text:
    THE GENESEE COUNTY BANK, Respondent, v. THE BANK OF BATAVIA and HENRY F. TARBOX, Assignee, etc., Appellants, Impleaded with Others.

      Assignment by partners for the benefit of creditors,- covering both, firm and individual property — right of a creditor, setting up one'judgment recovered against one partner and others recovered against the firm, to bring' an action to vacate the assignment-right of the creditor bringing the action to make a preferred creditor,- who' has received money under the assignment, a party defendant.

    This action was brought to set aside as fraudulent a general assignment for the' benefit of creditors, made by the defendants, James II. Jones and Evelyn F. House, individually, and as comprising the' firm of Jones & House. The complaint alleged the recovery of a judgment against the defendant Jones, and the recovery of two judgments against the firm, and the docketing of the judgments, and the return unsatisfied of' executions issued thereon;that by reason of preferences contained in the assignment, the-plaintiff could-not collect bis judgments', and various acts, facts and particulars, extrinsic to the assignment, were also alleged as showing a fraudulent intent.

      Held, that a demurrer interposed to the complaint, upon the ground that a cauS'é' of action against Jones individually, and a cause of action against him an'd! House as partners, could hot be joined in the complaint, was' properly overruled.
    The bank of Batavia^was preferred by the assignment to tbe- extent of $18,300. The complaint alleged that the sum of $10,000. or thereabouts,- was paid and delivered by the assignee to the said bank pursuant to such preference, and that the moneys so paid were retained and kept by the said bank under the claim and pretense that the assignment was valid, and that the said bank and the said' assignee, who is and was its president and attorney, fraudulently conspired with, said assignors to procure said assignment to be made in the manner and form aforesaid, knowing the same to be fraudulent in the particulars and for the reasons stated therein, and with intent to procure an unjust preference, and asked fpr a judgment that the bank be adjudged to account for and deliver and pay over to the plaintiff, or to a receiver, the moneys and property it had received.

      Held, that it was proper to make the bank a party defendant, and that a demur rer interposed by it, upon the ground that the complaint did not state facts sufficient to constitute a cause of action against it, was properly overruled.
    Appeal from an. interlocutory judgment in favor of the plaintiff, entered in Genesee county upon an order overruling a-demurrer interposed to the complaint.
    The action was brought to set aside an assignment made by defendants, Jame H. Jones and Evelyn F. House, individually, and as composing the firm of Jones & House, of their individual and firm property, to the defendant Henry F. Tarbox, for the purpose of paying their individual and joint, debts. The complaint avers the recovery of a judgment by the plaintiff, in the Supreme Court, against the defendant James H. Jones, its docketing and the issuing of an execution thereon to the proper county, and its return wholly unsatisfied. It also avers the recovery of two judgments in the Supreme Court, by the plaintiff, against the firm of Jones & House, their docketing, the issuing of executions thereon to the proper county, and the return of such executions wholly unsatisfied. It also avers that, after contracting the debts on which said judgments were recovered, the said James H. Jones and Evelyn F. House made a general assignment of all their partnership and individual property in trust for the payment of their firm creditors, and for the payment of their individual debts, which assignment was recorded September 28, 1883 ; that Tarbox has accepted the trust and taken possession of the assigned property; that by reason of preferences in the assignment, the plaintiff cannot receive anything thereunder, or collect its said judgments; that the assignment was made with the intent to hinder, delay and defraud the creditors of the firm and the creditors of the individual members of the firm. Various acts, facts and particulars extrinsic to the assignment are alleged as showing fraudulent intent. Other allegations in the complaint are stated in the opinion.

      The defendant Tarbox demurred to the complaint, assigning for cause that it appears upon the face thereof that causes of action are improperly joined, viz.: A cause of action against defendant James H. Jones, individually, and a cause of action against him and Evelyn F. House, jointly, as copartners, which causes of action arise out of and relate to distinct and independent transactions, and each of them does not affect all the parties to the action. The Bank of Batavia assigns the same cause of demurrer, and also that the complaint does not state facts sufficient to constitute a cause of action.

      Id. F. Tarbox, for the appellants.

      N. A. Woodward, for the respondent.
   Angle, J.:

The assignment is of the individual property of each member of the firm, and gives a preference to the individual creditors of each out of his individual property. It also assigns the partnership property, preferring the partnership creditors as to that. In our opinion, an action may be brought to set aside such an assignment for the reasons assigned in the complaint, by either an individual or partnership judgment creditor, and that the plaintiff, being a judgment creditor of one member of the firm, individually, and also of the firm, is properly seeking by this action a remedy for the collection of both classes of judgment. (Wait on Fraudulent Conveyances and Creditors’ Bills, § 108, and notes; Bradner v. Holland, 33 Hun, 290.)

Although no case ¡precisely like the present is found, yet these authorities and the eases cited in them contain principles decisive of the present. This conclusion disposes of the demurrer of the assignee, and the first cause of demurrer assigned by the Bank of Batavia.

The second cause of demurrer by the Bank of Batavia is, that the complaint does not state facts sufficient to constitute a cause of action against that bank. The Bank of Batavia is a preferred copartnership creditor for about $18,300, in the aggregate, and the complaint avers that, “the sum of $10,000 or thereabouts was paid and delivered by said defendant, Henry F. Tarbox, as assignee, to said defendant the Bank of Batavia, pursuant to such preference expressed in said instrument of assignment, and that the said moneys so paid, are retained and kept by the said Bank of Batavia under the claim and pretense that said instrument of assignment is valid, and that it derives a right thereto under and by virtue thereof.” The complaint also avers, “ That the said Bank of Batavia and the said Henry F. Tarbox, who is and was its vice-president and attorney, fraudulently conspired with said assignors to procure said assignment to be made in the manner and form aforesaid, knowing the same to be fraudulent in the particulars and for the reasons stated and with intent to procure an unjust prefei’ence.”

While, it is abundantly settled that in the ordinary creditors’ action to set aside a fraudulent assignment, in trust, for the benefit of creditors, the cestuis que trust are not necessary parties, yet this is an exception to the general rule prevailing in equitable actions which requires that in suits relating to trust property the cestuis que trust as well as the trustee must be made parties. (Barb. on Parties, 529.) We are cited to no authorities holding that such cestuis que trust are not proper parties if the plaintiff sees fit to bring them in, nor is it necessary for us to express any opinion on that question.

In view of the above quoted allegations in the complaint affecting the Bank of Batavia, and the prayer m the complaint for judgment, “That the defendant, the Bank of Batavia, be adjudged to account for and deliver and pay over to the plaintiff, or to such receiver, the moneys and property it has received, or that have been paid over to it by said assignee, or under said assignment,” we think there is no doubt about the propriety of that bank being made a defendant.

The interlocutory judgment appealed from is affirmed, with costs of appeal; with leave to withdraw the demurrer and to answer on payment of costs of demurrer and of this appeal.

Haigi-it, Bradley and Childs, JJ., concurred.

Interlocutory judgment affirmed with costs, with leave to the defendant to withdraw demurrer and answer within twenty days upon payment of costs of the demurrer and of this appeal.


source: Caselaw Access Project

author: Angle, J.:

license: Public Domain

text:
    ADELIA RICHARDSON, Respondent, v. WILLIAM VAN NOSTRAND, Appellant.

      Charge to a jury — when a new trial should be granted, because of the expression of an opinion by the judge which is calculated to influence the jury.

    In this action, brought to recover damages for slander, the complaint contained three counts, the first and second for calling the plaintiff a thief, and the third for calling her a whóre. As to the first two the defendant, among other defenses, answered, in mitigation and justification, by setting up certain transactions, called by the judge in his charge the currant transaction and the apple transaction. The defendant excepted to so much of the following portion of the charge as is printed in italics: “It is due, gentlemen, to good order in society, and common decency among neighbors, that you should look to it, if you are convinced that the defendant has made these charges, that he should respond in such damages as you think the plaintiff is entitled to for having charged her with these crimes; and it is well, in my judgment, for the defendant, no matter if his version of these transactions be a correet version, it is well for him to drop this currant transaction and to cease talking about these currants. He has talked about them, m my judgment, long enough, and it is time he stopped talking about this apple transaction and live in peace and comity voith his neighbors.”

      Held, that the portion of the charge excepted to, suggested so decidedly, that, in the judgment of the judge, the damages should be sufficient to stop the defendant’s talk about the currant and apple transactions, instead of leaving that question to be determined by the jury, as to require that a new trial be ordered.
    Appeal from a judgment in favor of the plaintiff, entered on a verdict at the Allegany Circuit, and from an order denying the defendant’s motion for a new trial made on. a case and exceptions.
    The action was brought for slander, and was tried at the Allegany Circuit in October, 1885, where a verdict was rendered for the plaintiff in the sum of $150. The complaint contained three counts; the first and second are for calling plaintiff a thief, and the third for calling her a whore. As to the charge of calling plaintiff a thief, defendant among other defenses answered in mitigation of damages, and in justification set up certain transactions, called by the judge in his charge, the currant transaction and the apple transaction.
    id G. Peek, for the appellant.

      E. C. Obiey, for the respondent.
   Angle, J.:

The only point on this appeal is made by defendant’s exception to a part of the judges charge on the subject of damages. The entire sentence of which the excepted portion is a part is as follows, the excepted part being italicized: “ It is due, gentlemen, to good order in society and common decency among neighbors that you should look to it, if you are convinced that the defendant lias made these charges, that he should respond in such damages as you think the plaintiff is entitled to for having charged her with these crimes, and it is well, in my judgment, for the defendant, no matter if Ms version of these transactions be a correct version; it is well for Mm to drop this currant transaction and to cease talking about these currants. He has talked about them, in my judgment, long enough, and it is time he stopped talking about this apple transaction and live in peace and comity with his neighbors.”

The portion of the charge excepted to is decidedly suggestive that in the judgment of the judge the damages should be sufficient to stop defendant’s talk about the currant and apple transaction. It goes further than an instruction to the jury that they might give such damages as would stop such talk by defendant.

In Allis v. Leonard (58 N. Y., 291), Chief Judge CnuRcn says: Jurors cannot distinguish between a direction in a matter of law or fact. They are bound to take the law from the court; and a positive direction from the bench as to a question of fact is as potent as if it pertained to a question of law; and even an expression of opinion calculated to influence the decision of the jury in a matter clearly within their cognizance should be critically scrutinized.” In the present case the language from the bench was, it is well, in my judgment, for the defendant to stop, etc.; he has talked about them, in my judgment, long enough, etc.”

“ In vindictive actions, as they are sometimes termed, * * * the. conduct and motive of defendant is open to inquiry with a view to the assessment of damages; and if the defendant in committing the wrong complained of acted recklessly, or willfully, and maliciously, with a design to oppress and injure the plaintiff, the jury in fixing the damages may disregard the rule of compensation, and beyond that may, as a punishment to the defendant and as a protection to society against a violation of personal rights and social order, award such additional damages as in their discretion they shall deem proper.” ( Voltz v. Blackmar, 64 N. Y. 444; Brooks v. Harrison, 91 id., 91, 92.)

In the charge in the present case the judge nowhere gives the jury any instruction as to the plaintiff’s right to recover more than compensatory damages, except in the sentence in which the excepted portion of the charge is found and which sentence is given above ; and that instruction is given with an announcement of the judgment of the judge as to the allowance of an important item in such damages, the allowance of which was a question for the jury to determine. In this we think there was error.

A new trial should be granted.

Haight, Bradley and Childs, JJ., concurred.

Judgment and order reversed, and a new trial ordered, costs to abide event.


author: Angle, J.

text:
    FRANK SPAULDING, as Assignee, etc., Respondent v. JAMES H. KELLY, Survivor, etc., Appellant.

      Negotiable paper — when one discounting notes made in the name of a firm, and crediting the proceeds to the individual account of one partner, is not a bona fide holder of the notes — who are deemed to be private bankers under sections G8 and 69 of chapter 409 of 1882.
    This action was brought by the plaintiff, as the assignee for the benefit of creditors of certain persons engaged in carrying on business as private bankers, under the name of Witmer Brothers, to recover the amounts due on two promissory notes, one dated May 18 and the other May 81, 1884, made by one Joseph E. Ways, one of the members of a firm composed of the said Ways and the defendant Kelly, the survivor of said firm, in the firm name to his own order; and by him indorsed and delivered to the plaintiff’s assignors, who, at his request, discounted the said notes and credited the proceeds of each of said notes to the individual account of the said Ways, which account was subject to, and was thereafter paid out by said Witmer Brothers upon, the personal check of said Ways. The referee found, among other things, that each of said notes was the last of a series extending in the case of one note through nineteen, and of the other through sixteen renewals of two months each; that Ways was the financial member of the said firm, and by and with the knowledge and consent of Kelly, negotiated all drafts and other evidences of debt belonging to said firm, and also attended to such banking business as such firm had; that Kelly had no actual notice or knowledge of the making, indorsement or negotiation of said two promissory notes, or of the notes in renewal of which they were given, prior to the death of Ways, which occurred on June 7, 1884; that no part of the consideration of either of said two notes ever came to the use or for the benefit of the defendant Kelly individually; that, at no time during the life of either of said series of notes, or at the time of giving, transferring or discounting the two notes in suit, did said Witmer Brothers have any notice or knowledge of the fact that Kelly was ignorant of the existence of said series of notes, or of the making or discounting of the two notes in suit.

      Held, that Witmer Brothers were not bona fide holders of the notes.
    That they were bound to know that Ways had no right to use the partnership to create or increase his individual credit or account at the bank without the consent of his partner, and were chargeable with notice that the notes were wrongfully made and issued.
    That the transaction was neither apparently or really within the scope of the partnership business, and the partnership was not bound by the act of Ways in the transaction.
    The defendants claimed that the notes were void for usury.
    Held, that the defense was not available against the principal amount secured by the notes as Witmer Brothers were private bankers within the meaning of that term as used in sections 68 and 69 of chapter 409 of 1882.

      Perkins v. Smith ( 41Hun, 47) followed.
    Appeal from a judgment in favor of tlie plaintiff, entered on the report of a referee.
    The action was brought upon two promissory notes made in the name of the defendants’ firm. The referee found that the defendant James H. Kelly and one Joseph E. Ways were partners, under the name of Ways & Kelly, from October, 1876, to about June 7,1884, when Ways died: that about May 8, 1884, Ways, in the name of the firm, as makers, made their promissory note of that date for $2,000, payable in thirty days, to the order of himself, at the bank of plaintiffs’ assignors, for value received, and said Ways then indorsed and delivered said note to said assignors for a valuable consideration; that, before the commencement of this action, said note, with all the other property of the assignors, was transferred to plaintiff for the benefit of their creditors, and he is now the owner of said note, which remains unpaid; that about May 31, 1884, said Ways, in the name of the firm, as makers, made their promissory note of that date for $2,000, payable in fifteen-after date, to the order of himself, at the Manufacturers and Traders’ Bank, in Buffalo, for value received, and said Ways then indorsed and delivered said note to the plaintiff’s assignors, for a valuable consideration ; that, before the commencement of the action, the plaintiff, as such assignee for the benefit of creditors, became the owner of said note, which is wholly unpaid ; that the business of said Ways & Kelly was buying and selling grain, and was carried on at Lewiston, N. Y. ; that plaintiff’s assignors, during the existence of the firm, of Ways & Kelly, were partners at Suspension Bridge, N. Y., under the name of Witmer Brothers, their business being that of private bankers, bill or note brokers,- and money lenders; that they had no corporate existence or organization as a bank, but the business of said firm was done and its accounts kept in the ordinary mode pursued by banks; that said note of May 3, 1884, was indorsed by Ways — “Pay Witmer Brothers’ Bank, J. E. Ways” — and presented to said Witmer Brothers, who then and there discounted it at the request of Ways, and paid him therefor $1,986, and no more; that said note of May 31,1884, was, on that day, indorsed by Ways — “Pay Witmer Brothers’ Bank, J. E. Ways” — and presented to said Witmer Brothers, who then and there discounted it, at the request of Ways, and paid him therefor $1,992, and no more; that the firm of Ways & Kelly was solvent till its dissolution by the death of said W ays; that each of said notes was the last of a series extending, in the case of the note of May 3, 1884, from February 28, 1881, through nineteen renewals, of two months each ; and in the case of the note of May 31, 1884, from October 31, 1881, through sixteen renewals, of two months each ; that each note of each series was made by Ways, in the name of Ways & Kelly, payable to the order of Ways and indorsed by him, and discounted by Witmer Brothers, at his request, at a discount of eight and four-tenths per cent per annum, in advance, for the time it had to run, and the proceeds of each note of each series was credited on the books of Witmer Brothers to the account of Ways; that the discount taken by Witmer Brothers on each of the two notes in suit, was taken by them knowingly and with intent to secure to themselves more than the legal rate of interest, and Ways knew that such rate of interest was charged and taken for that purpose and consented thereto; that at no time during the life of either of said series of notes, or at the time of giving, transferring or discounting the two notes in suit, did said Witmer Brothers have any notice or knowledge of the fact that Kelly was ignorant of the existence of said series of notes, or of the making or discounting of the two notes in suit. Other findings of the referee are set forth in the opinion.

      Joel 8. Walker, for the appellan,.

      L. F. Bowen, for the respondent.
   Angle, J.

A leading point in this case arises on defendant’s exception to the conclusion of law of the referee, that Witmer Brothers, at the time of the discount of the two notes in said suit, became bona fide holders and owners thereof. The portion of the opinion of the referee in which this point is considered is : “ Assuming it to be a fact that no portion of the proceeds of this paper ever passed to the benefit of Ways & Kelly, or Kelly individually, I do not find in any of the authorities cited by counsel for the defendant, each of which to the number of about 100 I have carefully examined, any rule of law that would prevent the recovery by a bona fide holder of this paper against the firm of Ways & Kelly, arising out of any failure on the part of Ways to apply the money to the benefit of his firm. Ways was the financial member of the firm, he raised the money required by the business of Ways & Kelly to be raised upon drafts, shipping bills or other evidences of debt, and it would be hard indeed to charge the general public with loss from any abuse by Ways of the relation which he sustained to his partner.. ”

In his sixth finding of fact the referee also says: “ Ways was the financial member of the said firm and by and with the knowledge and consent of said James H. Kelly negotiated all drafts and other evidences of debt belonging to said firm, and also attended to such banking business as said firm had in the course of its operations.”

It is to be observed that the referee nowhere finds that Ways ever made, issued or used any promissory notes or other obligations purporting to be made, or made, by Ways & Kelly, except the notes in the series under examination in this case, and the above finding of the referee gives no legal presumption that Kelly knew his partner was using the firm credit for any purpose outside the business of the firm, especially in the face of a finding in fhe fourth finding of fact, that: “ Kelly had no actual notice, or knowledge of any or either of said notes of either series prior to the death of said Ways.” And also, his ninth finding of fact: “ That the defendant, James H. Kelly, did not know of the making, indorsement or negotiation of said two promissory notes at the time the same were so, as above stated respectively, made, indorsed and negotiated by said Joseph E. Ways, and no part of the consideration of either of said two notes ever came to the use or for the benefit of the defendant James H. Kelly, individually.”

There is no finding that any portion of the money arising from the discount of any note in either series ever came to the use or benefit of the firm of Ways & Kelly. It is clear, that the report of the referee (so far as this point is concerned) must stand or fall upon the sole ground on which the referee has put plaintiff’s right to recover in the first conclusion of law, viz : That said Witmer Brothers, at the time of the discount of each of said two notes upon which this action is based, became bona fide holders and owners thereof, and the plaintiff succeeded by said assignment to all their rights and interests therein.”

The qnestion of bona fides in this case is a mixed question of law and fact, and the above conclusion of law arrived at by the referee must be regarded as a conclusion from the facts he had ■previously found. His tenth finding of fact is: “ That the proceeds of each of said two promissory notes were, by said Witmer Brothers, placed to the individual credit of said Joseph E. Ways upon their books, and as a part of the discounting of the same, and the said individual account of said Joseph E. Ways was, therefore, subject to and paid out by said Witmer Brothers upon the personal check of said Joseph E. Ways.” Upon these facts Witmer Brothers were not bona fide holders.

In the' case of Union National Bank v. Underhill (102 N. Y., 336) one Cheney had made the notes of his firm payable to the order of a third" person, who indorsed them, and then they were delivered by Cheney to the bank in payment of an individual debt he owed it. And the court stating the law, and applying it to the case, say (p. 340): “ Plaintiff knew that Cheney was issuing this partnership paper to pay his individual debt, and it was bound to know that he had no right to use it for that purpose without the consent of his partner, and was chargeable with knowledge that the notes were wrongfully made and used. Each member of a firm is the general agent of the firm, in relation to all the business of the firm, and can bind the firm in what he says or does in such business. But when one partner has a transaction with a third person, which is neither apparently nor really within the scope of the partnership business, the partnership is not bound by his declarations or acts in the transaction. He cannot, by his declarations, make that a partnership transaction which does not appear to be such, and which is, apparently and really, an individual transaction. In such a case the third person has notice that the transaction is outside of the partnership business, and he cannot rely upon the partnership credit.” The referee has found that “ immediately following, and as a part of the discounting of the same,” the proceeds of said two notes were, by Witmer Brothers, placed to the individual credit of Ways, and were thereafter subject to, and paid out upon, his personal check.

With a slight change in the language of the Court of Appeals in applying the above principle to the case before it, we may apply the same principle to the case before us and say that Witmer Brothers were bound to know that Ways had no right to use the partnership to create or increase his individual credit or account at the bank without the consent of his partner, and they were chargeable with notice that the notes were wrongfully made and issued. The transaction was neither .apparently or really within the scope of the partnership business, and the partnership was not bound by the act of Ways in the transaction. It appeared to be, and really was, an individual transaction of Ways, and Witmer Brothers had notice that the transaction was outside the partnership business and they could not rely on the partnership credit.

Nor do we think the condition of plaintiff improved by the fact that each of these two notes was the last of a long series of notes which had been used by Ways in the same manner to sustain his individual credit and funds with his bankers, nor by the fact that at no time during the life of either of said series of notes, or at the time of the giving, transferring or discounting of the two notes in suit, respectively, did said Witmer Brothers have any notice or knowledge of the fact that Nelly was ignorant of the existence of said notes.

The law, as stated in 1 Daniels on Negotiable Paper (sec. 357), is that the negotiation of notes being incidental to and usual in the business of copartnerships for the purposes of trade, it follows that when a copartner borrows money professedly for the firm, and executes therefor a negotiable instrument in the copartnership name, it ivill bind all the partners, whether the borrowing was really for the firm or not, or whether he misapplies the funds or not, provided the lender is not himself cognizant of the intended fraud. In the present case Ways did not profess to procure this discount for the firm, but for himself, and Witmer Brothers were cognizant of the fact that the discount was to increase the individual credit and funds of Ways, for the fact that the proceeds were to go in that way was-part of the discounting.

Another point made by defendant arises upon the blank in the note of May thirty-first, after the word “ fifteen,” that it was not proven to be due; that the time of payment was left out by mistake, and the omission was not supplied by proof. The referee has found, upon sufficient evidence, that the intention and meaning of said note between Ways and the witness was that it should become due and payable fifteen days after date, and that the same was so treated between the parties, and this finding disposes of this point against the defendant.

Defendant also makes the point that the note was void for usury. This question, and the points depending upon it, need hot be discussed, for the court, in this department, have held in Perkins v. Smith (41 Hun, 47) that such bankers as Witmer Brothers were private bankers under Laws 1882 (vol. 1, pp. 607, 608, chap. 409, §§ 68, 69), and that the defense of usury was not available against the principal secured by notes discounted by them.

Defendant also claims that the referee erred in not allowing, as against each note, the interest paid upon the whole series of notes of which it was the last. This matter was not pleaded, and this case comes up on a bill of exceptions, and the bill does not show that the point was made upon the trial, nor do the exceptions to the report of the referee make the point, unless an exception to the total amount the referee held the plaintiff entitled to recover is held to be an exception to the non-allowance of this deduction. The objection, we think, is not specifically presented upon the record, and cannot now be raised. In The National Bank v. Lewis (75 N. Y., 516), cited by defendant’s counsel, these matters were set up in the answer. It does not seem to be necessary to consider specially the other points made by defendant.

A new trial should be granted before a new referee, costs to abide tjie event.

Haight and Bradley, JJ., concurred.

Judgment reversed and a new trial ordered before another referee, costs to abide event.


author: Barker, J.;

text:
    ELIZA D. CRANE, Respondent, v. MARY ANN CRANE, Appellant.

      Pleading — when a denial “ of each and every allegation in the complaint not herein-before admitted or explained" will be sustained.

    Appeal from a judgment in favor of tlie plaintiff, entered in Livingston county, upon the report of a referee.
    The action was brought to recover a quantity of household goods, a piano, and some boobs used in a family library. The plaintiff claimed title to the piano and the library, and some few articles of the household furniture, by a gift from her deceased father, George "W. Crane, and to a portion of the other items as the administratrix of the estate of her deceased mother, Mary D. Crane. The defendant claims title, as the administratrix of the estate of the said George W. Crane, who, at the time of his death, was her husband, and she also claimed that all the property in controversy was owned by her late husband at the time of his death, and that it was used as his household furniture and library. In her answer, the.defendant pleads her title as administratrix.
    The court, at General Term, after holding that the court below erred in permitting the plaintiff to testify as a witness as to conversations and transactions had with her father, and that a new trial should for that reason be granted, said: “ The plaintiff claims that her title to the property, as averred in the complaint, was not put in issue by the answer. The defendant insists that, by a general denial contained therein, the plaintiff’s allegation of title was put in issue. The question presented is, whether the form of denial, as used by the defendant, is permissible under the provisions of the Code of Civil Procedure, which provides that the answer must contain ‘ a general or specific denial of each material allegation of the complaint controverted by the defendant.’ (Sec. 500.) The complaint alleges that the defendant ‘ wrongfully took, and wrongfully detains from the plaintiff the following articles of personal property belonging to the said plaintiff.’ Then follows a description of the property, and the complaint then continues: ‘in which the plaintiff claims property and right to immediate possession, of the value of two hundred and fifty dollars.’ In her answer the defendant alleges, in substance, her marriage to the deceased and that she resided with him at the time of his death, and that the property in dispute was in the possession of her husband at the time of his death, and that all the property since that time has remained in her possession, except the gold watch mentioned in the complaint, which was never in her possession; that she has been appointed the administratrix of the estate of her husband, and that all she has done in relation to the property was in her capacity as administratrix, and not otherwise; that all the property mentioned in the complaint, except the item before mentioned, belonged to, and the title in and to the same was in, her said husband in his lifetime, and at his death belonged to his estate. Then follows the concluding paragraph, viz.: ‘ The defendant denies each and every allegation in the complaint not hereinbefore admitted or explained.’ This denial, general in form, embraced every allegation in the complaint which had not been admitted or explained by the previous allegations in the answer. The defendant did not admit nor attempt to make any explanation as to the plaintiff’s title. All the allegations in the answer previous to the paragraph containing the denial related to the defendant’s own title, stating the nature and character of the same and the person from whom it was derived. If this form of denial, is permissible, then the plaintiff’s title was put in issue. On this question the authorities are not uniform. In Calhoun v. Hallen (25 Hun, 155) the form of an answer which denied all the allegations in the complaint which were not admitted, qualified or explained, was held to be sufficient to put in issue all the allegations in the complaint not embraced in the exception. The court cited Allis v. Leonard (46 N. Y., 688; 22 Alb. Law Jour., 28) as authority for its decision. In Clark v. Dillon (97 N. Y., 370) the question was presented as to the effect of a general denial when put in the form as used in the answer before us, and it was remarked by the court that such an answer has sometimes been criticised as throwing upon the opposite party the necessity of first determining the legal question as to how far the facts stated may properly be said to qualify or explain others, before the pleader can know what facts are admitted or denied by the pleading, and referred to the case of Calhoun v. Hallen, supra, which held that the samé was sufficient, but did not pass upon the question.
    “We are inclined to follow the ruling in Calhoun v. Rallen, and hold that this form of answer, while not to be commended, is permissible and serves to put in issue all the allegations in the complaint not embraced in the exception.
    “Judgment reversed and a new trial granted before another referee, costs to abide the event.”

      Daggett & Norton, for the appellant.

      F. C. Peek, for the respondent.
   Opinion by

Barker, J.;

Smith, P. J., Haight and Bradley, JJ., concurred.

Judgment reversed and new trial ordered before another referee, costs to abide event.


author: Haight, J.;

text:
    In the Matter of the Personal Estate of CHARLES HURLBURT, Deceased.

      Petition in behalf of an infant to compel an executor to account — how it should be framed and signed when presented by a general guardian — -power of the cleric of a Surrogates Court tv issue a citation under subdivision 2 of section 2509 of the Code of Civil Procedure — appealability of an order requiring an administrator to render an intermediate account.

    Appeal by the administrators of the goods, etc., of Charles Hurlburt, from an order of the Wayne .county Surrogate’s Court, directing them to make and render an intermediate account of their proceedings as such.
    These proceedings were instituted by a petition. It was addressed to the Surrogate’s Court of Wayne county, and was headed as “ the petition of Maud E. Hurlburt, an infant, by Isaac Gifford, her general guardian, respectfully shows.” It alleged that Maud E. Hurlburt was an infant under the age of fourteen years; that Isaac Gifford was her general guardian ; that she was one of the heirs and next of kin of Charles Hurlburt, deceased, and • that letters of administration had been issued upon his estate to Lyman F. Hurlburt and John Hurlburt the appellants, and that more than eighteen months had elapsed since such letters were granted; upon information and belief, that there were assets in the hands of the administrators, amounting to the sum of $4,000 and upwards, in which she was entitled to a distributive share, and prayed for a citation, to issue to them, to show cause why they should not pay her distributive share, and for an order or decree requiring them so to do. The petition was signed by Isaac Gifford, and was verified by him in the usual form, in which he swore that he was the general guardian, etc., of Maud E. Hurlburt. Upon the presentation of this petition to the Surrogate’s Court, a citation was issued to the administrators, requiring them to show cause, at a time and place therein named, why the prayer of the petition should not be granted. The citation was attested in the usual form, with the seal of the surrogate’s Court affixed, and was signed by Barton Hammond, clerk of the Surrogate’s Court. Upon the return day the administrators appeared, and by their attorney, Charles McLouth, made several objections to the-petition and citation, which were overruled by the surrogate. The administrators then made no further appearance, and did not show any cause why the prayer of the petition should not be granted. Thereupon the surrogate, of his own motion, made the order appealed from and adjourned the procedings until the day named, within which the account was to be made.
    The court at General Term said: “ It is contended in the first place that the petition does not show facts upon which a decree could be made ; that it is only signed by Isaac Gifford, and that he, as an individual, is not entitled to the distributive share in the estate, and consequently that it did not give the Surrogates’ Court jurisdiction to proceed.

      “ The petition states all the facts necessary to give the court jurisdiction. It states that Maud E. Hurlburt is one of the heirs and next of kin of Charles Hurlburt, deceased, and that she is entitled to a distributive share of Ms estate. True, it does not state the share which she is entitled to; but this fact may properly be ascertained and determined by the surrogate upon the hearing. The petition would have been properly executed if it had been signed ‘ Maud E. Hurlburt, by Isaac Gifford, her general guardian,’ instead of being signed ‘ Isaac Gifford; ’ but by referring back to the body of the petition we see that it was the petition of Maud E. Hurlburt, an infant, by Isaac Gifford, her general guardian. The signature of Gifford, at the end of the petition, must therefore be deemed to have been written in that capacity.
    “In the ease of Hyatt v. Seeley (11 N. Y., 52, 58), Selden, J., in delivering the opinion of the court, describes the proper mode of executing a deed where the guardian had been directed to convey the interests of infants; but says: ‘ The precise form, however, is not essential; but tñe order of the court muse be followed in substance.’ He further remarked m that case that it did not appear upon the face of the deed that any of the grantors were infants, or that they had a guardian ad lüem; that in naming the parties to the deed there was no allusion to the guardian, nor to the fact that any of them were infants. The deed in that case was signed by the infants themselves, and by the guardian, but not in his capacity as such. Had the deed in that case described the grantors as infants and the guardian as such, a different question would have been presented. Again, the petition prayed that a citation should issue. The only object of the citation was to inform the appellants of the presenting of the petition, and giving them an opportunity to be heard. It issues as of course, and is' sanctioned by the uniform practice of the court, and we think it may properly be issued by the clerk, under the second subdivision of section 2509 of the Code. If, however, we are in error in this regard, it was but an irregularity, and was cured by the appearance of the administrators. They did not appear especially to make objection, as is claimed by the appellants, for the case shows that the administrators appeared, and by their attorney objected. The subsequent statement in the case, after the ruling of the surrogate that no further appearance was made, does not change or alter the general appearance previously shown.
    “ The order appealed from directs that an intermediate account be made by the administrators. The purpose of this is doubtless to inform the surrogate of the amount of assets in their hands, and of their liabilities, etc.,, so that the surrogate might properly determine whether or not the prayer of the petition should be granted. The proceedings were adjourned. No final order has been made, nor any order that affects a substantial right. A serious .question is thus presented as to whether this is an appealable order; but, under the view which we have taken of the other question, it .does not become necessary to determine this.
    “The order should be affirmed, with ten dollars costs and disbursements, to be paid by the appellants personally.”

      Charles Melouth, for the administrators of Charles Hurlburt, appellants.

      S. Nelson Sawyer, for the petitioners, respondents.
   Opinion by

Haight, J.;

Bradley and Angle, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements to be paid by the appellants personally.


author: Haight, J.; Lewis and Bradley, JJ.,

text:
    THE SODUS BAY AND CORNING RAILROAD COMPANY, Plaintiff, v. GEORGE H. LAPHAM, Defendant.

      ,Incorporation of a company for building a railroad — when it will cease to exist by reason of a failure to build and put in operation its road — 1850, chap. 140, as amended by 1867, chap. 775 — the act of 1879, chap. 850, did not revive a corporation after it had, by reason of its property having been sold under foreclosure, lost its right and power to build its road.

    Motion by plaintiff for a judgment, upon a verdict directed by -the court at the Steuben Circuit, subject to the opinion of the court at General Term.
    This action was brought to recover the amount of the defendant’s subscription to the capital stock of the plaintiff. It appears, from the stipulated facts in the case, that, in the year 1870, several printed captions, in the form of articles of association, were sent out to different towns and localities along the line of the proposed railroad, with a view to obtaining signatures and subscriptions thereto, for the purpose of forming articles of incorporation; that one of such papers was subscribed by the defendant in this action, and. was delivered to one of the proposed directors; that these papers were .subsequently gathered up, the caption cut off from all except one," and the names subscribed to the other papers attached thereto, and the same was, on the 17th day of July, 1870, filed in the office of the secretary of state, as the plaintiff’s articles of incorporation.
    It further appears that on or about the 1st day of March, 1872, the plaintiff executed and delivered a mortgage to the Farmers’ Loan and Trust Company, of the city of New York, in trust for the persons who should become the owners of the bonds of the plaintiff, issued by it, not exceeding in number 1,500, of $1,000 each. The mortgage, so executed, covered all and singular its railroad, then or thereafter to be constructed, together with the real estate, railways, switches, turn-outs, sidings, rails, bridges, piers, fences, right of way, privileges, rights, franchises and property which the plaintiff then had, or which it should thereafter acquire, own or be entitled to; that thereafter an action was brought by’and on behalf of the Farmers’ Loan and Trust Company, against the Sodus Bay and Corning Railroad Company, for a foreclosure of this mortgage, and such proceedings were thereupon had that a judgment was entered therein, and a sale of the mortgaged property was made thereunder June 23, 1876, to one Edgar Munson. It further appears that the road has never been constructed.
    The court at General Term, after considering other objections, said: “ This action was tried January 4, 1882. The supplemental answer alleges that the plaintiff has ceased to exist as a corporation. The statute provides that ‘if any corporation formed under an act entitled “ An act to authorize the formation of railroad corporations, and to regulate the same,” passed April 2, 1850, shall not, within five years after its articles of assocition are filed and recorded in the office of the secretary of state, begin the construction of its road, and expend thereon ten per cent on the amount of its capital, or shall not furnish its road and put it in operation in ten years from the time of filing its articles of association as aforesaid, its corporate existence and powers shall cease.’ (Laws of 1850, chap. 140, as amended, Laws of 1867, chap. 775.) As we have seen, the articles of association were filed in the office of the secretary of state, on the 17th day of June, 1870. The ten years within which the road was to "be finished and put in operation expired June 17, 1880. -It would, therefore, appear that at the time of the trial the plaintiff, as a corporation, had, by the express terms of the Statute, ceased to exist. But it may be contended that the time within which the plaintiff was to construct its road has been extended by chapter 350, Laws of 1879. That act provides that: ‘Any existing railroad company heretofore organized or incorporated under the laws of this State, except such as may have been organized for the purpose of constructing or operating a railroad in the city of New York, which may be unable, from any cause, to construct its railroad within the time specified by its charter or articles of association, shall hereby have the time for the completion of the railroad it was authorized to construct, extended for a further term of two years beyond the time heretofore limited; and failure to construct its railroad within the time heretofore limited shall not cause a forfeiture of its corporate powers; but nothing herein contained shall have the effect to revive any corporation whose corporate power has been forfeited from any cause.’
    “If the plaintiff is within the provisions of this statute, then its time would be extended two years, and would not have expired until June 17,1882. But it will be observed by the concluding clause of the statute that ‘ nothing herein contained shall have the effect to revive any corporation whose corporate ower has been forfeited for any cause.’ At this time the plaintiff’s mortgage, as we have seen, had already been foreclosed, and all its property, rights and franchises had been sold and disposed o±, so that it was absolutely, powerless to construct the road thereafter. The foreclosure and sale worked a forfeiture of its right to thereafter build and operate the road. That right was vested in the purchaser, its corporate power in that regard had terminated, and consequently it was not brought within the provision of the statute.
    It follows that'the motion for judgment on the part of the plaintiff must be denied, and jndgment ordered for the defendant, dismissing the plaintiff’s complaint upon the merits.

      Ralph T. Wood, for the pla’ntiff.

      John T. Knox, for the defendant.
   Opinion by

Haight, J.; Lewis and Bradley, JJ.,

concurred.

Motion for judgment on the part of the plaintiff denied, and judgment ordered for the defendant, dismissing the plaintiff’s complaint on the merits.


author: Daniels, J.: Beaut, J.: Maoomber, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EMIL H. BRIE, Appellant.

      Vorgery — the uttering of a forged certificate of indebtedness purporting to be issued by a State, is included in subdivision 1 of section 33 of 3 Revised Staiutes (6th ed.), 944 — such a certificate is not a bill of credit within section 10 of article 1 of the Constitution of the United States — conflict between the mandatory provisions of a statute and a form prescribed by the statute for carrying them into effect — the statute must be construed according to its intent.

    Tlie defendant was convicted in tlie Court of General Sessions of the crime of uttering a forged certificate, by which the State of Missouri certified that it was indebted to Sanford Tunicliff in the sum of $347.16, on account of services in company B, fifth regiment of the enrolled Missouri militia, but that the certificate was not payable until after the claim of said Sánford Tunicliff for his services had been presented to the United States government and the amount allowed and paid to the State, and then only for the actual amount received from the United States government. Authority to issue such certificates was conferred by a law of the State of Missouri enacted on January 7, 1874.

      Held, that the certificate was an evidence of debt, or engagement for the payment of money upon a contingency, the forging and uttering of which was made a crime within the meaning of subdivision 1 of section 33 of 3 Revised Statutes (6th ed.), 9 4, under which the indictment was found.
    That as these instruments were merely certificates of indebtedness to be paid by the State when the money should be received from the Federal government,' and were not designed to be used or circulated in any form as money, but only to exhibit the obligation incurred by the State to the person named m each certificate, they were not “bills of credit” within the meaning of these words as used in section 10 of article 1 of the Constitution of the United States prohibiting the States from emitting them.

      Craig v. Missouri (4 Pet., 410) followed
    The statute of Missouri provided for the auditing and allowance of two classes of claims, one including claims on file in the office of the quartermaster-general, denominated irregular claims, including generally quartermasters’ supplies, the other including claims, such as the one in question, of officers and soldiers of the militia for services rendered during the war. The act provided for the allowance of the first class of claims by a commission, of which the quartermaster-generalwas a member, and directed that they should be certified by the acting quartermaster-general of the State. It authorized the acting paymaster-general to examine such of the latter class of claims as were on file in his office, and provided that when he should find them correct and just that he should allow the same and indorse his allowances thereon, and required a duplicate of each claim allowed to be filed in his office. It then directed that “ he shall issue a certificate of State indebtedness for the amount allowed thereon, which certificate shall be signed by the governor and countersigned by the acting paymastei'-general, and shall read as follows: ” A form of certificate is then given, which at its foot contained on the left side the word “ countersigned,” followed by a space for the name, which space was followed by the words “acting quartermaster-general of Missouri.” At the left lower corner of the certificate in question was the following signature: “J. D. Grafton, Acting Paymaster-General.”

      Meld, that as there was a direct conflict between the mandatory provisions of the act and the form prescribed to carry them into effect, the court should construe the act so as to carry into effect the intent of the legislature displayed in it, which required it to construe it so as to require that the officer, whose duty it was made to examine the claim upon which it should be issued, should sign and authenticate the certificate.
    That the certificate in question should be held to have been issued in compliance with the act, and was not, upon its face, a void instrument, incapable of being the subject of a forgery. (Macombee, J., dissenting)
    Appeal from a judgment of the Court of General Sessions of the county of New York, convicting the defendant of the crime of uttering a forged certificate of indebtedness.
    The forged certificate and the statute of the State of Missouri relating thereto are set forth in full in the dissenting opinion of Judge Macombee.

      Alexander' S. Bacon, for the appellant.

      De Lancey Aficoll, for the respondent.
   Daniels, J.:

The certificate, for the uttering of which the defendant was convicted, was dated in August. 1871. It was issued under a law of the State of Missouri, enacted on the seventh of January of the same year, and it obligated the State of Missouri to pay the sum of $317.16, on account of services in company B, Fifth regiment of the enrolled Missouri militia, after the claim of the person therein named, for his services, had been presented to the United States government, and the amount allowed had been by it paid to the State, and then only for the actual amount received from the United States government. This was an evidence of debt or engagement for the payment of money upon a contingency, the forging and uttering of which was made a crime under the statute off this State, upon which the indictment was found. (3 R. S. [6th ed.], 941, § 33, sub. 1.) That the contingency was a remote one, upon which the payment was to be made, did not exclude the certificate from the operation and effect of this statute. It was still an engagement for the payment of money upon a future contingency.

The statute of the State of Missouri, under which it was issued, provided for the auditing and allowance of two classes of claims. The first included claims on' file in the office of the quartermaster-general, or which should be there filed, up to the 1st of August, 1874, and were denominated irregular claims, including, generally, quartermaster supplies. The other provisions of the' statute included claims of officers and soldiers of the enrolled Missouri militia and the Missouri militia, .for services rendered! during the war; and the claim for which the certificate set forth' in the indictment, and for the uttering of which the defendant was convicted, was of this description. The' statute, by its tenth section, authorized and empowered the acting paymaster-general to examine such claims on file in his- office, and provided, when he should find them correct and just, that he should allow the same and indorse his allowance on the claims. And, by the thirteenth section of the act, it was further provided that a duplicate of each claim allowed should be filed in the office of the paymaster-general. And it was then directed that he shall issue a certificate of State indebtedness, for the amount allowed thereon, which certificate shall be signed by the governor and countersigned by the acting paymaster-general, and shall read as follows.” A form of the certificate was then given, which, at its foot, contained, on the left side, the word countersigned,” followed by a space for the name, and that, in completing the line, is further followed by the words “ Acting Quartermaster-General of Missouri.” As the statute was enacted, therefore, it, in its language, directed the certificate to be issued by the acting paymaster-general, while the form prescribed dispensed with his authentication of the certificate, and provided for that being done by the quartermaster-general. In this manner a direct conflict was created between the mandatory provision of the act and the form prescribed for carrying it into effect; and the question presented on this, part of the case is, which was the paramount authority, and its solution depends upon the intent and design of the act as that has been disclosed. And that seems to be consistent only with the construction, that the certificate should be signed and authenticated by the officer whose duty it was made to examine the claim upon which it should be issued. This construction is sustained by the general purposes and objects of the act, for the officers who were to examine, audit and allow the claims provided for, were those in whose offices they were at the time, or should aferwards be filed. Those relating to the quartermaster-general’s department were filed, and were directed to be filed, in his office. lie was the person who, in the ordinary course of the exercise of his authority, would be best acquainted with the merits of that description of claims, while he could not reasonably be expected to be familiar with the other class, including only the claims of the officers and soldiers in the militia. Those claims appertain to, and were especially within the pro vince of the paymaster-general, and it was to his audit and allowance that they were committed by the act. The act further provided that when the claims subjected to the commission, of which the quartermaster-general was made a member, should be allowed, that they should be certified by a certificate, authenticated in the form consistent with that allowance, by the acting quartermaster-general of the State. He had no duty whatever to perform concerning the claims made for the services rendered by the officers and soldiers of the militia and could not be familiar with them as he would be with the other class of claims. And it could not reasonably be expected that he should certify, as correct claims, those he was not required to examine or investigate, and of which he could practically have no knowledge. But what the legislature designed by the act was, that the claims of each class should be certified by the officer knowing the fact of the truth of the certificate required to be made. And that intention is further disclosed by the thirteenth section of the act, directing the acting paymaster-general to issue the certificates of State indebtedness for the amounts allowed for the services of the officers and soldiers; and he could not do that without authenticating them as the law intended that to be done. And from that fact, as well as the general scope and tenor of the act, it is quite manifest that, in giving the form of the certificate in the act, to be issued by the acting paymaster-general,' a mistake was made in omitting his official designation, and in place of it inserting the word quartermaster; ” and, as this was evidently a mistake, it is required to be rejected, for the intent of the act is clearly to that effect, and that intent is required to be followed in its construction. That has not only been manifested by. its general object and purpose, but, in addition to that, by the explicit direction that the paymaster-general should be the officer who, with the governor, should issue the certificate. This certificate must accordingly be held to have been issued in compliance with the authority contained in the act, inasmuch as it was certified by the governor and by the acting páymastér-genefai. Upon its face, therefore, it was not a void instrument issued under this statute, and accordingly incapable of being the subject of a forgery, within the principle supported by the cases of Cunningham v. People (4 Hun, 455); Fadner v. People (2 N. Y. Crim. R., 553; 2 Bish. Crim. Law, § 533); neither was it invalidated by anything contained in section 52 of article 4 of the Constitution of the State of Missouri, adopted in 1875, for that merely prohibited an appropriation of money by the legislature of the State to pay these certificates, until after the claims audited had been presented to and paid by the government of the United States to the State of Missouri. This section of the Constitution leaves the certificates precisely as they were allowed to be made and issued under the act of 1874. The obligation expressed in them, as that was provided for by the act, was in no manner changed or intended to be changed by the .Constitution; and, indeed, it could not have been,-as the Constitution of the United States restrained the State of Missouri from passing any act impairing the obligation of its contracts; but it left the certificates as they had been issued, creating an obligation against the State to pay over the money whenever it should be received from the government of the United States.

These instruments, being merely certificates of indebtedness to be paid by the State when the money should be received ' from the Federal government, were not designed to be used or circulated in any •form as money, but only to exhibit the obligation incurred by the State to the person named in each certificate; and they were, accordingly, not bills of credit which the State was forbidden to issue by the Federal Constitution. That was held in Craig v. Missouri (4 Peters, 410, 432), not to include “ contracts by which a State binds itself to pay money at a future day for services actually received, or for money borrowed for present use.” And, as a certificate of indebtedness, it was capable of being sold and transferred by the person to whom it is stated to have been issued, for evidence of an indebtedness, not restricted in the right to transfer it, may, be assigned by the holder to any other person or persons; and a delivery of the .instrument, intending to pass the title to it, is, in judgment of law, equivalent to its formal assignment, giving the assignee the right to demand and receive the money mentioned in it. Upon neither of the grounds which have been considered, nor for any other reason presented by the case, does the conviction appear to have been unwarranted. It was, on the contrary, legal and regular, and the judgment should be affirmed.

Beaut, J.:

I concur with brother Daniels, after full examination and reflection.

Maoomber, J.

(dissenting):

The defendant was convicted in the Court of General Sessions of the Peace in New York, on the 12th of February, 1886, of the •crime of uttering a forged certificate under an indictment drawn in pursuance of chapter 1, part 4, article 3, section 32 of the Revised .Statutes. The certificate so uttered is as follows:

“No. 2676. $347.16.

“ It is hereby certified that the State of Missouri is indebted to Sanford Tunicliff in the sum of three hundred and forty-seven dollars, on account of services in Co. B, 5th Regiment, E. M. M. This certificate is not payable by the State until after the claim of said Sanford Tunicliff for his services has been presented to the United States Government and the amount allowed and paid to the State, and then only for the actual amount received from the United States Government.

“ City of Jefferson, Mo., August 19, 1874.

“SILAS WOODSON,

Governor of Mo.

“ J. D. Grafton,

Acting Paymaster Oen'V'

The certificate bears on its back the words “ S. Tunicliff.” No question is raised on this appeal except the question whether the forged certificate, for uttering which the defendant was convicted, is the subject of a forgery. It is claimed by counsel for .the appel lant that it is not, because the issuing of it by the State of Missouri was unconstitutional, being prohibited by section 10, article 1 of the Constitution of the United States, which declares that no State shall emit bills of credit. In this contention we think the learned counsel is in error. The certificate is an agreement by the State of Missouri to pay upon a contingency a certain indebtedness which it had incurred arising out of the raid within its borders of General Price during the late war. In the case of Craig v. The State of Missouri (4 Peters, 410) it was held that the term “ bills of credit,” as used in the Constitution of the United States in its enlarged, and perhaps in its literal sense, comprehended any instrument by which a State engages to pay money at a future day, and for which, of course, it obtains a present credit, and that thus it would include a certificate given for money borrowed. The court there says that “ The language of the Constitution itself, and the mischief to be prevented, which we know from the history of our country, equally limit the interpretation of the terms. The word emit ’ is never employed in describing those contracts by which a State binds itself to pay money at a future day for services actually received, or for money borrowed for present use. Nor are instruments executed for such purposes in common language denominated bills of credit. ‘ To emit bills of credit ’ conveys to the mind the idea of issuing paper intended to circulate through the community for its ordinary purposes as money, which paper is redeemable at a future day. This is the sense in which the terms (of the Constitution) have been always understood.” (See opinion of Chief Justice Marshall.)

The more serious question in the case is (the requirements of the statute of Missouri in resj>ect to the signatures thereto not being complied with) whether or not the instrument uttered was a forgery at all. By the act of the legislature, approved March 19, 1871, it was provided, among other things, as follows:

“ Section 10. That for the purpose of settling the claims of officers of the enrolled Missouri militia and Missouri militia, for services rendered during the war, the acting paymaster-general is hereby authorized to examine the claims of all officers and soldiers whoso names appear as not paid on the record of unpaid claims on file in his. office, and if he finds such claims correct and just, he shall allow the same and indorse said allowance on said claim, and if not correct he shall indorse such fact on the claim and return the same for correction; provided, however, that whenever a person is reported on the record of unpaid claims as absent without leave, the acting paymaster-general shall not audit and allow said claim until he has presented sufficient proof that he was not absent without leave, or had not deserted.”

“ Section 13. That the duplicate of all claims passed upon by the acting paymaster-general shall bo filed in his office; those rejected with the cause of their rejection, and those allowed with the amount allowed thereon, and the originals of all claims, with the indorsement of their allowance or rejection, shall be returned to the party filing the same; and on presentation of the original of any claim allowed as aforesaid to the acting paymaster-general, he shall issue a certificate of State indebtedness for the amount allowed thereon, which certificate shall be signed by the governor •and countersigned by the acting paymaster-general, and shall read 'as follows: ,

No........... $.............

It is hereby certified that the State of Missouri is indebtedto........in the sum of........on- account of services in company........regiment........This certificate is not payable by the State until after the claim of said........for his services has been presented to the United States government, and the amount allowed and paid to the State, and then only for the actual amount received from the United States government.

City of Jefferson, Missouri, ............18....

Governor of Missouri.

Countersigned.....................

Acting Quartermaster-General of Mo.

By inspection of the certificate which was uttered by the defendant, and the form prescribed by the statute already quoted, it will be seen that in the certificate which the defendant uttered, the name of the acting quartermaster-general of Missouri does not appear, but. there is placed off to the left of the certificate the name of a person who is called acting paymaster-general. It appears, therefore, that the paymaster-general would, had this certificate been true, have issued a paper purporting to be an indebtedness of the State of Missouri, without having attached thereto the name of one of the persons whose signature was made absolutely indispensable by the very terms of the statute under which a genuine certificate could be issued!

The rule as now thoroughly established in this State is this : If an instrument be invalid on its face, it cannot be the subject of a forgery, and forging any instrument or writing which, as appears on its face, would have been void if genuine, is not an indictable offense. In the case of Fadner v. The People (2 N. Y. Crim. R., 553), the accused was indicted for forgery, in having uttered a false and forged impression of the seal of the Supreme Court with intent to defraud, and it appeared on the trial that no such pretended judgment had ever been granted, and that the alleged copy was a forgery. It was held that as the pretended certificate of the county clerk upon which the seal was impressed was not in the form prescribed by the Code of Civil Procedure, sections 957 and 958, it was void on its face, and that the act specified did not furnish the basis of an indictment for foigery. (See Bishop on Crim. Law, §'538.)

It is apparent upon the reading of the statute and the form of the certificate that the purpose of the legislature of Missouri was, in order to secure greater safety to itself, to require at the foot of the instrument both the signatures of the governor and of the acting quartermaster-general, and that then and only in such case could it be permitted to the acting paymaster-general to perfect it by countersigning and delivering such certificate to the person for whom it was designed. An instrument bearing the signature only of the governor, when the name and signature of the quartermaster-general is required to be written underneath the governor’s, cannot be deemed to be such an imitation as, in a legal sense, can be said to be calculated to deceive. This intrument had no validity at common law and derives whatever value it possesses solely from the act of the legislature. Nor can any strength be given to the case of the people by reference to the general scope and purpose of the statute outside the form prescribed for the certificate. The acting paymaster-general had devolved upon him by section 10 the duty of approving or disapproving of the claims presented against the State. That duty, however, is far different from any power given him tcf issue a completed and negotiable certificate of indebtedness of the State for such claim. To the extent of allowing a just claim, the part required of him by the statute was quasi judicial and wholly independent of other officers of the State. His affirmative and favorable action upon an application established an equitable though contingent liability against the State, but it went no farther.

Whether or not such allowance by him should ripen into a negotiable certificate for the amount of such demand was made dependent, under section 13, upon his preparing (“ issuing ” it is called in the statute) a certificate for the signature of the governor and of the acting quartermaster-general, which should thereafter be countersigned by him, and which, when so signed and countersigned and delivered, became a valid and negotiable instrument for the payment of money upon a contingency. The circumstance that the name of the acting quartermaster-general is prescribed and made essential in the form only, and not in the preliminary clause of the section, is of no moment. The form required is contained in and is a part of the same section which permits the issuing of any certificate. It is not inconsistent with the purely inactive portion of that section, but provides an additional safeguard against mistake, fraud or collusion.

The makers, in the common acceptation of the term, of the certificate were the governor and the quartermaster-general. The acting paymaster-general was required to countersign the instrument so signed by the other officers, when, and then only, it became a completed instrument. In the making of the paper itself the part taken by the acting paymaster general was auxiliary and subordinate to the previous signatures of' the governor and of the quartermaster-general. To countersign is to sign what has already been signed by a superior to authenticate a writing. (Webster’s Die.)

The argument, therefore, of the learned assistant district attorney, to the effect that the name of the quartermaster-general in the form was a mere mistake, and not contemplated by the act, lacks cogency, in my judgment, because, first, itconfounds the judicial'duties of the acting paymaster-general, under section 10, m allowing claims against the State at the outset with his purely clerical duty in countersigning an instrument executed by other officers, which would, through the joint names of -the three, beeotne negotiable; and, secondly, because it asks the court to say that a part - of one section, and that, too, the concluding .portion of a statute, shall be disregarded by us as superfluous and as a mistake when there is no inconsistency or discrepancy between the several parts.

Moreover, in the absence of actual inconsistencies we are not called upon to seek reasons for a peremptory clause of a statute, but if we were, a most excellent’ one is apparent in the requirement of the name of the quartermaster-general as a maker of the certificate, as an additional guaranty against imposition and fraud. If the defendant had been indicted for the deceit in getting money by a false token, the questions would be essentially different from those herein considered.

For these reasons the conviction should be reversed and the defendant discharged.

Judgment, affirmed.


author: Daniels, J. : Davis, B. J., and Brady, J., Daniels, J.:

text:
       EDWARD WOOD, Executor, etc., Appellant, v. KAROLINE KROLL and Others, Respondents.

      Irregularities in the substituted service of a summons upon an infant in an action of foreclosure — right of the plaintiff to have the judgment and sale set aside in order to enable him to again serve the infant — the purchaser need not be made a party to the action — money received from a party in possession after the first judgment was vacated must be applied on the mortgage — failure of am attorney to return an affidavit taken from the clerk’s office —how he should be compelled to produce it.

    The premises described in the mortgage, to foreclose which this action was brought, were sold under a judgment entered herein in June, 1880, to the plaintiff, who, on August .13, 1882, sold them to one Bechstein. In the latter part of the year 1882 one of the infant defendants in the foreclosure suit presented to the court a petition, in which the others afterwards joined, objecting to the regularity of, or authority for an order permitting a substituted service of the summons to be made, and asking that the order be set aside. In that proceeding, to which the purchaser, but not the plaintiff, was made a party, the court confirmed a report of a referee and denied the application. Thereafter the plaintiff obtained and entered an order vacating and setting aside the judgment and the deed to him, without prejudice to all proceedings had prior to the application for judgment, as against all the defendants who were then adults, with leave to the plaintiff,- or his grantee, to take such further proceeding as he might be advised against the infant defendants. By virtue of this authority, another service of the summons was made upon the infant defendants, who were properly brought into the action and answered therein, and thereafter the usual judgment of foreclosure and sale was entered.
    Upon an appeal from this judgment, it was claimed that the purchaser, Bechstein, should have been made a party to the action.

      Held, that as the service of the summons upon the adult defendants was clearly regular, and the substituted service upon the infants was not vacated, the action was still pending when the additional service was made, and even though Bechstein had by his conveyance secured a transfer of the mortgage, it could still be afterwards regularly prosecuted and continued in the name of the original plaintiffs, under the authority of section 756 of the Code of Civil Procedure.
    It appeared that the widow of the mortgagor, with her family, remained in the possession of the mortgaged property after the sale and conveyance to the plaintiff, and up to and subsequent to the time of the conveyance to Bechstein. During that period the plaintiff received from her moneys amounting to $1,128,75, over and above commissions paid for collecting the same. By the judgment, the plaintiff was allowed to recover interest upon the mortgage to June 4, 1884, the date of the entry of final judgment.

      Held, that as the first judgment was vacated, and the plaintiff’s title to the premises under the sale was annulled, the money received hy him from the widow should be treated as received on the mortgage, and should he applied in reduction of the amount due thereon.
    Upon the adjustment of the costs, the plaintiff was allowed the referee’s fees on the reference of the application made hy the infants to vacate the judgment and set aside the substituted service of the summons.

      Held, that as the plaintiff was not a party to that proceeding, and as the costs were neither incurred nor paid hy him, he was not entitled to recover them.
    Upon a motion to compel the plaintiff to restore the amount hy which the judgment had been reduced by the General Term, a reference was ordered to determine as to the validity and justice of that claim. Because of the failure of the plaintiff’s counsel to produce and restore to the files an affidavit made hy the counsel for the respondents, stating facts hearing upon the merits of the application for restitution, an order was made staying all proceedings pending before the referee, if the defendants should so elect, until the plaintiff’s attorney herein should have returned the affidavit to the clerk of the court and obtained his receipt therefor.

      Held, that the order should he reversed, as it in no manner tended to promote a - just disposition of the controversy between the parties, hut simply suspended their rights and excluded the possibility of determining them without any probable prospect of compelling a production of the affidavit.
    That if the affidavit was important as evidence, its production should he compelled hy the issue and service of a subpcena duces tecum, directing the person on whom it should he served diligently to search for and produce the paper before the referee; and if he failed so to do, and an examination satisfied the referee or court that the affidavit was in his possession, then it would oblige him to produce it upon the hearing.
    Appeal from a judgment recovered on a trial at Special Term, and from an order denying a motion for the readjustment of costs.

      Edward P. Wilder, Abner O. Thomas and William R. Wilder, for the appellant.

      L. A. Gould, for the respondent.

       Decided January 9, 1885.

   Daniels, J. :

Tne action was brought and prosecuted for the foreclosure of a mortgage executed by Heinrich Kroll, in his lifetime, upon premises situated in the city of New York. It was commenced in September, 1879, and resulted in a judgment in the following month of November, for the sale of the mortgaged property. The sale took place in January, 1880, at which the plaintiff became the purchaser. He held the title acquired by the deed until the 18th of August, 1882, when he sold and conveyed the premises to Augustus C. Bechstein. In the latter part of the fall of the same year one of the infant defendants presented to the court a petition, in which the others afterwards joined, for an order vacating an order permitting substituted service of the summons and objecting to the regularity or authority exercised in making the order. The plaintiff in the action was not made a party to this proceeding, but it was brought against Beckstein the purchaser. A reference was made of the subject-matter of the application to a referee who heard the testimony and reported against it, and that report was sanctioned by the court. After that had taken place the plaintiff voluntarily obtained and entered, an order vacating and setting aside the sale under the judgment in the action, the judgment itself and the deed by which the property had been conveyed by the referee in pursuance of the sale to the plaintiff. But this was declared by the order to be without prejudice to all proceedings had prior to the application for judgment, as against all of the defendants who were then adults, and with leave to the plaintiff or his grantee, to take such further proceedings as he might be advised against the infant defendants. By virtue of this authority another service of the summons was made upon the infant defendants. They were properly brought into the action by such service, even if they had not been before, and the proceedings against them afterwards were entirely regular. They have been objected to in some respects as informal, but the informalities, conceding them to exist, in no manner impaired or affected the judgment in the action. If advantage had been intended to be taken of the alleged informalities, it should have been by way of motion, and cannot now be urged in support of either of these appeals. Under this order the defendants answered the complaint, and by their answers presented issues which were tried and disposed of at the Special Term.

One of the points urged in support of the appeal is that Bechstein, who took the conveyance of the property from the plaintiff, should have been made a party to the action. But as the service of the summons upon the two adult defendants was clearly regular, and the substituted service upon the infant defendants was not vacated or set aside by the order, but that had been confirmed by the action of the court, it is to be assumed that the action was pending. against all the defendants at the time when this order was entered, and that the additional service personally made upon the infants of the summons was to remove any possible ground of alleged irregularity in the service previously made. It did not supersede that service, but at the time when the summons was last served the action was still pending, and even though Bechstein, by the conveyance to him, had secured a transfer of the mortgage, the action could still afterwards be regularly prosecuted and continued in the name of the original plaintiff, under the authority of section 756 of the Code of Civil Procedure. This has provided, in case of a transfer of interest, that the action may be continued by the original party, unless the court directs the person to whom the interest is transferred to be substituted in the action or joined with the original party, as the case may require. N o order of this description was obtained, and the action could, therefore, regularly be maintained in the name of the plaintiff. As the judment in the action, the sale made under it, and the referee’s deed, had been wholly vacated, Bechstein by no possibility could have acquired more under the conveyance to him from the plaintiff than an interest in the mortgage, which, under this section, might be regularly prosecuted to a judgment, decree and sale, notwithstanding the existence of that interest.

It did appear that the widow of the mortgagor, with her family, remained in the possession of the mortgaged property after the sale and conveyance to the plaintiff, and up to and subsequent to the time when the deed was made to Bechstein. During that period of time the plaintiff received, by monthly payments from the widow, the sum of $1,123.75, over and above commissions paid for the collection of the amount. By the judgment, which was finally recovered upon the trial in the plaintiff’s favor, interest was allowed to him upon the mortgage to the 4th of June, 1884, of which date the judgment was finally entered, although in fact the roll was not filed until the twenty-first of the following month of July. The amount so collected by the plaintiff from the widow was not deducted from the mortgage debt and interest, and in the omission to malte that deduction there seems to have been a clear error in the disposition of the case. As the first judgment was vacated, and tlie plaintiff’s title to the premises under the sale was annulled, this was so much money received by him, as mortgagee, in the way of rents, or profits, of the premises; and he clearly could not claim to hold this sum of money received in that manner and at the same time recover interest upon the mortgage debt. The latter was all that he was entitled to in the action, and this sum of $1,123.75 should have been deducted as so much money received by him upon the mortgage. Evidence was given of the payment of taxes by the plaintiff, but as no specific amount was mentioned or proven no foundation was presented for deducting from this sum of money the sums which may have been paid by the plaintiff on account of taxes. The error in omitting to make the deduction of this money from the mortgage debt requires that the judgment shall be reversed and a new trial qrdered, with costs to abide the event, unless the plaintiff shall, in twenty days after notice of the decision, stipulate to deduct this sum, together with such an amount of interest as may be included in the judgment on the like amount, from the time when the deduction should have been made. If such stipulation shall be given, then the judgment as so modified should be affirmed, without costs of the appeal to either party.

Upon the adjustment of the costs in the action the plaintiff was allowed the referee’s fees on the reference of the application, made to vacate the judgment and set aside the substituted service of the summons, amounting to the sum of $210. The plaintiff was not a party to that proceeding. It was brought against Bechstein, the purchaser, and whatever costs or disbursements were recoverable in that proceeding were in his favor. These fees, as the facts were shown, were neither incurred nor paid by the plaintiff. He was under no obligation or liability for their payment, and should not have been permitted to include them in the bill of costs adjusted in the action. The fees allowed for the attendance of the two witnesses, although they were not sworn, may not be specially objectionable, inasmuch as the omission to swear them may be inferred, from the course of the trial, to have arisen from the fact that oral evidence was not produced on the part of the defendants to maintain either of their defenses. The fees allowed for the search do not seem to have been improper. They may very well liave been incurred, as they probably were, in obtaining the information necessary to prosecute the action for the foreclosure of the mortgage. The referee’s fees should not have, been allowed, but the right of the plaintiff to the other disbursements, to which objections have been made, does not appear to be seriously questionable. But to correct the order and the adjustment it should be reversed, with ten dollars costs, besides disbursements to the appellants, unless within the period already mentioned the plaintiff shall stipulate to deduct these fees from the adjusted bill of costs, and if such stipulation be served then the order, as so modified, should be affirmed, without costs of the appeal to either party.

Davis, B. J., and Brady, J.,

concurred.

Judgment reversed and new trial ordered, with costs to abide event, unless plaintiff shall, in twenty days after notice of decision, stipulate to deduct amount specified with interest. If such stipulation be given then judgment, as so modified, affirmed, without costs to either party. Order reversed, with ten dollars costs and disbursements to appellant, unless, within the period mentioned, plaintiff shall stipulate to deduct fees stated in opinion from adjusted bill of costs. If such stipulation be served, then order, as so modified, affirmed, without costs to either party.

Appeal from an order staying proceedings, upon a reference made on a motion for restitution.

The order was made upon an affidavit of the respondents counsel, stating that the plaintiff’s counsel had taken and refused to return certain affidavits used on the motion to compel the plaintiff to pay the amount by which the judgment was reduced by the General Term, which resulted in the making of an order of reference to a referee, to take proof and report as to the validity and justice of said claim for restitution. It was also stated therein that the affidavits so taken were exceedingly important, and were received to refresh the memory of the counsel and to guide him upon the trial before the referee.'

The order appealed from directed the plaintiff’s attorney to forthwith return to the clerk of the court the affidavit in question and that all proceedings be stayed, if defendants so elect, until the plaintiff’s attorney return the said affidavit to the clerk and obtain his-receipt therefor.

Daniels, J.:

The order staying further proceedings upon the hearing before the referee was made because of the failure to produce and restore to the files an affidavit made by the counsel for the respondents. This affidavit related to facts bearing upon the merits of the application for restitution, and it was taken from the files to be used upon another trial, and after that it is stated to have been restored to the clerk, who, however, has no recollection of having received it, and is unable to find it on file. The court, considering that the attorney for the plaintiff was in fault for the non-production and restitution of the affidavit, stayed the proceedings on the reference until it should be produced and filed. This order, made in this manner, will have the effect of indefinitely staying the completion of the hearing before the referee, if the affidavit shall, for any reason, not be hereafter produced; and, as the reference has in part proceeded, and the evidence in favor of the appellant has been given, this would ,be an improper disposition to be made of the proceeding, for, instead of being stayed, it should be expedited and brought to as early a conclusion as may be practicable for tne disposition of the rights of the parties included in the reference. An order to stay proceedings will in no manner promote a just disposition of the controversy between the parties. It simply has the effect of suspending their rights and excluding the possibility of such a determination without any probable prospect of the affidavit itself being produced by reason of the stay. In addition to these considerations the affidavit does not seem to be an important document to be used in the hearing before the referee. It cannot be read in evidence in proof of the facts as they are asserted to exist in the affidavit, but the person making it will necessarily be required to be sworn and examined as a witness, upon the hearing, to prove and establish these facts, and the production of the affidavit will be no otherwise important than by way of refreshing his recollection as to those facts; and it does not appear that his recollection has become so far obscured iu this short period of time as to disable him from again repeating the facts without depending upon the affidavit for that ob j ect. But if the affidavit is important as evidence before the referee, this is not the regular mode of securing its production. The law has provided a different means for the attainment of that end, and that is by issuing and serving a subpoena duces tecum, directing the person or persons on whom it shall be served, diligently to seai’ch for and produce the paper before the referee, and if they fail to do that, they may be examined concerning such failure and the efforts that may have been made to obtain the paper. And from the evidence secured in that manner, the referee, as well as the court, will be able to determine whether the affidavit is still in the possession or power of the attorney for the plaintiff, and if it is, then oblige him to produce it upon the hearing. If the determination should be otherwise, then the attorney will be relieved from that direction and the case will proceed regularly upon the evidence to be secured before the referee, to a final determination, and the rights of the parties adjusted and declared and carried into effect. This is the orderly course of proceeding and the one prescribed by law to secure the production of documents which may be supposed to be in the possession of a witness upon a a trial or hearing, for use as evidence in the proceeding. And it is ample for this purpose, much more so than any order staying proceedings by any possibility can be.

The order which was made should be reversed, and the motion for the stay of proceedings should be denied, without costs.

Brady, J., concurred.

Order reversed, without costs.

       Decided December 81, 1886.