author: Daniels, J.: Davis, P. J.:

text:
    JOHN H. RIKER, as Executor, etc., of MARG-ARET BURR, Deceased, and as Executor, etc., of MARY BURR, Deceased, Respondents, v. ST. LUKE’S HOSPITAL, Appellant, Impleaded With Others, Respondents.

      Will — lapsed legacies — when the residuary legatees core authorized to awry out the testator's intentions.

    Among other bequests contained in the will of the plaintiffs’ testatrix was one to St. Luke’s Hospital, a charitable corporation, which bequest was held to he invalid, under section 6 of chapter 319 of 1848, by reason of the testatrix’s death within less than two months from the execution of the will. The residuary clause of the will was as follows:

      '■‘Sixth. All the rest, residue and remainder of my estate, real and personal, I devise and bequeath to the American Bible Society aforesaid, to the New f orle Hospital Society, to St. Luke’s Hospital, to the Board of Missions of the Bpiscopal Church for foreign missions, and to the Board of the same church for domestic missions, to he divided amongst them according to the amounts of their respective particular legacies above given, but with a power as to each of these residuary legatees to bestow any legacy which may come to them through any possible invalidity or lapse to such purpose as shall seem to them to have been intended by me.”

      Held, that although no trust was created in favor of legatees whose legacies might have lapsed, and although no imperative obligation to bestow the lapsed legacies upon them was imposed upon the residuary legatees, yet the residuary legatees were b.y the will fully authorized and empowered to pay over the lapsed legacies to such legatees, and the existence of such authority should be asserted in the judgment entered in an action brought to procure a construction of the will.
    Appeal from a judgment recovered on a trial at the Special Term.

      Roffmam, Miller and Wheeler R. Peokham, for the appellant.

      John E. Parsons, for the respondents.
   Daniels, J.:

By section 6 of chapter 319 of the Laws of 1848, as it was construed in Stephenson v. Short (92 N. Y., 433), the bequests contained in the will of Margaret Burr to St. Luke’s Hospital were unlawfully made. The corporation was organized and created under this act, and as the testatrix died in less than two months after the execution of her will, it was rendered ineffectual, so far as she designed, by means of its provisions, to benefit the defendant. As to this result there seems to be no ground whatever for doubt.

The hospital was intended by the testatrix to be made the recipient of the sum of $10,000, and also to receive one-fifth of her residuary estate. But for the reason already stated, these bequests have been prevented from taking effect in its favor, by the section of the act of 1848, which has just been mentioned. It was, however, the intention of the testatrix that the legatees named in the residuary clause of the will, should be invested with power to bestow such legacies as might go to them, by any possible invalidity or lapse, to the legatees which she intended by her will should receive them. This clause of the will provided that:

Sixth. All the rest, residue and remainder of my estate, real and personal, I devise and bequeath to the American Bible Society aforesaid, to the New York Hospital Society, to St. Luke’s Hospital, to the Board of Missions of the Episcopal Church for foreign missions, and to the Board of the same church for domestic missions, to be divided amongst them according to the amounts of their respective particular legacies above given, but with a power as to each of these residuary legatees to bestow any legacy which may come to them through any possible invalidity or lapse, to such purpose as shall seem to them to have been intended by me.

And while it may not be imperatively obligatory upon the legatees named in it, and authorized to participate in her residuary estate under it, it contained a clear indication of her desire that they should still bestow the invalid or lapsed legacy, as she herself intended it should take effect. And that desire may be complied with and lawfully carried into effect by the other residuary legatees. In consequence of the inability of the appealing defendant to take the legacy of $10,000 intended to be given to it, the residuary estate will be increased by that sum of money. The increase will arise solely out of the invalidity of the direction contained for the payment of this sum of money to St. Luke’s Hospital, and in that event it was the hope and expectation of the testatrix that the other beneficiaries under this final direction would not themselves take or appropriate the invalid legacy for their own ultimate use and benefit, but that after receiving the amount, they would bestow or pay it over to the institution she designed to receive this part of her bounty. Under this clause in the will they have the undoubted authority to carry into effect the express wish and desire of the testatrix. But as no trust has been or could be created for this purpose, and no imperative power was inserted in this clause of the will, whether the other residuary legatees shall pay over this sum of money to St. Luke’s Hospital must depend wholly and entirely on their own volition and proper sense of justice as it may be affected by the circumstances.

The judgment from which the appeal has been taken should be modified to the extent of affirming the existence of this authority in the other residuary legatees, and as so modified it should be affirmed, with the costs of the parties to be paid out of the residuary estate.

Davis, P. J.:

The testatrix, Mrs. Burr, seems to have anticipated that her special bequest to St. Luke’s Hospital might be defeated by the accident of her death before the lapse of the period of time at the end of which it should become valid, notwithstanding the prohibition of the act of 1848. But her intention and desire to give the sum of $10,000 to that institution are equally as apparent as though the legacy were valid. In her anxiety that the hospital should realize that fund, she threw herself in the contingency of its failure by her death upon the consciences of the other charities which she made her residuary legatees. "While bestowing upon them handsome special legacies, she gave them her residuary estate in the proportions named in the residuary clause, well knowing that if by her decease her special legacies should fail, they too would become part of her residuary estate. Advised, as she doubtlessly was, that she could not charge the failing legacies with a trust in favor of the beneficiaries named, she was forced to content herself with a strong expression of her wish that the residuary legatees would respect her wishes by giving the benefit of the special legacy defeated by her death to the charity for which it was intended. This created no legal obligation but a very solemn, moral one, made all the more impressive by the fact that the takers of the residuary estate are also large objects of her special bounty. It has been often said that “ corporations have no souls,” but these residuary legatees are religious and charitable corporations and must be assumed to know and recognize the nature and force of moral duties and obligations. The testatrix has given, so to speak, to their voluntary free will the power to carry out her wishes legally defeated by an accident. It remains to be seen whether they will vindicate their title to their names as religious and charitable bodies, by recognizing the wishes of their benefactress toward another most worthy charity, or justify the cynical assertion of the apothegm above quoted. The court can only leave this to their own sense of right and justice.

I concur that the judgment must be affirmed.

Present — Davis, P. J., and DaNiels, J.

Judgment modified as directed in opinion, and affirmed as modified, with costs of all parties out of the residuary estate.


source: Caselaw Access Project

author: Daniels, J.: Davis, P. J.: Brady, J.

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HENRY WILLIAMS, Appellant.

      Constitution — right of one accused of crime to he confronted with witnesses — meaning of the requirement— United States Constitution, wrt. 6, and wrt. 14, sec. 1 —Bill of rights, sec. 14 — Code of Criminal Procedure, sec. 8, sub. 8.
    Subdivisión 3 of section 8 of. the Code of Criminal Procedure provides that, in a criminal action, the defendant is entitled “to be confronted with the witnesses against bim in the presence of the court, except that where the charge has been preliminarily examined before a magistrate and the testimony reduced by bim to the form of a deposition in the presence of the defendant, who has, either in person or by counsel, cross-examined, or bad an opportunity to cross-examine, the witness, or where the testimony of a witness on the part of the people, who is unable to give security for bis appearance, has been taken conditionally, according to sections two hundred and nineteen and two hundred and twenty, the deposition of the witness may be read upon its being satisfactorily shown to the court that be is dead or insane, or cannot with due ‘ diligence be found in the State.”

      Held, that this enactment was constitutional and valid. (Bradt, J., dissenting.)
    That article 6 of the amendments to upon the accused the right “to be confronted with the witnesses against him,” did not apply to proceedings in State courts, but only to such as were instituted in the United States courts.
    That even if the provisions of the first section of the fourteenth amendment to the United States Constitution operated to secure in State courts the protection, afforded by the Constitution to persons accused of crime in the United States courts by the provisions of the said sixth article of the amendments, still the said section of the Code of Criminal Procedure was not inconsistent therewith, as the right “ to be confronted with the witnesses ” did not require that the accused should in all cases be confronted with the witnesses upon the trial of the indictment; that it was sufficient if be bad been once confronted with the witnesses against bim in any stage of the process upon the same accusation, and bad bad an opportunity to cross-examine the witness either personally or by counsel.
    That if the said section of the Code of Criminal Procedure should be held to be in conflict with the provisions of section 14 of the bill of rights of this State, then the said section of the Code, as being the latest expression oí the legislative intent must prevail, and the section of the bill of rights must be deemed to have been thereby altered or repealed.
    . Appeal from a judgment of the New York Court of General Sessions, convicting the defendant of the crime of larceny in the first degree.

      William F. Fintzing and George L. Simonson, for the appellant.

      John Vincent, assistant district attorney, for the People.
   Daniels, J.:

The only point made in support of the appeal, is whether subdivision 3 of section 8 of the Code of Criminal Procedure, was constitutionally enacted by the legislature of the State. TJpon the examination of the defendant before the committing magistrate, the deposition of Edward Smith was taken in the proceeding. It was subscribed by him and offered in evidence at the trial. The counsel for the defendant conceded that the formalties required by this subdivision had been complied with by the magistrate in taking the deposition, and the objection to its admissibility was placed exclusively upon the ground that this provision of the statute was not constitutionally enacted. It is to be inferred from what appears to have taken place upon the trial that the death, absence or inability of Smith to attend the trial had been legally accounted for, and that the deposition was admissible as evidence, if the legislature had the authority to provide for taking it and reading it in evidence, as that' has been done by this section of the Code of Criminal Procedure.

In support of the objection, it has been claimed that this subdivision of section 8 conflicts with that paid of article 6 of the amendments to the Constitution of the United States, which declares that in criminal prosecutions the accused should be confronted with the witnesses against him. But even the literal contraction of this article does not require that the accused should be so confronted upon the trial of the indictment itself, and when the effect of the same language has been considered by the courts, it has been held to be a compliance with what has in this manner been required, that at some stage in the progress of the criminal proceeding the accused should be confronted with the witnesses and afforded the opportunity for their cross-examination,, and when he has been so confronted and that opportunity has been afforded to him, that the evidence may afterwards, under certain circumstances certainly, be read upon the trial of an indictment subsequently presented against him. The construction upon this subject has been generally stated to be, if the witness was sworn before the examining magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him, or if there were a former trial on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane, or sick and unable to testify.” (Cooley on Const. Limitations [3d ed.], 318.) And that the evidence of a deceased witness, in this manner taken either upon a preceding trial or before the committing magistrate, may be read upon the trial, has been sanctioned by the following authorities : Crary v. Sprague (12 Wend., 41; People v. Newmann (5 Hill, 295); State v. Valentine (7 Iredell [Law.], 225); Summons v. State (5 Ohio St., 325); Brown v. Com. (73 Penn., 321); Com. v. Richards (18 Pick., 437). And it has been further held not to be a violation of this language to receive in evidence the dying declarations of a witness where they appear to have been made under the circumstances required to attend them by the established rule of law. (State v. Arnold, 13 Iredell [Law], 184; Robbins v. State, 8 Ohio St., 131; Shackelford v. State, 33 Ark., 539.) It is manifest from the authorities permitting the deposition or evidence of a deceased witness to be read upon the trial of the accused, that it has not been deemed essential that he should be confronted by the witness against him upon the trial itself, but if the evidence be taken in the course of the proceeding in his presence, and with the right or privilege of cross-examination secured to him, that will be sufficient to allow the deposition to be read in case of the decease -of the witness making it, between the time when it may be taken and the time of the trial. And if this article of the Constitution should be held to be applicable to the case, it would not, therefore, exclude the deposition received in evidence on the trial of the defendant.

But an equally, if not more conclusive, answer to the objection is that this article of the Constitution of the United States relates only to proceedings in the federal courts. It was not framed in such language as to be rendered applicable to proceedings in the State courts; and with other articles amending the Constitution of the United States adopted at the same time, has been held to be' inapplicable to proceedings in the courts of the States. (Withers v. Buckley, 20 How. [U. S.], 84, 90, 91; Walker v. Sauvinet, 92 U. S., 90; United States v. Cruikshank, Id., 542.) In the last case, in considering the effect of the amendment prohibiting congress abridging the right of the people to assemble and to petition the government for a redress of grievances, it was said that “ this, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own feitizens, but to operate upon the national government alone.” (Id., 552.) And the same conclusion was followed in Pearson v. Yewdall (95 id., 294).

The Constitution of the State of New York was not made to embody the provision contained in this amendment to the federal Constitution, but it was included in what is known as the bill of rights of the citizens and inhabitants of this State. (1 K,. S. [6th ed.], 375.) And section 14 is substantially identical with article 6 of the amendments to the Constitution of the United Stales. Its enactment evinced "the understanding of the legislature to be that this amendment made to the federal Constitution was not applicable to the courts of the State, for if it had been it would not have bee,n included within an act of the legislature, but that it was so included for the very obvious, reason that this amendment to the Constitution of the United States was not applicable to proceedings in the courts of the State. The only restraint of this description imposed upon proceedings in the courts of the State is that contained in this section of the bill of rights. It derived its authority wholly from the power of the legislature, and like all other legislative acts could be amended, changed, restricted or enlarged at other sessions of the legislature. It was, in other words, completely within the legislative power and authority of the State. Accordingly, when it was proposed to revise and codify the laws relating to Criminal Procedure, this change was proposed by the commissioners. That appears by their report to the legislature made in 1849 and published in the following year. At that time the change which has since been made was proposed, as it is now contained in the Code of Criminal Procedure, and the reasons inducing the commissioners to propose the change were stated in their note to the section as they framed it. That section being section 12, is for all practical purposes the same as the present section 8 of the Code of Criminal Procedure. By this section the fourteenth section of the bill of rights was in substance re-enacted “ except tbat where the charge has been preliminarily examined before a magistrate, and the testimony reduced by him to the form of a deposition in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness.” * * * “The deposition of the witness may be read upon its being satisfactorily shown to the court that he is dead or insane, or cannot with due diligence be found in the State.” This was a modification of so much of the bill of rights as secured to the accused the unqualified right to be confronted by the witnesses to be brought against him at the trial, even if it was to be so construed previously, and allowed that to be done in the early course of the proceeding, by complying with what the legislature directed in this manner, and that seems to have been as completely within the province of the legislature as the enactment of the original section was, which was inserted in the bill of rights.

Before this general change in the law of the State was made, the legislature had enacted a similar provision which was made applicable only to criminal proceedings in the city of New York. (Laws 1844, p. 476, chap. 315, § 11.) And it was to render that provision generally, instead of locally, applicable as it had been that this change was made by the Code of Criminal Procedure. And the authority of the legislature to enact the local law would seem to be equally as efficient for the enactment of the general law. This power as to the local law was considered in Barrow v. People (1 Comst., 386), and it was not deemed then to transcend in any manner the authority of the legislature over this subject, but the law on the contrary secured the approbation of the court, and if it could be so far sustained as it was so regarded, the general provision now contained' in the statute is equally as capable of being supported. This subject was considered in People v. Ah Chue (57 Cal., 567), under a like provision contained in the Criminal Code of that State, and no doubt as to the power of the legislature to enact it was in any form intimated. The subject was in like manner considered in Hurley v. State (29 Ark., 17). The power of the legislature of this State for the enactment of this change has been subjected to no constitutional restraint whatever, but it properly appertained to the authority vested in the legislature by the constitution, and the exercise of the ' power has been sanctioned by the authorities to which reference bas been made. The sole objection therefore which was interposed to the reading of the deposition was not well founded. It was the duty of the court to receive it and submit it as it did for the consideration of the jury. And as the appeal depends wholly upon the authority of the legislature to make this change in the law, and that authority has been found to be ample for the purpose, the judgment in the case should be affirmed.

Davis, P. J.:

My brethren are in direct conflict upon the grave constitutional question involved in this case, and its importance seems to require a statement of the grounds upon which I give my concurrence to the conclusion of one of them. ■

It is error to suppose that the Constitution of the State of New York contains any express provision that in all criminal prosecutions the accused shall enjoy the right “to be confronted with the witnesses against him.” That provision is contained in article 6 of the early amendments of the Constitution of the United States. It is well settled that that article had no application beyond the courts of the United States, and the trial of criminal prosecutions therein. (Withers v. Buckley, 20 How. [U. S.], 84; Walker v. Sauvenet, 92 U. S., 90; United States v. Cruikshank, Id., 542; Pearson v. Yewdall, 95 id., 294.)

But that provision of the federal Constitution was, by legislative enactment, made part of the bill of rights of this State, which in this particular adopted the exact language of the Constitution of the United States, and secured the right of an accused to be confronted with the witnesses against him in the courts of the State. The bill of rights has so long been the law of this State, and was so largely framed by the adoption of provisions of the Constitution of the United States not otherwise applicable to our courts, and by the enactment of several provisions of our State Constitution, that it is apt to be deemed a part of our Constitution which the legislature cannot contravene or change. But as is shown by my brother DaNiels, that supposition is not true. The legislature of the State has full power over the bill of rights as contained in the statutes, and may repeal or amend it by any enactment not in conflict with any provision of the State Constitution, or with tb,e Constitution of the United States as altered and extended by the later amendments. The portion of the section of the Code of Criminal Procedure now under consideration, is therefore not invalid because it conflicts (assuming that it does so) with a provision of the bill of rights; for it is in that case only, the conflict of a later enactment of the legislature with a former one, and the effect is that the later must prevail as an amendment or modification or repeal of the former. The question in the case is squarely presented by substituting the section or subdivision of the Code for the section of the bill of rights, and inquiring whether the provision of the bill of rights as thus altered is in conflict, first, with the Constitution of the State; and second, with the Constitution of the United States. The first of these inquiries is answered by reference to section 6 of article 1 of the State Constitution, which will be found not to contain any provision requiring that the accused shall be confronted with the witnesses against him. That right was left by the framers of the State Constitution to statutory protection and regulation, and it was deemed amply protected by the section of the bill of rights above referred to; and it is now protected by section 8 of the Code of Criminal Procedure, which secures the right to an accused person to be confronted at his i/rial with the witnesses against him, except where he has once been ■so confronted and had opportunity for cross-examination, and the witness is dead, or by absence from the State is beyond tfle reach of the process of the court. The second' inquiry: Is it void because in conflict with the Constitution of the United States, is not so easily answered. It is true that the original provision of the Constitution, contained in the sixth amendment, did not extend beyond the federal courts, and was no restraint upon the legislation of the State, or the action of its courts on the trials of accused persons in the State courts. But the question has assumed a new aspect under the operation of the fourteenth article of amendments to the Constitution, adopted July 28,1868. Section 1 of those amendments is in these words:

“Article 14, Seo. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

There can be no question but that this amendment extends to and operates exggroprio vigore upon the legislatures and courts of every State to enforce and secure all the privileges, immunities and rights within its scope and purpose. Upon every trial for crime in the courts of justice of the TJnited States, and of every State, it steps in to interpose the shield of the Constitution to protect the privileges and immunities of every citizen, and the life, liberty and property of every person, against the forbidden violations; and all State statutes in conflict with it are annulled by its superior and universal authority. It is not, however, necessary to discuss whether, on trials of criminal accusations affecting the life, liberty or property of the accused, it goes so far as to secure in State courts what was already secured in federal courts, to wit, that the accused shall have the right to be confronted with the witnesses,” for if it does it cannot be held to confer a new meaning on that phrase although its established meaning may be extended to new cases. The right secured to the accused, it should be observed, is to be confronted with the witnesses against him.” This language does not require that the accused shall in all cases be so' confronted with the witnesses upon the trial of the indictment. The courts have held, and doubtless correctly, that it is satisfied in cases of necessity if the accused have been once confronted with the witnesses against him in any stage of the process upon the same accusation, and has had the opportunities of examination by himself or on his behalf that such confronting was intended to secure.

My brother Daniels has cited the numerous eases in which this has been held. If this were not the construction, the death of a witness might in all eases set a criminal free, although the deceased witness upon one trial had given his testimony while confronted with the accused, and been subjected to a rigorous cross-examination, for there could be no exceptions to the rigor of such a construction as is now insisted upon by the accused. If, however, there can be one exception based' upon the necessities of justice, there can be others resting on the same reason. But there must be in all cases (assuming that the federal Constitution now applies) an actual confronting before a competent tribunal or a hearing or trial of the same accusation with opportunity afforded to the accused to avail himself of all the benefits such confronting offers to him. Then upon showing that the exigency of necessity, as declared by the Code, exists, to wit, death or absence from the State, the right may arise to use the testimony taken when the confronting of the accused and the witness occurred. The subdivision of the eighth section of the Criminal Code does nothing more than codify and enact the substance of the rule established by the courts in construing thé Constitution and the bill of rights. It embraces an exception growing out of the necessity that may arise by the inability to obtain the presence of the witness occasioned by his absence from the State; but that is justifiable on the same grounds that justify the exception based upon the death of the witness. The Code goes farther than the Constitution of bill of rights for it adds to the words “ to be confronted with the witnesses against him” the words “on the trial” which of course made it necessary to define and declare the exceptions to the general rule thus created by the Code.

I am of opinion that the conclusion of my brother Daniels is correct, and that the judgment should be affirmed.

Brady, J.

(dissenting):

The appellant was tried in the Court of General Sessions for larceny, convicted and sentenced to the State prison for the term of' five years. The evidence upon which he was convicted was the-affidavit of one Edward Smith, taken before the committing magistrate upon the appellant’s arraignment before him and the testimony of officer Murphy. It is.conceded that the evidence contained in the affidavit mentioned was necessary to warrant a conviction. It is also conceded that all the formalities required by subdivision 3 of section 8 of the Code of Criminal Procedure had been complied with. The single question is therefore presented whether that section is in violation of article 6 of the Constitution, and section 14 of the bill of rights of the State of New York. Both of these relate, it must be observed, not to a preliminary examination, but trial by an impartial jury, and declare that the accused shall be confronted with the witnesses against him. The section of the Code mentioned provides, however, as follows: “ In a a criminal action the defendant is entitled: 1. Toa speedy and public trial. 2. To be allowed counsel as in civil actions, or he'may appear and defend in person and with counsel; and 3. To produce witnesses in his behalf, and to be confronted with the witnesses against him in the presence of the court, except that where the charge has been preliminarily examined before a magistrate, and the. testimony reduced by him to the form of a deposition in the presence of the defendant, who has, either in person or by counsel, cross-examined, or had an opportunity to cross-examine the witness, * * * the deposition of the witness may be read upon its being satisfactorily shown to the court that he is dead or insane, or cannot, with due diligence, be found in the State.” ■

It appears from the record that the deposition of Smith was made in the presence of the appellant and reduced to writing and signed by him, and further, the appellant was advised that he had the right to cross-examine Smith, but did not do so, replying only that he did not think it was right to hold him on Smith’s statement. He denied the charge, however, but had no counsel. The affidavit was receivedunder objection and exception, on proof that the affiant could not be found after due and diligent search. Was it properly admitted ?

The preliminary examination is in no sense a trial by a jury and is not designed for that purpose. It is intended to protect the accused from further prosecution if the magistrate is satisfied that none should be had, thus enabling the accused to have a summary hearing before the magistrate and protecting him from a series of burdens which, if innocent, he would otherwise unnecessarily have to bear. It is not exalted in dignity because the right to cross-examine is given by the statute. This is not new in such examinations. The right to cross-examine has always existed. The fatal objection to the use of the deposition is that the accused is not confronted at the trial before the jury impanneled to try him with the witnesses, as required by the Constitution and bill of rights. He is confronted with him before the magistrate, who is really only setting the criminal machinery in motion, having no power to pronounce a judgment of which punishment may be predicated. This is not a compliance with the fundamental law and should not be tolerated. There are many reasons why it should be regarded as a dangerous procedure. There are many cases in which the accused, upon such notice as his arrest gives, would, even if innocent, be entirely unprepared to ask any questions arising from many causes which might exist and which the imagination can readily supply.

The charge is made by a stranger, and having made it he departs and cannot be found. He may be actuated by malice or mistaken as to the identy of the transgressor if a crime have been committed ; but his testimony is to be received if he cannot be found, and accepted as true without the test of a single element which distinguishes a trial from a mere preliminary examination, and this because the accused has been advised that he may have the privilege of cross-examination. What privilege 1 The cross-examination of a witness is an art which all lawyers do not possess, while with some it is a power which assists materially in the revelations of the truth and- prevents the commission of great wrongs. It is an ally of justice in its administration, and as important if not more important than any other element of jurisprudence. This was well understood by the framers of the Constitution, and was, no doubt, one of the considerations which induced the protection guaranteed by the right to be confronted with the witness..

It is true that in some states, and it may be said now in this State, the evidence of a deceased witness on a former trial may be read on proof of his death. (See State v. Fitzgerald, 19 N. W. Rep. [Iowa], 202; Com. v. Richards, 18 Pick., 434; Sullivan v. State, 6 Tex. Ap., 319 ; State v. Hooker, 17 Ver., 658; Kean v. Com., 10 Bush., 190; Walston v. Com., 16 B. Mon., 15; Marler v. State, 67 Ala., 55 ; Roberts v. State, 68 id., 515 ; Brown v. Com., 73 Pa. St., 321.) But there a trial has been had and all the rights of such a proceeding secured. The accused has been confronted with the witnesses and has had the opportunity to sift their evidence and assail them if he could do so.

True, also, it has been held in other States (see Commonwealth v. Richards, 18 Pick. [Mass.], 434; State v. Fitzgerald, 19 N. W. Rep., 202 [Iowa],) that evidence was received to show what a deceased witness stated on a preliminary examination, and although a constitutional barrier existed similar to ours. The extent to which the authorities in this State have proceeded has only permitted the evidence of a deceased witness upon a former trial of the same indictment to be used. (See People v. Newman, 5 Hill, 295; Crary v. Sprague, 12 Wend., 41.) And in the first of these cases it was expressly held that the public prosecutor could not use the testimony given by a witness on a former trial, though he be absent from the State. And it was suggested in that case that the rule which allowed the evidence of a deceased witness to be admitted in civil cases should not be applied td criminal proceedings, and the judgment in the case of Finn v. The Commonwealth (5 Band., 701, 708) was approved, in which Bjrockenbough, J., said that even the death of the witness could not in a criminal case be allowed as a reason for receiving his former testimony. Beference was made in ills per curiam opinion to the case of Crary v. Sprague, in which a different opinion was intimated. The court said it was not necessary to decide that point, however, because the case then in hand wa's one of mere absence from the territorial jurisdiction of the court. Justice Nelson said, in Crary v. Sprague, that the, testimony of a witness could not be received unless he were dead and his death were affirmatively shown, and proceeded further to say: “ Even diligent inquiry without being able to find the witness is not sufficient, though it is obvious there can scarcely be a shade of difference between the two cases (death and absence) either in principle or hardship.”

It is true, as remarked by Justice Nelson, that there is scarcely a shade of difference between the principle upon which evidence of a deceased witness is admitted, and that of an absent witness whose presence cannot be secured by diligent search. But it is quite apparent that in allowing the evidence of a deceased witness upon a former trial, where the right of examination was secured and in the presence of the jury, the inroad upon the constitutional protection was carried as far as it should, be. It ought not to be extended to the evidence given upon a preliminary examination of a witness not dead, but not able to be found. The People v. Newman (supra) sustains this proposition and it should be preserved. There is a wide distinction between a prehminaryproceeding and a trial, and the cases to which reference has been made form no precedent for the section under consideration. Its passage is regarded as having, been ill-advised and improvident, and its repudiation as a part of the law of the State should be declared at once. It cannot be too soon done.

The judgment appealed from should for these reasons be reversed and a new trial ordered.

Judgment affirmed.


author:
Bbadt, J.:
     Daniels, J.: Davis, P. J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MORRIS MARX, Appellant.

      Oleomargarine act — 1884, chap. 202 — it is constitutional.

    A conviction of the defendant of a violation of section 6 of chapter 202 of 1884, entitled “ An act to prevent deception in the sales of dairy products,” was affirmed by the General Term upon the grounds:

      IPiri'st. That the act prohibits the manufacture of oleomargarine as an article of food, without regard to any intent on the part of the manufacturer to sell the same als butter, and that the decision of the General Term in the Second Department so construing the act and holding it to be constitutional, should be followed. (Brady, J., and Davis, P. J.)

      Second. That the act prohibited only the manufacture of oleomargarine designed to be sold as butter, and that the evidence justified a verdict that the defendant in this case manufactured it with that intent. (Daniels, J.)
    Appeal from a judgment of the Court of General Sessions, entered upon the verdict of a jury convicting the defendant of a violation of section 6 of chapter 202 of the Laws of 1884, entitled u An act to prevent deception in the sales of dairy products.”

      F. It. Qoudert and Wheeler R. Peekham, for the appellant.

      De Ltmeey Nieoll, for the respondent.
   Bbadt, J.:

The appellant was convicted for selling an article in contravention of the prohibition contained in the following section of chapter 202 of the Laws of 1884:

Section 6. No person shall manufacture out of any' oleaginous substance or substances, or any compound of the same other than that produced from unadulterated milk or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk or cream of the same, or shall sell or offer for sale the same as an article of food. * * * Whoever violates the provisions of this section shall be guilty of a misdemeanor and be punished by a fine of not less than one hundred nor more than five hundred dollars, or not less than six months or more than one year’s imprisonment, or by both such fine and imprisonment, for the first offense and by imprisonment for one year for each subsequent offense.

It was contended upon the trial that the act mentioned was unconstitutional and void, and being so no offense had been committed. The learned recorder presiding reluctantly expressed himself adversely to this proposition but felt hound by the decision of the General Term of the second district declaring the act to be constitutional. He was inclined to agree with J ustice Pratt who dissented. (See The People v. McGann, 31 Hun, 358.) This case presents all the elements for the final adjudication of the mooted question, inasmuch as it is conceded that there was no intent by the appellant •on the sale to defraud the purchaser by representing the article to be what it was not. In other words it was sold as oleomargarine, and because there is also proof in the case showing that it was made ■of pure fat and that upon analysis its constituent elements proved to be the same as those of dairy butter.

Indeed it was shown by Mr. Henry Morton, a professor of the science of technology at the Stevens Institute, Hoboken, New Jersey, that oleomargarine was first devised or invented in 1872 or 1873, during the Franco-Prussian war, by Professor Mege, a man of scientific attainments and much reputation, and who it was reported had been employed by the French Government to devise a substitute for butter. Mr. Morton also confirmed the testimony given on behalf of the people as to the elements of oleomargarine. He said “ oleomargarine is a word used for two things. It is often used for the product obtained by the treatment of fats, by which there is gotten out from the fat a pure fatty substance having almost the identical elements of the fats existing in butter; and the word is also used to indicate the marketable article produced when that pure fatty substance is churned up with milk or cream and perhaps mixed with butter, so as to be in a condition of solid emulsion for use on the table. Now the oleomargarine before it is churned consists substantially of three fatty bodies, stearine, palmatine and oleine. These three substances are the only materials present in and constituting the oleomargarine stock or oleomargarine oil, as it is called, prior to its manufacture into table butter. And those are three of the fats which exist in ordinary butter. There is present in ordinary dairy butter a fourth fatty substance, known as butyrine.”

He also, in answer to a question, whether there was any difference between oleomargarine and oleomargarine butter, said, the former meant the pure fats and the latter the product, when some of that fat had been churned up with a certain amount of cream or the like, so that a certain amount of butyrine had been introduced and a little cheesy substance or curd which it gets from the milk. He said also that the only difference chemically speaking between oleomargarine butter and dairy butter, was that there was more butyrine in the latter. And further still that the former contained all the-elements of the latter. Professor Chandler, who had been chemist of the board of health for many years, its president for many years- and chairman of the sanitary committee for several years, also said that oleomargarine was manufactured in a very cleanly manner, more so than dairy butter, and that they were equally wholesome. Hr. George F. Morris, physician, surgeon and inspector of-the board of health was also called by the appellant, but the learned district attorney then said “ we do not propose to controvert this testimony. It is conceded that the witness will testify in substance as professors Morton and Chandler have on the subject on which they were-examined,” and this closed the testimony for the defense.

The question to be considered by the court' of last resort is therefore squarely presented, and it is whether the legislature is gifted with the power to declare under any possible pretense that the sale of an article of merchandise made from pure and wholsome materials,, and in itself harmless, pure and wholsome, and therefore not injurious, deleterious or dangerous to public health and combining the elements of an article of commerce not contraband but recognized, sold and protected, can be prohibited under pains and penalties, or at all. Such a sale, while it might excite the antagonism of dealers in dairy butter, and naturally, and arouse a spirit of opposition not easily quelled, would not, it would seem, either affect the public morals or the public health, and would not, therefore, invpke the intervention of legislative authority as to either of these elements. Accepting the statement of Professor Morton, the production of oleomargarine was the result of scientific experiment and investigation, with a view to find a substitute for dairy butter, and not with an intention to create a substance in any respect injurious or less wholesome. It was not conceived in fraud or for mischievous purpose, and therefore the only liarm its discovery and use could accomplish would be its sale as dairy butter, which it resembles in color and flavor. No one could doubt the propriety of any legislation designed to prevent this. No honest dealer would sell oleomargarine for dairy butter, but all tradesmen are unfortunately not honest, and hence the necessity of legislative action relative to a variety of transactions of daily life. A person seeking butter made at a dairy should not be imposed upon by receiving oleomargarine and vice versa, and hence the dealer should be bound to declare what either and both is if he sells both, or either if he sells but one. But without pursuing this subject further, which we do not feel at liberty to discuss, it is thought that uniformity in the laws promulgated by the several departments of the State should, if possible, prevail, leaving the parties concerned to their right to invite by appeal the determination of the court of last resort, and therefore the judgment pronounced by a majority of the justices of the G-eneral Term of the Second Department is accepted as controlling upon the question presented by the record, whatever views we may entertain and would express were the question new. If we held the law unconstitutional in this department, the sale of oleomargarine would be lawful, and no prosecutions under the act mentioned, in this county could well succeed, while in an adjoining department the sale would be unlawful and a prosecution warranted. The contemplation of this diversity invokes the necessity of concurrence and the decision of the court of last resort. Bor these reasons we affirm the conviction, with the suggestion that every facility should be granted the appellant for a speedy presentation of the point considered to the Court of Appeals.

Daniels, J.:

Section 6 of chapter 202 of the Laws of 1884, was intended to prohibit the manufacture of any oleaginous substance or compound designed to take the place of butter or cheese, as butter, when not made from unadulterated milk or cream, and to prohibit the same from being sold, or offered for sale, as that article of food. The act intended to be made criminal by this enactment is the manufacture of the prohibited article with the design that it shall take the place 'of butter or cheese manufactured from unadulterated milk or cream, or that it shall, when having been so manufactured be sold, or offered for sale, as that article of food. It is this design to deceive, when embodied in these acts, or either of them, which the law has rendered the subject of punishment. And that the design to sell the article so manufactured as butter existed in this case, was made reasonably clear by the evidence. It was in that design and act that the offense consisted. It was sufficiently charged. And it was within the province of the legislature to prohibit it and declare the violation of the prohibition to be a criminal offense.

The judgment accordingly should be affirmed.

Davis, P. J.;

If the Act under consideration is to be construed as one to prevent fraud and deception in selling oleomargarine as butter, and not as the article it really is, the Act could readily be upheld, but I think it is not just to the accused to hold upon the evidence that he was guilty of selling oleomargarine as butter, in any way that would or was intended to deceive the purchaser. The buyer bought oleomargarine, knowing what it was and that it was not butter, because he wanted that article as food, and because he could buy it cheaper than butter. There is nothing to show that it was in fact deleterious or hurtful as food, so that the purchaser who wanted it should be, for sanitary or police reasons, protected .against his own choice or taste.

The case ought to be regarded as a plain one, presenting a clear constitutional question touching the power of the legislature to prevent arbitrarily and absolutely, the manufacture and sale of a particular article of food which, when wholesome and pure, is not in. anywise injurious to those who from cheapness, poverty or taste, prefer or are obliged to use it.

In short the question is to be considered just as it would be if butter, the product of pure and unadulterated milk or cream, were the thing prohibited to be made or sold by any person in the State. Its merits would then be visible in a light as clear and distinct as a noonday snn to every one, except possibly a manufacturer or vendor of oleomargarine.

But as my brother Brady has shown, this court sitting in another department has passed upon the validity of this law. Due respect for its adjudication requires us to accept that conclusion as correct, and to put this case, by affirmance, in a proper position for the final settlement of the question by the court of last resort.

I concur in the result for that purpose.

Judgment affirmed.


author: Brady, J.:

text:
    HARRY MARION SIMS, as Executor, etc., of J. MARION SIMS, Deceased, Plaintiff, v. UNITED STATES TRUST COMPANY, of New York, Defendant.

      Commercial custom — when admissible to show the effect of a pa/rtiaula/r form of check.

    On November 15,1883, there was deposited with the defendant corporation by one Crowell, an agent of J. Marion Sims, a check for $5,000, drawn by the said Sims to the order of the defendant corporation. A certificate of deposit was issued by the defendant acknowledging the receipt of the said amount from Crowell, in trust for J. Marion Sims, and making it payable to Crowell in trust. Crowell having subsequently drawn out the money and converted it to his own use, this action was brought by Sims’ executor, to recover the amount so deposited.
    Upon the trial the defendant, to escape being charged with notice of Sims’ ownership of the money by reason of the form of the check, offered to prove “ a well established commercial custom, existing for many years throughout the United States, whereby banks and trust companies and other financial institutions, in the absence of a restrictive indorsement, accept as cash checks drawn to their own order, and deposit or apply the same as directed by the persons presenting such checks.”

      Held, that the court erred in refusing to admit proof of such custom.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict had been directed in favor of the plaintiff.

      Wm. A. W. Stewart, for the plaintiff.

      J. Alfred, Dmenport, for the defendant.
   Brady, J.:

This action was brought to recover the sum of $5,000 alleged, to have been deposited with the defendant, a banking corporation, by the plaintiff’s testator. The complaint alleges- the deposit of the sum named, and that it was received by the defendant for the use of the plaintiff’s testator, J. Marion Sims ; and further, that in consideration of the deposit the defendant undertook and agreed with the testator to hold the same in trust for him, to be paid on demand only, upon his written check or order or written acknowledgment in receipt thereof. It then alleged the death of the testator, the issuing of letters testamentary and the demand of the plaintiff for the amount of money deposited. The answer admits the demand and denies the making of the deposit and the other allegations in the complaint. For a separate defense it alleges that the $5,000 already mentioned was deposited on or about the 17th of November, 1882, by Gf. L. Crowell, in trust for the plaintiff’s testator, who obtained a certificate, which is as follows :

“CERTIFICATE OF DEPOSIT.

“No. A, 28,112.

“$5,000. “New York, Nov. 16, 1882.

“ These may certify that the United States Trust Company, of New York, has received from Gf. L. Crowell, in trust for J. Marion Sims, the sum of five thousand dollars of current funds, upon which the said company will allow interest at the annual rate of three per cent from this date, and on five days’ notice will ijepay the like amount in current funds, with the interest, to the said Gf. L. Crowell, in trust, or his assigns, on the return of this certificate, which is assignable only on the books of the company. The right is reserved by the company, upon giving ten days’ notice, to reduce the rate or discontinue the payment of interest on this certificate, or pay off the principal. Such notice to be served personally, or through the post-office, directed to the address named on the books of this company.

“J. S. CLARK,

“ H. L. 'Thornell, “ 2 V. President.

“ Secretary.”

That Crowell was then the general agent of the plaintiff; was authorized to deposit the sum in trust for the testator; that the latter ratified his act in so depositing it, and' that prior to December 2, 1882, Crowell drew out the sum in three installments and gave his receipt therefor. The receipt referred to is as follows:

Received, the sums on account of principal and interest of the within certificate, No. A, 28,712, as expressed against our signatures respectively:

For a third defense the defendant further answering, and repeating the admissions and denials aforesaid, alleges and avers, on information and belief, that the plaintiff’s testator, by exercise of ordinary care, might have discovered shortly after the 16th day of November, 1882, that said Crowell had deposited said sum of money in his own name in trust for him, and upon making said discovery it would have been his duty at once to have notified the defendant of the claim sought to be enforced in this action; that the defendant received no notice of said claim until the 1st day of January, 1881, or thereabouts; that had the defendant been notified of said claim within a reasonable time after said 16th day of November, 1882, it would have refused to pay any part of the sum of money so deposited to said Crowell. Or if the whole or any part of said money had been paid it might have recovered the same from said Crowell, as it is informed and believes. And the defendant is advised and charges that by reason of the premises the plaintiff- and his testator were guilty of gross negligence and laches sufficient to deprive the plaintiff of any cause of action he might otherwise have, had against the defendant in the premises.

The plaintiff, after proving the death of the testator and the appointment of the plaintiff as executor, offered in evidence a check canceled as paid, and rested. The check is as follows:

“ Corner of Canal and Thompson Streets,

“No__New York, Kovember 15, 1882.

“PEOPLE’S BANK OE THE CITY OE NEW YORK:

“Pay to the order of the United States Trust Company five thousand dollars in current funds.

“$5,000. (Signed) J. MARION SIMS.

“Indorsed: For deposit in Manhattan Co. U. S. Trust Company of N. Y. H. L. Thornell, Secretary.”

Whereupon the defendant moved for a dismissal of the complaint upon the ground that no'such contract was shown to have existed as that alleged in the complaint, and that the mere fact that the check was drawn by J. Marion Sims was not notice to the defendant that - the money ‘belonged to him. The defendant sought to prove upon the trial a custom, and relative thereto made the following offer: “ The defendant offered to prove a well established commercial custom, existing for many years throughout the United States, whereby banks and trust companies and other financial insti tutions, in the absence of a restrictive indorsement, accept as cash checks drawn to their own order, and deposit or apply the same as directed by the persons presenting such cheeks.”

The testimony was offered for two purposes, first to prove custom j and second to prove that the defendant accepted and disposed of the check without actual, knowledge of any title in the testator. The plaintiff’s counsel objected to the offer, which was rejected and an exception taken.-

The defendant also offered in evidence a power of attorney which was objected to and excluded. It was as follows :

Know all men by these presents, that I, J. Marion Sims, of the city of New York, have made, constituted, appointed and-by these presents do make, constitute and appoint Gilbert L. Orowell, of the same place, my true and lawful attorney for me and in my name, place and stead, to collect and recevoe all sums of money now due. or hereafter to become due to me, whether' from rents, accounts, bonds and mortgages or otherwise, and upon payment thereof to give good and sufficient receipts or other discharges therefor. Also to-transact all my ordinary bank business at the People’s Bank in the city of New York, to draw checks on said bank, and to indorse checks, promissory notes, drafts and bills of exchange for collection or deposit, this power of attorney to remain in force until said hank is notified of its revocation; giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do if personally present, with full power of revocation, hereby ratifying and confirming all that my said attorney or his substitute shall lawfully do or cause to be done by virtue hereof.

In witness whereof, I have hereunto set my hand and seal the fifth day of April, in the year one thousand eight hundred and seventy.

[r^p.] ’ J. MARION SIMS, [l.s.]

Sealed and delivered in presence of

Chas. I. Bushnell.

It then proved by competent testimony that Mr. Gray, a friend of the testator, having heard of the failure of Mr. Crowell, but without any authority from the testator, intervened for the purpose of securing to the testator the $5,000 which had been paid by the defendant to Mr. Crowell under the certificate of deposit, to which reference has already been made. He obtained from Mr. Crowell a note of a mining company on which an action was brought and judgment recovered in Utah territory, the amount of the note being $6,200, upon which nothing was recovered.

The doctor was at this time in Europe, and upon his return he was advised of the acts of Mr. Gray. The latter was asked upon the trial: Q. Did Dr. Sims ever ratify your act in sending out this note for collection to Utah ? A. No j he never did. Q. Did Dr. Sims ever have any transactions with Mr. Thomas Marshall in regard to this note, except through you? A. Not that 1 know of. Q. And when you told Dr. Sims what you had done in regard to this note, he disavowed the transaction and said that he looked to the Trust Company ? A. I can’t say that word “ disavowed; ” he said that he looked to the Trust Company ; that he deposited the money with them; sent it to them for deposit. These incidents were urged by the defendant as a ratification of the payment of the sum deposited to Mr. Crowell, by whom the deposit was made, as the agent of the testator.

Upon the conclusion of the testimony the defendant’s counsel .again moved for a dismissal of the complaint for lack of conformity ■of the proof to the cause of action set forth in the complaint. Tbis motion was denied and an exception taken.

Tie then moved for a dismissal of the complaint, on the ground that there was no proof of notice to the defendant that the fund alleged to have been received by it was the pi-operty of Ur. Sims or of the plaintiff. That motion was denied and an exception taken. . .

He then moved for a dismissal of the complaint for the reason that there was no proof of any damage to the plaintiff by reason of any of the acts proven against the defendant. Tbis motion was .also denied and an exception taken.

He then moved for a dismissal of the complaint, on the ground that the evidence shows that the plaintiff or the plaintiff’s testator ratified the act of Mr. Crowell and the transaction so far as the defendant was concerned in it. That motion was also denied and an exception taken.

The defendant’s counsel then asked that two questions of fact should be submitted to the jury. First. Whether the Trust Company bad notice of the title of the testator to the check, and, secondly, whether the payment made under the circumstances detailed was not ratified by the subsequent conduct of the testator, as also detailed in an apparent ratification of the act of Mr. Cray in .sending the note mentioned to Utah for collection, which was received from Mr. Crowell for the purpose, it was hoped, of paying the debt. The plaintiff’s counsel, after all these incidents, moved that the court direct a verdict for the plaintiff for the full amount, which was done, and to which an exception was taken by the defendant.

All the important facts and circumstances and the salient features of tbis case are thus detailed prior to the expression of any legal views of the question involved. Extending to the defendant all •the advantages which accrue from the facts stated, so far as they tend to relieve it from responsibility, it would seem to be beyond cavil that the plaintiff should succeed, for the reason that the check drawn by Dr. Sims was payable to, it and not to anyone else, and not to or for the credit of anybody else. It was a transfer in effect of the sum of $5,000 from the People’s Bank of the city of New York; upon which the check was drawn, to the United States Trust Company and to the credit of the drawer, Dr. Sims, and no other person. The attempt of the defendant to secure immunity irom responsibility by proof of the power of attorney is ingenious but not, it would seem, available, for the reason that the money was paid without any knowledge, according to the record of .the existence of that instrument, and if it were necessary to go into details about its effect in regard to the fund in question, it might be shown, it is thought, that it had no application.

The difficulty in the case arises however from the offer to prove a custom which, as we have seen, was to show a well established commercial usage, existing for many years throughout the United States; whereby banks and trust companies and other financial institutions, in the absence of a restrictive indorsement, accept as cash checks drawn to their order, and deposit or apply the same as directed by the person presenting them. It is quite apparent that the application of such a usage authorized the certificate in the form in which it was issued) Mr. Crowell having presented the check and being entitled, therefore, to the direction contained in it that it should be paid to him in trust or to his assignees.

• It is contended by the learned counsel for the plaintiff that this custom overrides the law, but this does not so clearly appear. It is true that custom and usage are not permitted to have effect when they contravene any established rule of law. (2 Greenl. on Ev., §249.) And that usage cannot alter the law. (Thompson v. Riggs, 5 Wall., 663, 980.) And, further, that “ a clear, certain and distinct contract is not subject to modification by proof of custom. Su'eh a contract disposes of all customs and practices by its own terms, and by its terms alone is the conduct of the parties to be regulated and their liability to be determined.” (Simmons v. Law, 3 Keyes, 217.) It is true, also, that usage is admissible to explain an ambiguity, but it is never received to contradict what is plain in a written contract, although this is a repetition in another form of the doctrine already expressed. (Collender v. Dinsmore, 55 N. Y., 208 ; Barnard v. Kellogg, 10 Wall., 383, 391; Bradley v. Wheeler, 44 N. Y., 495; Walls v. Bailey, 49 id., 464; Wheeler v. Newbould, 16 id., 392.)

But these rules are not applicable to the transaction in question, for the reason that the contract is not expressed in the instrument by which the deposit was made. It is a direction to the People’s Bank to pay to the defendant a certain sum of money, whether for the benefit of the holder or the drawer does not appear from the contract itself, although, as already suggested, the fair inference is that it was intended as a transfer from one depository to another, and although the purpose of such transfer, it must be conceded, was not expressed and does not appear inferential!y or otherwise. The transaction is, however, converted into a well understood contract by force of the usage, if it existed as asserted by the defendant, for the reason that the presenter has the right under its efficacy to require the application of it as he desires. The language employed in the case of Walls v. Bailey (supra) elucidates and controls. It is there said “ every legal contract is to be interpreted in accordance with the intention of the parties making it.”

A usage (with a limitation hereafter noticed), when it is reasonable, uniform, well settled, not in opposition to fixed rules of law, and not in contradiction of the express terms of the contract, is deemed to form a part of the contract, and to enter into the intention of the parties. Parties are held to contract in reference to the law of the State in which they reside, for all men being bound to know the law are presumed to contract in reference to it. And so they are presumed to contract in reference to the usage of the particular place or trade, in or as to which they enter into an agreement, when it is so far established and so far known to the parties that it must be supposed that their contract was made in reference to it.

Applying these principles it must be assumed that Dr. Sims knew when he gave Mr. Crowell the check, there being no restrictive indorsement, that the latter had the right to direct the application of it in such way as lie thought proper. The usage embraced this right and authorized him to demand its recognition by the defendant, If there had been in the check any direction to place the sum named in it to the credit of the drawer or to his account, .or to or for his benefit, it would have contained the elements of a contract to which the usage would not have applied. But, as already-suggested, it was a bald, naked direction to pay a sum of money to the trust company placed in the hands of Crowell who was empowered to deposit it, and according to the usage, if one were established, to direct the application of it in such way as he thought proper. This usage does not interfere with any rule of law. On the contrary, it is a declaration of a rule governing the relations between the parties, springing out of an instrument called a check which, according to usage, is incomplete in its teims and, therefore, subject to explanation and enlargement.

From this review it must be clear that the defendant should have, been permitted to prove the usage, and the exclusion of it was erroneous and demands that a new trial should be granted. The custom itself would seem to be a startling one, but nevertheless it .may exist with numerous others equally surprising.

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

Davis, P. J., concurred.

Present — Davis, P. J., and Brady, J.

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


author: Daniels, J.:

text:
    HENRY A. GRIBBON and Others, Appellants, v. ALBERT BACK and Others, Respondents.

      Attachment — when the affidavit may be made by am, agent — Oode of Omit Procedure, see. 636.
    The affidavit which section 636 of the Oode of Civil Procedure requires the plaintiff to furnish on applying for an attachment, need not he made by the plaintiff himself but may be made by an agent.
    The fact that the amount claimed is due to the plaintiff, over and above all counter-claims known to him, may be established by an affidavit of the agent, where it appears from his affidavit that the plaintiffs, who reside in Great Britain, had no personal connection with the transaction set forth, and that the agent personally sold and delivered the goods.

      Oribben v. Schillinger (30 Hun, 248) distinguished.

      ' Appeal from an order made at a Special Term vacating an attachment. One of the affidavits upon which the attachment was-granted, read as follows :
    “ "William Gribbon, being duly sworn, says he is the agent of the plaintiffs herein (who reside in Great Britain), and deponent has sole charge of their business in the city of New Tort. That the defendants are indebted to the plaintiffs in the sum of three thousand and twenty-eight dollars and twenty-eight cents, over and above all counter-claims and set-offs known to plaintiffs or deponent, which indebtedness arose as follows: That at the city of New York and between the 6th day of July, 1884, and the 1st day of September, 1884, deponent, on behalf of and as agent for the plaintiffs, sold and delivered to the defendants goods, wares and merchandise amounting in value at prices agreed upon to the sum of three thousand two hundred and thirty-three dollars and thirty-five cents, no-part of which has been paid, except the sum of two hundred and five dollars and seven cents, leaving still due and owing the sum of three thousaúd and twenty-eight .dollars and twenty-eight cents, and .the same is now unpaid. And this deponent further alleges on information -and belief derived from the affidavits of Franklin Bien and Samuel H. Wood, hereto attached, that the defendants have disposed of their property with'intent to cheat and defraud their creditors. No previous application of this warrant of attachment has been made.”

      FramMm Bien, for the appellants.

      Blumenstiel <Sa Hvrsch, for respondents.
   Daniels, J.:

The attachment was set aside on the authority of Cribben v. Schillinger (30 Hun, 248). The defect for that purpose, assumed to be in the affidavits, was in the statement that the amount claimed was owing to the plaintiffs over and above all counter-claims and set-offs known to them, or to. the person making the affidavit. But this case is not controlled by that authority. There the affidavit was made by the attorney, who had no knowledge whatever of his own, of the transaction, out of which the indebtedness was alleged to have arisen, nor of the dealings of the parties connected with it. While in the present ease it appears, by the affidavit of the agent,, that he personally sold and delivered the goods to the defendants, by which the indebtedness was created, and that the plaintiffs themselves were in no manner personally connected with the transaction. The business was carried on solely and exclusively for them by their agent in the city of New York, while they resided in Great Britain. . The agent was the person, therefore, who had knowledge of all the facts out of which the indebtedness had arisen, and knew whether any counter-claims existed against it in favor of the defendants. And where the person making the affidavit bears such a relation to the transaction, and possesses that degree of knowledge as the agent is stated to have had in this instance, the authority referred to-assumes that he may properly make this affidavit on behalf of his principals. Section 636 of the Code of Givil Procedure does not require that the. affidavit shall be made by the plaintiff, or by one or more of several plaintiffs. All that has been required is that the requisite facts shall be shown by affidavit, that the amount claimed is over counter-claims, and that may be done by the individual through whose personal agency the property has been sold or the debt has been otherwise created, when his principals have in no way participated in the transaction. This point has been before the courts in other cases where attachments have been dismissed on account o.f defective or insufficient statements made by the agent. They ai’e all distinguishable from this case, for here the business was wholly transacted by the agent on behalf of foreign principals, and he was conversant with all the facts in any manner relating to it, and was the individual by whom this statement could be most properly made.

The defendants were' charged with having disposed of their property with intent to defraud their creditors. The affidavits upon which the charge was made contained- statements of facts fully justifying the conclusion of- its truth. Their assignment was made in October, 1884, preferring debts to the amount of about $26,000, whose existence were inconsistent with the statements previously made and repeated by them of their financial situation. One of these debts was for" the sum of $15,500 to their book-keeper, while it is highly improbable that so large an indebtedness would have existed against them in his favor. Other preferences were equally as suspicious, thougli not so large in amount, and purchases made by them on credit maturing the day following the assignment, have an equal tendency to indicate an intention to defraud on the part of the defendants. These charges have neither been explained, denied or qualified by the defendants, or any evidence secured in their behalf, but they stand entirely uncontradicted and were abundantly sufficient to maintain the ground upon which the attachment was issued.

The order should be reversed, with ten dollars costs besides the' disbursements, and an order made denying the motion to vacate the attachment, with the usual costs.

Brady, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.


author: Brady, J.: Davis, P. J.

text:
    SPENCER ERVIN and Others, Appellants, v. THE OREGON RAILWAY AND NAVIGATION COMPANY and Others, Respondents.

      •Corporation — right of one obtaining a transfer of its stock, for the purpose of suing it, to maintain the suit.

    In this action, brought by certain stockholders of a foreign corporation, in behalf of themselves and all others who might join, to set aside certain sales alleged to have been corruptly made by the corporation, all of the plaintiffs but one were non-residents. It appeared that the one resident plaintiff, G-iffin, was a clerk in a broker’s office and acquired his stock on the day the action was commenced. One Weaver, one of the plaintiffs, on that day suggested that Giffin should become a stockholder that he might join in the action; Weaver then deposited with the brokers $800 to Giffin’s credit; Giffin then drew his check for $600 to the order o'f Weaver, and received from him a certificate for ten shares of the stock, indorsed in blank, which then stood, and which continued to stand, on the books of the company in the name of a person not a party to the action. Before this purchase Giffin was a stranger to the company and had no wrong to redress or injury to complain of. The court below dismissed the complaint as to him upon the ground that he was a mere nominal plaintiff seeking to invoke the aid of the court to enforce imaginary rights.

      Held, that this was error; that Giffin held the legal title to the stock and was entitled to maintain the action. *
    (Davis, P. X, dissenting on the ground that the transfer of the stock, under the circumstances stated, carried no title to Giffin.)

      Appeal from a judgment dismissing the complaint, entered upon the trial of this action at a Special Term.
    The action was brought by eight stockholders of the Oregon Steam Navigation Company, in behalf of themselves and all other .stockholders similarly situated and who might come in and contribute to the expense thereof, to set aside acts and transfers done or made by the said company as corrupt and fraudulent as to the stockholders. All of the plaintiffs, except Giffin, were non-residents of this State and resided in Pennsylvania.

      Thomas H. Hubbard, for the appellants.

      Artemas H. Holmes, for the respondents.
   Brady, J.:

The complaint in this case was dismissed solely upon the ground that there was a defect in the plaintiff’s title; that he had paid nothing for his stock and that he was not a real and bona fide litigant. And this view rests upon the conceded fact that the plaintiff took his stock for the purpose of joining in this'action, and for the purpose of aiding other plaintiffs, should the circumstance of their being non-residents of the -State require it.

It appears that the plaintiff Giffin is a resident of the State, and that on the day this action was commenced, namely, May 8, 1880, he was a clerk in the employment of Day & Heaton, stock brokers in this city. It was suggested by Weaver, one of the plaintiffs, that Giffin should become a stockholder of the Oregon Steam Navigation Company for the purpose of joining as plaintiff herein, and he became a stockholder of ten shares in the following manner: Six hundred dollars was deposited by Weaver with Day & Heaton to Giffin’s credit on the day .named, and Giffin forthwith drew a check on Day & Heaton for $600 to the order of Weaver, who thereupon handed Giffin a certificate of ten shares of the stock indorsed in blank. Before this incident Giffin was a stranger to both defendant companies, and, therefore, had no wrong to redress and no injury of which to complain, and had sustained no damage from the company.

It also appeared that Giffin never essayed to transfer the certificate for the shares, which still stand in the name of Webster, who is not a pai’ty to the suit.

The learned judge in the court below said: The man who sellathe stock gives to this plaintiff the money with which it was purchased. It brings him into the condition of being a mere nominal plaintiff and a volunteer, for the purpose of invoking the aid of this court to enforce really an imaginary right, and to redress some wrong which he really has not personally sustained.”

In a former review of some of the questions in this case, the-report of which will be found in 28 Hun, 269, it was substantially held that this action might be maintained at the instance of a resident plaintiff; and it was declared in that case that there was-no doubt that a claim against a foreign corporation by a non-resident could be assigned to a resident of this State for the purpose of enabling him to sue, and thus to avoid the disability which would otherwise exist. And this principle has been reasserted .in cases subsequent to those cited as justifying that conclusion in the opinion delivered.

In the case of Sheridan v. The Mayor (68 N. Y., 30), the court held that the plaintiff was the real party in interest under the Code, if he had a valid transfer, as against the assignor, and held the legal title to the demand; and further, that the defendant had no legal interest to inquire further. And this was founded upon the proposition that a payment to or recovery by the assignee occupying this position was a protection to the defendant against any claim that might be made by the assignor; and that an inquiry as to the bona fides of the transfer might become material if the rights of creditors were involved, or upon the right of interposing some defense or counter-claim against the assignor. And in the case of Morris v. Tuthill (72 N. Y., 575), it was held that the facts that the assignor of a mortgage and his assignee acted in concert, with a view unnecessarily to harass and oppress the mortgagor and with intent to prevent payment, to the end that the equity of redemption might be foreclosed and they become purchasers for less than its-value, did not constitute a defense to an action to foreclose the mortgage; nor did the fact that the assignee took title from motives of malice, and. solely with a view of bringing an action, and that the assignor from the like motive transferred without consideration, furnish any defense, and it did not impeach plaintiffs’ title. (See, also, Stone v. Frost, 61 N. Y., 614; Allen v. Brown, 44 id., 228.) The English Courts of Chancery appear to have established the rule that the owner of stock may maintain a bill and obtain an injunction, although he buy his stock to enable him to file the bill, and at the solicitation of holders of the same kind of stock; "provided, however, that he shall not be acting in the interest of a rival to the defendant corporation, or be indemnified so 'that* he incurs no risk or responsibility in bringing the suit. (Bloxam v. Metropolitan Railway Co., L. R., 3 Ch. App., 337, 343, 353; Seaton v. Grant, L. R., 2 Ch. App., 459; Filder v. London, B. and S. C. Ry. Co., 1 Hemming & Miller, 493; Forrest v. Manchester Ry. Co., 4 De Gex, F. & G., 126.)

For these reasons it is thought that the learned justice in the court below erred in dismissing the complaint upon the ground stated, and that the resident plaintiff, being rectus 'in curia, has a cause of action entitled to consideration.

The judgment should therefore be reversed and a new trial ordered, with costs to abide the event.

Daniels, J., concurred.

Davis, P. J.

(dissenting) :

My dissent is based upon what I consider to be the fact — that ' plaintiff Giffin bought no stock and took no title to any. A broker, who seems to have been interested in having the suit brought, handed to Giffin a sum of money, not Giffin’s but his own, and then handed Giffin a certificate of stock and takes back his own money, the stock standing in his own name and no transfer ever having been made to Giffin on the books of the company.

The court was right in holding that this transaction carried no title to the stock to Giffin.

It was a fraud on the law, designed to produce a shadow of title where there was in fact no substance. I am for affirmance of the judgment.

Judgment reversed, new trial granted, costs to abide event.


text:
    DANIEL B. CHILDS and HERBERT G. HULL, Respondents, v. GEORGE J. SEABURY, Appellant, Impleaded with HENRY C. PORTER.

      Covenant — damages— measure of:

    April 20, 1871, the plaintiffs entered into an agreement with the defendants, who were then already partners in business, by which a limited partnership was formed. The plaintiffs contributed the sum of $30,000 upon the assurance of the defendants that their assets then exceeded their liabilities by the sum of $10,510.61, and upon their agreement to themselves pay and discharge all the existing indebtedness of the old firm. They did not do this, hut used the money furnished by the plaintiffs, for that purpose. In April, 1872, the plaintiffs extended the partnership to July 1, 1875. October 21, 1872, the firm became insolvent, made a general assignment, compromised with their creditors and procured a release from them. Subsequently, the plaintiffs having-discovered the use to which the defendants had put the capital contributed by them,.brought this action to recover damages for a breach of the agreement made with them.

      Held, that as it appeared that all theylebts of the old firm had been paid or discharged no damages could he recovered because of the failure of the defendants to pay them from their own funds.
    That as it did not appear that the misappropriation of the plaintiffs’ capital was the cause of the firm's failure, such failure did not justify the recovery by the plaintiffs from the defendants of the amount of capital they had contributed as damages for the breach of their ag-reement.
    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.

      Roger A. Pryor, for the appellant.

      William G-. Ghoate, for the respondents.
   Brady, J.:

This action was brought to recover damages for the breach of au agreement contained in articles of copartnership bearing date the 20th of April, 1871. The defendants were then copartners under the name of Seabury & Porter, and were possessed of certain assets which they stated to the plaintiffs would exceed their liabilities by the sum of $10,540.61. The partnership formed was limited, the plaintiffs contributing, as special partners, the sum of $10,000 in cash. The business was dealing in drugs, medicines and other commodities such as are usually dealt in by druggists, wholesale and retail, and was to be continued by the defendants, by the articles of copartnership, for one year. In consideration of the plaintiff’s contributions, the defendants covenanted and agreed that they would assume, pay and discharge all the existing indebtedness of the old firm of Seabury & Porter. The defendants, it appears, did not assume, pay or discharge the existing indebtedness of the old firm prior to its dissolution, and used the capital furnished by the plaintiffs without their knowledge and consent, not for the general business purposes of the firm, but for the payment of such debts and liabilities. No part of the plaintiffs’ capital was replaced by them.

It also appears that on the 19th of April, 1872, upon the representations of the defendants that the copartnership had made a profit of $7,000, the plaintiffs, in ignorance of the appropriation of the special capital to the payment of the debts of the old firm, consented to continue and extend the copartnership until July 1, 1875. Six months after that arrangement, and on or about the twenty-first of October, the firm became insolvent, failed, and made a general assignment of all its property for the benefit of its creditors. Sub sequently a composition was made by which the creditors of the firm were paid twenty-five per cent of their claims, and the assignee and the defendants were released from all their demands.

It also appears that the defendants concealed from the plaintiffs, by false entries in the books, the violation of the copartnership agreement in the respect named, and it was not until after the failure of the firm that the defendants learned of the use of the capital contributed by them in payment of the debts of the old firm. And it also appears that in April, 1872, the defendants paid to the plaintiffs the sum of $2,519.85, which they stated was the plaintiffs’ share Of the profits; and further, that after the failure of the firm the plaintiffs realized from the assets, under an arrangement with the defendants, the sum of $1,072.42.

These sums were applied by the referee in reduction of the plaintiffs’ damages. The referee found the plaintiffs were entitled to recover from the defendant the sum of $7,484.14, being the difference betweeft the amount contributed by them and the sums already mentioned received by them as profits out of the assets. So that, in the judgment of the referee, the plaintiffs were entitled to recover the amount of capital contributed by them, less the payments received on account already mentioned.

The question presented is whether the plaintiffs are entitled to recover in this action upon the alleged breach of contract in omitting to pay the debts and liabilities of the old firm as contemplated by the articles of copartnership. The learned counsel for the appellants contends that the covenant to pay the debts and liabilities has no legal force for the reason that the defendants were only agreeing to do what they were legally bound to do. And this'is founded upon the old legal maxim, “ expressio eorum quae taeite insimt nihil operatin',” and the old rule that a promise to do what one is already legally bound to do, is so absolutely void and inoperative that it cannot constitute a consideration for a contract. But neither the rule nor the maxim has any application to a. case where the promise is made to a third party as a consideration for his doing what he would not be bound to do had he not obligated himself by a contract which rested in part for its consideration upon the promise on the part of the debtors to pay their debts, and impliedly by some means or fund of theirs which could be devoted or appropriated to that purpose. In other words,, the construction of the contract between the parties in this case must be that they were to pay all the debts of the old firm out of their assets, either firm or personal, and not out of the capital furnished by the plaintiffs which was to be used for the benefit of the copartnership as such, and therefore to matters pertaining to the new partnership, and not for the purpose of settling old claims. It was to be used, to state it more briefly, as capital in the new concern, and for nothing else.

It may perhaps be said, with great legal emphasis, that the failure of the defendants to pay the debts of the old firm out of their property was a breach of the covenant, and that a right of action might have been maintained when that was discovered. (Matter of Negus, 7 Wend., 501; Port v. Jackson, 17 Johns., 239 ; Jackson v. Port, Id., 179; Rector, etc., v. Higgins, 18 N. Y., 536.)

But no action was commenced until after the failure of the firm, and, indeed, until after a compromise with the creditors of the firm had been accomplished and all its obligations discharged. When this action was commenced, therefore, the covenant had been satisfied and the claim ;>•.’! Y; 1 tint fact would seem to be a complete answer to the plaintiffs’ canse of action in limine, although the plaintiffs’ right of action could not be limited by that circumstance. If it had appeared in the case that in consequence of the misappropriation of the capital contributed by the plaintiffs the firm failed, the plaintiffs would be entitled to the benefit of that circumstance, and, as a result, to the recovery of their capital, less the amount they might have received from the copartnership, out of any profits or assets. Upon that subject the referee has distinctly found that it does not appear from the evidence that the firm failed by reason of the alleged misuse of the capital contributed by the plaintiffs. And it thus appears that the plaintiffs’ right to recover the sum which was awarded them was based upon a technical rule of law — technical because the covenant was performed, but not in the manner contemplated by its terms.

It is conceded, indeed it is one of the facts of which the claim is predicated, that the defendants’ debts were paid, and by the plaintiffs’ money. In the absence of proof that the firm failed in consequence of such misappropriation, the inference must be that disaster arose from circumstances not unusual in commercial life, which occasions losses even when the business is conducted with seeming judgment and skill. When the capital of the plaintiffs was contributed by them it was based not only upon the promise of the defendants in reference to their old liabilities, but upon the judgment and capacity of the defendants to conduct the business contemplated, a duty devolving entirely upon them, the plaintiffs, as special partners, having no right under the law to interfere with them or to participate in it unless they desired to make themselves liable as general partners. It was a hazard, therefore, subject to the usual or unusual vicissitudes of business life; to the chance contingencies of trade; and they could not expect to be repaid the capital unless the business in which they had invested it was sufficiently successful to provide for it; and whether it would be or not would depend upon facts and circumstances which could not be anticipated, however brilliant the prospects of the enterprise at the time it was formed.

■ The law administered in this State at present does not rest upon mere technical rules, but upon the broader basis of right, and in the investigation of claims upon the whole law of the land, legal and equitable. In contemplation of these principles, it does not appear that the plajntiffs have sustained any wrong for the reason-stated, namely, that there is no evidence that the failure of the defendants was produced by the misappropriation of the capital; and without proof of that as a fact the plaintiffs are not entitled to succeed. They embarked their money in an enterprise which was not successful, and must accept the consequences. It is true the evidence discloses that the defendants were dishonorable in reference to the plaintiffs’ fund, having by false entries concealed the fact that it had been appropriated in a manner not author ized by the contract. But this has no material bearing upon the real question at issue herein, which was whether the plaintiffs' had sustained any damage, as already intimated.

For these reasons it is thought that the judgment was erroneous, and should be reversed and a new trial ordered, with costs to abide the event.

Daniels, J., concurred.

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