text:
    VIRGINIA RYER, Respondent, v. FRANK RYER, Appellant.

      Faibure to pay alimony — commitment for contempt — form of the order— Oode of Oml Procedure, sees. 1773, 1773 — mobility to pay, no excuse if caused by the voluntary act of the pa/rty — Oode of Oivil Procedure, sea. 3386.
    The defendant having been committed to prison for a contempt of court in failing to pay alimony awarded and directed to be paid by a judgment for divorce recovered against him by his wife, the plaintiff, moved to be discharged from imprisonment. The order did not recite or adjudge that payment of the alimony could not be enforced by means of security or the sequestration-of his property.

      Held, .that neither section 1773 nor section 1773 of the Oode of Oivil Procedure required such an adjudication to be stated or recited in the order.
    That as the order of commitment was made upon notice, and after hearing the attorney for the defendant, and as no appeal had been taken therefrom, it ■would not he presumed, when it was attacked in this collateral way, that any defect existed in the proofs upon which it was made.
    The defendant sought to he discharged upon the ground that he was unable to pay the alimony as directed by the judgment.

      Meld, that as his inability seemed to have been caused by his having married in another State a second wife in direct violation of the provisions of the judgment of divorce, and was therefore voluntarily and intentionally created, it formed no ground for his discharge.
    Appeal from an order made at a Special Term, denying a motion to discharge the defendant from imprisonment.

      Baker, Bailey <& Baker, for the appellant.

      JEL. M. GoU/yer, for the respondent.
   Daniels, J.:

The defendant was committed to prison on the 26th of September, 1883, for a contempt of court, caused by a failure to pay alimony awarded by the judgment in this action to the plaintiff, and directed to be paid by him. The order adjudging him in contempt and directing his commitment, contained no adjudication that payment of the alimony could not be enforced by means of security or the sequestration of his property, and it has been objected to as void because of that omission. But neither section 1772 nor section 1773 of the Code of Civil Procedure requires such an adjudication to be stated or recited in the order. All that has been required is, that it shall appear presumptively to the satisfaction of the court that payment cannot be enforced by means of the proceedings prescribed by section 1772, by or resorting to any security given as therein mentioned. And that it did so appear, before the determination was made for the commitment of the defendant, may be presumed from the facts mentioned in his affidavits upon which he applied for his release from imprisonment. The application for the order was made upon notice, and his own counsel was heard in opposition to it, and it is not to be presumed when the order is collaterally attached and has not been appealed from, that any defect existed in the proofs upon which it was made. Neither the ease of Isaacs v. Isaacs (61 How., 369), nor Rahl v. Rahl (14 Week. Dig., 560), sustain the objection taken to this order, and under the provisions of the Code regulating the proceedings in which it was made, it is to be presumed to have'been warranted by the proofs produced at that time before the court.

The release of the defendant was more especially applied for upon the ground that he was unable to comply with the direction contained in the judgment for the payment of alimony, and when that may appear to be the case, the court has been authorized by section 2286 of the Code to relieve the party from further imprisonment. But in this case the inability of the defendant to pay the small amount directed of five dollars per week, seems to have arisen out of the fact that he, soon after the judgment against him, married again in another State, and by that marriage became obligated to devote his earnings to the maintenance of his second wife. If it had not been for this marriage there is reason to believe, from the statements contained in the affidavits, that he would have been able to comply with the directions for the payment of the alimony contained in the judgment. And as he disabled himself from doing so by this second marriage, his disability was voluntary and intentionally created. This was done by an act prohibited by the judgment recovered against him by the plaintiff, and in defiance of the restraints imposed upon him by its terms. It is true that the second marriage, notwithstanding this judgment was obligatory upon him, as it was solemnized out of this State. But the fact that it was entered into was none the less a violation of the express restraint imposed upon him by the judgment in the action; and having disabled himself from complying with the terms of the judgment by this voluntary and intentional disobedience, he is entitled to no favorable consideration for the purpose of relieving him from the disability and punishment, he has in this manner brought upon himself. The court should not encourage misconduct of this character. For while required to be tolerated, it certainly is not entitled to encouragement where the judgment, as the affidavit shows was its form in this case, prohibits the party in fault from marrying again. t

He probably could be punished for a contempt in disregarding and violating the prohibition by afterwards marrying in another State, for the willful disobedience of a lawful mandate of the court is made a criminal contempt. (Code of Civil Pro., § 8, sub. 3.) And the term mandate is so broad in the sense in which it was so used as to include “ a writ, process or other written direction issued pursuant to law * * * by a court or 'judge, or a person acting as a judicial officer, and commanding a court, board or other body, or an officer or other person named, or otherwise designated therein to do, or refrain from doing, an act therein specified.” (Id., § 3343, sub. 2.)

But even if the defendant may not be so punished lie is not entitled to the favorable consideration of the court, after having willfully disobeyed the prohibition contained in the judgment forbidding him from marrying again during the lifetime of the plaintiff, and in that manner subjecting himself to the disability producing this imprisonment. As the case is now presented the order refusing his discharge from imprisonment was right and it should be affirmed, with the usual costs and disbursements.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Barrett, J.: Davis, P. J.: Brady, J.

license: Public Domain

text:
       THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. WILLIAM CONROY, Appellant.

      Murder in the first degree — Penal Oode, sec. 183, sub. 1 — what evidence of premeditation and deliberation must be given to a/uthoriee a submission of that question to the jury.

    The defendant, a policeman, while on duty, accepted an invitation to enter a saloon and drink. After taking a drink of what was called sherry he became quarrelsome and offered to fight one of the persons who was present, but soon after his anger subsided and he invited all present to drink at his expense. He again took a glass of sherry and again became quarrelsome. Evidence was given upon the trial of this action to show that the defendant was peculiarly susceptible to the influence of liquor. After his second drink he had a dispute with the bar-keeper as to the number of persons who drank with him, and subsequently with one MeG-uinness. He called the latter a liar, and upon the latter calling him another he knocked him down and kicked him until the crowd gathered around him and cried to let him up. The defendant then drew his club and the crowd, with the exception of four persons, retreated to a card room in the rear. As they did so the defendant drew his revolver, holding the club in the other hand. He then smashed a pane of glass in the 'door leading to the card room in an attempt to hit a man’s head with his club. Almost immediately afterwards another pane of glass was broken; the defendant wheeled around and fired his revolver, shooting one Keating in the abdomen and inflicting a wound from which he died. Just before he fired Keating had called to him, “For God’s sake, Billy, don’t fire, these are friends of mine.”
    On the arrival of other officers the defendant gave into their custody two young men whom he charged with having been guilty of disorderly conduct, and himself took Keating to the station, beating him brutally with his club while doing so. He claimed at the station that he had arrested Keating for drunkenness and disorderly conduct; that the mob assaulted and rescued the prisoner, and that he shot him to prevent his escape. On being asked by his sergeant if Keating was shot, he said: “Well, I don’t know, if he is not it is not my fault, I tried hard enough to shoot him.”
    Upon the trial of the defendant for murder in the first degree :

      Held, that the evidence of his having killed the deceased with deliberation and premeditation was not sufficient to authorize the court to submit that question to the jury. (Brady, J., dissenting.)
    Appeal from a judgment of the Court of General Sessions of the county of New York, by which the defendant was convicted of the crime of murder in the first degree and sentenced to death.

      William F. Rowe, for the appellant.

      John Vincent, assistant district attorney, for the people, respondents.

       Decided June 13, 1884.

   Barrett, J.:

Conroy was convicted of murder in the first degree upon an indictment charging him with the killing of one Keenan. The indictment is under the first subdivision of section 183 of the Penal Code, and it avers that the killing was from a deliberate and premeditated design to effect the death of Keenan. We have gone over the evidence with care and we are of opinion that the element of deliberation is entirely wanting. The learned judge should, as requested, have withdrawn the question of murder in the first degree from the consideration of the jury. His instructions upon the law of the two degrees of murder were entirely accurate. But he failed to apply the facts to his definitions, and consequently the jury fell into the quite natural error of treating the many brutal and atrocious features of this homicide as the equivalent of legal evidence of deliberation. We find enough to warrant the submission to the jury of the question of murder in the second degree,, that is, of killing with the design to effect the death of Keenan, or of some other person, but without deliberation and premeditation. Enough, too, if the indictment had been framed under the second subdivision of section 183, and had charged the killing by an act imminently dangerous to others and evincing a depraved mind regardless of human life, although without premeditation, to have-justified the submission of murder in the first degree. But for the evidence of deliberation we have sought in vain. Upon the contrary, the strongest testimony against Conroy points no farther than to sudden impulse. Between the impulse and the act there was no reflection, however slight or brief. There were in fact none of the indicia of deliberate purpose; no hesitation; no doubt overcome; no choice made as the result of thought. Indeed, the gravest question was whether the shot was fired with any distinct and specific intent, or merely with a reckless and wanton disregard of' human life.

Conroy’s acts throughout were those of a ferocious ruffian inflamed by drink; but the law expressly declares that voluntary intoxication, though furnishing no excuse for a criminal act, may be considered by the jury upon the questions of intent and of the degree of crime. (Penal Code, § 22.) If voluntary intoxication may be considered, upon the question of intent, a fortiori upon that of deliberation. The defense of insanity in our judgment entirely failed and was properly overruled by the jury. Undoubtedly Conroy was responsible for his acts in every legal sense. But the evidence upon that head, while failing to establish irresponsibility, indicated an abnormal sensitiveness to liquor, resulting from sunstroke, a fall from a loft and other incidents, fully accounting for the extraordinary mental disturbance caused by two glasses of bar-room sherry. An exhibition of violence followed each dram, and followed it almost instantly. Nothing of the kind preceded the drinking. Certainly Conroy had no homicidal intent when he entered Cody’s saloon. That event was purely casual. He happened to be passing and he was invited in to drink. He then seemed to be sober. The people within were either his friends, ordinary acquaintances, or -persons with whom he was entirely unacquainted. At all events he found no enemy there. After taking a glass of what was called sherry wine lie became quarrelsome, accused a man named Cantwell of having previously betrayed his improper presence in a drinking saloon while on duty, and upon Cantwell’s retorting, offered to fight. In a few moments he seemed to get entirely over this combative spirit, became, as one of the witnesses described it, “ happy ” and invited all present to drink at his expense. Again he took a glass -of the so-called sherry wine, again he became quarrelsome. At first he questioned the price of the drinks. Then Cody to pacify him reduced the charge from one dollar to seventy cents. Still he seemed dissatisfied, inquiring of several about him if they had drank. He then asked a man named McGuinness what he had taken, and upon McGuinness replying “ mixed ale ” Conroy called him a liar. McGuinness retorted, “you are another,” and thereupon Conroy struck him with his fist, knocking him down, and while McGuinness was down kicked him about the hips. This raised a tumult. The crowd “ halloed ” at Conroy to let McGuinness up, and began to close in around him. Conroy then drew his club and the crowd retreated to a card room in the rear. As they retreated Conroy also drew his revolver, holding the club in one hand the revolver in the other. Some one then put his head out of the card-room door and Conroy threw his club at him, missing the man’s head but smashing a pane of glass in the door. Almost immediately another pane of glass was broken from the inside of the card room. This evidently startled Conroy and precipitated the firing, for instantly he “ wheeled to his left,” with his face still towards the card-room •door, and as a friend (Keating), who undoubtedly perceived that danger was imminent, grasped him by the shoulder, the revolver, to .use the language of the witness Bulkley, “ at that instant went off.” This description is slightly varied by one of the witnesses who says that Conroy, after breaking the pane of glass, stepped back two or three paces, placed his club in his belt, threw open his coat and, with some difficulty, got at and drew his revolver; that, as he did so, Keating exclaimed, “ For God’s sake, Billy, don’t fire; those are friends of mine,” and that notwithstanding this warning Conroy, according to the witness Cantwell, “ turned round and let go that way guide as TAghbuingP

, In all this there was surely not the slightest indication of a -deliberate purpose. Conroy had had no quarrel of any kind with the unfortunate man who received the bullet. In fact he scarcely knew this man. Even the dispute with Cantwell had been composed. McGuinness had fled and was not in the saloon. Conroy was then his own worst and only enemy.

It is palpable either that he fired without mental concentration upon any individual object, but recklessly and in utter disregard of human life (for which offense, as we have seen, he has not been indicted), or that fearing an attack, he acted upon a sudden impulse to strike terror into the crowd bj firing at the first person who stood before or about him. The extreme rapidity of Conroy’s movements; the absence of threats, pre-existing ill-will or motive ; the presence of self-aroused passion and sudden violence; the inappreciable space of time between the act and the earliest previous moment when it is possible to assume the flash of design; the unreasoning, senseless and frenzied condition of his mind — all tend absolutely to exclude the idea of deliberation, even within the most extreme construction which, in the interests of society, has been or can be given to this word in its present statutory relation. The law must not be nullified, strained or perverted to meet an exceptional case nor to make an example of a particular offender.

In all the cases to which we .have been referred, there was undoubted evidence of a deliberate purpose. They differ in every essential particular from the present.

In Hovey’s case (29 Hun, 382) the evidence of deliberation consisted of the purchase and loading of the pistol, followed directly by its use in the commission of the deed.

In Sindram’s case (88 N. Y., 196) it consisted of previous bad blood and threats, followed by preparation, the prisoner’s seeking the deceased, and the deliberate firing of a second shot after the failure of the first.

In Majone’s case (91 N. Y., 211) it consisted in the exhaustion of any possible impulse upon tfie previous killing of his wife, and in his proceeding with the same weapon, from the room where his first victim lay, directly to the deceased.

In Cornetti’s case (92 N. Y., 85) it consisted in the prisoner’s taking advantage of an opportunity to secure the knife with which the crime was perpetrated, and in. shortly afterwards, without a word, approaching the deceased and stabbing him to death.

In Leighton's case (10 Abb. N. C., 261) it consisted of previous threats to injure the deceased, Mary Dean; of the prisoner’s seeking her out, with the razor in his pocket; and of an all-potent motive — jealousy, and her abandonment of him for another man..

The distinction between these cases and the present is marked and obvious. It is the distinction between premeditation and impulse — between the cold-blooded or deliberate assassin and the brutal or reckless bar-room brawler.

The legislature has chosen to make this distinction. It has enacted that the one offender shall suffer death, the other imprisonment for life. Courts and juries must not be wiser than the law. It is sufficient that it is the law, and that it should be enforced loyally and with submission to the legislative will.

"We have not been unmindful of what transpired after the homicide — the prisoner’s wanton shooting in the street; his stupid lying to his brother officers; his outrageous behavior to the deceased, and his declaration to sergeant Cassidy that “ he cried hard enough to shoot Keenan.”

All this, however, has a more important bearing upon Conroy’s mental condition, as affected by the two glasses of sherry, than upon the question of deliberation. In truth, it is almost inconceivable that a man capable of a deliberate murder and conscious of having committed it, should have closed the door to all hope by clubbing his dying victim, shooting at other innocent people and avoiding anything like plausibility in the preposterous falsehoods which were put forward to account for what had happened — falsehoods which any one capable of even the lowest order of reflection would have seen must be instantly and completely exploded by every witness of the occurrence.

As to Conroy’s statement, so earnestly dwelt upon by the learned district attorney, that he tried hard enough to shoot Keenan,” it is impossible to give it the force of a confession of deliberate purpose. At che utmost, and treated literally, the words convey nothing beyond an intent to kill, formed at the moment.

They do not necessarily import deliberation, and thus they really add nothing to the actual occurrence as narrated by the witnesses. If in fact the whole scene, as thus laid before us, excludes the possibility of deliberation, the value of such a retrospect is limited to its bearing upon the question of murder in the second degree. But in truth Conroy thereby intended not to confess his guilt, but blatantly to protest his innocence and to boast of his prowess. This is apparent from sergeant Cassidy’s testimony. We quote :

Q. What did he tell you ? A. He told me that he had arrested this man for being drunk and disorderly.

Q. Arrested Keenan? A. Keenan, for being drunk and disorderly ; he was attacked by a crowd there and his prisoner rescued. 1 says: “ Conroy is this man shot ? £ Well,’ he says, £ I don’t know; if he is not,’ he says, £ it is not my fault, I tried hard enough to shoot-him.’ ”

Under the circumstances to treat this expression as evidence of deliberation would require not only the straining of language but its entire misapplication, that is, its transposition from the imaginary scene it was intended to color to the real occurrence which it sought to conceal, and then ascribing to it as thus grafted the sincerity and truth which it originally lacked. Hard cases sometimes produce bad logic as well as bad law. If the res gestee had supported the claim of deliberation with something less, insignificant than a want of ease in drawing the revolver, and the failure almost at the moment of the shooting to heed a bystander’s exclamation, we would probably never have heard of this subsequent straw.

The truth is that it was simply an idle phrase, meant to be cunning but really transparent, put forward to color the equally idle falsehood that he had arrested Keenan for being drunk and disorderly, and that he had then been attacked by a mob in the street and hist prisoner rescued. What he meant in his besotted way to convey to sergeant Cassidy was that he had shot Keenan in the faithful performance of the duty which devolved upon him to prevent, by every means in his power, the escape of a rescued prisoner. Plainly this and nothing more.

Whether then this shocking affair be regarded in the light of what transpired after, before, or at the time of the shooting, the absence of deliberation is equally apparent. The result is inevitabie. Under the law, as it existed prior to 1873, Conroy would have forfeited his life. There was then but one degree of murder, and to constitute it premeditation alone was required. The courts had construed the law so that premeditation and intent were substanti* ally equivalent. The legislature then divided the crime -into two degrees, requiring intent with deliberation and premeditation to constitute the first degree; without deliberation and premeditation to constitute the second. Conroy’s case, therefore, comes clearly within the second and not within the first of these degrees. But the error below was not unnatural;' for if ever there was a case where the judgment of a right minded court, prosecuting officer or jury might readily be obscured by a feeling of just indignation, it is assuredly the present. The tendency of its horrible details is to make the citizen deplore the alteration in the law. It cries aloud for a judicial view of deliberation from which, under other and less aggravated circumstances, the mind would instantly revolt. The fact that the prisoner was a police officer employed to protect the people from violence and to guard them from outrage cannot but intensify this sentiment. Beyond question Conroy richly deserves all the punishment which can lawfully be inflicted upon him. Less than this would be a miscarriage of justice. More, however, would be lynch law under the forms of law. What, after all, is more important than Conroy’s death or imprisonment for life, is accuracy in the administration of justice — precise conformity to law. The latter it is our duty to exact, and in doing so to stand, if necessary, between the vilest wretch and even the righteous indignation of those who would add one jot to his punishment beyond what the law prescribes. Such a duty is now plainly before us, and it can only be faithfully performed by the reversal of this judgment and the direction of a new trial.

Davis, P. J.:

I have given careful attention to the conflicting opinions of my brothers Brady and Barrett, and a most painstakings examination of the evidence in the case, bearing upon the question in conflict between them, and my mind is brought to the conclusion reached by my brother Barrett, that there was no sufficient evidence in the ease of such premeditation and deliberation on the part of the prisoner as is required by the present law of this State to justify a conviction of murder in the first degree.

At common law all felonious killing of a human being with intent to take life, was murder; and of that crime there were no degrees.

By tbe former statute of this State this rule of the common law was sought to be modified by requiring in murder proof of a deliberate design to kill. But the courts promptly held that the statutéwas satisfied whenever the evidence showe,d to a jury that the act of homicide was the result of a fully formed intent to kill, although, the intent was concurrent with the act and had no appreciable antecedent period of deliberation or consideration. This was practically-reinstating the law sought to be modified; or, in other words, holding' that the common law rule had not been changed in substance.

It may well be doubted whether the courts would have deemed themselves forced to, or justified in such a construction, if the statutes referred to had created degrees of murder and defined the second degree to be a homicide with design to kill but without deliberation.

Subsequently the legislature created two degrees of the crime of murder. The first they declared to be the killing of a human being (unless it be excusable or justifiable) when perpetrated with a deliberate and premeditated design to effect the death of the person killed, or of another person; the second they defined to be the killing of a human being with intent to cause the death of the person killed, or another, but without deliberation or premeditation. To the first of these degrees they attached the penalty of death '; to the second the absolute penalty of imprisonment for life.

It is impossible now for the courts to hold that the killing of a human being with design to effect death not accompanied with deliberation and premeditation is anything more than murder in the-1 second degree, however clear and manifest the design which accompanies the act may be.

It would now be manifest error to charge a jury upon a trial for murder that a clear and manifest design to effect death is itself sufficient evidence of deliberation and premeditation to constitute murder in the first degree, for that is the exact thing which -the statute declares shall be murder in the second degree. Hence there must be, in addition to proof of design, some satisfactory evidence that it was a deliberate and premeditated design”- before the crime of murder in the first degree is proven. If past constructions disarm the word “ deliberate ” of any portion of its normal significance, they do not, of course, impair the just sense of the word “ premeditated,” new a form which requires the satisfaction of both, especially when accompanied with the creation of a new degree of the crime of murder which itself requires the presence of an actual and estabintent to kill, leaves no door open to doubt that murder in first degree can now only be shown by proof of some amount kind of deliberation and premeditation antecedent of the act or which intentionally effects the death, and of which the intent is not adequate evidence. The intent or design is of course necessary in both 'degrees. It alone is sufficient in the second, but the first it must have the characterization of deliberate and premeditated intent or design. There are many modes in which this characterization may be shown, as for instance, by procuring and administering poison, by lying in wait, by arming or preparing the deed in advance, by seeking an opportunity or advantage, threats of revenge or hate, or, in short, any form of words or action which indicates thought and conclusion, or a considered purpose to effect a design. My brother Bareett has shown how clearly cases cited by the counsel for' the people fall within this rule. is not necessary to repeat what is so well said.

In the case at bar I am unable to find any evidence to a finding of deliberate and premeditated design to effect the death the person killed, or of any other person. The prisoner was a policeman, but the law of murder for him is no different for that reason. He was charged with duties and trusts which made misconduct a crime on his part peculiarly odious; but that fact, while may expose him to the dangers of popular prejudice, and in a .sense excuse clamorous condemnation, cannot in law change or affect his guilt or innocence of murder in the first degree. He is not on trial for violation of official duty, but for a felony affecting his life; and in its definition of that crime, and its requirements of proof to establish it, the law knows no scale of adjustment that fits a brutal policeman, but does not fit other brutal criminals. The legislature has not so provided, and that is an answer to every suggestion of undue severity because of official position.

To my mind the evidence against the prisoner fails to show that he entered the drinking saloon of the witness Cody for any purpose of crime or violence. He went for the purpose of drinking on the treat ” of a candidate for office. He drank wbat is called sherry, and it is not difficult to -imagine what sort of vile concoetion bore that name in that place. The evidence shows that he was peculiarly susceptible to the effects of drink, and he speedily showed its effect upon him. A colloquy and controversy sprung up between him and another, which led, on his part, to an offer to fight any person present for money, but this passed over and the prisoner invited every p'erson present to drink. They all drank, a dozen or fifteen in number. The prisoner again drank sherry; when he asked what he had to pay he was told a dollar. The price angered him, and he asked who had drank. Cody told him all, but the prisoner disputed and turning to one person, asked what he had drank; he answered, mixed ale.” The prisoner called him a liar, and the lie was given back to him. That party approached the prisoner, who immediately struck him and knocked him down, and commenced kicking him while down. At this, several persons demanded that let the person up, and all gathered around the prisoner. The party knocked down got up and immediately fled from the saloon. The prisoner, as soon as freed by those holding him, drew his policeman’s club and went towards the “ crowd,” some of whom retreated into the “ card-room ” and shut the door. The prisoner went toward the card-room and struck with his club, breaking a light of glass in the door; immediately a light was broken from the other side; the prisoner stepped back and drew his revolver and cocked it, and although seized by one person present, who said, Don’t shoot, Billy, these are my friends,” he turned partly around and fired in the direction of three persons standing near each other, and hit the deceased, with whom he had had no controversy, in the abdomen, and inflicted a wound from which he afterwards died. The deceased exclaimed that he was “ done for ” and fell over, but one seemed to think at that time that the bullet had taken effect. This is the substance of all that took place up to the time of the shooting. It is impossible, I think, to see in it any “ deliberate and premeditated design” to effect the death of any person. There nothing of deliberation or premeditation in the affair. The madness of drink operating upon a brain and system physically and morally weak and wicked, perhaps, was there, and very likely a drunken and reckless intent to kill, quite sufficient to justify a conviction of murdei’ in the second degree; but it seems to me in vain look for evidence of deliberate and premeditated murder.

What afterwards occurred gives no different color to the actual transaction. It was in substance this: When officers came in, the prisoner pretended to be performing his official duty. The officers examined the deceased and did not discover that he was shot. One proposed to send for an ambulance. The prisoner exclaimed, “Ambulance be d-d, the man is not shot,” and he gave into their custody two young men, whom he charged with disorderly conduct, and he himself dragged out the deceased to take him to the police station. On the way he beat him brutally with his club, but those injuries are shown to have had no effect in causing his death. At the station he stated that he had arrested the deceased for drunkenness and disorderly conduct; that he was assaulted by a mob and his prisoner was rescued, and that he shot the prisoner to prevent his escape, and afterwards, when he was told the prisoner was really shot, he said in substance he ought to be, for he “ tried hard enough to shoot him.”

His statements were wholly false. He had not arrested the deceased. There had been no mob, no rescue or attempt at rescue, and no shooting on such an occasion. This was all a falsehood invented as an excuse for his misconduct as an officer, and the statement that he “ tried hard to shoot the deceased,” was not intended to be anything more than an assertion that he tried hard to do his duty as against a mob of rescuers and an escaping prisoner. It is not to be detached from its context and distorted into an admission that he tried hard to shoot the deceased, while he sat quietly on a whiskey cask in Cody’s saloon at the time he was wounded. To do so is to make the prisoner’s false declaration, that something took place that would justify a shooting, a confession of something in conflict with the testimony of every witness on the part of the people.

The actual shooting was clearly the act of an infuriated man, firing with a reckless intent to kill any one who might chance to be in the way of his bullet; but there is not, I think, a symptom of proof that he “ tried hard to shoot ” his victim, who by chance happened to be in the range of his reckless aim.

There are several questions in the case arising upon exceptions-

of tbe case should be put upon tbe ground tbat as matter of law there was not sufficient evidence of deliberate and premeditated design to effect death to justify tbe conclusion, so tbat tbe Court of Appeals may review our decision and correct it if wrong.

concur, a of tbe judgment and a new trial.

Brady, J.

(dissenting):

upon appellant was convicted these: He had, by his aggressive conduct, driven nearly all the^ persons from the saloon (fourteen or fifteen in number) in which the deceased was shot, some of them taking refuge in the card-room, which was separated from the saloon by a partition, having a door partially of glass opening into it, and others in a rear room or hall. Those who remained in the saloon were tbe proprietor Cody, his wife. Cantwell, Heating and the deceased. The appellant approached the door mentioned and observing that one of persons who had retreated was exposing his head, doubtless to-ascertain where the appellant was, struck at the head, but missed it broke some of the glass. He then backed from the door, and he did so put his club in his belt and deliberately drew his revolver, which he had some trouble in taking from his pocket. Keating seeing this said to him, “ For God’s sake, Billy, don’t fire • are friends of mine.” The appellant paid no attention to request, but turned towards where the deceased was standing, others, raised his revolver and fired the fatal shot. He attempted another shot, but was stopped by Keating and Buckley. asked by the sergeant at the station-house after his arrest,. Conroy, is this man shot ? ” he said, I don’t know; if he is not is not my fault; I tried hard enough to shoot him.”

This conduct was by the jury declared to be that of a person responsible for his acts, and not that of one affected either by the element of insanity or temporary derange-arising from the effect of liquor taken. He had displayed a belligerent spirit soon after entering the saloon, and having provoked quarrel with one McGuinness, knocked him down and continued maltreat him until he was dragged away. The brutal reckless-of the murderous desperado had seized him, and .when he drew his pistol he determined to shoot some one of the persons who remained in the saloon, a resolution strengthened doubtless by request of Keating, a result natural in the conduct of a person controlled by the bravado spirit which then influenced him. He resolved to shoot notwithstanding he had no enemy to confront him; was not in danger by act or threat of any one present, and knew his victim must be one of the persons present. The deceased was to him the most insignificant apparently, and suited his design. His purpose was to shoot, and he carried it out by discharging his weapon at the deceased, towards whom it must have been jiointed or it would not have taken effect upon him. There is no pretense that the ball from the pistol was deflected by contact with any substance. It was sent directly into the body of the deceased.

We have then apparently the pre-existing carried out by the shot, the premeditation and deliberation culminating the shot at the deceased, a fact demonstrated by the declaration the appellant, that if the deceased was not shot it was not his fault, he tried hard enough to do it. This is undoubtedly the theory upon which the jury r*endered the verdict given, and whether was right or not is the only question of the least importance here.

The legal proposition necessary to sustain upon facts and this theory is that if a person in the company of several deliberately resolves to shoot one of them, and does the act contemplated, he may be charged with having killed the person shot with a premeditated and deliberate design to effect his death. It is not necessary, under such circumstances, in order to properly convict a person of murder in the first degree, to show that when the intention to shoot was formed the person shot was also then selected and determined upon. It is enough if there be a general design to shoot one of the persons present, and such intention is carried out.

The Penal Code, by section 183, provides by that the killing of a human being is murder in the first degree when committed from a deliberate and premeditated design to effect the death of the person killed, or of another. This contemplates, as well as others, the crime of killing a person not within the intent of the killer, and slain in error or by mistake. If the design is to kill B., and the shot misdirected kills 0., it is murder if the elements exist wbicb would make it murder bad B. been killed in accordance with tbe original intent. If tbe design be to kill one of several present, and one be selected in accordance with sncb design, it is not at all illogical or unreasonable to declare that tbe person killed was slain by premeditation and deliberation. Tbe case as presented to tbe jury having the characteristics mentioned it coidd not be taken from them. Indeed, they were warranted in declaring tbe presence of the design 'stated, not only from tbe acts of tbe appellant, but bis subsequent declaration that if be did not shoot tbe deceased it was not bis fault, be tried bard enough to do it.

In estimating tbe force and effect of the circumstances to wbicb reference has been made, we must bear in mind that we are dealing with a sane person having no enemy to overcome, but brutally excited and drawing his pistol without reason, without cause, and seemingly for no other than a murderous purpose, and after be had without its use created a reign of terror. He bad time enough to deliberate upon tbe act of shooting. Tbe law upon that subject was clearly and accurately charged, and no exception was taken to what was said. The court said in reference to deliberation and premeditation, quoting from tbe opinion of Justice Eaklb in tbe People v. Majone (91 N. Y., 211), that tbe design must precede the killing by some appreciable time, but tbe time need not be long. It was sufficient if time existed for choice to kill or not to kill; and when the time was sufficient for that it matters not bow brief. The appellant it must be observed was advised of tbe impropriety of bis contemplated act; be was warned against it by a request made of him not to shoot, to which be paid no attention. He did not mean to be interfered with; be was master of tbe situation and meant to maintain that attitude. He was cool and collected when be reached tbe station-house, and bis declaration there made was undoubtedly understood by him.

It matters not what we may conjecture as to tbe spirit in wbicb it was said or tbe emotion which prompted it. It must be united to other events and he must take the consequences resulting from it. If tbe jury bad not found that be was then wholly responsible for bis conduct, we should be obliged to assert this to have been bis condition when tbe declaration mentioned was made. There is, and can be no pretense that be was as much excited at that time as be was in tbe saloon. He was then where .be could not bold supreme sway either as a bully, bravado or desperado.

Tbe history of this country unfortunately is not without precedent for terrorisms created by one individual even without tbe semblance of authority, a feature not marking the appellant’s career on the occasion referred to, inasmuch as he was dressed in his uniform, and had all the insignia necessary to enable him to act as the official bully, the man in power, in brief authority.

It is true that all the witnesses for the people did not tally in their details of the occurrence, but the jury had the right to accept such version as*the evidence best commended to their judgment, and the assumed controlling facts herein recited are established by it. The witnesses were not sufficiently in conflict to make it difficult to reconcile their testimony and establish a satisfactory basis for the judgment arrived at, and particularly inasmuch as the witnesses who said the pistol was pointed at the floor or a barrel must have been mistaken, as the ball discharged from it entered the body of the deceased, and without deflection, as already suggested.

Whether the premeditation and deliberation required by the statute as an ingredient of murder in the first degree existed or not is, as already suggested, the only question at issue on this appeal, none of the exception^ taken having any real value. The charge was elaborate and clear. Indeed it was pronounced by the learned and experienced counsel for the appellant to be most fair, and numerous requests to charge which he had handed to the courr were withdrawn by him. After a careful, deliberate and conscientious examination of this case, therefore, with, I hope, a just sense of my responsibility, I am unable to agree with the conclusion that the learned justice who presided at the General Sessions could in the face of the appellant’s statement at the station-house, in connection with the other facts, withdraw the element of premeditation from the consideration of the jury. The question of the appellant’s innocence or guilt was for them to determine on the evidence. They are the judges of the facts, and if a reasonable view of the evidence sustains their finding it should not be disturbed.

It may be said in conclusion that the morale of this case is most revolting. The appellant was a police officer clothed with important trusts and honored with grave responsibilities. He wás allowed to carry arms, not only to aid him in the prevention of crime, in malting arrests, and for his own protection, but to afford protection to the citizen — not as a means of maltreating him. His duties kept him upon the highways unless called upon in an emergency to depart from them. He had no business in the saloon where the killing took place; no duty to perform there, and entered it in violation of the trust reposed in him, a dereliction which he aggravated by breaking the peace which he was bound not only to observe but preserve, and by a cowardly and murderous act upon an unoffending citizen for which, as he was not insane, there is naught to be found in extenuation, but everything in condemnation. He became from choice, perhaps from ambition, a criminal, combining in his conduct the bully and the desperado, displaying a reckless disregard of human life. His victim was an inoffensive person it would seem, who certainly gave him no provocation for violence, and whom he shot as the result of a wanton determination to shoot some one. The public cannot well be putin greater jeopardy than that which must exist if policemen abuse their office, its duties and responsibilities by such deliberate violation of the law and the good • order of society. While they should be fully protected in the proper discharge of their duties, and should also receive in the administration of the law, when charged with criminal acts, the same measure of justice which is meted out to others under kindred circumstances, it is not going too far to say, that they should be held to a strict accountability when their conduct while in uniform is under investigation and acts of criminal import are charged against them.

Entertaining these views, I think the judgment should be affirmed.

Judgment reversed and new trial ordered.


author: Daniels, J.:

text:
    In the Matter of the Petition of SOLOMON MEHRBACH to Vacate an Assessment, etc.

      Assessment — am application to vacate it will not lie afta’it has teen paid — 1858, chap. 338.
    In. December, 1873, the petitioner joined with others in presenting to the court a joint petition, under chapter 338 of 1858, for the vacating of an assessment. In August of that year an order was made authorizing the petitioners to sever their petitions, and to serve separate petitions to have the assessments on their several lots vacated and reduced. Subsequently the petitioner served such new petition, but prior thereto he paid the assessment on his lot.

      Reld, that such payment formed a legal answer to his application.
    Appeal from an order directing an assessment to be reduced to tbe extent of $539.34.

      Albert L. Cole, for tbe mayor, etc., appellant.

      P. A. Hargous, for tbe petitioner, respondent.
   Daniels, J.:

Tbis proceeding was originally commenced in December, 1873. At that time tbe petitioner joined with others, owning other parcels of land, in a joint petition to vacate tbe assessment. Tbis proceeding remained in tbis condition until August, 1883. At that time an order was made in tbe following words:

Ordered, That tbe petitioners named in said petition of James "Wood and others be, and they are, hereby authorized and granted leave to sever their petitions, and to serve separate petitions for tbe vacation or reduction of tbe above entitled assessment on their lots, as mentioned in said petition of James Wood and others, and containing tbe allegations now in said petition.

After tbe making of tbis order tbe petition was served and presented on behalf of this petitioner for the relief finally awarded to him by tbe order from which the appeal has been taken. But in tbe meantime, and in the year 1877, the assessments made upon bis lots for tbe expenses of the improvement were paid, and these payments are rebed upon as an answer to bis application. It was made under tbe authority of chapter 338 of tbe Laws of 1858, allowing only tbe party aggrieved by tbe irregular or void assessment to make tbe application, and that contemplated that it should be made-by the party himself owning the property, or by those jointly interested in it. It did not provide for a joint proceeding including several distinct interests or titles of the nature of that commenced by the petition served in 1873. And the analogous practice for relief by action against unlawful taxation, was opposed to this form of proceeding. (Magee v. Cutler, 43 Barb., 239, 260; Thurston v. Elmira, 10 Abb. [N. S.], 119.) Accordingly, if that proceeding had been carried forward to a hearing and decision, relief in it would only have been secured to such applicants only as were jointly interested in the same property. As to the others, it would necessarily have been dismissed. Instead, however, of proceeding to that point, the application for the order which has already been mentioned was made. That order allowed the petitioners to sever their applications, and under it this petitioner prepared and served a petition in his own individual behalf. That is the mode in which the law has provided for the commencement of proceedings of this description. And it was accordingly a new proceeding, first commenced by the service of his petition. The effect of the order was to discontinue the preceding proceeding as to him, leaving him at liberty to present and prosecute an application in his own behalf, and that application was first instituted by the service of his petition.

Before that was done the assessments themselves were paid, and under the authority of the cases of Matter of Lima (77 N. Y., 170) and Matter of Hughes (93 id., 512) those payments formed a legal answer to this application to vacate the assessment. After the payments were made the petitioner was no longer aggrieved by the assessment, and under this act he had no legal ground for complaint. The assessment had become entirely satisfied by means of these payments, andthe order reducing the amount was accordingly unauthorized.

The order should be reversed and the motion denied, with costs.

Davis, P. J., concurred.

Present — Davis, P. J., and Daniels, J.

Order reversed, with ten dollars costs and disbursements, and motion denied.


text:
    THE ATTORNEY GENERAL, Plaintiff, v. THE CONTINENTAL LIFE INSURANCE COMPANY, Defendant.

      Insurance policy — when il is not avoided by a failure to pay the premium when, due— when the insured may rely upon the eustom of the eompa/ny to notify him of its matwity — premiums need not be paid to a receiver of an insolvent company.

    The defendant issued to one Tyner, a resident of Bushville, Indiana, a policy of insurance upon his life, the annual premium upon which became due on April fourteenth in each year. From the time the policy was issued, in 1870, down to 1876, the company in each year sent a notice to Tyner of the maturing of the premium and a receipt thereof to a bank at Bushville, and upon receipt of the notice Tyner paid the premium at the bank. Dividends were declared annually upon the policy, which were applied in reduction of the premiums; and until the insured was informed of the amount of the dividend ho could not tell the amount of the premium. In 1876 no notice of the amount of the dividend, or of the amount due upon the premium, was given to Tyner, nor was any receipt sent to the bank. The assured died on December twenty-second of that year, leaving- the premiums due in April unpaid.

      Meld, that the company could not set up the failure of the deceased to pay the premium as a defense to an action upon the policy, as from the course of dealing between the parties the assured had a right to believe that notice would be given to him of the amount due, when the company required it to be paid, and that a receipt therefor would be sent to the bank.
    A policyholder of an insolvent life insurance company is not required to pay premiums after a receiver of the property and effects of the company has been appointed.
    Appeal by Francis Grey, as administrator of tbe estate of William Tyner, from an order affirming the report of a referee rejecting a claim made for the payment of a policy of life insurance issued ;by the defendant.

      Lucius Me Adam, for the appellant.

      Edward H. Hobbs and John C. Keeler, for the attorney general, ■respondent.
   Daniels, J.:

The policy was issued on or about the 26th of April, 1810, upon the life of William Tyner for the sum of $5,000, payable to his legal representatives. It was subject to the payment of an annual premium .of ninety-two dollars and fifty cents. This premium, by the terms of the policy, was payable on or before the fourteenth of April in every year, and it was provided in the policy that in case the premium should not be paid, as specified therein, that the policy should be null and void. The premiums preceding the one which became due on the 14th of April, 1816, were regularly paid, but that was not paid and the assured died on the twenty-second day of the following December. To relieve the ease from the effect of this default, it was proven that the company had made it a practice to previously give notice to the assured of the fact that the premium was maturing or had become payable, and a receipt for it was sent to the Rushville National Bank, situated at Rushville, in Rush county, Indiana, where the assured had his place of residence. TJpon this notice being received, and the receipt delivered to him, the assured was accustomed to pay the premiums at the bank, which remitted the amounts to the insurance company.

Before the year 1876 the company had an agency in the State of indiana, but that was terminated early in the year 1876, as early certainly as the month of May. The policy was of the description Known as a participating policy, allowing the policy-holder a share in the dividends of the company, which were applied in reduction of the -annual premiums required to continue it. For that reason’ it could not be known what the amount would be, which would be payable for the satisfaction of the annual premium, until the dividend was ascertained and deducted from the gross amount of the premium. This, in the preceding years, had been done by the company before forwarding the annual receipt, which stated the deduction and the balance payable by the assured for the payment of the premium. No notice of the amount of the dividend or of the balance due from him was given to him for the premium maturing on the 14th of April, 1876. Neither was any notice sent to him stating the amount due from him, or indicating the manner, where or how it might be paid.

From this course of dealing which had arisen between the company and the assured under this policy, he had the right to believe that notice would be given to him of the amount due from him when the company required this premium to be paid, and that a receipt would be forwarded, as receipts previously had been, to the' bank, containing the same information. That conclusion could be reasonably, as well as correctly drawn by him from the manner in which, with the assent of the company, the same business had previously been transacted. The assured would not be in fault for assuming that a like course would be taken as to the premium due in April, 1876, as had been in the statement and collection of the premiums for the preceding years. He could very naturally assume that when the company desired the premium to be paid, that the ordinary receipt would be sent forward and information given to him of the fact, and rely securely upon the supposition that, this usage which had grown up between himself and the company, would still be observed. The fact that the notice and receipt wore delayed beyond the usual period of time, would not necessarily have the effect of disturbing this conviction. For it might well be supposed that when the company required the money, it would follow the usual course it had taken to obtain it. The circumstances were such as to induce this conviction in the mind of the assured, and it would be a fraud upon him and his personal representative to permit the company, in violation of this assurance, to forfeit the policy without notice at any time to him that it intended to abandon the course which had previously been so uniformly followed; and that, the law will not permit. For it requires the same good faith in dealings of this description that it does in all other transactions, and will not permit one party to mislead another by creating an expectation not designed on the part of the party creating it to be realized. This subject was examined in Insurance Company v. Eggleston (96 U. S., 572). The facts there were similar in their legal effect to those which have been established by the evidence given in support of this claim. There the assured had received information when his premiums-became payable, where and to whom they could be paid. But that was omitted as to the last of the premiums, and it was not paid, and because of its non-payment the liability of the company upon the policy was resisted. In answer to that the court said, Bradley, J., delivering the opinion: “ Such notice it would seem had never been omitted prior to the maturity of the last installment. The effect of the judge’s charge was, that if this was the fact, and if no such notice had been given on that occasion, and the failure to pay the premium was solely due to the want of such notice, it being ready, and being tendered as soon as notice was given, no forfeiture was incurred. We think the charge was correct under the circumstances of this case. The insured had good reason to expect and to rely on receiving 'notice to whom and where he should pay that installment. It had always been given before; the office of the company was a thousand miles away, and they had always directed him to pay to an agent, but to different agents at different times.” (Id. 578.)

The principle here announced and acted upon is even more especially applicable to this case than it was to the one then before the court. For the assured, under this policy, could not know what amount was required to be paid by him for the extinguishment of the premium without information from the company showing the extent of the deduction made by the dividend of the company The fact appeared in the present case that the assured was a man of responsibility, prompt in the payment of his debts ; and the probability was very decidedly indicated that the premium would have been paid by him, if it had not been for this neglect and. omission on the part of the company itself. The same subject was considered in Helme v. Philadelphia life Insurance Company (61 Penn., 107), where it was said by Thompson, C. J., that “ if it was the practice of the company to notify the plaintiff of the times her premiums were due and payable, and omitted on the occasion of the default; or if they so dealt with her as to' induce a belief that the clause of forfeiture would not be insisted on in her case, in case of a dereliction of payment at the day, and it was declared that the only risk she ran in not paying at the precise time, was death oecuring in the interval of non-payment of overdue premiums, and thus put her off her guard, they ought not to be permitted to take advantage of a default which they may themselves have encouraged.” (Id., 110.)

A similar view was taken of the law in Meyer v. Knickerbocker Life Insurance Company (73 N. Y., 516), where, upon the application of the same general principle, the company was precluded from taking advantage of the omission of the assured to pay the premiums upon the. policy. The case of Attorney General v. Continental Life Insurance Company (93 N. Y., 70) has been relied upon as establishing a different principle and sustaining the view adopted and followed by the referee! But it does not, for there the facts were not of such a character as to induce the assured to rely securely upon the expectation that information would be received from the company, and a receipt showing the balance required to be paid would be forwarded before payment of the premiums should be made, as were the facts in the present case.

On the 25th of October, 1876, the company became insolvent and a receiver of its property and effects was appointed. TJp to that time the assured was not shown to have been in any default under the circumstances, as thpy were made to appear by the evidence. That' appointment relieved him from further attention to the payment of the premium. It was not called for, and he was from that time absolved from the obligation of payment. (People v. Empire Mutual Life Insurance Company, 92 N. Y., 105.) TJp to that time, certainly for the reasons already stated, no such default existed against him as could legally result in forfeiting the policy. Throughout the intervening period he could fairly and honestly rely upon the expectation that when the' company desired the premium to be paid, it would forward the necessary information and receipt, and that he would not before then be considered in default. That he did act upon that belief is a just and fair inference from the evidence given in support of the' claim, and under the authorities which have been referred to, the referee should have sustained the claim as it was presented to him. The order from which the appeal has been taken should be reversed and an order should be entered sustaining the claim as a valid claim against the receiver, to the extent to which it was settled by the actuary, with the usual costs and disbursements on the appeal to the appellant.

Davis, P. JT, concurred.

Present — Davis, P. J., Beady and Daniels, JJ.

Order reversed, with ten dollars costs and disbursements; order entered allowing claim as adjusted.


text:
    PRATT MANUFACTURING COMPANY, Respondent, v. JORDAN IRON AND CHEMICAL COMPANY, Appellant.

      Pleadings — a denial on information and belief is bad — Code of Qwil Procedure, secs. 500, 522.
    The defendant served an answer, in which it, “ answering the complaint of the-plaintiff upon information and belief," alleged:

      “First. That it admits that both plaintiff and defendant are domestic corporations.
    “ Second. It denies each and every other allegation in the said complaint contained Held, that the answer did not comply with the requirements of section 500 of the Code of Civil Procedure, and was properly stricken out.
    Appeal from a judgment recovered on an order striking out the defendant’s answer.

      Dill (& Ghcmdler, for the appellant.

      Charles 3. Knox, for the respondent.
   Daniels, J.:

The answer of the defendant which was stricken out, was in the following form:

The defendant answering the complaint of the plaintiff, upon information and belief, alleges:

First. That it admits that both plaintiff and defendant are-domestic corporations.

Second. It denies each and every other allegation in said complaint contained.

Wherefore, the defendant demands judgment, that the-complaint be dismissed, with costs.

It was neither framed nor made in the manner prescribed by section 500 of the Code of Civil Procedure. ''

When it is designed to deny any portion of the complaint in an action, that section has directed that it shall be done by a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.”

Neither of these directions was observed in drawing the defendant’s answer, but it was stated that the defendant answered upon information and belief. It did not deny that it did' not have knowledge or information sufficient to form a belief of either of the allegations contained in the complaint. Neither did it in direct terms deny either of such allegations. It might very well have had the requisite knowledge, or' information to form a belief, that all the allegations contained in the complaint were true, consistently with the answer as it was served in the action. The mode of answering prescribed by the Code is clear and simple, and it was intended that it should be substantially followed, and if not so followed the allegations of the complaint would bo left uncontroverted, and required, by section 522 of the Code of Civil Procedure, to be consequently taken as true. This construction was followed upon a similar pleading in Lloyd v. Burns (38 N. Y. Supr. Ct. R., 423), where this mode of answering was condemned as ineffectual for the purposes of the action. And that was affirmed in 62 New York, 651. Neither of the cases cited in support, of the appeal lend any countenance to this form of answer. They all proceeded upon facts so variant from it as to be inapplicable. It is not necessary to examine the further objection whether the verification was formally correct or not, for as the answer was s® substantially defective as to create no issue in, the case, the court was right in striking it out; and as no merits have been sworn to, no leave to serve a further answer to the complaint can be directed. If that is to be obtained it must be upon other papers warranting the order.

The judgment and order should be affirmed, with the usual costs and disbursements, but without prejudice to a motion on the merits for leave to serve an answer.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed without prejudice to a motion on the merits for leave to answer.


author: Daniels, J.;

text:
    MARTIN KEDIAN and Another, Respondents, v. JOSEPH B. HOYT, Appellant.

      A trustee is personally liable for work done for, and, materials furnished to, the trust estate — principal and agent — the agent ca/nnot recover commissions included in the litis of persons from, whom, he purchases supplies for his principal.

    Appeal from a judgment in favor of the plaintiffs, entered on the verdict of a jury, and from an order denying a motion 'for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought against the defendant to recover the value of work, labor and materials performed for, and supplied to, the estate of which the defendant was trustee, and for money paid out upon the accounts of other persons alleged to have been employed by the plaintiffs for similar purposes, with the authority of the defendant.
    The court at General Term, after holding that the evidence justified the jury in finding in favor of the plaintiffs, said : “ The right of the plaintiffs to maintain the action against tbe defendant, individually, was also made the subject of controversy upon the trial, but as the jury were justified by the proof in their conclusion that the materials had been furnished and the labor had been performed under the authority of the defendant, although he was the trustee of an estate, an action against him individually for the amount due could regularly be maintained. (Austin v. Munro, 47 N. Y., 360; New v. Nicoll, 73 id., 127, 131.) * * *
    “ It appeared by the testimony given on the part of the plaintiffs on the trial that they were allowed a rebate of ten per cent upon the bills made by the persons employed by them to do other work' and furnish other materials for the building required to be repaired.

      “ And this ten per cent was included in claimed payment from the defendant. And it was allowed to be recovered at the trial, upon proof that it was customary for persons having a job of this description to receive ten per cent rebate from the persons employed by them to perform labor or supply material for the work. No authority was derived from the defendant to receive from the persons furnishing the bills and charge against the defendant this rebate of ten per cent. But the right to reserve it was placed entirely upon the existence of such a custom. This custom was vicious and unlawful. (Wadley v. Davis, 63 Barb., 500-504.)

      “ It was inconsistent with the obligations of fidelity to the interests of the principal which the law requires to be observed by his agent. For the law does not permit an agent to reserve a profit or benefit to himself in discharging duties required to be performed by him on behalf of his principal. To reserve such a benefit for himself is a fraud which the law will not tolerate. The agent is required to act disinterestedly and with fidelity in the promotion of the interests of the person or persons who have employed him. And if he fails to do that, and by that failure secures a profit or advantage to himself, he is bound to account for that to his principal. This obligation was considered in Dutton v. Willner (52 N. Y., 312), where it was held that ‘ all profits and every advantage beyond lawful compensation, made by an agent in the business, or by dealing or speculating with the effects of his principal, though in violation of his duty of agent, and though the loss, if one had occurred, would have fallen on tJie agent, are for the benefit of the principal.” * * * The rule which places it beyond the power of the agent to profit by such transactions is founded upon considerations of policy and is intended not merely to afford a remedy for discovered frauds, but to reach those which may be concealed, and also to prevent them by removing from agents and - trustees all inducement to attempt dealing for their own benefit in matters which they have undertaken for others orto which their agency or trust relates. (Id., 319.)

      “ In undertaking his employment, the agent pledges his integrity and his fidelity to his principal; and it is a fraud upon his principal to attempt to make use -of his position to promote his own advantage, at the expense of his principal, and ‘ any usage by which an agent to appropriate sucb profits is nefarious and fraudulent, and as such will be repudiated by the courts.’ (Whart. on Agency, §§ 238, 240.) This subject was further considered in Rockford, etc., Railroad Company v. Boody (56 N. Y., 456, 461); Morrison v. Oydensburg Railroad Company (52 Barb., 173, 179); Harrington v. Victoria Dock Company (L. R., 3 Q. B. Div., 549); Smith v. Sorby (Id., 552), and Panama Telegraph Company v. India Rubber Company (L. R., 10 Ch. App., 515), and these general principles were uniformly approved. In the last case it was declared that any surreptitious dealings between one principal and the agent of the other is a fraud on such other principal. (Id., 526.) * * *
    “ This mode of dealing, as already óbserved, was fraudulent and improper, and violated the obligations arising out of the relations between the plaintiffs, so far as they had been employed by him. But while that is the legal result, it did not deprive the plaintiffs of their right to reimbursement of the amount actually paid to these other persons. To that extent the estate represented by the defendant had been benefited. An equivalent consideration had been received, for which the defendant was liable to make payment, and there was no error therefore in denying the application made on his behalf to amend the answer on the trial in such- a manner as to allow this misconduct to be relied upon as a legal defense against the entire claim made for money paid out. The fraudulent mis conduct of the plaintiffs did not affect their right to reimbursement for that amount. For it extended no further than the claim for the ten per cent allowed to them, and not paid out by them in the discharge of their duties as the defendant’s agents.

      Stewa/rt L. Woodford, for the appellant.

      John M. Bowers, for the respondents.
   Opinion by

Daniels, J.;

Davis, P. J., and Haight, J.,

concurred.

Judgment reversed and new trial ordered, costs to abide event, unless plaintiffs stipulate as directed in opinion, in which case judgment affirmed as reduced, without costs.


author: Vann, J.:

text:
    In the Matter of the Application of the NEW YORK, LACKAWANNA AND WESTERN RAILROAD COMPANY, Respondent, to Acquire the Lands of SOLOMON SCHEU, Appellant, and Others.

      Taking of land for railroad purposes — verification <f the petition — when a party is estopped from questioning it — who may verify it as an officer of the company — •when the land of a landowner, over whose land the route does not pass, may he taken — the opening and closing argument — view of the premises.

    A petition filed, by a railroad company to acquire title to land was Verified by one Hough, who described himself in the affidavit of verification as being the general land agent and an officer of the company. It appeared upon the hearing that Hough was the general land agent of the company, and that he was authorized to purchase the right of way and other necessary lands, and bind tbe company by his contract, but that he was not the president, secretary, treasurer, nor a director thereof. The landowner made no special appearance' or preliminary objection, but filed an answer and thereafter consented to the reference of one of the issues involved.

      Held, that he thereby submitted himself to the jurisdiction of the court, and waived any right to question the sufficiency of the verification upon the ground that it was not made by an officer of the company as required by statute. (2 R. S. [7th ed.], 1549, § 14, and sec. 525 of Code of Civil Procedure.)
    That the general land agent was an officer of the corporation within the meaning of that term, as used in 2 Revised Statutes (7th ed., 1546,1547, §§ 5 and 6), and had a right to verify the petition.
    The coiSmon council of the city of Buffalo authorized a railroad company to construct and maintain its road through Water street upon the condition that •the company should, construct, maintain and operate a swing bridge across what was known as the Evans ship canal, at such an elevation and of such construction as not to impair the navigation of said canal as then existing, and not to infringe on vested private rights.
    One Scheu was the owner of a piece of land lying west of the said canal and north of the line of the defendant’s road. It was found necessary to construct a swing bridge on the west side of the canal, swinging to the north, and over the land of Scheu, which was required for this purpose.

      Held, that as the consent of the common council was required to enable the company to construct its tracks in one of the streets of the city, and as it had power to impose the conditions above mentioned as to the construction of the bridge when granting the right so to do, and as the land was required for the proper operation of the bridge, the company was entitled to have the damages which Scheu would sustain determined by the commissioners, although the line of its proposed road did not pass over any part of his land.
    The party whose land is taken and who claims damages therefor, has the right to the opening and closing argument in the proceeding.
    The commissioners may re-examine the premises after the matter has been submitted for then1 decision.
    Appeal from an order of the Erie Special Term, made on the lGth of August, 1882, appointing commissioners to ascertain and appraise the compensation to be made to the-owners of certain rear estate which the New York, Lackawanna and Western Railroad Company sought to condemn for the purpose of constructing or operating its proposed railroad. Also an appeal from an order, made by the Erie Special Term on the 24th of October, 1882, confirming the report of said commissioners.
    This proceeding was instituted by the New York, Lackawanna and Western Railroad Company to acquire title to certain lands in the city of Buffalo, of which Solomon Scheu was the owner in fee. The petition is in the usual form required by the general railroad act, and, among other things, alleges that the line of the proposed railroad runs for several hundred feet within the boundaries of Water street in said city, and within the limits of said street crosses the Evans ship canal; that in order to restore said street to its fqrmer state, or to such state as not unnecessarily to impair its usefulness, it is necessary to construct a swing bridge over said ship canal; and that for the purpose of constructing and operating said swing bridge the land in question is required.
    An answer was filed by the owner denying that the petitioner had located its proposed route along tbe line of Water street, or tbat it bad given tbe notice of location required by statute, and alleging tbat tbe land described in tbe petition was not required by said railroad conrpany for the purposes of its incorporation.
    The referee to whom it was referred to report as to the necessity of taking tbe land, found that tbe Evans ship canal, extending from Buffalo river across Water street to tbe Erie canal, was built in 1831 to allow vessels to come from tbe river into tbe canal and reach docks upon either side thereof ; that it' has since been used for receiving and discharging freight both from lake and canal; tbat a drawbridge, at first erected across it at Water street, was afterwards replaced by a swing-bridge, which of late years has been maintained at the expense of the city; that since 1863 said bridge has swung to the south on the easterly side of the canal, and has been of sufficient height above the surface of the water to allow canal boats to pass under it when closed; that the proposed bridge is to be built on the west side of the ship canal, and is to swing to the north, so that when it is open the long arm of the bridge will swing over the canal in question, and' that its height will not allow canal boats to pass under it when closed; that it could not be built on the old site without interfering with adjacent buildings or preventing the use of docks, and that the land described in the petition was required for the purposes of the incorporation of the petitioner.
    It further appeared from the evidence taken by the referee, that the common council of Buffalo had consented to the construction of the petitioner’s road through Water street, upon the condition that the railroad company should construct, maintain and operate a swing bi’idge across said ship canal, “at such an elevation and of such construction as not to impair the navigation of said canal as now existing, and not to infringe on vested private rights.” Said canal is private property, subject only to the public right of way in Water street. The bridge that the petitioner proposes to build is four feet lower than the present bridge, and it is necessary to construct the bridge at that height in order to conform to the grade of the street.
    The land in question forms no part of Water street or of the roadway of the petitioner, but is contiguous thereto and lies on the northerly side thereof, and on the westerly side of said ship canal. The evidence tended to show that by taking the land in question and building tlie kind of bridge proposed, tbe petitioner would inflict tbe least damage upon private rights.
    Tbe report of tbe referee was confirmed, and tbe other issues raised by tbe answer were tried by tbe court at Special Term, and determined in favor of tbe petitioner. From tbe order thereupon made appointing commissioners of appraisal, tbe first appeal is brought.
    Tbe commissioners thus appointed at first proceeded, in company, with tbe counsel for .the respective parties, to view the premises, in question, and then met to take tbe evidence. The counsel for tbe landowner insisted that tbe petitioner had the affirmative, and should offer bis evidence first, and asked tbe commissioners to bold accordingly. Tbe request was denied and exception was taken. Witnesses were thereupon called by either side, who testified to tbe value of the land to be taken, and as to tbe injury to tbe owner’s remaining land. After tbe case bad been summed up aud submitted, tbe commissioners adjourned to a day certain, when they again viewed tbe premises, but without tbe presence, knowledge or consent of either party, or tbe counsel upon either side, and afterward made their award of damages. From tbe order of tbe Special Term confirming such award, tbe second appeal is brought.

      Humphrey Lockwood, for tbe appellant.
    Bowen, Rogers da Locke, for the respondent.
   Vann, J.:

Tbe petition by which this proceeding was instituted was verified by James T. Hough, who, in tbe affidavit of verification, described himself as tbe general land agent and an officer of tbe petitioner. Upon tbe bearing before tbe Special Term, which resulted in the appointment of commissioners, Mr. Hough testified that be was general land agent of tbe petitioner, and bad charge of securing tbe right of way and other necessary lands along tbe line from Binghamton to Buffalo, and in this sense was an officer of tbe company ; that be was authorized to purchase tbe right of way and bind tbe company therefor, but was not tbe president, secretary, treasurer, or a director. After tbe bearing before tbe referee, and tbe trial before tbe Special Term, tbe objection was made for the first time that this verification was insufficient, because not made by an officer of the company, and that hence the court had not acquired jurisdiction of the proceeding.

The verification was regular upon its face. There was no special appearance or preliminary objection made by the appellant, but his first act, after filing an answer, was to consent to the order of reference upon one of the issues. He thus submitted to the jurisdiction of the court, and waived any right to question the sufficiency of the verification. (Matter of Boston, Hoosac T. and W. Ry. Co., 79 N. Y., 64.) By his general appearance, without objection, the jurisdiction of the court would have been complete, even if the petition had not been verified at all. The waiver is not affected by the fact that relying upon the affidavit he believed that the person verifying was an officer, for the court cannot be divested of jurisdiction by discovering that the defendant appeared through' a mistake of fact.

It is provided by the general railroad act that the petition shall be signed and verified according to the rules and practice of the Supreme. Court, and by the Code of Civil Procedure, that the verification of a pleading, where the party is a domestic corporation, must be made by an'officer thereof. (2 R. S. [7th ed.], 1549, §14; Code of Civil Pro., § 525.) The statute further provides that there shall be a board of thirteen directors of every railroad corporation, elected by the stockholders, and a. president, treasurer, and secretary, appointed by the directors. No other officer is specified by name,, except the inspectors of election. The directors, however, are authorized to appoint, in addition to the president, secretary .and treasurer, such “ other officers and agents ” as shall be prescribed by the by-laws. (2 R. S., 1546-7, §§ 5, 6.) A general land agent, having general charge of the subject of purchasing lands for all the purposes of a railroad corporation must be regarded as an officer of the corporation, having the right to verify petitions in, proceedings to acquire title to lands. The statute expressly authorizes the appointment of other officers than those n^med therein. The Code provides for the service of. process upon a managing agent. (Sec. 431.) Is not any managing agent presumed to be one of those “ other officers 2 ” What other distinction can be made between “ other officers and agents,” as used in 'the statute, except that those possessing general authority are to be’ deemed officers, and those having limited authority, agents ? The name of the position occupied is of less importance than the power that is exercised. Unless a general land agent is an officer, can a general superintendent, having entire charge of operating a railroad, be deemed an officer? In Glaubensklee v. The Hamburgh and American Packet Company (9 Abb., 104), it was held that a managing agent upon whom a summons had been* served was an officer for the purpose of the action, and authorized to verify the answer. In like manner we think that the general land agent of the petitioner was an officer for the purpose of the proceeding, and authorized to verify the petition.

The appellant was not entitled to notice of the proposed route, because the statute provides for such notice only to actual occupants of the land over which the route is designated. (Sec. 22, p. 1554-5.) No provision is made for notice to owners of land required for other purposes than .the construction of the embankment and the laying of the rails. No person, except an occupant or owner of land over which the route passes, feeling aggrieved by the proposed location, can take proceedings to secure an alteration thereof. (Id.) The route designated by the respondent does not pass over any part of the land in question, which lies wholly north of Water street, in which the railroad tracks are to be laid.

As no part of the land sought to be condemned is covered by the proposed route, the question arises whether the railroad company can acquire title thereto under the provisions of the general statute.

By section 28, subdivision 5, power is given to a railroad corporation to construct its road upon any street, provided the company shall restore such street to its former state,’ or to such state as not unnecessarily to have impaired its usefulness; and provided, also,, that such railroad shall not be constructed in, upon or across any street in a city without the assent of the corporation of such city. (2 R. S. [7th ed.], 1557, 1558.)

The common council of the city of Buffalo in authorizing the-construction of this railroad in Water street required the company to construct, maintain and operate a swing bridge across the Evans-ship canal. The city had the power under-its charter to grant this right and to impose this condition. (The N. Y. and H. R. R. Co. v. The Mayor, etc., 1 Hilt., 562; Pierce on Railroads, 247.) In order to comply with it the company was compelled to obtain land over which to swing the bridge when open or it could not operate its road. It was authorized by the thirteenth section of the railroad act to condemn any real estate required for the purposes of its incorporation.' The purpose of its incorporation is to build and operate a railroad for public use. The operation of the road is as essential as its construction. The land in question, therefore, is needed for one of the legitimate purposes of the road; and when the necessity exists and a reasonable discretion is used the courts will not interfere, even if the exercise of the power to take lands under the statute is attended with extreme inconvenience and hardship to individuals. (In re N. Y. Central and H. R. R. R. Co., 77 N. Y., 248; S. C., 63 id., 326; In re N. Y. and Harlem R. R. Co., 46 id., 546.)

Whether the company has complied, or is intending to comply,' with the conditions imposed by the city is immaterial in this proceeding. For the breach of a condition subsequent, such as the building of a bridge over the Evans ship canal, there is an appropriate remedy. Such a breach, however, is no defense to this proceeding. The consent of the city to the construction of the road through Watei' street authorizes the company to build its road accordingly, and the right to build the road, as already appears, involves the right to condemn the laud in question. Questions relating to the performance of conditions do not come within the scope of this investigation.

Upon the trial before the commissioners thére was no question as to the right of the landowner to damages. The only question was as to the amount of such damages. In other States the rule that the party entitled to unliquidated damages, there being no other issue, has the right to open and close, has been applied to the assessment of damages by commissioners in condemnation cases. (Conn. River R. R. Co. v. Clapp, 1 Cush., 559; Minn. Valley R. Co. v. Doran, 17 Minn., 188; Evansville and C. R. Co. v. Miller, 30 Ind., 209; Charleston, etc., R. R. Co. v. Blake, 12 Rich., 634.)

In the Albany Northern Railroad Company v. Lansing (16 Barb., 70) it was held that the subject was within the discretion of the commissioners.

Mr. Pierce, in his work on railroads (p. 187), says that the party claiming damages is deemed the actor or plaintiff, and has the right to open and close, whether the petition for an assessment was filed by himself or by the company. We think this is the correct rule.

The commissioners are required by the statute (sec. 16) to view the premises described in the petition, and it is claimed that it was irregular in this proceeding, after it had'been summed up and submitted, for them to view the premises the second time, in the absence of counsel.

The situation and condition of the lands to be taken, and their relation to other property, are facts of the highest importance in making an estimate of damages. These facts may .be proved, to a certain extent, by' witnesses,' but it is both the privilege and the duty of the commissioners to learn them from actual observation. By command of the statute they must view the premises, and hence ■courts are reluctant to review their award as to amount, because the view thus made cannot be presented on appeal. The view of the premises is, in the nature of' evidence, to be considered by them in making a decision. When they meet for consultation, therefore, .and consider all the evidence in the case, they have the same right to again view the premises that they have to consult their minutes or read an exhibit.

Each order should be affirmed, with ten dollars costs and disbursements.

Hardin, J., concurred.

So ordered.