author: Beady, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. EDWARD HOYEY, Appellant.

      ^Evidence — right of a husband, upon his trial for murder to call his wife as a witness in his behalf— right of the ju/ry to consider his failure so to do — the presumption is that the wife will tell the truth— the accused may.be asked how often he has been in prison — what is sufficient evidence of premeditation and deliberation.

    The defendant was tried and convicted of murder in the first degree for shooting his sister-in-law. There was present at the time of the shooting the deceased, the defendant and his wife. The defendant was examined in his own behalf and testified that the shooting was accidental. The judge in his charge said: “There is no eye witness who has testified to the occurrence except the defendant. The people claim and the uncontradicted evidence established that there was another eye witness to this occurrence, namely, the wife of the defendant. You remember when the wife was offered as a witness on behalf of the people the court would not allow her to be examined as a witness against her husband, for in my judgment the law does not permit it; but while that is so the law does allow the wife to be a witness in her husband’s behalf, and the people claim that inasmuch as it appeared in evidence that she was an eye witness to the occurrence, accessible to the defendant, and the defendant allowed by the law to call her as his witness, and having neglected to do so, that this is a circumstance which the jury have a right to consider in coming to a conclusion. And the people claim, moreover, that! the prisoner’s omission to call her as a witness under the above circumstances should be taken as a matter of evidence against him, and they claim that the fair presumption is that if she was called her testimony would not be favorable to the defendant. ”

      Meld, that there was no error in the charge.
    Section 2 of chapter 182 of 1876, provides that “in all criminal trials and examinations before trial a husband or wife may be examined as a witness in behalf of the other, but upon no such trial or examination shall a husband or wife be compelled.to testify against the other.” It was claimed by the defendant in this action that under this statute it was optional with the wife whether or not she would become a witness in behalf of her husband, and that he could not compel her so tó do.

      Meld, that this was an erroneous construction of the statute; that under it the husband had the right to compel the wife to testify, and that if she failed so to do she could be punished for a contempt.
    The defendant claimed that the presumption was that the wife was hostile to him, and that he was not therefore obliged to use her as a witness or be subjected to any criticism because he did not call her.

      Held, that this was not so, that the presumption was that the wife would tell the truth.
    Upon his cross-examination the defendant was asked how many times .he had been in prison.

      Held, that this was allowable under section 832 of the Code of Civil Procedure.
    The evidence in this case, considered and held to justify the'jury in finding that the killing was committed from a deliberate and premeditated design to effect the death of the person killed.
    Appeal from a judgment and conviction of the defendant upon his trial for murder in the first degree in the Court of General Sessions of the Peace in and for the city and county of New York.

      William F. Kinizing, for the appellant.

      John MoKeon, for the respondents.
   Beady, J.:

The defendant was indicted and convicted of murder in the first degree for killing his sister-in-law, Fannie Yermilyea, on the 20th' of April, 1882. At the time of the killing, the deceased and the appellant' occupied different apartments on the same floor of a boarding-house, situate at No. 273 West Thirty-eighth street in this city. On the night preceding the homicide the deceased took from the defendant a pistol which he was in the habit of carrying and hid it. At this time his child, who was an infant, was seriously ill with the scarlet fever.

On the following morning, i. e., the day of the killing, the defendant, in the presence of the deceased, wanted his wife to wash his feet, when the deceased said to him: Eddie, you ought to have more thought for your dying baby.” To which he replied: “You’ re getting too God damned high-toned ” He soon after left the house, but returned at about one o’clock in the afternoon for dinner, háving taken which he again left, and some time during the afternoon went to a pawnbroker’s shop, where he pawned his coat, purchased a pistol, loaded it, and returning to his house, went to the room of the deceased and shot her, .the ball passing through the lung, and death ensuing within a few minutes. This occurred about twenty-five minutes after his return. He then went out into the hallway connected with the room, where he ’ was seen by another sister of his wife, namely, Sophia McCullough, who, having been called as a witness, testified that, having heard the shot, she asked him what he had done; to which he responded, “ nothing,” although the pistol was still in his hand. She further testified that he then went into her sister’s room again,.and she ordered him out; whereupon he went across the hall to his own room, where his sick child was lying. The witness then requested him not to touch the baby; to which he responded, alluding to the witness: “ You little son of a bitch if you don’t get out of this room I will kill you, too.”

It appears further from the testimony of Mrs. Byrnes that her attention was directed to the shooting by the request of the deceased, “ Mrs. Byrnes, save me! ” Whereupon she ran to her and caught her in her arms. While she was thus holding the deceased, the prisoner was brought into her presence, when the witness said to him : “ Look what you have done! ” and he laughed. This was at the moment when the deceased was just departing,” to use the language of the witness, and he was in the custody of the officer —; indeed, had walked over the dead feet of the deceased, as the witness stated. The laugh seems to have been the only indication of his consciousness of the observation which was made to him by the witness.

The officer who arrested him, at the time of his arrest and in the house where the shooting took place, asked him if he was the man who did the shooting ; to which he said “ yes.”

As they passed over the body of the deceased he said to him: “ Is that the woman you shot ? ” And the prisoner answered “ yes.” The officer further asked him: “ Is that (exhibiting it) the pistol you shot her with ? ” To which he replied “ yes,” saying in addition : “And if I had another bullet in that pistol you never would have taken me from that room.” The officer further testified that having taken him to the station-house, the sergeant asked him if he shot the woman, to which he replied “ yes.” The sergeant then further asked, “ what did yon shoot the woman for % ” And the answer was that that was his business and not the sergeant’s.

Upon this testimony, the effect of which the appellant essayed to overcome by his story, which was that the shooting was accidental, the jury found him guilty of murder in the first degree.

There was evidence on the part of the defense to show, doubtless to account for the possession of it, that from his boyhood it had been the habit of the defendant to carry a pistol. It will have been observed from this statement of the case that no witness was called' who saw the shooting, except the defendant, who committed the deed, and therefore the importance of the circumstances mentioned must impress itself at once upon the mind on the question of pre. meditation and deliberation, which were necessary elements to establish the guilt of the appellant to the extent pronounced by the verdict herein.

On the night preceding the killing, as we have already seen, the deceased took the defendant’s pistol and hid it, and no doubt from a good motive. It is true he says he was in the habit of giving her his pistol at night, and this necessarily involved the ceremony of returning it to him upon the following day; but on this occasion the pistol was not returned, it was hid.. It is a slight circumstance it is true, but unfortunately for the viciously inclined the history of crime shows that violent deeds are sometimes committed upon very slight provocation.

In addition- to this circumstance, however, as we have seen, the appellant wished his wife to wash his feet, and at a time which, in consequence of the severe illness of his child, and who died the next day, seems to have been most solemn. The deceased reminded him of that fact by saying, Eddie, you ought to have more thought for your dying baby,” an observation with which he was evidently displeased, because, as we have already seen, his answer was, “You $.re getting too God damned.high toned.” The hiding of the pistol and the observation of the deceased appear to have been proper in themselves, and not calculated to produce very great excitement.

They seem, however, to have aroused within him a malevolent sentiment, a passion for revenge, which was to be appeased only by slaughter. Unless we accept his story that the shooting was accidental, no other view can be taken of the occurrence.

It was the feeling suggested that induced him-to pawn his coat and to buy the pistol and load it. It is proper to observe here that there is no evidence in the case showing that he was engaged in a calling which required such a weapon for his protection, or that he was in imminent danger in any respect, and therefore the loading of the pistol in the pawnbroker’s shop, marked by the preceding-circumstances to which reference has been made, must have been with an object, and that object was the killing of the deceased and was carried into execution within a few hours after the purchase of the pistol. The causes which led to the act are trivial, it is true, when judged by fhe ordinary standard of human action, but in a bad-tempered man, a person easily excited, quickly inflamed, destitute of a decent sense of propriety and more particularly if a criminal by habit, they might be and indeed in this case seem to have been quite sufficient to instigate the crime of which the defendant was convicted. That he was a criminal by habit or, if the word habit is not justifiable, that he was a criminal at all events, is shown by his cross-examination, for when he was asked how often he had been in prison, he said three times, and each time for stealing.

The jury took all these circumstances into consideration and the fact also that the defendant’s wife was present when the deceased was shot and could have been called as a witness on his behalf. He failed to call her to corroborate, if she could do so, his statement as to the shooting being accidental. It is impossible for us to say, therefore, under all the facts and circumstances.to which reference has been made that the jury were not entirely justified in finding the prisoner guilty of murder in the first degree — premeditated and deliberate murder.

The learned judge in charging the jury said: There is no eye witness who has testified to the occurrence, except the defendant. The people claim, however, and the uncontradicted evidence established that there was another eye witness to this occurrence, namely,' the wife of the defendant. You remember when the wife was offered as a witness, on behalf of the people, the court would not allow her to be examined as a witness against her husband, for in my judgment, the law does not permit it, but while that is so the law does allow the wife to be a witness in her husband’s behalf, and the people claim that inasmuch as it appeared in evidence, that she was an eye witness to the occurrence, accessible to the defendant, and the defendant allowed by the law to call her as his witness, and having neglected to do so, that is a circumstance which the jury have a right to consider in coming to a conclusion. And the people claim, moreover, that the prisoner’s omission to call her as witness under the above circumstances, should be taken as a matter of evidence against him, and they claim that the fair presumption is, that if she was called, her testimony would not be favorable to the defendant.”

No exception was taken to the observations thus quoted, but. after the verdict of guilty had been rendered and at a sitting of the court upon the 29th of September, 1882,. when the appellant was arraigned for sentence, a motion was made for a new trial.

F irst. Upon the ground that the verdict was against the weight of evidence; and,

Secondly. That there was not sufficient evidence in the case to show that the act was the result of a premeditated and deliberate design to effect death.

And the counsel for the defendant, in connection with these two grounds, urged the err ir which it was alleged had been committed by the learned jiidge presiding, in making the observations which have been quoted. The application was made under section 527 of the Code of Crinqinal Procedure, which provides that in cases of this character, tried in the Court of General Sessions, the appellate court may order a new trial, if it be satisfied that the verdict against the prisoner is against the weight of evidence or against law, or that justice requires a new trial, whether any exceptions shall have been taken or not in the court below. In the consideration of this ease the appellant should therefore be given the full benefit of this section.

The question of premeditation has already been discussed, as will have been seen, and a result arrived at unfavorable to him, and the disposition of it in the court below sustained. The verdict was not against the weight of evidence; there was sufficient proof that the- killing was the result of a premeditated and deliberate design to effect death.

No error seems to have been committed either by the remarks of the learned judge in reference to the omission of the defendant to call his wife as a witness. It will have been perceived that in commenting upon this circumstance the learned judge merely repeated the claim made on behalf of the people, namely, that the prisoner’s omission to call her as a witness, under the circumstances disclosed in the charge, should be taken as matter of evidence against him ; that the fair presumption was that had she been called her testimony would not have been favorable to him. - It was not asserted, as a conclusion of law, that such a result must follow, or that such must be the consideration given to the circumstance by the jury, but a statement merely of the claim put forth by the prosecution of the argument on behalf of the people; that the omission was one which should be regarded by the jury as prejudicial to the prisoner. The facts affecting it are that his wife was in court and that she was called as a witness by the prosecution, but excluded upon the objection of the prisoner’s counsel. It seems to have been conceded that she was present at the time of the shooting, and, therefore, could have stated the circumstances attending the act. The charge is clearly within the rule of law, as enunciated by the adjudged cases.

In the case of Gordon v. The People (33 N. Y., 508) it was held that when one accused of the crime of murder was required to account for his whereabouts at a particular time to avoid the force of criminating circumstances, his omission to produce the evidence is not conclusive of the facts in dispute, but the force of such cirunmstances may be left for the consideration of the jury. The absence of such evidence, the court said, especially when it seems to be in the power of the prisoner to furnish it, creates a strong presumption of his guilt, a strong inference against him, and is a circumstance greatly corroborative of the truth of the evidence given upon the other side, and in a doubtful case would justify the jury in resolving the doubt against him.

The case of Gordon v. The People is cited with approbation, and the rule is substantially reiterated in the case of Bleecker v. Johnston (69 N. Y., 309); see, also, Brooks v. Steen (6 Hun, 517); also the case of The People v. Tweed (5 Hun, 387), in .which the learned judge, in discussing the subject, said that the omission to furnish an affidavit denying the facts upon which an order of arrest was founded, rendered it probable that he could not truthfully do it, and the effect of it was to increase the force of the circumstances disclosed as well as the probability that the statements made by two of his accomplices as to what really did take place were true, and the court then states the rule declared in the case of The People v. Gordon (supra).

Under these circumstances, and in view of these authorities, it is quite clear that no error was committed by the learned judge in simply stating to the jury the claim made on behalf of the people without telling them the effect of it, and without in any way expressing any opinion about it, presenting it as he did for the consideration of the jury, and leaving it entirely with them to determine its weight and effect.

It is said on behalf of the appellant that the presumption must be that his wife was hostile to him, and that he was not, therefore, obliged to use her as a witness or to be subjected to any criticism because he did not call her. This view is fallacious. The presumption is that she would tell the truth, and the appellant must take the consequences of such presumption.

It is also urged that, under section 2 of the law of 1876 (chap. 132), it was optional with the wife whether she would become a witness dr not on behalf of her husband, that act depending upon her own will and being free from any control of her husband. This view is predicated of this language of the section : “ In all criminal trials, and examinations before trial, a husband or wife map be examined as a witness on behalf of the other,” but it is clearly erroneous. The legislature meant to confer, and did so, upon the husband the privilege, in a criminal proceeding against him, of calling his wife as a witness, if he chose to do so — not to give her any other right than to call him, if she chose to do so, under similar circumstances. She could not decline to become a witness or exercise any option in regard to it. If called by him she must respond, or be punished for contempt. It is the husband’s right to call her, and as well- the wife’s right to call him, by the same section. They may be witnesses, if the 'right thus conferred is exercised by either, but cannot be compelled to testify against each other at the call of any other person hostile to either. This construction of the statute is demanded by its language. If it be not, then no benefit was created by the section and it is a nullity.

Nor was it error to allow the defendant, upon cross-examination, to be asked how many times he had been in prison.

Section 832 of the Code of Civil Procedure expressly authorizes such a line of examination. It declares that a person who has been convicted of a crime may be asked, on cross-examination, as to the facts. Not only that, but it provides that the person cross-examining is not concluded by his answer to such a question ; so that if the witness falsely states that he was not convicted his testimony may be disproved.

The points presented on behalf of the appellant have thus been considered, and the duty of the court requires, for the reasons stated, a declaration that he shall take nothing by his appeal, and that the judgment should be affirmed.

Davis, P. J., and Daniels, J., concurred.

Ordered accordingly.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    THE TRUSTEES OF THE EXEMPT FIREMEN’S BENEVOLENT FUND OF THE CITY OF NEW YORK, Plaintiffs, v. A. P. M. ROOME, Defendant.

      Constitution — validity of a law requiring foreign companies or individuals to pay a tax on premiums to the treasurer of an exempt firemen’s association.

    Chapter 89 of 1879, providing that there shall be paid to the treasurer of the trustees of the Exempt Firemen’s Benevolent Fund of the city of New York “the per centage or tax on the receipts of the foreign fire insurance companies doing business in the city of New York, as provided by chapter 548 of 1857,” is constitutional and valid.
    Controversy submitted upon an agreed statement of facts under section 1279 of the Code of Civil Procedure. ■

      James C. Copter and J. 8. Woodward, for the plaintiffs.-

      Joseph II. Choate, for the defendant.
   Brady, J.:

From an early period in the history of this city and, indeed, until the establishment of the Metropolitan Fire Department, in 1865, by the legislature, the extinguishment of fires occurring here was done by volunteers, who were organized into companies and known as the firemen of the city of New York. The act of March 19, 1787, limited their number to 300, to be nominated and appointed by-the mayor and common council; and they were, by its provisions, enjoined to be ready at all times, as well by night as by day,to manage, control and use the fire engines to be provided, and were exempted from service as constables, jurors and militiamen,- and placed generally under the regulation of the city government. (1 Greenleaf’s Laws [ed. 1792], 412-414, chap. 58.)

In 1792 (chap. 9; see 2 Greenleaf’s Laws, 382) the number was increased to 450. In March, 1798, however, upon a petition of the firemen praying to be incorporated, the more effectually to enable them to provide adequate funds for the relief of disabled and injured firemen, and for the purpose of extinguishing fires, they were incorporated by the name of The Fire Department of the City of New York. The corporation thus created was authorized to receive certain fines, penalties, certificates’ and donations arising from violations of the corporation ordinances relative to fires, and the fund thus created was directed to be applied towards the relief of indigent or disabled firemen, or their families, and was no doubt designed as a recognition of an equitable claim, grounded on the faithful discharge of a highly meritorious public service, and at the same time as an inducement to secure the co-operation of reliable citizens. Subsequent acts of the legislature continued The Fire Department of the City of New York until March, 1865 (see People v. Pinckney, 32 N. Y., 388), when an act was passed to create a metropolitan fire district and to establish a fire department therein. (See Laws of that year, chap. 249.) In 1849, however (see Laws of that year, chap. 178), the legislature gave to the fire department then existing, which was the predecessor of. the plaintiffs, certain license fees exacted from insurance agents, and which became a part of the benevolent fund which was commenced in 1798, and was designed, as we have seen, for the benefit of disabled or indigent firemen and their families. The firemen of New York continued until the organization of the metropolitan fire district, under the act of 1865, to be mere volunteers, receiving no compensation for their services, except such as came from certain privileges in the way of exemption from the performance- of other public duties and a right, in case of necessity, to a participation in the advantage of the fund mentioned.

It has already appeared that the first legislation by which payments by the insurance agents were directed to be made to the treasurer of the plaintiffs’ predecessor for the benefit of the fund mentioned was the act of 1849, and the first legislation requiring such payments to be made to the present plaintiffs was the act of incorporation passed April 17, 1866, and the act under which they are now claimed is that of March 17, 1879. By the act of 1865 it was- provided that the members of the old volunteer fire department, if discharged by the new commissioners named in the act, were to be entitled to all the privileges and exemptions allowed by the laws as if they had served out the full term, and it was declared that nothing therein contained should be construed to deprive any such persons of their right to, or affect their interest in, the fund known as- the New York Fire Department Fund, or any part thereof, and that the fund should continue to be held and administered by the then present trustees of the fire department, or their successors. By a supplementary act, passed on May 12, 1865 (see Laws of that year, chap. 717), a board of trustees was created to take charge of the fire department fund, and the income was required to be appropriated by the trustees to the relief of the widows and orphans of deceased firemen and other applicants for relief from among exempt firemen and their families who should have served in the volunteer department of the city, or should have received proper certificates of discharge from such service in the city from the metropolitan fire commissioners; and it was provided by the ninth section that the trustees were entitled to receive, and that there should be paid to them, all duties, taxes, allowances, penalties and .fees to which the fire department of the city of New York, as theretofore established, had been entitled. This seems to have been a temporary act, for in April, 1866 (see Laws of that year, chap. 633), an act was passed creating the plaintiffs a corporation under their present title to exist for twenty years. By the first section it was declared that the president, two vice presidents of the Exempt Firemen’s Association of the city of New York, and the then present board of trustees of the fire department fund of the city of New York, were thereby constituted and appointed a body corporate and politic by the name and style of the trustees of the Exempt Firemen’s Benevolent Fund of the city of New York. And by the third section of that act it was declared that the existing fire department fund was transferred to the corporation thus created, and the surplus revenue derived from investments and from other sources, or so much thereof as should be required, should be appropriated by the trustees to afford aid and relief to such persons and their families as should' have been lawfully discharged from the volunteer fire department of the city of New York who were in indigent circumstances, and to the families of members of that department who had been maimed or killed in the discharge of their duties as volunteer firemen. And by the seventh section it was declared that this corporation was entitled to receive, and that there should be paid, a per centage or tax on the receipts of foreign fire insurance companies doing business in the city of New York for five years from the passage of the act.

" It thus appears that irom the year 1798 down to and including the year 1866 tjie benevolent fund for the benefit of the members of the volunteer fire department of the city of New York, and their families, was continued by appropriate legislation, and indeed by the act of March 27,1877, the right of the plaintiffs to receive the tax was extended for nine years from April, 1877, although it required one-half to be paid over to the New York Fire Department Relief Fund; but by chapter 89 of the Laws of 1879 the seventh section of the act of 1866 was finally amended-so as to extend the period of the right of the plaintiffs for nine years from the 17th of April, 1879, and the amendment- of 1877, by which one-half was to be paid to the New York Fire Department Relief Fund, was by it dropped, so that it may be said that up to and including the year 1879 the benevolent fund mentioned has been recognized by legislation, and provision made for its continuance by the payment to its treasurer of the tax or license fee to which reference has already been made.

In 1854, and while the act of 1849 without amendment was still' in force, a contest arose as to the constitutionality of this act, -which imposed the payment of a certain per centage by every person who should act as an agent for individuals or associations of individuals not incorporated or authorized by the laws of this State to effect insurance against losses by fire or against marine losses and risks, and the question mooted was twice argued in the Court of Common Pleas of this city, and all the objections against the legislation which could be drawn either from the Federal or the State Constitution of 1846 were ably argued ; but they were overruled decisively and the judgment of the Common Pleas affirmed by that of the Court of Appeals (see Fire Department v. Noble, 3 E. D. Smith, 440; Fire Department v. Wright, same volume, 453), and the various acts of the legislature, subsequent to 1840 to which reference has been made, have recognized and reasserted the .constitutionality of that act.

It is urged on behalf of the defendant that the validity of the act of 1879 must depend upon the Constitution as it stands amended by the amendments adopted in 1874, which went into effect on the 1st of January, 1875, and he relies chiefly upon article 8, section 10, and upon article 3, sections 18, 20 and 21, and which are as follows :

Article Till, sec. 10: “ Neither the credit nor the money of the State shall be given or loaned to or in aid of any association, corporation or private undertaking. This section shall not) however, prevent the legislature from making such provision for the education and support of the blind, the deaf and dumb and juvenile delinquents as to it may seem proper. Nor shall it apply to any fund or property now held or which may hereafter be held by the State for ed/ucational purposes.”

Article III, sec. 18 : “The legislature shall not pass a private or local bill in any of the following cases:

“ Granting to any private corporation, association or individual any exclusive privilege, immunity or franchise whatever.”

Sec. 20. “ Every law which imposes, continues or revives a tax shall distinctly state the tax and the object to which it is to be applied. And it shall not be sufficient to refer to any other law to fix such tax or object.”

Sec. 21. “ On the final passage in either house of the legislature of any act which imposes, continues or revives a tax, or creates a debt or charge, or makes, continues or revives any appropriation of public or trust money or property, or releases, discharges or commutes any claim or demand of the State, the question shall be taken by yeas and nays, which shall be duly entered upon the journals, and three-fifths of all the members elected to either house shall in all such cases be necessary to constitute a quorum therein.”

In the consideration of the question as to the liability of the defendant herein to pay the per centage provided for, it must be borne in mind that by title 21 of part 1 of chapter 20 of the Revised Statutes (1 R. S., 714), it was provided that no person, association or company of persons residing in any foreign country, and no incorporation established in a foreign country, nor any person in behalf of them or any of them shall directly or indirectly make any contract of insurance, or by way of insurance, against loss or injury by fire, upon any house, building or goods situate or being in this State; that by the second section a forfeit of $1,000 was provided for the use of the poor of the county where such illegal contracts should be made, against whoever should violate the provision referred to. And further that by section 3 it was directed that there should be paid into the treasury of the State, on the first day of February in each year, by every person who should act as agent for any individuals or associations of individuals not incorporated and authorized by the laws of this State to effect insurances against losses by fire, although such individual or association might be incorporated for that purpose by any other State, the sum of ten dollars upon the one hundred dollars, etc. These provisions were, of course, general in character. And further, that on the 21st of February, 1837 (see Laws of that'year, chap. 30) an act was passed amending the Revised Statutes just referred to, and section 3 was so amended as to read that the sum to be paid should be two dollars upon the one hundred dollars. The act of 1849, to which reference has frequently been made, changed these provisions, for it was directed that there should be paid to the treasurer of the fire department of the city of New York, for the use and benefit of the department, the sum of two dollars upon the one hundred dollars, and at that rate upon the amount of premiums which during the year or part of a year, ending on the next preceding first day of December, should have been received by such agents; and it was provided also that sections one, two and three of the act should apply to every city or incorporated village in the State, where a treasurer of the fire department existed, and where no such officer is known by the laws of such city or village, the treasurer of such city or incorporated village should exercise all the powers and perform all the duties, for the purposes of the act, of the treasurer of the fire department of the city of New York, as far as related to the city or village of which he was treasurer, and that he should, under the direction of the common council of the city or the trustees of the .village, pay over all the moneys received or recovered under the .first, second and third sections of the act, to the fire department of such city or incorporated village. And by section six of the act all the provisions of the third, fourth, fifth, sixth and seventh sections, and of them only, of title twenty-one, chapter twenty, first part, Revised Statutes, as amended by the act of February 21, 1837, so far as they related to fire insurance were repealed. By this act, although the license fee or tax upon the agents of insurance companies was continued, the mode of payment and disposition of the fund which would be created by its receipt was changed. It was, as we have seen, thereafter to be paid not to the treasurer of the State, but to the treasurer of the fire department of the city of New York, and to the treasurers of the-other fire departments throughout the State, or to some one on their behalf; so that the act of 1849 was a general and not a local or privaté act extending as it did throughout the State.

The tax or license fee, therefore, provided by the act of 1849, springs out of a general and not a local statute and was passed by three-fifths of the members of the legislature uniting for the purpose, and, as we have seen, was declared to be constitutional. The imposition of the license fee or tax accomplished by this act continues, this general statute never having been repealed, and the payment of it to the representatives of the old volunteer fire department has been continued by the statutes to which reference has been particularly made. This statement seems to be an answer to-the proposition that any of the provisions of the Constitution to-which reference has- been made are applicable. The act of 1879, continuing the appropriation of the tax or license fee provided for by the act of 1849, was neither a credit of the State loaned nor its money given to or in aid of any association, corporation or private undertaking, within the meaning of section 10 of article 18. The two per cent provided for is given by the act of 1849, to indigent and disabled firemen and their families, and for no other purpose, and therefore not bestowed upon any association, corporation or private undertaking.

It may be further said that the declaration contained in that section that it shall not apply to any fund or property now held or which may hereafter be held' by the State for educational purposes, embraces the fund in question, and which, by its appropriation to-disabled and indigent firemen and their families, may well be used for educational purposes amongst others.

The act of 1879, which only related to the general act of 1849, which provided that two per cent should be paid to the treasurer of the fire department fund created no new tax or burden, and was not therefore a private or local bill, and this seems to be an answer to the proposition resting upon article 3, section 18, by which the legislature are prohibited from passing a private or local bill granting to any private corporation, association or individual any exclusive privilege, immunity or franchise whatever. And inasmuch as the tax or license fee was created by the law of 1849, under which it is still collected, and the act of 1879 was only a continuation of a right granted by the former law, as to its receipt by certain persons, the twentieth section of article 3 has no application, because the acts •authorizing the plaintiffs to sue for the license fee or tax imposed do not, in themselves, continue or revive a tax which was created by the law of 1849, but only continues the diversion as to the person to whom the license fee or tax is to be paid, namely, from the treasurer of the State to the treasurer of the fire department fund. The .same answer may be made to the attempted application of section 21 of article 3, so far as it affects the question under review. The Laws of 1880 (chap. 542), as amended by the act of 1881 (chap. 361), is not a repeal of the act of 1849. The only exemption from taxation created by it is the taxation upon capital stock and personal property. The obligation, as suggested by the counsel for the plaintiffs •to make the payment in question, is not imposed upon the corporate bodies for which the defendant acts, but upon himself personally as .an agent, who is certainly not exempted.

The consideration of this case, which is not free from difficulty, has led to the conclusions herein stated. It must be admitted that potent arguments vigorously employed have been presented in favor •of the defendant by his learned counsel; so forcible indeed that the ■conclusions stated have been adopted with some hesitation, and with the conviction that their correctness is not free from doubt. From the general character of the statute, however, by which the obligation to pay for the privilege of insuring in the city of New York by insurance companies not incorporated by the laws of this State is ■created, its constitutionality and the fact that the plaintiffs, as the representative of what once was an administrative part of the city government, and' not a private undertaking, and employed for a meritorious purpose, have been made the recipients of the license fee or tax mentioned as a compensation for services voluntarily rendered, and which is continued for the benefit of those disabled in the service of their families and to none others, it is considered that ■the amendments to the constitution to which reference has been made were not designed to apply to any such organization or association •or class. The mischiefs which were in contemplation at the time of the adoption of such' amendments were accomplished by private legislation for special purposes, in aid of persons and corporations springing into existence, and at once fostered and cherished by the money of the State, without having any meritorious claims upon its bounty or recognition, and generally by special legislation, whether applied to corporations or individuals, which pledged the credit or gave the money of the State for speculative or objectionable projects, the objects of which were not disclosed either by the title of the act conferring the privilege or granting the immunity, or by any provision in the act itself contained.

The views thus expressed require that judgment should be ordered for the plaintiffs according to the statement of facts for the sum of $1,318.83, being two per cent upon the premiums received by the defendant as per his return, with interest thereon to be computed.

Daniels, J., concurred.

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

Judgment ordered for plaintiffs as directed in opinion.


author: Daniels, J. :

text:
    CULLEN P. GRANDIN, Appellant, v. JUAN RAMORE MARTINEZ HERNANDEZ, Executor, etc., and Another, Respondents.

      Deed — effect of a failure to seal it — it conveys am, equitable title and may be recorded — 2 R. 8. (6thed.), 1151, sec. 72 — description of the premises — the intent of the parties is to be sought for — right of an owner, not made a party to an action of foreclosure, to redeem from the sale.

    In January, 1877, oneMcAteer being tbe owner of certain premises incumbered by a mortgage hereinafter referred to, executed and delivered an instrument in the form of a deed, but without a seal, by which he purported to convey a portion of the premises to Dyer. The instrument was executed and acknowledged and recorded as a deed on January 20, 1877. It contained covenants for further 'assurance, and the attesting clause recited that it was under seál. Thereafter on January 27th, Dyer conveyed the same premises to the plaintiff. The premises were in such last mentioned conveyance erroneously described as being located in the block between Sixth and Seventh avenues instead of being in the block between Fifth and Sixth avenues, but at the end of the description it was stated that the premises were the same as that conveyed to Dyer by McAteer by deed, bearing date the day of January, 1877, and recorded in the office of the register of the city and county of New York, on the 20th day of January, 1877, in liber1403 of conveyances, page , together with and including the' premises described in a certain other deed made by and between the same parties aforesaid, bearing date and recorded the same day, in the same liber 1403 of conveyances, page . In April, 1877, proceedings were taken to foreclose a mortgage existing upon the premises when they were conveyed to McAteer, which resulted in a sale thereof.
    The plaintiff in this action, who was not made a party to the foreclosure action, thereafter brought this action to redeem.

      Held, that the instrument executed by McAteer vested in Dyer an equitable right to the property, which would entitle him Or his grantees to have the legal title conveyed to him or them by a proper instrument.
    That such instrument was entitled to be recorded under section 72 of 2 Kevised Statutes (6th ed.), 1151, and when so recorded operated as constructive n»tice to all persons dealing with the property.
    That a careful examination of the deed from Dyer to the plaintiff would have shown the premises intended to be conveyed thereby.
    That the plaintiff not having been made a party to the foreclosure action was entitled to redeem.
    Appeal from a judgment in favor of the defendant, entered on the trial of this action at the Special Term.

      John L. Logan, for the appellant.

      George H. Foster and A. 0. Brown, for the respondents.
   Daniels, J. :

The object of this action was to redeem a mortgage upon certain property which had been sold under a judgment for its foreclosure. The plaintiff was not made a party to the action, as it was claimed he should have been, for the purpose of extinguishing his right to or interest in the property.

After the execution and record of the mortgage the owner- of the equity of redemption conveyed the property to James McAteer, and this conveyance was properly recorded on the 29th of hi ovembér, 1876. After that time and in January, 1877, McAteer, the grantee in this deed, executed and delivered an instrument in the form of a deed, but not sealed, to George EL Dyer, for the-westerly 150 feet of the property. This instrument was acknowledged and recorded as a deed on the 20th of January, 1877, but for the reason that it was not sealed as well as subscribed by McAteer it was held at the trial to be inoperative as a conveyance of the-property. And such undoubtedly it was, for a grant in fee or of a. freehold estate has been required to be sealed as well as subscribed by the person intending to convey the estate, or by his lawful agent. (2 B. S. [6th ed.], 1119, § 158.)

But it does not follow because the instrument was not sealed that it did not convey or transfer to the person named as grantee an equitable interest in the property. The law on the contrary, as it was stated to be by Spencer, Ch. J., in delivering the opinion of the court in Wendell v. Wadsworth (20 Johns., 659, 662), would entitle the person named as grantee in equity to such a conveyance as would carry into effect what appeared by the informally executed instrument to be the clearly expressed intention of the parties. And such was also the agreement inserted in the instrument for McAteer, for himself, his heirs and assigns agreed that the said party of the first part and his heirs, and all and every other person or persons whatsoever, lawfully or equitably deriving any estate, rights, title or interest of, in or to the hereinbefore granted premises, by, from, under or in trust for him, them, or either of them, shall and will at any time or times hereafter upon the reasonable request, and at the proper costs aud charges in the law, of the said party of the second part, his heirs - and assigns, make, do and execute, or cause or procure to be made, done and executed, all and every such further and other lawful and reasonable acts, conveyances and assurances in the law, for the better and more effectually vesting and confirming the premises hereby intended to be granted in and to the said party of the second part, his heirs and assigns, forever, as by the said party of the second part, his heirs or assigns, or counsel learned in the law, shall be reasonably devised, advised or required.

This instrument, therefore, created an equitable interest in the land in tie person to whom it was executed and delivered. And that entitled him to require the completion of the title by the addition of a' seal, or the execution of a further conveyance for this purpose. That it was the intent of McAteer to seal the instrument is clearly evident from the attesting clause, for in that it was recited that he had set his seal as well as his hand to the instrument. ■ And the person named as grantee clearly has the right to require the specific execution of this intention. (National Bank, etc., v. Lanier, 7 Hun, 623; 3 R. S. [6th ed.], 141, § 10.)

As it was the effect of this instrument to vest Dyer with an ' equitable right to the property, it could be lawfully recorded as it was under the authority of the statute, for that has been made to include every instrument in writing by which the title to any real estate may be affected in law or equity. (2 R. S. [6th ed.], 1151, § 72.)

This was such an instrument, for it so far affected the title in equity as to vest Dyer with the right to a complete and effectual conveyance of it.

The proceedings taken to foreclose the mortgage were commenced on or about the 7th of April, 1877, and as this instrument had then been placed upon the records under the authority of the statute, the party instituting the foreclosure, was for that purpose chargeable with constructive notice of that fact. For when an instrument has been lawfully recorded this effect is required to be attributed to the record. The foreclosure proceedings must, therefore, be held to have been earned on subject to this constructive notice.

After the recording of this instrument and on the 27th of January, 1877, Dyer executed and delivered a deed to the- plaintiff, by which it has been claimed that he acquir ed a similar interest to a portion of the property covered by the mortgage. This deed was executed and properly sealed and acknowledged, and it was recorded on the 30th of January, 1877. But in describing the property conveyed by it, that was located in the block between Sixth and Seventh avenues instead of being in the block between Fifth and Sixth avenues. But the interest conveyed was not left to stand alone upon this misdescription, for this was followed by the statement that the property was the same premises conveyed to the said George H. Dyer by James McAteer, by deed bearing date the day of January, 1877, and recorded in the office of the register of the city and county of New York, on the 20th day of January, 1877, in liber 1403 of conveyances, page , together with and including the premises described in a certain other deed made by and between the same parties aforenamed, bearing date and recorded the same day in the same liber 1403 of conveyances, page

This instrument from McAteer to Dyer, called a deed, had been recorded in the liber mentioned and referred to on the day so stated, and a reference to that record would readily have corrected the mistake made in locating the property, for it would have shown at once that the property was in the block west of Fifth avenue. In construing the deed all these references to the location and description of the land intended to be conveyed are required to be considered. For the object of the law is to ascertain and discover the intention of the parties, and when that may be done, to carry the intention into effect. (2 R. S. [6th ed.], 1130, § 2.)

And by giving its appropriate effect to this latter clause, no difficulty would stand in the way of discovering that the land intended to be conveyed was in part that which had been mentioned and described in the instrument executed by McAteer to Dyer.

The party proceeding with the foreclosure of' the mortgage, as well as the purchaser at the sale, were chargeable with notice of the contents of these instruments, for the reason that they had been lawfully recorded. And the latter must accordingly be held to have made his purchase in subordination to the right of the plaintiff to secure, by a redemption, the legal title to such property. That interested him in it so far as to render him a necessary party for the effectual foreclosure and sale of the equity of redemption in the estate. It is rare that such a succession of blunders is to be found in important documents of this nature, but notwithstanding their existence the plaintiff is entitled to relief, if that can be secure^ to him under the operation of the settled principles of equitable jurisprudence. And that it can be would seem to follow from the consideration already given to these instruments As the plaintiff’s interest was not extinguished by the foreclosure and sale, for the reason that he was not made a party to the action, he still remained vested with it, and entitled, by reason of it, to redeem so much of the mortgaged property from the foreclosure as may be included within the terms of the instrument executed and delivered by Dyer to him. (Peabody v. Roberts, 47 Barb., 92.)

The judgment'in the case should be reversed and a new trial ordered, but without costs.

Davis, P. J., and Beady, J., concurred.

Judgment reversed, new trial granted, without costs.'


author: Daniels, J.:

text:
    HADLEY FALLS NATIONAL BANK, Appellant, v. REUBEN MAY, Respondent.

      Composition agreement — a debtor who has not complied with it cannot set it up as a defense to an action on the original debt.

    In May, 1875, the plaintiff and other creditors of the defendant, entered into an agreement under seal, whereby they agreed with him and with each othei to “ receive and accept the sum of twenty-five per centum on the dollar owing to us and set opposite to our names, in satisfaction of our demands.” The defendant having failed to pay the stipulated sum of twenty-five per cent on the dollai-, after demand therefor had been duly made, the plaintiff brought this action in December, 1880, upon the notes which it held at the time of the making of the said agreement.

      Held, that the defendant having failed to comply with the terms of the composition agreement, could not set it up as a defense to this action.
    Appeal from a judgment in favor of the ^defendant, entered upon a verdict directed by the court, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      Taylor & Packer, for the. appellant.

      Abram Kling, for the respondent.
   Daniels, J.:

The defendant was clearly liable upon the notes made by him, which were set out in the complaint, unless the compromise agreement delivered to him in May, 1875, in itself constituted a legal defense. This agreement, as the evidence at the trial tended to establish it, was in the following form:

“ Know all men by these presents, that we, the undersigned creditors of Reuben May, do, for and in consideration of the sum of one dollar to us each in hand paid, covenant with the said Reuben May and with each other to receive and accept the sum of twenty-five per centum o.u the dollar, owing to us and set opposite to our names, in satisfaction of our demands.
“ In witness whereof we have hereunto set our hands and [l. s.] seals, this day of May, 1875.
“JOHN HANCOCK NATIONAL BANK,'
“ By B. S. Moore, President.
“ HADLEY FALLS NATIONAL BANK,
“ By Ch. W. Ban let, P.
“B. H. Arthur.
“ In presence of Abram Kling.”

The action upon the notes was commenced in December, 1880, and it was shown upon the trial that payment of the stipulated sum of twenty-five per cent on the dollar had been demanded and refused. It was under these circumstances that the court at the trial held that no action could be maintained upon the notes themselves. This ruling seems to have been made on the authority of Breck v. Cole (4 Sandf., 80), but that case was not authority for it.' The action there determined was upon a -note made by the debtor himself, in addition to those which the creditors by their composition agreement had stipulated to receive in full satisfaction of their debts, and it was held that this additional note of the debtor had been unlawfully exacted by the creditor and delivered to him by the debtor; that it was a fraud upon the other creditors, and therefore no action could be maintained upon it.

This principle is very well settled and entered into the decision of the case of Lawrence v. Clark (36 N. Y., 128). But it was not involved in the determination of the present case, and failed to justify the disposition which was made of it at the circuit. The case of Good v. Cheesman (2 Barn. & Adol., 328), relied upon as sustaining the ruling which was made, was also clearly distinguishable in its facts, for there the creditors agreed to accept payment of their debts by the debtor, “ covenanting and agreeing to pay to a trustee of our nomination one-third of his annual income, and executing a warrant of attorney as collateral security until payment thereof.” The debtor was always ready to perform, but the creditors failed to appoint the trustee to whom payment could be made, and the w^jrant of attorney delivered. And it was because the creditors had accepted this covenant, which the debtor had been at all times ready to perform, and they had deprived him of the power of doing so by their omission to select the trustee, that the defense depending upon the composition agreement was sustained. The case of Norman v. Thompson (4 Exch., 755) is equally as inapplicable to the present controversy, for there had been no default in the performance of the agreement. But the debtor, on the contrary, showed by his plea the sufficiency of which was in controversy that he had been at all times ready and willing to perform.

By the agreement which was entered into on the part of the plaintiff in this action, the only covenant or stipulation which was made, was that it would accept the sum of twenty-five per centum on the dollar in satisfaction of its demands. It was therefore not an agreement to accept or receive the promise of the debtor to pay that amount in satisfaction, but the actual payment of that per cent-age by the debtor was requisite to perform the agreement and satisfy the debts. The terms of the agreement can be satisfied by no other rational construction; and where that is the effect which must be given to them, then the debtor oannot-rely upon the agreement for his protection after he himself has failed to perform it by refusing to make the stipulated payment. The case of Penniman v. Elliott (27 Barb., 315) is a direct authority supporting this legal proposition. Its correctness was conceded in Hall v. Merrill (5 Bosw., 266), and it has repeatedly been applied in the same manner in the determination of the effect of similar compromises or compositions made under the bankrupt law.

In re Hatton (L. R., 7 Ch. App. Cases, 726) the creditors had agreed to accept five shillings in the pound in two installments in satisfaction of their debts. The debtor paid the first but failed to pay the second installment, and on account of that default the creditors were held entitled to enforce the original liability as that had been incurred by the debtor. And a similar view was sustained in Goldney v. Lording (L. R, 8 Q. B., 182) and Newell v. Van Praagh (L. R., 9 Com. Pleas, 96).

The principle applicable to this class of cases is that if the promise be for a new consideration, performable at a future day certain, then the original right of action is suspended until that day comes. If the promise is then duly performed this right is. destroyed, but if the promise is not then duly performed this right revives and the promisee has his election to sue on the original cause of action or on the new promise, unless by the terms or the legal effect of the new contract the new promise is itself a satisfaction and an extinction of the old one.” (2 Pars, on Con. [6th ed.], 683.) And where the time of performance has not been specified the debtor is required to perform it within a reasonable time, and if he fails to do so the consequence will be the same under this general principle of the law. The same distinction was approved in Kromer v. Heim (75 N. Y., 574), and the Chemical Bank v. Kohner (85 id., 189) and Baxter v. Bell (86 id., 195) in no respect whatever either questions or impairs its effect.

By the failure of the debtor to pay the stipulated twenty-five per cent mentioned in the agreement delivered to him he deprived himself of all the benefit which it was designed he might secure by the performance of its terms. From the time of that failure the proposal ceased to be binding upon the plaintiff, and it afterwards had the right to resort to the notes held by it and enforce them as legal obligations against him. The judgment and order should therefore be reversed and a new trial directed, with costs to the plaintiff to abide the event.

Macomber, J., concurred.

Present — Davis, P. J., Daniels and Macomber, JJ.

Judgment and order reversed and a new trial directed, with costs to plaintiff to abide event.


text:
    NILS MITANDER, as Assignee, etc., Respondent, v. JONAS SONNEBORN and Others, Appellants.

      Composition in bankruptcy — who is to be named as the creditor in the bankmipt’s statement— when he does not cease to be such by an assignment of his claim — a sealed assignment of a debt is a deed and may be acknowledged before a United States consul.

    This action was brought by the plaintiff in January, 1875, upon a debt due from the defendant to one Graf, a resident of Sweden, who had assigned the same to the plaintiff November 6th, 1874. In answer to a discharge by a composition made in January, 1877, in bankruptcy proceedings instituted against the defendant Noyember 12th, 1874, which discharge was set up by the defendant; the plaintiff showed that he was not named as a debtor in those proceedings, but that the debt was therein stated to be still owing to Graf. The defendant offered to prove that before the proceedings for the composition were taken the plaintiff admitted to him that Graf was still the real owner of the debt.

      Held, that the court erred in excluding the evidence; that if Graf was absolutely entitled to any money which should be paid upon the debt, he was the creditor within the meaning of the bankrupt act, and that the composition made in pursuance thereof was a bar to the action.
    An assignment of a debt under seal is a deed, and a United States consul may take the acknowledgment thereto.
    Appeal from a judgment in favor of the plaintifE, entered on the trial of this action by the court without a jury.

      A. J. JJittenhoefer and M. 3. Regmsberger, for the appellants.

      J. C. Or ay, for the respondent.
   Daniels, J.:

The debt which has been recovered in the actions -was owing from the defendant to William Graf, who resided in Sweden. An assignment of this debt to the plaintiff, executed on the 6th of November, 1874, was read in evidence on the trial. An exception was taken to the ruling under which it was received, for the reason that it had only been acknowledged before the United States consul. But as the assignment was under seal, it was a deed, and the consul could properly take the acknowledgment under the provisions of the statute allowing deeds to be acknowledged before such an officer.

By way of defense it was proved that proceedings in bankruptcy were instituted against the defendants on the 12th November, 1874, and that in January, 1877, a composition of the indebtedness owing by the bankrupts was made between them and their other creditors under the authority of chapter 390 of the Laws of Congress, 1874. The assignee of this debt was not named as a creditor in this proceeding, but the debt itself was made a part of them under the statement that it was still owing to Graf. This was held to be insufficient for the purpose of affecting the plaintiff as the assignee of the debt, for the reason that the action had been commenced against the defendant by the plaintiff, in January 1875, and consequently informed him of the fact of this assignment.

To obviate and remove this objection, evidence was offered by the defendant, as a witness in the case, of conversations between himself and the plaintiff before the proceedings for the composition were taken, in which the latter conceded to him that Graf was still the owner of the debt. This was proposed to be given by questions propounded in various forms to the witness, all of which were rejected upon the theory that the assignment had so changed the title to the demand as to render the plaintiff, and not Graf, the creditor of the defendants. This, as a general legal proposition, would be undoubtedly correct. (Sheridan v. Mayor, 68 N. Y., 30.) But nothing is contained in that decision preventing the debtor, whose legal protection may require that to be done, from showing, as a matter of fact, that the demand, notwithstanding the formal assignment of it, still continues for all substantial purposes to be the property of the assignor. The debtor is not a party to the assignment and not concluded by it as a written instrument'; but for the purpose of maintaining any defenses legally accruing to him, may prove the fact that the demand still remains the property of the original creditor. The doctrine of Blair v. Wait (69 N. Y., 113) is sufficiently broad and extended as to allow such proof to be made. This was the theory upon which the defense was designed to be placed. It had been alleged in the answer that Graf was the real party in interest and the owner of the claim, and that the assignment had been made in his interest and for his benefit, and the proof which was offered would have been pertinent evidence to establish that fact, and if it had been proved, then it would become evident that Graf, and not the plaintiff, was still the defendant’s creditor, and that would have brought his claim within the effect of the composition proceedings, for the law upon this subject has rendered them binding on all the creditors whose names and address, and the amount of whose debts are shown in the statement of the debtor produced at the meeting.

The evidence offered was designed to prove as a fact that Graf was absolutely entitled to the money which should be paid upon this indebtedness, and that proof, if sufficient, would have shown him to be the creditor within the terms of these provisions of the statute. (Sup. to II. S. R. S., 73, 74, § 17.) The act has not prescribed who shall be named as the creditor, but has left that depen dent upon the general considerations of the law, and under them the person who is entitled to receive the proceeds of the debt from the debtors must be regarded and held to be the creditor. If this evidence had been receivéd, and the assignment had been shown by it to have been merely formal in its nature, and that, as a matter of fact, the debt still continued to be the property of Graf, then the composition proceedings would be binding, and consequently a legal defense in the action.

Neither the case of In re Bechet (12 Nat. Bk., Reg., 201), nor Stone v. Simonds (131 Mass., 457), contains anything conflicting with the propriety of this conclusion.

The evidence offered to prove this fact should have beeu received, and because that was not done, but it was rejected by the court, the judgment should be reversed and a new trial ordered, with costs to abide the event.

Maoomber, J., concurred.

Present — Davis, P. J., Daniels and Maoomber, JJ.

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


author:
Macomber, J.:
      Daniels, J.:

text:
    HENRY O. BARNARD, Respondent, v. HENRY MORRISON, Appellant.

      Pleading — what statement in an answer is not to be considered as a demurrer.

    Tlie answer of the defendant, in this action, after denying certain of the facts set forth in the complaint, and setting up two separate defenses, proceeded: “Fourth, and, as a further and distinct defense to the matter set forth in the amended complaint, the defendant avers: that it does not state facts sufficient to constitute a cause of action; that no cause of action has accrued to the plaintiff against the defendant, as alleged in the amended complaint, or of any kind or nature whatever.”

      Held, that the fourth clause of the answer did not profess to be, and was not to be treated as a demurrer, and that the court below erred in treating it as such and requiring the defendant to elect whether he would stand by the answer or the demurrer.
    (Daniels, J., dissenting.)
    Appeal from an order of the Special Term requiring the defendant to elect whether he will stand by the answer or the demurrer.

      The action was brought to recover money lost by the plaintiff in playing poker with the defendant. The defendant denied certain of the allegations of the complaint, and set up two separate defenses. The answer then read as follows : “ Fourth, and, as a further and distinct defense to the matters set forth in the amended complaint, the defendant avers: that it does not state facts sufficient to constitute a cause of action; that nq cause of action has accrued to the plaintiff against the defendant, as alleged in the amended complaint, or of any kind or nature whatever. Wherefore the defendant demands judgment against the plaintiff, dismissing the amended complaint in this action, with costs.”

      John Graham, for the appellant.

      A. H. Nones, for the respondent.
   Macomber, J.:

It was a mistake for the learned judge at Special Term to regard the pleading served by the defendant as both an answer and a demurrer. The clause therein, “ that the complaint does not state facts sufficient to constitute a cause of action,” though a ground of demurrer, may or may not be a demurrer, according to the connection in which it is used with other matters. When appearing with denials and with affirmative defenses in an answer, it is no more than a notice, quite unnecessary to be sure, that at the trial the defendant ydll move for a dismissal of the complaint on that ground.

There are some decisions at Special Term of this court, pronounced at quite an -early day under the Code of Procedure (Spellman v. Weider, 5 How. Pr., 5; Howard v. Michigan So. R. R. Co., Id., 206), and also in the Common Pleas (Slack v. Heath, 4 E. D. Smith, 95), which seem to support the decision, but they cannot be deemed to be more than the statement of the now perfectly well recognized principle of pleading under the Code; that the same cause of action cannot be both demurred and answered unto in the same pleading. In this case, however, the clause does not profess to be a demurrer, but professes to be an answer only; it has none of the formal parts of a demurrer, but only, a statement of a cause for which a demurrer might have been interposed.

The order should be reversed, with costs.

Davis, P. J., concurred.

Daniels, J.:

My construction of the pleading is that it was in substance and effect both a demurrer and an answer, and for that reason the order was right directing the defendant to elect upon which he would stand. I therefore disagree with the conclusion of Mr. Justice Macomber, and think the order should be affirmed.

Order reversed, with costs.


text:
    In the Matter of the Estate of ROBERT BROWN, Deceased.

      Will —- when an estate in remainder is nested, — when it is not digested by the subsequent death of the legatees, the childn'en of the life tenant, before the latter’s death.

    A testator after giving to each of his four sons and their respective heirs, executors, administrators and assigns forever, the one tenth part or share of his estate, gave and bequeathed to each of his six daughters, naming them, the rent, interest and income of one of the said tenth parts or shares, for and during the term of her natural life. The will then proceeded as follows : “And, upon the death of any or either of my said daughters, I give, devise and bequeath unto such child or children as my said daughters so dying shall have , or leave living at their decease, and to the heirs and assigns of such child or children forever, as tenant in common, one part or share of my said estates, that is to say, the children of my said daughters, to have the part or share whereof their mother receives the rent and income during her life.”

      Held, that the children of a daughter took a vested remainder in fee in the share of their mother, and that the estate so acquired was not divested by their subsequent death during the life of the mother.
    Appeal from an order made at a Special Term confirming the report of a referee.

      James A. Jeering, for Henry Burden, guardian, and others, appellants.

      Alexander Melhado, for Wood D. Loudon and others, respondents.

      Turner, Lee & McClure, for Farmers’ Loan and Trust Company.

      George H. Bell, for Maria T. Loudon.
   Brady, J.:

Edward H. Loudon, Marie Terese Bird and Wood D. Loudon, grandchildren of one Robert Brown, deceased, and the surviving children of Maria Loudon, who died intestate on the 4th of May, 1882, and who was the daughter of the said Robert Brown, applied to this court for an order directing the Farmers’ Loan and Trust Company to distribute unto and amongst them, according to their right, title and interest therein, respectively, all moneys and property out of a certain administrator fund to which they were entitled under the will of their grandfather.

The appellants, namely, Edward Loudon, Henry Burden Loudon, Clara Estella Evans, wife of Robert Evans, the children of Williani Jacklin Loudon, deceased, and who died on the 9th of February, 1874, intestate, all of' whom are infants and grandchildren of Maria Loudon, the daughter of Robert Brown, as already stated, presented their petition, alleging that the proceeding already mentioned had been taken in reference to the administrator fund without notice to them, and that an order of reference had been made, and asking that they might be allowed to come in and to participate in the proceeding mentioned; and an order was thereupon made declaring them to be parties to the proceeding, the concession having been made in open court that they were the persons they represented themselves to be.

The claims of these persons respectively grows out of the seventh clause of the will of Robert Brown, which, so far as it affects the question, is as follows :

And I do hereby give and bequeath unto each of my said sons, Robert, William, Edward and Jameson D., and to their heirs, executors, administrators and assigns forever, one part or share thereof, being four shares in the whole. I give and bequeath unto each of my six daughters, viz.: Ann (wife of Sebra Ely), Catherine (wife of Charles L. Clussman), Sarah (wife of Samuel B. Fleming), Maria (wife of William Loudon), Emeline and Louisa, for and during the term of their natural lives, respectively, the rent, interest and income of one other part or share of my said estates (subject nevertheless as aforesaid), being the six remaining shares. ' And upon the death of any or either of my said daughters, I give, devise and bequeath unto such child or children as my said daughters' so dying shall have or leave living at their decease, and to the heirs and assigns of such child or children forever, as tenants in common, one part or share of my said estates, that is to say, the children of my said daughters to have the part or share whereof their mother received the rent and income during her life.”

The referee who was selected to conduct the proceeding mentioned, reported as follows:

First. That Edward H. Loudon, Marie Terese Bird and Wood D. Loudon, ai;e grandchildren of Robert Brown, deceased, and are children of Maria Loudon, deceased.

Second. That said Maria Loudon was a daughter of Robert Brown, the testator herein, that she died intestate in this city May 4, 1882, leaving her surviving four children, to wit, Edward H. Loudon, Milton C. Loudon, Marie Terese Bird and Wood D. Loudon, all of full age.

Third. That prior to July 1, 1882, Wood D. Loudon became and now is the assignee of all the right, title and interest of the above named Milton C. Loudon in and to his share and portion of the several funds held by the Farmers’ Loan and Trust Company as administrator and trustee herein.

Fourth. That prior to the commencement of these proceedings the petitioners applied to the Farmers’ Loan and Trust Company, as trustee and administrator of said funds, for their shares and portions of the said funds so held by said company, and that payment was refused by said company on the sole ground, to wit, that said company had been advised that said Maria Loudon had grandchildren whose parents died before the death of said Maria Loudon, which said grandchildren might, under the will of said Robert Brown, be entitled to the share which their parent, to wit, William J. Loudon would have taken had he survived his mother the said Maria Loudon.

Fifth. That William J. Loudon, a son of Maria Loudon, died in this city about the year 1872, leaving a daughter Marie Terese Loudon (now residing at Tarrytown, New York, and of full age) by his first wife now deceased, and two children by a second wife, which said second wife and two children were living at the time of the death of the said William J. Loudon.

Sixth. Whether the children of the said William J. Loudon, by his second wife, are now living, the proofs offered before me do not show. I am not able to report their names and residences. And it is upon these facts that the appeal rests.

The referee, in liis opinion, arrived at the conclusion that the testator intended to and did limit his devise and bequest to the child or children of each daughter, living at her decease. And this result necessarily excluded the children of William J. Loudon from any participation in the fund mentioned, for the reason that he died in 1872, and consequently was not living at the time of the death of his mother. This conclusion of the referee is based upon a construction that the will clearly designates the, object in the testator’s mind, and he says that the clause properly considered may be read stated:

“ I wish each of my six daughters to have the income of one-tenth of my estate during life. When any one of them shall die, leaving living child or issue, such child or children shall take absolutely the share from which their mother derived an income.” And this reading led him to the conclusion stated. And this view of it was sustained by the learned judge presiding at the Special Term when application was made for the confirmation of the report, the learned judge stating that he was satisfied with the reasons assigned by the referee, and in reference to the language of the clause applicable to the subject under consideration, said further, that in his judgment the addition (after the words “ shall have ”) of the words £‘ or leave ” was simply to emphasize the testator’s meaning. He further said: “ Yiewing the sentence grammatically, there can be no doubt as to the proper construction. The result is the same if grammar be disregared in the effort to reach the intention. For it is plain that the testator did not use the word children ’ in such a sense as to embrace £ grandchildren.’ ” And the learned justice declared that the more he read the entire language, the more he was convinced that the testator intended to confine his bounty to those children who survived their mothers.

It is quite evident that the opinion of the referee made a decided impression upon the learned justice, and influenced him, as was natural, in considering the question he was called upon to determine. It is thought, however, that the referee and the learned justice have both adopted an erroneous view of the object and design of the will.

It is equally evident, from the disposition of the rest, residue and remainder of his property made by the testator by the seventh clause, that he intended to divide his property into ten equal shares, four of which were given to his sons and six of which were given to his daughters named, one of whom was Maria, the grandmother of the appellants ; and that the share which was thus given to each one of his daughters was to be divided between the children of such daughters or their heirs, whether such children were living at the death of the mother or not, and that intention is manifest from the language of the clause, as follows :

“And upon the death of any or either of my said daughters, I give, devise and bequeath unto such child or children as my said daughters so dying shall have or leave living at their decease, and to the heirs and assigns of such child or children forever; ” that is to say, upon the death of any one of the daughters, the testator devised and bequeathed the share to such child or children as the daughters so dying should have.

This language necessarily embraces the issue of all the children of such daughter and the words which follow, “ or leave living at their decease,” do not, it is’ thought, emphasize the testator’s meaning that the gift was to the children living at the mother’s decease. . The use of the disjunctive “ or ” does not accomplish that result. The conjunction “ and ” is necessary. If the testator had said “ such child or children as my said daughters so dying shall have and leave living at their decease,” the emphasis suggested would exist. The language employed in effect creates two classes of persons, namely, such children as the daughter should have or leave living, and this would embrace the heirs of a child who died before the daughter as well as those of a child living at her decease, and thus provide for all. If the opposite construction be adopted then the children of a daughter living at the time of the mother’s death would take the property to the exclusion of those of her children whose death preceded her own. The testator in disposing of his property in the manner in which he did, did not mean this. He meant that the child of each daughter and her heirs, whether the immediate issue was living or not, should participate in the share of his daughter, and hence the language not only “shall have” but “to their heirs and assigns,” and also the language “ to the heirs and assigns of such child or children,” that is, the children that the daughter shall have. But in a further provision in explanation of his devise and bequest he said: “ That is to say, the children of my said daughters to have the part or share whereof their mother received the rent and income during her life; ” and this latter clause is wholly unqualified and unconditional. The testator declares by it that the children his daughter shall have shall be entitled to have and receive the share of which the mother received the rent and income.

The only embarrassment encountered, as already seen, in the consideration of this question arises from the use of the words to which reference has been made, “ or leave living at their decease.” But they may, for the reason assigned, be eliminated, and are therefore of no absolute value in the effort to discover the intention of .the testator, or may be. regarded as subservient to the broader view accomplished by the words “ shall have,” and to the declaration subsequently made, by way of explanation, that the children of his daughters were to have the part and share of which the mother received the income during life.

The guiding star in the construction of all wills is the intention of the testator. If that can be developed and rendered certain beyond reasonable doubt it is to be adopted, and it is not necessary that any cases illustrative of that proposition should be cited. It is a perfectly well established rule.

The history of controversies with regard to wills seems to demonstrate it to be of rare occurrence that the clauses about which there is a contest are precisely alike, and iiehce it is very difficult exactly to illustrate from the adjudged cases the propriety of a construction adopted or an intention declared, although it may be that the cases in some respects can be utilized. It has been held, for example, that the words such child or children ” are not necessarily limited to the immediate offspring, but embrace grandchildren, where the other portions of the will show such to be the intention of the testator, or where such a view is necessary to carry into effect his design as manifested from a consideration of the will and its various provisions (Prowitt v. Rodman, 37 N. Y., 42; Scott v. Guernsey, 48 id., 106; Lawrence v. Hebbard, 1 Bradf., 252; Bowne v. Underhill, 4 Hun, 130; Coles v. Brown, 4 Sandf. Ch., 123); although this proposition is neither more nor less than a repetition of the other, namely: that the intention is to control where it can be ascertained, and it is not in violation of some rule of law.

The words “ shall have,” disconnected from the words “ or leave living at their decease,” mean to begetf or bear, as young; to produce as a child. According to the authorities, Webster and Worcester, and as suggested by the learned counsel for the appellants, the language of the clause, considered with reference to the object and design of the testator, may be read as follows: “ I give, devise and bequeath to such child or children as my said daughters, so dying, shall beget, bear and produce.” And this would make it, as it is thought it was intended, an absolute devise to such children, and an interest in the remainder was therefore absolutely vested by the words in the children, just as soon as they were born. William J., the father of the appellants, was one of the children which the testator’s daughter Maria had, and the right to the future enjoyment of a part of the estate was therefore vested in him, and the vested remainder inured to the benefit of his child necessarily as a legal sequence. This result is in harmony with the legal proposition that in construing wills the heirs shall not be disinherited, unless the intention to accomplish that end is clearly expressed. (Scott v. Guernsey, supra.)

Entertaining these views, and having no doubt of their correctness, and with due deference to the opinion of the learned justice in the court below, it is thought the order appealed from should be reversed and the appellants declared to have the right to participate under the provisions of the will in such portion of the fund to which their father, if living, would be entitled.

Davis, P. J., and Daitiels, J., concurred.

Ordered accordingly.


author: Beauy, J.: Daniels, J.

text:
    In the Matter of EDWARD J. MULLER and Others.

      Legacy — when the court will dvreat a portion of the principal thereof to be applied to the support of minors.

    One Anna Muller directed her executors to invest the sum of $6,000 and pay the income thereof to her son Joseph during the term of his natural life, and upon his death to divide the principal among his children in equal shares, the issue of any deceased child to take the share its parent would have been entitled to if living. The son Joseph individually, and as the next friend of his children, applied to have a portion of the principal of the legacy paid to his children

      In Ms affidavit he staled that he was a house painter hy trade and could ordinarily earn two dollars or three dollars a day; that in September, 1881, he was seized with an attack of malarial intermittent fever, which still continued and which rendered him wholly unable to provide for his family; that his wife had been and was similarly affected; that one 'of his children had been placed in a juvenile asylum and the others were suffering from the same illness which affected him and his wife; that he had been turned out of his house for nonpayment of rent; that he subsisted only by charity and upon credit.

      Held, that this application should be granted. (Daniels, J., dissenting.)
    Appeal from an order denying an application made for the payment of a portion of the legacy directed to be paid by the will of Anna Muller.
    The petitioner had four children, the eldest being at the date of the petition eleven years of age and the youngest three years.

      Daniel T. Robertson, for the petitioners, appellants.

      George H. Yeama/n, for the executors, respondents.
   Beauy, J.:

This application, as stated in the opinion of my brother DaNiels, is for the payment of a portion of the principal of a legacy of $6,000, which was to be invested and the income paid to the petitioner during his life, and after his death to be divided among his children in equal shares, the issue of any deceased child to take the share its parents would have taken if then living.

The father applied upon the ground that, through divers mishaps and misfortunes, he has for a year past been wholly unable to "provide for himself and family; that he is a house painter by trade, and if well, could earn in ordinary times from two to three dollars a day in good seasons; that in September, 1881, he was seized with an attack of malarial intermittent fever which unfitted him for work, and which continued to the time of signing the petition, rendering him wholly unable to provide for his family; and further, that his wife was similarly affected and had been sick and unable to provide for the family for the last seven months; that one of his children became unruly and was placed in the juvenile asylum where he now is; that the other children have been seized with the complaint affecting himself and his wife, from two to between five and seven months at a time, during the year last fast, and that the whole family have been supported from time to time by the charity of divers friends and upon the credit of the petitioner in the hope that he might regain his health and repay them hereafter; that on the 15th of August, 1882, he was' dispossessed from his home for the non-payment of rent, and that he was unable at the time of signing his petition to pay his rent then due, amounting to sixteen dollars, without assistance from friends or upon credit. And he further states that his credit is exhausted and, with the exception of the fund mentioned, neither he nor his children have any property or estate of any kind, except a small amount of household furniture, not exceeding in value $100, and some clothing for himself and his wife; that he owes to divers persons about $500, which has been borrowed for the support and maintenance of his family, exclusive of doctors’ bills, and that his wife and children are destitute of all means of support unless the legacy mentioned be apportioned and divided.

The application is made on behalf of all the children by their next friend, the father, and by him individually. The answer of the executors is simply to the effect that they have paid the interest on the $6,000 mentioned whenever the estate has produced any income. There is no denial of any of the facts alleged on behalf of the petitioner from any source.

The power of this court to make an appropriation of the legacy undoubtedly exists, as shown by Justice Daniels and from the cases cited by him. It is true, as suggested by him, that this is never done unless a case of extreme urgency is established by the papers. Such a case seems to be established by these papers, for, assuming the petitioner’s statement to be true, it is quite clear that he has not the means to sustain his children; that he is disabled from working; that his wife is also disabled from working by illness, and that for some time past he has been living substantially upon charity, his friends having assisted him, and upon a certain amount of credit, which is exhausted. There is no evidence, as already suggested, to gainsay this statement of the extremity to which the petitioner is reduced, and therefore a case is made out which is clearly within the rule stated. The emergency exists and there ought to be an appropriation made of a portion of the fund to relieve his present distress.

We should hesitate very much to interfere with the legacy if 'there was any doubt about the statement made by the petitioner on his own behalf and on behalf of his family. JBut we see no reason to doubt it, and there is nothing before us to justify the suspicion that the statement is not honestly and truly made in all respects. In consideration of the whole subject it is thought proper to direct an appropriation of $600, to be paid to the petitioner by the executors in the following manner: One hundred dollars upon the entry and presentation of this order, or as soon as the money can be obtained by the executors, and thereafter fifty dollars a month, the payment continuing until the sum named is exhausted, unless in the meantime the petitioner recovered his health and is able to work. In which case, on presentation of the fact to the court by the executors on behalf of the infants, a further order may be made in the premises modifying the order hereby authorized.

Davis, P. J., concurred.

Daniels, J.

(dissenting):

By the terms of the will the testatrix directed her executors to safely invest the sum of $6,000 during the lifetime of her oldest son, Marc Joseph Emile Muller, to pay him the income thereof, and after his death to divide the principal among his children in equal shares, the issue of any deceased child to take the share its parent would have taken if then living.

The father of these children has now petitioned the court for the payment of a portion of the principal of this legacy to him, to be used in support of the children to whom it has been in terms given.

In support of the application he has stated in his petition that he has been disabled by illness from following his ordinary occupation, and for that reason has not been able to support and maintain his family, and that his wife has also suffered from the same character of illness. The statements made upon this subject are of a very general nature and verified only in the same manner, and the additional affidavits produced are still more general in their nature.

The court is required to proceed with very great caution in diverting a fund of this nature, or any part of it, from the .purpose to which the testatrix has expressly devoted it. It has power, where the emergency may be great, to proceed in this manner, but that is never permitted to be done unless a case of extreme urgency is established by the papers. (Matter of Bostwick, 4 Johns. Ch., 100; Matter of Kane, 2 Barb. Ch., 375). This case has not been so sust lined by the proofs presented in support of the application.

It further appears that the legacy has been invested on bond and mortgage by the executors at five per cent interest, producing a fund of $300 per year, which is now paid over to the father of these children; and that sum, together with what he probably may be able to earn by the restoration of his health, will be sufficient, with the observance of economy, to meet the wants of his family.

Under these circumstances the court should not interfere, when by its action it will break up the scheme of the will of the testatrix and substantially give a direction different from that which she deemed proper for the disposition of this legacy.

The order should be affirmed, without costs.

Order modified as directed in opinion of Brady, J.