text:
    Levenia Ehrgott, Resp’t, v. John S. Forgotston, App’lt.

      (New York Superior Court, General Term,

      Filed January 11, 1892.)

    Injunction—Usury.
    Defendant, who does business under the name of the Lincoln Loan & Gurantee Association, endorsed plaintiff's notes for $300, taking back a chattel mortgage to the association for $405 to secure the amount of the. notes and its fees for endorsing and guaranteeing them. In an action to restrain the foreclosure of the mortgage on the ground that the transaction was a mere device to cover usury, Held, that upon the facts in the case plaintiff was entitled to an injunction restraining foreclosure until the trial of the action.
    Appeal from order of special term sustaining an injunction.
    The following is the opinion at special term :
    Mo Adam, J.—Motion by plaintiff to continue temporary injunction.
    The defendant conducts what he calls the Lincoln Loan & Guarantee Association, and makes loans to persons in financial needs and straits. The plaintiff applied to him for a loan of $300, and this followed: Two notes were made by the plaintiff, one for $100, payable in two months, and the other for $200, payable in four months. The defendant endorsed on the back of the notes the Lincoln Loan & Guarantee Company, the name under which, he does business, and gave the plaintiff a letter to the Mount Morris Bank, and that institution discounted the notes at lawful rates and gave the plaintiff $800, less the discount Before endorsing the notes the defendant took unto the so-called Lincoln Loan & Guarantee Company a mortgage for $405 to secure $300' on the notes and $105 in fees in endorsing and guaranteeing the notes. After maturity the notes were not paid and were taken up by the Loan & Guarantee Company, which now holds them. The so-called company undertook to. foreclose the chattel mortgage,, and the present action is to enjoin the foreclosure on the ground of usury, alleging that the defendant was really the lender of the' money, and the circumlocutory scheme a mere subterfuge adopted, to hide the offense. It is familiar law that a person may, under-circumstances similar to those stated, loan his credit and charge-what he pleases for it. 4 Denio, 264 ; 1 Edmond’s Select Cases,. 371; 4 Hill, 224; 7 id., 444. And it is equally well established that if the transaction (no matter what form it assumes) is a mere-device to cover usury, courts will not allow the drapery of form to hide the truth, but deal with the matter in its true light according to the fact. There are circumstances in this case significantly strong which entitle plaintiff to the temporary equitable-relief she seeks.
    The sum charged was outrageously excessive. The plaintiff was imposed upon, advantage was taken of her circumstances, and her worldly goods were mortgaged to make sure the payment of over 100 per cent interest, in addition to principal. At this-rate the borrower is verily the slave of the lender.
    (2) There is no such entity as the Lincoln Loan & Guarantee Company; it is neither a corporation nor joint stock company. It is an alluring name to invite the needy. It means J. S. Forgotston, nothing else; the mortgagee having no legal existence is mythical, cannot legally foreclose a mortgage or authorize others to foreclose it. Nor can the defendant foreclose it, as the mortgage was under seal and not made to him.
    (3) The name used by the defendant is notice to the world that-he makes loans as well as gives guarantees, and it is a question here whether he did not in point of fact make the loan, using the bank as his medium or agent merely.
    (4) If the defendant is allowed to foreclose the mortgage the plaintiff’s home will be broken up and an injury done not easily estimated in dollars and cents. On the other hand, enjoining the foreclosure until the facts can be determined at the trial can do the defendant no great harm, and he has certainly received enough in way of interest to compensate him for the delay. The plaintiff has given security to pay all damages the defendant may sustain, and the mortgage continues upon the property as before. To dissolve the injunction might imply that courts look with favor upon 100 per cent loan and guarantee offices, when they are in fact a growing evil calculated to make the poor poorer by engulfing them in debt
    The motion to continue, the injunction until the trial will be granted.

      C lark Bell, for resp’t; Jas. G. Be La Mare, for 'app’lt
   Per Curiam.

The order appealed from is affirmed, with ten dollars costs and disbursements, upon the opinion of the court ■below, excepting only the statement “Nor can the defendant foreclose it, as the mortgage was under seal and not made' to him,’! and as to the correctness of this proposition no opinion is expressed.

Freedman and Gildersleeve, JJ., concur.


source: Caselaw Access Project

author: McAdam, J.

license: Public Domain

text:
    Winfield Waters, App’lt, v. Siegmund Harris, Resp’t.

      (New York Superior Court, General Term,

      Filed January 11, 1892.)

    1. Paktnebship—Limited—Non compliance with statute.
    A failure to comply With the statute in relation to limited partnerships does not make the special partner a general one, but only liable as such to creditors of the firm; as between the partners themselves they are bound by their contract and all settlements must be in conformity with it.
    2. Same—Dissolution.
    Defendant and his partner agreed upon a dissolution to take effect upon the completion of publication of. the notice thereof, and notes were given to defendant for his special capital, which were never paid. Held, that this did not constitute a withdrawal, return or payment of special capital contributed, and that defendant was not liable for a debt contracted by his former partner three months after the dissolution with a person who had no former dealings with the firm.
    Appeal from judgment on verdict directed in favor of the defendant, and from an order denying a motion for a new trial.

      M. II. Regensburger, for app’lt; C. 0. Leeds, for resp’t.
   McAdam, J.

The effect of the dissolution of a partnership is to put an end to the authority of the one partner to bind the either. The partnership existing between the defendant and Albert Hirsch was dissolved March 2, 1885, and the debt now attempted to be enforced against the defendant was contracted by Hirsch May 28, 1885, nearly three months after the dissolution. Hirsch and Harris formed a limited partnership pursuant to the statute, Hirsch being the general and Harris the special partner, and the dissolution was of such a partnership. The theory of the plaintiff’s action is that for some failure to comply with the statutory requirements, Harris became a general partner. But this is not a correct statement of the law. For neglect to observe the essential requirements of the law relating to limited partnerships, the special may make himself liable as a general partner to creditors of the firm, the liability being in the nature of statutory penalty. Van Dolsen v. Abendroth, 1 City Ct., 469; aff’d 131 U. S., 66; Durant v. Abendroth, 97 N. Y., 132. As between the parties themselves, the contract of partnership determines their relations, rights and liabilities, and as between parties to an agreement of limited partnership, all settlements must be in conformity with it. Lancaster v. Choate, 5 Allen, 530, 539.

Bates, in his work on limited partnership (§ 89) says : “ The relation of the parties to a Limited Partnership which, by reason of failure to comply with the statute, is never formed, or because of violation of the statute becomes general, is, between the parties themselves, fixed by the contract, and as to one another the partnership is special.”

And in Robinson v. McIntosh, 3 E. D. Smith, 221, it was held, that where parties take all the usual steps to form a limited co-partnership, excepting in some particular, the neglect whereof renders the special partner liable as a general partner, he does not thereby become an active, but may be regarded as a dormant partner, in such a sen'se as warrants the general partner to assign the partnership effects to a trustee for the benefit of creditors.

On January 28, 1885,-Hirsch and Harris executed an agreement providing that the limited partnership existing between, them be dissolved, the dissolution to become effectual as soon as-the publication required by law was completed. On the same day (January 28, 1885), Hirseh gave Harris three notes, each for $5,000, as a repayment of his contribution of special capital, which notes have never been paid. The publication of the notice of dissolution comtemplated by the agreement, and required by law, was completed on March 2, 1885, so that the partnership-relations between Hirseh and Harris were effectually terminated on that day.

The plaintiff claims on his points that the relation terminated January 28, 1885, by the withdrawal by Harris of his capital,, and that the partnership after that became general. Harris withdrew nothing. He received the promise of Hirseh to return him $15,000 at a future date, but the promise was never performed, and the unperformed promise of Hirseh is neither a withdrawal, return or payment of special capital contributed There was a full four weeks publication of the notice of dissolution before the debt sued on was contracted, and the note on which it is-sought to hold the defendant was the note of Albert Hirseh individually.

If this were a case where there had been a course of prior dealings between the parties, the question of the necessity of actual notice of dissolution might have arisen, but the absence of that feature renders a discusssion of it unnecessary. There is no-question of equitable estoppel in the case, because it does not appear that Harris did any act or thing after the dissolution which made him liable as a partner to the plaintiff or to third persons generally. At the trial, to obviate proof of the defects alleged in the formation of the limited partnership which would have made Harris liable as a general partner, it was stipulated that for all the purposes of the. action he was liable as a general partner for the engagements of the firm. Hot that he was a general partner, but liable as such by force of the statutory provisions.

Hor did the stipulation admit that the firm had any existence at the time the contract was made. Indeed, that point was contested and left open to be determined, for as part of the same stipulation the plaintiff consented to the admission in evidence of the affidavits of publication of the notice of dissolution of the special partnership, as proof of the publication of such notice for four weeks prior to March 2, Í885 ; so that the stipulation must

be taken in its entirety. Thus, we have the case of parties who took the usual steps to form a limited partnership, except in some technical particular, the neglect whereof might have rendered the special partner liable to third persons as a general partner, and a dissolution of such partnership on March 2, 1885, consummated in strict accordance with the statutory requirements. The debt in suit was contracted by Hirsch, in his own name, May 28, 1885, at a time when there was no partnership with Harris in existence. It is difficult, therefore, to find any legal basis for a claim against Harris arising out of such a transaction. Upon dissolution of a firm, the agency of each partner for the other is revoked, except to the extent of closing up past transactions, and even in that respect his powers are limited, and he can enter into no new obligations in the name of his co-partner, even though to close up a past transaction. Palmer v. Dodge, 4 Ohio St., 36; Bank v. Lyman, 5 Mason, 57; Long v. Story, 10 Mo., 636; Woodford v. Dorwin, 3 Vt, 88; Myatts v. Bell, 41 Ala., 233; Hall v. Lanning, 91 U. S., 160; Haddock v. Crocheron, 32 Tex., 276; Napier v. Catron, 2 Hump., 534; National Bank v. Norton, 1 Hill, 572; Lansing v. Gaine, 2 Johns., 300; Sanford v. Mickles, 4 id., 224; Hackley v. Patrick, 3 id., 537; Walden v. Sherburne, 15 id., 409; Mitchell v. Ostrom, 2 Hill, 520; Lusk v. Smith, 8 Barb., 570; Van Keuren v. Parmelee, 2 N. Y., 525; Gale v. Miller, 1 Lans., 451. This upon the ground that after dissolution a partner has not, without special authority, power to impose new obligations upon the firm, nor to vary the form and character of those already existing. Woodworth v. Downer, 13 Vt., 524; Mutual S. Inst. v. Enslin, 37 Mo., 453; Lusk v. Smith, 8 Barb., 678; Hurst v. Hill, 63 Am. Dec.. 705; Cunningham v. Bragg, 37 Ala., 436. After dissolution one partner cannot sign the firm name to a note, even to pay an old debt, Lockwood v. Comstock, 4 McLean, 383; White v. Tudor, 76 Am. Dec., 126; Hurst v. Hill, supra, and such a note does not discharge the old debt Perrin v. Keene, 19 Me., 355.

In National Bank v. Norton, 1 Hill, 572, it was held that one partner after dissolution cannot bind his co-partners even by the renewal of a partnership note. Cowen, J., says, “ This is the making of a new contract by one for all the partners after his authority is revoked. During the continuance of the partnership he is entitled to act for all as their general agent On dissolution he ceases to hold that character, and must be considered as a mere joint-debtor. This leaves to him the power of payment in respect to debts due from the firm, but with slight exception, if any, nothing mora” This would seem to be so on principle aside from authority, for as Lord Kenyon says in Abel v. Sutton, 3 Esp., 108, “ the moment the partnership ceases, the partners become distinct persons; they are tenants in common of the partnership property undisposed of from that period; and if they send any securities which did not belong to the partnership into the world after such dissolution, all must join in doing so.” The question was again considered in Morrison v. Perry, 11 Hun, 33, wherein it appeared that upon the dissolution of a partnership, caused by the sale by •one partner of all his interest therein to the other, the latter executed a promissory note in the firm’s name, for a then existing indebtedness, and gave it to a creditor ignorant of the dissolution ■of the firm. It was held, that the surviving partner had no .authority to execute the note, and that the retiring partner was not liable thereon, though liable on the original cause of action if that had been sued upon.

In the present case, there was no firm in existence when the obligation sued upon was contracted, and it became and was enforceable only against Hirsch, the person who made the note. It was made in his name, bound him alone, and was not intended to bind any" one else. There is no sound principle of law or morality that requires Mr. Harris, the defendant, to pay the debt in question. It was in no sense his obligation, and the trial judge properly directed a verdict in favor of the defendant. If follows that the judgment and order appealed from must be affirmed, with -costs.

Freedman, P. J., and Gildersleeve, J., concur.


author: Freedman, J.

text:
    Stephen W. Giles et al., Resp’ts, v. James G. Fargo, President, App’lt.

      (New York Superior Court, General Term,

      Filed January 11, 1892.)

    1. Carriers—Limitation op liability.
    A receipt by a common carrier for freight which provides that the carrier will not be liable for injury occasioned by the weather, accidental delays or natural tendency to decay, and that such goods are only taken at owner’s risk unless specially agreed in writing to the contrary, in the absence of proof of a special agreement, constitutes the whole contract between the parties, bui does not exempt the carrier from liability for loss occasioned by its own negligence.
    2. Same.
    The goods in question were lemons, which were injured in consequence of being transported in unventilated cars. They were shipped the latter part of April. It was shown that by custom lemons are shipped in winter in refrigerator cars and in warm weather in ventilated cars, but in early fall or late spring they are shipped in close cars unless the consignor makes a special contract. Held, that on these facts the jury were at liberty to find that defendant was left free to exercise his own judgment, and if he erred in judgment this did not constitute negligence.
    :3. Same—Evidence.
    In such an action it is error to exclude evidence as to whether in such cases it was the custom for the carrier .to select the cars, using his own judgment, or whether the shipper did so.
    Appeal from judgment entered in favor of the plaintiffs upon the verdict of a jury, and from order denying defendant’s motion for a new trial.

      Charles H. Patterson and Donald B. Toucey, for app’lt; Herbert Harry and Charles Caldwell, for resp’ts.
   Freedman, J.

The action was brought to recover damages for the alleged negligence of the defendant in loading and transporting 300 boxes of lemons consigned by the plaintiffs at the city of New York to Doniphan & Co. at St. Joseph in the state of Missouri in April of 1889.

The claim of the plaintiffs is that when the lemons were delivered to the defendant to be shipped they were in good order and sound condition, but that they were shipped in a closed and unventilated box car, which .was an unsuitable and improper car for that purpose, and that by reason thereof the lemons rotted and decayed in the course of their transportation.

Upon the trial it appeared that when the lemons were delivered to the defendant a receipt therefor was given to the plaintiffs. This receipt contained the provision that the defendant “ will not. be liable for injury to any articles of freight during the "course of transportation occasioned by the weather, accidental delays or natural tendency to decay,” and the further provision: “ Fruits- and all other perishable goods will only be taken at the owner’s-risk of fracture or -injury during the course of transportation, loading and unloading, unless specially agreed in writing to the-contrary.” Upon the face of the receipt there were stamped the-words, “ Owner’s Bisk.”

It also appeared that the plaintiffs kept in their possession, and were accustomed to use, the blanks having this printed contract, upon them, so that they were fully informed as to the nature of the contract. Besides this the words “Owner’s Bisk” were specially and conspicuously stamped upon the receipt.

At the close of plaintiff’s case, and again at the close of the-whole case, the counsel for the defendant moved for a dismissal of the complaint on the -ground, among others, that the contract-between the parties was solely evidenced by the shipping receipt that that contract was not violated, and that it expressly exempted the carrier from loss to fruit' resulting from heating or decay. The motions were denied and defendant excepted.

Under the doctrine of Falkenau v. Fargo, 35 N. Y. Supr. Ct., 332; aff’d, 55 N. Y., 642, the receipt in question undoubtedly constituted the contract between the parties.

In the course of the trial, however, considerable testimony was-allowed to be given concerning an alleged antecedent special contract. It was shown that one of the plaintiffs had a conversation with Mi’. Best, an agent for the defendant, in which Mr. Best said that he would guarantee the use of one of the best ventilated cars of the defendant. Mr. Best, on behalf of the defendant, denied that such a conversation had ever taken place. On the argument of the appeal the defendant insisted that the trial judge, on submitting the case to the jury, erred in his charge relative to this so called special contract. The point is not raised by any exception in the case, and in point of fact the trial judge did not submit to the jury the question whether the special contract had or had not been made. The jury were instructed that -the plaintiffs could not recover unless they had established negligence in the defendant irrespective of the contract, and that the evidence of the contract was the shipping receipt. It also appears that no exception was taken to the admission of the plaintiffs’ testimony concerning the said alleged special contract; that no motion was made to strike out the testimony; that no request was made to charge the jury with, reference to it, and that no exception was taken to that portion of the charge in which the trial judge incidentally alluded to it Under these circumstances the claim of the defendant that error was committed in respect to the alleged special contract must be disregarded, and the case must be treated as if the testimony bearing upon this point had not been given.

For the purposes of the appeal, therefore, the receipt above referred to constitutes the whole contract between the parties, and as that does not in clear and unmistakable terms exempt the defendant, from liability for loss caused by his own negligence, he remains liable for such loss, if the evidence establishes the negligence. Magnin v. Dinsmore, 56 N. Y., 168; Westcott v. Fargo, 61 id., 542; Mynard v. Syracuse, B. & N. Y. R. R. Co., 71 id., 180; Holsapple v. R., W. & O. R. R. Co., 86 id., 275; Nicholas v. N. Y. C & H. R. R. R. Co., 89 id. 370.

Upon the question of negligence considerable testimony was given at the trial as to what are proper cars for the transportation of lemons, and it may be deemed to have been established that by custom lemons are shipped in winter in refrigerator cars and in warm weather in ventilated cars. But it was also made to appear that in the early fall or late spring lemons are frequently shipped in closed and unventilated box cars, and that, if the consignor desires any other car at those periods of the year, he makes a special contract or gives specific directions. In the case at bar the lemons were shipped April 29th, and consequently, with the question of the special contract out of the case and there being no evidence that specific instructions were given, the jury were at liberty to find that the defendant was left free to use his own judgment and that, if he erred in judgment, it did not constitute negligence. Upon this branch of the case certain exceptions were taken by the defendant to the exclusion of evidence which require consideration. '

Dominicus Wegman, a dealer in fruits and president of the Foreign Fruit Exchange, was called as a witness on behalf of the plaintiffs, and testified that there is a custom in the fruit trade to ship lemons in a ventilated car in warm weather. On cross-examination he was asked by defendant’s counsel:

Q. Do you know whether, as matter of fact, the shippers are in the habit of selecting what kind of cars lemons should go in during the spring and fall, or whether the transportation companies are in the habit of using their Own judgment ?

The question was objected to by plaintiffs’ counsel as irrelevant The objection was sustained, and the question excluded,“and the defendant excepted.

The witness was then asked:

Q. Are you able to say whether during the spring and fall, during that period that intervenes between cold weather and hot weather, the various transportation companies which handle lemons, are in the habit of selecting the car, using their own judgment, or whether the shippers are in the habit of giving instructions to the transportation companies ?

The question was objected to by plaintiffs’ counsel on the same ground. The objection was sustained and the question excluded, and the defendant excepted.

The exclusion of these questions constituted error. The fact sought to be elicited was relevant and material, and the answers-to the questions, if favorable to the defendant, might have turned the scales in favor of the defendant, for, upon this point, the case was, to say the least, a very close one.

Other instances of the exclusion of testimony to the prejudice of the defendant might be cited, and especially the refusal of the trial judge to permit Edward M. Hills, one of the plaintiffs, to be-cross-examined upon the point whether it is not always customary when a ventilated car is ordered for the shipper to put on the shipping.receipt which he makes out “ ventilated car,” hut the instances already given are sufficient to show that a new trial musk be had.

I .regret that I had to arrive at this conclusion, because on the-question on which the most stress was laid, namely, the ability of the plaintiffs to maintain the action, the learned trial judge was-right in holding that, under the special circumstances of this case, the plaintiffs, as consignors, have sufficient title to maintain the action.

The judgment and order should be reversed, and a new trial, ordered, with costs to the appellant to abide the event.

Mo Adam, J., concurs.


text:
    The Continental National Bank of Boston, App’lt, v. Henry W. Strauss, Impl’d, Resp’t (2 cases).

      (New York Superior Court, General Term,

      Filed January 11, 1892.)

    1. Pabtnebship—Limited- -Pleadinq.
    In an action to charge a special partner with liability for firm debts as a. general partner, it is sufficient to charge him as a general partner and upon the trial to show that as to creditors he is such; it is not necessary that the complaint allege an attempt to form a limited partnership and the-defects which rendered the special-partner liable.
    2. Same—Ini-ant partnek.
    A special partner is not rendered liable as a general partner by the fact, that one of the general partners is an infant, where such infant has not-repudiated the partnership nor attempted to avoid any of its obligations. There is nothing in the statute preventing infants from becoming general! partners nor making the special partner liable for their contracts.
    3. Same—Intebfeeence by special pabtneb.
    The bringing of an action by the special partner in the interest of creditors and for the preservation of the funds, of the partnership, in which ac- • tian he is appointed receiver, is not such interference by him as will makhim liable as a general partner.
    4. Same.
    Nor is he rendered liable as a general partner by the dissolution of the • firm by reason of its insolvency and by operation of law.
    5. Same—Exhaustion oe capital.
    Proof that the firm was insolvent and that its obligations were more thansuffieient to exhaust the entire capital is sufficient to show that the special capital is exhausted.

      6. Same.
    Where the plaintiff in such an action gives evidence tending to show the formation of a special partnership under the statute the burden of proof is on him to show any irregularities, if any, which render the special partner liable, and defendant need not show compliance with the statute.
    7. Same.
    A special partner who contributes to a firm an agreed amount of capital is not responsible for the manner of its use by the general partners, nor is. he b mnd to show what they did with it.
    Appeals by the plaintiff from judgments entered in favor of the defendant Strauss after the dismissal as to him of. the plaintiff’s complaint at trial term.

      JB. F. Watson, for app’lt; Townsend, Dyett & Finstein, for resp’t.
   McAdam, J.

The questions involved in both appeals are substantially alike, and in disposing of them we will take the facts of one case, for the law applicable to that applies equally to both.

The action was brought upon a promissory note made by the defendant Klein for $2,749.81, dated October 23, 1884, payable six months after date and endorsed by the firm of A. Hoexter & Co. The firm of A. Hoexter & Co. was a “limited partnership”formed under the laws of this state, and consisted of the defendants, Augustus Hoexter and Leo W. Hoexter, as general partners, and the respondent, Henry W. Strauss, as special partner. The plaintiff seeks to hold the respondent liable as a general partner. The complaint was dismissed as against the respondent on the ground that the evidence did not establish that he was liable as a general partner. The partnership of A. Hoexter & Co. was formed on May 1, 1884, for the purpose of carrying on the business of manufacturing and selling men’s collars and cuffs. The certificate of partnership provided that the respondent should contribute the sum of $50,000 in cash; that the principal place of business of the partnership should be in the city of New York, and that the partnership should commence on the 1st day of May, 1884, and terminate on December 31, 1886.

The complaint did not allege an attempt to form a limited partnership, nor the defects which rendered the special partner liable; but this was not necessary, as it is sufficient to charge him as a general partner, and upon the trial to show that as to creditors he is such. Sharp v. Hutchinson, 100 N. Y., 533. See Loomis v. Hoyt, 52 N. Y. Supr., 287.

At the close of the testimony the appellant contended that the respondent was liable as a general partner for the following reasons:

1st. Because Leo W. Hoexter was a minor.

2d. Because the affidavit on the formation of the special partnership falsely stated that the respondent contributed $50,000 in cash.

3d. That the respondent had, by commencing an action in the court of common pleas and having himself appointed receiver, interfered with the business in violation of the provisions of the law affecting limited partnerships.

4th. That by such proceedings he had dissolved the firm prior to the expiration of the term set forth in the certificate of its formation.

5th. That the respondent did not allege in his answer or show ’ by proof that the partnership was dissolved by the act of the parties. prior to the time limited in the certificate, and that the $50,000 capital alleged to have been contributed by him had been used or exhausted in the business.

We will consider these points in the order in which they are made. The first is untenable. The policy of the law is to encourage and protect infants, hence they are not incapable of entering into a partnership, since it cannot be universally affirmed that it may not be for their benefit. Story on Part., § 7.

The partnership contract of an infant is not void, but voidable only, and the defense of infancy is a personal privilege. Avery v. Fisher, 28 Hun, 508; Slocum v. Hooker, 13 Barb., 536; Baldwin v. Van Deusen, 37 N. Y., 487; Hangen v. Hachmeister, 49 N. Y. Supr. Ct., 34; Lindley on Part., Vol. 1, p. 74.

In Avery v. Fisher, supra, the court said: “-The fact that the copartner who made the assignment in this case was at the time an infant does not invalidate the assignment, for the reason that infancy is a personal privilege, and no one but the infant can take advantage thereof; and for the further reason that infancy does not incapacitate a person from becoming the agent of another. Where a partnership is created between an adult and an infant,. the relation of mutual agency growing out of the partnership relations exist to the same extent as if both the parties were adults. The contract of partnership being legal and binding per se upon the adult, and equally so upon the infant until disaffirmed by him, it follows that the partnership must be bound by the act of the infant partner at any time before an actual disaffirmance by him of the partnership agreement”

In Slocum v. Hooker, 13 Barb., 536, it was held that an infant’s contract of partnership was binding upon him until disaffirmed by him, and that consequently he was a necessary party to an action against the partnership.

The statute provides that limited partnerships may be formed “ by two or more persons, upon the terms, with the rights and powers, and subject to the conditions and liabilities herein prescribed.” 2 Birdseye’s R. S., 2169, § 1. There is nothing in the act preventing infants from becoming general partners, nor making the special partner liable for their contracts.

There is nothing in the record which shows that the infant repudiated the contract of partnership or attempted to avoid any of its obligations ; so that the questions that might have arisen, had he elected to disaffirm the same, do not arise nor call for decision.

The second point raised is without proof to support it and, therefore, requires no further comment.

The third point, as to the effect of the common pleas action in which the respondent had himself appointed receiver, is also without merit. . It is only necessary to say that that action was brought in the interest of the creditors and for the preservation of the trust funds of the partnership, and was not any .such interference by the special partner as makes him liable, under the provisions of the statute, as a general partner.

The fourth point is without fqrce, because the partnership if dissolved prior to the time set forth in the certificate of its formation, was dissolved by reason of the insolvency of the firm and by operation of law, and not by the voluntary acts of the parties.

The fifth point, as to whether the $50,000 in capital, alleged to have been contributed, was exhausted or not, it is only necessary to say that the records offered in evidence by the plaintiff show that the firm was insolvent, and that the obligations against it were more than sufficient to exhaust the entire capital, general as well as special.

Upon the trial it was made clear that the respondent Strauss was a special and not a general partner. The plaintiff undertook to prove partnership by showing that Strauss’ name appeared upon a sign in front of the defendant’s place of business, but the witness testified that it so appeared as special and not as general partner. The plaintiff thereafter offered in evidence a deposition made by Strauss, and by it it appeared affirmatively that Strauss was a special and not a general partner. So that there was really nothing to go to the jury upon any of the questions involved in the case. On this proof, it was not necessary for the respondent Strauss to show that he had litei’ally complied with the provisions of the law in regard to limited partnerships. There being a limited copartnership, presumptively all its provisions were complied with; for the law will not assume, in the absence of proof, that a man does an unlawful act, but will assume that he has performed his duty. ' The onus was, therefore, upon the plaintiff to point out the irregularities in the partnership which made Strauss liable as a general partner; not having pointed out or proved any such irregularities, the trial judge properly dismissed the complaint as to himj and there is no force whatever in the exception taken to this decision. The plaintiff argues, that the existence of the special partnership could be proven against the plaintiff in one way only, i. &, by showing compliance with the statute. Ropes v. Colgate, 17 Abb. N. C., 136; Van Ingen v. Whitman, 62 N. Y., 513. This is true as an abstract proposition, but the mode of proof and the onus in this instance were changed by the plaintiff’s own evidence. The complaint charged that Strauss was a member of the firm of A Hoexter k Co. Strauss denied that he was a member therein except as special partner. Strauss’ interest as special partner, and his contribution of $50,000 capital as such, were set forth as the title upon which he based his right in the common pleas action to call upon the general partners to account for their maladministration of the trust The proofs offered by the plaintiff made out, as against it, a prima facie case of limited partnership sufficient to call upon it to point out the errors or irregularities in the- formation of the firm that made the special partner liable, if any such existed.

In other words, the law would not presume in the face of this evidence that Strauss had illegally formed the limited partnernership or had done any wrong.

The law infers that every man does his duty, has not incurred a penalty and has complied with the law. This presumption aided by the proofs offered by the plaintiff that Strauss was a special partner, and had contributed $50,000 as such to the capital of the firm, and that a limited partnership was formed “ pursuant to the provisions of the Revised Statutes of this state,” means that it was legally formed under said statutes, not illegally or irregularly. See Leland v. Cameron, 31 N. Y., 121. This dispensed with the production of the certificate of formation required by § 8 of the statute, because the special partnership was sufficiently proved by the plaintiff without requiring the corroborating, evidence of the papers themselves. If the onus of proving the special partnership had fallen on the defendant, as it generally does, the defendant could have been required to produce the best evidence of it, i. e., the original papers themselves, but where a plaintiff without objection proves a special partnership “under the statute” without the formality of producing the original papers, the evidence when once in the case, with all the presumptions following it, must be acted upon as though the best evidence of which the thing is capable had been produced. The plaintiff did not call for better evidence of the special partnership; indeed, at no time denied it, and the entire theory of the plaintiff’s case as presented at the trial was that Strauss, although only a “ special,” had for some reason, not made clear, rendered himself liable as a “general” partner as to creditors of the firm. The plaintiff also contended that the defendant was bound to show that his contribution of $50,000 as a special partner was used or had been exhausted in the business. But this was not necessary. A special partner who contributes to a firm an agreed amount of capital is not responsible for the manner of its use by the general partners, nor is he bound to show what they did with it They become trustees with regard to it, and the person paying them the money is not responsible for their misapplication of it

If the special partner is not to “ interfere with the business,” it would be next to impossible for him to regulate the use of the money contributed by him. This-is one of the things the special partner or a creditor in a proper case may, by bill, require the general partners to account for, where fraud and maladministration are charged againt them. The property of a limited partnership, after insolvency, is deemed a trust fund for the benefit of all the creditors. If the partners neglect to place it in the hands of a proper trustee for distribution, any creditor may proceed at once, in equity, for the appointment oí a receiver and distribution. Innes v. Lansing, 7 Paige, 583; Whitewright v. Stimpson, 2 Barb., 379. The special partner may, in a proper case, invoke the same remedy.

True, § 17 of the act provides that “if lie (the special partner) shall interfere contrary to these provisions, he shall be deemed a general partner.” But § 18 provides that “ the general partners shall be liable to account to each other, and to the special partners for their management of the concern, both in law and equity, as other partners now are by law.” As was held in Hogg v. Ellis, 8 How. Pr., 474, “ This liability to account must be proper and necessary, as well after the dissolution of the partnership as before, and must, therefore, have been intended to apply to both cases. It is a liability to account in the same manner as other partners are, that includes the liability to have a receiver appointed when it would be done in ordinary partnerships.” A bill may be filed by one partner for a receiver, founded on some breach of duty by the other members of the firm, Colby on Part., § 384, and the receiver, if appqinted, represents the partners and their creditors, and holds the assets of the firm as a trust fund for their benefit. It certainly qannot be deerhed an unlawful interference with the rights of the general partners or their creditors for the special partner to file a bill, the object of which is to preserve the partnership assets for their benefit from waste or misuse.

Limited partnerships formed under the statute are governed, and the mutual rights, duties and liabilities of the partners are regulated, by the common law'in every respect not taken out of the general rule by the statute. Ames v. Downing, 1 Bradf., 321; Jacquin v. Buisson, 11 How. Pr., 385. The interference by a special partner which makes him liable as a general partner is something more than mere observation, or that incidental supervision and advice which a person having capital invested in a concern would naturally give to an enterprise in which perhaps the greater part of his fortune was invested. It means active participation or domination.

Thus, in Lewis v. Graham, 4 Abb. Pr., 106, the court held that a special partner of a firm with-whom property is pledged is not incapacitated by his relations with the firm from purchasing the pledge at a.sale made by them. Speaking of the special partner, the court (at p. 113) said: “ He did not direct or aid in the sale of the securities. An attempt to interfere with the sale of them would have made him liable. A refusal to do so would not involve him in any neglect of duty * * * The special partner * * * may advise as to the interest of the partnership, but so may any one else. Such advice is no act or control of the partnership funds or duties.”

In the Madison Co. Bank v. Gould, 5 Hill, 312, 313, the court said: “ The special partner may examine and advise in relation to the management of the partnership concerns, ‘ but he shall not transact any business on account of the partnership, nor be employed for that purpose as agent, attorney or otherwise. If he shall interfere contrary to these provisions, he shall be deemed a general partner,' § 17.” In the case cited the court found that the special partner went beyond giving advice, and actively participated in the business of the partnership, contrary to the section of the act referred to, and “ thereby lost his character and protection as a special partner.” So in First Nat. Bank v. Whitney, 4 Lans., 34, where during the existence of a limited partnership the special partner bought out the entire firm property and continued the business in his own name for his own account. This was held to be an interference with the firm business contrary to the provisions of the act that rendered the special liable as a general partner on debts contracted by the firm.

. In the present case there was no interference with the partnership contrary to the provisions of the act, but only in the manner and to the extent expressly authorized thereby.

The interference which makes a special liable as a general partner is not a legal, but illegal interference, the one being authorized and the other not

The dissolution of a limited partnership prior to the expiration of the term set forth in the certificate, of its formation, except in the manner prescribed in the act, may render a special liable as-a general partner; that is, provided the dissolution be a voluntary one; but where it proceeds from involuntary causes, the result stated does not follow. Thus (1), the death of one of the partners within the period fixed for the duration of the agreement dissolves the limited partnership. Ames v. Downing, 1 Bradf., 321; Jacquin v. Buisson, 11 How. Pr., 385; Troubat on Lim. Part., § 428. (2) It may, perhaps, terminate by the extinction of its assets, which constitute the capital upon which its business must be done. Story on Part., § 280. (3) It may be dissolved by decree of the court, or by act of the law, for willful acts of fraud and bad faith, gross instances of carelessness and waste in the administration of the' partnership by one or more of the general partners, Colby on Part, § 281, and this, at the instance of any other general partner free from fault, the special partner^ or any creditor of the firm interested in the application of the firm property as a trust fund for the payment of the firm’s debt. These acts of dissolution not proceeding from the wrongful conduct of the special partner do not charge him with the liability of a general partner, and there is nothing in the act relating lo limited partnership that was intended to charge him with liabilities for a dissolution caused by any of the involuntary acts or things stated.

The case is full of technicalities, yet substantial justice was done, and the rules of law properly observed.

We find no error that requires a new trial, and the judgments appealed from must be affirmed, with costs.

Freedman and Glldersleeve, JJ., concur.


text:
    Joseph A. Leinkauf et al., Resp’ts, v. Josiah Lombard et al., App’lts.

      (New York Superior Court, General Term,

      Filed January 11, 1892.)

    Careiees—Loss OF GOODS.
    In an action for the loss of goods shipped on a vessel of a steamship line operated hy defendants, the evidence was conflicting on the questions whether there was a binding contract to insure the value of the goods without a previous declaration of their value; whether the vessel was seaworthy, and whether defendants were interested in the management of the steamship line as individuals or as officers of a corporation. Held, that the case was properly submitted to the jury, and that their verdict, in the absence of error, was conclusive.

      Appeal from judgment entered, in favor of the plaintiffs upon the verdict of a jury, and from order denying defendants’ motion for a new trial.

      John A. Beady, for app’lts; Horace M Beming, for resp.’ts.
   Freedman, J.

controversy in this case arose out of the contract made by the plaintiffs with an agent of the New York & Mobile Steamship line for the transportation of certain goods by that line from New York to Mobile. Under this contract the goods were placed on board of the Yidette, one of the steamers of said line, which started from the port of New York bound for Mobile and was lost at sea. The action was brought to recover the value of the goods. The New York & Mobile Steamship line was a common carrier, for hire, between New York and Mobile, but was not a corporation, as its name might imply.

Upon the trial the real controversy was narrowed down to three questions, namely:

1. Whether there was a binding contract on the part of the steamship line to insure the value of the goods without any declaration of their value before the sailing of the Yidette, and if so, whether there was a failure of the steamship line tp perform it.

2. Whether the Yidette was or was not seaworthy, and

3. Whether the defendants were associated in the control and management of the steamship line as individuals or in their corporate interests and acting as officers of a corporation known as lombard, Ayers & Go.

There was a mass of conflicting testimony on each of these questions and each of them was submitted to the jury.' Upon the whole case there was sufficient evidence to call for such ,a submission. It would have been error to dismiss the complaint or to direct a verdict for the defendants.

The disputed questions of fact were submitted to the jury under instructions which, taken together, fully and fairly guarded every right which the defendants had, and the jury having determined the questions submitted to them in favor of the plaintiffs, their verdict, in the absence of error, should be held conclusive. An examination of the exceptions taken discloses no error which calls for reversal. o

The judgment and order should be affirmed, with costs.

Gildersleeve, J., concurs.


author: Freedman, J.It

text:
    Emma S. A. Gove, App’lt, v. Charles H. Stewart Impl’d, Resp’t.

      (New York Superior Court, General Term,

      Filed January 11, 1892.)

    1. Execution—Person—Waiver of objections.
    A preliminary objection to an order to show cause why an execution against the person should not be set aside on the ground that it does not set forth the irregularity complained of is waived where defendant is instructed to furnish his brief showing the grounds on which the motion is made and plaintiff thereafter flies an affidavit and brief in answer thereto.
    2. Same.
    The action was brought against defendant and his partner, who were dentists, for an injury done by the partner to the plaintiff. Service was made upon defendant alone, and execution against his body was not issued "within twenty-six days after return of a property execution. HÚd, that' as the case was one of great hardship and the affidavits conflicting, the execution was properly set aside because not issued within ten days.
    Appeal from an order o£ the special term vacating and setting aside the execution issued by plaintiff against the person of the defendant

      James M. Hunt, for app’lt; Edward Kent, for resp’t.
   Freedman, J.It

may be assumed that within the decisions of Montrait v. Hutchins, 49 How., 105, and Garner v. Mangam, 46 N. Y. Supr. Ct., 365, the order obtained by the defendant, requiring the plaintiff to show cause why the execution issued by the plaintiff against the person of the defendant should not be vacated and set aside, was irregular in not specifying the irregularity complained of, to wit, that said execution had been .issued more than ten days after the return of the execution against the property of said defendant

But I think the plaintiff waived the right to insist upon the objection. True, she raised the point by preliminary objection upon the return of the order to show cause, but the court thereupon instructed the attorney for the defendant to furnish to the attorney for the plaintiff a copy of his brief showing in detail the grounds upon which the motion to vacate was based, and gave to plaintiff’s attorney three days within which to prepare and submit such affidavit and brief as he might desire, and plaintiff’s attorney within the time specified did submit an affidavit and brief. Under these circumstances a new notice of motion or order to show cause was not necessary, and the plaintiff waived her preliminary objection to the irregularity of the moving papers.

As to the merits, it appeared on the motion that the case was one of great hardship to the defendant. The action was brought against the defendant and one Sharp as copartners engaged in the profession of dentistry, and was founded upon a negligent act done by Sharp, and which caused a personal injury to the plaintiff. The defendant Stewart alone was served and contested plaintiff’s claim. The plaintiff having recovered judgment and having failed to issue execution against the person of the defendant -Stewart within ten days after the return of the execution against the property, as required by § 572 of the Code, and in fact more than twenty-six days having elapsed, and the plaintiff’s right to issue execution against the person depending solely upon the nature of the action, the court was bound to grant the application to vacate and set aside the execution against the person, unless reasonable cause was shown by the plaintiff why the application should not be granted. Upon this point the case presented a question of- fact as to which both parties submitted affidavits which were conflicting. Upon the whole case it cannot be held that the learned judge committed a legal error in the determination of the fact

Having reached that conclusion, it is not necessary to consider the questions relating to the regularity of the judgment and execution.

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

McAdam and Gildersleeve, JJ., concur.


text:
    George Southwick, Resp’t, v. Adolph Bernhard, App’lt.

      (New York Superior Court, General Term,

      Filed January 11, 1892.)

    .Master and servant—Wrongful discharge —Damages.
    In an action for wrongful discharge, where it appears that the plaintiff endeavored, but was unable to obtain other employment, a recovery of the amount provided for in the contract of employment is proper.
    Appeal from a judgment in favor of the plaintiff on the ver•dict of a j ury, and from the order denying a motion for a new trial.

      D. A. Jacob and David Leventritt, for app’lt; Milnor & Willis, for resp’t.
   McAdam, J.

The action was by the plaintiff, as travelling ¡salesman, to recover damages for wrongful discharge.

The question litigated was whether the hiring was by the year, ■or for no fixed duration and terminable at the pleasure of either party. The jury found that the agreement was to continue for •one year and the" plaintiff having been discharged nine months before the term of service expired, was awarded by the jury the .actual loss suffered; no more.

The plaintiff endeavored, but was unable to obtain other employment, hence his loss aggregated the sum which the defendant by his contract was to pay. There is no merit in the exceptions taken, and there is nothing in the case which requires a new trial.

The case was fairly submitted to the jury, and the judgment •entered on their verdict and the order denying the motion for a new trial must be affirmed, with costs.

Freedman, P. J., and Gildersleeve, J., concur.


author: Macomber, J.

text:
    The People ex rel. Dennis O’Mara, App’lt, v. The Board of Supervisors of Cayuga County, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Supervisors—Audit op accounts—Estoppel.
    Where an account is audited by the supervisors at a less sum than that claimed, and the amount so allowéd is accepted by the claimant, he is precluded by such acceptance from making any further claim against the board for the same materials or services based upon the ground that the board did not pa-s on the several items, but only on the account as a whole.
    Appeal bv the relator from an Order of the special term made July 27, 1891, in Monroe county, and entered in Cayuga county, August 12, 1891, denying the relator’s motion for a‘ peremptory writ of mandamus, made upon the relator’s petition for the payment for services rendered and materials furnished by him to the county of Cayuga.

      J. Bosecrans, for app’lt; G. M. TU lliott, for resp’t.

       Affirming 40 St. Rep., 238.

   Macomber, J.

In the year 1889 the relator rendered services and materials in painting county buildings and fences in Cayuga county under employment, as it was claimed, by the proper committee. For such services and materials he presented a bill to the board of supervisors for $646.05. The "board, however, rejected the claim as presented, but allowed to the relator the sum of $412. This amount was, in regular routine, drawn from the funds of the county and paid over to and accepted by the relator. Subsequently the relator again presented the same claim, less the sum of $412 paid to him, to the board of supervisors, and payment of the same was refused.

We know of no reason why the rule touching the acceptance of payment in case of disputed claims, though not of the whole of the-account rendered, should not apply to the relator in this instance as in other cases. Having accepted the payment of the $412, it. was not competent for him afterwards to make any claim against the board for the same materials and services. The acceptance-of this sum under the circumstances precluded the relator from further prosecuting a claim for the residue of his bill. Such was-the decision in the case of the People ex rel. McDonough v. Supervisors, 33 Hun, 305..

The proposition is now made by the learned'counsel for the plaintiff that, inasmuch as the board of supervisors did not pass upon the several items of the account rendered by him, but only upon the account as a whole, the case of his client is taken out of the ordinary and well-established rule. The force of this contention, however, is not apparent. If, before accepting the sum of $412, the relator had ascertained that the board of supervisors had not passed upon the several items, he could undoubtedly, by refusing to accept the money thus offered, require that there should be an examination of, and a passing upon, the several items of his account. Not having done so, however, he is now, as it seems tons, precluded from making any claim upon such contention.

It follows, therefore, that the- order should be affirmed.

Order appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.


text:
    The People ex rel. The First National Bank of Franklinville and Jason D. Case, App’lts, v. Charles D. Button et al., Assessors, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Taxes—Bank surplus—Estoppel.
    The assessors made an assessment upon the surplus of the bank of $16,-000. Relator Case went before them and objected thereto, but refused to be sworn or give information as to the value of the shares of stock. Notwithstanding this the assessors made a reduction and, at the request of Case, distributed the reduced amount among, and assessed it to, the individual stockholders. Held, that the bank had no pecuniary or other iuterest in this proceeding to review the assessment, as the erroneous assessment was taken from the rolls before the writ was made, and that Case was estopped to deny that the distribution and re assessment was unlawful, illegal or erroneous, as it was made at his request.
    Appeal by the relators from an order and judgment entered in Cattaraugus county, March 23,1891, dismissing a writ of certiorari, which had been issued to review an alleged erroneous assessment against the property of the relators.
    TP. W. Waring, for app’lts ; G. JS. Spring, for resp’ts.
   Macomber, J.

The writ of certiorari in this proceeding was issued on the 11th day of September, 1890, for the purpose of reviewing an alleged erroneous,' illegal and unequal assessment upon the property of the relators, made in the year 1890, by the defendants, who are assessors of the town of Franklinville, in the ■county of Cattaraugus.

The petition for the writ was in proper form to bring up for review every-question pertaining to any illegal, erroneous or unequal assessment made by the assessors in this instance. A return was made to the writ issued upon the petition, which contained -denials of certain allegations in the petition, and set forth affirmative matters tending to exonerate the assessors from the charges made against them, and to show that the writ was improperly issued. . .

Tile relator, The. First .National Bank of Franklinville, is a banking corporation organized under the laws of the United States, having a capital stock of 550 shares of the par value of $100 each, of which stock the. relator, Jason D. Case, owned seventy-five shares. At the time of the assessment this bank had an accumulated surplus of $22,000.00. The actual value of each share of stock was $140. Upon the review day, the relators appeared by Jason D. Case for himself and for the bank, and claimed that a certain assessment of $16,000 made against the property of the relators was an overvaluation, whereupon the same was reduced to the sum of $13,000. The relator, Case, was asked by the assessors at this time to be sworn touching the value of the shares of stock of the bank, and asked to impart any information possessed by him pertaining ,to the property of the bank and of its value, including the value of his own .stock in such bank. This he refused to do. Certain other reductions were made in behalf of two alleged stockholders, which it is not necessary to mention in detail, because they have no bearing upon the questions involved in this appeal. It appears that the bank had been compelled to take certain real estate which it had held as security for indebtedness, and this had been reckoned by the assessors as •a part of the surplus. When the attention of the assessors was called to the matter, they reduced such assessment of personal property against the bank from $13,000 to $9,500. At the request of the relator, Case, this reduced amount, namely, $9,500 was, by the assessors, distributed among and assessed upon the individual shareholders of the bank. This request was made, and the action taken thereunder was had, before the writ in this proceeding was issued or applied for. It appears affirmatively that, before the writ had been granted, the relator, Case, knew of such reductions, and of such compliance with his wishes and directions.

Under the evidence taken before the referee and returned to-the court, there is not left standing for the relators any claim which was set forth' in their petition relating to the question of unequal assessments.

By § 6, chap. 536 of the Laws of 1857, it is provided that, “ if any person shall refuse to answer any question as to the value of his real or personal estate or the amount thereof, or present sufficient supplementary evidence under oath to justify a reduction, the assessors shall not reduce the value of such real or personal estate.”

There is in the case before us an entire absence of any evidence-upon the branch of the case relating to unequal' assessments. The bank, speaking through its cashier and financial officer, Case, claimed that the assessment of the surplus should have been distributed among the stockholders and not laid upon the corporation. The assessors acted in accordance with this request.

No claim is made in behalf of the respondents that the original assessment upon the surplus against the bank was authorized. But it is urged that, inasmuch as the correction was made at the-request of the relators by taking the assessment from the bank and placing it upon the individual shareholders of the stock, the-original error was corrected, and that the relators, therefore, have no reason to complain. In this contention we think the counsel is correct

By § 5219 of the federal act (13 U. S. Stats, at Large, 112),. the valuation of the shares as personal property may be made-by the assessors against the individual shareholders, though they may not be made against the bank itself. See, also, Apgar v. Hayward, 110 N. Y., 225; 18 St. Rep., 169; Van Allen v. Assessors, 3 Wall., 573; Whitney v. Thomas, 23 N. Y., 281; National Bank of Chemung v. City of Elmira, 53 id., 49; McLean v. Jephson, 123 id., 142; 33 St. Rep., 490; chap. 409 of the Laws of 1882, §, 312.

In conclusion, it appears to us, therefore: First, that the relator, the bank, has no pecuniary or other interest in this case, for the reason that the erroneous assessment made against its surplus was taken from the rolls of the assessors before the application for the writ was made, and this act was done in pursuance of the objections made to the original assessment by its financial officer; and, secondly, that the relator, Jason D. Case, is estopped to deny that the distribution and reassessment of the surplus capital stock of the bank among the stockholders was unlawful, illegal or erroneous, for the reason that such distribution was made at his special instance and request

The rights of no other stockholder of the bank are involved in this appeal.

It follows, therefore, that the order and judgment appealed from should be affirmed.

Judgment and order appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.


author: Dwight, P. J.

text:
    The People, Resp’ts, v. William Bergen, App’lt.

      Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Larceny—Erroneous conviction.
    Defendant was convicted of the crime of petit larceny. The only evidence tending to connect him with the crime was that a week after a burglary, in which a piece of cloth had been taken, he went with a man who had the cloth to a tailor’s where the man tried to sell it. Evidence was offered to show statements of a deceased officer, who shortly after had the cloth, as to how he came by it and his identification of defendant as the one who knocked him down with it when he endeavored to arrest him, which evidence was excluded, but the court charged that it was expected if the officer had been present to testify that the People could have proved these facts. Defendant, when on the stand, testified that he had served a term for larceny. Held, that the conviction was erroneous, as he was evidently found.guilty upon evidence which was not in the case and his confession of a crime previously committed.
    Appeal from a judgment of the court of sessions of Monroe county convicting the defendant of the crime of petit larceny, and from an order denying his motion for a new trial on the minutes of the court.

      P. Chamberlain, Jr., for app’lt; George P. Benton, dist. att’y, for' resp’ts..
   Dwight, P. J.

The defendant was indicted (in separate counts) for burglary, receiving stolen goods and petit larceny. He was convicted of petit larceny upon evidence which, if it proved anything, was as much evidence of the burglary as of the larceny. A burglary was committed, by breaking in a shop window andpiece, or roll, of cloth was abstracted. A week afterwards the defendant went, in the evening, in company with a man who had the cloth, to a tailor shop, where the man tried to sell it; and this is the extent to which what may properly be called evidence in the case goes to connect the defendant with either the burglary or larceny charged. Beyond this the narrative shows that at two or three o’clock in the morning after the visit to the tailor’s, a policeman by the name of Wadick, who died before the trial, was met on his beat in the same vicinity with the piece of cloth in his arms, and told the witness who met him how he came by it. ■ There was a persistent effort on the part of the prosecution to show what Wadick’s statement was.

That evidence was of course excluded, but the proposition was plainly presented to the minds of the jury and was industriously inculcated in the case, by the form of questions asked, and by incidental reference to it in various ways, that Wadick, if he had been alive, would have testified that he met a man at that early hour in the morning with the roll of cloth in his arms; that he tried to arrest him but that the man knocked him down with the roll and escaped, leaving the cloth in the policeman’s' hands. There is no-evidence whatever in support of this story ; but there is reason- to-suppose that the prosecution had the full benefit of it with the jury. Indeed, we find in the charge of the court the statement to the jury that “ as appears from the evidence, it was expected that if the officer Wadick had been here to testify, the People could have proved ” the facts embraced in the above proposition. The ■defendant was arrested nearly three weeks later, when Wadick went with another policeman to see him in jail, and the other policeman was permitted to testify that, there, Wadick stated to him that the defendant was the man who knocked him down with the roll of cloth. The police justice was also a witness and testified that at the time when the defendant was before him he .asked the defendant why he struck the officer with the cloth, a fact of which there was no evidence before the magistrate, and that the defendant said he was not guilty of stealing it and he wanted to get away. The police justice confesses to great indistinctness of recollection as to what took place, while the attorney who appeared for the defendant testifies that he pleaded not guilty for him and that the defendant was not sworn and made no statement whatever.

This is all the evidence of any kind which tends to inculpate the defendant in the crime charged, but, what was probably of more serious consequence to him, he took the stand as a witness in'his own behalf, and, on his cross-examination, testified that he had already served a term of imprisonment in the state prison for the crime of larceny committed in the city of New York. And this fact, we think, it may have been, together with the information of what officer Wadick would have testified to if he had been living, which in the estimation of the jury gave the needed weight to .the evidence to justify a verdict against the defendant. Indeed, we have found it impossible to read the brief record of this case without being strongly persuaded that this young man was found guilty of the crime charged upon him upon evidence which was not in the case and his confession of a crime previously committed.

A man who has once expiated a crime of which he was guilty ought to have a fair chance to make and maintain a good character thereafter. It is well known that such is not the case; that nearly all the avenues of respectability are closed against such a man, and that he is constantly the object of suspicion and distrust. This, as the learned court said to the jury in the present ■case, is human nature; but one thing, at least, ought to be assured to the man so unfortunately situated, that, suspected and distrusted as he may be, he shall not be judicially determined to be guilty of crime except upon evidence which fairly meets the requirements of those rules of law which are designed to protect the innocent. For the want of such evidence in this case we think the motion for a new trial should have been granted.

The judgment and order appealed from should be reversed.

Judgment and order appealed from reversed and a' new trial granted in the court of sessions of Monroe county.

Macomber and Lewis, JJ., concur


author: Lewis, J.

text:
    Edward Pettingill, Resp’t, v. The Town of Olean, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Appeal—New trial.
    An order made by the trial judge granting a new trial because of an error in excluding testimony will not be interfered with by the appellate court, although other evidence as to the same fact had been admitted, as the trial judge had better opportunity for determining as to the importance of the excluded testimony.
    Appeal from au order granting a new trial to the plaintiff, entered in the Cattaraugus county clerk’s office July 24, 1891.
    The action was to recover damages for an alleged personal injury claimed to have been sustained by the plaintiff upon a highway in the town of Olean,' caused by his being thrown from a, wagon in which he was riding by reason of one of the wheels of the wagon running into a hole in the highway. The action was tried on the 20tli day of May, 1890, and resulted in a verdict for the defendant.
    Upon a motion being made, by the plaintiff for a new trial before the justice before whom the action was tried, an order was made granting a new trial on the ground of an error of the trial court in excluding evidence offered by the plaintiff.

      A. & Q. M Spring, for resp’t; J. É. & M. B. Jewell, for app’lt.
   Lewis, J.

The evidence tended quite clearly to show that the hole in the highway complained of had existed for a number of weeks, that it was deep and dangerous, and that the commissioner of highways of the town had been informed of it for some considerable time before the accident.

The plaintiff offered to prove by Hazen Chamberlain, who resided near the defect in the road, that prior to the day plaintiff was injured other persons using the highway had been injured by driving into the hole.

■ The evidence was excluded, and the order appealed from was granted because of the exclusion of this evidence.

That the evidence offered was competent is conceded by the appellant’s counsel, but he contends that many other witnesses called by the plaintiff were permitted to and did testify to similar accidents happening to others by driving into the same hole, and it being so abundantly established by so many other witnesses, it was error to grant a new trial because of the exclusion of the testimony mentioned, as the respondent could not have been injured thereby. The trial justice saw Mr. Chamberlain; he saw the witnesses who were permitted and who did testify to similar occurrences,

He had better opportunity than we have to judge as to the importance of the excluded evidence to the plaintiff's case.

Having determined that justice demanded that the plaintiff should have another trial so as to present to another jury the evidence erroneously excluded, we cannot say he erred in granting the order appealed from; it should be affirmed, with ten dollars costs and the disbursements of the appeal.

Order appealed from affirmed, with ten dollars costs and disbursements of the appeal

Dwight, P. J., and Macomber, J., concur.


text:
    Bridget Ward, Adm’rx, Pl’ff, v. The Rochester Electric Railway Co., Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Negligence—Contributory.
    Plaintiffs intestate while driving in an open wagon attempted to cross defendant’s track to reach a hotel, when the back of his wagon was struck • by a car and he received injuries from which he died. It appeared that he could have seen the car approaching had he looked, but he was sitting with his head bent forward and did not look in either direction. Held, that he was guilty of contributory negligence and that a nonsuit was properly ordered.
    Motion by the plaintiff for a new trial, directed to be heard at the general term in the first instance.
    The cause was tried at the Monroe circuit, on the 2d day of Tebruary, 1891. At the close of plaintiff’s evidence she was non-suited.
    The action was to recover damages for the killing of Timothy Ward by the negligence of the defendant, on the 29th day of July, 1890.

      J. & Q. Van Voorhis, for pl’ff; Theodore Bacon, for def’t
   Lewis, J.

The defendant owns and a street surface extending northerly city ester to the shore of Lake Ontario, at Charlotte.

Its track runs along the westerly edge of the travelled part of the highway known as the Boulevard. Its cars are propelled by ■electricity.

The deceased was a farmer, residing upon the Boulevard near the lake, and was, at the time of receiving the injuries which resulted in his death, returning from the city, riding along the Boulevard in an open wagon drawn by one horse. West of the track and Boulevard was a hotel with a semi-circular driveway leading to it from the Boulevard.

The deceased arrived at this driveway at forty minutes past six on this 29th day of July, and turned his horse into the driveway toward the hotel. As his wagon Was upon the defendant’s track, the back part of it was struck by the cars of defendant running northerly, and the deceased received injuries from which he died.

The proof tended to show that the defendant was guilty of negligence causing the deceased’s injuries, but the plaintiff, we think, wholly failed to show that the deceased was free from negligence contributing to the accident.

From the time he left the travelled part of the Boulevard to ■cross the track, the defendant’s track and the cars moving thereon for a quarter of a mile to the south could have been plainly seen by him had he looked in that direction. His horse was upon a. walk ; he was sitting upon the seat of the wagon with his head bent forward; he drove upon the track without looking in either di.rection.

He drove upon the track apparently paying no attention to whether the car was approaching him.

He was' acquainted with the Boulevard and with the running •of the defendant's cars. A glance to the south at any time before he reached the track would have informed him of the approach of the defendant’s cars.

He heedlessly and negligently drove upon the track, and it ..seems to be quite clear that he was not free from negligence contributing to his death.

There was some evidence tending to show that he was somewhat intoxicated that afternoon.

Judgment should be ordered for the defendant upon the non- ; Suit, with costs.

Dwight, P. J., and Macomber, J., concur.


text:
    Pliny T. Sexton, Resp’t, v. Charles W. Bennett et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    .Appeal—Amendment of obdeb.
    An order of the county court amending orders claimed to have been irregularly entered, made by the justice who presided when the original orders were made, is a discretionary one, and is not reviewable in this court.
    Appeal from an order of the Wayne county court, entered in the clerk’s office of that county on the 16th day of March, 1891.

      Charles McLouth, for resp’t; M. Hopkins, for app’lts; Charles W. and Elvira Bennett; Camp & Dunwell, for Geo. W. Bennett
   Lewis, J.

A motion was made by the plaintiff upon affidavits purporting to have been granted by the court, had been irregularly ¡and improperly entered, that they were not the orders directed to be entered by the court, that matters were omitted which were •directed to be inserted therein, and that they contained matters which were not granted by the court. The affidavits read upon the motion were quite conflicting. The order appealed from was .granted by the same justice who presided at the time the orders were granted which the order appealed from directed should be ¡amended.

We must assume that he knew whether the orders were in fact ¡the ones he granted.

Having determined that they "were not, he very properly directed the entry of the order amending them so that they would truly ■express the meaning and direction of the court.

It was, obviously, a discretionary order, and is not reviewable by this court.

The order appealed from should be affirmed, with ten- dollars ¡costs and disbursements of the appeal.

Dwight, P. J., and Macomber, J., .concur.


text:
    Amy C. Palmer, App’lt, v. Eleazer Green, Jr., et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Heirs—Action for distributive share.
    An action cannot be maintained by one of the next of Kin of an infesta'e against the others to recover his distributive share of the personal estate in their hands; but an administrator should be appointed to recover the same and make proper distribution.
    Appeal from the judgment of the supreme court entered in the office of the clerk of the county of Chautauqua on the 15th day of May, 1891, dismissing the .plaintiff’s complaint, without, costa

      Walter L. Sessions, for app’lt; F. W. Stevens, for resp’ts.
   Lewis, J.

The plaintiff’s complaint is quite voluminous, but. its material allegations are very briéf; they are as follows:

Mrs. Sylvina Green died in the county of Chautauqua intestate on or about the month of March, 1888, leaving her surviving, as. her only children and heirs at law, the plaintiff and the defendants, Bleazer Green, Jr., and Broughton W. Green, the defendant, Mary Green, being the wife of Eleazer, Jr. That previous to- and at the time of Sylvina’s death, the defendant, Bleazer, had in his possession a large amount of money and personal property belonging to his mother, Sylvina.

That he had not made any distribution of the said estate in his-hands and that the plaintiff, as the next of kin of her mother, claims to be entitled to a distributive share of said estate and that. Eleazer had refused to pay it to plaintiff.

There are allegations in the complaint concerning the acts and conduct of the other defendants, but it is not necessary to state them, for if the plaintiff’s complaint fails to state a cause of action against Bleazer, it will not be claimed that it states a case against the other defendants.

The' allegations of this complaint that the defendant, Bleazer, . was the executor of his father’s estate, that he accounted as such in the surrogate’s court, that his accounts were settled and that he was by decree discharged as such .executor, are not material.

The defendants’ answers put in issue all the material allegations of the complaint.

The plaintiff’s counsel in opening his case to the referee stated 'that he claimed to recover a money judgment only against the defendants for the distributive share of plaintiff in the personal estate of her mother, Sylvina Green, deceased, which he claimed was in the possession of the defendants, and further stated that such was the construction he claimed should be given to the plaintiff’s complaint.

The referee, thereupon, on motion of the counsel for the defendants, dismissed the plaintiff’s complaint, without costs. .

The defendants were not liable to account to the plaintiff as one--of the next of kin of the mother.

The proper course for the plaintiff to have taken was to procure the appointment of an administrator of her mother’s estate.

The administrator could then institute an action against the deiendants to recover the entire property in their hands belonging to the estate, and then a proper distribution thereof would be made pursuant to the provisions of law in such cases. Muir v. The Trustees, etc., 3 Barb. Ch., 477; Dayton on Surrogates, 211.

Had plaintiff succeeded in her action, and obtained her alleged share of the estate, she would be obliged to account to an administrator, when one should be appointed, for the money received.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.


text:
    Theodore Baumler, App’lt, v. Frederick P. Ackerman, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Supplementary proceedings—Limitation.
    The right to institute supplementary proceedings accrues at the time of tile return of the first execution and is barred by the statute at the expiration of ten years, and the time cannot be extended by the issuing of a second execution.
    S. Execution—Code Civ. Pro., § 1252.
    Section 1252 of the Code has relation only to judgments rendered after the adoption of that section.
    Appeal by the plaintiff from an order of the county judge' of Erie county, entered on the 9th day of June, 1891, vacating and setting aside an order in proceedings supplemental to execution in said action.

      Jonathan L. S later, for app’lt; J2. G. Robbins, forresp’t.
   Lewis, J.

Plaintiff recovered a judgment against the defendant in the court of a justice of the peace of Erie county, on the first day of November, 1876, for $107.45. On the same day a transcript of the judgment was filed and the judgment was ■docketed in the office of the clerk of Erie county. An execution was issued upon said judgment on the said first day of November to the sheriff of Erie county, where the defendant then resided. The execution was duly returned wholly unsátisfied. A second execution was issued upon the judgment on the 7th day of April, 1891, to the sheriff of Erie county, where the defendant still resided. ' The second execution was returned wholly unsatisfied, and the plaintiff thereupon instituted proceedings supplemental to execution before the judge of said county. Upon motion of the defendant, the order appealed from was granted by said county judge on the ground that more than ten years having elapsed after the return of the- first execution, the statute of limitations had nun against plaintiff’s right thereto.

Plaintiff’s contention is that his proceedings having been instituted. within ten years after the return of the second execution, they were regular under § 2435 of the Code of Civil Procedure.

That section provides that proceedings supplemental to execution may be instituted at any time within ten years after the return of an execution against property unsatisfied, etc. The decision of this appeal depends upon the question' which one of the executions comes under the provisions of said § 2435. ■

An execution was returned unsatisfied in the year 1876. The-right to institute these proceedings then accrued to the plaintiff. He permitted more than ten yearn to expire before instituting them.

We think his right to institute the proceedings had expired by limitation of time. It was decided in Conyngham v. Duffy, 125 N. Y. 200; 34 St. Rep. 736, that by chapter 4 of the Code of Civil Procedure, a limitation for the instituting, of such proceedings is fixed at ten years from the accruing of the right thereto. That the limitation of time was fixed by §§ 388, 414 and 415 of the Code. The plaintiff’s judgment had ceased to be a lien upon the real property of the defendant when his proceedings were-instituted. The execution was ineffectual, therefore, to reach that, class of property. It was held in 9 Paige Ch, 596, that in order to institute a creditor’s bill, there must have been issued and returned an execution against real estate. It is suggested by the-appellant that provision is made for such proceedings after the-lapse of ten years by § 1252 of the Code of Civil Procedure. That section has relation only to judgments rendered after the-adoption of that section into the Code. That section had not. become a part of the Code at the time of the docketing of plaintiff’s judgment

We think that the order appealed from was properly granted,, and that it should be affirmed, with ten dollars costs and the disbursements of the appeal.

Dwight, P. J., and Macomber, J., concur.


text:
    George W. Wells, Resp’t, v. Rufus A. Sibley et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Negligence—Cellar door.
    In front of defendants’ building was a passage to the cellar closed by an iron door which opened on hinges. While plaintiff was hastily passing-along the sidewalk about seven o’clock at night he fell over this door, which was open, and against an iron boiler which defendants had placed, on the sidewalk. Held, that the case was properly submitted to the jury.
    2. Same.
    Plaintiff testified that after his fall he looked down in the cellar and saw one or two men with a lighted lantern. The only employees who had access to the passageway were two engineers, one of whom testified that he left at six o’clock, and the other that he left-shortly after seven, and fastened the door. Held, that the preponderance of evidence tended to show that one of the engineers negligently left the door open, and, if this was¡ so, defendants were liable.
    Appeal by the defendants from a judgment in favor of the plaintiff, upon a verdict rendered at the Monroe circuit in January, 1891, and from an appeal denying the defendants’ motion for a new trial on the minutes.

      P. Chamberlain, Jr., for resp’t; Albert JET. Harris, for app’lts..
   Lewis, J.

The defendants are the owners of the Osborne house block, in the city of Rochester, fronting upon Division street, and in the sidewalk of Division street, a few feet from St. Paul street, and in front of their block, the defendants had constructed and maintained an opening in the sidewalk twenty-four by thirty-four inches in size, with a stairway leading therefrom down into the cellar or basement of their block of buildings. The opening in the walk was covered by an iron flap or door attached to one side of the opening by hinges, and .so arranged that it could be opened so as to admit persons into the cellar or basement of the buildings. The cfoor, when closed, was on a level with the sidewalk.

About seven o’clock on the evening of the 23d of November, 1886, the plaintiff was hastily passing along the sidewalk on Division street, in front of the defendants’ building, and ran against this door which had been raised and was partly open; be fell over "the door and struck his head against an iron boiler which the defendants had placed upon the sidewalk near the opening, receiving injuries, and brought this action against the defendants to recover for his damages.

This case has been before this court on a former appeal from a judgment which was entered in favor of the defendants against the plaintiff upon a nonsuit granted at the circuit. -

The judgment was reversed and a new trial granted, the court holding that there were questions of fact which should! have been submitted to the jury. The decision thus made is reported in 31 ’ St. Rep., 40. That decision substantially disposes of the questions presented by this appeal. Upon the retrial like testimony was introduced as on the first trial, the case was submitted to the jury, and they found a verdict for the plaintiff against the defendants for $200.

The evidence tended to show that the defendants’ employees opened the door covering the hole in the sidewalk on the night in question, and left it in the position it was at the time the plaintiff came in contact with it. The plaintiff testified that after falling over the door he looked down the passage-way and saw one or two men moving about in the cellar; that they had in hand, an ordinary globe lantern, lighted; he did not know who they were.

The defendants had at the time in their employ two engineers by the names of Henry and Sibley Owens. They were accustomed, in the evening after the place of business of the defendants was closed, to open the door in the sidewalk for the purpose of going into the basement to look after the engines. The lid or flap when not in use was kept locked; the engineers had the keys. They were .the only persons who were accustomed to use this passage-way into the basement They were both sworn°as witnesses upon the trial. Sibley Owens testified that be left the basement that night at six o’clock, leaving his brother Henry in the boiler-room. Henry testified that he left the building a few minutes after seven o’clock on the evening of the day in question; that his brother had already left, and he was the last man out. That he himself went out at the door and shut and locked it The-case fails to show who the persons were that the plaintiff saw in the basement, unless it was one or both of the engineers.

The appellants’ counsel contends that there was not sufficient, evidence that the defendants’ employees opened the door on the-night in question to warrant submitting that question to the jury, and suggests that the persons seen by the plaintiff may have been burglars. The conduct of the engineers was in question. If in fact they opened^ and left the door in the condition stated, they were guilty of gross negligence; their veracity as witnesses was,, therefore, for the consideration of the jury.

If burglars entered the building on this occasion, it is quite improbable that they would, while searching the premises, have left, the door open. If they had entered and left the door open it is still more improbable that they would have had with them a lighted globe lantern, exposing themselves and their doings to the-view of people passing along the sidewalk. If the premises were burglarized that evening, the burglars would probably have left, some evidence of their visit about the building.. The plaintiff testified that the accident occurred about seven o’clock, perhaps shortly after seven.

The jury evidently came to the conclusion that either Sibley Owens, in leaving the basement at six o’clock, unintentionally omitted to close the door after passing out, or that Henry Owens-left it open, and that the one who did leave it open, rather than subject himself to censure, chose to deny that he left it open, or that he believed he closed it when in fact he did not. If the defendants’ employees did, in fact, leave the door open, the defendants, it must be conceded, were guilty of negligence. We think the preponderance of evidence tended to show that one of the defendants’ engineers negligently left the door open and caused plaintiff’s injuries.

The question of the plaintiff’s negligence was properly submitted to the jury. We find no errors justifying a reversal of the judgment The judgment and order appealed from should be-affirmed:

Dwight, P. J., and Macomber, J., concur.


text:
    The People ex rel. William B. Moore, Overseer, Resp’t, v. William E. Beehler, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Bastardy—Liability rot affected by death of child.
    The warrant in a bastardy .proceeding could not be served on the defendant until after the death of the cbild, because of his having absconded, from, the jurisdiction of the court. Held, that, notwithstanding the death of the child, he was liable to indemnify the town for any expense it had been put to for its support and burial; that he could not, by fleeing from justice and remaining out of the jurisdiction until his offspring died, escape liability for his misconduct.
    Appeal from an order of judgment of the Monroe county-sessions affirming an order of filiation made by two justices of. the peace in and for the town of Parma in proceedings in bastardy, adjudging the appellant to be the father of a bastard child, and ordering him to pay to the overseer of the poor of that town $129.66 for the support, care, burial and medical attendance of said -child, to reimburse the town of Parma for its expenses on account of the said child to its death on February 3, 1890, and to pay the attorney for the overseer the sum of $54.80 costs, and to enter into an undertaking accordingly.

      George A. Benton, for resp’t; W. Henry Davis, for app’lt.
   Lewis, J.

Mary E. Williamson was delivered of a bastard child in the town of Parma, county of Monroe, on the 12th day of August, 1889. She was a resident of that town, and being unable to support the child, bastardy proceedings were instituted by the overseer of the poor of that town against the appellant as the father of the child on the 23d day of August, 1889.

The warrant for his arrest was delivered to an officer, who was not then able to serve it because appellant had absconded from the jurisdiction of the court He returned into the state about the 1st of April, 1890, and on the seventh day of that month he was -arrested and brought before two magistrates of that town, and on the 23d of April, 1890, tlie magistrate inquired into the charge against the appellant, and adjudged him to be the father of the bastard child, and determined that he pay to the overseer ■of the poor, for the support, care, burial and medical attendance of the child, $129.66; and they certified that the reasonable costs of apprehending and securing the appellant, and of the order of filiation, was the sum of $64.65.

After the delivery of the warrant to the officer, but prior to the apprehension and trial of the defendant, the child died. The appellant appealed from the order of the magistrates to the court of •sessions of Monroe county, which court after hearing the proofs •and allegation of the parties, affirmed the order of filiation and .adjudged that the appellant pay to the attorney for the overseer the sum of $54.80 costs of the appeal, and that he enter into an undertaking to the effect that he will pay $129.66, the amount of the judgment below, and that he will indemnify the town for such .sum incurred for the support of the child.

The appellant appealed to this court from the order and judgment. There was abundant evidence to show that the appellant was the father of the child; and the sum he was adjudged to pay was not excessive.

The only question worthy of any consideration arises from the circumstance that the child died before the authorities were able to cause the arrest and trial of the appellant. Section 840 of the Code of Criminal Procedure provides that, “If a woman be delivered of a bastard * * * which is chargeable to a town * * * an overseer of the poor * * * must apply to a .justice of the peace * * * to inquire into the facts of the case.”

By § 841: “A magistrate must,by the examination of the woman ■on oath, and any other testimony which may be offered, ascertain the father of the bastard, and must issue his warrant directed to a peace officer of the county commanding him, without delay, to apprehend the father and bring him before the justice of the peace for the purpose of having an adjudication as to the filiation of the bastard.” Section 851 provides that “ If the defendant be-adjudged to be the father he must immediately pay the amount certified for the costs of the arrest and of the order of filiation and enter into an undertaking * * * that he will indemnify the town where the bastard was born, which may have been or may be put to the expense for the support of the bastard or its mother during her confinement"

The overseer of the poor assumed the care and supervision of the child, he expended the amount the appellant was adjudged to' pay for its support and care and its funeral expenses. The child was an actual charge upon the town when the warrant was issued for the appellaht’s arrest; and had he then submitted himself to the-jurisdiction of the court, the trial would .have taken place while the ' child was living. The statute is a remedial one. Its purpose is to compel the father of a bastard child to indemnify the town for the expenses incurred for its support. The father'and mother of such a child are liable for its support; and in case of their neg-' lect or inability it must be supported by the county, city or town to which it is "chargeable. The mother in this case was unable to-support her child. Its father fled from the state, and neglected to-support it

The construction contended for by the appellant would be an exceedingly narrow one to give to this remedial statute. It would be a miscarriage of justice if the appellant by fleeing from jus- ' tice, and remaining out of the jurisdiction of the court until his-offspring died, could thereby thwart the purpose of the statute- and escape liability for his misconduct

The courts below, we think, correctly held that, notwithstanding the death of the child before the trial, the appellant was liable-to indemnify the town for any expense it had been put to for its support and burial.

We are not aware of any adjudication of this question in our own state. Under statutes very similar to our own it was held in Meredith v. Wall, 14 Allen, 155; Smith v. Lint, 37 Maine, 546; Maxwell v. Campbell, 8 Ohio St., 265; Hauskins v. People, 82 Ill., 193; Evans v. The State, 58 Ind., 587, that the father was liable-for such expenses in case of the death of the child before the proceedings against him were instituted.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.