author: Ruger, Ch. J.

text:
    The People, Resp’ts, v. Charles McElvaine, App’lt.

      (Court of Appeals,

      Filed February 24, 1891.)

    1. Homicide—Insanity as a defence.
    Where on the whole case a prisoner charged with murder was shown to have had sufficient intelligence and self-control to understand the nature and character of the act committed and to refrain from its commission where it was inconsistent with a due regard for his own safety or interest, and the evidence tended to show a_ deliberate adoption of a plan to rob the victim’s house .and the acquisition "of sufficient knowledge of the premises to enable him to commit the crime and presence of mind when discovered to use threats of violence in order to escape, the court will not interfere with the finding of the jury that the act was that of a sane man.
    2. Same—Preliminary examination—Code Grim. Pro., § 658.
    There is no provision in the statutes for a plea of insanity, except that authorized by § 336 to be made upon arraignment, and the statute invests the trial judge with the discretion to appoint a commission or not, as in the exercise of his judgment he may deem it proper or necessary to do.
    3. Same.
    It is only when the necessity of such an examination is sufficiently made to appear to the court in which the indictment is, that it is bound to order an examination ; but it would be the plain duty of the court when the subject is brought to its attention by responsible parties to itself make a sufficient inspection and examination to determine whether the application is made in good faith and upon plausible grounds, and the apparent facts thus discovered are made the condition of the right of the court to institute the statutory inquisition.
    Appeal from judgment of the Kings county court of sessions convicting defendant of the crime of murder in the first degree.

      George M. Curtis, for app’lt; John F Clarice, ass’t. disk atty., for resp’ts.
   Ruger, Ch. J.

Upon a former appeal by the defendant in this case from a conviction of murder in the first degree, this court ordered a new trial, upon the ground that an error had been committed in allowing an expert witness for the People to answer an improperly framed hypothetical question relating to the sanity of the defendant. People v. McElvaine, 121 N. Y., 250; 30 N. Y. State Rep., 977.

The defendant has again been tried upon the indictment and the jury have again found him guilty of the crime charged, and from the judgment rendered upon that conviction this appeal is taken. Ho question is. made but that the defendant killed one Luca, by repeatedly stabbing him with a knife in his back, .breast and arms, while he was in the act of resisting the attempts of the defendant to escape from the house, which he had burglariously entered. The undisputed evidence showed that Luca was a grocer, living at the corner of Jay and High streets in the city of Brooklyn, and occupied the first floor of the building as a grocery store and the upper rooms for a dwelling house for himself and family, consisting of a wife, three children, a servant girl and two clerks. There is no direct evidence that any one was associated with defendant in the commission of the crime, and the proof shows him, when first discovered, engaged in a struggle with Luca, about three o’clock in the morning of August 22nd, 1889, in the back room of the second story of Luca’s house. This discovery was made by Mrs. Luca and the servant, and upon their seizing him, he said, “ I have stabbed him and if yon don’t let go of me I will stab you thereupon they let him go. Luca was then sinking to the floor from his wounds, four of which were mortal, and soon after expired. When released, the defendant passed through the window to a ladder extending to the ground, and descended to the back yard and from there escaped over a fence into High street. When in the act of putting on his shoes, which he had removed from his feet in preparation for the burglary, he was arrested by the police. Being taken thus red-handed, he appeared conscious of the uselessness of an attempt to deny his guilt, and being asked why he did it, said “ He was a big blokie and I had to do something to get the best of him.”

It was obvious that the defendant entered the house by getting over the fence into the back yard, and there removing his shoes, took a ladder found on the premises, and which was customarily kept hanging against the side of the house, placed it against the second story window and by ascending it and removing a wire screen from the window, obtained easy access to the room where the homicide was committed He had evidently been interrupted in his design of robbing the house by the intervention of Luca, and, upon being discovered, was attempting to escape from the premises.

No defense to this array of proof afforded any reasonable prospect of success, except that growing out of the alleged irresponsibility of the defendant by reason of insanity, and this was set up on the trial as the sole ground of defense. It is now a fundamental principle in all civilized countries that this defense, when established, shall furnish to the accused not only a protection against conviction for crime, but a sufficient reason why he should not be tried or sentenced, or, if tried and convicted, why the judgment of the court should not be,executed; and this rule has, for a long time, been a part of the statutory law of this state. Section 20, Penal Code; 2 B. S., 697, § 2. These statutes express a humane principle, and the law makers of the state have, by numerous provisions, so guarded the rights of such persons that they cannot be lawfully punished for an act which was committed by them while in a state of insanity, or when they have become insane during or after a trial or conviction. Sections 336, 658, 481, Code of Criminal Procedure. It is the duty, as it should always be the inclination of courts, to give effect to these provisions of law, and so far as human judgment and intelligence can determine, to see to it that no person is punished for an act done while he was mentally incapable of distinguishing the character of such act, or is incompetent to understand and appreciate the cause and object of his punishment. Feeling the obligation of this duty,, and impressed by the learning and zeal of the defendant’s counsel with the disposition to take the most favorable view of the case for the appellant that the evidence would authorize, we have carefully read and reviewed the case with the hope of finding some evidence which would support the conclusion that there was doubt as to the correctness of the verdict of the jury, but we have been unable to find any sufficient confirmation of the theory, so strongly asserted by his counsel, that the jury erred in their findings upon the questions presented to them.

The points most strenuously urged upon us for a reversal of the judgment are the refusal of the trial court to institute a preliminary inquiry relative to the defendant’s present sanity, and the claim that the undisputed evidence established the fact of insanity at the time of the commission of the offense so conclusively that the court should reverse the judgment as matter of law. The case does not in its material features differ from that which it presented on the former appeal, except in respect to the omission of the errors then appearing in the record and the absence of expert evidence on the part of the People on the subject of the defendant’s sanity when the crime was committed. Upon the last trial no medical experts were called on the question of sanity on behalf of the People; but, by the consent of the People’s counsel, the evidence of two experts called on behalf of the defendant was, on account of their non-attendance, permitted to be read from the minutes of the former trial. A careful consideration of the evidence of these experts must lead any impartial- man, we think, to the conclusion that they were both of the opinion that the defendant did, when he stabbed Luca, know the nature and quality of the act he was committing, and did know that it was wrong. The general effect of their evidence was to impress the'mind with the conviction that according to the statutory definition of sanity the defendant was guilty of knowingly committing the crime with which he was charged. The witnesses expressed, or suggested their dissatisfaction with the statutory definition of sanity- and seemed to think that it would be better to substitute therefor what was called the medical opinion of his mental condition.

But it seems to us quite unnecessary, under the circumstances of this case, to go into a critical examination or discussion of the various phases of insanity as exhibited and illustrated in the discussion of legal and scientific writers, as on the whole case it seems quite clear to us that the defendant had sufficient intelligence and self-control to understand the nature and character of the act committed by him and to refrain from its commjssion if found to be inconsistent with a due regard for his own safety or interest.

The evidence showed that previous to his fourteenth year he had been to school, and although a dull and slow scholar had acquired the ability to read and write and do sums in arithmetic. After that time, his family being in humble circumstances, he was accustomed to labor for a livelihood in such menial employment in his neighborhood as he could obtain and was capable of pursuing. He was nineteen years of age when the crime was committed and for several years previous to that time had been engaged in the delivery of ice to customers for some dealer in that' article in Brooklyn and other similar employments. He was not a person of much intelligence or a high grade of morals and was unsteady and irregular in his habits. He had never, apparently, been treated by his family as of unsound mind or confined as a lunatic, but had been brought up and dealt with like other boys of his age and condition in life. A few months before this homicide he had been prosecuted by his sister for stealing money from her and was condemned to imprisonment as a punishment for that crime. This prosecution had been undertaken with the apparent acquiescence and consent of his relatives. His mental condition did not then seem, in.their judgment, to be a sufficient reason for relieving him from responsibility for his acts. He was married about eleven days before he killed Luca and was then living with his wife, within a block and a half of Luca’s house. He stated in reference to the crime that the day before it was committed he was going by Luca’s house with a comrade, who suggested to him that “ that would be a good house to do,” to which the defendant replied “All right.” The evidence tends to show a deliberate adoption by the defendant of a plan to rob Luca’s house and the acquisition of sufficient knowledge of the premises and their surroundings to enable him to commit the crime, the exhibition of presence of mind when discovered in the perpetration of the burglary and the prompt adoption of the means thought necessary by him to insure his safety, a coolness and deliberation in making use of them and freeing himself from the interference of those who came to Luca’s aid, that is utterly inconsistent with the idea that he was not acting under the influence of intelligence, reason, judgment and a full appreciation of the hazard, character and consequences of the act he was engaged in performing.

When seized by Luca there was no hesitation in the employment of the means he had prepared to overcome resistance, and when interfered with by Luca’s wife and servant, he promptly adopted the most efficient measures to rid himfeelf of their opposition and avail himself of the opportunity thus afforded to escape. When we regard the cunning and sagacity displayed by him in laying plans and making preparation for the commission of the crime, the promptitude and courage manifested in using the weapon with which he was armed, and the skill exhibited in effecting his escape, we are not disposed to find fault with the jury or to say that they had hot ample evidence to sustain the verdict,rendered by them.

The evidence given on behalf of the defendant to sustain the claim of insanity was furnished almost wholly by relatives who were naturally interested in giving the most favorable version for the defendant of the history of his life, and it seems to us to exhibit a disposition to magnify incidents occurring to the defendant in his childhood which were supposed to bear on the question of his sanity, but which seem to us to be similar in character to those usually accompanying the life of a boy of defendant’s age, acquirements and position in life. It was, under the circumstances, a clear case for the jury to determine the weight which should be accorded to this evidence, and we are not disposed to interfere with the disposition they have made of it on its merits.

The defendant also claims that we should reverse the judgment because the trial court did not order a preliminary examination by commission, or otherwise, to inquire into the present sanity of the defendant. This claim is founded on the provisions of § 658 of the Code of Criminal Procedure, which provide that “ when a defendant pleads insanity, as prescribed in § 336, the court in which the indictment is pending, instead of proceeding with the trial of the indictment, may appoint a commission of not more than three disinterested persons to examine him and report to the court as to his sanity at the time of the commission of the crime. If a defendant in confinement under indictment appears to be at any time before or after conviction insane, the court in which the indictment is pending, unless the defendant is under sentence of death, may appoint a like commission to examine him and report to the court as to his sanity at the time of the examination, -x- * * The commission must summarily proceed to make the examination. * * * They must be attended by the district attorney of the county, and may call and examine witnesses and compel their attendance. The counsel of the defendant may take part in the proceedings. When the commission have concluded their examination they must forthwith report the facts to the court with their opinion thereon."

Section 336 provides : “ Whenever a person in confinement, under indictment, desires to offer a plea of insanity, he may present such plea at the time of his arraignment as, a specification under the plea of not guilty.” At the commencement of the last trial the defendant’s counsel requested that the defendant should be arraigned for the purpose of affording him an opprtunity to plead to the indictment. The court decided that this was unnecessary as he had been once arraigned and had plead not guilty to the indictment. The defendant excepted to this decision. We think this exception was untenable. The fact that a new trial had been ordered did not affect the validity or effect of the former plea, that stood as the statement of the defendant’s defense, until it was permitted to be withdrawn, or otherwise disposed of by the court. There is no provision in the statutes for a plea of insanity, except that authorized by § 336 to be made upon arraignment. The defendant’s counsel then tendered an oral plea of not guilty on behalf of the accused and, as a specification under that plea, stated that “ the prisoner Charles McElvaine is nqw in a state of idiocy, imbecility, lunacy or insanity, and is incapable of understanding this proceeding or of making his de^ fense, or of instructing his counsel as to his defense if he has one.” The counsel also requested the court to appoint a commis;. si on under § 658 of the Code of Criminal Procedure, to examine and report on the question of the present sanity of the defendant. The court denied the motion, upon the ground that there was nothing in the case from which it appeared to him that the defendant was then insane or imbecile. The defendant excepted.

We do not think that this exception was well taken. The statute is very -clear and unambiguous, and seems to invest the trial judge with a discretion to appoint a commission, or not, as in the exercise of his judgment he may deem it proper or necessary to do. The statute seems to contemplate two cases in which a commission may be appointed. 1st. After a plea on the merits, and before trial, to determine his mental condition at'the time of the commission of the crime, and, 2nd. When a person in confinement under indictment, whether before or after conviction, appears to be insane, to determine his mental condition at the time of the examination. That the exercise of the powers thus conferred is discretionary seems to be confirmed by a consideration of the history of legislation on the subject.

By section 2, Title 7, Chap. I, Part. 4, B. S., it was provided that “ no act done by a person in a state of insanity can be punished as an offense, and no insane person can be tried, sentenced to any punishment, or punished for any crime or offense, while he continues in that state.” The method by which this provision of the statute was to be made effective was not, so far as I can ■discover, defined by statute, until the enactment of § 82, chap. 185 of the Laws of 1842, entitled ‘‘An act to organize the State Lunatic Asylum, etc.,” whereby it was provided: “If any person in confinement under indictment or under sentence of imprisonment, or under a criminal charge * * * shall appear to be insane, the first judge of the county where he is confined * * * shall institute a careful investigation * * * by jury, or otherwise * * * and if it be satisfactorily proved that he is insane, said judge may discharge him from imprisonment and order his safe custody and removal to the asylum.”

In 1847, Chap. 328 was enacted, by which it was provided: “ If after any convict shall have been sentenced to the punishment of death, he shall become insane, the sheriff of the county, with the concurrence of the justice of the supreme court, or, if he be absent from the county, with the concurrence of the county judge of the county in which the conviction was had, may summon a jury of twelve electors to inquire into such insanity, and shall give immediate notice thereof to the district attorney of the county.”

Upon a revision and codification of the statutes relating to the insane, effected by Chap. 446 of the Laws of 1874, it was provided, by § 20 of that act, that “if any person in confinement under indictment for the crime of arson, murder, or attempt at murder, or highway robbery, shall appear to be insane, the court of oyer and terminer in which such indictment is pending shall have power, with the concurrence of the presiding judge of such court, summarily to inquire into the sanity of such person * * * and for that purpose may appoint a commission to examine such person and inquire into the facts of his case and report to the court, etc.” Section 22 provides that “if any person in confinement under indictment for the crime of arson, or murder, or attempt at murder, shall appear to be insane, the county judge of the county where he is confined shall institute a careful investigation, call two or more repectable physicians and other credible witnesses, invite the district attorney to aid in the examination, and, if it be deemed necessary, call a jury * * * and if it is satisfactorily proved that such person is insane, said judge may discharge such person from imprisonment and order his safe custody and removal to one of the state lunatic asylums, etc.”

Section 26 is a substantial re-enactment of § 32 of the act of 1842. Section 30 reads as follows: “ Whenever any person in confinement under indictment for the crime of arson, murder, or attempt at murder, or highway robbery, desires to offer the plea of insanity as a general traverse and his whole defense to such indictment, he shall present such plea at the time of his arraignment, and at no other stage of the trial but this shall such plea be received or entertained by the court, and the court before whom such trial is pending shall have power with the concurrence of the presiding judge thereof to appoint a commission to examine such person * * * and to inquire and report to the court aforesaid upon the fact of his mental sanity at the date of the offense with which he stands charged, etc.” Section 2, title 11: “ All laws or parts of laws inconsistent with or repugnant to the provisions of this act are hereby repealed.” This act continued in force until the enactment of the Code of Criminal Procedure.

It is quite obvious from the reading of these acts that it was contemplated that any proceedings under them should be originated by the sheriff, the county judge or the court of oyer and terminer, and under the provisions of the law prohibiting the trial, conviction or punishment of insane persons, it was the duty of such officers to see to it that the law was not violated. i It would, undoubtedly, be competent for a prisoner or his counsel' to call the attention of the judge or other officer charged with the duty of seeing that a prisoner was not illegally punished to his mental condition and make it appear to them, if possible, that he was insane; but the question as to whether any special examination should be had was, undoubtedly, left to the discretion and judgment of those officers who were charged with the duty of making such examination. We do not think the Code of Criminal Procedure has made any radical change in the mode of procedure or the character of the proceedings.

The duty of making the examination referred to is now imposed upon the court before whom the indictment is pending, and it would be responsible for any violation of the law in respect to trying or punishing insane criminals permitted by it. It is only when the necessity of such an examination is sufficiently made to ■appear to the court in which the indictment is pending, that it is bound to order an examination; but it would be the-plain duty of a court, when the subject is brought to its attention by responsible parties, to itself make a sufficient inspection and examination to determine whether the application is made in good faith and upon plausible grounds, and the apparent facts thus discovered are made the condition of the right of the court to institute the statutory inquisition. Such an examination, we infer, the court made in this case. It had previously tried the defendant for the same ¡crime and had heard the evidence adduced by the defendant to support the plea of insanity. It was familiar with the appearance .and conduct of the prisoner during the period of that trial and had sufficient grounds before it to judge as to the probability of his present sanity. It then had the prisoner before it and witnessed his actions and manner, and had access to the information acquired by the officers of the court through their daily contact and communication with the defendant during the time of his imprisonment, and it is hardly possible that the defendant could have manifested symptoms of insanity during his confinement which would not have been discovered by or communicated to the court. There was no pretense that there had been any change in his mental condition since the previous trial, and no proof of any insanity whatever was given to support the demand for an inquisition.

We think the motion rested in the discretion of the court and it was justified in denying it. It is certainly a startling proposition to think that a prisoner can, at his pleasure, arrest the regular and orderly administration of criminal law, by raising collateral issues indefinitely, and thus delay and, perhaps, defeat a trial under an indictment. The law has made ample provision for the protection of all a prisoner’s rights, but it does not put it in his power to paralyze the administration of justice. The question of his sanity at the time of the commission of the offense is always open for trial under a plea of not guilty, and we have referred to "the provisions which protect him from trial, conviction or punishment .if he becomes insane while in confinement. So far from having a right to compel an examination into the question of present insanity, he is permitted to take part in such examination, if ordered, only by the express provisions of the statute. It is plainly inferrible from this permission that it was supposed without it the examination must be conducted by the officers charged with the duty of making it alone.

The question raised under similar statutes has been considered in a number of our sister states, and, so far as we are aware, has been uniformly construed to invest the trial court with a discretion to order such examination or not, as it might, from inspection, observation and information, judge to be necessary or expedient. Webber v. Commonwealth, 119 Pa., 223; Jones v. State, 13 Alabama, 153; Bonds v. State, 1 Martin & Yerger, Tenn., 143; State of Iowa v. Arnold, 12 Iowa, 480; People v. Ah Ying, 42 Cal, 18.

Upon the whole case, we are of the opinion that no error was ■committed by the trial court or that sufficient reason exists to .authorize us to reverse the judgment of the court below.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    Catherine Mehegan, Adm’rx, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Court of Appeals,

      Filed February 24, 1891.)

    Railroads—tfeGLmERCB— Contributory.
    Plaintiff brought this action on the theory that as her intestate approached defendant’s track a train of eleven cars, which was standing just east of the sidewalk, suddenly started back without any warning ana ran over and killed him. Several of plaintiff’s witnesses testified that they saw the train continually backing from a distance of about 114 feet, and one of defendant’s that intestate was looking away from the train. Held, that plaintiff's theory was at most based upon an improbable guess and could not be the basis for upholding the verdict which was rendered against defendant.
    Appeal from judgment of the superior court of Buffalo, general term, affirming judgment in favor of plaintiff.

      James Frazer Gluck, for app’lt; Truman 0. White, for resp’t.
   Earl, J.

This action was brought to recover the damages caused to the next of kin, of the deceased by his death.

On the 20th day of February, 1888, about nine o’clock in the forenoon, the deceased started south upon the easterly sidewalk of Michigan street, in the city of Buffalo, with a small cart and a dog, and as he was attempting to cross one of the tracks of the defendant’s railroad he was struck by a train of cars which was backing from the east, and was so injured that he soon thereafter died. He was an intelligent young man eighteen years old, and was perfectly familiar with the railroad.

A short time before the accident the engine drawing seven cars passed from the west side of the street on what is called, the House track to the round house, which was at least 600 feet east of the street, and then it was backed upon a switch track called the Scale track, which was about 449 feet long, and was by means of switches connected at both ends with the House track. Upon the Scale track four freight cars were standing, and the train was backed against them, and they were coupled to the rear of the seven cars, and then the two rear cars of the four were uncoupled, the purpose being to back them and shunt them across the street into the yard on the west side. After the four cars were thus coupled, the rear end of the train was about 114 feet from the street. After the deceased came upon the sidewalk, within about twenty-nine feet of the northerly rail of the track, he had a plain view without any obstruction of the whole of the switch track and of the House track east to the round house, and he also had an unobstructed view of the House track for a considerable distance, west of the street.

The theory on the part of the plaintiff is that as the deceased approached the track the train was standing just east of the sidewalk and that it suddenly started back without any warning to him just as he stepped upon the track and thus ran over and killed him ; and it is upon this theory alone that his counsel seeks to maintain this recovery. The theory is not very probable, and it can scarcely be conceived that a standing engine could suddenly back eleven cars and give them such momentum that by moving less than the width of the sidewalk the near car would come upon the deceased with such rapidity and force that he could not, by the exercise of ordinary prudence, escape the peril. If he had given any attention to the train, he- would have seen that it was not, in any proper sense, a stationary train ; that there were men there operating it and that if not actually moving it would immediately be in motion. The whole situation must have been apparent to any one who would look. Yet if there was some substantial evidence to sustain this theory and the deceased exercised the care proper under the circumstances, the case was properly submitted to the jury. I am unable to' find an atom of evidence sustaining it.

The theory of the defendant is that the train, at least from the time when the four cars were coupled to the other cars, was continuously backing from the east until the rear car struck the deceased, and that he could have seen the moving train and escaped danger if he had looked to the east, the only direction from which there was any danger at that time. If this theory has the support of the undisputed evidence then the deceased was guilty of carelessness in stepping upon the track immediately in the rear of the backing train and that carelessness stands in the way of a recovery in this action. A careful scrutiny of the evidence has convinced me that all of it sustains this theory and that there is no room to doubt that the deceased came to his death by heedlessly placing himself immediately behind the train thus backing.

I will call attention to all the evidence relating to the subject.

Louis Spohr testified that at the time of the accident he was passing north on the same street; that he saw the train coming and was not “ going to run the risk of crossing, as the train was coming; ” that “ the engine was at the round house when they first started to back up. They continued to back on until they stopped very near across the street.”

William McGuire testified that he was coming down the street, about fifty yards behind the deceased, and saw a train of cars back up and strike and run over the deceased, and that he did not hear any bell or whistle.

John Cotton testified that he was the switchman directing the movements of this train, and that it began to back when the rear end thereof was 114 feet east of the street, and that it continued to'back slowly without stopping until the accident happened.

John Wagoner testified that at the time of the accident he was driving a horse and wagon on the street, going south; that he saw nothing in the street; that “ all at once that train pushed on us from the east; ” that he did not see the train until it was nearly upon him, and that he had a narrow escape.

Charles Flynn testified that he was the engineer in charge of the engine, and that after the four cars were coupled on to the train he continued backing the train, without stopping, for a distance of at least ninety feet, probably 114 feet, until it struck the deceased.

James McMahon testified that he was a switchman, stationed at the time of the accident at the switch at the westerly end of the Scale track ; that the westerly end of the four cars standing upon the Scale track was 114 feet east of the street, and that after those cars were coupled on to the train, the train was in motion all the time, backing and not stopping, until it struck the deceased.

These witnesses were all called by the plaintiff.

Witnesses were also" called by the defendant who testified to the same effect.

Henry S. Towles testified that he was in plain view of the accident, and that the train was backing about as fast as one could ordinarily walk, and that the deceased was looking in a southwesterly direction away from the train.

Charles B. Reid testified that he was the flagman at the crossing, and that he saw the train coupled to the four .cars and that then, without stopping, it backed slowly until it struck the deceased, who was looking in an opposite direction.

I have thus called attention to all the evidence bearing upon this point, and there can be no dispute that this train was backing from the east at the time the deceased heedlessly approached and ■entered upon the'track where he was killed. The theory that the train was standing still at the time and then suddenly started back and thus struck the deceased without any warning or time for escape, is at most based upon an improbable guess and cannot be the basis for upholding this verdict."

I am, therefore, of opinion that the judgment should be reversed and a new trial granted, costs to abide event.

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


author: O’Brien, J.

text:
    Mary Cambrelung et al., Pl’ffs, v. Euphemia C. Purton et al., Def'ts.

      (Court of Appeals,

      Filed February 24, 1891.)

    Judicial sale—-Defect nr title.
    The purchaser of certain property at partition sale asked to be relieved from his contract on the ground that a son of the former owner had not been served. Said son was a confirmed drunkard with accompanying diseases and in March, 1874, having two violent hemorrhages of the stomach, the physician who attended him stated that he might die any moment, and that.if he went upon another spree death would be inevitable, and under the most favorable circumstances he could not live a year. In June, 1874, he left the house while it was raining and was subjected to an exposure which the physician testified was liable to produce his death in a very short time, and was never seen again though diligent inquiry was made. Held, that the liability of his being alive or having left a widow or heirs was such a remote and improbable contingency and was such a slender possibility only that it was a proper case for the court in the exercise of a sound discretion to compel the purchaser to complete his purchase.
    Appeal from judgment of the supreme court, general term, first department, affirming order of special term denying motion of purchaser at partition sale to be relieved of his purchase and to have the moneys paid by him on account of purchase, etc., returned.

      Henry W. Taft, for app’lts ; John Vincent and William P. Quin, for resp’ts.

       Affirming 84 N. Y. State Rep., 908.

   O’Brien, J.

This was an action to partition certain real estate in the city of New York and resulted in a judgment directing the sale of the same. The sale was conducted by a referee under the decree and Morris Littman became the purchaser. He afterwards applied to the court to be relieved from his bid and to have refunded to him the ten per cent of the purchase money, auctioneer’s fees and expenses of searching the title, which he had paid. This application was based upon an alleged defect in the title. The special term denied the application, and that order having been affirmed at general term he appeals to this court The premises embraced in the partitipn action and which were sold to the appellant were owned by'Alfred Colville at the time of his death, December 6, 1878. He died intestate and the title passed to his children. The children who were known to be alive are all named as parties to the action and in the decree under which the sale was made. The-only question that arises in regard to the title relates to the interest of John Colville, one of the children, who disappeared from his father’s house in New York in June, 1874, and since then has not been seen or heard from, and the order appealed from is based upon the conclusion that he died without children, unmarried and intestate, and that his interest in the real estate descended to his brothers and sisters surviving who were alive and parties to the decree. The premises were purchased by the appellant for ■ $24,700, and are located on Madison avenue. The purchaser in his application to be relieved states that he is informed and believes that the referee is not able to convey and deliver to him a good and marketable title.

The only question involved in this appeal is whether the facts presented to the court in opposition to the application to be relieved from the purchase were of such a character as to warrant the conclusion that the title was good and marketable beyond all reasonable doubt. John Colville had resided with his father at. 251 Fifth avenue, in the city of New York, up to the time of his final disappearance in June, 1874, and was then twenty-nine years of age. From the affidavits of his brother, sister and two or three other relatives of the family and the family physician, read in opposition to the application of the appellant, the following facts appear: From 1865 to 1870 he was very intemperate and had spells of very hard drinking about every three months. On these-occasions he disappeared from home and remained away from a week to a month, and on his return he was generally prostrated and in a very weak and nervous condition. The family physician discovered from an examination in 1878 that he was suffering from a number of organic diseases incident to indulgence in excessive drinking", such as chronic diseases of the liver, congestion of the kidneys and valvular disease of the heart.- In 1878, at the advice of the physician, he went to the Binghamton Inebriate Asylum and remaine.d there for some time, but returned home against the advice of the physician and his family. On his return he indulged in frequent and prolonged debauches which lasted sometimes several weeks. In March, 1874, after one of these sprees, he had a severe illness marked by two violent hemorrhages of the stomach. It was discovered that his kidneys had become much worse, that there was extreme congestion of the liver and that the action of the heart was greatly disturbed. In May, 1874, he again disappeared, was gone about the usual time and returned apparently more prostrate than ever before. The physician who attended him and who makes the affidavit thought he might die at any moment and that if he went upon another spree death would be inevitable. The physician states that he had never known such severe hemorrhages of the stomach and was astonished that the man did not die from them. His legs were badly swollen and the action of the heart was labored and. intermittent as the result of blood poisoning from the condition of the kidneys. ¡

The physician was of the opinion then and so informed the family that under the most favorable circumstances he could not live a year. He gave instructions that it would be unsafe for him, to go out of his room and would not allow his sister to see him and expressed the opinion then that if he got away again he would not come back alive. The physician warned Colville that another attack would prove probably fatal, but he expressed a desire to die as he could not control his passion for drinking. In June, 1874, while he was seriously ill, he was advised of the death of a lady to whom he had been attached and, it was reported, engaged., He was very much affected by this information and about two o’clock in the afternoon of that day he told his brother that he had some business to attend to down town and would return in a couple' of hours. His brother saw him enter a Fifth avenue stage ; he wore a one buttoned gaiter and a shoe and left his valise packed in the house. It was raining and he was subjected to an exposure which from the testimony of the physician and others in the case was liable to produce his death in a very short time. He has never been seen or heard of since this disappearance, though his family and friends have made diligent inquiry for and efforts to find him.

The father, it seems, left a considerable personal estate in which John would, if alive, share with the other children. One of his sisters .in June, 1882, applied to the surrogate to be appointed administratrix of the estate upon the assumption that he was dead. The surrogate appointed a referee to take proof in regard to the death of John and he reported the facts above stated and other facts and found that he died shortly after his disappearance in June, 1874. The surrogate confirmed the report and appointed Mrs. Purton, one of the sisters, administratrix in January, 1883. She administered and distributed John’s personal estate .and was discharged.

In an action to partition or sell the house on Fifth avenue, brought by one of the heirs, the summons was published as against John, the property was sold for $100,000, and after sale the question arose as to the distribution of the proceeds. The court, in that action, found that John was dead, and directed that his brother and sisters, parties to this action, were entitled to the proceeds of the sale. There is no dispute as to these facts, but the purchaser nevertheless claims that John Colville may have survived his father, from whom the title to the property descended, and then died, leaving a widow or children surviving or a last will. Ho objection is made, as we understand, to the title •on the ground that John may be alive. It is assumed that this position would be sufficiently answered by the fact that service of the summons by publication was made upon him in the action. It is well settled that a purchaser at a judicial sale is entitled to a marketable title and that has been defined to be a title free from reasonable doubt. A purchaser will not be compelled to take title where a doubtful question of fact relating to an outstanding .right is not concluded by the judgment under which the sale was made. Fleming v. Burnham, 100 N. Y., 1.

But this rule will not operate in every case to bar the enforcement of the sale. If the existence of the alleged fact which is •claimed or supposed to constitute a defect in or cloud upon the title is a mere possibility, or the alleged outstanding right is but ■a very improbable or remote contingency, which, according to •ordinary experience, has no probable.basis, the court may, in the exercise of a sound discretion, compel the purchaser to complete his purchase. It has been well said that this discretionary power is to be carefully and guardedly exercised and applied only in •cases free from all reasonable doubt Ferry v. Sampson, 112 N. Y., 415; 21 N. Y. State Rep., 577; Moore v. Williams, 115 N. Y., 586; 26 N. Y. State Rep., 259; Mutual Life Ins. Co. v. Woods, 121 N. Y., 302; 31 N. Y. State Rep., 45.

But we think, from the undisputed evidence in this case, that the fact claimed to constitute the only defect in the title is such a very remote and improbable contingency, and is such a slender ■possibility only, that it is a proper case for the application of the principle, and that the courts below were right in refusing to relieve the purchaser from the obligations to perform his contract. 'The fact that John Colville disappeared seventeen years ago, and has not since been seen or heard from, would not alone be sufficient to obviate the objections to the title. But he disappeared in .such a condition of health and mind, induced by a long course of dissipation, and under such circumstances, that Jais death in a very short time is the inevitable conclusion. It is scarcely possible that he could have survived his father, who lived more than four ' years after his disappearance. When in health he was social, had a large acquaintance in the city, was attached to his family, and kindly treated at his father’s house. He had never been engaged in business, and could not support himself, as he had always been ¡supported by his father, and he left his home without any means whatever. He was then the owher of an undivided one-fourth interest in the house on Fifth avenue, which descended to him from his mother, who died in 1852, subject to his father’s tenancy by the curtesy, which interest was worth at least $20,000, and prospectively he was entitled to share in a considerable personal estate which his father had, who had then retired from business on account of impaired health and advanced years. Besides publication of process was made in at least three actions or proceedings, his sister took letters of administration upon his estate after adjudication by the surrogate’s court that he was dead, and his personal estate has been administered and distributed In another action for partition of real estate owned by his mother, process was published, and after sale, and upon distribution of the proceeds, the court adjudged that he died unmarried and intestate-shortly after June, Í874, leaving his brothers ánd sisters his only heirs at law and next of kin. The conduct of these suits and proceedings required numerous publications of process and notice, but no one has ever appeared claiming through him as widow, child, devisee or legatee. Under these circumstances, the outstanding right upon which the purchaser rests his refusal to perform has. no probable basis, and cannot be said to constitute any real defect in the title.

The order appealed from should be affirmed, with costs.

All concur.


author: Per Curiam

text:
    Francis X. Brennan, Ex’r, App’lt, v. George W. Crouch, Jr., Impl’d, Resp’t.

      (Court of Appeals,

      Filed February 24, 1891.)

    Insurance (Life)—When assignment of policy will be considered a SALE AND NOT A MORTGAGE.
    In an action to compel a reassignment of a paid-up policy of life insurance it was found that plaintiff’s testator assigned the policy to defendants in consideration of its surrender value, and received back an agreement to sell the same to him on or before a specified day on repayment of that ' sum, and that if payment was not made on that day they would pay him. $100 on demand in full of all claims, and that no payment was made on the day specified. The court found that the transaction was a sale of the policy and not a mortgage and dismissed the complaint. No exceptions were taken to the findings of fact. Meld, that the facts found justified the conclusion of law and that there was no error.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment of special term dismissing the complaint, with costs.

      Albert H. Harris, for app’lt; Wm. Nath!I Cogswell, for resp’t

       Affirming 32 N. Y. State Rep., 273.

   Per Curiam

The findings of fact in this case were not excepted tó, and are not disputed. They justify the conclusions of law. We have carefully considered the exceptions taken during the progress of the trial and find that they point out no error.

The judgment must, therefore, be affirmed, but, under the circumstances, without costs.

All concur.


text:
    Isabel C. Blennerhasset, Resp’t, v. William A. Stephens, App’lt.

      (Supreme Court, General Term, First Department,

      Filed, December 31, 1890.)

    .Depositions—Examination before trial.
    A party who applies for the examination of his adversary before trial must show special circumstances making it important to take such testimony before instead of at the trial.
    Appeal from order denying motion of defendant to vacate an ■order for his examination before trial.

      Edgar J. Nathan, for app’lt; Gibson & Davis, for resp’t
   Per Curiam

We think this ease comes within the rule laid -down in Williams v. Folsom, that the party seeking the examination must show special circumstances making it important to take the testimony of his adversary before the trial instead of at the trial. 52 Hun, 68; 22 N. Y. State Rep., 507. The plaintiff has failed to comply with this requirement. Furthermore, it is apparent from the papers that the plaintiff’s husband, who makes an affidavit in her behalf, is informed as to the matters concerning which she desires to examine the defendant, except such as the defendant would be obliged to disclose if an accounting were decreed, and as to these an examination before trial cannot be necessary. We are satisfied that no examination at this time is needed to ■enable the plaintiff to enforce such rights as she may have against the defendant. The order appealed from is reversed and the motion to vacate the order for the defendant’s examination before trial is granted, with ten dollars costs and the disbursements of .appeal.

Tan Brunt, P. J., Barrett and Bartlett, JJ., concur.


author: Barrett, J.

text:
    Nancy L. Sherwood and Mary E. Blodgett, Resp’ts, v. The Metropolitan Elevated R. Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    1. Railroads—Elevated—Evidence.
    In an action to restrain the operation of an elevated rail jad and for damages, testimony as to the general course of rents in the. immediate vicinity of plaintiffs’ property since the building of the road is admissible.
    2. Same—Damages.
    Where the evidence of defendants’ expert was loose, conflicting and plainly inaccurate, and it is admitted that his experience did not include the care of buildings on the street in question, the court is entirely justified in disregarding it, and preferring the testimony of plaintiffs’ expert.
    3. Same.
    Property owners have a perfect right, whether their adventures be successful or unsuccessful, to recover the actual damages sustained during their ownership by reason of past diminution of rental values, and are entitled to just compensation for so much of their easements as have been appropriated to the use of the railroad.
    Appeal from a judgment rendered at special term in favor of the plaintiffs for past damages sustained by the construction and operation of the elevated, railroad, and for an injunction nisi to-restrain its further maintenance and operation.

      BJ. C. James, for app’lts; J. M Burrill, for resp’ts.
   Barrett, J.

Several of the questions here presented were considered in cases of Conkling et al., trustees, and Knox et al, as executors, against the same defendants, argued at the November term, and we refer to the opinions handed down in these cases as a sufficient expression of our views with regard to three of the appellants’ points: first, the qualifications of the experts; second,, the statute of limitations, and third, the claim of acquiescence.

The claim of excessive damages for diminution of rental values-calls for no special consideration. The sum awarded for such diminution is amply supported by the testimony, and we are at a loss to understand the emphasis of the appellants’ criticism on that head.

It is contended that the learned judge admitted testimony in disregard of the rule laid down in the Sixth Avenue Railroad Company against the same defendants, 56 Hun, 182; 30 N. Y. State Rep., 521. An examination of the record, however, shows that the appellants are here in error. The witness Mead was not asked as to the rentals of property owned by other persons “ in no way connected with that owned by the plaintiffs.” The question put to him was this:

“ Q. What has been the general course of rents on Sixth avenue, from Fifty-fifth to Fifty-seventh streets, in the immediate vicinity of the property in question here, since the year 1877 ? ”

• And his answer was: “A general decrease.”

This was entirely competent. We find nothing in the testimony of this witness, elicited upon his direct examination, in any way infringing upon the rule laid down in the Sixth Avenue Railroad Company case. The learned counsel for the defendants put some questions to him upon cross-examination which brought out special instances of such general decrease, but the plaintiffs were surely not responsible for this line of examination and it is scarcely ingenuous to charge them with the incompetency of the answers-there elicited.

The sum awarded for the value of the easements was much-less than the testimony would have justified, and we can only account for the vehement protest against this award which we find in the appellants’ brief, upon the supposition that the bearing of certain established facts upon the direct testimony has been overlooked. The testimony which undoubtedly governed at special term was that of the plaintiffs’ expert, Mr. O’Reilly. This was proper, as the testimony of the defendants' expert, Mr. Pearson, was wholly unreliable. This gentleman placed the value of half a million dollars upon the plaintiffs’ property. The land, he said, was worth, approximately, $350,000, and the building $150,000. This was an extraordinary piece of testimony in view of the fact that the defendants had already put in evidence Mr. Sherwood’s statement (made in 1883 to the United States Life Insurance Company, for the purpose of obtaining a loan upon the property), to the effect that the value of the building was $260,000.

It was still more extraordinary when we consider ‘this witness’ subsequent statement that it would have cost $200,000 to construct the building in 1883 and something less than $230,000 in April, 1890. This witness also testified that the increase in value of real estate on Sixth avenue, between Fifty-fifth and Fifty-ninth streets, from 1877 to 1890, was 200 per cent, and about the neighborhood in question even 300 per cent. He gave it as his opinion, too, that the rental value of the plaintiffs’ property in the years 1884 and 1885 was but $35,000, when, as a matter of fact, it brought in $44,482 from May, 1883, to May, 1884, $45,444 from May, 1884, to May, 1885, and $43,222 from May, 1885, to May, 1886. It is impossible to account for such loose, conflicting and plainly inaccurate testimony upon any other theory than want of actual experience as to this particular locality. Indeed Mr. Pierson admitted that his experience did not include the care of buildings on Sixth avenue, that such buildings had not come into the hands of his company (The Equitable Life), and that Sixth avenue had “ been exempt from close observation” in that way. The learned judge was, therefore, entirely justified in preferring the testimony of the plaintiffs’ expert, O’Eeilly. The latter testified distinctly that the value of the plaintiffs’ land in 1887 before the Elevated Eoad was built was $175,000, and he placed its present value at but $150,000. Here is a, net decrease of $25,000, and such decrease can be attributed upon the evidence to nothing but the construction and operation of this railroad. But this decrease of $25,000 is by no means all. Mr. O’Eeilly further testified that property in the vicinity ' (not on Sixth avenue, and consequently not affected by the road) during the period covered by the decrease of $25,000 actually increased in value upwards of thirty per cent. Here is far more than enough to make up the remaining $10,000 of the learned judge’s award. This analysis, however, is without regard to the building. When that is considered, the moderate character of the award becomes still more striking. In the appellant’s criticism of this award, the testimony of Mr. O’Eeilly, to the effect that the building would cost thirty per cent more to-day to erect than it did in 1879, seems to have been entirely overlooked. That would give the building a present value of $338,000 (subject to depreciation for mere wear and tear) if Mr. Sherwood’s statement of the cost be taken as accurate.

If, however, Mr. O’Eeilly’s estimate of the cost should govern, namely, $225,000, we have still a present value of $292,500. Add to these items the original value of the land as given by Mr. O’Eeilly ($175,000) and we have a total value, on the basis of Mr. Sherwood’s statement, of $513,000 and on that of Mr. O’Eeilly $467,500.

How, Mr. O’Eeilly testified that the actual value of the entire property to-day is but $425,000. Thus, we have a decrease of $88,000 on the one statement and of $42,500 upon the other. Making all reasonable allowance for the difference between a new building and one ten years old, we have still a wide margin in excess of the sum awarded. If, however, we add, as the testimony certainly justifies us in doing, to the $175,000 of original lot value a reasonable percentage for the increase which but for the elevated railroad the lots would have shown, the margin is still further extended, and the justice of the judgment, under the principles enunciated in Druclcer against these same companies, 106 N. Y., 157; 8 N. Y. State Rep., 599, becomes apparent.

The appellants seem to think that a property owner who has made a good bargain in real estate on the line of their continuous trespasses should not complain of their wrongful acts nor seek compensation for property embraced within his deed which they, as wrongdoers, have appropriated to the use of their railroad. This is a novel doctrine. It is certainly one for which no support can be found in the law of real estate nor, we may be permitted to add, in the moral law. Much, also, of the unjustifiable criticism which we find in the appellants’ brief seems to have been aroused by the fact that this property has been a source of profit to Mr. Sherwood, and is now a source of profit to the plaintiffs. But it would undoubtedly be" a source of much greater profit if the defendants’ structure were not where it is, and if their railroad were not operated as it is. And as much may truly be said of the past. At all events, property owners have a perfect right, whether their adventures be successful or unsuccessful, to recover the actual damages sustained during their ownership, by reason of the past diminution of the rental values of their property, and they are also entitled to just compensation for so much of then’ easements as have been appropriated by the defendants to the use of their railroad.

The judgment here fairly covered these subjects, and it should, therefore, be affirmed, with costs. •

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


author: Bartlett, J.

text:
    Adelbert H. Steele, App’lt, v. The Pittsburgh, Shenango & Lake Erie R. R. Co. et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    Injunction—Peeliminaby. ■
    A preliminary injunction should not be continued where its effect would be to give to plaintiff practically all the relief he could obtain by a final judgment; especially where any possible injury to plaintiff must be slight and readily capable of compensation.
    Appeal from order refusing to continue a temporary injunction and dissolving the same.
    Action brought by a bondholder to restrain the carrying out of a certain contract made by defendants, who are claimed to be only special trustees for the bondholders.

      William, M. Safford, for app’lt; John W. Simpson, for resp’ts.
   Bartlett, J.

This is a case where the court below fairly exercised its discretion in refusing to continue the preliminary injunction and we do not find anything in the argument of the learned counsel for the appellant which satisfies us that its action was erroneous. To allow the injunction to remain in force would be practically to give the plaintiff all the relief which he could obtain by means of a final judgment; and Mr. Justice Barrett well says that the court should be slow to grant such an •injunction in advance of the trial, especially where any possible injury to the plaintiff must be slight and readily capable of compensation. The equities set out by the complainant in his moving papers appear to be fully controverted, with a possible exception as to one charge to which the learned counsel for the appellant calls attention in his brief; but we do not regard this one matter as significant enough to call for a reversal of the order made below.

Order affirmed, with costs and disbursements.

Van Brunt, P. J., concurs.


text:
    The National Broadway Bank, Resp’t, v. David G. Yuengling, Jr., et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    1. Fraudulent conveyance—Parties.
    The complaint in an action brought by judgment creditors of a partnership alleged, that such copartnership, together with a brewing company and their several creditors, entered into an agreement by which a new corporation was to be formed, to which the assets of the partnership and brewing company were to be transferred in exchange for its capital stock, the new corporation to assume payment of the indebtedness to such creditors as should sign the agreement and issue bonds secured by mortgage to be executed to a trust company, the capital stock to be transferred to trustees to secure payment of said bonds, which were to be taken in full payment by the creditors; that such agreement and transfers were made to hinder, delay and defraud creditors, and asked that the agreement and transfers be set aside. Held, that as the complaint assailed the agreement itself, the brewing company and the creditors who signed the same were necessary parties.
    3. Same.
    The trust company was not a trustee for the creditors as to any rights which they acquired under the agreement, but merely their trustee under the subsequent mortgage, and this relation does not make it an adequate representative of them in this action.
    Appeal from interlocutory judgment entered upon an order overruling a demurrer to the complaint interposed by the defendant, David Gr. Yuengling, Jr., on the ground that there was a defect of parties defendant.

      Moses Weinman, for app’lts; Charles A. Deshon, for resp’t.
   Bartlett, J.

The National Broadway Bank is a judgment creditor of the defendant, David Gr. Yuengling, Jr., having recovered twenty judgments against him as the general partner in a limited copartnership doing business under the firm name and style of D. Gr. Yuengling, Jr., the special partner being the defendant, William Belden. The present suit is brought by the bank to set aside certain conveyances, transfers and assignments made by this firm of D. G. Yuengling, Jr., and by the defendants, Yuengling and Belden, to a corporation known as the D. G. Yuengling, Jr., Brewing Company, and also to have certain mortgages adjudged fraudulent which had been executed by the said corporation to the Farmers’ Loan & Trust Company, as trustee, in so far as the same cover property against which the plaintiff’s claims would be enforceable if still in the hands of the limited partnership or of the members of that firm.

The transfer and mortgage thus attacked were made under and pursuant to an agreement between David G. Yuengling, Jr., and William Belden, composing the firm already mentioned; David G. Yuengling, Jr., individually; The New íork & Staten Island Brewing Company; such creditors of the three parties already mentioned as actually signed the instrument, and Conrad N. Jordan, George M. Hard and Octavius D. Baldwin, as trustees. This agreement recited that the firm, the defendant Yuengling, individually, and the New York & Staten Islánd Brewing Company had incurred obligations which they were unable to meet at maturity, but they claimed to have assets respectively more than sufficient to discharge their respective obligations if the same were properly administered in connection with the brewing business of said firm and company. To this end it went on to provide that the defendants Yuengling and Belden should procure the formation of a corporation to be known as the D. G. Yuengling, Jr., Brewing Company, with a capital stock of $2,000,000, to which should be transferred the property of the limited copartnership and of the-defendant Yuengling, individually, in return for which the corporation thus organized should issue its capital stock to the firm, and would assume payment, by means of its mortgage bonds, of all the indebtedness owing to such creditors of the firm and of the defendant Yuengling, individually, and of the New York & Staten Island Brewing Company as should sign the agreement, such indebtedness not to exceed fifteen hundred thousand dollars ($1,500,000) in the aggregate.

It further provided that the new corporation should execute a mortgage to the Farmers’ Loan & Trust Company upon the property thus transferred to it, to secure payment of the bonds which were, to be issued to the creditors who signed the instrument; that the limited copartnership should assign to Messrs. Jordan, Hard and Baldwin, as trustees, all the capital stock in the new corporation, to be held by them as security for the payment of the mprtgage bonds, and the copartnership and the New York & Staten Island Brewing Company should also procure all the capital stock of the latter corporation to be assigned to the same trustees as like security, and that the creditors of the firm and of the defendant Yuengling, individually, and of the New York & Staten Island Brewing Company who signed, should accept the mortgage bonds of the new corporation in full release, satisfaction and discharge of their several claims. The complaint alleges in substance that this agreement was carried out, but that the conveyances and transfers thereunder were made by the defendant Yuengling and his firm and accepted by the D. G. Yuengling, Jr., Brewing Company, with the intent and for the purpose of hindering, delaying and defrauding their creditors. The New York & Staten Island Brewing Company was not made a defendant in the present suit, nor was any one of the creditors who signed the agreement, and the defendant Yuengling demurred to the complaint on the ground that both the brewing company and these creditors were necessary parties to the action. His demurrer was overruled at the special term and he has appealed to this court.

We think the demurrer ought to have been sustained. The complaint does not merely attack the transfers and conveyances of the judgment debtors’ property, which were made pursuant to the agreement that has been mentioned; but it assails the agreement itself. In the fifth subdivison of the complaint is an express averment that the said agreement was made by the said firm of D. G. Yuengling, Jr., and the said David G. Yuengling, Jr., with intent to hinder, delay and defraud their creditors, and among them this plaintiff; ” and further, that all the parties to the agreement had notice at the time it was executed of such intent to hinder, delay and defraud.

And in the demand for judgment, the first prayer for relief is that the said agreement of October 22nd, 1887, be declared in all respects null and void as against the plaintiff. The averments of the complaint, as already set forth, suffice to show the existence of an interest on the part of the New York & Staten Island Brewing Company and the signing creditors in opposition to any judicial action which might invalidate the agreement even- as to a third party, like the present plaintiff; and we do not see how the court could properly adjudicate that this corporation and these creditors entered into the agreement knowing it to be fraudulent, as the complaint charges that they did, without affording them an opportunity to be heard on that subject. They are parties to the agreement and they must be parties to any suit in which the agreement is annulled.

A different question would be presented if the plaintiff had made no reference in his complaint to the agreement, but had attacked only the subsequent transfers and conveyances.

It was the opinion of the learned judge at special term that the creditors were .sufficiently represented by the Farmers’ Loan & Trust Company, which has been made a defendant. That corporation, however, is not a trustee for these creditors as to any rights which they have acquired directly under the agreement; nor does it appear to have been in any sense the representative of the creditors in entering into the agreement. It is merely their trustee under the subsequent mortgage, and this relation does not make it an adequate representative of the creditors in an action to set the agreement aside.

The interlocutory judgment should be reversed, with costs, but with leave to the plaintiff to amend the summons and complaint upon the payment of such costs.

Barrett, J., concurs ; Van Brunt, P. J., concurs in result.


text:
    Claudine B. Weed, Pl’ff, v. Van Wyck Hewlett, Def’t.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    Mobtgage—Assignment.
    In an action to recover possession of certain bonds and mortgages claimed by plaintiff to have been assigned to Mm by one H. and withheld from him by defendant, who had obtained possession of them, defendant denied plaintiff's ownership and alleged that before the assignor’s death they were in defendant’s possession as agent and since as executor. Plaintiff required the production of the instruments on the trial and offered them in evidence, but gave no evidence as to a delivery. Held, insufficient to show a transfer of title; that delivery would not be presumed from the fact that defendant was a subscribing witness to the assignment, and that in the absence of proof of the circumstances attending the execution of the assignments or of a delivery plaintiff was properly nonsuited.
    Exception ordered to be heard in the first instance at general term.

      Daniel S. Hemsen, for pl’ff; Josiah T Marean, for def’t.
   Barrett, J.

The action was to recover the possession of two bonds and mortgages made by different persons to one Abraham Hewlett. These instruments .the plaintiff alleges were duly assigned to him by Hewlett. He further avers that he is the owner of these bonds, mortgages and assignments, and that the defendant, who obtained possession of them prior to the commencement of the action, has refused to deliver them to him upon demand. The defendant denied the plaintiff’s ownership and alleged that at the time of Hewlett’s death, which occurred on the 22d day of October, 1886, the bonds and mortgages were in his possession as Hewlett’s agent and that they have since been in his possession as Hewlett’s executor. He also alleges that the bonds .and mortgages were Hewlett’s property at the time of his death. Upon this state of the pleadings it was incumbent upon the plaintiff to prove delivery. He contented himself with requiring the production of the instruments by the defendant upon the trial and then offering them in evidence. This was not enough. Delivery was essential to the transfer of title. It is, as was said in Younge v. Guilbeau, 3 Wall., 636, “the final act without which all other formalities are ineffectual. To constitute such delivery, the grantor must part with possession of the deed or the right to retain it.”

Here the assignments were never recorded, and the plaintiff is not aided by the presumption which sometimes arises from that circumstance. Hor can delivery be inferred, under the circumstances, from the fact that the defendant was the subscribing witness to the assignments. It is true that his signature followed the expression “signed, sealed and delivered in presence of,” but that was a mere formality, and one which naturally preceded delivery. Standing alone, it here indicated nothing, one way or the other, as to the actual fact of delivery. The subscribing witness was not dead' (as in Hope v. Harman, 11 Jurist, 1097), and he could have been called to explain the attendant circumstances. That burthen was on the plaintiff. The rule laid down by Chancellor Kent in Souverbye v. Arden, 1 John. Ch. 254, 255, and by the Court of Errors, in Verplank v. Sterry, 12 Johns., 336 (following the ancient English cases of Taw's Ex'rx v. Bury, 2 Dyer, 167 b, and Shelton's case, Cro. Eliz., 7), is inapplicable, for there is no evidence that the plaintiff was present when the assignments were executed, nor that they were delivered to the defendant, for him or to his use The plaintiff thus relies upon the naked fact of the existence of the assignments and their possession by the subscribing witness. This in my judgment was not sufficient to carry the case to the jury. In Fisher v. Hall, 41 N. Y., 422, Daniels, J., speaking for the court of appeals, cited with evident approval the case of Rushin v. Shields, 11 Georgia, 636, where “it was held that the attestation clause, reciting that the deed was delivered, was not of itself sufficient to establish a delivery.” This principle applies with greater force where possession is in the subscribing witness. If any presumption is to be indulged in from that isolated fact, it is that the deed never passed from his hands after he signed the attestation clause. The plaintiff here should have gone further and shown the circumstances attending the execution of the assignments. Having failed to do this, or to establish delivery either directly or inferentially, he was properly nonsuited.

The exception must, therefore, be overruled and judgment directed for the defendant, dismissing the complaint, with costs.

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


author: Van Brunt, P. J.

text:
    John J. McDonald, Resp’t, v. William H. Bayne et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    Injunction—To restrain sale op goods.
    A. firm, of commission merchants on being required to return all unsold goods in their possession belonging to plaintiffs assignor, apparently did so, and rendered an account of sales made, some of which were not accepted, as they were much below the market price. The firm afterwards made a general assignment, and plaintiff discovered the goods claimed to have been sold in the assignee’s possession, the firm having taken them to their own account. The assignee refused to deliver or pay for them on demand, and plaintiff brought this action for an accounting, alleging that some of the goods had been sold and the proceeds liable to be distributed among the creditors of the firm. Held, that the action was properly brought; that as some of the goods had been sold replevin was not the proper remedy, and that an injunction pendente lite was properly granted.
    Appeal from an order continuing pendente lite the injunction order granted restraining the defendants Messrs. Bayne and Mrs. Campbell, as copartners of the firm of Ross, Campbell & Co., and William H. Taylor, as their assignee, from selling or disposing of certain goods which were consigned by Joseph P. Murphy, the assignor of the plaintiff, to Ross, Campbell & Co. as his factors and agents, for sale for his account; and restraining defendants from paying away the proceeds derived from any sales of these goods. The complaint alleges a conversion by appellant on April 24, 1890, of goods belonging to plaintiff. It further alleges the complete insolvency of Ross, Campbell & Co., who are joined as co-defendants with appellant; and that since April 24th defendants, or some one of them, have wrongfully sold, disposed of or removed some of the goods, and threaten to do the same with the remainder, and use the proceeds for distribution among the creditors of Ross, Campbell & Co., or as a fund with'which to make a composition with them; that “ if allowed to do so it would cause irreparable damage and injury ” to plaintiff and to Murphy’s creditors, and that the value of the goods is about $7,000. The complaint demands judgment enjoining such sale, disposition and removal, and enjoining the paying out of the proceeds of sales already made; adjudging the goods and proceeds of goods sold to belong to plaintiff as assignee of Murphy, and for a receiver and accounting and for general relief.

      M B. Whitney, for app’lt; John Notman, for resp’t.
   Van Brunt, P. J.

The plaintiff is the assignee of one MurRoss, Campbell &.Oo. Murphy had consigned.goods to the firm of Ross, Campbell & Co. prior to their assignment, which occurred on the 27th of March, 1890. In January, 1890, Ross, Campbell & Co. were directed by Murphy to turn over all unsold goods of his in their possession which they represented that they did. They then rendered an account of sales setting forth that certain goods had been sold for his account and that they had obtained certain prices for the same; but as those prices were much below the market value of the goods, the plaintiff, as assignee of Murphy, gave notice on the 4th of March, 1890, to Ross, Campbell & Co. that those, sales would not be accepted. Subsequently Ross, Campbell & Co. made an assignment to the defendant Taylor and on the 24th of April, 1890, the plaintiff on visiting the store previously occupied by Ross, Campbell & Co., discovered that the goods in question had not been sold, but that they had been taken to their account by Ross, Campbell & Co., and charged to themselves and that they had falsely represented that they had sold them for the prices stated. Immediately upon making this discovery Murphy demanded delivery on the part of the plaintiff of the goods and their proceeds. The defendant Taylor refused and still refuses to deliver or pay over the same. And it further appearing that the defendants had sold or were about to sell and dispose of the same and distribute the proceeds among the creditors of Ross, Campbell & Co., application was made for this injunction.

The nature of the answer to this application is in the shape of a demurrer to the form of the bill. It is urged that trover or replevin would lie, and that being the case, relief by injunction cannot be sought. This would undoubtedly be true were it not for the allegation contained in the complaint that some of the goods had been sold and the proceeds were liable to be distributed among the creditors of Ross, Campbell & Co. Replevin could not reach these proceeds. They are clearly the property of the plaintiff, which he has a right to reach and to claim in the hands of the assignee of Ross, Campbell & Co., and which he has a right to prevent being distributed amongst the creditors of that firm. If none of these goods had been sold, replevin would undoubtedly have been a complete remedy at law. But as the plaintiff's demand cannot be split up and he have replevin as to one part, and a proceeding in equity to reach the proceeds of the other part which had been sold, he has a right to resort to that remedy which will afford him complete relief. The argument submitted upon the part of the appellant seems to be addressed almost exclusively to the point that replevin would afford the plaintiff relief. This, however, we have seen is dot well founded. Neither is the suggestion that there is no claim in the complaint that the defendant, Taylor, is not able to answer in trover. These goods belonged to the plaintiff. They have been wrongfully disposed of by the defendant; and so long as the plaintiff can trace the proceeds in the hands of the assignee he has a right to recover the same in order that the judgment requiring the defendant to pay over these proceeds to the plaintiff, in case he is successful, shall be effectual.

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

Bartlett, J., concurs.


text:
    Joseph Rosenbaum, App’lt., v. Bertha S. Benthner, Individually and as Executrix, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    Will—Pbobate—Injunction.
    In an action to establish a will on the ground that the surrogate had no power to admit it to probate, an application was made for an injunction to restrain the surrogate from considering the question of probate of a former will. It appeared that there was a still later'will which had been presented for probate, the persons interested in which were not made parties to the action. Held, that, by reason of this defect of parties, it was impossible for this court to adjudicate finally on the question whether the will in question was the last will of the deceased, and hence the injunction was properly denied.
    Appeal from order denying application for an injunction pendente lite.

      H. R. Beekman, for app’lt; Bdivard B. Wise, for resp’ts.
   Van Brunt, P. J.

This action was brought in September, 1890, to establish an alleged will of one Solomon Benthner made in 1858, upon the ground that the original will is in possession of a court of a foreign country, and that said will was executed in Prussia, according to the laws of that kingdom, by the testator, a resident of Pennsylvania at the time of the execution of the will, but of New York at the time of his death, and that the surrogate •of New York county had no power to admit such a will to probate.

It appears that on the 5th of June, 1889, said Benthner, a resident of the state of New York, died in said state, leaving him ¡surviving the defendant, Bertha Benthner, his widow, and Lena Woolfers, his sole heir and next of kin. On the 13th of November, 1889, letters of administration were issued to the widow and she has ever since assumed and continued to act as administratrix. A will of said Solomon Benthner, bearing date in 1855, in which the defendant Spiegelberg was named as executor, was discovered, and in June, 1890, a petition for the probate of said will was filed in the office of the surrogate, and a citation thereunder was issued returnable the 13th of September, 1890.

It further appeared that prior to this time a petition for the probate of another will, dated in October, 1882, had been preseated by one Jacob BL Rosenbaii, a brother-in-law of the widow of the deceased, which said will was in the possession of a notary public in Cologne, Germany, who refused to deliver possessions thereof. The widow contested said probate on the ground of the-incapacity of the testator to make a will and upon the further-ground of the improper execution of the same.

As part of the relief prayed for in this action, it was sought to-enjoin the surrogate from considering the question as to whether the will of 1855 should be admitted to probate or not.

Whatever might have been our opinion if all the parties interested in the controversy as to the will of the deceased had been before the court and made parties to this action, it seems to us, in view of the fact that the parties interested in one of the wills in-existence not having been made parties to this action, that the court is not in a condition to finally adjudicate upon the point as. to whether the will of 1858 is really the last will and testament, of the deceased or not.

The plaintiff in the commencement of this action seems to have studiously omitted to make parties any persons interested in the will of 1882, and it is as important to ascertain whether the will of 1882 is a good and valid will as to ascertain whether the will of 1858 is entitled to be admitted to probate; and the same objection which is raised against the proceeding of the surrogate in determining the question as to the will of 1855 may be urged against allowing the plaintiff in this action to proceed without having the parties interested in the will of 1882 before the court.

It may be true that the surrogate has no power to probate the will of 1858 even if the parties interested therein are entitled to-have the same established; but it is equally true that the surrogate has the power to consider the question as to the validity of the will of 1858 in determining whether the will of 1855 shall be admitted to probate. And he has also the power to determine whether or not the will of 1882 is a good and valid will and revoked the wills of 1855 and 1858.

It will be seen, therefore, that in consequence of this defect, of parties it is impossible for this court to finally adjudicate upon, the question as to whether the will of 1858 is, or is not, the last, will and testament of the deceased

Under such circumstances it is clear that an injunction should not issue. Neither the surrogate’s court nor the supreme court can make a final adjudication upon the question as to which of these wills shall be established as the last will and testament of the deceased. This being the condition of things, there seems to-be no ground for dragging the controversy into this court, rather than allowing the surrogate to go on and determine the question as far as the same is presented before him for determination. A different result might, perhaps, have been reached had the suit been brought in such form that the question as to the precedence-of these various wills could have been determined in this action. But there being this defect of parties apparent upon the face of the papers presented, this court should not exert its equitable powers to restrain the action of another court within the limit of its jurisdiction.

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

Barrett and Bartlett, JJ., concur.


text:
    Charles Boyle and Peter Butterly, App’lts, v. Hugh J. Grant, Mayor, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    1. Municipal corporations—Contract—Waste.
    An action by a taxpayer to restrain the city from making a contract with a corporation to light its streets cannot be maintained under chap. 531, Laws 1881, where the bid of such corporation was the lowest one made and was made in good faith. The fact that the corporation has no Tight to erect its poles in the street cannot be taken advantage of by the taxpayer to show that such contract would be illegal, as the corporation would be bound on entering into the contract to obtain the necessary right to enable it to perform. "
    3. Same.
    The bid of such corporation stated that no other person or corporation had any interest therein or in the contract proposed to be taken. In fact another corporation had agreed to pay the interest on its bonded indebtedness and a certain dividend on its stock, in return for which the bidding company was to pay over to it all its net earnings. Held, that the corporation ordinance was intended to compel the disclosure by bidders of just such relations with other parties, but that as there was nothing to show that such statement was made with intent to deceive or mislead the city authorities and as the latter were fully aware of the facts before the bid was accepted, they furnished no ground for judicial interference.
    Appeal by plaintiffs from an order denying a motion for an injunction in a taxpayers’ action under chap. 531 of the Laws of 1881, as amended by chap. 673 of the laws of 1887.
    The following is the opinion below:
    Ingraham, T. This action is brought under the provisions of chapter 531, Laws 1881, and to entitle plaintiffs to maintain the action they must show that the defendants, as officers or commissioners acting on behalf • of the city, are about to do an illegal official act, or are about to commit some waste or injury to property or funds of the city. Plaintiffs have failed to show that the awarding of the contract by the defendants for the electric lighting of the streets named is illegal, or that the granting of such contract will be an injury to the property of the city. It is not ■claimed but that the bid of the United States Illuminating Company was the lowest bid for. lighting the streets named, but the ■plaintiffs appear to base their claim for an injunction upon the ■ground that the bid did not comply with an ordinance of the city of New York, which required that the bid should state the names •of all persons interested in the contract awarded. The evidence, however, fails to show that any other person or corporation had any interest in the proposed contract The fact that the corporation making the bid has an agreement with another corporation whereby such other corporation- agrees to pay interest on its bonded indebtedness, and a dividend on its stock, and to receive iu • consideration therefor the net earnings of the company over and above the expenses of the business, the interest on the bonds, and the guaranteed dividends, does not place such other corporations or individuals in the position of having an interest in the-contract any more than the stockholders of the corporation would, have such an interest if the net profits of the business were to b& paid to them. It is the corporation that is to execute the contract and perform the service, and to the United States Illuminating: Company is to be paid the money for such service. As to what the corporation will do with the money if it receives it is entirely immaterial either to the city, or the plaintiffs as taxpayers. The contract proposed will amply protect the city, and the services to-be performed under .the contract being at a less price than has heretofore been paid for the same service, and less than the other-bidders, it is evidently for the interest of the city and the plaintiffs, as taxpayers, that the contract should be awarded to such corporation, rather than to the other corporations or individuals-demanding a greater price.
    There is no evidence but that the bid was made in perfect, good faith, and the fact that it is the lowest bid tends to show that no one else could be found to do the work on as advantageous terms to the city as this corporation. The other objections to the act of the defendants taken by plaintiffs are untenable, YThether or not the illuminating company has the right to erect its poles in the street to carry out its contract cannot be taken advantage of by the plaintiffs. The fact that the company has no such right does not show that the act of the defendants in awarding the contract to it is illegal. It undertakes to do the work for which the city is to pay, and proposes to furnish the necessary bonds as security for the performance of the contract. The burden- is upon the corporation to obtain the necessary right to-enable it to perform its contract. The objections taken by plaintiffs are all extremely technical. Rone of them would interfere' at all with the validity of the contract to be made in pursuance of the bid or the obligations of the sureties to the contract when executed. There is no reason to .suppose that in any way the corporation could procure a person to perform the service required at a less price, than that bid by the lowest bidder. The discretion .is vested in the defendants as to whether or not they will accept the bid of the United States Illuminating Company,, and I see no reason to doubt that that discretion will be properly-exercised and the city be amply protected by the defendants. Motion for injunction must therefore be denied, and temporary-injunction vacated, with costs.

      Andrew Blake, for app’lts; William H. Clark, for resp’ts.
   Bartlett, J.

This action was instituted by the plaintiffs as taxpayers to prevent what they alleged to be an illegal official act on the part of the defendants in executing a contract with the United States Illuminating Company for the lighting of certain streets in the city of New York. The reasons which were given by the learned judge at chambers for denying the application for an injunction are so fully stated and so satisfactory in all respects but one that it is only necessary to discuss the single point in which we differ from his view of the law applicable to the case; and this difference does not affect the correctness of the result which he reached.

Section 64 of the New York city consolidation act of 1882 provides that contracts for supplies for the municipal corporation, in cases involving the expenditure of more than $1,000, shall be made under such regulations as shall be established by ordinance of the common council. A corporation ordinance .prescribes that all estimates for contracts for doing work or furnishing supplies for the city of New York shall state, among other things, whether the party, person or corporation making said estimate is the only person interested therein; and that if any other person or corporation have any interest in said estimate or the contract proposed to be taken thereby, the same shall be so stated.

In the estimate or bid of the United States Illuminating Company, it was stated that such bidder was the only person or corporation interested therein and that no other person or corporation had any interest in the estimate or in the contract proposed to betaken. The estimate, therefore, literally complied with the requirement of the ordinance. But the plaintiffs allege that the statement was untrue, and showed upon the hearing that an agreement existed between the United States Illuminating Company and the Safety Electric Light & Power Company, whereby the latter corporation had agreed to pay the interest on the bonded indebtedness of the former and a certain percentage of dividend on its stock in return" for which the United States Illuminating Company was to pay over to the Safety Electric Light & Power Company all its earnings over and above the expenses of the-business, the interest on its bonds and the amount of its guaranteed dividends.

The court below held that this arrangement did not make the Safety Electric Light & Power Company interested in the bid of the United States Illuminating Company in the contract sought thereunder “ any more than the stockholders of the corporation would have such an interest if the net profits of the business were to be paid to them.”

We are not prepared to accept this view. On the contrary, we are strongly inclined to the opinion that the ordinance under consideration was designed to compel the disclosure on the part of the bidders of just such relations with other parties as those which were0shown to exist in this case between the United States Illuminating Company and the Safety Electric Light & Power Company. But there is nothing to show that the statement in the bid to the effect that no one else was interested in the estimate or contract was made with any intent to deceive or mislead the city authorities ; they became fully aware of the exact interest, if it was an interest, of the Safety Electric Light & Power Company in the contract before the bid was accepted; there is not the slightest basis shown in the papera which were before the court for any supposition that the proposed contract was not in all respects beneficial to the city or that the defendants in accepting the bid had not acted in the best interest of the taxpayers; and hence the mere fact that a statement in the bid might be regarded as untrue upon a particular construction of a city ordinance, while under another interpretation it was entirely true, furnished no sufficient ground for any judicial interference with the action of the defendants in entering into the proposed contract.

The order below was right and should be affirmed, with costs and disbursements.

Yan-Brunt, P. J., and Barrett, J., concur.