author: Earl, J.

text:
    George F. Comstock, Pl’ff, v. The City of Syracuse et al., Def’ts. William A. Sweet, Pl’ff, v. The City of Syracuse et al., Def’ts.

      (Court of Appeals,

      Filed December 22, 1891.)

    1. Constitutional law—Laws 1889, Chap. 291.
    Chapter 291, Laws 1889, is not unconstitutional as leasing or disposing of the Erie canal. It operates merely as a license to the city of Syracuse to take surplus water from the Skaneateles lake and conduct it to the city under the paramount right of the state to resume it at any time.
    2. Same—Canals.
    The constitutional provision prohibiting the sale of the canals does not apply to the sale of any property or rights of the state appropriated for the canals and at some time used for the canals, which are not necessary for its operation and maintenance as a highway of commerce.
    3. Same—Art 1, § 9.
    Chapter 291, Laws 1889, is not unconstitutional as appropriating public properly for local or private purposes, and so requiring the assent of two-thirds of the members elected to each branch of the legislature.
    4. Same—Statutes.
    The word “ appropriating” as used in the constitution has no reference to the appropriation of public money or property where the state gets an equivalent.

      5. Same—Two-third vote of legislature.
    The two-third vote is necessary to appropriate money or property of the state where a locality only is interested, and from which the people of the state generally are to derive no benefit and in which they have no interest.
    Appeals from judgments of the supreme court, general term, fourth department, modifying judgments dismissing the complaints.

      Charles H. Peck and Geo. F. Comstock, for pl’ffs; C. L. Stone and W. A. Beach, for defts.

       Reversing 38 St. Rep., 607, 1021.

   Earl, J.

Prior to 1889, the attention of the inhabitants of the city of Syracuse appears to have been strongly directed to the matter of a water supply for that city, and to that end the act, chap. 291 of the laws of that year, was passed. The act provided for the appointment of water commissioners to be known as the Syracuse Water Board. By § 3 of the act the board was authorized for and in the name of the city to acquire, construct, maintain, control and operate a system of water works to furnish the city and its inhabitants with water from Skaneateles lake. Section 18 of the act was as follows:

“ The Syracuse Water board, by and with the consent of the Canal Board, is hereby authorized and empowered to appropriate so much of the waters of Skaneateles lake AS MAY BE NECESSARY to supply the city of Syracuse and its inhabitants .with water; upon the express condition, however, that the city of Syracuse shall, when so required by the Canal Board, furnish from such source or sources, and in such manner as the Canal Board may designate, as much water for the use of the Frie canal as shall he taken hy the city from Skaneateles lake, and the power granted by this act shall be deemed to include authority and power to provide such compensating water supply for the Erie canal, and to do and perform all those acts and things which shall be needful to acquire for said city and its inhabitants the waters of Skaneateles lake.”

By the act, chapter 314, of the laws of 1890, § 18 was amended so as to read as follows:

“ The Syracuse water board is hereby authorized, under the restrictions and conditions hereinafter mentioned, to take and conduct water not required for the Erie canal, from Skaneateles lake to said city, through a pipe or main not exceeding thirty inches in diameter, for the purpose of supplying said city and its inhabitants with water. Before any water shall be so taken, however, the water board shall, at the cost and expense of said city, increase the storage capacity of said lake sufficiently to store therein all the ordinary flow of its watershed ; the fact of such necessary reconstruction having been made shall be certified by the State engineer and surveyor and superintendent of public works, and filed in the office of the superintendent of public works. All the work authorized by this section, including the placing and maintenance of said pipe, shall be executéd under the direction, supervision and control of the superintendent of public works, and in accordance with the plans and specifications therefor to be prepared or approved by the state engineer and surveyor. The darn and all structures connected therewith, together with the regulation at all times of the flow of water from said lake into the aforesaid pipe, shall be and continue in the exclusive charge and control of the superintendent of public works, and shall be maintained and kept in repair by or under the direction of said superintendent, at the cost and expense of the city of Syracuse. This section shall be construed to vest in the state engineer and surveyor the power to prescribe the plan of construction and location of the gate house or other means for delivering the water of said lake into said pipe; and if for any reason the flow of water into said pipe shall prevent the state from having a sufficient quantity for all the uses of the Erie canal, the said superintendent of public works is authorized and required to stop the flow of water into said pipe in whole or in part, so far as may be necessary in his judgment to secure such sufficient quantity; it being understood that the rights of the city of Syracuse hereby conferred in and to such surplus waters are to be subject always to the superior claims of the state "thereto. Before any water shall be taken from Skaneateles lake under the provisions of this act, the city of Syracuse shall acquire or extinguish all water power rights upon the outlet of said lake to be affected by the proposed storage of water. The city of Syracuse shall, at all times, protect and save harmless the state of New York from and against all claims and demands of riparian owners upon said lake and outlet for loss or damage occasioned by any act or structure authorized hereby. The powers granted to the Syracuse water board to acquire property under this act, and to make payment therefor, shall be deemed to include full power and authority to do and perform all acts and things necessary or proper to enable said city to acquire, store and obtain water from Skaneateles lake in accordance with the provisions of this section.”

Various constitutional objections to these acts have been presented to the courts with much ability and pertinacity. A very careful re-examination of the whole case after the reargument, which the magnitude of the interests involved and other reasons peculiar to the case induced this court to grant, leaves no doubt in our minds that these objections are without foundation. We will here pass over all of them but two, leaving the others to the dispositions made of them in the opinions of Justices Churchill, Kennedy and Merwin, delivered in these cases in the supreme court, and of Judge O’Brien, in this court, after the first argument.

The two constitutional objections to which we will here giro further consideration are the alleged violation of § 6 of art. 7 of the constitution, which provides that the state shall not sell, letwe or otherwise dispose of the Erie and other canals, “ but they shall remain the property of the state and under its management forever; ” and of § 9 of art. 1, which provides that “ the assent of two-thirds of the members elected to each branch of the legislature shall be requisite to every bill appropriating the public moneys or property for local or private purposes.”

(1) Section 18 of the act of 1889, as amended, does not sell or authorize a sale of the waters of Skaneateles lake to the city, nor does it lease them to it. It operates merely as a license to the city to take water from the lake and conduct it to the city under the paramount right of the state to resume it at any time. It does not authorize the city to take a drop of water needed by the state for the Erie canal. The water remains as before absolutely under the control of the state, and the provisions are ample to secure to the state all the water supply it can need' from the lake at all times. If the act is faithfully carried out, as we must assume it will be, the interests of the state are placed in no jeopardy, and the usefulness of the canal can in no way be impaired ; and yet it is claimed that this is a disposition of the Erie canal within the meaning of the constitutional provision referred to. We must construe the language used in the constitution in view of the purpose which it was intended to accomplish, and give it such force and effect as we have reason to believe the framers of the provision intended. The Erie canal was a great achievement of statesmanship, and its completion marks an era in the history of our country. It was intended to develop the interior and western parts of our state, and to open a highway for their products to tide water; and the statesmen who projected it looked forward to its still greater usefulness in carrying the products of the great west to the markets of our own country, and of the world. They embodied their enthusiasm and their hopes in the eloquent preamble to the act, chapter 262 of the Laws of 1817, “ respecting navigable communications between the great western and northern lakes and the Atlantic Ocean,” as follows:

“ Whereas, Navigable communications between Lakes Erie and Champlain and the Atlantic Ocean, by means of canals connected with the Hudson river, will promote agriculture, manufactures and commerce, mitigate the calamities of war, enhance the blessings of peace, consolidate the Union, and advance the prosperhy and elevate the character of the United States; and Whereas, It is the incumbent duty of the people of this state to avail themselves of the means which the Almighty has placed in their hands for the production of such signal, extensive and lasting benefits to the human race.”

It was deemed important in order that these beneficent results of the canals should be fully achieved that they should not fall into the hands of private individuals or corporations, but should belong to and be controlled by the state in the interest of the people, and to obviate any danger that they might be leased or disposed of to private individuals or corporations, it was deemed wise to insert in the constitution of 1821 a provision that “ the legislature shall never sell or dispose of * * * the said navigable communications or any part or section thereof, but the same shall be and remain the property of the state forever.” In the constitution of 1846 the same provision was embodied in § 6 of article 7, in language above given. Now, what was plainly meant by the language used in these sections? Manifestly that the canals as highways of commerce, connecting the lakes with the Atlantic Ocean, should forever remain the property of the •state, and under its management; and it meant nothing more and could have meant nothing more. The canal waterways for the navigation of boats were not to be sold, or leased, or otherwise disposed of. under any act of the legislature. Nor could the legislature authorize the sale of any other property or thing owned by the state connected with the canals and actually essential to their operation and maintenance, and it cannot be conceived that more was intended.

It immediately became the policy of the state, notwithstanding the constitutional provision of 1821, to sell and lease the surplus waters of the canals, and that policy was inaugurated by the generation of statesmen living when the canals were projected and completed, and when the constitution of 1821 was framed. The ■early acts upon that subject, and all the acts in reference thereto, like these now under consideration, contained careful provisions that sufficient water should at all times remain for the use of the ■canals. By the Revised Statutes, 1 R. S., 230, § 75, it was provided that “ whenever in the opinion of the canal board any water may be spared from any state canal, or works connected therewith, without injury to the navigation or safety of such canal, and the persons entitled to the first privilege of taking such water shall not avail themselves thereof, or there shall be no person so entitled, the board may order a sale of such surplus water for a term of years, in their discretion, to the person who shall bid the highest annual rent thereforand at page 233, § 90, it is provided that “whenever a'sale of surplus water shall have been •directed by the canal board, the acting canal commissioner within whose line such water shall fall shall proceed to sell and convey ■such surplus water in the manner followingthen follows minute •provisions as to the mode of sale and the kind of conveyance to be given to the purchaser. One of those provisions is as follows: “The conveyance shall also contain a reservation of the right wholly to resume the water so conveyed, and the privileges thereby granted,-and to control and limit the use of such water and privileges whenever, in the opinion of the canal board or ■of the legislature, the necessary supply of water for the use of any state canal, or the safety of such canal, or works connected therewith, shall render such resumption, control or limitation necessary; and a provision that where such resumption is made, ■or control or limitation imposed, no compensation or damages .-shall be allowed for any improvements or erections made in con.seqnence of such grant or lease.”

Under those provisions there were many sales and leases of surplus waters of the canals in various parts of the state, and yet it wjas never held or claimed that such disposition of the surplus waters was a violation of the constitutional provision referred to. On the contrary, it has been repeatedly recognized by the ■courts as valid and constitutional. Ex parte Miller, 2 Hill, 418 ; Dermott v. The State 99 N. Y., 101: Varick v. Smith, 5 Paige, 137; S. C., 9 id., 547.

If the waters of Skaneateles' lake, therefore, be regarded as a. pait of the Brie canal, then there is nothing in the acts of 1889 and 1890 but the disposition of surplus water not needed for the canal, and hence these acts are in harmony with the policy of the state pursued ever since the construction of the canal system of the state. If the water of the lake had all, through the outlet thereof, been taken into the canal, the surplus water thus-created in the canal could have been sold or leased therefrom by the state. Then why may it not sell of lease it from the lake before it reaches the canal? The state has always permitted the-surplus water of the lake to flow through the outlet for the use of mill owners thereon. Could it not have permitted such mill owners to take the water directly from the lake or the state dam. at the foot thereof? Heretofore the surplus water of the lake not-needed for the canal has been permitted to run to waste through the outlet under the canal on its way to Lake Ontario. Why may not the state, instead of that course for it, permit it to run through the pipe of thirty inches diameter to the city of Syracuse,, there to be used or wasted ?

By chapter 316 of the Laws of 1839 the canal commissioners•• were authorized to permit the surplus water flowing over any of the dams on the Oswego river to be used for hydraulic purposes-by the owners of the lands over or upon which such waters flowed,, under such regulations and restrictions as the canal commissioners-might impose, and subject to be resumed at any time they deemed proper without any compensation to such owners by reason of such resumption. It was never questioned that the legislature-was competent to pass that act for the disposition of the surplus-water flowing over the dam. But suppose the dam had been so constructed that the surplus water, instead of flowing over the-dam, had been permitted to flow through gates in the dam, which were under the general control of the canal officials, would not-the waters not needed for the purposes of the state have still been surplus waters ? And could not the legislature have authorized the sale and disposition of them without violating the constitutional provision referred to? The act, chapter 274 of the Laws-of 1842, provided for leasing and selling the surplus water of the Erie canal at Black Rock harbor; and these and other acts of a similar nature.

Suppose the canal commissioners had made a permanent appropriation of land for a gravel pit for the use of the canals, and the gravel had been exhausted so that they had no further use for the land, could it not be sold ? Suppose the route of the canal had been changed and the former-channel had become useless, and possibly a nuisance, and the state had no further use for it, could it not be sold, or in some way disposed of by the state ? Suppose-the state had constructed a feeder which, from misjudgment or some other cause, had become useless, would the state be bound to keep it for ever ? Could not the state allow private citizens,, under proper regulations, to use the waters flowing through any of the feeders during the winter season? And could it not, with proper regulations, permit them in the winter to use the prism or the tow-path of any canal for the purpose of travel ? It seems to me. that the answers to all these questions are very plain and that it would be quite absurd to claim that in such cases there would be ¿a sale or disposition of any portion of the canals in violation of the constitution.

Numerous acts of the legislature passed since the completion of the canals show that property and rights owned by the state, and formerly appropriated and used for the canals, have been abandoned or otherwise disposed of. By chapter 286 of the Laws of 1847, the canal commissioners were authorized to drain the Jordan level of the Erie canal, and to abandon so much thereof as was no longer used or needed for the Erie canal, and authorized the owners of the land through which.the canal formerly passed to enter upon and use the same. By the act, chapter 413 of the Laws of 1847, the canal board was authorized to sell a portion of the abandoned canal at Cohoes to the owners of the adjoining land. By •the act, chapter 352 of the Laws of 1849, it was provided that whenever the canal board shall by resolution so provide, any lands taken for the purposes of the canal may be sold by the commissioners of the land office, the proceeds to be credited to the fund •appropriated for the construction of the canal for which such lands were taken.

By chap. 214 of the Laws of 1850 the canal board was authorized to abandon so much of the old canal in the village of Gfeddes .as they might deem best for the interest of the state. By chap. 263 of the Laws of the same year the canal board was authorized to abandon the Fort Miller dam and the use of the side cut at that place connected with the Champlain canal. By the act, chap. .267 of the Laws of 1857, it was provided that whenever the canal board shall, by resolution, determine that any land taken for the ■purposes of the canals of this state have been abandoned, it shall be lawful for the commissioners of the land office to sell, convey and release the title of the state thereto. By the act, chap. 787 of the Laws of 1872, the city of Binghamton was authorized to use a portion of the Chenango canal for a public street. By the act, chap. 369 of the Laws of 1877, the canal board was authorized to -close the feeder of the Erie canal in Rochester, and to convey to "the owners of the real estate adjoining the feeder the fee to the land occupied by it.

If the present contention of the appellants is well founded, and ■property once appropriated and used for the canals must forever remain the property of the state, then these various acts are unconstitutional. But if the legislature could authorize the sale of useless feeders and abandoned portions of the canals and the surplus waters of the canals, then it had the power to authorize the city of Syracuse to take the surplus waters of Skaneateles lake not needed for the use of the canals without violating the constitutional provision referred to. These various acts show the common understanding of the language used in the constitutional ■provision prohibiting the sale of the canals, and that it does not •apply to the sale of any property or rights of the state appropriated for the canals and at some time used for the canals, which -are not necessary for its operation and maintenance as a highway of commerce. From the completion of the canals to this day the whole course of. legislation shows that such has been the understanding of the law makers and statesmen of our state.

The argument on the part of the appellants is not much advanced by showting that if there was power to sell the canals, and they should be sold by deed granting them with the “a] purtenanees,” and possibly without that word, the rights of the state in Skaneateles lake, together with such property as was mentioned in the various acts of the legislature above referred to, -would pass under the grant. What might be in that case deemed a portion, of the canals and appurtenant thereto would not necessarily be deemed a portion of the canals under the constitutional provision prohibiting the selling or leasing or other disposition of them. In construing the grant in such a case the court would take into consideration the intention of the parties, and from the language used -would infer that it was intended to bring within the scope of the grant everything connected and used with the canals. But in construing the constitutional provision framed for a different purpose, the same intention cannot be inferred. That must be construed as it may be supposed the statesmen who framed it understood it, while the grant would be construed so as to give effect to the intention of the parties. Hor do the ¡provisions of the Revised Statutes 1 R. S., 217, § 1, naming and describing the canals, throw any light upon this discussion. It is there provided that “ the navigable communications heretofore constructed, and now in progress of construction, by the state, shall be known and designated as follows: The navigable communication connecting the waters of Lake Erie with those of the Hudson river, and all the side cuts, feeders and other works belonging to the state connected therewith, by the name of the Erie canal.” This was a description, of the canal for administrative purposes, and it was intended to. define how much of the canal system of the state should be classified with the Ei'ie canal. That provision and the classification there found shed no light whatever on the meaning of the word canal in the constitutional provision referred to.

We are, therefore, clearly, of opinion that the acts of 1889 and 1890 cannot be condemned as in violation of § 6 of art. 7 of the constitution. It seems so plain to us that, but for the learning and ability of the eminent counsel who have appeared on behalf of the plaintiffs, we should not have considered the point worthy of very serious consideration. We have thus far proceeded upon: the assumption that the state had some property rights in the surplus waters of the lake. Of course, if it did not have, there would be no ground whatever for the present contention on the part of the plaintiffs.

(2.) It is claimed with equal zeal, and argued with much learning and ability, that the acts of 1889 and 1890 are in conflict-with the other section of the constitution above referred to. It is well to determine, in the first place, what is meant by “appropriating ” the public moneys or property for local or private purposes. It is not every appropriation for what in seme sense,, may be called a local purpose, that comes within this provision. Where the appropriation of money is for state purposes, although, its expenditure is confined to a locality, it does not require a two-thirds vote. So, too, appropriations may be made, in a certain sense, for a private purpose, and yet not require such a vote. Money may be appropriated to pay individuals for property purchased for the state, or for salaries or wages, without requiring a two-thirds vote, and thus the appropriation and supply bills annually passed by the legislature, unless they contain donations of public moneys or property for local or private purposes, have never been understood to require such a vote. The word “appropriating,” as used in the constitutional provision, manifestly has no reference to the appropriation of public money or property where the state gets an equivalent. While such an appropriation may be private as to an individual, so far as it is for the' benefit of the state it is for a public purpose. While money appropriated for the improvement of Skaneateles lake, for the benefit of the persons living near it or going there for fishing or navigation, might be for a local purpose, yet if the improvement was for the benefit of the Erie canal, a highway of commerce through the state, the appropriation would not be for a local purpose, but for the general welfare of the people of the state.

It would be no more for a local purpose than the money appropriated for the construction of the capítol, of arsenals, or of any other work in a locality intended for the benefit of the people of the whole state. Except as prohibited in the section we are now considering, a majority of all the members elected to the legislature can appropriate money for any purpose and enact any laws not otherwise in conflict with any constitutional provision; and while this is so, why was this provision inserted in § 9 limiting the power of the legislature and requiring a two-thirds vote? This large vote was necessary to appropriate the money or property of the state where a locality only was interested, and from which the people of the state generally were to derive no benefit and in which they had no interest. Such bills, of no general importance, which substantially would give away the property of the state to some locality, are required to be passed by a two-thirds vote. So, too,, money or property cannot, without such a vote, be devoted to private purposes in which the state has no interest. The object and pui’pose of this provision were clearly intended to forbid the legislature, without a two-thirds votes, to make gratuitous appropriations of the public money or property to localities or individuals, and thus to divest the state of its money or property without any equivalent, and it could have no other purpose. The legislature by a majority vote could authorize a sale of the property of the state for a consideration, or the disposition of it in discharge of an obligation.

Mow, what does the section of the two acts under consideration do? Does it, in any proper sense, give away any of the property of the state? The right given to the city "of Syracuse to draw water from the lake is, as we have seen, in its very largest extent, a mere license, to be exercised under the constant supervision of the state, and subject to its paramount right and control. It can never at any time, as we have before said, take water which the ■state needs, and it can use only the surplus water which would ■otherwise run to waste. It seems to us an unwarrantable use of terms to hold that such a license is an appropriation of the property of the state. But that is not all. This is not a gratuitous appropriation. The city is to increase the storage capacity of the lake, and erect and maintain at .its own expense a dam and the structures connected therewith. There are two parties to the bargain, each of which gets some advantage. The state gets a larger reservoir from which to supply the needs of the Erie canal, and has the ■dam kept in repair free of expense to it. After the so called .grant or license to the city of Syracuse the state has still the same right and control over the water for every purpose needed that it ever had; and it is impossible to perceive how, under such circumstances, it can be said that the act of 1890 appropriates money or property of the state for a local purpose, within any fair meaning of the terms used in the constitution. None of the acts •above referred to, disposing of surplus waters of the canals, were passed by a two-thirds vote. In Rumsey v. New York & N. E. R. Co., recently decided in the second division, an act of the legislature there under construction authorized the gratuitous grant of the land of the state for a local purpose, and it was held that it required a two-thirds vote. 40 St. Rep., 583.

But it is further claimed that § 18 of the act of 1889 was unconstitutional, and as it was a necessary part, of the entire scheme of that act, that therefore the whole act of 1889 was unconstitutional and void, and was not given life and rendered-valid by the •subsequent amendment of § 18.

Without determining whether § 18 as contained in the act of 1889 was valid or not, we do not think that even if it was invalid the whole act was thereby rendered null and void. A water board was thereby constituted and clothed with some powers which could be exercised, and after § 18 was amended, and thus rendered valid, nothing stood in the way of the full operation of all the provisions of the act. We are not, however, prepared to -say that if the whole act was rendered invalid in consequence of the invalidity of § 18, it would follow that the act remained invalid after the amendment. The unconstitutional provision was eliminated by the amendment, passed as we may assume, for the express purpose of validating the act As to all action taken under the act subsequently to its amendment, it would have to be construed as if the section as amended had always been a part of it. As it then stood it was an act of the legislature passed with all the forms prescribed by the constitution and containing no provision obnoxious to constitutional objection.

We do not deem it important now to discuss or determine what the particular rights of the state were in the water or the bed of the lake. These matters have been discussed in opinions already pronounced in these cases, and we reach our present conclusion without deeming it important to further investigate or determine them.

In conclusion it should further be said that in dealing with the constitutional objections to § 18 proper heed must be given to the-canon of construction often reiterated by eminent judges, that when a statute is challenged as in conflict with the fundamental law a clear and substantial conflict must be found to exist to justify its condemnation. As said by Mr. Justice Washington in Ogden v. Saunders, 12 Wheat., 270, “ it is but a decent respect due to tjie wisdom, the integrity and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity until its violation of the constitution is proved beyond all reasonable doubt.”

The judgment of the general term should therefore be reversed,, and that of the special term affirmed, with costs in this court.

All concur.


source: Caselaw Access Project

author: Barrett, J. Ingraham, J. Daniels, J.

license: Public Domain

text:
    The People, Resp’ts, v. Joseph Barondess, App’lt

      (Supreme Court, General Term, First Department,

      Filed November 30, 1891.)

    1. Extortion—Threat to prevent strikers prom returning to work.
    The obtaining of money from another, with his consent, induced by a threat that his workmen who had been on strike would not return to work unless the money was paid, is not extortion within the meaning of the Penal Code.
    2. Same.
    Such a threat is not a threat to do an unlawful injury to property.
    (Daniels, J., dissents.)
    Appeal from a judgment of the court of oyer and terminer of the county of Mew York, convicting the defendant of the crime of extortion. For the facts, see dissenting opinion.

      Howe & Hummel, for app'lt; Barlow S. Weeks, for resp’ts.
   Barrett, J.

The main question in this case is whether the-obtaining of money from another, with his consent, induced by a. threat to injure the business of the individual threatened, by persuading his employees to absent themselves from work, is “ extortion,” as that offense is defined in the Penal Code, §§ 552, 553, subd. 1. I held, in the cases of The People v. Wilzig, Holdorf and Dannhauser, 4 N. Y. Crim., 403, that it was extortion to-procure money by fear induced by the threat to continue a so-called “ boycott,” in which the elements of violence, intimidation and direct injury to tangible personal property were prominent and marked features. It was also ruled in those cases that the threat to do an unlawful injury to the property of another, which is one of the statutory conditions of this offense, might be predicated of an intimidating attitude on the part of those engaged in the overt act without actual violence or direct threat by word of mouth. Actual violence was there proved, also actual injury to the complainant’s furniture, goods and fixtures; and the-question whether the threat to continue the “boycott” in the-manner in which it had been conducted amounted to a threat h> continue the physical injury to the complainant’s furniture, goods; and fixtures was left to the jury.

In the case at bar the elements of violence, intimidation and; physical injury to tangible property are entirely wanting. The threats made were not threats oí violence, nor was the attitude of the defendant or of his associates an attitude of physical intimidation. The utmost that can be claimed by the prosecution is that the defendant, as a leader, exercised sufficient influence over the complainants’ employees to keep them from resuming their employment until he was paid the sum finally agreed upon. He utilized that influence and held it over the complainants to accomplish his purpose. The employees, whom he professed to lepresent, were equally free from violence or from an attitude of intimidation. Thus the threat, as already stated,'was merely that the men would not work until the defendant was paid. Was that a threat to do an unlawful injury to the complainants’ property? The answer, in my judgment, must be in the negative. It certainly was not a threat to do injury to the material or to the other property contained in the 'complainants’ place of business. It was, therefore, simply a threat to injure their business or estate; in other words, to reduce his gains or to prevent their making gains. There can be no doubt that any injury to one’s business is an “injury to property” for the purposes of a civil action. Indeed, the Code of Civil Procedure, § 3343, subd. 10, defines an “ injury to property ” as an actionable act whereby the estate of another is lessened. But this definition is expressly limited to the construction of the Civil Code in which it is embodied, while it is conspicuously absent from the list of definitions given in the Penal Code. Penal Code, § 718. It must be supposed that the legislature thus intended to eliminate mere actionable acts, whereby the estate of another is lessened, from the domain of criminal offenses, and to limit indictable wrongs to injuries done to personal property, as such property is defined in the Penal Code. Thus a threat unlawfully to injure “goods, chattels and effects," or to deface or destroy “ money, evidences of rights in action or written instruments ” of a particular description, would be a threat to do an unlawful injury to property, and would suffice to make out a ■case of extortion. This view is in harmony with the general purpose and intent of criminal jurisprudence which deals mainly with what is materially evidenced. The opposite view would leave the question of guilt or innocence to be decided, not by the ■act of the accused alone, operating upon some tangible thing, but by evidence aliunde with respect to an intangible condition of affairs.

If, for instance, property here means “business,” then what was the threat, and how was it to work an injury to the complainants’ business ? It was, as we have seen, a threat to keep people from working for the complainants. Not all people, but the former employees of the complainants. Why should that necessarily work an injury to their business? Only by showing the urgent present need of workmen, the inability to secure competent persons to fill the places of the former employees, the actual condition of the material required to be manufactured, the extent of existing orders for manufactured goods and a variety of other considerations going to make up the present status of the business. Now, if the complainants could supply the places of the former employees with better workmen, at less wages, then the threat would be to benefit the business; not to injure it. But even if the tendency of the act threatened might be to injure the business, how would that help the matter ? The statute does not deal with tendencies or probabilities, much less possibilities. The threat must be to do an unlawful injury to property; not to do something which may affect it injuriously, but which must injure it.

If the prosecution is right, the statute would operate upon “ good-will ” as well as upon reduced profits; in fact, upon property invisible and non-objective, the very existence of which would have to be brought to light by independent evidence. This could not have been the intention of the statute. The corpus delicti is, first, the obtaining of the money or property, and, second, the threat to injure some specific thing by a direct physical attack upon the object of the threat. Property and person are placed in the same category, and the property contemplated is something that can be inj ured in the same way as “the person” can be injured.

This injury, whether to person or property, must surely be direct. The prosecution, par example, cannot sny that, although there was no threat to molest the complainant physically, or even to touch his person, yet the menace, if executed, might have affected his nerves and thus injured his person. Consideration of the law as it existed prior to the Penal Code adds force to this construction. At common law, extortion signified any oppression by color of right; but, technically, it was defined to be the taking of money by an officer by reason of his office, where none at all was due, or not so much due, or when it was not yet due. Wharton’s Criminal Law, 3d ed., 833 ; 1 Hawk P. C., ch.68, § 1; The People v. Whaley, 6 Cowen, 663.

These rules as to the taking of unlawful fees were codified in the Revised Statutes. 2 R. S., Edmond’s ed., 669, 670, §§ 5, 6 and 7; id., 778, 779, _§ 17. And we also find there a provision making a verbal or written threat to accuse another of any offense, with intent to extort property or money, a misdemeanor. 2 R. S., Edm. ed., 712, § 2. The obtaining of money by force or fear •does not, therefore, seem to have been extortion either at common law or under the Revised Statutes. It was robbery at common Jaw to extort money under the threat of charging one with an unnatural crime. Rex v. Jones, 1 Leach, 139;. Rex v. Donnally, id., 193 ; Rex v. Cannon, R. & R., 146.

And this view was taken of the provision of the Revised Statutes defining robbery in the second degree, in The People v. McDaniels, 1 Park. Cr., 198, notwithstanding the specific legislation to which I have referred, making the threat of such an .accusation, with intent to extort money, a misdemeanor. Under the Revised Statutes the sending of a letter threatening to accuse any person of any crime or to do any injury to the person or property of any one, with a view or intent to extort any, etc., was declared to be an attempt to rob. And the fact that this offense was placed in the same class as that of robbery was emphasized in The People v. Griffin, 2 Barb., 427.

It will thus be seen that the offense now under consideration, thoughclassed for the first time in the Penal Code as extortion, 3'cally completes the legislation against robbery, attempts at robbery and cognate offenses. Section 552 of the Penal Code is in the alternative, ti-eating extoi’tion by force and fear as one thing and extortion by official action as another. These two methods of extortion are separately defined in subsequent 'sections, but it is apparent from the language of the section providing the penalty for extortion by force or fear (§ 554) that the latter is but a supplement, under the name of extortion, to robbery in the first, second and third degrees. This section (554) provides for such punishment only when the money or other property has been extorted by force or fear “ under circumstances not amounting to robbery in other words, when the money or other property has been obtained “ with the consent ” of the complainant and not “ against his will." For really the main distinction between robbery in' some degree and this form of extortion lies just there. Robbery is the unlawful taking against the will by means of force or violence or fear of injury, immediate or future, to one’s peraon or property, Penal Code, § 224, while extortion is the obtaining with consent by similar means. Thus unless robbery could be predicated of the taking against the complainants’ will of the money here obtained with their consent (that is, in case such money had really been take3x against their will), it is difficult to see how extortion can be sustained in a case where it was taken with his consent It certainly would be a novel indictment for robbery which charged the taking of property against the will of the complainant by means of fear of injury to his property, e. g., his business, resulting from threats on the part of the robber or highwayman that he would use his influence with the complainant’s landlord not to extend his lease, or with the manufacturers not to sell him goods, or with the banks not to discount his paper.

Thei'e is another difficulty in the p3’esent case, and that is that the injury threatened must in itself be “unlawful.” Row, the-abstention from work on the part, of the operatives was not unlawful. It is not claimed that they broke any contract of service- or hiring, knowing or having reasonable cause to believe that the-probable consequence of so doing would be to endanger human life or to cause grievous bodily injury or to expose valuable property to destruction or serious injury. Penal Code, § 673. It is not, in fact, pretended that these operatives were working for the complainants under any special contract at all. On the other-hand, they were not guilty of “ conspiracy,” for the reason that orderly and peaceable co-opei’ation for the purpose of obtaining-an advance in the rate of wages - is expressly excepted from the conspiracy sections. Penal Code, § 170.

This exception was further emphasized by an amendment to §• 675 of the Penal Code, which went into effect on the first of September in the present year and which reads as follows: “But. nothing in this Code contained shall be so construed as to prevent, any person from demanding an increase of wages or from assembling and using all lawful means to induce employers to pay such. wages to all persons employed by them as shall be a just and fair -compensation for services rendered.”

Thus the law is unmistakable that so long as there is neither violence nor an attitude of intimidation nor interference with ■others, employees are free to work or to refrain from working, as they please; free individually and free in combination. The attitude of the complainants’ employees, at the time the threat in question was made, was not, therefore, unlawful. It would seem to follow that a threat to induce a continuance of their lawful attitude could not of itself be unlawful, at least in the sense of -criminal. Whether a civil action would lie for damages sustained by the defendant's acts is another question, one with which we •have nothing now to do. It is sufficient -for the determination of -this case that the defendant’s threat to use his influence to keep men from working for the complainants, however wrong morally, was not criminal. It was not a threat to do the complainants an -unlawful injury, but to continue a condition of things which, even if injurious, was undoubtedly lawful. The act threatened, that is, the act of advising, persuading or exhorting the men not to resume work, was not in itself indictable, and was no more unlawful than :the act of the men in abstaining from work. The statutory crime •does not consist of a threat to do an improper or unjust act, nor •even of a threat to injure another’s business by lawful means, but to do an unlawful injury to the property of another. Whatever injury was being done to the complaintants’ business at the time •of the threat in question was not an unlawful injury. And it follows that the defendant cannot be said to have threatened to do an unlawful injury to such business.

For these reasons the judgment and conviction should be re■versed and a new trial ordered.

Ingraham, J.

The defendant was indicted for extorting from ■the firm of Popkin & Marks one hundred dollars by means of a -threat “ that he would do unlawful injury to their property; that is to say, to injure and destroy the said business of them, the said Popkin & Marks, and prevent and hinder them from carrying on ±he same.”

The crime of extortion is defined by § 552 of the Code to be the obtaining of property from another with his consent, induced by a wrongful use of force or fear or under color of official right, •and the defendant claimed on the trial, and now claims before us, that he is not guilty of extortion as defined by this act, and that •conceding the testimony offered on behalf of the People to be .true, the crime was not proven.

By § 553 of the Penal Code it is provided that “fear, such as will constitute extortion, may be induced by a threat to do an unlawful injury to the person or property of the individual threatened, or to any relative of his or to any member of his family,” .and to support this judgment it must appear that the defendant •extorted from the firm of Popkin & Marks the one hundred dollars mentioned in the indictment by the wrongful use of fear induced hj a threat to do an unlawful injury to the property of such firm.

From an analysis of § 553 it appears that the threat to induce fear as defined by the section must contain two elements: First,, the threat must be to do what is unlawful; and, second, the injury must be an injury to the property or person of the individual threatened, or to a relative of his or to a member of his family, and unless it appears that what the person accused threatened to do was unlawful, and, if performed, would do an injury to the person or property of the person threatened, the party making the threat is not guilty of the crime.

In construing this section of the Code we should give a reasonable construction to the language used, not a forced and unnatural construction extending the meaning of the words so as to include threats which a person of ordinary intelligence would not understand to be within the fair meaning of the language.

Popkin & Marks were cloak manufacturers in the city of Hew York. Their employees had left work in consequence of a dispute between themselves and the firm as to wages, and on the 9th of February an agreement was arrived at between the firm and their employees whereby the employees agreed to return to work on the following morning.

On that morning, however, they did not return to work, but the defendant came to the office of the firm accompanied by several of the firm’s employees and at that time he demanded the sum of $500, saying to Mr. Popkin : “You have got to pay me $500 to have your people back again to work.” Upon the refusal of Popkin to pay any sum, he reduced his demand to $300, saying: “If you do not give me $300 you cannot have your people back again to work; I will take $300 as long as I am here, and as-quick as I am going to leave this place it will cost you $500.”

That demand was refused and defendant left his place. In a few minutes Zipkin, one of his companions, returned and after-some consultation with Marks, one of the members of the firm, Marks said he would pay the defendant $100. Zipkin left and in a short time returned with defendant, who then said : “ I will take $100; I am doing that as a favor to Zipkin and instead of $300, if you want your people back I will take $100.”

A check was then drawn by the film to the order of the defendant and given to him, upon which he drew from the bank account of the firm the sum of $100, and this is the only evidence of any threat made by defendant to Popkin & Marks or to any one.

It seems to me clear, that there was no threat to do an unlawful injury to property. The defendant did not expressly threaten Popkin & Marks that he would do anything himself; there was. no statement that he would prevent the men from working; what, he said was that they would not return to work. It was certainly not unlawful for these workmen to refuse to work for Popkin & Marks,nor was it unlawful for defendant to advise them not to work. There was no threat, therefore, to do an unlawful act. Defendant did not of his own accord go to the place of business of Popkin & Marks, but was sent for by them, and his statement that the men would not return to work, even if that could be ■construed into a threat that he would prevent them from returning to work, was not a threat to do an unlawful injury to the property ■of Popkin & Marks, because of the fact that unless the men did return Popkin & Marks could not advantageously continue their business.

If one of Popkin & Marks’ employees, had refused to work for them, such a refusal, although it might have seriously affected their business, might have caused them serious loss, would not have been an unlawful inj ury to their business, because such an employee had the legal right to work for Popkin k Marks or not as he pleased, and if it was not unlawful for an employee to refuse to work it was not unlawful for a third party to advise or induce him to refuse to work, so that a threat of such third party that he would prevent such employee from working would not be .a threat to do an unlawful injury to the employer’s business.

Many illustrations might be given of instances where the exercise of "a legal right by one person would cause an injury to the property of another, and where there is no penalty or liability because of the exercise of such right.

The owner of a dwelling house could devote it to business purposes and thereby injure the value of adjoining property. Tet such use would not be an unlawful injury to the adjoining property, and a threat by the owner to make such use of his property would not be a threat to do an “unlawful injury” to property. It might be said to be a threat to do a “ lawful injury ” to the adjoining house, but such a threat is not sufficient to sustain a conviction for extortion, and it seems to me equally clear that a threat to induce the owner thereof to so use his house is not a threat to unlawfully injure property, because if it is not unlawful for the owner to use it for a particular use, it is not unlawful for a person to procure the owner to so use it.

Nor do I think "that such a threat can be said to be a threat to do an injury to property.

There is no evidence that the defendant had any knowledge that Popkin k Marks had any unmanufactured goods on hand at the time of the occasion in controversy, or that he knew, or had reason to know, that the refusal of the men to return to work would cause injury to any of their property.

Popkin k Marks had a right to employ such men as they chose and their employes had a right to work for whom they chose, and the mere supposition that the refusal of this particular body of men to work for Popkin k Marks would in some way ■embarrass them in manufacturing goods for their fall trade, is all that there is to sustain the charge that this was a threat to injure property.

But ir seems to me clear that the evident intent of the statute is that the threat should be to injure a specific piece of property.

There must be the existence of a res and a threat to injure it.

The section in question is part of chapter 5 of title 15 of the Penal Oode. The title treats of crimes against property, and includes arson, burglary and housebreaking, forgery and counterieiting, larceny, embezzlement and extortion. The word property,, as defined by § 718 of the Code, would not include a man’s business, and there could not certainly be an indictment for larceny for stealing the business.

The meaning of a threat to do an unlawful injury to the person of an individual would be a threat to, in some way, injure liis body, and the threat to do an unlawful injury to his property, applying the words in their ordinary significance, would be in some way to injure some specific property.

It could hardly be claimed that a threat to injure a person’s character or his professional reputation would be an injury to» property within the meaning of this act; and yet, such a threat, where the successful conduct of such person’s business depended largely upon his character or reputation, might seriously injure his business.

It is a threat to injure the thing that constitutes the crime; not to do an act which indirectly may do damage to business or its-successful conduct.

I think, therefore, that the evidence was insufficient to sustain the conviction, and the judgment must be reversed and a new trial ordered.

Daniels, J.

(dissenting.)—The indictment charged the defendant with having obtained a check for the sum of $100, and of the value of that amount, from Abraham Popkin and Abraham Marks, who were copartners in trade, carrying on business in the city of New York as cloak manufacturers, by means of a threat, made by him to them to do an unlawful injury to their property,, that is to say, to injure and destroy their business and prevent and hinder them from carrying on the same. It appeared /by the evidence that these two persons were cloak manufacturers, employing a large number of persons in that business, and that in January, 1891, a strike took place, by which the persons in their own immediate neighborhood and those employed by contractors-with them refused to work until a more satisfactory arrangement, might be made for their compensation. While these persons-were on their strike the firm employed others to manufacture their garments, who were either non-union persons or else engaged in the employment in violation of the rules of their union. And efforts were made to arrange and agree upon terms which would be satisfactory to the individuals who were out upon the strike- and would induce them to resume their former employment. And in the course of these proceedings the defendant acted on behalf of the persons who were engaged or combined in the strike. He acted as their representative and was the manager of the Cloak-makers’ Union. With him, also, were associated other persons as a committee, who participated in the negotiations had with the-members of this firm of Popkin & Marks. A result was reached by which a scale of prices was agreed upon and assented to by the defendant on or about the 24th of January, 1891. But they proved to be unsatisfactory to the individuals engaged in the strike, and further negotiations continued to obtain more advantageous terms by way of compensation for the services of the individuals included in the strike. These were finally obtained on the 9th of February, 1891, and it was agreed that the former employees of the firm should return to their work, provided the firm discharged the persons from their service who in the meantime had been employed by them.

The members of the firm assented to this condition, as well as the scale of prices, and discharged the persons from their employment who were not members of the union, or who as members had been engaged in their employment in violation of the rules or regulations of the order. But the persons who had been upon the strike did not return to the service of the firm. And evidence was given upon the trial of the indictment by Mr. Popkin to the .effect that he inquired of the defendant why it was that these persons had not resumed their employment, as that had been arranged between them and the members of the firm. And his evidence is that the defendant then informed him that the persons who had been upon the strike did not return to the employment of the firm for the reason that Popkin had not settled with the defendant. He stated then that he asked the defendant, “ What kind of a settlement have I got with you ? I don’t owe you any money.” And then the reply was: “You have got to pay me five hundred dollars to have your people back again to work. "* * * If yon want to have your people back again to work, you have got to pay me that amount of money.” “I told him I didn’t know what for. Finally he says to me, I will take three hundred dollars. I told him, I wouldn’t give you one cent, because I don’t know for what. He says, if you do not give me the three hundred dollars you can’t have your people back again to work.” And when this conclusion was reached and asserted, the defendant, together with one of the persons, named Zipkin, who was with him, left the store, and shortly afterwards Zipkin returned and said something about a settlement for $100. This statement was made to Mr. Marks, the other partner. And shortly after that the defendant returned to the store with Mr. Zipkin, .and then stated, “ I will take one hundred dollars. I am doing that as a favor to Zipkin, and instead of three hundred dollars, if you want your people back, I will take one hundred dollars." And thereupon a check was given to the defendant., subscribed by the firm, for the sum of $100, upon which the defendant received the money. The witness further testified that he believed at the time the check was paid to the defendant that the latter had the „ power to keep his men from returning to their work, and it was in that belief that he paid the money. The evidence given by Marks, the other partner, was not so full or complete as that obtained from the witness Popkin, but it still tended to corroborate the evidence of the latter. And so did that of the witness Berinen, who was the book-keeper of the firm. It was also stated that the defendant represented himself as having the control of these persons who previously had been in the service of the firm, and had agreed to return to that employment.

At the close of the case on the part of the People, a motion was made for the acquittal of the defendant, which was denied, and the counsel for the defendant excepted to that denial. This-motion evidently proceeded upon the theory, that the threat which the jury could very well imply or infer from what is stated to have taken place, was not such a threat as the law required to-create the offence of extortion. And that position has been taken in support of the present appeal from the judgment. Whether the evidence was sufficient to place the case within the provisions of the law relative to this offense must depend upon the construction which should be given to the statute enacted to define and punish the crime of extortion. It has. been declared by § 552 of the Penal Code of the state that: “ Extortion is the-obtaining of property from another with his consent, induced by a wrongful use of force, or fear, or under color of official right.”' And by § 553 of the same code, it has been declared that: “Fear,, such as will constitute extortion, may be induced by a threat to-do an unlawful injury to the person, or property, of the individual threatened, or to any relative of his, or to any member of his-family.” Assuming the evidence of the witness Popkin to be reliable, as that may properly be done inasmuch as the jury appear to have accepted it as truthful, the point is presented whether a threat to prevent the persons who had been upon the strike from returning to and entering the employment of the firm was a threat to do an unlawful injury to the property of this firm. It is stated in the evidence of the witness first sworn, that they had on hand material cut up and ready for manufacturing, and not " manufactured, and that what was cut and uncut amounted to the sum of about $50,000, and that was designed to be manufactured by the firm in the course of its business. It was also stated that the season for the sale of their manufactured garments closed about the 15th of April. The firm at the time had become, by the discharge of the persons who had been employed by it, incapable of proceeding with the manufacture of these garments, and had placed itself and the business carried on by it in a state of entire dependence upon the individuals who had been engaged in the strike. And the effect of what is stated to have been said to one of its members by the defendant was that this business should be interrupted and necessarily remain in suspense until the money which was demanded should be paid over.

The defendant, according to the testimony of Mr. Popkin, asserted himself to be in such a relation to the persons on the strike, " even after they had adjusted their differences as to a compensation, as to control their movements and prevent them from returning into the service of the firm unless his demand was satisfied. By this interposition of his authority over the working people, the belief is stated to have been produced that the persons would not return to their employment until this money was paid to the-defendant. And that of itself was a threat on his part to injure-the property or business of the firm, for the interruption of that, business would necessarily be attended with loss to the firm. And a loss resulting from the suspension or interruption of the business -would necessarily be an injury to property, and it was to-avoid that injury that this money was paid over.

The statute does not require the narrow construction insisted upon by the defendant’s counsel. For it has not been, either by its language or reasonable import, confined to the case of an actual injury to some specific article of property, but it has been made to include the threat to do any unlawful injury to property. And business is property, as much so as the articles themselves-which are included in its transactions. Besides that this term “property” has been so defined by subds. 9, 14 and 15 of § 718 of the Penal Code as to include the business itself and the loss insulting from its interruption. By the first of , these subdivisions it has been declared that, “The term ‘property’ includes both real and personal property, things in action, money, bank bills, and all articles of value.” And it has been further declared by subd. 15 of the same section that the term “personal property ” includes every description of money, goods, chattels, effects, evidences of rights in action, and all written instruments by which any pecuniary obligation, right or title to property, real or personal, is created, acknowledged, transferred, increased, defeated, discharged, or diminished, and every right and interest therein. And this is conformable to the significance given to the same term by legal writers. For it has been said by Blackstone that property consists in the free use, enjoyment and disposal of all the owner’s acquisitions, without any control or diminution save only by the laws of the land. 1 Blackstone’s Com., Sharswood’s Ed., 138.

And in Springfield Ins. Co. v. Allen, 43 N. Y., 389, it was stated in the opinion of the court that “ Property is a thing owned, that to which a person has or may have a legal title.’’- Id, 395. And in all its attributes it has been brought within the protection of the constitution of both the nation and the state by the declaration that no person shall be deprived of property without due process of law. And that includes within this term a business which may be built up for the manufacture and sale of property, as well as the tangible articles themselves employed or used in the course of such business. There would obviously be no reason for so distinguishing the word “property,” as it has been used in these sections of the Code, as to apply it solely to tangible articles capable in and of themselves of receiving direct injury by the unlawful or wrongful act of another. The section has not employed the term in that manner, but it has included it in its broad and unrestricted sense, applying its prohibition to whatever may be properly maintained to be property. And the business of persons engaged in it is certainly, within the unrestricted significance of the term as it has been employed, as much a matter of property as any of the goods or garments manufactured or sold in the coqrse of such business. The defendant consequently was not entitled to the direction which was asked for in his favor, for the evidence did tend to establish the existence of an offense within the scope of this indictment.

An exception was also taken to what was stated to have been said and done at one of the meetings held by the cloakmakers. Mr. Yipkinwas the chairman of that meeting, and was with the defendant at the office of the firm when the prices were fixed. And not only from the evidence given on the part of the prosecution, but that .also produced in behalf of the defendant, it was made to appear that he was their substantial representative, and that his services were ■employed to harmonize the differences between the cloakmakers and this firm. And both on behalf of the prosecution, as well as the defendant, the proceedings of the meetings of the cloak-makers wére proved in order to exhibit their intention and state of mind concerning the resumption of their employment. They were, in fact, as the evidence indicated the case to be, co-operating together. They asserted their claims, and the defendant endeavored to obtain such concessions as would satisfy these persons. And there was consequently no impropriety in showing what was exacted by them as a subject matter falling within the province of the defendant for negotiation and settlement There was no really no dispute as to their exactions, or the fact that they co-operated together to secure the concession of their terms, or the settlement npon others which should be satisfactory to them. Both parties were acting to bring about this result And to attain it it became necessary to understand what the cloakmakers themselves required should be made in the way of concessions for advanced compensation for their services. And evidence of what took place at their meeting was admissible for the purpose of proving what they insisted upon, and what the defendant himself endeavored to secure in their behalf.

The defendant was asked upon his own examination as a witness whether he kept the money himself, that sum of $100. This was objected to, and the objection was sustained, and to that an exception was taken. The theory of the defense was that' the defendant demanded this money not for himself, but as some compensation for the cloakmakers during the time they had been engaged in the strike. And the object of the inquiry was probably to show that he had paid over the $100 to them, or l'or their benefit. And if no other evidence had been given concerning this money, it would probably have been error to have excluded this answer. But the witness himself had previously stated that he went with Mr. Zipkin and cashed the check “ and got the money, and went with Mz\ Zipkin to the office and delivez-ed the money to the cashier." He also testified that he stated to Mr. Poplcin that he took the money to be distributed between the working people of Popkin & Marks ; that he obtained it at their request as they had instructed him, and did not receive it intending to appropriate any of it to his own use. And that, with the other evidence, included all that was required to be proved to relieve the defendant from this criminal accusation if the jury had confided in his statement

He was also interrogated as to remarks that he had made at a meeting at which he was present as one of the speakers. But there was no error in taking his answer as to what he had said at the meeting as some evidence bearing npon his general intention in the control or management of the affairs of the unions. He stated generally that he believed that the working people had. a right to unite themselves and form a union and ask for justice. And that, no doubt, he was correct in stating. This subject was: very fully examined in Thomas v. Musical, etc., Union, 17 St. Rep., 51, in which the writer examined the authorities accessible upon this subject. And it was there concluded that all persons had the right to prescribe the terms upon which they would perform their services. And that this was not only an individual right, but it was one which could be protected by the combination of two or more persons. And it was their 'right to refuse to render their services for any person who should be offensive or disagreeable to them, or with any person who should not, for any cause, receive their approval; that so far the law permitted all working people to combine together either for their individual or their mutual protection. And while these views were not there expressly accepted by the other members of the court, they are-still deemed to be well supported by the authorities. And the case in which they were expressed, as it was in fact decided, is no authority to the contrary, for the reason that the decision made by the majority of the court, as well as by the special term, wasafterwards reversed by the court of appeals. Thomas v. Musical, etc., Union, 30 St. Rep., 563. There was accordingly no infringement of the law in what the defendant himself, in this manner, stated he had said, nor by what he afterwards conceded to have been his additional statement. And no harm, therefore, could have resulted to him from what he admitted to have been his remarks at the meeting.

The verdict of the jury has been objected to as against the weight of the evidence. This objection has been raised upon the fact that four witnesses besides the defendant testified that they were present at the time when the money was demanded by him from. Mr. Popkin, and that he demanded the money not for himself, but to distribute or to divide among the persons who had been out of employment during the period of the strike. Farther evidence was given by two witnesses sworn on behalf of the defendant as to statements made by Mr. Popkin, that there was no extortion in obtaining the money. This, however, was denied by Popkin, and in effect also by his wife, who was present at one of the conversations. Further testimony was also given to prove that the defendant had a good reputation among those who knew and had business intercourse with him. And from the proof, as it appears by the case, there was certainly sufficient, if the jury had credited the statements of the witnesses, to secure the defendant’s acquittal. But this court, not having the advantage of seeing the witnesses and listening to the statements and observing their manner as the jury did, cannot, on that account, assume that the verdict was not in accordance with the evidence. It will often occur that witnesses may unite in their evidence, as those did so on the part of the defendant, when the jury, from their conduct or appearance upon the stand, will fail to be impressed with the truthfulness of their statements. And the court, upon an appeal, where the evidence may be in that manner rejected, is not at. liberty to say that the jury have erred as long as they had sufficient evidence before them on the part of the prosecution to justify their verdict.

On this subject it has been said that “When there is evidence oh both sides and the case is balanced and the mind of the court has been called upon to weigh conflicting statements and inferences, and decide upon the credibility of opposing witnesses, much weight must be accorded to the especial adaption of the trial court to investigate and determine such questions. Any other rule would nullify the peculiar advantages which that tribunal possesses, in observing the manner and appearance of the witnesses produced, and the various physical and mental peculiarities by which the mind of the professional observer determines the degree of credit which ought prudently to be attached to oral testimony.” Baird v. Mayor, 96 N. Y., 567, 577. And this principle requires the conclusion of the jury as it has been expressed by their verdict to be adopted and maintained by the court, unless the preponderance of evidence is so great as to indicate either a misunderstanding of the case, or the influence of prejudice, passion or corruption. The present case cannot be held to be of that description. It was, on the contrary, entirely proper for the consideration and the decision of the jury, and their verdict cannot be set aside as opposed to the weight of the evidence. The judgment, on the contrary, is fully supported by the case as it was presented on the part of the prosecution, notwithstanding the evidence produced in favor of the defendant, and it should be affirmed.

-Judgment reversed and new trial ordered.


author: Ingraham, J.

text:
    Charles Smith et al., Resp’ts, v. The Seattle, Lake Shore & Eastern R. R. Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 30, 1891.)

    Discovery—When ordered.
    In an action for services in procuring the making of a contract for the building of defendant’s road, where it is alleged that such contract was executed in duplicate, one of which is in defendant’s possession, and the plaintiff has no other means of proving the execution of the contract, it is proper to grant an order for the discovery of the duplicate in defendant’s possession.
    Appeal from order directing a discovery.

      John V. Bouvier, Jr., for app’lt; Gilbert D. Lamb, for resp’ts.
   Ingraham, J.

The complaint alleges that a contract was made between the plaintiffs and the defendant whereby it was agreed that if the plaintiffs succeeded within a reasonable time in securing the making of a contract with a responsible person or company to build defendant’s road for a consideration therein named that the defendant would pay plaintiffs $150,000 in its first mortgage bonds. That plaintiffs procured such a contract to be made between the defendant and the firm of Jameson, Smith & Ootting, bankers and brokers in the city of Rew York.

It appears from the petition upon which this application was made that the said contract between the defendant and Jameson, Smith & Ootting was in writing executed in duplicate and that •one of such originals was in possession of the defendant, and that no copy thereof was retained by or is in the possession of the plaintiffs.

To entitle plaintiffs to recover they must prove the execution -of such contract. The defendant admits that such a contract was made and does not deny that it is in the possession of the company.

We think that the motion for the discovery of the contract was .properly granted. The contract must be proved by the plaintiffs on the trial. It is, therefore, material evidence for the plaintiffs -and is in possession of the defendant. Without this evidence plaintiffs cannot safely proceed to trial and plaintiffs have no method of establishing the making of the contract except by its ■production.

There is no good reason to doubt the good faith of the appli- - cation and we think the order should be affirmed, with ten dollars costs and disbursements.

Yah Brunt, P. J., and Barrett, J., concur.


author: Barrett, J.

text:
    Thomas Rogers, App’lt, v. Alonzo T. Decker, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 30, 1891.)

    Clubs—Trustees—Verification op pleadings.
    The liability of the trustees of a club organized under chap. 368, Laws 1865, for its debts is original and concurrent with that of the corporation and not of a penal nature, and an answer to an action to enforce such liability must be verified.
    Appeal from an order of the special term, compelling plaintiff to accept an unverified answer.

      James C. Murray, for app’lt; James B. Dill, for resp’t.
   Barrett, J.

This action is brought against the defendant to "recover a debt due by the Hoboken Turtle Club, of which he was a trustee. The club is a corporation created under the act of I860 (chap. 368) “for the incorporation of societies or clubs for •certain social and recreative purposes.’’ By the seventh section of this act the trustees of any coiporation organized under its provisions are made jointly and séverally liable for all debts due from the corporation contracted while they are trustees, provided said debts are payable within one year from the time they shall have been contracted, and provided a suit for the collection of the ■same shall be brought within one year after the debt shall become due and payable. The present action is brought under this provision, and the defendant served an unverified answer upon the theory that the action was in its nature penal. The plaintiff refused to receive this unverified answer, but the' court at special term compelled him to do so, holding with the defendant that the ■action was penal, and that the plaintiff must therefore accept the •answer. We think this view was erroneous, and that the action was in its nature ex contractu. The trustees are by the provision to which we have referred made primarily liable for the debts of the company.

This liability is not because of any act of omission or commission on their part, but simply because they are members of the corporation and have assumed the responsibilities imposed upon such members as choose to accept the position of trustees. The nature of the liability with which the stockholders of a corporation are charged, pursuant to a somewhat similar provision in an act of incorporation, was exhaustively considered in Corning v. McCollough, 1 N. Y., 47. It was there held, upon cogent reasoning, that where the charter of an incorporated company provides that the stockholders shall be liable for its debts * * *" such stockholders are liable in an original and primary sense, like partners or members of an unincorporated association, and their liability is not created by the statute of incorporation. “The ground of the action,” as was said in that case, “is the' individual liability of the defendant to pay for merchandise sold. and delivered to a company of which he was at the time a. member.” The present act of incorporation shields all the members of the company (except those who have accepted the position of trustees) from their common law liability as joint debtors. The members who become trustees, however, are specially excepted, and as the act does not exempt them from individual responsibility, their liability is original and concurrent with that of the corporation. This distinction between an original contract obligation and a liability imposed by statute for disobedience-to its requirements is referred to in Gadsden v. Woodward, 103 N. Y., 242 ; 3 St. Rep., 102, and was clearly pointed out in Wiles v. Suydam, 64 N. Y., 173. In the latter case, Church, Ch. J., said : “ The cause of action against the defendant as a stockholder consists of the debt and the liability created by statute-against stockholders when the stock has not been paid in and a certificate of that fact recorded. In effect the statute in such a case withdraws the protection of the corporation from the stockholders, and regards them liable to the extent of the amount. of their stock as copartners.”

The case of Hall v. Siegel, 7 Lans., 206, is cited as an authority for the opposite view. But the question now under consideration did not arise in that case and was not before the court. What. was actually determined in that case was that the trustees were • liable only upon condition that a suit to enforce their liability should be brought within one year after the debt became due- and payable.

It is true that the court based this construction upon the assumption that the statute was in its nature a penal one. But the remark of the learned justice to that effect was purely obiter, and was inconsistent with the previous observation that the trustees-were made primarily liable for the debts. The affirmance of that judgment in the court of appeals without an opinion. 53 N. Y., 607, is authority only for what was actually decided, certainly not for mere observations which are in conflict with the deliberate-judgment of the appellate court in other cases.

We think, therefore, that the defendant was not privileged, and .that he could not omit the usual verification of an answer.

The order appealed from should be reversed, with costs and disbursements, and the motion to compel the plaintiff to accept .the unverified answer denied, with costs, with leave however, upon payment of these costs, to apply to the court for permission upon •such terms as may be just to serve a verified answer, such motion to be made within ten days of service of order to be entered .¡herein.

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


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    Walter Scott et al., App’lts, v. Homer J. Beaudet, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 30, 1891.)

    Attachment—Affidavit—N on-eesidence.
    An affidavit for an attachment which states that the defendant is a nonresident, as deponent has been informed by the defendant’s bookkeeper and verily believes, is sufficient without a statement that the informant’s affidavit cannot be obtained. The latter fact may reasonably be inferred from the business relation which the informant hears to the defendant.
    Appeal from an order of the special term granting the defendant’s motion to vacate a warrant of attachment.

      A. G. N. Vermilya, for app’lts; J. H. V. Arnold, for resp’t.
   Barrett, J.

The attachment was vacated upon the ground that the fact of non-residence was not sufficiently proved. The plaintiff Scott states in his affidavit as follows:

That the defendant is a non-resident of this state (as deponent ¡has been informed by Mr. Hutchinson, defendant’s bookkeeper, •and verily believes) and resides in the state of ¡New Jersey.”

The rule undoubtedly is, that where facts are stated on informa~tion the affidavit should show its sources, that the affiant believes such information, and that the informants are absent, or that their depositions cannot be obtained. The affidavit in the present case ■concededly complies with all these requisites expept the last It gives the name of the informant, and states that the affiant “ verily believes ” the information. But it fails in terms to state that the informant’s deposition cannot be obtained. We think, however, that the latter fact may reasonably be inferred from the "business relation which the infonnant bears to the defendant. When the affiant tells us that his informant is the defendant’s "bookkeeper, he states a fact which of itself furnishes a reasonable ground for not applying for an affidavit. The law should not .require so dangerous a formality as an application which might readily result in frustrating the plaintiff.

A person in the defendant’s employ, especally one so close to him as his bookkeeper, could scarcely be expected to make a hostile affidavit against him; that, too, for the purpose of tying up his employer’s property. The request for such an affidavit "would, in the nature of things, be communicated to the defend■ant and give him time to conceal or dispose of his property before it could be reached by attachment. If the affiant here had said that the reason Mr. Hutchinson’s affidavit could not be procured was because he was the defendant’s bookkeeper, and affiant, believed that he would refuse to make such an affidavit and affiant also believed that the mere request therefor would be communicated to the defendant and thus defeat the attachment, the-rule would surely have been sufficiently complied with. Yet the affiant’s belief and fears on that head would avail only because founded upon reason, namely, upon the fact stated .that the informant is the defendant’s bookkeeper; a fact fully justifying such belief and fears. How the statement of the fact carries with it the impress of such belief and fears quite as distinctly as though they had been mentioned in terms.

We think, therefore, that the affiant has given a sufficient reason for the non-production of Mr. Hutchinson’s affidavit, and that, upon the whole, Mr. Scott’s affidavit was sufficient to justify the granting of the warrant. There is no force in the further objection that the information may have related to a past period and not to the time when the attachment was granted. The affiant, speaks of the defendant’s non-residence as of the present time,, and the fair implication is that such was his information.

The order appealed from should be reversed, with costs and. the usual disbursements, and the attachment reinstated.

Yan Brunt, P. J., and Ingraham, J., concur.


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    Mary G. Pinckney, Resp’t, v. John B. Day et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 30, 1891.)

    1. Lease—Termination of—RsauLATiNe street.
    A lease of lands abutting on a street which, had not been regulated or" graded, provided that in case the city authorities should take possession of the street for the purpose of regulating and grading the same, the lease should terminate from the beginning of such work. Held, that the lessees were not absolved by these provisions from payment of rent which had accrued prior to the passage of the ordinance authorizing such work to be done.
    2. Same.
    The mere removal of a fence or other obstructions on the street, and the dumping of dirt and street sweepings thereon prior to the passage of the ordinance, is not a taking possession or commencement of the work within the meaning of the covenant in the lease.
    Appeal from a judgment in favor of the plaintiff, directed by the court at circuit.
    The action is brought to,recover two quarterly instalments under a certain written lease of land, made by the plaintiff to the-defendants, at an annual rental of $6,000, to be paid in equal quarterly payments.

      John C. Shaw and Gratz Nathan, for resp’t; William E. Stewart, for app’lts.
   Barrett, J.

This appeal is without merit. The plaintiff did not attempt to rent One Hundred and Eleventh street. The lease expressly specified two blocks of ground, one bounded southerly and the other bounded northerly by this street. It is plain, there-. fore, that there was no covenant of quiet enjoyment with respect to the street itself. The only covenant on that head was as follows:

“And the said' parties hereto hereby covenant that in case the authorities of the city of New York, or any person, by their authority, shall enter upon and take possession of One Hundred and Eleventh street for the purpose of regulating and grading the same, that from and after such work shall begin this lease shall determine and end, and that the rent shall be paid up to the beginning of such work only, and without any claim for damages for such ending and determination of this lease being made by or allowed to the parties of the said second part by the said party of the first part.”

It appeared in evidence that- the ordinance for the regulating and grading of this street was not passed until after the date at which the instalments of rent claimed in this action became due. The contract under which the work was actually done was made pursuant to this ordinance and was, of course, of a still later date. It is clear, then, that the city authorities did not, nor did any person by their authority, enter upon or take possession of the street for the purpose of regulating and grading it, until after the rent sued for became due under the terms of the lease. Consequently the defendants were not absolved from the payment of such rent. It is claimed, however, that the city authorities actually took possession of the street, and commenced the work of regulating and grading before the passage of the ordinance. This contention is not borne out by the facts. What was done, was to remove the fence and other obstructions on the road; also, to dump dirt and street sweepings thereon. But these acts were not embraced within the covenant The latter is clear, precise, and unambiguous. Both parties knew, or should have known, that the fence and obstructions in question were removable at any time by the commissioner of public works. H the acts complained of had been within the intention of the parties, it would have been easy to express such intention in the instrument. In place, however, of saying that the lease should terminate in case the lessees were disturbed in the practical exclusion of the public from the street, however that might be accomplished, the parties chose to covenant for well-defined official action and to take their chances as to any other disturbance of the status quo. No evidence was given in support of the claim for a reformation of the contract, and it is quite evident that no case on that head could under well-settled rules have been made.

There was nothing to go to the jury. The evidence was undisputed that the work was not begun under the contract for regulating and grading until after the rent sued for became due and payable. The verdict, therefore, was properly directed and the judgment appealed from should be affirmed, with costs.

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


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    Edward Fitzgibbons, App’lt, v. Seymour G. Smith et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed November 30, 1891.)

    Supplementary proceedings—Contempt.
    The injunction order contained in an order for the examination of a judgment debtor supplementary to execution imposes no obligation upon him to stop payment of checks previously given by him in good faith and for a valuable consideration, and he cannot be punished for ’contempt for failing to do so.
    Appeal from an order denying plaintiff's motion to punish Seymour Gr. Smith for alleged disobedience of an injunction contained in an order for his examination in proceedings supplementary to execution.

      F. J. Worcester, for app’lt; Michael J. Kelly, for Seymour G. Smith, resp’t.
   Barrett, J.

Mr. Smith did not disobey the injunction order. What he did was done some days before the order was served upon him. After the service he simply remained passive. Unless, therefore, upon such service he was bound to go to his bank and stop payment of checks previously given in good faith and for a valuable consideration, he has been guilty of no contempt. We think the order imposed no such obligation upon him. The checks, it seems, were so given in blank, but the state of the pecuniary relations between the defendant and his brother fully jusfied the latter in filling in amounts sufficient to withdraw the entire deposit, save some $10.50. The delivery of these checks thus in blank was intended to operate as a payment by the defendant of all the money in the bank belonging or due to his brother. So far, therefore, from the defendant’s failure to stop these checks amounting to a contempt, we think that such stoppage, or, indeed, any attempt to cancel the checks, would have been a fraud upon his part. The brother’s act in withdrawing the money was in no sense that of the defendant’s agent. He acted entirely on his own account, and withdrew what had been lawfully transferred to him in his own right prior to the service of the injunction.

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

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