author: Van Brunt, P. J. Bartlett, J

text:
    Delia M. Moller, Resp’t, v. Frank C. Moller, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    Divorce—Action for—Value of evidence of prostitutes and private DETECTIVES.
    Divorces should not he granted upon the evidence of prostitutes and private detectives, and the testimony should always he scrutinized with vigilant distrust.
    Appeal from judgment of special term entered upon the report of a referee in favor of the plaintiff.

      C. A. Wilson, for def’t and app’lt;, D. Clark Briggs, for pl’ff and resp’t.
   Van Brunt, P. J.

The wisdom of the rule that divorces should not be granted upon the evidence of prostitutes and private detectives is strikingly illustrated by the nature of the testimony offered to support the allegations of the complaint in the case at bar.

The prostitute influenced by money or for the gratification of feelings of revenge seems willing to answer in any way desired; and the private detective furnishes the evidence which he is employed to procure even though he has to resort to his own fertile brain for the facts or the supposed facts upon which he founds his testimony.

The complaint in this action makes three charges of adultery against the defendant, one committed on the 13th of November, 1885, at No. 48 West Twenty-sixth street, in the city of New York, with a woman unknown; another on the 28th of November, 1885, at the same place, with a woman unknown, and another on the 11th of December, 1885, at No. 37 East Twenty-seventh street, with a woman unknown.

Divers witnesses were examined for the purpose of supporting the charges, and the referee before whom the case was tried has found only one of them to be supported, namely, the charge that on the 28th of November, 1885, at No. 43 West Twenty-sixth street, the defendant committed adultery with a woman named Lotta Forbes.

The evidence to support the charges contained in the complaint consisted principally of that of a private detective named George S. Ohase, and the woman with whom the adultery of the 28th of November was alleged to have been committed. The evidence of Chase tends to show that on the 11th of November, 1885, he was employed by the plaintiff’s attorney to act as detective upon the conduct and movements of the defendant; that on the 13th of November he saw the defendant enter the house No. 48 West Twenty-sixth street at about half-past four in the afternoon; that he remained there three-quarters of an hour; that he saw him while he was in the house in the third story front room; that he saw a woman in the room; that she lit the light, and he stepped over and pulled one shade down, and she pulled down the shade of another window.

The detective testified that at another time he saw the defendant enter this house between seven and eight o’clock; that a young man was with him whom he did not know; that they went into the hall and spoke to the colored woman, and turned round and came out; that on the 28th of November, 1885, he saw the defendant again enter that house alone; that he saw him in the same room; that he saw the woman light the light, and as she lit the light again, pull the shade down of one window and go to the other window and pull that shade down; that the defendant remained in there about three-quarters of an hour, and that he and this woman came out and walked together to the Sixth avenue and went to Twenty fourth street to the back entrance of Koster & Bials’, and she went in, he bidding her good night and coming away; that he subsequently went into Koster & Bials’ and saw the woman upon the stage. On the 1st of December, 1885, the detective swears that he saw the defendant in Bast Twenty-seventh street about nine o’clock in the evening; that he came out of his father’s house, and after going to several places in Twenty-seventh street he met a woman, wdth whom he had conversation for a few seconds and walked back to No. 33 East Twenty-seventh street, where they entered the house; after they had gone in the detective stepped up to the stoop to wait awhile; that while there a woman came up and spoke to him; that after waiting a little longer he went in and went up stairs, and when he got up stairs went to the door and found it locked, and after having tried the door he stepped back again and heard it unlock; he then went to the door and the defendant came out; he was in the act of putting his top coat on; that the detective said “hello, Frank,” and he said “that’s all right,” and passed down stairs; that the detective then went into the room and saw the woman standing in the middle of the room with nothing on but her chemise; that the bed was in the middle of the room and the clothes were turned down and pretty well mussed; that he said nothing to the woman and the woman said nothing to him.

The detective swears that this house was a house of ill-fame, which is probably the only thing that he swears to that is at all worthy of credit.

Evidence was also offered by a witness named Frank Daley as to the occurrence in Twenty-sixth street, and by a witness named W S. Chase, brother of the witness George S. Chase, as to the occurrence of the 28th of November in Twenty-sixth street.

It would appear that this detective realized the fact that his evidence was entirely unworthy of belief, and that he thought it necessary to have present equally reliable witnesses whenever it became necessary to prove facts which would justify the finding of the commission of an act of adultery.

Frank Daley was examined as a witness as to the trans*action in Twenty-seventh street on the first of December. He testified to being with George S. Chase upon that evening at his request, and that he recognized the defendant. from a photograph which was shown to him by Chase; that he saw him enter the house No. .33 East Twenty-seventh street with a woman; that he saw Chase go into the house, and saw the defendant come out alone, having been in there about half to three-quarters of an hour and that Chase came out immediately afterwards.

Upon cross-examination this witness had evidently lost all his memory. It appears that he made an affidavit in this case stating that on the 9th of December, 1885, a copy of a summons in this action was given to him by plaintiff’s counsel for service upon the defendant; and that deponent on the said day made inquiries at the residence of Christopher Moller, of the attendant there, for the whereabouts of Frank C Moller, the defendant in this action, etc. Upon being asked as to whether he had made an affidavit in this case, he answered that he had not; and he further testified that he never had the summons and complaint in his possession'of a copy of it, that neither Mr. Jenks nor any one in his office ever gave him any papers in this case; that he never went to any house in Madison avenue with Chase or alone; that he knew where Dr. Moller’s house was, but that he never went to that house and never made any inquiries there. When asked whether he was sure of it, he answered that he did not recollect it; and when asked whether he would be likely to recollect it if he did, he answered, “I guess I would; I don’t know much about it; I don’t know much about this kind of business.” When confronted with the affidavit he attempts to meet it by claiming to have misunderstood the question in reference to his visit to Dr. Moller’s house and his making inquiries there, although he still adheres to the story that he never had a copy of the summons and complaint in his possession. When asked in regard to the identity of the woman with whom the defendant is alleged to have gone into the house in Twenty-seventh street, he says that he could not identify her, although he saw her just as distinctly as he he saw the defendant. When asked what kind of looking woman she was, young or old, he says that he took her to bé middle-aged and that he meant by middle-aged between nineteen and thirty-five or forty. He could not tell what kind of a cloak she had on or whether she was fight or dark complexioned, or whether she had a hat on or not. He saw she had a vail or something on her head, but could not tell whether it looked like a vail or not; nor could he tell whether she was short or tall. And yet, having seen her just as distinctly as he saw the defendant, he identifies the defendant without hesitation, but is utterly unable to give the slightest description of. the woman with whom the defendant is alleged to have been. The fact that the witness never appeared before the referee to sign his testimony as requested and as he promised to do shows that he probably had some hesitation in putting his signature to his evidence.

In support of the allegation of the adultery committed on the twenty-eighth of November, at No. 48 West Twenty-sixth street, William S. Ohase, a brother of the detective George S. Ohase, was examined, who happened to be conveniently present at the critical moment when the defendant is alleged to have gone into this house.

The statement of William S. Ohase is that he went to find his brother and found him at the corner of Thirty-first street and Madison avenue, and that while there his brother showed him a photograph of the defendant;- that he saw the defendant and another young man come out of the house, 149 Madison avenue, between seven and half-past seven in the evening; that he followed them for some time and finally, at the corner of Broadway and Twenty-ninth street, the two halted; the young man turned and went back up Broadway, and the defendant walked down Broadway to Twenty-sixth street, to No. 48; that he rang the bell and a colored woman came to the door, and the next thing the witness saw of Moller was in the third story (the gas was fit), he pulled down one shade and the woman pulled the other down; that this was just eight o’clock, the witness knowing that fact, because he asked his brother what time it was; that the witness saw Moller at the window nearest Sixth avenue; that the defendant remained in that house about half an hour, and the next the - witness saw of the defendant was down on the sidewalk with this woman; that they walked down Sixth avenue to Twenty-fourth street, to ítoster & Bials; he tipped his hat and she went in and he walked to Sixth avenue.

A comparison of the testimony of the two Chases shows conclusively the collusion between the two, and that the lesson of the one or the other was unfortunately forgotten. It is to be noticed that William S. Chase testifies to incidents happening on the twenty-eighth of November, which George S. Chase testifies to as happening on the other times when he says he saw the defendant go to this house. George S. Chase states, and is particular in his statement, that on the thirteenth of November the woman pulled down one shade and the man the other, but that on .the twenty-eighth of November the woman pulled down both shades. William S. Chase states that on the twenty-eighth of November the woman pulled down one shade and the man the other.

There is another confusion between them as to the occurrences testified to by them. William mentions the fact of the young man being with the defendant on the twenty-eighth of November. It is true that he states that he left the defendant prior to his going to the house in Twenty-sixth street, but he also states that a colored woman let in the defendant on that occasion. George mentions the young man as having been with the defendant on the twenty-sixth, and also the fact that a colored woman came to the door and that the defendant did not go in on that occasion.

The colored woman was also examined as a witness, and she testified that she only saw the defendant at the house upon one occasion, and that was at a time when he did not go in. There is another important discrepancy between the testimony of George and William Chase. George is positive that the gas light, which was lit, was not between the windows, but was towards Broadway nearest to the wall or partition, and that it swung out towards the edge of the window. William swears that the gas light was in the centre of the room, that it hung down from the ceiling and was a chandelier, and when asked how he knew if he didn’t see it, he said that he could see both sides of the wall, and that without seeing the gas jet or the chandelier he could tell standing on the other side of the street where the gas was located; that it was in the centre and did not come from the side nor from the front.

These contradictions alone seem to be entirely sufficient to throw complete discredit upon the testimony of George S. Chase, did not his testimony itself contain numerous evidences of falsity entirely independent of any testimony which was offered upon the part of the defendant. One portion shows conclusively that as to the incident in Twenty-Seventh street, Chase has testified falsely; and the referee so believed because he has not reported as to that adultery. He is also contradicted pointedly by Lotta Forbes as to seeing her on the stage of Koster & Bials, as she never appeared upon the stage at that place.

Upon cross-examination Chase was examined as to the details of these transactions on Twenty-Sixth and Twenty-Seventh street which he testified to, and he was also examined as to some subsequent visits which he made to those houses in search of the evidence which he desired to procure on behalf of the plaintiff. His testimony as to the number of visits which he made to those various places was of the most contradictory character; at one time swearing that he was there only twice; at another three times, and upon being pressed upon cross-examination, it was shown that he had been there four times. After having testified that in his investigation in regard to the matter he never made any effort to find out the names of any one of these women with whom it was alleged that the defendant had committed adultery, and having reiterated that fact more than once, and having been asked whether he had not been instructed to ascertain who these women were, and having testified that he had not, upon a subsequent examination his memory seems to have been refreshed, and he testified that he distinctly made efforts to find out what the names of these women were, having been so instructed by the counsel for the plaintiff, and that at the time of making these visits he had not forgotten these instructions.

The story which this witness gave of his entry into the house in Twenty-Seventh street, of his calling the defendant by name as he came out of the room by his first name, Frank, of his forcing his way into the room where the woman was with whom it was alleged Holler had been hawing carnal connection, is one of the most incredible stories that ever was narrated in a court of justice. Prior to this time Chase had never spoken to Holler and had no acquaintance with him whatever, and yet he salutes him “Hello, Frank,” as one of his most intimate friends, and Holler takes no notice of such a salutation from a perfect stranger He then forces himself into a woman’s apartments, which had been just left by Holler, and not a word is spoken either by the woman or by himself. This statement is utterly incredible, and unworthy of belief if Chase had not been abundantly contradicted by other testimony in the case.

Upon cross-examination, Chase further states that the next time he saw the defendant after the Twenty-seventh street incident, was on the first of December, at the Narragansett hotel, in Providence; that he told the defendant that he was there to serve him with a copy of the summons and complaint in this action; that the defendant wanted to know what it was for, and Chase told him for divorce; the defendant wanted to know on what grounds and Chase said adultery, the defendant wanted to know if they had the proof, and Chase said they had; the defendant wanted to know where, and Chase told about seeing him on three occasions in Twenty-sixth street, and also seeing him the last time go to Foster & Bials -with a woman, and also about seeing him in-Twenty-sixth street on December first, that the defendant “kind of smiled” and said “ Twenty-sixth street, that’s all right, but Twenty-seventh street, I will leave that until later,” to which the witness made no reply, although that was the place in which he pretends to have seen the defendant and to have spoken to him and the defendant to have replied. It turns out upon further examination that he was not in Providence until the 1th of December, and he swears that that was the first time he had ever spoken to the defendant. How this is to be reconciled with his previous testimony as to his having spoken to the defendant in the Twenty-seventh street house, and with his having conversed with him on December first, it is difficult to imagine. It is true that subsequently when his attention is called to this contradiction as to having seen him in Providence on December first, he attempts to excuse himself by claiming to have misunderstood the question. But it was evident that it was a statement of what he intended to testify to in the first instance, and an endeavor in the second to cover up what was a manifest forgetfulness as to the story he had already told. This witness swears as to the character of the house in Twenty-sixth street, and also as to the character of the house in Twenty-seventh street, with the greatest confidence when it subsequently appears that he has not the slightest knowledge as to the character of the house in Twenty-sixth street whatever. The evidence seems to be that the house in Twenty-seventh street was probably a house of prostitution; but it appears from the evidence of Dr. Van Schaick, who was an entirely disinterested and credible witness that, instead of the defendant being at this house in Twenty-seventh street on that evening, he spent it with him at his own office in 150 West Thirty-fourth street. This evidence seems to have been of so certain a character, that the referee has failed to find the fact of the commission of adultery in this house, although if Chase was to be believed, that testimony was decidedly the most direct. If the Detective Chase was successfully contradicted in regard to that testimony, it is very evident that his testimony should not have been believed in regard to any other fact in the case.

The plaintiff sought to reinforce the testimony of Chase by that of Alice Brooks, who was a laundress and who says that she saw the defendant in the room of Annie De Forest, which she stated was in the third-story front room, which room, however, it appears was not occupied hy Annie De Forest except for one night, but was occupied hy Lotta Forbes. She testified that Annie De Forest occupied the third-story front room, and that the first time the witness did laundry work for her was along in the fall, and that then she went away and came back again, and was there a month before Christmas. She describes Annie De Forest as a girl, with blond, short hair, and states that she saw the defendant (recognizing a photograph), and Annie De Forest in this third-story front room, sitting together on a lounge that she brought in the wash and Annie De Forest asked the defendant for some money and he gave her $3.50 to pay the witness for the washing; that the witness stayed fifteen to twenty minufes and on the next day saw on the mantlepiece in the-room the photograph of the defendant.

Upon cross-examination she said that that was along about Christmas; before Christmas. When asked how long before Christmas, she guessed it would be about a week before Christmas. When asked: “Not any more than a week?” she answered: “I don’t think so,” and when testifying as to the. time when she saw the gentleman whom the photograph represented in that room, she states that it. was a month before Christmas, in November, tha it was.not in October and not in December, a very material contradiction of her previous statement. It further appears that Annie De Forest was a brunette, and that Lotta Forbes was a blonde.

This witness was also examined as to the reputation of the house, and she states that its reputation was bad. When asked if she knew anything about it, she stated that she did not, and that so far as she knew, although she-worked for the house, there was not a prostitute in the house. And this seems to have been the character of the testimony as to this house, both by the police officer and others who were examined on that subject, swearing upon direct examination that its reputation was bad, and showing upon cross-examition that they knew nothing, whatever, in respect to it, and they had never heard that it was of bad reputation.

It now becomes necessary to consider the only evidence in the case and that is the evidence of Lotta Forbes. She swears positively that she is a prostitute; that she had been so for a year; that she was living at this house in Twenty-sixth street, and that the defendant visited her, and had carnal connexion with her.

That the defendant did visit her in this house seems to be beyond questionand that when the charge was made in the complaint' of his having committed adultery in this house on certain days, he undoubtedly supposed the charge would‘be made that such act had been committed with the witness Lotta Forbes; and this fact caused him to procure his counsel to write the letter to her when she was at New Orleans which has been introduced in evidence, and made him anxious as to the testimony which she might be called upon to give in reference to this matter and caused him to make the promises that he did if she would testify upon his behalf.

An examination of the testimony of this witness shows such a complete perversion of the various circumstances to which she testifies that no credit can be placed upon any part of her testimony. Her characterization of the action of the counsel of the defendant Wilson and Hathaway" shows the animus with which she came upon the stand and her utter untruthfulness. She puts words in their mouths which it is evident came from her own; and she would lead us to believe that they were instructing her to swear to what they knew to be false, when she admits that she never either directly or indirectly stated to them that she had ever had any criminal relations with the defendant. She further states that when they got her under the influence of liquor they got her to sign a paper that they wanted, and after that she was no longer needed. It appears from her own testimony that if she was intoxicated at the time she signed the paper, neither the defendant nor his counsel had any part in procuring such intoxication, and there is no evidence that when they came to the house to procure the signature to this paper, that they had the slightest knowledge that she was under the influence of liquor. The evidence seems to be conclusive that she was not only not under the influence of liquor, but that she read this affidavit and understood it before she swore'to it.

It further appears that the reason why she testified against the defendant in this case was because the defendant had failed to keep his engagement to pay her certain moneys which she claimed to have lost by reason of inability to keep professional engagements; never having intimated to his counsel in all the interviews which she had with them that there was any truth whatever in the charges of criminal intercourse between them, but on the contrary,' asserting the fact that no such intercourse had ever taken place.

The evidence of this woman is also to the effect that the house in question in Twenty-eighth street where she lived was respectable so far as she knew outside of herself, yet she takes pains to tell the landlady that she had a gentleman friend remain there all night with her, and yet the landlady made no objection. It is to be observed, however, in passing, that a number of the inmates of the house in question were examined, and the testimony was uniform in regard to the fact that it was not a house of prositution. And the mere fact that the defendant visited this house was therefore not the slightest evidence of any impropriety having been committed therein by him.

If the evidence in regard to the Twenty-seventh street house had been satisfactory, an entirely different result might have been arrived at. But the testimony of Dr. Van Schaick completely demolishes the evidence of Chase in reference to that house, and it was evidently so considered by the referee, as he refused to find that charge substantiated. The evidence of the detective Chase thus being stricken from the case necessarily the whole case against the defendant depends upon the evidence of this prostitute, Lotta Forbes, who has sworn to the contrary of her testimony upon the trial uninfluenced, as she states, by any promise of money, and who is contradicted upon material points by credible witnesses, and whose testimony is evidently actuated by a spirit of malice and revenge.

There are many other points of contradiction to which attention might be called, but sufficient have been mentioned to show how utterly unreliable the testimony is to support the plaintiff’s case, both the private detective and the prostitute evidently having manufactured a case, the one to gratify revenge and the other to earn his fee.

The judgment should be reversed and a new trial had before another referee.

Daniels, J., concurs.

Bartlett, J

I fully concur with the conclusion reached by the presiding justice in this remarkable case. It is to be hoped that the views expressed in his opinion will serve to impress upon referees in divorce suits the importance of scrutinizing with vigilant distrust the testimony of prostitutes and private detectives.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Robert L. Harrison, Resp’t, v. Edward W. Vanderbilt, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    1 Set-off—A claim against a member of a firm cannot be set-off against a debt to the firm.
    The debtor of a firm cannot set-off against his indebtedness to the firm a demand "which he may have against an individual member thereof.
    A Partnership—What representations by a member do not bind.
    Representations made by the member, against whom the claim exists, that he is a creditor of the firm and that he has been authorized to manage the business thereof, in no way alter the position of the parties.
    Appeal from judgment entered on the verdict of a jury and from order denying motion for new trial.
    6r. H. Adams, for app’lt; It. L. Harrison, for resp’t.
   Van Brunt, P. J.

The plaintiff in this action, as assignee of the firm of Booth, Carman & Co., sues the defendants who, under the name of Vanderbilt & Hopkins, did business as commission merchants in lumber in the city of New York.

The complaint alleges amongst other things an indebtedness of $1,050.59 upon the part of the defendants to the said firm of Booth, Carman & Co., being the balance due upon an account for goods sold and delivered. The answer afieges payment.

It appears from the evidence that Alfred W. Booth, James L. Carman, C. N. Simon and John H. Wemple, from May 25, 1881, to February 21, 1882, were co-partners in business at Norfolk, Virginia, under the firm name of Booth, Car-man & Co., and were engaged in the business of manufacturing lumber. Alfred Booth lived at Bergen Point, New Jersey, and attended to the financial part of Booth, Carman & Co'., in New York. He also did at Bergen a lumber business as Alfred W. Booth & Co., with other partners not connected with this controversy; Wemple also did an independent lumber business at Norfolk, Va.

The plaintiffs’ claim is that between May, 1881, and February 21, 1882, Booth, Carman & Co., sold the defendants merchandise of the value of $25,824.75, and received payment therefor of $24,774.20, leaving a balance due on the 20th of February, 1882, of $1,050.50, for which this suit was brought.

There is no dispute as to the sales and delivery of the merchandise or the amount of the above payments thereon. But the question litigated was as to the right of the defendants to apply their indebtedness to Booth, Carman & Co to the payment of a claim due to them from John H. Wemple

It appears that on or about the 6th of February, 1882, the defendants received from Wemple a letter advising them of two drafts, one for $1,732.85 and the other for $750, drawn by himself upon them. In the letter of advice Wemple stated that these amounts were' the last two notes of theirs (referring to Booth, Carman & Co.) that were to be paid by him. He further wrote that the defendants had on hand, or would have, about $1,500, and as they (Booth, Carman & Co.) had left the things in his hands, he requested them to pay nothing on account except on account of himself. The next day the defendants received the draft for $1,732.85, but nothing was ever done about the proposed draft for $750.

It was claimed that at the time of the acceptance of Wemple’s draft, the defendants were not indebted to Booth, Carman & Co. and had nothing in their hands for their account, but that they accepted the draft upon the faith of Wemple’s representations that goods would thereafter arrive, the proceeds of which the defendants might apply upon this acceptance; and it appeared in proof that the indebtedness sued for arose from the sales of goods received subsequent to the acceptance of Wemple’s draft.

There was also evidence going to show that Carman, of the firm of Booth, Carman & Co., assented to the application of the balance due said firm, to the indebtedness created by Wemple by the drawing of the draft of $1,732.85 above mentioned.

Shortly after the receipt of the letter, and before the receipt of the draft, the defendants claim to have seen Mr. Booth, and that the letter was shown to him, and he said that it was all right, that everything had been turned over to Wemple to make him whole on the notes, referring to Booth, Carman & Co.’s notes that Wemple held for logs sold by him to them.

This evidence was contradicted on the part of Mr. Booth, and the question submitted to the jury was whether there was any indebtedness due from the firm of Booth, Carman & Co. to Wemple individually, and whether the members of that firm had assented to the application of the balance due from the defendants to them to the payment of the amount which had been paid by the defendants upon Wemple’s draft.

The jury were instructed that if the indebtedness from the firm of Booth, Carman & Co. to Wemple existed, and that it was to pay that indebtedness that this draft was given and the application of the money made, then the assent of one member of the firm would be sufficient. If, however, there was no indebtedness from Booth, Carman & Co. to Wemple, the assent of the individual members of the firm of Booth, Carman & Co. to the application must be shown in order to prevent a recovery. The jury was also instructed that if Mr. Simons, a member of the firm of Booth, Carman & Co., took no active part in the management of the business, that his assent was not necessary to be shown.

It is claimed upon the part of the appellants that whether this be regarded as a set-off or as an estoppel against the plaintiff, or Booth, Carman & Co., or as the authorized appropriation of payment and payment made and assented to prior to the assignment of the claim of Booth, Carman & Co., the defense should prevail.

It is admitted that as a general rule the debtor of a firm cannot set off against his indebtedness to the firm any demand which the debtor may have against an individual member of the firm, but it is claimed that because of the exception to this rule, where all concerned concur that a debt owing by one of them shall be set off against the debt owing to them all, the application of the general doctrine above mentioned will be precluded.

Attention is also called to another exception 'which occurs where one partner has been allowed by his co-partner to act as if he were the principal and not an agent of the firm, or where it can be shown that the other members of the firm have, by their conduct, induced the defendant to believe that such partner is the only person with whom he had to do; or where, in a cause of action by a firm for money due to them from the defendant for goods of the firm sold to him, the latter has been held entitled to set off the debt due to him for an advance made by him to one of the partners on account of. these goods.

To support the verdict of the jury in this case it is not at all necessary to run counter to any one of these propositions, because the jury have found, upon competent evidence, that all concerned did not assent to the proposition that any part of the indebtedness from the defendants to the firm of Booth, Carman & Co., might be applied to the payment of the draft of Wemple; and because there is no evidence in the case that one partner had been allowed by his co-partners to act as if he were the principal and not an agent of the firm. It is true that the defendants claim that Mr. Booth made the representation that he had turned over all this business to Wemple. But this evidence was contradicted by Mr. Booth on the stand, and the jury seem to ha,ve believed him.

The evidence seems to show that the defendants knew that this was an individual obligation on the part of Wemple when he drew the draft in question. It' is true that Wemple represented himself as being the creditor of the firm, and also that they had turned over all their affairs to him for management. But the firm were no more bound by those representations of Wemple than they would have been had Wemple represented to the defendants that all the members of Booth, Carman & Co. had individually assented to the application of the money to be received from the merchandise to be thereafter shipped to them to the payment of his (Wemple’s) debt. If the defendants accepted the shipments which subsequently came to hand, they accepted them with knowledge that the merchandise was the merchandise of Booth, Carman & Co., and that Wemple’s position was to apply the same to the payment of an individual draft of his own.

The case of Gordon v. Ellis (7 Manning & Granger, 607) in no way supports the proposition contended for by the defendants in this case. It appears upon an examination of that case that at the time of the agreement in reference to the sale of the property, and of the advances on account of such anticipated sale, the person making the advances believed the person to whom the advances were made to be the sole owner of the property, he having no knowledge whatever that anybody else had any interest in it, and that the other persons interested in the property suffiered and permitted the person who received the advance to deal therewith as his own.

It thus appears that elements which in no way entered into the case at bar were the grounds upon which the claim was defeated in the case cited. It was the simple ordinary apphcation of the rule that where one suffers another to deal with personal property as his own, he cannot subsequently claim, such property from a bona fide pur chaser who bought, supposing that the seller had a perfect right to dispose of the same.

Our attention is called to the case of the Steuben County Bank v. Alberger (101 N. Y., 202), where it is claimed that the court laid great stress upon the fact that the obligations in controversy were intended to be used in retiring other obligations of the firm and that they were, therefore, within the general ample powers of one partner. The distinction between that case and the case at bar is apparent. The jury in the case at bar have found that there was no indebtedness from Booth, Carman & Co. to Wemple, to the retirement of which the proceeds of Wemple’s draft could be applied.

The case of Union National Bank v. Underhill (102 N. Y., 336; 2 N. Y. State R., 48), seems to be a direct authority upon the point that the representations of Wemple were no evidence against the firm of Booth, Carman &; Co. or any other member of that firm. Wemple, at the time of of writing the letter in question, did not pretend to be acting for the firm of Booth, Carman & Co. He wrote the same in connection with his own individual business. The whole tenor of the letter is that of an individual letter, he in no respect attempting to represent that firm by an expres - sion contained in the letter itself.

In the case of Wallace v. Kelsall (7 Mees. & Wels., 264), the ground upon which the decision seems to have been put was that there had been a complete discharge of the debt by one of the plaintiffs, and in that respect it materially differs from the case at bar.

Upon the whole case, therefore, it would appear that as Wemple, without the assent of all his partners, could not set off the debt due to Booth, Carman & Co. to the debt due by him to the defendants, and as the jury have found that no such assent had been given, and as there was sufficient evidence to sustain that finding, and the jury having also found that there was no indebtedness existing from Booth, Carman ,& Co. to Wemple, there seems to be no ground upon which the claim of the defendants can rest that they had a right to apply their indebtedness to Booth, Carman & Co. to the liquidation of any part of the advances which they made to Wemple.

The judgment should be affirmed with costs.

Daniels, J., concurs.


author: Bartlett, J.

text:
    August C. Bechstein v. Robert D. Schultz et al.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    Foreclosure—Advertisement of adjournment of sale—Code Civ. pro., § 1678.
    The failure to advertise the postponement of the sale of real property» pursuant to Code Civ. Pro., § 1678, is an irregularity for which the court might set aside the sale upon the seasonable application of a party to the foreclosure suit; but it does not constitute a jurisdictional defect in the proceedings which will affect the title of the purchaser.
    Controversy submitted under section 1279' of the Code of Civil Procedure

      Linus A. Gould, for pi’ft; Wm. L. Snyder, for deft’s,
   Bartlett, J.

The purpose of the plaintiff in this litigation is to enforce the specific performance of a contract for the purchase of real property. The plaintiff’s title to the premises is derived through a judgment in a foreclosure suit, and the sole objection which the defendants make to the title is that there was an omission to publish notice of an adjournment of the foreclosure sale from August 19, 1884, to September 2, 1884, until September 4, 1884, the day when the sale actually took place, on which day notice of the adjournment in question was published in the same papers as the original notice of sale.

Section 1678 of the Code of Civil Procedure provides that notice of the postponement of the sale of real property must be published in the paper or papers wherein the notice of sale was published. Ro doubt a failure to comply with this provision is an irregularity for which the court might set aside the sale upon the seasonable application of a party to the foreclosure suit; but I do not think it constitutes a jurisdictional defect in the proceedings, available to a purchaser more than two years after the confirmation of the sale, without objection by any of the parties.

In Woodhull v. Little (102 N. Y , 165; 1 N Y, State Rep 342), it was held that the omission of a referee in partition to give any notice whatever of the sale of one of the parcels of property sold was an irregularity which did not vitiate the sale of that parcel. It is true that this decision turned largely upon the express provisions of statute as to the effects which follow the confirmation of a sale in partition. The case is in point, however, as showing that a much more serious omission than that which is under consideration here was deemed to be only an irregularity and is expressly spoken of as such. The language spoken of m the court of appeals, also in the case of Abbott v. Curran (98 N. Y., 665), tends strongly to sustain the conclusion that the sale in question in this controversy was not invalidated by the failure of the referee to advertise the adjournment. A local statute required foreclosure sales in Kings county; to be made by the sheriff unless all the parties to the action. consented that a referee should sell. All the parties in the suit appeared and consented to a sale by a referee, except one, who was an absentee. The general term seems to have held that the consent of all the parties who appeared was a sufficient compliance with the statute. But, says the court of appeals, “if the court erred in this, the error did not render the appointment of the referee illegal, or the sale by him void. It was at most an error which could be corrected by any party to the record by application to the court or by appeal from the judgment; but a sale made under such circumstances is not invalid because made by a referee, instead of the sheriff.” The order under review was one which required the purchaser at the foreclosure sale thus conducted by the referee to complete his purchase, and the court of appeals held that there was no substantial defect in the title and that the buyer must take it.

If such a departure from a statutory requirement as the substitution of one officer to sell in place of another by whom the sale ought to have been made, does not effect the title of a purchaser, still less can it be held that his title is bad by reason merely of an omission to advertise an adjournment by which neglect nobody appears to have been injured or misled, and of which there is no complaint whatever by any of the parties to the action.

Upon the agreed case, I think judgment should be rendered in favor of the plaintiff, without costs.

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


text:
    Francis B. Thurber, et al., Respt’s, v. John E. McIntire, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

      1. Partnership—Application op payments—Order op.
    These plaintiffs upon February 3, 1885. opened an account with a co-partnership doing business under a firm name. On March 33, 1885, this defendant became a member of the co-partnership, one of the other partners at that time retiring The new co-partnership continued in the same business which the old had carried on and under the same firm name. The old co-partnership at the time at which the new one was formed was indebted to these plaintiffs. Between March 38th and April 15th of that year, the plaintiffs sold goods, wares and merchandise to the firm of which the defendant was a member, upon a credit of thirty days. Upon April 3d and 5th, the then manager of the business of the firm made payments to the plaintiffs, only stating at these times that he wished to make a payment on account. At the time of these payments there was nothing due on account of goods sold to the now firm, but a balance upon the old account exceeding in amount the payments made, and upon which the plaintiffs claim to have credited the payments. In July, 1885, the firm was dissolved by mutual agreement and the defendant bought out the business, asreeing to pay all the firm debts of the firm which was founded on March 33, 1885. This action was brought to recover from the defendant the amount unpaid upon goods sold to the firm subsequent to March 23, 1885. Held, that if there had been no change in the composition of the firm during the time that the goods were purchased the proper order of application of the payments would have been upon that part of the account which was due rather than upon that which was not due, and that under the circumstances proved the plaintiffs were justified in assuming that the new firm were the successors of the old, and that the business of the old firm was continued by them.

      % Application op payments—Proof necessary to change usual order.

      Held, That under the circumstances the defendant in order to claim that the credits should he applied to the new account was hound to show that the money which had been received by the plaintiffs was the property of the new firm and that it was therefore inequitable that it should be applied upon the debts of the old.
    Appeal from a judgment entered in favor of the plaintiff upon a trial by the court without a jury.

      John H. Miller, for appl’t; H. Arlington, for resp’ts.
   Van Brunt, P. J.

On February 3, 1885, the plaintiffs opened an account with the firm of Mickles & Co., which firm was then composed of Abbie A. Mickles and a man by the name of Pike.

On the 23d day of March, 1885, a co-partnership was formed between the said Abbie A. Mickles and the defendant McIntire under the said firm name, Pike retiring from the said firm of Mickles & Co., the same business being-carried on by the new firm as had been conducted by the old.

At the time of the formation of the partnership between Abbie A. Mickles and the defendant, the firm of Mickles & Co. were indebted to the plaintiffs in a sum exceeding $125.

Between March twenty-eighth and April fifteenth, the plaintiffs sold goods, wares and merchandise to the firm of Mickles & Co., to the amount of 8179.27, upon thirty days credit.

Upon the third day of April, John R Mickles, who had been and was managing the business of Mickles Sc Co., paid to the plaintiffs by a check of the firm, $100, and on April fifteen, made another payment of twenty-five dollars, the said Mickles only stating at the time of these payments that he wanted to make a payment on account.

At the time these payments were made there was nothing due upon the account for goods sold to the new firm of Mickles & Co ; but there was a balance of more than $125 due upon the old account, and the plaintiffs claim to have credited the same upon the old account.

In July, 1885, the firm of Mickles & Co. was dissolved by mutual agreement, and the defendant bought out the business and agreed to pay all the debts of the firm of Mickles & Co., which was founded on the twenty third of March, 1885.

The plaintiffs having commenced this action to recover from the defendant the amount unpaid upon the goods sold the firm of Mickles & Co., subsequent to March 23, 1885, the defendant claims that the $125 paid as aforesaid should be credited, which claim was disallowed by the court.

If there had been no change in the firm of Mickles & Co. during the time the goods were purchased, there is no question but that the proper order of application of the payments would have been to apply such payments upon that part of the account which was due in preference to an application upon that part of the account which was not due, and under the proofs in this case it would appear that the plaintiffs were justified in assuming that the new firm were the successors of the old, and that it was a mere continuation of the business of the old firm.

The defendant, under such circumstances, in order to claim that the credits should be applied to the new account, was bound to show that the money which had been received by the plaintiffs was the property of the new firm, and that it was therefore inequitable that it should be applied to the payment of the debts of the old firm.

There is no proof however in the case but that the money which was paid may have belonged to the old firm, -or that the check was not in reality that of the old firm.

There seems, therefore, to have been a failure to prove a very material fact which it was necessary to establish before the defendant could maintain his claim to the credit demanded.

The judgment appealed from should be affirmed, with costs.

Daniels, J. concurs.


text:
    Harmon McLean, Resp’t, v. Alonzo Adams, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    1. Witnesses—Deposition—Without the state—Who is a proper commissioner.
    A commissioner to take testimony should be a person who has no bias or prejudice in reference to the litigants or the cause. While the functions of such an officer are regulated and strictly limited by statute, his powers are nevertheless readily capable of abuse.

      2. Practice—Appointment oe partial commissioner to take testimony —Right oe appeal from order.
    A party is entitled, as a matter of right, to the appointment of a fair and unbiased commissioner, and if he thinks that right has been denied him he may procure the order to be reviewed by appeal without waiting for the return of the deposition and then move to suppress it.
    Appeal from a special term order appointing a commissioner to take testimony in Nicaraugua.

      Joseph A. Shoudy, for app’lt; J. Hampden Dougherty, for resp’t.
   Bartlett, J.

This is an appeal from so much of an order of the special term as names S. A. Oockburn as commissioner to take testimony in the cause, at Cape Gracias a Dios, in the Republic of Nicaragua.

The defendant objects, not to the commission, but to the commissioner.

The papers show that Mr. Oockburn is a correspondent of the firm of De Long, Meyer & Co., successors to William Jex & Co., who are described as the agents of the plaintiff in Hew York, and competitors in business at Cape Gracias a Dios, with ¿eaycraft & Co., the defendant’s Hew York agents.

The precise relation which Mr. Cockburn bears to the plaintiff’s agents by reason of being their “ correspondent ” is not disclosed, but there can be no doubt it is a friendly one. There is also no evidence of unfriendly feeling on his part toward the defendant. He made an affidavit in behalf of the plaintiff, which was used on this very motion, in which he says, “ I have understood that the defendant had trouble with the former commandante (at Cape Gracias a Dios), Brioso, arising out of some charges that the defendant had smuggled goods into Cape Gracias. “ A person who stood perfectly indifferent between the parties would hardly have made this affidavit voluntarily.

A commissioner to take testimony should be a person who has no bias or prejudice in reference to the litigants or the cause. While the functions of such an officer are regulated and strictly limited by statute, his powers are nevertheless readily capable of abuse, to the serious detriment of one party or the other, and where such abuse occurs it may often escape discovery when the commission is executed in a distant land. The best safegard against the occurrence of any wrong of this kind is the selection of a commissioner to whom no suspicion of partiality can attach.

It cannot reasonably be said that Mr. Cockburn is such a person.

The learned counsel for the plaintiff concedes in his brief that “if Cape Gracias furnished a large choice, it would be better to appoint a commissioner having no business correspondence with any of the parties or their agents.” With reference to this observation it may be remarked that although the papers show that the number of persons at Cape Gracias a Dios capable of acting as commissioners is not large, there is no satisfactory proof that some one cannot be found there who is both competent and impartial.

The objection that no appeal lies from the order under consideration is not well taken. A party is entitled as a matter of right to the appointment of a fair and unbiased commissioner, and if he thinks that right has been denied him he may procure the order to be reviewed by appeal without waiting for the return of the deposition and then moving to suppress it.

The order so far as appealed from, should be reversed, with costs and disbursements, and the case remitted to the special term for the appointment of a new commissioner.

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


text:
    The People of the State of New York, Resp’ts, v. Daniel Driscoll, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    1. Criminal trial—Evidence—Pacts not opinions to be given by witnesses—Exceptions WHEN THE OPINION IS A CONDENSED RENDERING OP THE PACTS.
    A witness may state an opinion as to a certain fact when such an opinion is merely a condensed or short hand rendering of the facts. This opinion is subject to cross-examination as to the facts upon which it is based.
    2. Same—Res gestae—When statements not properly part op the RES GESTAE MAY BE PROVEN.
    Where a party introduces in evidence part of a statement or declaration, the opposing party may give evidence of the other part of the same statement, though the declaration taken as a whole does not properly form part of the res gestae.

    Appeal from judgment of the court of general sessions on conviction of murder in the first degree.

      William F. Howe, for app’lt; McKenzie Semple, for resp’t.
   Bartlett, J.

On the 26th day of June, 1886, a young woman named Bridget Garrity was shot and mortally wounded, at No. 153 Hester street, in the city of New York, and on the following day she died. The question litigated in the present case was whether the defendant, Daniel Driscoll, or another man, one John McCarthy, fired the fatal shot. The place at which the homicide occurred was an assignation house kept by McCarthy. He and Driscoll were men of bad character, both of whom had been imprisoned for crime, and they appear to have been bitter enemies to one another, ás McCarthy had tried to shoot Driscoll not long before this occurrence. According to the case for the prosecution, however, Driscoll was the ag gressor in this instance, going in company with Bridget Garrity, between three and four o’clock in the morning to the house of McCarthy, in order to attack him, and unintentionally killing the girl in his effort to shoot McCarthy. On the other hand, the defense sought to show that the prisoner, who had been drinking, got into the house without knowing it was McCarthy’s, whereupon McCarthy fired on him and killed his companion. The jury adopted the view presented by the prosecution, and convicted the defendant of murder in the first degree.

We are not satisfied that this verdict was against the weight of evidence.

The principal witnesses for the prosecution who testified concerning the circumstances of the shooting, were McCarthy himself and Carrie Wilson, a prostitute. The character of these persons is severely criticised, but it should be remembered that unless murder in places of evil resort is to go unpunished, recourse must usually be had te the testimony of witnesses whose tendencies and habits are evil; otherwise they would not be present at the scene of crime.

Carrie Wilson’s story of the homicide was clear and direct. She was about leaving the house when a carriage stopped at the door, bringing four persons, two of whom, Darnel Driscoll and Bridget (or Bexie) Garrity, as she was called, came up into the hallway. There Driscoll told the witness he wanted to speak to her, and tried to force her from the hall into the front room, but she retreated toward the rear of the house. Meantime Bexie Garrity had gone into the front room, and was standing between the open folding doors leading thence into the room back of it, while the prisoner stood out at the threshhold of the door opening from the hall into the front room. She gave Driscoll a nod, and Driscoll put his hand in his pocket and drew a revolver and put it between the jam of the door and fired a shot.” This shot does not seem to have done any harm. Then the prisoner went further back in the hall to the door leading into the back room, burst open the door, and fired a second shot, which struck Bexie Garrity and inflicted the wound from which she died. McCarthy swore that he was in the front room in company with a number of men when the deceased and the prisoner came in; that he immediately forced the prisoner out into the hall and partly closed the door; that the deceased then caught hold of the witness, told him not to shoot Driscoll and forced him back just past the crack of the partly opened door, when he saw the barrel of a pistol stuck through, and the first shot was fired. Then McCarthy ran and jumped out the back window of the house, returning fifteen or twenty minutes later.

Counsel for the appellant lays great stress upon the statment of Carrie Wilson, that she did not see McCarthy in the house on the morning of the homicide, although she describes the shooting in so much detail, and although McCarthy admits that he was present.

Her position in the hall, however, appears to be such as to make it quite credible that McCarthy could have been in the rooms without being visible to her; and her testimony clearly indicates that she knew there were a number of men -in the front room, but could not see them. Case folios 67 to 70.

The crime was committed about four o’clock in the morning, and this witness seems to have said nothing of the shooting to any one until she told a police captain on the evening of the same day. She went to her rooms and talked fifteen minutes with a friend before going to bed, but did not tell her of the shooting, nor did she mention it to her mother, with whom she took dinner some hours later. It is insisted that if she had really seen what she says occurred at the time of the homicide, she could not have kept silent on the subject under these circumstances. This was a question for the jury to consider in passing upon her credibility. We cannot say that they ought to have rejected her testimony concerning the crime because of her silence afterwards. It was a fact bearing upon the probable truthfulness of her story, but not necessarily inconsistent with veracity.

In support of the proposition that the verdict was against the weight of evidence, the positive testimony in behalf of the defense is fully set forth in the brief for the appellant.

Owen Bruen, who accompanied the prisoner and the deceased, testified that as soon as they entered the door McCarthy shot at Driscoll and the girl was wounded He is sure he did see any pistol in the prisoner’s hand that night.

Driscoll, himself, says that when they were in the hall, and were about to enter room, the girl being a little in advance of him, a shot was fired and she exclaimed that she was shot. He then fled from the house He denies that he fired at McCarthy and swears that he had no pistol.

Much reliance is also placed upon the declarations of the girl, one just after she was wounded, and another in the hospital to the house surgeon, that McCarthy or the man with the red whiskers (meaning McCarthy), shot her; but the force of these statements is seriously lessened by her dying declaration to her mother that, “Danny Driscoll” did it.

It should be observed that the case for the prosecution did not rest upon the testimony of McCarthy and Carrie Wilson alone. A police officer testified that he saw the defendant and his companions in Bayard street about an hour before the homicide; that Driscoll caught Bexie Carrity by the arm and threatened to kick her, saying: “You won’t stick to me; ” and the girl responded: “Yes, Dan; I’ll stick to you; you shoot him, and I’ll stick by you.”

A newspaper dealer named Green, who was asleep in the front room of the Hester street house where McCarthy was, and who appears to have been awakened by the first shot, swears that the shot by which the girl was wounded, was fired after McCarthy had jumped out of the back window.

A bullet was found in the wall of the front room, opposite the door, where it could hardly be if it came from a pistol fired by McCarthy as testified by the witnesses for the defense, but where it would naturally be it came from a weapon pointed into the room from the hall.

These and other facts in proof tended to corroborate the principal witnesses for the people. The conduct of McCarthy and Driscoll respectively, immediately after the shooting, should be considered. McCarthy re-appeared in the house in the course of about fifteen minutes and handed Ms revolver, then fully loaded, to a policeman present. The calibre of this pistol was smaller than the calibre of the bullet dug out of the wall. Of course there was a possibility that McCarthy had been armed with a different weapon at the time of the shooting and had procured this one during his short absence from the house, but there is no evidence of any such fact. It may also be suggested as somewhat strange that he should have retreated so precipitately from the scene, without firing upon Driscoll, but the sudden -character of the attack might well account for his conduct in this respect. On the other hand Driscoll, who wore a sacque coat at the time, ran through the streets, holding Ms right hand in his right pocket, and pursued by a policeman, until he found his way into No. 128 Baxter street, a house from which Ms mother had just moved, where he was finally discovered lying on the floor, behind the door in an unoccupied room upstairs, and without any coat. The obvious inference suggested by the manner of his flight and the disappearance of his coat was that he carried a pistol in his pocket as he ran, and threw it away with the ■coat.

This review of the facts suffices to show, we think, that the motion for a new trial, on the ground that the verdict was against the weight of evidence was properly denied. If truthful, the testimony for the prosecution was abundant to sustain the finding of the jury. There was a direct conflict of proof as to the person who fired the murderous shot. Upon this issue, the jury, who saw and heard the witnesses and could observe their appearance and manner on the stand, preferred to believe those who testified against the prisoner. In reviewing their action, we are not -called upon to try the case over again, upon the printed record, but only to say whether the result they reached was in conflict with the evidence as a whole or against the preponderance of proof. Unless we deem it to be so, we cannot grant a new trial so far as this branch of the case is concerned.

The alleged errors of the learned recorder in the admission of certain evidence and in refusing to charge certain requests remain to be considered.

It is argued that the court erred in receiving evidence of what McCarthy said and did when confronted with the deceased in Driscoll’s absence, subsequent to the shooting.

Peter J. Monahan, a police officer, who reached the premises shortly after the girl was wounded, and found her lying on a bed in the back room, testified as follows :

Q. Where was she shot %

A. She was shot in the abdomen; I believe on the left side.

Q. Go on.

A. I asked her who shot her. She said: “ The man with the red whiskers.” With that McCarthy came into the room. He says, “Monahan, so help me God, I'did not-shoot this woman.” He says, “Here is my revolver;” and he pulled it out of his pocket and handed it to me, “ here is the revolver.” Counsel for the defendant then moved to strike out what McCarthy said and did, on the ground that Driscoll was not present, and. that the testimony was incompetent. The motion was denied and an exception was taken.

In order to judge of the correctness of this ruling, it is necessary to know what had gone before. The defense in the cross-examination of McCarthy, had clearly brought out the fact that the girl had accused him of the crime. No reference was made to this subject on his direct examination, but in answer to defendant’s counsel he said that. Bridget Garrity told the officer in his presence that he. McCarthy, had shot her. The purpose of this testimony of course, was to show that the homicide was committed bv a. person other than the prisoner. So far as it tended "to incriminate McCarthy, it tended to exonerate Driscoll. Its effect in the direction of establishing McCarthy’s guilt would depend very much upon the manner in which he received the charge. Silence might be construed into a tacit-admission of its truth, while a prompt and emphatic denial on the spot, would prevent any unfavorable inference growing out of the action of the accused on such an occasion. This was not a dying declaration on the part of the-wounded girl and was not offered as such. The theory on which the evidence was received is not apparent. The charge and the denial, however, constituted parts of one and the same transaction, and we are of the opinion that, after proof by the defendant that the girl, not speaking in expectation of death, had accused a third person of the crime, it was proper to permit the prosecution to show what that third person said to her in response to the accusation. It is strenuously insisted that the denial by McCarthy was not a part of the res gesten under the rule laid down in the case of Waldele v. N. Y. Central, etc., R. R. Co. (95 N. Y., 274), but the same argument would apply equally to the charge which the girl made against McCarthy. Both the accusation and the response were statements or declarations relating to a past event, that is, the-shooting, and if under the circumstances the denial was not a part of the res gestee, neither was the charge. In any view, if it was competent for the prisoner to give evidence of the one, we think it was competent for the People to give evidence of the other.

The next alleged error called to our attention is the admission in evidence of the revolver said to have been carried by McCarthy at the time of the homicide. Objection was made not only to the introduction of the pistol, but generally to any testimony in reference to the weapon. This objection was properly overruled. Much earner in the trial, when McCarthy was under cross-examination, the prisoner’s counsel had proved by him what kind of a pistol he carried, how many chambers it had, when and under what circumstances it had previously been discharged, and how McCarthy, when accused of the shooting, voluntarily handed it to the policemen, saying: “Here, you take charge of that.” After this evidence, adduced by the defendant, it was entirely proper to let the jury see the weapon itself.

Another ruling upon which the appellant relies as being erroneous was the refusal of the learned recorder to strike out certain testimony given by the officer in reference to the condition of the revolver when he received it from McCarthy. The witness testified that, in company with some other officers, he examined the revolver and saw that it had not been fired off. “The barrel was cold; it was not warm; there was no indication that the -shots had been fired off; they were still full.” The court then said to the witness: “The barrel was cold, and there was no indication that you discovered that it had been recently fired?” to which the witness responded: “Yes, sir.” Counsel for the defendant asked that this be striken out, but the court allowed it to stand and noted an exception. It is urged that the evidence constituted merely an opinion of the witness which was not admissible. The motion to strike out was not placed upon tins or any other specific ground, and in our opinion was properly denied. The only portion of the testimony which could possibly be deemed opinion evidence was the statement of the witness that he discovered no indication that the revolver had recently been fired.

Wharton states the rule to be that “when the opinion is the mere shorthand rendering of the facts, then the opinion can be given, subject to cross-examination as to the facts on which it is based.” 1 Wharton on Evidence, § 510. The statement in question was certainly no more than this.

In the Case of Wynne v. The State (56 Ga., 113) one of the grounds upon which the prisoner moved for a new trial was that the court allowed a witness to express his opinion whether the cartridges used in a pistol had been punctured by snapping them before they were fired. “We think,” said the supreme court of Georgia, “that any witness, after stating the appearance of the pistol and cartridges with indentations or the absence of indentations, and that he was familiar with the use of the weapon from having practiced frequently with it, should have been permitted to express such an opinion, with the right of the jury, of course, to form and find their own opinion upon all the evidence.” Here, as there, the weapon was before the jury. They had also heard described the condition of the pistol, upon which the witness based his conclusion that no indications of recent firing were apparent. See Commonwealth v. Sturtivant, 117 Mass., 122. In view of all the facts no error was committed in allowing the evidence to remain in the case.

Finally it is contended that the trial court erroneously refused to charge two requests presented in behalf of the defendant.

By the fifth request, the recorder was asked to instruct the jury as follows: “That in considering the evidence of McCarthy the jury must take into consideration the motive to shield himself if he fired the shot, together with the evidence of McCarthy’s convictions and sentence for robbery; and while these facts do not of themselves require a rejection of his evidence, they are to be considered by the jury on the point as to whether a man bearing the character of McCarthy would not, where an indictment existed, be more likely to swear falsely than would a person of good character.”

To this request the court said, “ I will charge on that subject not in that way,” and counsel duly excepted.

In the charge as delivered, the jury were fully and correctly instructed in reference to the character of McCarthy and his previous convictions, but complaint is made that nothing was said therein concerning McCarthy’s motive to shield himself if he fired the shot. Attention had already been directed to this motive, however, by the third request which the court charged, whereby the jury were told to consider that McCarthy was armed with a pistol at the time of the shooting, and that the deceased, immediately after being shot, charged him with having shot her, and that, therefore, in testing the evidence of McCarthy as to its truth the jury might “take these facts into consideration to say whether there was any inducement for McCarthy to testify falsely concerning the occurrence of that night in order to shield himself.” We think this instruction sufficiently covered the question of motive. The motives which might influence McCarthy to testify falsely were so obvious that the jury could hardly have failed to keep them in mind even if nothing had been said by the court on the subject,'and it is to be observed that counsel did not call the attention of the recorder to the omission to charge further in this respect.

The learned recorder also declined to charge the sixteenth request in the form in which it was presented, as follows:

That whenever, in the deliberation of the jury, it becomes necessary for them to find the existence of any fact in order to arrive at a verdict, and if, from the evidence, the jury have a reasonable doubt as to the existence of such fact, the prisoner is entitled to the benefit of such a doubt.” In answer to the request immediately following, however, the court said, “I will charge the jury as to what a reasonable doubt is, and the fact that the prisoner is entitled to the benefit of it upon every element necessary to convict in this case. This was in substance and effect the instruction prayed for by the sixteenth request, and renders unavailable the exception to charge it in form.

No other legal propositions than those which have been considered are presented in the brief for the appellant or were discussed upon the oral argument. Neither upon the facts nor upon the law of the case are we able to say that the conviction was wrong. The judgment should, therefore be affirmed.

Daniels, J., concurs.


author: Per Curiam.

text:
    Ernest Ludeke et al., Resp’ts, v. J. Lawrence McKeever, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    Practice—Advertising not a proceeding in passing assignees accounts-
    Advertising for the presentation of claims under an order of the court of common pleas, hy the assignee, is not any proceeding for the purpose of jiassing the assignee’s accounts.
    Appeal from order denying motion for stay of plaintiff’s proceedings, also appeal from an order granting motion for judgment on the pleadings.

      John P. Adams, for app’lt; Franhlin Bien, for resp’ts.
   Per Curiam.

It does not appear from the answer of the defendant that any proceedings for an accounting had been initiated in the court of common pleas, at the time of the filing of the bill for an accounting in this action.

Advertising for the presentation of claims under an order of the court of common pleas, by the assignee, is not any proceeding for the purpose of passing the assignee’s accounts

Such proceeding is initiated after the time limited by the statute by the filing of the petition of the assignee or by the application of a creditor and the subsequent proceedings thereupon. The answer, therefore, set up no defense to the relief which was asked for in this action and the order appealed from should be affirmed with ten dollars costs of appeal in one case, and disbursements in both cases.


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    William C. Ilsley, Respt, v. Josephine D. Keith, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.

    Practice—Verdict—When not to be set aside as against the weight of evidence.
    Where the questions of fact are fairly submitted to the jury, the verdict will not be interfered with, although the jury seemed to have believed one witness in preference to three to the contrary, and especially is this so-when the verdict appears, instead of contrary to the evidence, to accord with the probabilities of the case.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying motion for new trial.

      William North, for app’lt; F. A. Burnham, for resp’t.
   Van Brunt, P. J.

The sole ground upon which it is sought to reverse the judgment appealed from is upon the ground that the verdict is against the weight of evidence.

The complaint alleges the sale and delivery of merchandise at an agreed price of ninety-two dollars, and nonpayment."

The answer admits the sale and delivery of the merchandise, but alleges that such merchandize consisted of folding beds, and that it was agreed by and between the plaintiff and the defendant, at the time of the alleged sale and as an inducement thereto, that the defendant should have the exclusive sale of folding beds to be supplied by plaintiff in and for the city of Troy and vicinity, but that the plaintiff had violated his agreement in that respect by forwarding to other persons in said city of Troy the like folding beds to be sold, and that because of such violation the defendant refused to accept and receive folding beds from the plaintiff.

The answer set up as a counter-claim damages sustained to his trade and business because of the aforesaid breach of contract by the plaintiff. The evidence offered upon the part of the plaintiff was that of his salesman who made the sale to the husband of the defendant, who was her agent and managed- her business.

He testified to the sale, and that no one heard the con versation between Mr. Keith and himself, that although there were other persons present in the back room, they were not near enough to hear the conversation; that nothing was said about the defendant’s having the sole and ex--elusive handling and sale of these beds in Troy; that he made a memorandum in his hook at the time of the sale in Mr. Keith’s presence and that he called Mr. Keith’s attention to the entry.

The defendant called as a witness Mr Keith, who testified that at the interview of the salesman with him, Mr. Hydona and Mr. Carr were present, who were in court at the time of the trial, and a Mr. Smith who was not in court at the time of trial.

That at a previous interview he had told the salesman he wanted to get control of the beds exclusively and that he said that there was no agent there that sold their goods, and that if he would take them he would, have the exclusive control of these beds in Troy.

That when he came in a second time he ordered these two beds with the distinct understanding, that no one else in Troy was to have them. That shortly after the goods came and he had received them, he found that another dealer by the name of Fogerty had one standing out on his walk, and that then he wrote a letter to the plaintiff to the effect that as they agreed to give the exclusive sale of those beds, that they should give Fogarty the beds or give them to him. That he has held those beds at plaintiff’s disposal since, and that they are now in Troy.

The witness further testified that he had numerous applications for those beds since the agreement and breach, but why he did not sell them he did not state

Mr. Hydom was also examined as a witness for defendant, who testified that he was present at the time of sale and heard the conversation, and that he heard Mr. Keith tell the salesman that he would not take the beds unless he gave him the exclusive right to sell those beds in Troy, to which the salesman agreed.

Mr. Carr was also examined as a witness for defendant, and he testified to the exclusive agreement, and to the large number of customers who had applied for those beds, whose orders the defendant could not fill, because of the breach of the agreement.

One "of the plaintiffs was also examined as to the contents of two letters which passed between these parties and at the close of the evidence by a fair and impartial charge, the question at issue was fairly submitted to the jury and a verdict was found for the plaintiff.

This verdict we cannot interfere with although the jury seemed to have believed one witness of the plaintiffs in preference to three witnesses upon the part of the defendant.

The verdict, instead of being contrary to the weight of evidence, appears to accord with the probabilities of the ease Indeed, the evidence upon the part of the defendant-attempts to prove too much.

In the evidence to establish damages the proof that so large a number of customers applied and that the defendant refused to take their orders, because of this alleged breach of the agreement, seems to shake confidence in the whole case of the defendant.

If the defendant could over and over again have sold these goods at a large profit it hardly seems credible that-he would have preferred a lawsuit to such a sale and the remarkable character of this portion of the defendant’s case may well have shaken confidence in the whole of his evidence.

The judgment appealed from must be affirmed, with costs

The appeal from the order denying a new trial cannot be considered, as no order has been entered.

Bartlett and Daniels, JJ., concur.


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    Mari A Cumming, App’lt, v. William M. Whiting, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887).

    Practice—Reference—When cause referable
    The complaint in an action set out two causes of action, one'upon an account stated and the other for goods sold and delivered and money loaned The bill of particulars served in the action relating to the second cause of action, consisted of twenty-two items of goods sold and cash advanced. The defendant by his answer denied each and every allegation of the complaint relating to the first cause of action, and also denied each and every allegation of the complaint relating to the second cause of action. The defendant then alleged that the plaintiff and defendant were copartners in business, and that the indebtedness alleged in said second cause of action was incurred, if at all. by said partnership, and not otherwise Held, that the true issue was as to whom the goods were sold; that, the causes of action were not referable.
    Appeal from an order of reference.

      Alfred B. Cruikshank, for app’lt; Frederick Seymour, for resp’t.
   Van Brunt, P. J.

The complaint in this action sets out-two causes of action, one upon an account stated, and the other for goods sold and delivered and money loaned. The bill of particulars served in the action relating to the second cause of action consisted of twenty-two items of goods sold and cash advanced.

The defendant by his answer denied each and every allegation of the complaint relating to the first cause of action, and also denied each and every allegation of the complaint relating to the second cause of action.

The defendant then alleges that the plaintiff and the defendant were copartners in business and that the indebtedness alleged in said second cause of action was incurred, if at all, by said partnership, and not otherwise.

It is clear that the first cause of action being upon an account stated was not referable. There could be no issue as to items, the only question being as to whether the account had become stated between the parties and whether there had. been a promise to pay.

Upon a cursory examination of the pleadings as to the second cause of action, it might appear that controversy would arise as to all the items of goods sold and money loaned because of the general denial contained in the answer, but the subsequent allegations therein contained as to the copartnership, and that the indebtedness was incurred, if at all, by said partnership, show what the true issue is, and that it is not as to the sale and delivery of the goods, but as to whom they were sold.

This being the true issue, there does not seem to be any ground for a reference.

The order appealed from must be reversed, with ten dollars costs and disbursements to appellants, to abide the final event of action.

Daniels and Bartlett, JJ., concur.


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    Ephraim Karelson, et al., App’lts, v. The Sun Fire Office of London, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June, 18, 1887.)

    1 Insurance—(Fire)—Proof of loss—Waiver
    The proofs of loss by fire served by the plaintiffs did not accord with the terms of the defendant’s policy in that they were not signed by the plaintiffs, or either of them, and were not verified. The notice returned by the defendant’s manager, after receiving said proofs of loss, gave no notice of the insufficiency of the papers, but was that he did not admit any liability or the correctness of any statement in the papers contained. Held that if defendants desired to object to the form of the proofs of loss, they were bound to give notice of that fact so that they might be corrected. That by not doing so, they waived the insufficiency in form.
    3. Pleading—Denial of an allegation of partnership—Effect of.
    Under a simple denial of an allegation of partnership a defendant cannot claim that there are other persons interested in the firm, who should have been made parties plaintiff.
    Appeal from a judgment entered upon an order of the court dismissing plaintiff’s complaint.

      Adolph L. Sanger, for app’lt; Charles B. Alexander, for resp’t.
   Van Brunt, P. J.

The only question which need be considered on this appeal is as to the sufficiency of the proofs of loss attempted to be furnished to the defendants upon the part of the plaintiffs.

The objection that there were not sufficient parties plaintiff was not available to the defendants, as no such defense was set up in the answer. It is true that the alleged co-partnership was denied, but such a denial is not sufficient to sustain a claim upon the part of the defendant that there were other partners in the firm beside those alleged in the complaint. If the defendants desired to. avail themselves of this defense, they should have alleged who they were, and that they were still living, so that the plaintiffs could have been informed as to the precise claim made by the defendants in this respect, and have amended their proceedings accordingly if they were so advised.

Under a simple denial of an allegation of partnership? a defendant cannot claim that there are other persons interested in the firm who should have been made parties plaintiff.

The proofs of loss do not accord with the terms of the de • fendant’s policy as set forth in the complaint, among other things in that they were not signed by the plaintiffs or either of them, nor were they verified by their oath or at firmation, and unless there has been some waiver either express or implied, of this condition, the objection now taken must be fatal to the plaintiff’s claim.

The alleged proofs of loss were served on the defendants on the 15th of September, 1885, and on the 22d of Septem her the manager of the defendants sent the very remarkable letter of that date, in which it is evident that he de sired to keep alive all objections to the proof and the claim, and to keep the plaintiffs in entire ignorance as to what objection he had to the proofs as served. In this, however, we think he has failed.

The whole of the first part of the letter is qualified by the last paragraph. The manager says to the plaintiffs with - out admitting anything, you are hereby notified that his company has not admitted any liability, and does not admit any liability whatever for or on account of said alleged loss, or the validity of any claim made therefor, nor the correctness of any statement in said papers (referring to proofs of loss) contained. That his company has not waived and does not and will not waive anything, and expressly reserves any and all objections to any and all claims that have been or may be made by you or on your behalf against his company for and on account of said alleged loss.

In his notice, the manager gives no notice of the insufficiency of the papers; his notice is that he does not admit any liability or the correctness of any statement in the papers contained.

The papers called proofs of loss were retained by the defendants; they pointed out no defects in them; the sole tenor of their notice was that they would not admit the claim, and that they must not be considered as admitting the correctness of any statement m the papers by their retention

If the defendants desired to object to the form of the proofs of loss, they were bound to give notice of that fact, so that they might be corrected. This course, which ordinary fairness would seem to have dictated, the defendants carefully avoided doing, and by their letter of September 22d it seems to have desired to mislead the plaintiffs as to the grounds of their refusal to pay, while endeavoring to retain any other objection which the ingenuity of its manager might subsequently discover.

The loss was disputed upon the ground that no contract of insurance existed, and to that point was the attention of the plaintiffs directed, and as the proofs of loss were retained and no complaint made as to any particular admis - sions or defects in the proofs of loss, the plaintiffs had the right to assume that the contention was as to the fact of the existence of the contract of insurance. Brink v. Hanover Ins. Co., 80 N. Y., 112; Hermann v. Niagara Ins. Co., 100 id., 411.

Under this condition of the evidence it seems to have been error to have dismissed the plaintiffs" complaint upon the ground that the proofs of loss were insufficient.

Judgment must be reversed and new trial ordered, with costs to appellants to abide event.

Brady and Daniels, JJ , concur.


author: Brady, J.

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    H. JOLSENS TAENDSTIKFABRIKKER ENEBAK and BRYN, Resp’ts, v Horace K. Thurber, et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.

    I. Contracts— Construction of—Contracts to ship—What implied.
    When a manufacturing establishment enters into an agreement to supply or ship a certain quantity of goods, this contract to ship implies a contract to manuiacture. And even though an agreement different from one already made is proposed, yet this subsequent agreement does not nullify the one previously made by reason of its containing provisions different or inconsistent with the former.
    2. Evidence—Depositions—Form of interrogatories and answers— Objection to, how taken.
    It is a settled rule that if the answers to interrogatories are not satisfactory the motion must be made to suppress or correct an objection if not proper. Following Wright v. Cobat (39 N. Y., 670).
    Appeal from a judgment on verdict.

      E. More, for app’lts; August Reymert, for resp’ts.
   Brady, J.

In 1883 the defendants were importing matches from Sweden and Norway, and a fire having occurred on one of the Thingvalla line of steamers in which the matches were shipped, they telegraphed the plaintiffs at Christiana, on the twentieth of November of that year as follows: “Gagged—make firm immediate contract with Wilsons all. you can ship for eight months.”

On the twenty eighth November the answer came. “Wilsons freight 27—6 conditionally.' Leave me to arrange best possible. Wire.” To which the defendant answered on the following day “Arrange best possible.”

The term “gagged,” according to the code used by the-parties, meant “200 cases of the brand known as Bear,”" and “ Wilsons ” meant Wilsons steamship company’s line of steamers plying between Norway, Hull and New York. The contract made with the Wilson line contained this clause: “ 9th. Shippers can cancel this contract if import duty in America gets prohibited, or if the import duty is. raised there.”

The plaintiffs proceeded to manufacture in accordance-with the cablegram, and the defendants refusing to receive the whole product, commenced this action to recover a proper compensation.

The investigation developed several cablegrams and a. wealth of correspondence which embraced other subjects than the cablegram of the 20th of November (supra), and which it may be said were not wholly germain to the subject which it originated. These various elements were, however, presented in a masterly manner by the justice-presiding at the trial in his charge, and the jury fully, correctly and clearly instructed not only upon the chief issue, namely, whether a contract was made by the parties as indicated by the cablegram of November 20th, but also upon the rule of damages, if that issue were decided in favor of the plaintiffs. Notwithstanding, as suggested by the shipping clause in reference to a change of duties to be made by an impending treasury regulation, of which the defendants were advised prior to the 20th November, and which they were evidently apprehensive might be enforced, and hy which the importation of matches would be made profitless, if not disastrous, they did not protect themselves against it by proper provision in the contract as well, and did not in fact arrest the manufacture of the matches, under the contract by proper notice.

They seemed to have assumed that the contract would be regarded as provisional from its restricted or conditional form as to shipping, and that when the shipping-stopped, the manufacture would also stop. The apprehended, objectionable duty was for a time sought to be enforced, which induced them to arrest the shipping of the matches, although proceedings were taken which resulted in its rejection and the restoration of the prior import. The defendants contended that they did not make any absolute engagement for eight months, and arrayed a number of facts and circumstances to sustain that attitude, and especially that after the cablegram of November 20 was despatched the plaintiffs sent a written contract for thirteen months, which was not signed by them, or agreed to, and which they urged as utterly inconsistent with the existence of that relating to eight months only. It was also contended that no matches were shipped after the delivery of the 200 cases first ordered was made, but the plaintiffs responded by saying that the defendants neglected and refused, though requested to send shipping orders. They urged also that the plaintiffs did not accept their proposition for eight months, and that as they did not accept the plaintiffs counter proposition extending the period to thirteen months, the whole matter was dropped. These several views were all mattors for disputation before the jury, and were there, no doubt, elaborated with ability and skill. They bore upon the main issue, to bo disposed of by the cablegrams, correspondence and the acts of the parties and their agents in connection with them.

It must be observed, however, that the cablegram of the 20th of November not only ordered matches, but directed the plaintiffs to make a shipping contract with the Wilson line of steamers for their transportation, a duty accepted and discharged as the responding cablegrams demonstrate.

The defendants undoubtedly considered the order to manufacture as one in its nature imperative and to be accepted as matter of course by the plaintiffs with whom they had dealt, otherwise why direct them to make a contract for all that could be shipped for eight months? Can there be any doubt that the plaintiffs, having made the contract of shipping, bound themselves to. make the, matches?

It cannot, and the effort to extend the time to'thirteen months must be regarded as a new project not entertained by the defendants, and not therefore further urged by the plaintiffs.

It was proposed, but not accepted, and then the eight months project was carried out by manufacturers, for which it called.

It cannot be said here that there are no facts and circumstances tending to establish the correctness of the defendants denials and contentions, but it is to settle such disputes with evidence, pro and con, that the aid of juries is invoked—a tribunal for which, though much abused, I entertain the highest respect. They may err, and doubtless do, but the instances are rare in comparison with those in which they do not, and human institutions without infirmities and imperfections are few and far between.

With the facts and circumstances which distinguish f.bi« controversy in view, it cannot be said that the finding of the jury is either without evidence to sustain it, or that it is against the weight of evidence. The chief exceptions relate to the interrogatories, the answers to which were not as full, and therefore not as satisfactory as they should have been. This is to be noted particularly of the response to the eighteenth interrogatory on behalf of the plaintiffs put to Mr. Lind, and in reference to and in anticipation of which the sixth cross interrogatory was framed. For example, Mr. Lind was asked for an account of the sales of matches made on defendants’ account, and in expectation that one would be appended, the defendants asked to whom the matches were sold, at what prices, at public or private sale, in order to itemize the account beyond peradventure. No account was given such as asked for, and the defendants urged for that reason that the answer to the eighteenth interrogatory should be rejected. In all fairness, as the plaintiffs witness, and who was the plaintiff, in part, at least, was under examination, the account should have been appended and the cross-interrogatory fully answered. But the rule seems to be settled that if the answers are not satisfactory, the motion must be to suppress or correct. Wright v. Cabot, 89 N. Y., 570, is decisive of the question.

This rule applies to all kindred exceptions herein The conclusion arrived at, therefore, after a thorough consideration of the record is that the verdict of the jury settled the liability of the defendants, and they must bear the burden which it imposes upon them, as no rule of law was violated during the trial, and there consequently exists no •reason for interfering with the judgment.

^Judgment affirmed, with costs.

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