author: Wright, J.

text:
    The People, Pl’ff, v. Robert W. Lewis, Def’t.

      (Supreme Court, Oyer and Terminer, Oneida county,

      Filed October 14, 1895.)

    1. Witness—Privilege—Incrimination.
    A witness enjoys absolute protection against every species of judicial compulsion as a witness to self-accusation of crime, unless the statute affords him absolute immunity from punishment for any crime, which his testimony called for might be competent as tending to prove, or unless it is so perfectly clear and plain as to preclude all reasonable doubt that the answer cannot possibly tend in any degree to subject him to the peril of criminal prosecution.
    2. Same—Immunity.
    Section 79 of the Penal Code protects a witness against liability for a charge of perjury, in case his testimony before the grand jury should differ materially from that heretofore given by him touching the same matter on his examination before the county judge.
    3. Same. —Bar.
    Section 41r, which relates solely to bribery respecting the exercise of the right of franchise, does not touch the matter of bribery at caucuses or conventions.
    4. Same—Immunity.
    Section 79 of the Penal Code provides immunity from criminal prosecution for such bribery only to the bribe giver, and provides no immunity to the bribe taker.
    5. Same.
    The fact that the witness testified before the county judge to his absolute innocence in the matter, and that the offer for his vote, made by some person whose name he declined to give, was indignantly spurned by him, does not neutralize the force of his claim to the constitutional protection.
    Motion to adjudge defendant guilty of contempt of court in-refusing to answer certain questions put to him by the grand jury.

      George S. Block, List. A tty-., for motion; A. D. Bneeland,. opposed.
   Wright, J.

The grand jury has under investigation a charge against a person whose name is unknown for the crime of bribery under section 41 of the Penal Code, which provides that any person who by bribery, menace, or other corrupt means directly or indirectly attempts to influence the vote of any person entitled to vote at any political caucus or convention is guilty of a misdemeanor. The defendant, on August 10, 1895, was duly elected delegate to the Republican county convention of Oneida county. The charge before the grand jury is that a person whose name is unknown attempted, prior to said convention, to influence the defendant, as such delegate, to vote in the convention for Mr. Coggeshall as nominee for the office of state senator by offering him the sum of $500 therefor. The defendant was sworn as a witness before the grand jury, and the following question, among others, was put to him: “Did any person attempt to bribe you on the 14th day of August last, or corruptly influence your action as a delegate to the Republican county convention? ” The defendant refused to answer, on the ground that his testimony might incriminate him. The constitution of the United States provides that no person “shall be compelled in any criminal case to be a witness against himself.” Amend. 5. This provision has been incorporated into the constitution of our own state (article 1, § 6), and has long been regarded as one of the safeguards of civil liberty. Judge O’Beieh, in People ex rel. Taylor v. Forbes, 143 N. Y. 227; 62 St. Rep. 175, speaking of this provision, says:

“ It should be applied in a broad and liberal Spirit, in order to secure the citizen that immunity from every species of self-accusation implied in that brief but comprehensive language.”

The defendant, therefore, in his silence, is behind the shield of the constitution, and enjoys absolute protection against every species of judicial compulsion as a witness to self-accusation of crime, unless the statute affords him absolute immunity from punishmentffor any crime which his testimony here called for might be competent as tending to prove, or unless it is so perfectly clear and plain as to preclude all reasonable doubt that the answer cannot possibly tend in any degree to subject him to the peril of criminal prosecution. Janvrin v. Scammon, 29 N. H. 280. The learned district attorney urges that the statute affords the defendant absolute immunity, and cites section 79 of the Penal Code, which provides as follows:

“A person offending against any provision * *, -"x" of this Code relating to bribery is a competent witness against another person so offending, and may be compelled to attend and testify upon any trial, hearing, proceeding or investigation, in the same manner as any other person. But the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying. A person so testifying to the giving of a bribe, which has been accepted, shall not thereafter be liable to indictment, prosecution or punishment for that bribery, and may plead or prove the giving of testimony accordingly in bar of such indictment or prosecution."

The defendant’s counsel, however, urges that the above statute does not protect his client against liability on a charge of perjury in case his testimony before the grand jury should differ materially from that heretofore given by him touching this same matter on an examination before the county judge. But that is untenable, for neither his testimony given before the county judge nor that which he may give before the grand jury can be the basis of a charge of perjury, or used against him in any civil or criminal proceeding. Both of said testimonies, under section 79, above quoted, are forever sealed in absolute judicial confidence and legal secrecy. The defendant, therefore, will be in no danger of a prosecution for the crime of perjury if he shall answer the questions propounded by the grand jury.

We are now brought to the question, is the defendant excused from answering bn the ground that his testimony may criminate him in the charge of bribery ? The district attorney urges that sections 41r and 79 of the Penal Code afford the defendant absolute immunity. Section 41 r provides that the giving of testimony either by the bribe giver or bribe taker shall be a bar to any criminal prosecution against the person so testifying. But that section relates solely to bribery respecting the exercise of the right of franchise, and does not touch the matter of bribery at caucuses or conventions. And, although section 79 provides that neither the testimony of the bribe giver nor bribe taker shall be used in any civil or criminal prosecution against the person so testifying, yet it provides immunity from criminal prosecution for such bribery only to the bribe giver, and provides no such immunity to the bribe taker. The defendant, therefore, does not enjoy statutory protection from prosecution on the charge of bribery.

We are now brought to the third question: Is it so perfectly clear and plain as to preclude all reasonable doubt that the defendant’s answers to the questions propounded to him cannot possibly tend, in any degree, to subject him to the peril of criminal prosecution ? I think not His testimony may tend to reveal the fact that he actually received a sum of money as a bribe, and the name and identity of the person from whom he received it, and the names of other witnesses, and also the facts surrounding the transaction, which might prove his criminality. Since section 79, above mentioned, affords immunity to the bribe giver from criminal prosecution because of bribery at the convention, but none to the bribe taker, evidently it would be dangerous for the defendant to reveal the name of the bribe giver, whose testimony might be adduced against him on a charge of bribery. The fact that he testified before the county judge to his absolute innocence in the matter, and that the offer of $500 for his vote, made by some person whose name he declined to give, was indignantly spurned by him, does not neutralize the force of his claim to the constitutional protection. People v. Forbes, supra. The evidence which. he may reveal may establish his guilt instead of innocence. Therefore his statement under oath that his testimony will tend to incriminate him has legal force in this case, and consequently the constitution shields him from the statutory force of said section 79, which otherwise would compel him to testify. This view is sustained by authority. In the case of People v. Forbes, supra, the question involved was the right of the witness Taylor to refuse to answer certain questions put to him by the grand jury, touching his knowledge of a homicide caused by the administration of chlorine gas. After testifying to his entire innocence, and denying that he was ,the author, or in any way connected with, the perpetration of the offense, he was questioned as to the particular facts and circumstances, which he refused to answer, on the ground that his testi■mony might tend to criminate him. Judge O’Brien, in delivering the opinion of the. court, after referring to the decisions of many state and federal courts, says:

The principle established by these decisions is that no one shall be'eompelled in any judicial or other proceeding against himself, or upon the trial of issues between others, to disclose facts or circumstances that can be used against him to prove his guilt or connection with1 any criminal offense of which he may then or afterwards be charged, or the sources from which evidence of its commission or of his-connection with it may be obtained.”

And the court held that the claim of privilege by the witness was well taken.

In Counselman v. Hitchcock, 142 U. S. 547, the question decided is very similar to the one under discussion. In that case the grand jury was engaged in the investigation of offenses committed by certain railroad companies in violation of the interstate commerce act of congress, and a witness refused to answer certain questions as to the tariff rates which had been allowed him by some of the railroads on the ground that his testimony might tend to criminate him. There is a general federal statute which provides that the testimony given by a witness on an investigation concerning the violation of the interstate commerce act shall not be given in evidence against him subsequently in any civil or criminal action or proceeding. Rev. St. U. S. § 860.

The court sustained the position of the witness, and held, that the meaning of the constitutional privilege under discussion is “that a witness is protected from any compulsory disclosure of the circumstances of his offense, or the source. from which or the means by which evidence of its commission or his connection with it may be obtained, or made effectual for his conviction, without using his' answers as direct admissions against him.” Judge O’Brien, in People v. Forbes, supra, in commenting upon the case of Counselman v. Hitchcock, and on the application of the federé statute providing that the testimony of a witness regarding the violation of the interstate commerce act shall not be used against him, says:

“It seems that in such cases nothing short of absolute immunity from prosecution can take the place of the privilege by which the law affords protection to the witness.”

And with regard to the force which' should be given to the statement of the witness that his answers may incriminate him the judge further says:

“ The witness who knows what the court does not" know, and what he cannot disclose without accusing himself, must in such cases judge for himself as to the effect of his answer; and if, to his 2aind, it may constitute a link in the chain of testimony sufficient to subject him to the hazard of a criminal charge, indictment, or trial :ue may remain silent.”

The district attorney in this case is entitled to great commendation for his zeal in ferreting out the truth respecting this notoripus charge of political bribery, but the law will not permit him to obtain the testimony of the defendant for that purpose. The defendant is discharged.


source: Caselaw Access Project

author: Clement, C. J.

license: Public Domain

text:
    Harvey Murdock, Resp’t, v. International Tile and Trim Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed October 28, 1895.)

    1. Judge—Disqualification.
    A judge, who settles the form of a judgment in a case tried before a referee and grants an allowance, cannot take part in an appeal from such judgment.
    2. Same—Waiver.
    The constitutional disqualification of the judge to sit in review of his own decision cannot be waived.
    Appeal from "judgment in favor of plaintiff, and motion for a reargument.

      Higley & Ferguson and J. T. Marean, for app’lt; Smith & Martin, for resp’t.
   Clement, C. J.

This case is an action in equity to foreclose a mechanic’s lien, and was tried before a referee. The referee did not report the form of the j udgment, and therefore it was settled by the court. The constitution provides that no judge shall sit in review of his own decision, and technically, I am disqualified from taking any part in this appeal, for the reason that the form of the judgment was settled by me, and I granted an allowance. On the argument I suggested that there was a doubt in my mind on this question, and the attorneys agreed to waive the point. The disqualification of a judge cannot be waived and if judgment is rendered by this general term, the same could be set aside on motion, for the reasons stated. Oakley v. Aspinwall, 3 N. Y. 547.

A reargument is therefore ordered.

All concur.


author: Per Curiam.

text:
    Mary McBride, Administratrix, etc., Resp’t, v. Henry G. Harris, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Appeal—Record .
    Papers, on which the original order is made and the motion for reargument founded, which are recited in the order appealed from, but do not appear in ,the recprd, will be presumed on appeal to sustain the order of the special term.
    Appeal from an order, directing defendant to deposit a sum of money in court, and denying motion for reargument.

      Daniel Daly, for app’lt; Frederick K. Olark, for resp’t.
   Per Curiam.

Many of the papers on which the original order was made, and on which the motion for reargument was founded, which are recited in the order appealed from, not appearing in the record, we must assume that they sustain the order of the special term, which is therefore affirmed, with $10 costs and disbursements.


author: Parker, J.

text:
    Joseph J. Little, as Receiver, etc., App'lt, v. David G. Garabrant et al., Respt’s.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Corporations—Diversion of funds.
    Where a corporation, with the assent of the stockholders, while solvent, pay premiums on a policy of insurance on the life of one of its stockholders, a receiver of such corporation cannot sue to have the policy declared his property.
    Appeal from a judgment in favor of defendants.

      James M. Fisk, for app’lt, Frederick N. Ward, for resp’ts.
   Parker, J.

By this action the plaintiff seeks to have it adjudged that a policy of life insurance taken out by Richard Worthington upon his life, and made payable to Margaret Worthington, his wife, as to his legal representatives, and thereafter duly assigned for a valuable consideration to these defendants, belongs to him as receiver of the Worthington Company. The ground upon which he bases his claim to the policy is that from the inception of the policy, in November, 1885, down to December, 1892, the premiums, amounting to about $400 a year, were paid out of the funds of the Worthington Company, a corporation organized under the laws of this state, and charged upon the books of the company either to the account of Margaret or Richard Worthington; that at the time of the several payments the Worthington Company was not indebted to either Margaret or Richard Worthington, and therefore the several payments constituted an illegal and fraudulent diversion of the funds of the corporation, constituting a gross breach of trust, which entitles the plaintiff, as receiver, to follow the funds and claim the policy and the sum due thereon. The Worthington Company was incorporated about July 1, 1885, with a capital stodk of $20,000, the number of shares being 200. Of these, 139 were issued to Margaret Worthington, wife of Richard Worthington; fifty shares to a Miss Sproule, who was the housekeeper of Mrs. Worthington and a nominal shareholder; ten shares to Richard Worthington ; and one share to a nephew of Mr. Worthington, From the organization of the corporation until its dissolution, such persons continued to be the only stockholders of the company. Richard Worthington, Margaret Worthington, and Miss Sproule were, from the beninning, to the end, the directors and officers of the company. No dividends were ever declared, although it appears that at the annual meeting following the incorporation the result of an examination of the affairs of the corporation by Mr. Galden show a surplus of $42,590.26. Instead of declaring dividends, the Worthingtons seem to have treated the assets of the corporation as something to be used in precisely the same manner as if the Worthington Company were a partnership. From the beginning to the end, all of the family expenses, rent, fire, insurance, taxes, together with their contributions to charity and church and missionary societies, were paid out of the moneys of the Worthington Company by checks drawn against its account in the bank, or from the proceeds of checks thus drawn. It was in puasuance of such method, and in precisely the same way, • that the premiums upon the policy of insurance in controversy was paid, down to its assignment to these defendants. The first question which we shall consider is whether the Worthington Company, if still in existence and solvent, could maintain this action. In Kent v. Mining Co., 78 N. Y. 159, the court say, at page 185:

“In the application of the doctrine of ultra vires, it is to be borne in mind that it has two phases: One where the public is concerned one where the question is between the corporate body and the stockholders in it, or between it and its stockholders, and third parties dealing with it, and through it with them. When the public is concerned to restrain a corporation within the limit of the power given to it by its charter, an assent by the stockholders to the use of unauthorized power by the corporate body will be of no avail. When it is a question of the right of a stockholder to restrain the corporate body within its express or incidental powers, the stockholder may in many cases be denied on the ground of his express assent, or his intelligent,though tacit consent to the corporate action. If there be a departure from statutory direction, which is to be considered merely a breach of trust to be restrained by a stockholder, it is pertinent to consider what has been his conduct in regard thereto, A corporation may do acts which affect the public to its harm, inasmuch as they are per se illegal or are malum prohibitum. Then no assent of stockholders can validate them. It may do acts not thus illegal, though there is want of power to do them, which affect only the interest of the stockholders. ' They may be made good by the assent of the stockholders, so that strangers to the stockholders dealing in good faith with the corporation will be protected in a reliance upon those acts.”

This language was repealed and approved in Skinner v. Smith, 134 N. Y. 240; 47 St. Rep. 528.

The question that we are considering assumes that the rights of creditors and of third parties do not intervene. The payments in such a situation, although illegal, if made without the authority of the stockholders, could be validated by the assent of all the stockholders. And this rule proceeds upon the theory that the stockholders are the equitable owners of the corporate property, and if the officers or trustees do an unauthorized* act,—incur an indebtedness or make a loan of its money or credit outside of the ordinary course of its business,—still, if all the stockholders unite, they may subsequently ratify the acts done, and thus validate that which was originally unauthorized and illegal. This rule is illustrated in Bissell v. Railroad Co., 22 N. Y. 269, and cited with approval in Kent v. Mining Co., supra :

“A bank has no authority from the state to engage in benevo'ent enterprises, and a subscription, though formally made, for a charitable object, would be out of its powers, but it would not be otherwise an illegal act. . Yet if every stockholder did expressly assent to such an application- of the corporate funds, though it would still be in one sense ultra vires, no wrong would be done, no-public interest harmed; and no stockholder could object, or claim that there was an infringement of his rights, and have redress or protection. Such an act, though beyond the power given by the charter, unless expressly prohibited, if confirmed by the stockholders, could not be avoided by any of them to the harm of third persons. This arises, from the principle that the trust for stockholders is not of a public nature.’’

As one of the results of this rule, Mr. Morawetz, in his work on Corporations (section 625), asserts that:

“If the directors of a corporation apply the funds of the company to their own use, or misapply them in any manner, the excess of authority, as between the directors and the corporation, may be cured by the unanimous consent or ratification of the stockholders.”

Other authorities upon this proposition ai’e Martin v. Niagara Falls Manufacturing Co., 122 N. Y. 165; 33 St. Rep. 318; Barr v. N. Y., L. E. & W. R. Co., 125 N. Y. 265; 34 St. Rep. 743.

How, the learned judge at special term asserted, and we think rightly, that not only was there no objection by the stockholders-to this way of doing business, but that all the members of the corporation assented to it. It appears that while Miss Sproule nominally held fifty shares of the stock, and Worthington's nephew one share, Mr. and Mrs. Worthington were the real owners of every share. That both of them assented to the payment of these premiums is demonstrated by the fact that both of them signed checks made payable to the order of the insurance company for such purpose; the checks, drawn by Richard Worthington, being signed by him as general manager, to which position he was chosen by the directors, and as such given full authority to manage the business and use the funds of the company. And the checks drawn by Mrs: Worthington were signed by her as president of the company, to which office she was elected at the first meeting of the directors. Thus it appears that the real holders of the stock consented in such use of the funds in advance of their payment. Aside from this positive evidence of assent and participation in the payment of these premiums by the two persons who were the real holders of the stock, there is other evidence in abundance in the record to support a finding of fact that each of them acquiesced in such disposition of the moneys. There was no concealment. All of the transactions appear openly upon the books of the company. Some of the expenses were charged to the account of Mrs. Worthington, and others to the account of Richard Worthington, but from one fund, and in the same way, were paid all the expenses of the family and of the Worthingtons individually, and towards that result all contributed by signing checks in their re spective official capacities. Without, further discussion of the evidence under their head, it is quite apparent, that the learned judge at special term was right in saying' that all the members of the corporation assented to the use of the funds .of the company for the purpose of paying these premiums. But it appears from the evidence, conclusively, that the nominal stockholders assented as well. Miss Sproule, who was the housekeeper and lived with'the Worthingtons, was a director of tfye corporation during all of its existence,—some of the time an officer of the company and during a considerable period of time a clerk constantly in attendance at the store. She made entries in the books and attended the meetings of the trustees. As their.method of paying the family expenses and other personal bills out of the funds of the company, and charging them against the real owners of the stock, began immediately upon the formation of the company, and continued throughout its existence, it is evident, without further reference to the evidence, that the nominal stockholder assented fully to such use of the funds for the benefit of the real stockholders. The conclusion necessarily follows that, if the corporation were in existence and solvent, it could not maintain this action. The receiver, it is true, represents not only the corporation, but the creditors and stockholders as well, but, as trustee for the corporation and stockholders, he stands in no better position to enforce this claim than did they. In their behalf, the rights of creditors not intervening, he could not maintain an action which the corporation would be prevented from maintaining were it in existence. In his capacity as trustee for the corporation he would not be precluded from a successful prosecution of the action because of the assent of all of the stockholders to the use of its funds for purposes outside of the business of the corporation, provided it were the fact that the corporation was insolvent at the time such payments were made. But, as was- truly said at special term, there is no evidence thafthe corporation was insolvent at the time of the making of the several payments, nor does it appear that the indebtedness to any of the present creditors of the corporation arose prior to such payments. So far as this record discloses, therefore, the receiver is in no better position to prosecute this action than the corporation would be were it in existence, solvent, and’ making a like attempt It follows, if the views expressed be so\ind, that there is no occasion for a consideration of the other questions discussed by counsel. The judgment should be affirmed, with costs.

All concur.


author: Ward, J.—I

text:
    Campbell v. Campbell.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

   Concurring opinion. For majority opinion, see 35 N.Y. Supp. 280. ' - *

Ward, J.—I

concur in the result reached in this case, and, in addition to the reasons given in the opinion of the court for reversal, I am of the opinion that the decree, the defendant obtained from Louis Whitney, her former husband, in Pennsylvania, was valid everywhere. The defendant and her former husband were domiciled in Pennsylvania, and, while so domiciled, the husband committed adultery, and deserted his wife (the defendant). Desertion and adultery are each a cause for absolute divorce under the laws of the state of Pennsylvania. After the commission of these offenses, the husband left Pennsylvania, and Came to the state of New York, the wife retaining her residence in Pennsylvania, and, while so residing there, brought an action for divorce in Pennsylvania for the causes mentioned, and obtained such divorce, according to the laws of that-state. The husband, by leaving the state, could not take with him his liability far be divorced from his wife according to the laws of her domicile, nor was the wife obliged to pursue him into the jurisdiction to which he had fled. It is true there was no personal service on or appeaarance by the husband in the action, but that did not deprive the Pennsylvania courts of jurisdiction over him. T,he cases cited by the plaintiff in this state are not like the one at bar. Those cases mainly arose where parties left one state, took a fictitious residence in another state, and, in fraud of our laws, sought to obtain divorces against residents of our state, and for causes unknown to our laws, and without obtaining jurisdiction of the defendants.


author: O’Brien", J.

text:
    Farmers’ National Bank of Annapolis, Resp’t, v. William H. Underwood, Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Deposition—Examination of party. .
    Where the plaintiff fails to obey an order to submit to an examination before answer, the defendant’s time to answer will be extended until plaintiff appears or secures a vacation of the order, though such plaintiff is a nonresident, and, by permission of the court, was served with the order outside of the state.
    Appeal from an order, denying a motion to strike out the complaint and dismiss the action, and requiring answer within ten days.
    Appeal from order denying motion to strike out the complaint and dismiss the action. The order appealed from not only denied any relief asked by defendant, but extended relief to the plaintiff by requiring the defendant to serve his answer within ten days from the entry and service of the order appealed from. This action was commenced by thé service of a summons and complaint on the 9th day of November, 1894. The plaintiff is a resident of Annapolis, Md., where its president resides. On January 9, 1895, defendant obtained ex parte an order to examine the president of plaintiff as an adverse party, and an inspection and discovery of plaintiff’s books, which order was vacated on plaintiff’s motion. Subsequently, two other orders, requiring plaintiff to give certain information, were obtained, one of which was granted in part and in part denied, and the last one of which was vacated on plaintiff’s application. This being the situation of the proceedings, defendant, on-June 1, 1895, obtained an order for the examination of the president as an adverse party, directing him to appear for such examination in New York city. As this could not be served within the state, an order for service without the state was secured, and thereafter the service was made in Annapolis on the president and on the plaintiff’s attorney. By reason of certain - defects, two other orders were obtained; and finally, on June 18th," an order was secured extending the time for the taking of the deposition and examination, as provided for in the order of June 1st, until the 20th day of June, 1895,- and further providing for service of the orders, and a copy of the last order and the affidavit upon which it was granted, “ upon the attorneys of said plaintiff, and upon the president of the plaintiff, within or without.the state, on or before the 19th day of June, 1895.” This order was served, in accordance with its provisions, upon the attorney and the president, but on the return day the latter did not appear. Thereupon the defendant moved to strike out the complaint and dismiss the action and for other relief, which motion woe denied, and an order was thereupon entered which, besides denying the motion, contained this provision: “ Ordered peremptorily that the defendant serve his answer upon the plaintiff’s attorney within ten days after service of a copy of this order.” The questions presented for consideration arise upon the appeal from this last order.

      Walter H. Underwood, for app’lt; Chas. De Hart Brower, for resp’t.
   O’Brien", J.

It is conceded that plaintiff did not move to. vacate, that he did not appear for examination, and that the order of June 1st as subsequently amended was in full force and vigor-at the time the motion was made to dismiss the complaint. Upon this appeal, however, it is insisted that such order is void, because providing for the examination of the plaintiff’s president in New-York city, while the papers show that he resided in Annapolis, and that he could not be served within the state; and this proposition is seemingly supported by .the case of Witcher v. Tribune Association, 38 St. Rep. 364. In the opinion in that case it is said:

“If it (the order) had been made ex parte, and the plaintiff had moved for its vacation upon affidavit showing that he is a nonresident, and that service cannot be made upon him in this state, the court would have been bound to vacate it under the decision of the general term of this court in Dunham v. Insurance Co., 44 N. Y. Supr. Ct. 387. There is no power in the court to require the plaintiff, as a resident of another state, to come to. New York from such state for the sole purpose of being examined.”

Without expressing assent in these views, we do not think such question is involved, the order for -the examination not having been assailed by motion or vacated. As long as it remains in force, it must be assumed to have been regularly, made, and the duty was -upon the plaintiff, either of moving to have it vacated or of complying with its terms.

Although differing in its facts, the principle here involved is somewhat analogous to that in the cases of Dudley v. Press Publishing Co., 53 Hun, 357; 25 St. Rep. 32, and 58 Hun, 181; 33 St. Rep. 781. In the former, plaintiff moved to vacate extensions of time granted to defendant; and it appearing that efforts to serve an order for plaintiff’s examination were unsuccessful, because plaintiff had left the state, it was held that, so long as the order for the plaintiff’s examination remained in force, it must be held to have been regularly made, and that it entitled the defendant to an examination of the plaintiff as a witness under its direction, before the defendant could be compelled to serve an answer in the action. As therein said:

“And if he fails to comply with the order legally and properly made, after being by its service brought to the knowledge of himself or his attorneys, he may forfeit his right to proceed in the action, and even entitle the defendant to a dismissal of the complaint.”

And in 58 Hun, 181; 33 St. Rep. 781, where the plaintiff moved to vacate the ord'er for his examination, it was said:

“No. opportunity, therefore, was afforded to the defendant to make a personal service of this order upon the plaintiff; but from the other circumstances in the case * * * it is evident that the plaintiff has been actuated with the intention, when he has visited this city, of evading the order, and practically declining to obey its mandate; and, under these circumstances, the court could not, with any respect for its own proceedings, listen to any application to vacate its order. It is his duty, as a suitor in court, to obey the direction given by its justices for the purpose of promoting the proceedings in the litigation; and, as long as he intentionally avoids placing himself where he may be personally served with the order, he cannot consistently expect to be heard in an application to vacate it.”

It is true that in both of these cases the relief was denied upon the ground that the plaintiff was guilty of misconduct and was contumacious, in that, being a resident of the state, he refused to obey an order served upon him within the state, and, as to another order, absenting himself, so that service could not be obtained. They are authority, however, for the proposition that, as long as the order for the examination remains in full force and effect, it cannot, be treated as a nullity, but that it is the duty of the person against whom it is obtained either to obey it or to move to have it vacated."

The regularity and sufficiency of the papers upon which the order of June 1st was granted, having never, therefore, been called in question, it must be assumed that the order is a proper one, and made upon proper application; and, the order for the examination of the plaintiff's president being in full force and effect, the defendant was entitled to the benefit of such examination; and, failing to obtain the same by the default or disobedience of the plaintiff, he was seemingly entitled to some relief, for which he applied to the court.

The suggestion that, with regard to obeying orders, there is a distinction between those made against a resident and those made against a non-resident party, if recognized, would present an anomaly in our practice, because in effect it would be according to a' non-resident rights and privileges which are denied to our own citizens. It would in effect be holding that while, in an action brought against a resident, he must submit to all the orders and mandates of the court, a nonresident can choose his forum, and proceed in utter disregard of the court’s directions. We do not think a non-resident plaintiff can claim rights and immunities denied to a resident party, and ignore orders and directions of the court brought to the actual knowledge of his attorney or himself. Non-residence does not enlarge his rights or diminish those of the defendant. If such a rule were to prevail, it would be easy to have claims assigned to nonresidents, or, in casees where they had claims in their own rights, to place themselves just outside of the jurisdiction of the court, and proceed against our citizens, without being amenable to the orderly procedure which in actions affords to a defendant certain rights as against the plaintiff. It may be, since the Code of Civil Procedure provides (section 873) that service of the order “must be made within the state,” that the court is without power by service without the state to require a nonresident party to come into the jurisdiction and submit to an examination, or punish him for contempt should he disobey such an order; but this is an entirely different thing from saying that the court has not the power to direct, upon a proper showing being made by a defendant for the examination of a nonresident plaintiff, that, until such plaintiff shall submit himself to the jurisdiction of the court for the purposes of such examination, the time within which the defendant shall be required to answer shall be extended, or such other relief afforded as will accord to the defendant the same rights against a nonresident as he wquld have against a resident plaintiff. Without passing upon the question, therefore, as to-whether the court', by reason of the failure of such nonresident to appear within the jurisdiction for the purposes of service, could grant the. motion to dismiss the complaint or the action, we think that it was not without power to accord some relief, and that it was erroneous, where such relief was asked, for the court, not only to deny it, but to go one step further, and direct that the defendant should serve his answer peremptorily within ten days. We think, therefore, that so much of the order .as requires the defendant to serve his answer should be reversed, and that relief should be accorded to" the defendant by extending his time to answer until such time as the plaintiff submits himself to the jurisdiction of the court, or applies for and secures a vacation of the order for his examination.

Order accordingly reversed, with $10 costs of the motion below, and $10 costs on this appeal, and disbursements.


author: Follett, J.

text:
    McCaslin Machine Company, App’lt, v. George W. McCaslin, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Evidence—Expert.
    In an action to compel the assignment of letters patent pursuant to a prior agreement between the parties that any invention made by defendant while in plaintiff’s employ should become the property of the plaintiff, expert testimony is admissible to show that the letters patent in controversy were the subject of a certain drawing made by defendant, and offered in evidence by the plaintiff.
    Appeal from a judgment dismissing the complaint.
    This action was begun February 16, 1893, to compel the defendant to assign to the plaintiff two letters, patent, No. 486,789 and No. 486,809, issued by the United States to the defendant February 22, 1892, for “ certain improvements in conveyers,” to compel the defendant to account for the rents and profits received under said letters, perpetually to enjoin defendant from incumbering or assigning said letters, and for the recovery of damages. October 20, 1888, the plaintiff was incorporated with a capital stock of $20,000, under the statutes of this state, by Charles W. Hunt, John Allen, Charles C. King, George Martin Luther, and George W. McCaslin, for the purpose of manufacturing chain conveyers for conveying coal, grain, and sucfi articles. December 8, 1885, letters patent No.o 331,961 were granted by the United States to William Griesser for a new and useful conveyer ; August 7, 1888, letters paten! No. 387,241 were granted to George-W. McCaslin for an improved conveyer ; August 20, 1889, letters patent No. 409,330 and 409,612 were granted to George W. Mc-Caslin for improved conveyers,—which four patents were assigned to the plaintiff. ' October 27,, 1888, the persons who organized the corporation entered into a contract, of which the following is a copy:
    ‘•For and in consideration of one dollar, each to the other of us in hand paid, and in consideration also of the sum of one dollar to each óf us paid by the McCaslin Machine Company, we do hereby severally agree that if we, or either of us, shall (during the time we shall be interested as stockholders, trustees, officers, or employes of the McCaslin Machine Company) invent or discover any improvement upon or new method of making any machine or machinery relating to or to be used in making the chain conveyer now owned and used by said company, or any other machinery manufactured or to be manufactured by said company, that we will at once assign the invention or discovery, and any application for patents, and any patents issued thereon to said company. Dated October 27, 1888.”
    Upon the organization of the corporation the defendant became and remained a shareholder therein until January, 1891, and was employed as its general manager from the date of its organization until May 19, 1891, when he resigned. November 22,1892, letters patent No. 486,789‘were issued by the United States to the defendant upon his application for “ certain improvements in conveyers,” and on the same day (November 22, 1892) letters patent No. 486,809 were issued by the United States to the defendant upon his application for “ certain improvements in conveyers.” It is alleged in the complaint that the inventions secured by these letters were devised and made by the defendant while he was a stockholder and employe of the plaintiff, and that they, and all the rights secured by the letters belonged to the plaintiff. The defendant denies this allegation in his answer, and alleges that the inventions secured by the letters were made after he ceased to be a shareholder in and an employe of the plaintiff. February 11, 1893, the defendant assigned two letters patent to Robert MeOaslin in consideration of $2,000, which was recorded in the United States patent office May 19, 1893, who in May, 1893. assigned Said letters patent to the McCaslin Conveyer and Trust Company, of Cleveland, Ohio.

      Antonio Knauth, for app'lt; Thomas Ewing, Jr., for resp’t.
   Follett, J.

The important issues of fact contested before the special term were (1) whether the inventions described in the letters were made by defendant while in plaintiff’s service; (2) whether the inventions were an “improvement upon, or new method of making, any machine or machinery relating to or to be used in making the chain conveyer now owned and used by said company, or any other machinery manufactured or to be manufactured by said company,” and so within the terms of the contract. Both of these issues were found in favor of the defendant, and, if they were well found, that is' an end of the case, unless errors were committed in the reception or rejection of evidence. To make a case against the defendant it was necessary to establish that, while in the plaintiff’s service, he so far developed the inventions subsequently patented that they were substantially perfected. While it was not necessary to show that all of the minute details had been worked out, it was necessary to show that the subsequent claims made by the defendant and recognized as new and patentable by the patent office, could have been readily understood and applied. An imperfect invention, resting in theory,— a mere conception, and no so far perfected as to be patentable,— which the defendant subsequently perfected, is not embraced within the contract. Reed v. Cutter, 1 Story, 590; Fed. Cas. No. 11,645 ; Christie v. Seybold, 6 U. S. App. 520 ; 5 C. C. A. 33 ; 55 Fed. 69. While the defendant was in the employment of the plaintiff he made a drawing representing certain proposed improvements to conveyers, which, on the trial of this action, was introduced in evidence by the plaintiff for the purpose of showing the identity of the improvements shown by the drawing and those patented under the letters. For the purpose of making it plain that the improvements described in the drawing and those subsequently patented were substantially the same in principle, the plaintiff called an expert, and proposed to show by him wherein the improvements described in the drawing and in the claim upon which the patents were issued were alike. To this the defendant objected, and the objection was sustained, and an exception taken. The court ruled that it would not permit an expert to testify as to what the sketch indicated. In this, we think, the court erred. It is competent to permit mechanical experts to describe the differences and similarities of inventions shown by different drawings, claims and models. This rule is so well settled that it does not require the citation of many authorities. Bischoff v. Wethered, 9 Wall. 812 ; Spring Co. v. Edgar, 99 U. S. 645 ; Allen v. Blunt, 3 Story, 742, Fed. Cas. No. 216. Of course, cases may arise so simple in their character that the testimony of experts may not be required to make the similarities and differences between various patents, claims, and drawings plain to the mind of a judge or jury ; but this, we think, was not such a case, and that the court erred in rejecting this class of evidence.

The judgment and order should be reversed, with costs to the plaintiff to abide the event. By the reversal of the judgment it becomes unnecessary to consider the appeal from the order denying a motion for a new trial on the ground of newly-discovered evidence, which falls with the reversal, and neither party has any furthor interest in it, or the appeal therefrom, except the costs which might be awarded, and would not exceed $20 and disbursements ; and the order is set aside, without costs to either party.

All concur.


author: Van Brunt, P. J.

text:
    National Park Bank of New York, Resp’t, v. Eldred Bank, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Money had and received—Raised draft.
    Where money is paid upon a raised draft without any negligence upon the part of the person paying the same, it can be recovered back from the party to whom it was paid.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      B. D. Murray, for pl’ff; H. Aaron, for def’t.
   Van Brunt, P. J.

Upon the trial of this action, the counsel agreed upon the following facts: On the 7th of July, 1885, a person calling himself Frank Saxton purchased from the First National Bank of Wallingford, Conn., a draft whereby First National Bank of Wallingford requested the plaintiff to pay to the order of Saxton the sum of eight dollars. The defendant is a bank located and carrying on business in the town of Eldred, in the state of Pennsylvania. On the 15th of July, 1885, a man who represented himself to be Frank Saxton came to the defendant’s bank, and presented the draft above-mentioned, with the request that the defendant collect the same for him. When the draft was thus presented to the defendant, it had been fraudulently altered or raised by changing the amount, both as to words and figures, fi'om $8 to $1,800. In • all other respects the draft was unchanged, and was in the same form as originally drawn. The defendant received the draft for collection, and gave said Saxton a receipt for the same. Saxton then indorsed the draft in blank, and on the same day the defendant indorsed the said draft as. follows:

“Pay S. Gr. Nelson, cashier, or order, for collection for account, of the Bldred Bank, Bldred, Pa. • 'R. 0. Heasley, Cashier.”

S. Gr. Nelson was the cashier of the Seaboard Bank. The draft was then forwarded to the Seaboard Bank, which it reached on July 16th. On the following day it was presented by the Seaboard Bank to the plaintiff for payment, and was paid. On the 18th of July, 1885. the defendant was informed by the Seaboard Bank that the plaintiff had paid the sum of $1,800 on said draft, and on the 25th of July, 1885, the defendant paid the sum of $1,800 to Frank Saxton, so called, after deducting a small fee for collection. On the 15th of August, 1885, the plaintiff learned for the first time from the First National Bank of Wallingford that the draft had been altered as to the amount, from $8 to $1,800, and on the same day, and immediately upon receiving said information, the. plaintiff notified the Seaboard Bank and the defendant of the fact, and demanded the repayment of the difference between $1,800 and $8, the genuine amount of said draft, together with interest. This request was refused, and this-action was brought to recover said amount

It is to be observed that the plaintiff brought an action against the Seaboard Bank to recover the amount paid upon the same-draft which is now sued upon, and was defeated in that action, because the Seaboard Bank was merely the agent of the Bldred Bank for the purposes of collection, and that they had paid over the proceeds to their principal, such agency appearing upon the paper itself. In the case at bar, however, the draft in question was indorsed absolutely to the Bldred Bank, and they directed its-collection for their account, thereby assuming the place of principal as far as the plaintiff was concerned. If they were acting as collecting agents only, as they now claim, such agency was not disclosed to the plaintiff at the time of the transaction, and it had the right to rely upon the responsibility of the defendant, as owner of the draft, in payment of the same. Such being the relation of the parties, the distinction between the case at bar and that of the present plaintiff against the Seaboard Bank seems to be apparent. In the case of the Seaboard Bank, as has already.been observed, the agency was disclosed. In the case of the defendant it was not. In the presentation of the draft for collection, the defendant represented itself to be the owner of the draft, and the payment was made by the plaintiff under those circumstances. It does not seem to need the citation of authorities to show that, where money is paid upon a raised draft without any negligence upon the part of the person paying the same, it can be recovered back from the party to whom it was paid.

The exceptions should be overruled, and judgment ordered upon the verdict, with costs of the court below and of this application. All concur.


author: McCarthy, J.

text:
    John R. Anderson, Resp’t, v. William H. Hoople, Impleaded, etc., App’lt.

      (New York City Court, General Term,

      Filed October 29, 1895.)

    Evidence—Conclusion.
    Where the issue is as to whether an order, naming a corporation as the payee, was in fact made to the witness, it is error to permit the witness to testify that he transacted the business in his own individual capacity.
    Appeal from a judgment in favor of' plaintiff.

      George M. Brooks, for app’lt; Menken Bros., for resp’t,
   McCarthy, J.

The-objections made by appellant to conversations had by plaintiff with the defendant’s cotrustees in regard to the matter of their joint liability are untenable, and the trial justice properly ruled on them.

At folio 77, the following question was asked:

“Q. In what capacity did you do business with Mackintosh' & Co./? (Counsel for defendant W. H. Hoople objected to the question, as incompetent, immaterial, and irrelevant, as calling for a conclusion, and as not the best evidence. Question allowed. Defendant Hoople excepted.) A It was individually. My correspondence with them was individually, and my dealings with them individually.”

This was error.

At the close of the plaintiff's case, the trial justice was asked to dismiss the complaint, and also to direct a verdict for the defendant, on the grounds: First, that the proofs failed to show any cause of action in favor of the plaintiff, John R. Anderson, against the defendant William H. Hoople; second," that the proofs failed to sustain the allegations of the complaint; third, that no title or ownership in the plaintiff to the order set forth in the complaint had been shown ; fourth, that no title or ownership in the plaintiff to the order received in evidence had been shown,—which was denied. This was also error, for, from a careful examination of the evidence in the case, it is clear and decisive that the plaintiff failed to show any action in his favor, or any tittle or ownership to either the order set forth in the complaint or to the order received in evidence; and that, if there was any right of action, it was in favor of the corporation, John R. Anderson Company, which was admitted to have been duly incorporated in New Jersey, but doing business in New York. There is no evidence of any transfer or assignment of this claim by the corporation to the plaintiff individually.

The judgment is therefore reversed, and a new trial granted, with caste to the appellant to abide the event


text:
    Frederick G. Groff, as Assignee, etc., App’lt, v. Louisa C. Friedline, Resp’t.

      (New York City Court, General Term,

      Filed October 29, 1895.)

    Ple adiro—-Set-off—G-ererad assignee.
    In an action by a general assignee, the defendant cannot offset a note • made by the assignor, which fell due after the assignment of the subject of the action was made.
    Appeal from a judgment in favor of defendant upon his claim of set-off.

      L. B. Bunnell, for app’lt; Lippman & Buck, for resp’t.
   McCarthy, J.

The plaintiff brings this action to recover of the defendant the amount due him, as assignee of Benedict & Fowler, for goods sold and delivered. Upon the trial the defendent withdrew from consideration every defense except an alleged claim for imperfect goods, goods returned, and the sum of $462, which she claimed she had paid the plaintiff’s assignors prior to the date of the assignment. It appears from the evidence that about November 20, 1894, H. W. Benedict, one of the plaintiff’s assignors, obtained from W. B. Williams his promissory note for $462, -dated November 20, 1894, payable to the order of Benedict & Fowler two months after said date, which he indorsed in the firm name, and took to S. A. Friedline, the defendant manager, and asked him to negotiate the sale of the same.' Mr. Friedline took this- to August Kohn, who, upon the defendant’s guaranteeing the payment of the note at its maturity, advanced the amount thereof. The note was not paid by the maker, and the defendant paid it about the 24th day of January, 1895. This is the history of the transaction, which constitutes the basis of the defendant’s counterclaim of $462, and the right of set-off against the demand of the plaintiff herein.

It appears in the evidence that in one of her answers herein the defendant made this note the basis of a' counterclaim as one of her defenses to the cause of action set forth in the complaint. The records of this court show that the plaintiff demurred to that defense on the ground that it was insufficient in law on the face thereof, and that on the 81st day of January, 1895, the demurrer was sustained. It is clear from an examination of the evidence in this case that the'set-off alleged in the fifth paragraph of the defendant’s answer is founded on the promissory note. Respondent’s counsel, by his brief, admits it, but contends that the law is not as claimed by the appellant. It is also admitted, and the evidence shows, that this note was not due and payable at the time of the making of the general assignment herein, but long after. It is well settled, however, that in an action by an assignee the defendant cannot offset a note made by the assignors, which fell due after the assignment of the subject of the action was made. This defendant, then, had no right to offset this note against the demand in suit. An allowance to a party by way of offset is always founded on an existing demand in praesenti, and not one that may be claimed in future. Martin v. Kunzmuller, 37 N. Y. 396; Fera v. Wickham, 135 N. Y. 223, 228, 229 ; 47 St. Rep. 866; Myers v. Davis, 22 N. Y. 489. The case of Maas v. Goodman, 2 Hilt. 275, cited by the respondent, is not the law; nor does the case of Chance v. Isaacs, 5 Paige, 592, aid the respondent, for both of these cases are overruled. See Martin v. Kuntzmuller, 37 N. Y. 403, 404. At page 404, Davis, C, J., says:

“We have held that if at the time of the assignment, the defandant has no present debt due and payable by the assignor, he has no offset, and that he cannot set off against a debt due and payable by him to the assignor a debt "of his which matures after-wards.”

_. The trial judge erred in permitting this offset to be considered by the jury, and the judgment is therefore reversed, and a new trial granted, with costs to the appellant to abide the event, J All concur.


text:
    Joshua Samuel Pizh, Resp’t, v. Elliott L. Butler, Individual and as Treasurer and Member, etc., Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Corporations—Injunctions—Director. •
    A temporary injunction will be granted and a receiver appointed, in an action to compel á director to account for his official acts, where the moving papers state facts showing that the plaintiff will be entitled to some portion at least of the relief demanded in the complaint, and*it is necessary to preserve the existing status in order to makethe judgment effectual.
    Appeal from an order granting an injunction and appointing a receiver.

      Louis V. Booraem, for app’lt; Lorenzo Tillo, for resp’t.
   Per Curiam.

The plaintiff, who is one of the three directors and the president of the Hew York Fur Cutting Company, brought this action under and in pursuance of the provisions of subdivisions 1, 2, 5, and 6 of section 1781 of the Code; his authority to bring it being affirmed by section 1782 of the Code. Gildersleeve v. Lester, 68 Hun, 532; 52 St. Rep. 559. The relief demanded in the complaint is: !

(1) That the defendant Elliott L. Butler, as treasurer and director of a corporation, be compelled to account for his official conduct in the mangement and disposition of the funds and property „of the corporation.

(2) That he be compelled to pay the corporation, or the holders of the notes signed by the manager, all the moneys which, in violation of his trust, the defendant Butler caused to be made payable by the corporation.

(3) That the alienation of the property of the corporation made by the defendant Butler by pledging the same for his own use and benefit be set aside, and that he be compelled to return it, and to pay all, damages by reason of such alienation.

(4) That he be restrained from collecting any part of the insurance moneys had by reason of the burning of the property of the corporation, or from paying out or parting with any of its property, securities, or assets of the corporation, or from in any way interfering with them for the purpose of paying to himself or to his firm, Belt, Butler & Co., the amounts claimed to be owing to them by the corporation.

(5) That a receiver be appointed.

The New York Fur Cutting Company is a domestic corporation, organized in May. 1894, succeeded to the business of a similar company having the same name, organized under the laws of New Jersey. Its three directors were the plaintiff, the defendant Butler, and Staats M. Sackett. The plaintiff was the president, Butler the treasurer, and Sackett the general manager. Of the capital stock of $100,000 plaintiff held 360 shares, Belt, Butler & Co. 370, the defendant 170, Sackett 70, and Thomas J. Hand 30. , The-treasurer Butler, was also a member of the firm of Belt, Butler & Co. On the reorganization of the company its capital stock was entirely invested in its plant, and in contemplation of the fact an agreement was entered into by which the firm of Belt, Butler 3c Co. undertook to furnish, by loan in account current, during two years succeeding the 19th of February, 1894, all the necessary moneys needed for the management of the defendant corporation, in an amount not less than $100,000. This agreement also provided that the defendant Butler should have the general supervision of the corporation. In, December, 1894, the plaintiff requested an account from Butler, together with an inventory of the assets of the6corporation and the stock on hand. In response to this request he made a statement, but it did not prove satisfactory to the plaintiff. During the following month the factory of the company burned, together with all of its contents; the insurance policies thereon aggregating $167^000. Prior thereto the defendant Butler negotiated certain notes which he had procured the manager of the factory of the corporation to sign. They were indorsed by the firm of Belt, Butler & Co., and discounted. He also pledged certain property consisting of furs of the value of about $45,000. No authority was given for this action by any vote or special sanction of the board of directors, and it appears from the affidavits of the plaintiff and his codirector Sackett that they were not informed of such facts until shortly prior to the commencement of this action. Butler also pledged the claims of the corporation to various creditors, under its policies of insurance, which covered its plant and contents, which were destroyed by fire; and these facts, it appears from the affidavits of the plaintiff and Sackett, were not made known to them until after the commencement of this action. Complaint is also made that Butler omitted to sell the furs so pledged, when he had opportunities to do so, at advantageous prices, although urged so to do by his codirectors, and that they were pledged and alienated as security for loans.

On the motion for an appointment of a receiver, the defendant Butler contended that what he did as treasurer was justified by the agreement entered into between himself, Sackett, and Belt, Butler & Co. If what has been done is correctly described in the affidavits presented on the part of the plaintiff, on this motion, we are not able to agree with the contention that every act is fully justified by its provisions. But in some important respects the affidavits are in conflict, and it is quite apparent from their reading that the result of a trial will be a harmonious and connected account of all the transactions, and unaffected by0 the shading which the interest of the parties seem to have given to the affidavits, on the one or both sides. Because of that fact it is not our purpose to give expression to any views which may possibly affect the disposition to be made of the case when it comes on for trial on the merits. But, if the facts be substantially as stated by the plaintiff and his có-director Sackett, is is apparent that the plaintiff will be entitled to some portion of the relief, at least, which he demands in the complaint. And to make the judgment effectual it is apparently •desirable, if not absolutely necessary, to preserve the present status, and to that end the granting of the injunction appears to have been a proper exercise of the discretion vested in the special term. We are also of the opinion that so much of the order as .appoints a temporary receiver should not be interfered with. The power of the court to make the appointment cannot be doubted, and under its direction he will doubtless so act as to protect- and preserve the interests of all the parties pending the final determination of the qtiestions involved by a proper judgment.

The order should be affirmed, with $10 costs and printing disbursements.

All concur.


text:
    American Aquol and Pyrodene Paint Company, Resp’t, v. John W. Smith, Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    1. Judgment—Vacation.
    Where the rights of third parties have not intervened, a judgment against a person not summoned will be vacated, notwithstanding an unauthorized appearance by an attorney.^

      % Same—Laches.
    Where a motion to vacate such judgment is made as soon as the knowledge of its existence came to the defendant, loches cannot be imputed to him.
    Appeal from an order, denying a motion to set aside and vacate a judgment.

      J. B. Hands, for app’lt; A. G. Smith, for resp’t.
   Per Curiam.

— Uo rights of third parties having intervened, we think that the rule that the appearance of an attorney must be held binding does not necessarily apply to this case. , Upon the facts, then, it appearing that the defendant never was served with the summons, and that he states that he was not a partner, and therefore not liable to the plaintiff, a judgment against him would be manifestly unjust. It appeared, moreover, that the motion was made as soon as the knowledge of the existence of- the judgment came to the defendant, and we do not see how, under these circumstances, loches can be imputed to him.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, to abide the event of the action.

All concur.


author: O’Brien, J.

text:
    Robert J. Dean et al., Resp’ts, v. August Marshall et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Contract—Construction—Final judgment.
    Where the plaintiff and defendant stipulate that, if plaintiff should be defeated at the first trial of the action by a third party for the value of liquor in which defendant had an imerest, on the merits, defendant could elect to pay the judgment and have possession of the brandy, but, if he should not elect to do so, and plaintiff should elect to appeal, the brandy should be sold, and the proceeds deposited to await final determination of the action, and that, if final judgment against the plaintiff should be less than a certain amount, defendant should do one thing, or, if more than such amount, another thing, “ final judgment ” means the final settling of the rights of the parties to the action beyond all appeal.
    Appeal from a judgment after trial without a jury.
    The plaintiffs and defendants, both being interested in certain casks of brandy stored in bonded warehouse, and the brandy being also claimed by the First National Bank of Chicago, which had begun a suit for the value thereof in the superior court, the following stipulation was entered into:
    “New York Supreme Court.
    “ First National Bank, Plaintiff, vs. R. J. Dean & Company, Defendants.
    “ Stipulation.
    “ Whereas, R J. Dean & Company and Marshall, Spellman & Company are both interested in the result of the above-entitled action, and are also interested in the twenty barrels of brandy involved herein should not be forfeited to the government for nonpayment of tax, and that the United States government have threatened to forfeit said brandy unless said tax is paid immediately; Now, therefore, in consideration of the foregoing recital and one dollar ($1) in hand paid by each of the parties to the other, it is understood, agreed, and promised by and between the subscribers hereto as follows: First. That Marshall, Spellman & Co. will pay the United States government tax on the twenty barrels of brandy stored with R. J. Dean & Co., in bonded warehouse, promptly on the execution of this agreement. Second. That in the event that R J. Dean & Co. are defeated at the first trial of this action on its merits, then, and in that event, Marshall, Spell-man & Co. shall have the election to pay the judgment, and have possession of the brandy. That in the event Marshall, Spellman & Co. shall not elect to pay said judgment and take said brandy, and R. J. Dean & Co. shall elect to take an appeal, that then, and in that event, the goods shall be sold on joint account and consent by both parties, and the proceeds thereof, less the amount paid for government tax, shall be deposited in some trust company, to await the final determination of the action; and the amount, of said government tax shall be repaid to Marshall, Spellman & Co. That in the event that the final judgment against B. J. Dean & Co. shall be less than seventeen hundred and fifty dollars ($1,750), that Marshall, Spellman & Co.,shall pay the judgment, and take either the brandy or the proceeds. That in the event that final judgment shall be more than seventeen hundred and fifty dollars ($1,750), and Marshall, Spellman & Co. shall elect not to pay said judgment aforesaid, that then, and in that event, B. J. Dean & Co. shall refund the tax paid by Marshall, Spellman & Co., and Marshall, Spellman & Co., shall release to B. J. Dean & Co. and assign all their right, title, and interest in and to the brandy, and the warehouse receipts issued by B. J. Dean & Co. If B. J. Dean &. Co. are finally successful in this action, that then, and in that event, they shall deliver to Marshall, Spellman & Co. the brandy upon receipt of bond of indemnity against damage by reason of the outstanding negotiable receipts. In witness whereof we have hereunto set our seals and subscribed our names this sixth day of April, 1891. “ B. J. Dean & Co. [Seal.]
    “ Marshall, Spellman & Co. [L. S.] ”
    The action in the superior court resulted'in a judgment against Dean & Co. for the sum of $1,742.35. Defendants did not elect to pay the judgment and take the brandy, but paid the government tax thereon, and sold the brandy, and after deducting from the proceeds the amount of tax, deposited the balance in a trust company to the joint order of themselves and Dean & Co. The plaintiffs appealed from the judgment to the general term, and subsequently to the court of appeals, in both of which the judgment was affirmed, and upon the remittitur from the latter court a judgment was entered for $1,984.21. The plaintiffs, claiming that the judgment'entered on the trial of the action was the “final judgment” referred to in the stipulation, which was for less than $1,750, demanded the payment of one-half of the counsel fees and expenses of the trial and of the amount of the original judgment entered thereafter. The defendants, claiming, that the judgment entered upon the remittitur of the court of appeals was the “final judgment ” referred to in the stipulation, refused to pay or accede to plaintiffs’ demands. Upon the trial the court construed the stipulation in accordance with the plaintiffs’ contention, and rendered a decision upon which the judgment was entered from which this appeal is taken.

      Gibson Putzel, ‘for app’lts ; J. W. Booihby, for resp’ts.
   O’Brien, J.

The question is, what is the meaning of the term • “final judgment,” as used in the stipulation? The Code of Civil Procedure provides for two forms of judgment, one interlocutory and one final; but, as the action in the superior court was to recover a sum of money, in which no interlocutory judgment could be entered, it is evident that the term “final judgment” was not used in the stipulation to. distinguish it from such interlocutory judgment. The term is susceptible of two other significations,—■ one, which, in a strict legal sense, is its true meaning, viz.: a determination of the rights of the parties after a trial, whether such is the subject of review or not; and the other, its colloquial use '01' signification, which makes it synqnymóus with “ decisive ” or a judgment that cannot be appealed from, and which is perfectly conclusive upon the matter adjudicated. In Kinney’s Law Dictionary and Glossary (page 318) a final judgment is defined as :

“A judgment which puts an end to an action by declaring that the plaintiff either has or has not entitled himself to recover a judgment from which there is no appeal.”

In Abbott’s Law Dictionary (volume 1, p. 497), where quotations from cases are given, showing the two meanings of the term, it is said, in speaking of “final adjudication, decree, judgment, order, or sentence ”:

“These expressions may, indeed, signify a judicial decision 'which is superior to review; one which conclusively determines the question involved.”

And in Black’s Law Dictionary (page 493) it is thus defined:

“A judgment which puts an end to an action at law by declaring that the plaintiff either has or has not entitled himself to recover the remedy he sues for. 3 Bl. Comm. 398. So distinguished from interlocutory judgments, which merely establish the right of the plaintiff to recover, in general terms. Id. 397. A judgment which determines a particular cause. A judgment which cannot be appealed from, which is perfectly conclusive upon the matter adjudicated. 24 Pick. 300. A judgment which terminates all litigation on the same right. The term ‘final judgment’ in the Judiciary Act of 1789. § 25, includes both species of judgments as just defined. 2 Pet. 494; 1 Kent, Comm. 316; 6 How. 201, 209. A judgment is final and conclusive between the parties when rendered on a verdict on the merits, not only as to the facts actually litigated and decided, but also as to all facts necessarily involved in the issue.”

See, also, Bouv. Law Diet. p. 677.

The .question is, in which of these senses was the term used in the stipulation ? Does it mean the judgment entered after the trial of the superior court action, or a judgment finally settling the rights of the parties to that action beyond all appeal ? Prom a reading of the stipulation itself, we think the meaning and intent of the parties clear. It will be noticed that in the clause numbered second it is provided that, should plaintiffs be defeated in the first trial of the action on its merits, then defendants should have the election to pay the judgment, and have possession of the brandy; if the latter should not so elect, then the goods were to be sold on joint account, and the proceeds deposited, “ to await the final determination of the action ” ; and this language is followed by the clause in dispute, which provides what is to happen in the event that the ‘‘final judgment” shall be more or less than $1,750. When we recall that express provision was made as to what was to happen in the event of the first trial going against the plaintiffs on the merits, it is made apparent that the term “final judgment,” as subsequently used, is synonymous with the expression “ final determination of the action ” employed in the preceding clause. If this latter term were the one in dispute, we should have little difficulty in reaching the conclusion that by it was meant the final settling of the rights of the parties to the action beyond all appeal. We think the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

All concur


author: Davy, J.

text:
    Henry Miller, App’lt, v. William C. Young, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    'Abatement and eevival—What actions survive.
    ■ An action for diverting water of a spring belonging to the plaintiff is an action for injury to property and survives against defendant’s personal rights.
    Appeal from an order, denying a motion for leave to continue an action in the name of Mary L. Young, individually, and as executrix, etc.

      J. H. Stevens, for app’lt; Welsey Brown, for resp’t.
   Davy, J.

This action was brought against William 0. Young to«restrain him from diverting and obstructing the water flowing from a certain spring belonging to the plaintiff and depriving him of the use of it. The cause was partly tried at a special term of this court held in the county of Alleghany in August, 1893. The defendant died before the case was finally submitted. Thereafter a motion was made at special term, in May, 1894, for an order allowing the action to be revived and continued against Mary L. Young as sole executrix of the last will and testament of Wifliam C. Young, deceased, and against her individually, she being the sole residuary devisee named in the testator’s will. The motion was denied, and the appellant appeals from that order.

The plaintiff, in his complaint, asks a judgment that the defendant be restrained from diverting the water from the spring,, and that it be restored to its former condition, and that he be allowed $1,000 damages. The defendant contends that the action was clearly personal to William 0. Young, and that it abated upon his death, and could not be revived against his personal representatives. Johnson v. Elwood, 82 N. Y. 362, relied upon by the learned counsel for the respondent, has no application to this case. In that proceeding the injunction was dissolved, by stipulation, upon the termination of another suit involving the title to the premises. Judgment of discontinuance was entered, and an order of reference was granted to compute the amount of damages upon the undertaking. It was held that the undertaking provided for the payment of damages in the event, only, that the court shall finally decide that the plaintiff was not entitled to the injunction. The court held that there had been no breach of the condition of the undertaking in this respect, and that there had been no final determination which warranted the court in ordering a reference to compute the amount of damages ; that the discontinuance of the action by stipulation was not equivalent to a final decision of the court.

The rule of common law was that actions of tort died with the person by or to whom the wrong was done. The Revised Statutes, however, have created a great change in reference to actions for tortious injuries to property which did not survive under the common law. The rule which must guide us in this case, in determing whether the motion for substutition should be granted or not, is found in 3 Rev. St. (6th ed.) pp. 447, 448, §§ 1, 2. Section 1 provides that actions for wrong done to the property rights or interests of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or, after his death, by his executors or administrators,' against such wrongdoer, in the same manner and with the like effect, in all respects, as actions founded upon contract. Section 2 provides that the preceding section shall not extend to actions for slander, for libel, or to actions for assault and battery, or false imprisonment, or to actions on the case for injuries to the person of the plaintiff, or to the person 'of the testator or intestate of any executor or administrator. In the case of Cregin v. Railroad Co., 83 N. Y. 596, Judge Finch says:

“The question whether the cause of action survived came before us on appeal. 75 N. Y. 192. Its answer involved a construction of the statute relating to suits, by and against executors and administrators. 3 Rev. St. (6th ed.) pp. 447, 448, §§ 1 and 2. We held that it preserved the right of action for tortious injuries affecting pecuniary rights or interests, and by which the estate of the deceased was diminished, excepting, of course, the wrongs referred to in section 2, and particularly named.”

' In Drake v. Grant, 22 St. Rep. 502, it was lfbld that, under the Revised Statutes, an action for wrong done the property rights and interests of another, for which an action might be maintained against the wrongdoer, can be maintained, after his death, against his executors or administrators, in the.same manner and with like effect, in all respects, as suits founded upon contract.

This is clearly an action for injury to property. The diversion of the water from the natural spring and channel, and depriving the plaintiff of the use of it, was an injury to his land, which would depreciate its value. It is true that more or less controversy has arisen in the courts relative to the words “property right or interest,” as used in the first section of said statute. But there can be ño question but that property may consist of land. In the broad sense, property may be considered any thing or things subject to ownership, aad any thing that may be possessed and enjoyed. Any obstruction, therefore, to the natural flow of the water from the plaintiff’s spring is an injury to his propeity, for which he has a right of action.

Judge Rapallo, in Cregin v. Railroad Co., 75 N. Y. 194, discussing this subject, said:

“The rights and interests for tortious injuries, to which the statute preserves the right of action, have frequently been considered. It is generally conceded that they must be pecuniary rights or interests, by injuries to which the estate of ■ the deceased is diminished.”

Construing the statute according to its plain meaning, as interpreted by the courts, there can be no question but that the plaintiff is entitle'd to have this action revived and continued against trie executrix for the wrong done to his. property rights and interests by William C. Young, deceased. .

The order of the special term, therefore, must be reversed, and the motion for substitution granted, with costs against the respondent. All concur.

Order reversed.


text:
    Frederick Zinke, Resp’t, v. The Estate of Elizabeth Zinke, Deceased, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Principal and agent—Proof.
    Agency may be established by acts, declarations and conduct of the principal and agent, and it may also be inferred from circumstances.
    .3. Same—Husband and wife.
    If a married woman authorizes her husband to look after her separate estate, and he advances money for making improvements upon her property and in paying her debts, he should be reimbursed out of her estate, the same as her other creditors.
    3. Witness—Section 839 of the Code.
    Testimony by a claimant in an action against decedent’s estate, that he paid certain debts of decedent’s while acting as her agent, does not relate to personal transactions with decedent.
    Appeal from a judgment, entered upon the report of a referee in favor of the claimant.

      William A. Douglass, for app’lt; Charles Daniels, for resp’t.
   Davy, J.

This was a reference, under the statute, of a disputed claim against the estate of Elizabeth Zink, deceased, who was the wife of the respondent. His claim is for money expended during the years 1888,' 1889, and 1890, upon the separate estate of his deceased wife, amounting in the aggregate to $2,066.72, from which sum a credit was allowed of $800 for rent for the use of his wife’s premises, leaving a balance of $1,266.72, over and above the admitted offset for rent. The claim was disputed by 'the executor, and, by an agreement in writing, under .the statute, the matter was referred to a referee to hear and determine the same, who, after taking all the testimony that was offered by the respective parties, reported in favor of the respondent for $1,025.-21, including interest. Jugment was entered for that sum on the report of the referee, in the clerk’s office in Erie county, and from thht judgment the executor has appealed to this court.

It appears from the evidence that in 1888 the testatrix commenced the erection of a brick building on East Genesee street, in the city of Buffalo, under a contract with Jacob Jaeckle & Go. for $4,455. The contractors did not quite complete the building, and the testatrix had no money to pay for additional services and materials. The respondent, who acted as her agent, paid for the same, including the interest on certain mortgages upon the property of the testatrix, the taxes upon her real estate, the insurance upon her building, and also a promissory note given by her.

There can be no question but what the testatrix had the power to employ her husband to act as her agent in matters pertaining to her separate business, and the fight to reimburse him for all moneys expended by him for the benefit of her estate. It is claimed, however, that the respondent’s authority to act for his wife is not established by the evidence, unless it can be inferred from his testimony. The language of section 829 of the Code of Civil Procedure prohibits the respondent from testifying to any personal transactions or communications between himself and his deceased wife ; but this section does not prohibit him from testifying to extraneous facts. If the authority to act as her agent rested solely upon the inference drawn from the character and nature of his testimony, then the evidence would fall short of establishing such agency, because it must be shown by testimony other than his own. As bearing upon this point, it is proper to take into consideration her statements to parties who presented their bills for payment. She frequently refused to pay them, on the ground that she did not have the money, and referred them to her husband, who afterwards paid them.1 These voluntary statements upon her part tended to show that he was acting as her agent, and authorized to pay her bills.

The question of agency may be established by acts, declarations, and conduct of the principal and agent, and it may also be inferred from circumstances. The manner in which a party treats one who apparently acts as his agent, and holds him up before third parties, will, in many cases, be sufficient to establish an agency. As was remarked by Judge Earl, in Ackley v. Westerveil, 86 N. Y. 448, there can be no reason why a contract implied by law inferred from the circumstances should not be just as effectual to bind a married woman as one expressly created. “It is no longer open to dispute in this state that a married woman, although she carries on no business on her own account, and has no separate estate is liable, like a feme sole, for debts contracted in the purchase ‘or leasing of real estate or other property." Under the present laws of this state, a married woman is completely emancipated from the marital relations, so far as concerns her separate property, and the tendency of the judicial decisions is to make her more independent in her property relation, and to hold her more strictly to her contracts. The law not only now gives her the right to hold and enjoy a separate estate from her husband but to carry on a separate business and she can manage her estate and carry on her separate business, personally or through such agency as she may elect, and for that purposeshe may appoint her husband. There can be no good reason why, if a married woman authorizes her husband to look after her separate estate, and he' advances money for making improvements upon her property, and in paying her debts, he should not be reimbursed out of her estate, the same as her other creditors. Such a contract, at common law, was held good, if made by a trustee for the wife’s benefit, and it ought to be sustained in equity, when made between husband and wife, under our statute. The provisions of the statute providing for references of claims against the estate of deceased persons are so broad as to include claims legal and equitable. 3 Eev. St. (6th ed.) p. 96, §§ 46, 47; Skidmore v. Post, 32 Hun, 54.

The respondent’s case is within the general rule of equity. A portion of the improvements that were made' upon the testatrix’s separate estate were paid for by him at the request and approval of his deceased wife. The advances were clearly for the benefit of her real estate. They increased its value, and were permanently beneficial to it. Judge Dauforth, in discussing this point in Noel v. Kinney, 106 N. Y. 78; 8 St. Rep. 575, says:

“ The respondent proved that his wife was the principal, and that he was her agent. The bills-which the respondent paid were for improvements to her real estate. It would be unjust to permit the estate to escape paying for these improvements simply because the debts were paid by the testator’s husband.”

The referee had power to consider the respondent’s clajms, even though they were of an equitable nature. The right of the husband to maintain an action in equity to recover for money paid out for his wife was sanctioned by the house of lords in Butler v. Butler, 14 Q. B. Div. 831. It was held that loans made and money paid by the husband for his wife constituted a right of action in his favor, in equity, against her, and her separate estate was held liable to him.. The decision was affirmed on appeal. 16 Q. B. Div. 374. The court held that in -whatever the wife undertook to do in regard to her separate estate she was a feme sole, and that her husband had a remedy against her in the court, of chancery. The case of Smith v. Smith, 125 N. Y. 225; 34 St. Rep. 857, was an action brought-by the husband against his wife to compel her to convey to him certain real estate of which she held the title, or to have a lien in his favor declared thereon for expenses made for erecting a building upon the premises with her knowledge and consent. The court held that he was entitled to a lien for the amount expended.

The learned counsel for the appellant contends that the objections to the evidence given by the respondent, that he paid for the plans for the Grenesee" street building, and for papering the rooms, and interest on the savings-bank mortgages, and the taxes, and the money from which he made these payments was earned in' his business, should have been sustained, on the ground of its incompetency, under section 829 of the Code of Civil Procedure. I do not agree with the learned counsel in his contention upon this point, as he did not refer to any personal transactions with the deceased. The payment of the bills with his own money were independent transactions,'in which the deceased did personally participate. Mortimer v. Chambers, 43 St. Rep. 365; Denise v. De nise, 110 N. Y. 562; 18 St. Rep. 873. In the case of Truesdell v. Sarles, 104 N. Y. 164 ; 5 St. Rep. 566, Judge Finch, in discussing the evidence that was objected to in that case, says :

“We are still of the opinion that the two facts related were independent facts, in which the deceased was not personally a participant, and which if living, he could not for that reason have contradicted. They might have been done without his authority or knowledge, as were some of the other acts of the plaintiff, and did not necessarily involve a personal transaction with him.”

The learned counsel for the executor also contends that the saloon business was hers. The evidence, however, does not warrant us in reaching that conclusion. The respondent proved, by the brewers and dealers who supplied the saloon with the liquors, that the bills were charged to him and paid by him, and that the saloon licenses were issued to him. The executor, upon the trial, gave no proof that the testatrix furnished the money to pay any of these claims or demands, and it will not do to assume that the respondent might have paid them -with her money. Such an assumption is clearly overcome by the fact that she was obliged to give a note -for the balance due on the building contract, and from her statement that she did not have the money to pay the bills when they were presented to her, and directing the parties to see her husband. The fact that he paid the bills with his own money was substantially proved by her own acts and admissions. The testimony is sufficient, in our judgment, to sustain the findings of the referee.

The judgment, therefore, should be affirmed, with costs against the appellant to be paid out of the estate.

All concur.

Judgment affirmed.


text:
    The People ex rel. Lorenzo Criscolla, Resp’t, v. Henry P. Adams, as Treasurer, etc., App’lt. The People ex rel. Andrew P. Johnson, App’lt, v. Henry P. Adams, as Treasurer, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July, 1895.)

    1. Interpreter—Kings county.
    Under chapter 249 of 1869 and section 94 of Code, the board of supervisors of Kings county has authority to appoint only two persons as interpreters for the courts of that county.
    2. Same—Removal.
    An interpreter, appointed by the supervisors of Kings county, under chapter 249 of 1869, cannot be removed without cause.
    3. Same—Appointment.
    Where an interpreter, appointed under chapter 249 of, 1869, dies after the enactment of section 94 of the Code, and another person is appointed in his place and the second appointee resigns, and a third is appointed to fill the vacancy caused by such resignation, the last appointment is made under the act of 1S69, though the resolution making the appointment refers to section 94 of the Code.

      Appeal, in the first case, from, an order granting the application of the relator, add in the second case, from an order denying the application of the relator.

      J. Édward Swansirom, for relators; George F. Elliott, for def’t.
   Per Curiam.

— Order affirmed, on opinion of Bartlett, J., at special term.

Brows", P. J., dissented in the Criscolla case.

The opinion of Mr. Justice Bartlett at special term is as follows:

On January 28, 1895, the board of supervisors adopted a resolution declaring that John Jacobson was thereby appointed Scandinavian interpreter in the courts of record of Kings county, in place of Andrew P. Johnson, thereby removed, and that Louis Perry was thereby appointed Italian interpreter in such courts in place of L. Criscolla, likewise thereby removed. It is not pretended that either of these removals was for misconduct. Interpreters appointed by the board of supervisors are entitled to hold office during good behavior. Laws, 1869, ch. 249; Code Civ. Proc. § 94. Messrs. Johnson and Criscolla, claiming that their removal in this manner was illegal and void, have instituted the present proceeding to compel the county treasurer to pay them their salaries just as though the resolution of January 28, 1895, had never been passed.

The main ground of opposition to the application is the proposition that, under existing laws, the supervisors have the right to appoint only one interpreter for the courts of record in Kings county; that they have exercised that right in appointing Frank Maen, the German interpreter now in office; and hence that, the appointments of Messrs. Johnson and Criscolla being invalid as in excess of the powers of the board of supervisors, the county treasurer should not be directed or allowed to pay their salaries. This objection makes it necessary to determine what legislation is now in force in respect to the appointment of interpreter by the supervisors of this county, and what are the powers of the board thereunder.

Chapter 249 of the Laws of 1869 provides as follows: “ The board of supervisors of the county of Kings are authorized and empowered to designate and appoint some suitable person as interpreter, whose duty it shall be to attend the court of record in said county, at which witnesses are sworn and testify, and who shall be paid the sum of twelve hundred dollars per annum, during the good behavior of the said interpreter.” I am not able to discover that this act has ever been repealed. The learned counsel for the relators declares that it has not been repealed, and in this assertion he is sustained by Mr. Birdseye’s Chronological Table of New York Statutes. I do not think it was repealed by implication by the enactment of section 94 of the Code of Civil Procedure, as there is no necessary repugnancy, and that section is to be regarded simply as conferring authority to appoint a second interpreter. It reads as follows: “The board of supervisors of the county of Kings may appoint an interpreter to attend the terms of the courts of record, except the county court held in that county, at which issues of fact are triable, who shall hold his office during good behavjor.” It is contended in behalf of the relators that this provision of the Code authorizes the appointment of more than one interpreter, and I am informed that such has been the construction put upon it by the board. 1 cannot concur in that interpretation. It is difficult for me to preceive how language could be used which would make it clearer that the appointment of one officer, and only one, was contemplated by the enactment of this particular section. The act of 1869, as already shown, had previously provided for the appointment of one; and my conclusion is that, under that statute and the Code, the extent of the power of the supervisors in this matter is the appointment of two interpreters,—one, by virtue of chapter 249 of the Laws of 1869; the other by virtue of section 94 of the, Code of Civil Procedure.

The papers before me make it plain that Mr. Mann, the German interpreter, holds his office under the act of 1869, though the resolution appointing him refers to section 94 of the Code. The first appointee under that statute was John Smith, April 27,1869. He died, and Bernard Midas was appointed in his place on November 11, 1886. Mr. Midas resigned; and oh December 12, 1889, Frank Mann was appointed expressly to fill the vacancy caused by his resignation. It appears to be equally clear that the first appointment, and the only one which can be regarded as having been made under section 94 of the Code, was that of Mr. Criscolla, who was appointed interpreter of Italian, French, and Spanish'on June'14, 1883. The averment in his affidavit that he has at all times behaved himself properly while holding the said office of interpreter is not denied. The resolution of the board of supervisors, assuming to remove him without cause, was therefore wholly nugatory, and cannot deprive him of the right to his compensation.

The case of Mr. Johnson is different. At the time when the board attempted to appoint him, in 1892, Mr. Mann and Mr. Criscella were in office. If the view which I entertain is correct, the board could not then lawfully appoint a third interpreter. Hence his appointment was invalid, and the court cannot command the county treasurer to make any further payment to him. Indeed, any such payment to him, or to any other persons claiming to be interpreters by virtue of an appointment by the supervisors, except Messrs. Mann and Criscolla, would seem to be without any authority in the law as it now stands.

Application in behalf of the relator Criscolla granted. Application in behalf of the relator Johnson denied.

No costs.