text:
    The People of the State of New York, Applt’s, v. Dwight Hagadorn, et al., Respt’s.

      (Court of Appeals,

      Filed March 1, 1887.)
    1. TROVER — WHEN POSSESSION RELIED ON, DEFENDANT MAT SHOW POSSESSION IN A THIRD PERSON.
    , In an action of trover when possession is relied on to sustain the action it is always competent for the defendant to show that the plaintiff did not have possession. Should the plaintiff, however, establish the fact of possession it would be incompetent for the defendant to show title in a third person without connecting himself with it.
    2. Taxes — Provisions of statute must be complied with in levying.
    The sale under which the comptroller assumed to execute a deed of lands was based upon the non-payment and return of taxes on the land in question for the years 1866 to 1870 inclusive.
    Eor the years 1868, 1869, 1870 the hoard of supervisors for the county in - which the lands in question were situated did not compute, enter or extend upon the annual assessment rolls, the aggregate amount of the town and county tax levied upon any of the lands in the town in which the said lands were situated. The supervisor of that town after the final adjournment of the board of supervisors, and after they had signed and attached the collector’s warrant to the uncompleted assessment roll, carried the same home, and in the absence of the board of supervisors, computed the amount of the tax for each of the years in question upon the several pieces of land therein described, and entered it in the roll, and thus filled out, handed the roll and warrant to the collector for collection. The board of supervisors, before adjourning, had in each year fixed the ratio of tax upon the aggregate amount of valuation, and had authorized the supervisor of the town to compute and enter the amount of the tax in the roll. Held, that this proceeding constituted a fatal irregularity in the proceedings to levy the taxes in question. That the proceedings by which the annual assessment roll is to be formed are specially pointed out by statute, and whenever the requirements are _._Tnaterial cannot bn s“S-¿ty omitted by the officers charged with their perform-
    ■3. Same — Salí for non-payment*!»?, statutory provisions must be STRICTLY COMPLIED WITH.
    Public officers, exercising the right of selling the property of the citizen by statutory authority, are required to pursue the requirements of the statute —^_sti'ictíy. The rolls for the several years 1868, 1869, 1870 in the said town, and the warrants attached thereto were fatally defective and imposed no liability upon the person taxed, and a return of the non-payment of taxes so levied conferred no authority upon the comptroller to sell the land thus taxed.

      A. Same — When part of taxes are invalid, sale is void.
    • ■ The sale of the said lands having been made for the taxes of the years 1866 to 1870 inclusive, and the taxes for the years 1868, 1869,1870 being void, the sale was an excess of jurisdiction in the officer, making it void. <■
    -6. Same — Proprietary right in state — Estoppel.
    The proof of a comptroller’s deed having as against the state shown that it had once parted with its original right of property in the said lands and assumed to sell them as that of a citizen for taxes, precludes it from claiming that its original proprietorship remains in it.

      Appeal from judgment of general term, third department, affirming judgment in favor of defendants, entered on trial of action without jury.

      Dennis O'Brien, Atty. Gen., for appl’ts ; Geo. W. Smith, for resp’ts.

       Affirming 36 Hun, 610.

   Ruger, C. J.

The pleadings in this ease on both sides seem to be inartificially drawn, and, if the proper objections had been taken, it is by no means certain that a defense could have been proved; but, under the liberal rules established by the Code of Civil Procedure and the course c-f the trial, we are constrained to determine the case upon the, facts proved, and the issue thus apparently made and tried. Not only the complaint, but also the answer, was argumentative in character; th^ plain tiff deducing its title to the property in dispute as the result of its alleged ownership of the lands, and the defendants claiming to have controverted the fact of such ownership as the .necessary consequence of its denials of the plaintiff’s title. Tbs plaintiff did not claim to have had actual possession of the land, lor of the lumber in dispute, but based the action wholly upon q constructive possession arising out of its claim as being the; real owner of the land. The defendant controverted this fact of possession by proof, and, when possession is relied on to sustain the action, it was always competent for a defendant, in an action of trover, to show that the plaintiff did not have possess ion. If, however, the plaintiff ha/d once established the fact of; its possession, it would have behn incompetent for the defendant to show title in a third persoiji without connecting himself vjith it. All parties assumed tli«5 sufficiency of the defendant’s answer, and the trial proceeded upon rhe theory that the action depended upon the validity of the comptroller’s deed under which the plaintiff claimed!. B'' material objection was raised to a -y of the evidence qifer-T by the defendants, and no question made throughout.rbus fshu upon the form, sufficiency, 01 effect of the defendants'' pi vbing.

The plaintiff claimed tlnax die proof of the so • ■ bier's deed established its title to the laud, and that the iq?ñt of possession of the lumber cut thereon i'«>Mowed as a maessary deduvethva from such title; and the dr-f.'udants contended that the plaintiff never had possession, or tine right thereto, because' the deed shown by them had no legal validity. The plaintiff’s right of recovery having been thus made to rest .exclusively upon the validity of its title, and the legal inferences to be drawn therefrom, we must examine the objections to the comptroller’s deeds with a view of determining whether its title was thus established.

It was admitted on the trial that the sale under which the comptroller assumed to execute the deed in question was based upon the non-payment and return of taxes on the land in question for the years 1866 to 1870, both inclusive. The defendants thereupon gave evidence, without objection, tending to show that for the years ¡1868, 1869, and 1870, the board of supervisors for Fulton county had never computed, entered, or extended upon the annual assessment rolls the aggregate amount of the town and county tax levied upon any of the lands in Stratford, Fulton county, for either of the years named. It appeared that the supervisor for that town after the final adjournment of the board of supervisors, and after they had signed and attached the collector’s warrant to the incompleted assessment roll, carried the same home, and, in the absence of the board of supervisors, computea the amount of the tax for each of the years in question upon tie several pieces of land therein described, and entered it in the roll; and, as thus filled out. handed the r«¿l and warrant to the collector for collection. It was also proved that the board of supervisors, before adjourning, had in.éachyear fixed the ratio of tax upon the aggregate amount of valuation, and had authorized the supervisor of the town feo compute and enter the amount of the tax in the roll.

Wei are quite clear that this proceeding constituted a fatal irregularity in the proceedings to levy the taxes in question. The proceedings by which the annual assessment roll is to be formed are specially pointed out in the statute, and, whenever the requirements are material, they cannot safely be omitted by the officers charged with their performance. It is an elementary ruler that public officers, exercising^ the right of selling the property of the citizen by statutory) authority, are required to pursue the requirements of the[ statute strictly. Thus, the statute requires that the town ¡assessors shall mate annual em mieration and assessment of the pV.rsons and property liable to taxation in the several towns, and «enter the same upon an assessment roll consisting of, four cokftmns, in the first of which shall be entered the names of taxable inhabitants, in the second the quantitjr of land to be taxed to évach person, in the third the value of such land, and in the fourth the value of personal property. When the roll is sworn to [by the assessors, and thus prepared for the action of another bo/dy, it is to be delivered to the supervisor fol transportation ho the board of supervisors. The 'board of supervisors are theiii required, after equalizing valuations in ¿he several assessment rolls in the county, to prepare a fifth column upon the-assessment roll, and estimate and set ¿own therein, opposite to the several sums set down as the valuation of real and personal estate, the' respective sums in 'dollars and cents, rejecting the fractions of a cent, to be paid as a tax thereon. Sections 9, 27, 33; 2 Rev. St. (7th Ed.) 990, 996. They are also required to deliver the corrected assessment roll, or a fair copy thereof, to the collectors of the respective towns, and before doing so to annex to such roll a warrant, under their respective bands and seals, commanding tbem to collect from the several persons named in tbe assessment roll the several sums mentioned in the last column of such roll opposite to their respective names, (section' 36, Rev. St.,) and, finally, said board, as soon as they shall have sent or delivered to such collector such roll and warrant, are required to transmit to the county treasurer a statement containing the names of the several collectors, the amounts they are respectively to collect, and the purposes for which they are to be collected, (section 38, p. 997.)

It is quite obvious, from the chronological order in which the proceedings are directed to be taken, that the duty of computing and entering the amount of the tax upon the assessment roll is imperative. Legal validity could not be given to a warrant requiring the collector to collect the sums entered in the last column of the assessment roll when none are entered therein, nor could the board of supervisors inform the county treasurer of the aggregate amount of the tax to be collected when it had not been ascertained. Each of these directions requires a completed assessment roll, and the united action of the board of supervisors while they are still in actual session, and capable of corporate and co-operative action. Bradley v. Ward, 58 N. Y., 401.

The proper assessment of a tax requires, not only the establishment of a ratio upon which the tax is to be based, but also the computation and entry in the roll of the amount of tax levied. Without this, no tax has been levied, and the board of supervisors have failed in the performance of the duty which the statute specifically enjoins upon them. Whatever clerical duty may properly be devolved upon third persons, it is clear that it can be such only as is to be performed in the presence of the board, and under their supervision : and that the duty of • passing upon the question of a corrected assessment roll, and certifying to its accuracy and completeness as a perfected roll, is a judicial duty which cannot be delegated. Bellinger v. Gray, 51 N. Y., 610.

We are therefore of the opinion that the rolls for the several years 1868, ’69, and ’70, in the town of Stratford, and the warrants attached thereto, were fatally defective, and imposed no, liability upon the persons taxed. It is also equally clear that a return of the non-payment of taxes so levied conferred no authority upon the comptroller to sell the land thus taxed. Thompson v. Burhans, 61 N. Y., 52; Whitney v. Thomas, 23 Id. 281.

It is, however, claimed that the taxes for the respective years 1866 and 1867, having been lawfully imposed, and there having been default made in the payment thereof, the comptroller acquired jurisdiction to sell and convey such lands, although the sale was also made for an aggregate sum, including the illegal taxes for other years. In other words, it is claimed that the comptroller, haying in his hands unpaid reported taxes for a number of different years, some of which were legal and some invalid, can enforce the payment of the illegal taxes by taking proceedings to collect the legal ones, and that the owner of real estate can only regain possession of his property by paying a sum of money which the state has no legal right to demand. We do not think such a proposition can be supported. It appeal's that the sale • of the land in question was made by the comptroller in 1877, and was predicated upon the aggregate of the taxes thereon for all of the years from 1866 to 1870, inclusive, and that the same was bid in on such sale by the state at a gross sum sufficient to cover the entire taxes. No such sale can become perfect, so as to vest title in the purchaser, until after an opportunity has been given to the owner to redeem his land and reclaim the title. Westbrook v. Willey, 47 N. Y . 459; Doughty v. Hope, 3 Denio, 594. By the statute in force at the time of this sale, such redemption might be made at any time within two years after the last day of sale, by paying to the state treasurer, for the use of the purchaser, the sum mentioned in the certificate of sale, with 10 per cent, interest thereon; and it was further required that the comptroller should give notice stating specifically the parcel of land unredeemed, and the amount required to redeem the same, and publish the same for six weeks in certain designated newspapers in the county, and finish such publication at least 18 weeks before the final period of redemption. This notice is said to be for the benefit of the owners, and no title passes until it has been properly published, and the time of redemption has expired. Westbrook v. Willey, supra.

Under our scheme of taxation,- the tax for each year is separately levied, and returned to the comptroller, and he is under no legal obligation, in making a sale of lands, to join the taxes of different years, or to sell for the aggregate sum of all of the taxes due for separate years upon such parcel of land. The necessary effect of such a joinder of taxes is, therefore, to make the payment of an illegal tax the condition of the owner’s right to retain his property, and subjeqt him, contrary to the meaning and spirit of the statute, to the payment of an unjust and illegal exaction as the price of his legal right to redeem his property. Upon the sale the purchaser is required to bid sufficient to cover all of the taxes claimed against the land, and, upon redemption, the owner is required to pay the same amount, with interest. The sale being for an entire sum, it cannot be legal beyond the amount for which the comptroller was log-ally authorized to sell the land. There can be no division of the sum payable, and no separation which can validate a part and reject tbe rest. It is either wholly bad or absolutely good. The invalidity of such a sale has been the subject of frequent discussion among text-writers and in the cases, and the authorities seem to be quite uniform on the subject. Burroughs, Tax’n, § 113 : Cooley, Tax’n, 345. It has been repeatedly held that a sale of land for the taxes of several years, one of which is void, is an excess of jurisdiction in the officer making the sale, and renders his proceedings void. Moulton v. Blaisdell, 24 Me. 283; Wallingford v. Fiske, Id. 386; Hardenburgh v. Kidd, 10 Cal. 402; Elwell v. Shaw, 1 Greenl. 339 ; Hall v. Kellogg, 16 Mich. 135 ; Santa Clara Co. v. Southern Pac. R. R., 18 Fed. Rep. 394 ; Riverside Co. v. Howell, 113 Ill. 256.

Many other cases might be cited from these and other states, but sufficient have been referred to to show that the doctrine stated has the support, not only of the federal courts, but also those of every state in the union, except where statutory regulations interfere. We therefore conclude that the comptroller’s deed, under which the plaintiffs sought to make claim to the lumber in question, was wholly void, and the plaintiff’s claim must fail.

The ground suggested by the appellant that the plaintiffs might still recover under their title, as having the original and ultimate property in all of the lands in the state, is quite untenable. The proof of the comptroller’s deed having, as against the state, shown that it had once parted with its original right of property, and assumed to sell the land as that of a citizen for taxes, precludes it from claiming that its original proprietorship still remains in it.

We are therefore of the opinion that the judgment should be affirmed.

All concur.


source: Caselaw Access Project

author: Andrews, J.

license: Public Domain

text:
    People of the State of New York, Resp’ts, v. Andrew J. Wightman, Impleaded, etc., Appl’t.

      (Court of Appeals,

      Filed March 1, 1887.)
    1. Criminal law — Blackmail — What amounts to — Penal Code, § 658.
    A false accusation in writing of an act involving moral turpitude, known by the party making it to he false, accompanied with a suggestion that legal proceedings will he taken, unless the person against whom it is made purchases silence, may he a threat within the statute (Penal Code, § 558; although in form the accused is simply called upon to render satisfaction for that which, if the charge were true, would entitle the accuser to pecuniary compensation. The mere form in which the threat is made is not decisive.
    2. Same — Indictment — When averment of knowledge op falsitt op CHARGE SUFFICIENT.
    In an indictment for blackmail under Penal Code, § 558, the letter which was written by an attorney at law in behalf of an unmarried female, stated that the writer had been informed by said female that there had been sexual intercourse between her and the prosecutor, and that she was with child by him; the letter distinctly intimated that legal proceedings would be taken unless the prosecutor made voluntary provision for the mother and child, and he is asked whether he is willing to do this to avoid publicity. Held, that the averment in the indictment that the defendant, for the-purpose of extorting money from the prosecutor, threatened to expose him-to disgrace by falsely charging him with the criminal acts stated, fairly implies that defendant knew the charge contained in the letter was false, and. the admission in the record that evidence was given tending to prove the acts charged in the indictment, must have been intended to cover, not merely the bare act of sending the letter, but the circumstances averred in connection with the act, that is, that it was a scheme to extort money by-making a false charge.
    Appeal from a judgment of the supreme court, general term,, first department, affirming a judgment of the Oyer and Terminer on conviction of defendant under an indictment for blackmail.

      T. W. Tyng, for appl’t; Randolph B. Martine, District-Attorney, for respt’s.
   Andrews, J.

Omitting the superfluous words in the indictment, it charges, among other things, in substance, that the defendant and others, well knowing the contents of the letter and with intent to extort money from the prosecutor did, on a day and at a place mentioned in the indictment, feloniously send and cause to be forwarded to, and received by, the prosecutor, the letter set out in the indictment, threatening to expose him to disgrace by falsely and publicly accusing him of having sexual intercourse with one May A. Thatcher, an unmarried female, resulting in her pregnancy of a child likely to be born a bastard.

The letter set out in the indictment purports to have been, written by one of the co-defendants, an attorney-at-law, in behalf of May A Thatcher, and was addressed to the prosecutor.

The letter, after stating that the writer had been informed by May A. Thatcher, that there had been sexual intercourse between her and the prosecutor, and that she was with child by him, proceeds as follows : “ I suppose you are aware that under these conditions you are liable for the support of the child and the mothér’s expenses during her sickness. Are you willing to make suitable provision for such liability, and thereby avoid publicity, or will it be necessary to take legal steps in the-matter ? ”

The defendant was tried and convicted. The evidence is. not contained in the record. The bill of exceptions states that the People, to maintain the issue on their part, introduced evidence tending to prove the acts charged in the first five counts of the indictment. It must be assumed, therefore, that the evidence justified the jury in finding that the defendant knowingly sent a letter to the prosecutor, falsely charging him with having liad illicit intercourse with May A. Thatcher, resulting in pregnancy, and that it was sent for the purpose of extortion.

It is claimed on behalf of the defendant that to support a conviction under section 558 of the Penal Code, for sending a threatening letter, the letter complained of must not only in itself contain a threat, but it must on its face be a threat to do •an illegal thing.

It is doubtless true that a demand for indemnity for a wrong made in good faith, accompanied by a suggestion that legal proceedings will be resorted to unless satisfaction is "voluntarily made, is not a threat within the statute, although the wrong is on the' disclosure of which would bring disgrace upon the guilty party. But if the party making the demand knows that he has suffered no wrong, a threat to prosecute unless settlement is made, might, we conceive, bring the case within the ■statute, although on the face of the letter the party writing it might seem to be asserting only his legal rights. In other words, a false accusation in writing of an act involving moral turpitude, known by a party making it to be false, accompanied with a suggestion that legal proceedings will be taken unless the person against whom it is made purchases silence, may be a threat within the statute, although in form the accused is simply called upon to render satisfaction for that which, if the charge was true, would entitle the accuser to pecuniary compensation.

The mere form in which the threat is made is not decisive.

The letter in this case distinctly intimated that legal proceedings would be taken to enforce the liability, unless the prosecutor made voluntary provision for the mother and child, nnd he is asked whether he is willing to do this to avoid publicity.

The averment in the indictment that the defendant, for the purpose of extorting money from the prosecutor, threatened to expose him to disgrace by falsely charging him with the criminal acts stated, fairly implies that the defendant knew the charge contained in the letter was false ; and the admission in the record that evidence was given tending to prove the acts charged in the indictment must have been intended to cover not merely the bare act of sending the letter, but the circumstance averred in connection with the act; that is, that it was a scheme to extort money by making a false charge.

We think the indictment was good in substance and that the conviction should be affirmed. See People v. Thompson, 97 N. Y. 313; Reg. v. Hendy, 4 Cox, C. C. 243; Rex. v. Tucker, 1 Moody Crown Cas. 134.

All concur.


text:
    Erie County Savings Bank, v. Caroline E. Coit, as Exr’x, Etc.

      (Court of Appeals,

      Filed March 1, 1887.)
    1. BANKS AND BANKING-CONSIDERATION — SURRENDER OP EXISTING- SECURITY-GOOD CONSIDERATION POR NEW UNDERTAKING.
    The surrender of an existing security is a good consideration for a new-undertaking between the parties to a surrendered obligation.
    2. Same — Consideration op principal contract will support guaranty CONCURRENTLY MADE.
    When a contract of guaranty is entered into concurrently with the principal obligation, a consideration which supports the principal contract, supports the subsidiary one also.
    3. Same — May be shown by parol.
    The consideration need not be expressed in the guaranty, but may be shown by parol.
    4. Sayings bank — May deposit in incorporated bank in this State— Laws op 1875, ch. 371, §§ 27, 28 — Agreement to pay interest does-NOT APPECT CHARACTER OP DEPOSIT.
    By Laws 1875, ch. 371, §§ 27, 28, savings banks are authorized to keep ten per cent, of their deposits on deposit in any incorporated bank in this-State. The fact that a savings bank making a deposit to the extent allowed by law, secures from the bank with which the deposit is made an agreement to pay interest does not convert the deposit into an unauthorized loan.

      Daniel L. Lockwood, for appl’t; E. C. Sprague, for resp’t.
   Andrews, J.

The questions involved, in this case have been carefully considered in the opinion pronounced at the general term, and we shall content ourselves with a brief statement of our conclusions on the main propositions upon which the appellants rely for a reversal of the judgment.

1. It is insisted that there was no consideration to uphold the contract of guaranty. The bond and guaranty were executed concurrently. The principal obligation recites that it was executed by the First National Bank of Buffalo in consideration of deposits made, or which might be made, with said bank by the plaintiff, the Erie County Savings Bank, and the recital is followed by an undertaking on the part of the obligor to repay to the-savings bank, on demand, all deposits which it has made or may make with the First National Bank, on call, as required, with, interest at 4 per cent, per annum. The bond is executed under-the seal of the First National Bank, by its president and cashier.. The undertaking of the. guarantors, which is indorsed on the bond, is as follows: “ In consideration of the making of the deposits mentioned in the foregoing agreement, we each and severally guarantee the performance of the foregoing contract by the First National Bank of Buffalo.” The bond and guaranty were delivered by the First National Bank to the savings bank on the eighth day of March, 1882, in compliance with a request theretofore made by the treasurer of the savings bank to the president of the First National Bank, to furnish a new bond, with sureties, to secure deposits of moneys of the sayings bank in the First National Bank. There had been a previous bond and guaranty of similar character executed in 1865 to secure deposits, with interest at the rate of 5 per cent., and from the time of giving that bond to January 17, 1882, the date of the last deposit, deposits were made in each year by the plaintiff with the obligor, payable on call. Prior to January, 1882, three of the four guarantors on the bond of 1865 had died. In consequence of this fact, in January 1882, the finance committee of the plaintiff directed its treasurer to obtain a new bond from the First National Bank as a substitute for the old one, and the request for a new bond was made in consequence of this direction. Within three or four days afterwards, the bond and guaranty now in question was delivered to the plaintiff, and the old bond was surrendered to the First National Bank. The latter bank failed April 14, 1882, owing the plaintiff the sum of $30,000 for deposits on and prior to January 17, 1882. This indebtedness has been paid in part by the receiver of the insolvent corporation, and in part by co-sureties of the defendant’s intestate, but leaving a part of the debt still unpaid.

Upon these facts we are of opinion that the surrender of the bond of 1865 was a good consideration for the guaranty. It is a legitimate inference from the circumstances that the new bond was intended by both banks as a substitute for the original bond, and no other inference is consistent with the acts of the parties and the circumstances. That this was the intention of the plaintiff is plain from the action of its officers. The finance coimnittee directed its treasurer to procure a new bond as a substitute for the former one, and it surrendered the old bond within a few days after receiving the new one. There was no formal action by the First National Bank showing its intention, beyond the giving of the new bond. But the new bond covered past as well as prospective deposits, and fixed a rate of interest more favorable to the First National Bank than the former one. The president of the First National Bank testified that the rate of interest was referred to in the conversation between the treasurer of the plaintiff and himself before the new bond was given, and that the treasurer of the plaintiff, in connection, with this subject, said “ it would be a good thing to have a new contract made.” It was in the interest of the First National Bank that the new bond should be substituted for the old one, and we cannot doubt, upon the evidence, that it was made and accepted as a substitute for the original one, and that the surrender of the old bond was in conformity with the intention of both banks when the new bond was given. It is needless to cite authorities to show that the surrender of an existing security is a good consideration for a new undertaking between the parties to the surrendered obligation. There being a good consideration for the bond between the obligor and obligee, it follows, we think, that the same consideration supports the guaranty, and that it is immaterial whether the guarantors knew or did not know that the surrender of the old bond was in the contemplation of the parties when they became guarantors. Where a contract of guaranty is entered into concurrently with the principal obligation, a consideration which supports the principal contract supports the subsidiary one also. We understand this to be the settled doctrine. McNaught v. McClaughry, 42 N. Y., 22; Haigh v. Brooks, 10 Adol. & El., 309; Simons v. Steele, 36 N. H., 73; Brandt, Sur. §§ 6, 7. And the consideration need not be expressed in the guaranty, but may be shown by parol. Evansville Bank v. Kaufmann, 93 N. Y., 273.

The claim that the question of consideration should haye been submitted to the jury is not well taken. There was no substantial controversy in respect to the facts. The president of the First National Bank does not deny that he knew that the plaintiff held a bond to secure deposits when the new bond was given. His denial only goes to the point that he was ignorant of the precise form of the security.

2. The other principal question relates to the validity of the agreement evidenced by the bond. It is claimed that the arrangement between the savings bank and the First National Bank was, in substance, an agreement by the former to loan money to the latter, contrary to the statute prescribing the securities in which investments by savings banks may be made. We think it is a conclusive answer to this objection that .the general act regulating the dealings and operations of savings banks (Laws 1875, c. 371, §§ 27, 28) expressly authorizes savings banks to keep 10 per cent, of their deposits on deposit in any incorporated bank in this State, and that it does not appear that the deposits made with the First National Bank of Buffalo were" in excess of this limit. The fact that the savings bank secured from the First National Bank an agreement to pay interest on the deposit does not convert the deposit into an unauthorized loan. It would seem strange to make an act of provident administration a cause of forfeiture upon a strained construction of the transaction. The deposits were at all times subject to call by the plaintiff.

There are some subordinate questions treated in the prevailing opinion below.

We think there is no error disclosed in the record, and the judgment should therefore be affirmed.

All concur.


author: Earl, J.

text:
    People of the State of New York, Resp’ts, v. Charles J. Everhardt, Appl’t.

      (Court of Appeals,

      Filed March 1, 1887.)
    1. CeimiNAl law — Evidence op accomplice — Corroboration — Code Crim. Pro., § 899.
    Section 399 of tlie Code of Crim. Pro., which provides that “ a conviction cannot be had upon the testimony of an accomplice unless he be corroborated ” etc., is complied with if there is some other evidence fairly tending to connect the defendant with the commission of the crime so that his conviction will not rest entirely upon the evidence of the accomplice.
    2. Same — Uttering- eorged checks — Evidence of guilty knowledge.
    Upon the trial of the defendant for uttering a forged check, the people were allowed to prove, against the objection of the defendant, the uttering ■ of other forged checks by him upon other occasions. In this there was no error. It was admissible for the purpose of showing the guilty knowledge and intent which are elements of the crime.
    3. Same — Right to put in cumulative testimony.
    Although the evidence of the accomplice, corroborated as it was, as to the guilty knowledge of the defendant, was quite clear and convincing, the people were not bound to rest upon a prima facie case, but had the right to confirm that evidence by the proof as to the uttering of other forged checks.
    4. Same — Practice — Aliases—Repetition in swearing jurors and witnesses.
    The defendant was described in the indictment by an erroneous name . and several aliases. It was not error to repeat them, in addition to his real name whenever it became necessary to name the defendant, (as in the administration of the oath to jurors and witnesses), and it cannot be assumed that any legal harm was thereby done to him.
    6. Same — Pronouncing judgment — Effect of delay at prisoner’s request — Jurisdiction.
    The pronouncing of judgment in this case was postponed at the request of the defendant for four days, to enable his counsel to make a motion for arrest of judgment and for a new trial. On the adjourned day he did not appear, or request to appear, in court to make his motion. The term ad- • journed, sine die, and judgment was pronounced by the same court that tried the indictment during the following term. Meld, he must be assumed to have waived any delay, and to have consented thereto. That the court did not lose jurisdiction.
    Appeal from a judgment of the supreme court, general term, first department, affirming a judgment of the court of general sessions in the city of New York, on conviction of defendant under an indictment for uttering forged notes.

      A. Suydam, for appl’t; McKenzie Semple, Ass’t. Dist. Att’y, for resp’ts.

       Affirming 42 Hun, 659, mem. 4 N. Y. State R, 518.

   Earl, J.

The defendant was convicted in the court of general sessions, in the city of New York, of the crime of forgery in the second degree, committed by uttering a forged check, knowing it to be forged. Prior to his conviction one Gaylord bad been convicted of tbe same offense for uttering the same-check, and had been sentenced to the state prison at Sing Sing. .He was produced as a witness on the trial of the defendant, and testified that he received the forged check from him, and was induced by him to attempt to obtain the money upon it from the bank upon which it was drawn. He was therefore an accomplice, and the objection is now made that his testimony was not sufficiently corroborated under section 399 of the Code of Criminal Procedure, which provides that “a conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.”' Prior to the enactment of this section, it was customary for judges to instruct jurors that they should not convict a defendant of crime upon the evidence of an accomplice unless such evidence was corroborated ; and yet it was the law in this state that a defendant could be convicted upon the uncorroborated evidence of an accomplice, if the jury believed it. This section has changed that rule of law, and requires that there should be simply corroborative evidence which tends to connect the defendant with the commission of the crime.

Here, without referring particularly to the evidence of Schulken and of Caroline Gaylord, we think such evidence was sufficient to show some active agency on the part of the defendant in uttering the check, and thus to connect him with the commission of the crime, and that satisfies the law. Whether that evidence was sufficient corroboration of the accomplice was for the determination of the jury. The law is complied with if there is some other evidence fairly tending to connect the defendant with the commission of the crime, so that his conviction will not rest entirely upon the evidence of the accomplice.

Upon the trial the people were allowed to prove, against the objection of the defendant, the uttering of other forged checks, by him upon other occasions. In this there was no error. The defendant, by his plea of not guilty, had put in issue everything which it was incumbent upon the people to prove. They had no direct or positive evidence that he personally forged the check which he uttered, and it was open for him to show that at the time he uttered it he had no knowledge that it was forged, and was therefore innocent of crime; and, for the purpose of showing the prisoner’s guilty knowledge in such cases, it has. always been held competent to prove other forgeries. Mayer v. People, 80 N. Y., 364; People v. Shulman, Id. 373. Such proof.' is not received for the purpose of showing other crimes than, that charged in the indictment, but for the purpose of showing the guilty knowledge and intent, which are elements of the crime charged and it can be considered by the jury only for that purpose.

Although the evidence of Gaylord, corroborated, as it was, as to the guilty knowledge of the defendant, was quite clear and convincing, yet the people were not bound to rest upon a, prima facie case, but had the right to confirm that evidence by the proof as to the uttering of other forged checks.

The defendant was described in the indictment as “ George Hartman, otherwise called George Peters, otherwise called Wash Market Jake, otherwise called Charles Coke, otherwise called Charles McGloin.” Upon the trial of the action these names were repeated by the clerk in the oath administered to the jurors challenged, and the counsel for the defendant objected to the repetition of such names, on the ground that it tended to prejudice the defendant in the minds of the jurors; and he admitted and offered to prove that the true name of the defendant was Charles J. Everhardt. The trial judge stated in reply that he could see no objection to the clerk inserting in the subsequent proceedings the name which the defendant asserted was his true name, and referring to the fact that he was indicted under another name. The defendant’s counsel excepted, and again asked the court to instruct the clerk, in swearing the jurors and witnesses, that he should designate the defendant as Charles J. Everhardt, and omit the fictitious names. The court replied that he would instruct the clerk to designate the defendant as. Charles J. Everhardt, and would allow him to state the several other names. To this ruling the defendant’s counsel excepted. Thereafter, throughout the trial, at each administration of an oath, the clerk, under the instructions of the court, designated the defendant as “ Charles J. Everhardt, indicted as George Hartman, otherwise called George Peters, otherwise called Wash Market Jake, otherwise called Charles Coke, otherwise; called Charles McGloin.” At each repetition of these names,, defendant’s counsel objected thereto, and moved that the defendant be designated by the name of Charles J. Everhardt,. and not by the fictitious names. The objections were overruled,, and the motion denied, and defendant’s counsel excepted. It. appeared from the examination of some of the jurors that they were prejudiced by the fact that the defendant appeared to have so many different names, and they were excluded from the. jury on that account, and 12 jurors were finally impaneled, against whom there was no objection. Section 277 of the Code: of Criminal Procedure provides that “ if the defendant is indicted by a fictitious or erroneous name, and in any stage of the proceeding his true name is discovered, it may be included in the subsequent proceedings, referring to the fact of his being indicted by the name mentioned in the indictment.” No material error was committed by the repetition of the fictitious names. While undoubtedly they might with propriety have, been omitted in the administration of the oath to jurors and witnesses after the true name was discovered, and inserted in tbe indictmentand other proceedings, yet, as such names all appeared in the indictment and in the evidence, it was not error to repeat them whenever it became necessary to name the defendant, and it cannot be assumed that any legal harm was thereby done to Mm.

After the jury returned their verdict of guilty, the counsel for the defendant requested that the defendant be remanded until the Tuesday following, which was the twenty-second day of December, that he might then make a motion for arrest of judgment, and for a new trial, and the court granted the request, and ordered that the prisoner should be remanded until that day. The record then states that no further proceedings were had, and no motion was made by either party during the December term of the court: that afterwards, on the twenty-fourth day of Decembér, 1885, the December term of the court was finally adjourned without day; that afterwards, on the seventh day of January, 1886, at the January term of the court, the same judge presiding, the following proceedings were had: The defendant being again led to the bar of the court, the district attorney moved for judgment, and the defendant being asked if he had any cause to say why judgment should not be pronounced against him, his counsel moved for a new trial upon various grounds mentioned, being for errors committed during the progress of the trial. He also moved the judgment should be arrested, because, among other-things, “ the verdict was rendered and the jury discharged on the eighteenth day of December, 1885, and during the December term of the court; and afterwards, to wit, on the twenty-fourth day- of December, 1885, the court was duly adjourned until the next term, by wlfich adjournment the December term was finally adjourned without day, no judgment having been rendered, and the defendant not having applied for or consented to any delay in the rendition of judgment beyond the twenty-second day of December, 1885, being the Tuesday following next after the day on which the verdict was rendered, and the court now holding the January term, 1886 has no jurisdiction to render judgment in the action.”

• The court wMch pronounced the judgment was the same court which tried the indictment, and in which the verdict was rendered, and it would be a sufficient answer in this case that no substantial harm was done to the defendant by the delay from the twenty-second day of December to the seventh day of January following. But upon this record it may fairly be said that the defendant, not objecting, waived any delay within the meaning of section 472 of the Code of Criminal Procedure, which provides that the time for pronouncing judgment after a verdict of guilty “ must be at least two days after the verdict, if the •court intend to remain in session so long, or, if not, as remote a time as can reasonably be allowed j but any delay may be waived by tbe defendant.” Judgment in this case was postponed, at tbe request of the defendant, until tbe twenty-second day of December, to enable his counsel to make a motion for arrest of judgment and for a new trial. On that day be did not appear, or request to appear, in court to make bis motion, and hence be must be assumed to have been wholly indifferent to tbe delay, and to have consented thereto. There is therefore' no reason for saying that tbe court lost jurisdiction to pronounce judgment on a subsequent day.

We have now noticed briefly all tbe allegations of errors brought to our attention by tbe counsel for tbe defendant, and believe that none of them are well founded. Tbe judgment should be affirmed.

All concur.


author: Peckham, J.

text:
    Samuel L. Miller, Resp’t, v. Richard Woodhead, Appl’t.

      (Court of Appeals,

      Filed March 1, 1887.)
    NEGLIGENCE — LANDLORD AND TENANT — DUTY OP LANDLOED TO PASTIES. QTHEB THAN LESSEE, HOW LIMITED.
    This defendant rented rooms, overlooking an extension, to a party with the privilege of hanging and drying clothes on the roof of the extension, at the same time cautioning her that the roof was weak. There was a skylight in this roof situated near the windows, and this plaintiff, then a child of about three years, being brought by his mother when she called upon the lessee of the rooms, fell from the window through the skylight, receiving injuries for which this action is brought. Held, that the defendant owed no duty to the plaintiff with regard to the roof, and that he could not take advantage of a violation of duty to the lessee in that particular, unless he was at the time of the accident in some way connected with her, as in the use of the roof for that purpose for which-the lessee was privileged to use it, or it may be in the use of it with her license. ■
    Appeal from judgment of general term affirming judgment below.

      Henry P. Starbuoh, for appl’t; J .G-ray Boyd, for resp’t.

       Reversing 36 Hun, 643, mem.

   Peckham, J.

The defendant was tbe owner of a bouse in Thirty-third street, New York, some rooms in which he bad rented to a Mrs. O’Brien, who was tbe step-mother of the plaintiff’s mother, the plaintiff being an infant of about tbe age of three years.' Mrs. O’Brien had three rooms in the rear of the bouse, overlooking an extension thereof, which was covered with a tin roof, and in which there was a sky-light to give light to a saloon situated in such extension. Mrs. O’Brien had leased the right to use this roof for the purpose of hanging out and drying her clothes, and when she rented the rooms the defendant had cautioned her about not letting children out on the roof, because the ceiling was very bad, and she had never allowed them to go there. This tin roof was about a foot below the windows of Mrs. O’Brien’s rooms, which looked out on it. About sixteen or eighteen inches from the wall in which the windows were set the sky-light in question was situated, so it was about a foot below the windows, and sixteen inches away from the wall. The sky-light had panes of glass in it, and there had been a wire screen oyer the glass, made of long and small wires, very thin, and in bad condition, — old and rotten. This screen had been taken off the sky-light some six weeks prior to the accident, and, at the time of its occurrence, had not been replaced. The glass in the sky-light would have been very likely broken if not covered, as the boys used to climb up a ladder, and play ball about there.

The sill of the windows from the floqr inside was about twen-' ty-three inches, and, in order to go out on the roof from the rooms occupied by Mrs. O’Brien, it was necessary to raise the window, and crawl through the lower part of it. The permission given by the defendant was to Mrs. O’Brien to go out on the roof and dry her clothes there. There were no bars on the window, and if there had been she says she would not have taken the premises.

On the day in question the mother of plaintiff, with a babe in her arms, and accompanied by plaintiff, called at Mrs. O’Brien’s, and, as they went in the room, plaintiff’s mother started to put the babe on a bed in the bed-room off the kitchen, and was gone but a few seconds, when Mrs. O’Brien saw the plaintiff, who had gone to the window, tumbling out. She caught sight of him just as he was disappearing. He fell through the skylight, and sustained injuries to.his head, etc., for which he brought this action. Mrs. O’Brien gave it as her opinion that, if the wire had been on, it had been all right for the boy. From her own description, it is perfectly obvious the wire screen was not placed there to catch people, or prevent their falling through the, sky-light, but for the purpose of saving the glass in the sky-light.

The plaintiff recovered a verdict, which has been affirmed at the general term, and the defendant appeals here.

Upon the case as made by the plaintiff, we are unable to see that any proof was given of the violation of any duty'which the defendant owed to the plaintiff. The roof over the saloon, or the sky-light therein, was not a dangerous structure, and defendant had given no invitation, and issued no license, expressed or implied, to plaintiff to go upon the roof. Mrs. O’Brien had the right to go on it for the purpose suggested, and very likely any agent or servant of hers engaged in that occupation for her. This is no such case. If there had been no roof at this place, the plaintiff would, on falling out of the window, have come to the ground. Can it be contended, in such case, the defendant would have been liable ? If not, how is his liability increased by the fact that there is a roof just below these windows, but in it there is a sky-light which a child’s weight could break ? If the defendant owed no duty in the one case to build a roof or a wall or any other structure under these windows to catch people who fall out of them, how is his liability increased when he does build a structure with a roof, but which does not absolutely prevent one from falling through it because of a sky-light?

But the liability seems to have been placed, in the court below, upon the duty which it is said the defendant owed Mrs. O’Brien to furnish her a reasonably safe roof when he let her the right to go upon it to dry clothes. If that be assumed, we do not see how plaintiff is aided. Mrs. O’Brien was not injured, nor any of her servants, by reason of the unfitness of the roof for the purpose for which it was to be used by her or them. The plaintiff was not injured while he was using the roof at all. He simply fell out of a window, (as the evidence shows beyond all question,) and thus received his injury. What had the liability (whatever it was) of defendant to Mrs. O’Brien to do with this question between plaintiff and himself, as the plaintiff was not using the roof for any purpose whatever? Conceding that to fulfill his obligations to Mrs. O’Brien, and to render the roof fit for her to use for the purpose spoken of, this wire screen was a necessity, and that if it had been there on this occasion the plaintiff would not have been hurt, still there was no duty owing by him to this plaintiff to have the roof in that condition, so that he could be caught when he fell out of the window, and the injury thus be averted. The duty of defendant to Mrs. O’Brien, in order to fulfill his contract with her in granting her permission to use the roof, is one thing; but the plaintiff cannot take advantage even of its violation, unless at the time when the accident happened he was himself in some way connected with her, as in the performance of the duty for her, or in using the roof with her license, (even if that would raise a duty,) and in carrying out some right which she had herself. This case has none of those features. The duty of defendant may be one thing to Mrs. O’Brien, and quite another to the plaintiff. Larmore v. Crown Point Iron Co., 101 N. Y., 391, 1 N. Y. St. Rep. 43. We think this case not distinguishable in principle from McAlpin v. Powell, 70 N. Y., 126.

The judgment of the general term and of the circuit should be reversed, and a new trial ordered, costs to abide event.

All concur.


text:
    Electus B. Litchfeld, Executor of the estate of H. Marie Litchfield, deceased, Resp’t; v. Charles R. Flint, Appl’t.

      (Court of Appeals,

      Filed March 1, 1887.)
    1. Bills and notes — Payee — What wobds aee descbiptio pebsosl®.
    A note which promised to pay E. B. Litchfield “ executor of the estate of H. Maria Litchfield deceased ” is payable to him individually, the words quoted are mere descriptio personae.

    2. Pleading — Name of paety — Surplusage.
    In the title of this action after the word “ Litchfield ” appear the words “ executor of the last will and testament of H. Maria Litchfield deceased.” In such a case when the complaint shows a cause of action in favor of plaintiff, not in his representative but in his individual character, the descriptive words may be rejected.
    3. Same — Cause of action.
    The complaint in this action alleged that a certain note payable to the plaintiff was by him transferred to one Foote. That the defendant promised to pay this note for a valuable consideration furnished by plaintiff. That it was not paid and was protested for non-payment. That Foote thereafter assigned it to plaintiff. Held, that there was a cause of action stated. That by virtue of plaintiff being indorser upon the note he was under such a legal obligation to Foote as to create a privity by substitution with the promisor. Also that plaintiff independently of the above could enforce the promise made to him to pay the note.
    Appeal from a judgment of the supreme court, general term, second department, reversing a judgment of the special term overruling tbe demurrer to tbe complaint on tbe ground that it did not state a cause of action.

      J. W. Gilbert, for appl’t. B. F. Tracy, for resp’t.

       Reversing 37 Hun, 643. mem.

   Earl, J.

We' are of opinion that tbe complaint states a good cause of action, and that tbe demurrer was not, therefore, well taken.

While tbe note mentioned in tbe complaint contains a promise to pay E. B. Litchfield, “ executor of the estate of H. Maria Litchfield, deceased,” tbe words quoted are mere descript-io personae. There is nothing in tbe complaint showing that tbe loan was made by him as executor, and in no other capacity ; and upon the facts alleged in the complaint, if Litchfield had desired to commence suit directly upon the note against the maker thereof, he would have been obliged to commence it in his individual name, and in that capacity he could have recovered. Peck v. Mallams, 10 N. Y. 509.

So, too, although in the title of this action, after the word “ Litchfield,” the words, “ executor of the last will and testament of H. Maria Litchfield, deceased,” appear, yet the action is the individual action of Electus B. Litchfield. The whole body of the complaint shows an action in his favor, to enforce an agreement made by him individually with tbe defendant for tbe payment of tbe note given to and held by bim individually. In such a case, wben the complaint shows a cause of action in favor of tbe plaintiff, not in bis representative, but in bis individual, character, the descriptive words may be rejected, leaving the action to stand as one in the individual capacity of tbe plaintiff. Merritt v. Seaman, 6 N. Y., 168; Stilwell v. Carpenter, 62 N. Y., 639; Beers v. Shannon, 73 N. Y., 292; Thompson v. Whitmarsh, 100 N. Y. 35.

We agree with tbe general term that this is not an action to enforce a trust, but simply to enforce the agreement of tbe defendant to pay the note held by tbe plaintiff which is set out in the complaint. It is quite clear that under tbe authority of Lawrence v. Fox, 20 N. Y., 268; Barlow v. Myers, 64 N. Y., 41; Vrooman v. Turner, 69 N. Y., 280; and other like cases, — Foote, • if he had continued to hold the note, could, upon the facts alleged in the complaint, have compelled its payment by the defendant. His agreement to pay the note to Foote was founded upon an ample consideration passing to him from the plaintiff. At the same time the plaintiff was under a legal obligation or duty to Foote, by virtue of his indorsement upon the note which he had transferred to him, and his interest and obligation consequent upon his indorsement bring the case precisely within the rule laid down in Vrooman v. Turner, supra, in the following language : “ A legal obligation or duty of the promisee to him [the third party] will so connect him with the transaction as to be a substitute for any privit} with the promisor, or the consideration of the promise, the obligation of the promisee furnishing an evidence of the intent of the latter to benefit him, and creating a privity by substitution with the promisor.”

It is true that the complaint does not very distinctly aver the indorsement by the plaintiff of the note which was held by Foote at the date of the agreement. But the note was payable to plaintiff’s order, and the complaint alleges that it was trans-' ferred to Foote, which, in the case of such a note, would imply its indorsement. It avers that payment of the note was demanded, and that it was protested for non-payment, and that notice of protest was duly served upon plaintiff. It is also alleged that the agreement was entered into for' the purpose, among other things, of making certain provision for the payment of the note, and the indebtedness of the Kings County Central Railroad Company evidenced thereby, and of indemnifying the plaintiff, as executor, from liability thereon. From all this language, we think it can be inferred that the plaintiff was the indorser of the note while it was in the hands of Foote ; and therefore the promise of the defendant became available to Foote, and the assignment and transfer of the note to the plaintiff enabled him, as such assignee, standing in the shoes of Foote, to enforce the agreement.

But, even if this were not so, the conclusion would still be reached that the plaintiff could enforce payment of the note. The defendant promised to pay this note upon ample consideration furnished by the plaintiff. He thus became bound to some one to pay it. If he did not become bound to Foote, he certainly did to the plaintiff; and the plaintiff, having becomé possessed of the note, cannot simply, as assignee of Foote, but as a party to the agreement, enforce payment of the note. The plaintiff holds, not only all the rights, if any, Foote had under that agreement, but all the rights which he had thereunder as a party thereto; and there can be no doubt that he is in a posi tion to enforce the promise the defendant made to him to pay the note. Therefore, the plaintiff having become owner and holder of the note, having procured the consent of the Kings County Central Railroad Company to its payment by the defendant, and having tendered to him the 16 bonds to which he was entitled under the agreement, and the enterprise mentioned in the agreement having been closed up and terminated, the defendant having ample funds for the payment of the note, we see no reason to doubt that the complaint sets forth a sufficient cause of action, and that the demurrer should not have been sustained.

The judgment of the general term should therefore be reversed, and that of the special term overruling the demurrer affirmed, and the defendant should have leave to withdraw his demurrer, and serve an answer within 80 days, upon payment to the plaintiff of all the costs since the service of the demurrer.

All concur.


text:
    Ellen Pomfrey, Resp’t v. The Village of Saratoga Springs, Appl’t.

      (Court of Appeals,

      Filed March 1, 1887.)
    1. MUNICIPAL CORPORATIONS — NEGLIGENCE — LIABILITY POE CONDITION OF ' STREETS.
    By its charter (Laws 1866, ch. 220) the village of Saratoga Springs is constituted a separate road district, exempt from the superintendence and care of the commissioners of highways of the town of Saratoga Springs, and the trustees are constituted and declared to be the commissioners of the village. They are authorized to appoint a superintendent, who is to have the care and supervision of the streets and sidewalks of the village, subject to their general control and direction. They are empowered and it is made their duty, to establish such ordinances, by-laws and regulations as they may think proper and reasonable; among other things to establish the grade of the streets and sidewalks, and the cleaning of streets and sidewalks as often as may be necessary; and ample power is conferred upon the village and its trustees to raise money for the purpose of discharging the duties and obligations thus imposed upon it in reference to its streets and sidewalks.

      Held, That under such a charter it was the duty of the village to keep its streets in a reasonably safe and proper condition for public use, and that for neglect of such duty it was liable for damages to persons, without fault on their part, receiving injuries upon its streets.
    2. Same — The rule equally applicable to cities and villages.

      Held, That the rule of municipal responsibility as to streets and sidewalks is equally applicable to incorporated villages as to cities, and .that the same principles which impose liability upon one class of corporations impose it on the other.
    3. Same — Wiiat Notice Necessary to fix liability — Actual construction.
    If the municipal authorities have actual notice of a dangerous defect in a street, then it is their duty without unreasonable delay, to repair it. They do not fill the measure of their responsibility, however, by acting simply when they have actual notice, but they owe to the public the duty of active vigilance; and when a street or sidewalk has been out of repair for any considerable length of time, so that by reasonable diligence they could have notice of the defect, such notice may be imputed to them.
    4. Same — Streets — Dedication and acceptance presumed erom user.

      Held, That the fact that a street had been open for its whole width 40 years, and used extensively as such by the public; that the sidewalk had been laid out and used during all of that time, that water-mains had been laid through it, and curbs placed along the sidewalks at the expense of the village, and that the village hadcassumed jurisdiction over it, was sufficient evidence to sustain a finding by the jury that the street for its whole width had been dedicated to and accepted by, the public, and that it was legally and lawfully one of the streets of the village.
    5. Same — Interpretation oe language oe statute — Streets includes sidewalks.
    By the village charter it was made the duty of the superintendent in the month of April in each year, to report in writing to the board of trustees the general condition of the streets, etc., with estimates of-the probable expense to put them in good repair; and ten days prior to each annual village election, to report in writing to the board of trustees the condition thereof with the probable amount necessary to keep them all in good repair during the ensuing year. AVhenever any repairs shall be necessary in any • public street, the superintendent was charged with the duty of attending thereto, and when there were no funds in his hands to make such repairs, to report the fact to the board of trustees, with his opinion as to the amount necessary for such purpose, to the end that means might be provided and drafts drawn upon the particular fund belonging to the highway department to make such expenses. It was further provided that for the purpose of “ providing the means of sustaining the several departments, and defraying the expenses of the coiporation, the board of trustees are authorized to levy and collect an annual tax for the purpose and in the amounts as follows,” Subd. 1, not exceeding seven thousand five hundred dollars for the support of roads, bridges, culverts, streets, lanes and alleys within the village. Held, That the word “ streets ” should be held to mean the entire space between the outer lines of the streets, and that the money authorized to be raised under the provisions recited could be used as well for the repair of the sidewalks as of the road-bed in the centre of the streets.
    ■6. Same — Presentation oe claim — When not required — Laws 1875, ch-517.

      Held, That an objection to a claim by the plaintiffs for damages for injuries received by improper condition of the defendant’s streets, was not such a one as it was necessary to present to the auditors of the village under Laws 1S75, ch. 517.
    7. Same — Evidence — What not material error.
    _ Held, that in an action for damages for injuries so received, the admission in evidence of an ordinance of the village imposing penalties on persons ■who should neglect to keep the sidewalks in front of their lots and buildings, free and clear from incumbrances was not such an error as was harmful to the defendant.
    8. EvideNoe — Competency op.

      Held, That a witness having been called to testify as to the condition of. the sidewalks, her testimony that she fell at the place in question herself was competent.
    9. Negligence — What not, pee se.
    The accident complained of having happened in passing over a part of the sidewalk on which there was an embankment of snow and ice. Held, that-'it was not under the circumstances negligence per se for the plaintiff to undertake to pass over the embankment.
    Appeal from a judgment of tbe supreme court, general term,, third department, affirming a judgment recovered in an action, brought by plaintiff to recover of defendant damages for a fall on a sidewalk. Yerdictwas for $8,000.

      Charles S. Lester, for appl’t; L. B. Pike and Chas. M. Davidson, for resp’t.

       Affirming 31 Hun, 007, mem.

   Earl, J.

Tbe plaintiff commenced tbis action to recover damages for injuries received by ber from falling upon one of tbe sidewalks in tbe village of Saratoga Springs, on tbe ninth day of January, 1888. At that time,, snow and ice had accumulated upon the sidewalk on the southerly side of Lake avenue, opposite the premises of one Andrews, until the embankment was about, three feet thick above tbe surface of tbe ground, and two and oue-balf feet thick above tbe snow upon tbe sidewalk easterly and westerly of the premises mentioned. While she was passing along the sidewalk over this embankment sbe slipped down, and received the serious injuries of which sbe complains. Tbis snow and ice had fallen from time to time from the roof of a barn, standing near the sidewalk, and had been there for at least two weeks.

Under its charter (chapter 220, Laws 1866) the village of Saratoga Springs is constituted a separate road-district, exempt from the superintendence and care of the commissioners of highways of the town of Saratoga Springs, and the trustees are constituted and declared to be tbe commissioners of the village. They are authorized to appoint a superintendent, who is to have the care and supervision of the streets and sidewalks of the village, subject to their general control and direction. They are-empowered, and it is made their duty, to establish such ordinances, by-laws, and regulations as they may think proper and reasonable -, among other things to establish the grade of the streets and sidewalks,- to provide for and regulate the paving, repairing, and improving streets and sidewalks, and the cleaning of streets and sidewalks as often as may be necessary ; and ample power is conferred upon tbe village and its trustees to raise money for tbe purpose of discharging tbe duties and obligations thus imposed upon, it in reference to its streets and sidewalks.

That under sucb a charter, it was tbe duty of the defendant to keep its streets and sidewalks in a reasonably safe and proper condition for public use, and that for neglect of such duty it was liable for damages to persons, without fault on their part receiving injuries upon the streets, has been settled by many decisions in this state, and is no longer open to question. Conrad v. Village of Ithaca, 16 N. Y., 158; Requa v. City of Rochester, 45 N. Y., 129; Hines v. City of Lockport, 50 N. Y., 236; Todd v. City of Troy, 61 N. Y., 506; Evans v. City of Utica, 69 N.Y., 166; Weed v. Ballston Spa, 76 N. Y., 329; Saulsbury v. City of Ithaca, 94 N. Y., 27; Dubois v. City of Kingston, 102 N. Y., 219, 1 N. Y. State R. 350. The rule of municipal responsibility as to streets and sidewalks is equally applicable to incorporated villages and to cities, and the same principles which impose liability upon the one class of corporations impose it upon the other. If the municipal authorities have actual notice of a dangerous defect in a street, then it is their duty, without unreasonable delay, to repair it. They do not fill the measure of their responsibility, however, by acting simply when they have actual notice, but they owe to the public the duty of active vigilance ; and when a street or sidewalk has been out of repair for any considerable length of time, so that by reasonable diligence they could have notice of the defect, such notice may be imputed to them. So, in this case,t if all the other conditions existed for imposing liability upon the defendant, it is not claimed that the facts of the case were not such that the jury could find that the ■defendant had, or ought to have had, notice of the dangerous condition of this sidewalk.

But the defendant seeks to escape liability upon various grounds which will be separately noticed.

1. It is claimed that the place where the plaintiff was injured, ¿although used by the public, was not in fact a public street or sidewalk over which the defendant had jurisdiction. But it is undisputed that this street had been open to its full width for ¿about 40 years ; that it was one of the principal streets of the village, extensively used by the public ; that the sidewalk had "been laid out and used during all of that time ; that water-mains had been laid through the street; that the village had assumed jurisdiction over it; and that curb-stones had been placed along the sidewalks at the expense of the village. We think that there was abundant evidence from which the jury •could properly find that this street, for its whole width, had been dedicated to and accepted by the public, and that it was legally and lawfully one of the streets of the village. Cook v. Harris, 61 N. Y., 448; People v. Loehfelm, 102 N. Y., 1.

2. It appears sufficiently that the defendant either had the means to clear this sidewalk of the accumulation of ice and snow, or tbe ability to raise the means. By section 38 of the-village charter it is made the duty of the village superintendent, in the month of April of each year, to report in writing to the board of trustees the general condition of “the streets, bridges, culverts, sidewalks, lanes, and alleys, with estimates of. the probable expense 'to put them in good repair. He shall also, within 10 days prior to each annual village election, report in writing to the board of trustees the condition of the streets, bridges, culverts, sidewalks, lanes, and alleys, with the probable amount necessary to keep them all in good order during the coming year.” Section 39 provides that whenever “ any repairs shall be necessary on any public street, bridge, culvert, sidewalk, lane, or alley in said village, the village superintendent, shall attend to such repairs ; and, when there are no funds in. his hands to make such repairs, he shall .report the fact to the-board of trustees, with his opinion as to the amount necessary for such purpose, to the end that the means may be provided, and drafts drawn upon the particular fund belonging to the-highway department, to make such expenses. He shall be subject to the same direction and control of the commissioners of highways of the village in the care and supervision of the public streets, bridges, culverts, sidewalks, lanes, and alleys therein, and to the same penalties for neglect of duty, as the-overseers of highways of the several road-districts in the town of Saratoga Springs are to the commissioners of highways of said town. He shall be personally responsible to the public for neglect of duty to the same extent as the commissioners of said village.” Section 54 provides that, for the purpose of “ providing the means of sustaining the several departments, and defraying the expenses of the corporation, the board of trustees are-authorized to levy and collect an annual tax in amounts and for the purposes as follows : Subdivision 1. Not exceeding-seven thousand five hundred dollars for the support of roads, bridges, culverts, streets, lanes, and alleys within the village.”

The claim on the part of the defendant is, that, because sidewalks are not mentioned in this last section, therefore there-was no power in the trustees to raise any money for the repair of sidewalks. But in various other parts of the charter sidewalks are specially mentioned, and they are placed under the care and supervision of the trustees ; and the superintendent, under their direction, is bound to attend to and make the repairs upon them, as well as the streets. The word “ streets ” is used here in its broad sense, and was intended to include, not only the roadway for teams, but the sidewalks for pedestrians. In re Burmeister, 76 N. Y., 174. While it is made the-duty of the village to keep the sidewalks in repair, it would be-quite extraordinary if there were no provision in the charter by which it could procure fund's for the purpose of discharging-that duty. We think,therefore, that the word “streets” should be held to mean the entire space between the outer lines of the streets, including the sidewalks, and that the money authorized to be raised under that section could be used as well for the repair of the sid.ewalks as of the road-bed in the center of the streets. The only evidence given on the trial to prove that the village had no funds to repair this sidewalk was the evidence of the village superintendent, who testified that he did not have any money in his hands for that purpose. But there was no proof that there was not sufficient funds in the treasury of the village, which, under the charter, could have been placed in his hands, and used for that purpose, if he had applied for it.

8. It is further objected that the plaintiff’s claim was never presented to or acted upon by the auditors of the village, as required by chapter 517 of the Laws of 1875. A sufficient answer to this objection is that it was in no way made upon the trial, and is not presented to us by any proper exception. But it may, however, be further said that the plaintiff’s claim is not one of those which is required to be audited under that act. The claims there referred to are clearly claims for expenditures made on behalf of the village, or for services rendered for or goods or materials furnished to the village; and this claim, therefore required no audit.

'4. Upon the trial the plaintiff offered in evidence one of the ordinances of the village which imposed penalties upon persons who should throw any snow or ice from roofs upon sidewalks, and upon the owners and occupants of lots or buildings who should neglect to keep the sidewalks in front of their lots and buildings free and clear of snow and ice and other incumbrances. The defendant objected, and the objection was overruled, and the evidence admitted. In this we perceive no error harmful to the defendant. It was not held liable for failure to make proper ordinances, or to enforce the ordinance proved. So far as it had any effect whatever, it would seem to have been beneficial to the defendant, as it showed that it had so far discharged its duty by passing proper ordinances for keeping the sidewalks frée and clear of ice and snow. It had no material bearing in favor of the plaintiff, except to show that the trustees were aware of the importance of removing such obstructions from the sidewalks of the village, and of their dangerous character.

5. It is also claimed that there was error in allowing one of the witnesses to testify, against the objection of the defendant, and that she fell down once at the same place where the plaintiff was injured. She was called by the plaintiff to testify to the condition of the walk, and testified that she recollected its condition ; that the snow was packed very hard from falling from the roof of tbe bam ; that the embankment at each end was slanting and that a person had to be very careful or fall; that she knew that to be a fact, and spoke from experience ; and then she was permitted to say that she fell there once herself. That evidence was given apparently to show how she came to know the condition of the walk at that place. But such evidence has been held to be competent. Quinlan v. City of Utica, 11 Hun. 217; S. C. affirmed, 74 N. Y., 603.

6. The evidence tended to show that this embankment of snow and ice was perfectly visible ; that the plaintiff must have seen it as she passed over it; and that there was a light covering of recent snow over the ice. The defendant requested the court to charge the jury “ that if the obstruction was visible and apparent to any passer-by, the plaintiff was guilty of negligence in attempting to. cross it; ” also that, “ if the defect complained of was such as would be seen by an ordinary person passing along the street, it was negligence for the plaintiff to attempt to pass over the defect, but she'should have gone around the samé.” The court declined to charge as requested, and the defendant’s counsel excepted. The charge of the judge sufficiently laid down the rule of law as to plaintiff’s contributory negligence, and it would not have been proper for the judge to charge, as matter of law, that it was negligence for the plaintiff, under the circumstances disclosed in this case, to attempt to pass over the embankment. Evans v. City of Utica, supra; Brusso v. City of Buffalo, 90 N. Y., 679; McGuire v. Spence, 91 N. Y., 303; Bullock v. Mayor, etc., 99 N. Y., 654.

We have now noticed all the objections to plaintiff’s recovery, which were brought to our attention upon the argument of this case by the learned counsel for the appellant, and we do not think any of them furnish a sufficient reason for the reversal of the judgment. We may, however, say that the responsibility cast upon cities and-villages for injuries caused by slipping down upon streets and sidewalks in consequence of snow and ice is a very serious one. In this climate, where, during several months of the year, snow falls in large quantities, and ice is from time to time created, it is quite impossible, particularly in villages, at all times to keep the streets and sidewalks in a safe condition. In this village it appears that there were 75 miles of sidewalks, and but one superintendent, having charge of all the streets and sidewalks. It is manifestly difficult, under such circumstances for such a village to keep its sidewalks at all times clear of snow and ice ; and the proof should be very satisfactory, showing clear neglect of duty, before liability for injuries caused by snow an ice should be imposed, The evidence from which such notice could be imputed to the defendant as would charge it with negligence in not removing this embankment of snow and ice was very meager and slight, but we cannot say that ú wn>-. h<><. sufficient for the consideration of the jury. Indeed, it was ■'.<*•! claimed at the trial or on the argument before us ib:u. it vas not. Actions of this nature are becoming quite numerous, and they may well cause some alarm to those who bear the burdens of village taxation. But they must rely for their protection against unjust accident claims on the justice and sound sense of jurors, and in the power which the courts below possess to deal with verdicts which are excessive in amount, or against the weight of evidence.

We therefore reach the conclusion that the judgment should be affirmed, with costs.

All concur, except Peckham, J. not sitting.


author: Titus, J.

text:
      In re Thomas Coatsworth, Resp’t, v. Henry Thompson. impld., etc., Appl’t.

      (Superior Court of Buffalo, General Term.

    Filed, October, 1886.)
    1. SUMMARY PROCEEDINGS — PETITION — JURISDICTION — CODE ClV. PRO., § 2235.
    A precept was issued upon a petition in summary proceedings which was not verified and upon the return day the defendants being both personally served one of the defendants appeared but the matter was held by consent to a future day when the defendant T. again appeared and objected to the jurisdiction upon the ground that the petition was not verified. Held, that before a party is entitled to a precept, Code Civ. Pro., § 2235, provides that the applicant must present to the judge or justice a written petition verified in like manner as a verified complaint in an action brought in the supreme court, and that a petition not verified though complying in other respects with the statute requirements will not be sufficient.
    2. Same — Proceedings in derogation of common law -vghts.
    In proceedings in derogation of common law right'., s itutory directions must be strictly complied with, otherwise they rye ab?obi!.t ly void.
    8. Same — Unqualified appearance — Effect, of.
    The appearance of the defendant T. upon t.he return day without stating or qualifying his appearance was a general ; opearance and as far as a general appearance can bind him h.-* would be b Jund by it.
    4. Same — Adjournment by cgvjent — Effect of, on rights oj t vrties.
    The case being held beyond the return day vas in the same, positien -as. upon the return of the precept and all rights were reserved to the parties which they had upon the return.
    5. Same — Justice’s courts — Objection — Practice.
    In justices’ courts, it is a well settled rule that a party may object to a proceeding and upon the overruling of his objection file his answer and proceed with the trial.

      Henry L. Lyon, for resp’t; John C. Hubbell, for appl’t.
   Titus, J.

The defendant appeals from a judgment of the municipal court of Buffalo, in favor of die plaintiff, awarding' to him the possession of certain premises, with costs, against the defendant. It appears from the return to this court, that en tho 14th day of June, 1886, Thomas Coatsworth made application to a judge of that court for a precept against Henry Thompson and another, to put him in possession of certain lands described in the petition presented to the judge.

The petition was not verified. The precept was made returnable on the 17th day of June, and, as appears from the affidavit, was personally served on both of the defendants. Henry Thompson appeared by Mr. Hodgman, and the defendant, O’Neil, did not appear. No proceedings were taken by the judge on the return of the summons, but the matter was held by consent until June 18th, at which time the defendant Thompson again appeared by Mr. Hubbell, who objected to the court’s entertaining jurisdiction of the proceeding on the ground among others, that the petition was not verified, as required by statute, and asked to have the proceedings dismissed. The proceedings were then adjourned by consent, without waiving the objections, until June 21st, at which time the defendants did not appear ; and the court granted the order, awarding the plaintiff possession of the premises, with costs.

Before a party is entitled to a precept, section 2235 of the Code of Civil Procedure provides “ That the applicant must present to the judge or justice a written petition, verified in like manner, as a vgrified complaint in an action brought in the supreme court, describing the premises of which the possession is claimed, and the interest therein of the petitioner or the person whom he represents, stating the facts which, according to the provisions of this title, authorize the application by the petitioner and the removal of the person in possession, naming or otherwise intelligibly designating the person against whom the special proceeding ig instituted, and if there are two or more such persons, and some are under-tenants or assignees, specifying who are principal or’, tenants, and also under-tenants or assignees.”

The defendant insists-that the petition does not state in detail the facts required by the, Code to be stated. The petition does in substance describe the premises, and states the facts which authorize this proceeding, and properly designates the person ■against whom the proceedings are taken as tenants and under-tenants, and in that regard, the petition, if properly verified,, would be sufficient. But the petition is not verified as required by the statute, and each fact required to be stated in the petition on oath, rests upon the unsworn declaration of the applicant, and must be considered and treated as a simple declaration.

It is claimed by the petfjpner’s counsel that the defendant appeared in the court below and gave the court jurisdiction to-proceed without a verified petition.

Undoubtedly the appearance of Mr. Hodgman on the return of the precept without stating or without qualifying in any way bis appearance, was a general appearance, and so far as a general appearance can bind him or be considered a waiver of any objection which existed to the proceeding, he would be bound, by it. Section 2243 of the Code of Civil Procedure provides that if at the time when the precept is returnable the defendant should not appear, the petitioner must make proof of the service thereof; so that in case the adverse party does appear, the necessity of making proof of service is dispensed with. It appears, however, from the return that on the return day of the precept, no proceedings were had in the matter, but that the proceeding was held open until the 18th day of June.

It is the practice in justice’s court to hold proceedings open when a sufficient reason exists, whether the parties consent to such holding open or not. The defendant in this case, however,, consented that the case be held, and when it was again brought, before the court, it was the same as on the return day of the precept, namely, the return of the precept, and any proceeding had on that day should be considered as if had on the day named in the precept for its return. In other words the proceeding remained in statu quo, reserving to the parties all of the rights which they had on the day of its return. Clark v. Garrison, 3 Barb., 372.

If we have correctly stated the practice, then the objections which were interposed to the petition on that day have the same force and effect as if they had been interposed on the day mentioned in the precept as the return day.

It is not claimed by the plaintiff’s counsel that the petition complied with the requirements of the statute, in being verified; indeed the statute itself is express that it must be verified by the-affidavit of the petitioner, and. it has been uniformly held by the-courts of this State, that in a proceeding ’of tins character, which is in derogation of the common law rights of parties, everything required by the statute must be done or the justice will not obtain jurisdiction. Miller v. Brinkerhoff, 4 Denio., 118; Hallenbeck v. Garner, 20 Wend., 22; Everston v. Sutton, 5 Wend., 281; Hill v. Stocking, 6 Hill, 314; People v. McAdam, 11 W. Dig., 112; Wiggin. v. Woodruff, 16 Barb., 474; People v. Boardman, 4 Keyes, 59; Deuel v. Burt, 24 Barb., 438; Luhrs v. Commors, 30 Hun, 468; Simpson v. Rhinelanders, 20 Wend. 103; People ex rel. Mitchell v. Simpson, 28 N. Y., 55; People ex rel. Sheridan v. Andrews, 52 N. Y., 445.

These cases hold in substance that unless there is a strict compliance with the statute in stating the facts the proceeding is absolutely void, and confers no jurisdiction upon the justice.

If the case was held open, the defendant was in time and the objections made on that day are just as effective for the purpose of raising the question of the jurisdiction of the court below as if they had been made the moment the precept was returned.

It is a well settled, rule in justices’ courts that a party may object to a proceeding, and if they are overruled by the justice, file his answer and proceed with the triai the same as though no objection had been made, and not waive any question raised by such objections. Campbell v. Mallory, 22 How, 183; Prouty v. Prouty, 5 How, Pr., 81; Cornell v. Smith, 2 Sandf., 290; Wheeler v. Lampman, 14 Johns., 481: Shannon v. Comstock, 21 Wend., 457; Avery v. Slack, 17 Wend., 85.

We are, therefore, of the opinion that the petition not being verified as required by statute, was clearly insufficient to confer jurisdiction upon the justice, and that there was no such appearance by the defendant on the return day of the precept as amounted to a waiver of his right to mate objections to the insufficiency of the petition.

The cases cited by the counsel for the plaintiff-in his points do not hold the proposition stated. In 12 Hun, 378, there was no appearance by the defendant, and the question of waiver was not before the court. The case in 3 Abbott, N. S., p. 266, was an ordinary action in a court of record.

There was a general appearance by the defendant, and his time to answer had been extended, and the court held that it was too late to raise objection to the complaint as he should have acted promptly, and insisted on the irregularity. In Wright v. Jeffrey, 5 Cowen, where there was an irregularity in the service of the summons, the court held that in putting in bail by the defendant, the irregularity was waived. In the case under consideration there was no waiver of the right to object which was taken advantage of on the first day when proceedings were had after the return of the precept.

The judgment and qrder appealed from should be reversed with costs.