author: Forbes, J.

text:
    In the Matter of Frederick L. Taylor.

      (Court of Oyer and Terminer, Tompkins County,

      Filed March 9, 1894)
    1. Contempt—Refusal to testify. .
    Refusal to testify before the grand jury is a contempt committed in tile-presence of the court on which such jury is attending.
    3. Courts—Session.
    The session of an oyer and teminer continues, even though the court takes a recess and adjourns the grand jury for several days.
    3. -Habeas corpus—By whom issued. . , -
    Under § 99, chap. 686, Laws of 1893, a person imprisoned for contempt, of the court of oyer and terminer cannot be removed on habeas coipus re-tamable before a justice of the supreme court, though the oyer and terminer has taken a recess of several days.
    4. Witness—Privilege.
    Where a witness has-been promised exemption from prosecution on any evidence which he should give, he cannot refuse to testify before - the grand jury on the investigation of a charge against another person, on the ground that his testimony may tend to criminate himself.
    5. Same—By whom determined.
    Tne question of privilege is one of fact for the court.
    Proceedings to punish for contempt of court in refusing to answer questions before the grand jury.

      J. H. Jennings, List. Atty., and 3. D. Holliday, for the People; John B. Stanchfield and Tompkins & Leary, for deft.
   Forbes, J.

The power of the court to proceed in contempt is incident to every judicial tribunal, derived from its very constitution, and, without any express statutory aid. The doctrine in these broad terms is generally asserted, and is believed to be sound. The narrower doctrine, about which there is no dispute, is that this power is inherent in all courts of record.' Yates v. Lansing, 9 Johns. 395. In the Cartwright Case, 114 Mass. 230-238, it is held: “It is inherent in courts of chancery and other superior courts, as essential to the execution of their powers and to the maintenance of their authority, and is part of the Jaw of the land, within the meaning of the Magna Oharta and the twelfth article of our declaration of rights.’’ See, also, Ex parte Terry, 128 U. S. 289; 9 Sup. Ct. 77. “Courts of justice are universally acknowledged to be vested, by their very creation, with powers to impose respect and decorum in their presence and submission to their lawful mandates. Anderson v. Dunn, 6 Wheat. 204, 227; Ex parte Robinson, 19 Wall. 505, 510; 2 Bish. Cr. Law (7th Ed.) § 247.

“It is a power not derived from any statute, but arising from necessity; implied, because-it is necessary to the exercise of all their powers. Without such-power, it was observed in Easton v. State, 39 Ala. 552, the administration of the law would be in continual danger of being thwarted by the lawless.”

“Any willful act tending to obstruct, interrupt, or embarrass the proceedings of a court, or to corrupt or impede the administration of .justice, is a contempt of the authority of the court against which such willful act is directed.’’ Cheadle v. State, 110 Ind. 301.

This right and power of the court may be exercised independently of the statute, as an examination of these authorities will show. The offense for which Taylor was adjudged guilty of a criminal contempt is defined by §§ 8 and 14 of the Code of Civil Procedure. Section 8, Subd. 5, reads as follows: “Contumacious and unlawful refusal to be sworn as a witness; or, after being sworn, to answer any legal and proper interrogatory.”

Section 14, subd. 5, defines the manner in which contempt can be punished civilly, and in what cases. Subdivision 5 reads as follows: “A person subpoenaed as a witness, for refusing or neglecting to obey a subpoena, or to attend, or to be sworn, or to answer as a witness.”

By § 143 of the Penal Code, criminal contempts are also defined, and subdivision 6 of that section reads as follows“ Contumacious and unlawful refusal to be sworn as a witness; or, after being sworn, to answer any legal and proper interrogatory.”

Under this section of the Penal Code, the party refusing to answer, being guilty of a criminal contempt, may be indicted by the grand jury, and, upon conviction thereof, punished by the court for a misdemeanor; and this punishment may be inflicted notwithstanding the summary punishment by the court for the criminal contempt committed in its presence. In re Jones, 6 Civ. Pro. R. 250 ;People v. Meakim, 133 N. Y. 225; 44 St. Rep. 748; Bish. Cr. Law, § 1067; Code Civ. Pro., § 13. It is not certain, however, that the period of summary punishment by the court for a criminal contempt is confined to only thirty days, as-.seems to be indicated by Code Civ. Pro., § 9. In the case of People ex rel. Jones v. Davidson, 35 Hun, 471, Davis, P. J., in the first department, at general term, setting aside the conviction, said: “We are glad to say there is nothing in the cause that will prevent the witness from being brought again into court for examination, and, on refusal to testify, being subject to whatever punishment is necessary to make her obedient to the primary duty, -under our government and laws, of every good citizen when brought as a witness into a court of justice, which is to speak 1 the truth, the whole truth, and nothing but the truth,’ touching the subject-matter of the controversy. If the power to compel this did not exist, then justice may be defeated in every effort to redress the wrongs and enforce the rights of litigants.”

The authorities in this state also hold that it would be useless to confine the period of punishment to only thirty days’ time, for the reason that to conceal evidence, and shield another, one might very well afford to remain in confinement for thirty days, to permit his friend to escape punishment. This is not the policy of the law in this state. Code Civ. Pro., § 2285; People ex rel. Jones v. Davidson, 35 Hun, 471. In the case at bar, the offense upon which the summary conviction was made occurred while the oyer and terminer was in session with a grand jury in the same court-house, and, as we insist, in the presence of the.' court. In the Bergh Case, 16 Abb., N. S., 284, it was held: “ The grand jury room is an extension of the court-room, and its session is a part of the session of the court.” In that case the contempt was for delivering an aspersive letter to one of the grand jurors. This was held to be contemptuous and insolent behavior in the presence of the court. In the case of People ex rel. Choate v. Barrett, 121 N. Y. 678; 30 St. Rep. 1016, affirming 56 Hun, 351; 30 St. Rep. 728, where the subject was fully discussed, the court of appeals, in a memorandum decision, Earl and Pinch, JJ., dissenting, held “that, where a reporter conceals himself in the petit jury room, though the judge was then absent, this was an offense within the immediate view and presence of the court.” Ex parte Terry, 128 U. S. 289; Baker v. State (Ga.), 9 S. E. 743 ; 4 L. R A. 128 and note. In the Case of Savin, Petitioner, 131 U. S. 267, the supreme court of the United States held that, “ within the meaning of § 725 (relating to contempt), the court, at least when in session, is present in every part of the place set apart for its own use and for the use of its officers, jurors and witnesses; and misbehavior anywhere in such place is misbehavior in the presence of the court.” See, also, Gould & T. Notes, Rev. St. U. S. p. 203, § 725. That was a proceeding for contempt in attempting to deter a witness from testifying for a party in whose behalf he was summoned, and offering him money not to testify against the defendant. This occurred while the defendant was not in the court room, but in the hallway of the courthouse; and it was held to be misbehavior in the presence of the court. In the case at bar, the offense was committed while the court was in actual session. The witness was brought before the-court after his refusal to testify. What was sworn to before the grand jury was repeated to the court, in his presence, and was denied by the defendant. The defendant was thereupon instructed to answer the questions put to him; was again sent before the grand jury, with the district attorney; certain other questions, which have been the subject of discussion, were thfen repeated to him, which he refused to answer: and he, was thereupon adjudged guilty of contempt, after being asked in open court why the judgment of the court should not be pronounced against him. He was defended upon the ground that the questions put to him were privileged, and that if he answered the questions put truthfully, they would have a tendency to convict him of a criminal offense, or to implicate him in the crime charged against Dingens and Corby, who were charged with the offense under investigation, and against whom, only, the investigation was being made. The defendant still refusing to answer, and claiming exemption from so testifying, he was summarily convicted of criminal contempt, and was ordered into the common jail of the county of Tompkins until he did answer said questions, and purge himself of the contempt of which he was declared guilty, not to exceed thirty days’ time.

All of the proceedings before the grand jury and before the court were part of the record at the time the decision was made. On Saturday morning the court took a recess until the following Thursday, and the grand jury were dismissed until that time. On Saturday writs of habeas corpus and of certiorari were issued by Hon. Walter Lloyd Smith, one of the justices of this court, and the sheriff of the county in which the prisoner was being detained was commanded to bring the prisoner before said justice at a court then being held in the village of Watkins, in the county of Schuyler. The writ of habeas corpus was undoubtedly issued to get possession of the body of the defendant in that court, and the writ of certiorari to bring up the record and the mandate upon which the defendant was being detained in the county jail of Tompkins. That record and mandate show upon their face that the defendant was being, detained in the county jail of Tompkins county for a criminal contempt. The opinion of the learned justice shows that he had knowledge at that time that the oyer and terminer was still in Session, for in that opinion he suggests “that the defendant can purge himself of contempt by again coming before the same grand jury and answering,” etc., or, “declining to answer, saying that to do so would tend to criminate himself.” This, in my judgment, with all due respect to the learned justice before whom the proceedings were being had, was an unintentional, and yet an unauthorized, infringement upon the rights of the oyer and terminer continuing in session in the county of Tompkins, and is a plain violation of the statute. Until the grand jury is finally actually discharged from the work of the oyer and terminer, or the court in session, the court continues, and the absence of the judge and of the jury is not a termination of the court within the meaning of the statute. County Law, Rev. St. (8th Ed.) p. 2793, § 26; General Municipal Laws, Dick. & C. p. 68, § 98; People v. Sullivan, 115 N. Y. 185; 24 St. Rep. 579 ; People ex rel. Choate v. Barrett, 56 Hun, 351; 30 St. Rep. 728; In re Gannon, (Cal.) 11 Pac. 240. It has been held that the absence of the judge from the oyer and terminer for seven days does not obstruct the session of the court. Com. v. Bannon, 97 Mass. 214, and cases there cited. The question of the right of another court to intervene was directly decided in the case of People v. Fancher, 4 Thomp. & C. 467; 2 Hun, 226, at the general term in the-first department, where West-brook, writing the opinion, said that the interference by another judge was a violation of the statute; and in that case, .where the prisoner had been taken out of jail during the session of the court on a writ of habeas corpus and a writ of certiorari, ánd discharged from contempt, he was remanded to the county jail, and the decision of the justice discharging him was reversed. Daniels, J., and Davis, P. J., both concurred. Davis, P. J., said: “I concur, secondly, upon the ground that the writ should have been made returnable before the oyer and terminer of Kings county; and, when it appeared to the judge that the court was in session, the writ should have been dismissed as improvidently granted, or the hearing thereon should have been sent before the oyer and terminer. This was required both by the statute and by the comity due to a tribunal of concurrent jurisdiction in such proceedings."

Westbrook, J., reaffirmed this decision in the case of People ex rel. Tweed v. Liscomb, 3 Hun, at page 779.

Under the revision of the county Laws óf 1892, -chapter 686, § 99, provides: “During the session of the oyer and terminer in any county, no person detained in the county jail of such county, upon a criminal charge, shall be removed therefrom by a writ of habeas corpus, unless such writ shall have been issued by or shall be made returnable before such court;

This seems to be an absolute suspension of the writ of habeas corpus, and of other outside control of -the proceedings in the oyer and terminer while in session.

Under these circumstances, during the excitement of this investigation, I deeply regret that the learned justice before whom the defendant was taken felt it his, duty to write an elaborate^ opinion—which, without his fault, was published and circulated in Ithaca—erroneously instructing the defendant as to his rights before the grand jury, and informing this court what it was its duty to do upon the defendant's presenting himself again for examination ; thus, as I believe, unintentionally obstructing the investigation there being had, and unintentionally, in effect, giving other witnesses an erroneous intimation of the manner in which an examination could be defeated by silence. Section 99 of the county law was re-enacted from the Laws of 1847, as found in 8 Rev. St. (5th Ed.) p. 1066, § 27. Section 26 of that statute provides what may be done within 24 hours after the final discharge of the grand jury, and § 27 says: “ After the court of oyer and terminer shall commence its sittings in any county, no person detained in the common jail of any such county, upon a criminal ■charge, shall be removed from it by a writ of habeas corpusetc:

This section is found in the General Municipal Laws of Hew York, complied by Dickinson & Cuming (page 69), published in 1892 ; and a direct construction of that statute was given by the general term in People v. Fancher, 4 Thomp. & C. 467, which is also reported in 2 Hun, 226, and reviewed in People ex rel. Tweed v. Liscomb, 3 Hun, 760. This of itself would seem to have been a sufficient reason for letting the oyer and terminer exercise control of its investigations and of defendant while in jail, during the session of this court; and, upon the facts having been presented to the learned justice, this case ought to have been peremptorily dismissed, or sent back to the oyer and terminer.

The learned justice undoubtedly misapprehended the fact of the knowledge of the oyer and terminer of all of the proceedings before the grand jury, and must have been misled also with reference to his authority or jurisdiction to examine the case upon the merits, or, indeed, to examine it all, except to see “ why the defendant was detained in custody, and whether the mandate was regular upon its face.” When it was shown by the district attorney, under § 2032 of \the Code of Civil Procedure, that the defendant was being detained upon a commitment for a criminal contempt, defined in § 8 of this act, which has already” been quoted, it was then the duty of the justice, without further examination of the question, to forthwith make a final order remanding the prisoner to the jail from which he was taken, when he had ascertained that the commitment was made by a court having jurisdiction to commit for contempt; and that such authority was specifically and plainly ehargcd in the commitment before him. There seems to have been a further misapprehension on the part of the learned justice in passing upon the rights of the defendant to refuse to testify before the grand jury, assuming, as he did in his opinion, to do this for the reason that the case was being heard upon a certiorari, as well as upon a writ of habeas corpus. If that opinion is to be strictly construed as the law of this state, it would "absolutely end, before the grand jury, an examination of any one of these students. All each student would have to do would be to repeat that, if he were to disclose what he knew about the offense committed, in his opinion it would have a tendency to implicate him in the commission of the crime itself; leaving the witness, not the court, to be the judge of the facts upon which that opinion is based. That cannot be, and certainly is not, the law of this state. The opinion ought not to have been written or published, and the determination of the oyer and terminer should not have been reviewed in that proceeding. In the case of People v. Cassels, 5 Hill, 164, Bronson, J., said : “ The judgment or decision of a court or officers having competent jurisdiction cannot be reviewed on habeas corpus; but, if the decision be erroneous, the remedy is by certiorari or writ of error,” viz. (to a higher court).

11 Accordingly, where the return to a habeas corpus shows that the person sought to be released was detained under a commitment by a magistrate for contempt as a witness in refusing to answer questions relating to a criminal complaint, held: That the officer before whom the writ was returnable had no right to inquire into the truth of the facts adjudged by the committing magistrate, nor whether the questions put to the witness were proper, nor whether he was privileged from answering.” Rap. Contempt, c. 4, p. 222, and authorities cited.

In the case of People v. Spalding, 7 Hill, 301, Nelson, C. J., said : 11A fine imposed upon a party by a court of chancery for a willful violation of an injunction is not affected by his discharge under the bankruptcy law, and where a court commissioner—alter the party had been imprisoned for nonpayment of such fine— granted a habeas corpus, and made an order releasing him from custody, on the ground of having been discharged under the bankruptcy law, held, that the order was a nullity.”

In the case of People v. Sheriff of New York, 29 Barb. 622, Ingraham, J., writing the opinion of the court, held: “ On a habeas corpus in case of commitment for contempt only two questions can be examined : First, as to the jurisdiction of the court or officer making the commitment; and, secondly, as to the form of commitment. The court has no power to inquire into the justice or propriety of the commitment. Nor .can the supreme court review, upon certiorari, the judgment of a court ordering a commitment for contempt.” See, also, Ex parte Percy, 2 Daly, 530.

In the case of People ex rel. Tweed v. Liscomb, 8 Hun, 760, Westbrook, J., referring to the case of People v. Fancher, supra, said: 11 In the very recent case of the People v. Fancher the writer of .this opinion had ocpasion to examine this same question, and nothing has transpired to shake his confidence in the soundness of the views therein expressed. Every consideration of public policy, and the expressf language of the statutes, require us to hold that the judgment of a competent court—competent by reason of its having 'jurisdiction of the subject-matter and of the 'party—cannot be practically reversed and annulled by any officer empowered to grant a writ of habeas corpus. Plain words should not be refined away by legal subtlety, and when our written statute law emphatically declares that ‘ no court or officer, on the return of any habeas¡ corpus or certiorari, issued under this article, shall have power to inquire into the legality or justice of any * * * judgment ’ ‘ of any competent tribunal of civil or criminal jurisdiction,’ it is but our simple duty to obey its mandate, and not permit a power to be assumed, which our statutes declare the officer or tribunal granting the writ does not possess.”

In the case of People ex rel. Danziger v. Protestant Episcopal House of Mercy, 128 N. Y., 180; 40 St. Rep. 157, Ruger, G. J., said: “ Where, in proceedings by habeas corpus, it appears that the person is held in custody under a commitment issued by a magistrate, the only inquiry is whether the magistrate had jurisdiction of the case, and authority to pronounce the judgment for the cause assigned. The decision of the magistrate may not be reviewed, and so it is not essential tq return the evidence on the trial. Code Civ. Proc. §§ 2032, 2034. If the process be valid upon its face, the burden of impeaching its validity rests upon the prisoner,” viz. : upon appeal.

I have thus far, as I believe, carefully reviewed the important questions which are presented by the issuing, and examination upon the contempt proceedings before the learned justice, of the writs of habeas corpus and certiorari upon which the defendant, Taylor, was taken from the common jail of Tompkins to the court house in the county of Schuyler; and I have done this, as I hope, in the kindest spirit, for the reason and with the purpose of correcting the false impressions made and inferences which have been drawn by the proceedings before, and from the opinion of, the learned justice who reviewed the action of the oyer and terminer. Nobody can hope, and, indeed, all must despair of even attempting, to correct the opinions of the law of the press. Frequently it seems to be the case that the editor or the reporter who knows least about the law or the facts in a legal proceeding is the person who assumes to know most, and succeeds in getting everything so far jumbled and perverted as to be undistinguishable as the case before the court; and it seems absolutely impossible for the most intelligent and honest of them, who are not educated lawyers, to comprehend or reproduce correctly anything that is said in courts of justice. Knowing nothing of the law, perverting and garbling the facts, their conclusions are usually unwarranted and erroneous; and their criticisms are too often either intended to, or do in fact, disturb, frustrate, and very frequently absolutely destroy the most earnest and labored efforts of the courts to bring offenders to punishment.

As to whether the defendant, Taylor (or other persons who have knowledge of material facts of which they should put the grand jury in possession for the purpose of producing an indictment against the real offenders), can be compelled to testify, depends upon a variety of circumstances, which perhaps may as. well be reviewed at this time, and disposed of so far as this court is concerned. It is claimed that Tayor cannot be compelled to testify before the grand jury, and that privilege is based upon the theory that he is protected from giving before any tribunal any evidence which may tend to criminate himself, or to show that lie was a participant before the fact, which, by the terms of the Penal Code, now makes him a principal to the crime. This is erroneous and illusive, as will be seen by an examination of the law Article 1, § 6, of the constitution of the state of New York provides: “No person shall be subject to be twice put in jeopardy for the same offence; nor shall he be compelled in any criminal case to be a witness against himself.”

This provision was carried into the Revised Statutes (2 Rev. St p. 405, § 71), and upon the adoption of the Code, was codified under § 837, as follows : “But this provision does not require a witness to give an answer, which will tend to accuse him of a crime or misdemeanor, or expose him to a penalty or forfeiture; nor does it vary any other rule, respecting the examination of a witness."

Upon the adoption of the‘Code of Criminal Procedure, in § 10, the following language is used: “No person can be compelled in a criminal action to be a witness against himself, nor can a person chai'ged with crime be subjected, before conviction, to any more restraint than is necessary for his detention tjo answer the charge.”

It will be observed, upon an examination of the cases construing these provisions of the constitution and the statute, that this privilege only extends to a witness when the evidence is to be used against him; that it cannot be used as a shield against disclosure of crimes committed by other persons, where the party himself was' not connected with the crime, and had no knowledge ■of any of the qualities of the act or crime committed by others. If what he did was done innocently, although the act led up to and’furnished the instrument, of the crime, still, if his acts were innocent ones, and without any intent himself to commit a crime, no criminal intent can attach to those acts, and he cannot be punished for them. Dehn v. Mandeville, 68 Hun, 335 ; 52 St. Rep. 281; Hewitt v. Newburger, 141 N. Y. 533; 56 St. Rep. 821. It is only when he is a guilty participant in, and has guilty knowledge of, the crime, with intent to commit it or conceal it, that he becomes an offender. In the notes collected under article 1, § 6, of the constitution of this State, we find the following: “Nor is a, person protected from testifying in a criminal case against another, ■on the ground that his testimony may tend to implicate him in the crime, provided he is protected by statute against the use of such testimony on his own trial.” People ex rel. Hackley v. Kelly, 24 N. Y. 74.

It was held at one time that: “An act requiring parties to make discovery on oath concerning an indictable ofíense, but forbidding the answers from being used in evidence against them, is unconstitutional." Perrine v. Striker, 7 Paige, 598.

But this last doctrine was expressly overruled by the court of appeals in the case of People v. Sharp, 107 N. Y. 427; 12 St. Rep. 217.

It will be seen upon an examination of these cases that there are two conditions, upon either one of which the witness is protected, and is therefore not privileged: First, when he is not charged with. the crime, and his evidence before the grand jury is such that he could not possibly have been guilty of a criminal offense; secondly, when he is exempt by statute or by operation of law from prosecution upon the evidence which he gives before the .grand jury. I am not unmindful, in this discussion, of the stringent rule laid down in the case of People v. McQuade, 110 N. Y. 284; 18 St. Rep. 288, which reads as follows: “ Every statutory provision intended for the benefit of the defendant in a criminal action confers a substantial right, which may" not be disregarded without his consent.”

In the case at bar the evidence shows that Taylor was put before the grand jury, by the district attorney, with the express understanding that he was willing to testify to every fact within his knowledge which in any manner could be used against the real offenders charged with the crime; and, after conclusively •showing that he either had no knowledge of the crime, or that he was concealing that knowledge by perjury, to shield the real offender, he was asked if he knew where the jugs in which the chlorine gas was generated were purchased. This, and questions of a similar character with reference to the jugs, he declined to answer, upon the ground that to answer truthfully would tend to criminate him. He had been instructed by the court that the prosecution was not against himself, and that he must tell all that he knew about the transaction as against the offenders. The court having his testimony before it, with an opportunity of judging of the quality of his guilt or innocence of the offense charged, the district attorney in open court had promised him exemption from indictment or punishment upon any evidence which he should give. Under these circumstances, all of which are spread upon the record of the oyer and terminer, Taylor, without objecting, went into the grand-jury room, under a subpoena, to testify.

There are two grounds upon which this court predicates the authority to punish Taylor for contempt: First, upon the ground that by going before the grand jury, testifying with the exeihp6ion offered, he was bound to answer all relative and proper questions put to him, and he could not shield the offenders upon the pretext of shielding himself; secondly, the court upon the whole evidence, decided and determined that the evidence given before the grand jury ánd the proceedings had in open court clearly disclosed the fact that Taylor was not guilty of the commission of a criminal offense if bis evidence before the grand jury was true, and that there was no need of shielding himself, nor could he use that shield to protect the supposed real offenders, one of whom, Dingens, was his roommate. This became a question of fact for the court to determine upon 'the evidence given by Taylor himself.

First, then, .could the evidence be used against Taylor if an indictment hereafter were to be procured against him ? The authorities are ample to show that the evidence could not be used against him, should this grand jury, in defiance of the exemption offered, indict him, and a trial was sought to be had on that indictment. He was regularly subpoenaed as a witness, and put before the grand jury by the district attorney. It is certainly clear that if exempted, by statue from punishment, he could be made to-testify. Pervine v. Striker, 7 Paige, 598 ; People ex rel. Hackley v. Kelly, 24 N. Y. 4, 74; People v. Sharp, 107 N. Y. 427; 12 St. Rep. 217; Rap. Contempt, p. 98, § 76. Is he exempt by operation of law ? In the case of People v. Mc Mahon, 15 N. Y. 884, the prisoner was arrested by the constable, without q warrant, on suspicion of being the murderer of his wife. The constable took him before the coroner, who was holding an inquest on the body of the murdered woman. He was sworn and examined as a witness. It was there held that the evidence given before the coroner was not admissible on the prisoner’s trial for the murder. The same rule was held in. the case of People v. Mondon, 103 N. Y. 211; 2 St. Rep. 713. Mondon was taken before the coroner's jury, testified, and that evidence was used upon his trial for murder, and the judgment of conviction was reversed. This doctrine was also upheld in the case of People v. Sharp, 107 N. Y. 427; 12 St. Rep. 217. In this last case it was held, at page 446, 107 N. Y., and page 225, 12 St. Rep. : “That a person who yields from the necessity of obedience cannot be said to have the power of acting by his own choice, and under such circumstances the witness must be deemed to speak for the safety of his person, and in view of the indemnity which the law promises.”

The same doctrine was held in the case of People v. Clark, 14 N. Y. Supp. 642, where the case of People v. Singer, 5 N. Y. Cr. R. 1, was discussed and upheld, holding practically the same doctrine. That case is also reported in 18 Abb. N. C. 96, followed by a note on the subject, showing that the. same rule is,upheld in other states., The question was again discussed in the case of People v. Spencer, 66 Hun, 149; 48 St. Rep. 803, and is based not only upon the statutory ground, but upon the implied exemption when used as a witness before the grand jury. Herrick, J., says: “When a witness is used under such circumstances, the utmost good faith should be observed in dealing with him, and the spirit, as well as the letter, of the law should be regarded. Here, it seems to me, both were violated,’’ and many cases are cited.

See Rap. Contempt, p. 99, § 76, where it was held that an accomplice, who had been led to give evidence for the government by an. express or implied promise of pardon, contracts to make a full statement, can keep back nothing, and should be allowed no privileged communications; citing Alderman v. People, 4 Mich. 414; 1 Best, Ev., p. 225, note; People v. Spencer, 66 Hun, 149; 48 St. Rep. 803; People v. Singer. 18 Abb. N. C. 96 ; People v. Sharp, 107 N. Y. 427; 12 St. Rep. 217. In the case at bar, the doctrine that the witness may claim the privilege not to testify upon the ground that the testimony so given may tend to criminate him, and that he is to be the sole judge of that fact, cannot be upheld under the authorities in this state ; nor is it the fundamental law of this or any other civilized country. Whether he is privileged is a question of fact for the court.

It is held in the case of People v. Mather, 4 Wend. 230 : “The question must be such that the answer to it, which he may be required by the obligation of his oath to give, will directly show his-infamy, and the court must see that such will be the case, before-they will allow the excuse to prevail.” Page 282.

In the case of Curtis v. Knox, 2 Denio, 341,' the court of errors, approving the doctrine of People v. Mather, supra’, said : “ If he could be, then his oath that he was apprehensive that his testimony might lead to his conviction is conclusive, for the court cannot judge, without acknowledge of his agency in the transaction, whether it was of a character to render him culpable or riot.”

In the case at bar this court had knowledge of all the evidence before the grand jury, and that which was obtained in open court.

The same doctrine was held in the case of Forbes v. Willard, 37 How. Pr. 193, where Daniels, J., said: “ Where a witness declines to answer questions proposed to him on the ground that his answers will have a tendency to criminate him, it is the province of the court to determine whether that will probably be the effect of the answers, if they are required to be given; ” citing Cowen & Hill’s Notes. 2 Phil. Ev. pt. 2, pp. 737, 739, and cases there cited.

In the case of Byass v. Smith, 4 Bosw. 679, Bosworth, J., said: “ The court is to determine, as a question of law, whether the question, if answered in any form, would form a link in the chain of evidence. The oath of the witness, therefore, is unnecessary to the fact that his answer must eliminate him. By such an oath he would either swear to a conclusion of law, or admit impliedly the very fact he was endeavoring to conceal.”

■ It was held in the case of Butts v. Village of Lowville, 15 Wkly. Dig. 144, that a waiver of the privilege cannot be inferred from witness not specifying the ground upon which he, personally, objected; that stating the ground is equivalent to a confession of the offense.

In the case of Fellows v. Wilson, 31 Barb. 162, Pratt, J., in the general tetin of our own department (Old 5th Dist.), held: “When a witness claims his privilege on the ground that the ' answer may tend to criminate him, it is for the court to decide whether it is a question for such claim,” citing Curtis v. Knox, 2 Denio, 341, and then saying: “And the court must decide this, taking into consideration the evidence which may be material upon the issue.”

In the case of Youngs v. Youngs, 5 Redf. Sur. 505, Rollins, S., said: “Courts are not bound, as of course, to grant to a witness the claim of privilege from giving incriminating testimony, simply because he swears that-the necessity for its exercise has arisen, but themselves have an authority and discretion in the premises; and they should not concede the claim where the nature of the question does not, under the particular circumstances apparent at the time, immediately suggest the reasonableness of the claim and the injustice of denying it.”

In the case of Davenport Glucose Mfg. Co. v. Taussig, 33 Hun, 82, Davis, P. J., said, speaking of the prisoners: “They are not bound to criminate themselves, and each may claim the personal privilege of refusing to answer. On such" an examination it would be for the judge to determine, as it would be on a trial at circuit, whether the questions are such as they are not bound to answer.” Page 33.

In the case of Friess v. N. Y. C. & H. R. R. Co., 67 Hun, 205; 51 St. Rep. 391, at page 213, 67 Hun, Martin, J., fully discusses the proposition, and settles the law, at least in this district: “It is an old and established principle of the law of evidence that, where it reasonably appears that the answer to a question will have a tendency to expose the witness to a criminal charge, he is not bound to answer. This is so, even where the fact in regard to which he is interrogated forms but a link in the chain of testimony which would convict him; and he is protected without being compelled to explain how he would be criminated by the answer. In respect to this claim of privilege there are two extremes which ought to be avoided: First, that of requiring from a witness, who is honestly claiming the privilege, any explanation whatever of his reason for refusing to answer, if the court can see how such answer may fairly and reasonably tend to criminate him; second, that of permitting a witness to interpose the shield of apprehended peril as a protection against every question which hfe is disinclined to answer, although there be nothing in the circumstances of the case which in the least suggests the danger,” citing the Youngs and Mather Cases, and then holding: “Whether an answer may tend to criminate the witness is a point which court may determine, under ,all the circumstances of the case, when the protection is plain, without requiring the witness to explain how the effect is to be produced. In cases of this kind the court must see, from the circumstances and nature of the evidence which the witness is called upon to give,, that reasonable ground exists for apprehending danger to the witness from being compelled to answer.”

The same doctrine was held in Dehn v. Mandeville, 68 Hun, 335 ; 52 St. Rep. 281, where the exemption was claimed from the verification of a pleading. Byass v. Smith, 4 Bosw. 679; Perrine v. Striker, 7 Paige, 598. The same doctrine is held in all of the elementary works on evidence. Tayl. Ev. § 1457; 1 Best, Ev. p. 19 (marg. p. 176) § 128—where the question is discussed in that and the preceding sections, and the same conclusion reached. See, also, Rap. Contempt, p. 101, § 79, where Chief Justice Marshall, on the trial of Aaron Burr, laid down the rule as follows: “It is the province of the court to judge whether any direct answers to the questions which may be proposed will furnish evidence against the witness;” and this is in direct line with all of the text books which this court has had an opportunity to examine. State v. Duffy, 15 Iowa, 425; Janvrin v. Scammon, 9 Fost. (N. H.) 280.

Enough authorities have already been cited, and the question sufficiently discussed, to leave no doubt in the case at bar that Taylor was guilty of a contempt of court, for which he should be punished; and, as he cannot be liberated by habeas corpus or cer-» tiorari, the discretion of the court should be used with caution to admit' him to bail on appeal. Code Cr. Proc. § 555, reads as follows: “Nature of Appeal after Conviction. After the conviction of a crime not punishable with death, a defendant who has appealed, and where there is a stay of proceedings, but not otherwise, may be admitted to bail: First, as a matter of right, when the appeal is from a judgment imposing a fine only ; secondly, as a matter of discretion, in all other cases.”

Surely this discretion should not be exercised unless the judge can certify that there is a reasonable doubt as to the justice of the conviction, or that an error has been committed in the proceedings ; and that can be determined only upon a review of all of the facts and circumstances before this court at the time of conviction. That application, therefore, should be made to this court, at least in the first instance. There may be a very grave question about the right of any other judge to release on bail, during the session of the oyer and terminer, under the statute and cases already cited and discussed; but that responsibility is not with this court, now, at least.


source: Caselaw Access Project

author: Wright, J.

license: Public Domain

text:
    The People ex rel. Nellie Thompson, Pl’ff, v. Charles A. Webster, as Superintendent of the Penitentiary of the County of Monroe, et al., Def'ts.

      (Supreme Court, Oswego Special Term,

      Filed April, 1894.)

    1. Statutes—Constitutionality.
    Where it is clear that the purpose of the statute is fully comprehended under the subject stated in the title, the intention of the legislature will prevail in favor of its constitutionality over the technical fault of a literal expression of another subject.
    2. Same—Repeal.
    A special statute, making the provisions of a general statute applicable to a local court, is not affected by the repeal of the general statute.
    Hearing on the return of a writ of habeas corpus.

      James A. Ward, for pl’ff; Howard H. Widener and Virgil K Kellogg, for def’ts.
   Wright, J.

The petitioner was sentenced to the Monroe County Penitentiary by the recorder’s court of the city of Water-town for the crime of keeping a house of ill-fame and prostitution. She now urges that the court had no jurisdiction, on the ground that the statute which purports to confer upon that court jurisdiction over this offense is unconstitutional, for the reason that it contravenes the sixteenth section of article 3, which provides that “no private or local bill * * * shall embrace more than one subject, and that shall be expressed in the title.” The statute in question is chapter 810, Laws of 1871, which is entitled “An act to amend an act- entitled ‘An act to incorporate the city of Watertown,’ passed May 8, 1869,” etc. (the remainder of the title does not concern the question under consideration).

This statute amends the original act of incorporation of the city, with respect to its officers, their powers, duties and compensation. It is claimed by the relator that § 11, which is the section under which the recorder claims jurisdiction over the offense in question, introduces a separate subject into /the statute in violation of said clause of the Constitution, from the fact that it amends the Revised Statutes. It reads as follows:

“§ 11. Section two, article one, title three, chapter two of the fourth part of the Revised Statutes, in its application to the city of Watertown, is amended so as to read as follows:

“ When any person charged with any offense specified in the first section of said article, or with the commission of any of the acts or offences designated in the first section of title five, chapter twenty of part first of the Revised Statutes, or shall be charged with drunkenness or disorderly conduct, or charged with any act which is a misdemeanor by law, shall be brought before the recorder of said city, said recorder shall have power, upon conviction of such offender, to punish by fine not exceeding fifty dollars, or by imprisonment in the common jail of the county of Jefferson at hard labor for a term not exceeding six months, or by both such fine and imprisonment.”

It is a fundamental canon of construction that “ when a statute is challenged as in conflict with the fundamental law clear and substantial conflict must be found'to exist to justify its condemnation.” We must “presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt.” Sweet v. City of Syracuse, 129 N. Y. 316; 88 St. Rep. 933.

The incorporation of the city of Watertown is the subject stated in the title, and this section read literally introduces the subject of the*Revised Statutes into the act; yet from the clause in said section confining “its application to the city of Watertown,” it is obvious that the purpose of this section is to amend the charter by conferring upon the recorder jurisdiction over the offenses designated in said sections of the Revised Statutes; but instead of simply stating in direct terms that the recorder shall have express jurisdiction over the offenses designated in said sections, the legislature has adopted another and very bungling method to express that purpose. That literary. defect, however, does not obscure the object.' This amendment of the Revised Statutes is only incidental to the main subject of the act, which is the incorporation of the municipality, and that subject embraces, as separate parts thereof, the definition of the powers and duties of the city officers. Harris v. People, 59 N. Y. 599; Frost v. Wilson, 70 Mo. 664.

Again, what was the object of the enactment of this constitutional provision ? The answer to that question may further aid us in determining the question herein. The object was “ to prevent the joining’of one local subject to another or others of the same kind, or to one or more general subjects, so that each should gather votes for all, and to advise the public, and the locality, and the representatives of the locality and of other parts of the general purpose of the bill, so that those interested might be on their guard as to the whole or as to the details. Harris v. People, 59 N. Y. 599; People v. Suprs. Chautauqua, 43 id. 10.

But this section relates solely to the municipality of Water-town and is in harmony with the rest of the act. There is, therefore, nd conflict between this section and the constitution when this section is read in the light of the obvious purpose of its enactment, and in the light of the object of the adoption of said constitutional provision.

The intention of the legislature is to be deduced from the whole statute, and when it is clear that the purpose of the statute is fully comprehendedgunder the subject stated in the title, that intention will prevail in favor of its- constitutionality over the technical fault of a literal expression of another subject. Matter of N.Y. & Brooklyn Bridge, 72 N.Y. 527 ; People v. Banks, 67 id. 568.

This section in question is. therefore, not repugnant to the constitution.

It is further urged that these sections of the Revised Statutes have been repealed by chapter 593, Laws of 1886, and that, therefore, the application thereof to the recorder’s court under this section in question fails. But it is a general principle that a general statute will not repeal a local statute unless special reference is made to the local statute in the repealing act, or the intention to effect such repeal is otherwise specially expressed. Matter of Main St., Sing Sing, 98 N. Y. 454; Van Denburgh v. Village of Greenbush, 66 id. 1.

A special statute making the provisions of a general statute applicable to a local court is not affected by the repeal of the general statute. Bergman v. Wolff, 33 St. Rep. 499; People v. Burleigh, 1 N. Y. Crim. 522.

Such is the rule even though the general statute contains a general repealing clause as to inconsistent legislation. Whipple v. Christian, 80 N. Y. 523 ; Aldinger v. Pugh, 32 St. Rep. 513.

In the repealing statutes here under consideration no intention is expressed to embrace the special statute making them applicable to the charter of the city of Watertown. Therefore, these sections of the Revised Statutes, so far as they relate to said recorder’s court, are not repealed. The fault of this manner of legislation —that of making an existing statute applicable to another statute without inserting it in the act—-is now prevented by § 17 of article 3 of the constitution, adopted since the enactment of said chapter 810 of the Laws of 1871.

The use of the Monroe County Penitentiary for the purposes of county jails is provided for by chapter 289, Laws of 1859, as amended by Laws of 1874, chapter 209, and Laws of 1876, chapter 108.

The relator must, therefore, be remanded to the custody of the defendant.


author: Fursman, J.

text:
    Travelers’ Insurance Company, Pl’ff, v. Ann Healey et al. Def’ts.

      (Supreme Court, Rensselaer Special Term,

      Filed April, 1894.)

    1. Interpleader—When lies.
    An insurance company may maintain an action of interpleader, though some oí the defendants claim under assignments from the assured and the others under the terms of the policy.
    3. Insurance—Lira— Assignment.
    A policy issued on the husband’s life for the benefit of his wife, and in. case of her death, to go to his children, is assignable.
    3. Same—Validity.
    In order to a valid assignment of such policy by the wife, the written consent of her husband is required. A mere delivery thereof ig not sufficient.
    Action of interpleader.

      Matthew Hale, for pi’If; A. G. Gomsioch, for deft Healey; George R. Dorman, for def’ts Peterson and Packer; W. L. Learned,' for def’ts Doty.
   Fursman, J.

On the 23d day of May, 1874, the plaintiff issued a policy of insurance on the life of Alonzo H. Doty for $2,000, primarily for the benefit; of his wife, Josephine Doty. There is,, however, a provision in the policy that, in the case of the death of Josephine before Alonzo, the sum to be paid by the company shall go to their children, if any are then living, or, if none, then-to the estate of Alonzo. There is also the following provision; “This policy maybe converted into cash, at the option of the-holder, at any time after the expiration of fifteen years from the date hereof, for the amount indorsed upon the back of the policy, corresponding to the age (nearest birthday) of the insured at the time of such conversion”; provided that this policy shall have been -first paid up by the payment of ten full premiums as herein stipulated.”

Ten fullu premiums were duly paid, and the stipulated fifteen years expired on the 23d of May, 1889. Alonzo became 47 years of age in 1891, and the then value of the policy under the provision above quoted was $740. Alonzo and Josephine are still living, and the defendants Starks A. and Carrie E. Doty are their infant children. In April, 1884, Alonzo borrowed $600 of defendant' Healey, for which he and Josephine gave their joint and séveral note, and delivered to Healey this policy of insurance as-security. There was at that time no actual assignment of the policy, verbal or otherwise, made to Healey ; but the delivery accompanied the note, and was made by Alonzo with the consent of-Josephine. The policy has ever since remained in the possession of Healey. Afterwards, on the 4th of April, 1890, Alonzo arid Josephine gave Healey a written assignment of all their “ right, title, claim, interest, and benefit” in and to the policy. The note for the payment of which Healey held this policy as security was put into judgment April 6, 1890. On the 29th of October, 1886, Josephine, with the consent of Alonzo (who united with her in the assignment), assigned the policy to defendants Peterson and Packer by a written assignment. This assignment recites an indebtedness to Peterson and Packer of $1,130.65. On the same day this debt was put into judgment. About November 1,1886, Peterson and Packer sent to the plaintiff a copy of their assignment, with a notice indorsed thereon indicating that they hold the original... No other notice, nor any demand whatever for any payment on the policy, has been made by them. On May 24, 1890, defendant Healey sent a letter to the plaintiff, in which she claimed that the policy had on the 13th day of April, 1884, been verbally assigned to her to secure the loan of $600 above mentioned, and forbidding the plaintiff to pay the policy, or any part of it, to any person, until her claim should be satisfied. On the 4th of April, 1890, Hyatt & Comstock, acting for Healey, sent to plaintiff a copy of the written assignment to her. No other or different claim or demand has been made by Healey for the payment of the policy, except that on the 22d of

October, 1891, she commenced an action on the policy against plaintiff, and in her complaint therein declares that she “ elects that the same be converted into cash,” as provided by the policy, and claims to recover $740. On the 17th of November, 1890, one Peter Doty, claiming to be guardian of the infant children of Alonzo and Josephine (the defendants Starks A. and Carrie E. Doty), sent a letter to the plaintiff, forbidding any payment to either Peterson and Packer or Healey, and asserting that the children have such an interest in the policy that it cannot properly be paid to any one until it shall be ascertained whether Josephine survives Alonzo. The complaint in this action substantially sets out these facts, and the plaintiff asks to be allowed to pay the $740 into court, or to whoever may be entitled to it, that the rights of the defendants as between themselves may be determined, and that all of the defendants be restrained from proceeding against the plaintiff to recover the same. The defendants Doty and Peterson and Packer insist that the action cannot be maintained. Healey and Peterson and Packer each claims to be entitled to whatever sum may be due upon the policy whenever it shall be paid; Healey, that the election permitted by the policy has been rightfully exercised by her, and that the money is now due and payable ; and the defendants Doty, that they have such an interest that they may become entitled to the whole of the $2,000, and that they cannot be deprived of this interest by any assignment that Alonzo and Josephine, or either of them, might make.

I think the action may be maintained. Although the claims of the several defendants are not precisely the same in .detail, they each assert a right to the same thing, viz. to whatever sum may be realized from the policy, at whatever time it may be paid. It is true that Healey insists that she, being entitled to do so, has exercised the election provided for in the policy, and that, therefore, $740 is immediately due, and belongs toiler; while Peterson and Packer aver that she has no right of election, and that they will be entitled to receive whatever is due at any time they may choose to demand it; and the infants Doty, that their claim to the fund is such as to defeat both. But it is nevertheless the money due or to become due upon the policy to which all lay claim. Each asserts a right in hostility to the others, and, if they do not severally threaten an immediate action against the plaintiff, each has taken proper preliminary steps to enable an action to be brought at some future time. They have respectively notified the plaintiff of the claim made, and eacli has forbidden payment to any other. Healey has already sued. The amount that may be recoverable upon the policy is not material. The material thing is that all the defendants make claim to the same subject-matter. It is the policy of the law to avoid multiplicity of suits, and, where different persons claim the same money which one indebted is willing to pay to whoever may be entitled to it, he may bring an action in equity to determine their several rights, and so relieve himself from the harassment of a number of suits, and the hazard of a double recovery. 2 Story, Eq. Jur. §§-807, 813b. In §814 this learned author says that there does not seem to be any difficulty, upon principal, in maintaining that' a bill .of inter-pleader may be'brought against three persons, each claiming the same property in a distinct and 'different right. Although the claims of the several defendants are not exactly alike, they are of the same general nature. They all grow out of the same contract upon which a liability is asserted against the plaintiff in behalf of each. The plaintiff ought not to be required to take the responsibility of deciding which of these conflicting claims is the true one, nor to be subjected to different suits, a judgment in one of which will -not determine the rights of the claimant in any other. To prevent a multiplicity of suits is one of the offices of courts of equity, and to protect a party against the dangers of a double recovery is another. Board v. Deyoe, 77 N. Y., 219 (see pages 224 et seq.) See, also, Crane v. McDonald, 118 N. Y., 648; 30 St. Rep. 98; Equity Gaslight Co. v. McKeige, 139 N. Y., 237— 239; 54 St. Rep. 550; and Ostrander v. Weber, 114 N. Y., 95; 22 St. Rep. 979.

I think, also, that the policy was assignable, notwithstanding tire contingent interests of the children. Legislation on this subject has been constantly progressive. Authority for a' wife to cause the life of a husband to be insured for her benefit was originally given by chapter 80 of the Laws of 1840. This act provided that, in case of the death of the wife before that of the husband, the insurance might be made payable to her children. A policy issued under that act was not assignable. Eadie v. Slimmon, 26 N. Y., 9. No material change in this law was made until .chapter 821 of the Laws of 1873 was passed. By that act it was made possible for a married woman, by certain prescribed methods, to surrenderv such a policy to the -company issuing it, and, in case she was without children, to dispose of the policy by will, or by deed executed and acknowledged in a manner sufficient to, her dower right in lands. This, however, did not authorize or permit an assignment by a married woman having children. This was the state of the law until chapter 248 of the Laws of 1879 was enacted. This act provided that from and after its passage all policies upon the lives of husbands for the benefit of wives, whether theretofore or thereafter issued, should be assignable by the wife with the written consent of her husband, and might be surrendered to the company issuing it with the like consent. This statute seems, to confer upon the wife for whose benefit her husband’s life is insured the right to assign the policy where her husband consents, notwithstanding there may be children who would take in case the husband survived her. The right thus conferred is absolute. It is a present right. It is given to her as the primary beneficiary, and the enactment was evidently intended to remedy the omission of the former statute in this respect. It is true that this policy provides that, in case of the death of Josephine before Alonzo, the insurance shall go to the children, but this cannot deprive Josephine of the right which the law gives her as the wife for whose benefit the insurance is placed upon her husband’s life of assigning it with his written consent. ,This law applies as well to existing insurance as to that subsequently created, and effects, therefore, this policy. Unless this is so, the law is without force, for otherwise the children who might be the ultimate beneficiaries could always prevent the exercise of the right thus conferred by law. It was evidently the intent of this law to remove the disability previously existing, and to confer upon married women the right, which they had not before possessed, to assign insurance policies. This policy was, therefore, assignable. Thus it was held in Conn. Mut. L. Insurance Co. v. Van Campen, 32 St. Rep. 1125; 11 N. Y. Supp. 103; that the act of 1879 conferred full power upon the wife to assign, even though there were children. See, also, Anderson v. Goldsmidt, 103 N. Y. 617 ; 4 St. Rep. 286. At page 621, 103 N. Y„, the court say that the statute gives to the wife the right of assignment, whether there are children or not; and this seems to be in accordance with reason. The wife has a present estate which cannof be of any value to her unless she may dispose of it. ' If the children may prevent this upon the ground that there is a chance that they may some time become entitled to it, the present estate of the wife, for whose benefit the insurance is had, may be wholly defeated. The law gives her a present assignable right to the whole policy, and I think she may exercise that right without regard to those who might, by some possibility, become entitled to the fund if she did not exercise it.

Having thus concluded that this policy could be assigned, the remaining question is as to whom the assignment has been properly and legally made to. Healey, in April, 1884, loaned $600 on the faith of it, but took no assignment in writing. This the law requires, or, if it does not require a written assignment of the thing itself, it requires the written consent of the husband when the wife assigns. This was not originally done. The policy w.as simply turned over to Healey as collateral to the note, which represented the loan then made. The most plausible argument that can be made is that the subsequent absolute assignment related to the prior delivery. If this were so, it would be a mere pledge that the principal debt, evidenced by the note, would be paid; and that, in case it was not paid, the pledgee might resort to the policy for reimbursement of the loan. In that case it gave Healey the right to foreclose the claim of Josephine, and nothing more. It was a mere pledge, and gave to the pledgee only a special property in the thing pledged, the general title to which remained in the pledgor. Mc Farland v. Wheeler, 26 Wend. 467; Ocean Nat. Bank v. Olcott, 46 N. Y. 12 (see page 17). Her right was nothing more than to detain the policy until the note was paid. Mc Caffrey v. Wooden, 62 Barb. 316 (see page 323). She could not require payment of it, and, of course, could not elect that it should become immediately due. All that she could do was to foreclose her lien. But I do not think that the delivery of the policy to Healey in 1884 constituted a valid pledge. Josephine could not do indirectly a thing which she could not do directly. As she could not transfer her title to the policy without the written consent of her husband, she could not create a special property in it without the like consent. If the subsequent written assignment to her is-to he regarded as absolute, and therefore as transferring to her such title as Josephine had, it was subsequent to that of Peterson and Packer, and conveyed nothing. This latter assignment conveyed the whole title to Peterson and Packer. The original delivery of the policy to Healey did not operate as an assignment of it, because the written consent of Alonzo -was lacking; and before the ‘attempted written assignment to Healey, Josephine, with the written consent of Alonzo, had parted with lier title to Peterson and Packer.' Milhous v. Johnson, 21 St. Rep. 382 ; 4 N.Y. Supp. 199; Smillie v. Quinn, 90 N. Y. 492 (see page 496). I conclude,therefore, that the assignment to Healey was invalid, and that to Peterson and Packer valid. It was not necessary that actual manual possession of the .policy could be given. Baker v. Crosby, 33 St. Rep. 757; 11 N. Y. Supp. 576. It follows that Healey had no power to elect that the policy should become immediately due, and that the money to become due on it will belong to Peterson and Packer whenever they shall require the same.


author: Gilderst eeve, J.

text:
    William Foley, by Guardian, etc., Pl’ff, v. The Mail and Express Publishing Company, Def't.

      (New York Superior Court, Special Term,

      Filed April, 1894.)

    1. Pleadings—Demurrer.
    A mere general statement in a demurrer that “there is a defect of parties plaintiff,” or that “the plaintiff has not legal capacity to sue,” without specifically stating the defects relied upon is insufficient.

      2. Same. .
    Where, in the agreement the defendant reserved to itself the power to discharge the plaintiff whenever his services ceased to he satisfactory, and the complaint alleges that the plaintiff was discharged ‘ ‘without any reasonable cause whatever,” a demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action, will be overruled.
    Demurrer to complaint.

      A. W. BirJcins, for pl’fE; Wm. Irwin, for deft.
   Gilderst eeve, J.

The action is brought by an infant for damages for wrongful dismissal from the employment of the defendant, which employment is alleged in the complaint to have been entered on, under an agreement in writing, for three years. A copy of this agreement is annexed to the complaint and made a part of it The allegation in the complaint is that the plaintiff was discharged without reasonable cause about three months after entering upon "the employment, and the action is brought for damages for loss of wages under said agreement of employment, from the date of dismissal to the end of the. term of three years. The defendant demurs on the grounds: (1) That the plaintiff has not legal capacity to sue; (2) that there is a defect of parties plaintiff ; (3) that the complaint does not state facts sufficient to constitute a cause of action. I do not think the first and second grounds of demurrer can be sustained. There is nothing on the face of the complaint to show that plaintiff has not legal capacity to sue or that there is a defect of parties plaintiff, and the demurrer fails to point out specifically the particular defect relied upon. Where the "demurrer is made on the ground that the plaintiff has not legal capacity to sue, or that there is a defect of parties plaintiff, it must point out specifically the particular defect relied upon (Code, § 490); and where these grounds are not specifically stated, the demurrer, so far as based on these grounds, may be disregarded. Dodge v. Colby, 108 N. Y. 445; 13 St. Rep. 848. A mere general statement in a. demurrer that “there is a defect of parties plaintiff,” or that “the plaintiff has not legal capacity to sue,” without stating the defects relied upon specifically, is insufficient. See Hodge v. Drake, 37 St. Rep. 933; 14 N. Y. Supp. 355; Code, § 490; Dodge v. Colby, 108 N. Y. 445 : 13 St. Rep. 848. There now remains to be discussed the third ground of demurrer, i. e., that the complaint does not state facts sufficient to constitute a cause of action. A demurrer is only proper when the ground thereof appears on the face of the complaint. Getty v. Hudson River R. R. Co., 8 How. Pr. 177; Phœnix Bank v. Donnell, 40 N. Y. 410. On demurrer the complaint must be liberally construed, must be taken as true. The complaint alleges that the agreement of employment was entered into by plaintiff and defendant in writing, and it sets forth a copy of the agreement, which appears to be signed by the plaintiff' and two others. It does not appear who these two others are, but, in view of the allegation of the complaint that defendant, as well as plaintiff, entered into the contract, it may be reasonably supposed that the agreement was signed by defendant’s agent as well as by plaintiff. The plaintiff entered upon his employment and continued in such employment for some three months, when he was discharged. The contract of employment provides that “ this agreement to run for the period of three years, provided my (i. e., plaintiff’s) services shall be satisfactory to the publishers (t. e., the defendant); and in 'case they are not, I shall be entitled to one week’s notice,” etc. To be sure, the complaint does not state whether plaintiff was given one week’s notice or not, but it is fair to assume that it was given, as the point is not raised in the complaint. But the complaint alleges that plaintiff was discharged “ without any reasonable cause whatever.” In the agreement the defendant reserved to itself the power to discharge the plaintiff whenever his services ceased to be satisfactory to the defendant, upon giving plaintiff one week’s notice; but the complaint alleges that plajntiff was not discharged for any reasonable cause, and certainly it would have been reasonable cause if his services had not been satisfactory. It is quite within the bounds of possibility that plaintiff may have been discharged for some other reason than unsatisfactory performance of his services, but this reason, whatever it may have been, is alleged in theicomplaint to have been unreasonable, and, therefore, not justifiable within the contract. As I have said, the complaint mnst be literally construed, and all its allegations must be taken to be true, so far as the determination of the demurrer is concerned. I am of opinion that so far. as appears on the face of the complaint, the agreement was in writing and .subscribed by the parties to be charged therewith, and, therefore, not void under the statute. Laws 1863, chap. 464. The third ground of the demurrer is, therefore, not well taken. The demurrer must be overruled, with leave to defendant to answer on payment of costs within twenty days after service of notice of entry of the order hereon.

Ordered accordingly.


author: Gildersleeve, J.

text:
    William S. Guerineau et al., Pl'ffs, v. Moses Weil et al., Def'ts.

      (New York Superior Court, Special Term,

      Filed April, 1894.)

    Trial—Short calendar.
    The special term, on a motion to put a cause on the special calendar for short causes, has discretionary power to determine whether there is reason to believe that the trial will not occupy more than one hour.
    Motion to have cause placed on special calendar for short causes.

      Everett McKinstry, for motion; Benno Loewy, opposed.
   Gildersleeve, J.

This is a motion, under rule 22 of the rules of this court, to have the cause placed upon the special calendar for short causes. The rule provides that in any action on contract, where there is reason to believe that the trial will not occupy more than one hour, either party may apply, on notice, etc., to have the cause placed upon the special calendar for short causes. And ih case the, motion is granted, but the trial takes more than one hour, it imposes a penalty of not less than ten dollars, nor more than thirty dollars, costs upon the party making the motion, while the cause may be restored to its position on the general calendar. It is within the discretionary power of the court, at special term, to determine whether or not there is reason to believe that the trial will not occupy more than one hour. In the case at bar the complaint alleges that plaintiffs rendered services to the defendants at their request, as brokers, in the sale and exchange of certain real estate, for which defendants promised to pay to plaintiffs $250, no part of which has been paid; it also alleges that the plaintiffs were copartners, and that the defendants are executors of one Abraham Ostheim, deceased. The answer, after denying any information or belief as to the copartnership of plaintiffs, and after admitting the executorship of defendants, and admitting that they have not paid to plaintiffs the sum of $250, denies each and every other allegation of the complaint. Therefore, the whole cause of action is put squarely at issue. It also appears front the affidavit submitted by defendants that defendants will be necessarily obliged to examine at least six witnesses, and perhaps more; while in the moving affidavit plaintiffs admit that, in order to prove their case, it will be necessary for them to examine “ several ” witnesses. It does not seem to me that (this is a case for the special calendar for short causes. If the motion is granted, and the case occupies more than an hour, the trial will have to be suspended; and the defendants will have been put to the expense and trouble of a mistrial, for which it may well be that the costs resulting from the mistrial, which cannot exceed thirty dollars, would be a very inadequate return. I am of opinion, therefore, that this is a case in which the court should exercise its discretionary power to deny the motion, but, under the circumstances, without costs.

Motion denied, without costs..


author: Gtldersleeve, J.

text:
    Alfred Mussinan, Pl’ff, v. Loftus D. Hatton, Def't.

      (New York Superior Court, Special Term,

      Filed April, 1894.)

    1. Pleadings—Amended complaint.
    Under § 543 of the Code, the plaintiff cannot serve, as a matter of right a second amended complaint.
    3. Same.
    The plaintiff may, under this section, amend by alleging an entirely new cause of action.
    Motion -to strike^ out an amended complaint.

      Peters & Robinson, for pl’ff; Foley & Powell, for deft.
   Gtldersleeve, J.

This is a motion to strike out an amended complaint. Before service of the answer to the original complaint the plaintiff served an amended complaint, which was subsequently stricken out by the court, on motion of defendant. After the amended complaint had been so stricken out, the defendant served his answer to the original complaint; and, within twenty days thereafter, plaintiff served another amended complaint. The defendant now moves to strike out this second amended complaint. The question here presented is: Can the plaintiff serve two amended complaints? that is, when the first amended complaint has. been stricken out, can plaintiff serve a second amended complaint, as, of course, without costs and without prejudice, under § 512 of the Code? That section of the Code permits a pleading to be amended “ once by the party, of course, without costs, arid without prejudice to the proceedings already had,” etc., “ within twenty days after a pleading, or the answer or demurrer thereto is served, or at any time before the period for answering it expires,” etc. This second amended complaint was served within twenty days after service of the answer to the original complaint, and was, therefore, served within the statutory limit of time. Seneca County Bank v. Garlinghouse, 4 How. Pr. 174. But, having already served one amended complaint, can plaintiff serve another, under the above section of the Code? I think not*. The Code particularly states that the complaint may be once amended. The Code gives plaintiff an absolute right to amend his complaint once, subject to the right of the court to strike out for cause shpwn. Cooper v. Jones, 4 Sandf. 699; Frank v. Bush, 63 How. Pr. 282. The plaintiff has availed himself of this right, and his amended complaint has been stricken oi\t by the court. He cannot go on serving amended complaints indefinitely. I can find no authority to support the contention that plaintiff can serve a second amended complaint, as a matter of right, under § 542 of the Code. Of course, under § 544 of.the Code, plaintiff' is at liberty to apply to the court for permission to serve a supplemental complant; but I am of opinion that he has already exhausted his right under § 542 of the Code. The ground, however, that the proposed amended complaint should not stand for the reason that it sets up a new cause of action, is not tenable; for, under § 542 of the Code, the plaintiff may amend by alleging an entirely new «cause of action, because this section contains no restriction as to the nature of the amendments, Robertson v. Robertson, 9 Daly, 44-52 ; Devine v. Duncan, 2 Abb. N. C. 329; but all the causes set forth in the amended complaint should be of the same1 class, and of a class to which the summons is appropriate. Brown v. Leigh, 49 N. Y. 78. I am of opinion that the motion to strike out this second amended complaint must be granted, with $10 costs, with leave to the plaintiff to make such application to the court as he may think proper with regard to any further pleading.

Ordered accordingly.


text:
    Nettie Neiberg, Pl’ff, v. Louis Neiberg, Def’t.

      (New York Superior Court, Special Term,

      Filed April, 1894.)

    Pleadings—Complaint—Supplemental—Divorce. ,
    Leave to serve in an action for absolute divorce, a supplemental complaint, alleging additional acts of r.dultery by the defendant since the commencement of the action, will not be granted.
    Motion for leave to serve a supplemental complaint.

      C. I Schampain, for motion; N. S. Ljevy, opposed.
   Gtldersleeve, J.

The action is brought for an absolute divorce on the ground of adultery. Issue has been joined, and the case noticed for trial by both parties. The plaintiff now moves for leave, under § 544 of the Code, to serve a supplemental complaint setting forth acts of adultery on the part of the defendant committed subsequent to the commencement of the action and the joining of issue therein. It is the established doctrine of this court, which has been followed by the court of common pleas, that a supplemental complaint, alleging additional acts of adultery by defendant since the commencement of the action, cannot be filed, see Day v. Day, N. Y. Law Jour., Sept. 7, 1893, McAdam, J.; Halsted v. Halsted, 7 Misc., Rep. 23; 57 St. Rep. 79. 26 N. Y. Supp. 758, Giegerich, J.; and I cannot find that the court of appeals has disapproved of that doctrine. This doctrine is not inconsistent with that laid down by the supreme court in Blanc v. Blanc, 67 Hun, 384; 51 St. Rep. 822, where it was held that a defendant, sued for a divorce, may, by supplemental' answer, plead, by way of counterclaim, acts of adultery committed by the plaintiff after the suit has been brought, and may have affirmative relief therefor; because, as Judge MoAdam points out in his opinion in Day v. Day, N. Y. Law Jour., Sep. 7, 1893, a plaintiff may discontinue and sue over again, while a defendant •cannot.

This motion for leave to serve a supplemental complaint must ■be denied, but without costs.

Motion denied, without costs.


text:
    Charles Mitchell, Pl’ff, v. William B. Dick, De’ft.

      (New York Superior Court, Special Term,

      Filed April, 1894.)

    1. Costs—Secubity fob.
    An order directing a non-resident plaintiff to file security for costs may be granted ex parte.

    ■3. Same—Affidavit.
    The affidavit, in this case, was held to be sufficient as to non-residence.
    Motion to vacate ex parte order requiring plaintiff to file security for costs.

      Louis J. Grant, for motion; Reginald H. Arnold, opposed.
   Gildersleeve, J.

This is a motion to vacate an order, granted ■ex parte, requiring plaintiff to file security for costs, ..The order was granted upon an affidavit of defendant’s attorney that the plaintiff at the commencement of the action was, and still is, a non-resident of this state. The defendant’s counsel contends: (1) That it was improper for the court to grant the order ex parte, and (2) that the affidavit upon which it was granted is insufficient. With the first contention I cannot agree. While it has been held that an order, made without notice, to compel a plaintiff, .suing as an -executor, to give security for costs, under § 3271 of the Code, is irregular, see Swift v. Wheeler, 46 Hun, 581; 12 St. Rep. 737, I am not aware of any authority which applies the same doctrine to an order, granted ex parte, requiring a nonresident plaintiff to file security for costs. It is true that the •supreme court, in the case of Churchman v. Merritt, 19 St. Rep. 172, rather inclines to the belief that it would be the better practice to give notice, but the opinion in that case practically states that, “ as the law is enacted, an absolute order in the first instance is not authorized.” It is the generally accepted doctrine that an order requiring security for costs in an action, where the plaintiff was, at the time of the commencement thereof, a nonresident of this state, may be granted by the court on an ex parte application of the defendant, upon due pro if being given of the necessary facts entitling the defendant to the same. In such a case the plaintiff is not entitled to notice. See Wood v. Blodgett, 15 Civ. Pro. Rep. 114; 17 St. Rep. 295. With regard to the second contention of plaintiff’s counsel, i. e., that the affidavit is not sufficient, it may not be improper, perhaps, in the first place, to note the fact that the plaintiff is a well-known pugilist cf generally conceded English nationality and citizenship. But aside from this fact, the affidavit states that defendant’s attorney has been informed by several people, and especially by Colonel William E. Harding, the sporting editor of the Police Gazette, and a personal friend and acquaintance of the plaintiff, that ¡said plaintiff is, and at the commencement of the action was, a nonresident of this state and. a resident of England, and that defendant’s -attorney is unable to procure an affidavit to this effect from' Colonel Harding for the reason that Colonel Harding, as a friend and personal acquaintance of the plaintiff, refuses to make any affidavit as to the non-residence of plaintiff. This affidavit certainly makes out a prima facie case of the non-residence of plaintiff, and, on this motion to review the order, the plaintiff hands up no affidavits tending to show that plaintiff is not a nonresident, or was not at the time of the commencement of the action. The defendant was not guilty of any laches in making his application for the order that would warrant its being set aside. I aha of the opinion that the motion to vacate the order must be denied, but with leave to plaintiff to renew the same, if he sees fit, upon affidavits showing that the claim of non-residence is not, in fact, well founded. No costs.

Ordered accordingly.


author: G-ildersleeve, J.

text:
    Daniel M. Hurlbut, Pl’ff, v. The Interior Conduit and Insulation Company, Def’t.

      (New York Superior Court, Special Term,

      Filed April, 1894.)

    1. Pleadings—Amendment.
    An amendment to an answer will not be granted, where the proposed question is sufficiently presented by the original pleadings.
    2. Same—Laches.
    Laches in making an application to amend a pleading is sufficient reason for denying it.
    Motion for leave to serve an amended answer.

      Baton & Lewis, for motion ; Kneeland & Stewart, opposed.
   G-ildersleeve, J.

The defendant makes a motion to serve an amended answer. The summons and complaint were served on March 29tb, 1893, and the answer was served on May 1st, 1893, and the case is now on the calender, and is expected to be shortly reached for trial. This action is brought to recover royalties on certain tubing manufactured by defendant. The plaintiff is the owner of a patent, No. 441845 and 441846, and he made the defendant his licensee, with the sole right of manufacturing tubing under plaintiff’s said patent. After the making of this contract, defendant acquired the right to manufacture tubing under a subsequent patent, ¡No. 477593, procured by one Greenfield, and after that time, as defendant claims, manufactured tubing under both said patents. The complaint sets forth the ownership of patent ¡No. 441845 and 441846 by plaintiff, the contract with defendant, the failure of defendant to pay royalties, under the contract, on a large amount of tubing manufactured by defendant, and demands payment of such royalties with interest, etc. The answer admits the contract, but denies that there is anything due under it. The defendant now moves for leave to serve an amended answer putting more distinctly at issue the question whether the large amount of tubing manufactured by .defendant, upon which plaintiff claims royalties, was in fact manufactured under plaintiff’s patent or under the Greenfield patent. 1 am of the opinion that the motion should not be granted. Aside from any question of jurisdiction that might be raised on the ground of a state court passing upon the infringement of a patent, it seems to me that the motion should be denied on its merits. The pleadings are sufficiently complete as they stand. The complaint alleges the failure to pay royalties under the contract. The answer denies any royalties are due. Upon the trial the plaintiff will have to prove the manufacture of tubing under plaintiff’s patent upon which royalties are due, and the defendant, under its answer, will be at liberty to show that the tubing was not manufactured under plaintiff’s patent and that no royalties are due. The ground, however, that'the amendment, if allowed, would set up a new defense, and that, therefore, the court could not grant the motion, is untenable, for the power of the court at special term to allow an amendment setting up a new defense is well established. See Marx v. Gross, 31 St. Rep. 403. Another reason that might be urged against the motion is the laches of defendant. Laches in making the application form a sufficient reason for denying an application* to amend a pleading which might have been granted if seasonably applied for. Newman v. Marvin, 12 Hun, 236; Grant v. Griswold, 21 id. 509; Henderson v. Savage, 46 N. Y. Supr. Ct. 221. The case has been at issue nearly a year, and is expected to be reached shortly for trial, as appears by the affidavit of defendant’s counsel on this motion. , It is rather late now to apply for a leave to amend the answer. For the reasons above stated the motion is denied, with ten dollars costs.

Motion denied, with costs.


author: Coffin, S.

text:
    In the Matter of the Estate of John F. Kene, Deceased.

      (Surrogate’s Court, Westchester County,

      Filed April, 1894.)
    1. Tax—Collateral inheritance.
    A devisee of land, which is subject to a mortgage, takes it cum, oncres unless the will contains an express direction to the contrary.

      3. Same.
    An equity in premises less in value than $500 is exempt from the collateral inheritance tax. '
    The deceased died on the 11th day of May, 1891, leaving a last will and testament. His estate consisted of real and personal property, all of which, with the exceptions of one house and lot, he bequeathed and devised to his two brothers, and was not of sufficient value to cause1 it to be subjected to taxation tinder the Collateral Inheritance Law then in force." The house and lot mentioned was devised to one Louisa F. Hoffkens, who was not related to the testator. An, appraiser was appointed to ascertain and fix the value thereof, who duly' reported such value at $1,509.48. A tax amounting to seventy-five dollars and forty-seven cents 'was assessed and fixed thereon accordingly. An appeal was taken therefrom to the surrogate, the ground thereof being that there was(a mortgage on said property of the amount of $1,100 at the time of the death of the decedent. The personal estate Bequeathed to the brothers was of the valqe of $4,000.

      C. E. Kene, for app’lt; Edward Ilasselt, for resp’t, the county treasurer.
   Coffin, S.

It is claimed by the counsel for the respondent that the bond accompanying the mortgage was an obligation of the deceased which his executors should pay, they having sufficient funds of the estate for that purpose. . If this view were correct the mortgage would be satisfied out of the personal estate, and the devisee of the house and lot would take it free therefrom, and so be liable to the payment of the tax'. In this he seems to be in error. Such was the rule in England, but it was changed in this state as early as 1786, and is continued to the present day. By section 4, page 749, of the 1st Revised Statutes now in force, it is provided that “ whenever any real estate, subject to a mortgage executed by an ancestor or testator, shall descend to an heir or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage out of1 his own property, without resorting to the executor or administrator of his ancestor, unless there be express direction in the will of such testator that such mortgage be otherwise paid.” See reviser’s note to the section. The will gave no direction for the payment of the mortgage.

The‘word “ ancester,” in Termes De La Ley, is said, in a forensic sense, to be more properly applied to the possessor of an estate than to an ancestor of a family, and in this sense it is frequently, and, indeed, most generally employed in books which treat of descents of real estate and in statutes relating to that subject. Bur-rill, in his Law Dictionary, defined it ,to be “one who has gone before or preceded in the seizin or possession of real estate,” Here the devisee takes it cum onere. Taylor v. Wendel. 4 Barb. 324; 4 Kent’s Comm. 420. In a proceeding in surrogates’ courts to sell real estate for the payment of the debts of a decedent, on which there is a mortgage, the bond which usually accompanies it is never treated as a debt to be proven. ,

As the value of the equity in the premises is found to be less than $500, it is exempt from taxation, and the decree fixing the tax is, therefore, reversed, with costs.

Decree reversed, with costs.


author: McAdam, J.

text:
    Charles Frohman, Pl’ff, v. Arthur E. Miller et al., Def’ts.

      (New York Superior Court, Special Term,

      Filed May, 1894.)

    1. Injunction—Use op title to play.
    • Where the title of both pl.oys is dissimilar, a court will not interfere to prevent its use, or to compensate a party who has, in consequence, sustained an injury.
    2. Same—Postees.
    The right to use a laughing cat as a trade mark for the purpose of advertising a theatrical play is not infringed upon by the design of a winking owl on another poster for a similar purpose.
    Motion by plaintiff for an injunction restraining the defendants from producing a certain theatrical play under the title of “Charley’s Únele,” and from using or displaying any posters or illustrated matter bearing thereon an owl.

      W. M. Rosebault, for motion; Vanderpoel, Cuming & Goodwin, opposed.
   McAdam, J.

The plaintiff, a theatrical manager, acquired by permission from the author the exclusive right for three years to the production within the United States and Canada of a play entitled “ Charley’s Aunt.” The play has been produced upon the London stage, and has had a successful run in the city of New York since October 3, 1893, during which time the plaintiff has expended a very large sum in advertising the play ; and in calling the attention of the public to it he has used the odd and attractive picture of a laughing cat, probably intending to indicate thereby that the play was funny enough to make a cat laugh.

The plaintiff complains that the defendants, who are also dramatic managers, intend to produce at the Bijou Theatre, in this city, on the 7th inst., a play entitled “Charley’s Uncle,” and that they have advertised the same by means of posters and display sheets in imitation of the manner and style in which “ Charley’s Aunt ” has been advertised, with the difference only that in place of a cat, the defendants have inserted an owl; also, that the title, “ Charley’s Uncle,” was deliberately and intentionally assumed for the purpose of imitating the title of “ Charley’s Aunt ” and the trade-mark acquired in connection therewith; and the play now called by the defendants “Charley’s Uncle” did not originally possess that title, but was known by the name of “ A Noble Art” or “ The Noble Art ”; that it was produced by that name in London, where it was pronounced of little'merit or' value.

There is no pretense that the, defendants have used the plot, characters, word's, music, scenic effects, or theatrical paraphernalia of “ Charley’s Aunt,” and' the claim for injunctive relief is based entirely upon the alleged similarity of title and of advertising posters.

Yfhile there is no doubt as to the power of the court to enjoin the use of a title calculated to deceive the public into the belief that the defendants were performing the plaintiff’s play, the question is whether the title “ Churley’s Uncle” is so similar to “ Charley's Aunt ” as to induce the public to take the former for the latter.

It is not alleged that the plaintiff has copyrighted the title “ Charley’s Aunt,” and his right to the name is founded on the fact that the, author, who is entitled to protection in his literary efforts, has designated his production by that name ; so that his right to use it in connection with the production has, without copyright, substantially the same protection as the play itself. Therefore, whether copyrighted or not. the author’s right to the title of his attraction is to be protected from unlawful invasion. Thus, the name of the play known as the “Two Orphans” was protected by an injunction, and the proprietor of a Philadelphia theatre was enjoined from permitting the performance of another play under the title of “Les Deux Orphelines, or The Two Orphans,” under both the French and English titles. The court in that case said: “If it was not the defendant’s intention'to produce the plaintiffs’ play, the effect of it was to mislead the public and thereby injure the plaintiffs in their future business. Shook v. Wood, 32 Leg. Int. 264. '

In an action brought in this court to restrain the performance of a play called “ Charity,” the court declined to enjoin the defendant from using another play under the'same title, there being no question of similitude or imitation in the subject-matter of the plays. The court said: “ Charity is a virtue that has been symbolized and portrayed in every stage and department of art for all ages,” and that the use of the word as a designation for any work of art or literature could not monopolized by any one person. Isaacs v. Daly, 39 N. Y. Sup’r Ct. Rep. 511. The court remarked: “ There may be occasions when a title is made use of in bad faith, or to promote some imposition or to inflict a wrong, where a court of justice should interfere to prevent its use, or to compensate a party who has sustained an injury. But the present case does not appear to be one where the court is called upon to interfere .for any of these reasons.” But there the title of both plays was precisely the1 same, in this instance it is dissimilar, the one portraying Charley’s aunt—a female; while the other portrays his uncle ■—a male.

It cannot be urged that the plaintiff, even if he had copyrighted the title “ Charley’s Aunt,” could have extended his right to literary protection to all the relatives of Charley’s family; for it must have been known to the plaintiff that this Charley, like every other individual, was apt not only to have aunts, but uncles, brothers, sisters, cousins, and, perhaps, a mother-in-law and a grandfather. Hor would it be seriously contended that, by adopting “ Charley’s Aunt” ns the title to his play, he monopolized the right to all the other relatives.

It may be, and likely is, that the defendants, appreciating the great success of “ Charley’s Aunt,” had the idea that other memhers of Charley’s family might be equally popular with, the public, and, hence, adopted the name of “ Charley’s Uncle” that they might gain a part of the popularity that the aunt had enjoyed. It may also be true that, by putting “Charley’s Uncle” before the public, the public will tire of Charley’s family, and, their claim to favor thus running to ground, the plaintiff may be injured. But that is one of the risks that every author must take, and for which he may be without a remedy. There are many cases in the books where persons have built up a reputation in one business have been materially injured by others of a similar name engaging in the same business; - and yet the courts have never been able to furnish any suitable remedy. Meneely v. Meneely, 62 N. Y. 427; S. C., 20 Am. R. 489; Scott Co. v. Scott Co., 58 N. Y. Supr. Ct. R. 379. The courts, in these and similar cases, announced the rule that there must be no simulation of the goods, in packages or otherwise, that those sold by the defendant should be passed off for those mauufactured by the plaintiff; and that there should be no artifice used in advertising whereby the goods of the one might be taken for those of the other.

And this leads us to the question whether the defendants' posters are so similar to those used by the plaintiff as to deceive the public. Defendants have used an owl, winking its right eye. It is a serious looking old bird, without a smile, and with an apparent incapacity to laugh. It in no manner resembles a cat, and no person, whether intelligent or otherwise, would ever mistake it for a cat. Assuming, therefore, that the plaintiff had the right to monopolize the use of a laughing cat as his trade-mark for advertising purposes, it is clear that this right does not extend to an animal so dissimilar as an owl, from which a'laugh could not be provoked. The owl is typical of gravity and wisdom — the antithesis of a laughing cat There is no pretense that either play enriches our literature, or that either is calculated to furnish the theatre-goer with anything but an alternate wise complacency and smile, as portrayed in the pictures of the owl and the cat respectively. But there is no such similitude between the owl and the cat as to warrant an injunction. If the court were to enjoin the owl from appearing on the defendants’ ¡oosters, it would be hard to imagine any bird that might not with equal propriety be excluded therefrom — even the Amerinan eagle, the bird that typifies our country.

The cases relied on by the plaintiff, in which similarity of names was protected, relate to literary productions in the form of books and newspapers, or to articles like soaps, medicines, tobacco, where there was a general similitude, and where, by the general appearance and makeup, the one might be readily passed off upon the public as the pther; for which reason these cases are inapplicable. =-

It would not be seriously asserted that if the plaintiff had written a book called “ Charley’s Aunt,” and had copyrighted the title, and put upon the outside of his work a laughing cat, the defendants would be enjoined from publishing an entirely different book entitled “Charley’s Uncle,” with an owl or an American eagle on the title page. If such relief could be granted, then the defendants would have no right to publish a book, no matter how dissimilar, if entitled. “ Charley’s Uncle,” “ Charley’s Mother-in-Law,” or Charley’s relative of any kind.

The case is close and near the border line, but is sufficiently removed from it to prevent interference.

If any possible damage can come to the plaintiff by similarity of posters, it is so slight and inconsequential as to justify declining injunctive relief. Lewis v. Fullarton, 2 Beav. 11; Mawinan v. Togg, 2 Russ. 334; Bruce v. D. & H. C. Co., 19 Barb. 379 ; American (Grocer v. Grocer Co., 51 How. Pr. at p. 406.

It is a known fact that after the great success which followed the play called “ Our American Cousin,” several other plays came into existence, known as “Our Herman Cousin,” “ Our African Cousin,” etc.; but none was considered sufficiently serious to warrant an application to a court of equity. ,

Upon the entire case, therefore, the application for an injunction must be denied, without prejudice to any further application the plaintiff may make or action he may bring, if the defendants infringe upon or make use of the laughing cat or any of the peculiar features of “ Charley’s Aunt ” which have made it popular.