author: BoaRDMáN, J.:

text:
    HORACE H. ADAMS, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Conspiracy — means employed, may he lawful — 2 B. 8., 692 — Declarations of conspirators — Intimate relations between witness and conspirator — Threatening letters — acts in apparent execution of— Ohmacter — evidence as to, when prisoner makes himself a witness.

    In the trial of an indictment under the provisions of 2 Revised Statutes, 692, declaring it a misdemeanor for two or more persons to conspire to cheat and defraud any person of any property hy any means, which, if executed would amount to a cheat, or to obtaining money or property by false pretenses, it is not necessary that they should be successful, nor that the means employed, so far as attempted, should be unlawful. It is sufficient if such means are part and parcel of those adopted by the conspirators and necessary to the final success of the fraud designed.
    Where two or more persons confederate together to accomplish an illegal purpose, the acts and declarations of either in regard to the common design are admissible against all. In such a case it is competent to show that the relations existing between the witness and the accused were of an intimate and confidential character, as tending, in some slight degree, to sustain the assertions of- the witness.
    Threatening letters written by the accused to the witness to prevent him from testifying in the case are admissible as tending to show his guilt, just as an escape or an attempt to escape from prison would be.
    The witness testified that after the receipt of the letters he was shot while walking in the jail yard by an unknown man who said, “see if you will tell now.” Held, that evidence of the shooting was admissible as the jury might find that it occurred in pursuance of the threats contained in the letters.
    Upon the trial the accused offered no evidence of good character to show his innocence. Having been examined as a witness in his own behalf the prosecution gave evidence to show his bad character, and he subsequently gave evidence to show it to be good. Held, that as the accused had not attempted to establish Ms innocence by proof of good character the jury could not consider the evidence of bad character given by The People, as bearing upon the question of his guilt or innocence, but only as tending to show that he was unworthy of credit and that his testimony should not be regarded by the jury.
    Weit of error to the Court of Sessions of St. Lawrence county, to review the trial and conviction of the plaintiff in error of a misdemeanor.
    The plaintiff in error was charged with having, on the 1st day of January, 1872, at the city of Ogdensburg, in said county, conspired with one Jesse B. Lamb to defraud David 0. Judson, John D. Judson and Daniel Judson, of said city of Ogdensburg, of their money, goods and property.
    The conspiracy alleged in the indictment was, in substance, that Lamb should deposit money to be furnished him by Adams at some bank in New York city, representing that he was one of the firm of Geo. B. Earle & Co. doing business in New York city as wool dealers; that he should take from such bank certified checks for the whole or a part of the money so deposited, payable to the order of Henry 0. Carley; that with the said checks he should go to the said Judsons and represent to them that Geo. B. Earle & Co. were a firm dealing in wool and doing business in New York city; that be was their agent; that his name was ITenry C. Carley, and that said firm was intending to purchase wool in Ogdensburg and vicinity.
    That said Jjamb (as Henry C. Carley) should get such certified checks collected by said Judsons, take the proceeds of such collected checks, or other money to be furnished by Adams, and repeat the act of depositing, taking certified checks and having them collected by said Judsons until a credit had been established with said Judsons.
    Then, when there was no money in said bank in New York city and no expectation that there should be, or that checks to be drawn on said bank would be honored or paid, said Lamb was to take uncer-tified checks, to be drawn in the name of said Geo. B. Earle & Go. on said bank, payable to the order of said Henry 0. Carley; and which uncertified checks said Lamb, under said fictitious name of Henry 0. Carley, was to indorse, get discounted and paid by said Judsons before they were presented for acceptance or payment; and the money thus fraudulently obtained from said Judsons was to be divided between said Adams and Lamb.
    That said Geo. B. Earle & Co. and Henry C. Carley were fictitious names and persons, and known to be so to both Adams and Lamb.
    That in pursuance of said conspiracy Lamb, on or about the 26th day of March, 18T2, received from Adams $1,600, and immediately thereafter deposited it in the Manufacturers and Merchants’ Bank of New York city in the name of the firm, and made to said bank the representations as per the said agreement of conspiracy.
    He took therefrom a certified check purporting to be drawn by said Earle & Co. on said bank, payable to the order of said Carley, for $800; and about the same time, according to the agreement of conspiracy, presented said check to the Judsons, by whom it was collected and the proceeds taken by said Lamb as and for said Carley.
    That on the 16th day of April, 1812,, said Lamb presented to said Judsons, at Ogdensburg, another check purporting to be drawn by the firm on the bank, and payable to the order of said Carley, for the sum of $500, said Lamb at the time making representations to said J udsons according to said conspiracy, which check was collected by said J udsons and the proceeds delivered to said Lamb as and for said Carley.
    The indictment further alleged the drawing of a check on or about the 28th day of April, 1872, by the same drawers on the same bank and payable to the order of said Carley, dated on or about April, 1873, for the sum of $500.
    That there was not at the time of the drawing of the last mentioned check, and it was .agreed between said Adams and Lamb that there should not be in said bank in New York city, or elsewhere, any money or value of any kind to meet, pay or take up the same.
    The indictment concludes, “ which said acts were all done and agreed upon by and between the said Horace H. Adams and Jesse B. Lamb, in pursuance of, according to and in aid of said conspiracy for the purpose of cheating and defrauding the said Judsons out of their money and property, against the form of the statute,” etc.

      Lamb was called as a witness by The People to testily as to the conspiracy. Upon the trial letters were given in evidence written, as it was claimed by the prosecution, by the accused to Lamb threatening him with death if he gave testimony upon the trial.
    Lamb was also allowed to testify that while walking in the yard of the prison he was assaulted, and that by an unknown man who said-as he fired the pistol, “ see if you will tell now,” or “you have had prior warning, see if you will tell; now tell.”
    After the accused had testified in his own be'half, evidence of his bad character was given by The People, and rebutting evidence in his behalf. He had not given any evidence of good character with a view to raise a presumption that he was innocent of the offense. The justice,-in the course of his charge, said “the question of his character comes up in the case in two aspects and as to the probability of his telling the truth in the case; as to that you are to be careful and not to fall into error.
    “ When good character- is shown on the part of the defendant, as may be done affirmatively, or when the party accused offers himself as a witness and the question of good character is gone into, then that matter of character is in the • case, and you look at that question and see how the man as he challenges you, when he puts himself on the stand, stands as to the probability of his having committed the offense. That has very little weight in a case where there is no doubt. But when the case stands in a doubtful position and the question of character comes before the jury, then the defendant challenges investigation by the jury as though he stood rap and said, Here I am as the evidence discloses me to be; do you believe that a man having that character would commit the offense with which I am charged ? ’ Character is always a question for the jury, but in doubtful cases it is of the greatest significance, because it may be said that if a man by a long series of acts, by a well-conducted life, has gained a good character in his neighborhood, so that when he is accused of crime he can put that character in evidence, it then becomes his shield. He has the right when he comes before the court and jury charged with an offense, he has the right to challenge investigation and say to the jury, ‘Look into the evidence and see what manner of man I am, and say whether there is probability that I have done this thing.’”

      Defendant’s counsel excepted to that part of the charge stating that when the defendant goes on the stand as a witness then his character is a question in the„ case for all purposes, and requested the court to charge the jury that unless the defendant offers in the first place affirmative evidence of character the question of character, in case he is a witness, relates only to his standing and credibility as such.
    The court said: “ I refuse so to charge and charge, that if the question of character is legitimately gone into for any purpose it is in the case for all purposes.”
    Defendant’s counsel excepted to the refusal to charge as requested,' and also to the additional charge.

      Levi H. Brown, for the plaintiff in error.

      J. It. Brinekerhoff, for the defendants in error.
   BoaRDMáN, J.:

The plaintiff in error was convicted of a misdemeanor, and on the 16th day of February, 1874, was sentenced to the St. Lawrence county jail for one year, and fined $250. The indictment was for a conspiracy with one Lamb, to cheat and defraud the Judsons, at Ogdensburgh, of their money and property under the fifth subdivision of section 8 of 2 Revised Statutes, page 692 (714 of Edm. ed.). The statute in this respect reads as follows:

“Section 8. If two or more persons shall conspire * * * 5th. To cheat and defraud any person of any property by any means which, if executed, would amount to a cheat, or to obtaining money or property by false pretenses * * * they shall be deemed guilty of a misdemeanor.” ' -

The offense charged in the indictment, if executed, would have resulted in cheating the Judsons and obtaining their money by false pretenses. It was not necessary that the conspiracy should have been successful, nor that the means employed, so far as it was attempted, should have been unlawful. It was sufficient if such means were part and parcel of those adopted by the conspirators and necessary to final success in the fraud designed. (3 Whar. Cr. Law, §§ 2353, 2337, 2300, etc.; Lambert v. People, 9 Cow., 578.)

The acts done in pursuance of the agreement and to accomplish the object intended thereby- were overt acts, and were set up in the indictment. (2 R. S., 692, § 10 [714 Edm. ed.]; People v. Chase, 16 Barb., 495.)

The objections of the plaintiff in error taken to the form or sufficiency of the indictment, were therefore properly overruled. That disposes of the various motions to quash the indictment, to direct a verdict for the defendant, and to arrest judgment after conviction, upon the theory that a crime was not charged in the indictment, and that a crime was not proved, when the facts stated in the ■indictment had been proved as alleged.

Lamb was a competent witness; he had not been convicted of a felony (2 R. S. [Edm. ed.], 724); the indictment under which be was convicted was for a conspiracy; it has none of the requisites of an indictment for forgery.

A series of objections and exceptions are taken to proof of the acts and declarations of Lamb and Adams, tending to show that they were engaged in carrying out this conspiracy. When two or more persons confederate together to accomplish an illegal purpose, the acts and declarations of either in regard to the common design are admissible against all. (1 G-r. Ev., § 111.) In this case the existence of such confederation was prima facie established by the testimony of Lamb, and thereafter any acts and declarations of either Lamb or Adams, in that respect, were competent against Adams. A part of The People’s case consisted in showing the intimate and apparently confidential relations existing between Lamb and Adams, as tending, in some slight degree, to sustain the assertions of Lamb. For that purpose many acts and conversations between them were offered in evidence and received. We see no objection to such evidence. The force and effect of such evidence is to be judged of by the jury. It is not deemed necessary to give a separate examination to the numerous exceptions taken.-

The letters claimed to have been written by'Adams to Lamb w.ere properly admissible. The evidence tended to show that Adams wrote them. Enough evidence in that respect was given to submit the fact to the jury for its decision. If the jury from the whole evidence believed the letters to have been written and sent to Lamb by Adams, then it was its duty to give to the letters such weight as seemed proper. By the charge of the court it was so submitted. The evident purpose of the letters, if genuine, was to prevent Lamb from appearing as a witness against Adams. In that case it would be some evidence of Adams’ guilt, just as an escape or attempt to escape from prison would be. The nature and effect of such evidence, and the duty of the jury in relation thereto were properly submitted.

The evidence showing Lamb was shot in the jail yard was of the same character, and competent for the same reason. If the jury found the letters in Adams’ handwriting, they' might, in their discretion, find the shooting in pursuance of the threats contained in such letters, and further evidence of an attempt to destroy evidence. As it was claimed that the shooting of Lamb was untrue, and that Lamb had concocted the affair in his own interest, and as evidence against Adams, other evidence was competent to confirm the truth of Lamb’s testimony upon that subject. (1 Whart. Cr. Law, §§ 725, 726, 727.)

I have thus noticed a small number of the exceptions taken upon the trial. The case contains over 3,000 folios. The exceptions are very numerous; I am not prepared to say that none of them are well founded, but I do believe that no evidence was received improperly which could have had any appreciable effect upon the deliberations or verdict of the jury. I think the same is true of the. evidence, if any, improperly rejected. If absolute accuracy must be required then it is quite possible a new trial should be had; but I suspect as many and as grave questions would be presented upon a second, a third, or a fourth trial, as are here urged. We believe we are not called upon to be astute in imagining injuries which the plaintiff in error may have been subject to, if we can see no adequate causes therefor. The charge to the jury by the learned judge was a model of fairness to the accused; every protection was thrown around -him ; every caution was bestowed upon the jury to guard them against an improper conviction. Under such circumstances a conviction should not be lightly interfered with, unless the court can see some indication that the accused has or may have suffered some wrong at the hands of the court or jury in the progress of the trial.

A final exception remains to be noticed. The plaintiff in error was examined as a witness in bis own behalf. He did not, in answer to the ease made by the prosecution, offer any evidence of his good character, as a circumstance favorable to his innocence. After the plaintiff in error rested, the prosecution, without objection, gave evidence tending to show his character was bad. After The People had again rested, the plaintiff in error also gave evidence, without objection, tending to show his character good. At the close of the judge’s charge he was requested by the counsel for the accused to charge the jury “ that unless the defendant offers in the first place affirmative evidence of character, the question of character, in case he is a witness, relates only to his standing and credibility as such.” The judge replied: I refuse so to charge, and charge that if the question of character is legitimately gone into for any purpose it is in the case for all purposesto which exception was taken both as to the refusal, and also the additional charge given. The charge, as made by the learned judge (fols. 2937 to 2941), corresponds with the ruling upon such request. Did the court err in such decision ?

Counsel have failed to present us with any authority upon the precise question, and none upon a careful investigation has been found. In fact such a question could not have arisen prior to 1869 when, for the first time, prisoners were allowed to become witnesses in their own behalf. Before 1869 the prosecution could not give evidence of the prisoner’s bad character unless the prisoner had first offered evidence of his good character. When evidence was so given, it was for the purpose of creating a presumption of guilt or innocence, to be inferred by the jury, from the character proved. It presents the question whether a person of the character proved would, or would not, be guilty of the crime charged against him ; and the character of the prisoner may be so good as seriously to affect the credibility or accuracy of the evidence offered against him. Such evidence was, therefore, competent to raise a presumption of innocence, and to attack and impeach the evidence of The People.

The statute allowing persons accused of crime to be witnesses in their own behalf (2 Laws of 1869, chap. 678, p. 1597), did not change or affect such rule. By that act the accused might become a witness. If he did not, no presumption arose against him. But if he became a witness, the truth of the evidence became a legitimate subject of inquiry. Its reliability might be attacked upon his cross-examination as to his character as shown by his past life and conduct, or by introduction of witnesses to contradict any material evidence given by him. Beside these modes, the value of his testimony may be impeached by evidence of witnesses affecting his credit for veracity by reason of his general reputation. In respect to the evidence given by the accused, he may be treated as any other witness. Such was the course taken on this trial. The accused did not seek to give evidence of his good character with the purpose of raising a presumption of his innocence of the crime charged. His failure to do so raised no presumption against him. (Ormsby v. People, 53 N. Y., 472.) But he was sworn as a witness. His character then became a proper subject of inquiry. Not by his own act and in favor of his innocence, but by the act of The People in favor of his guilt, by attempting to show that, as a witness, he was unworthy of credit, and his testimony unworthy of consideration by the jury. That was as far as The People had a right to go-. But the court by its charge allowed this evidence for all purposes. Hence the accused was justified, and the court had so charged, in asking the jury to acquit upon the presumption of innocence arising from his character as proved. The charge, so far as it allowed such a conclusion by the jury, may have been improper, but it was in the interest of the accused. It gave him a chance of acquittal not, perhaps, due on the law and the facts. The evidence was capable of being used for but two purposes: first by way of discrediting the testimony of the accused, and secondly as a foundation for the presumption of innocence of the crime charged. No doubt the first purpose was proper. If the second purpose was improper, the charge gave the accused the benefit of it. The jurors were permitted to say by their verdict: Prom the character of the accused as proved before us, we do not believe he was guilty of the crime charged against him. We hatfe more confidence in the good character shown as presumptive evidence of his innocence than we have in the questionable evidence of an accomplice poorly, if at all, corroborated as to any material fact.”

This is what the court by its charge permitted the jury to do. The jurors were not instructed that they could convict the accused because his character was bad. No such thought could have been entertained. The expression “for all purposes” meant only such purposes as, under the rules of criminal law, were permissible irrespective of the order of proof. The charge (fols." 2937 to 2941), confirms this construction, and shows that the accused was benefited and not hurt thereby. It gave the accused a chance for escape which the strict rules of law might not have permitted. Hence we think, in this respect, no error exists to the prejudice of the plaintiff in error.

Upon the whole case, the judgment and conviction should be affirmed.

Present — Learned, P. J., Boardman and Bocees, JJ.

Conviction and judgment affirmed.


source: Caselaw Access Project

author: BoaedmaN, J.:

license: Public Domain

text:
    BLANDINA MERRITT, Respondent, v. WILLIAM P. COLE, Jr., Administrator, etc., of JOHN R. COLE, Deceased, Appellant.

      Promissory note under seal — negotiability of — payments upon — distinction between negotiable and non-negotiable pa/per.

    A promissory note under seal is not negotiable.
    Where a promissory note under seal, payable to the order of the plaintiff, was taken by her father, upon a consideration moving from him, and after being delivered to the plaintiff, then a minor, was immediately returned to the father, in whose possession it remained until his death, a period of nearly thirty years, during a large portion of which time the plaintiff resided with and was supported by her father, held,, that payments made by the maker to the father while the latter was in possession of the note, and before the maturity thereof, were valid, even though no direct authority for the plaintiff to receive the same was shown.
    In such a case it is error to charge that the defendant must show knowledge and consent by the plaintiff to these payments, and that the possession of the note by Charles Dewitt under the conceded facts was not prima facie evidence of his authority to receive them.

      Semble, that the principle that payments made by the maker of a promissory note before the maturity thereof are at his peril, applies only to negotiable paper.

      Appeal from a judgment in favor of plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the court.
    Upon the trial plaintiff produced a sealed note, of which the following is a copy:
    “For'value received I promise to pay unto Blandina Dewitt, daughter of Charles Dewitt, Junior, of Marbletown, or bearer, the sum of sis hundred dollars immediately after the decease of the said Charles Dewitt, Jr.
    “ In witness whereof I have hereunto set my hand and seal the twentieth of May, one thousand eight hundred and twenty-eight. [l.s.] “JOHNS. COLE.
    “ Witness: JNO. A. Dewitt.”
    On the back of which were three receipts in the following form:
    “John R. Cole Or. on the within note two hundred and fifty dollars.
    “CHARLES D’WITT.
    “Dated 1845, March 5th.”
    “ $14. 1850, Sept. 10. ' Received on the within note 74 dollars.
    “ CHARLES D’WITT.”
    “July 26, 1853. Received from John R. Cole 200 dollars on the within note.
    “ CHARLES D’WITT.”
    The plaintiff, who is the payee of the note — married to Daniel Merritt at the age of nineteen — testified that on the day of the date of the note (she then being seventeen years old) her father handed it to her; she immediately returned it to him, and told him to keep it for her; and that she did not see the note again until after her father’s death in 1857, thirty years, when it was found among his papers and handed to her by her brother.
    The consideration of the note was the transfer of certain real estate from Charles Dewitt and wife to Catharine Cole, the wife of the maker of the note, and the other daughter of Charles Dewitt.
    During the thirty years which elapsed from the date of the note to the death of Charles Dewitt the plaintiff lived most of the time with him.

      The maker of the note died after the suit was brought, and the action was revived in the name of the defendant, his executor.
    At the close of the evidence the defendant asked the court to dirpet a verdict for the plaintiff for the balance due on the note at the death of Dewitt after deducting the payments, viz., seventy-six dollars, with interest from the date of death. The court declined, and defendant excepted.
    The court charged the jury that it. was for them to determine whether Dewitt had authority to receive the payments, and that the burden of proof was upon the defendant, not only to show the receipt of the money, but that Dewitt had authority to receive the payments.

      D. M. Dewitt, for the appellants.

      Bernard & Fiero, for the respondent.
   BoaedmaN, J.:

The note in suit was under seal, and was not,-therefore, negotiable. (Clark v. Farmers' Woolen Man. Co., 15 Wend., 256; 1 Pars. on Notes, 26; 2 id., 35; Dinsmore v. Duncan, 51 N. Y., 577.) It was not, therefore, commercial paper to which tona fide purchasers could acquire title as against the rights of the original parties to the contract. Plaintiff’s father conveyed the property to defendant’s testator, in consideration of which this note was given. The father was therefore owner of the note when given. This would be true, even though the title to the real estate sold was in his wife, of which I think there is no proof. For the conversion of the real estate of the wife into money, at that time — 1828 — would vest the money or personal property taken therefor in the husband, he having taken possession of it at that time. Until Charles Dewitt, Jr., plaintiff’s father, made a valid gift of the note to plaintiff, the title to the same would remain in him. I find no evidence that defendant’s testator had any knowledge of plaintiff’s claim or ownership of the note before 1853, when the last payment of $200 was paid. Prior to that two payments had been made by defendant’s testator to Charles Dewitt, Jr., and indorsed upon the note then in his possession, viz., $250 March 5, 1845, and seventy-four dollars September 10, 1850. If it be true that John R. Cole had no knowledge of any transfer or gift of tbe note to the plaintiff when those payments were made, they should be allowed to the defendant because the secret equities of the plaintiff ought not to prevail over the legal presumption which Cole was entitled to entertain — that the note still belonged to Charles Dewitt, to whom it was given and who still held possession of it.

I will not, however, rest on that conclusion, but consider the ease upon the question arising upon the trial — were the payments made by John R. Cole to Charles Dewitt on this note good and binding upon the plaintiff, even if she was its owner?

It must be remembered that Dewitt was plaintiff’s father, and. had possession of the note which was payable to plaintiff or bearer; that the consideration for the note moved from him and the contract, was made with him; that the note was given to plaintiff when she was a minor and immediately returned to her father, who, for nearly thirty years, and until his death, had retained its custody; that during a large part of that time plaintiff had lived with her father, and,' to a greater or less extent, had been supported and maintained by him. "Under such circumstances was a payment to Charles Dewitt good ?

If this note had been overdue when the payments were made, no doubt can exist such payments would be valid under the facts proved. The fact that the payments were made before maturity is not, in my judgment, important. The doctrine contained in the text books, that a payment made before the note is due is at the peril of the maker, has no application to this case. That principle relates only to commercial paper. The peril is that such paper may, after such payment, get into the hands of a bona fide holder, who can enforce it notwithstanding such-payment. In this case the status of the note is not changed after payments made. If they were good when made, they are still so ; no new purchaser or party has intervened.

The validity of the payments will depend upon circumstances surrounding the case. The possession of.the note by Charles Dewitt, Jr., if not evidence of title, is still presumptive evidence of authority to receive payment thereof. Certainly he could have sold the note to a bona fide purchaser and given a good title.

Some of the earlier English eases are collected in 1 Equity Cases Abridged, 145. It is there held that where a scrivener is intrusted with a bond he may receive both principal and interest. The same principle is applied to the case of an agent or attorney who loans money for and in the name of his principal, and retains possession of the bond and mortgage. Payments made to.the attorney will bind the principal though never received by the latter. (Hatfield v. Reynolds, 34 Barb., 612.) Mr. Justice EMott says: “ If such agent is intrusted with the continued possession of the bond or evidence of debt, authority for him to receive payment may be implied,” citing Paley on Agency, 274; Story on Agency, sections 98,104. To the same effect is Williams v. Walker (2 Sandf. Ch. [m. p.], 325), where many of the English cases are reviewed. It is there said : “ While Bancker had the possession of the. bond, although he had neither the mortgage nor the assignment, Mr. Walker, the defendant, was, in my judgment, entitled to presume that he was authorized to receive the principal as well as the interest on the bond and mortgage.” I see no essential distinction between the case of a bond and a sealed note. •

But the same principle, by implication, has been decided by the Court of Appeals in Doubleday v. Kress (50 N. Y., 410), as to an ordinary negotiable promissory note. The learned judge says: “ That the agent took the security or negotiated and made the loan for which the security was taken, and was thereafter intrusted by the owner with its possession, is sufficient to render the payment valid.” Again : “ The reason of the rule, that one who has made the loan as agent and taken the security is authorized to receive payment when he retains possession of the security, is founded upon human experience, that the payer knows that the agent has been trusted by the payee about the same business, and he is. thus given a credit with the payer.” So, also, it is held that one who has the possession of a negotiable promissory note with all the evidence of ownership by the act and consent of the owner, may deal with the maker in respect to it, and the owner will be bound by the acts and agreements of the possessor and apparent owner.” (Scoville v. Landon, 50 N. Y., 686.)

These authorities, I think, are sufficient to justify the conclusion that Charles Dewitt, Jr., was, upon the facts proved, authorized to receive tbe payments made by Cole upon the note in suit, and they should have been allowed thereon. '

If this conclusion be correct, the learned judge erred in holding that the defendant was bound to show these payments were made with the consent of the plaintiff. The burden of the charge was that the defendant must show knowledge and consent by the plaintiff to these payments, or authority in Charles Dewitt, from plaintiff, to receive them, and that the possession of the note by Charles Dewitt, under the conceded facts proved, was not prima faoie evidence of his authority.

I do not see that the marriage of the plaintiff about 1830 can influence the result of this action. The husband never had possession or control of this note.

It is not apparent how the defendant can urge any real or imaginary indebtedness of the plaintiff to her father’s estate in bar of this action. The defendant is bound to pay the amount due to this estate. Any claim in favor of Charles Dewitt’s estate is to be enforced in a far different mode.

The amount due and unpaid upon the note at the time of the trial, after deducting the three indorsements, was $170.62.

The judgment and order must, therefore, be reversed and a new trial granted, costs to abide the event, unless the plaintiff, within twenty days after notice of this decision, shall stipulate to reduce the damages included in the judgment to $170.62, in which case the judgment, as so modified, is affirmed, with costs of this appeal to the defendant.

Present — Leaeeed, P. J., BoaedmAN and Bocees, JJ.

Judgment reversed and new trial granted, costs to abide event, unless plaintiff, within twenty days after notice of this decision, shall stipulate to reduce the damages in the judgment to $170.62, in which cáse the judgment, as so modified, is affirmed. ■ Costs of this appeal to the defendant. ■


author: Boaedman, J.:

text:
    In the Matter of the Application of the BLACK RIVER AND MORRISTOWN RAILROAD COMPANY, Respondent, v. HENRY BARNARD, Appellant.

      Bmb’oad company — talcing of land by — compensation for — determined by considering detriment to land owner, not benefit to railroad company.

    Where land is taken for railroad purposes under the statute, the proper inquiry for the commissioners is, what is the fair marketable value of the whole property, and what will be Are fair marketable value of the property not taken; the difference will be the true amount of compensation to be awarded.
    A railroad company, after expending over $5,000 in making a rock cutting and constructing embankments, abandoned the route. These proceedings were instituted to acquire title to this land from the appellant, who had purchased it from the old company. The commissioners allowed him only $525. Held, that he was not entitled to receive the amount expended by the old company, but only the fair market value of the land taken; that it was not the advantage to the company, but the detriment to the land owner, for which compensation was to be made.
    Appeal from tbe appraisal and report of tbe commissioners appointed to ascertain and appraise tbe compensation to be made to tbe appellant, for lands to be taken by tbe Black River and Morristown Railroad Company.

      1. McRfaughton, for the appellant.

      D. Bearup, for tbe respondent.
   Boaedman, J.:

This proceeding was instituted to ascertain the amount to be paid defendant, Barnard, by reason of tbe taking of certain lands of bis for railroad purposes. Before Barnard owned tbe farm of which the lands condemned were part, a railroad company bad made a rock cutting and filling with culverts upon such farm, at an expense of $4,000 or $5,000. The enterprise was afterwards abandoned. Barnard purchased tbe farm upon which such work bad been done. ‘ Afterwards, tbe Black River and Morristown Railroad Company, which I shall call the plaintiff for convenience, was organized under the general railroad act, and located a part of its road-bed through the said rock cut, and over said culverts and embankment or filling. On the hearing before the commissioners to appraise the defendant’s damages, the defendant claimed the value of the work and labor formerly expended upon such rock cutting, culverts and embankment because it was of great value to plaintiff, and was so available as to save the plaintiff the cost and expense of doing the work. The commissioners, however, only allowed defendant $525, rejecting any claim for the value or benefit to the railroad company of the banks, cuts or culverts aforesaid. In this respect the defendant claims the commissioners erred.

This case involves, therefore, the rule for the assessment of damages in such cases. By section 16 of the act of 1850 (chap. 140, as amended , by chap. 282 of 1854, as amended by act of 1864, chap. 582, § 4), under which this proceeding was had, the commissioners are required to ascertain and determine the compensation which ought justly to be made by the company to the owners or persons interested in the real estate appraised by them; and in fixing the amount of such compensation, said commissioners shall not make any allowance or deduction on account of any real or supposed benefits which the parties interested may derive from the construction of the proposed railroad or the construction of the proposed improvement connected with such road, for which such real estate may be taken.”. The act of 1854 is substantially a copy of the act of 1850 (p. 211), so far as these proceedings are concerned. Under this, the' only statute upon the subject, the duties of the commissioners have been repeatedly considered. In Albany Northern R. R. v. Lansing (16 Barb., 68), it is held that the commissioners shall allow full compensation for the land taken, including damages to adjacent lands. HARRIS, J., says: “ Whether the land taken was to be used for a railroad or a garden was a question, so far as compensation was concerned, with which the commissioners had nothing to do.” The proper inquiry from the commissioners is: what is the fair marketable value of the whole property and then what will be the fair marketable value of the property not taken; the difference will be the true amount of compensation to be awarded. (Troy and Boston R. R. v. Lee, 13 Barb., 169; Matter of Furman St., 17 Wend., 649; Can. and N. F. R. R. v. Payne, 16 Barb., 273; Roch. and Syr. R. R. v. Budlong, 6 How Pr., 467.)

It is evident, therefore, that the law intends.to provide compensation to the landowner for the damage he may suffer by reason, of his lands being appropriated to railroad uses. That is all the owner should have. The condemnation of private property for public use is not intended to benefit the individual. Nor is the public, or in this case the railroad company, called upon to pay the owner for advantages which may accrue to it by reason of the location of its road. The expenses incurred by a defunct corporation years ago, can,, upon no just principle, be charged to this plaintiff. The changes then made attached to and became a part of the real estate in the hands of defendant’s grantor. Defendant bought the land in its modified shape as real estate. It is now taken by plaintiff as real estate and upon the same basis of value as would be the crossing of a stream, which, at the point selected, would cost much less for bridging than any other available point on the stream. It is not the advantage to the' railroad company but the detriment to the landowner.

The commissioners were, in my judgment, correct in their construction of the law and in the discharge of their duties.

Proceedings and order affirmed.

Present — Leabned, P. J., BoabdMAN and Booxes, JJ.

Proceedings and order affirmed, with costs.


author: Boardman, J.:

text:
    J. DIXON AVERY, Respondent, v. MARVIN S. LEACH, Appellant.

      Account stated.

    In this action, brought to recover the price of goods sold in the month of December, 1872, and February, 1878, it appeared that an account for the same was rendered in the summer of 1873, to the defendant, and by him retained without objection until the commencement of this action, in August, 1874. The defendant set up as a defense to the action that the goods were sold to his son, and that the latter was not defendant’s agent, or authorized to buy goods on his'credit. Held, that, by receiving the account, and retaining it without objec- . tion for so long a time, the defendant must be deemed to have acquiesced in its correctness, and could not now insist upon the defense attempted to be set up.

      Appeal from a judgment of tbe County Court of Madison county, affirming a judgment in favor of tbe plaintiff, recovered in a Justice’s Court.
    Tbe action was brought to recover for goods sold and delivered to tbe defendant.
    -ZV Foote, for the appellant.

      H. H. Keith, for the respondent.
   Boardman, J.:

Tbe account sued upon was not impeached for fraud or mistake. Tbe evidence of value and sale was undisputed. Tbe sole defense was that the sale was to and for tbe benefit of defendant’s son; that tbe son was not the defendant’s agent or authorized to buy on defendant’s credit, and that the defendant did not purchase or have the goods, etc., sued for.

It is not necessary to determine whether the evidence was sufficient to sustain a conclusion that Niles Leach, the son, was defendant’s agent, or the defendant in fact had the goods and used them for his own benefit.

The evidence shows it was a stated account between the parties to this action. The account was made in December, 1872, and February, 1873. During the summer of 1873 the account was made out and ■ presented to the defendant. No objection was made thereto prior to the bringing of this action in August, 1871, during all which time the defendant retained such account and by his silence acquiesced in its correctness. Not until this action was brought was any objection made, and even then the defendant offered to pay the debt if plaintiff would pay the costs. (Fol. 43.) Dnder such a state of facts it must be deemed an account stated. He who receives an account and retains it, without making any objection thereto within a reasonable time, will be deemed by his silence to have acquiesced in its correctness presumptively binding him to the payment thereof. (Lockwood v. Thorne, 11 N. Y., 170; Case v. Hotchkiss, 1 Abb. Ct. of App. Dec., 324; Towsley v. Denison, 45 Barb., 490; Dows v. Durfee, 10 id., 213.) The judgment, for this reason, was properly affirmed by the County Court. The pleadings in Justices’ Courts are always liberally treated in the furtherance of justice. Critical accuracy of pleadings is not required, and especially where no objection on account thereof is taken, and the evidence admitted without objection shows a cause of action. (Code, § 366; Hall v. McKechnie, 22 Barb., 244; Brown v. Harmon, 21 id., 508.)

The judgment of the County Court should be affirmed, with costs.

Present — Leaened, P. J., BoaedmaN and Bocees, JJ.

Judgment affirmed, with costs.


author: BoaRdmaN, J.:

text:
    JOHN J. MAY, DANIEL C. HOLDER, GEORGE T. STODDARD and SAMUEL MAY, Jr., Plaintiffs, v. THE NATIONAL BANK OF MALONE, Defendant.

      Statute of frauds — promise to pay money to third person — relocation of.

    The firm of Townsend. & Hyde, being indebted to the plaintiffs upon a promissory note, then overdue, sent to the defendant an indorsed promissory note, with a request to discount the same, and pay the note due to the plaintiffs from the proceeds thereof. Defendant’s cashier, on the tenth of March, wrote to the plaintiffs asking them to forward their note, and promising to pay it, and on the same day wrote to Townsend & Hyde that they had done so. At 1 p. m. on the thirteenth, the plaintiff mailed their note to the cashier of the defendant, and at 5.16 p. m. of the same day Townsend & Hyde telegraphed him not to pay the note. Held, that the contract of the defendant to pay the debt due to the plaintiffs was valid, and was not affected by the subsequent directions of Townsend & Hyde not to pay it.
    Conteoveest submitted without action, under section 372 of the Code.
    On the 20th day of October, 1875, the firm of Townsend & Hyde, being indebted to the above named plaintiffs, composing the firm of May & Co., in the sum of $2,743.78, made and delivered to said May & Co. their promissory note in writing for that amount.
    On the 23d day of February, 1876, said May & Co.’s note for $2,743.78 became due and payable at said National Bank of Malone, and was presented thereat by the National Hide and Leather Bank of Boston for payment on that day, which was refused ; whereupon the said note was protested and returned to said bank by George Hawkins, the cashier of the defendant, by mail, with notice of protest attached thereto.
    On the 6th of March, 1876, Townsend & Hyde wrote to said George Hawkins as follows:

      George Scmlcins, Esq.:

    “Dear Sib. — ¥e send by this mail our note to Mr. A. White, for him to indorse and hand to you, for $2,879.
    “ We want you to discount it for us to pay the May & Co. note, due February twenty-third, which amounts to $2,777.40, and interest from the twenty-third day of February, and hand Mr. White the notes we sent you, $8,000, for him to hold as collateral. ***** ****

      “ It will be a very great accommodation to us if you will discount this note and send draft to May & Co. for the note due them February 23, 1876.

      “ Yery truly yours.
    “ TOWNSEND & HYDE.”
    On the 8th day of March, 1876, said Abram S. White presented said note at said National Bank of Malone, and, after he had indorsed the same, delivered it to said George Hawkins, to be discounted by said bank to pay said May & Oo.’s note.
    That thereafter, on the 10th of March, 1876, a communication was forwarded by said George Hawkins to said May & Co., at Boston, as follows:
    “ Messrs. May & Oo.:

    “ Forward to me the past due note of Townsend & Hyde, and I will pay it.
    “ GEOBGE HAWKINS,

      “ Cashier.”
    That on the same day a communication was forwarded by said George Hawkins to said Townsend & Hyde, at Cortland, aforesaid, as follows:

      “ Messrs. Townsend, <& Hyde:

    “Dear Sirs. — Your favor of the-is received.
    * * *- * *****

      “ I have written to May & Co. to return your note to me for payment. We having done as requested in yours of the sixth.
    “Yours, etc.
    “ GEOKGE HAWKINS,
    “ Cashier.”
    In obedience to the directions contained in the said communications of said George Hawkins, on the 13th day of March, 1876, at 1 o’clock in the afternoon, that being the same day upon which said communication from said George Hawkins was received by said May & Co., they returned said protested note of $2.743.78 of said Townsend & Hyde to said National Bank of Malone, by depositing the same in the post-office at Boston, addressed to George Hawkins, cashier of said National Bank of Malone, postage paid, with the following letter of instructions:
    “BostoN, March 13, 1876.
    “ George Hawkins, Hsg., Cashier Wational Bank of Malone:

    “Dear Sir. — In obedience to your pc. of tenth March, we inclose note Townsend & Hyde, $2,743.78, and interest from 20th October, 1875. Protest fees $1.14, for which please send us check on New York or Boston, and oblige.
    “ Yours truly.
    “MAY & CO.”
    On the said 13th day of March, 1876, at seven and arhalf o’clock in the evening, and after the closing of said National Bank of Malone for that day, but before said protested note, sent by May & Co., as aforesaid, had reached said bank in return, a telegram, sent by said Townsend & Hyde, from Cortland, N. Y., at 5.16 o’clock of the afternoon of that day, was delivered to the said Hawkins, addressed to him, which read as follows :
    “CortlaNd, N. Y, Ma/rch 13, 1876.
    “ To George Hawkins, Cashier, Malone :

    “ Do not pay the May note. I will be at home to-morrow.
    (Signed.) “W. H. HYDE.”

      And on the 15th day of March, 1876,. said Townsend & Hyde personally instructed said Hawkins not to pay said May & Co.’s note.
    That thereafter, and on the 16th day of March, 1876, payment of said note was again refused at said National Bank of Malone, and the same was returned to said May & Co., and said note still remains unpaid, and is held and owned by said May & Co.
    That said note of $2,879, made by said Townsend & Hyde, and indorsed by said Abram S. White, and by him delivered to said National Bank of Malone to pay the aforesaid May & Co.’s note of $2,743.78, still remains in the possession of said bank, and that no entries in relation thereto have ever been made in the books thereof. And that on the 23d day of February, 1876, said Townsend & Hyde were and still are insolvent.

      S. A. Beaman, for the plaintiffs.

      Gilbert, Badger & Wead, for the defendant.
   BoaRdmaN, J.:

If the contract of defendant could be considered as governed by the statute of frauds, it would still be good and binding. It is in writing, and signed by the party to be charged. The signature by the cashier of the defendant is sufficient under this statute. (Dykers v. Townsend, 24 N. Y., 57.) There was an adequate consideration, and it was unnecessary to express it in the contract. (Laws of 1863, chap. 464, p. 802.)

But the contract was not within the statute of frauds. It was an original undertaking by the defendant, founded upon an adequate consideration moving from Townsend & Hyde to it, to pay the debt of Townsend & Hyde to the plaintiffs. The proceeds of the note discounted by defendant for Townsend & Hyde were held for plaintiff — were put in defendant’s hand to pay plaintiff with, and defendant had assumed and promised to pay such debt therewith. The discounting of the note is admitted by defendant. This takes the case out of the statute of frauds. The distinction between original and collateral promises is fully considered and explained in the following leading cases in this State: Leonard v. Vredenburg (8 Johns., 39), and Mallory v. Gillett (21 N. Y., 412). From the distinctions therein pointed out, it is apparent that this is an original undertaking, and can be enforced by the plaintiffs. Many of the cases cited and commented upon by the learned judges in those cases are applicable here. I shall cite but one or two. In Barker v. Bucklin (2 Denio, 45), it is held that an action may be maintained on a promise made by the defendant to a third person for the benefit of the plaintiff, upon a consideration moving from such third person to the defendant, and without any consideration moving from the plaintiff. So in Lawrence v. Fox (20 N. Y., 268), it is held that an action lies on a promise, made by the defendant, upon valid consideration, to a third person for the benefit of the plaintiff, although the plaintiff was not privy to the consideration. Such promise is to be deemed made to the plaintiff if adopted by him, though he was not a party nor cognizant of it when made. (See also, Barker v. Bradley, 42 N. Y., 316.)

In the present case Townsend & Hyde had put the defendant in funds to pay plaintiff’s debt, requesting it to pay the same. The defendant acknowledges to Townsend & Hyde that it had done as requested, and had sent for the note to be returned for payment. It had, also, in consideration of such provisions made, promised the plaintiffs to pay their debt upon the note being returned to defendant; but, upon its return, refused to do so at the instance of Townsend & Hyde. >

I think the means, derived by the bank from Townsend & Hyde’s note discounted by it, were put there for the payment of plaintiffs’ debt, and upon a mutual understanding between the bank and Townsend & Hyde, to which each agreed, that plaintiff’s debt should be paid therefrom-. By such act the liability of the defendant was fixed. The bank, however, is still in possession of the note discounted, and of the funds derived therefrom. It will not be the loser if compelled to pay. The assets of Townsend & Hyde will pay the debt.

For the reasons given, I think judgment should be ordered for the plaintiffs against the defendant for $2,743.78, with interest thereon from February 23, 1876, with costs, as provided by section 373 of the Code.

LeaRNBd, P. J., concurs. BooKES, J., dissents.

Judgment ordered for plaintiff for $2,743.78, and interest from February 23, 1876.


author: BoaedMAN, J\:

text:
    CHRISTOPHER I. MAINE, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Abortion — Dying declcarations — admissibility of under chap. 352 0/ 1875 — statements to contradict — Declarations against inten'est- — ■ Accomplice — credit due to.

    "Where the dying declarations of a person deceased are offered in evidence upon the trial of an action, it is the duty of the court to decide whether or not, upon the facts proved, such declarations are admissible, and its decision upon this question is a matter of law and subject to review upon appeal.
    To entitle such statements to be received in evidence, the person making'them must have lost all hope of recovery, and have been under the apprehension of near approaching death.
    It is no objection to such testimony that it was given in answer to leading questions, or obtained upon pressing and earnest solicitation.
    The deceased died from the effect of an operation, alleged to have been performed by the plaintiff in order to produce a miscarriage. In her dying declaration she stated “Dr. Maine (the plaintiff in error) operated on me.” Held, that this was not the expression of an opinion, but the statement of a fact peculiarly within her knowledge.
    The counsel for the defense offered to show by the physician who attended the deceased when she was delivered, which occurred two or three days prior to her death, that she had then stated that her husband had been trying to deliver her and .had failed, in order to show the effect this might have had. Held, that the evidence was inadmissible, because (1) it was no part of the res gestae, but a narrative of a past transaction; (2) it was hearsay; (3) her declarations not in extremis, were not admissible to contradict statements then made by her.
    The plaintiff in error was examined as a witness in his own behalf. Held, that it was proper to show on his cross-examination that he had committed other offenses of the kind for which he was then tried.
    Upon the trial it was offered to show what the deceased had said after she had left the private room in which the operation was performed. Held, that this was not a part of the res gestee, but merely a narrative of a past transaction, and was therefore inadmissible.
    Declarations made by her, tending to show that the plaintiff in error was innocent and she alone responsible, were offered in evidence under the rule that declarations against the interest of the party making them are admissible against him. Held, that this rule did not apply to such cases; that the interest with which the declarations are at variance must be of a pecuniary nature.

      87iaw v. People (3 Hun, 272) distinguished.
    The credit to be given to the testimony of an accomplice is-wholly a question for the jury, though judges, in their discretion, may advise the jury not to convict upon the uncorroborated testimony of an accomplice.

      Weit of error to the Court of Sessions of Tioga county, to review the conviction and sentence of the plaintiff in error for procuring an abortion.
    The plaintiff in error, Christopher I. Maine, was jointly indicted with one Rockwell Head, at the December Court of Sessions, in Tioga county, in 1875, for procuring an abortion upon one Florence Head, the wife of Rockwell Head, which, it is alleged, was done on the 16th day of March, 1875, at the town of Spencer, in the county of Tioga, from the effects of which it is claimed Florence Head died on the 22d of March, 1875.
    The evidence on the part of The People shows that on Tuesday, the 16th day of March, 1875, Rockwell Head and Florence Head, his wife, went from Wilseyville to Spencer, where Dr. Maine, the plaintiff in error, then resided, and that Dr. Maine there, in the presence of Rockwell Head, her husband, performed an operation upon Florence Plead which resulted in the premature birth of a child, with which she was pregnant, on Friday, the 19th day of March, 1875. That she was attended by Dr. Miller, of Candor, who was present at the time of the delivery of the child. On Monday, the 22d day of March, she died, and on that day her dying declaration was taken by one Barlow Sanford, which declarations were used as evidence by The People upon the trial.
    Dr. Miller, upon the trial, was asked what deceased stated to him on the morning of the day of her death, as to the cause of her then condition, and answered that “she said she would tell me, and tell the truth, and went on to state that Dr. Maine, she said, operated on her with an instrument.” This was objected to as being the expression of an opinion and not of a fact, and the objection overruled.
    Evidence was also offered in behalf of the defendant to show that when Dr. Miller was first called, Mrs. Head stated to him that her husband had been trying to deliver her and had failed, with a view of showing what effect this might have had upon her.

      William H. Warren, for the plaintiff in error.

      Lymmi Settle, for the defendants in error.
   BoaedMAN, J\:

The dying declarations of Mrs. Head were received under chapter 352 of the Laws of 1875. While conceding that such declarations are admissible under this law, the plaintiff in error insists the preliminary proof did not show that the deceased, at the time, was laboring under a settled conviction that she had got to die, or had given up all hopes of recovery. The alleged injury was done on the 16th of March, 1875, and the death ensued ou the twenty-second of March. Dr. Miller first saw her on the nineteenth, and gave her encouragement that she might live. This was on Friday. On Saturday the doctor had some hopes that she would get well. She wanted to get well, but was troubled about it, and was afraid she would not get well. On Saturday, the twenty-first, she was sinking and growing worse. The doctor told her, her prospects were not very good but he hoped still she might get well. She thought she could not get well, but wanted the doctor to save her if he could. On Monday, the twenty-second, the doctor gave her no encouragement. The deceased then said she thought she could not get well. She added, doctor, I hope you can save me, but I don’t believe you can.” The deceased had been gradually sinking away, and growing worse from the nineteenth. On Sunday, the twenty-first, the doctor had no hope or expectation of her recovery. On Monday, the twenty-second, she was dying without the possibility of recovery. The doctor knew this and gave her ho assurance of hope. The friends about her were informed of her condition. She herself had the utmost assurance of her approaching death, and did not believe she could be saved. Upon this evidence the court admitted the statement made by Mrs. Head on the twenty-second, as dying declarations. It was the duty of the court to determine whether, upon the facts proved,'the statement of the deceased was competent evidence. Its decision npon that question is matter of law, and may be reviewed. (1 Whart. Cr. Law, § 681; 1 Greenl. Ev., § 160; Donnelly v. State, 2 Dutch. [N. J.], 463, 601.)

I think the decision was correct, and that the evidence abundantly justified the admission of the testimony. It cannot be necessary to review the many cases cited by counsel or contained in the textbooks on this subject. All substantially require one condition. The person making the statement must have lost all hope of recovery, must have believed that she was about to die. It must have been made under the apprehension of near approaching death. This condition existed in this case. Mrs. Head was m extremis on that Monday and died that day. The doctor knew it and told the friends. The fact of her physical condition is beyond controversy. It was such as is required for the admission of her declarations, if she either knew the truth or realized her actual situation. She knew she was Very sick on the nineteenth, and that she had been sinking and growing worse day by day. When the doctor, day by day, spoke words of encouragement, she did not believe him, but while hoping to get well, she did not expect it.' On this Monday the doctor gave her no hope and she had none. She expected to die. She did not believe the doctor could save her. Her expectations were justified by the event. I do not think the court could, upon the facts, have believed that she hoped to survive.

The evidence was therefore competent, and being admitted was “entitled to the consideration of the jury, as it should appear to be worthy of confidence.

It was further objected to this evidence that her husband improperly interfered upon the examination, by answering questions put to the wife. It is no cause for objection to the admissibility of such testimony, that it was given in answer to leading questions or obtained upon pressing and earnest solicitation. (1 Greenl. Ev., § 159.) The evidence may be given by signs (Commonwealth v. Casey, 11 Cush., 417), or through an interpreter. The manner in which the evidence was given and the circumstances surrounding the person giving it, are proper to be considered by the jury in estimating its value. But in this case the written statement was read over to the deceased, and by her signed and sworn to. This would go far to obviate any alleged misconduct of the husband during the preliminary part of the examination.

It is objected that that portion of the statement of the deceased, viz., “Hr. Maine operated on me,” was the expression of an opinion, and therefore not admissiblé under the well known rule as laid down in 1 Greenleafs Evidence, section 159; 1 Wharton’s Criminal Law, section 678. But such claim is not tenable. In Wroe v. State (20 Ohio St., 461, 469), the declaration of deceased Stated, “ it, the wound, was done without any provocation on his part,” and it was held not an opinion; that whether there was provocation or not was a fact not stated in the most elemental form of which it was susceptible, but sufficiently so to be admissible in evidence. (Rex v. Scaife, 1 Mood. & Rob., 551.) The question whether a person was intoxicated is proper. (People v. Eastwood, 14 N. Y., 562.) Opinions may be given of identity of a person or handwriting. Any dying declaration of deceased which she, if living, would be permitted to testify to, is competent evidence. The fact whether an operation had been performed upon her by Dr. Maine, was peculiarly within her knowledge. It was a fact, not an opinion. On any subject, to which a witness may testify, if he has any recollection at all of the fact, he may express it as it lies in his memory.” (1 Greenl. Ev., § 440.)

The evidence asked for of Dr. Miller was properly excluded. Mrs. Head’s declarations relating to a past transaction were not competent, and the fact attempted to be proved was immaterial. Besides, it was not absolutely excluded, and was subsequently proved by the doctor, so far as he knew any thing on the subject.

The. proof offered of declarations of Mrs. Head to Dr. Miller, was inadmissible for several reasons. 1. It was no part of res gestee, but a narrative of a past transaction. 2. It was hearsay evidence. 8. Her declarations not in extremis are not admissible by way of contradiction, as will be more fully shown hereafter.

The evidence of Mrs. Head’s condition on the evening of the sixteenth of March after the operation, and her declarations in connection therewith, were proper. (Caldwell v. Murphy, 11 N. Y., 416; Werely v. Persons, 28 id., 344; Brown v. N. Y. Cent. R. R. Co., 32 id., 603; Matteson v. N. Y. Central R. R. Co., 35 id., 493.) They were declarations accompanying acts, characterizing the act and her bodily suffering, and the opinion given by her husband was upon facts stated. The opinion is of the same class with those stating that a person is drunk, founded upon his appearance and conduct. (People v. Eastwood, 14 N. Y., 562.)

Hpon the cross-examination of the plaintiff in error, many questions were asked him with the object of showing that he had committed other offenses of the kind here charged against him. Exception was taken to the ruling of the court allowing such questions to be asked.

Tbe plaintiff in error had offered himself as a witness in his own behalf. On cross-examination the line of inquiry pursued by the prosecution was proper to affect his credit as a witness. Such cross-examination is much in the discretion of the court. The plaintiff in error was repeatedly advised by the court that he need not answer questions tending to establish a crime on his part, or that would disgrace him. He availed himself of that privilege, and the result was that no other offenses against him were proved upon this trial. I think the rulings of the court in that respect were correct, but if otherwise, nothing was proved against the plaintiff in error under the questions objected to. (Brandon v. The People, 42 N. Y., 265; Great Western Turnpike v. Loomis, 32 id., 127; La Beau v. The People, 34 id., 223.)

At various times during the progress of the trial the plaintiff in error offered to prove the declarations of the deceased, not in emt/remis, by way of contradiction of her dying declarations. Such evidence was rejected and exceptions taken. These exceptions apply more particularly to the witnesses Harriet Brown, Nancy Howell, Chastina Sandford and Dr. Miller. The theory, upon which such evidence was claimed to be proper was this: The deceased gave her dying declarations in the absence of the plaintiff in error, and he therefore had no opportunity to cross-examine her, and so lay the foundation for such contradictions. As a consequence it is claimed that he should have the same right to establish these contradictory facts as though she had been examined in relation thereto. Such, however, is not the law.. The general rule requires an examination of every witness as to any contradictory or inconsistent statements made by him, before the same may be proved against him by way of impeachment of his evidence. (Stacy v. Graham, 14 N. Y., 492.) In the opinion of the learned judge in that case, many instances are suggested where the rule seems to be harsh. But the principle upon which the rule is founded is, that both party and witness have a right to the explanation which the latter may give of the statements imputed to him. The case under consideration is not an exception to this general rule as is expressly decided in Wroe v. State (20 Ohio St., 460); Runyon v. Price (15 id., 1), sustains the same view, and reviews the history of the law upon this subject. (See, also, 1 Greenl. Ev., § 126.)

Tbe declarations to wbicli I have thus referred are narratives of past transactions, and come therefore within the rule applicable to hearsay evidence. An exception is attempted to be made in the ease of Mrs. Harriet Brown, a daughter of the plaintiff in error, by whom it is attempted to be proved what the deceased said, after she had left the private rooms of the plaintiff in error, where the operation was performed, as to what the plaintiff in error had done in such room. It is quite plainly not a part of res gestee. It is not a declaration accompanying an act. It is merely a narrative of a past transaction, and as such is inadmissible in evidence. (People v. Davis, 56 N. Y., 95.)

The declarations of the deceased tending to show that the plaintiff in error was innocent of the crime charged against him, and that she alone was responsible for her situation, are also urged as competent under the rule that declarations against the interest of the party making them are admisible in evidence to charge the party.

This principle has no application to the facts offered to be proved. The interest with which the declarations are at variance must be of a pecuniary nature. (1 Gr. Ev., § 147, note 1; Davis v. Loyd, 1 C. & K., 276.)

The case of Shaw v. The People (3 Hun, 272) may readily be distinguished from the case at bar. There the declarations excluded were evidence of a present intent; they illustrated the state of mind of the deceased and her then purpose. A jury might infer, on proof of the fact accomplished, that it was done in pursuance of such expressed purpose; but even then it is and must be a most dangerous species of evidence, with which criminal justice may be thwarted. There is no possibility of explanation or intelligent cross-examination. The person who utters the words is dead ; any one can manufacture the evidence without fear of detection; the people prosecute, and all that the dead person may have said without the sanction of an oath, without fear of punishment or of death, and all that wickedness or crime may attribute to him must stand in the way of conviction. But in the present case the declarations were not expressive of any present purpose or intent on the part of deceased. They were just such narratives of a past criminal transaction, to which she was a party, as you would expect her to misrepresent and falsify, not only for her own protection but also for the protection of- her accomplice. In the nature of the case and from the circumstances conceded to exist, you could not hope for the truth from her until the perils of death surrounded her.

I find, also, that in a number of instances the plaintiff in error was allowed to prove, and did prove facts, the evidence of which was, at an earlier stage of the case, rejected under his exceptions. Tet those exceptions are still urged upon this court as errors.

Mrs. Howell had testified to declarations of the deceased made to her, inconsistent with the guilt of the plaintiff in error. She was asked if she had not charged the plaintiff in error with being guilty of the offense charged. She denied it (folio 764). The evidence proved at folio 844 was proper by way of contradiction, and as tending to show she was not entitled to credit in what she had sworn to about the admissions of the deceased.

The court properly restricted the cross-examination of Barlow Sandford to the matters testified to on his direct-examination ; both parties had rested before Sandford had been recalled. The cross-examination was an attempt to reopen the defense; for that reason the court rejected the evidence. It was a matter of discretion, which will not be reviewed in this court.

There was no error in the charge or in the refusal to charge, folios 990, 998. The charge in the respect objected to was remarkably favorable to the plaintiff in error. The refusal to charge that an accomplice is not entitled to credit as a witness, except so far as he has been corroborated by credible witnesses,” was correct. Judges, in their discretion, will advise a jury not to convict upon the uncorroborated testimony of an accomplice. How far he is entitled to credit as a witness is wholly a question for the jury. (1 Gt. Ev., § 380; The People v. Costello, 1 Den., 83; and cases cited in 6 Abb. Dig., 230, § 635.) The proposition the court was asked to charge was too broad, and was properly refused.

The result of a somewhat laborious examination of this bill of exceptions is a concurrence in the rulings, decisions and charge brought up for review. I do not think any error was committed to the prejudice of the plaintiff in error, nor do I think he has failed in any respect of a j ust and fair trial. It would be strange indeed, if in a thousand folios of testimony and nearly one hundred exceptions there were not some subjects for grave and attentive consideration.

Judgment and conviction affirmed.

Present — LEARNED, P. J., BoaRDMAn and Bocees, JJ.

Judgment and conviction affirmed.


author: BoabdmaN, J.:

text:
    FREEMAN M. VILAS, Respondent, v. THE NEW YORK CENTRAL INSURANCE COMPANY, Appellant.

      Policy of insurance — application for to one company — effect of, in construing subsequent policy of another company, issued through the seme agent.

    In April, 1870, a policy of insurance was issued to tlie plaintiff by the Westches-ter Fire Insurance Company, upon an application drawn up by the agent of that company and signed by the plaintiff.. Upon the expiration of that policy a new one was issued by the defendant upon the same premises and through the same agent, who retained the application until after the destruction of the premises by fire, when it was sent to the defendant. Such application was never on file in the office of the defendant, nor was it shown that its contents ever came to the knowledge of the home office, the only reference thereto in the policy being the addition, after the statement of the amount and property insured, of the words “as per application No. 1,234.”
    The policy provided that the “ survey, description and representations shall be taken and deemed to be a part of this policy, and a warranty on the part of the insured.” Held, that the application in question could not be regarded as the survey or application referred to in the policy of the defendant, and that the statements contained therein did not constitute a part of the contract or a warranty on the part of the insured.
    The application stated that the plaintiff held the premises under a contract. Held, that this was sufficient notice to the defendant that he did not have an absolute unincumbered title to the premises, and that the fact that he subsequently took a deed thereof did not prejudice any rights of the defendant.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court.
    The action was brought to recover the amount of a policy of insurance issued by the defendant. The policy contained, among others, the following provisions:
    “ CONDITIONS OE INSURANCE.

      “ I. Applicants for insurance by this company must state * * * the position, construction and materials of all contiguous buildings, and the purposes for which they are occupied; the exact nature of the applicant’s title if less than fee simple or absolute ownership ; the nature and amount of all incumbrances upon the property; the cash value of the building or other property proposed to be insured, and such survey, description and representations shall be taken and deemed to be a part of this policy and a warranty on the part of the insured. * * * And a false description or representation by the assured or any concealment or omission to make known any fact or feature material to the risk, or an over-valuation of the property, shall render this policy absolutely void.”
    The defendant moved for a nonsuit on the ground that certain statements contained in what is insisted was a' survey and description of the premises, furnished by the plaintiff at the time of the issuing of the policy, were false. The motion was denied, and subsequently the court directed a verdict in favor of the plaintiff.

      W. E. Hughitt, for the appellant.

      Cr. H. Beckwith, for the respondent.
   BoabdmaN, J.:

Questions of law only are involved in this appeal from the judgment against the defendant. (Winchell v. Hicks, 18 N. Y., 558.) Every controverted or doubtful question of fact is held to have been admitted by the defendant, by his neglect to ask for the submission of the same to the jury. (Id.)

The alleged error consists in the denial of the defendant’s motion for a nonsuit upon the grounds stated.

The motion was founded chiefly upon the force and construction to be given to the application admitted in evidence. It is true we cannot question the propriety of the admission of that evidence upon the plaintiff’s exception. It must be treated as evidence properly in the ease. While that is true, it does not necessarily follow that the defense is justified in giving it the force and effect claimed upon the motion.

The application was made by plaintiff in April, 1870, for an insurance for one year in the Westchester Insurance Company. ■ By its terms it does not warrant the statements therein contained to be true, nor does the diagram on the back of the application .purport to have been made by the plaintiff, nor is there any evidence that he ever saw it. In fact, the directions of the W estch ester Insurance Company indorsed upon, and accompanying the paper, require agents to draw the diagram. He must have done it, since the plaintiff' swears it was not done by him. It .is also true that the agent of said insurance company drew up, or filled in the application, as it was finally signed by plaintiff, and the agent was more fully and better informed as to the property than plaintiff. The same agent who filled in the application, and made the diagram, acted for defendant when this policy in suit was issued. This application remained in the hands of the agents of the two companies until after the fire, when it was sent to the defendant. The only reference to this application in the policy is after the statement of amount and the property insured, stating its location, and adding “ As per application No. 1,234.” Plaintiff’s application was never on file in the office of the defendant, nor did its contents ever come to the knowledge of its home office, so far as appears.

Under these facts the application, if properly in evidence at all, which must be conceded, was competent only for the purpose of identifying the property insured. It cannot be regarded as the survey or application mentioned in the printed conditions annexed to the policy; it did not make the other statements therein a part of the contract. The application had never been in the office of the defendant. There is no evidence that the parties contracted with reference to or in consideration of this application. Indeed, the plaintiff swears that no other representations were made at the time of obtaining this policy, than those contained in his letter to defendant’s agents, of April 20, 1871, and, as we have seen, defendant had no knowledge of the application. The application, therefore, though evidence of some things such as the condition and description of the property insured at the time it bears date, will not be held a warranty under and by virtue of a policy of insurance issued Jong after, by a different company from that to which it was addressed. (Clinton v. Hope Ins. Co., 45 N. Y., 462-464.)

If there was no warranty, it remains to be seen whether there was any fraud or intentional misrepresentation on the part of the plaintiff, to the prejudice of the defendant. It is not clear that sucb a claim is made; but, if so, it was a fact to be found by the jury. As the defendant made no request for such submission, the fact will be presumed against it; but, in any event, the authorities upon the facts of this case are fatal to the defendant. (Insurance Co. v. Wilkinson, 13 Wall., 222; Maher v. Hibernian Ins. Co., 6 Hun, 353; In re Universal Non-Tariff Fire Ins. Co., 12 Eng. Rep., 846; L. R., 19 Eq. Cas., 485; Rowley v. Emp. Ins. Co., 36 N. Y., 550; Bodine v. Exch. Ins. Co., 51 id., 117; Plumb v. Cattaraugus County Mut. Ins. Co., 18 id., 392.)

If the application was evidence for any purpose, it informed the defendant of the nature of plaintiff’s title at its date; that is, that it was held by contract. This was sufficient notice to defendant that plaintiff did not have an absolute, unincumbered legal title to the premises. The change of tenure, by taking a deed, did not prejudice any right of the defendant. If the company desired to know the extent of the incumbrance, it was its duty to inquire. (McCulloch v. Norwood, 58 N. Y., 562, 572.)

It is claimed that the premises were vacant more than thirty days in the spring of 1872, and hence under the conditions of the policy the defendant was not liable. The evidence does not clearly, if at all, sustain such claim. According to Taylor’s evidence Moore went into possession in the spring or summer of 1871, and continued in possession until the fire, in November, 1872. Dake says “ Young went out before Moore came in. Can’t say whether the spring before the fire or the spring before that. Don’t think Moore was there a year.” Flanders gives no indication of the time when Moore went in. I find no other evidence on this subject. From such evidence it doeá not satisfactorily appear that the premises were vacant in 1872. At any rate it is a question of fact, and not of law, and for the reasons first herein stated cannot be argued here. Beside no such defense was interposed by the answer, and for aught that appears, the motion for a nonsuit on that ground may have very properly been denied, because not pleaded.

The judgment should be affirmed with costs.

Present — LeabNed, P. J., BoaedmaN and Bocees, JJ.

Judgment affirmed, with costs.


author: Per Quriam:

text:
    JAMES WAVLE, Respondent, v. GILBERT WAVLE, Appellant.

      Vw'dict — damages—insufficiency of — when new trial granted.

    Wliere, in an action of slander in which the evidence would have justified a verdict for the defendant sustaining the justification set up in the answer, the jury found a verdict for the plaintiff for six cents, held, that as the damages to which the plaintiff was entitled were not fixed or certain, and were incapable of being rendered so, that the amount thereof was wholly in the discretion of the jury, and that an order granting a new trial, on the ground that the damages awarded were insufficient, should be reversed.
    Appeal from an order granting a motion for a new trial, made on tbe minutes of the justice before whom the action was tried, on the ground that the damages awarded by the jury were insufficient.

      Wm. S. Warren, for the appellant.

      George B. Jones, for the respondent.
   Per Quriam:

By section 264 of the Code, a new trial upon the judge’s minutes may be granted upon exceptions or for insufficient evidence or for excessive damages. It has been held that the power to grant a new trial where the damages are insufficient may be exercised in like manner: if not under this provision of the Code, then independently of the Code. (Algeo v. Duncan, 39 N. Y., 313; McDonald v. Walter, 40 id., 551.)

But in both of these cases the damages sought to be recovered, were capable of being rendered certain by computation. The facts being established, a mathematical computation determined the amount of the damages. In the first case the cause of action was conceded and the amount of damages. But the proof of infancy of the defendant was clear and undoubted. That was the only issue. In spite of such proof, the jury rendered a verdict for the plaintiff. It was set aside as against evidence, and on the further ground that there was insufficient evidence to support it. In the second case the action was for a breach of contract, in refusing to receive a quantity of bacon. The liability of the defendants was contested, but if liable they were liable for the difference between the contract-price and the market value of the bacon when tendered. As soon as such market value was fixed by the jury, an arithmetical calculation determined the amount of damages absolutely. The jury rendered a verdict for the plaintiff of fifty dollars. But if plaintiffs were entitled to recover at all, their damages in any and every view of testimony were much greater than fifty dollars. So in any event the verdict was inconsistent with the evidence and not sustained by it. For that reason the order setting aside the verdict was sustained.

In the present case the testimony was conflicting. The action was for slander and the defense justification. The evidence would have justified a verdict for the defendant, sustaining the justification. The jury however rendered a verdict of six cents for the plaintiff. The appeal from an order setting aside this verdict made upon the judge’s minutes is before us. The amount of damages to which plaintiff was entitled was not fixed, definite or certain, nor was it capable of being made so by any process of computation. The damages were wholly in the discretion of the jury, and not controlled as to amount by any evidence given upon the trial. The appearance, character and conduct of the parties and witnesses, the probabilities surrounding the transaction, the nature of the slander and the injury done, all constituted elements to be considered by the jury. This has been done with the result seen. Whether such verdict is the result of a compromise of differences among jurors, or whether it expresses the judgment of each juror, we cannot tell. Such results in such cases are within the experience of every judge. Ordinarily such verdicts are deemed expressions of the jury that each party is more or less in fault and that neither shall profit thereby. In cases like slander, libel and malicious prosecution it is well to have an end of litigation as early as possible. Such actions generally involve more of passion than of principle or actual damage. So when such a case has been once fairly tried and considered by a jury, its decision ought generally to be conclusive and final. Further litigation will but aggravate resentments, increase the costs and expenses, and still more tarnish the reputation of all concerned.

In tbe absence of any evidence of dishonesty or misconduct on the part of the jury, we think its verdict ought to stand.

The order granting a new trial is therefore reversed, with costs.

Present — Leabned, P. J., BoaRdmaN and Bocees, JJ.

Order reversed, with costs.


author: Per Curiam,:

text:
    GEORGE HARRISON, Respondent, v. JOHN H. NEHER, Appellant.

      Appeal from or dm'— dismissed if pwrty takes advantage of leeme to renexo motion— ' Election,

    A party by appealing from an order denying a motion with leave to renew the same, is precluded from tailing advantage of the leave to renew granted thereby; and such appeal will be dismissed if, while the same is pending, the motion be renewed in the court below.
    Appeal from an order made at the Special Term, denying a motion made by the defendant.

      John B. Gale, for the appellant.

      James Lcmsing, for the respondent.
   Per Curiam,:

The defendant moved before the Special Term to set aside an order of arrest against him. On the hearing of the motion plaintiff introduced affidavits to sustain the order and they were read on the motion. Eor some reason the motion was never decided. The judge sent the papers on both sides to the attorneys for defendant, and afterwards wrote plaintiff’s attorneys that they could get their affidavits, etc., of defendant’s attorneys. Plaintiff’s attorneys went after such papers. Defendant’s attorneys wanted to examine the affidavits further, but were told by plaintiff’s attorneys they wanted the papers then, but would let the defendant’s attorneys take them for examination whenever they wanted them. On that promise they were taken, but afterward plaintiff’s attorneys refused to perform their promise or to let defendant’s attorneys see the affidavits so given up. A motion was then made to compel the filing of such affidavits in the clerk’s office. This motion was denied without prejudice to any further proceedings which the defendant may deem proper to pursue.” From such order the appeal in this action is taken. After the appeal was taken defendant again moved at Special Term for an order: 1st. That plaintiff permit defendant to examine and take copies of the said affidavits. 2d. That all proceedings be stayed until that was done. 3d. For such further or other order as may be just in the premises. This motion was made upon fhe same papers as the former motion, and upon the pleadings, the papers on appeal and two additional affidavits of no importance on this motion. That motion was also denied.

Plaintiff now moved to dismiss the appeal from the first order, upon the ground that the defendant has elected to renew the motion denied by said order appealed from.

We think this point is well taken. The defendant could have claimed the same relief upon the second' motion which he sought upon the first, viz., the filing of the affidavits. The prayer for such further or other order as may be just permitted defendant to insist that the affidavits were records of the court, having once been read upon a motion in court, and so should be filed in the clerk’s office where he could examine and -take copies thereof. So in our judgment the second motion was, in effect, a renewal of the first motion. The same object was substantially sought. The same affidavits were used. No additional facts touching the kind of relief claimed were before the court.

An appeal from the last order would have brought up the whole merits. If defendant was entitled to have such papers filed, the denial of the last order would have been erroneous and could have been corrected on appeal therefrom by compelling the filing thereof.

The defendant was, therefore, jn-ecluded from taking advantage of the leave to renew the motion given by the first order and at the same time prosecuting his appeal from such order. (Noble v. Prescott, 4 E. D. Smith, 139; Peel v. Elliott, 16 How., 483.)

The appeal must therefore be dismissed, but as this whole trouble and misunderstanding has arisen out of the acknowledged breach of 'faith of the plaintiff’s attorneys no costs will be allowed.

Present — LeaeNEd, P. J., BoaedmaN and Bocees, JJ.

Appeal dismissed, without costs.


author: Booxes, J.;

text:
    ISAAC N. RUMSEY, Appellant, v. FRANCIS P. COOK, and others, Administrators, Respondents.

      Payments on judgment — proof of, offered to a/ooid statute of limitations — Decla/ra-tions of pa/rty attempting to prove them, to the effect that there was no consideration for the judgment — that it was confessed to cover up judgment debtor’s property— admissible to show improbability of payments having been made thereon — Illegal agreement — enforcement of.

    Appeal from a judgment entered on the verdict of a jury, in favor of the defendants, and from an order denying a motion for a new trial.
    The action was brought on a judgment entered in favor of the plaintiff against the defendants’ intestate, on bond and warrant of attorney, on the 24th day of May, 1844, on which the plaintiff claimed to recover $3,018.48, with interest from that date, less the sum of forty-five dollars alleged to have been paid thereon in 1854, and the further sum of thirty-five dollars alleged to have been paid thereon in 1863.
    The defendants denied the alleged payments, and interposed as a defense: (1), the statute of limitations,, and (2), that the judgment was entered, or confessed, without consideration, and to defeat the collection of a judgment which the intestate feared might then soon be recovered in an action of slander then pending against him.
    On the trial, the jury found a verdict in favor of the defendants. A motion was made for a new trial, which was denied, judgment being entered on the verdict. The plaintiff appealed therefrom, and from the order denying the motion for a new trial, to the G-eneral Term.

      The court at General Term say: “ The only suggestion of error is this : that the defendants were allowed to prove, against objection, a declaration of the plaintiff to the effect that the judgment was fictitious, and was confessed to save Cook’s property. In this. I think, there was no error. The statement occurred in a conversation in the presence of the witness, wherein the plaintiff said that ‘ Cook didn’t owe him a- dollar.’ The question was then put as follows: Any thing more said ? ’ The answer was: ‘ ITe said there was a fictitious claim (evidently referring to the judgment) that was given him, * * * but Abram never had any value for it; it was to save Abram’s property.’ To this evidence objection was interposed. Now, this was admissible as part of a conversation, a portion of which had already been received and accepted by the plaintiff, without objection. It also had a bearing on the subject of dispute, whether Cook had ever made, or the plaintiff had accepted the payments on the judgment, as he claimed. , If the judgment was fictitious, a mere sham, entered with no intent of its ever being enforced, except for Cook’s protection against his creditors, it would be improbable that payments had been offered and accepted thereon, as was alleged by the plaintiff. The case, on the evidence, was one where probabilities were proper matters for consideration, hence the evidence was admissible. This conclusion requires the affirmance of the order and judgment appealed from. Perhaps there may be a question whether this evidence was not admissible with a view of showing the judgment fraudulent and void. A transaction entered into to hinder, delay and defraud creditors, will be held valid between the parties, and will conclude them in so far as it has been executed; but can either party invoke the aid of the court to carry it into effect ? It is a general rule that courts will not assist either party in an illegal transaction. So it has been said that when the parties to an illegal or fraudulent contract are in pari delicto, neither a court of equity nor a court of law will aid either of them in enforcing the execution of that which may be executory, or in revoking or rescinding that which may be executed. (See Nellis v. Ciarle, 4 Hill, 424, and cases cited under Nellis v. Ciarle, in Wait’s Table of Oases.) But it is not proposed to discuss this point here, inasmuch as the case was not considered with reference to this defense at the Circuit. The evidence objected to was, as we think, competent, on the question whether or not there had been a payment such as would relieve the plaintiff’s ease from the effect of the statute of limitations.
    The judgment and order appealed from should be affirmed, with costs.”

      John A. Williams, for the appellant. Ferris dé Dowe, for the respondents.
   Opinion by

Booxes, J.;

LeaeNed, P. J., and BoaedhaN, J.,. concurred.

Judgment and order affirmed with costs.


author: Boakbman, J.

text:
    SYLVANUS SHUMWAY, as Special Administrator of DANIEL CORNELL, Deceased, Respondent, v. WILLIAM COOLEY, BIRDSALL YALE and MERLIN J. FORD.

      Judgment —payment of by one debtor — right of to Iceep aJ/ke as against others — as against strangers.

    Appeal from an order made at the Special Term, denying a motion by Jesse Van Dusen to compel the plaintiff to satisfy of record a judgment obtained against the defendants, Cooley, Yale and Eord.
    The judgment was recovered September 23, 1870, against the defendants, who had purchased, as partners, certain timber of the plaintiff’s intestate. On February 24, 1870, Van Dusen took a mortgage of Ford for $1,500 upon land subject to the lien of the judgment. On the 14th of June, 1876, an execution was issued in Broome county against the defendant Cooley.
    Cooley, to prevent the sale of his property, paid the fees of the sheriff upon the execution, then sought the plaintiffs and tendered the amount due upon the execution, demanding an assignment of the judgment to his friend Bixby, who appears to have advanced the money for Cooley, that he might enforce the judgment against his co-defendant Eord. The plaintiffs refused to give an assignment of the judgment, because forbidden to do so by Van Dusen, but offered to satisfy it, upon being paid the amount due. Cooley finally paid the judgment, taking a receipt therefor. After this payment, Cooley or Bixby, or both of them, issued an execution upon the judgment, and under that execution this land was advertised to be sold when this motion was made. It has since been sold and the land bid in for Bixby or Cooley, or both of them.
    The court below denied the motion, which was opposed by Cooley only, and granted to Cooley affirmative relief, adjudging that Bixby was the owner of the judgment and entitled to be sub-rogated to the rights of the plaintiffs; that the judgment remains a lien upon the lands of the defendant, Ford, and that the land of Ford might be sold upon the execution issued by Mr. Newton and as much collected thereon as Ford was in equity owing the defendants on the 24th day of February, 1811, with interest; and referring it to a referee to take evidence and report the amount of such equities.
    The court at General Term say: “We are satisfied that Bixby cannot claim under the conceded facts to be the assignee of the judgment, or to be vested with any interest therein legal or equitable. He became simply a creditor of Cooley by virtue of the payment made by him to the plaintiff in the judgment, of the amount due thereon at the request of Cooley. The plaintiffs had distinctly refused to sell or assign it. The payment was made with full knowledge of that fact, and determines the character of the act as a payment, and not a purchase. Bixby is therefore out of the case.
    Cooley was a principal debtor in the judgment, and as such was bound to pay it. As between him and Ford, however, it is possible he may have the right to keep the judgment alive to aid him in enforcing payment from Ford of his just proportion thereof. We do not assume to determine this question. But if he has any rights under the judgment they are against Ford alone for contribution. The judgment can only be kept alive as between the three defendants, and in aid of an adjustment between them of their affairs. As to strangers to the judgment, including Yan Dusen, it must be treated as paid and satisfied. We think the order of the Special Term should be made to read as follows :
    £ Ordered that said judgment be held and deemed satisfied and discharged as to Yan Dusen, and that the plaintiff therein and said Cooley and all parties claiming under them or either of them be perpetually enjoined and restrained from enforcing the same as against the said Yan Dusen and his rights and interests.’
    The order appealed from is therefore reversed, and order granted as above suggested, with ten dollars costs of Special Term, and ten dollars costs and disbursements on appeal to Yan Dusen against the defendant Cooley.”

      M. A. Stanton, for Yan Dusen, appellant. Isaac S. Newton, for plaintiff, respondent.
   Opinion by

Boakbman, J.

Present- — LeaRNed, P. J., BoaiídMan and Bocees, JJ.

Order reversed, with ten dollars costs and printing, and order granted with ten dollars costs to Yan Dusen against Cooley, as per memorandum of Boaedman, J.