text:
    Howard A. Sperry, Resp’t, v. Theodore Hellman et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    1. Undertaking—Arrest—Liability op sureties.
    An undertaking given pursuant to § 559 of the Code on the arrest of a defendant is not intended to secure to such defendant the general costs of the action and counsel fees incurred in defense of that action, but only the additional costs and additional expenses and damage to which he may be subjected by reason of his arrest. Hence, in an action on such an undertaking, it is error to refuse to charge that the plaintiff could not recover the costs awarded to him and a co-defendant, not arrested, jointly in the action in which he was arrested.
    2. Same.
    In the action in which plaintiff was arrested a judgment was entered by default, which was opened on the application of defendants as sureties so far as to allow them to litigate the issues raised by the pleadings. Held, that such judgment ended "plaintiff’s liability to arrest, and the _ sureties were not liable for counsel fees and other expenses subsequently incurred by him.
    3. Trial—Charge—Direction to disregard evidence.
    It is the right of a party to have the jury directed to disregard evidence which is wholly irrelevant and incompetent, and which has been admitted without objection, and a refusal to so direct constitutes error for which a, reversal must be ordered.
    Appeal from judgment of the general term of the city court, affirming a judgment for plaintiff in an action to recover against sureties upon an undertaking given pursuant to § 559 of the Code of Civil Procedure, to secure an order of arrest of plaintiff in an action in the supreme court.

      Howard A. Sperry, for resp’t; Eugene Seligman, for app’lts.
   Bischoff, J.

In April, 1884, the Metropolitan Concert Company (Limited), instituted an action in the supreme court to recover damages for trespass against Howard A. Sperry and Robert W. Reid, and an order for the arrest of both defendants was issued therein; but the order was executed as to Sperry, who alone was arrested. On the application for the order of arrest, the usual undertaking required by § 559 of the Code of Civil Procedure was given, Theodore Heilman and Emil Carlsbach becoming sureties, the limit of their liability being $400.

Pursuant to the terms of that undertaking the sureties jointly and severally agreed, “that if the defendants in the action do recover judgment therein, or if it is finally decided that the plaintiff is not entitled to the order of arrest, the plaintiff in said action will pay all costs which may be awarded to the defendants and all damages which they may sustain by reason of the arrest in said action and not exceeding the sum of four hundred dollars.”

Sperry and Reid having appeared and defended, the action was reached for trial on March 31, 1885, on which day because of the plaintiff’s default it was dismissed and on April 15,1885, judgment for dismissal of the complaint with $273.87 costs was duly entered in favor of the defendants, Sperry and Reid. In November, 1885, Sperry brought an action in the city court against the sureties Heilman and Carlsbach to recover upon their undertaking above mentioned; and the sureties thereupon applied to the supreme court to have the default of the Metropolitan Concert Co. (Limited), opened and the judgment in favor of Sperry and Reid vacated and set aside. This application, however, was only granted to the extent of permitting the sureties to try the issues raised by the pleadings in the action against Sperry and Reid. Such a trial was had and resulted in favor of the Metropolitan Concert Co. (Limited); but on appeal to the general term of the supreme court and court of appeals the proceedings of the trial court were reversed and judgment absolute was rendered in favor of Sperry and Reid.

The action in the city court having in the meanwhile remained in abeyance was reached for trial, which terminated in a judgment in favor of the plaintiff therein, entered upon the verdict of a jury. From this judgment the defendants appealed to the general term of the city court where, upon plaintiff’s filing a stipulation to that effect, it was reduced and as reduced affirmed. The reduction of the judgment was imposed upon the plaintiff' upon the ground that the recovery was excessive in so far as the liability of the defendants was not limited upon the trial to the amount of their undertaking, and that if such limitation had been made the recovery by plaintiff would not have exceeded the amount to which the judgment was reduced, after allowing the defendants the same offsets which were allowed in the trial court.

From the judgment of affirmance the defendants have appealed to this court, and it is apparent that the grounds urged for reversal are in no manner affected by the action of the general term of the court below, in requiring plaintiff to waive so much of the recovery as was held to be excessive.

Appellants assign as error that the trial court permitted a recovery by the plaintiff of the costs recovered against the Metropolitan Concert Co. (Limited), although such costs by the judgment therefor had been awarded to the plaintiff in this action, and his co-defendant Reid in the supreme court action, jointly, which ruling was duly objected to and an exception taken; and further that the trial justice, though specifically requested to do so, refused to instruct the jury that they should not in estimating the damages to which plaintiff was subjected by reason of the arrest consider any expense incurred by him for counsel fees subsequent to the time it was finally determined that the plaintiff in the supreme court action was not entitled to the order of arrest. This refusal was also duly excepted to.

We have not overlooked the additional grounds urged by appellants for the reversal of the judgment, but as we are of the opinion that those specifically noticed by us are sufficient to demand a retrial of the action, it is unnecessary to discuss others, which may not again occur.

It is plainly apparent from the record before us that the trial of this action proceeded upon the mistaken theory that an undertaking given pursuant to the requirements of § 559 of the Code of Civil Procedure upon the arrest of a defendant is intended to secure to such defendant, if it be finally decided that the plaintiff was not entitled to the order of arrest, the general costs of the action and the counsel fees incurred in the defense of that action, together with such other damages as defendant may have sustained and which may have accrued directly from the arrest. That such is not a correct interpretation of the section mentioned has been lately determined by the general term of this court in Sutorius v. North, the opinion wherein was filed March 2, 1891. 36 N. Y. State Rep., 873.

In the case cited it was determined that the true intention of the Code of Civil Procedure is to secure indemnity to an arrested defendant only to the extent to which he may have been inconvenienced and may have suffered expenses over defendants not arrested.

Ordinarily, a defendant has no redress for the expense to which he may have been subjected in defending against the plaintiff’s alleged cause of action, and the taxable costs represent the limit of his indemnity in the event of plaintiff’s defeat, and as no action for damages for false arrest would lie if the arrest was had upon legal process, Marks v. Townsend, 97 N. Y., 590, the undertaking required by § 559 of the Code was intended to secure to the defendant the additional costs and the additional expense and damage to which he might be subjected by reason of his arrest. That this is so is apparent from the provisions of § 3268 of the Code of Civil Procedure, pursuant to which a non-resident plaintiff may be required to give security for costs. If a non-resident plaintiff has given such security for costs, and upon causing the arrest of the defendant has given the further undertaking required by § 559 of the Code, and the action results in a judgment for dismissal of the complaint with the costs of the action to the defendant, could it be contended that the plaintiff’s payment of the costs alone would cancel the undertaking given to secure their payment, and at the same time entitle the plaintiff to a credit of an equal amount upon the undertaking to secure the order of arrest? If so, should both undertakings have been in equal amounts, it must be conceded that upon the payment of one, the plaintiff can discharge two separate and distinct obligations. If-it be admitted that he cannot do this, then it inevitably follows that the costs secured by the undertaking upon the order of arrest are not the costs intended to be secured by the undertaking required of a non-resident plaintiff. This illustration should suffice to prove that our determination in Sutorias v. North Was correct, but if another illustration is required, it may be found in the case at bar.

The judgment for costs recovered against the Metropolitan Concert Company (Limited), in the supreme court action was for the general costs of that action and was properly awarded to both defendants therein, and now exists in them as a joint demand. Eeid was not arrested and is not a proper party to an action by Sperry to recover damages sustained by the latter by reason of his arrest, and he cannot, without joining Eeid as plaintiff, recover the costs awarded to him and Eeid because the right to such costs constitutes a joint demand, the interest of each of the obligees extending to every part of the demand. Wharton on Contracts, vol. 2, § 814; Dob v. Halsey, 16 Johns., 34. If, however, it be held that the costs intended to be secured by the undertaking given upon the arrest of a defendant are for the additional costs which accrued from the arrest, such costs would have been awarded to the arrested defendant only, and he alone would be entitled to the payment thereof.

Again, if the plaintiff causing the arrest of the defendant pay the costs of the action recovered against him, and such costs should exceed in amount the sum named in the undertaking riven to secure the order of arrest, and the undertaking should be íeld to apply to the general costs of the action, the defendant would be without redress for the damage sustained by him by reason of the arrest, since the sureties are not liable for more than the aggregate sum of costs and damages not exceeding the sum specified in the undertaking, and no action lies against the plaintiff jausing the arrest, though it be decided that the arrest was vrongful.

We are, therefore, of the opinion, that the defendant’s request that the court instruct the jury that plaintiff could not in this action recover the costs which had been awarded to him and his co-defendant in the supreme court action jointly, was proper, and that the refusal so to charge was error.

Defendant’s request that the court direct the jury to disallow as a part of plaintiff’s damage such expense for counsel fees as the plaintiff had incurred subsequent to the judgment of April 15r 1885, dismissing the complaint in the action of the Metropolitan Concert Company (Limited) v. Sperry et al., was also proper and should have been granted, and the exception to the refusal was well taken.

Without now passing upon the effect remaining of that judgment, after it had been so far vacated as to allow the sureties upon the undertaking to secure the order of arrest to try the issues upon' the pleadings in that action, it is sufficient for the purposes of this appeal that the judgment was relied upon by the plaintiff in this action and received by the court as a final determination that the plaintiff therein named was not entitled to the order of arrest issued in the action in which such judgment was rendered. Assuming that the judgment had the effect claimed for it, the determination thereby made was reciprocal and conclusive upon both parties to this action, and no damage could thereafter have accrued to the plaintiff herein by reason of his arrest in that action. The judgment ended his liability to arrest, and the expenses for counsel fees incurred by plaintiff subsequent to this judgment in the trial of the issues prosecuted by the sureties and the subsequent appeals to the general term of the supreme court and to the court of appeals were not rendered necessary to enable the plaintiff herein to extricate himseli from his arrest or liability to arrest, but to defend himself againsi a recovery by The Metropolitan Concert Co. (Limited), in the action commenced by it, and such expense is not a part of the damage for which indemnity was intended by the undertaking upon which this action was brought. Counsel fees are of course recoverable as a part of such damage, but only such proportior of the counsel fees as were reasonably necessary to defend agains the arrest or to cause the order of arrest to be set aside, and suet could obviously not have been the object of retaining counse after it had already been determined that the plaintiff was n< longer liable to arrest.

We note plaintiff’s contention that defendants’ exceptions to th< refusal of the court to instruct the jury to disregard the evidenci concerning expenses incurred subsequent to the judgment of Apri 15, 1885, are without force because defendants permitted sue! evidence to be received without objection and failed to make i motion to have it stricken out.

The point is not well taken and the case relied upon by plain! iff’s counsel, Ganson v. Tifft, 71 N. Y., 48, 55, does not suppoi it. An examination of the opinion in that case shows that th refusal by the trial court to direct the jury to disregard certai: evidence, which was received without objection and concernin which no motion was made to have it struck out, was sustained upon the ground that the evidence was relevant and had a bearing upon the amount of damages to be awarded. It is the right of a party to have the jury directed to disregard evidence which is wholly irrelevant and incompetent, and which has been admitted without objection, and a refusal so to direct constitutes error for which a reversal must be ordered. Gawtry v. Doane, 51 N. Y., 84; Marks v. King, 64 id., 628 ; Pontius v. People, 82 id., 339, 347; Platner v. Platner, 78 id., 90, 101.

The judgment appealed from must be reversed, and a new trial ordered, with costs to abide the event.

Daly, Oh. J., and Pryor, J., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Patrick J. McPhillips, Adm’r, Resp’t, v. The New York, New Haven & Hartford R. R. Co., App’lt.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    Negligence—Charge.
    Plaintiff’s intestate crossed defendant’s track and returned to warn back two boys who were following him. He then started to cross again, but his foot became entangled with the track and he was run over and killed. When he started to recross,the train was approaching rapidly in full view. The court was requested to charge that if he “ attempted to cross with the train approaching in plain sight and at or nearer than the fourth telegraph pole below the crossing, he was guilty of contributory negligence and cannot recover.” And answered: “ I leave that to the jury; it is a question of fact.” Held, error; that on a conceded or supposed state of facts the question of contributory negligence is one for the court, and it is error to submit it to the jury.
    Appeal from judgment on a verdict, and from order denying motion on the minutes for a new trial.
    Action by administrator to recover damages for the negligent killing of his intestate.

      Henry W. Taft, for app’lt; Christopher Fine, for resp’t.
   Per Curiam.

The omission of counsel to insert in the case a statement that it contains all the evidence precludes consideration bf the proposition so elaborately argued, that the verdict is against phe weight of evidence. Claftin v. Flack, 36 N. Y. State Rep., [728; Arnstein v. Haulenbeek, 11 N. Y. Suppl., 701; 34 N. Y. State Rep., 297.

Revertheless, the judgment must be reversed, for prejudicial Error in the charge to the jury.

| The action is to recover damages for the death of a lad, alleged to have been caused by defendant’s negligenee. The deceased paving crossed the railway, returned to warn back two boys who Ivere following him. He then started to cross again, but his foot became entangled on the track, and before he could extricate liirnielf he was run over and killed. Evidence was given tending to Ihow that when he attempted to recross the track a rapidly approaching train was in full view, past the fourth telegraph pole, End at a distance less than 300 feet away. Thus was presented Ihe question of the contributory "negligence of the defendant; and Iccordingly the court was requested to charge, that “ if the plaintiff’s intestate attempted to cross, with the train advancing in plain sight, and at or nearer than the fourth telegraph pole below the crossing, he was guilty of contributory negligence, and cannot recover.

“ The court: I leave that to the jury; it is a question of fact. The defendant's counsel thereupon excepted.’’ Here was manifest error. The question of contributory negligence, upon a conceded or supposed state of facts, is one of law for the court. Gonzales v. R. R. Co., 38 N. Y., 440; and it is error to submit it to the jury. Glacius v. Black, 67 N. Y., 568. It was the duty of the court to instruct the jury as to the law upon a predicament of fact presented by the evidence.

The question involved was the vital one in the case; and we cannot say but that, had the court given the correct instruction touching it, the jury would have found that the negligence of the decedent was the cause of his death. Indeed, upon review of this very case on appeal from a judgment for plaintiff at a former trial, we held that the attempt of the plaintiff to cross the track under the circumstances indicated above “was negligence on his part, whether he could or could not have crossed in safety had he not been delayed by catching his foot or stumbling, and that a motion to dismiss the complaint on the ground of his contributory negligence should have been granted.’’ 12 Daly, 366. And such is the law as propounded by the court of appeals. Ernst v. R. R. Co., 35 N. Y., 9; Tolman v. R. R. Co., 98 id., 203-4; McClain v. R. R. Co., 116 id., 465; 27 N. Y. State Rep., 549 ; Woodard v. R. R. Co., 106 N. Y., 369; 11 N. Y. State Rep., 169; Donnelly v. R. R. Co., 109 N. Y., 16 ; 14 N. Y. State Rep., 29.

Other errors are apparent on the record; but the fatal effect of the one considered dispenses with the discussion of them.

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

Allen, Bischoff and Pryor, JJ., concur.


author: Pryor, J.

text:
    Carl Gutmann, Resp’t, v. Henry Rogers, App’lt.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    1. Money had—Consignor’s right to insurance moneys.
    The mere fact that a commission merchant, who is under no obligation to insure, takes out a policy on merchandise belonging to himself or held by him in trust or on commission, without the knowledge of his consignor, gives the latter no right, in case of loss, to the moneys received from the insurance company, nor renders the consignee liable as for money had anc received.
    3. Same.
    The fact that the consignor’s goods were included in the proofs of loss does not entitle him to any part of the insurance moneys, where it appears that the amount received was insufficient to cover the value of the con signee’s own property.
    Appeal from a judgment of the general term of the city court affirming a judgment on a verdict by direction of the court

      John H. V. Arnold, for resp’t; Hamilton Auerbach, for app’lt.

       Affirming 34 N. Y State Rep., 690.

   Pryor, J.

In form and in substance the action is for money had and received by defendant to plaintiff’s use. The rule is elementary that, to maintain such action, the plaintiff must allege and prove that the defendant has actually received money, or its equivalent, which belongs of right to the plaintiff, and which the defendant is bound in conscience to pay over to the plaintiff. And the evidence must tend to show a definite and determinate sum so due and and payable to the plaintiff. Harvey v. Archbold, 3 B. & C., 626 ; Tankersley v. Childers, 23 Ala., 781. Although in form a common law action, the litigation proceeds upon equitable principles, and as the plaintiff may recover what appears to be due him ex cequo et bono, so the defendant may defeat the claim by showing a right of a like nature to retain the money.

In the construction of his complaint the plaintiff exhibits a correct conception of the rules governing the action. Accordingly, he alleges that the defendant, as bailee of his goods, insured them on his account; that the goods were destroyed by fire, and that upon such insurance the defendant received $177.85, which the plaintiff has demanded of him, but which he refuses to pay over.

On the conclusion of the plaintiff’s case, the complaint was dismissed ; and the question is, did the evidence produced by the plaintiff, viewed in the aspect most favorable to him, authorize a verdict in his favor ?

The case presented by the plaintiff was this : The delivery to the defendant, for sale on commission, of five musical boxes of the value of $177.85; their destruction by fire; insurance of defendant in several companies “ on merchandise the property of the assured, or held by the said assured in trust or on commission,” to the amount of $67,000; that the value of the merchandise destroyed by fire in the defendant’s store was $151,950.23; that the value of defendant’s own property so destroyed was $149,665.03 ; and of consigned property $2,285.20; that defendans collected on all the insurance $61,760, less five per cent; that in his sworn proof of loss presented to the insurance companies, and on which payment by them was based, the defendant included “ merchandise the property of others for which Henry Eogers is liable and responsible, “$2,285.50,” and also under the heading “ merchandise on consignment with Henry Eogers, January 30, 1888, and which are entirely destroyed by "re, Carl Gutmann $177.85; that payments of the insurance oney were made on the proofs as a whole, covering all the oods;” that defendant had never agreed to insure plaintiff’s oods; that plaintiff never asked defendant to insure his goods; hat plaintiff did not know until after the fire that there was any nsurance on defendant’s property which covered the plaintiffs oods; that he knew nothing about what insurance defendant had r what it covered until after the fire; that all the insurance deendant had at the time of the fire was placed before plaintiff’s •oods came into his possession.

From_this predicament of fact the jury would not have been authorized to find that the defendant had $177.85, or any sum. whatever, the property of the plaintiff, which defendant was bound to pay over to him. The policies procured by defendant did not insure the plaintiff’s goods specifically. There was no obligation, legal or conventional, on defendant to insure the plaintiff’s goods. In Stillwell v. Staples, 19 N. Y., 401, it was said that “ the right of a bailor to avail himself of a policy may, it seems, independent of contract or custom, be asserted by him at any time while it continues in force, and when in case of loss the bailee has received money for the bailor's goods it belongs to the latter, though he was ignorant of the insurance, and has done nothing to ratify or adopt it. ” The principle thus propounded with a semble does not cover the present case. It is not apparent that the defendant received any money for the plaintiff's goods. The amount of defendant’s insurance was less than half the value of" his own goods destroyed by the fire, and the money he received was less than the amount of his insurance. It is not apparent that the payments to him were increased a dollar on account of plaintiff’s loss. The adjustor testified that “all I had in mind was a total insurance of so much, and a loss claimed in excess of it. I did not consider, nor was it in my mind in any way that a man by the name of Grutmann had $177.85 worth of music' boxes left with Rogers for sale, which were destroyed by the fire. That there happened to be in this loss of this large amount of goods some other consigned goods did not enter at all in my mind in arriving at this figure for payment to Mr. Rogers, nor was the question of consigned goods taken up at all.”

The circumstance upon which the appellant relies as evidence that the respondent received $177.85, on the insurance of appellant’s goods, is that in his proofs of loss the respondent included the consignment of appellant. But this he did in necessary compliance with the provisions of the policies, which required a statement of the total loss; and it is still not apparent that the respondent received anything on account of the appellant’s consignment.

While thus the principle suggested in Stillwell v. Staples, supra, fails to support the appellant’s contention, the point actually adjudicated by the court is fatal to his case. For, the court ruled that, “ where such insurance is effected by the bailee or agent as a mere volunteer, he may abandon or modify it at his pleasure, until the principal has in some manner ratified or adopted it; and accordingly where a manufacturer effected insurance on'his own goods and goods held by him in trust, and a loss occurred of his own goods to a greater value than the whole amount of insurance ; held, that the owner of materials in the hands of the manufacturer to be worked up, who had in no way intervened in re spect to an insurance and had no knowledge of its existence until after the manufacturer had claimed the whole amoun for himself, was not entitled to participate therein.” And on page 406, the court, per Selden, J., say: “ The right of the owner of the goods to ratify or adopt such a policy, whether be fore or after a loss, must, from the nature of the case, be subjec to certain limitations; that is, it must be subordinate to the righ of the party who obtained the policy to deal with it as he pleases, up to the time of its actual adoption." In the case at bar there is no evidence to warrant the conclusion that the appellant “ actually adopted ” the policy before the respondent “ claimed the whole amount for himself.”

Reverting now to the peculiar nature of this action, by virtue of which “ whenever one person has in his possession money which he cannot conscientiously retain from another, the latter may recover it,” Roberts v. Ely, 113 N. Y., 131; 22 N. Y. State Rep., 185, it is evident beyond controversy that the equity of the case is altogether with the respondent. The trouble and expense of the insurance were his alone; he has suffered a loss of $149,-665.03, and has been indemnified only to the extent of $60,000; he was not directed by the appellant nor required by law, to insure his goods; appellant knew nothing of the insurance until after the fire, and so by the respondent’s refusal to pay him has been disappointed in no expectation; upon what ground of equity then does the appellant demand the money of the respondent, and why may not the respondent conscientiously retain it? Manifestly the appellant’s case is as destitute of equitable as of legal right.

The properties of eleven several persons, who might claim the benefit of respondent’s insurance, were destroyed by the fire. These properties were of unequal values, so that, to ascertain the proportion of indemnity payable to each, an accounting in equity was indispensable. Rathbone v. Stocking, 2 Barb., 135, 145; Lee v. Adsit, 37 N. Y., 78, 91; McMahon v. Rauhr, 47 id., 67, 71; Rodman v. Devlin, 23 Hun, 590, 593. But the city court cannot entertain an action in equity, and an amendment of the complaint' to "onform to the proof, beside being inadmissible because introduc'ng a new and different cause of action, would have operated to ust the court of jurisdiction. Upon this additional and indeendent ground the dismissal of the complaint is justifiable.

Judgment affirmed, with costs.

Daly, Oh. J., and Bischoff, J., concur.


text:
    Albert W. Smith, Resp’t, v. Julia M. Smith, App’lt.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)
    Divorce—Evidence.
    In an action for a divorce a vinculo, evidence of the relations existing between the defendant and the alleged partieeps criminis not in immediate connection with the specific act charged are competent on the question of adulterous inclination.
    Same.
    Evidence sufficient to support a finding of the commission of adultery.
    Appeal from a judgment of divorce for adultery, on a trial by referee.

      Wm. W. Ladd, Jr., for resp’t; Wm. O. Campbell, for app’lt.
   Pryor, J.

The complaint accuses the defendant of commitng adultery with Edward Barstow, on divers occasions between the 1st day of June, 1886, and the 14th day of October, 1888; but the referee finds the fact of the adultery only “ between the middle of March, 1888, and the 1st of September, 1888, at No. 137 West Sixteenth street, in the city of New York.” On the argument the single contention of the appellant was, that “ the evidence does not support such finding.”

With equal earnestness and ingenuity, counsel for appellant endeavored to discredit the evidence of the witnesses upon whose testimony the referee found the fact of adultery; but the question of credibility, as affected by the relations, character, manner and motives of the witnesses, and by the inconsistency or improbability of their story, is peculiarly for solution by the trial court. Devlin v. Greenwich Bank, N. Y. Law Jour., 23d March, 1891; 35 N. Y. State Rep., 922. Discrepancies in the story of witnesses are not necessarily fatal to the effect of their evidence; for, as observed by a celebrated writer, “ the usual character of human testimony is substantial truth under circumstantial variety.” Nor is it the rule in this state, that even the willful false swearing of a witness in one particular as matter of law discredits his entire testimony: but his evidence is to be submitted to the court or jury to determine, by the ordinary tests of veracity, whether and how far they may believe him.

Before passing to the consideration of the evidence in support of the referee’s conclusion, another observation is necessary. Counsel for the appellant rejects, as irrelevant and ineffectual, the “ much testimony given with regard to the relations of the defendant and the co-respondent,” not in immediate connection with the specific act of adultery found. But, “ as showing the adulterous intent, it is competent to give in evidence the defendant’s improper familiarities with the alleged pariiceps criminis at times anterior to the fact charged, at times concurrent with the fact, and at times subsequent thereto.” 2 Bishop on Mar. and Div., Parag. 625. 1 Amer. & Eng. Ency. of Law, 214.

And, in 2 Greenl. on Evidence, 47, it is said that, “ where the fact of adultery is alleged to have been committed within a limited period of time, it is not necessary that the evidence be confined to that period ; but proof of acts anterior to the time alleged may be adduced, in explanation of other acts of the like nature within that period. So, where one act of adultery was proved by a witness, whose credibility the defendant attempted to impeach,, evidence of prior acts of improper familiarity between the parties has been held admissible to corroborate the witness.”

Direct evidence of adultery being rarely attainable, the problem with courts has been, to distinguish the circumstances that are significant of the fact, and to assign to them their legitimate probative force. And, while the law does not prescribe arbitrarily the character or the quality of proof requisite to establish the offence, it recognizes certain facts as importing its commission, and the concurrence of which suffices to produce a conviction of guilt. Upon these facts and their efficacy as proof, a writer oi the weightiest authority has framed the formula: “ That ever} act of adultery implies three things: first, the opportunity secondly, the disposition in the mind of the adulterer; thirdly, the same in that of the particeps criminis. Whenever these three concur, the criminal fact is committed ; so that to prove the three is to prove the fact itself.” 2 Bishop on Mar. & Div., Parag. 619. And, that the coincidence of inclination and opportunity affords satisfactory proof of the fact of adultery is abundantly exemplified in adjudged cases;. e. g., Van Epps v. Van Epps, 6 Barb., 320; Soilleux v. Soilleux, 1 Hagg. Con. R., 373.

Testing, by this canon, the sufficiency of the evidence in the case at bar to sustain the referee’s finding, it will be seen that the proof is not only ample but conclusive.

1. As to opportunity : The plaintiff and the defendant were married the 19th of June, 1879. They had no child. In 1886, while boarding in West Eleventh street, city of Hew York, they became acquainted with Barstow, then a widower, and living in the same house. Later in the year, the plaintiff and the defendant moved to Brooklyn, but Barstow accompanied them and became an inmate of their family. In the autumn of 1886 plaintiff and defendant returned to this city, and made their abode in a flat in Madison avenue; and here too Barstow resided, occupying a hall bed-room in the flat. For several weeks of their sojourn in this house Barstow was practising type-writing in the house; and the defendant admits that he was there almost all day at times, while the plaintiff was down town at his business.

In the spring of 1887 Mr. and Mrs. Smith moved to a boardinghouse at 217 West Eleventh street; and Barstow went to Waverly place, two or three blocks away. The Smiths then moved to Abingdon square, where they remained until about 1st of May, 1888, when they took rooms at 281 West Fourth street. Bar-stow left Waverly place in the fall of 1887 ; went first to Eighth street, and thence to Mrs. Hegrin’s, 223 West Fifteenth street, where he remained till the spring of 1888, when he moved to 137 West Sixteenth street. On October 13, 1888, plaintiff left his wife. At that time they were living at 281 West Fourth street, and Barstow at 146 West Twenty-second street. In the summer and fall of 1887, when the Smith's were in West Eleventh street, and Barstow in Waverly place, he and Mrs. Smith were often together, frequently in her room; and on one occasion, when taking leave of her, he was seen to kiss her. She called at Barstow’s room, and represented herself as his sister. When Barstow occupied rooms in West Fifteenth street, which he did from October, 1887, to April, 1888, the defendant visited him frequently as his sister, at least two or three times a week, coming in the afternoon about three or four o’clock. All this time they were very affectionate towards each other. In January, 1888, and at other times, Barstow and Mrs. Smith were seen walking arm in arm, and, when so recognized, exhibited much confusion. The defendant admits that while she was living in West Eleventh street Barstow was in the habit of going there very often, and that he also visited her very often when she resided in Abingdon square, [n March, 1888, the defendant engaged rooms for Barstow at Mrs. Ward’s boarding-house, 137 West Sixteenth street; and, when she did so, she gave-her name as Mrs. Barstow, and represented that her husband would call later. On the same evening they both returned; Barstow chose a larger room; and they were left alone in it. When she took the rooms she stated that she would be there only in the day-time, as her mother was an invalid. Mrs. Smith had a key to this house. She called there nearly every day, and would remain with Barstow in his room, the door closed and locked. She always spoke of him as her husband, and he of her as his wife. He often left on his bureau a slip of paper addressed to her as his “ wife," and informing her where he had gone, and when he would return. When she called latterly she avoided seeing any one as she came in, and would shun people in the hall. Between May and October, 1888, in her husband’s absence, Barstow’s visits to her were regularly kept up. She described Barstow to the servant, and directed him to be sent up to her room, but to deny her to all other callers.

2. As to the illicit feeling reciprocated between the defendant and Barstow, it is already apparent; but the evidence to the point is clear and convincing. As early as 1886 she was lending him money without her husband’s knowledge. In March, 1887, she told a witness that Barstow did not care for her sister or Miss Lotta, but that he did care for herself; that he was very nice to wait on her, and would do anj^thing for her she wanted. From October, 1887, to April, 1888, at Mrs. Megrin’s they were very affectionate, and passed for brother and sister. In January, 1888, they were frequently out, walking arm in arm; and from March to August, 1888, she repeatedly called on Barstow in his rooms at Mrs. Ward’s, and was received and treated by him as his wife, and she always spoke of him as her husband. When he was about leaving the house she came there in the morning and insisted on going up to his room to see if he slept there the night before. During this period Mrs. Smith and Barstow were in correspondence, and the witness was instructed by her not to let her husband see any letters she might receive from Barstow.

If, however, any doubt remains as to the guilty passion of these people, it is dissipated by the letter in evidence. Barstow, it .seems, is announcing to her his resolution to break off the connection. A few excerpts will suffice to reveal the pervading tone of the communication: “ My Only Love, 1 will reply to your last letter as frankly as I can. What you wrote me was tender and affectionate. Í appreciate every word of it, and will say right here that there is no change in my feelings toward you, nor will ever be as long as I live, but there can be no resuming the past life you and I have led, at least not now. * * * As for you, I can only say this : you can lose nothing of me that you already possess, except through your own acts. * * _ * You have done and said nothing but what was faithful, true, loving and absolutely devoted to me. * * * One word in conclusion in regard to yourself : ever since I have known you I have had nothing but good. If we ever meet again, it will be your province to say. If we do, the same leaping heart and passionate love (and all that this implies) will greet you. * * * Your life-long Edward.”

If this were all of the case, no rational mind could resist the conviction of a carnal intercourse between these persons. But the evidence points to the fact of adultery almost as unequivocally as if the parties were surprised in the very act. After Barstow and the defendant had been shut up in his room, as already indicated, the bed, which had been made up before they went into the room, was found disarranged as if some one had lain in it. And, again, she was found in his room nearly or wholly undressed, and Barstow coming from the bath-room with a pitcher of water. On 4th of October, 1888, he called at her house in the morning, went up to her room, she being alone, and they shut themselves in. When he went in she had on a dark skirt and waist; when he came out she wore a light wrapper, plainly showing that she had undressed while he was in the room. When he left they threw kisses at each other. On the 18th of the same month the plaintiff discovered them in a situation so compromising that even the fond incredulity of a doting husband could no longer doubt; and he abandoned her forever. Finally, we have in their clandestine and confidential correspondence his avowal of the adultery to her; for what else mean the expressions, “ there can be no resuming the past life you and I have led, at least not now,” and “ if we meet again, the same leaping heart and passionate love (and all that this implies) will greet you ?”

If then, as the court of appeals declare, Allen v. Allen, 101 N. Y., 658, “ no different standard of judgment applies to the conviction of adultery in a civil action from that which ordinarily guides the conclusions of intelligent and conscientious men,” the learned referee could have drawn from the evidence no other inference than the guilt of the appellant

Judgment affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.


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    Jacob B. Tallman, Resp’t, v. Ferdinand P. Earle, App’lt.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    1. Lease — Contract under seal may be abrogated by executed PAROL AGREEMENT.
    A contract under seal may be abrogated by an executed parol agreement.
    3. Same—Surrender.
    In an action for rent accruing under a lease, the answer alleged the making of an agreement by which, if defendant should before a certain day surrender the premises and indemnify plaintiff against commissions for reletting the premises for the remainder of the term, plaintiff agreed to accept the same in full satisfaction and discharge of said letting, and that defendant performed said agreement on his part. Held, that it was error to exclude evidence tendered in support of such plea; that even if such agreement did not abrogate the lease, still upon proof of the facts alleged the jury could have found that defendant was exonerated from liability by a surrender by operation of law.
    Appeal from judgment pursuant to verdict directed by the court in an action for rent, and from an order denying motion for a new trial. The lease was under seal, and was for the term of one year.

      James M. Smith, for resp’t; Thomas Darlington, for app’lt.
   Pryor, J.

Admitting the averments of the complaint, for affirmative defense the answer alleges:

“That some time in the month of September, 1879, the defendant having paid his rent to the 1st day of October, 1879, the defendant represented to the plaintiff the changed condition of said premises and the injury to the health of defendant’s family, occasioned thereby, and it was thereupon agreed by and between the said plaintiff and the said defendant, that if the said defendant should on or prior to the first day of October, 1879, surrender to the plaintiff possession of said premises, and should indemnify and hold harmless from any commissions from letting for the remainder of said term which might be demanded by one Y. K. Stevenson, that he would receive the same in full satisfaction and discharge of the alleged letting set forth in the complaint.
“That thereupon this defendant, on or before the 1st day of October, surrendered to the plaintiff the possession of said apartments, and delivered to him the key thereof, and has indemnified and kept harmless the said plaintiff of and from any commission for re-letting the said premises by Y. K. Stevenson and has duly performed on his part all the conditions and agreements on his part to be done and performed, and the said plaintiff accepted the same, and ever since then the said premises have been in the possession and under the control of said plaintiff.”

To the evidence tendered by the defendant in support of this plea, the plaintiff objected on the sole ground that, “ the lease being under seal cannot be varied by a parol agreement; ” the objection was sustained and the evidence excluded, to which ruling by the court the defendant duly excepted. Thereupon, on motion of the plaintiff, the court directed a verdict in his favor; and to this ruling again the defendant duly excepted.

On the argument before us, the respondent assumed to sustain the rejection of the offered evidence upon the ground of variance between the pleading and proof; but we are clear that the evidence tendered was relevant to the alleged defense. Bedford v. Terhune, 30 N. Y., 460, 461.

If, however, this were not so, the objection of variance, not having been raised at the trial, is not available on appeal. Uertz v. Singer Co., 35 Hun, 116 ; Mayhew v. Howard, 2 N.Y. State Rep., 155; Tyng v. Commercial Warehouse Co., 58 N. Y., 313; Marston v. Gould, 69 id., 220; Tooley v. Bacon, 70 id., 34, 37.

The question then is, did the matter of which the appellant tendered proof constitute a defense to the action ?

The respondent challenges the validity of the agreement proposed to be proved, for lack of consideration. But a sufficient consideration is supplied by the reciprocal engagements of the parties to the contract. “ An executory contract may be discharged by the simple agreement of the parties that it shall no longer bind either of them. The consideration for the promise of each party is the renunciation by the other of his rights under the contract. Each abandons his rights in consideration that the-other will do the like.” 3 Am. & Eng. Encyc. of Law, 889.

But here a substantive and independent consideration for plaintiff’s promise is furnished by defendant’s engagement to pay the broker’s commission for reletting the premises.

We are brought, then, to the real and the decisive question in controversy, namely: Can a contract under seal be discharged before breach by an executed parol agreement ? We say executed, be cause the answer asserts that the defendant fully performed all the obligations imposed upon him as the condition of his release by the plaintiff.

We concede at once that the rule for which the respondent contends was a settled principle of the common law. Blake’s Case, 6 Rep., 43b; Berwick v. Oswald, 1 E. & B., 295. But in this state the peculiar common law properties of a specialty have been modified, by legislation, as respects, for instance, the conclusive effect of a seal, and by adjudication, we maintain, as respects the mode in which the obligation of a sealed instrument may be discharged. At common law a specialty could be dissolved only by an instrument under seal, by the judgment of a court, or by statute; but in this state, at least, the weight of authority is that it maybe discharged, even before breach, by an executed parol agreement between the parties.

In Fleming v. Gilbert, 3 Johns., 528, the action was on a bond conditioned that the defendant should produce and deliver up a mortgage at a specified time, and should procure it to be discharged on the records of the county; and it was held that a parol waiver of performance was a valid defense. Langworthy v. Smith, 2 Wend., 587; Esmond v. Van Benschoten, 12 Barb., 364; Mayor, etc., v. Butler, 1 id., 327. In Pierrepont v. Barnard, 5 Barb., 364; 6 N. Y., 279, the attempt was to recover damages for breach of a covenant not to fell timber without written consent; but it was held that oral consent was an answer to the action. In Pike v. Butler, 4 Barb., 654, “The controversy arose out of mutual covenants by the tenant to build in the way prescribed, and by the landlord- to pay for the house at the end of the term.” The building was not in accordance with the lease; but held that the tenant was dispensed from the obligation of the covenant by the oral acceptance of the landlord. In U. S. v. Howell, 4 Wash. C. C. R., 620, it was ruled by Washington, J., that an oral dispensation from payment of a bond at the day was an answer to an action before expiration of the deferred credit. In Dearborn v. Cross, 7 Cowen, 48, the precise point adjudicated was, that a “ bond or other specialty may be discharged or released by an executed oral agreement between the parties.” In Allen v. Jaquish, 21 Wend., 628, it was expressly ruled that “a contract not under seal rescinding a specialty, if fully executed and carried into effect, is valid.” In Bishop v. Jackson, 6 Robt., 287, the point adjudged was, that the mode of performance stipulated in a specialty might be superseded by an oral agreement to vary performance.

In Townsend v. Empire Dressing Company, 6 Duer, 208, it was held that “ an executed parol agreement, upon a sufficient consideration, may operate to discharge the stipulations of a sealed contract.” In Canal Company v. Ray, 101 U. S., 522, the federal supreme court explicitly decided that “ the terms of a contract-under seal may be varied by a subsequent parol agreement.” Le Fevre v. LeFevre, 4 Serg. & R., 241.

In Jenks v. Robertson, 58 N. Y., 621, the court, without considering the common law rule that a specialty before breach cannot be discharged by a parol executory agreement, “held it sufficient that the circumstances showed an executed rescission of the contract, upon which ground some of the cases go to escape a harsh and inequitable application of the doctrine of the common law.”

In Holdsworth v. Tucker, 3 New Eng. Rep., 499, the supreme judicial court of Massachusetts held that “in an action upon a contract under seal, executory on both sides, the defendant may show, in defense, that before any part of the contract had been, executed, and before a breach, the parties agreed by parol to vary its terms, and that he offered to perform as thus varied.”

But the very point in judgment has been adjudicated by the supreme court and the court of appeals of this state. In Horgan v. Krumwiede, 25 Hun, 116, the general term of the first department held, that while a sealed lease cannot be modified, nor the rent reserved by its terms reduced, by a mere oral executory agreement, yet “ such an agreement, founded upon a new consideration and afterwards performed by the parties, is sufficient to modify or change the terms of an instrument of this nature." In Smith v. Devlin, 23 N. Y., 363, the case was this: action to recover one quarter’s rent upon a lease under seal for three years; defense that the premises were surrendered by a parol agreement to pay $100, and to deliver up the keys; that the plaintiff did actually accept the surrender upon the agreement to discharge the lease for $100, which was tendered; held, affirming the judgment-of the general term which reversed the judgment at special term, that the defense was a complete bar to the action.

Doubtless there are dicta contrary to the proposition affirmed in the foregoing citations; but we are apprised of no authoritative-adjudication in this state which decides that an executed oral agreement is inoperative to discharge a sealed instrument. Roe v. Conway, 74 N. Y., 201, only questions, but does not negative the proposition. Indeed, by the statement - of the case, p. 202, it-appears that this court has ruled that a sealed lease for a term of ten years might be canceled and surrendered by a simple contract.

Such is the weight of authority upon the question in debate;. but in reason the balance of probabilities still more heavily preponderates in favor of the appellant’s contention. By express provision of law certain contracts are required to be evidenced by writing; and yet, while an agreement under the Statute of Frauds may not be modified, it may be rescinded and abrogated by parol. Goss v. Nugent, 5 B. & Adol., 66; Proctor v. Thompson, 13 Abb. N. C., 340. Why not a contract under seal ? Considerations of policy, e. g., the prevention, of frauds and perjuries suggest why the terms of a contract should be embodied in a certain and immutable memorial but a writing without a seal is as infallible an indication of the intent and engagements of the parties as a writing with a seal. For protecting the contract against mistake or misrepresentation nothing is gained by affixing a wafer to the paper which contains its stipulations. Since, then, a contract which the statute imperatively prescribes shall be in writing may be abrogated By an oral agreement, why not a contract which no law requires shall be either in writing or under "seal? The rule that a specialty cannot be discharged by parol is a, relic of a barbarous age; is a purely arbitrary and conventional regulation; stands upon no substantial reason or argument of policy; and is opposed, as we see, to the strong current of American authority. We have no hesitation in deciding that the doctrine is not a principle of the jurisprudence of this state.

Since, then, the facts tendered by the answer, and offered in evidence, presented a perfect defense to the action, it was error to exclude proof of them; and for such error the judgment should be reversed.

Assuming for argument, however, that the agreement in question was invalid and ineffectual to annul the lease, still, upon the facts pleaded and offered in evidence, the jury might have found another defense to the action, namely, a surrender by act or operation of law.

In Vandekar v. Reeves, 40 Hun, 430, it was held that although the agreement for a change of tenants was void, yet, in connection with the conduct of the parties, it operated to discharge the defendant from a claim for future rent, “ as it constituted, in effect, a surrender of the remaining term by act or operation of law.” When a landlord takes the key to the premises and deals with them as his own, the jury may find that he intended to resume possession and to discharge the tenant from his obligation as lessee, Hegeman v. McArthur, 1 E. D. Smith, 147; Harris v. Hiscock, 91 N. Y., 340 ; Bedford, v. Terhune, 30 id., 453 ; Beall v. White. 94 U. S., 382; Smith v. Niver, 2 Barb., 180.

Had the learned trial judge admitted evidence of the defense pleaded, and submitted the case to the jury, we cannot say that they would not have found, under proper instructions, that the appellant was exonerated from liability by a surrender by operation of law.

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

Daly, Oh. J., and Bischoff, J., concur.


author: O’Brien, J. Van Brunt, P. J.

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    The First National Bank of Jersey City, App’lt, v. Frederick B. Bard et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Assignment for creditors—Preferences—Confessions of judgment MADE JUST PRIOR TO AN ASSIGNMENT VOID.
    An insolvent firm had an assignment for benefit of creditors prepared and at the same time confessed. judgment in favor of certain creditors. After it had been ascertained that levies had been made under the judgments the assignment was delivered, upon their part, to the. assignee. Held, that the judgments and assignment must be taken to be a part of a single scheme, the effect of which was to prefer the creditors with confessed judgments, and that as such preferences amounted to more than the one-third of the assets which, by chap. 503, Laws of 1887, may be devoted to that purpose, the judgments, in common with the assignment, must be declared void.
    Appeal from a judgment of the special term dismissing the complaint in these actions against the defendants Kenyon, Carter, Shepard and Walker.

      Hamilton Wallis, for app’lt; Lucien Oudin and Warren W. Foster, for resp’ts.
   O’Brien, J.

The plaintiff is a judgment creditor of Clark, Radcliffe & Co. and brings this action against that firm, its general assignee for |he benefit of creditors and five of its judgment creditors by confession to set aside said assignment and judgments as fraudulent and void on the ground that all the defendants entered into a fraudulent combination among themselves to hinder, delay and defraud the plaintiff and other creditors of said firm and to evade the provisions of Chapter 503 of the Laws of 1887, prohibiting preferences in assignments for the benefit of creditors exceeding one-third of the assets of the assigning debtor.

The case was before this court upon a former appeal, and in the-absence from the record of the requisite certificate showing that it. contained all the evidence, it was held that where the record does not show that it contains all the evidence the finding of the lower-court on questions of fact will not be reviewed on appeal. It was also then stated that “ the single circumstance that a judgment is confessed at or about the same time that the debtor executes a general assignment does not of itself, standing alone and irrespective of other facts connected with the transaction, necessarily require the conclusion that this judgment is a part of the assignment, 10 N. Y. Supp., 634; 32 N. Y. State Rep., 1010.

The record now before us is accompanied by the statement that it contains all the evidence, and therefore we can, and it become® important to determine the facts proved upon the trial. It appears that the firm of Clark, Radcliffe & Co., in the latter part of April, 1888, were unable to continue their business and decided upon a general assignment for the benefit of their creditors. On the 25th of April the firm was actually indebted, among others, to the defendant, Gershon P. Kenyon, in the sum of $107,190, to the defendant, Benjamin Carter, in the sum of $17,000, to the defendant, William E. Shepard, in the sum of $5,600 or thereabouts, and to the defendant, John E. Walker, in the sum of .$1,300 or thereabouts.

On this date the members of the firm went to the office of their attorneys, one of whom subsequently was chosen as their assignee, and then and there prepared the general assignment and confessions of judgments, and these were all executed by all the members of the firm on that date and about the same time. The same afternoon the general assignment was taken into possession. by one of the firm and handed to one of their attorneys, who was the partner of the assignee. Thereupon the confessed judgments were entered in the office of the clerk'" of this court, executions issued thereon to the sheriff and levies made upon the property of the firm in this city. Transcripts of these judgments, except the one in favor of Kenyon, were taken by an employe of the attorneys for the firm to Montgomery county in this state, and a transcript of Kenyon’s judgment, by the latter’s attorney, to the same place.

On the morning of the 26th of April they were filed in the clerk’s office of Montgomery county, executions issued thereon, and the property of the firm, stored in warehouse in Amsterdam, was levied upon by the sheriff. Upon the same day, the 26th, the messenger sent by the attorneys for the firm telegraphed that levies had been made under the executions in Montgomery county, and thereafter on the same day one of the firm took the assignment from the possession of his attorney, the partner of the assignee, and delivered it to the assignee, who thereupon executed the assignment, and it was filed as required by law.

The consideration of a judgment in favor of one Foye having been successfully impeached and the general assignment itself having been set aside upon the ground of fraud, the learned trial judge refused to disturb the other judgments; and from such refusal this appeal is taken.

These facts beyond a reasonable doubt show that the assignment and confessions of judgment together constituted a single transaction for the disposition of all the firm’s property, then upon the verge of insolvency. They were all drawn and prepared at the same time and at the same place, by the same parties and were executed at substantially the same time. These acts were undoubtedly the result of a common scheme by which it was sought to make a disposition of the debtor’s property and therein to give a preference to those to whom the judgments were confessed. That instruments of this character executed under these circumstances are to be considered as one instrument is well settled. White v. Cotzhausen, 129 U. S., 329; Sweetser v. Smith, 22 Abb. N. C., 319 ; 20 N. Y. State Rep., 62; Kessell v. Drucker, 23 Abb. N. C., 1. There is much force, therefore, in the suggestion that as the assignment and judgments constituted a single transaction, parts of which the court held to be fraudulent, that thereby the whole became tainted with fraud. In other words it is claimed that the assignment and judgments though contained in separate and distinct documents constituted in law but a single instrument.

There are like instances of the law being thus applied to separate documents, as in the case of a mortgage, which may consist of a deed and a separate agreement of defeasance, both together constituting a single instrument. So a lease may consist of a lessor’s covenant executed separately from a lessee’s covenants, both together constituting a single lease.

If the judgments are to be regarded as a part of the general assignment, it would seem to follow logically and legally that where a part is fraudulent, that avoids the whole. If the preferences sought to be given were in the instrument of assignment itself and this was held to be fraudulent the preferences, however valid, would fall with that instrument.

If, therefore, the judgments and assignment are to be regarded as a single transaction or instrument the judgments become en-grafted in and an integral part of the instrument of assignment the same as though contained therein.

Why, as here, where there is shown a single scheme to make a general assignment for the benefit of creditors, should any distinction be made between preferences in and those outside of the assignment ?

As was said in Spelman v. Freedman, 54 Hun, 409 ; 27 N. Y. State Rep., 392 : “ Where a debtor has formed the determination to voluntarily dispose of his whole estate and has entered upon the execution of that intention, it is immaterial into how many parts the execution thereof may be divided.

“ The law will regard all his acts having for their object to effect the disposition of his estate as parts of a single transaction. ”

But there is another and distinct ground upon which these judgments must be set aside.

The question we would now consider is not whether the judgments were made for the purpose of hindering, delaying 02’ defrauding creditors, but whether or not these judgments, being part of a scheme to give preferences, were not obnoxious to the statute, Chap. 503 of the Laws of 1887, and, therefore, void. The facts show that the judgments and assignments were parts of a plan for the disposition of all the debtor’s property, and an attempt and effort as part of that scheme to give preferences forbidden by law. Hot only the circumstance of time, but the withholding of the assignment itself, although executed by the debtors, until after levies were made under the judgments, is confirmatory-of this view.

In White v. Cotzhausen, supra, in commenting upon the case of Preston v. Spaulding, 120 Ill., 208, the opinion proceeds: “ The supreme court of Illinois considering the question whether the preferential judgments obtained in that case were within the prohibition of the act of 1887, said:

' The statute is silent as to the form of the instrument or instruments by which an insolvent debtor may effect an assignment. * * * It will be observed this act does not assume to interfere in the slightest degree with the action of a debtor while he retains the dominion of his property, notwithstanding this act, he may now, as heretofore, in good faith sell his property, mortgage or pledge it to secure a bona fide debt, or create a lien upon it by operation of law, as by confessing a judgment in favor of a bona fide creditor. But when he reaches the point where he is ready and determines to yield the dominion of his property, and makes an assignment for the benefit of his creditors, under the statute, this act declares that the effect of such assignment shall be the surrender and conveyanee of all his estate, not exempt by law, to his assignee, rendering void all preferences and bringing about the distribution of his whole estate equally among his creditors; and we hold that it is within the spirit and intent of the statute that when the debtor has formed a determination to voluntarily dispose of his whole estate, and has entered upon that determination, it is immaterial into how many parts the performance or execution of his determination may be broken, the law will regard all his acts having for their object and effect the disposition of his estate as parts of a single transaction ; and on the execution of the formal assignment, it will, under the statute, draw to it, and the lawr will regard as embraced within its provisions, all prior acts of the debtor having for their object and purpose the voluntary transfer or distribution of his estate to or for creditors; and if any preferences are shown to have been made or given by the debtor to one creditor over another in such distribution of his estate, full effect will be given the assignment, and such preferences will, in a court of equity, be declared void, and set aside as in fraud of the statute.’ ”

In Abegg v. Schwab, 23 Abb. N. C., 7 (subsequently affirmed upon another ground in Abegg v. Schwab, 31 N. Y. State Rep., 139), it was held that, “judgments confessed by debtors about to make an assignment for the benefit of creditors, the effect of which would be to prefer creditors above the amount of one-third in value of the assigned estate, is in evasion of the Laws of 1887, chap. 503, and are void if made as parts of one plan for the disposal of all their property.”

This decision followed the rule laid down in ‘White v. Cotzhausen, 129 U. S., 329. A distinction, however, is to be observed between the Illinois statute, the construction of which was involved in that case, and the New York statute.

The former made preferences in violation of the statute void, while our statute only renders preferences in excess of one-third void.

A grave question is therefore presented under our statute as to whether any greater penalty is to be attached to illegal preferences than such as the statute itself imposes.

■ For this reason I assume the learned judge, writing the opinion of the court upon the appeal in Abegg v. Schwab, supra, was disposed to question the soundness of the conclusion above quoted as to the effect of an illegal preference upon the entire judgment.

This, however, is no longer an open question in this court, for in Spelman v. Freedman, 54 Hun, 409 ; 27 N. Y. State Rep., 392, the principle enunciated in Abegg v. Schwab was distinctly held. In Stein v. Levy (general term, January, 1890), 29 N. Y. State Rep., 90, the presiding justice, referring to Spelman v. Freedman, supra, says: “ It was held in that case that judgments which were confessed as part and parcel of a scheme resulting in an assignment whereby all the debtor’s property was devoted to the payment of preferred creditors should not be allowed to stand, as the assignment and confession of judgment must necessarily be considered together, they having been part and parcel of a single scheme and were plain violations of the law in question.”

If right in our assumption that the assignment and judgments were parts of a single scheme or transaction for the disposal of all the insolvent debtor’s property, these cases are controlling. While, therefore, the trial judge was right in concluding upon the evidence that the judgments themselves were not fraudulent, still he seems to have overlooked the consideration of the question as to whether the judgments did not violate the statute forbidding preferences.

It has been urged by the respondent that as the assignment itself has been set aside and no longer exists that the upholding of the judgments would not contravene the statute, whiqh can only be invoked where an undue preference is given in a general assignment for the benefit of creditors. The logical conclusion flowing from such an argument would be that if the assignment was valid the judgments would be void, but that the setting aside of the assignment for fraud would leave the judgments of binding force and effect. Thus we would reach a legal absurdity by holding that where an illegal preference is sought to be made the court will hold the judgments void if the assignment is valid, and if the assignment is fraudulent the judgments will be upheld.

It is unnecessary for us to determine what results may flow from this conclusion as to the judgment creditors’ liability to account to the plaintiff for the amounts received by them respectively under their judgments. Whether the plaintiff can compel the defendants to account for such sums received or not cannot control the conclusion to be reached as to the invalidity of the judgments if otherwise warranted.

Our° conclusion, therefore, is that the judgment appealed from should be reversed and a new trial ordered, with costs to plaintiff to abide the event.

Van Brunt, P. J.

I concur in the result of this opinion, but I think there is an additional ground why judgment, should be reversed. It is apparent that the confession of these judgments was part of the fraudulent scheme of the judgment debtors by which they by means of another fraudulent judgment and a fraudulent assignment sought to defraud their creditors.

It is true that the judgment creditors were not privy to this fraud, but that does not validate their judgment, because if a judgment is suffered in pursuance of a fraudulent intent of the debtor the judgment is void irrespective of the intent of the creditor.

Daniels, J., concurs.


author: Daniels, J.

text:
    Jennie Fogal, Resp’t, v. J. Seaver Page et al., Ex’rs, App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. Vendor and purchaser—Sale op land by parol.
    Where a person, agreed verbally with another to sell her land and subsequently without having terminated or disaffirmed the contracts conveyed the land to a third person, Held, that the vendor was entitled to recover the money paid upon the contract.
    2. Same—Limitation.
    Where an action is brouslit within six years from the time of such conveyance, the statute of limitations is not a defense.

      Appeal from a judgment entered upon the verdict of a jury and from an order denying a motion for a new trial.

      Henry Wehle, for app’lts; Henri Pressprich, for resp’t.
   Daniels, J.

The testator held a mortgage against premises owned by the husband of the plaintiff and upon which they resided in the county of Westchester. The mortgage was foreclosed and the premises purchased by the testator at the sale, and to maintain the action it is alleged that he entered into a contract to convey the premises to the plaintiff for the payment of the sum of $2,800. This contract, as the evidence tended to prove it, was not in writing, but if made at all was verbal and made on or about the 9th of January, 1880.

It is alleged that the plaintiff had paid upon the contract the sum of $1,552.58, and that the testator conveyed the premises to another person on or about the 20th of May, 1884, and thereby disabled himself to perform the contract alleged to have been made. It did appear upon the trial that the premises were verbally leased to the husband of the plaintiff after the sale in the foreclosure proceedings for the sum of $150 a year and the payment of the taxes, and that all the moneys had been paid for rent and taxes, with the exception of two items, one of $200 and another of $100. The right of the plaintiff to maintain the action was accordingly restricted to these two items. And if the contract was made as it was alleged, and the evidence of the plaintiff’s husband tended to prove it, and it was not afterwards terminated or dis-affirmed until the conveyance of the premises to another person in 1884, then the plaintiff was entitled to recover so much money as had been paid by her towards the purchase price of the premises. Chittenden v. Morris, 52 Hun, 601; 23 N. Y. State Rep., 807; Harris v. Frink, 49 N. Y., 24; Day v. N. Y. Central R. R. Co., 51 N. Y., 583.

And the defense of the statute of limitations interposed no objection to that recovery, for the reason that the action was commenced within six years after the conveyance.

As the evidence was given by the husband of the plaintiff it did tend to prove the making of such a contract, and that it was carried along without any refusal to perform on the part of the plaintiff, or the testator, until the time when he conveyed the •premises to the other party. The making of this agreement was denied by the attorney through whose agency, with the approval of the testator, it was affirmed to have been made. And his testimony was that these two sums of money were not paid upon an agreement for the conveyance of the property to the plaintiff, but to pay fire costs and expenses of the foreclosure suit. That was denied by the plaintiff’s witness. And there was evidence from two other persons sworn on behalf of the defendants, and contradictory evidence supplied by the affidavit of the plaintiff's witness, tending to confirm the correctness of the evidence given by the attorney. But this evidence was not so forcible in its effect as to deprive the plaintiff of the right to submit the questions to the jury upon which her action depended. It was still a question of fact to be determined by them whether this agreement had been made as it was alleged it had been in support of her suit. And they by their verdict must have found that fact in her favor.

In submitting the case to the jury it has been objected that they were not necessarily required to find the existence of the contract to entitle the plaintiff to recover. This objection has been taken to the statement that, ■ ®

“If Mr. Fogal made a verbal contract for the repurchase of this property, although the law requires such a contract to be in writing, and while it might be that Mr. Fogal could not have enforced that contract, if, in the belief that he had such a contract, he paid money on account of the purchase price, he would have the right to recover it back in this action, it being conceded that Mr. Page conveyed the property away in his lifetime, and consequently could not convey it to Mr. Fogal. But, of course, upon the testimony as it stands, it is a question of fact to be passed upon by the jury, as to whether Mr. Fogal’s account is correct, and if it is he is entitled to recover the $300.

And if the court did intend to place the right of the plaintiff to maintain the action upon the mere belief of Mr. Fogal that he had such a contract and paid the money on account of the purchase price, then the direction would be clearly erroneous. But in the preceding part of the charge the case was submitted to the jury upon the question whether the contract had been proved to have been made as it was affirmed on the part of the plaintiff. And when the exception was taken to this particular part of the charge the justice presiding responded “ I hold that he is entitled to recover it back provided it was paid as a part of the purchase price. ” And previously it was stated “ if you think that the three hundred dollars was on account of the payment made for the property, you will find a verdict for three hundred dollars, with interest, but if you think it was a payment on account of these costs then you will find a verdict for the defendants.” With this explanation and what had previously been said, the jury could not have misapprenended the ground upon which the right of the plaintiff was intended to be placed. It was not merely on the belief of Fogal, but upon the fact that a contract had been made for the sale of these premises to the plaintiff. And while the point is undoubtedly somewhat involved, no good reason presents itself for supposing that the jury could have been misled by the use of these words as they were employed in this paragraph of the charge.

Objection was made to the competency of the husband of the plaintiff to testify as to what had taken place between himself and the testator. But he do§s not appear to have been interested in the result of the action, in any form otherwise than his feelings would of course be enlisted in favpr of the success of his wife. But this is not the interest which, 'under the provisions of the Code, would render him incompetent to testify to a transaction or conversation with a deceased person. He had no such interest, and therefore was a competent witness in her behalf to prove that the attorney was authorized by the testator to make the contract.

When the $200 was paid a receipt was given for it in the name of the plaintiff in this action as so much money received from her by the hands of John J. Fogal on account of the agreement to be entered into between herself and the testator for these premises. At that time it was no doubt contemplated, as the evidence indicated the fact to have been, that a formal agreement was designed to be made, but was never in fact entered into. And this receipt confirms the- statement of the witness Fogal that the money was paid and intended to be applied on account of an agreement for the sale or conveyance of these premises. And as to that sum of money there was no deficiency in the evidence as to her right to recover if the jury credited the statements of her husband, as they seem to have done.

But the further sum of $100 does not appear to have been paid by her, or from any money or property belonging to her. This payment was made on the 24th of January, 1880, and by the receipt it was acknowledged as coming from Mr. Fogal ánd being paid on account. And his own testimony throughout is that he paid this money to the attorney of the testator. But there is not a word of evidence in the case that it was money of his wife, the plaintiff, or paid by her direction, or in any manner whatever which would entitle her to maintain an action for its recovery from the testator or the executors of his estate. In that respect there was no evidence from which the jury could reasonably find that this sum of money was paid otherwise than the witness stated it to have been paid, and that was by himself without any reference whatever to the plaintiff in the action. On this subject there was a misdirection consequently, for the jury were required by the charge if they found for the plaintiff to include this sum of $100 in their verdict, and that they seem to have done.

Upon this ground, therefore, the defendants were entitled to have the verdict set aside pursuant to their motion for a new trial, or that this sum, together with the interest allowed upon it, should be deducted from the judgment under the authority and consent of the plaintiff. And to attain that end the judgment should be reversed and a new trial ordered, with costs to the defendants to abide the event, unless within twenty days after notice of this decision the plaintiff stipulates to deduct this sum of $100, with the interest included upon it as it has been recovered by the verdict. And if such stipulation shall be given, then the judgment as so modified should be affirmed, without costs of the appeal to either party.

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


author: Van Brunt, P. J.

text:
    The People, Resp’ts, v. John Wah Lee Mon, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. AbDUCTION-=-0bIMIIíAL ACTS IN ANOTHER STATE—HOW EAR EVIDENCE.
    Upon the trial of an indictment for taking, harboring and receiving for the purpose of sexual intercourse a female not the wife of the defendant and under the age of sixteen, it was shown that the female was brought by the defendant from another state. The prosecution showed that the defendant had been intimate with the female in said state. Held, that such evidence was competent as characterizing the relations existing between them and as bearing upon the purpose for which defendant brought the female into this state.
    3. Juror—When competent although having an opinion.
    A juror stated that he had formed, from reading the newspapers, an opinion in regard to the gudt or innocence of the prisoner and that it would require strong evidence to remove it. He finally said that he could decide upon the testimony he heard in court uninfluenced by any thing else whatever. A challenge was overruled. Held, proper.
    Appeal from j udgment of the court of general sessions, convicting the defendant of the crime of abduction.

      W. C. Beecher, for app’lt; McKenzie Semple, for resp’ts.
   Van Brunt, P. J.

The defendant was charged by the first count of an indictment with the talcing, harboring and receiving for the purpose of sexual intercourse a female named Lizzie Scott, not his wife, and under the age of sixteen. By the second count, he was charged with taking, harboring and receiving for the purpose of prostitution the said female.

This last count was withdrawn on the trial, and the case was submitted to the jury upon the first count only.

The defendant is a Chinaman. He owned a laundry in Providence, R. I. He had married a white woman, who was a dressmaker by trade and resided in New York city. Her husband was in the habit of coming at intervals to see her, and she in like manner went to Providence to see him.

Lizzie Scott lived in Providence, and resided with her mother, and was between fourteen and fifteen years of age on the day mentioned in the indictment as the date of the crime charged. She had been acquainted with the defendant some little time before, and had sexual intercourse with him in Providence.

The complainant testified that the defendant invited her to accompany him to New York city, promising her a silk dress, diamonds and rings and everything she wanted, and that she could return in two days, and say that she had been to an aunt’s; that thereupon the complainant consented to accompany the defendant for a trip to New York, and on Saturday, the 14th of June, the defendant bought two tickets to New York, one for her and one for himself; that they both took the same train from Providence to Stonington, and the same boat from Stonington to New York; that they did not speak to each other while on the boat, and that before leaving Providence he gave her a ring, and told her to say that she was seventeen years of age and was his wife, and to wear the ring as her wedding ring; that upon the arrival of the boat on the pier at New York both went ashore without speaking, the defendant walking about four feet ahead of her; that thereupon the defendant engaged a cab, and the complainant walked along the streets, the defendant and the cab following.

Subsequently the driver.stopped and the defendant beckoned the complainant into the cab, and as she got in the driver asked her if she knew where she was going and she told him she did not. The defendant got in himself, pulled down the curtains and told the driver to drive to 11 Mott street. The complainant further testified that she did not know anybody at Mott street, and had no relatives or friends there. The driver being suspicious, much to his credit, instead of taking them to Mott street went to the police station, where the defendant was arrested.

The complainant further testified that at the police station she stated, and that it was true, that the defendant did not tell her he was going to take her to a place for sexual intercourse, and that she did not intend to go to any place for sexual intercourse in New York city and that she did not come here for that purpose.

To corroborate the testimony of the alleged abducted female as to what occurred between the defendant and herself after they arrived in New York, the People produced as a witness the driver of the cab, who testified to substantially the same effect as the complainant except that the defendant, in engaging him, asked him what the charge would be for taking two men to Mott street. ' He also testified, not that the defendant pulled the curtain down, but that he pulled the curtains of the cab down.

.The captain of police testified that he was at the station house at the time the cab brought them there, and had some conversation with the defendant, who said that he was taking the complainant to see her sister, who was his wife.

It further appeared that his wife did not reside at 11 Mott street and that the complainant was not her sister; and from the testimony of the defendant himself that he knew the complainant when they came to New York together; that he told the cabman to drive to Mott street; that he did not go to Oliver street where his wife lived because he must have been crazy at the time, and that he was never crazy before; and that he was taking the complainant to his wife to become a dressmaker.

It further appeared that the defendant’s wife had once lived in Monroe street, but that she had lived at 42 Oliver street from six to nine months at-the time of the happening of this occurrence; and the defendant attempted to make it appear that he did not know where his wife had moved to, and that when he was last in New York she had lived in Monroe street. But in his cross-examination he swore positively that for six months prior to the time of his arrest she had lived at 42 Oliver street, which was pretty good evidence that his story about his not knowing where she lived was a mere fabrication. He also denied having had. intercourse with the complainant.

It is urged that the reception of evidence as to criminal acts beyond the jurisdiction of this state was error; that a crime, to be recognized by our courts, must be committed in this state, and that the complainant should not have been allowed to testify as to what occurred in Providence.

It is undoubtedly true that what occurred in Providence could not be the basis of an indictment in this state; but evidence of the previous relations of the parties was entirely competent in order that the subsequent acts committed in this state might thereby be characterized.

The intent with which the defendant was inducing this girl to come with him might very well be deduced from their previous relations, or at least the proof of such intent might be very much strengthened by showing what had been their previous relations, and although it was not a necessary part of the proof on the part of the People, it was a circumstance to be considered by the jury in determining the guilt or innocence of the defendant

The claim that there was no corroboration of the complainant’s evidence as to any act of immorality, or of any request or inducement on the part of the defendant to come to Hew York might be well founded, but for the fact that she did come with him; that they had had previous acquaintance with each other; that, at his solicitation, she entered the cab; that he gave an erroneous address for no honest purpose which has been disclosed by the evidence; that when arrested he made false statements as to the relation of the girl to himself and the object he had in inducing her to enter the cab, and throughout, the evidence of the defendant shows all the marks of guilty intent, from which' the jury might very well conclude that the claim of the People was entirely true, and it would seem to us upon reading the testimony that no other conclusion could be arrived at than that the charge was well founded, and that defendant’s intent in inducing the girl to enter this cab was to take her to some place for the purpose of sexual intercourse.

Ample corroboration seems to have been afforded by the testimony of the defendant himself from which the jury were not only authorized but could not resist the inference that he was seeking to get this girl into his possession for improper and immoral purposes.

There is a further objection made to the ruling of the court in overruling the challenge to the juror who said that he had not only formed an opinion as to the guilt or innocence of ' the defendant from what he had read in the newspapers, but he believed it would require strong evidence to remove that opinion.

If the examination of the juror had remained here undoubtedly the challenge should have been sustained.

But in his cross-examination he stated, which no doubt was the fact, that if he did not hear further evidence on which he could rely he would keep the same opinion; but he thought his information from reading would not affect his judgment; that he would try to forget what he had read and rely on the testimony, and that he believed his opinion or impression would not influence his verdict, and that he could render an impartial verdict on the evidence.

And upon further examination by defendant’s counsel the witness says: “ Of course I have an opinion now which would require evidence of a strong nature to remove. I would enter the case with an opinion; as the case progressed I would still have an opinion until I received evidence to the contrary.” And in answer to a question from the court he said that if he went into the jury box and did not hear any evidence at all, he would not convict on that opinion, because it might be false for all he knew, and that he knew he would be bound by the proof as furnished by the witnesses; and finally upon being asked the question: il Can you then decide upon the testimony you hear in court uninfluenced by anything else whatever ?” the juror answered “ I believe I would.”

We think under the provisions of the Code of Criminal Procedure the court was justified in overruling the challenge and accepting the juror, he having declared on oath that the opinion or impression which he had would not influence the verdict, and that he would decide the question involved upon the evidence, uninfluenced by anything else whatever.

The judgment should be affirmed.

Brady and Daniels, JJ., concur.


author: Brady, J.

text:
    William W. Ryan, Resp’t, v. The Burger & Hower Brewing Co., Limited, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Slander—What words are actionable.
    The defendant falsely stated, published and declared that it had a claim or mortgage against plaintiff’s place of business, and that if any brewer belonging to an association of brewers sold beer to plaintiff, the defendant, under an agreement of said association, would hold that person and the associates liable for said claim. Thereupon the associates discontinued the sale of beer to plaintiff, by which he was greatly damaged. Held, that the words tended to injure the plaintiff in his business and constituted an actionable slander.
    Appeal from a judgment on a verdict and from an order denying a motion for a new trial.

      Ashbel P. Fitch, for app’lt; H. M. Gescheidt, for resp’t.
   Brady, J.

The plaintiff went into business in Brooklyn and spent large sums of money in fitting up the premises hired by him for the purpose of successfully carrying it on. His business involving the necessity of selling it at retail, he purchased lager beer from Jacob Ruppert, a brewer of this city, which with other commodities made up his stock in trade. His business not only was successful but so continued until the. defendants, and as it is ■alleged with the intent and purpose to injure his credit, reputation, business and standing, uttered concerning him and his business false and defamatory matter the allegation of which is as ■follows:

IY. The plaintiff alleges, on information and belief, that on or about the 15th day of December, 1888, and from said time down to the 5th day of March, 1889, continually in the city of New York and in the city of Brooklyn, state of New York, the defendant by and through its officers, agents and servants, on behalf and by authority of the defendant, maliciously and falsely stated, caused to be stated, published and declared in the English language to the said Jacob Ruppert, his attorney, agents, and servants, Maurice Ahern, Mr. McLaughlin, Brewers’ Union or Association, Brewers’ Exchange of N. Y., Brewers’ Pool Association (commonly so called), or the Lager Beer Brewers’ Board of Trade, of N. Y. and vicinity, to any or all of the members of any or all of said associations, of either of which defendant is a member, and to other persons who are unknown at present to the plaintiff, with intent and purpose to injure the credit, reputation, business and standing of the plaintiff aforesaid, all of which persons heard and understood the English language concerning plaintiff and his business aforesaid, the false and defamatory matter following, to wit: That said corporation (the defendant herein) has a claim, mortgage and demand against the place and business aforesaid, and that if the said Jacob Ruppert, or any other brewer or brewery that belongs, with the defendant, to an association for the mutual interest and benefit of the brewers and breweries that belong thereto, would continue to deliver beer or sell beer to the place of business of the plaintiff aforesaid, the defendant, under an agreement, stipulation, statement or understanding, with the members of said association, would hold said Ruppert and other members thereof liable to pay the alleged claim against said place aforesaid, with damages for the continuation of the delivery and sale of beer to said place.

Y. That at the times aforesaid when said false and defamatory statement was made concerning plaintiff’s place and business aforesaid, the same was false, defamatory and untrue, and known by the defendant to be so; that the plaintiff was perfectly solvent, had credit, no claim whatsoever being against said place; that said Jacob Ruppert, from the false and defamatory statement and publication as aforesaid, was induced to discontinue, and did discontinue, under threat of penalty, according to an agreement with the defendant and others aforesaid, to deliver and sell beer to said place, and other brewers and breweries that belonged to the association with said Ruppert and defendant and others aforesaid refused, under threat of penalty according to an agreement with the defendant and others aforesaid, to sell and deliver beer to said place on account of the false and defamatory statement and publication made by the defendant aforesaid, and Julius Wollman and other merchants refused to give this plaintiff credit for merchandise on account of said false and defamatory statement and publication as aforesaid, and through said false and defamatory statement and publication the plaintiff lost customers, whose names are unknown at present to him, and his business fell off from the average of twenty-five to thirty dollars per day to the average of two to five dollars per day, thereby causing plaintiff to lose the income thereof of the average of about ten dollars per day, and causing him to become insolvent, to lose his credit, in arrear of rent, the forfeiture of deposit of rent under said lease, and failure in said business, loss of said profits and enjoyment thereof, whereby the plaintiff was compelled to give up and discontinue said business and the plaintiff became injured and damaged thereby in the sum of $20,000.

The statements complained of were false and defamatory and the result was that the plaintiff was unable to get beer from the brewers from whom he wished to buy, his business ruined and he-compelled to sell his place.

» The defendants had a claim against his predecessor secured by a personal mortgage upon the articles which were in his saloon or restaurant, and of which they took possession and which they had removed prior to the demise to the plaintiff. The place was not theirs and they had no claim upon it, but asserted the existence of one by virtue of articles of association between certain brewers and themselves who, had banded together ostensibly for mutual protection and by the rules or regulations of which, it seems, they could ostracise or stigmatise not only the debtor but-the “ place ” he formerly occupied, although they had, as suggested no claim upon it, and thus in effect prevent its occupancy for the sale of beer, unless the debt due from the former debtor was paid. It was in effect a fictitious mortgage on the place thus created by the despotic act of this association affecting and checking the enterprise of the tenant on the premises and paralyzing the efforts of the owner to let his tenement for any business connected with the sale of lager beer until the fictitious mortgage should be paid and discharged. This if not a novel, is certainly an unlawful proceeding, having the double effect of injuring a business and slandering the owner’s title to the tenement in which it was carried on, against neither of which could there be in a case kindred to this the slighest propriety of saying anything detrimental. Such a combination for such a purpose is in the highest degree despotic and subversive of the principles of our government.

There is no recognition of the old adage of live and let live ; indeed, its converse is adopted and enforced.

The proof is abundant that the defamatory matter was employed by the defendants to the injury of the plaintiff. The whole subject was presented to the jury in an elaborate charge upon all the evidence to which no exception was taken by the defendants and in relation to which no requests were made to charge. The defence it may be said was meagre, the struggle having been apparently more to lessen the damages than to justify the conduct complained of. The salient points of such a controI versv as this have recently been the subject of review developing the principles governing the plaintiff’s case. In Moore v. Francis, 121 N. Y., 199; 30 N. Y. State Rep., 467, Justice Andrews said in the course of his opinion : “ The cases of actionable slander were defined by Chief Justice De Grey in the leading case of Onslow v. Horne, 3 Wilson, 177, and the classification there made [has been generally followed in England and this country.” The | third class mentioned in that case embraces words which tend to in[jure a party in his trade, occupation or business. “The law allows I this form of action, he said, not only to protect a man’s character Ibut to protect him in his occupation, although no fraud or dishonlesty is charged and although the words were spoken without actual Imalice.” ■ “It recognizes, he also said, the right of a man to live land the necessity of labor, and again, that the principle is elearlv Istated by Bayley, J., in Whittaker v. Bradley, 7 D. & R., 649, thus : ‘ Whatever words have a tendency to hurt or are calculated to prejudice a man who seeks a livelihood by any trade or business are actionable.’ ” And the doctrine is declared that when proved to have been spoken in relation thereto the action is supported, and unless the defendant shows a lawful excuse, the plaintiff is entitled to recover without allegation or proof of special damage, because the falsity of the words and resulting damage are presumed.

The damages were assessed by the jury at $1,523, for which they gave their verdict This sum was not excessive. The plaintiff gave a detailed statement of his expenditures in and about the place amounting to $1,324.64, and it appears that he was compelled to sell the fixtures for $100 against $1700, for which he might have sold the place and its surroundings had it not been for the ruinous consequences of the defendants’ false assertion that they had a claim on the place, to which reference has already been fully made. In addition to this the jury had a right to consider the pecuniary loss sustained by the plaintiff in consequence of the breaking up of his business.

There appears no reason to withhold an affirmance of the judgment appealed from and it should be affirmed, with costs.

Van Brunt, P. J., and Daniels, J., concur. -