author: Gray, J.—The

text:
    Betsey Whitman, Adm’rx, Resp’t, v. Matthew F. Foley et al., App’lts.

      (Court of Appeals,

      Filed February 24, 1891.)

    1. Mortgage—Evidence—Admissions.
    In an action of foreclosure where the mortgagee was dead and receipts had not always been taken by the mortgagors for payments made, there was positive testimony that deceased had stated, in order to reduce his taxes, that the mortgages were “pretty much all paid” and in August, 1885, for the same purpose he stated under oath that the “ Foley boys had paid their mortgage off to §500,” etc. Held, that the referee appointed to compute the amount due had the right to believe and find as a fact that that sum represented all that was then due the deceased.
    2. Same—Code Civ. Pro., § 819.
    One not a party, nor interested in the result, is not prevented from testitying by § 829 of the Code, merely because he has acted as the agent of the wife of one of the parties. To warrant the exclusion of a party under this section, his disqualification must clearly appear and not be a matter of inference.
    Appeal from judgment of the supreme court, general term, fifth department, reversing judgment in "foreclosure action entered upon report of referee finding that there was but $242.42 due.

      Wm. M Hicghitt, for app’lts; John D. Teller, for resp’t

       Reversing 26 N. Y. State Rep., 878.

   Gray, J.—The

plaintiff brought this action for the foreclosure of two.mortgages, alleging a certain indebtedness to be due upon the bonds for principal and for interest. These appellants answered, alleging that the sums mentioned in the complaint were not due nor unpaid, and that sums were paid thereon, “ the times of payment and the amounts these defendants are not now able to state.”

The form of their pleading is open to the respondent’s criticism, and it is both inartistic and loose; but it cannot be taken as containing any admission of the plaintiff’s allegations as to the amount due from the defendants, and, whatever the objections to its sufficiency, they must be deemed to have been waived by proceeding to trial upon the merits. The failure to raise any such question by a proper motion, or exception, precludes its discussion in the appellate court. Cowing v. Altman, 79 N. Y., 167.

The issue was presented as to the amount for which the mortgage deeds were still a lien upon the lands described in the complaint, and that was the issue which was referred to the referee to hear and determine. Upon that determination depended the computation which he was ordered to make of the amount due to the plaintiff. The uncertainty respecting the amount due upon the bonds may be accounted for by reason of the death of the obligee and of the failure of the debtors to have any receipts for payments. None seem ever to have been taken. The defendants were uneducated persons and ignorant of business methods, and in their confidence in the plaintiff’s intestate they had neglected to take the usual precautions to vouch for these payments. There were endorsements upon the bonds of payments made at various times, and the plaintiff relied upon them as solely evidencing the basis for a computation of the amount for whicli the mortgages were enforceable. The defendants adduced and relied upon certain evidence of admissions or declarations made by the plaintiff’s intestate to others, respecting the amount of the indebtedness.

The referee made this finding as to the payments, viz.: “ That sundry payments were made upon said bonds by said John D. Foley and others, but it was not proven before me in every instance what were the amounts or dates of said several payments nor upon which of said bonds the same were applied. But such payments were to such an amount that on the 19th day of August, 1885, there was due upon both said bonds and mortgages to said George A. Whitman, or upon whichever one of the same was then unpaid, the sum of $500 and no more.”

Upon that finding of fact followed the referee’s legal conclusions that the plaintiff was entitled to the usual judgment of foreclosure and sale and to payment from the proceeds of a sale. The finding was excepted to by plaintiff, but the court at special term sustained the referee’s report and decreed in conformity therewith. Unon plaintiff’s appeal the general term reversed the special term and ordered a new trial. As their order did not state that the reversal was on the facts, it must be presumed that it was for some error of law. Code of Civ. Pro., § 1838. It, therefore, is incumbent upon us to examine the record in order to discover whether any exceptions to the referee’s findings of fact raised any question of law from their not being supported by evidence, or whether in the course of the trial the referee committed such errors in his rulings as being excepted to would have justified the general term’s order. By their opinion .alone we cannot be guided and the respondent here is entitled to the benefit of any legal errors committed by the referee which would have rendered a new trial necessary.

The plaintiff excepted to the referee’s finding that the amount due on the 19th day of August, 1885, was the sum of $500 and no more. If there was no evidence to support such a finding, a question of law was presented and the error was most grave; for the question went to the very foundation of the judgment of the special term. The finding directly affected and led to the conclusion reached by the referee as to the amount for which the mortgages were enforceable. The bonds and mortgages were executed in 1870 by John D. Foley, a previous owner of the mortgaged premises, one having been delivered to the plaintiff’s intestate and the other one to Jane Calvert, and affected the same premises.

Subsequently the intestate acquired the Calvert bond and mortgage by assignment. John D. Foley was made a party defendant, with the present owners of the property; but he was able to prove a release from his bonds and had judgment in his favor. The present owners, these appellants, being without receipts, and unable to prove any particular payment on account of the bonded indebtedness, not indorsed upon the bonds, undertook to establish the extent to which the debt had been reduced by witnesses to whom the deceased mortgagee had made statements upon the subject. Among these witnesses were two of the assessors of the town in which the deceased was a resident, and it is their evidence upon which the referee, concededly, relied. The assessor for the particular district where Whitman, the plaintiff’s intestate, lived, was his neighbor for many years. In the year 1883, while making his preliminary rounds for assessment purposes, and discovering the two Foley mortgages of record, he spoke to Whitman of them and of the amount they represented, in connection with the amount of his taxable personal property; whereupon Whitman said it must be a mistake as he never owned but one. The assessor, however, said he would assess him for $4,000. Subsequently, on the day for hearing objections to assessments, commonly termed “ grievance day,” Whitman appeared before the board of assessors and made an affidavit that he had “ one mortgage worth about $1,000 and no more taxable personal property.” Thereupon, his assessment was reduced to $700. The same assessor testified to another conversation with Whitman, relatively to his assessment in the following year. He told him he had certainly found two mortgages recorded in his name. Whitman in answer said: “ Well, if there is, they are pretty much ■ all paid.” On “ grievance day ” the assessment was reduced to $600. The next year, 1885, on “grievance day,” again, Whitman appeared before the assessors and was examined under oath. The same assessor, as witness, testifies that Whitman said “ $500 was all we could put him down.” Upon being asked “if the Foley boys had paid their mortgage off to $500,” he said “Yes, they had paid the interest and principal to $500 or thereabouts.” In his affidavit, on that occssion, he swore that he had “but one mortgage at the present time upon which there is now due about $500. ” The board of assessors thereupon reduced his assessment to that sum.

The testimony of this witness was supplemented by that of another of the assessors, and was more or less corroborated, to the effect that “ something was said about the indebtedness of the Foleys. * * * I think he swore the amount unpaid on that was $500. I think that was what we assessed it. * * * I think we agreed to assess that year (1885) at full value.” The witness was not very certain as to whether it was in 1883.or 1885 that the Foley indebtedness was mentioned, and rather thought afterwards that it must have been in 1883, when it was stated at $1,000. He explains his not remembering very particularly by the statement that the other assessor did the questioning, as he had assessed the property, and they, the other assessors, “ didn’t have much to say about it.”

This evidence in behalf of the defendants was offset by testimony as to their attempts to compromise with plaintiff for a sum so .large as to amount to more than the aggregate'of the two principal sums; but that was denied by the defendants. The evidence was not of the most satisfactory kind, and the case, as presented finally to the referee, made a somewhat unsteady basis for the computation of the amount due, if he went outside of the indorsements on the bonds. But they were not conclusive upon him as to the whole amount paid to and received by the obligee, as matter of law. They were some evidence, but were to be considered and weighed by the referee with all the other evidence adduced, in determining as to how far the indebtedness had been in fact reduced by payments. Payment, like any other question of fact, can be proved by extrinsic facts. Here the defendants’ mouths were sealed. They were prevented from testifying as to personal transactions by reason of their creditor’s death. Some evidence is discovered of statements made by the deceased to others concerning the amount of the indebtedness to him, represented by the Foley mortgages, and upon an occasion when it was essential he should state it solemnly and correctly. Shall we say that it is worthless evidence ? Can we say that the referee had no legal right to consider it and to give it weight ? Clearly not. If it was not the most certain proof, it was more than circumstantial. If it was unsatisfactory evidence in degree, that made it all the more a matter proper to be finally disposed of by the referee’s decision.

The case of Metropolitan Bank v. Smith, 4 Robt., 229, in which Robertson, Ch. J., wrote, illustrates how far courts have gone in refusing to disturb a verdict based on circumstantial evidence of payment, as against direct evidence. There may have been discrepancies in the evidence adduced by the defendants and it is conceivable, if the question of the weight of the evidence was before us and the facts were open to our review, as upon a reversal by the general term upon questions of fact, that we might entertain a different opinion as to the reduction of indebtedness and that we might agree that the judgment upon the report should be reversed: But we can not say that the referee’s conclusion was so wholly unsupported by evidence as to justify us in holding that it was an error in law; and, under the well settled rule in such cases, if the exception to the finding was not well taken, and the finding warranted the judgment, that judgment must be upheld here. Smith v. Pettee, 70 R Y., 13. It may be observed liere that the evidence of the assessors, upon which the referee has relied, does not violate all the presumptions which are entertain-able. Although on their face the bonds appeared to have been long past due by their terms and there were large arrearages of payments for interest and installments of principal, yet the deceased had not instituted any foreclosure proceedings. And, again, one witness testified that the deceased had said to him, early in 1885, that the Foley boys “ were paying from five to seven hundred dollars a year.” Such facts might lend credence to the assessors’ evidence in the referee’s mind. There was not necessarily such inconsistency in the affidavits of the deceased, filed with the assessors, with the facts, as to discredit them as evidence of the amount due. In swearing to his having only one mortgage, he may have considered that one only ran to himself; or he may have considered one as paid up by the application of payments, or he may have regarded the whole matter as one debt. But it is only a discrepancy in evidence. It was at most a matter to excite the referee’s doubts. He had the positive testimony that in August, 1884, the intestate stated that the mortgages were “ pretty much all paid,” and that in August, 1885, he stated under oath that “ the Foley boys had paid their mortgage off to $500.” He had the right to believe and to find as a fact that that sum represented all that was then due the deceased.

The respondent insists upon the error of the referee in permitting Peter Dean to testify to a payment made to the intestate in 1883. The objection was that he was “ a parly under whom the defendants claim, and an acting agent for his wife,” who was one of the owners of the property, and a defendant He was not a party, nor interested in the result, and § 829 of the Code of Civil Procedure did not prevent him from testifying merely because he had acted as his wife’s agent. Nearpass v. Gilman, 104 N. Y., 506; 5 N. Y. State Rep., 745. Nor did he appear to be disqualified to testify as being a person under whom the defendants derived their interest within that section of the Code. It had not appeared that the defendants derived-title through him, nor what was the nature of his interest. To warrant the exclusion of evidence of a party, under this section, his disqualification must clearly appear, and not be a matter of inference. The respondent claims that subsequently, and towards the end of the trial, the fact of a previous sale to the witness was proved. Conceding that fact, to have availed herself of it, her proper course was then to move to strike out the witness’ previous testimony. An objection cannot be made good and be availed of by reason of subsequent proof. If the evidence was shown to have been inadmissible by facts subsequently appearing, a motion on that ground could have been made and granted. But even if there could be any doubt as to the legal propriety of the evidence, no possible prejudice could have occurred to the plaintiff, for the referee’s decision disregarded such proof, and was placed upon the evidence of what the deceased had declared to be due in 1885.

Another exception, which the respondent argues, related to the objection taken to the testimony of John Foley, a predecessor in interest of the defendants, as to what was said by him in a conversation in the presence of defendant, Matthew Foley, upon the occasion of a visit to the plaintiff. The conversation was with plaintiff’s son-in-law and was upon the subject of interest payments. The objection is general, no ground being stated. For that reason, and because under the findings and conclusion of the referee the answer could not have affected the plaintiff in the slightest degree, the exception is untenable.

We find no errors of law committed upon the trial, or in the findings of the referee, and the motion for a new trial, addressed to the court at special term, was, therefore, properly denied.

The order of the general term should be reversed and the judgment of the special term affirmed, with costs to the appellant at the general term and in this court.

All concur.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    Charles C. Baldwin, Resp’t, v. Fannie M. Short et al., App’lts.

      (Court of Appeals,

      Filed February 24, 1891.)

    Fraudulent conveyance—Consideration partly fictitious.
    Where a part of the consideration for a transfer of real estate is fictitious, and it was made by the grantor with a fraudulent intent, to which the grantee was a party, the conveyance cannot he sustained to the extent of the adequate and honest part of the consideration, hut the deed is wholly void and cannot stand to any extent as security or indemnity.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment for plaintiff entered on decision of special term, adjudging- a deed executed by defendant O rinda B. Sperry to defendant Fannie M. Short to be fraudulent and void as to certain creditors.

      Louis Marshall, for app’lts; Martin A. Knapp and Chas. G. Baldwin, for resp’t.

       Affirming 28 N. Y. State Rep., 105.

   Finch, J.

The findings of fact in this case establish that the conveyance of the house and lot to Mrs. Short by Mrs. Sperry was made and accepted with an intent.on the part of both grantee and grantor to hinder, delay and defraud the creditors of the latter. The conveyance was not voluntary, for it was made in part in' consideration of a debt of about-eight thousand dollars which the findings show was an honest debt and justly due to the grantee from the grantor. The conclusion of a fraudulent intent on the part of Mrs. Short was therefore essential to a recovery and was established by proof that the "balance of the consideration for the transfer was made up of a false and pretended debt for board and washing which was wholly fictitious and never in fact existed and which both parties to the transaction falsely concocted to make up a full and fair consideration for the conveyance. The existence or the falsity of that indebtedness was therefore an essential and vital element in the controversy, and the appellants claim that in the effort to show it to have been a fabrication evidence was admitted against Mrs. Short of declarations made by Mrs. Sperry at a period preceding the conveyance which bore directly upon the validity of the disputed debt and were inadmissible as against Mrs. Short.

Mrs. Parker, a witness for the plaintiff, was permitted to testify that just prior to the assignment she had a conversation with Mrs. Sperry in the absence of Mrs. Short, in the course of which Mrs. Sperry said “ I think I shall sell this house; it costs so much to keep it up just for Mary’s and my board.” The defendants had asserted that such board was an honest debt due to Mrs. Short, from her mother and the plaintiff that it was paid and extinguished as it accrued by the rent of the house and that by agreement the board was to be furnished in exchange for the rent which would otherwise have been due from Mrs. Short on account of her occupation.

The declaration sworn to by Mrs. Parker tended to show the truth of plaintiff’s contention, but was in the absence of Mrs. Short, constituted no part of the res gestee, and was inadmissible as against the grantee, in whose behalf the objection was made.

But it is a conclusive answer to this allegation of error that Mrs. Short herself, when examined as a witness, admitted all and more than what the objectionable evidence tended to prove. She acknowledged that during her occupation of the house her mother paid all the taxes and insurance and almost all the charges for repairs, and further testified: 1 don’t remember saying to Mrs. Sherwood that I boarded my mother and Mary for the rent of the house; did their washing; that while I thought a great deal of my sister, I thought it was hard I should pay the rent and that my sister should receive it; I would not say I didn’t; I don’t remember ; I don’t know when I said it; that was the arrangement under which I was in the house.”

She said again, at a later period of her examination: “ I had loanedmy mother this money; I boarded her and my sister and did their washing for this house; for the rent of the house. * * * I was not to pay any rent only in that way; only to board them in that way and do their washing; that was to pay my rent, and that arrangement continued down to the time I received my deed.” Of course, these admissions made the declarations to Mrs. Parker wholly superfluous and immaterial.

Mrs. Parker was also permitted to narrate other declarations of Mrs. Sperry, made prior to the conveyance, under objection. These were, in substance, that it was preposterous to suggest that she should make presents to her daughters because they took care of her when she was sick; that they only did their duty.

In answer to the objection interposed in behalf of Mrs. Short, the court held the declarations not competent, but to accommodate the witness allowed them to be detailed, conditioned upon their being stricken out if not made competent. In the further progress of the trial, both Mrs. Short and Mrs. Sperry testified to the transfer to the former by the latter of some “ ranch stock ” a few months before the assignment, and added that it was done as remuneration for the services rendered during Mrs. Sperry’s sickness. The declarations sworn to by the witness tended to show that the mother did not regard the services of her daughters during her illness as constituting a debt which she was in any manner bound to repay, and that is the sole element of value in the proof. But exactly that Mrs. Short herself finally admitted.

She said expressly that for her services in the illness referred to she neither asked nor expected any pay; that the transfer of the ranch stock was a present; that it was given to her; and so constituted a gift rather than a purchase. If it be still suggested that the declaration proved showed an existing unwillingness to make her a present, the fact was both immaterial and harmless, for the admitted delay of at least eight years shows the same thing much more forcibly and leaves no doubt about the sug-> gested lack of inclination.

But another class of evidence was received under objection. The plaintiff proved several instances of transfers of property by Mrs. Sperry to persons other than Mrs. Short prior to the conveyance to the latter, and it was objected in her behalf that she could not be affected by transactions to which she was not a party and of which she had no knowledge. But the plaintiff was bound to prove the fraudulent intent of Mrs. Sperry, both as against herself and against Mrs. Short, and as against the latter by evidence competent as against her. The acts and transfers of Mrs. Sperry pertinent to the question of her intent were admissible against both to establish that intent; and are not to be excluded because they do not also bear upon the intent of Mrs. Short. It is not necessary that the same fact offered in evidence should tend to establish both intents. If it proved Mrs. Sperry’s alone, but was a kind of evidence competent against Mrs. Short, no error would follow its admission. It would tend_ to prove one branch of the issue, leaving the other to be met in some different way.

There are some other objections to evidence, but of so little importance as not to justify discussion. They related principally to the. declarations of Mrs. Sperry on the day of the assignment and conveyance, and pending the preparation of those instruments, and were either within the res gestae, or wholly immaterial in view of the ultimate course of the trial.

The contention that the conveyance to Mrs. Short may be-sustained to the extent of the adequate and honest part of the consideration is fully answered by the authorities which hold that where the deed is fraudulent against creditors it is wholly void and cannot stand to any extent as security or indemnity. Boyd v. Dunlap, 1 Johns. Ch., 478; Dewey v. Moyer, 72 N. Y., 70; Billings v. Russell, 101 id., 226. A different rule would put a premium upon fraud.

Almost invariably some honest consideration is made the agency for floating a scheme of fraud against creditors, and if that may always be saved, nothing is lost by the effort, and the temptation to venture it is increased. We are thus unable to find in the record any error which will justify a reversal. Indeed, since the ground of recovery against the defendants rests almost wholly upon the single fact of a false and fraudulent consideration, fabricated by the joint act of both grantor and grantee, and distinctly admitted by each to have been without an honest foundation, the questions of evidence raised can hardly be said to have affected the ultimate result.

The judgment should be affirmed, with costs.

All concur, except Ruger, Ch. J., and Andrews, J., not voting.


author: Peckham, J.

text:
    Isabel S. Tripler, Resp’t, v. The Mayor, etc., of New York, App’lt.

      (Court of Appeals,

      Filed February 24, 1891.)

    1. Municipal cobfobations—Assessment—When void on its pace.
    The fact that the commissioner of public works at the time of transmitting to the board of assessors the statement of the total amount of the expenses actually incurred by the mayor, etc., on account of the work of constructing certain sewers, accompanied it with a letter saying that the work was begun by day’s work, and was so nearly completed when it came under his charge that it was impracticable to make a new contract, does not render such assessment void on its face, as the letter is no part of the certificate required by the statute, and the fact that the assessors pinned it to the statement did not in the least alter the character of the record or of the letter.
    '2. Same.
    Even if the contents of the letter had been incorporated in, and had formed a physical portion of the statement, the effect would have been the same.
    3. Same—Yoluntaby payments—Coebcion.
    The assesment was confirmed May 24th, 1881, and May 28th the statutory notice requiring payment by July 27th, 1881, after which interest would be added, was served on the parties interested, but the payment not being made the city took no steps toward enforcing it. and in January, 1887, plaintiff’s grantee paid the assessment to clear the title out of a part of the consideration money reserved for the purpose. Held, that there was no coercion in law, unless the plaintiff’ is able to show that she paid the assessment in ignorance of the facts which rendered it wholly void.
    Appeal from judgment of the supreme court,. general term, first department, affirming judgment for plaintiff entered upon decision of the court after trial without a jury.

      D. J. Dean, for app’lt; James A. Deering, for resp’t.

       Reversing 24 N. Y. State Rep., 244.

   Peckham, J.

I do not think this assessment is void on its face.. It is said to be so because'the commissioner of public works at the-time he transmitted to the board of assessors the statement-of the total amount of all the expenses which had been actually incurred by the mayor, etc., on account of the work of constructing sewers in the district in question, also sent a letter which accompanied such statement, but was separate and distinct from it, in which letter the commissioner says ; “ The work was commenced in 1873 by day’s work, and was so nearly completed when, it came under my charge in January, 1876, that it was impracticable to make contract for the remainder of the work, as I should have done.if any considerable quantity of work had been left uncompleted.

The defendant now alleges that this letter accompanying the statement of expenses for the work, which was transmitted by the commissioner of public works to the board of assessors, became a part of such statement and therefore a part of the record of the proceedings for levying the assessment, and that it showed facts which rendered the assessment void on its face.

I think this contention cannot be maintained. By the statute relating to the subject the duty of the commissioner of -public works was simply to “'certify to the said board of assessors the total amount of all the expenses which shall have been actually incurred by the mayor, aldermen and commonalty of the city of New York on account” of the local improvement for the expenses of which the certificate is made. The bald fact of the total amount of the expenses is alone provided for by the statute.

How the commissioner made up this total, what .was the character of the work, by whom performed and whether by contract or day’s work, were facts which, however material in other places and in connection with other matters, had no statutory place in the statement which the commissioner was commanded to transmit to the board. Indeed, the commissioner, it is seen, so understood it, for his statement made under the authority of the law contained not a word more than the law demanded, and simply gave the total amount of the expenses incurred. . The ■ letter accompanying the statement was no part of it and was no part' of the record of assessment That the members of the board of . assessors pinned or fastened it to the statement did not in the least alter thé character of the record or of the letter.

But even if the contents of the letter had been included in and had formed a physical portion of the statement, the effect would have been the same. The facts recited in the statement 'other than that which the statute provided should be stated by the commissioner are not thereby made by his act a part of the-record. .The commissioner could not make the record consist of anything more than the law provided for, and he could not make any statement of his a part of such record any further than the statute provided.

This court held in Board of Water Commissioners v. Lansing. 45 N. Y., 19, that a statement in a return which the statute provided the appraisers should make of some fact other than such as the statute demanded was no part of the return and was no evidence of the truth of the fact stated. The existence of the fact itself was material, and because of the absence of other and satisfactory proof of its existence the judgment was reversed in this ■court.

Rapallo, J., said that no authority was given to the appraisers to report any fact other than the sum which they estimated, and that the report or certificate of an officer is evidence only of facts which by law he is authorized or required to certify. To same effeefy, Wolfe v. Washburn, 6 Cow., 261; Anderson v James, 4 Robt., 35.

The term “ void on its face,” as applied to a record, implies that no evidence other than an inspection of the record is necessary to prove the fact of invalidity. If this statement in the letter of the commissioner be no part of his duty to make, it is not evidence of the fact stated, and the party desiring to prove the fact would have to prove it by other evidence. Parr v. Village of Greenbush, 72 N. Y., 463.

The assessment is not necessarily void even though the labor had been performed by day’s work.

The common council could by a three-fourths vote authorize the work to be thus done. The fact that it had not thus voted •was proved by other evidence. It seems to me we must treat this assessment as one which is valid upon its face, but which was void on account of the existence of facts de hors the record. We are thus brought to the question, was this a voluntary payment? On the 24th of May, 1881, the assessment was confirmed, and on the 28th of May, in the same year, the clerk of arrears in the manner required by statute gave notice of its confirmation to the parties interested, and required payment thereof on or before July 27j 1881, and stated that in default thereof interest would be added at the rate of seven per cent from the date of confirmation. The demand -of payment required by statute was simply a published notice requiring the amount to be paid to the proper officer within sixty days or the assessment would bear interest as stated.

The plaintiff did not comply with the demand and the eity took no steps whatever towards enforcing the payment of this assessment from that time forward. On the 29tli of January, 1887, or nearly six years after the confirmation of the assessment, the city still remaining absolutely passive as to enforcing the same, the amount of the assessment laid on the plaintiff’s land together with interest was paid to the clerk of arrears by the attorney for the person to whom the plaintiff herein had sold the property, out of the consideration money reserved for that purpose by the purchaser, and such payment was so paid to free and clear the premises from the lien and encumbrance of the assessment in accordance with the terms of sale and deed from the plaintiff to the purchaser. This is the finding of the court as to the manner of payment and. the person who made it.

Under the law in New York there were sixty days after the; confirmation of an assessment during which it drew no interest. The law provided for the publication for. ten days of the notice-above described. After the expiration of the sixty days, and for three years after its confirmation, the assessment might be paid with the interest accruing thereon and after the expiration of the-three years it became the duty of the clerk of arrears under the-direction of the comptroller to advertise the lands affected by the assessment for sale and to sell them at auction on a day and at a. place to be specified in the notice for the lowest term any one would take them for and pay the assessment with twelve per cent, interest thereon. The first three years had passed and the-plaintiff had paid nothing. Hearly three years more passed away and the city authorities still took no step whatever under the law to advertise the lands for sale, but on the contrary remained, wholly passive, and it is after this length of time that the plaintiff gave authority to pay and for the purpose as already stated.

In her complaint the plaintiff alleges she paid the assessment in ignorance of the fact which rendered it void and under a mistake as to those facts as well as by coercion of law.

The court does not find that the plaintiff paid or permitted payment of the assessment in ignorance of the facts which rendered it. void. Hor are any facts found from which an inference of such, ignorance could fairly be drawn. Upon looking at the evidence to see if there is any upon which to support a finding of such fact we are forced to say there is none. The great lapse of time from the confirmation to the payment of the assessment during which the city made no attempt to collect it, the existence of facts proved by written evidence on file in the public offices of the city and open to the inspection of all who chose to look and by which the invalid character of the assessment might be easily discovered, the fact that this court in the cases of two similar’ assessments, 91 H. Y, 117, and 93 id., 634, based upon precisely the same grounds, had in two distinct litigations decided both assessments to be void and that both decisions had been reported at large in the official series of the reports of this court, the omission of the plaintiff to pay the assessment during all these years when if it were valid interest was running upon it at the rate of twelve per cent:, these facts might well permit a finding of knowledge on the plaintiff’s part of the invalidity of the assessment when she authorized its payment

If, therefore, in order to prove that the payment was involuntary, it must appear in a case like this, where there was no coercion in fact, that it was made as the plaintiff alleges in her complaint this payment was made, viz., in ignorance of the facts which rendered the assessment invalid, then the plaintiff here has failed to make out her case and the judgment in her favor must be reversed.

The very word used to describe an involuntary payment imports a payment made against the will of the person who pays. It implies that there is some fact or circumstance which overcomes the will and imposes a necessity of payment in order to escape further ills.

There can be no claim made here that this payment was made by any coercion in fact. There was no threat- of taking person or goods, and no payment of money was necessary to obtain immediate liberty of person or possession of property. Neither was in the possession or control of the city.

Was there such coercion in law as would render the payment involuntary ? Assessments have been likened to judgments, and indeed have been called quasi adjudications of inferior tribunals,, and coercion in law has been said to exist where a court, having jurisdiction of the person and subject matter, has rendered a judgment which is collectible in due course, for in such. case the party cast in judgment cannot resist its execution, and his only remedy is an appeal and a reversal of it for error. And as he cannot resist it when execution is attempted, he may as well pay the amount at one time as at another and save the expense of delay. This is practically the language of Folger, J., in the case of Peyser v. Mayor, etc., of New York, 70 N. Y., 497.

The opinion in the Peyser case proceeds upon the assumption that the party paying was not aware of the facts which rendered the assessment void. He says, as the party cast in judgment cannot resist its execution when execution is attempted, he may as well pay the amount at once. This is said in the case of a judgment . of a court (to which he likened the assessment) which had obtained jurisdiction of the person and subject matter, and where it is stated there is no way by which to resist the execution of such judgment except by way of a reversal thereof on appeal. In such case there is coercion in law, say the courts.

By parity of reasoning it is said that as an assessment is a quasi judgment, in such case there is also coercion in law. But what is the case? It is where there is no defense and no remedy other than an appeal, and the party, if an attempt should be made to enforce it, has no legal means .of resisting the execution of the judgment. And he, in such case, may anticipate its enforcement, and pay without writ or process. Does a person pay under coercion of law who pays with knowledge of facts outside of the record which render the assessment wholly void, where the city takes no steps towards enforcing or collecting it ? In such case I think he is not, to use the'language of Judge Folger in the Peyser case, a party cast in judgment, who cannot resist its payment, and who has no remedy but a reversal. lie has the right at once to commence his action to set aside the apparent lien of the assessment as a cloud upon his title, and to enjoin its collection, and he may do this before any step is taken toward enforcing the assessment. With such knowledge, and with such right, if a person choose nevertheless voluntarily to pay, it is no hardship to hold he cannot recover it back. In such case no reason exists for permitting him to pay it with full knowledge that the assessment is utterly void, and in the absence of any attempt on the part of .the city to' enforce payment, and in then allowing him to sustain such an action as this to recover back the money so paid. If the owner of the judgment, or the city in case of the assessment, sought to enforce payment, the party might pay even with knowledge, and still recover back. . But one against whom a judgment is .rendered, or upon whose land an assessment is laid, apparently valid, although in truth utterly void by reason of facts outside of the record, who pays it with full knowledge of those facts, and without the slightest attempt to enforce payment of either the judgment or assessment, cannot in any just view of the case be regarded as making an involuntary payment by coercion in law. If the judgment be so far valid as that it cannot be set aside in any other fashion than by a reversal for error, it is not .within the principle I have stated. The facts must be outside of the record, and must be of such a character as to render the judgment or assessment void.

It has been urged that the Peyser case showed no further or other attempt to enforce the assessment than is to be found in this case, and that the attempt in this case was simply the publication of the notice and the demand already described. It is then also stated that it was held in the Peyser case that such published demand was in the nature of process and amounted to such an attempt to enforce the payment of the assessment as justified the plaintiff in paying the same. The two cases, however, are not entirely similar. In the Peyser case I think it is assumed that the payment was made in ignorance of the facts and in the belief that the assessment was really as valid as on its face it appeared. If it be now claimed that such fact does not appear in the case and that in reality it was decided without special reference thereto, it must be answered that there is a difference in the facts in these cases under which the payments were made. I think it evident that in this case there was no such coercion in law as to render the payment involuntary. In the Peyser case the party paid within the time covered by the notice in order to save the interest, which is a penalty. In this case she did not, but waited nearly six years thereafter and then paid under wholly different circumstances. Where the circumstances are thus different I am of the opinion that the doctrine of the Peyser case does not apply. It may be difficult to say exactly what step should be regarded as such an attempt to enforce the payment of an assessment as would authorize its payment and make it involuntary, where the assessment is void for extrinsic facts known to the payer, or for how long a time its virtue as such attempt shall last. In this case there had never been any attempt to enforce payment other than by the publication of a notice and demand, and the effect of that publication as an effort to enforce payment or as a demand of payment within sixty days to avoid the running of interest had been lost by great lapse of time.

Hence we must say in. the case before us, there was no coercion in law, unless the plaintiff is able to show she paid the assessment in ignorance of the facts which rendered it wholly void.

In the cases I have examined, the point under discussion has not always been made or alluded to. It has been assumed in many cases, and in most or all of them the complaint has contained the allegation that the payment was made in ignorance of the facts, where there was no coercion in fact by duress of person or of goods. There is no case that I have been able to find in which it has been held that a party has a right to recover back the moneys paid upon such facts as exist here, if plaintiff paid with full knowledge.

In Purssell's case, 85 N. Y, 330, it appeared by his evidence that he was ignorant of the facts which rendered the assessment void and the court held that as owner of a valuable leasehold interest in the land he could profit by the fact that the owner of the fee had had the assessment set aside, as he was bound by his covenant to pay all assessments.

Diefenthaler v. Mayor, 111 N. Y., 331; 19 N. Y. State Rep., 126, only held that money which the owner has involuntarily paid, can be recovered back as therein stated. The complaint therein alleged the plaintiffs were ignorant of the facts constituting the illegality of the assessment when they paid it. What was necessary to constitute an involuntary payment was not discussed or decided. No question was made about the involuntary character of the payment.

The fact appeared in Strusburgh v. Mayor, 87 N. Y., 452, that such payment was made in ignorance and that no degree of vigilance which could have been expected or demanded of the plaintiff would have enabled him to discover the illegality of the assessment.

In Horn v. Town of New Lots, 83 N. Y., 100, no question of this kind arose because the money of the plaintiff while in the hands of the county clerk was levied upon by the collector of the town and paid to the county treasurer of Kings county to the credit of that town. The plaintiff never paid the money to any one but sought to recover it from the town.

In Bruecher v. Village of Portchester, 101 N. Y., 240, the assessment was valid upon its face and the court based its decision upon the fact that a valid warrant was out for its collection and hence there was coercion in fact

In Jex v. Mayor, 103 N. Y., 536; 3 N. Y. State Rep., 657, the complaint alleged that the plaintiff was ignorant of the defect in the proceedings and was required to and did pay the amount of the assessment under coercion of law.

In Bank, etc., v. Mayor, 43 N. Y., 184, the money was collected on a warrant and it was held to have been paid under coercion.

Robertson v. Frank Brothers Co., 132 U. S., 17, was a clear case of duress in fact. To avoid a penalty,- illegal though it were, and to get possession of their goods, which were of a perishable nature, the defendants in error made the addition in their invoices required by the custom house officials, the direct and necessary effect of which was to make the defendants in error pay higher duties on their imported property.

In the Purssell case, supra, Judge Rapallowas of the opinion that the Peyser case was decided on the theory that the assessment was in the nature of a judgment and the city was bound to repay what had been received by it in payment of the judgment, upon a, reversal thereof, and that it was not a case for the application of the doctrine of voluntary payments. In so speaking the learned judge undoubtedly had in his mind the case of a payment in ignorance of the facts.

In the case of a judgment strictly so called, which is void from extrensic facts, it might be admitted that if the party paid it with knowledge thereof and where no steps were taken to enforce it, yet if on appeal it were reversed for error, he might avail himself of the reversal to recover back the money paid. In that case he does not avail himself of the extrinsic facts in order to obtain the reversal, and it might well be that the principle permitting the recovery of moneys paid on a judgment afterwards reversed on error would, apply.

But if a'party should pay avoid judgment with full knowledge of the extrinsic facts as above stated, and without any coercion or threat, and then on those very facts should seek to set the same aside and to recover back the money so paid, I think the doctrine permitting a recovery back of money paid on a judgment subsequently reversed does not apply and that the case is a clear one for the application of the doctrine of voluntary payments. I think the principle of the two cases, Vanderbeck v. City of Rochester, 122 N. Y., 285; 33 N. Y. State Rep., 381, and Pooley v. City of Buffalo, 122 N. Y., 592; 34 N. Y. State Rep., 541, is to this same effect.

But the plaintiff now alleges there was coercion in fact because the statute imposed interest on the principal sum of the unpaid assessment, and a payment to prevent the accruing of interest is claimed to be an involuntary one. There is no finding that the payment was made for that purpose, but there is a finding as to why the payment was made, which is at war with this contention. The running of interest had no terrors for the plaintiff and the assessment remained unpaid until the execution of the contract alluded to in the findings.

Nor was there any coercion in law or fact arising from the fact that the plaintiff authorized the payment of the assessment in order to enable her to carry out the contract just spoken of. She was under no more coercion in the case than if she made no contract, but desired simply to free her land from the apparent lien of the assessment. ■ If she authorized the payment with knowledge of the facts and simply to enable her to carry out the terms of such contract there was no coercion in law. Phelps v. Mayor, 112 N. Y., 216; 20 N. Y. State Rep., 238; Vaughn v. Village of Portchester, 115 N. Y., 637; 23 N. Y. State Rep., 994; reversing 43 Hun, 427; 6 N. Y. State Rep., 681.

I think in this case the law required plaintiff to prove that she authorized the payment in ignorance of the facts, and as there is no such finding and no evidence in the case upon which to base it, the judgment in her favor must for that reason be reversed and a new trial ordered, with costs to abide the event.

All concur; Ruger, Ch. J., in result


author: O’Brien, J.

text:
    The People, Resp’ts, v. Nicola Trezza, App’lt.

      (Court of Appeals,

      Filed February 24, 1891.)

    1. Homicide—Premeditation.
    The fact that the defendant went to the house of the deceased with a loaded revolver in his pocket, assumed a quarrelsome attitude upon entering, threatened to kill the inmates, concealed the revolver in his sleeve and on deceased ordering him out, fired twice at him and also at a third person saying “ I will kill you first, then I will kill everybody in the house ” are sufficient to prove a deliberate aud premeditated design to effect death.
    2. Sam:e—Motive.
    It is not material whether the acts of the accused ending in the death of the victim proceeded from some motive not disclosed or from general depravity and a reckless disregard for human life. In either case, in the absence of lawful excuse or justification these acts establish the crime of murder in the first degree.
    Appeal from judgment of. the Kings county court of sessions, entered upon conviction of defendant of the crime of murder in the first degree.

      A. H. Dailey, for app’lt; John F. GlarJce, ass’t dist. att’y, for resp’ts.
   O’Brien, J.

The defendant was convicted in the Kings county court at town of Flatbush, one of the suburbs of Brooklyn, on the 6th day of April, 1890. There are no exceptions in the record that raise any question of law upon which the defendant is entitled to a new taial, and as we are not authorized by the provisions of chap. 493 of the Laws of 1887 to interfere with the finding of the jury when supported by sufficient evidence, unless it appears from the whole record that injustice has been done, it is unnecessary to give more than a brief summary of the facts upon which the judgment rests. People v. Cignarale, 110 N. Y., 23; 16 N. Y. State Rep., 155; People v. Kelly, 113 N. Y., 647; 22 N. Y. State Rep., 969.

On the day that the homicide was committed, which was Easter Sunday, the deceased was at his house in Flatbush with his family, consisting of his wife, his sister, a married daughter and her husband. In the afternoon a friend and acquaintance of the deceased named Felicia Delucca called and was present when the deceased was killed. About five or six o’clock in the evening the defendant loudly knocked at the door of the house and entered. The day was being observed by the deceased and his family and the friend who called in a festal manner, and the defendant shortly after entering the house was invited by Salvano to partake of some of the eatables on the table. The defendant declined, saying that he was not hungry but wanted something to drink and suggested to deceased to send for some beef. Some one of the family was about to go for the beer when the deceased again requested the defendant to eat something.

The defendant said, in substance, that he did not come to eat or to drink, but to “kill you or somebody else;” and he said, with an oath, “I won’t go out of here unless I do somebody harm.” Then, according to the testimony of the prosecution, he struck the table, and took a piece of meat on the fork saying,“ The way I eat this beef I eat somebody’s blood.” The deceased asked him if he “was fooling,” and the defendant repeated, with an oath, “I mean to do it.” The deceased told him “ You had better go away about your business, Nick, because this is Easter Sunday evening. There is no need to make trouble.” The defendant again said, “I have come over here to do some people harm.” After ordering the defendant out of the house, and some more words, the deceased took hold of him to put him out, and the defendant walked out of the door which had been opened. While the defendant was going out he was seen to draw a five barreled revolver from his pocket and adjust it under his coat sleeve. When outside the door the defendant turned around facing the deceased, who stood in, or just outside the door, and about six feet away, and drew the revolver from his sleeve and fired two shots at the deceased and another shot at his son-in-law. At the time of firing the pistol the defendant said, “ I will kill you first, then I will kill everybody in the house.” A bullet from one of the' shots aimed at the deceased passed through the heart, causing almost instant death. The third shot, which was aimed at Frank Murri, the son-in-law, passed through his clothing without injuring him. After firing these three shots the defendant turned and fled with the revolver in his hand. He was pursued by Murri, the son-in-law, and Delucca, and after running about a hundred feet he turned and fired another shot at them without effect. He continued to run until he reached the boulevard, when he turned and ran back in the direction of the house where the deceased lay. When within about one hundred feet of the house he tripped and fell and was then caught by Delucca and, after some resistance, disarmed.

These facts are testified to by the sister of deceased, the son-in- ' law and Delucca, who were all present and witnessed the interview which resulted in the death of Salvano. The wife and daughter of the deceased were also in the house when the defendant came there, but, it seems, had stepped out before the threats and the shooting; to accompany some one to the cars, and hearing the report of the shots when about half a block away, returned and found him dead.

The principal witnesses on both sides were Italians unable to speak the English language and their testimony had to be taken through an interpreter.

From an examination of the record it would seem that'the witnesses were unable or unwilling to fully relate the details of what occurred during the time that the defendant was in the house, which must have been at least half an hour; and the case for the People does not disclose any motive for the defendant’s acts. But it was not denied that the defendant intentionally and deliberately fired the shot at Salvano which produced his death. On the contrary this is admitted by the defendant himself, who claimed tha.t he acted in self defense. The evidence on this point presents an irreconcilable conflict between the witnesses for the People and those for the defense. It is apparent that either one or the other set of witnesses testified falsely. The defendant is the principal witness in sup¡3ort of the claim that the homicide was committed in self defense. In substance he testified that on the evening in question he was passing the house of the deceased in company with two friends; that he requested the friends to remain outside while he went in and greeted the deceased and his family; that he went in, and his friends remained outside; that, after the greeting, the deceased invited him to have something to eat; the defendant declined, saying that he was not hungry; that the deceased became angry at this, and commenced to break the dishes and throw them on the floor. The wife of the deceased then became angry on account of the breaking of the dishes, and requested her husband to let the defendant go away, and then scratched the defendant’s face; that the defendant, when about to leave, and in fact when outside the door, was set upon by the deceased, his sister, wife and other members of the family with chairs and sticks; that he received a blow on the back of the head from some one of them with a chair or stick, and that the deceased had a gun which he fired at the defendant while he was surrounded by the other members of the family who had followed him out of the house. The defendant’s statement is that then he fired the shots that killed the deceased.

The testimony of the two other persons was, in substance, that they were in company with the defendant till he reached the house of the deceased; that then the defendant said he wanted to go in and bid the deceased and family “ Good Easter;” that he went in and they remained outside sitting upon a rock or pile of stones thirty or forty paces from the door. That after waiting about twenty minutes the defendant came out of the house followed by six or seven persons, men and women, who were armed with sticks and chairs; that after they were three or four paces outside the door the deceased rushed out with a gun saying that he could “ lick ” four like the defendant; that he pointed the gun at the defendant and fired, and after that the revolver was discharged by defendant.

Aside from the improbable character of this story in all its details, the testimony was very much weakened on the cross-examination. It does not appear why they sat outside the house and saw their friend assaulted and Salvano killed without making their presence known to any one. Though they were, if their statement can be credited, but a very short distance from the house during the alleged affray that resulted in the death of Salvano, and during the flight and capture of the-defendant, they were not seen by any of the persons who lived in the house, nor did either of them, prior to the trial, publicly disclose the fact that they were eye witnesses to these momentous transactions, although an investigation was had before the coroner immediately after the killing. Moreover the testimony of the defendant and these two witnesses was contradicted by five witnesses who were members of the family of the deceased, and present when the defendant entered the house. These witnesses were the widow, sister, daughter and son-in-law of deceased, and Delucca. They deny that the deceased threw the dishes on the floor, or broke any of them, or that the wife scolded or slapped his face, or that any one made any assault upon him, with sticks, chairs or otherwise, as sworn to by the defendant. These witnesses also show that the only gun that the deceased had was an old one with but a single barrel which he had purchased some time before in his business, which wasthat ofa junkdeáler, for about forty cents, and which after the shooting was found by the police and a member of the' family in the loft of the barn, where it had been since it was purchased, covered with rust, unfit for use and clearly indicating from its appearance that it had not been recently used.

The claim that the killing was done in self defense depended upon the statement of the defendant and the two witnesses referred to that the deceased had a double barrelled gun in his hands; that he had threatened to use it and had actually used it by firing a shot and according to one of the witnesses two shots at the defendant. This gun was not found around the premises by any one. The firing of the fatal shot .brought to the house in a very short time not only the police but other persons outside the family of the deceased,, and if there is any truth in the statement that Salvano died with a gun in his hands the circumstance that it was not found after his death nor seen by any one is quite inconceivable.

The testimony was all submitted to the jury under a very fair and impartial charge and it is quite evident that they were of opinion that the defense had no basis of truth to sustain it

We think the verdict was justified by all the facts and probabilities of the case. The defendant went to the house of the deceased with a loaded revolver in his pocket, and the quarrelsome attitude that he assumed upon entering according to the testimony on the part of the People, the threats to kill, the movement by which the revolver was taken from the pocket and concealed in the coat sleeve and the manner in which he used the pistol upon the deceased, all indicated a deliberate and premeditated design to effect his death, which was carried into effect.

It is not material whether the defendant’s acts,'resulting as they did in the death of Salvano, under the circumstances, proceeded from some motive not disclosed, or from general depravity of mind and a reckless disregard of human life. In either case, in the absence of lawful excuse or justification, these acts establish the crime of murder in the first degree.

The judgment should be affirmed.

All concur.