author: Landon, J.

text:
    The People, Resp’t, v. John Y. McKane, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    1. Oyer and terminer—Extraordinary term.
    Appointment oí “an extraordinary court of oyer and terminer” is a sufficient appointment under § 234 of Code.
    2. Same—Grand jury.
    A grand jury may be ordered for an extraordinary term of the court of oyer and terminer, though a grand jury for the regular court of sessions has been drawn.
    3. Evidence—Declarations—Co-conspirators.
    Acts and declarations of co-conspirators, though not parties to the record, are admissible against the defendant.
    4. Same.
    When justice requires it, the declarations of conspirators will be received before proof of the conspiracy.
    5. Same.
    On the trial for a conspiracy to commit a crime, evidence bearing on defendant’s ability to form the conspiracy is admissible.

      6. Same.
    Evidence that defendant used his official powers for the benefit of the election officers, is relevant on the trial of an indictment for co-operation in violating the election laws.
    7. Same—Best and secondary.
    Election returns are the best evidence of the facts therein stated.
    8. Same—Reputation.
    The prosecution may, where the defendant has offered evidence that his general reputation is good, show what his refutation is in regard to particular matters.
    9. Evidence—Charges.
    Yarious questions as to evidence and instructions to jury, decided.

      George W. Roderick (Edward 0. James, of counsel), for app’lt; James W. Ridgway, Dist. Atty., Benjamin F. Tracy and. Edward M. Shepard, for the People.
   Landon, J.

The court of oyer and terminer, at which the defendant was indicted, was held in pursuance of an appointment made by the governor. Section 234 of the Code of Civil Procedure provides that “the governor may, when, in his opinion, the public interest so requires, appoint one or more extraordinary general or special terms of the supreme court, or terms of a circuit court, or court of oyer and terminer.” The language of the governor’s appointment is: “I do hereby appoint an extraordinary court of oyer and terminer to be held,” etc. The counsel for the appellant urges that the power to appoint an extraordinary term of the court of oyer and terminer is not complied with by appointing an extraordinary court of oyer and terminer, and that no power exists to appoint such extraordinary court, and herice that the appointment was a nullity, and all that has been done under it void. We do not think this contention valid—it is based upon a verbal difference between the form of the statute and the form of the appointment—but there is no mistaking the fact that the governor intended to appoint, and did in fact appoint, an extraordinary term of the court of oyer and terminer. If the language of the appointment is susceptible of two constructions, that one must be preferred which validates the appointment, instead of that which invalidates it.

The defendant moved to set aside the indictment upon the ground that the grand jury of the county of Kings, lawfully impaneled by the court of sessions, was in session from December 4 to December 30, 1893, during which time the grand jury for this extraordinary term of the court of oyer and terminer, which found the indictment against the defendant, was in session; the contention being that while one grand jury is in session another cannot be convened.

Section 225 of the Code of Criminal Procedure provides that “a grand jury must be drawn for every term of the following courts: * * * the court of sessions of the county of Kings.” Section 226 provides that “a grand jury may also be drawn for the court of oyer and terminer of the county of Kings, upon the order of a judge of the supreme court elected in the second judicial district.” Mr. Justice Cullen, of the second judicial district, made the order for drawing this grand jury. The court was none the less of oyer and terminer because the term was of either extraordinary or ordinary. The statutory authority for drawing (his grand jury is ample.

The defendant demurred to the indictment, in that it did not contain a plain and concise statement of the things constituting the alleged crime. This defect is alleged to exist in the statement of the acts charged to have been committed by the inspectors. The crime charged in the first count of the indictment is ’“ willfully violating a provision of the election law relative to the registration of electors.” Section 41c of the Penal Code provides that: “Any member or clerk of the registry board who willfully violates any provision of the election law relative to the registration of electors or willfully neglects or refuses to perform any duty imposed on him by law or is guilty of any fraud in the execution of the duties of his office shall be punishable by imprisonment for not less than two or more than ten years.”

Thus the crime charged in the indictment is a crime specified in the statute. The defendant McKane, however, was neither a member nor a clerk of the registry board. But § 29 provides : “A person concerned in the commission of a crime, whether he directly commits the acts constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime is a principal.”

Hence it follows that, if any member or clerk of the registry board of the first election district willfully violated any provision of the election law relative to the registration of electors, and the defendant McKane aided and abetted m such violation, whether he himself was present or absent, or if he directly or indirectly counseled, commanded, induced, or procured any member or clerk of the registry board to commit such willful violations, he (McKane) Was guilty of the same violation, not as an accessory, but as a principal. The objection that the crime defined in § 41c is therein limited to the officers composing and assisting the registry board, aud therefore cannot embrace the defendant McKane, is clearly met by § 29, which, by the aptness aud comprehensiveness of its terms, includes those who have aided and abetted the violation of the law, or counseled, commanded, induced or procured its violation by the officers charged with its administration. "Section 29 makes the acts in the offense of the offender a test of his crime. The action in the indictment being a crime defined by the statute, it remains to be seen whether the charge against the defendant constituted a crime whereof he is accused.

Clearly, under the two sections of the Penal Code just cited, the specifications should allege that some clerk or members of the registry board did some act or acts which amounted to a willful violation of some provision of the election'law relative to the registration of electors, and that the defendant McKane aided and abetted or counseled, commanded, induced, or procured the officers, or some one or more of them, to do these acts. Prom the nature of the case, the acts of the officers constituting a violation of the law would seem susceptible of plain and direct statement, and we find such a statement. Sections 31, 32, and 33 of the election laws (chapter 680, Laws 1892) provide that the inspectors of election in each election district, and elsewhere than in a city, shall meet on the third and second Saturdays before each general election, and prepare, at such meetings, a list of the names and residences of persons qualified to vote in such election district at such election, which list, when completed, shall be the register of voters of the district for such election. The inspectors shall append to the list a certificate to that effect, and this certified list shall remain in the custody of the chairman of the inspectors until the close of the polls on election day. But the inspectors, not later than the Monday following the first Saturday of their meeting, shall make three certified copies of such original list and certificate, one of which shall be conspicuously posted in the place where such meetings have been held, and one shall be retained by each of the other two inspectors until the close of the polls of such next election. Such list and registry of the voters, and the certified copies thereof, shall, at all reasonable hours, be accessible to the public for examination or for making copies thereof.”

The indictment alleges that the inspectors composing the board of registry did make and complete a certified and original list of persons qualified to vote in the first election district at the next general election. It does not allege that they made any certified copies, but it does allege that they did willfully and knowingly neglect and refuse to have such list of registry of voters, and three certified copies thereof, accessible at all hours to the public for examination, and for making copies thereof. The defendant urges that, because it is not alleged that these copies were made, therefore it could not be alleged that any one or all of them fcere withheld or concealed. It may be literally true that a nonexisting paper cannot be concealed, but it is also true that an effective way to withhold a paper, which the law commands to be copied and accessible, is to refuse to make it. It is withholding its accessibility by withholding its existence. Proof that it was not made would tend, in connection with other circumstances, to support the allegation that the inspectors refused to have it accessible. The defendant also contends that the registration was not completed, and therefore the subsequent withholding or concealment of the list and copies was not a violation of any provision of the law “relative to registration.” But the law requires the registration to be made, and one copy posted, and the original list and two copies to be otherwise accessible to the public. Thus the publicity of the registry is an essential feature of the law “ relative to the registration of electors.” 'The publicity of the registry may be subsequent to the mere act of registration, but, the law relative to registration provides for its publicity, to the end that the registration shall have all the beneficial association publicity can give it, and all the safeguards for verity and fairness which a jealous and vigilant public scrutiny can secure. The law relative to the registration may be regarded as one subject, embracing all the details necessary to its completeness and. efficiency; thus making every one of such details part of the law relative to the registration.

The indictment then proceeded to specify, in connection with the crime of the inspectors, how the defendant McKane was concerned in the commission of the crime ; and he said John Y. McKane did, then and there, feloniously, unlawfully, and knowingly counsel, command, induce and procure, aid and abet the said John W. Murphy, Morton Morris, and John H. Brownhill to so neglect and refuse to have such list and registry of voters, and three certified copies thereof, at all seasonable hours, accessible to the public for examination, and for making cbpies ¿hereof. The indictment then further alleges that the defendant McKane and the defendants the inspectors did feloniously and willfully cause and procure that the said list of registry of voters, and three certified copies thereof, and each of them, should not be accessible to the public for examination, or for making copies thereof, but should be concealed from the public, whether for examination or for making copies thereof. The defendant does not contend that the acts which charged against him aiding and abetting, commanding, inducing, and procuring are not sufficiently alleged. The second count of the indictment differs from the first only in charging the crime ; the specification of the facts constituting it is the same as in the first count. The second count charged the crime as follows: “And the grand jury aforesaid, by this indictment, do further accuse the said John Y. McKane, J. W. Murphy, Morton Morris, and John H. Brownhill, and the said Murphy, Morris, and Brownhill being members of the registry board, of the crime of willfully neglecting and refusing to perform the duties imposed upon them, the said Murphy, Morris, and Brownhill, by law, as members'of the registry board,” etc.

The learned counsel for the defense insists that, since the statute requires the chairman of the inspectors to take into-his custody the original registry list, and each of the other inspectors to take into his custody one of the certified copies, all of which shall be accessible to the public, and that, if the crime proved bad been the concealment by one inspector only of this list, without participation by the others, then such crime would not be neglect of duty by the inspectors as members of a registry board, as charged in the indictment, but of the offending inspector only, and, therefore, if the defendant McKane did aid and- abet him, he would not be guilty of the crime whereof he was accused, but of some other crime.

Theoretically, this may be conceded, but the concession would not go to the sufficiency of the indictment, but. to the sufficiency of the proof of the general crime charged in the indictment. The trial court, at the request of the defendant’s counsel, charged the jury “ that, although the jury may be satisfied that the defendant was guilty of other crimes or violation of the election law, it is their duty to acquit unless they find him guilty of the particular crime charged in the indictment.” The court also instructed the ■jury that their first duty was to determine whether the guilt of the inspectors was made out, and also addecl: “It is essential, to maintain the'case for the prosecution, that you should be satisfied by proof which leaves no reasonable doubt in your minds that the inspectors of the first election district did neglect and refuse to perform the duties which the law imposes upon them in respect to keeping the registry list, and certified copies, accessible to the public. ”

The evidence on the part of the people was directed to show that the keeping of the registry list inaccessible to the public was the common purpose and act of all the inspectors. We conclude that the suggestion of error arising from the possible guilt of one inspector, and the innocence of the others, presents a hypothetical, and not an actual, case before us. The defendant specified, as a further ground for the demurrer, that more than one crime is charged in the indictment.” The indictment thus clearly shows that each inspector is not charged with a separate crime, in addition to the joint crime in which the defendant McKane is charged with participating. Of course, the charge of a joint commission of crime implies the charge of the individual one of each person joined in the charge, and, in a proper case, may admit of the conviction of one and the acquittal of another defendant. But this is not to charge two separate crimes against one defendant, but to charge one crime against two or more defendants.

This indictment contains three connts. The facts constituting the crime are the same in each. The crime charged in the first count is the willful violation of the election law relative to registration ; in the second count, the willful neglect or refusal to perform a duty imposed by law; and, in the third, the. willful commission by the inspectors of a fraud in the execution of the duties of .their office. Section 41c of the Penal Code, above quoted, groups these three crimes together. It is possible that cases may arise in which the distinction between these crimes will be clearly apparent. Upon the trial, it was thought that the facts charged as constituting the crime were less clearly to the enumeration of crime found, and the first and second, and then the third, counts, were abandoned as unnecessary. The distinction between the two crimes charged in the first and second counts is not here clearly seen. The willful violation of law and the willful neglect to obey it, must be different forms of stating the same substance, since both may result from the same acts. Such is the case here. Section 279 of the Code of Criminal Procedure aptly meets such a case. It provides: “ Where the acts complained of may constitute different crimes, such different crimes may be charged in separate counts.” There are many exceptions to the warrants of the court upon the admission of evidence. The learned counsel for the defendant, in pressing these exceptions upon our notice, practically ignores the fact or theory of the conspiracy upon which the people presented their case upon the trial, and the rules applicable in cases of conspiracy under which the trial court admitted much of the evidence excepted to.

The theory of the people was that the defendant McKane, and the inspectors of election of the six election districts of the town of Gravesend, and several members of the police force, and some members of the town judiciary entered into a conspiracy to accomplish the concealment of the several registration lists of the six election districts, that is to say, to prevent any examination or copying of the lists by any persons not in political sympathy with McKane, and especially by W. J. Gaynor and his representatives. Mr. Gaynor, at the time, was candidate for election at the general election, about to be held, for the office of justice of the supreme court in the second judicial district of the state, a district which embraces Kings county, and thus the town of Gravesend. ,

If such a conspiracy was shown to exist, then the acts and declarations of any of the conspirators in furtherance of the conspiracy was admissible in evidence against the defendant McKane, one of the members of it. It is not necessary that the co-conspirator, whose acts and declarations in furtherance of the ends of the conspiracy are offered in evidence, should be a party to the record. It'is plain that the indictment or indictments of the conspirator, whose acts and declarations are offered against his fellow, Can neither impart any quality of verity or of relevancy to such acts and declaration, nor withdraw it from them; hence his inclusion or exclusion as a party to. the indictment is not material. The evidence given tending to prove the conspiracy was circumstantial in its character, from the very nature of it. Part of the evidence tending to prove a conspiracy tended also to prove what the conspirators did in furtherance of it. While the general rule is that a conspiracy must be shown before the acts and declarations of the conspirators, and other than the defendant upon trial, can be admitted in evidence, yet this rule, wisely framed for the protection of the defendant, is not so urged as to require a sacrifice of truth and substance to matters of form, in order to forbid the trial judge to receive evidence in such order or to such extent as will develop as clearly as possible the whole truth. It may well be that the whole story must be told before the court or jury can be sufficiently instructed to pass definitely upon the preliminary fact, the conspiracy itself. The narrative all told, it may yet be such a disputed question that the defendant is entitled to have the jury pass upon it. It may, therefore, in order that justice be stated at the threshold of the trial, be left entirely to the discretion of the trial court to determine as to the order of proofs.

We must look at the whole evidence to see whether fact of the conspiracy was sufficiently proved to justify the admission of the acts and declarations of the defendant co-conspirators as part of the very res gestee of the attempted execution of tbe conspiracy itself. We can undertake to present here but the mere skeleton of the propositions of fact by which the inference or the existence of the conspiracy was sought to be conclusively implanted in the minds of the court and jury, and will show the reason for the admission of the several masses of circumstantial testimony, so as to realize its wonderful force.

1. The motive of the defendant McKane to form and execute such a conspiracy was alleged to be to maintain and increase the prestige of political power which he had already acquired by controlling the vote or returns of the vote of his town and abnormally increasing its numerical and almost unanimous total. Especially, also, to deprive Mr. Gaynor of the means of preventing swollen returns adverse to his election.

2. The means and ability of McKane to form such a conspiracy embraced a mass of facts tending to show his extraordinary political, official, and unofficial power in the affairs of his town and townsmen, and his relations with, and influence over, the alleged conspiracy.

3. Especially was his opportunity to form such a conspiracy increased by the fact that the six election districts of the town were so laid out'that every one of them embraced a part of the town hall building wherein was located the registration office and polling place of every district.

4. It was shown that the registration lists in all the districts were kept inaccessible to Mr. Gaynor and his agents, despite their repeated and persistent efforts to obtain access to them or to some official copy of them. Their efforts to obtain access, and the means by which their efforts were baffled, tend to suggest the inquiry,—and possibly to answer it,—by whom were these things instigated, counseled, and abetted, and for what purpose, and how wide must the conspiracy have been, to have been so successful?

5. Mr. Gaynor, finding obstacles to his inspection of the registry lists, apparently interposed by McKane, vigorously asserted and prosecuted his clear right to the inspection of them, in spite and in contempt of McKane and his power. This action by Mr. Gay-nor seems to have provoked McKane; his power and prestige were threatened, and, it is -not impossible, his sense of the enormity of the crime was obscured by his ambition to maintain his supremacy.

It is also proper to observe that the people sought to show: (1) That Mr. Gaynor’s agents, upon inquiry and inspection at the poliing places in the town hall, did not find any lists posted where they could examine them. (2) That, upon inquiry of the single policeman in charge, they were informed that McKane’s orders for inspection must first be obtained. (3) That McKane, upon being-informed that such obstruction existed, assumed responsibility for it, and promised to remedy it. (4) That McKane did not keep his promise; warned Mr. Gaynor that he would have a hard job of it. (5) That Mr. Gaynor notified McKane in writing that he should send the necessary men to Gravesend to copy the rolls. (6) That thereupon pretended copyists were selected from subordinates of the appellant or defendant, upon his power as chief of police, to monopolize the poll lists, so as to keep them inaccessible to Mr. Gaynor’s agents. (7) That the pretended copyists, acting immediately under the direction of one Sutherland, a justice of the peace, and member of the board of police of Gravesend, did, at the town hall, by pretending to make copies, keep the lists inaccessible to* Mr. Gaynor’s copyists, who made repeated attempts during several days to gain access to the lists; and that Sutherland acted in concert with MeKane, with the inference sought from all the circumstances. (8) That Mr. Gaynor applied to the supreme court for a mandamus against the inspectors of all the districts to compel them to permit him to copy the lists, but was defeated, as to all the districts save the sixth, in consequence of ¡the affidavits made by the defendant and others, McKane employing counsel for the purpose. MoKane’s affidavit confirmed some of the above statements. (9) That Mr. Gaynor, by his agents, then sought to obtain copies of the lists in the hands of the individual inspectors of the several districts. There .were eighteen of these inspectors. Upon inquiry and search, these inspectors were not then found, except that late on Monday before the day of election, under pressure of mandamus, an inspector in the sixth district permitted his lists, the least important of all, to be inspected. (10) That Mr. Gaynor, failing of success during the week ending Saturday preceding the election, sent his copyists, 22 in number, to Gravesend about midnight on Saturday, to the end that they might find the several inspectors at home early Sunday morning, and possibly thus succeed in obtaining at their homes the desired copies of the lists. When the copyists arrived at Graves-end, 14 alighted at the station near the town hall, and were arrested upon the order of the appellant, who had previously received notice that they were coming to obtain copies of the lists. These copyists then arrested were kept in durance until released upon habeas corpus proceedings on the following morning. Thus rested that day all attempts to precure the copies. (Í1) Mr. Gaynor had notified McKane that he would have the election watched during the election day, in order to prevent or avoid fraud. He sent 16 men to Graves-end, for that purpose, on the Monday evening previous to election. About 20 gentlemen volunteered their assistance, and rode from Brooklyn to Gravesend on the early morning of election day. Twelve of these gentlemen had received appointments as Republican watchers, in apparent pursuance of § 103 of the election law. They also had received for service an injunction order issued the previous day by Mr. Justice Barnard, restraining the defendant and others from preventing these Republican watchers from acting as such, with the privileges the law confers upon such watchers. By the efforts exercised by the police of Gravesend, under the direction of the defendant, the men and watchers were assaulted; and some of them arrested. The 16 men sent to watch outside the hall were forcibly kept at such a distance that they were helpless and useless. The injunction, when the attempt was made to serve it, was treated with open contempt by the defendant.

Reference should be made to some of the evidence tending to show the belief in the ability of the defendant to cause the making of false return. We can readily understand, as we proceed with the examination of the record, the corroboration which one series of facts gives to another. The relation which existed between the facts, at first disconnected and remote, form each their motive and explanation for considerable of the conspiracy., their apparent in-consequence and irrelevance, if considered apart by themselves, and liow all the facts, considered together, assume a culminating cogency of force, compelling the belief in their common inspiration and object. That they were evidence tending to prove conspiracy was admissible, and also evidence tending to prove whafrwas done in furtherance of it.

We will now notice the exceptions to the admission of evidence. It was shown that the defendant was a supervisor of his town, chief of the police, chairman of the board, and its treasurer. The people were permitted to prove, the defendant objecting as immaterial and irrelevant, that, in his capacity as supervisor, the defendant was one of the members of the health board of the town, and its chairman. This board was charged with the construction of sewers in the town. The defendant was asked, upon his cross-examination, the extent to which the health board had constructed sewers in the town, and the debt created thereby. It may have been too trifling to be of significance. The answer was that the debt created for the purpose was between $40(1,000 and $500,000. The witness Veorhees was general clerk and commissioner of investment of moneys from sale of the common lands of the town. He was asked, defendant objecting, to what officer he paid over the moneys received by him from the investment. Ho answered, to the defendant, as supervisor. Asked as to the amount, defendant’s objecting overruled, he answered that he paid him about $200,000. These facts were relative to the question of the defendant’s influence and power. It certainly was material to show what these were. Of course, the charge against defendant implied his possession of them in a very high degree. The facts thus may have been extraneous to the crime charged, but not extraneous to his power and means to commit it. The jury would have been justified in accquitting the defendant, if, upon the whole evidence, they had had a reasonable doubt of his possession of sufficient power and influence among the inspectors and their assistants to form and manage such a conspiracy. This became a prime factor in the people’s case, and the evidence under question was relevant, .just as, with a watchman, his being an habitual drunkard might be relevant in questioning as to his care in managing his watch, or being an expert penman might be relevant to the question of his ability to commit a forgery, ór, with an alleged poisoner, it might be relevant, as a medical student, attending lectures upon medicine, as evidence. People v. Harris, 136 N. Y. 423; 49 St. Rep. 751. The evidence of the division of the town of Gravesend, in 1890, into six election districts, so formed that the town-hall building covered part of each one of them, and still so continued, was relevant to the jlact that the place was favorable to the formation and execution of the alleged conspiracy. It was objected that, in1 this respect, the evidence should be limited to the first election district. Aside from the propriety of describing the locality as it actually was, it is clear that the conspiracy charged, in order to attain its complete ends, must embrace all of the election districts of the town. That the defendant was the deviser of this plan of election districts was, in connection with its adoption, relevant to the question of his alleged power in the town, and of lais prestige, his alleged control of its vote, and his alleged ambition to continue and increase this prestige. It is not difficult to understand that this device of one town ball reaching into six election districts would give to the defendant’s admirers an enlarged estimate of his powers and skill.

The people were permitted to give testimony, over defendant’s objection, tending to show he had used his official powers to the benefit of several of the Republican watchers at the general election in 1893.- One of them was shown to have been awarded by the town board, of which the defendant was the chairman, the contract, still in force, for the electric public lighting, amounting to upwards of $50,000, and that all the other Republican watchers, —sundry policemen and others, saloonkeepers having a license, and others,—were engaged in business in which the favor of the police might be desirable. It was part of the people’s case to prove that the Republican watchers were either in the conspiracy to keep the registry lists inaccessible upon election day to Mr. Graynor’s agents, or that they co-operated to that end. McKane was known to be a Democrat, but a Democrat who, for personal reasons, sometimes caused or permitted the vote of the town to be returned for the Republican candidates. The obligations under which the Republican watchers at this election were to him, and his official power over that, as well as other means of livelihood, where facts relevant to the probability of their co-operation with him in the conspiracy. His facility for shifting his power from one to another, and the fact that personal likes and dislikes influenced him, were not irrelevant in this respect. The people were permitted to put in evidence the poll list copied at the general election for 1893 in the six election districts of the town, and also the registry lists for 1893 of the persons qualified to vote in the same districts, as prepared and certified by the inspectors. Also, the poll lists for the second, third, fourth, and sixth districts for the year 1892. The defendant objected to these several lists as irrelevant and incompetent evidence of the facts. The poll lists of 1893, being official records of the votes actually cast, or recorded as cast, when compared with the registry lists of the same election, were material upon the question of the fraudulent character of the registry list, and thus upon the question of the motive for keeping the registry lists inaccessible. Thus, comparison shows that many persons whose names are in alphabetical order upon the registry lists are recorded upon the poll lists as voting in the same order. Thus the names of Ring, Rich, Richardson, Rich, Rickter, Rilly, Rigna, Rurnph, stand in the order here given upon the registry list of the first district. The same names are found upon the poll list in the same order, and as voting ballots numbered respectively 79, 80, 81, 82, 83. 84, 85 and 86.

This remarkable coincidence of sequence on both registry and poll lists touches in striking light the question of honesty of construction of the registry and poll lists and the returns. A false registry list is an obvious precedent of a false poll list, and a false return of the election. The example given is an example to strike. Nor is. this striking in only the list of the first district, but also some of the other districts. The absence of anj sufficiently specified place of residence of the voter is not infrequent. The registry lists and poll lists of the first district, with the acts of the defendants Morton, Morris and Brownhill, inspectors for that district, show them united with defendant McKane, and thus pertain to the question of their guilt. The registry and poll lists of three of the other districts contain similar internal evidence of fabrication, and, because of similar motive, was this similarity the result of concert in crime among the several inspectors of the several districts? The fact was evidence relevant to the question. If a concert in design and in crime, then a link existed between the registry list and the poll list of the first election district* and those of the other districts. It was a link that bound acts separate and distinct into acts concerted and executed with the common idea of evil purpose. It was for the judge to decide, in the first instance, upon his own inspection, as assisted by all the evidence, whether the link existed. If it did not, then the lists of the districts other than the first were inadmissible. If it existed, they were admissible. To our inspection, as now presented by us, the link is clearly visible, and the links of the other districts were properly admitted. These lists, taken together, tend to prove that the inspectors of the first district were co-conspirators with the inspectors of the other districts, and possibly add something to the meaning of the other evidence tending to connect McKane with the conspirators. It is true that the conspiracy thus suggested has for its remote purpose a false return of a larger vote than the true one, and that the defendant is only im dieted for committing some of the acts leading up to the final result; but the greater includes the less, and, to the extent we can see the greater was accomplished, to that extent we must infer that the intermediate steps necessary to its accomplishment were also accomplished. While it is true, as a general rule, that conviction for one crime should not be obtained by proof of another, yet it is obvious that the rule does not apply where the two crimes are so related that the one envelopes or implies the other, or is involved in its commission.

The registry lists for 1893 contain 6,580 names of electors of the town. Upon the question of motive, it is material to show that that number was too great. The People placed in evidence the official enumeration of inhabitants of the town of Gravesend taken February 12, 1892, pursuant to chapter 5, Laws 1892, showing the whole number of inhabitants to have then been 8,343. This casts some light upon the question. It is not necessary that the light should be of absolute clearness and exactness in order to be admissible. What is said hereafter in regard to the admission of the electon returns is applicable to the admission of the census returns. The authorities are to the effect that the courts take notice of the population of the political divisions. 1 Greenl. Ev. § 456; Farley v. McConnell, 7 Lans. 428; 52 N. Y. 630; Merz v. City of Brooklyn, 33 St Rep. 577; 11 N. Y. Supp. 778; 128 N. Y. 617; 38 St. Rep. 1014; 12 Am. & Eng. Enc. Law, 175. We think the census returns were properly admitted. The defendant, to meet the charge of forgery in the vote, gave testimony, on his direct examination, as to the increase of the population of the town since 1890, and as to the vote of the town in 1891-92-Tlic People, upon his cross-examination, putin evidence the election returns for 1891 in the six election districts, and afterwards, in rebuttal, put in the election returns for 1890 and 1892. It is apparent, we think, that, when the defendant testified as to the vote in 1891 and 1892, he only testified to his recollection of the statement in their returns of such totals, and hence the returns themselves would be the better evidence. Besides, no objections were made that the returns were not duly made and deposited in the proper, custody. We think, it seems, that the returns were made by the proper officials, whose means of knowledge were the best possible, and whose duty it was to make them, and who did so under their oath of office, and were presumed to have done their duty properly. They were made and preserved by authority of law for the benefit of the public. They were admissible. Van Bergen v. Bradley, 36 N. Y. 317.

As a general rule no better evidence of the results of an' election is obtainable than the official returns offered. If the several clerks and inspectors were wanted as witnesses, they could not be expected to do more than to verify the accuracy of the returns. In case of the injunction of quo warranto, the returns are presumed to be true until shown to be false. People v. Minck, 21 N. Y. 539; People v. Thacher, 55 N. Y. 535. The defendant urges that the real efforts of the people in placing in evidence the lists and returns of the first election district for the year 1893 was to show that the defendant had been guilty in former years of falsifying the vote and returns. As they were admissible for legitimate purposes, the most the defendant could do was to ask such directions as would limit their effect to such purposes. Witness Mansfield testified that he went to the town hall, in company with witness Masterson, at request of Mr. Mayer, in interest of Mr. Graynor, October 22d, in order to take copy of the registry lists. These lists ought then to have been accessible in the hall. They found a man, apparently a policeman, in charge. They told him they wanted to obtain a copy of the lists. The man told them they could not have it without an order from McKane. They saw no lists, and of course obtained no copies. They returned to Brooklyn and reported to Mr. Mayer what had occurred. The people then proved by Mr. Mayer that on Monday, the 30th, he met the .defendant in Brooklyn, and said to him what Mansfield and Master-son had said, as above stated. The defendant then said, among other things : “I gave the man those orders.” And added : “If you want a copy of the list, why, certainly you can have it.” The statement made by the policeman to Mansfield and Masterson was objected to. The defendant insists that the policeman should have been called as a witness, but, when the defendant said, “ I gave the man his orders,”, it is plain he adopted as his own the acts and utterances of the policeman. The people had to show actual obstruction, that is, the facts constituting it; the acts of the policeman and his word constituted the obstruction, or part of it. They were inadmissible unless chargeable to the defendant. The defendant, by his own statement, acknowledged that he was chargeable. There was no need of calling the policeman. What he said and did in the act of obstruction was provable by anyone who saw and heard him. McKane made the acknowledgment of his responsibility of the policeman’s acts and words with full knowledge of what they were. ’

In the same conversation between Mr. Mayer and the defendant, Mayer testified the defendant said : “You can have a copy of this list. I will give you such an order. I will do more. I will see Murphy, and have him telephone down to tell the man to give you a copy of the list. Murphy saw the defendant, was then in the defendant’s employ, and was one of the inspectors of the first election district. Mayer testified that on the same afternoon he met Murphy in the defendant’s office in Brooklyn, and asked him: “Did McKane give you an order for me to get copies of the registry list of Gravesend? Murphy answered: “No.” Mayer: “Did. he tell you to telephone to the town hall to have the man in charge there to copy this list?” Murphy: “No.” Mayer: “Please call his attention to it. He just promised me to do that on the street." The defendant was absent. Objection to the conversation last quoted was upon that ground. The conversation was admissible. Mayer was now prosecuting his quest for the list through Murphy, the inspector who ought to help him, and whom McKane had promised to render serviceable. It was important for Mayer to find out whether Murphy would help him, and the direct way was to ask him. So far as 'Murphy was concerned, he was constituting his obstruction. Mayer incidentally obtained this information by asking him if McKane had given him orders. If the whole- point of this testimony had been to prove that McKane did not give orders, an objection perhaps would be valid; but the whole conversation is pertinent to the question of Murphy’s guilt. It tends tó show that he was persevering in the refusal to act without an order from McKane.

Mr. Mayer further testified that still later in the same afternoon, in his own office, Mr. Gaynor and the defendant Murphy being present, and McKane absent, Murphy sa,id ; “Mr. Mayer, you aremistaken. McKane did not say he would give you an order.” Mayer: “He certainly did say so.” Gaynor: “What do you mean by saying I cannot have a copy of those registry lists without an order from McKane ? Anybody can copy these lists, and I am going to have a copy of them.” Murphy: “We aren’t going to let everybody that comes down there copy these lists. We do not know if everjffiody is a friend or foe, or a thief. McKane says he will have a copy of the lists made and given to you.” Gay-nor : “I do not want such a copy. I am going to have my own copy. I am going to have a copy that can be sworn to in court.” These declarations of defendant Murphy were thus acts of obstruction. He has thus opposed Mayer and Gaynor in their efforts to get the lists, and. tried to make it more difficult for them. They were as evasive acts in his part of the crime, intended to delay and baffle Mayer and Gaynor, and not as confession or recital of past criminality. At least the jury might so regard them- and might also infer that he was still submissive to the influence of McKane. McKane’s declaration to Mayer as to the orders he would give to Murphy, and Murphy’s declarations to Mayer and Gaynor, showed his persistence in his obstruction, and the absence of such order respectively afforded one item against McKane and another against Murphy, showing how each one stood as to a common purpose, and as to his own part in it.

Three orders were granted by Justice Cullen on November 1 —one directed to the inspectors of the first election district, and the others to the inspectors of the fourth and fifth — to show cause, in the supreme court the following day, why a peremptory mandamus which required them to allow Mr. Gaynor and his agents to inspect and copy the registry list in each district was not regarded. The witness Shananan testified that he served the papers for the fourth district upon G. Morris and Tuttle, two of the inspectors for that district; that, in making the service upon Morris, he told him what the papers were, and that he had j ust served Mr. Tuttle, and that “he told me that he was going to hand the papers to Mr. McKane.’’ This remark of the witness was made in response to the question, “What did you then say to him ? meaning when he served the papers upon him. Objected to as immaterial and incompetent. Court: “I think what he said may be taken to note what the inspector said to him.” This remark was made by the court plainly upon the correct theory that it was proper to receive evidence that the inspectors were at the time, and by the service of the papers, fully advised of the desire of Mr. Gaynor to obtain access to the registry lists. The witness, in answering the question, introduced, among other matters strictly within the warrant of the court, this statement of what inspector Tuttle had said. That statement, though materially within the warrant of the court, was not within the spirit of the warrant. It was for the counsel of the defendant to move to strike it out, if he was not contented with it. This he did not do. To urge as an error now this casual, incompetent statement of the witness, unexpectedly made, but which at the time was not deemed important enough to suggest the motion to strike it out, ought not to be tolerated unless justice plainly requires it. It appears from the evidence that McKane had assisted in resisting these applications for a mandamus, and it does not seem to be material whether he did so upon the papers served upon Mr. Tuttle or some other inspector. His assistance in defending the inspectors with their consent is shown. Mr. Tuttle’s remark that he would take one step in the transaction becomes unimportant in the presence of the evidence that the other steps he did take embrace this one and many more.

The admissibility of Mr. Grout's testimony as to the conversation over the telephone with a person whom he supposed to be McKane depended upon the preliminary fact that such a person was shown to be McKane. Upon the evidence, there can be no reasonable doubt of it. The suggestion of an imperfect transmission of the telephone of the McKane part of the evidence seems to be founded upon Mr. Grout’s inability to remember the words of a single sentence of it; an obvious non sequitur.

Mr. Mayer, in the interest of Mr. Gaynor, went to the Graves-end town hall, October 31st, with twelve copyists, with the view of obtaining copies of the registry list. He described the manner in which his friends were obstructed and baffled. He was corroborated by other witnesses. It is enough to say, without going into details, that the obstructive tactics seem to have been systematic and successful. The defendant was absent, but evidence certainly was admissible as tending to imply the existence of a conspiracy, and to show the acts and declarations of the conspirators and their agents in furtherance of it.

Mr. Mayer on the same day visited Mr. Johnson, one of the inspectors of the sixth district, at his house in Gravesend, and formally demanded of him the copy of the list which ought to have been in his possession. It was not produced. Why not? Was it because he also was in the conspiracy? Mr. Mayer also weut to the house of Mr. Cropsey, another inspector of the same district. He did not see Mr. Cropsey, but he inquired of a woman in charge of the house, stating his business, and asking permission to see list. The woman answered she knew Mr. Cropsey to be an inspector; further answered he was absent, and she knew nothing about the matter. Mr. Mayer testified to an interview substantially similar at the house of Mr. Crandall, another inspeetor for the sixth district. Mr. Grout on October 30th could not find the inspector, and had similar interviews with the persons in charge of- the house. Other witnesses testified to like visits, like interviews, and like results at the houses of the other inspectors. The learned presiding judge said, in admitting this testimony: “There is sufficient evidence in it to base an inference that what was done, in regard to these inspectors, was part of a scheme which comprehended all; that the covert motive actuating the defendant with regard to them can be shown.”

We think the evidence was admissible. Obstacles to the pursuit of the registry lists could not be well instituted without the evidence of the details by them of the pursuit aud of the obstacles. Standing alone, and apart from the defendant, any one of the several pursuits might seem to be admissible, but the question for the jury was, did they severally stand alone and apart from the defendant, or did they stand each in its place as part of the obstruction and defense at that place against Mr. Gaynor’s search for the registry lists, and did they thus in fact stand together? Did McKane stand apart from the plan of obstruction, or was he its leader? This view applies to the details of the series of attacks by Mr. Gaynor and the resistance, evasive, defensive and repulsive, apparently planned, operated, and maintained for his defeat. McKane was not always in view, but the evidence shows that he was at the front at the opening of the controversy, at several of its intermediate stages-, and politically so, under cover of his office as chief of police, when it assumed the gross features of brutal intimidation and outrage. The official powers of the magistrate, Newton, were put in recognition to effect the imprisonment of some of Mr. Gfaynor’s assistants. How far his official powers were lent to the support of the scheme of obstruction was the proper subject of inquiry, in view of the evidence tending to connect him with the conspiracy.

Michael Ryan was an inspector in the second district. He was also principal of the public school on Coney Island, a part of the town of Gravesend. When the quest for the copies of registry lists in the hands of the individual inspectors was being made, during the week preceding the election, search was unsuccessfully made for him. There were six teachers under him in the public school. One of them, Clara P. Daly, testified that he was absent from the school on Thursday, Friday and Monday preceding election day, Saturday being a holiday ; that such continued absence was unusual. She was also permitted to testify to the number of pupils in the school. The counsel for the defendant assumed that this was done for the purpose of .showing the disproportion between scholars and voters. But its purpose seems to have been to show that the school was large enough to need the principal’s customary attendance on the days in question, and thus his absence might be referable to his co-operation in the scheme of suppressing the registry lists. The circumstance may have been slight, but we cannot say it should not have been considered, in connection with the other testimony.

Several witnesses were called by the defendant to testify to his good reputation. On cross-examination the people were permitted to ask them as to his reputation in connection with certain specified directions involving a questionable use of his power, and this was permissible. The defendant having introduced evidence of general estimation that his reputation was good, the people certainly were at liberty to show, upon cross-examination, what it was in respect to important particulars; certainly so within a reasonable range of the subject introduced by the defendant. It may be that some of the particulars thus introduced strengthened the case of the people in respect to the peculiar power and influence ol' the defendant among his townsmen, and, in the absence of objections to the right of cross-examination, we cannot find error requiring reversal from the fact that the testimony may have touched, not only the defendant’s character, but also the probability of the charge against him. To hold this to be error would be to invite a defendant whose case is desperate to spread a net in which to ensnare the people.

Defendant presses some objection to the charge to the jury. It is doubtful whether there are any exceptions. Written requests to charge, when presented by counsel, were passed upon by the court before making the main charge. Two exceptions were then taken. At .the close of the main charge, one of the defendant’s counsel said: “I desire to withdraw the exceptions I took.” Whether he did this because he was impressed with the fairness and correctness of -the charge, or because he preferred to give the jury the idea that he regarded it as favorable to the defendant, certain it is that he thus waived his right to try and procure, by exception, any modification of it. If he, after examination, detects any errors, that will not justify a reversal, unless it is clear that they in effect prejudice the defendant, notwithstanding the reflections of counsel in attempting to nullify their influence. Objection is especially made to the following portion of the charge in respect to testimony of Mr. Mayer, already referred to, contracted by the telephone, to the effect that, in his interview with the defendant, the latter said, in effect, that he did give to the person in charge of the town hall orders not to allow any person to have a copy of the registry list without an order from himself. Now, if the defendant did really acknowledge giving a direction of this kind, that admission, in connection with other circumstances, would tend to sustain the inference that at that time he already possessed control over the registry lists, if not actual custody of them. It may be said to be ample evidence that did thus tend to sustain affirmative or negative admission. i

Bach admission implies so much. It was not an error of the judge to say so of the testimony in question. He did not say how nearly it tended. If he had undertaken to say that, it would have been dangerously near encroaching on the province of the jury. Elsewhere the court brought out the distinction that, while it might be light to the evidence tending to establish some facts in the case, it was for the jury to determine whether they believed it, and, if so, whether it did establish it. We may safely assume, we think, that at the time this distinction was clearly understood.

Instructions given by the court as due' to the defendant in regard to the posting and accessibility of the registry list and copies seemed to be favorable to the inspectors in the extreme limit of permissible liberality. The criticism of other portions of the charge does not seem to us to require special mention. Finally, the defendant contends that the verdict is against the evidence.

The foregoing opinion is mainly confined to such exceptions, taken upon the trial, which the defendant impresses upon our attention, as seemed to us worthy of written mention. The examination served to develop, to some extent, the nature of the case. Wo do not think it necessary to undertake the additional labor to quote and arrange in order the testimony given, to a clear presentation of the whole case. It will suffice to say that we have examined, and the examination satisfies us that the verdict, as offered, is justified by, the evidence.

Justice of the conviction confirmed.

All concur.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    James W. Wood, Pl’ff, v. Elmira P. Reed, Def't.

      (Supreme Court, Ontario Special Term,

      Filed October, 1893.)

    Easement—Bight oe wat.
    Where a way is maintained by the owner for his own convenience, no one can acquire aright thereto by adverse user.

      Action to restrain defendant from passing over plaintiff’s land under a claim of right of way.

      Hubbard, Coyne <& Coyne and Mr. Toole, for pl’ff; Edwin Hichs,. for defendant.
   Bradley, J.

The subject of controversy has relation to the alleged right of way of the defendant from her premises, through those of the plaintiff, to a highway crossing his land. The plaintiff in 1889 became the ownee of upwards of 250 acres of land in the town of Richmond, county of Ontario; and the defendant in 1888 took title by devise to about forty acres of land lying south of plaintiff’s land, but not adjoining it. The predecessors in title-of the defendant have, when they had occasion to do so, passed through the land now owned by the plaintiff, to the highway, for upwards of thirty years. This was done by others who had occasion to go to or from the lands lying south of the plaintiff’s land. But, as those lands were wild and unimproved, the passage to and from them was mainly for the purpose of getting and drawing out wood, logs, and timber. The owners resided elsewhere, and the passage through there was mostly in the winter time, when there was snow on the ground. It may be observed that it was infrequently that the owners of the land now belonging to the defendant had occasion to go to and from it. The premises of plaintiff' were during the time in question, until in November, 1888, owned by members of the Pitts family; and the path'or roadway into their land was used by them for the purpose of drawing wood and timber. There is some conflict in the evidence as to the location of the way used through there prior to ten years ago. While there is some evidence on the part of the defendant that the entrance from the highway was near the north line of the Pitts land, and the passage for some distance along near that line, the evidence on the part of the plaintiff is to the effect there was no entrance or passageway used there until the new roadway was made, in 1888, but that until then it was through the lands ol Bacon and Swain, north of the Pitts land, from and to the highway. It is evident that there was such a way used through those lands, and whether there was any at the other place is, upon the evidence, a question of some doubt. The only importance that can be urged for the location of the entrance of the way near the north line of the land is in the fact that it is substantially the place of the new passageway. It is not claimed that there was a public highway at the place in question through the plaintiff’s land, nor is there any support for it. The defense is founded upon an alleged user by the owners of the land now owned by the defendant, uninterrupted, continuous, and exclusive, under a claim of right, for more than 20 years, of a wmy through the premises now owned by the plaintiff, with the knowledge and acquiescence of the owners. From such state of facts, when established, arises the presumption of a grant of an easement. Miller v. Garlock, 8 Barb. 153. In the present case the way or track through the servient tenement was used by the owners of the land for their own purposes and convenience in drawing wood and timber, etc.; and in such case the use of a way by others does not necessarily import adverse user under a claim of right, and exclusive, within the meaning of the term, but, from the fact that it is kept open and used by the owner for his purposes, it may be inferred that the use by others is by consent and permission. Harper v. Advent Parish, 7 Allen, 478; First Parish v. Pratt, 4 Pick. 222; Kilburn v. Adams, 7 Metc. (Mass.) 33; Davis v. Brigham, 29 Me. 403 ; Day v. Allender, 22 Md. 529; Speir v. Town of New Utrecht, 49 Hun, 294; 17 St. Rep. 727. The owner knew that those having land south of his were in the habit of passing over his lands to the highway; and in 1883, when he, having erected a sawmill on his premises, desired, for his convenience, to make a new roadway on his lands, he informed those other persons that if they would help them open the road they might use it. They did so. This was mere permission on his part to pass over the new way, which they did, occasionally, without any interruption, until after the plaintiff became the owner. He, before the commencement of this action, forbade the defendant’s husband driving through there, and sent notice to the defendant to the same effect. The husband, notwithstanding, persisted in passing through the plaintiff’s premises as he had before done.

I am inclined to think that, in view of all the evidence, no easement was acquired by the predecessors in title of the defendant and herself in a way through the plaintiff’s land, but that the use made of it by them prior to the time when the defendant took title must be deemed to have been permissive, merely, on the part of those having title preceding the taking of it by the plaintiff to the land now owned by him, and by their consent and license. The view thus taken leads to the conclusion that the plaintiff is entitled to relief against the use of the way by the defendant upon a claim of right on her part to do so.

The question of costs requires some consideration. It does not appear that the defendant personally ever passed over the alleged way, or that she personally directed any person to do so. She has a husband and a son. They have driven through there, to and from her land. It may not, without some evidence to that effect, be assumed that the action of the- husband in that respect has been controlled by the wife. But the defendant, by her answer, alleges that her agents and servants have crossed the plaintiff’s land, and did so by virtue, of a right of way which she had, and she asserts a right of way through his premises. If it were not for those allegations of the defendant’s answer, I should be inclined to think that she ought not to be charged with any costs; and, as it is, I think she should not be charged with full costs, but that the plaintiff should recover the costs known as “trial fee and disbursements.” The plaintiff is entitled to judgment, with such limited amount of costs.


author: Per Curiaii.

text:
    Frederick R. Coudert et al., as Surviving Trustees, etc., Resp’ts, v. Blanche H. De Logerot et al., Def’ts. Def't Sullivan, App’lt,

      (Supreme Court, General Term, First Department,

      Filed April 13, 1894.)

    1. Mortuage—Foreclosure—Inadequacy oe price.
    When a sale will not be set aside for mere inadequacy of price.
    2. Same—Sale in one parcel.
    Mortgaged property will be sold as one parcel, where it consists of a parcel of land with a hotel on it, for the purposes of which all the land is required.
    Appeal from an order denying a motion to set aside a foreclosure sale.
    The opinion of Mr. Justice Ingraham at special term is as follows:
    The motion to set aside the sale under a judgment of foreclosure in this case is made by one of the defendants in the action, who was a party to the action, who had notice of the sale, who did not attend ‘the sale with any purpose of bidding or protecting his lien, and is supported by defendants occupying the same position. The plaintiffs, who were the owners of the mortgage foreclosed, do not appear on the-motion, and make no opposition to the order asked for. The plaintiffs in the action were not the purchasers, the property having sold for sufficient to pay their mortgage in full. The purchasers at the sale have appeared on this motion, and strenuously opposed the granting of the application. There was no intimation that there was any connection between the plaintiffs and the purchasers, or that Mr. Coudert, when he expressed his opinion as to the price at which the property was sold for at the sale, was authorized to bind the purchaser. Mr. Coudert and his firm occupy the position, as far as appears, as attorneys for the mortgagees and mortgagors. A gentleman connected with his office was the assignor of the mortgagors under a general assignment, and when the offers made for the property were refused, and Mr. Ooudert made the statements as to his opinion of its value, it would appear that he was acting more for the mortgagors or their assignee than for the plaintiffs. But it cannot be said that any statement of Mr. Ooudert did have any material influence upon any purchaser at the auction sale, or prevented any one from attending at that sale and bidding on the property ; and, while it might be that, if the property was bought in by either the mortgagors or the mortgagees, the statement made by Mr. Coudert should be considered in determining whether a sale to either of his clients should be upheld, I do not think these purchasers should be bound by that statement or a valuable bargain, taken away from them because of such statement, or because of his refusal to accept an offer for the property on behalf of the mortgagors, which subsequent events have shown would have been of advantage to the mortgagors’ creditors.
    The application to set aside the sale is based upon four grounds: (1) Gross inadequacy of price ; (2) surprise and mistake caused by innocent acts on the part of the attorneys for the mortgagor and the mortgagee ; (3) successful fraud on the part of the purchasers; (4) failure to sell in separate parcels or lots, as required by law. Leaving out the third ground, it seems to me that neither of the other grounds is sufficient to authorize the court to order a resale.
    As to the inadequacy of price, in the first place I do not think that inadequacy sufficient to justify me in setting aside, considering all the circumstances, is shown. The property sold for $437,000. The defendant, the moving party, has produced a bidder who says he is willing to bid now for the property $450,000, and there are other affidavits submitted whereby persons swear, in their opinion, that the property is worth from $500,000 to $550,000. These affidavits are met by others, produced on the part of the purchaser, which leaves the question of the value of the property in doubt. Assuming, however, that the property would sell for $450,000, which is all I would be justified in assuming from the affidavits before me, and considering the fact that the sale was largely advertised, and had caused much notoriety, and that a large number of persons attended, and that, notwithstanding the very favorable terms upon which the property was sold, but one bid above the amount due to the plaintiff was made, I can see no reason why I should assume that any one is now prepared to bid more than the $450,000 mentioned in the moving affidavit. And, assuming that the property would now sell at that price, there is but an increase of little over three per cent, of the amount that the property actually sold for, and such an increase in price would never justify the court in setting aside the sale. If bidders at judicial sales are given to understand that if they make a good bargain the same is to be set aside, while if they make a bad bargain they are to be held, as these purchasers would have been held if it turned out 'their bid was in excess of the value of the property, legal sales would become a farce, and, instead of encouraging persons wishing to purchase real estate at such sales, it would have the effect of preventing any property from being sold under the judgment of the courts. In none of the cases cited by counsel for the moving party have the courts taken away from the bona fide purchaser, who had purchased the property at a fair auction sale which had been fully advertised simply because a bidder was subsequently produced who would give a slightly larger price for it. In all of the cases some other element has been presented, tending to show that the ward of the court, or some one the court was bound to protect, would be injured, or some other special fact was shown that would make it inequitable to allow ■ the sale to be completed. So in regard to the alleged surprise and mistake occasioned by the expression of the opinion of Mr. Coudert, and his refusal to sell on behalf of the mortgagors at the prices named. There are but few mortgagors who do not believe that their property is worth a sum largely in excess of the mortgage upon it, and it certainly would be a remarkable conclusion to say that because the mortgagor refuses a large offer for the property, and expresses an exaggerated opinion as to its value, a purchaser who purchased at a judicial sale should be denied the right to complete the sale.
    I think it also clear that the referee was right, in selling the property as a whole. As it stood,, it was one block of land, with .one building upon it, adapted to one purpose,—that of an hotel,— and the fact that at a prior time the property had been split up in separate parcels, having upon it separate buildings, did not require the referee to sell it in separate parcels, when, in consequence of the improvement of the property, and the use to which it had been put,—there was one hotel upon it,—to be successfully used as an hotel required that the property should be sold as a whole.
    To come down now to the third ground upon which the moving party seeks to set aside the sale, viz. that of fraud: As before stated, no one objects to this application except the purchaser, and the only question is whether there should be taken from the purchaser the right to complete his purchase. The moving party presents the affidavits of Mr. Semple, the referee, and Mr. Richards, who represented the plaintiffs’ attorney, that after the sale one of the purchasers stated that he was about to bid upon the property, but seeing another person, who was the purchaser, bidding, said to him : “I am going to bid on the property. You had better let me in for a share of the purchase, and we will not bid against each other,”—and that, to prevent that competition, it was agreed between them that the sale should be on a joint account. No person is produced who heard such a conversation between the two purchasers. There is no evidence to show that Mr. Morganthau, who made that statement, was at that time prepared to make any bid for the property, except his own affidavit, which will be considered in a moment, or that he was financially able to complete the purchase. The whole statement depends upon the understanding of those two gentlemen as to what Mr. Morganthau said, and Mr. Richards stated in court that, at the time that the statement was made, it did not impress him with the fact that anything wrong was done, but rather looked upon the remark as made in a boasting way. In answer to that, we have the affidavit of Mr. Morganthau, who made the statement, and Mr. Flake, to whom the statement was made, and several others who heard the statement that was made. By these affidavits it appears that, after Mr. Flake had commenced to bid, Mr. Morganthau asked him if he would give him an interest in the purchase if one was made, to which Mr. Flake agreed; that nothing was said about Mr. Morganthau bidding upon the property, and there was no agreement expressed or implied that Mr. Morganthau would not bid. And Mr. Morganthau expressly testifies that he was not prepared to bid more than $425,000 for the property, and that he would not have made a bid in excess of that sum, and that, as a greater sum was bid at the time, he would not have made any bids at all, and, as matter of fact, he did not make any bid either before or after the conversation took place. Unless the court is prepared to hold that in every case where two persons who attend a sale, prepared to bid, agree to purchase the property together, such a sale would be set aside, I do not see how I can set aside the sale in this case on the ground stated. There is not the slightest evidence to show that any one would have bid one dollar more for this property, had that agreement not been made, or that the agreement in any way affected the sale. I have examined the cases cited by the counsel for the moving party, but do not think it necessary that I should review them. The principle is quite well settled that while the court has supervision of such sales, and has power to set a sale aside where there is the slightest suspicion of fraud or deception practiced by the purchaser, or any one acting in his behalf, or by whose representations or acts he is bound, but where the purchaser (not a party to the action, and not connected with any of the parties) purchases a piece of property at a sale fully advertised, and made in accordance with the judgment, his right to complete his sale, and get tile benefit of the bargain he has made,' should not be taken from him, in a case where he is acting in entire good faith, merely because the parties to the action find that they have made a mistake in allowing him to purchase at the price that he did. I think, on the whole case, that I would not be justified in granting this motion, and it must therefore be denied, with $10 costs.

      John M. Bowers, for app’lt; A. Siiclcney, for resp’ts.
   Per Curiaii.

Order affirmed, with $10 costs and disbursements, on opinion of court below.


author: Cullen, J.

text:
    Anna D. Ritter, Resp’t, v. Fannie A. Devine, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Mortgage—Fraud—Discharge.
    A mortgage will be discharged as to the excess, when procured by fraud for a greater amount than the mortgagor intended. .
    Appeal from a judgment in favor of plaintiff.

      M. L. Hollister (John H. Inness, of counsel), for app’lts ; Mirabeau L. Towns (Raphael J. Moses, of counsel), for resp’t
   Cullen, J.

This is an appeal from a judgment of the special term in favor of the plaintiff. • The defendant Fannie A. Devine brought an action for separation against her husband, Thomas Devine, who is the son of the plaintiff. In that action, in April, 1883, she recovered judgment, by which the husband was ordered to pay alimony at the rate of seven dollars per week, and to give a bond in $1,000, with surety, to secure such payment. By an order made pending the action, the defendant therein was directed to pay five dollars a week as temporary alimony, and at the time of the entry of the judgment the unpaid alimony under this order amounted to $135. Thomas Devine absconded before judgment, but returned to this state in 1888. Upon learning of his return, the wife’s attorney, the defendant Inness, obtained an attachment for the unpaid temporary alimony, under which the husband was arrested. Upon his arrest, negotiations to procure his release were had between the defendant Inness, the husband, and his mother, the present plaintiff. These negotiations resulted in the execution, by the plaintiff, of a bond and mortgage for $150 ($135 alimony and $15 sheriff’s fees on arrest), payable in three years, a bond in $1,000, as required by the decree in the separation action, a stipulation reducing the alimony to five dollars per week, and a mortgage, without bond, which recited the decree, the reduction of the alimony to five dollars a week, and mortgaged the lands described therein to secure the payment of the alimony ordered by the decree, with the provision that, on default in the payment of any alimony continuing for ninety days, the lands mortgaged could be sold. In the year 1889 the mortgage for $150 was foreclosed by advertisement, the notice of sale stating the premises to be subject to the other mortgage, on which there was then due the sum of about $2,026. On the sale the premises were purchased by the defendant Alfred Devine, the son of the defendant Fannie Devine. In 1893 the plaintiff brought this action, alleging that said mortgages were procured from her by fraud, and asking judgment that such mortgages and the sale under foreclosure be declared void. The court at special term found that the alimony mortgage was signed by the plaintiff under the belief that the limit of the amount to be secured by it was the amount of the bond,—$1,000,—and that she was deceived and misled into that belief. An account having been taken of the rents and profits, judgment was entered declaring the mortgage security for the sum of $1,000 only, setting aside the sale, and providing for a redemption by the plaintiff upon paying the amounts still due on the mortgages after charging thé defendants with the rents. We think that there was no such variance between the case made out by the plaintiff on the trial and that stated in the complaint as precluded the court from granting relief. While she did not show such deception and mistake as entitled her wholly to avoid the mortgages which she had executed, if she proved that by deceit she had been induced to create a greater liability than was intended, she was entitled to the relief against the excess' procured by fraud and mistake. The use in the complaint of the term “ conspiracy ” does not affect the cause of action. It was simply an action to set aside the instruments on the ground of fraud.

This brings us to the question whether the trial court erred in its finding of fact that the mortgage was procured by deceit and mistake. We think the evidence justifies the findings in this respect. The plaintiff was a woman characterized by the defendant Inness, in his letter to the public administrator, as “ ignorant and unfitted for business,” and, as appears by her evidence in this case, probably justly so characterized. She bad no lawyer present to aid her in the negotiations from which the mortgage proceeded. The defendant Inness, the counsel for the plaintiff in the separation action (Fannie Devine), drew all the papers. It is not-necessary to rely on the testimony of the plaintiff. It is sufficient to assume the correctness of the statement of the defendant Inness. He narrates the conversation between himself and the plaintiff. He told her that, in addition to the $135 arrears of alimony, for which her son was arrested, a bond oí $1,000 to secure the payment o£ the alimony was required by the judgment. He told her that her son said she was willing to give this security. She consented to execute the bond, and did execute it. They then spoke of a reduction of the alimony : “ I then asked Mrs. Devine if I should assent to a reduction of the alimony to five dollars,—was she willing to secure that by a mortgage on the property,—and she said she was.” Bearing in mind the previous reference to the bond of $1,000, and her execution of it, we think the fair and reasonable construction of this conversation was that the bemd of $1,000 should be secured by the mortgage. If it was intended that, instead of security for §1,000, the mortgage should be an obligation upon which $1,380 (alimony at five dollars a week) would be due at the veiy instant of its execution, and which should cover all alimony which might subsequently accrue, common fairness dictated that “ an ignorant woman unfitted for business ” should have been fully apprised of the change in amount and extent of the obligation. It is further to be observed that, while the plaintiff is given three years to pay the $150, the other mortgage is so drawn that ninety days after date a foreclosure of it could be instituted for the $1,380 of alimony past due. These facts justify the findings of the special term.

As the notice of sale incorrectly and unfairly stated the amount due on the prior incumbrances, subject to which the property was sold, the sale should not be allowed to stand.

The judgment appealed from should be affirmed, with costs.

All concur.


author: Brown, P. J.

text:
    Robert Went, Resp’t, v. Methodist Protestant Church of Williamsburgh et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894)

    1. Cemeteries—Deed—Title.
    A deed, from a cemetery association, of a lot in the cemetery conveys only the right of burial.
    2. Same.
    A statute directing the removal of the bodies, without any provision for compensation to the lot owners, is constitutional.
    Appeal from a judgment perpetually restraining defendants from selling certain land, used for cemetery purposes in the city of Brooklyn, or for using said land for any other purpose except for cemetery purposes. ,

      William Erdman, for app’lts; W. S. Lewis and H. F. Lawrence, for resp’t.
   Brown, P. J.

The power of the legislature to prohibit interments in or to remove the dead from cemeteries which, in the advance of urban population, may be detrimental to the public health, or in danger of becoming so, is not at this day a debatable question. Windt v. German Reformed Church, 4 Sandf. Ch. 471; Richards v. Dutch Church, 32 Barb. 42; Brick Church v. Mayor, etc., 5 Cow. 538; Coates v. Mayor, etc., 7 id. 585; Sohier v. Trinity Church, 109 Mass. 1; Woodlawn Cemetery v. Everett, 118 id. 354; Kincaid's Appeal, 66 Pa. St. 411; Craig v. Presbyterian Church, 88 Pa. 42; Tied. Lim. § 122d; Dill. Mun. Corp. §§ 306, 307. In Kincaid’s Appeal the supreme court of Pennsylvania said that no one can doubt the power of the legislature to prohibit all further interments, within the limits of towns and cities, and, as the constitutionality of that exercise of legislative power was unquestioned, it was not doubted that the legislature could proceed a step further, and declare a burying ground to be vacated as such, and direct the removal of the bodies therefrom. The plaintiff does not seriously question the existence of this legislative power, but it is apparent that in this instance, unless the defendant can sell the cemetery lands, the direction for the removal and reinterment of the bodies cannot be carried out. The validity of an act authorizing a sale of cemetery lands, when challenged by the individual lot owner, depends upon the character of the title which the latter has to his burial plot. While it is apparent that the legislature, in directing the removal of the dead, must provide for the expense, and while I have no doubt that it may impose that expense upon the lots from which bodies are removed or upon the owner thereof, it must proceed bylawful methods; and, if the lot owner has a title to the land, he cannot be deprived of his property without his consent, and a direction by the legislature to the corporation or association having general charge of the cemetery to sell and convey it would have no valid force or effect. The constitutional provision in relation to making compensation for property taken for a public use does not seem to me to have any application to the question. The abatement of the nuisance arising from the burial of great numbers of dead bodies in a thickly populated district is the question which concerns the public, and the one over which the legislature has power; and that is satisfied by the removal of the bodies. No property is taken for public use, unless it can be said to be taken for the purpose of acquiring new burying grounds, and to pay the expense of removal. But to take it for that purpose would be in the nature of a tax or assessment, to impose or enforce which the legislature should provide for regular proceedings, in which the lot owner should have opportunity to be heard. The legislature, in directing a sale of the land in question, has assumed that the church corporation had the title. If that is not the fact, then the power of sale cannot be executed. The reported cases are not harmonious upon the question as to the character of the title which a lot owner has to a burial plot in a cemetery controlled and governed by a corporation. The courts have differed as to whether it was an easement analogous to that of a pew owner in a church, or whether it is an ownership in the soil. Mr. Washburn, in his work on Easements (page 515), states the rule as follows: “Right of burial in churchyards and pew rights in churches, although acquired by deed of a particular lot, are only easeménts in land belonging to the society which governs the church or church yard. It is an easement in, and not a title to, the freehold, and is to be understood as granted and taken subject (with compensation, of course) to such changes as the altered circumstances of the congregation or the neighborhood may make necessary.”

To the same effect are Kincaid's Appeal, 66 Pa. St. 411-423; Craig v. Presbyterian Church, 88 id. 42; Sohier v. Trinity Church, 109 Mass. 1-21; Price v. Methodist Church, 4 Ohio, 515; Richards v. Dutch Church, 32 Barb. 42; Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 503. To the contrary are In re Brick Presbyterian Church, 3 Edw. Ch. 155; Windt v. German Reformed Church, 4 Sandf. Ch. 471. In the Case of Brick Presbyterian Church the deed to the lot owner was in form similar to that held by the plaintiff. The vice chancellor, after a review of many authorities, and distinguishing the case from that of a pew holder or owner of a tomb, held that the deed gave to the lot owner title to the land, and not a mere easement or privilege of burial. In the Case of German Reformed Church the plaintiff had no deed, and an injunction to restrain the sale of the land was refused ; but Yice Chancellor Sandford expressed the opinion that the result would have been otherwise if the plaintiff held a deed for his plot. These cases cannot, I think, be reconciled with the case of Richards v. Dutch Church, 32 Barb. 42. There the plaintiff held title to his lot by deed, which granted it to him, “ his heirs and assigns, forever,” and stipulated .that the vault should “never be dug up, disturbed or destroyed.” An injunction restraining a sale by the church was denied. In Kincaid's Case the evidence of title was a certificate under seal of the church that the lot owner was entitled to two lots of a certain size and number, to hold for the uses and purposes mentioned in the deed of trust'to the church. In the Case of Trinity Church of Boston the tombs were constructed under the church edifice, but the plaintiff held title by deed. The question of title cannot be determined solely by the terms of the deed given to the lot owner. Reference must, of course, be had to the act of the legislature creating the corporation from which title is-derived, and to the limitations upon its power, and to the manifest intent of the parties to the instrument. Every owner of a cemetery lot must be deemed to have purchased and to hold it for the sole purpose of using it as a place of burial, and, as was said in Kincaid's Case, he is bound to know at his peril that it may become offensive by the residence of many people in its vicinity, and that its use must yield to laws for the suppression of nuisance's. Every cemetery within or near large cities must give way to the advance of population. Interments ultimately must cease, and the remains of the dead that are capable of removal must be reinterred in new grounds. Every lot owner holds his title subject to that contingency, and no conditions or covenants contained in deeds appropriating the lands to particular uses can prevent the legislature declaring such use unlawful, and compelling the removal of all bodies from the grounds. All individual rights of property, whether they rest on absolute conveyances or mere licenses, are subject to laws of this character; and the principle known as the “police power,” upon which the legislative authority to enact such laws rests, has of late years been considered by the courts in numerous cases, many of which are on the briefs of counsel.

Assuming, therefore, as we must, that the use of the cemetery as a burial place may be interdicted, and the bodies of the dead removed, it cannot, I think, be seriously claimed that it was within the contemplation of parties to a deed for a burial plot that when that contingency should arise the individual owner should hold title to his lot for general uses,, tbe same as he would hold other property. Individual ownership, under such circumstances, would only create confusion of title, and eventually leave a large tract of land without the care or supervision of a responsible owner. The lots would be small, and of no use for building purposes, inaccessible in many instances from the city streets, and, where the original grantee had died, probably owned by many persons having widely separated residences, and in many instances unknown. A construction should not, therefore, be put upon deeds of this chaz-aeter that would produce such a result, unless the rules of law applicable to such instruments forbid any other conclusion. By the Laws of 1853 and 1878 relating to the incorportion of Union Cemetery it was enacted that it should be a rural cemetery, within the meaning of the act for the incorporation of rural cemetery associations, and it. was made subject to the restrictions and given the rights and franchises of such associations. An examination of the act of 1847, authorizing the incorporation of such associations, and the amendments thereto, shows that it was the intention of the legislature that the title to the land should remain in the association, and that the lot owner should hold only an easement for the purpose of burial. The power reserved by the association by §§ 8, 9 and 10 are powers that belong to the owner of the fee. It may sue for trespass committed on the lots conveyed to individuals, and' it may enter upon the lots at any time to improve or embellish them, orto erect buildings, fence's, walks, etc. The lots are exempt from taxation as property of the association. The provision of section 11, to which our attention is called, that a lot in which an interment has been made is forever thereafter inalienable, is not a limitation upon the power of the legislature to order a sale of the property. The Case of Matter of Deansville Cemetery Ass'n, 66 N. Y. 569, cited in the opinion of the special term, and relied upon by the respondent, does not decide anything contrary to the views here expressed. That was an application to condemn lands for cemetery purposes, and the court decided that the act of the legislature purporting to grant that power was unconstitutional on the ground that the use for which the land was to be taken was private, and not public. Nothing in the opinion can be construed as bolding that the individual owner held title to the soil oE his burial lot. It was said that their “ rights ” descended to the heirs as private pi’operty, and that the substantial right of enjoyment of the property was vested in individual lot owners. But this language is as applicable to an easement as to an ownership of the soil. The question of title was, however, presented in the pase of Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 503. In that case the association, which was organized under the Rural Cemetery Act, sought to have an assessment set aside on the ground that it should have been made against the individual lot owner. This claim was overruled, and the assessment sustained, Judge Folger saying that the effect of a conveyance under the statute was -to confer upon the lot owner a right to use for the purposes of interment. “ No such estate is,” he said, “granted as makes him an owner in such sense as to exclude the general proprietorship of the association. The association remains the owner in general, and holds that relation to the public and to the government; while, subject to this, the individual has the right, exclusive of any other person, to bury upon the plot assigned to him. He holds a position analogous to that of a pew holder in a house for public worship.” This case, in my judgment, is conclusive as to the plaintiff’s title. It is true that there was no conveyance before the court in that case, and that the plaintiff’s deed is sufficient to convey a freehold; but construing the latter conveyance in the light of the statute authorizing the creation of rural cemetery associations as interpreted by the court of appeals, and the evident purpose of the parties to the contract, it cannot I think be truly claimed that the plaintiff purchased more than an easement for burial purposes, or that the grant was intended to convey a fee. The intent of the contract is carried out, and the purpose of the parties thereto effectuated, by holding that the legal effect of the instrument was to grant an easement in the land only. To this construction of the plaintiff’s deed the Case of Bride Presbyterian Church, 3 Edw. Ch. 155, does not apply. It is settled by a long line of authorities that a pew owner has no claim for compensation when the church is taken down from necessity arising from the condition of the building or other imperative exigency. It cannot be said in any sense that in such case his property is taken for a public use. Kincaid’s Appeal, supra, and cases cited in opinion of Judge Sharswood. In this case the plaintiff’s rights are fully protected by the direction to the defendants to remove the bodies to a new cemetery, and to purchase other land to be used for cemetery purposes. The rights of burial which he loses in the old ground will be fully restored to him in the new, and, in legal contemplation, he suffers no damages. My conclusion is that the act of 1893 was a valid exercise of legislative power, and the action of defendants thereunder cannot be restrained.

The judgment must therefore be reversed, and, as a new trial would be of no avail to the plaintiff, the complaint is dismissed, with costs. All concur.


text:
    Gilbert E. Van Wagner, Resp’t, v. Central New England and Western Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Railroads—Crossings—Estoppel.
    A landowner is not estopped from compelling a railroad to construct an undergrade crossing by the fact that the award, in condemnation proceeding, was made upon the assumption that there were to be no under-crossings.
    .Appeal from a j udgmeut in favor of plaintiff.

      Milton A. Fowler, for app’lt; Haclcett & Williams, for resp’t.
   Brown, P. J.

This action is' in equity to compel defendant to construct an undergrade crossing upon plaintiff’s farm. The buildings were all south of the road, while two-thirds of the farm was north of it. Prior to the construction of the railroad the road used in passing from the buildings to that part of the farm just north of the railroad was at the point designated in the judgment for the undergrade crossing, and at this point the railroad embankment is about nineteen feet above the natural grade of the ground. The appellant constructed four grade crossings and one cattle pass, but the court found that the crossings are of no practical use in the working of the farm, and its conclusion in that respect is fully sustained by the evidence. The testimony introduced by the plaintiff permitted the conclusion that all were dangerous except that designated as “z,” and that furnished access to a very small part of the farm. The question of law raised by the appeal, and to which our attention is called, is that the inconvenience arising from the construction of the railroad without an undergrade crossing, and the consequent damage to the plaintiff, had been paid for by the award in the condemnation proceedings. Two of the three commissioners who made the award were called as witnesses by the defendant, and testified that they awarded damages on the assumption that there was to be no undercrossing. The other commissioner was not called, nor was it shown what the evidence before the commission was. The appellant contends that the plaintiff is, by the award, estopped from now asserting his right to an undererossing. The evidence shows that when the commission met the plaintiff said he wanted an under-crossing, whereupon the attorney for the appellant refused to construct one, and said the company wanted the damages assessed without any reference to such a crossing. A stipulation was made with reference to a cattle pass, but none with reference to the crossing. This evidence does not conclude the plaintiff, or amount to a waiver of any right he might have to the crossing asked for. He did not consent that the commission should assess his damages on the assumption that there would not be an undercrossing. He stood upon his legal rights, and the fact that the award was made on such a basis does not prevent his asserting that right in this action. Beardsley v. Lehigh Valley R. R. Co., 142 N. Y. 173; 58 St. Rep. 641. The duty of constructing farm crossings for the use of proprietors of lands adjoining the railroad is enjoined upon railroad corporations by statute. That duty must be performed with due regard to the necessities and convenience of the landowner. Jones v. Seligman, 81 N. Y. 190. And the corporation is not vested with an absolute discretion as to the kind and character of the crossing it will construct. The necessity of an under or over grade crossing is a question of fact which a court of equity may determine, and is not within the jurisdiction of the commissioners of appraisal. The corporation cannot, therefore, cause the damages to be assessed upon the assumption that it will construct grade crossings only, and thus deprive the landowner, without his consent, of a crossing which is necessary to the proper working and management of the farm. In other words, the corporation cannot substitute a money equivalent in place of that which the statute awards to the landowner. The plaintiff waived none of his rights, and the judgment must be affirmed, with costs.

All concur.