to him, though it may have been irregular and might have been set aside for such irregularity if a motion had been promptly made. (Orleans Co. National Bank v. Spencer, 19 Hun, 569; Waggoner v. Walrath, 24 id., 443; affirmed, 92 N. Y., 639.) Entry of the judgment severed the joint liability of the makers of the note and the judgment debtor became liable alone upon the judgment. (Robertson v. Smith, 18 Johns., 481.) As to the creditor the severance was perfect, and by his consent, and the debtor acquiesced in the same for nearly a year. (Suydam v. Barber, 18 N. Y., 468.) The merger took place by operation of law at the instance, and by the act of the creditor, and the judgment would have been a bar to an action against the other joint maker of the note. (Suydam v. Barber, supra, 470; Peters v. Sanford, 1 Denio, 224; Olmstead v. Webster, 4 Seld., 413; Candee v. Smith, Exr., 18 Weekly Dig., 1.) As the judgment was-prior to the Code of Civil Procedure, section 1278 does not apply. The creditor after taking such a judgment could not prosecute the other joint debtor. Defendant, by the purchase of the judgment recovered by Wilson, became the owner of a valid claim or debt against Osborne, to which he had for nearly a year in his lifetime omitted to make any defense or to in any manner'question. Plaintiffs here ask to have the doctrine of Risley v. Brown (67 N. Y., 160); Hauck v. Craighead (Id., 433); United States v. Price (9 How. [H. S.], 83), applied to this case.

In all of those cases the liability of the surety was joint at the time of his death, and it was held his estate was discharged. Here the liability was severed, it was the deceased’s sole liability that was established by the judgment, and his promise to pay the judgment which the law implies, was a several promise. In Johnson v. Harney (84 N. Y., 366), the court expressed its indisposition to extend the'rule beyond the cases quoted, and held that the death of a surety did not relieve his estate from a liability to contribute to his co-surety.

To hold that Osborne’s death, after a separate judgment against him, discharged his liability, would be to advance one step beyond any case to which our, attention has been directed. (Richardson v. Draper, 87 N. Y., 346.) Of course, as this arose before the Code of Civil Procedure, section 758 has no application to the question before us.

We think the referee erred in holding as a matter of law that the plaintiffs were entitled to have the judgment held by defendant against their intestate “ discharged and the lien and obligation of said judgment cancelled.”

We must reverse.

Barker and Dwight, JJ., concurred.

Judgment reversed and a new trial ordered before another referee, with costs to abide the event.


text:
    SARAH ANN WILLIAMS, as Administratrix, etc., of GIDEON D. WILLIAMS, Deceased, Appellant, v. THE SYRACUSE IRON WORKS, Respondent.

      Contributory negligence — when a question for a jury — violation by a/n employe of a rule of his employer — when it is not contributory negligence as a matter of law.

    The plaintiff's intestate, who was employed as an engineer in the defendant’s rolling mill, while sitting, smoking in a door-way fronting upon the canal, was struck and killed by the door falling upon him from above by reason of the breaking of the ropes whicli sustained it. The plaintiff sought to recover the damages she had sustained by his death upon the ground that the defendant negligently sustained the door, by imperfect ropes, in an improper manner. There was evidence tending to show that the deceased left the engine, of which he was in charge and went some eighty feet to the door-way for the purpose of obtaining fresh air, although he could have obtained open, cool air at points nearer to his engine. It appeared that the rules of the defendant declared that “ no smoking during working hours ” would be allowed, and that the deceased had been instructed “ not to leave his engine during working hours.” The evidence as to whether or not a whistle, which was the signal for the deceased to take charge of the engine, had been blown before or after he went to the door-way, and as to the defendant’s knowledge of and acquiescence in a custom of its engineers to leave their engines during working hours to seek cool and fresh air, was conflicting:

      Eeld, that the question, as to whether or not the deceased had .violated the r,ule against leaving his engine during working hours by going to the door-way, should have been submitted to the jury.
    That the fact that he was smoking at the time of the fall of the door did not prevent a recovery, because it was a question of fact whether or not he knew of the rule, forbidding him so to do, and whether or not the smoking occurred before or after the whistle sounded, and because in any event it was not the ■ immediate or proximate cause of the accident, and the court could not under the circumstance of the case declare it as a matter of law to be contributory negligence.
    Appeal from a judgment in Onondaga county, entered upon a nonsuit granted at the Onondaga Circuit, and also an appeal from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      William Hottmgkam, for the appellant.

      William G. Tracy, for the respondent.
   Hardin, J.:

June 22, 1882, the intestate was in the employ of defendant, as engineer in a rolling mill, and between the hours of six p. m. and 7 p. m.,- sustained injuries from which he died.

Plaintiff, as his representative, brings this action to recover for the alleged negligence of the defendant, in having improperly left a door of some 350 pounds weight insecurely sustained by imperfect ropes passing over pulleys, which broke and allowed the door to fall upon the body of the deceased and inflicted injuries from which he died. Whether then defendant was guilty of negligence need not be discussed, as there was evidence upon that branch of the case which the learned trial judge held, as we think properly, presented questions for the jury. Plaintiff’s counsel asked to go to the jury upon the question as to whether the plaintiff’s intestate was guilty of' contributory negligence, and upon other questions which may be referred to hereafter. Of course it was a part of the plaintiff’s case to be shown that the intestate was free from contributory negligence, and it was her privilege to show that by direct and positive evidence, or by facts and circumstances which would warrant a jury in finding that the intestate was free from contributory negligence. (Reynolds v. N. Y. C. R. R., 58 N. Y., 248; Hart v. Hudson River Bridge Co., 84 id., 56; Beisegel v. N. Y. C. R. R. Co., 14 Abb. [N. S.], 29; Tolman v. Syracuse and B. R. R. Co., MS. opinion of tins Term.)

Respondent’s counsel correctly insists, that where the facts constituting contributory negligence are undisputed, the question should be decided by the court as a matter of law and not left to the jury as a question of fact. (Cordell v. Railroad Co., 75 N. Y., 330.) So, too, any degree of contributory negligence which “immediately conduced to the injury is a complete defense.” (Bunn v. Delaware, L. and W., 6 Hun., 303; Cray v. Second Ave. R. R. Co., 65 N. Y., 561; Keese v. New York and H. R. R. Co., 67 Barb., 205.)

Respondent gave evidence that one of the written rules of the company, posted upon the premises to govern the workmen, declared that “no smoking during working hours ” will be allowed in the premises. It also gave evidence by Barker, an assistant and superintendent, that he had given verbal instructions to the deceased “not to leave his engine during working hours.” It also appeared from the evidence that deceased’s trick began at six p. m., and that about that hour he entered the premises in pursuance of his employment as a servant of defendant, and that it was his duty to take charge of his engine, and to keep in charge of it until six or seven in the morning. It also appeared that there was some evidence tending to show that there was a custom to blow a water whistle, as a signal for night hands to begin work and for each engine'to startup. The witness James Sneck, says the whistle had blown for his engine' to start up, and he adds, that he would not swear positively whether it had blown for deceased’s engine, and then he follows that testimony by saying that lie-heard the whistle of deceased’s engine “ blow to start up just before he started, and found him under the door,” and that was the first time he had noticed the whistle' blown to start up that night, and that the witness went right off after the whistle blew, “ may be five or six minutes, may be ten, and found him lying under this door.” With this evidence in the case we are inclined to the opinion that it was a question of fact for the jury to determine, whether the deceased had commenced to operate his engine, in the sense referred. to in the instructions about leaving his engine. If he was warranted, by the custom to sound a whistle as a signal tostará his engine, to wait for the whistle, and if the engine had not been started and his duty to be at the engine had not begun, then the case stands free of the questions made in respect to the. supposed violation of duty, or disregard of the instructions. In that aspect of the case there was other evidence tending to show that the engine had been started and that the deceased left it to visit the door where he received the injuries after his engine had been started and after he had begun the active charge of the engine. However, thej evidence would have warranted the court in leaving it to the jury to say upon the conflicting evidence what was the fact.

(1.) If the engine had not been started then the rule or instructions relied upon would not apply and the deceased would not be liable to the imputation of a disregard of the instructions. (2.) But suppose the jury had been allowed to find, and had found, that the engine had been started, then another and we think pertinent question for the jury would have been whether by being at the door fronting the canal where fresh air could be obtained, a distance of some eighty feet from the engine, the deceased could be said to have “ left his engine during working hours.”

Upon that question, and upon the construction to be given to the instructions, the custom of the engineers to seek cool and fresh air with the knowledge and apparent acquiescence of their superiors “during working hours,” was cogent evidence for the consideration of the jury. We do* not overlook the evidence tending to show that engineers sometimes did and could have obtained open, cool air at points nearer to the engine than the' place where the deceased was sitting when he received his injuries.

However, we are off the opinion that all those considerations should have been weighed by the jury in determining whether or not the deceased, at the time he received the injuries which resulted in his death, was in violation of the instructions he had received or whether the instructions (by custom known to the superintendent, and his assistants), had been so far modified as to allow of reasonable efforts to obtain open and fresh air, and whether or not the conduct of the deceased was in disregard of positive and absolute instructions forbidding him from visiting the door which fell upon him.

Practices of the employes under the instructions as to remaining near or in close proximity to the engine during working hours, with the knowledge of the defendant, were entitled to much ‘ consideration in giving construction to the rule invoked by the defendant as evidence of deceased’s contributory negligence. It cannot be said as a matter of law that the deceased had so violated his duty in the premises, and by the act of sitting in the open door so contributed to the negligent act of the defendant which caused the injury, as to bar a recovery. (Wasmer v. D., L. and W. R. R. Co., 80 N. Y., 217.)

Therefore, we say, that the question made at the trial, as to “whether or not the order which was given was violated with reference to leaving the engine during working hours,” ought, as requested, to have been submitted as a question of fact to the jury. And the exception taken to the refusal to submit that branch of •the case to the jury presents an error requiring us to grant a new trial. (Sprong v. The Boston and A. R. R., 58 N. Y., 60, 61.) The fact that the deceased had been smoking prior to the fall, or •even that he was smoking at the time of the fall of the door, did not authorize the court to say as a matter of law that he was guilty •of contributory negligence.

(1.) It was a question of fact whether or not he’ knew of the rule disallowing employes the privilege of smoking on the premises “during working hours.” (2.) Whether or not the smoking •occurred after the water whistle sounded for .the deceased to begin his working hours. (3.) Smoking was not the immediate or proximate cause of the accident, and under the circumstances disclosed by the evidence, the court was not at liberty to say, as a matter of law, that it was contributory negligence producing or inducing in whole or in part the fall of the door which caused the injury.

The penalty prescribed by the regulations posted for disobedience of the same “ was prompt discharge from the employ of the company.” To add to that penalty a forfeiture of all right to recover for defendant’s negligence, in leaving dangerous and unsafe places upon the premises, would be visiting a greater hardship than was contemplated by the author of the regulations, or than the smoker might reasonably be required to submit to, in addition to the prescribed punishment. (Platz v. The City of Cohoes, 89 N. Y., 222.) In that case Danforth, J., says : “ It may indeed be said that if tbe plaintiff bad obeyed tbe law, remained at borne and not traveled, tire accident would not bave happened. That is not enough. * * * It must appear that the disobedience contributed to tbe accident * *

It may be entirely reasonable to prohibit smoking in such establishments as tbe defendants, during working hours, and to follow tbe disobedience of tbe regulations to that effect with a “ prompt discharge,” but to bold, as a matter of law, that smoking under tbe circumstances disclosed, forfeited the right of tbe intestate, or of bis representative to recover, would be unreasonable and a greater penalty that tbe most ardent opponent of smoking could reasonably maintain. It is said smoking brings its' own punishments ; they may be numerous, but a forfeiture of a right of action under tbe circumstances of this case, is not one of them. (Carroll v. Staten Island R. R. Co., 58 N. Y., 126; Ford v. Fitchburg R. R. Co., 110 Mass., 240; Baker v. City of Portland, 58 Maine,. 199.) Our views thus expressed lead ns to reverse.

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

Smith, P. J\, and BaRKEe, J., concurred.

Judgment and order reversed, and new trial ordered, with costs to abide tbe event.

       Reported, post p. 397.