author: Finch, J.

text:
    Miles M. O’Brien et al., as Receivers, etc., Resp’ts, v. Lawrence J. Fitzgerald, Impleaded, etc., App’lt.

      (Court of Appeals,

      Filed October 23, 1894.)

    Pleading—Complaint—Relief.
    Where the complaint sets forth facts that may support equally an action at law or in equity, the character of the action is determined by the relief demanded.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order, which affirmed an interlocutory judgment in favor of plaintiffs, entered upon an order overruling a demurrer to the complaint

      Franklin Pierce, for app’lt; Louis Marshall, for resp’ts.

       Reversing, 61 St. Rep. 472.

   Finch, J.

On its face and in its form this is an action at law to recover damages for negligence. The corporation, represented by its duly appointed receivers, sues individuals who were its directors for such neglect or wrong in the performance of their duties as resulted in large losses, and demands a money judgment for the damages sustained. There is no suggestion that any equitable relief is essential to a full and complete redress, and no facts are stated which indicate a need of such intervention. It is not averred that a discovery is requisite to the completeness of the remedy; an the contrary, the acts of negligence are asserted as fully known, and capable of proof. It is not alleged that an accounting is necessary to ascertain the damages, but these are claimed as a definite an'd fixed sum, resulting directly from the negligent acts of the defendants. It is not asserted that such defendants are severally liable for separate and personal misconduct, and in separate and different amounts, although that is a reasonable inference from the facts stated in the complaint, but demands judgment against all and against each for the full amount claimed. The circumstance led to the interposition of a demurrer to the complaint, based upon the ground that different causes of action affecting different defendants had been improperly joined. It is not denied that the demurrer is well taken if the action is to be regarded as one at law, but the contention is that it is an action in equity for the vindication of a trust and the protection of its beneficiaries; and that view of it has been taken by the courts below with some hesitation, and with a very obvious doubt of the consistency of our earlier rulings.

I think those courts are right in saying that the formal demand of relief with which the complaint concludes is not decisive of the legal or equitable character of the action. We so held in Bell v. Merrifield, 109 N. Y. 202; 14 St. Rep. 796, saying that where an answer had been interposed and facts were stated in a complaint which “ show that it is of an equitable nature, and that the cause of action is simply equitable, we do not think a case is made for trial by jury under the Code (§ 968), merely because the complaint improperly asks for a money judgment only.” That language clearly and plainly implied that a demand of judgment for money only would stamp the action as one at law, unless the facts pleaded showed an equitable cause of action simply, and that the relief asked was, therefore, improperly confined to a money demand merely. In other words, our doctrine was that the demand of money only, on its face and primarily, characterized the action as one at law, but not so conclusively as to prevent a different result where the action was clearly equitable rather than legal in its nature, and purely legal relief is improperly demanded. But the case before us is not of that character. The facts as pleaded show a perfect cause of action at law in favor of the receivers as representatives of the bank against the directors for misconduct resulting in loss. The actual and real relation between them and the corporation is that of agents acting for their principal, Hun v. Cary, 82 N. Y. 65, and the directors may be sued at law for any damages caused by their culpable misfeasance or nonfeasance. Within the doctrine of the case cited the complaint before us stated a perfect cause of action to recover' damages at law, and a proper and consistent demand for a money judgment awarding such damages. In the cited case the action was held to be of a legal character, and requires the same ruling now, unless our doctrine has changed, or some valid distinction can be drawn. In support of that idea the case of Brinckerhoff v. Bostwick, 105 N. Y. 567; 8 St. Rep. 196, is pressed upon our attention as indicating that the present action must be regarded as of an equitable character. But there is a wide and vital difference between the two cases. In this the action is by the corporation against its delinquent directors; in the other it was by a stockholder who could not sue at law but was compelled to go into equity to obtain his relief, and whose right of action was wholly and purely of an equitable character.

It may be, nevertheless, that a corporation may sue its directors in equity to recover losses sustained, for there seem to be some cases in which the remedy has been allowed. Granting that, and granting also what I am not now ready to admit as the law of this state, that the facts pleaded in the present case are sufficient to support the action as an equitable one, we are left by the pleader in a doubt which can only be solved by recurring to the demand for relief. He comes into court upon a complaint which, on the concession made, pleads an ambiguous state of facts, such as may support equally an action at law or in equity, and leaving us with no means of determining which view must prevail except by reference to the relief demanded. In such a case that relief as asked must necessarily solve the doubt, because there is no other solution. The facts pleaded do not help us, for they fit equally either a legal or an equitable action, assuming the latter to *be maintainable, and we are justified in relying upon the formal relief demanded to settle the point in dispute. That accords with our system of pleading and with the distinction drawn by the Code. Where the action is for the recovery of money only it is classed as legal and is triable by a jury; and while we have held that we are not concluded by the formal demand of relief, but may look into the facts to see, nevertheless, if it be not equitable relief which they imperatively require, yet where the facts do not aid us, where they are -just as appropriate to a legal as an equitable cause of action, where they are ambiguous as to the subject of inquiry, we must be guided by the relief asked in reaching a -conclusion. That, I think, is the situation here upon the assumption most favorable to the plaintiffs, that upon the facts pleaded without further allegations an equitable action could be supported. My doubt about that is very grave, although I leave the question open. If there were further allegations showing somewhere or in some way the need of equitable intervention the difficulty would be removed. The cases of Glenn v. Lancaster, 21 Abb. N. C. 270; 15 St. Rep. 196; and of Hun v. Cary, already cited, point to this conclusion, and are not overruled or affected by Brinckerhoff v. Bostwick.

It follows that the judgment overruling the demurrer should be reversed and the demurrer sustained, with costs.

All concur. Judgment accordingly.


source: Caselaw Access Project

author: Pinch, J.

license: Public Domain

text:
    The People, Resp’t, v. Henry Miles, App’lt.

      (Court of Appeals,

      Filed October 23, 1894.)

    1. Trial—Jury—Challenges—Criminal cases.
    Where the prisoner’s counsel is, in no case and in no manner, compelled to challenge until after the prosecution has fully exhausted its right, there is a full compliance with the provision of §S 385, 386 of the Criminal Code.
    .2. Evidence—Homicide—Insanity.
    Where one of the defenses interposed to an indictment for murder was insanity, it is not error to permit the prosecution, after evidence has been given on the part of the defense as to words and actions of defendant on an occasion specified which, it was claimed, indicated insanity, to show that on that occasion defendant was intoxicated.
    .3. Homicide—Commission or felony.
    The word “ otherwise,” in § 183 of the Code, is not confined to felonies against property simply, but also includes a felony against a person other •than the one killed.

      Appeal from judgment of tlie court of oyer and terminer of Jefferson county, entered upon a verdict, which, convicted the defendant of the crime of murder in the first degree, and also from an order of said court denying a motion by defendant for a new trial.

      Wilbur F. Porter, for app’lt; Virgil K. Kellogg, for resp’t
   Pinch, J.

The defendant has been convicted of murder in the first degree and sentenced to death. His counsel assails that judgment for alleged errors occurring at the trial, and also insists that upon the merits the conviction should only have been for murder in the second degree.

In advance of the selection of a jury and before any of the panel had been examined, the mode and order of that selection came up for discussion. The court allowed the parties to choose whether all peremptory challenges should be reserved until twelve jurors had been provisionally selected, or whether the case of each juror should be fully settled before leaving the witness stand, and if accepted the final oath be at once administered. The parties chose the latter method and the court assented.

Thereupon "Walter B. Canter was called and sworn as to his qualification of a juror. He was examined by the prosecution and at the close of that examination the prisoner’s counsel asked if the juror was satisfactory to the people, to which the district attorney replied, “ we do not challenge him for bias nor for favor.” The defense insisted that the prosecution should at once accept or reject the juror and exercise its right of peremptory challenge immediately if it meant to do so at all; and to the refusal of the court to so direct an exception was taken. The juror was then examined in behalf of the prisoner, and both examinations having been concluded, and the basis obtained for determining whether challenges should be interposed or not, the court called upon the district attorney for the exercise of his right There was no challenge for general disqualification, nor for implied bias, nor for actual bias, and then the district attorney was called upon to exercise his right of peremptory challenge. He interposed none, and, after a few further questions, the prisoner’s counsel announced himself satisfied and the juror was sworn. In this process there was full obedience to and no disregard of the provision of the Criminal Code that challenges to an individual juror must be first taken by the People and then by the defendant § 885. The next section, fixing the order of the different challenges, indicates that they might have been disposed of in that order. Practically that result was accomplished, but at all events the prisoner’s counsel was in no case and in no manner compelled to challenge until after the prosecution had fully exhausted its right

One of the defenses interposed on the trial was that of insanity. To sustain it proof was given of the conduct of the defendant at Evans’ Mills on an occasion when he was trying to settle his business difficulties with Mrs. Ward, and it was claimed on his behalf that his words and actions on that occasion were so strange and inexplicable as to indicate insanity. To rebut that inference and answer the manifest tendency and purpose of the proof, the prosecution were allowed to show that on that day and that occasion the defendant was intoxicated, and that his excited and ugly conduct was explainable by that fact. The evidence was clearly admissible.

On the day of the homicide the witness Carpenter was one of the first persons who came upon the scene, and described in very considerable detail what the prisoner said, what his appearance was and the manner of his conduct. The following question was then propounded by the defendant’s counsel: “After you were over there at the house with him, before leaving for Evans’ Mills, how did his acts and conversation, which you have here related upon the stand, impress you at the time as to being rational or irrational? ” To this inquiry the prosecution objected that it aggregated a whole series of acts and words and called for an opinion upon that aggregation, leaving if impossible to determine upon what specific acts or words the impression of the witness was founded. The court took that view of the question and at first excluded it, but thereafter changed its ruling and explicitly allowed the question read from the stenographer’s minutes to be put to the witness and answered by him. Thenceforward similar questions were asked by the defendant’s counsel of other witnesses, and I have discovered no instance in which they were excluded.

The remaining objections respected the charge of the court.

The trial judge defined murder in the first degree, using for that purpose the words of the statute. In so far as that definition involved homicide while engaged in the commission of a felony the prisoner’s counsel insisted that it had no application to the facts disclosed. The defendant, as a witness, testified that the fatal shot was fired not at Mrs. Ward, and not even at Eusaw, but in the latter’s direction, without intention to kill or evén to wound him, but solely to frighten him and so drive him away from the premises. The truth of that testimony was submitted to the jury, the court saying that upon that theory the woman was shot accidentally and the prisoner was not guilty. The jury disbelieved the pretended accident and rejected the explanation, and that they were fully justified in that conclusion is apparent from two facts. If the killing of Mrs; Ward had been accidental the prisoner would have said so at the time; it would have, been the first word to spring to his lips; the natural and swift explanation made to those who came upon the scene. But no such word was then uttered. His first word to Carpenter was, “ What are you gQing to do with me ? ” and then he said: “I have shot that woman.” He proposed to carry the dead body into the house, and when Carpenter doubted their right to do so, he insisted and said: “ They will electricity me.” This was the evidence of Mrs. Carpenter, who did not go into the house when they carried the body in; but she adds that when they came out the defendant, in answer to her remark, “You hadn’t ought to done that,” replied, “I don’t think I had ought to, but she would have other men around her, and she slept with that hired man all night,” and further added, “ She has got my property all away from me.” The defense called Mr. Carpenter, who not only corroborated his wife, but repeated what occurred in the house when the body was laid upon the bed. The prisoner bent over her and kissed her, and said : “ Mary I have shot you—I have killed you—my God, Mary, I have killed you—büt I couldn’t help it —I done it because I loved you—you have lied to me—-you have proved false to me and I couldn’t stand it.” All these expressions indicating an intentional killing, and the motive for it are utterly inconsistent with any theory of accident, which was evidently an afterthought. Beyond that the two lines of fire, towards Mrs. Ward in one direction and toward Rusaw in another, were shown to be seventeen feet apart, and made the theory of an accident quite improbable.

But assuming that Miles did shoot at Rusaw intending to wound or kill him, and by a false aim killed Mrs. Ward, the defendant’s counsel contended that the court, erred in describing it as murder in the first degree, and that a felony affecting another than the person killed will not be sufficient to make the homicide murder in that degree. The words of the statute are “ by a person engaged in the commission of or in an attempt to commit a felony either upon or affecting the person killed or otherwise.” Penal Code, § 183. The construction asserted is that the word “otherwise” relates only to felonies against property and does not include a felony upon or against a person other than the one killed. The supposed authority for this construction is People v. Greenwall, 115 N. Y. 520; 26 St. Rep. 226, but it decides no such proposition. In saying that the word “ otherwise ” cannot be changed into “ another ” it means only that it cannot be so narrowed and limited and that it includes a felony against property as well as against another. There was no error in the charge in this respect.

That charge was not unfair or an invasion of the province of the jury. The evidence could not be re-called and put before them in its logical order without seeming to bear heavily upon the prisoner, but they were left to find the facts and steadily instructed that no opinion of the court was intended to be expressed, or should at all influence their conclusion. No opinion was expressed upon any fact in dispute, but the testimony given was recalled so far as was need to make plain the legal rules which it was the duty of the court to state and to explain. There was in truth no defense'available to the prisoner. The proof of insanity fell far short of the legal standard, and the examination of the prisoner himself showed that he fully understood at the time the nature and quality of his act.

We see no reason for a reversal of the verdict.

The judgment should be affirmed.

All concur.

Judgment affirmed.


author: O’Brien, J.

text:
    Elizabeth A. Gray, Resp’t, v. James C. Gray, App’lt.

      (Court of Appeals,

      Filed October 16, 1894.)

    1. Divorce—Alimony.
    Where, in an action for divorce, tlie defendant is served with process and sets up, in his answer, non-residence of the parties and want of jurisdiction, he has no absolute right to have such issue decided upon a motion for alimony and counsel fees, but the court has power to compel him to furnish the plaintiff the necessary means to meet it in the usual way.
    3. Same—Admissions.
    Admissions made by the parties in an action for divorce, whether by pleading or otherwise, are not always binding upon the court or the parties themselves for all purposes and at every stage of the action.'
    3. Same—Residence.
    In cases where a separation takes place between husband and wife by reason of domestic difficulties, thfe wife may obtain a residence in this state which will enable her to maintain an action for divorce.
    Appeal from order of the general term of the supreme court in the second judicial department, which affirmed an order of special term awarding alimony and counsel fees to the plaintiff.

      Charles A. Boston, for app’lt; Frederick H. Man, for resp’t.

      Affirming 60 St. Rep. 225.

   O’Brien, J.

The plaintiff in this action seeks to obtain against her husband, the defendant, an absolute divorce on the ground of adultery. The court at special term made an order, which has been affirmed on appeal, directing the payment to the plaintiff by the defendant of the sum of $250 counsel fee besides $100 per month alimony for the maintenance of the plaintiff and the two children of the marriage, residing with her in this state, during the pendency of the action. •

The only question presented by this appeal is whether the court had the power to make the order. It is alleged in the complaint that the parties were married in this state and that the plaintiff resides here; that the defendant since the marriage has committed various acts of adultery, with proper specifications as to time and place. Some of these acts are charged to have been committed within this state and pthers in the state of Pennsylvania. It is not claimed that the complaint is in any respect defective or insufficient. The defendant in his answer, after denying the commission of the offenses charged, states as a third and separate defense to the whole complaint that, at the times mentioned in the complaint, both of the parties were residents of the state of Pennsylvania, and that the courts of this state have no jurisdiction of the action. The language in which this defense is framed, referring as it does to all the times mentioned in the complaint, and the dates there mentioned being that of the marriage and of the commission of the several acts of adultery charged, renders the meaning somewhat obscure, but it was doubtless intended to include the residence of both parties at the time of the commencement of the action. The plaintiff has demurred' to this separate defense upon the ground that upon its face it is insufficient in law. The defendant’s counsel argues that the facts stated in the special defense with respect to the residence of. the parties stand admitted upon the record. It appears from a statement in the order that the pleadings with other proofs were before the court upon the hearing of the motion for counsel fees and alimony. The petition and affidavits in support of the motion would warrant a finding by the court upon the motion that the parties had separated some time before the commencement of the action and that the plaintiff was then a resident of this state as defined by § 1768 of the Code, unless the admissions of the demurrer were conclusive. Section 1756 of the Code authorizes an action for divorce where the parties were married within this state. The general rule to be derived from principles of universal application is that the courts of this state have no power to adjudge the status of parties residing beyond its jurisdiction. It is not likely that this rule was changed or intended to be changed by the provisions of the Code. "Without deciding the question we will assume for the purposes of this appeal that such is the law. But it would not follow, we think, from such concession that the order in question was made without power. It appears from the papers used upon the application that the summons was served upon the defendant in this state and that he has appeared though denying the jurisdiction as above stated. The court thus obtained jurisdiction of the defendant’s person though it may not of the subject-matter of the action. The defendant, upon his own theory, came into the courts of this state to obtain an adjudication as to the legal effect upon the action of the residence of the parties in another state at the time of the commencement of the action. He presented a question which the court was not bound to decide in advance of the trial and upon a motion of this character. The admissions of the demurrer and the allegations in the petition and affidavits were in conflict. The jurisdiction of the court to grant the plaintiff any relief was a fundamental question upon which the plaintiff was entitled to a hearing and to the assistance of counsel quite as much as upon any other question of fact or law in the ease. If it be assumed that the defense as to the jurisdiction was good the defendant might have safely disregarded the action and challenge any judgment rendered against him as void when attempted to be enforced at any time or within any jurisdiction. But he elected to have a decision upon the question in the courts of this state, and he was not entitled to that except in the regular and ordinary course of procedure and upon compliance with the usual practice with respect to counsel fees and alimony. Even if the fact of residence in another state was to be deemed settled by the demurrer, still the legal effect of the fact‘upon the suit still remained. That raised an issue of law which the defendant had no absolute right to have decided upon a motion, as the court ha'd power to compel him to furnish the plaintiff the necessary means to meet'it in the usual way. But admissions made by the parties in an action to obtain a divorce, whether by pleading or otherwise, are not always binding upon the court or the parties themselves for all purposes and at every stage of the action. It is not until judgment is rendered upon the issue of law and all opportunity for tbe party demurring to change position by amendment or withdrawal has passed, that such a pleading upon a motion like this should be given the effect claimed for it by the learned counsel for the defendant. The papers used on this motion disclosed a condition of things that might well induce the court to hesitate before declining at that stage of the case to proceed for want-of jurisdiction. The plaintiff’s petition and the affidavits in support of it states in positive terms that she resided in Brooklyn with her mother when the action was commenced. The fact that she was actually sojourning or dwelling there at the time is nowhere denied by the numerous affidavits produced by the defendant. On the contrary, it is perfectly plain as matter of fact that the plaintiff left Philadelphia, where her husband then and still resides, in April, 1893, some months before this suit was commenced, and that since that date she has been residing within this state. The point and meaning of the answer demurred to is that inasmuch as the residence and domicile of the defendant is in Pennsylvania that also must be the residence and domicile of his wife. It is no doubt true that, prima facie, the domicile of the husband is that of the wife, but it is equally true that in cases where a separation takes place by reason of domestic difficulties, such as are disclosed by this record, the wife may obtain a residence in this state which will enable her to maintain the action. Code, § 1768. It appears that numerous papers were read upon the hearing of the motion upon the question of residence by both sides without objection, and under such circumstances the court was not confined to what appeared from' the pleadings, but had the right to consider the other proofs and to do justice according to what seemed to be the actual facts of the case. Giving to all the proofs before the court their proper weight the power to make the order cannot, I think, be doubted.

It follows that the order should be affirmed, with costs.

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

Order affirmed.


author: Peckham, J.

text:
    The People, Resp’t, v. Pasquale Leonardi, App’lt.

      (Court of Appeals,

      Filed October 23, 1894.)

    1. Homicide—Intoxication.
    Where it appears, upon the trial of an indictment for murder in the first degree, that defendant was intoxicated at the time he committed the crime, the jury should be instructed that, if the intoxication had extended so far in its effects that the necessary intent, deliberation and premeditation were absent, the fact of such intoxication must be considered, and a verdict rendered ip accordance therewith.
    2. Same.
    The intoxication-need not be to the extent of depriving the accused of all power of volition or of all ability to form an intent.
    3. Appeals—Court op Appeals—Criminal cases.
    In.the absence of exceptions, unless the record shows that the ends of justice really require a new trial, it will not be granted under § 528 of Penal Code, even though some legal or material error may have occurred upon the trial. •

      Appeal from judgment of the court of oyer and terminer of Montgomery county, entered upon a verdict, which convicted the defendant of the crime of murder in the first degree.

      Louis H. Reynolds, for app’lt; Leonard, F. Fish, for resp’t.
   Peckham, J.

The defendant appeals from the judgment of the Montgomery Oyer and Terminer entered upon the verdict of a jury convicting him of the crime of murder in the first degree. He was convicted of the killing of one Conover by stabbing him with a knife. The defendant is an Italian about twenty-four years of age. On the afternoon of September 12, 1893, in one of the streets of Amsterdam, he met the deceased and inflicted upon him the wounds from which he died in the course of a few days. The killing was done publicly, in the presence of a number of people, and so far as the deceased was concerned it was wholly without provocation, and, as counsel contended, it was also without motive.

There was evidence upon the part of the defendant that he was very much intoxicated at the time, and the material question in this case arises over the charge of the judge as to the proper effect to be given to this fact. It would seem that the counsel for the defendant had maintained before the jury that defendant was substantially insane, and, therefore, irresponsible at the time he committed the deed, or if not insane that he was so far intoxicated as not to have been guilty of murder in the first degree.

Further elaboration of the facts preceding and surrounding the killing is unnecessary in order to appreciate the bearing of the remarks of the learned judge in his charge to the jury upon the question of intoxication.

The judge charged upon the defense of insanity that if the defendant had intelligence enough to know right from wrong as .to the character of the act which he committed, knew that it was wrong, he was responsible; but if he were bereft of reason, intelligence, sense and judgment and acted without knowledge or intent as to the result of his acts he was an irresponsible person. No criticism can be passed upon this portion of the charge. The judge then said that that was all he should say as to the intoxication of the defendant bearing upon his knowledge of right and wrong, of his capacity to distinguish- between right and wrong and to know whether the act of stabbing and killing Conover was wrong, but that he should speak thereafter upon the subject of intoxication as bearing upon the question of motive.

His charge thus far, it is seen, was confined to the question of drunkenness as an excuse, so far as to render the person irresponsible as an insane person, or as one who was so far intoxicated as to be wholly unaware of the act committed by him, or of its nature or extent. Then other matters were touched on by the learned judge, and subsequently he charged the jury with great ability and clearness upon the law in regard to the grade of the crime, the fact of premeditation and deliberation and the time necessary to elapse in order to constitute the higher grade of the crime of murder. All this was done with great fairness and in a maimer which left nothing to be desired. He then continued his charge upon the fact of intoxication with regard to this portion of the case as follows:

“ Now, that is all I propose to say on that branch of the case except with respect to intoxication. Of course the defendant must,in order to be found guilty of murder in the first degree, or indeed of any degree of murder, have the intention to kill; have some motive perhaps—the law does not, however, require that any motive shall be proved, and perhaps I ought to correct my statement by saying that it is proper for you to look into the testimony closely for the purpose of discovering a motive. It is not necessary that you should find it. It is alleged on the part of the defendant that the prisoner did hot, in consequence of intoxication, have any motive; that he did not have any such sufficient intention to kill as would constitute murder in the first degree, and that he was not capable of so deliberating as to be guilty of murder in the first degree. These are questions for you to consider upon all the evidence. I express no opinion with respect to it. It is not my province to express any opinion with reference to a question of that nature. It is a question of fact for you to determine, and I am only required to state the rules of law which you ought to have in your minds in reaching your determination. If he was sober enough to know what he was about, and that the act was wrong, then his intoxication and his motive would both exist and the one would not destroy the other. If his intoxication made him more excitable and led him the more readily and easily to commit the crime, to form the intent and to reach a conclusion, as the result of deliberation upon it, then his intoxication would not help him. He must be so completely intoxicated in order to be excused as to be destitute of the capacity to realize the wrongful nature of his act; that his acts are wholly aimless and without purpose. I might illustrate the idea which I have in mind and am trying to present to you by referring to the testimony in relation to (his brother) Pietro’s acts upon the streets. As I before remarked, there does not seem to be much question but what Pietro was very much intoxicated. And among the other acts which are spoken of by witnesses as having been done by Pietro is the act of standing on the street and picking up stones and throwing them down again with violence. Now what motive could he have had for picking up stones and throwing them down on the street? That seems to me to be very much like an aimless, purposeless act of a man who does not know what he is about, who is doing something without any motive, and I speak of it to impress upon your minds, if I can, a correct notion of the extent of the intoxication under which a man must rest in order to make his acts purposeless acts. He must strike something like the wild beasts, bereft of sense, intelligence, judgment and reason, that act according to a purposeless impulse. You are to consider how well the evidence satisfies you that the defendant Pasquale had reached that aimless and purposeless condition.”

At common law drunkenness was not only not an excuse for crime, but evidence of intoxication while admissible, and to be considered in some cases, was yet generally of no avail. If a man made himself voluntarily drunk it was no excuse for any crime he might commit while* he was so, and he had to take the responsibility of his own voluntary act. If the assault were unprovoked, the fact of intoxication would not be allowed to affect the legal character of the crime.

The fact of intoxication was not to be permitted to be even considered by the jury upon the question of premeditation. These principles are stated in many cases in this court. People v. Rogers, 18 N. Y. 9; Kenny v. People, 31 id. 330; Flanigan v. The People, 86 N. Y. 554. The strict rule of the common law' has, however, been slightly relaxed by our Penal Code, the twenty-second section of which reads as follows:

“ No act committed by a person while in .a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of. crime, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the purpose, motive or intent with which he committed the act.”

Under this section it has been held by this court that it is not proper to charge the jury that the mere fact of intoxication is necessarily evidence even tending to show an absence of premeditation and deliberation. Such fact, the court said, might tend in some cases to shown absence, while in others it might not. We held that it was now simply the duty of the judge to leave it to the jury to take into consideration the question of intoxicatidh determining the motive or intent of the accused, and whether he acted with deliberation and premeditation. People v. Mills, 98 N. Y. 176. We do not think that under this statute the intoxication need be to such an extent as to necessarily and actually preclude the defendant from forming an intent or from being actuated by a motive before the jury would have the right to regard it as having any legal effect upon the character of defendant’s act. Any intoxication, the statute says, maybe considered by the jury and the decision as to its effect rests with them. That a man may be even grossly intoxicated and yet be capable of forming an intent to kill or do any other criminal act is indisputable, and if, while so intoxicated, he forms an intent to kill and carries it out with premeditation and deliberation, he is without doubt guilty of murder in the first degree, and the jury should, when such a defense is interposed, be so instructed. It is a most important and far-reaching statute in its possible effects, and the jury ought to be warned-that where the criminal act is fairly and clearly proved, the fact of intoxication as furnishing evidence of the want of the criminal' intent which the proof might otherwise show, should be considered by it with the greatest care, caution and circumspection, and such fact ought not to be allowed to alter the character or grade of the criminal act unless they have a fair and reasonable doubt of the existence of the necessary criminal purpose or intent after a consideration of such evidence of intoxication. The safety of society depends to a large extent upon the due administration of our criminal law, and the voluntary intoxication of an accused person should be most cautiously considered before arrivih^ at a conclusion that it has in any way altered the character or grade of a criminal act. It ought always to be borne in mind that by the terms of the very statute cited no act committed by a person while in a state of yoluntary intoxication shall be deemed less criminal by reason of his having been in such condition. In other words, it should still be remembered that voluntary drunkenness is never an excuse for crime. In People v. Fish, 125 N. Y. 136; 34 St. Rep. 840, it was held that under this section of the Penal Code, if the accused be sober enough to and do form an intent and so deliberate upon and premeditate the crime, then he is responsible the same as if he had been perfectly sober, and that he is guilty even though intoxicated. By our statute deliberation and premeditation are necessary constituents of the crime of murder in the first degree, and if by reason of intoxication the jury should be of opinio'n that the deliberation or premeditation necessary to constitute murder in the first degree did not exist, the crime is reduced to a lower grade of murder, or in the absence of any intent to kill, then to manslaughter in some of its grades. The intoxication need not be to the extent of depriving the accused of all power of volition or of all ability to form an intent. The jury should be instructed that if the intoxication had extended so far in its effects that the necessary intent, deliberation .and premeditation were absent, the fact of such intoxication must be considered and a verdict rendered in accordance therewith. In the portion of the charge of the learned judge which has been above set'Torth we fear that he required-evidence of the existence of too great a degree ’of intoxication before the jury were premitted to find the absence of the necessary intent or degree of deliberation or premeditation. I have endeavored to state what the rule is in such cases.

There was no exception taken to the charge of the judge, and under the old system the defendant would be without remedy, although we might feel convinced that the judge had erred in a materiál portion of the charge. But the statute now provides for a direct -review by this court of a judgment upon a verdict of conviction of murder in the first degree. Where justice demands it we can grant a new trial although no exception appears in the case. Errors, however, even of a material nature, if unexcepted to upon the trial, are not necessarily ground for granting a new-trial by this court. In the absence of exceptions, unless the record shows that the ends of justice really require a new trial, 'it will not be granted, even though some legal or material error may have occurred upon the trial. These principles are decided in several cases. People v. Driscoll, 107 N. Y. 414; 12 St. Rep. 253; People v. Lyons, 110 N. Y. 618; 16 St. Rep. 660; People v. Kelly, 113 N. Y. 647; 22 St. Rep. 969.

In this case the error in the charge was of the most vital nature, and although possibly it may be open to the claim that it was 'given with reference to the question as to what amount of intoxication formed an excuse to the defendant, yet we are fearful that the jury may have been misled and may have thought that the language appertained to the subject of considering the extent of the intoxication of the defendant with reference to the intent with which he struck the blows.

Taking all the facts and circumstances of the case into consideration as they appear in this record, we think the demands of justice will be best subserved by giving the defendant the benefit of a new trial.

The judgment must, therefore, be reversed and a new trial granted. All concur. Judgment reversed.


author: Andrews, Ch. J.

text:
    The People, Resp’t, v. Benjamin S. Van Zile, App’lt.

      (Court of Appeals,

      Filed October 23, 1894.)

    1. Evidence—Force.
    Suspicion cannot give probative force to testimony, which in itself is insufficient to establish, or to justify, an inference of a particular fact.
    3. Same.
    Proof of one offense cannot aid in establishing another, which is not only not proved, but as to which there is no affirmative evidence from which a legal inference can be drawn.
    3. Trial—Charge—Criminal cases.

      Where an indictment for abortion contained two counts—one charging the commission of the offense by the use of instruments, and the other, by administering a drug or medicine—and there is no evidence that one of the means charged had been used, the defendant is entitled to have the jury so instructed upon request, and a general verdict of guilty will not render the error of a refusal harmless.
    Appeal from judgment of the court of oyer and terminer of Kings county, entered upon a verdict, which convicted the defendant of the crime of abortion.
    The facts, so far as material, are stated in the opinion.

      James and Thomas H. Troy, for app’lt; James W. Ridgway and John F. Clark, for resp’t.
   Andrews, Ch. J.

The defendant was indicted'for the crime of abortion as defined by § 294 of the Penal Code. The indictment contains two counts. The first charges the use of the im st.rnmenta by the defendant upon the body of one Lillie M. Cook, with intent to produce a miscarriage, and he is charged in the second count with prescribing and causing to be administered to her a certain medicine, drug or substance, with the same intent. The case was submitted to the jury under both counts, who rendered a general verdict of guilty. The court in its charge instructed the jury in substance that if they should find that the defendant either, used an instrument for the purpose with the intent charged, or prescribed for, or gave drugs to the person named, with the same intent, he could be convicted. The counsel for the defendant-on the conclusion of the charge asked the judge to charge certain propositions which he had submitted, among others that “ there was no evidence before the jury of what transpired in Dr. Yan Zile’s house on the 8th -day of November, 1889, except what is furnished by the testimony of Dr. Yan Zile himself, and that so far as that testimony is concerned, he utterly' disproved that any criminal operation was performed or attempted at that time.” The judge declined to charge other than as follows: “There is no'direct evidence of what took place there except his statement. That is the only direct evidence of what occurred and as to that you (the jury) are not compelled to accept all of his statement. You may believe such as commands credit at your hands and reject such as you discredit.” The defendant’s counsel excepted to the refusal of the judge to charge as requested and to what he charged on that point. The counsel further requested the judge to charge that “ there is no evidence to justify a finding that any criminal operation was performed or attempted by Yan Zile on that occasion.” This request was also refused and an exception was taken.

We think the requests to charge so made were improperly refused, for the reason that there was no evidence which justified a submission to the jury of the guilt of the defendant under the first count in the indictment, charging the use of instruments to produce a miscarriage. For the proper understanding of this point, a brief reference to the circumstances shown is necessary. So far as appears, the first connection of Dr. Yan Zile with the case was an application made to him on or about the 8th day of November, 1889, by a young man named Terrell, who stated to the defendant in substance that it was thought he had a young woman in trouble, but he did not believe it, and he then asked the defendant if he would make an examination to ascertain the fact, and how much the defendant would charge for making it. The defendant said he would make the examination, and that his charge would be $25. The young man Terrell, in company with a young woman, who was a saleswoman in a store, went to the defendant’s office on the evening of Nov. 8th, 1889. The only evidence of what there occurred is contained in the testimony of the defendant. Terrell was in prison and was not examined on the trial, and the girl was dead, she having died at her mother’s house on the 25th of December thereafter. Yan Zile testified in substance that on that occasion he examined the girl for the purpose of ascertaining whether she was pregnant; that he used a speculum and sponged the parts with a soft sponge to aid him in making his observations, but not disturbing the cervix of the womb, or doing .anything tending to produce an abortion; that a few minutes only were occupied in the examination; that he ascertained that the girl had advanced a month or two in her pregnancy, a.nd so told Terrell, and advised him to marry her. This was all the evidence in the oase of what occurred on that occasion. It appeared from the examination of medical witnesses ..that an instrument called a tent sponge is sometimes used to produce a miscarriage, which, being introduced into the opening or neck of the womb, will gradually absorb the substance which collects there in case of pregnancy, operating as a barrier against premature delivery. But there is no evidence that the defendant had or used a tent sponge, and he positively testified that he did not use one on that occasion, but only a soft sponge for the purpose of washing the parts. The evidence of this transaction, as given by the defendant, the only witness who spoke upon the subject, did not tend to sustain a charge of using instruments to produce an abortion.

The judge correctly stated that the jury could believe or disbelieve the defendant’s narration, or believe part and reject the rest. But if the whole had been rejected there would have been no evidence whatever of what was done on the evening in question or even that any examination was made. If the entire evidence is credited it shows no criminal act, and if part only was believed, the same result follows, because the statements, neither separately nor together, show or tend to show a violation of the statute. The jury had no right upon mere conjecture to assume or find that the defendant had withheld something, or that he used instruments not shown to have been used, or that he falsely denied such use. Nor was there any proof of injury to the person of the girl disclosed on the autopsy, which would justify an inference that force had been used on this occasion. On the contrary, the great preponderance of evidence is that in case of the use of instruments miscarriage results within a short time thereafter.

Evidence was given tending to support the second count in the indictment, charging the prescription by the defendant of drugs for the purpose and with the intent charged. This was denied by the defendant on oath. The claim on the part of the prosecution was, that on or about the 11th of November, the defendant, at the request of Terrell, prescribed and had put up an abortive compound to be used by the girl. The coupling of the latter evidence with the former may give rise to grave suspicion that’ the defendant did not state the whole truth as to the transaction on the evening of November 8th. But suspicion cannot give probative force to testimony which in itself is insufficient to establish, or to justify an inference of a particular fact, and proof of one offense cannot aid in establishing another, which other is not only not proved, but as to which there is no affirmative evidence from which a legal inference can be drawn.

It is claimed, on the part of the People, that the jury having found the defendant guilty on both counts, and there being legal proof to sustain the conviction on the second count, charging the prescription of drugs, the evidence submitting the question of the use of instruments was harmless. This claim cannot be supported. It does not follow that the defendant was not prejudiced in respect of the charge of prescribing drugs by the ruling of the court that there was evidence to sustain the charge of the use of instruments for the same purpose. The evidence as to one specification might be regarded by the jury as having additional weight, because of the ruling that there was competent evidence •to sustain the other. The principal that where there are several counts, some of which are good, each founded upon the same transaction, but varying in some detail to meet the proof which may be offered, and there is a general verdict of guilty on all the counts, the conviction will not be reversed because of a defective count, has been 'frequently declared. See Real v. People, 42 N. Y. 270; Phelps v. People, 72 id. 365. But this principle has no application here. There was no defective count. The offense was properly charged 'in both counts. The means charged in the counts were distinct. Whether they could have been properly charged in one count need not be considered. But if there was no evidence that one of the means charged had been used, the defendant was entitled to have the jury so instructed.

The judgment should be reversed and a new trial ordered.

All concur. Judgment reversed.


author: Gray, J.

text:
    Francis H. Weeks et al., as Executors, etc., Resp’ts, v. Frederic B. Esler, App’lt.

      (Court of Appeals,

      Filed October 23, 1894).

    Bells and notes—Corporation.
    ■Where an instrument has the appearance of having been made as the negotiable promissory note of a corporation, the unexplained presence of a corporate seal upon it does not change its character.
    Appeal from judgment of the general term of the supreme court "in the first judicial department, entered upon an order, which affirmed a judgment in favor of plaintiffs entered upon a verdict directed by the court.

      William H. Brand, for app’lt; George Holmes and Be Forest Bros., for resp’ts.

      Affirming 52 St. Rep. 758,

   Gray, J.

The instruments sued upon were in the form of promissory notes of the Electric Power Company and were signed by “Frederic B. Esler, President,” and “F. A. Lee, Treasurer.”1 The defendant was the payee and they came into the hands of the plaintiffs’ testatrix, for value. Upon the corner of each paper were impressed the words “ The Electric Power Company. Incorporated. Seal. 1889,” and it is urged that the presence of this seal deprived it of its negotiable Character. We agree with the learned justices below that, in the absence of any recital that the seal of the corporation was affixed and of any evidence to show the fact of sealing, or that the corporate seal was.impressed,, or that it was, in fact, the corporate seal which thus appeared,, these notes could not be regarded as sealed instruments. The absence of these elements precludes the presumption that they were uttered by the company as its sealed obligations. Assuming that the presence of the corporate seal upon such an instrument, or note, could affect its negotiability,—a proposition as to which we entertain grave doubts, but which we do not feel called upon now to determine,—we think that its mere presence, unaccompanied by a single fact evidencing that the company’s officers intended to, or did, affix it, was quite insufficient to have any effect upon its apparent character. These instruments have the appearance of having been made as the company’s negotiable promissory notes, and we are not disposed to hold that the unexplained presence of a corporate seal upon them has made them anything else. We are unaware of any authority, and none has been brought to our attention, requiring us to hold otherwise. Whatever is claimed for the presumption which attaches ordinarily to seals of corporations, when appearing to be affixed to deeds or other instruments, in such a case as this it would be unreasonable to hold that any presumption existed.

The judgment appealed from should be affirmed, with costs.

All concur. Judgment affirmed.


author: Bartlett, J.

text:
    John H. Howe, Resp’t, v. Juliette Bell et al., as Executors, etc., App’lts. Juliette Bell et al., as Executors, etc., App’lts, v. John H. Howe, Resp’t.

      (Court of Appeals,

      Filed October 9, 1894.)

    Easement—Creation.
    A grantee of a lot has no interest' in a right of way, subsequently ere ated by his grantor out of an adjoining lot and made appurtenant to the latter, but not to the former, lot.
    Appeal from a judgment of the fifth department of the general term of the supreme court, affirming judgment for plaintiff in the first, and for defendants in the second, action.

      John Van Voorhis, for app’lts; Nathaniel Foote, for resp’t.
   Bartlett, J.

The executors and widow of Alfred Bell, deceased, are the appellants in two actions which were argued together in this court. The object of these litigations is to determine the title to an alley 15 feet in width and about 160 feet in depth, lying between the residence of the late Alfred Bell and the residence of Joseph H. Howe, in the city of Bochester. In September, 1889, Bell brought an action against Howe to restrain defendant from trespassing on the disputed land. In July, 1890, Howe sued Bell in'ejectment to recover the premises in question. Both cases were referred and tried together, and resulted in a judgment dismissing the complaint in Bell against Howe, and a judgment for the plaintiff in Howe against Bell. Appeals were taken, and the general term affirmed both judgments. Pending these appeals, Alfred Bell died, and his executors and widow were duly substituted in each action as parties.

In affirming the judgments below, we might well rest satisfied with the opinion of the learned general term, but, in view of the elaborate briefs and arguments of counsel, we will briefly consider the controlling points in this controversy. Alfred Bell sought to establish a paper title to the disputed strip of land, and, failing in that, he insisted that he and his grantors had been in adverse possession for more than twenty years. The finding of the referee that Bell and his grantors did not occupy the dis■puted strip adversely for more than twenty years is sustained by the evidence, and is binding upon this court. It follows, therefore, that unless Bell established a paper title the judgments below must be affirmed. The material facts are as follows, viz.: In May, 1853, one William E. Arnold became the owner of a tract of land in the city of Rochester, subsequently designated by him as the “Arnold Tract,” which included the land in controversy and the premises of the two litigants. This tract was bounded on the west by Meigs street, on the north by East avenue, and on the east by Goodman street. Bell’s premises are located at the southwest corner of East avenue and Goodman street, and Howe’s premises front on Goodman street, and adjoin Bell’s land on the south. The disputed land lies between these two properties... On or about the 28th of July, 1853, Arnold caused to be made and filed in the Monroe county clerk’s office a map of his tract, above referred to, showing his subdivision thereof into lots, and the location and dimensions of each lot. This map is in evidence, and shows Bell’s premises as lot No 4 and Howe’s premises as lot No. 20. This map is dated July 28, 1853, and must have been filed before August 1, 1853, as Arnold conveyed on the latter day lot No. 4 on said map to George G. Buell, and referred to the map as on file. The south line of lot No. 4 was described as the north line of lot No. 20. The map shows lot No. 20 to be 90 feet front on Goodman street, which includes therein the disputed strip, for, if Bell’s claim were allowed, lot No. 20 would be only 75 feet on Goodman street. It is, therefore, absolutely certain that Arnold’s deed to Buell of lot No. 4 conveyed no portion of the disputed strip. On the 28th of 'September, 1853, Arnold made and filed a second map, upon which he indicated the alley in question across lot No. 20, on the northerly side thereof, from Goodman street to its rear, and 15 feet in width, and also an alley across the rear of lot No. 20, and of other lots fronting on Goodman street, and connecting with the alley on the north side of lot No. 20. On the same day, Arnold recorded an instrument under his hand and seal, in which he declared, among other things, that the passageway indicated upon the map represented an alley for the use of the owners of certain lots specified, lot No. 20 being named; but lot No. 4 was omitted, as Arnold had already sold it to Buell. This deed of dedication is significant in three aspects: It shows that the laying out of the alley on the second map was a mere easement for the benefit of lots designated therein; that lot No. 4 was excluded from said benefits, as it was no longer owned by Arnold; and that the first map, filed in July, 1853, was the basis of the second map, and recognized the location and dimensions of the lots laid out thereon. In 1865 the title of Buell, by mesne conveyances, became vested in Sarah H. Van Epps, the immediate grantor of Bell, by the description that Arnold conveyed to Buell. In 1870 Sarah H. Van Epps and husband conveyed lot No. 4 to Alfred Bell by warranty deed, and on the same day they executed and delivered to Bell a quitclaim deed of the alley or strip in question. This constitutes the paper title of Alfred Bell. These record facts show conclusively that Alfred Bell had no legal title to the land in dispute, and that his quitclaim deed from Mrs. Yan Epps was mere waste paper. The fact that she did not include the alley in her warranty deed is most significant. The title of John H. Howe to lot No. 20 is fully established. It is clear that the legal effect of Arnold’s deed of dedication was to impose only an easement on lot No. 20, and did not reduce or change its original frontage of 90 feet on Goodman street. At the time Arnold laid out his tract in question, lot No. 20, with others, was subject to a mortgage subsequently foreclosed ; and on the 28th of December, 1859, the referee deeded lot No. 20, by reference to the second map, the legal effect being to convey this lot with 90. feet frontage on Goodman street. What effect this conveyance had on the easement sought to be created by Arnold it is not necessary to determine at this time, as the legal representatives of Bell and his widow have no interest in the matter. This foreclosure title, by several mesne conveyances, was vested in Howe April 16, 1889. In October, 1857, Arnold made a general assignment for the benefit of his creditors; and Howe, by mesne conveyances, became vested April 16, 1889, with any title Arnold may have had in lot No. 20 at the time of his general assignment. It is clear that Howe’s title through the foreclosure proceedings was perfect, and that the equity of redemption, if it passed to Arnold’s assignees, was cut off. The fundamental error in the argument urged to sustain the Bell title is in assuming and insisting that the second map (Exhibit 2), showing the alley already referred to, changed the line between lots No. 4 and No. 20, was in existence on August 1, 1853, and was referred to by Arnold in his deed of that date to Buell, conveying lot No. 4. An examination of the two maps in connection with Arnold’s dedication deed of September 28, 1853, demonstrates that the only map on file August 1, 1853, was Exhibit 13 in this case, which fixed the frontage of lot No. 20 on Goodman street as 90 feet. The fact that the second map, laying out the alley, puts the frontage of lot No. 20 at 75 feet and that of the alley at 15 feet is of no importance, as it was a mere mode employed to express the width of the strip over which the easement was created. The mortgage on lot No. 20 covered the entire frontage of 90 feet, and that title is vested by the foreclosure in Joseph fi. Howe.

Having established the existence of the maps in the order pointed out, the argument in support of Bell’s paper title falls to the ground. The evidence furnished by the maps and dedication deed of William E. Arnold was supplemented by the evidence of William E. Arnold’s son, Hobart G. Arnold, the former being dead at the time of the trial. This witness swore that the maps were made and filed in the order as above indicated. This evidence was objected to as incompetent, under § 829 of the Code of Civil Procedure, on the ground that the father of the witness was the common grantor of Bell and Howe. The facts already discussed establish that Bell took no title from Arnold of the land in dispute. The exceptions to the findings of the referee are disposed of by the views we have expressed, and the further' fact that the findings against adverse possession are sustained by the evidence. Many of the exceptions to the admission and rejection of evidence are rendered immaterial for the same reason. A large number of questions were asked Bell that called for his conclusions. The referee repeatedly ruled that witness was at liberty to state the facts. We find no reversible error in his examination. There are no other exceptions in the case requiring special mention. The judgment, should be affirmed, with costs.

All concur, except Andrews, C. J., not sitting.

Judgments affirmed.


author: Mayham, P. J.

text:
    William J. Delaney, as Receiver, etc., App’lt, v. Thomas B. Valentine et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed September 27, 1894.)

    Fraudulent conveyance—Mortgage.
    A mortgage covering all of the mortgagor’s property, which provides for the payment of certain debts to the mortgagee and others and directs-the surplus proceeds to be returned to the mortgagor, is void as to the unsecured creditors.
    Appeal from a judgment dismissing the complaint.

      Windsor B French, for app’lt; W. P. Butler and Edgar T. Braclceif,. for resp’ts.
   Mayham, P. J.

This action was prosecuted by the plaintiff, as receiver of the property of Thomas B. Valentine, to have two chattel mortgages executed to Ann A. Lockwood, and an assignment of certain choses in action to William H. Lockwood, declared fraudulent and void as to the claims of the plaintiff as receiver, and as to the plaintiff, as such receiver, set aside, on the ground that the same were given by the defendant Thomas B. Valentine and received by the said defendants Ann A. Lockwood and William H. Lockwood for the purpose and with the intent of hindering, delaying, and defrauding the plaintiff as such receiver, a creditor of the said Thomas B. Valentine. The defendants Ann Lockwood and William Lockwood joined in an answer, denying the allegations of fraud, setting up the mortgages to Ann Lockwood, and a sale of the mortgaged property at public auction, at which the defendant William Lockwood purchased the same. The answer also set up the assignment of the accounts to William H. Lockwood by the defendant Valentine as collateral to the payment of the debts of Valentine to certain other persons. The defendant Valentine, by separate answer, alleged that the mortgages and assignment were made in good faith, and to secure actual indebtedness of such defendant, and alleged that the mortgagee took possession of the mortgaged property, and actually sold the same for the sum of $5,000 to William H. Lockwood, who took actual possession of the same, and also alleges that the assignment of the accounts to William H. Lockwood was to secure actual indebtedness of the defendant Valentine to certain persons named in the assignment, and was in good faith, without any design to defraud •creditors. The answer also alleged that the appointment of the plaintiff as receiver was irregular and void. The trial judge dismissed the complaint, and from the judgment entered on such dismissal the plaintiff appeals.

The case discloses that on the 23d day of' March, 1893, the defendant Thomas B. Valentine, who was a merchant doing business in the village of Saratoga Springs, was indebted to Ann A. Lockwood in the sum of $7,500, and also indebted on two notes, one of $1,200 and one for $180, indorsed by William H. Lockwood, •and a note of $1,500 indorsed by Augustus H. Lockwood; that to secure the aforesaid debts he executed on that day a chattel mortgage covering the entire stock of merchandise owned by him, •and in his store at 468 Broadway, in Saratoga Springs, which mortgage was duly filed in the town- clerk’s office. Subsequently, and on the 14th day of June, 1893, the defendant Valentine ex-’ ecuted to the defendant Ann A. Lockwood another chattel mortgage on the same stock of goods. And “ all the stock of goods, the fixtures, and personal property of every kind and description, owned by said Thomas B. Valentine, situate in and about the premises of No 468 Broadway, in the village of Saratoga Springs,” which was also duly filed in the office of the proper town clerk, and which mortgage contained the following conditions and provisions : “Upon condition that if said party of the first part shall ■and do well and truly pay or cause to be paid the following notes owing by him, to wit: One made by him, said Thomas B. Valentine, for the sum of $5,000, dated July 22nd, 1892, payable twelve months after date, with interest,-at the First National Bank ■of Saratoga Springs, to the order of said Ann A. Lockwood. One made by said Valentine, dated November 10,' 1892, payable ‘to the order of said Ann A. Lockwood, twelve months after date, at the First National Bank, for $1,500 and interest. One made by said Valentine, dated December 2nd, 1892, payable to the order of W. H. Lockwood twelve months after date, with interest, at the First National Bank of Saratoga Springs, for $1,200. One made by said Valentine, dated January 31, 1893, payable to the order of Ann A. Lockwood, twelve months after date, at the First National Bank of Saratoga Springs, with interest, for the sum of $1,000. One made by said Valentine, dated March 25th, 1893, for the sum of $1,500, payable three months after date, at the First National Bank of Saratoga Springs, indorsed by Augustus H. Lockwood. A note of $967.71 given by said Valentine to M. H. Berge & Sons, due July 2, 1893. A note of $1,500 given by said Valentine tolvah Holmes, payable on demand, on account of $629.75 due from said Valentine to J. C. Wemple & Co. Then these presents, and everything herein contained, shall cease and be void. And the said party of the first part, for himself, his executors, administrators, and assigns, does hereby covenant and agree to and with the party of the second part, her executors, administrators, and assigns, to make punctual payment of the money hereby secured. And in case default shall be made in payment of the said sum above mentioned, or in case the said party of the second part shall sooner choose to demand the said goods and chattels, it shall and may be lawful for, and the said party of the first part does hereby authorize and empower the said party of the second part, her executors, administrators, and assigns, with the aid and assistance of any person or persons, to enter and come into and upon the dwelling house and premises of the said party of the first part, and in such other place or places as the said goods and chattels 'are or may be held or placed, and take and carry away the said goods and chattels, to sell and dispose of the same for the best price they can obtain, at either public or private sale, and out of the money to retain and pay the said sum above mentioned, with the interest and all expenses and charges thereon, rendering the overplus, if any, unto the said party of the first part, his executors, administrators, and assigns. And until default be made in the payment of the aforesaid sum of money the said party of the first part to remain and continue in quiet and peaceable possession of the said goods and chattels, and tbe full and free enjoyment of the same, unless the said party of the second part, her executors, administrators, or assigns, shall sooner choose to demand the same; and until such payment be made the possession of the said party of the first part shall be deemed the possession of an agent or servant for the sole benefit and advantage of his principal, the said party of the second part.”'

On the day of the execution and delivery of the last mentioned mortgage, and at the same time, the defendant Yalentine executed and delivered to the defendant William H. Lockwood an assignment, of which the following is a copy : “For value received, I hereby sell, assign, set.over, and convey unto William H. Lockwood, of Saratoga Springs, N. Y., all the account due or owing to me mentioned in the annexed list, and all other accounts, dues, and choses in action due or owing to me, as collateral security for the payment of a balance of $1,852.50 on a note of $1,500 made by me, Thomas B. Yalentine, and indorsed by Augustus A. Lockwood, and owned by the First National Bank of Saratoga Springs, the sum of $147.50 being paid on said note; also, a note of $967.71 held by M. H. .Berge & Sons, due July 4th, 1898; also, a note of $500 and interest owned by Ivah Holmes,—said Berge note'and Holmes note being each made by said Thomas B. Yalentine; also, a note of $18.93 given by said Thomas B. Yalentine to R. H. Trimm; a claim of $282.81 owing by said Thomas B. Yalentine to George W. Yalentine for work; also a claim of $148.85 due from said Thomas B. Yalentine to John W. Yalentine for work; an account of $629.70 owing by said Thomas B. Yalentine to Jay 0. Wemple & Co., which became due July 2, 1893; three notes-of said Thomas B. Yalentine, owned by the First National Bank of Saratoga Springs,— one of $50, due July 3d, 1893, one of $150, due July 9, 1893, and one of $100, due August 5, 1893. Also, to pay two notes of $65 each given to S. A. Rickard, and $83.33 fora month’s rent of the store No. 468 Broadway.”

On the 14th of June, the day of the execution of the last mentioned mortgage by the defendant Yalentine to the defendant Ann A. Lockwood, she, by her agents and attorneys, took possession of the goods and chattels embraced in and covered by the mortgage, and on the same day and time the defendant William H. Lockwood took possession of the accounts, notes, and ohoses in action assigned to him under and by virtue of the assignment above get out. On the 15th day of June, 1893, a judgment was recovered against the defendant Valentine, on which an execution was duly issued, and returned wholly unsatisfied, and on proceedings supplemental to execution the plaintiff was on the 17th day of June, 1893, duly appointed receiver; and on the 29th day June, another judgment was obtained against the same defendant, and the receivership was extended by order to the last mentioned judgment.

The receiver, who is appellant on this appeal, insists that the mortgage to Ann A. Lockwood of June 14, 1893, and the assignment to William H. Lockwood made on the same day by the defendant Valentine, are in violation of the provisions of 2 Rev. St. p. 135, § 1, for the reason that they create a trust in favor of the mortgagor and assignor, and are therefore violative of the right of his creditors. The language of that section is as follows: “ All deeds of gift, all conveyances and all transfers or assignments verbal or written of goods, chattels and things in action, made in trust for the use of the person making the same, shall be void as against creditors existing, or subsequent of such persons.”

The condition in the mortgage which directs the mortgagee to sell and dispose of the property mortgaged for the payment of the amount intended to be secured is not unlike an ordinary mortgage of chattels, and, had all the persons whose debts are attempted to be secured been made mortgagees, it could hardly be maintained that the provision requiring the mortgagee to pay the surplus to the mortgagor would be such trust for his benefit as to render the mortgage void under the provisions of the statute above quoted. Under such circumstances the legal title, before breach or forfeiture, would have remained in the mortgagor, liable to sale on execution, subject to the payment of the mortgage; and if the mortgage was an honest transaction, and the same given to secure honest indebtedness due to the mortgagees, the creditors of the mortgagor not secured by the mortgage would have no right to complain, as their right to the surplus after the payment of the mortgage would in that case be in no wise impaired. Does the creation of a trust in the mortgagee for the benefit of creditors who are not mortgagees alter the rights of the parties who are creditors of the mortgagor, but whose debts are not provided for in the trust created for the benefit of certain preferred or favored creditors who are named in the mortgage? The same question may be asked as to the assignment made by the defendant Valentine to the defendant William H. Lockwood. Both the mortgage and assignment create a trust for the benefit of creditors of Valentine who are not parties to the instrument, and together they transfer all of his property to the mortgagee and assignee, who are to use the avails of the same in paying the debts of the defendant Valentine, which are therein specified, and return to the mortgagor and assignor any surplus that may arise out of the sale of the property assigned or' mortgaged, to the mortgagor or assignor. This trust, so far as such surplus or excess is concerned, is for the benefit of the mortgagor and assignor. Such a trust seems clearly in contravention of the provisions of the-statute. We are referred by the learned counsel for the respondents to the following cases: Bank v. Fitch, 48 Barb. 344; Paper Co. v. O'Dougherty, 36 Hun, 79; Murphy v. Briggs, 89 N. Y. 446; Knapp v. McGowan, 96 N. Y. 75,—in support of the contention, made by him, that, so long as a party devotes his property to the payment of a bona fide debt, no unlawful act is done, —a proposition which is to some extent established by the cases cited, and which cannot be doubted, when the party makes no reservation of the property to himself, in violation of the rights of other creditors. But the case of Knapp v. McGowan, above cited by the respondents, contains this very important and significant qualification, which seems to support the contention of the appellant in this case, and is stated in the syllabus of that case, and supported by the decision: “ That a conveyance by a debtor, whether solvent or insolvent, of all of his property to a trustee, to pay a portion of his creditors, with a provision that the surplus shall be returned to him, leaving his other creditors unprovided for, is fraudulent and void as to the latter.”

And in stating that proposition, Judge Earl uses the following language: “An insolvent, or even a solvent, debtor cannot convey all his property to a trustee, to pay a portion of his creditors, with a provision that the surplus will be returned to him, and leave other creditors unprovided for, because such a conveyance ties up his property in the hands of his trustee, and places it beyond the reach of his creditors by the ordinary process of law, and thus hinders and delays them, and is therefore void as to creditors unprovided for. ”

In the case at bar the referee found that the defendant Valentine, at the time of making the mortgage and assignment, on the 14th day of June, was indebted beyond and in excess of the value of his property; and it is quite apparent from the evidence of the defendant William H. Lockwood that he and his mother, Ann A. Lockwood, knew that fact. In Sutherland v. Bradner, 116 N. Y. 410; 26 St. Rep. 854, Follett, J., in delivering the opinion 'of the’court, uses this language: “ A preferential assignment by an insolvent of all of his estate in trust for the payment of a part of his debts, which provides that after paying the, creditors named the remainder of the assigned estate shall be restored to the assignor, hinders and delays the unpreferred creditors, and it is void as against them.”

—And he cites in support of that proposition Goodrich v. Downs, 6 Hill, 438; Barney v. Griffin, 2 N. Y. 365; Collomb v. Caldwell, 16 N. Y. 484. It can make no difference in principle, or in the practical effect of such an assignment, whether the surplus provided for is large or small, or whether, indeed, there is or is not in fact any surplus. The vice consists in its effect in hindering and delaying the other creditors in the use of the ordinary remedies for the collection of these debts. Knapp v. McGowan, supra. But the respondents urge that the ordinary remedies available to other creditors were not suspended by the giving of this mortgage and the simultaneous execution and delivery of the assignment, and in support of this contention cite Murphy v. Briggs, 89 N. Y. 446. But it will be observed that in that case no trust was created by the mortgagor in the mortgage for the benefit of other creditors not named as mortgagees, and the mortgage was the ordinary case of a mortgagor giving a mortgage in the usual form to secure the debt due the mortgagee in person, and the mortgage did not, as in this case, create a trust in favor of other creditors. It is true that the common pleas of New York, in Wheel Co. v. Frost, 13 Daly, 233, held that a mortgage somewhat like the one under consideration, upon the authority of Murphy v. Briggs, was a valid security. But no such conditions existed in the case of Wheel Co. v. Fielding, 101 N. Y. 504, to which we are referred, nor did that case affirm the determination of the New York common pleas in Wheel Co. v. Frost, supra. It is quite apparent from this transaction that the simultaneous transfer of all the property of Valentine by this mortgage and assignment was for the purpose of placing the same within the control and at the disposal of the mortgagee and assignee, for the purpose of securing and paying their claims, not only, but also for the purpose of securing to the other beneficiaries and cesiuis que trustent therein named their claims, to the exclusion of other creditors of Valentine not referred to in those transfers- The mortgage was to secure debts, some of which were due when it was given, and the mortgagor was in default the moment the mortgage was delivered ; so that by operation of law, if this transaction was valid, the title to the mortgaged property vested at once in the mortgagee, subject, of course, to the performance of the trust therein created. This rule has long been well settled, and in Moore v. Prentiss Tool & Supply Co., 133 N. Y. 149; 44 St. Rep. 68, Judge Earl, in discussing the rights of parties to a chattel mortgage, says: “ After default in the payment of the plaintiff’s mortgage, whatever title the mortgagor had was vested absolutely, subject to the right of redemption in equity in the plaintiff (mortagee).”

In the case at bar the mortgagee, availing herself of the title thus acquired, immediately took possession of this property, advertised and sold it to the defendant William H. Lockwood, and thereby cut off all equity of redemption of the other creditors of the mortgagor. Under such circumstances; it can hardly be said that the trust created in this mortgage did not have the effect to hinder and delay other creditors in the .ordinary proceeding for .the collection of their debts. The case is not like Wheel Co. v. Fielding, supra. In that case no trust was created for the benefit of third parties, and the mortgage under discussion then was a real estate mortgage, under which a forfeiture or breach of condition did not work a change in the title, as in this case; and in the discussion of that case, Éinch, J., says: “Thisis the usual clause reserving surplus to mortgagor in eveiy mortgage upon real estate, and, as here employed, cannot be regarded as of the same character as if used in an assignment of property for the benefit of creditors specially preferred, in which case it would render the assignment inoperative and void.”

In a real estate mortgage the surplus, on foreclosure, passes to the person entitled to the same under the order of the court. But the surplus provided for in this mortgage is reserved to the mortgagor after the satisfaction of all the trusts provided for in the instrument itself; and in effect the trustee, who is also mortgagee, is charged with the duty of returning such surplus to the mortgagor, without regard to the rights of other creditors who are not provided for in the mortgage. In no light in which we can examine this mortgage and assignment can we escape the conclusion that a trust is created by this mortgage for the-benefit of the mortgagor’s creditors named therein, and that the surplus is.reserved to the mortgagor who makes the transfer, and creates the trust for his own benefit. To allow such a transfer in the name of a chattel mortgage to stand in the way of bona fide creditors of the mortgagor or assignor would seem to furnish an easy method for a debtor to transfer his property in a manner that hinders and delays his creditors, and at the same time secure to himself the remainder of his estate, in violation of the plain intent, if not of the letter, of the statute. The referee finds that at the time Valentine made this mortgage and assignment he was insolvent, and expected to be closed. Under such circumstances, his transfer of all of his property was in the nature of a general assignment, and any reservation of any interest in the property assigned, in himself, rendered the transfer void, within the statute referred to. In Curtis v. Leavitt, 15 N. Y. 9, the court holds that where a security is given in the ordinary course of business, with a provision that after the payment of the debt the balance of surplus shall belong to the mortgagor or grantor, no illegal trust is created in the surplus. But. the same case holds, at page 132, as follows : “ But when they are made in favor of an insolvent, who winds up his affairs by an assignment of his whole estate, then they have been justly regarded as high, and sometimes conclusive, evidence of a fraudulent design. The principle, indeed, which runs through this whole branch of our law is that when a trader or dealer fails, and proposes to put his estate in trust, he must devote the whole of it, immediately and unconditionally, to the payment. It is only on those terms that he is allowed to withdraw it from the ordinary process of the law. He must reserve nothing to himself, but must, give all to his creditors.”

Upon the facts of this case, and within the principle here enunciated, we think that the learned trial judge erred in non-suiting the plaintiff, and for that error the judgment must be reversed.

Judgment reversed, and a new trial ordered • cost to abide the event.


author: Parker, J.

text:
    Walter Hamilton, App’lt, v. Ferral C. Dinniny, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)

    Appeal—First instance.
    The construction of a pleading will not he reviewed on appeal, where no exception was taken to the ruling on the trial.
    Exceptions ordered to be heard at general term in the first instance.

      Wm. H. Arnoux, for pl’ff; M. JH. JRegensburger, for def’t
   Parker, J.

Certain leading facts are established by the pleadings. Briefly stated, they are that Walter Hamilton, either for himself or' as trustee for others, on the 3d day of January, 1890, agreed, in consideration of the sum of $12,000, to sell the defendant 150 $1,000 bonds of the Virginia Tide-Water Coal Company, and 3,350 shares of the capital stock of said company. Defendant promised to pay $7,000 in cash, or its equivalent, and give his promissory note for the remaining $5,000, payable in four months. He paid the $7,000, and obtained possession of the bonds and stock, which he still retains. He refused to either give his note for the $5,000 or pay any ^>art of it, and this action was commenced to recover such sum, with interest. Defendant, by his answer, alleged that Hamilton contracted to do something more than deliver to him the certificates for the 3,350 shares of stock then in his possession, viz., that he would deliver to the defendant new certificates therefor, to be issued by the company; and that Hamilton failed to perform this part of his contract, which constituted a condition precedent to his right to demand defendant’s note for $5,000. What may be the real merits of the controversy suggested by the pleadings in such respect we are not advised by the record. Before that stage of - the trial had been reached which would call upon the defendant to present his evidence, the complaint was dismissed, on the ground that plaintiff had not proved that Walter Hamilton, as trustee of his children, was the owner of the stock and bonds which were the subject of the contract That the evidence then before the court warranted the decision made is beyond question. If, then, there was no previous error to which the plaintiff excepted, this judgment must stand. Before counsel had opened the case on behalf of the plaintiff, counsel for defendant moved to dismiss the complaint, asserting that according to its allegations Hamilton personally claimed to have been the owner of the securities, and entitled to recover their value, and, as he had died since the commencement of the action, it could not be prosecuted further until his executor or administrator should be substituted as plaintiff. The objection being overruled, the following dialogue between the court and defendant’s counsel ensued: “ Counsel. Does your honor hold that the complaint is brought by the plaintiff in his capacity as trustee ? The court: Yes. Counsel: That is the manner in which the case is to be tried,—on that theory? The court: Yes. If the word ‘as’ had not appeared before the word ‘ trustee,’ your position would then be sound. It would be a mere descriptio personae” Thus, at the very commencement of the trial, it was determimed that the complaint sufficiently alleged the trusteeship of Walter Hamilton. Whether it did or not, the plaintiff is entitled to have the questions presented disposed of as if the averments of the complaint were sufficient in that respect, because, but for the ruling, an op-' portunity would have been afforded to make a motion to amend it.

Immediately after this determination by the court, the plaintiff, in order to establish his case, called a witness, who testified to a conversation in which the defendant in substance admitted that the stock and bonds had been delivered to him. The amount of interest due was then proved, and plaintiff rested. Pefendant moved to dismiss the complaint upon the ground that the plaintiff had failed to prove the contract alleged in the complaint. Plaintiff insisted that it was admitted by the answer. The court ruled, and as we think rightly, that the answer did not admit that the balance of the purchase price was to be paid upon delivery to the defendant of the stock then in Hamilton’s possession, but, on the contrary, that such allegation was put in issue. An application to reopen the case having been made and granted, the plaintiff introduced in evidence an affidavit made b^ the defendant, which proved prima facie at least, that the contract was as alleged in the complaint. Plaintiff again rested, and defendant’s counsel, in his motion to dismiss the complaint, assigned as a reason that the plaintiff “ has shown no trusteeship as alleged in the complaint.” This position the court held to be well taken, and the plaintiff was compelled to attempt to make proofs of trusteeship. This was error, if the allegations of the complaint touching the trusteeship of Hamilton were not put in issue; for it was the right of the plaintiff to rely upon the pleadings as establishing that proposition in his favor, and to omit making preparation to prove the fact. While there is opportunity for debate as to whether the answer did create an issue in that respect, a reasonable construction of it would seem to require a determination that the pleader did not. intend to raise such an issue, and that he did not in fact. In its statement of the contract it does not differ in substance with the complaint, except in so far as it alleges that Hamilton’s contract was to deliver new stock certificates, which he had not done. It alleges that on the very day of the making of the contract Hamilton produced the certificates for 3,350 shares of stock, every share of which except 4 stood in the name of Hamilton as trustee. The next paragraph alleges that Hamilton represented the title to the stock to be good, and that his title as trustee protected him from his creditors, and agreed to deliver new certificates issued by the company. Thus it appears from thte answer that at the time of the negotiations defendant knew that the legal title was in Hamilton as trustee, and he undertook to provide against any possible litigation over the shares by requiring Hamilton to obtain from the company new certificates of shares. Nor did the answer anywhere assert that plaintiff was not, as trustee, entitled to recover such sum, if any, as should be found due. But while we are in-dined to the view that plaintiff could have safely rested at that point, and that a dismissal of the complaint, had he done so, would have been error, plaintiff’s counsel was apparently not of that opinion, for he omitted to take an exception to the'ruling of the court, and instead proceeded in an effort to prove the trusteeship. After some further testimony had been taken, the plaintiff again rested, and the motion to dismiss was renewed upon the same ground. In response to the motion, the court announced that “the plaintiff must prove the possession as trustee of all the stock, and the delivery of all the stock, before he is entitled to recover anything.” To this ruling plaintiff took no exception, and by permission of the court again proceeded in the attempt to prove that plaintiff had possession, as trustee, of the stock, and that he made delivery of it. The result of the last effort was the introduction of evidence, which we have already taken occasion to say required the decision of the court that plaintiff’s trusteeship had not been established. Had plaintiff relied upon the pleadings, or taken an exception to the ruling of the court, a different situation would be presented. But, as he acquiesced in the construction which the court gave to the pleadings, he has not now any legal ground of complaint. The plaintiff’s exceptions should be overruled, and judgment ordered for defendant, with costs.


text:
    In the Matter of the Judicial Settlement of the Accounts of Charles T. Harbeck et al., as Executors, and Trustees, etc.

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)

    Executors, etc.—Accounting—Bookkeeper.
    Executors will not be allowed for the hire of a bookkeeper for the reason simply that they are men of large affairs and acted, in employing him and fixing his compensation, as they would have done in their own business.
    Appeal from a decree surcharging the account of the executors and trustees for payment made for clerical services.

      J. Tredwell Richards, for app’lts ; Samuel S. Thomas, for resp’ts.
   Parker, J.

The appellants, as executors and trustees of an estate valued at $90,000, paid to a bookkeeper for keeping the accounts of the estate the sum of $100 per year. Upon the judicial settlemént of their accounts, objection was made to such payments by the special guardian of an infant cestui que trust. Subsequent proceedings resulted in a decree surcharging the trustees’ account in such respect. The result of our examination of the evidence, and a consideration of the arguments of counsel, haye persuaded us that the decree should h¿ affirmed. Undoubtedly there are many instances where the necessary expense of employing clerks and bookkeepers should be allowed to administrators, executors, and trustees. Indeed, the courts have been careful not to insist that so much clerical work should be either personally performed by an administrator, executor, or trustee, or paid for by him, as to make the acceptance of such a position impossible without considerable personal loss. Care has also been observed to limit the authorization of such expenditure by executors and trustees to cases where employment of assistance seems a matter of necessity,, and not to so extend it as to create the impression that the only duty which the law devolves upon such an officer is to employ persons to perform all of the various duties necessary to the conduct of the trust undertaken. While the estate in the hands of these trustees was not a small one, it is difficult to conceive of a case in which either executors or trustees could, have had less work to do, and a smaller number of entries to make in the course of a year, than was required in its management. If these trustees could be relieved from doing the small amount of work required to receive the income and keep an account of it, it is not easy to conceive, of a case in which an executor or trustee would not be justified in asking some measure of compensation for a bookkeeper or clerk. It is true that the appellant trustees are men of large affairs, and accustomed to employ men to keep their books and take charge of such details as the conduct of this estate required ; and in employing this bookkeeper and fixing his compensation they did, in the matter of this estate apparently, precisely as they would have done in the management pf their own affairs. But their practice in such respect cannot be accepted as the guide for the court. The fact that they are busy men, and have not as much time to give to the management of estates as other individuals, cannot be permitted to affect the legal rule, which must be applied and enforced whenever a question is presented touching the propriety or legality of the expenditure of the moneys of an estate. The general rule is that administrators, executors and trustees are not only.bound to assume the responsibilities and exercise the discretions of their office, but must also perform, within reasonable limits, the actual manual labor requisite to the due execution of the trust. The surrogate’s decree, tested by this rule, is right, and should be affirmed, with costs.

All concur.