text:
    GEORGE P. STEINBACH, Appellant, v. THE RELIEF FIRE INSURANCE COMPANY, Respondent.

      Action to reform a policy of insurance — effect of an adjudication in a prior action brought upon the policy as written.

    The plaintiff prosecuted an action in the United States Court, in the Stale oí Maryland, upon a policy of insurance issued hy the defendant, insuring certain goods of the plaintiff therein named, and “ other articles in his line of business.” Tbe defendant claimed tbat tbe policy had been avoided by the keeping, in violation of an express provision of the policy, of fire-works on the premises. Plaintiff sought to show that fire-works were articles in tie line of his business, that of a German jobber and importer. It was decided by that court, and affirmed by the Supreme Court of the United States, that such evidence was inadmissible, and judgment was given for the defendant.
    The plaintiff brought this action to reform the contract by inserting therein fire-works as part of the property specifically insured, and to recover upon the contract as so reformed. Held, that the act of the plaintiff in bringing the former action upon the policy as written, and averring that it expressed the true contract between the parties, constituted an election on his part, and that he could not thereafter allege that it did not express the true intention of the parties thereto, and bring an action to reform the same.
    Appeal from a judgment dismissing the complaint at the trial, on the opening of the plaintiffs counsel.
    The action was commenced November 21, 1873, to reform a policy of insurance, containing a clause forbidding fire-works to be kept on the premises insured.
    The policy was issued on the 7th day of October, 1864, for $5,000, on the plaintiffs “stock of fancy goods, toys, and other articles in his line of business, contained in the three-story brick building, situate on the south-east corner of Baltimore street and Tupolet’s alley, in the city of Baltimore aforesaid, and then in his occupancy as a German jobber and importer.” The policy was issued by the general agent of the defendant at Baltimore, and the complaint seeks also to recover the loss upon it, upon the ground oi a mistake in reducing it to writing, so that it did not express the actual agreement to insure, and, also, upon the ground that the defendants were estopped in equity in setting up a forfeiture of the policy on account of a breach of the condition therein contained against keeping fire-works on the premises, because the defendants, when they accepted the original premium, knew of the breach, if it existed, and also renewed the policy with a like knowledge.
    In February, 1869, the plaintiff had brought an action on the policy in a local court in Baltimore; the defendant removed it to the United States Circuit Court, where it was tried in November, 1869, and a verdict and judgment rendered for the defendant, which was affirmed by the United States Supreme Court, on the ground, in substance, that keeping fire-works on the demised premises was a violation of the condition of the policy above specified, and rendered it void, and that the plaintiff could not be permitted to prove, as he offered to do on the trial, that fire-works constituted an article “ in the line of business of a German jobber and importer.”

      A. R. Dyett, for the appellant.
    That a policy of insurance may be reformed, and a recovery upon it had in the same action, is so' well settled as to scai-cely need any authority. (Story’s .Eq. Jur. [11th ed.], vol. 1, §§ 152 to 155, 158, 161.) The fact that the plaintiff brought an action upon the policy as it is and was defeated, is no reason why the policy should not be reformed. (Gump's Appeal, 65 Penn. St., é76.)

      John L. Ilill, for the respondent.
    Upon plaintiff’s own showing, the judgments against him in the United States courts constitute a bar to the present action. The case of Waslibu/rn v. Great Western Insurance Company (lié Mass., 175; é Ins. Law J., 112), quite covers this one. It is only a restatement of a well-settled rule. (Sanger v. Wood, 3 Johns. Oh., él6; Draper v. Stourenai, 38 N. Y., 223 ; Morris v. Rexfoi'd, 18 id., 556, 557; Rodemund v. Ciarle, é6 id., 356; Thewing v. Great Western Ins. Co., Ill Mass., 93; Connihan v. Thomson, id., 270, 272; Biglow on Estoppel, 503.)
   Davis, P. J.:

The complaint was dismissed on the opening of the plaintiff’s counsel, which was considered as embracing all the allegations of the complaint, the statement of the counsel, and the documents read by him in the course of his opening. The action was brought to reform a policy of assurance by making the same conform to the alleged actual agreement of the parties; and to recover thereon when so reformed for a loss sustained by fire. In an action brought upon this policy and tried in the Federal Court of Maryland, and finally decided by the Supreme Court of the United States, it was held that it could, not be shown under the policy, as it now stands. that fire-works constituted an article in the line of- business of a German jobber and importer,” and were, therefore, included in the words, other articles in his line of business.” But the Supreme Court did not hold, nor under the argu ment of its decision, conld it have been held, that if fire-works had been specially written in the policy amongst the articles insured, there could be no recovery because they formed part of plaintiff’s stock. Neither legally, nor as matter of fact, can it be said, therefore, that that court has given any judgment against the plaintiff’s right to recover on such a contract as he seeks to make the policy by the desired reformation. On the contrary, it is manifest that if the contract had contained the provision which the plaintiff now asks 'the court of equity to write in it, in order to conform it to the actual agreement of the parties, no such question as that passed upon by the federal courts could have arisen, for the right to recover would have been indisputable.

But there is a direct conflict between the Supreme Court of the United States and the Court of Appeals of this State, upon the exact proposition involved in the decision above cited, and, singularly enough, the question arose in the Court of Appeals upon a policy of insurance taken by the plaintiff in another company upon the same stock of goods, and almost or quite identical in foim with that issued by defendant. (Steinbach v. The Lafayette Fire Ins. Co., 54 N. Y., 90.) In that case the Commission of, Appeals held that if, as matter of fact, the keeping of fire-works was in the line of plaintiff’s business as a German jobber and importer, they would be included in the words “ other articles in Ms Une of business,” and, therefore, it was competent to prove that fire-works were usually kept in Baltimore (where plaintiff’s store wras situated) by persons in the same line of business as plaintiff. It is to be observed that the exact point of collision and divergence in these decisions is upon the proposition, whether the language of the policies presents a question of law which excludes evidence of facts or one of fact which admits such evidence.

The federal court holds that the question is solely one of law to be determined upon the words and provisions of the contract; the State court holds that the language presents a question of fact for a jury to determine upon evidence, as it may satisfy them that fireworks were or were not, at the time the contract was made, “ articles in the line of plaintiff’s business,” so as to be included in the general descriptive words of the policy. Neither of these cases touches or affects the question, what would be the plaintiff’s rights if the contract read as plaintiff by reforming it, seeks to have it read, so as by express language to include fire-works ” among the articles of property specially insured? And we see no reason to doubt that if the qtolicy had so read, those eminent tribunals would have been harmonious in their conclusions.

There is nothing whatever in the decision of the case by the Commission of Appeals to operate as res acbjudicata, to prevent or affect the reformation sought for in this action. Nor has that court decided that the policy, as it now is, is the same in fact, or in legal effect, as it will be if reformed so as to embrace, in express terms, fire-worlcs among the articles insured. After such a reformation the question passed upon cannot arise, for it will not then be admissible to submit to á jury the question whether fire-works are included in the words “ other a/rtieles in his Une of business.” It was only because fire-works were not so expressed that the court held it to be question of fact, whether they were not actually within those words, and therefore within the intention of the parties.

If the policy be so reformed not only could neither party enter upon that line of evidence, but it would not be of the slightest importance if it appeared beyond dispute, that fire-works were not, and never had been part either of plaintiff’s line of business or that of any German importer or jobber in Baltimore or anywhere else.

The contract would not be the same in law, and no adjudication upon any other and different policy would affect the question presented by it. The plaintiff is not therefore, precluded by the decisions of our courts from seeking the reformation of this policy.

This brings us to the real question of the case, which is, whether having sued upon the contract in its present form and produced and proved the same as the contract between the parties, in a court of competent jurisdiction, by which a final judgment has been pronounced against his right to recover, he is debarred from showing in a new suit in a court of equity, that the contract actually made between the parties was different from the written one sued upon and proved in his former action, for the purpose of obtaining its reformation and thereby laying a foundation for a recovery upon the reformed contract. The record of the former suit and judgment set forth in the case shows that issue was presented upon the making by defendants of, and its liability upon, the policy in its present form, and tliat upon that issue the defendant had a verdict and judgment. Does that judgment operate as an estoppel in ail other courts, both upon the plaintiff’s rights to bring another action upon the contract in its present form, and to assert that the real contract was not as he there alleged it, but something else so different, that the judgment in the former action can have no effect upon Ms right to recover after the desired reformation of the instrument? We are of opinion that this question is fully covered and answered by the decision of Washburne v. Great Western Insurance Company (114 Mass., 175). In that case the plaintiff sued at law upon the contract as it stood, and was beaten. He had filed his bill in equity to reform the contract, and that suit was pending when the judgment in the action at law was given, and the court held that the plaintiff conclusively elected to consider it ” (the policy as set up in the action at law) as expressing the true contract between himself and the insurance company, and to abandon an attempt to reform it in equity.”

In this case the facts now set up for the purpose of equitable reformation were as well known to the plaintiff when he commenced his suit in the federal courts as when he began this suit. There has been no fraud perpetrated upon him by defendant to affect his election of actions. He proceeded, as the court below says, with Ms eyes wide open, and Ms failure is only attributable to his assumption that courts of different States or countries will decide the same question of legal construction alike. Having made his choice he must abide by it, and he cannot be allowed to assert, in a new tribunal, that the. contract was different in fact from that which he solemnly averred it to be in a court of concurrent jurisdiction in which he has been defeated.

The judgment should be affirmed, with costs.

Brax>y and Daniels, JJ., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Davis, P. J.: Brady, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. BENJAMIN K. PHELPS v. THEODORIC R. WESTBROOK.

      Indictment — finding of, while am, examination of the prisoner is pending before a magistrate.

    On August 24, 1877, one Gessner having been arrested and brought before a police justice, in the city of New York, upon a charge of forgery, his examination was commenced and then adjourned to September third. On that day, the grand jury presented to the Court of General Sessions an indictment against him for the same alleged forgery, upon which a bench warrant was issued and Gessner taken into custody. The police magistrate, at Gessner’s request, declared the examination adjourned, and Gessner was brought into the Court of Sessions and duly committed upon the indictment. Subsequently, upon a habeas corpus and certiorari sued out by Gessner, he was directed to be discharged from imprisonment under the commitment of the Court of General Sessions, and remanded to the custody of the magistrate, in order that the latter might continue and conclude the examination.
    Upon a certioranñ to review this decision, held, that there was nothing in the statutes or practice of the courts that prevented a grand jury from finding an indictment, or the Court of General Sessions from proceeding to try and determine the same, because an examination in relation to the same offense was at the time pending and undetermined before an inferior magistrate.
    That even if there were any irregularity in so doing, the error was one to be considered and corrected by the court in which the indictment was pending; and that it should not be passed upon in a collateral proceeding by any other court or officer.
    Ceetiobari to review tbe decision and order of tbe respondent, a justice of tbe Supreme Court, on habeas corpus and certiorari in tbe matter of Nelson A. Gessner.

      B. K. Phelps, for tbe relator.

      O. B. Smiih and John Graham, for tbe respondent.
   Davis, P. J.:

Nelson A. Gessner was arrested on tbe 24tb of August, 1877, upon a warrant issued by a police justice on complaint by affidavit made before bim on a charge of forgery, and demanded an examination. The examination before the magistrate was commenced and continued by various adjournments, until the third day of September following. On that day the grand jury of this county presented to the court of General Sessions, an indictment against the prisoner for the alleged forgery. Thereupon a bench warrant was issued out of the court of General Sessions against him, upon which he was taken into custody. The police magistrate, at the prisoner’s request, declared the examination before him adjourned, and the prisoner was brought into the court of General Sessions and duly committed upon the indictment. The prisoner sued out a writ of habeas corpus, returnable before the respondent, Mr. Justice Westbeook, and also a writ of certiora/ri in aid of the habeas corpus, granted by, and returnable before, the same justice, to bring up all the proceedings that had been had before the police justice. After the hearing before him, Mr. Justice Westbeook made an order discharging the prisoner from imprisonment and restraint under the warrant of the General Sessions upon the indictment so found, and remanding him to custody under the warrant issued by the police justice, to the end that the police justice should proceed with the examination before him.

The crime of the prisoner was alleged to have been committed in the city and county of New York. There can be no doubt, therefore, that under the statute, the grand jury of the Court of General Sessions had jurisdiction and authority to inquire into his offense, and to present it by indictment for trial (2 R. S., 208, § 5 ; id., 209, § 7, and 3 R. S. [6th ed.], 234, § 7), and the same statute confers jurisdiction upon the Court of General Sessions to try such indictment. The crime charged was a felony and could not, under the Constitution of this State, be brought to trial in any court without a previous presentment by a grand jury. It must be presumed that the indictment was found by the grand jury upon sufficient and satisfactory evidence, tending to establish the guilt of the accused; and whether that body was or was not aware of the examination for the same offense pending before the police magistrate does not, we think, tend in any wise to impair or affect its jurisdiction.

An examination before the arresting or any other magistrate is not a necessary preliminary to an indictment, and in cases of felony, its object is solely to inqujre whether there exists sufficient reasons to justify .the holding of the accused, until the charge against him shall have been presented to and passed upon by a grand jury of the county; and there seems to be no reason to doubt, that if the examining magistrate were to discharge the accused in such a case, on the ground, that in his opinion, there was not sufficient íeason to believe him guilty, the jurisdiction and. right of the grand jury to investigate the charge and pass upon it by finding an indictment for the alleged .offense would be in no degree affected. If this be so, there seems as little reason to doubt, that upon the presentment of the indictment in this case to the court of General Sessions, that court had not only jurisdiction to try the indictment, but it became its duty through the process given it by law, to acquire jurisdiction of the person of the accused and in default of reasonable bail to commit him for trial. There' is nothing, either in the i tatutes or in the practice of- the courts, that requires a court of General Sessions under such circumstances to pause and inquire, whether some inferior magistrate has an examination pending and ; et incomplete before him in relation to the same offense.

But if there be any question of irregularity, affecting the finding of the indictment under such circumstances, it is one belonging to the court in which the indictment is pending, to be brought before it for its consideration, and not one in our judgment, to be considered and passed upon in a collateral proceeding by any other court or officer. Even if it be conceded, that the court under such circumstances might or ought to quash the indictment for irregularity, because it was found while an examination was pending before the arresting magistrate, yet no other court of judge would have any power to do so while the indictment remained in and solely under the jurisdiction of the court of General Sessions. The Court of Sessions having full power and jurisdiction to issue the process in this case, upon ah indictment which the grand jury had jurisdiction to find and present, no justice of the Supreme Court as such, is clothed with power to discharge the prisoner from arrest or custody on such process, either on habeas corpus or any other proceeding because-of any supposed irregularity in the proceedings-before the grand jury. The only power such justice possesses is to let to bail ¡under the circumstances, specified by statute. (2 Revised Statutes [Edmund’s ed], 752, § 56.)

The question of the power of a grand jury to indict while an investigation of the charge is pending before the arresting magistrate, has been several times before different courts of this State. In The People v. Hyler (2 Parker, 566), which was a motion to quash an indictment on the ground that a preliminary examination had been improperly refused after an arrest upon a warrant issued by a coroner, the court said: It was not contended on the argument, that there has been any irregularity in the finding of this indictment, for it cannot be denied that the grand jury have full power to inquire into and to present by indictment ail persons charged with crime, and that, too, whether such persons are or are not under arrest and examination before any of the magistrates of the county.” In French v. The People (3 Parker, 114), the indictment was for a misdemeanor in violating the excise laws. The defendants pleaded to the indictment that there had been no examination or preliminary proceedings against them before a magistrate, pursuant to the provisions of the statute. The court held the plea invalid, and that the right of the people to commence proceedings for the punishment of crime before the grand jury, cannot be taken away by implication. And in The People v. Paige (3 Parker, 600) the ■same point was ruled.

In The People v. Horton (4 Parker, 222) an indictment was found by the grand jury, while an investigation of the charge was pending before the magistrate. A motion was made to quash the indictment upon that ground, which' was denied. The case was brought to the General Term of the Superior Court of Buffalo, by writ of error, and bill of exceptions, and the exception to the denial of the motion to quash the indictment was disposed' of by the court in these words:

The motion to quash the indictment upon the ground that the investigation of the charge was still pending before the magistrate . when the indictment was found was frivolous. The grand jury has jurisdiction to inquire of and present all offenses committed within the county.”

In The People v. Heffernan (5 Parker, 393) the prisoner was indicted in the New York General Sessions while an examination was pending before the arresting magistrate. A motion was made tc quash the indictment upon that ground, and the learned recorder, after citing some of the cases above referred to, said: “ It is not claimed by the defendants’ counsel, that the legislature has anywhere expressly prohibited action by the grand jury pending an examination before the magistrate, but it is insisted, that the statutes providing for such an examination contain an implied prohibition. I am unable so to understand those statutes and do not believe that the legislature, if it had intended so materially to interfere with the well-established jurisdiction and powers of grand juries, would have failed to express such intention in unmistakable language.” And again he says: “ The grand jury, under the obligation of their oaths, must determine as cases are presented whether they will or will not act upon them prior to an examination before a magistrate and while such an examination is pending. If it were otherwise, it is plain to see that justice might be often delayed, if not entirely defeated.” • We think it may, with propriety, be said, that for many years the uniform practice of this State has been in conformity to the rules established by these several cases; and that the case relied upon by the respondents’ counsel (The Matter, of Luny, decided by Edmonds, J., in 1849, but never reported), has never been followed ; and it may safely be said, not to have been known generally to the profession or to the courts.

On looking at the provisions of the Revised Statutes which regulate proceedings before magistrates upon an arrest, it is manifest that the intention of the legislature in using the imperative language contained in those provisions was carefully to prescribe the form of the proceedings in all cases where an examination is had, so that such magistrates should have a plain guide for conducting the examinations before them. But it seems equally clear that it was not the intention to require the magistrate to continue the examination on behalf of the person arrested under and in despite of all circumstances, as for instance, if he is satisfied that the evidence of the prosecutor and his witnesses fails to establish any charge; or where the prosecutor or any one on behalf of the people fails to produce any witnesses; or where the charge is properly withdrawn by any one having legal authority so to do; nor to continue the same whenever the fact of the action of the grand jury upon the same charge by finding an indictment shall be brought to Ms notice, and shall render nugatory any further proceeding on his part. The intention of the legislature was, that no person should be held to trial by the arresting magistrate except upon such an examination as the statute prescribes, and from such a result the accused party is intended to be protected, in cases where the evidence shall be insufficient, by the carefully detailed provisions of the statute. But we think there was no intention to compel the magistrate to continue such an examination after its main object and purposes are rendered nugatory by the presentment of an indictment by a grand jury against the accused for the same offense, to a higher tribunal clothed with power to try the guilt or innocence of the accused, in the form prescribed by the Constitution and laws.

This case is itself, perhaps, the most forcible illustration of the fallacy of the construction claimed, for when the prisoner was remanded to the custody of the warrant issued by the examining magistrate for further examination, the refusal or mere neglect of the district attorney or prosecuting party to produce or offer any further evidence, would be a complete determination of the proceedings before the magistrate. There would be nothing left for him to do but to discharge the accused so far as the complaint before him was concerned; or if he went on and examined such witnesses as the accused should produce, that proceeding could have no possible operation upon the pending indictment. Ac the close of the examination the magistrate could do nothing more in the prisoner’s favor than to discharge him; but all that had been done subsequent to the indictment could neither be used on its trial, nor be of any legal advantage to the prisoner ; or if the magistrate should conclude to hold him for trial, and require bail, such bail could not be to answer the pending indictment upon which he could be tried notwithstanding the bail given before the magistrate for appearance at some future court. The establishment of a practice by examining magistrates and the effect of their action in accordance with the opinion given by the respondent on discharging the prisoner, would be apt to work serious delays and embarrassments, especially in the counties of the State where grand juries sit infrequently. The prolongation of an examination might easily, in such cases prevent the finding of an indictment for months by simply continuing the same f >r the few days in which the grand jury is in session. The system could be used and often would operate to prevent rather than promote justice, and the action of grand juries would be thwarted oftener than aided by such preliminary examinations.

We are unable to see any substantial ground upon which tho order under review can be sustained. We think the proceedings should be reversed and the custody of the prisoner restored to the warden, under the warrant issued by the Court of Sessions, to remain in custody for his trial, unless bail be given.

Daniels, J., concurred.

Brady, J.:

The statute provides for a preliminary examination, and it was begun in this matter. Several witnesses were examined, and then an indictment was found and the examination, which is in effect a hearing upon the guilt or innocence of the accused, was declared suspended or finished by operation of the indictment found.

The authority for the custody of the prisoner Gessner was changed, because he was then held under a bench warrant predicated of the indictment. If the examination had proceeded, and the magistrate had declared that the offense alleged was not established, the prisoner, with the warrant mentioned outstanding, could not have obtained his liberty upon that decision alone.

The value of the proceeding does not appear, therefore. The statute, it is true, gives the right to an examination, and when commenced it should be closed in some form doubtless other than by another proceeding in the same matter by a higher authority to consider it.

If, for example, the public prosecutor, having obtained the indictment and bench warrant, had appeared before the magistrate and declined to take any further part in the examination, and allowed it to proceed until it was terminated, and then caused the arrest of the prisoner on the bench warrant, the contemplated forms would have been accomplished, and the law administered. It may be that, considering the effect, this would be an idle performance.

There are, 'however, it must be said, grave objections to this course.

The examination, for example, might be continued until the grand jury in session had adjourned, and for an indefinite period beyond that occurrence, and thus prevent the administration of justice with such diligence as makes it valuable in the punishment, and, therefore, the prevention of crime.

The power existing, however, to find the indictment, I do not see how the consequences which are assailed in this case can be averted under existing laws. If the indictment was improperly obtained the remedy is not by habeas corpus. It is by motion to quash.

I am, therefore, led to think that the conclusions of Justice Westbrook, on principle and authority, were erroneous.

Proceedings reversed; custody of prisoner restored to the warden under the warrant issued by the Court of Sessions, to remain in custody for trial unless bail be given.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. F. LE ROY SATTERLEE, Relator and Respondent, v. THE BOARD OF POLICE OF THE CITY OF NEW YORK, Appellant.

      Police surgeon — contract of, for salary — validity of — § 2 of chap. 755 of 1873 — “ employes ” in — meaning of.

    On the 21st of September, 1873, the relator was, by a resolution of the board of police, appointed police surgeon, at a salary of §1,500 a year. He accepted the office, performed its duties and drew the stipulated salary for more than two years. Subsequently, claiming that the salary of the office was fixed by law at §2,250 a year, he applied for a manda/mus to compel the payment to him of the difference between that salary and the amount he had received.

      Weld, that even if ho had received less than the full amount established by law, yet as he had accepted the position at a stated salary, it became a contract with the public to discharge the duties for the sum named, and that the receipt of such sum was a ratification of the contract, and that this application should be denied.

      Semble, that a police surgeon is an “employe” within the meaning of that term as used in section 2 of chapter 755 of 1873, providing that “the board of police shall have power to fix the salaries and compensation of all clerks appointed by said board, and of all employes whom they may be authorized to appoint.”

      Appeal from an order directing the police commissioners to draw a requisition upon the comptroller of the city of New York, requiring him to pay over to the treasurer of said board balances of salary claimed to be due to the relator, for a period commencing October 1, 1873, and extending to January 4, 1876.
    The claim of the relator, as set forth in his moving papers, is, that he is entitled to salary as police surgeon, at the rate of $2,250 per annum; that he has been paid at the rate of $1,500 per annum only.

      D. J. Dea/n, for the appellant.

      Charles W. Could, for the relator.
   Davis, P. J.:

The relator was appointed a police surgeon on the 21st of September, 1873, under a resolution which expressly fixed his salary at $1,500. He accepted the position, knowing the salary thus attached to it, and had served for more than two years, drawing his pay monthly at the rate of $1,500 per year, apparently without complaint or objection. The contract thus made between the parties ought to be respected and enforced unless there is some overpowering rule of law to prevent its prevailing.

The relator was appointed under section 40 of chapter 335 of the Laws of 1873. He was not in office when that act took effect and was not therefore within the provision of section 43 of the act. When he was appointed, chapter 755 of the Lawrs of 1873 was in operation. By the second section of that act it was provided, that “ The board of police shall have power to fix the salaries and compensation of all clerks appointed by said board, and of all employes whom they may be authorized to appoint.” It was under the authority of this provision that the board acted. Their action was taken in good faith, and as its purpose was the retrenchment of expenses, it is entitled to commendation rather than condemnation, even if it was based upon a misapprehension of the law. The only doubt is whether police surgeons can properly be brought with in the words “ employes whom they may be authorized to appoint.” The word employes ” was not, I think, used exclusively in the sense of servants or laborers. The use of the word “salaries” in the same sentence, and of the word “appoint” in immediate connection witli “ employes ” require a larger signification, because mere servant or laborers are not usually appointed, nor is their compensation usually made by salaries. I think it is no stretch of the just sense of the words' used in the provision, to hold that, physicians and surgeons appointed to attend the policemen are embraced within them, and that it was competent to fix their compensation by mutual agreement at a stipulated sum or salary.

But if this were not so the relator should be held estopped from claiming a greater sum by his own contract and his subsequent action. He has put the board and the city in a position by his acts where he cannot claim more than he seems willingly to have received, without disturbing and embarrassing their financial affairs.

During the whole period the appropriations and requisitions have been made upon the basis of the stipulated sum as his compensation. No more for that purpose has been raised by the city or appropriated by the proper authorities, or required or received by the police board. And an attempt by peremptory mandamus to undo what has been done, or to compel new sums to be raised, appropriated and required, is virtually to enable the relator to take advantage of his own wrong in repudiating his well-understood and plain contract. No court should use its writ of mandamus for such a p arpóse. That writ is largely discretionary and should not be used for any end which is not equitable and just.

I am satisfied, also, with the views of Brady, J., that the contract made and executed by carrying its terms into operation for the period covered by the relatólas claim should b‘e held valid.

I think, also, that mandamus is not the proper remedy, even if the relator has a lawful claim : and for these reasons I concur with my brother Brady, that the order below should bo reversed and the motion denied with costs.

Brady, J.:

The relator was appointed a police surgeon at a salary of $1,500 a year, and accepted the office as it was given to him.

The resolution appointing him contained a statement of the amount of his salary, and he was paid at the rate named for a long time. He now claims that he is entitled to the compensation fixed by the statute of 1866, chapter 861, which is $2,250. It is asserted in his behalf, that the commissioners had no power to diminish .the salary established by law, and that, as soon as he was appointed, his right to such compensation was established.

Assuming this to be so it does not determine the inability of the relator to waive or extinguish any part of such compensation, and there can be no doubt that he may waive it. Having accepted the position with a stated salary, it became a contract with the public to discharge the duties for the sum named, and the receipt of such sum was a ratification of the engagement although the amount agreed upon is less than that authorized by law to be given. The agreement to receive less is neither against public policy or public morals, but rather in the spirit of- retrenchment, which, it is true, is not always commendable and may sometimes be exercised to the j>ublic prejudice. If the relator did not wish to do the duties-' required for the sum named he could have said so, or if he had assumed on his appointment, that he was immediately entitled to compensation at the rate of $2,250 per annum, and had refused to take less, he might occupy a very different attitude in this controversy, but he does not seem to have done so and must accept the consequences of his voluntary act. This contract was made and is binding. The statute establishing the salary does not prohibit the employment of a surgeon at a less sum. It only declared the maxiimum, not minimum, of compensation.

None of the cases cited by the respondent is in conflict with this view. Indeed, the doctrine declared has been enunciated in this court by the case of Drew v. The Mayor (reported in 8 Hun, 443) where the salary of the plaintiff was fixed at sixty dollars per month, but he was employed by the comptroller at fifty dollars per month, and it was held, that he was bound by the contract and could not recover for the balance remaining unpaid, and which was the difference between the amount he agreed to accept and that regulated by the common council.

The cases are identical, because the. resolutions of the common council had all the vigor of an act of the legislature.

The order appealed from should be reversed.

Ingalls, J., concurred. •

Order reversed, with costs.


author: Beady, J.:

text:
    THE HOWE MACHINE COMPANY, Respondent, v. GEORGE R. PETTIBONE, Appellant.

      Service of summons by publication — vacating order for — Due diligence — how it may bepi’oved.

    Upon a motion made on tlie judgment-roll to vacate an order for the service of a summons by publication, and a judgment entered upon such service, on the ground that the affidavit and papers, on which the order was granted, did not show that due diligence had been used to find the defendant within the State, the judgment-roll and the papers attached thereto may be resorted to to sustain the order and prove that due diligence has been used.
    Appeal from an order denying a motion to vacate an order of publication, and the judgment entered herein.

      Rastus A. Ransom, for the appellant.

      Stephen A. Walker, for the respondent.
   Beady, J.:

The appellant seeks to sustain this appeal upon the ground that the affidavit and papers, upon which the order of publication was made, were insufficient, in a legal sense, to justify the order. He thinks that there was no evidence of due diligence to find him within the State, and his counsel thinks that the judgment-roll and papers attached could not be resorted to for further evidence on that subject, or to sustain the order of publication. The motion was, however, to set aside the order of publication and the judgment, and the order to show cause was granted upon the judgment-roll. It is very clear, therefore, that that document could be resorted to for any purpose connected with the subject, and the order of publication was directly connected with the question presented for consideration.

The court having jurisdiction of the subject, and the affidavit having been declared prima facie sufficient to justify the order of publication, any part of the judgment-roll could be employed tc demonstrate that sufficient cause existed when the order was made, and tints, by relation, to establish the. justice and propriety of the order made. The affidavit originally presented, though it might, if subjected to technical criticism, be regarded as imperfect, nevertheless justified the conclusion that the defendant had absconded, and, having fled, was beyond the diligence which might otherwise reveal his place of abode or refuge. The plaintiffs were entitled to all the presumptions of secret wandering or abiding which spring from dishonorable flight. The question regarded with both affidavits present makes the charge against the defendant, of absconding with the plaintiff’s moneys, and with intent not to be traced, easy of solution, and leads to no other conclusion than that due diligence within the State would not necessarily disclose his place of abode. The defendant must be regarded as an absconding debtor, and,'therefore, without the pale of strict construction in matters of detail.

"We think the order made was correct, and that it should be affirmed, with ten dollars costs and the disbursements of the appeal.

Davis, P. J., concurred.

Present — Davis, P. J., and Beady, J.

Order affirmed, with ten dollars costs and disbursements.


author: Brady, J. :

text:
    JULIUS FREIBERG and LEVY P. WORKUM, Appellants, v. LEO POPPER, Respondent.

      Bankruptcy — discharge in, does not affect fraudulent debts.

    One month after tlie filing of a petition in bankruptcy by the defendant and seven days after he had been adjudged a bankrupt, this action was commenced to recover an amount due from him to plaintiff prior to the filing of defendant’s petition. A.t the time of its commencement an order of arrest was granted on the ground that defendant had fraudulently contracted the debt, under which he was arrested and gave bail. Judgment was entered on May 22, 1876. On September 8, 1876, he was arrested under an execution issued against his person and gave the usual bail for the limits. On March 27, 1877, he was discharged in bankruptcy, and moved to be released from arrest.

      Held, that, as the provisions of the bankrupt act expressly excluded from the discharge to be granted thereunder, debts fraudulently contracted, the application should be denied.

      Appeal from an order releasing the defendant from arrest under an execution against his person in this action, canceling the bond given by the defendant to the sheriff for the limits, and enjoining the plaintiffs from issuing any other execution upon said judgment.
    On March 18, 1876, a petition in bankruptcy was filed against the defendant by certain creditors, and on April 18,1876, the defendant was adjudged a bankrupt upon said petition. On April 25, 1876, over one month after the filing of said petition, and seven days after the defendant had been adjudged a bankrupt, this action was commenced to recover the sum of $1,996.04 upon a draft accepted by the defendant on October 1,1875, and given to the plaintiffs for merchandise for that amount, and also to recover the sum of $372 for goods sold and delivered by the plaintiffs to the defendant on December 20, 1875. The plaintiffs, at the time of commencing the action, procured an order of arrest against the defendant on the ground that the defendant had fraudulently contracted the debt. The defendant was arrested pursuant to said order of arrest and gave bail; on May 22, 1876, the plaintiffs entered judgment against the defendant for $2,046.22. The judgment shows the arrest of the defendant; on May 22, 1876, an execution was issued to the sheriff of New York county upon said judgment against the property of the defendant, which was returned on August 17, 1876, wholly unsatisfied; on September 8, 1876, an execution was issued on said judgment' to said sheriff against the person of said defendant. The sheriff arrested the defendant thereon, and the defendant giving the usual bond for the limits; the sheriff on September 30, 1876, made return to said execution <£ defendant in custody;” on March 20,1877, the defendant procured a discharge in bankruptcy. The defendant claims that he is released from all liability under said judgment by reason of said discharge in bankruptcy.

      O. II. Bmnnigcm, for the appellants.

      Albert Gardoso, for the respondents.
   Brady, J. :

The action was one in which the right to arrest was given as a provisional remedy. This right was exercised and an order of arrest obtained, which was not vacated. The facts set forth on the appli cation for that order were quite sufficient to warrant it, and author ized the adjudication made upon the fraud alleged, and which was not in any way disturbed. The provisions of the bankrupt law expressly exclude debts contracted by fraud. It was intended that such obligations should not be discharged, and hence the exception in the statute. (Section 5111 IT. S.; title, Bankruptcy.) Having arrived at the conclusion stated in regard to the character of the debt, the result is quite apparent, namely, that the order appealed from was incorrectly made and must be reversed. The case of Shuman v. Strauss (reported in 52 N. Y., p. 404) is not in conflict with this view. In that case the action was on contract, and the judgment was entered upon the complaint as such. No order of arrest was obtained in that case, and such a remedy was waived. The judgment extinguished the right and changed the nature of the claim. It was one of simple contract, and without the elements of fraud. The order appealed from should be reversed, with ten dollars costs and disbursements.

Davis, P. J., and Ingalls, J., concurred.

Order reversed, with ten dollars costs and disbursements.


text:
    JAMES B. SHERIDAN and others, Respondents, v. GEORGE C. GENET, Appellant.

      Counsel — liability of, to stenographer for copy of evidence on trial.

    "Where a stenographer furnishes a copy of the testimony given upon the trial oí an action, to one who he knows acted as counsel for one of the parties thereto, he cannot recover the price thereof from such counsel, unless the lattez expressly hind himself for the payment thereof.

      Bonyngc v. Waterbury (13 Hun 584) followed.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury.

      Geo. O. Genet, appellant in person.

      H. B. Bathway, for the respondents.
   Brady, J. :

Tlie defendant was sued to recover compensation for a copy of • tlie testimony given in tlie case of Hazewell v. Cousin, on the trial of which the defendant acted as the counsel of Hazewell. The stenographer knew that he so acted, having been present at the trial. The defendant, however, ordered the copy to be made and it was done at his request. The stenographer then knew that the defendant was the counsel for Hazewell. He had been advised of that on the trial. It was not to be supposed that he had any personal interest in the copy in the absence of proof to the contrary.

"What was said, therefore, in the case of Bonynge v. Waterbury. (12 Hun, 534) recently decided by this court, is applicable, namely: “ The defendant was an agent for a known principal, and ordinarily would not incur a personal liability, simply by requesting a performance of such a service for his client. Of course he could bind himself personally, and that would be the result when it followed from the nature of the agreement made, and the intention of the parties. But without something more than the mere performance of his duties as counsel for his client, such a liability would not be created, unless it might be for the fees of clerk, sheriff and other similar officers,” and the same rule should be applied in this case which was declared in that case, namely, that the counsel ordering such services will not be responsible, unless he intended to become personally bound to pay, a fact to be determined by the jury upon the trial. This action wras conducted, however, upon the theory that it was the duty of the defendant to say when he ordered the copy that it was for his client, if he wished to avoid responsibility, and the jury were so instructed, but exception was duly taken to the instruction thus given. We think for this error the judgment must be reversed.

The law was not properly stated and the error committed is correctly presented for our consideration. There was no evidence given, which removed the effect of this error, and there is no incident of the trial which allows us to declare that it was immaterial.

The rule adopted in Bonynge v. Waterbury (supra), will be enforced in all kindred cases, and if stenographers seek to make counsel liable, they must take the necessary steps to accomplish that end. This is not a serious burden and can be easily borne.

The judgment must, therefore, be reversed without reference to any other question suggested.

Ordered accordingly, with costs to abide event.

Davis, P. J., concurred.

Present — Davis, P. J., and Brady, J.

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


author: Ingalls, J.:

text:
    ANNIE TOMPKINS, Administratrix, etc., Respondent, v. JOHN PURCELL, Appellant.

      Section 1271 of the Oode of Oml Procedure — docketing judgment of V. S. court— effect of.

    Section 1271 of the Code of Civil Procedure, — providing that “ a transcript of a judgment rendered within the State by a court of the United States, duly certified by a clerk of that court, may be filed with a county clerk, who must docket it as if it had been rendered by the Supreme Court of this State,” — merely directs the form and manner in which such judgment is to be docketed, but does not render it a judgment of the Supreme Court of this State, or authorize the institution of supplementary proceedings upon the return unsatisfied of an execution issued thereon.
    Appeal from an order made at Special Term denying a motion to set aside an order for the examination of the defendant, as a judgment debtor, in proceedings supplementary to execution.

      B. T. Wing and J. A. Shoudy, for the appellant.

      Geo. F. Betts, for the respondent.
   Ingalls, J.:

This is an appeal from an order of the Special Term of this court, denying a motion to set aside an order granted by a justice of this ' court requiring the defendant to appear and be examined concerning his property. The plaintiff recovered a judgment within this State against the defendant in the District Court of the United States, and caused the same to be docketed in the clerk’s office of the city and county of New York, and an execution to be issued thereon, which was returned unsatisfied, and the plaintiffs applied for and obtained the order above mentioned for the examination of the defendant. The defendant made a motion at Special Term of this court to vacate the said order, which was denied, and he appeals to this court, the determination of which appeal involves a construction of section 1271 of the Code of Civil Procedure, which is as follows : “ A transcript of a judgment rendered within the State by a court of the United States, duly certified by a clerk of that court, may be filed with a county clerk, who must docket it as if it had been rendered by the Supreme Court of this State.”

It is contended by the respondent that when the judgment was doeketed it became a judgment of the Supreme Court of this State, and as such entitled to be enforced by execution and proceedings supplementary thereto. The appellant contends that the statute in question simply provides for the docketing thereof, and that the words “ who must docket it as if it had been rendered by the Supreme Court of this State” merely apply to the form of the docket, and not to the effect of the judgment. The phraseology employed in framing this statute is so indefinite that the construction is rendered difficult and embarrassing.

In aid of such interpretation it may be profitable to refer briefly to prior statutes and adjudications bearing upon the same subject. The Revised Statutes (vol. 2, p. 173, § 33) provides as follows: “Whenever an execution against the property of a defendant shall have been issued on a judgment at law and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a bill in chancery against such defendant and any other person, to compel the discovery of any property or thing in action,” etc. Under this statute a party who had recovered a judgment in the District Court of the United States caused the same to be docketed in the clerk’s office of a county within this State, and an execution to be issued and returned unsatisfied, and thereupon filed a bill in the Court of Chancery against the defendant to reach his property and chóses in action to satisfy such judgment. Tha chancellor dismissed the bill, holding, in substance, that such urovision of the Revised Statutes did not apply to judgments recovered in the District Court, and docketed in the clerk’s office of the county, and that such judgment possessed no greater force, in this respect, than judgments of a sister State, and that the remedy by creditors’ bill did not apply to such judgments. (Tarbell v. Griggs, 3 Paige Ch. Rep., 208.) We do not discover that this decision has been overruled or its soundness even questioned.

The statute of 1847 (vol. 2, p. 645, chap. 470, § 39) provides as follows : “ Transcripts of judgments rendered in this State, in any court of the United States, duly certified by the clerk of such court, may be filed and docketed by the clerk of any county in this State, in the same manner as judgments rendered in the Supreme Coxort of this State.” This statute provides for the docketing of such judgment, and prescribes the manner in which such docket shall be made, viz.: “In the same manner as judgments rendered in the Supreme Court of this State.” This clearly refers to the form of the docket, and cannot reasonably be held to declare the effect of the judgment, or prescribe the remedy to enforce the same.

In the history of legislation upon this subject, next in order of time, follows the provision of the Code which we are seeking to construe; and comparing the statute of 1847, above referred to, with said section 1271, we discover a chango in the language employed in this particular in said section 1271. It reads: “ May be filed -with county clerk, who must docket it as if it had been rendered by the Supreme Court of this State ; ” but in the statute of 1847, the expression is, “ maybe filed and docketed by the clerk of any county in this State, in the same manner as judgments rendered in the Sxipreme Court of this State.”

We are unable to reach the conclusion that the statute in question accomplishes more in this particular than simply to prescribe the form or manner in which the clerk should docket the -judgment. In regard to the book in which the entry shall be made, and tfie form of such entry — which shall be in the manner judgments rendered in the Supreme Court of this State are docketed — it may not be amiss to refer to the note of the codifier appended to the section in question, which is as follows: “ Neither the utility of this provision nor its precise effect, is very obvious, but it has been retained as an existing provision of law, and has been inserted at the end of this article to guard against any possible extension of its operation in consequence of including it among tbe provisions at tbe commencement.” So it appears that the codifiers did not intend, by á change in phraseology, to enlarge the effect of such statute.

It is true this is a remedial statute, and, therefore, in its construction greater liberality is justified than is allowable in reference to a penal statute. Yet all statutes are to receive a reasonable interpretation with a view to accomplish the purpose intended, keeping in mind a further consideration that it is the province of the court to construe and enforce statutes, and not legislate. We may fairly assume that had the legislature intended to place judgments rendered by the courts of the United States on a footing, in this respect, with judgments rendered in the Supreme Court of this State, and to allow the same remedies for their collection, a declaration to that effect would have been made in language far more explicit than that employed in framing the statute in question.

We are, also, disinclined to adopt the construction claimed by the respondent, as it would be likely to create great confusion and conflict by allowing concurrent remedies within the two jurisdictions, possibly proceeding at the same moment, for the enforcement of the same judgment. Such results are to be avoided, if possible, and certainly should not be precipitated by a strained and doubtful construction of a statute. We, therefore, conclude that the order of the Special Term cannot be sustained and must be reversed, and the order denying the examination of the defendant and the proceedings thereon vacated.

But as this is a new question costs of this appeal should not be allowed.

Davis, P. J., concurred.

Present — Davis, P. J., and Ingalls, J.

Order reversed, without costs.


text:
    LAWRENCE B. NORRIS, Appellant, v. DAVID R. DE WOLF, Respondent.

      General manufacturing act — failure to file report — § 12 of chap. 40 of 1848 — “debts” — meaning of.

    This action was brought to recover the value of certain bonds issued by the New Tork and South American Gold Mining Company, a corporation organized under the general manufacturing and mining act of 1848, from the defendant, a trustee thereof, on the ground that he had become liable therefor, by a failure to file the yearly report required by that act. Upon the trial it appeared that the bonds were given to one Whetmore, by the company, as a mere gratuity. Whetmore subsequently became insane, and the plaintiff was appointed his guardian.

      Held, that as the bonds were given to Whetmore by the company, no debt existed , against it in his favor, within the meaning of that term as used in section 12 of chapter 40 of the Laws of 1848, rendering the trustees liable, upon a failure to file the report, for all the debts of the company.
    Appeal from a judgment in favor of the defendant, entered upon a verdict directed by the court.
    This action.was brought by plaintiff to charge defendant, who was a trustee of the New York and South American Gold Mining Company in the sum of $5,000 and interest (being the amount of certain bonds alleged to have been issued by said company and held by plaintiff) by reason of the failure of the company to make and file the annual report required by the general act “ to authorize the formation of corporations for manufacturing, mining,” etc.
    Upon the trial it appeared that the New York and South American Gold Mining Company, a corporation organized in 1870, under the general manufacturing and mining act of this State, failed to make and file the annual report required by law for the year 1874, and that the defendant was one of its trustees at the time of such omission.
    In 1872 the company made seventy bonds, each for $1,000, secured by a trust mortgage on its real estate. Five of these bonds came into the possession of one Joseph Whetmore, who received them as a gratuity, and without paying any consideration to the company therefor.

      Whetmore became thereafter insane, and the plaintiff was appointed by a Massachusetts Probate Court guardian of his person and estate, in which capacity he came into the possession of, the bonds in question.

      B. F. Mudgett, for the appellant.

      W. P. Chambers, for the respondent.
   Ingalls, J.:

This is an appeal by the plaintiff from a judgment herein in favor of the defendant, after a trial at the Circuit, at which the court directed a verdict in favor of the defendant. To recover, the plaintiff was compelled to establish a debt against the New York and South American Gold Mining company. The evidence wholly failed to establish such debt; on the contrary, showed that the bonds in question were a gratuity to Whetmore — and lienee had no inception in the sense required to constitute a debt against the company, so as to justify a recovery in this action.

The statute of 1848 (chapter 40, section 12), under which this action is brought, provides as follows: “All the trustees of the company shall be jointly and severally liable for all the debts of the compa/mj then existing, and for all that shall be contracted before such report shall be made.”

The failure of the plaintiff to establish a debt against the company was fatal to a right to recover in the action, and justified the decision of the court. (The Shaler and Hall Quarry Company v. Bliss, 27 N. Y., 297; Chambers v. Lewis, 28 id., 454; Adams v. Mills, 60 id., 533 ; same case, 38 Superior Court Rep., 16.) This defect in the plaintiff’s case renders the examination of the other questions, at length, unnecessary, as they become unimportant so far as the result is concerned. We have, however, examined the several exceptions so far as to become satisfied that no material error was committed by the court.

The judgment must be affirmed with costs.

Davis, P. J., concurred.

Present — Davis, P. J., and Ingalls, J.

Judgment affirmed with costs.


text:
    CARL LESSER, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Obtaining goods on false pretenses— what justifies conviction of.

    On August twenty-eighth, the plaintiff in error and one Melville purchased certain jewelry, of the value of $255. At the time of sale Melville said: “ I will go and bring the money.” He returned with a check on the Chemical Bank for $355, to his order, made by August P. Steinbach, dated August twenty-ninth. Upon the vendor remarking that it was dated the next day, Melville said: “Yes; it is too late to go to the bank.” It was then half past three. Both plaintiff in error and Melville said the check was good; the check was not paid, and it appeared that no person of the name of the drawer then kept, or ever had kept, an account there. Plaintiff in error was subsequently convicted for obtaining goods by false representations.

      Held, that the understanding of the parties was that the price was to be paid at the time of sale and not at a future day; that the goods were sold not upon the representation that money to meet the check would be deposited at the bank at some future time; but that the check was then good, and the money on deposit to pay it, and that the plaintiff in error was properly convicted.
    Writ of error to tbe Court of General Sessions of the city and county of New York to review the conviction of the plaintiff in error of the offense of obtaining goods by false pretenses.
    Lesser was jointly indicted with one Charles H. Melville for obtaining property by false pretenses. Melville was not found. Lesser was tried and convicted at the October term, and was sentenced to the State prison for a term of two years.
    A woman named Yetta Georges, living at 111 Second street, had a quantity of jewelry remaining from the stock of a shop formerly conducted by herself and husband on Broadway. Lesser and Melville went to Second street to buy. Madame Georges had known Lesser about a month. Melville she had never seen. They examined the jewelry, but did not purchase the first day. They returned the following day (August twenty-eighth) at two o’clock in the afternoon, when Mr. Georges was absent, selected and purchased jewelry of the value of $255.
    Melville then said: “ I will go and bring the money.” After a short time he returned, bringing a check, of which the following is a copy: ,

      “New York, August 29, 1877.
    “No. 756. (Check stamp.)
    “ The Chemical National Bank of the city of New York, pay in current funds to 0. TI. Melville, or hearer, two hundred and fifty-five dollars ($255.00).
    “AUGUST P. STEINBACH.
    “ Indorsed: 1 C. H. Melville.’ ”
    This check he offered in payment for the goods purchased.
    The complainant’s sister, Rosa Bradenbach, observed and remarked that the check was dated the following day, to which Melville replied; “ Yes; it is too late to go to the bank.” It was then half past three o’clock.
    Both Melville and Lesser said to the women that the check was “ good,” and that Steinbach “ had a business.” Madame Georges then took the check and delivered the jewelry to Melville and Lesser, who took it away. Upon presenting the check at the Chemical Bank the following morning, it was discovered that no such person as August P. Steinbach was known there; nor had any such person ever had an account in that bank. The check was worthless. Steinbach could not be found, nor his “ business.”

      W. F. Kintzing, for plaintiff in error.
    To constitute the crime of obtaining property by false pretenses under the statute, two things are essential: 1. A false representation as to a past or an existing fact. 2. And a reliance upon that representation as true. (People v. Tompkins, 1 Parker, C. R., 224.) The false pretense must be of some present existing fact, and not of some future event or a mere promise. (Rex v. Porter, 2 Moody 1 [Crown Cases]; Corn v. Drew, 19 Pick., 179; McKenzie v The State, 6 Eng., 594; Burrows v. The State, 7 id., 65; Reg. v Wooley, 1 Ben. C. C., 559; Reg. v. Fhenderson, Car. & M., 328 1 English L. & Eq., 537; Dillingham v. The State, 5 Ohio, 280 Wharton Am. Or. Law [7th ed., vol. 2], 2118; Bussell on Crimea [6th ed., vol. 2], 300; Boscoe Or. Ev. [7th ed.], 478; Bishop Or Law [5th ed., vol. 2], 479.) The check in the case at bar was post dated, it was to be honored the day following its delivery. Such a pretense is referable to a future event, and is in the nature of a promise that the check should be paid. It is not a pretense of an existing fact. It is a promise and. not a pretense. (Romney v. The People, 22 N. Y., 417; Rex v. Lee, L. & C., 309; Bishop Cr. Law [5th ed., vol. 2], 419.) The giving of a post-dated check is a promise and not a pretense. A promise is not a pretense. (Rex v. Goodhall, Russell & Ryan, 461; Tefft v. Windsor, 17 Mich., 486; Rex v. Pouglas, 1 Moody, 462 [Crown Case] ; Rex v. Bradford, 1 Ld. Raym., 366; Gloeltan v. The Com., 3 Met. [Ky.], 232.)

      Horace Russell and B. K. Phelps, attorneys for defendant in error.
    It is well settled that the presentation of a check upon a purchase of goods for cash, amounts to a representation that it is a good and valid order for the sum named in it, and that such sum is on deposit at the bank to meet it. (Rex v. Jaclcson, 3 Camp., 370; Rex v. Parlcer, 7 Car. & P., 825; id., 2 Moody, 1; Bish. Cr. Law, vol. 2, § 421; Russell on Crimes [last ed., vol. 2], 640; Arehbold’s Cr. Practice and Pleading [Pomeroy’s ed., vol. 2], 1388.)
   Ingalls, J.:

This case comes before this court on writ of error. The said Carl Lesser was jointly indicted with one Charles H. Melville, for obtaining property by false pretenses, and was tried upon such indictment, at a Court of Sessions held in and for the city and county of New York, convicted and sentenced to the State prison for the term of two years.

The purchase of the jewelry to the value of $255, was made on the 28th day of August, 1877, at which Melville stated in the presence of Lesser, “ I will go and bring the money.” After a short time he returned bringing a check, of which the following is a copy:

“No. 756. New York, August 19, 1877. [Check stamp.]
“ The Chemical National Bank of the city of New York.
“ Pay in current funds to C. H. Melville or bearer, two hundred and fifty-five dollars.
$255. AUGUST P. STEINBACH.”
Indorsed: O. II. Melville.’ ”

This check was offered in payment for the goods, and Rosa Bradenbuck, who made the sale, remarked that the check was dated the following day, to which Melville replied, “ Yes, it is too late to go to the bank.” It was then half-past three o’clock. Both Melville and Lesser said that the check was good and that Steinbach had a dusiness. The check was presented at the Chemical bank on the morning of the twenty-ninth of • August, and it was ascertained that there were no funds to pay it and that no such person as August P. Steinbach was known there, or had ever had an account with the bank. The check proved worthless and Steinbach could not be found. The transaction was a gross fraud and the punishment deserved. But the prisoner had a right to insist that it shall not be administered contrary to law, and in this he is right. It will be observed that this was not a purchase to be paid for at a future day, but at the time; so it was clearly understood by all the parties. Melville said, “ I will go and bring the money,” and went away, but soon thereafter returned with the check, tendered it, saying it was “ good; ” attention being called to its date, he remarked that it was so dated, because it was out of bank hours. From the evidence it cannot be doubted, but that all the parties understood that the check was drawn upon a fund then deposited in the bank, and not to depend upon the state of an account at a future day. Every circumstance justifies this inference. If this purchase had been made, and nothing said in regard to the time of payment, and the check had been accepted, a very different case would be presented for determination. The facts of this case fairly construed, establish a false representation in regard to an existing fact. The goods were not purchased upon a pretense that they would be paid for at a future day, nor that the money to meet the check, would be deposited at the bank at some future time, but, on the contrary, that the check was then good and the money on deposit to pay the same. Suppose the check had been, by mistake, dated the twenty-ninth of August, could there be a doubt but that the error could be explained, and the instrument declared as of the same effect as if correctly dated ? Should a more stringent rule be adopted in favor of a person who has been guilty of a gross fraud, and against an innocent party, who has been induced by such fraud to accept the check in question, under the representations and pretenses above mentioned, as the substitute for money then due, and not to become payable at a future day ? The case of Rex v. Parker (7 Car. and P., 825), where the prisoner purchased a watch and chain on the twenty-seventh of December, and gave his chpck drawn upon a British bank in payment, dated sixth of January following, post-dated for his own convenience. He was convicted and the same was sustained upon a count of the indictment charging that the prisoner falsely pretended that the check was a good and valid order for twenty-five pounds of the value of twenty-five pounds.

This decision fully sustains the conviction in the case at bar, and we discover no substantial reason for disturbing it. And' the same should be affirmed and a new trial denied.

Davis, P. J., concurred.

Present — Davis, P. J., and Ingalls, J.

Judgment affirmed.


author: Davis, P. J.;

text:
    WILLIAM H. DANNAT, as sole Surviving Member of the firm of DANNAT BROTHER, v. THE BOARD OF EDUCATION OF THE CITY AND COUNTY OF NEW YORK.

      Board of education of New York — has not power to dram drafts upon the chamberlain— delivery of vouchers and certificate by.

    Appeal from a judgment in favor of the plaintiff, entered upon an order sustaining a demurrer to defendant’s answer.
    The action was brought by the plaintiff, as assignee of a portion of the moneys falling due to one Dannat under a contract made by him for the erection of a school-house, to compel the defendant to draw its draft, payable to the order of the plaintiff upon the chamberlain of the city of New York, in pursuance of section 16 of chapter 386 of 1851. The defendant demurs on the ground that under the charter of 1873 money would no longer be paid out of the city treasury upon its draft, and that they were no longer required to draw one but simply to deliver a voucher and certificate to the comptroller, and that this had been done by it in this case. The court at General Term said:
    “Under the provisions of chapter 386 of the Laws of 1851, the moneys raised for the board of education were placed in the city treasmy. In section 16 of the act it was provided that it should be drawn by the draft of the board of education upon the chamberlain. The moneys raised and appropriated were thus put under the direct control of the board of education. By chapter. 335 of the Laws of 1873 a finance department was created, at the head of which was the Comptroller, and the direct control of all moneys raised and appropriated was placed in that department, and it was provided that no moneys might be paid out of the city treasury but by warrants drawn by the comptroller and countersigned by the mayor, and that before any warrant could be drawn for the payment of any money a voucher of the amount must have been examined and allowed by the auditor, approved by the comptroller and filed in the department of finance. The Court of Appeals have held that the system thus created applied to all moneys to be paid out of the city treasury, and that the school moneys are not to be excluded therefrom. (Darmat v. The Mmjor, etc., 66 N. Y., 585; People ex rel. Root v. Tappen, 67 id., 580.) In the latter case it was held that the chamberlain cannot pay moneys from the city treasury upon the warrant or draft of the president and secretary of the board of education.
    In this state of the law all that is necessary, as it seems to us, on the part of the board of education, is to furnish, in proper form, a voucher for the action of the auditor and comptroller.”

      Francis Lynde Stetson, for the appellant.

      G. G. King and John K. Hand, for the respondent.
   Opinion by

Davis, P. J.;

Daniels and Brady, JJ., concurred.

Judgment reversed, demurrer overruled with costs and with leave to the plaintiff to reply or to proceed with the trial of the issue of fact.


author: Brady, J.;

text:
    CHRISTIAN MOLLER, Appellant, v. JOHN H. MULLER, Respondent.

      Mortgage foreclosure — application after sale under, ly holder of prior unrecorded mortgage to open judgment and sale.

    Appeal by the jfiaintiff from an order setting aside a decree .of foreclosure, and directing that the executors of Henry Wolters deceased, be made parties defendant therein.
    This action was brought to foreclose a mortgage uppn leasehold premises situated in the city of New York. The premises were sold on the 6th of September, 1877, and in consequence of a clerical error in the description of the premises, as written in the judgment, a second sale was had on October 20, 1877. The premises were bid in at each sale for the sum of $5,000. The plaintiff received the deed of the referee, and entered into possession of the premises.
    Upon affidavits showing that the defendant John H. Muller, had mortgaged the premises, affected by the mortgage given by Mm to the plaintiff, to one Henry "Wolters, for the sum of $9,000, on the 28th day of June, 1870, which was anterior to the date of the mortgage to the plaintiff; that Henry Wolters had not recorded his mortgage and had died in the year 1870; that John H. Muller, tbe defendant, and Wm. C. Wolters were the executors of the will of Henry Woffers, and that they had not recorded said mortgage for $9,000; that the said mortgage was still unrecorded and that the premises were worth more than $5,000, an order was made requiring the plaintiff and defendant to show cause why “ the judgment o£ foreclosure and sale made in this action, on the 26th day of September, 1877, and the deed made by James P. Ledwith, referee to the plaintiff, of the premises in question under said decree, and sale should not be vacated and set aside, and all proceedings in this action amended by making John C. Wolters and John H. Muller as executors of the last will, etc., of Henry Wolters, deceased, defendants, and the said executors permitted to come in and defend this action, and for such other and further relief as may be just, with costs.”
    On appeal from an order granting this application the court at General Term said:
    “ The plaintiff was not bound to make a conceded prior incumbrancer a party, but he was bound to sell subject to the prior lien. To permit him to do otherwise would be a fraud upon the purchaser.
    It is alleged in this ease "by the representatives of the prior mortgagee, whose mortgage was not recorded, that the plaintiff and his attorneys knew of the prior mortgage, but did not disclose it at the sale. If it were not known to the purchaser, under the foreclosure proceedings, he would not be affected by it, the mortgage not having been recorded, and his title would be unimpaired. The effect would be to deprive the prior mortgagee or his representatives of the security unless the proceeds of the sale were sufficient to pay the mortgage. If the plaintiff concedes the priority then it is not necessary to make the holders of the prior mortgage parties, nor is it necessary if he does not, provided there be contained in the order for a resale, a direction to sell subject to the outstanding claims made.
    If the priority is contested the plaintiff could, if he should so elect, determine the issue by making the holders of the mortgage parties. It is my judgment, therefore, that the order should be modified by ordering a resale, subject to the alleged claim of priority, in which case it will be unnecessary to make the holders of the prior mortgage parties, and they will be left to the remedy provided by law.”

      Alfred J. Taylor, for appellant.

      Morris cfe Pearsall, for respondent.
   Opinion by

Brady, J.;

Ingalls, J., concurred.

Present — Davis, P. J., Brady and Ingalls, JJ.

Order modified, as directed in opinion, without costs; order to be settled by Brady, J.


author: Daniels, J.;

text:
    JOHN VALENTINE, Administrator, etc., Respondent, v. MARGARET A. HEYDECKER, Impleaded, etc., Appellant.

      Extension of time of payment — consideration for — taking assignment of bond and mortgage.

    Appeal from a judgment in favor of the plaintiff recovered on a trial at Special Term.
    The, judgment appealed from was recovered in an action for the foreclosure of a mortgage, executed by the defendant, Margaret A. Heydecker, to one Martha 1. Stevens, to secure the payment of $2,500, with interest. After the mortgage debt became due, the mortgagee desired that it should be paid, but the mortgagor was unable to pay it; and in order to prevent the foreclosure of the mortgage, a loan was applied for by her agent, for the sum of $3,500 for the period of three years, out of the proceeds of which it was designed to pay off the mortgage. The application was made to Sargent V. Bagley, who was acting on behalf of the plaintiff’s intestate. And it was concluded to make the loan in case the property described in the mortgage was found to be a good security for the amount. But, upon a search being made, the amount of the incumbrances upon the property by unpaid assessments and taxes, and a judgment recovered after the recording of the mortgage, was so great as to render the property an undesirable security for the amount of money desired. And thereupon the agreement for the loan was so far modified as to result in another for the purchase of the outstanding bond and mortgage, and an extension of the time for its payment for the period of three years.
    The defendant agreed to, and did pay to the person acting for the intestate, the expenses incurred for searching and examining the title to the property, and the money was advanced for, and an assignment taken of, the bond and mortgage, in compliance with the terms of such modification of the original-agreement.
    In this action the plaintiff insisted, among other things, that the agreement for extension was without consideration and therefore void. "With reference to this point the court at General-Term said :

      “ In support of the judgment, however, it has been further objected that the agreement was without consideration. But the assent of the defendant to the assignment of the bond and mortgage by which the intestate could be properly secured for her money was some consideration. It was a benefit to her, and afforded her the means by which she could safely invest her money at interest.
    The agreement was one for a three years’ loan, and this was the mode devised for making it, and after its consummation it ought to be maintained. Besides that the mortgagor became bound for the payment of the expenses of making a search of the title to the property mortgaged, and for the payment of $100 to the agent of the intestate for afterwards examining it. And the sums required for that purpose were actually paid.
    That would not have been done, if all that was to be secured, was only a change of owners of the mortgage debt and security. It was a burthen imposed upon the debtor as part of the price of the stipulated extension, and its payment for that reason was a valid consideration for the agreement made.
    It xvas so much more, than there was previously any obligation for doing on the part of the debtor. And for that reason materially distinguishes this from the case of Parmelee v. Thompson (45 N .Y., 58). In that respect the case is in principal the same as ' Dodge v. Gramdell (30 N. Y., 294), and it is likewise sustained by what was held in Ryan v. Dox (34 id., 307).
    The agreement was a valid one, and as there had been no default in its performance when this action was commenced, the defense should have been sustained by the court at the trial.
    The judgment should, therefore, be reversed and a new trial ordered, with costs to abide the event.”

      P. B. Gwillwi, for the appellant.

      B. II. Tha/yer, for the respondent.
   Opinion by

Daniels, J.;

Davis, P. J., and Brady, J., concurred.

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


text:
    HENRY F. VOESSING and others, Appellants, v. CLEMENTINA VOESSING and others, Respondents.

      Partition suit under chapter 288 of 1858 — void devise should, he set up in.

    Appeal from an order, made at Special Term, striking out portions of the complaint as irrelevant.
    This action was brought by the plaintiffs,.claiming as heirs at law of an intestate, for the partition of certain lands of which they were in possession. The action was brought against certain of the other tenants in common, and against one McOloskey, to whom a deed of the lands appeared to have been executed by the intestate, the plaintiff claiming that such deed had not in fact been so executed, and that the same was invalid. Upon a motion of the defendant, McOloskey, certain of the allegations of the complaint were stricken out as irrelevant.
    The court, at General Term, said: “In this case the plaintiffs claiming the land by descent as heirs at law commenced this action for a partition. They alleged in the complaint an apparent devise by their father by will, which was void, and also an adjudication upon, the will declaring it to be so. The paragraphs containing these statements were, on motion, stricken out as irrelevant. This was erroneous, and, it seems, would not have been done had there not. existed some misapprehension of the nature of the action. The statute (3 E. S. [6th ed.], p. 60, § 22) provides that any heir ‘or heirs claiming lands from an ancestor may prosecute for partition thereof, notwithstanding any apparent devise by such ancestor or any possession held under such devise, provided that such heir or heirs shall allege and establish in the same suit, action or proceeding that such apparent devise is void. The statement of this provision demonstrates the error of the order made. It was essential to the .plaintiffs’ case that they should aver the existence of the devise and its invalidity, and they did so. The defendant McCloskey was not called upon to answer that part of the complaint, unless the plaintiffs’ title as heirs at law in fact was disputed. His part of the case is separate and independent, and relates exclusively to the validity of the deed under which he claims.”

      jB. E. Valentme, for the appellants.

      John P. O’Neill, for the respondents.
   Opinion by

Brady, J.;

Davis, P. J., concurred.

Present — Davis, P. J., and Brady, J.

Order reversed, with ten dollars costs, and disbursements of appeal to abide the event. .