text:
    Matter of the application to compel payment by the Executors and Legatees of and by the last will and testament of Mary McPherson, deceased, of the tax imposed by chapter 483 of the laws of 1885.

      (Court of Appeals,

      Filed February 1, 1887).
    1. Taxatiost — Sower op legislature.
    The power of the legislature over the subject of taxation, except as limited by constitutional restriction is unbounded. It is for that body in its discretion, to select the objects of taxation.
    2. Same — Constitutional law — Collateral inheritance tax — Laws 1885, Ch. 483 is constitutional.
    Laws 1885, Ch. 483 is constitutional whether regarded as imposing a tax upon property or upon the succession or devolution of property by will or intestacy.
    3. Same — Constitution, art. 3, § 20 — What taxes within the scope op.
    The provision of the State Constitution, Art. 3, § 20, that every law which imposes, continues, or revives a tax shall distinctly state the tax and the object to which it is to be applied, and if it shall not be sufficient to refer to any other law to fix such tax or object, has application to the annually recurring taxes known at the time of the adoption of the Constitution, and imposed generally upon the entire property of the State, but has no reference to special taxes, which may be collected in a variety of ways under general laws. Laws 1885, ch. 483 are not within the scope of that section.
    4. Same — Constitutionality op laws — Laws upheld as constitutional IP POSSIBLE BY ANY JUST CONSTRUCTION.
    No act of the legislature may be condemned as unconstitutional if by fair implication, or any just construction of its language it can be upheld.
    5. Same — Due process op law — Laws 1885, Ch. 483, §§ 13,16.
    Laws 1885, ch. 483, § 13 provides that in order to fix the value of the property of persons whose estates are subject to the payment of the tax imposed thereby, the surrogate shall appoint an appraiser whose duty it shall be to give notice by mail to such person as the surrogate may by order direct, of the time and place be will appraise such property, and that from his report made and filed as therein directed, the surrogate shall assess the cash value of the estate, and the tax to which the same is liable, and immediately give notice to all parties known to be interested therein. Further provision is made in that section for an appeal to the surrogate from the determination of the appraiser, and by § 16 provision is also made for the citation of the parties interested, in case of a default in payment of the tax before the enforcement of the determination of the surrogate. Held, that notice and hearing for all parties interested in the tax was sufficiently provided for, and that this law did not encroach upon the tax-payer’s right to due process of law.
    6. Surrogate — Powers of — Not defined or limited by constitution.
    There is nothing in the State Constitution specifying or defining the powers or duties of surrogates.
    Appeal from a judgment of general term, third department, affirming a decree of the surrogate of Albany countj'-, imposing a tax upon the executors and legatees under the will of Mary McPherson, deceased, in accordance with the provisions of chapter 483 of the Laws of 1885.

      Hugh Reilly, district attorney, and Mark Cohn, for People. John F. Montignani, for executors. Robt. Gr. Scherer, for divers legatees, and Fugene Burlingame and Leonard Gf. Hun, for Mary E. Campbell, a legatee.

       Affirming 41 Hun, 645, mem.

   Earl, J.

Mary McPherson died in the city of Albany, on the 6th day of February, 1886, leaving a will, which was admitted to probate by the surrogate of Albany county. In her will she bequeathed legacies to various persons who were no way related to her, and upon the petition of the district attorney of that county the surrogate ordered the executors named in the will to pay the succession tax imposed by chapter 483 of the Laws of 1885. The executors and several of the legatees appealed from the decision of the surrogate to the general term, and from affirmance there to this court. The claim on the part of the appellants is that the act of 1885 is, for various reasons, unconstitutional and void; that the tax was not, therefore, lawfully imposed, and that its collection and payment cannot be rightfully enforced.

The first section of the act provides that, “ after the passage of the act, all property which shall pass by will, or by the intestate laws of this state, from any person who may die seized or possessed of the same while being a resident of the state, or which property shall be within this state, or any part of such property, or any interest therein, or income therefrom, transferred by deed, grant, sale or gift made or intended to take effect in possession or enjoyment after the death of the grantor or bargainor, to any person or persons, or to a body politic or corporate, in trust or otherwise, or by reason whereof any person or body politic or corporate shall become beneficially entitled, in possession or expectancy, to any property, or the income thereof, other than to or for the use of father, mother, husband, wife, children, brother, and sister, and lineal descendants bom in lawful wedlock, and the wife or widow of a son and the husband of a daughter, and the societies, corporations, and institutions now exempted by law from taxation, shall be and is subject to a tax of $5 on every $100 of the clear market value of such property, and at and after the same rate for any less amount, to be paid to the treasurer of the proper county, and in the city and county of New York to the comptroller thereof, for the use of the state; and all administrators, executors, and trustees shall be liable for any and all such taxes until the same shall have been paid, as hereinafter directed.”

We entertain no doubt that such a tax can be constitutionally imposed. The power of the legislature over the subject of taxation, except as limited by constitutional restrictions, is unbounded. It is for that body, in the exercise of its discretion, to select the objects of taxation. It may impose all the taxes upon lands, or all upon personal property, or all upon houses or upon incomes. It may raise revenue by capitation taxes, by special taxes upon carriages, horses, servants, dogs, franchises,, and upon every species of property, and upon all kinds of business and trades. People v. Mayor of Brooklyn, 4 N. Y., 419; Stuart v. Palmer, 74 N. Y., 183; People v. Equitable Trust Co., 96 N. Y., 387; Portland Bank v. Apthorp, 12 Mass., 252; Cooley, Tax’n, 7. Taxes upon legacies and inheritances have- been approved generally by writers upon political economy and systems-of taxation, and no tax can be less burdensome, and interfere less with the productive and industrial agencies of society. Such taxes were imposed in Nome 2,000 years ago, and are now imposed in England and several of the continental countries of Europe, and hi the states of Pennsylvania, Maryland and Virginia, and perhaps other states of this country, (Williams’ Case, 3 Bland, Ch. 186, 259; Eyre v. Jacob, 14 Grat. 422) and in 1864 (13 U. S. St. at Large, 287) a tax was imposed by the federal government upon successions to real estate. The acts imposing such taxes have frequently come before the courts, and have uniformly been upheld. Carpenter v. Com., 17 How. 456; Scholey v. Rew, 23 Wall. 331; Clapp v. Mason, 94 U. S. 589; Wright v. Blakeslee, 101 U. S. 174; Mason v. Sargent, 104 U. S. 689; In re Short’s Estate, 16 Pa. St. 63; Stinger v. Com., 26 Pa. St. 422; Com v. Freedley, 21 Pa. St. 33; Strode v. Com., 52 Pa. St. 181, Miller v. Com., 27 Grat. 110; Tyson v. State, 28 Md. 578; State v. Dorsey, 6 Gill. 388; Williams’ Case, 3 Bland. Ch. 186. The case of State v. Borsey was a curious one, possible under a state of society long since passed in this country. There the bequest of freedom to a slave was held to be a legacy within the meaning and operation of the Maryland act imposing taxes upon legacies, and the executor was compelled, to pay it.

It is not very important to determine in this case whether the act of 1885 is to be regarded as imposing a tax upon property, or upon the succession or devolution of property by will or intestacy. In either case it is a special tax. In the one case it is a tax upon the particular class of property, and in the other case a tax upon the succession or devolution of property, or the right to receive property in the cases mentioned in the statute. Whether it be one or the other, it is free from constitutional objection.. It has never been questioned that the legislature can impose a tax upon all sales of property, upon all incomes, upon all acquisitions of property, upon all business, and upon all transfers.. Taxes of a similar character were quite extensively imposed by the acts of congress passed duriug the late civil war. If this be regarded as a tax upon property, then it is free from constitutional objection if it be equally imposed and properly apportioned upon all the property of the class to which it belongs.. A tax imposed for the general welfare upon a particular house,, or the houses of a particular neighborhood, would be amenable-to constitutional objection; but, if imposed upon all the houses in the state, then it is a tax imposed upon all property of that, class, and is amenable to no objection.

It is also objected that this tax is not constitutionally imposed' because there is no compliance in the act with section 20 of article 3 of the Constitution of this State, which provides that “ every law which imposes, continues or revives a tax shall distinctly state the tax and the object to which it is to be applied,, and it shall not be sufficient to refer to any other law to fix such tax or object.” Section 1 of tins act requires that this tax shall be paid “ for the use of the State,” and that is the only designation of the object to which the tax is to be applied. If we were obliged to hold that this constitutional provision is applicable to this case, we should have difficulty to determine that the object of the tax is sufficiently stated. It has been held that the object is sufficiently stated if the act imposing a tax provides that it shall be paid to the credit of the general fund. , People v. Supervisors of Orange County, 17 N. Y. 239; People v. Home Ins. Co., 92 id. 335.

The decision which first announced this doctrine greatly impaired the value of the constitutional provision, because when nthe tax has once been paid into the general fund, it may be appropriated by the legislature to any of the innumerable objects,, ordinary, and extraordinary for which the State may need money; and thus any information given to members of the legislature, or to taxpayers,by such a statement of the object of the tax, is more illusory than real. But it must be assumed that the constitutional provision still has some value, and it should not be entirely nullified by judicial construction, as it would be if we should hold that this act sufficiently states the object of the tax within the meaning of the Constitution.

But we are of opinion that this section of the Constitution is not applicable to this case. In terms it applies to ¿very tax which the legislature can impose, and is not confined to a property tax. It is not, even by its terms, confined to a general tax-embracing the whole State; but the language, literally construed is broad enough to embrace every local tax imposed for local purposes. As stated above, taxes may be imposed upon a greater variety of objects. They may be direct or indirect, special or general, and they may be imposed in the shape of excise and licenses, upon hawkers, peddlers, auctioneers, insurance agents, liquor dealers and others. All the contributions for the support of the. government, enforced from individuals in the various ways, mentioned, are, properly speaking, taxes. Notwithstanding the. general language of the section referred to, we do not think it was intended, to apply to every tax which the legislature could impose, and so it has been held.

The object of the constitutional provision was to convey information to the members of the legislature and to the people, and it should have a practical construction, with a view to accomplish its purpose so far as attainable, and to carry out the policy which we may assume dictated it.

The tax imposed by this act is a permanent one. It is always uncertain upon whom it will fall and how much revenue it will produce.

It would have been impossible for the legislature, perhaps years in advance, to specify the particular objects to which the tax should be applied, and we are of the' opinion that this section of the Constitution was intended to apply to the annual recurring taxes known at the time of the adoption of the Constitution and imposed generally upon the entire property of the state. The legislature would know definitely the objects for which such taxes were imposed, and could anticipate with some certainty the amount winch they would produce; and in their imposition it was deemed important by the framers of the Constitution that the object of the tax should be stated. But we do not think that the policy embodied in the section had any reference to special taxes which may he collected in a variety of ways under general laws, such as auction duties, excise duties, taxes on business or particular trades, avocations or special classes of property. It has been held in several states where constitutional provisions required that property taxes should be equal and uniform, that such provisions had reference only to general, annual recurring taxes upon property generally, and not to special taxes upon privileges, or special or limited kinds of property. It was said in the Sun Mutual Ins. Co. v. City of New York, 5 Sandf. 10, by Oakley, Ch. J., in speaking of this constitutional provision, that it might be “seriously doubted whether it ought not to be construed as relating exclusively to the imposition of a general tax for state purposes, and not at all to the imposition of a local tax for local objects.”

In People v. Moring, 3 Abb. Ct. App. Dec. 539, the courts had under consideration the acts of 1846 and 1866, imposing duties upon auctioneers and brokers, and the acts were challenged as in contravention of this section of the Constitution and HuNT, J., writing the opinion of the court, expressed concurrence with the intimation of Judge Oakley in the case last cited, and said that this section “ was not intended to be applied to laws which impose duties, fees or excises on particular professions, classes of trade, or individuals, but that the same relates only to a general tax upon the property of the state that “ this section, I have no doubt, contemplates a general tax upon all the property of the state, and was not intended to be satisfied with or to apply to a local tax upon a particular section, ox to a tax imposing fees or duties upon trades or individuáis, although the same are direct taxes equally as if imposed upon the entire property of the state.” It was said by FiNCH, J., in People v. Fire Ass’n of Philadelphia, 92 N. Y. 311, that the tax covered by the constitutional provision is one general in its provisions and co-extensive with the state.

It is thus seen that there are cases where the language of this section of the constitution must be restricted by construction, and we think this is one of the cases.

This tax is imposed according to the value of the legacy and collateral inheritance liable to be taxed, and hence there must be some mode of ascertaining that value ; and for that purpose judicial action is requisite at some stage of the proceedings before the liability of the tax-payer becomes finally fixed. He must have some kind of notice of the proceeding against him, and a hearing or an opportunity to be heard in reference to the Value of his property, and the amount of the tax which is thus to be imposed. Unless he has these, his constitutional right to due process of law has been invaded. Stuart v. Palmer, 74 N. Y. 183; Railroad Tax Case, 8 Sawy. 238; Hagor v. District No. 108, 111 U. S. 701, 663. This act is assailed as unconstitutional and void becanse it is claimed it does not give the tax-payer such notice and hearing.

While the provision for notice is not as clear and explicit as it might have been, yet we are constrained to believe thatit is sufficient. Section 13 provides that, in order to fix the value of the property of persons whose estates are subject to the paj^ment of the tax, the surrogate, upon the application of any interested party, or upon his own motion, shall appoint some competent person as appraiser as often as and when occasion may require whose duty it shall be forthwith to give such notice by mail, and to such persons as the surrogate may by order direct, of the time and place he will appraise such property, and at such time and place to appraise the same at its fair market value, and make a report thereof to the surrogate, together with such other facts in relation thereto as the surrogate may by order require, to be filed in the office of the surrogate ; and from this report the surrogate shall forthwith assess and fix the then cash value of all estates, annuities, and life-estates or term of years growing ou't of said estate, and the tax to which the same is liable, and shall immediately give notice thereof by mail to all parties known to be interested therein. With a view of upholding the constitutionality of the act, this and all the other sections of the act must be liberally construed, as no act of the legislature may be condemned as unconstitutional if by fair implication, or any just construction of its language, it can be upheld. The surrogate who has admitted a will to probate, or granted letters of administration, will ordinarily have in his possession information as to the person interested in the estate to be administered; and hence this section imposes upon him the duty of selecting the persons to whom notice is to be addressed by the appraisers ; and, as all persons interested are entitled to notice, it is a fair inference that it was intended that he should direct notice to be given to all such persons. He is a judicial ■officer, in whose court proceedings are conducted in an orderly manner, and all persons interested in any question to be determined by him are entitled to notice and a hearing. It was intended that this proceeding for the imposition of a tax should be conducted in an orderly way, as is required in other proceedings in his court. Therefore, when the section provides that he shall designate by order to whom the notice is to be given, it is .necessarily implied that he shall designate all the persons entitled to notice. If he should omit to do so, it would be an error, on account of which any tax imposed upon the person not notified or heard would be invalid as having been imposed without jurisdiction. It is also provided that, immediately after he has assessed the tax, the surrogate shall “ give notice thereof by mail to all parties known to be interested therein.” This gives a further opportunity to the tax-payer to be heard. Upon receiving the notice, if he has had no prior notice or hearing, he may apply to the surrogate, and ask for one, and it would be his duty to grant it. The proceeding is in court before a judicial officer, and whatever a tax-payer can ask, as a matter of constitutional right, it is the duty of the surrogate to grant.

Then there is the right of appeal provided for in the same section. Any person dissatisfied with the appraisement or assessment may appeal therefrom to the surrogate fef the proper county on paying, or giving security to pay, all costs, and the tax as fixed by the court. Upon such appeal there is another opportunity to be heard. The appeal is not limited to questions of law, but may be taken to the surrogate upon both the law and the facts, and he has ample power to correct any error brought to his attention. For the purpose of making such correction, .he is not bound by the estimate of the appraisers, or by the facts which appeared before him, but he may hear such new evidence and allegations as may be properly presented to him.

There is still further opportunity to be heard under section 16 of the act. It is there provided that, if it shall appear to the surrogate’s court that any tax accruing under the act has not been paid according to law, it shall issue a citation citing the persons interested in the property liable to the tax before the court on a day certain, not more than three mouths after the date of such citation, and show cause why the tax should not be paid; that the service of such citation, and the time, manner, and proof thereof, and the hearing and determination thereon, and tbe enforcement of the determination or decree, shall conform to the provisions of the Code of Civil Procedure for the service of citations now issuing out of surrogates’ courts, and the hearing and determination thereon, and its enforcement.

So, too, under this section, after the tax has been imposed, in person can be compelled to pay it until a citation has been regularly served upon him, and he has had ample opportunity to be heard. Upon the return of the citation it is not specified in the section what cause can be shown against the payment of the tax; but it is clear that the person thus cited may allege any reason whatever which shows that he ought not to pay it. He may answer that he has not had an opportunity to be heard upon the appraisal, and that, therefore, the tax as to him is void. He may show any error affecting the validity of the tax, or that he has never received, and never will receive, the inheritance or legacy; and it would undoubtedly be a justification for refnsing to pay that he had absolutely renounced and refused to accept or receive the inheritance or legacy. If the surrogate should err in his decision, there would be the right of appeal to the supreme court and the same right which parties have in otoer cases to bring to this court for review the decisions of surrogate’s courts.

So in all of those modes we think there is sufficient provision for notice and hearing for all parties interested in the tax, and we have no doubt that the act secures to every tax-payer due process of law so far as it is applicable to cases of taxation.

It is also objected that the act confers powers upon surrogates’ courts not authorized by and contrary to the Constitution. There is nothing in the Constitution which in anyway specifies or defines the powers or duties of surrogates. They are recognized in various sections of the Constitution, and they haue been known to the law of this State since the foundation of our government. Their jurisdiction has from time to time been denned in the statutes, and from time to time extended and enlarged. Surrogates’ courts have always had jurisdiction of the administration, adjustment and settlement of the estates of deceased persons, and the imposition and collection of this tax are simply incidents in the final settlement and adjustment of such estates, and are in no way foreign to the jurisdiction which has generally been exercised by such courts, certainly not so foreign as to make the act obnoxious to any constitutional objection.

The learned brief submitted by Mr. Hun, on the part of the appellants, points out many imperfections in tins act, and shows that there will be great embarrassment and difficulty in executing the act in the cases of contingent remainders and expectant estates, and in some other cases. The criticisms made by him upon the act are well worthy of the attention of the legislature. Hut even if, in some of the respects pointed out by him, it should be found tbat the act is inoperative and impractical, yet on that account we see no reason for condemning the entire act.

If it should be wholly inoperative in cases of contingent and expectant estates and in some other cases mentioned by him, yet it can operate without difficulty or embarrassment in the great majority of cases Coming within its purview. A majority of persons having property die intestate, and a majority of those disposing of property by will do it by simple bequests or devises, and the cases of contingent and expectant estates are not very common. There is no reason, therefore, for condemning the whole act, because possibly in some cases it could not have operation according to the intent of the legislature. We cannot say that the legislature would not have enacted it if they had known that it would be confined in its operation to simple cases of intestacy and wills containing nothing but absolute devises and bequests, as to which there is no difficulty or embarrassment in executing the act.

We are, therefore, of opinion that there is no constitutional objection to this act which affects this case, and that the order should be affirmed, with costs.

All concur, except Rapallo, J., not voting.


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    Philip Beeker et al., Assignees, Resp’ts, v. Harry H. Koch Appl’t.

      (Court of Appeals,

      Filed March 1, 1887.)
    1. Practice — Appeal to court op appeals — Wiiat orders appealable —Code Civ. Pro., § 1301, 1316.
    An order of the general term overruling exceptions ordered to be heard in the first instance at the general term and ordering that judgment on the verdict he entered, is not such an intermediate order as is referred to in section 1301, or 1316, Code Civ. Pro., and no appeal would lie from it to the court of appeals. But after the entry of judgment an appeal from such judgment brings up for review the exceptions taken by the appellant upon the trial.
    2. Same — WitNess — Credibility.
    In this case there was an issue of fraud in the making of an assignment by the assignor, and the defendant called the assignor as a witness who testified to facts concerning entries in the regular account books in his business which of themselves showed fraud, upon further examination, these facts and circumstances were explained so as to remove the fraud. This explanation was uncontradicted by other witnesses. The defendant then rested and a verdict in favor of plaintiff was thereupon directed by the court. Held, the whole evidence of the witness should have been submitted to the jury for them to pass upon its credibility. That they were at liberty to believe one portion and disbelieve another. (Branch v. Levy, 49 Super. Ot. 428, overruled.

    3. Same — Contradiction oe one’s own witness — Impeachment oe.
    The rule which prohibits a party fiom impeaching his own_ witness applies to three cases only, viz. (1) The calling of witnesses to impeach the general character of the witness; and (2) the proof of prior contradictory statements by him; and (3) a contradiction of tlie witness by another when tlie only effect is to impeach and not to give any material evidence upon any issue in the .case.
    Appeal from an order of tbe superior court of the city of Buffalo general term denying defendants motion for a new trial upon exceptions heard at the general term in the first instance, and from a judgment on a verdict for plaintiff entered upon said order.

      Charles B. Wheeler, for appl’t; Baker Schwartz, for resp’ts.
   Peckham, J.

This action was brought by the plaintiffs, as assignees for the benefit of creditors of one Exstein, to recover from the defendant the possession of some personal property, amounting in value to about $4,000, or, in default thereof, to recover such value. The defendant justified the taking of the property by virtue of a writ of attachment issued to him as sheriff of Erie county in an action in which Victor and others were plaintiffs, and Exstein was defendant, and under which writ the sheriff had levied upon this property as belonging to the said Exstein. The assignment to plaintiffs was made on the seventeenth of October, 1883, and included the property in question. The attachment was, on the fourteenth of November, levied on the property, and after the plaintiffs in the attachment suit recovered judgment against Exstein, the property was sold on an execution issued thereunder to the defendant. The answer in this action set up these facts, and alleged that the assignment to the plaintiffs was made with the intent, on the part of Exstein, to hinder, delay, and defraud his creditors. The action came on for trial in the superior court of Buffalo, and, after the evidence was all in, the court directed a verdict for the plaintiffs for a return of the property to them, or for the value thereof, assessing the same at $3,800. A stay of proceedings was granted, and the defendant’s exceptions were ordered to be heard at the general term in the first instance.

The general term, after argument of such exceptions, overruled the same, and directed judgment for the plaintiffs on the verdict. Thereupon an order was entered which in form treated the defendant as having made a motion for a new trial on the exceptions ordered to be heard in the first instance at general term, and, after reciting such fact, continued thus : “ Ordered, that such motion be, and the same hereby is, denied, with costs; that the said exceptions be, and the same hereby are, overruled, and judgment for the plaintiffs on the verdict is hereby ordered.” Judgment in accordance with the order was subsequently entered. The defendant then appealed from the order above mentioned to this court, and also from the judgment entered upon such order.

The plaintiffs now malee the claim that the appeal from the order should be dismissed, and that the appeal, from the judgment brings up nothing for review but the question whether the judgment appealed from is in accordance with the order of the general term, as there was no statement in the appeal from the judgment that the appellant intended to bring up for review any intermediate order, as pointed out by sections 1301 and 1316 of the new Code. There is no foundation for the claim. The exceptions of the appellant were ordered by the trial court to be heard, in the first instance, at the general term, and it was pursuant to such direction that the argument of such exceptions was then had, and the decision of the court upon such argument was made in the form of an order, and that order was simply a written authority upon which to enter the judgment, and was not such an intermediate order as is referred to in section 1301 or 1316, and no appeal would lie from it to this court. But, after the entry of judgment, an appeal from such judgment brings up for review the exceptions taken by defendant upon the trial. The appeal taken by defendant from the order, as -well as from the judgment, was useless, but evidently taken from more abundant caution ; and, if that were the only appeal in the ease, it would have to be dismissed as unauthorized, yet, as it is taken in connection with the appeal from the judgment which brings up all the exceptions for review, there is no necessity to formally dismiss the appeal from the order. But upon the merits of the appeal, quite an important question arises in relation to the law of evidence. The court directed a verdict for the plaintiffs, and if, therefore, there were evidence enough to authorize a submission of the question of fraud to the jury, the judgment must be reversed. We think there was, and had it not been for the rule of law adopted by the court below, we suppose that court would have been of the same opinion. That rule was that as the defendant called a witness by whom he attempted to prove the fraud, and as that witness denied it, the defendant was bound by that denial, in the absence of contradiction by some other witness, even though the jury might think some parts of the evidence of the witness clearly showed its existence. To show exactly how the question arose and what was decided by the court, some reference must be made to the testimony, although it will be unnecessary to allude to it at all.

The assignor, Exstein, was a merchant engaged in a large business in Buffalo. He kept regular books of account in his business, which were produced upon the trial, and he was called as a witness for the defendant, and gave evidence in relation to the books and upon other matters. His assignment was made on the seventeenth of October, and on the sixteenth of that month he made entries in several accounts, which he kept, crediting quite large sums of money to the different persons named in such accounts, the result of which entries was to cause it to appear by the books, that the assignor was in their debt to a somewhat large amount, while if the entries as of the sixteenth of October were stricken out it would then appear that the parties instead of being creditors were in reality debtors of the assignor. When on the stand he substantially stated that if those entries were stricken out, the state of affairs between himself and those persons would be as represented in the books, or, in other words, that excluding those entries and the circumstances upon which they rested, some of these persons would be his debtors. He also said that these entries did not in fact represent any actual transactions occurring at the time when they were made, and that no valuable or other consideration passed between him and those parties at such time. Stopping with these facts it would appear then that credits were given these persons the day before the assignment, upon which some of them drew out moneys from him, and upon the basis of which one was made a preferred creditor in the assignment, and yet such entries represented no actual present transactions happening at the time when they were made.

Unexplained it would appear that as a result Exstein had provided for the payment of large sums of money, or had already, and in view of his assignment, paid such sums to persons whom he did not owe, or in other words, he had paid and also made provision in his assignment for the payment of fictitious debts. The defendant, however, proceeded with his examination of this witness, and asked for an explanation of these entries and the facts or circumstances upon which they were based, and the witness proceeded to give it. The explanation was, if true, sufficient in law, and showed that he did owe the persons the amounts he claimed to, with the possible exception of one or two cases in which the defendant claims that even on the basis of the gen eral truth of the explanation, the witness had charged himself in reality with more than he owed. The defendant then rested, and the plaintiffs, with the evidence in this state, asked for a verdict in their favor by the direction of the court, and obtained it.

The court held in substance that the books of the witness Exstein showed a prima facie case of an indebtedness of the witness in the amounts therein appearing, and to the persons therein mentioned, and the witness said they were correct. He then stated what has already been alluded to as to those entries made on the sixteenth of October, and continued by explaining the facts upon which they were based. This explanation the court said was totally uncontradicted by any other witness, and ■defendant was, therefore, bound by what Exstein said on that subject, for the reason that he could not discredit or impeach him, and must take what he said as, under the circumstances of the case, true.

If that were the true rule the court was correct in directing a Yerdict. The general term, it must be presumed, also took the same view of the ease in directing judgment for the plaintiffs, without delivering auy written opinion.

The general rule prohibiting the impeachment or discrediting of a witness by the party calling him was extended too far in this case. Here was an issue of fraud in the making of an assignment by the assignor, and the defendant, in order to prove its existence, called the very man as a witness whom he alleged was guilty of the fraud. He might well be regarded, therefore, as an adverse witness whom the party, by the exigencies, of his case, was obliged to call.

With regard to such witnesses, it is well settled that all the rules apjolicable to the examination of other witnesses do not in their strictness apply. An adverse witness may be cross-examined,'and leading questions may be put to him by the party calling him, for the very sensible and sufficient reason that he is adverse, and that the clanger arising from such a mode of examination by the party calling a friendly or unbiased witness does not exist.

What favorable facts the party calling him obtained from such a witness may be justly regarded as wrong from a reluctant and unwilling man, while those which are unfavorable may be treated by the jury with just that degree of belief which they may think is deserved, considering their nature and the other circumstances of the case.

Starkie, one of the ablest and most philosophical of English writers on this branch of the law, in speaking of a reluctant or adverse witness, uses almost the precise language above stated, and which has been substantially quoted from him. Starkie Ev. (9th ed.), marg. p. 248. Sometimes rather loose language has been indulged in to the general effect that a party cannot impeach his own witness, but when an examination is made as to the limits of the rule, the result will be found to be that it only prohibits this impeachment in three cases, viz. : (1) the calling of witnesses to impeach the general character of the witness, and (2) the proof of prior contradictory statements by him ; and (3) a contradiction of the witness by another, when the only effect is to impeach, and not to give any material evidence upon any issue iu the case. Lawrence v. Barker, 5 Wend. 301-305; People v. Safford, 5 Denio, 112; Thompson v. Blanchard, 4 N. Y. 303-311; Coulter v. Express Co., 56 N. Y. 585; 2 Starkie, Ev. (9th Amer. Ed.) marg. pp. 244-250; 2 Phil. Ev. (C. & N. & Ed. notes) marg. pp. 981-983, and note 602; 1 Greenl. Ev. § 442.

In regard to the first class, the rule has been stated to rest upon tbe theory that, when a party calls a witness, he presents him to the jury as worthy of belief, and to allow him to call witnesses thereafter to impeach his general character as a man would be to permit an experiment to be made upon the jury by producing a person as worthy of belief, whom he knows, and has witnesses to prove, to be the contrary, and, if his evidence be favorable, to get the benefit of it, and, if the reverse, to overwhelm it by the impeaching witnesses. In such a case as this, however, there is no deception. The defendant calls the very man he accuses of the fraud as a witness to prove it, and says in effect to the jury that such evidence as the witness gives, which tends to show the perpetration of the fraud alleged, is forced from him by the exigencies of the case, ■and the surrounding facts which cannot be denied, while that which he gives which looks towards an explanation of the fraud the jury shall give such faith to as, under all the facts in the case, they may think it entitled to.

As to the second class in which an impeachment is forbidden, the authorities in England were in conflict, many of the judges thinking it allowable to prove prior contradictory statements by a witness ; but the weight of authority was against it, thereby creating the occasion for an interference by the legislature with the law of evidence, which passed an act permitting just such evidence under certain restrictions. See Common Law Procedure Act of 1854, (17 & 18 Vict. ch. 125, § 22.) The non-admissibility of such evidence in the courts of this state is, of course, not open to discussion. It is alluded to only to show the opinion of the English parliament (in matters of this nature almost exclusively guided by lawyers) upon this question of impeaching one’s own witness, and the readiness of that body to alter the law of evidence in the direction of what seemed to it greater opportunity of ascertaining and administering that for which all courts are instituted, viz., truth and justice.

The third of above classes where no impeachment is allowed, is plainly set forth in several of the cases and text-books above cited. It is not admissible, even in the case of a witness called by the other side, to impeach him by proof of prior contradictory statements on immaterial or collateral issues ; and there is not much difference in the two cases, and therefore no reason why it should be allowed with reference to one’s own witness. But all the cases concur in the right of a party to contradict his own witness by calling witnesses to prove a fact material to the issue to he otherwise than as sworn to by him, even when the necessary effect is to impeach him.

Why should not the right exist to show that a portion of the evidence of your own witness is untrue by comparing it with another portion of the evidence of the same witness? The courts below say in effect that although a portion of Exstein’s evidence shows that he provided for payment in his assignment for fictitious debts, yet the other portion of his evidence — if believed — shows that such debts weje not fictitious, and although the defendant was at liberty to call other witnesses to prove that the explanation was false, yet as he did not do so the explanation must stand as matter of law, and he cannot be heard to contend that - it is proved false by its own absolute and inherent improbability. We do not believe, at least in such a case as this, that the rule goes to any such length.

The plaintiffs cite the case of Branch v. Levy, 46 N. Y. Super. 428, as upholding the rule laid down by the trial court. The plaintiffs there brought an action to recover damages from defendant for the non-delivery of coupons bought from the defendants’ agent as plaintiffs claimed, but defendants denied the agency, and alleged they had sold the coupons to the person whom plaintiffs alleged was their agent, and had no liability for his subsequent acts. On the trial the plaintiffs-sustained their claim prima facie by certain letters and circumstances which — as the court said — in the absence of explanation by defendants, made a question for the jury. The plaintiffs then for some inexplicable reason called one of the defendants, who swore that the person selling the bonds to the plaintiffs was not the agent of the defendants, but they had simply sold him the bonds. The court held the plaintiffs concluded by this evidence and that they must take it as wholly credible ; that' credibility could not be divided and that it was attached to the moral character.

That case comes very near the one under discussion, and it is hard to see why the plaintiffs should not have been allowed to go to the jury upon the whole of their case, letters, documents and explanation and why they .should not have been allowed to ask the jury to believe the documents and letters and reject the explanation as in their judgment untrue. To say that credi- • bility is a part of the moral character and indivisible is to run counter to the well-established rule as to adverse witnesses above referred to, whose testimony you may ask a jury to believe in part, and to disbelieve the residue. The case ought not to be followed.

It is a good general rule that the credibility of a witness is-matter for the jury, and the fewer technical obstructions there-are to the practical operation of that rule the better.

We think that the whole evidence of Exstein in this case should have been submitted to the jury for them to pass upon its credibility, and that they were at liberty to believe that-portion which tended to show the debts to be fictitious and to disbelieve the explanation, or that they might regard it as sufficient just as in their judgment, intelligently and honestly exercised, they might determine.

Of course we do not mean by this decision to give any intimation as to which view should be taken by the jury, we only decide that it was a question for them and not the court.

The judgment should be reversed, and a new -trial granted; costs to abide the event.

All concur.


author: Earl, J.

text:
    Gazena C. Jones, Resp’t, v. Ida V. Fleming, et al. Appl’ts.

      (Court of Appeals,

      Filed March 1, 1887.)
    Dower — Election to take pecuniary provision in lieu of — 3 Rev. Stat. (7 ed) p. 2198, §§ 13-14.
    A pecuniary provision of §3400 for tlie plaintiff in lieu of her dower was made and placed in her absolute control by the committee and children of her husband, who was then alive but a lunatic. In an action to have dower admeasured, held, that under 3 Rev. Stat. (7 ed.) p. 2198, §§ 13-14, the widow may make her election at any time within one year, and if she does not elect to take her dower within one year, she will be deemed to have elected to have taken the provision made for her in lieu of dower. That when she has made her election to take the provision, her right of dower is barred. That the keeping of said'provision after her husband’s death was such an election.
    2. Same — Married woman’s act — Agreement to release — Separate estate — Consideration.
    Three suits were pending against plaintiff and others which related to what she claimed to be her separate estate, and they were settled and discontinued and choses in action valued at 8 3400 were transferred to and received by her as her separate estate. The consideration therefor being an agreement in writing in which plaintiff agreed among other things to execute and deliver such further deeds or releases as might be necessary to the full and perfect release of all her inchoate right of dower, etc. Held, that her agreement was one by which she received a separate estate and related thereto and was binding upon her under the married woman’s act. That the agreement was based upon an adequate consideration.
    3. Same — Agreement to release dower.
    The agreement and deed executed thereunder by plaintiff, then a feme covert, could not operate as a present release of her inchoate right of dower, yet she was competent to enter in the agreement to execute a valid release of her dower after her husband’s death.
    Appeal from a judgment of the supreme court, general term, fourth department, affirming a judgment in favor of plaintiff, entered upon the report of a referee in Jefferson county, the action being brought to recover dower.

      D. O'Brien, for appl’ts; Elon JR. Brown, for resp’t.

       Reversing 37 Hun, 227.

   Earl, J.

The plaintiff commenced this action to recover dower in certain lands mentioned in the complaint, as the widow of James Jones, deceased, against liis children and heirs at law. The defendants interposed as a defense to the action that at tbe time of plaintiff’s marriage with Jones slie bad another husband living, and also that she had released, and agreed to release, any dower right that she had in the lands. Upon the trial before the referee appointed to hear and determine the action, it appeared that the plaintiff was married to one Firth in 1855; that she lived with him as her husband until 1861, when they broke up housekeeping, and never thereafter lived together; that in October, 1875, claiming that Firth had absented himself for more than five successive years, without being known to her to be living during all that time, she married Jones, and that he died on the 28th day of October, 1880, seized of the lands in which she claims dower. The defendants gave evidence tending to show that Firth had not absented himself within the meaning of the statute 3 Rev. Stat., 7th ed., 23, 32, § 6 for five successive years, and claimed that her marriage with Jones was, therefore, null and void. They also offered to prove certain proceedings instituted in the supreme court in 1877, for the purpose of having Jones declared a lunatic, and for the appointment of a committee of his person and estate. The records of those proceedings show that the jury summoned for that purpose found him to be a lunatic since the 15th day of June, 1877, and incapable of the government of himself and the management of his estate; that there was a final order entered February 9, 1878, confirming the inquisition of the jury, and appointing William H. Miller committee of the person and estate of Jones, and that the committee qualified by giving the requisite bond. The records in those proceedings were objected to by the plaintiff’s counsel as incompetent and immaterial, and were excluded by the referee. The defendants also offered in evidence a petition dated February 15, 1878, by Miller, the committee, addressed to the supreme court, which alleged, among other things, that while Jones was a lunatic, he was induced by the plaintiff to deliver to her bonds, notes and other choses in action, amounting in the aggregate to $9,000: that she afterward transferred and delivered some portions of the property to divers other persons, and that she had delivered between $500 and $1,000 of such property to one Leavitt, who then held the same, and he prayed for an order authorizing him to commence an action against the plaintiff to annul her marriage with Jones, and also actions against her and Leavitt and other persons who might have any of the personal property of Jones in their possession, to recover the same. They also offered in evidence an order of the supreme court made February 25, 1878, authorizing the commencement by the committee of the suits mentioned in the petition; a summons and complaint in an action wherein Jones, by his committee, was plaintiff, and this plaintiff was defendant, to annul her' marriage with Jones; the answer of the defendant in that action ; a summons and complaint in the supreme court in an action by Jones, by Miller as committee, against the present plaintiff, commenced March 1, 1878, which complaint, among other things, alleged that Jones was the owner of personal property of the value of about $3,000; that his committee was entitled to the possession of the property, and that she declined to deliver the property to the committee, and unlawfully detained the same from him, and demanded judgment for the recovery of the property; also the defendant’s answer in that action, in which she admitted that she had possession of the property, but alleged that it had been given to her by Jones, and that she was the owner thereof; also a summons and complaint in an action in the supreme court by Miller, as committee of Jones, against Leavitt, commenced March 15, 1878, which complaint alleged that Jones \yas the owner of personal property of the value of $500, which the committee was entitled to the possession of, and that Leavitt had converted the same, and demanded judgment for the value thereof; also the answer of Leavitt, which admitted that he had possession of the property, but alleged that the same had been delivered to him by Mrs. Jones, and that she was the owner thereof; also a summons and complaint in the action in the supreme court by Miller, as committee of Jones, against one Standring, commenced March 15, 1878, which complaint alleged that Jones was the owner of personal property of the value of about $4,000, which the committee was entitled to the possession of, that Standring had possession of the same, and declined and refused to deliver the same to the committee, and it demanded judgment for the recovery of the property; and also the answer of Standring, in which he alleged that the property had been left with him by Mrs. Jones for safe-keeping, and that the same was owned by her: The plaintiff objected to all the evidence thus offered as incompetent and immaterial, and the referee sustained the objection.

The defendants then offered in evidence an agreement dated January 28, 1880, between the plaintiff, of the one part, and Ida Y. Fleming, Ellen A. Van Ness, and Julia E. Zoller, described as the only children and prospective heirs of James Jones, a lunatic, and William H. Miller, a committee, of the other part, which recited and stated as follows : “ That whereas, four suits have been commenced and are now pending in the supreme court, brought by said committee against the party of the first part, Mrs. Jones, and against persons representing her claims, as follows, to wit, [here the suits above mentioned are described,] it having been this day agreed between the parties that all of the said actions be discontinued, and the same having been discontinued, the said committee and said three daughters of James Jones have stipulated and agreed that of the property involved in said suits the sum of $3,400 shall be released to and is hereby delivered-to said Gazena C. Jones, the receipt whereof is hereby confessed and acknowledged, and a general settlement being made this day between all the parties hereto, now, therefore, in consideration of the premises, and of the said $3,400 duly paid to me, I hereby release, transfer, assign, and set over to the said committee, and said three daughters of said James Jones, all my right, title, and interest, including my inchoate right of dower, (if any such exists,) of, in, and to any and all real estate that said James Jones had on the twelfth day of October, 1875, or that he has since acquired, and also of, in, and to all his personal estate, and of, in, and to any personal estate he may own at his death; the intent being to release all right, inchoate or otherwise, that I have or may have in the estate of said James Jones; and in consideration of the premises, and of the said $3,400, hereby covenant and agree to and with said committee, and the three daughters of said James Jones before named, that at any future time, on demand of the parties hereto, I will execute and deliver such further or other deeds, releases, or transfers as may be necessary to perfect this arrangement, and carry out the intention of the parties thereto, namely, the full and perfect release of all my inchoate or other rights in the property of said James Jones; and I hereby relinquish to said Miller, the committee, all rights that I now have, as the committee of the person of the said J ones, and agree to give full possession of the house and premises where I now am, on Monday, February 2, 1880.” This was signed by Mrs. Jones, and acknowledged on the same day. The defendant also offered in evidence a quitclaim deed dated and acknowledged on the same day from plaintiff to the three children and to Miller, the committee, in which she released to them all her right, title, and interest in and to all the personal property of Jones that came into her possession at any time prior to the date of the instrument, except such articles as were brought to Jones’ house by hex, or bought with her own money; and she released, assigned, and transferred to them, and their heirs and assigns, all the interest which she had, or might thereafter have, including any inchoate right of dower in any land to which Jones had title ;• and she also released to the parties of the second part any' contingent interest in any personal estate which Jones might own at his death; and she covenanted with the parties of the second part not to make any claim therefor on the death of Jones, and that she would in the future, on demand of any one interested, make such further deeds, conveyances, or transfers as might be necessary to carry out the true intent and object of the parties, namely, to release all rights, inchoate or otherwise, which she had or might have in any property which J ones might have at the time of Ms death; and she acknowledged that the instrument was made as a part of the general settlement wMch appeared by the agreement bearing even date with the deed, and signed by her. She also agreed to give np the possession of the house on and before the Monday following,-together with all the appurtenances thereto belonging. The defendant then offered in evidence a stipulation of the respective attorneys in the four actions mentioned in the agreement, discontinuing the same, without costs, as against each other, also dated January 28, 1878. The plaintiff objected to the agreement, the deed; and stipulation as immaterial and incompetent, and the referee sustained the objection, and excluded the evidence.

The defendants then offered to prove that, after the time specified in the inquisition that Jones became a lunatic, the plaintiff wrongfully obtained from him over $7,000 worth of personal property, a portion of which she transferred to Standring and Leavitt; that an action was brought against her in the name of Jones by his committee to set aside her marriage with Jones; that actions were also brought by the committee of Jones against her, Standring and Leavitt to recover the personal property so obtained by her from Jones; that during the pendency of those actions a settlement was made between Miller, the committee of Jones, and all of the children and prospective heirs of Jones, and the present plaintiff, whereby such actions were all discontinued, and Miller, as such committee of Jones, and the children and prospective heirs of Jones, paid to the plaintiff $3,400, which constituted upward of one-third of the real and personal property of Jones; that the plaintiff, in consideration of the same, executed and delivered the releases and agreement before offered in evidence, and delivered the custody of Jones to the committee, and thereafter never lived with him; that Jones never.recovered, and died intestate, and that at the time the plaintiff obtained possession of the personal property he was in fact a lunatic. The plaintiff objected to this evidence as immaterial and incompetent, and upon other grounds. The referee sustained the objections and excluded the evidence.

The defendants then offered to prove that Julia E. Zoller, one of the original defendants, since deceased, after the settlement before mentioned, took charge of Jones, her father, and cared for and supported him until his death on the faith of the settlement. This evidence was also, objected to, and the objection was sustained by the referee. In his report the referee found that the plaintiff’s marriage with Jones was valid, and that she was entitled to dower in his estate, and judgment was. en tered in her favor upon such report, which, upon appeal to the general term, was affirmed.

Whether the first husband of the plaintiff absented himself, without being known to her, for five successive years, within the meaning of the statute, and whether, assuming that he did so absent himself, and the plaintiff was thus lawfully married to Jones, she became entitled to dower in bis real estate, her first husband being alive at the time of Jones’s death, we do not deem it important to' determine, as there are other plain reasons which constrain us to hold that this most inequitable claim for dower should be defeated. It is provided in the Revised Statutes (3 Rev. Stat., 7th ed., 2998, § 12) that “ if ‘before her coverture, but without her assent, or if after her coverture, lands shall be given or assured for the jointure of a wife, or a pecuniary position be made for her, in lieu of dower, she shall make her election whether she will take such jointure or pecuniary provision, or whether she will be endowed of the lands of her husband, but she shall not be entitled to both.”

We must assume that the facts which the defendants offered to prove were true, and must dispose of the case upon that basis. There was, therefore, within the meaning of this section a pecuniary provision of $3,400 for the plaintiff in lieu of her dower. While it was not made by her husband, it was in his behalf by his committee and children. No one has questioned that it was legally made, and while she holds the property she cannot allege that it was not effectually made. This section does not in terms relate to a provision to take effect at the husband’s death. Previous to the married woman’s acts, a pecuniary provision, in lieu of dower, could during coverture be made for a wife through the intervention of trustees, to take effect during the life of the husband or at his death. The property could be placed in the hands of the trustees so that she could have the benefit and enjoyment of it during coverture, or her enjoyment of it could be postponed until after her husband’s death; and in either event it cannot be doubted that the provisions made came within the purview of the statute. Since those acts the property constituting the provision under this section may be transferred or secured to the wife as her separate estate, and whether the possession and control of the property be-at once given to her or be postponed until her husband’s death, it is still in every sense a provision within the meaning of this section.

If by the word “ provision ” the law-makers meant a suitable portion of the husband’s estate, or a suitable provision for the maintenance of the wife, or a provision to operate at the husband’s death, then all the three conditions are complied with in this case. This xwovision was a suitable portion of the husband’s estate ; the property was placed in- the absolute control of the wife, and hence could be used for her support and maintenance, and must have been so intended; and as it was given •to her in the form of choses in action but a few months before her husband’s death, it may be presumed that she had it at his death.

The two following sections of the Revised Statutes must also be noticed. Section 13 provides that “ if land be devised to a woman, or a pecuniary, or other provision be made for her by will in lieu of her dower, she shall make her election whether she will take the lands so devised, or the provisions so made, or whether she will be endowed by the lands of her husband. Section 14 provides that “ when a woman shall be entitled to an election under either of the two last sections, she shall be deemed to have elected to take such jointure, devise, or pecuniary provision, unless within one year after the death of her husband, she shall enter on the lands to be assigned to her for her dower, or commence proceedings for the recovery or assignment thereof.” Under these sections the widow may make her election at any time within one year, and if she does not elect to take her dower within one year, she will be deemed to have elected the provision made for her in lieu of dower. But she may elect to take the provision at any time, and when she has done so her right to dower is barred. Here the plaintiff kept the pecuniary provision made for her; has never offered to return it, still has it, and must, therefore, be deemed to have elected to take and kept it in lieu of dower. She cannot have both the provision and dower, and, therefore, when she brought this action within less than two months after her husband’s death, she had already made her election, and her right to dower was gone.

But there is still another reason for barring plaintiff’s claim to dower. While under the decisions in this State, the agreement and deed of January 28, 1880, could not operate as a present release of the plaintiff’s inchoate right of dower, yet she was competent to enter into the agreement to execute a valid release of her dower after her husband’s death. That agreement was based upon an adequate consideration. Three suits were pending which related to what she claimed to be her separate estate, and they were settled and discontinued, and choses in action valued at $3,400 were transferred to and received by her as her separate estate. Her agreement was therefore one by which she reeeived a separate estate, and related thereto, and therefore was binding upon her under the married woman’s acts, as has been frequently held in this and other courts of this state. Prevot v. Lawrence, 51 N. Y. 219; Herrington v. Robertson, 71 N. Y. 280; Cashman v. Henry, 75 N. Y. 103; Tiemeyer v. Turnquist, 85 N. Y. 516; Ackley v. Westervelt, 86 N.Y. 448. She received the choses in action in consideration of her agreement to release to these defendants her right of dower .after the death of her husband, and her agreement was like the promise of a married woman to pay for property which she purchases for her own use, or adds to her separate estate. It is an immaterial circumstance that the defendants did not then own the land in which dower is now claimed, or the property which was transferred to her. They expected to be interested in the land as the heirs of their bather, and were perfectly competent to make a contract for the benefit of the land at a future time when their interest should actually come into existence. So, too, while they did not actually own the personal property, they were so situated that they were able to procure a settlement of the suits, and the transfer of the property to her; and so, even if the consideration was not at the time detrimental to them, it was beneficial to her, and ample to sustain her agreement based thereon. Certainly, so long as she retains the consideration - which the defendants aided in securing to her, she cannot repudiate the agreement for which the consideration was furnished.

We know of no reason why such an agreement should not be enforced because it relates to dower, then inchoate, but expected to be complete at the death of the husband, when the agreement was to bé performed. Such an agreement is condemned by no public policy. A married woman may bar her right to dower, by a proper ante-nuptial or post-nuptial agreement, by accepting a provision made for her in a will, or by joining her husband in the conveyance of land in which her right of dower is inchoate. It is the policy of .the law that a wife shall not be deprived of her dower except by her own consent; but it leaves her absolute freedom, in all the ways above mentioned, to bar her dower at her own will and pleasure.

The defendants, in their answer, among other things, demanded for relief specific performance by the plaintiff of her agreement to release her dower ; and if the evidence erroneously excluded by the referee had been received,- they would, if necessary for their protection, have been entitled to such relief.

Our conclusion, therefore, is that the judgment should be reversed, and a new trial granted : costs to abide the event.

All concur.


text:
    The People of the State of New York, Appl’ts, v. O’Sullivan, Resp’t.

      (Court of Appeals,

      Filed March 1, 1887.)
    1. Criminal law — Evidence — Upon a trial por a crime evidence THAT THE DEFENDANT WAS G-UILTY OF OTHER CRIMES IS NOT ADMISSIBLE — Attemp TO COMMIT SAME CRIME, WHEN ADMISSIBLE.
    It is a general rule of law that upon the trial of a prisoner for one offense, it is improper to prove that he has been guilty of other offenses, but where a prisoner is tried for a particular crime, it is always competent to show upon the question of his guilt that he had made an attempt at some prior time, not too distant, to commit the same offense.
    2. Rape — Disclosure of the fact by the female if made at first opportunity IS ADMISSIBLE IN EVIDENCE.
    The evidence of a witness as a rule cannot be corroborated or confirmed by proof that the witness stated the same facts testified to in court on some occasion when not under oath. There is an exception to this in the case of rape, from the natural presumption that a virtuous female would at tlie first suitable opportunity disclose the fact of the outrage and because she would be so far discredited if she did not make the disclosure, it may be received in evidence to confirm her testimony where she is a witness But when the disclosure is not made as soon as a suitable opportunity is furnished, the reason for receiving it in evidence does not exist, and the principle justifying its reception does not apply.
    3. Same — When too distant fkom date op offense.

      Held, that the offense charged having been committed con May 6, 1884, a disclosure made on March 28, 1885, was not admissible in evidence, no circumstances appearing to justify the delay.
    Appeal on the part of the people from a judgment, of general term, fourth department, reversing a judgment of the court of oyer and terminer of Onondaga county, and ordering a new trial upon conviction of defendant, under an indictment for rape. The facts are sufficiently stated in the opinion.

      C. H Lewis, for appl’ts; John C. Hunt, for resp’t.
   Earl, J.

The defendant was convicted in the Onondago oyer and terminer of the crime of rape committed upon Abbie O’Connor, on the sixth day of May, 1884. He was a Roman Catholic priest in charge of a church at Camillus, in Onondaga county. The complaint was a domestic, working for him in the parsonage, which adjoined the church. She testified that she was at the time of the alleged crime about 17 years old; but there was other evidence, apparently more reliable, that she was about 20. Before she went to live with him she resided with her foster parents, who brought her up from infancy, and she and they were members and regular attendants at his church. She went into his service on the twenty-fifth day of January, 1884, and. from that time forward his family consisted of himself, Mrs. Doehner, his housekeeper, Timothy O’Sullivan, his man-servant, and the complainant. She testified that the defendant entered her bed-room in the night-time, and there outraged her. At that time the housekeeper was in New York, and she was alone in the house with him and the man-servant. No criminal complaint was made against him until November, 1885, and he was not indicted until January, 1886.

Upon the trial, after the complainant had testified to the rape, she was permitted, against the defendant’s objection, to testify that four days previously he had made an attempt to ravish her, that she resisted him, and that he failed. For the reception of this evidence the court at general term, as appears by the opinion there pronounced and concurred in by a majority of the judges, reversed the conviction, holding that it was incompetent upon the trial of the defendant for the crime alleged to prove any'other crime committed or attempted by him. We do not agree with the learned general term, in the view thus taken of this evidence. It is quite true that it is a general rule of law that upon the trial of a prisoner for one offense it is improper to prove that be bas been guilty of other offenses; as where a prisoner is put upon trial for larceny, or burglary, or murder, it is incompetent to prove that be bas been guilty of other lar-cencies, or burglaries, or murders, or other crimes. In this case it would have been incompetent to prove that the defendant had committed or attempted to commit a rape upon any other woman. But where a prisoner is tried for a particular crime, it is always competent to show upon the question of his guilt that he had made an attempt at some prior time, not too distant, to commit the same offense. Upon the trial of a prisoner for murder, it is competent to show that he had made previous threats or attempts to kill his victim. People v. Jones, 99 N. Y., 667, Upon the same principle, it must always be competent to show that one charged with rape had previously declared his intention to commit the offense, or had previously made an unsuccessful attempt to do so. In this case, if witnesses, other than the complainant, could have been called who witnessed the unsuccessful attempt of the defendant to ravish the complainant four days before the crime was in fact accomplished, no one would have questioned the competency of their evidence; and the evidence is not rendered incompetent because it comes from the complainant herself. It is not as valuable or trustworthy or • important as if it had come from other witnesses. It probably did not have a very important bearing with the jury, because, unless they believed her evidence as to the principal offence, they would not believe her evidence as to the prior attempt. But it may have had some tendency to corroborate her story as to the principal offense, and thus may have had some weight with the jury. But whether it was important or not, there is no rule which condemns it, and there is abundant authority to justify its reception. Whart. Crim. Ev. 35, 46, 49; State v. Knapp, 45 N. H., 156; Strang v. People, 24 Mich. 6; Sharp v. State, 15 Tex. App., 171; Reg. v. Rearden, 4 Fost. & F., 76; Reg. v. Jones, 112. B. Div. 118; Reg v. Chambers, 3 Cox, Crim. Cas., 92; Williams v. State, 8 Humph., 585; State v. Walters, 45 Iowa, 389; Com. v. Nichols, 114 Mass., 285; Com. v. Lahey, 14 Gray, 91; Com. v. Merriam, 14 Pick., 518; State v. Marvin, 35 N. H., 22; State v. Wallace, 9 N. H., 515; State v. Way, 5 Neb., 287; Lawson v. State, 20 Ala., 65. We do not agree, therefore, that the judgment should have been reversed on account of the reception of the evidence alluded to. But there is, at least, one other error disclosed by the record, for which, we think, the conviction ought to have been reversed.

As before stated, the alleged rape was committed in defendant’s house on the sixth day of May, 1884. The complainant remained in his service from that time until the twentieth day of August following, without in any manner, by speech, action, or appearance, disclosing or intimating to any one that she had suffered this great wrong. During that time she visited her foster parents, whose place of residence was not far distant from Camillus, and saw them nearly every Sunday at church, and at defendant’s house, having full and free communication with them in defendant’s absence. When she left the service of the defendant, it was apparently not on account of the crime that had been committed upon her, but because he whipped her for some trifling offense. Then she went home to live with her foster-parents, and remained there until the tenth day of September, and then she went to Syracuse to wort in a situation procured for her at her request by the defendant, and while living there, on the twenty-eighth day of March, she disclosed to Father Moriarty, a Roman Catholic priest, at confessional, that the assault had been committed upon her; and that was the first disclosure of the crime made by her to any person.

During all the time, from the sixth of May to the twenty-eighth of March, nearly eleven months, there was not a day when she could not have made a disclosure to some one. She was at perfect liberty to leave the defendant’s house at any time, and she remained there of her own free will and consent. The only excuse put forth for the great delay in making the disclosure is based upon the following facts; She testified that after the assault upon her she went voluntarily and without any solicitation of the defendant to his confessional and confessed to him while living with him on three different occasions; and that on each occasion he asked her whether she had told any thing about the assault upon her, and she replied “ no, father; ” and he said “ God bless you, my child.” She also testified that while she lived with him he told her it was a sin to “ tell on a priest,” and that if she ever “ told on a priest ” she would go to hell or purgatory. She further testified that she did not go to confessional again until the 28th day of March, 1885, when she made the disclosure to Father Moriarty, and that she told him about it the first time she went to his confessional.

It may well be that the fact that this disclosure was made at the confessional, under the sanction of religion, gave it additional weight with the jury. But we are of opinion that such disclosure, made nearly eleven months after the commission of the alleged crime, was too remote to be received in evidence. There was nothing whatever to justify the delay.

It is a general rule that the evidence of a witness can never be corroborated or confirmed by proof that the witness stated the same facts testified to in court on some occasion when not under oath. Such statements, like all hearsay evidence, are excluded as unsatisfactory and incompetent. But there is an exception to the rule in the case of rape. The outrage in such a case upon a virtuous female is so great that there is a natural presumption that at the first suitable opportunity she would make disclosure of it; and she would be so far discredited if she did not make the disclosure for the purpose of confirming her evidence where she is a witness, such disclosure may be received. But where the disclosure is not recent, as soon as suitable opportunity is furnished, the reason for receiving it in evidence does not exist, and the principle justifying its reception does not apply. In 1 Hale, Pleas of the Crown, 632, it is said that “ the complainant must make fresh discovery and pursuit of the offense and offender, otherwise it carries a presumption that her suit is but malicious and feigned.”

In 1 East, Pleas of the Crown, 445, it is said that the evidence of the complainant is confirmed if she presently discovered the offense and made pursuit for the offender,” and that “ her evidence is discredited if she concealed the injury for any considerable time after she had opportunity to complain.” And the same language is substantially embodied in 4 Blackstone Commentaries, 214. In Baccio v. People, 41 N. Y. 265, the defendant was indicted for rape, and upon the trial the prosecution was permitted to give evidence that the complainant disclosed the crime to her mother twenty-four days after its commission ; and the conviction in that case was reversed on the ground that the mother of the complainant was permitted to testify in detail on her direct examination to the statements made to her by the complainant of the time and manner of the offense. Judge Woodruff, writing the opinion, said: “ I was at first inclined to say that evidence of any complaint made so long after the alleged injury, and especially when forced from the daughter by the mother after her daughter had once declared that her injury was due to a fall, should not have been received at all from any person. The complaint was certainly not made recently after the alleged outrage. But in a case in which the fact of complaint is admissible it is perhaps competent to explain the want of such early complaint by facts which show that it was impracticable, or that it was prevented by circumstances consistent with the natural impulse to complain thereof, so far at least as to destroy the presumption of falsehood derivable from concealment on the part of the female.” In the course of his opinion the same learned judge said, that the rule admitting such declarations in cases of rape is an exception to the general rule excluding declarations.made out of court by a person who has been or might be examined as a witness, and is properly confined within narrow limits, and he suggested that the reason for the admission of such declarations is, “ that it is so natural as to be almost inevitable, that a female upon whom the crime has been committed will make immediate complaint thereof to her mother, or other confidential friend; and inasmuch as her failure to do so would be so strong evidence that her affirmation on the subject when examined as a witness was false, that the prosecution may anticipate sucb a claim by affirmative proof that complaint was made.” In Higgins v. People, 58 N. Y. 337, the defendant was indicted for rape. In that case it appeared that the prosecutrix arrived in New York an entire stranger, and, having lost her baggage, she was inveigled into a basement on a pretense of finding it, where she was outraged. Upon coming out into the street she met a woman who asked her what was the matter; also a policeman who took her to the station-house. To neither of these did she state the real offense ; but it appeared that as soon after arriving at the station-house as her excitement would admit, she stated the fact to the police captain. Upon these facts defendant’s counsel requested the court to charge that, “If the jury believe the prosecuting witness did not make prompt disclosure of the alleged wrong, it is a circumstance against her, casting a great discredit on her testimony and tends strongly to disprove the truth of the accusation.” This the court refused to charge, and it was held that conceding the proposition to be entirely accurate, it was an abstract one, as there was no ground for saying that the disclosure was not sufficiently prompt, and it was not error, therefore, to refuse so to charge. Chtxrch, Ch. J., writing the opinion, said: “ The proposition which the court was requested to charge was substantially correct, although it is quite general and somewhat vague. Any considerable delay on the part of a prosecutrix to make complaint of the outrage constituting the crime of rape is a circumstance of more or less weight, depending upon the other surrounding circumstances. There may be many reasons why a failure to make immediate or instant outcry should not discredit the witness. A want of suitable opportunity, or fear, may sometimes excuse or justify a delay. There can be no iron rule on the subject. The law expects and requires that it should be prompt; but there is, and can be, no particular time specified. The rule is founded upon the laws of human nature, which induce a female thus outraged to complain at the first opportunity. :Such is the natural impulse of an honest female.”

In Connecticut a more liberal rule as to disclosure made by a prosecutrix has been adopted than prevails in this state. State v. De Wolf, 8 Conn. 93; State v. Byrne, 47 Conn. 466. There it may be proved, not only that she made disclosures of the crime, but the details of the crime as she disclosed them may also be proved. In the two cases cited, the disclosures were made after a much longer time than in any other case which has come to our attention. In the first case the complainant was deaf and dumb, and the disclosure was made more than a year after the commission of the crime, but there she was prevented from making the disclosure by the threats and influence of the prisoner over her, and it was held that her mental and physical condition were such as to furnish her an excuse for not making an earlier disclosure. lu the other case the complainant did not make the disclosure until more than a year and a half after the commission of the crime. But she was only 12 years old, and. the defendant was her step-father, and she was living in his family, and he threatened to take her life if she told her mother or anybody else what had happened. Under such circumstance it was held to be for the jury in weighing her evidence to determine what effect should be given to her failure to make an earlier disclosure.

It will be seen from these authorities that the very reason upon which the rule is based for the reception of such evidence-requires that the disclosure should be recent, and made at the-first suitable opportunity. But there may be circumstances-which will excuse delay, as when the prosecutrix is under the physical control of the defendant; when she is among strangers and there is no one in whom she can confide; when she is induced to silence by threats, and is so far within the power or reach of the defendant that the threats may be executed. In such and other like cases delay may be excused, and the disclosure may be proved and all the facts submitted to the jury for them to determine what weight shall be given to the disclosure, and what effect the delay shall have. But here there was absolutely nothing to justify the great delay. There was no time after the commission of the offense when she could not-have left the defendant’s house. She was of mature age, and near her friends, and saw them frequently. She was in Syracuse, having access to priests months before she made the disclosure. It does not appear from her evidence that she delayed the disclosure from fear of the defendant or from any influence of superstition or from the apprehension of consequences to herself in this life or in the life to come.

We think the delay, under such circumstances, was so great- and so unjustifiable that, as a matter of law, the disclosure should have been excluded as evidence, and that it was, therefore, error to receive it. If this disclosure was competent, then no disclosure, however distant from the time of the offense, could be excluded; and all such disclosures would have to be received and submitted to the jurors for such damaging effect as they would allow them to have. A disclosure at such a distant time is of no more value in arcase of rape than it would be in a case of robbery or murder or any other crime. A disclosure in a case of rape has no legal value whatever unless it is the natural result of the horror and sense of wrong which would prompt every virtuous female to make outcry at the first suitable-opportunity.

Our attention has also been called to error in the charge of the learned trial judge, We have carefully considered the-charge, and are constrained to believe that it was in part erroneons. But as we reached, tlie conclusion that for the error to which we have given particular attention, the conviction was properly reversed, it is unnecessary to further notice the charge, as the error complained of is not likely to be repeated upon the new trial, if one should be had.

We, therefore, conclude that the judgment of the general •term should be affirmed.

All concur.


author: Per Curiam.

text:
    Robert Furey and Thomas F. White, Applt’s, v. The Town of Gravesend et al., Respt’s.

      (Court of Appeals,

      Filed March 1, 1887.)
    1. MUNICIPAL CORPORATION — CONTROL OP LANDS OP TOWN OP GRAVES-END — INJUNCTION — RIGHT op Lessee under — Laws 1883, ch. 458.
    Laws 1883 ch. 458, provide that the care and control of the common lands of Gravesend shall be vested in the supervisors of the town and five trustees and that they shall not have power to sell or give title to any of such lands excepting certain parts therein named at that time in the possession of the lessees of the town.
    That they might sell the lands thus excepted to the lessees in possession provided the sales should be ratified and confirmed by a resolution duly passed at an annual town meeting or at a special town meeting called for that purpose, such sale to be upon the same terms of payment provided for sale of other lands of the town.
    In an action brought by certain parties of the class to whom according to the act, sales of the common lands might be made, to obtain an injunction order restraining the town from selling the lands to others. Held, that the plaintiffs did not by virtue of the provisions of the statute acquire any such interest in the lands in question as would entitle them to the relief demanded.
    2. Covenant — Extent op in resolution passed at town meeting.
    At an annual town meeting of said town the electors thereof adopted a resolution that the common lands of the town should thereafter be let only at public auction, on the premises or at the town house to the highest bidder, on notice specifying the time and place of letting, and that if any lot should be let to any person other than the last lessee owning improvements thereon, ■the new lessee should pay the former lessee for the value of improvements on the property at the expiration of the old lease at a rate to be fixed by arbitration and that these conditions should be set forth in the notice. Held, the town did not thereby assume any liability except the duty of specifying the new lessee’s liability in the notice to be given for the leasing of the lands. And that this could not be construed as anything more than a covenant that, in the event of a further lease, the town would tafee measures to cause the new tenant to pay the former tenant for improvements.
    3. Same — What a bar to action.

      Held, that a judgment in an action of ejectment adverse to the plaintiffs in this action and in favor of the defendants which stood unappealed from and unreversed was conclusive against any claim on the part of these plaintiffs to any right of possession in those lands antedating the rendition of such judgment.
    Appeal from a judgment of the supreme court, general term, second department, reversing a judgment of the special term granting an injunction restraining the town of Gravesend from, selling certain of its lands.

      Wm. C. Dewitt, for applt’s ; Wm. J. Gaynor, for respt’s.

       Affirming 38 Hun. 319.

   Per Curiam.

We are of the opinion that the complaint in this action shows no such interest in the lands which are the-subject of the dispute, as entitles the plaintiffs to the relief demanded, or the injunction awarded them by the trial court.

The judgment rendered there awarded to the plaintiffs a perpetual injunction against the town from selling or conveying-to one William Ziegler certain lands owned by it.

No affirmative relief in respect to such lands was demanded in the complaint or claimed on the trial, and the entire extent of the plaintiff’s claim was an absolute and arbitrary right to-prevent the defendant forever from disposing of the lands in question, except to the plaintiffs.

There was no question made in the case but that the defendants are the owners in fee-simple of the lands in question, and entitled to its possession, nor claim made on the part of the plaintiffs that they are entitled to its use, enjoyment or possession.

The only foundation for the action rests upon the claim that the plaintiffs have an equitable demand against some one to be-paid the value of certain erections formerly made by them upon the land in question and which they omitted to remove therefrom when the term of their tenancy expired.

The pleadings seem to found this right upon the provisions' of chapter 458 of the Laws of 1883, which, so far as they affect the controversy, are substantially as follows:

“ The care, management and control of the common lands of' Gravesend shall be vested in the supervisor of said town and five trustees,” to be chosen as therein specified.

It further provides, “ that such trustees shall not have power to sell or give title to any lands of the town of Gravesend, or to release or discharge any title or claim of said town thereto,, excepting lots number 51, 52, 53, 54, 55, 56, and Coney Island Point, which premises are now in possession of lessees of said town.”

The act then proceeds to prescribe the manner in which the lands of said town, other than those excepted, may be disposed of by said town, and as to the excepted lands enacts as follows:

“ But the said supervisor and trustees shall have power and. are hereby authorized to sell said lots number 51 to 56, inclusive, of said common lands and Coney Island Point, to the present lessees in possession of the same, provided such sale shall be ratified and confirmed by resolution duly passed at an annual town meeting, or at a special town meeting to be called. for tbat purpose, such sale to be upon the same terms of payment provided for sale of other lands of said town.”

Iu giving a construction to this act courts are confined to the language and terms employed by the legislature, and are not at liberty to interpolate phrases and provisions, although otherwise the purpose and intention of the law-making power may seem indefinite, obscure or incomplete.

If they have failed to insert such provisions in the law as will accomplish the result intended their omission cannot be remedied by .construction, and the law must to that extent be considered defective and inoperative.

In so far as any duty is enjoined upon or power and authority conferred by the act upon the town commissioners there does not seem to be any ambiguity in its provisions, but the particular object intended to be accomplished by the clauses quoted is left quite obscure and uncertain. Such commissioners are prohibited from selling or conveying any of the common lands of the town except those in question, and did the provisions stop here a strong implication would arise that they had power of their own volition to sell these lands to whomsoever they should elect, but the act then proceeds to prescribe the manner in which and to whom they are authorized to sell and convey.

No limitation of time is imposed upon the prohibition or the exercise of the powers or duties authorized and enjoined by the act, and so far as its language is concerned they would seem to be perpetual and irrevocable.

Other provisions relate to the mode of disposing of other lands of Gravesend.

It is in the nature of things that the willingness of the contemplated grantees of these lands to purchase is a condition precedent to the exercise of any power of sale by the supervisor and trustees, and in absence of any offers by the lessees to buy, the whole provision must fall to the ground as inoperative and unenforceable.

In this event the lands would remain the property of the town and subject only to the same powers of disposition which apply to its lands generally.

The act operates as a mere license and authority to the supervisor and trustees to sell and convey such lands according to the prescribed conditions, if they deem it best to do so, but it goes no further. Such board is placed under no obligation to make such sale, but is left entirely at liberty to exercise its discretion upon the subject.

It is quite certain that it could not sell them to the plaintiffs, unless they should choose to bujq and it is equally certain that the plaintiffs could not acquire either a legal or equitable interest in the lands under this act until a contract of sale had been perfected between the parties, or the plaintiffs should show some case entitling them to the exercise of the discretionary power of the commissioners in their favor. The complaint shows no such case. There is no allegation that the town officers have ever refused to sell or convey said lands to the plaintiffs, or that the plaintiffs have even offered to purchase the same, or even that they have required said town to pay for the improvements made, or that said town has refused to do so, but the right of the plaintiffs seems to be founded upon the. operation of the naked statute alone. The effect claimed for the act by the plaintiffs, if it could be upheld, would forever prevent the town from disposing of its land except to the plaintiffs, and would thus practically destroy its power of disposition, and the usefulness and value of its property. Whether any effect can be given to this statute, and, if so, what operation it shall have, is a question' which it is unnecessary here to discuss. It is enough now to say that the plaintiffs have not, by virtue of its provisions, acquired any interest in the lands in dispute.

A further claim is made by the plaintiffs, founded upon the circumstances under which they became tenants of the town for these lands for the term of 10 years from February 1, 1873. At the annual town meeting of said town in 1871, the electors thereof adopted a resolution in reference to the manner of leasing their town lands which read substantially as follows: Resolved, that the common lands of the town of Gravesend on Coney Island shall hereafter be let only at public auction on the premises or at the town-house in this town to the highest bidder, “ on notice specifying the time and place of letting,” etc.; and, “if any lot be so let to my person other than the last lessee owning improvements on said lot, the new lessee shall pay the former lessee for the value of improvements on the property at the expiration of the old lease,” at a rate to be fixed by arbitration, “ and the above condition shall be specified in the notice, above provided for, whenever there are improvements on the premises so to be let.”

The plaintiffs claim tnat this resolution, in connection with the lease subsequently taken by them from the town officers, constituted a covenant on the part of the town for the payment to them, at the expiration of their lease, of the value of the improvements put by ahem on such leased premises. No provision for such payment is contained in the lease executed by the town to the plaintiffs ; and, if any liability exists therefor, it must be such a one as may be implied from the terms of the resolution alone. No express provision relative to the subject is inserted therein, except that, when such lands are leased to one who was not formerly a lessee thereof, the new lessee shall pay the former one a compensation for existing improvements at arate provided for. No absolute liability is assumed thereby by the town except the duty of specifying the new lessee’s liability in the notice to be given for the leasing of the lands. This could not be construed as any thing more than a covenant that in the event of a further lease the town would take measures to cause the new tenant to pay the former tenant for improvements.

There is no obligation imposed on the town to lease them again, and they are entirely at liberty under such a covenant to refuse to lease again and dispose of the lands otherwise according to their discretion.

Even if any covenant could be implied, it is quite evident that the condition upon which it was made to depend of a new lease to another party has never accrued, and no breach of its obligations could have taken place.

A further difficulty in the way of any claim to an interest in the land growing out of the resolution of 1871, arises out of the effect of a judgment in an action of ejectment for these lands, brought by the defendant against these plaintiffs in July, 1883, and which resulted in favor of the defendants in February, 1884, over a year before this action was commenced.

This judgment remains unappealed from and unreversed and is conclusive against any claim, on the part of the plaintiffs, to any right of possession in the lands in question antedating the rendition of such judgment.

If any right existed in the plaintiffs to retain possession of such lands, to compel the satisfaction by the town of their claim for improvements, or for any other purpose, they were bound to assert it in defense of the action of ejectment, and not having done so have lost the right to make such a claim in this action.

We have been unable from any point of view to discover any right or interest which the plaintiffs have in the lands in question.

Granting even that the statute creates an absolute prohibition upon the supervisor and trustees and from selling and conveying these lands in the manner attempted by the town, it does not follow that the plaintiffs are entitled to invoke its enforcement. The right to enforce such prohibition by action can belong only to a party who has some right or interest in the property which may be prejudiced by the action of the town.

Whoever may be aggrieved, it is quite clear that the plaintiffs were not residents of the town, and have no interest in the subject of the action which is to be affected thereby.

The judgment should, therefore, be affirmed.

All concur.

Judgment affirmed.