author: Davis, P. J., Baekett, J.:

text:
    PEOPLE OF THE STATE OF NEW YORK ex rel. ROBERT A. VAN WYCK and others, v. DE WITT C. WHEELER, STEPHEN B. FRENCH, CHARLES F. MACLEAN AND JAMES E. MORRISON.

      Inspectors of election in New York — are undo' sect. 13 of chap. 675 of 1872 to be chosen from the two great parties each as an entirety, without regard to subordinate factions — suboi’dinate factions in a party, how represented — Failure to appoint within the time specified will not disfranchise the city at the ensuing election — when a mandamus will issue to compel an appointment.

    Section 13 of chapter 675 of 1872, in relation to elections in the city of New York, provides that all inspectors of election and poll clerks in said city shall he appointed by the hoard of police. It then provides that “it shall he the duty of the said hoard of police in the months of August and September * * * in each succeeding year, for each election district in, said city and county, to select to serve as inspectors of election, four persons (two of whom, on State issues, shall he of different political faith and opinions from their associates, and those appointed to represent the party in political minority on State issues in the said city and county, to he named solely hy such commissioner, or such of the “commissioners of police” in said hoard as are the representatives of such political minority), who” shall have certain qualifications prescribed hy the statute. There exist a republican organization and two democratic organizations — the Tammany Hall democracy and the Irving Hall democracy — in the city of New York. On September 26, 1879, an order was made, returnable at a General Term to he held on September 29,1879, requiring the hoard of police commissioners to show cause why a mandamus should not issue compelling them to select, as inspectors of elections, certain persons named hy the Tammany Hall democratic organization of the city of New York, or other persons belonging to such organization.

      Held, that it was the duty of the hoard to take into consideration only the two dominant political parties into which the people of the State were divided— parties organized and acting on broad State issues — without regard to subordinate or inferior organizations or factions, whether belonging partially qr wholly to either of the great parties, or entirely independent of them; that the hoard should not look solely to that portion of either of the two xoarties which supported the entire State ticket and should not exclude from consideration a portion of either party which, under a local organization, rejected a single one of the candidates nominated hy the State convention.
    That the application for a mandamus should he denied as premature, for the reason that the hoard might appoint inspectors at any time before October first.

      Semble, that the failure of the hoard to appoint inspectors before October first would not operate to disfranchise the city of New York at the election to he held in the November following, hut that the court would, at any time after October first, entertain an application for a numdamus returnable mstwnter to compel the board to make such appointments.
    On October 1,1879, an order was made, returnable on October second at General Term, requiring the respondents the board of police commissioners of the city of New York to proceed with and complete their appointment of inspectors. At the hearing it appeared that there had been submitted to the board three lists of the names of persons, asserted to be qualified to act as inspectors, one being submitted by the republican organization in the city of New York, one by the democratic organization in the city of New York known as the Tammany Hall democracy, and the third by the democratic organization in the city of New York known as the Irving Hall or anti-Tammany Democracy. The republican party was in a political minority in the city of New York. The anti-Tammany or Irving Hall democracy supported all the candidates nominated by the regular democratic State convention at Syracuse. The Tammany Hall democracy supported all the said candidates except the candidate for governor, for which office they supported another person. It further appeared that at the last previous election the electors represented, by the republican organization, numbered about 51,000, those represented by the Tammany Hall organization about 60,000, and those by the Irving Hall democracy about 29,000. Two inspectors of election for each district had been selected by the police board from the list submitted by the rexrablican organization, and one inspector for each district from the list submitted by the Irving Hall democracy. Two of the members of the board claimed that the remaining inspectors should be taken from the list submitted by Tammany Hall, and the other two that they' should be taken from the fist submitted by the Irving Hall democracy.
    . Held, that a mandamus should issue compelling the remaining inspectors to be selected from the Tammany Hall democracy.
    ArPLiCATiON for a mandamus to compel the board, of police of tbe city of New York to appoint certain persons as inspectors of election, under section 13 of chapter 675 of 1872.
    That section is as follows :
    “ § 13. All inspectors of election and poll-clerks, in the city and county of New York, shall hereafter be selected and appointed by the board of police, who shall also have power to make all necessary removals and transfers, and fill all vacancies which may, from any cause, arise. It shall be the duty of the said board of police in the months of August and September, in the year one thousand eight hundred and seventy-two, and annually in the months of August and September in each succeeding year, for each election district in said city and comity, to select to serve as inspectors of election, four persons (two of whom, on State issues, shall be of different political faith and opinions from their associates, and those appointed to represent the party in political minority on State issues in the said city and county to be named solely by such commissioner, or such of the “commissioners of police” in ■ said board as are the representatives of such political minority), who shall be citizens of the United States and of the State of New York, of good character, and able to read, write and speak the English language understandingly, qualified voters in said city and county, and not candidates for any office to be voted for by the electors of the district for which they shall be selected; but no person shall be required to be a resident or voter in the election district for which he shall be appointed an inspector.”
    It appeared that three lists of proposed inspectors of election had been submitted to the police board, one by the republican organization in the city of New York, one by the democratic organization in the said city known as the Tammany Hall democracy, and the third by the democratic organization in the said city known as the Irving Hall or anti-Tammany democracy. The two latter organ- ■ izations supported all the candidates for State offices nominated at the State convention except the nominee for governor. The Irving Hall democracy supported the nominee of the State convention, Lucius Eobinson, and the Tammany Hall organization supported John Kelly thei’efor. It appeared that at the last election the number of electors represented by the republican organization was 51,000, the number represented by Tammany Hall about 60,000, and the number represented by Irving Hall about 29,000.
    On September 26, 1879, upon the application of the relator, a committee acting in behalf of Tammany Hall, an order was made , by Mr. Justice Westbuook, returnable on September twenty-ninth, at a General Term to be held in the court house in New York, requiring the board of police, the respondents, in the words following, to show cause why they should not “ be compelled forthwith to appoint as inspectors of election in the city of New York, for the year 1879, the persons named as qualified for such inspectors by the regular democratic republican organization, commonly known as the Tammany Hall democracy, or other persons belonging to said organization, and having the same political faith and opinions and who possess the qualifications required by law for inspectors of election, or why a writ of mandamus should not issue directed to them in the usual form and requiring them to do the acts aforesaid, or why such other or further writ or order should not be issued as may be just, and in the meantime, until the hearing and determination of this matter, the said police commissioners and said board of police are enjoined and restrained from appointing any other persons inspectors of election than those belonging to the regular republican party of the State of New York, or to the regular democratic republican party, as represented by the organization known as the Tammany Hall democracy.”
    On September twenty-seventh it was ordered by Mr. Justice ■"Westbrook “ that so much of the prior order of September 26, 18 79, as restrains and enj oins the police commissioners and the board of police from appointing inspectors of election and poll-clerks for the city and county of New York, in pursuance of and in accordance with the requirement of section 13 of chapter 675 of the Laws of 1872, is vacated, and said order is modified, so as to require the board of police to show cause at the time and place, and before the tribunal specified in such prior order, why they should not be compelled to select' such inspectors as said act requires, and whether or not the persons referred to in said prior order are the persons who should be appointed.”

      D. D. Field and E. W. Stoughton, for the relators.

      F. Lynde Stetson and J. FT. Bangs, for the respondents.

      Elilm Boot, for the respondents, French and Wheeler.
   After hearing the arguments of counsel and due deliberation, the court, by

Davis, P. J.,

delivered the following oral .opinion:

“ The court has reached a conclusion in this case which, under its peculiar exigencies, it feels bound to announce at this time without occupying any time in writing an opinion. The statute under which the question is presented to the court, in its thirteenth section, has special relation to a system intended to protect the rights of minorities. It was adopted at a time when, as now, the people of the State and of this city were divided into two dominant political parties. It was intended to take into consideration those two parties without respect to subordinate or inferior organizations or factions, either partially or wholly belonging to either of the great parties, or independent in themselves. Regarding these two great parties, it assumed, what would ordinarily be the case, that one or the other of them would have a majority m this city, and consequently control of the body authorized to appoint the inspectors of election, to wit, the Board of commissioners of police. With that view, and, of course, without special regard to the party that might at any time be in power, it provides for the protection of the minority party, by securing to it an almost absolute power of choosing for itself one-half of each board of iuspectors of election; hence the act provides (and of course its operation would be the same whether the democratic party retained or lost its power; whether the republican party continued to bo a minority or became a majority) that the board of commissioners, however composed, shall, in selecting inspectors of election, select four persons for each election district. It recognizes the right of the minority party in the city, distinguished by its relation to State issues, to have one-half of each board ; and, therefore, it declares that of the four persons selected, two of them on State issues shall be of different political faith and opinions from their associates, and those appointed to represent the party in political minority on State issues in said city and county shall be named solely by such commissioners of police as are the representatives of such political minority. It prescribes the qualifications that all the inspectors of election shall possess, and in a case where the commissioners who represent the minority have agreed upon two inspectors in each election district*, the only question left to the board is to determine whether or not the two thus selected have the qualifications prescribed by the act; that is to say, whether they are citizens of the United. States and of the State of New York, are persons of good character, are able to read, write and speak the English language intelligently, are qualified voters in the city and county, and are not candidates for any office to be voted for by the people in the election district for which they are selected.

When these qualifications are ascertained to the satisfaction of the board to exist, then the obligation to appoint the person selected by the minority becomes imperative, and it is the duty of the board to make the appointment of the two thus selected as inspectors.

Upon this question the counsel in the case have substantially agreed, but the main and important question here, arises upon the construction of the act as it affects the majority party. The act assumes and proceeds upon the general idea, that the majority party will take care of itself and be able to do so by having possession of power. It, therefore, does not adopt the same language in respect to the selection of inspectors who shall represent the majority, but it assumes inferentially and proceeds upon the idea that the two who are to be selected must be selected by the board from the majority party.

Now the question that arises upon that fair and just inference of the law is, what is meant by the majority party from which thiq selection is to be made ? Was it intended that the majority party may be any local party formed for the purpose of local elections ? Undoubtedly not; because the test adopted by the act for the purpose of determining what shall be considered the minority party has a far broader scope, and has, in fact, no reference to mere local questions. It describes a party organized and acting upon broad State issues; in other words, a State party having relations throughout the whole political organization known as the State of New York. And, undoubtedly, the act intends, with reference to the majority party, to keep up the same basis or standard for the selection of the representatives of that party : to wit, an organization having affiliations and relations politically throughout the great political division known by the name of the State of New York. From that view it would follow that when the commissioners of the board of police come to perform their duty under the act they are to look upon the democratic party, located in the city as to the residence of its members, in its relation to the whole party as an organization throughout the State, and to keep in view those relations and to look upon the organization and membership of that party, not as a local body but as a general party organization.

Now, in this case it seems to us, that the commissioners have fallen into an error in supposing that in selecting inspectors from the democratic party, they may look solely at that portion of the party which, in the city of New York, supports the entire democratic ticket. That is to say, they exclude, as not entitled to consideration in selecting the board of inspectors, that great body of democrats who, under one local organization, see fit to reject a single one of the nominees of the party in the State, while they retain their relations to State issues and support all the other nominees upon the State ticket.

The effect of such a view would be, if practically carried out, that if every democrat in the city of New York were to retain affiliation with Tammany Hall, and to declare that, for personal reasons, he would not vote for the nominee of the democratic convention for governor, there would be no body of democrats in the city representing a majority from whom any inspectors could be selected. If- all the democrats of the city should join the Tammany Hall organization, in its determination not to vote for Governor Robinson, so that not one man could be found who intended to vote for -him, there would be no party from which could be selected any inspector. Although the whole body on “ State issues and the rest of the ticket retained affiliation with the democratic party of the State. It would follow also, if that view be correct, that if out of 90,000 democratic voters of the city of New York only two men m each election district could be found 'who intended to vote for the nominee for governor of the Syracuse, convention, and all the rest intended to vote against him for their personal reasons, in that case those two would alone constitute a majority party from which aselection could be made, and they would virtually, by adhesion to the nomination of Governor Robinson, appoint tfiemselves to the place of inspectors. That, in our judgment, is not the policy or construction of the law.

The duty of the commissioners in making this selection is to look upon the democratic party of this city as an entirety; they have no right, as we think, to say: “We will reject Tammany Hall and its followers from all consideration because they do not support the nomination of Governor Robinson,” and they would have no right to reject Irving Hall from all consideration, because it may not support the regular democratic nominees for local offices. On the contrary, the policy of the law requires the board of police to look at the democratic party with a view to its relations to State issues, as a general organization and as a whole, and select from it, without respect to local divisions, temporary or permanent, competent and proper men to per-:orm the duty of inspectors. So that the board was in error -¡vlien it undertook to say that Tammany Hall, its followers and supporters shall have no consideration in selecting suitable men for the office of inspector ; but it should have taken the whole body of the democratic party viewed as a State, and not as a county party, and have passed upon the merits of such fit men as the board might find in connection with that whole body — whether of Tammany Hall or Irving Hall, or what not; and, without choosing proper men in that way the commissioners would not, in our judgment, perform the duty imposed upon them by law. It seems quite clear, from the papers before us, that they have fallen into a mistake — a part of the board, at least — in supposing that the selection was to be made from one local organization voting the entire State ticket, excluding another organization Avho reject one of the nominees on that ticket. The mere fact that, for personal reasons, a large body of democrats may see fit to vote for some one else for governor than the regular nominee does not, in our judgment, determine the question whether or not they are any longer to bo considered democrats and as such entitled to the respectful consideration which the law requires to be given to the whole body of that great party.

But, while presenting those general considerations, which we hope will have some possible effect on the action of the board, we are obliged to determine this application on other grounds. In the first place, it is proper for the court to say that it is quite a mistake to suppose that the failure of the board of commissioners to appoint the inspectors before the first of October will operate to disfranchise the city of New York. The board of police is an administrative body of officers empowered to discharge certain functions under the law. It is their duty to perform those functi ons. The law has fixed the time within which that duty shall be completely executed. But it is a universal principle of law that where a right of the people is concerned, the failure of administrative officers to perform their duties within a prescribed time shall not defeat that right. It will be impossible for this board of commissioners to defeat the right to the elective franchise in this city by their neglect or failure to perform the duty of appointing inspectors within the time prescribed. A failure of that kind would simply subject them to a process of the court to compel them immediately to make the selection the law requires, and such selection would have the same effect made after October first, as though made before, because the law will not tolerate the idea that the failure of duty on the part of an administrative or executive officer shall defeat a popular right. Therefore, it may be understood, as well by the public as by the board of commissioners, that if the appointments are not made before the first of October, this court will not hesitate to entertain an application for a mandamus returnable instanter to compel the performance of that duty, so that there shall be no failure of any election to be held in the city. But we are compelled, in our view of the law, to deny the present application, for this reason : The law has appointed these officers to discharge certain official duties, it has prescribed the time within which the duties are to be performed. Within that period their power of performance is as perfect on one day as on another. The question now arising is in law no different than it would have been if the same motion had been made on the second or any other day in August, or the second or any other day in September. The board of commissioners, in short, have until the first day of October to perform their duty. The papers before us show that they have, at their various meetings, been attempting, in the way in which they have chosen to act, to perform their duty. Now, if the papers showed that the board refused to act at all, or refused to convene for the purpose of acting, then clearly it would be our duty to grant a mandamus to put the board in motion and compel them to meet and act under the law. The board has taken no such ground. It has simply failed because of the inability of the commissioners among themselves to agree and decide upon what men or class of men shall be appointed. They have reached a point, it is true, where, if they adhere obstinately to their present line of action, there will be a failure to appoint; but the court cannot assume that a board of officers, charged with certain duties, will adhere to wrongful action, or to any particular line of action during the whole time within which they are required to perform those duties. We must assume, on the contrary, that the board will, within the period prescribed, do its duty. That is the legal presumption,' and we have no reason, that operates in law as an absolute conclusion, to suppose that this board will not proceed and make the appointments, selecting their appointees, under the construction that the court thinks ought to be given to the law, that is, taking from the body of the democratic party good men and true, without regard to local organizations or divisions. Between this and to-morrow night the board may wholly change its views and make selections in accordance with these suggestions. They have a perfect right to that period, and therefore a writ of mandamus would be improperly issued prior to the expiration of that time. But as I, have already said, with the concurrence of my brethren, we shall not hesitate, if the board fails in its duty, to set them in motion at the expiration of the period fixed by law.’7

The members of the board of police differed as to the construction to be given to this opinion. Two inspectors for each district, selected from the list submitted by the republican organization, were appointed, and one inspector selected from the list submitted by the Irving Hall democracy was appointed, but the board were unable to agree upon the selection of the fourth inspector, two commissioners claiming it should be taken from the list submitted by Tammany Hall and the other two refusing to accede thereto. On the application of the same relators, an- order was made on October 1, 1879, returnable at a General Term, to be held on October second, requiring the respondents to show cause why they should not be compelled to appoint one additional inspector of Section from each district in the city as required by law.

After the hearing of the arguments of counsel and due deliberation the court, by Davis, P. J., delivered the following oral opinion :

“ The court, in this case, have reached a unanimous conclusion as to the true construction of the law, and as to the duty of the board of police in executing it.

“We had occasion the other day to express our opinion of the construction of the law, to the effect that in the appointment of the representatives of the majority party in the board of inspectors of election, it was the duty of that board to consider the dmocratic party as an entirety, with a view only to its relations to the democracy of the State, without respect to its relations to local organizations. We still have no doubt that that is the true construction of the law, and that it was the duty of the board in selecting the inspectors, who represent the majority party, to have secured to the democracy, as a whole, a just and fair representation. The policy of the law was to secure such representation as would secure fairness in the election and honesty in the count and the returns and, for that purpose, it was intended that the representation of the majority party should not be limited to factions in that party, but fairly extended to the whole. Since the construction given by the opinion of the court pronounced on that occasion, the board have proceeded to take further action. They have appointed, in conformity with their duty, the representatives of the minority party, and all questions touching that representation are therefore eliminated from the case. They have not proceeded in respect to the representatives of the majority party, in conformity with the opinion pronounced by the court. On the contrary, they have appointed, as it now appears, from a section or faction of that party, without considering the party as a whole, one inspector for each election district. In making that appointment only one-third, or in round numbers, 30,000 democrats of the city (referring to the divisions between these organizations at the last election), have been allowed any representation or consideration whatever.

“Two-thirds are, without representation in these appointments, except as to a few members that have since been appointed. It was the duty of the board in making the selection to have given representation to the whole — that is to say, to have selected from the combined local organizations proper and fit men, without regard to their sectional or local associations. But these appointments have been made, and it is not in the power of the court, by this process, to interfere with them. There are left a large number of districts in which the fourth inspector remains yet to be appointed. What in fairness, and in common justice ought .to be done iii respect to that inspector ?

“ The court think unanimously that it was the duty of the board, after having taken such action as was taken to secure to the minority of the majority party inspectors of election, representing them to the extent of one in each district, under a fair construction of the law for the purpose of securing representation to the whole body of the majority party, to have proceeded and selected the remammg inspectors from the organization known as the Tammany democracy.

“ While we are of opinion, without any dissent or doubt, that that is the true construction of the law and ought to be carried out, we have nevertheless been unable to agree among ourselves with unanimity as to the form of the order that should be issued. We all concur that a mandamus should issue in the case.

“ As to its form some doubts are entertained by members of thg court, and that question will be reserved for the further consider, ation of the court until it again convene at the adjourned hour to-morrow. But we thought it proper to express the views at which we have arrived on the main and material questions of the case for the purpose, if possible, of inducing the board of commissioners to terminate this unpleasant and extremely exciting controversy, which, in our judgment, is after all of no real practical value.

“We have, therefore, thought it best to announce at this time our conclusions of law and our view of the duty of the board, trusting that the board will proceed at their session to-morrow morning to carry out a construction of the law which will, we think, commend itself to every intelligent and unbiased mind.

“ If that shall unfortunately not be the case the court will be compelled, of course, to issue such writ as we may be able to agree upon to effectuate the general scope of the decision now announced.

“ The court will, therefore, stand adjourned until eleven o’clock to-morrow morning.”

On the coming in of the court at the adjourned hour the following oral opinion was delivered by

Baekett, J.:

“The difficulty, and the only difficulty in the mind of the court, was as to the power by mandamus to remedy the evil complained of. We were mindful of the well settled rule of law that while it was within the power of the court to direct a subordinate body to act, it was not within its power to direct the manner in which it should act. We were very clear that we could not interfere with the proper exercise of the discretion of the board. On the other hand, we did not doubt that we had the power to construe the law in question, and that it was the duty of .the board, in good faith, to exercise its discretion in the light of that judicial construction. How, then, to enforce our construction, and yet to leave the board perfectly free in the exercise of its legitimate discretion, was the question.

I find from an examination of the cases to which the learned counsel for the corporation inferred us, that the courts have limited the discretion of subordinate bodies so far as to keep them within the line of judicial construction.

For instance, in the Case of the Assessors (Howland v. Eldridge) to which reference has been made (43 N. Y., 457), the court held that while it was not competent to compel the assessors to make a particular affidavit, it had, in the language of Mr. Justice Geovek, the power to compel them to proceed and examine the evidence, and determine the fact, and, if from their determination it appeared that a certain consent had been given, to make an affidavit in accordance therewith.

So in the case of The People ex rel. Opdyke v. Brennan (39 Barb., 651), there was a difference of opinion between the mayor and the comptroller as to what the law meant; the mayor claiming that it meant four daily papers having the largest circulation anywhere, and the comptroller that it meant four daily papers having the largest circulation in the city. The court at Special Term ordered the comptroller to join with the mayor in designating four papers having the largest circulation anywhere, and named them. The General Term, however, held that while it was competent to tell the mayor and comptroller that the law meant four daily papers having the largest circulation anywhere, and not merely in the city of New York, yet it was not competent for the court to name the particular papers. It was for the court to construe the law, and for the officers to determine the fact under such construction. Tho order was, therefore, modified so as merely to require the mayor and comptroller to meet and select the four daily papers having the largest circulation anywhere. The law was settled for their guidance, and they were bound in good faith to consider the evidence and then determine which were the papers coming within the construction.

So, in the case of The People ex rel. Francis v. The City of Troy, lately decided by the Court of Appeals (MSS. op. Sept. 16, 1879), the true rule is stated to be as laid down in The People ex rel. Opdyke v. Brennan.

It seems to me, therefore, as the result of these authorities that it was our duty to construe the law under which this board was acting, and that it was them duty in good faith (not seeking to evade our construction, but loyally to give it effect) to exercise their discretion in the light of such judicial construction and within the prescribed limits.

That being, so, what remains ? We construed the law on a prior occasion. We held that it meant a selection of two inspectors of election for each district from the entire body of the democratic voters in the county of New York. Wo held that that was the intention of the Legislature and the true meaning of the act, and we instructed the board to proceed upon that basis. In thus deciding, we did not instruct the board to select particular persons. On the contrary, wo left their discretion absolutely free. To have attempted to specify the persons who should be selected would, in my judgment, have amounted to usurpation of the legitimate functions of the board.

It was our province to instruct them to select from a class, construing the law so as clearly to define the class, and then leaving them the fullest exercise of discretion in the selection from such class.

How, then, did they obey ? Not by selecting two inspectors for each district from the (we will say in round numbers) 90,000 democratic voters in the county of New York, but by selecting one in each district exclusively from a section representing, we will say, in round numbers, some 80,000 of these voters.

They have necessarily, therefore, excluded from all consideration the remaining section, consisting of some 60,000 voters.

What is our duty under these circumstances ? Clearly to enforce our original construction and instruction. And how, in the present position of affairs, is that to be done practically ? If the board had as yet appointed no inspectors from the majority party in the county, then I apprehend our duty would have been limited to directing them to select two from the entire majority party without regard to factions or sections. But that is now impracticable, inasmuch as the board has ignored our suggestions and appointed so far exclusively from one faction or section. In consequence of this course, there is no practical method left of enforcing our original construction (as was said by the presiding justice last night), except to require the board to select the other inspector from the section that remains. One section has been exclusively considered, and is represented — as evidenced by the action of the board; the other section has not been considered and is entirely unrepresented.

The papers before us show conclusively that these two sections constitute the entire majority party in the city and county. If that be not so, in fact, there was ample opportunity for denial. It comes to this. We instructed the board to select from one great class. They failed to do this. They divided this great class into two classes. They gave one of such classes representation. We now say that they must do likewise for the other. Thus, and thus alone, can the great class originally contemplated receive full consideration and representation. We cannot now permit the selection of the remaining inspector from the entire body, otherwise the board might choose again to exclude the unrepresented section. On the contrary, the logic of the position, which the board has made for itself, necessitates our limiting them to the unrepresented class.

Wo do not, however, interfere with their discretion in selecting from this class. We do not say that they shall appoint 778 persons named by any one. Their judgment is open, free, unbiased; but they must exercise it in good faith, in the spirit of submission, and not that of evasion.

We simply tell them that out of this large remaining class they must exercise their honest judgment and make the selection. When that is done the entire majority party in this county will be represented; the law, as we construe it, will be enforced ; and yet the judgment of these commissioners will not, in the slightest degree, have been fettered.”


source: Caselaw Access Project

author: DaNIels, J.:

license: Public Domain

text:
    EDWARD ROWE and others, Respondents, v. CHARLES L. GUILLEAUME, Appellant.

      Discharge in bankruptcy — claim for conversion of property barren by — section 5117 of the United, States Revised Statutes.

    The plaintiffs delivered to the defendant §10,000, either to be used in purchasing’ goods for the plaintiffs, or to be returned to them. The complaint alleged that the defendant had neither purchased goods or returned the money, but had converted it to his own use. The defendant, as a defence to the action, relied upon a discharge in bankruptcy.

      Held, that though the action was in effect one for the conversion of the plaintiffs property, the claim therefor was provable in bankruptcy and was barred by a discharge therein, unless there was intentional fraud in the misuse of the plaintiffs’ funds.
    Section 5117 of the United States Revised Statutes, excepting certain debts from the effect of a discharge in bankruptcy, only applies to those created by a positive and intentional fraud on the part of the debtor.
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      George W. Van Slyc/c, for the appellant.
    The plaintiffs’ claim, even if of a fiduciary character, is barred by the discharge in bankruptcy. (Chapman v. Forsyth et at, 2 How. [U. S.], 202; Afead y. Clark, 5 Otto, 704; Keime v. Graff\ 17 N. B. R., B19; Ousley v. Cobin, 15 id., 489; Connor v. Cothrane, 104 Mass., 245; In re Smith et al., 18 N. B. R., 24; Grover <& Baker v. Clinton, 8 id., 312; Anstill v. Crawford, 7 Ala., 335; Haymen v. Pond, 7 Met., 328; Phillips v. Bussell, 42 Maine, 360.)

      A. Blumenstiel, for tbe respondents.
    The defendant, having misapplied the moneys, was guilty of a breach of trust imposed upon him. (4 E. D. Smith, 139; Scudder v. Shields, 17 How., 420; 17 Barb., 646; Frost v. McCarger, 14 How., 136; Barrett v. Grade, 34 Barb., 20; Dubois v. Thompson, 25 How., 417; Wolf v. Brouwer, 5 Robertson, 601 [in point]; see also Dugold Y. Edwards, 50 Barb., 288.) The defendant was not a factor, entitled to mingle this money with his own. The defendant was the agent of the plaintiffs to use the money in a particular way and for a special purpose. (Matteson v. Kellogg,- 15 Ill., 547; Flagg y. Ely, 1 Edm.; see cases 208; In re Seymour, 1 R. R., 29; In re Kimball, 2 id., 204, affirmed by Circuit Court; Lemeke Y. Booth, 5 B. R., 351; Ifead-iuell v. Halloway, 12 id., 61; Meader Y. Sharpe, 14 id., 492; Johnson v. Werden, 13 id., 335.)
   DaNIels, J.:

The cause of action set forth in the complaint was for the sum of $10,000, delivered by the plaintiffs to the defendant, to be used by him in the purchase of goods for them, for which he was to account to them or return the money. This money, it was alleged, the defendant had converted to his own use, and that he made no return of either the goods to be purchased with it or of the money itself. The material allegations of the complaint were denied by the answer, and the defendant further relied, by way of defence, upon his discharge in bankruptcy. Upon this part of the case the important point which was made was, whether the demand was one which could be discharged under the operation of the bankrupt laws. The case, as the evidence tended to disclose it, was not one of an unusual nature. It consisted of the fact that, so much money had been delivered to the defendant to be used by him for the benefit of the plaintiffs, and -which he afterwards applied to his own. use. This involved, on his part, a conversion of the plaintiffs’ property, and was sufficient, in the absence of this discharge, to justify an action of trover on their part against him. But demands of that nature were made provable in the proceedings taken by the defendant for his discharge in bankruptcy. (U. S. Revised Statutes, 983, § 5067.) By that section it was in terms provided that all demands against the bankrupt for or on account of any goods or chattels wrongfully taken, converted or withheld by him might be proved, and allowed as debts to the amount of the value of the property so taken or withheld, with interest, and this appears to have been a demand of that character.

By another provision of the bankrupt law, it was further provided that a discharge in bankruptcy duly granted shall, subject to the limitations imposed by the two preceding sections, release the bankrupt ■ from all debts, claims, liabilities and demands which were or may have been proved against his estate in bankruptcy. (Id., 993, § 5119.)

No objection has been taken in this case to the regularity of the bankrupt’s proceedings in which his discharge was obtained, but it is claimed under the provisions referred to by this section, that its operation should be so limited as to exclude a claim of this description. The provision upon which that position has been taken is that made by the preceding section 5117, which declares that no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or "while acting in any fiduciary character, shall be discharged by proceedings in bankruptcy, and it is urged that the demand in this case was a debt so created, and by the actual as distinguished from the constructive fraud of the defendant. In order to exclude it from the effect of the discharge, as this section has been construed, a positive and intentional fraud on the part Of the debtor seems to have been contemplated. (Neal v. Clark, 95 U. S. Sup. Ct. Rep., 704.) In this respect the same construction was applied which was given to a somewhat similar section of the preceding law by the case of Chapman v. Forsyth (2 How., 202). This subject has also been furthered considered by a recent decision of the Court of Appeals, made in the case of Henrequin v. Clews (MS.), in which these authorities have been applied, and so far extended as to include actions for the conversion of property. That was an action like the present one, for the conversion of property, and it was held to be the effect of these provisions of the bankrupt law to discharge the debtor from liability for such a cause of action. That case, neither in its facts nor in its principle, seems to be distinguishable from the present one.

This decision appears to be so broad as to include all ordinary cases for the conversion of property, and for that reason it should be followed, as controlling, in the disposition which should be now made of the appeal in this case. Allowing it to have that effect the result seems to be unavoidable, that the judgment and ordei should be reversed and a new trial ordered, with costs to abide the'event, which will afford the parties an opportunity of contesting the effect of the discharge, in view of these authorities, by placing the case, if that can be sustained, upon the precise ground of an actually intended fraud in the misuse of the plaintiff’s funds.

Beady, P. J., concurred.

Present — Beady, P. J., and DaNiels, J.

Judgment reversed, new trial ordered, with costs to abide event.


author: DANIELS, J. :

text:
    DAVID PENDER, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Chapter 475 of 1872 — who competent to serve as a juror under.

    'When a person is competent to sit as a juror in a criminal case under chapter 475 of 1872, although he has read an account of the crime in the newspapers and has formed an opinion as to the prisoner’s guilt therefrom, considered.
    Writ of Error to the Court of General Sessions of the city and. county of New York, to review the conviction of the plaintiff in error of the crime of robbery.

      William F. Howe, for the plaintiff in error.

      Benjamin K. Phelps, district attorney, for the People.
   DANIELS, J. :

The bill of exceptions made in this case contains only so much of the evidence as related to the competency of the jurors who were sworn to try the prisoner. No question appears to have arisen as to the sufficiency of the proof to establish his guilt, or as to the manner in which the case was submitted to the consideration and decision of the jury. But it has been claimed, in support of the writ of error, that jurors were allowed to try the prisoner who were incompetent on account of previously formed opinions. In the presentation of the case, the objections relied upon relate especially to the jurors Blackedge and Pollon. And according to the evidence returned, if the objections taken can be sustained at all, they wore moro favorably presented by the examination of these two jurors than that of the others mentioned in the bill of exceptions. It appeared upon the examination of the first of these jurors that he had read of the case and formed an opinion which, in the first instance, he stated was decided, but could be removed by the evidence, and that he would require evidence to remove it. This opinion, he stated, was based upon what he had read. Upon the examination of the district attorney, he stated that he could render a verdict according to the evidence, without being biased or predjudiced, by the opinion he had formed. Upon further examination by the prisoner’s counsel he added that ho still did have an opinion which it Avould require evidence to remove, but that opinion he stated would not remain with him, that ho would require evidence. Upon further examination he was asked, “ do you now entertain any such opinion as would influence you at all in rendering your verdict ? ” His answer was, “ not at all, by any means.” A further question was put to him by which he wa3 asked whether his opinion would not interfere with his passing fairly on the merits of the case, if he was sworn as a juror, and his answer was, “not at all.” The court then inquired, “you are impartial -between the People and the prisoner ? ” And his answer was, “yes, sir.” Upon these answers being given the juror was sworn, and allowed to sit in the case. The other juror stated, substantially, in the same manner, that he had formed au opinion, but that it was not a decided opinion, but still it ivas one which would require evidence to remove, and upon further examination he was asked whether it would require evidence in the case to prove the prisoner’s innocence, when he stated- that it would, and that he would enter the jury box with the assumption that the prisoner was guilty. As this evidence stood he was clearly incompetent. But he probably did not comprehend the nature of the inquiry. For upon further examination, by the district attorney ho stated that his opinion was based entirely upon what he had read in the newspapers. He was then asked whether he entertained auy opinion in regard to the transaction which would prevent him from fairly and impartially rendering a verdict on the evidence in the case,'and his answer was, “not at all.” A further question was also put, whether he had any bias or prejudice which would interfere with his rendering a just verdict according to the evidence, and he stated he had none whatever. The court then suggested that it was understood that he would enter the jury box, assuming that the prisoner was guilty, and his answer was, from what he had read in the papers — that it was based entirely on what he had read. He was then asked, if sworn as a juror, whether he would enter the trial assuming that the prisoner was guilty. ■ He answered that he did not know that; that there was certainly doubt about everything in the papers. “I base my belief on what I have read wholly, it irould not have any effect upon my verdict, according to the evidence in the case.”

A further question was then put to him, whether, assuming what he had read to be true, he believed the prisoner guilty, and whether that was all that he meant to say, and he answered, “that is all that I mean to say.” He was then asked, “you enter the jury box without any decided opinion as to the truth or falsity of what you have read ? ” His answer was, “ I do, sir.” And unless you hear from witnesses that are called here evidence to satisfy you of the prisoner’s guilt you would be prepared to acquit him ? ” “I should, sir.” “ You believe you can render a verdict impartially, according to the evidence, without any bias by reason of the impression which you now have ? •” His answer was, “I do, sir.” He was further examined by the counsel for the prisoner as to whether at that moment he had an opinion as to the guilt or innocence of the prisoner, and his answer was that it had made an impression on his mind from what he had read, but he didn’t know that it was true. He was further asked whether he had any prejudice or bias against the prisoner; he stated .he had none whatever.

Upon the completion of this examination he was sworn as a juror in the' case, and to the ruling allowing him to sit, the prisoner’s counsel excepted, as he already had, to a similar ruling allowing the other juror to be sworn. It is evident, from the final answers of both of these jurors, that they either did not weigh or properly understand, thb import of the questions first put to them, concerning the state of their minds, for after being exam-hied and re-examined concerning it, their evidence finally resulted in the statement that they had no fixed or determined opinion which would influence their verdict or bias their judgment. Upon this appearing these two jurors were accepted under the conviction that their evidence had brought them within the provision of chapter 475 of the Laws of 1872.

This act was passed for the purpose of relieving courts of the difficulty, which had long been a growing one, of forming a jury for the trial of important criminal cases. By the general dig-semination of knowledge, through the means of the public press, information of the occurrence and details of great crimes had icen circulated through all classes of the reading community, ^nd persons otherwise competent as jurors were found in that way to have formed opinions which, under the principles of the common law, rendered them incompetent to sit in the trial of such cases. The result was, that the reading and most intelligent portion of the community, to a very great extent, had to be excluded from the trial of offenders against the laws. The obstacle was a growing as well as serious one in the administration of justice, and in some cases rendered it next to impracticable to obtain a jury competent for the trial of a criminal offence, according to the rules of the common law. By those rules a person who had formed, or expressed, an opinion as to the guilt or innocence of the accused was rendered incompetent by that circumstance merely, even though he might, in the exercise of his intelligence and judgment, be able to lay that opinion entirely out of view, and to hear and determine the case according to the evidence given in the progress of the trial. To remove this obstacle the act mentioned was passed, and it was provided by it that the formation or expression of an opinion or impression, in reference to the circumstances, or to the guilt or innocence of a person charged with crime, should not be a sufficient ground of challenge for principal cause to any person otherwise legally qualified, provided the person who had formed or expressed such opinion or impression should declare, on oath, that he verily believed that he could render an impartial verdict according to the evidence submitted to the jury, and that such previously formed opinion or impression would not influence or bias his verdict; and provided, further, that the court should be satisfied that the person proposed as a juror did not entertain such a present opinion as would influence his verict as a juror. The act seems to have been passed on the theory that a qualified juror in other respects could exercise such degree of control over his mind as to prevent it from being influenced or biased in his consideration of the legal evidence heard by him, by an opinion previously formed upon what he had read or heard. It was not assumed that his opinion could or would be obliterated from his mind, but that he would be able to lay it entirely out of sight, and then listen to the evidence, consider the case, and determine its effect without allowing his opinion to enter into his consideration of it. In all of these cases it is true, if the opinion is to be combated by evidence, that it certainly would require evidence to remove or overcome it. That is the nature of all opinions that, for the time being, have been formed and exist in the mind. Every person possessing such an opinion may truly answer that evidence will be required to remove or over-come the opinion if that is to be brought as an element into the trial, and it would then render every person who had formed an opinion an incompetent juror, notwithstanding the provisions of this act. But such was not the theory of the law ; it was, on the contrary, enacted upon the conviction warranted by the experience Of intelligent persons, that they possessed such a degree of control over their opinions as to enable them to lay them aside when that shall become necessary for the purpose of impartially considering, in the more authentic form of sworn evidence, the grounds upon which they may have been formed.

Accordingly the law does not require that the opinion shall be removed, or that it shall cease to exist. But what it does require, upon the other hand, is, that the person having the opinion will be able to satisfy the court by his evidence that he possesses so touch of control over it, and over his mental operations, as will ■enable him to listen to the evidence and determine the case substantially in the same manner as though no opinion had previously found a lodgment in his mind. These jurors in their evidence finally testified to their ability so to control their opinions, and listen to, and weigh the evidence, and there was nothing in their previous examination which should discredit the statement that they finally made. And upon those statements, the court rightly determined that they were competent jurors for the trial of the prisoner.

This act was considered in the case of Thomas v. The People (67 N. Y., 219), where substantially this construction was sustained by the judgment of the court. It was also brought up for consideration in the case of Phelps v. The People (72 N. Y., 334). The evidence of the juror in that case was more decided, as to the existence of his opinion, than that given by either of those sworn in the present case. For he stated that he did not know that ho Could pass upon the evidence as free and unbiased as though he had never heard of the case, and added that he should hardly think he could. Upon being further examined he was asked whether the opinion would bias his mind, and his answer was, that it would in a measure. He was then inquired of by the court whether he believed he could render an impartial verdict according to the evidence, and answered that he thought he could, and a further inquiry was made, -whether his previously formed opinion would not influence or bias his verdict, and he answered that he would not calculate that it should. “ It might,” he added, “ but I would not intend to do it,” and he answered finally that he thought he could render an impartial verdict in the case uninfluenced by any previous impression or opinion. That he would try to do it, and thought he could do it, but it was a hard question to answer by saying that he knew he could. This evidence as to the competency of this juror went further, and was much more decisive than that given concerning either one of the two jurors, sworn in the present case, and yet it was held that he was a competent juror in the case.

These authorities seem to be conclusive on the point now presented on behalf of the prisoner in support of this writ of error and distinguish this case from that of Greenfield v. The People (74 N. Y., 277), since decided by the same tribunal. In this last case* the juror formed his opinion from reading the evidence, wholly or in part, given upon a preceding trial of the same case, and for that reason it was held, as the second trial involved a substantial repetition of that upon which the person had formed his opinion, that he was incompetent in the case, although he swore that he believed he could decide it without being influenced by the opinion he had so formed. This case is exceptional and has been placed entirely upon the existence of an opinion produced by sworn evidence, expected to be repeated upon the impending trial of the prisoner. As to others, where the opinion has been formed by the information conveyed by newspapers, or the statements of individuals, no such residt is to be encountered, for they are not and cannot be reproduced upon the trial. But it must be governed entirely by the ■sworn testimony of the witnesses.

This will generally present a new combination of circumstances, a new channel of information, distinct, separate and entirely independent of that through which the preceding opinion may have been formed; and for that reason the case of an opinion, not formed upon reading sworn evidence relating to the commission of the offence, does not, of itself, render the person incompetent as a juror under this decision; where, as in the present case, his final testimony establishes the fact that he can impartially hear and determine it without being biased or influenced by his preceding opinion.

That was the state of mind of these two jurors. For that reason they were properly accepted and sworn, and the prisoner’s exception to the decision allowing that to be done cannot be sustained. No other point is presented for consideration by the writ of error in this case, and the result is, the conviction must be affirmed.

Biiady. P. J., and INGAlls, J., concurred.

Conviction affirmed.


author: INGALLS, J. :

text:
    JAMES TALCOTT, Plaintiff, v. JACOB HARRIS AND ABRAHAM BERGER, Defendants.

      Composition in bankruptcy— does not avoid a debt fraudulently contracted — Turn and when to avoid the defence of a composition in bankruptcy fraud may be proved in an action on contract — right of defendant to disprove it.

    In an action to recover for goods sold and delivered to tlie defendant, where a money judgment was demanded, the defendant pleaded a composition in bankruptcy, in which the plaintiff had joined.

      Held, that the plaintiff might, upon the trial, put in evidence an order of arrest in the action, and the affidavits upon which it was granted, to prove fraud in the contracting of the debt and thereby avoid the effect of the said compost • tion.

      Held, further, that the defendant was entitled to introduce evidence to disprove such allegation of fraud.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff directed at the circuit.
    The action was brought to recover for goods sold and delivered by the plaintiff to the defendants. The defendants set up as a defence a composition in bankruptcy, in which the plaintiff had joined. The plaintiff put in evidence an order for the arrest of the defendants made in this action and the affidavits in support thereof. The defendants offered evidence to show that they had ' - not been guilty of fraud, which evidence was rejected.

      Hatch & Van Allen, for the plaintiff.
    A discharge in bankruptcy does not affect fraudulent debts. (Section 5117 U. S. Revised Statutes; Frieberg & Worhum v. Popper, 12 Hun, 658; Libbey v. Strasburger, 6 N. Y. Week’y Dig., 265; Ansonia Brass and Copper Co. v. The Lamp Chimney Co., 53 N. Y., 123;, Haas v. O’Brien, 66 id., 603.) Proceedings for a composition in bankruptcy under the act of June 22, 1874 (section 17), do not operate to discharge debts fraudulently contracted ; the language of said section is subject to the limitation of section 5117 of the United States Revised Statutes. (Leggett v. Bartan, 19 Alb. Law Jour., 136 [N. J. Sup. Ct. ]; Reid v. Martin, 4 Hun, 590;-
      Mudge v. Wilmont, reported in Daily Register, August 1, 1878.) The order of arrest and the affidavits upon which the same were granted was part of the proceedings in the action of which the court will take judicial notice, and were properly admitted in evidence, and the order of arrest is res adjudícala on the question of fraud. (Smith v. Knapp, 30 N. Y., 589; TusJca v. O'Brien, 68 id., 446, Humphrey v. Brown, 17 How., 481, 484; Cheney v. Gar-butt, 5 id., 467; Cwnwin v. Freeland, 6 N. Y., 560; Steele v. Palmer, 11 Abb., 62.)

      L. A. Gould and S. M. Ehrlich, for the defendants
   INGALLS, J. :

This action was brought by the plaintiff to recover against the defendants for goods sold and delivered to them by the plaintiff, and a judgment was demanded for $1,241.10, with interest thereon. The defendants, by their answer, interposed as a defence a composition in bankruptcy. Upon the trial the defendants produced evidence in support of such defence, and the plaintiff, in reply thereto, put in evidence subject to the defendants' objection and exception, an order of arrest in the action, with the affidavits upon which the said order was granted. It is insisted by the counsel for the defendants, that the plaintiff having elected to bring this action upon the contract, thereby waived the fraud and could not insist upon it at the trial as an answer to the bankruptcy proceedings. We cannot assent to that proposition. The statute of the United States (section 5117), provides :

“ No debt created by the fraud or embezzlement of the bankrupt. or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged by proceedings in bankruptcy; but the debt may be proved, and the dividend thereon shall be a payment on account of such debt.”

This statute is aimed at fraud in the creation of the debt, and not at the remedy — and hence it becomes immaterial in what pi’ecise form the question is presented to the court; whenever it is shown to the court that such debt was fraudulently contracted by the defendant, the defence must fail. (Libbey v. Strasburger, 6 N. Y. Week’y Dig., 265; Freiberg & Workum v. Popper, 12 Hun, 658; Ansonia B. and C. Co. v. The Lamp C. Co., 53 N. Y., 123 ; Reid v. Martin, 4 Hun, 590.) The plaintiff was at liberty to bring the action in the form which he adopted, and no reply to the answer setting up the bankruptcy proceeding was necessary — and the plaintiff was properly allowed to prove the fraud upon the trial with the view to bring his case within the prohibition of' such statute. It is quite clear from the statute, and the decisions to which we have referred, that the plaintiff did not, by joining in such composition, preclude himself from insisting upon the fraud of the defendants as an answer to the bankruptcy proceedings. The defendants further insist that the order of arrest, and the accompanying affidavits, were improperly received as evidence to establish fraud in the creation of the indebtedness upon which the plaintiff sought to recover. While we do not regard the question entirely free from difficulty, yet we think they were properly received, and unexplained or uncontradicted were sufficient to establish the fraud of the defendants in creating the debt, and justified the court in so holding at the trial. The procuring of the order of arrest was a proceeding in the action, and was based Upon the fraud of the defendants in contracting the debt in question, and we are justified in assuming that the defendants acquiesced in the propriety of such order and the sufficiency of the affidavits upon which it was granted, as no motion had been made to vacate the order previous to the trial. (Smith v. Knapp, 30 N. Y., 589; Humphrey v. Brown, 17 How., 481; Corwin v. Freeland, 6 N. Y., 560.)

The defendants’ counsel requested that the question of fraud should bo submitted to the jury, and that the defendants be allowed to offer evidence in respect thereto. These offers were rejected by the court, and the defendants excepted to the decision. While the form in which these requests were presented aré subject to some criticism, yet we think a substantial right was denied the defendants in not allowing them by evidence at the trial to combat, and if possible, overcome, the force of the affidavits put in evidence by the plaintiffs. The defendants were at liberty to apply to have the order of arrest vacated at any time before the entry of final judgment. (Section 567 of the Code of Civil Procedure.) Consequently, their rights in that respect were not con-eluded at tbe time of tbe trial. When tbe plaintiff resorted to tbe affidavits as evidence, upon the trial, to establish tbe fraud of tbe defendants, we think tbe latter should have been allowed to disprove such fraud if they were able to do so by competent evidence. The order of arrest should not, in our judgment, under tbe circumstances, have been regarded res judicata in such sense as to exclude tbe evidence offered by tbe defendants at tbe trial.

A new trial is ordered, with costs to abide tbe event.

Brady, P. J., concurred.

Present — Brady, P. J., and INGALLS, J.

New trial ordered, with costs to abide event.


author: Daniels, J.:

text:
    PHILIP B. VEILLER, Assignee of EDGAR TUCKER, Appellant, v. JOHN B. BROWN and others, Respondents.

      Liability of stockholders to creditors —not discharged by a transfer of the stock, unless it is a bona fide sale.

    To relieve a former stockholder of a manufacturing corporation from the liability to creditors imposed by the statute, it must appear not only that the stock has been transferred to another on the books of the corporation, but also that such transfer was made in pursuance of an actual bona fide sale, without any secret understanding or trust in favor of the transferrer.
    Several stockholders, apparently acting in concert, joined in transferring their stock on the books of the corporation to a person, of no pecuniary responsibility, who was in the employment of one of them, at a time when the corporation was, to their knowledge, financially embarrassed.

      Held, that there was no such actual bona fide sale of the stock established, as to relieve the transferrers from their statutory liability to the creditors of the corporation.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.
    By the judgment it was “ ordered and adjudged that the com plaint in this action be dismissed as against the said defendants John B. Brown, Philip H. Brown, John M. Brown, Matilda G, Brown, W. J. Emmet and Cornelia Gilman.” The case was twice tried. On the first trial the complaint was dismissed. The plaintiff then applied for and obtained a new trial on the ground of newly discovered evidence. On the second trial the complaint was again dismissed.

      Everett P. Wheeler, for the appellant.
    It is well settled that a stockholder, who is liable to make good to a company an unpaid balance upon the capital stock held by him, cannot relieve himself of this liability by a transfer, for a nominal consideration, to some irresponsible party, when the company is embarrassed. (Nathan v. Whitlock, 9 Paige, 152; McLaren v. Franciscus, 43 Miss., 469; Costello’s Case, 2 DeG., F. & J., 302; Hyam’s Case, 1 id., 75; Weston's Case, E. L. R., 5 Ch. App., 614; Richardson’s Case, id., 19 Eq. Cas., 588; Payne’s Case, 9 id., 223; Hatton’s Case, 31 L. J. Ch., 340.)

      B. /S'. Emmet aud W. J. Mavrin, for the respondents.
   Daniels, J.:

This action was brought against the respondent defendants, to charge them with a personal liability for the debts of the Kings County Manufacturing Company. This company was formed under the general manufacturing laws of the State of New York, and a certificate of its incorporation was filed in the office of the secretary of State on the 18th of April, 1868. The defendants became shareholders by receiving certificates of stock from the corporation itself in the early part of the year 1869, and they all continued to own their stock, certainly until the month of January, 1870. At that time, as the evidence shows, the defendant, William J. Emmet, sold his stock to Henry Furbish, the president of the company. According to his testimony, which was not controverted in the case, ho sold and delivered it to Finbist bona fide and for a valuable consideration, and the fact was so found by the court before which the trial was had. This, under the statute, was sufficient to relieve Emmet from personal liability for the debts of the corporation which were in fact afterwards contracted. (McCullough v. Moss, 5 Denio, 566.) The judgment against the company on the indebtedness now claimed was recovered in an action not commenced until the 13th of April, 1875. And for that reason, also, too great a period of time appears to have elapsed between the time when he sold aud transferred his stock, and the commencement of that suit, to permit him to be held liable under the provisions of the statute made upon this subject. It appeared by the evidence, and the fact was found by the court, that sixty per cent of the par value of the stock in question was not in fact paid at all, but was satisfied in form by a mere artifice or device adopted for that purpose by the stockholders, and that was enough, under the terms of the statute, to render them severally and individually liable to the creditors of the company to an amount equal to the stock held by them respectively. (2 R. S. [5th ed.], 660, § 32.) But while the liability has been created by this section in general terms, it was so far restrained by a succeeding section of the same statute as to limit it to debts contracted by the company which were to be paid within a year thereafter, and then only when an action for the collection of such debt should be brought against the company within one year after it should become due. (Id., 663, § 47.) It was also further provided by this section that no suit should be brought against any stockholder who should cease to be such, for any debt so contracted, unless the same should be commenced within two years from the time when he should cease to be such stockholder. Under these restrictions it is plain that no personal liability existed against the defendant Emmet, for these debts which were in fact contracted by the corporation after the time when he disposed of his stock. The utmost extent of his liability to creditors after the latter event was limited to two years, while the present action was not commenced until the 11th of November, 1875. And as this was not a creditor’s suit to roach the equitable assets of the corporation, but simply to enforce a personal liability against the defendant as a statutory debtor to the plaintiff’s assignor, it could not be maintained because he might be liable to an action at the suit of the company for the portion of the price of the stock appearing to remain unpaid. That was a debt owing to the corporation, and not in any view to the plaintiff or his assignor. For these reasons the complaint was properly dismissed as to the defendant Emmet.

As to the other defendants the facts were materially different, for they continued to be stockholders in the corporation, as that was shown by its books, certainly as late as December, 1872, and January, 1873. The books'of the corporation, so far as they were given in evidence upon - this subject, showed that on the 13th of February, 1872, the defendant Cornelia Gilman formally transferred her stock on these books to Henrietta Bramhall, and from the same evidence it appears that the defendants J. B. Brown and Phillip M. Brown, John M. Brown and Matilda G. Brown, on the 9th of December, 1873, in the same form, transferred their stock in like manner to Edwin C. Greely. Before that time the corporation had evidently become embarrassed in its financial affairs. For it appears by an agreement made by it with Edgar Tucker, the assignor of the plaintiff in this suit, which was made on the 15th of November, 1871, that the entire property and affairs of the corporation were placed in his hands, under an obligation on his part that he should provide, advance and apply the funds that might bo needful to meet punctually the current liabilities of the company incurred then and after that day. For this purpose the property and stock of the corporation were placed in his hands, and a lien was given to him upon it to secure him for the advances which he might make, and the debts which he might incur. And it was agreed that he should be paid for his services and the advances to be made by him, the sum of seven and one-half per cent commissions on the gross sales of the products of the corporation, and also interest at the rate of seven per cent for such advances. Under this agreement Tucker had the exclusive control and management of the business of the corporation, and by another succeeding it, and made on the 27th of July, 1872, it was in substance continued until the 1st day of December, 1875. Intermediate the making of these agreements a mortgage had also been given to Tucker upon the company’s real estate for the purpose of creating a further security in his favor, and that mortgage, by the terms of the second agreement, was extended so as to become a security for whatever he might advance during the continuance of that instrument.

It is quite evident from these agreements that the company had at this time encountered serious embarrassments in the way of its financial operations, and the testimony in the case shows that this continued to be the fact down to the time when the other defendants formally transferred their stock, as that appears to have been done by the books of the corporation.

This is also further apparent from the circumstance that the advances made by Tucker between the time when the agreement was first made and the 13th of April, 1875, amounted to $183,452.81 more than the proceeds of the business. These facts clearly indicate that the corporation was actually in an insolvent condition all the while it was under the management of Tucker. And after this indebtedness had accrued to him, his action was brought against the company for the purpose of recovering this amount. Judgment in his favor was rendered on the 21st of June, 1875, and an execution upon that judgment was afterwards issued against the corporation and returned unsatisfied.z

Between that time and the commencement of the present suit, Tucker appears to have become bankrupt, and for that reason this action was brought by his assignee to charge the defendants, on account of their individual liability under the statute, for the indebtedness of the corporation to him. This was resisted by them, on the ground that their stock had been transferred and they themselves in that manner relieved from personal liability, before the indebtedness in controversy had any portion of it accrued. And, as already stated, the stock book of the corporation was introduced in evidence in order to show that such transfer of their stock certificates had been made, but no other or direct evidence was given for the purpose of showing an actual sale of their stock to either the purchaser Greely or Henrietta Bramhall. The most that seems to have been proved on this subject was what was shown by the book and a letter from Greely, dated the 81st of January, 1874, acknowledging the receipt, by him, of the now certificates issued upon the surrender of those previously delivered to the defendant Brown. Upon this subject some evidence was, it is true, given by the witness George T. Curtis, but ho did not show himself to have had any actual knowledge of the fact that the Brown stock had been in fact transferred to Greely ; what he did know, and the whole extent of his knowledge was, that such a transfer had been made of the certificates upon the books of the corporation.

What the statute obviously requires for the purpose of discharging a stockholder, in a corporation of this description from liability, is not only that the stock shall be transferred upon the books of the corporation itself (Shellington v. Howland, 53 N. Y., 371), but in addition to that, also that an actual sale or transfer of the shares shall be made by the preceding owner, while all that seems to have been established in this case was a simple formal transfer on the books of the corporation. It appeared further by the evidence that Greely, to whom the transfer was made by the defendants Brown, was in the employment of the defendant John B. Brown, in a sugar house, of which he was the proprietor, situated in Portland, in the State of Maine. The evidence also tended satisfactorily to show that he was not a person of any pecuniary responsibility. And by the statement made of the transfer of this stock on the books, it appears that each of the Browns transferred it to Greely on the same day, or at least such was the time of the transfer upon the face of the stock book. It does not distinctly appear tbat all these Browns were related to each other, but it may be inferred from the fact that they all joined in the same answer, and made the same defence, that they acted in concert and co-operated together in the disposition made of their stock. In addition to that circumstance, they also alleged that the transfer of the stock of each of them to Greely was in fact made on this 9th day of December, 1873. Taking these circumstances together, that this corporation was in a financially embarrassed situation from the time of its first agreement with Tucker, down to and after the 9th of December, 1873, and that these persons were beyond doubt familiar with its condition in that respect, and all probably joined at the same time in transferring on the corporate books theii stock, to a person in the employment of one of them who had no pecuniary responsibility, and the presumption arises that it was placed in his hands, if really transferred at all, simply to avoid the consequence of the statutory liability in cases of this description and to enable them to realize the advantages still to be possibly derived from it in case a favorable change should take place in the financial affairs of the corporation, and its business should again prove to be remunerative and profitable. In the absence of any actual proof to the contrary tending to show a bona fide Sale in fact made, these circumstances create a presumption that this, probably, was the object of these defendants in formally transferring their stock to tiiis man Greely. And that instead of being an actual or bona fide purchaser of it, he, formally only, took it in his name to enable the defendants Brown to avoid responsibility on account of it, and to enjoy in safety its profits, if a prosperous change should take place in the business of the corporation. The circumstances certainly warrant the inference that such wTas their design.

The evidence concerning Mrs. Gilman is very much of the same description. For it appears that the transfer of her stock stated on the books, of the corporation to have been made was so made to her daughter, who resided with her, and was dependent upon her for her support. The evidence as to the invalidity of this particular sale is not so direct, or convincing as that relating to the stock transferred by the Browns to Greely. But at the same time it indicates the probability to be that Mrs. Gilman placed ber stock in ber daughter’s name on tbe books in order to avoid personal liability upon it on ber part, and at tbe same time to retain it substantially witbin ber control, in case it might afterwards turn out by a fortunate change in tbe affairs of tbe corporation to be an investment desirable to bold.

Under these circumstances, for tbe purpose of exonerating these defendants Brown and Mrs. Gilman from liability, it was necessary that further evidence should have been given on their part; proof, at least, similar to thatsupplied by tbe defendant Emmet, showing that a bona fide sale of tbe stock bad in fact been made by him, and that there was no secret understanding or trust created by which the previous owners were in any event to be benefited, in case it turned out that their probable apprehensions concerning the solvency of the company were not well founded. Upon this subject it has been held that a member of a corporation who makes a fraudulent transfer of his or her shares for the purpose of avoiding personal liability may still be treated as a stockholder. (Marcy v. Clark, 17 Mass., 330.) The principle has been also declared that no member can exonerate himself from his liability, and defeat the claims of creditors, by transferring his interest to a bankrupt. (Angel & Ames on Corporations [4th ed.], sec. 623.) The samo point has been elaborately discussed in. the English courts of equity, where this principle has been modified and applied to transfers of this description, by their adjudications. Under the rule they have maintained a stockholder may, when he desires to do so, transfer his stock for the purpose of avoiding future liability upon it, but he can only secure that result by making a transfer of an absolute character and in good faith. (Re London, etc., Assurance Company, 2 De Gex & Jones, 638.) And it was added by the chancellor that a court of equity would watch such a transaction with jealousy, and if it was connected with any unfairness it should not be allowed to succeed. (Id., 649.) Tha same point was sustained in the Matter of the Mexican and South Am. Co. (4 id., 544), and it was also applied to shareholders in the same company. (Longworth’s Executors Case, 1 De Gex, Fisher & Jones, 19, and Costello’s Case, 2 id., 302, and sustained in the case of McLaren v. Franciscus, 43 Mo., 452.) This case states the principle still broader, and perhaps- more so than can be properly deduced from the other authorities, for it was there held to be clear that no member of a corporation can .■exonerate himself from liability, or defeat the claims of creditors, by transferring his interest to an insolvent person or to a bankrupt. (Id., 467.) The members of a corporation therefore, It is said, .would still be liable as such, where they have disposed of their interest to an insolvent person or with a view of exonerating ;themselves from personal responsibility. The latter branch of .this proposition is in conflict with the English authorities already .cited, which concede that the transfer may be made for the purpose of avoiding personal responsibility, but to be attended with that effect, it must be made by the party in good faith. But •under the principle, as it is there maintained, it is necessary that .the evidence should go further than that which was given in this case, before either Mrs. Grilman or the defendants Brown can be ■relieved from their personal liability as shareholders in this corporation. As the evidence left the case, the presumption arose that .no such transfer of the stock, as was required to avoid personal .liability for debts contracted by the corporation, was in fact made by either of these parties. And for that reason it is to be assumed fthat they have since continued to be stockholders in this corpora- • tion, but in the names of the persons to whom the formal transfers were made upon the books. And that is sufficient to render .them liable for the debt of the corporation, owing to Tucker at .the time when his suit was brought against the company for its recovery. For that debt, as it was found to exist, by the con- , elusions of the court, was not one for the payment of which a longer credit was given than that of one year, and the action was • brought against the company for its recovery within one year after .it had become due. It is not necessary to hold that this was the .ease as to the entire balance recovered by the judgment in . Tucker’s favor. It is sufficient that any considerable portion of >it was a debt of that description, and that such was its character is substantially free from doubt under the evidence which was given on the trial of the cause. And it was also in effect so stipulated by the defendants.

. For these reasons the case was -within the provisions of the . ¡statute which have been already mentioned, and a recovery should bave been bad, certainly, to some extent, by tbe plaintiff in this case against these defendants. As to tbe defendant Emmet tbe judgment was clearly right, and it should be affirmed, but as to. tbe defendants Brown and Mrs. Gilman it was not of that nature, and should be reversed, and a new trial ordered, with costs to abide tbe event.

Beady, P. J., and INGalls, J., concurred.

Judgment affirmed as to the defendant Emmet, and as to defendants Brown and Gilman reversed; new trial ordered, with costs to abide event.


author: DaNiels, J.

text:
    FRANCIS McKENNA, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK Defendant in Error.

      Trial for homicide — character of deceased for violence — how proved.

    Writ of Error to the Court of General Sessions in the city and county of New York, to review the conviction of the relator of the crime of manslaughter in the third degree.
    The death of the deceased was caused by a wound, which the evidence tended to show was produced by the discharge of a pistol in the hands of the prisoner.
    The court at General Term said: “ During the progress of the trial the prisoner’s counsel inquired of a witness, who was a member of the police foi-ce, whether he had ever arrested the deceased ? This was objected to; and the prisoner’s counsel replied that he deshed to show the character of the deceased for violence, and that he had placed the prisoner in a position of self-defence, and while it was claimed that neither shot the deceased, it was still insisted that the prisoner had a right to show his character for violence. Whether the prisoner had this right or not, as the controversy was narrowed in this case, was not determined by the court, but the ruling was made simply and solely as to the question propounded to the witness. That question was overruled, and the prisoner’s counsel excepted. The court made no further ruling at this time, and did not hold that the prisoner could not show what the character or disposition of the deceased for violence had been, and the point was not again presented for consideration. The ruling, resting as it did exclusively upon the question which was asked, was proper. If the fact would have bad any relevancy at all to the case it would simply tend to prove an isolated act of misconduct on the part of the deceased, and that could not be shown in a case of this description to prove his disposition. Particular instances of misconduct of the deceased, in no way comiected with the accused, could not be proved for the mere purpose of showing a violent disposition on his part. The appropriate and proper mode of establishing that, if it be the fact, is by general evidence showing the character and disposition of the person who has been killed. (Eggler v. The People, 56 N. Y., 642; Thomas v. People, 67 id., 219, 223; Jackson v. Osborn, 2 Wend., 555, 558.) Where the character of the deceased for violence may properly be proved in the case, general evidence is all that can be given, and that in certain cases may be appropriate and proper. (.People v. Lamb, 2 Keyes, 360; Wharton’^ Criminal Law [4th ed.J, section 641.)”

      William F. Howe, for the plaintiff in error. Benj. K. Phelps, district attorney, for the People.
   Opinion by

DaNiels, J.

Brady, P. J., and INGAdls, J., concurred.

Conviction affirmed.


author: Beady, P. J.;

text:
    THE ROOSEVELT HOSPITAL, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent.

      Local assessment — may be imposed, on hospital — necessity of a sewer being laid out and designated on a plan of a district prepared by the Croton Aqueduct Board under chap. 881 of 1865.
    Appeal by tlie plaintiff from a judgment of the Special Term reducing a certain assessment for a sewer which had been imposed on the property occupied by the plaintiff for hospital purposes, the court refusing to vacate the assessment absolutely, and the plaintiff appealed.
    The court at General Term, after holding that the plaintiff’s property was not exempt from the taxation complained of, and that the prior valuation of the property by the ward assessors for the purpose of taxation was regular, and authorized an assessment for a local improvement up to an amount equal to one-half of such prior valuation, and that it was not necessary that the assessment imposed should be confirmed by the common council (.Matter of St. Joseyh’s Asylum, 69 N. Y., 353; Matter of St. Mark’s Qhurch, 11 Hun, 381; Matter of Hebrew Orphan Asylum, 70 N. Y., 476; Laws of 1861, chap. 308), said : “ The proposition that the sewer, not being laid down on the plan devised by the Croton Aqueduct Board the assessment was void, cannot be maintained. The plaintiff has failed to show that the sewer in question was not in accordance with the general plan for sewers in the district in which the sewer was constructed. The learned judge who presided at the trial declares by the ninth finding that the Croton Aqueduct Board devised a general plan of the district in which the sewer was located, and caused a map thereof to be filed prior to the making of the contract for the construction of the sewer. It is true that he also holds that the sewer to which the assessment relates, between Fifty-fifth and Fifty-seventh streets, was not laid down or particularly indicated on said map. But at the same time he declares that in no other respect does it appear that the sewer was not in accordance with the general plan adopted by the defendant for said district. It appears, however, conclusively that the locality of the sewer designated is within the sewerage district adopted by the proper department under the Laws of 1865, and being in accordance with the general plan of sewerage devised by the Croton Board for the district in which the sewer was proposed to be constructed, the assessment for it is regular and was lawfully imposed. When a district, under the act of 1865 (chapter 381), is laid out, a sewer can be placed within it as best may serve the interests of the city and carry out the principle of drainage.
    Wo do not consider it necessary to the legality of the sewer that upon the general plan of sewerage in other wards in the localities selected for the construction of sewers, the particular line of a sewer should appear on the map. It is enough if it be within the district chosen and designated in accordance with the act of 1865."

      Lewis L. Delafield, for the appellant. Hugh L. dole, for the city.
   Opinion by

Beady, P. J.;

Ingalls and Dakiels, JJ., concurred.

Judgment affirmed.


author: Smith, J.:

text:
    ALICE DOUGLASS, Appellant, v. WILLIAM T. WARREN, Respondent; ALICE DOUGLASS, Appellant, v. JOSEPH L. HABERSTRO, as Sheriff of the County of Erie, Respondent.

      /Sheriff liable as bail, when sureties fail to justify — how exonerated — he cannot surrender defendant to coronet\

    Where the sureties to an undertaking, given by a defendant on his arrest, fail to justify, on being excepted to by the plaintiff, the sheriff becomes liable as bail, and can only exonerate himself by re-arresting the defendant and holding him in actual custody.
    He cannot surrender him to a coroner, and any undertaking taken by the coroner on releasing him after such surrender is void.
    Appeal from an order of the Erie Special Term, made in both of the above entitled actions, exonerating Joseph L. Haberstro, as sheriff of Erie county, the defendant in the second action, and John M. Bedford and Henry H. Phillips, sureties to an undertaking given on the arrest of the defendant in the first action, from all liability, either as bail, sureties or otherwise in the above entitled actions, upon paying to plaintiff or her attorney the taxable costs in the second above entitled action, to be adjusted by the clerk of this court, and ten dollars costs of opposing this motion, and furthei* providing that the second action be discontinued upon payment of said costs.

      John Campbell Hubbell, for the appellant.
    The order exonerating Bedford and Phillips was erroneous ; they had no right to be heard, because not justifying when excepted to, they ceased to • be bail. (Heishon v. Knickerbocker Life Ins. Co.; Clapp v. Schutt, 44 N. Y., 104.) The sheriff was not entitled to be exonerated as bail or otherwise. He should have re-arrested the defendant and kept him confined in custody. (Code of Civil Procedure, §110; 3 R. tí. [5th ed.], 659; 2 Edm., 391 ; Code Civil Procedure, § 595 ; Brady v. Brundage, 59 N. Y., 310 ; Code of Civil Procedure, § 173; id., §§ 591, 592; Sartos v. McMeyers, 9 How. Pr., 189 ; McCregory v. Willett, 17 id., 439 ; 10 Abb. Pr., 256 ; Bensel v. Lynch, 44 N. Y., 164.)

      George W. Cothran, for the respondents.
   Smith, J.:

The plaintiff commenced an action against the defendant Warren, and caused him to be arrested by the sheriff, Habcrstro. The sheriff took from him an undertaking, signed by two sureties, who failed to justify on being excepted to by the plaintiff. The plaintiff obtained 'a judgment against Warren, and an execution against his property was returned unsatisfied, and one against his person, that he could not be found. The second action was then commenced against the sheriff. During its pendency, and within twenty days after its commencement, the bail in the first action surrendered the defendant Warren, and the sheriff received him into his custody. Instead of keeping him, the sheriff surrendered him to one of the coroners of the county of Erie, who permitted him to go at large on giving a new undertaking. Thereafter the sheriff and the bail in the first action gave notice of the motion, which resulted in the order from-which this appeal is taken.

Upon the failure of the sureties in the first undertaking to justify, the- sheriff became liable as bail. (Code of Civil Procedure, § 587.) The sureties were not liable, thereafter, as bail (Clapp v. Schutt, 44 N. Y., 104), but they remained liable to the .sheriff for all damages which he might sustain by reason of their omission to justify. (Code Civil Procedure, § 589.) Section'595 of the Code of Civil Procedure provides, that when the sheriff is liable as bail, he has all the rights and privileges, and is subject to all the duties and liabilities of bail. One of the rights and privileges of bail is that they may surrender the defendant in their own exoneration. (Code Civil Procedure, § 591.) But by the express terms of the statute, the surrender must be made to the sheriff. (Code Civil Procedure, §§ 591, 592.) When the sheriff seeks to exonerate himself from liability, as bail, by surrendering the defendant, he must re-arrest him and surrender him to the custody of the jail. (Sartos v. Merenques, 9 How. Pr., 188 ; Brady v. Brundage, 59 N. Y., 310.) The sheriff seems to have supposed that it was Ms duty to surrender the defendant to the coroner ; but he was under no such duty, and the coroner had no right to receive Mm or to detain Mm in custody. There was no order of arrest or process directed to the coroner. The sheriff was not a party to the action in wMch the order of arrest was issued, and so the case was not within the statute authorizing the. coroner to act where the sheriff is a party. (Code Civil Procedure, § 172.) The undertakmg taken by the coroner was a nullity, and if the sheriff is exonerated the plamtiff is without remedy.

Independently of the other points made by the appellant’s counsel, it follows, from these views, that the order appealed from should be reversed.

Present — Talcott, P. J., Smith and Hardin, JJ.

Order reversed, with ten dollars costs and disbursements.