author: Lansing, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of Israel Huntley, as Executor of Roxana Duell, Deceased.

      (Surrogate’s Court, Rensselaer County,

      Filed June, 1895.)

    1. Executors—Accounting—Expenses.
    The " actual and necessary expenses,” for which the executor will be re-imbursed, are those which are contracted in good faith and with reasonable judgment, whether with or without the advice of counsel.
    3. Same.
    The executor, under the facts and circumstances of this ease, was held not to be entitled to re-imbursement for the expenses of an appeal from a judgment entered on the report of a referee who, on the testimony of six witnesses, found that the bill for testator’s funeral expenses were reasonable.
    Judicial settlement of the accounts of an executor.

      McGlellan & Albertson ( William J. Hoche, of counsel), for executor; John K Hoag, for Sarah E. Yallee, creditor; John T. Norton, for George H. Palmer; creditor.
   Lansing, S.

The executor filed his account, duly verified. The creditors filed objections to certain items of credit for costs and disbursements alleged to have been paid by the executor in litigating the bill of the undertaker for the funeral expenses of the deceased. The creditors insist that such payments were unjustifiable, that the expenditure of nearly one-half of the small estate of about $800 in fruitless litigation over the undertaker’s bill was unwarranted in law, and amounted to a breach of duty on the part of the executor, and that credit should not be allowed him therefor. On the other hand the executor contends that he acted in entire good faith and under the advice of counsel in conducting the litigation and making the expenditures, and that he should be credited with the amount so paid by him.

The question presents some embarrassing features. The office of an executor or administrator is a position of responsibility, and its duties are often delicate and exacting. Such positions are rarely sought, especially where the estates are small, and in such cases the compensation is usually very inadequate for the responsibility assumed and labor performed. The law is, therefore, indulgent where it appears that the trustee has been prompted by proper motives and has exercised reasonable judgment On the other hand, the law condemns every act savoring of. dishonesty or negligence in the administration of the trust whereby loss is suffered. But honesty, good intentions, and even advice of counsel, are not alwa}7s sufficient, where loss has occurred to the.estate through mismanagement. The law in addition requires that persons who accept such positions must, in the performance of their duties, be held to exercise a reasonable measure of intelligence, and such ordinary discretion and judgment as men usually exercise -in the management of their own affairs. The expenditures in question, if allowed, must be allowed under section 2730 of the Code of Civil Procedure, as amended in 1893, which provides that executors and administrators may be reimbursed out of their estates for such “actual necessary expenses” incurred by them as “appears just and reasonable.” This provision, though recently embodied in the Code, has long been a well-settled rule in equity. Young v. Brush, 28 N. Y. 667, 673. It also existed in a statutory form for many years prior to its re-enactment in the Code. 2 Rev. St. 93, § 58, as amended by Laws 1863,' chap. 362. The application of this provision to expenditures by executors and trustees for legal services is, I think, well stated in the case of St. John v. McKee, 2 Dem. Sur. 236. Rollins, S., says:

The bare fact that an executor has actually expended for legal services the sum for which he asks to be reimbursed does not, of itself, entitle him to reimbursement, nor, indeed, does he become entitled simply by showing, in addition, that he has acted honestly and in good faith. If objection is interposed it must also be made to appear that when the services were rendered they were demanded or seemed to be demanded by the best interests of the estate. ”

The case of O'Connor v. Gifford, 117 N. Y. 278; 27 St. Rep. 453, cited by the counsel for the executor in support of his contention, is a case where an executor was sought to be charged on account of his fail&re to collect alleged collectible assets of his estate. It must be conceded that the rule of duty and diligence imposed upon an executor or administrator is the same whether a claim is prosecuted or defended, and that the rule laid down in that case should apply here. But I am sure the rule laid down in that case- is not in conflict with the rule above stated. Peckham, J., in the case cited, states the rule follows : “An executor who lias acted in good faith, and intended fairly and fully to discharge his duty, will not be charged in this manner (as for devastavit for a failure to collect the money), if such intention has been directed by reasonable judgment; and he quotes with approval the case of Schultz v. Pulver, 11 Wend. 363, a case where an executor was charged with misconduct in neglecting to take legal proceedings for the recovery of property, and the court, by Nelson, J., say that “the executor must act in good faith and with reasonable judgment,” to be exonerated from the charge. The result, upon reason and the authority, seems to be that those “actual and necessary expenses” for which an executor must be reimbursed are those which are contracted in good faith and with reasonable judgment, whether with or without the advice of counsel. It is well settled that the reasonable and necessary expenses of the burial of a decedent are a charge against his estate, although the executor is primarily liable as an individual, and not in his representative character. He must decide upon the amount to be expended, and pay it, and such sum will, if proper in amount, be allowed him on the final settlement of his accounts. Ferrin v. Myrick, 41 N. Y. 315; Patterson v. Patterson, 59 id 574.

. This brings us to the real question in this case, which is, did the executor exercise reasonable judgment and discretion in entering upon the litigation, and incurring an exnense of several hundred dollars in contesting the payment of the bill of the undertaker? The facts in the case are these: The undertaker presented a bill to the executor for $127 for funeral expenses. The bill appears to have been contracted by a Mrs. "Vallee, whoresided in the same house with the deceased, and attended her during her illness, and who was a relative of the decedent’s late husband. The executor learned of the order shortly after it was given. He lived about six miles from the deceased, and when he heard of her death, which was telephoned him by Mrs. Vallee, he spoke to an undertaker residing near him in Sandlalce to attend to the funeral, but when he learned on his arrival at the house of the deceased that Mrs. Vallee has gone to Troy to engage an undertaker and make arrangements for the funeral he countermanded his own order, and Mrs. Vallee contracted the bill in question. It further appears that Mrs. Vallee stipulated with the undertaker that she should not be personally charged with the bill, but the undertaker should look to the estate, and the executor had knowledge of this arrangement before the suit was brought. The entire estate consisted of $827 in money. The bill was presented to the executor, and payment was refused on the ground—First, that it was excessive; second, that the services and material of the undertaker having been ordered by Mrs. Vallee, the undertaker must look to her for payment, and when paid the executor would be liable to her for the reasonable funeral expenses of his decedent. Suit was brought, and the case was referred. The referee reported in favor of the plaintiff for the amount of the bill with interest. Judgment was entered thereon for damages $131.69, costs $188.69, amounting together to $320.38. An appeal was then taken by the executor to the general term, where judgment was affirmed, with costs. The entire expenditure by the executor in this litigation in excess of the claim of $127 is about $450, including $100 paid to his own counsel for his costs and services on the trial and on the appeal. Claims of creditors to the amount of about $500 have been admitted or established.

The defense that an action would not lie against the executor in the first instance, but should have been brought against Mrs. Val-lee, was obviously untenable, since it appears that the executor impliedly authorized her to act for him by revoking his own order and accepting her services in the employment of the undertaker. Beyond that, it is a well-settled elementary principle that an executor is liable for reasonable funeral expenses of his decedent, whoever may have ordered the same, whether with or without his knowledge or consent. Redf. Law & Pr. Sur. Cts. (5th ed.) 438; Patterson v. Patterson, supra; Ferrin v. Myrick, supra. This litigation had its origin in an idea which, I think, obtains, quite generally among executors and trustees, and perhaps to some extent in the legal profession, that an executor or trustee may safely litigate any fairly controvertible question of law or fact arising in the course of administration, without the liability of having his action called in question, provided he acts in good faith and under the advice of counsel. I am satisfied this is not the law. It would be establishing a very dangerous precedent to hold that an executor could, on the plea of acting in good faith and under advice of counsel, fritter away an estate in litigations over claims -of trifling amounts. A reasonable test in such case is, would the executor or trustee, in the management of his own affairs, under like circumstances, have incurred the expense in question? If not, then he certainly should not be credited with it in his account as executor or trustee. Besides, in cases of doubt, it is the right, if not the duty, of the executor or trustees to seek instruction from the court as to his duty in the premises. Code Civ. Proc. § 2472, subd. 3; In re Underhill, 117 N. Y. 471; 27 St. Rep. 720. I am free to concede that the rule must not be drawn with too much strictness, but, making the most ample allowance for honest intent and reliance on advice of able and experienced counsel, and the additional fact that the executor acted in the premises under the belief that he was proceeding within the lines of his powers and duty, yet it seems to me that when the matter was submitted too referee of experience and ability, and half a dozen witnesses testified to the value of the services rendered and the material furnished, and the referee found that the amount charged and expended was reasonable and in accordance with the rank and circumstances of the deceased, and also found as a conclusion of law (about which there could be no question) that the executor was primarily liable for the funeral expenses ordered, then, at least, this litigation should have ended, and I cannot conceive of any reasonable excuse for the expenditure of a large additional sum from the money of this estate in printing the case and taking an appeal to the general term of the supreme court. The line must be drawn somewhere, and perhaps for safe precedent it should exclude the expenditures of this entire litigation, and hereafter, in a like case, with the law touching the duties of an executor or trustee in the premises clearly defined, the line will be so drawn. But, in view of the hardship involved, the good faith of the executor, and the high character, learning, and ability of the counsel, I have, under all the circumstances, decided after considerable hesitation- to allow the expense of the litigation in the supreme court. There was perhaps a slight question of fact as to whether the expense incurred was in accordance with the rank and circumstances of the deceased, also whether the undertaker had not charged in his bill for the casket more than the agreed price. When these questions were settled by a preponderance of evidence upon the reference, there was not the slightest ground remaining for further litigation, and I must, therefore, strike from the executor’s account all expenditures in excess of the damages, costs, and disbursements included in the judgment entered upon the reference in the supreme court, and the disbursements of the executor for the services of his attorney in attending upon the reference.

Decreed accordingly.


source: Caselaw Access Project

author: Giegerich, J.

license: Public Domain

text:
    Maurice B. Atkinson, Resp’t, v. Singer Manufacturing Company, App’lt.

      (New York Common Pleas, General Term,

      Filed August 22, 1895.)

    Appeal—First instance.
    An objection that an action is prematurely brought, cannot be raised for the first time on appeal.
    Appeal from a judgment in favor of plaintiff.

      Booraem, Hamilton, Beclcett & Ransom, for app’lt; John Gallahan, for resp’t.
   Giegerich, J.

This action was brought to recover back $75 which the respondent had deposited as security for the honest performance by him of his duties as employe of the appellant. The record shows that he left their employment, by mutual consent, on the 9th day of February, and this action was begun on the 12th day of the same month and year. There was a strenuous •contest between the parties, upon the trial, as to .whether the agreement was that a period of sixty or ninety days must elapse, after the termination of the employment, before the deposit was to be returned. The appellant now urges that the action was prematurely brought, in either event; but this objection was not made upon the trial. In fact, the attention of the court was called away from it by a conflict over a point that was really'immaterial. Under the circumstances, we do not feel bound to consider the objection upon appeal, especially as it does not appear that injustice has resulted.

The judgment is affirmed, with costs.


text:
    John A. Eckert, App’lt, v. Percy W. Clark, Resp’t.

      (New York Common Pleas, General Term,

      Filed August 22, 1895.)

    Partnership—Compensation .
    Where, under an agreement between partners, they were to receive no compensation for services, a certain party, who has an interest in the share of one of the partners, is not liable to such partner for his services in the business, in the absence of an agreement for compensation.
    Appeal from a judgment in favor of defendant on a counterclaim.

      Sproull, Harmer & Sproull, for app’lt; John H. Ward, for resp’t
   Giegerich, J.

This action was brought to recover the sum of $82.50, received by the defendant to the use of the plaintiff, which sum was plaintiff’s share in the interest of the defendant in the profits of the firm of Plyer & Clark for the month of January, 1895. The answer was a general denial and the setting up of a counterclaim in the sum of $250 for “services rendered from July 2, 1895, in the care, management, and development of Eckert’s interest in the share of Clark in the sat’d firm of Plyer & Clark, which resulted to the enrichment of said Eckert of upwards of .$900.” Prior to April, 1894, the parties litigant and one Norman Hubbard, Jr., were copartners in business as insurance brokers, under the firm name of Hubbard, Eckert & Clark. During the last-mentioned month, the parties agreed, in writing, that the defendant should “ nominally withdraw his connection with said firm ” and enter into a partnership with one Charles Flyer, for the purpose of conducting business as national underwriters, under the firm name of Flyer & Clark, and that the partnership should continue as before and extend to all profits and losses arising out of defendant’s copartnership with said Flyer. On the 2d day of July, 1894, the said Hubbard, the plaintiff, and the defendant, by written agreement, dissolved the partnership existing between them, which instrument, among other things, provided that; “The individual interest of each of the members of said firm in said one-half interest in the firm of Flyer & Clark is as-follows: said Hubbard three-eighths, said Eckert three-eighths, and said Clark two-eighths. It is hereby agreed that said Hubbard, said Eckett and said Clark shall sach continue to own, in, his own name and right, and not as a member of the firm of Hubbard & Eckert, the proportion of said business of Flyer & Clark which he formerly owned.” At the same time, the defendant, in. consideration of $2,000, payment of which was secured by the promissory notes of the plaintiff, sold to the latter his individual share in the business heretofore controlled by the plaintiff, and also transferred to him one-third of his interest in the firm of Flyer & Clark, and the profits arising therefrom. After such sale and transfer, the business of the said firm of Flyer & Clark was continued by Flyer, Hubbard, the plaintiff, and the defendant,, and the latter continued to pay to plaintiff his individual share in the profits until the month of February, 1895, when he failed to pay over the latter’s share of the profits accruing during .the month of January, 1895, which he (the defendant) had heretofore received. The plaintiff then brought this action upon said claim, which, upon the trial, was admitted by the defendant; the latter, however, setting up the counterclaim for services rendered in the care, management, and development of the plaintiff’s interest in said firm of Flyer & Clark. This claim for compensation is not shown to be founded upon any promise, express or implied. On the contrary, the defendant testified : “I had no conversation in reference to the employment with him (the plaintiff). The conversation was that my services to Mr. Eckert were worth a certain sum. There was no employment about it.” The defendant further testified that he first demanded compensation for services of the plaintiff in the latter part of January; that he had previously, viz. in the month of September, 1894, spoken to him about compensation, when plaintiff said “for the present to let it rest.” Q. Did Mr. Eckert make any definite terms at that time? A. Only to say to let the matter rest for the time being. Q. How do you compute this amount you have in your counterclaim $250? A. I place the value of my services at $1,500 a year, and I compute that is the proportion that Mr. Eckert should pay.” There being no agreement to compensate the defendant for the services so rendered, recourse must be had to the written articles of copartnership of the firm of Flyer & Olark for our guidance, which, in our opinion, clearly evince an intention on the part of the parties to require each of the partners to devote all his time to the business of said firm, and for which services he should receive no compensation save his share of the earnings of the firm.

As the defendant was required by the terms of the partnership agreement to render the services in question, it is obvious that the defendant’s counterclaim1 was unfounded, and it therefore follows that the judgment appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event.


text:
    Gustav Jacobi, App’lt, v. Tilly Haynes, Resp’t.

      (New York Common Pleas, General Term,

      Filed August 22, 1895.)

    Innkeepers— Liabilities.
    A hotel keeper is liable for loss of samples of goods taken from a guest’s room by a fellow guest, admitted thereto by the chambermaid, though she had several times seen them together in the room and the guest had authorized his fellow guest to sell goods from the samples.
    Appeal from a judgment in favor of defendant.

      Hoffman & Hoffman (Charles L. Hoffman, of counsel), for app’lt; William J. Fanning, for resp’t.
   Giegerich, J.

This action was brought against the proprietor of an hotel to recover the value of goods which were taken from the room of a guest, named Miroy, the plaintiff’s assignor, by a fellow guest, one Roberts, who was allowed by a chambermaid to ■enter the room. The only question presented is whether, upon the facts shown, the defendant or his servants had sufficient reason for believing that Roberts was authorized by Miroy to enter the room, or whether Roberts was in fact so authorized. It is not claimed that the chambermaid, who opened the door for Roberts at his request, was ever instructed by Miroy to admit any one to his room. The circumstances relied upon by the defendant as excusing or warranting such act on her part are as follows: She had seen Roberts in the room several times with Miroy, handling the goods in question and talking with him concerning them. Tapferwein, the head porter, had gone to the room, at the request of a man whom be supposed to be Roberts, to see Miroy concerning the purchase of one of the articles. Frost, the manager of the hotel, was told by Miroy that he had authorized Reberts to sell goods from the samples in question; but this was said in an interview held after the goods had been taken. Miroy denied having said this, which denial the justice below appears; from the memoradum decision submitted, to have overlooked. This is not important, however, because assuming that Miroy did tell Frost that he authorized Roberts to sell goods from the samples, it does not follow that he had given him authority to take away those samples, especially in view of what was done in Tapferwein’s case, in which Roberts’ only act was to bring forward an intending purchaser, and, still léss, authority to have access to his room, which contained other property besides 'the samples in question, all of which was taken. It impresses us that the whole difficulty originated in the inexcusable acts of the chambermaid. She admitted one guest to the room of another guest, because, as she said, she had seen them together there on several occasions. If that should be deemed sufficient reason for unlocking the door, no man’s goods would be safe in Ms room in an hotel unless he shunned all intercourse with his fellow guests The defendant, in the attempt to evade responsibility for this negligent act of his servant, subsequently collects and sets up in defense various facts. These facts, however, cannot be regarded as constituting a ground for her act,—for one reason, because it does not appear that she had knowledge of them; neither, as already said, do they show that Miroy had in fact authorized Roberts to enter his room.

The judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.


text:
    Nathan Fihrer, Resp’t, v. Frederick J. McKerness, App’lt.

      (New York Common Pleas, General Term,

      Filed August 22, 1895.)

    Appeal—Conflicting evidence.
    A verdict, upon conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment in favor of plaintiff.

      August L. Martin, for app’lt; Jacob Manheim, for resp’t.
   Giegerich, J.

The plaintiff, by the terms of the written-agreement made between himself and the defendants, agreed “ te do the following work on the premises 116 and 119 Greene street, and 27 and 29 West Third street, viz. to complete four skylights, made of galvanized iron No. 24, four ventilators with dampers, two gutters and leaders, and guarantee the same to be well finished, and with good material, for the sum total of $250.” The defendants paid, on account of such work and materials, the sum of $180, leaving a balance of $70, for the recovery of which this; action was brought. From the testimony of the plaintiff it appears that he complied with the conditions of the contract on his-part, that he constructed the skylight according to the directions given him, and that he used the material approved by the defendants or their representative. The testimony on the part of the defendants, on the other hand, tended to show that the plaintiff, instead of using No. 24 galvanized "iron, as called for by the contract, used an entirely different kind, known as No. 26, a kind! of iron lighter and of less power of resistance, that the skylight was so improperly constructed that it leaked, and that the plaintiff ' did not work in accordance with the defendants’ instructions. The facts were fairly submitted to the jury, which determined the conflict of testimony in plaintiff’s favor. We are satisfied from a careful examination of the evidence that it is sufficient to sustain the verdict of the jury, and we find no reason to interfere with their determination of the facts, in the absence of the elements which are requisite to review the same. The defendants’ exceptians, taken to the rulings of the court, are, in our opinion, without merit, and for the foregoing reasons we think the judgment should be affirmed, with costs.


text:
    Snow, Church & Co., App’lt, v. Alfred Schlesinger, Resp’t.

      (New York Common Pleas, Special Term,

      Filed August 22, 1895.)

    Appeal—Facts.
    The decision of a justice of the district court on the facts will not be disturbed, where no prejudice, corruption or negligence to deliberate is shown.
    Appeal from a judgment in favor of defendant

      Henry K. Davis, for app’lt; Arnold 0. Weil, for resp’t,
   Giegerich, J.

This action was upon a contract to recover $30, the subscription fee for one year to the plaintiff’s collection agency. Judgment was rendered for the defendant The printed instrument signed by the defendant, which was put in evidence, was not claimed to be the entire contract between the parties. Parol evidence of oral representations and promises, made by the soliciting agent at the time the contract of subscription was obtained, was admitted without objection. Neither was the authority of that agent to make the representations and promises disputed. On the contrary, the plaintiff’s manager himself testified that, when informed by the defendant of them, he had said in response that it was “ unusual” for the agent to make such an agreement. We think, from a careful reading of the evidence, that there was ground for the decision the trial justice reached, either in the view that the defendant had rescinded the contract upon the plaintiff’s failure to perform certain parts of the agreement, or the view that the subscription was conditional upon the defendant’s finding the services afforded by the plaintiff satisfactory after a trial from on or about the 23d day of October, 1894, to the 1st day of January, 1895, and that he had informed the plaintiff of his dissatisfaction. In either case only a question of fact was presented, and we find in the record no sufficient ground for disturbing the decision of the justice, the elements which are required to review such determination being absent. Lynes v. Hickey, 4 Misc. Rep. 522; 54 St. Rep. 120; Weiss v. Strauss, 39 St. Rep. 78. Por these reasons the '"udgment should be affirmed, with costs.


text:
    Isaac Spiero, Resp’t, v. Metropolitan Street Railway Company, App’lt.

      (New York Common Pleas, General Term,

      Filed August 22, 1895)

    1. Jurisdiction—Admission.
    By undertaking to appeal, a defendant necessarily concedes that it was properly served with process or duly appeared in the action.

      2. Appeal—Default.
    An appeal to the common pleas lies from a judgment of the district court, entered on default.
    Appeal from a judgment in favor of plaintiff.

      Henry A. Robinson, (John T. Little, of counsel), for app’lt; Louis Cohen, for resp’t.
   Giegerich, J.

This action was brought for damages to the plaintiff’s horse and truck, caused by a collision with a cable car. The summons was entitled against the Broadway & Seventh Avenue Railroad Company, but was served upon one Hasbrouck, the vice-president of the Metropolitan Street-Railway Company. The Broadway Company appeared, however, upon the return day, and filed a verified answer. It also cross-examined the plaintiff's witnesses, and otherwise took part in the proceedings at the trial, and, after the plaintiff had rested, put in evidence that the Metropolitan Company operated the road on which the accident occurred at the time of the accident. The justice then allowed the plaintiff to amend by inserting the name of the Metropolitan Company as defendant, and offered an adjournment if surprise was pleaded; and, upon motion of the Broadway Company, an adjournment was granted. Upon the adjourned day the complaint was dismissed as to the Broadway Company, and, the Metropolitan Company failing to appear, the judgment was rendered against it, from which this appeal is taken.

The appellant urges that it was not properfy brought in as a party defendant. But this claim is inconsistent with the position it has assumed as an appellant. Section 3045 of the Code of Civil Procedure, which is made applicable to appeals from district courts to this court by section 1438 of the consolidation act and section 3213 of the Code of Civil Procedure, provides that an appeal may be taken by any party aggrieved by the judgment. By undertaking to appeal, the defendant necessarily concedes that it was properly served with process, or duly appeared in the action. Otherwise, it would be a stranger to the action, and without standing to appeal (Tracy v. Bank, 37 N. Y. 523; People v. Lynch, 54 id. 681; Watson v. Nelson, 69 id. 536; Martin v. Kanouse, 2 Abb. Pr. 390; E. B. v. E. C. B., 28 Barb. 299); and the court, under the above provision of section 3045, would be without jurisdiction to entertain the appeal. We see no wray, therefore, of treating this appeal except as one from a judgment entered by default. The respondent’s contention that no appeal lies from such a judgment is mistaken, so far as concerns appeals from district courts to this court (Hurry v. Coffin, 11 Duly, 180, and cases cited); and if the plaintiff’s proof of his claim had been insufficient a reversal should result. Hurry v. Coffin, supra. But the evidence adduced upon the trail established prima facie a cause of action for the amount recovered.

The judgment must be affirmed, with costs.


text:
    Roman Syuchar, Resp’t, v. Workingmen’s Co-operative Association, App’lt.

      (New York Common Pleas, General Term,

      Filed August 22, 1895.)

    1. Insurance—Benevolent society—Constitution.
    The constitution of a benevolent society, on the issue of notice and proof qf a claim in an action against it on a contract of insurance, is relevant and material.
    ■2. Same.
    As between such society and a member thereof, Its constitution, though not printed and distributed among the members, is controlling where the presumption that they are cognizant of its terms is not rebutted but is strengthened by the fact that it was always accessible to them.
    Appeal from a judgment for plaintiff.

      W. B. Donihee, for app’it; Horace G. SJcelly, for resp’t.
   Giegerich, J.

Without touching upon the other points in the case, we find it necessary to reverse this judgment for error in the exclusion of evidence offered by the defendant. The action was brought upon a contract of insurance against disability occasioned through sickness; by the terms of which the defendant, a benevolent society, agreed to pay certain sums to the plaintiff, one of its members, should he become disabled under the circumstances specified. Upon the issue of notice and proof of claim the defendant offered in evidence a document, which, according to the uncontradicted testimony of the defendant’s secretary, was the original constitution of the association, sealed with its seal, and signed by its president and secretary. Also from the proof adduced as foundation for the offer it appeared that access to this purported constitution was accorded the members of the society at its office, bnt that it did not exist in printed form. The justice below refused to receive the document in evidence, under exception, and this ruling we must hold to have been erroneous. Belevant and material the evidence certainly was. Even without intrinsic reference to the constitution made in the policy of insurance, such instrument, if shown to be in existence, controls, may supplement, and is presumed to be understood as an integral part of, the contract itself when made between a benevolent institution and its member. Supreme Commandery Knights Golden Rule v. Ainsworth, 46 Am. Rep. 332; May, Ins. § 552; ISTibl. Mut. Ben. So. § 166. But here there was a direct reference to the constitution in the policy. As to competency, the uncontradicted testimony of the defendant’s secretary, noted above, furnished ample foundation in support of the evidence offered. That the constitution was not printed and distributed to the members does not, in so far as we are advised, have bearing upon the controlling force of that instrument. Its existence being proven, as we have said, the members are presumed to be cognizant of its terms. By the record this presumption not only is unrebutted, but is materially strengthened through proof that the constitution was always accessible to the defendant’s members, and so to the plaintiff.

For these reasons the judgment should be reversed, and & new trial ordered, witli costs to the appellant to abide the event.


author: Bischoff, J.

text:
    Henry Cunningham, Resp’t, v. Louis Cohen, App’lt.

      (New York Common Pleas, General Term,

      Filed August 22, 1895).

    1. Party in interest—Assignment.
    An assignment, which transfers tine legal title, makes the assignee the real party in interest as against the obligor, though as between the assignor and assignee, it is merely colorable.
    3. Contract—Performance—Proof.
    Where a contract for advertising in three specified places is undertaken upon an agreed compensation in a certain sum per month for the complete service, it is in its nature entire, and proof of performance during the period in question, with regard to each of the localities, is essential in order to entitle the contractor to recover.
    Appeal from a judgment in favor oE plaintiff.

      John R. Bird, for app’lt; Otto Horwilz, for resp’t.
   Bischoff, J.

This action was brought to recover the sum of $176.12, alleged to be due under a contract entered into between plaintiff's assignor, Weinburg, and defendant, whereby the former agreed to advertise a certain article for the latter by affixing and maintaining signs in certain street railway cars for a period of twelve and one-half months. The rate agreed upon was $50.32 per month, the signs to be placed in “ full time ” cars as follows: New Haven, Conn., 45 cars; Worcester, Mass., 50 cars; Hart-, forn, Conn., 53 cars. Defendant duly made payment under the contract for nine months’ advertising, but at the end of that period notified plaintiff’s assignor that he considered the contract to have been broken, claiming that the advertisement had not been made as called for by its terms. Defendant at that time stated that he would make no more payments, and would hold such assignor, Weinburg, for the amount overpaid. Weinburg continued performance of the contract after receiving this notification. According to his testimony, be “ went on with the original contract. Paid no attention to that (the defendant’s letter) whatever.” Two issues appear in the case: The first as to plaintiff’s interest under the assignment of the cause of action; the second as to performance of the contract upon Weinburg’s part.

With regard to the first question, we must hold the- plaintiff to be the real party in interest, Code Civ. Pro. § 449, notwithstanding the fact that the assignment was obviously colorable under the evidence. This instrument worked a legal transfer,.as against the assignor, giving plaintiff title to the demand, and was not to be questioned by the defendant. Sheridan v. Mayor, etc., 68 N. Y. 30; Redford v. Sherman, 68 Hun, 317; 52 St. Rep. 98.

Upon the remaining issue, however, we take the weight of the evidence to be with the defendant. The contract was in its nature entire, the advertising in the three places noted being undertaken upon an agreed compensation in a sum certain per month for the complete service. See Dauchy v. Tutt, 19 Wkly. Dig. 490; Hazzard v. Hoxie, 58 Hun, 417; 25 St. Rep. 50. Hence, proof of performance of the contract during the period in question, with regard to each of these localities, was essential in order that the plaintiff might recover. Plaintiff’s assignor did not in any way rely upon defendant’s refusal to complete the contract for the purpose of justifying failure of further performance upon his part. His testimony is that defendant’s statements as to this were wholly disregarded. Thus the fact of defendant’s refusal raises no question as to plaintiff’s burden of showing performance. Gray v. Green, 9 Hun, 334. Nor can there be any question as to “ future profits.” Dillon v. Anderson 43 N. Y. 237. Plaintiff’s assignor not only was not prevented from performing the contract, but did undertake to perform it in full, and upon that performance is this action based. Bearing in mind the entirety of the contract, we cannot support the recovery upon the evidence. As to the advertisments in New Haven and Worcester, it may perhaps be said that a sufficient number of cars “in daily use” were fitted with with the signs as agreed. The proof with regard to the advertisment in Hartford; however, does not show a compliance with the contract in such a degree as to overcome defendant’s positive evidence that not more than twenty-seven cars operated in that city were so fitted. For the plaintiff it was shown that signs had been placed in ninety-nine cars in such city, but the witness who alone testified to this fact was unable to state that these cars were actually in use. While the record is not clear as to what the term “full-time cars” might mean in every instance, it is but reasonable to assume that the parties intended something by the words used; at least, that the cars in question should, be actually operated by the railway company, in order that the advertising signs might be placed in some degree before the public. We cannot say that the plaintiff’s proof sufficiently discloses the fact of performance in this regard, so far as to overbear the evidence adduced by the defendant.

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


text:
    John Boyce Smith, App’lt, v. Vincenzo Caputo, Resp’t.

      (New York Common Pleas, General Term,

      Filed August 22, 1895.)

    Lease—Pkoof.
    The evidence was held insufficient to establish a lease between the parties.
    Appeal from a judgment in favor of the defendant.

      Chas. A. Runic, for app’lt; William TS. Ooolc, for resp’t.
   Bischoff, J.

The sole issue litigated upon the trial in this proceeding was as to the existence of an oral agreement of lease for one year of premises No. 197i Worth street. The respondent, Caputo, had been in possession of the premises Nos. 197 and 1974 Worth street, as undertenant of one Moriarty, whose lease from the original owners of the property expired May 1, 1895, after which date the appellant claimed that Caputo unlawfully held possession of No. 1974- No question was raised with regard to his possession of No. 197. On behalf of the respondent it was shown that one James Z. Smith promised him a lease of “the house,” at a rental of $80 a month, “when he (Smith) got his deed.” As a matter of fact, James Z. Smith never obtained a deed of the property, it having been sold to the appellant at auction, and the latter thereafter took title. Moreover, there was no proof of agency in James Z. Smith to make any contract of lease for the appellant; hence, no question of estoppel, as relied upon by the respondent, appears in the case. The only evidence in this regard was that the appellant and James Z. Smith were “connected in business.” This, of course, was no sufficient proof of a general agency. No subsequent ratification by the appellant is predicable of James Z. Smith’s acts, since it does not appear that the latter assumed to act for the former. Kirchner v. Schmid, 7 Misc. Rep. 455, 460; 25 N. Y. Supp. 85. The remaining evidence in support of the defense was that after the appellant took title he personally agreed to give “the lease” at $80 a month, and at that time, in the respondent’s presence, drew a lease of the premises No. 197 Worth street, which lease the respondent took away with him for examination. That instrument was never executed by either party, and furthermore, was repudiated by the respondent because it does not embrace the premises 1974- It thus appears that there was a complete failure of proof that the appellant at any time agreed to lease the premises in such—1974 Worth street—to the respondent. The respondent failed to show that these premises were in the contemplation of both parties, and the appellant’s understanding was clearly set forth in the written proposed lease, drawn at the time of the alleged oral agreement. The aggregation meyitium essential' to a valid contract was conspicuously wanting. Final order reversed, and new trial ordered, with costs to the appellant to abide the event


author: Per Curiam.

text:
    P. Morgenstern Company, App’lt, v. Vienna Pressed Yeast Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed August 22, 1895.)

    Appeal from a judgment in favor of defendant

      Frank J. Dupignac, for app’lt; T. Clement Campbell, for resp’t
   Per Curiam.

Plaintiff’s Exhibit A is not iucluded in the return. A reargument must therefore be had, pending which the record should be amended by supplying the missing letter.


author: _ Haight, J.

text:
    Edwin Gomez et al., App’lts, v. Horatio Gomez, as Trustee, etc.; Edward Tracy et al., Resp’ts.

      (Court of Appeals,

      Filed October 8, 1895.)

    1. Tbtjst—Tbtjstee—Renewal of lease.
    The trustee in a deed of land, deeded in trust to rent and pay over the rents, and, on the happening of a certain event, to deed in fee, where such land is subject to the right of a third person to the renewal of a lease thereon, may be compelled to execute the renewal lease.
    2. Same.
    Where a deed is given in trust to pay the rents of the premises to the life tenant, and to convey the premises to such persons as such life tenant might by will appoint, or, in default of such appointment, to the issue of such life tenant, the trustee cannot provide in a lease for a renewal thereof after the death of such life tenant.
    3. Same.
    In such case, the court of .chancery had power, under sections 170,175 of 2 R. S. 194, in an action by the life tenant against all her children and the trustee, to authorize the trustee, with the approval of such life tenant, to lease the property for twenty-one years, with covenants of renewal for three successive terms of twenty-one years.
    Appeal from the final judgment of the general term of the supreme court in the first judicial department, entered upon an order, which affirmed an interlocutory judgment sustaining defendants’ demurrers to the complaint.
    The action was brought by Edwin Gomez, a son of Hetty Gomez, deceased, and his four children, against Horatio Gomez, as trustee under the will of Hetty Gomez, and the representatives of the firm of Tracy & Bussell, tenants in possession, for an adjudication that such tenants are not entitled to a renewal for twenty-one years of certain leases; declaring that the estate of Hetty Gomez had become entitled to the possession of the leased premises, and enjoining the trustee from executing a renewal of the leases.

      Hector M. Hitchings, for app’lts; Michael H. Gardozo and Edgar J. Nathan, for trustee, resp’t; John A. Straley and Thomas McMahon, for Tracy et al., resp’ts.

       Affirming 63 St. Rep. 607.

   _ Haight, J.

The demurrers interposed were upon the ground that the complaint did not state a cause of action* It, in substance, alleges that on the 2d day of May in the year 1821, one Harmon Hendricks, being then the owner in fee of the lands in question, executed and delivered a deed of the same to Solomon L Isaacs, Uriah Hendricks and Hetty Hendricks upon the following ■ trust: “To pay over into the hands of Hetty Hendricks, at such dates and times as she might fix for the payment thereof, all the rents, issues and profits of the above bargained and described premises and to convey the said premises by a full and sufficient conveyance in law to such persons as she, the said Hetty Hendricks, might in and by her last will and testament, or by appointment in nature thereof, nominate and appoint, and in default of such last will and testament, or appointment, then to all the lawful issue of said Hetty Hendricks then' living, as tenants in common and not as joint tenants.” Hetty Hendricks subsequently married Aaron Gomez, and on the 17 th day of May, 1831, they brought an action in the court of chancery of New York against their then living children, including the plaintiffs in this action and the trustees, in which it was adjudged and decreed that the trustees, or the survivor or survivors of them, and any trustee or trustees hereafter substituted, shall have full power, with the consent and approbation of the complainants, or the survivor of them, to be expressed by their, his or her legal execution and acknowledgment of the leases hereinafter mentioned, to make and execute valid leases of the premises, or any part thereof, for the term of twenty-one years, with covenants of renewal for several successive terms of twenty-onq years, not exceeding three such additional terms, etc., with such other covenants and upon such conditions as the trustees in their discretion shall deem proper and shall consider most advantageous to the interest of Hetty Gomez and her children. After the making of such decree the trustees, •acting upon the authority thereof, executed and delivered to one John E. Peters five leases of separate parcels ©f the lands in question- for a period of twenty-one years each, with covenants for three renewals of twenty-one years each, with an annual rent reserved of five per cent on the value of the property, to be determined by appraisal thereof at each renewal. On the 15th day of August, 1855, Hetty Gomez made her last will a.nd testament, and in February thereafter died, leaving six children her surviving, her husband having in the meantime died. Her will was duly proved and admitted to probate by the surrogate of New York county as a will of real and personal property. In it she exercised the power of appointment given her by the deed of Harmon Hendricks by directing a conveyance of the property described in the deed by the trustees therein named to Horatio Gomez, one of the • defendants herein, and Hyman N. Hart, and the survivor of them, as joint tenants and not as tenants in common, but in trust, tojpay to her husband during his life all the rents, issues and profits thereof, and then to pay the rents, issues and profits of a one-sixth part thereof to each of her surviving children, and upon the death of such child to convey the fee simple absolute to the heir at law of such child. Horatio Gomez alone qualified as such trustee. There have been two renewals of the leases. The last expired on the first day of November, 1894. The defendants, Tracy and others, as the successors of Peters, demanded another renewal of the leases, which is the third and last provided for. This action is brought to obtain an adjudication that they are not entitled as matter of law to a further renewal of the leases, and that Horatio Gomez, as trustee, etc., be enjoined and restrained from executing to them, a renewal of such leases.

It may not be important to determine whether Horatio Gomez, as trustee under the will of Hetty Gomez, has the power to execute a renewal of the leases, for if the tenants, Tracy and others, are entitled to such a renewal, this action cannot be maintained. Horatio Gomez is, however, as we have seen, the trustee appointed by the will of Hetty Gomez to carry out the trust therein created ; that trust requires him to rent the property and to pay over the rents, issues and profits thereof to her children. The trust created by the deed terminated with her death, and with the termination of the trust the powers of the trustee became extinct except to turn over and convey the trust property as in and by the deed 'they were required. ‘ Strictly speaking, Horatio Gomez may not be a survivor of or a substitute to the trustee appointed by the deed. He derives his power from the will. They derived theirs from the deed. His power commenced when theirs terminated. He takes title to the property in trust under the will, and has the control and management thereof. He takes it, however, subject to the rights acquired of other parties, and if the defendants, Tracy and others, as tenants are entitled to renewal leases, we see no reason why he may not be compelled to execute them.

The trust created by the deed being for the life of Mrs. Gomez, terminated with her death, and with her death the powers of the trustees were, as we have seen; at an end, except to turn over and convey the trust property as directed by the deed. They, therefore, had no power under the deed to thereafter i;enew leases, or in the leases executed by them to provide for the renewal of leases after her decease. In the Matter of McCaffery, 50 Hun, 371; 20 St. Rep. 5. The whole question, therefore, turns upon the decree made by the court of chancery in 1831. That decree authorized the leases in question. Had that court jurisdiction of the parties and the power to make the decree ? As we have seen, Mrs. Gomez •and her husband were complainants. The trustees under the deed and all of her then living children were defendants. All of the persons then in being having any interest in the premises, either as trustees, life tenant or remaindermen, were parties. The children were represented by a guardian ad litem. The case was referred to a master to determine whether the decree prayed for was for the benefit of the infants. So far as the proceedings are disclosed they were regular and in due form, and if the court had the power to make the decree it must be held to be valid and binding upon them. Upon this question it becomes important to first ascertain the nature of the action or proceeding. The complaint alleges that it was instituted for an adjudication of the rights of the trustees to make leases and renewals of leases for long terms of years. If this allegation is to be taken as the nature and purport of the action, the door is open for a wide field of discussion as to the power and jurisdiction of the late court of chancery, but the complaint also alleges that the decree of the court of chancery is in writing “dated and filed in the county clerk’s office of Hew York county on the 31st day of October, 1831, a copy of which is'hereto annexed, and plaintiffs -hereby refer to the same as part of this allegation of their complaint,' and as though the same was specifically and at large set out herein.” This latter allegation making the decree itself a part of the complaint, we think must be deemed to modify and explain the former allegation alluded to, and inasmuch as the petition or complaint is not before us it becomes our duty to look into the decree for the purpose of determining the nature of the action. Upon referring to the decree its purpose is quite apparent. It determines that the lease of the property was for the benefit of the infant defendants; that the trustees have leave to execute leases for the terms designated, upon such conditions as shall be approved by the father and mother of the infants; in other words, it is a decree granting leave to lease the real estate of infants and nothing more. The power to mortgage, lease or sell real estate of infants, or of any interest therein, at that time vested in the court of chancery under the express provisions of the statute. “Any infant seized of any real estate, or entitled to any term for years in lands may by his next friend, or by his guardian, apply to the court of chancery for the sale or disposition of his property.” * * * “Whenever it shall appear satisfactorily that a disposition of any part of the real estate of such infant, or of his interest in any term for years is necessary and proper either for the support and maintenance of such infant, or for his education, or that the interest of such infant requires, or will be substantially promoted by such disposition on account of any part of said property being exposed to waste and dilapidation, or on account of its being wholly unproductive, or for any other peculiar reason or circumstances, the-court may order the letting for a term of years, the sale or other disposition of such real estate or interest to be made by such guardian or guardians so appointed in such manner and with such restrictions as shall be deemed expedient.” 2 E. S. (ed. of 1827), p. 194, §§ 170, 175. The court doubtless had the power to do by action that which it was authorized to do by proceeding. The court had the power to appoint a guardian to execute the leases, but, inasmuch as the trustees under the deed had the power to lease the premises during the lifetime of Mrs. Gomez, the court saw fit to empower them to execute the lease in the place of a guardian.

The plaintiffs alleged that great injustice will be done them by a renewal of the leases, but the renewal has to be upon the basis of an annual rental of five per cent of the appraised value of the property. Possibly a better contract might now be made, but the amount of rent reserved is fair and reasonable. The defendants have erected substantial bnildings upon the property greatly improving it and thereby largely increasing the rent to the lessors and the ultimate value of the property. These buildings were doubtless erected by the tenants upon the supposition and understanding that they were entitled to a renewal of the leases. The merits seem to be with them, and, as we construe the decree of the court of chancery, there can be no doubt-as to its jurisdiction or power to grant the decree in question. Under the deed the infants were conditional remaindermen. They took the fee, subject to the power of appointment by Mrs. Gomez. They, at that time, had an interest which they, if adults, had the power to lease or convey. Being infants, the court could exercise that power for them. Upon the execution of the power of appointment by Mrs. Gomez, given by the deed, they were deprived of their interest as remaindermen, but they were given another and different interest in the premises. This, however, they take under her will and subject to all of the burdens and conditions imposed by her. She joined in the execution of the leases which became binding upon her and her estate. The provisions of the trust created by the deed were fully executed, and we discover nothing in the proceedings had that is any violation of the terms of the provisions of that trust

The "judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Gray, J.

text:
    William E. Demarest, App’lt, v. Mayor, Aldermen and Commonalty of the City of New York, Resp’t.

      (Court of Appeals,

      Filed October 8, 1895.)

    1. Constitutional—Statute. •
    The constitutionality of an act of the legislature should not be passed upon by the court, until a case arises in which a decision of such a question is unavoidable for the determination of the case itself.
    2. Officers—De facto—Salary.
    Payment to a defacto officer, while he is holding an office and discharging its duties, is a defense to an action brought by the de jure officer to recover the same salary.
    3. Same—Act of 1873.
    As the elective office of alderman already existed, and was hot created by the act of 1873, the fact that such office was actually assumed under such act by persons other than the plaintiff and his assignors who claim to have been elected aldermen pursuant to a prior act, rendered such incumbents defaeto officers, even though the provisions of the act of 1873, regulating their compensation and mode of election, might have been unconstitutional. ,
    Appeal from judgment of the general term of the supreme court in the first judicial department, which affirmed a judgment in favor of defendant, entered upon an order dismissing the complaint on trial at circuit.

      George W. Miller, Seaman Miller ■ and George G. EHidge, for app’lt; David J. Dean, for resp’t,

      Affirming 51 St. Rep, 211.

   Gray, J.

The plaintiff brings this action for himself and as assignee of others to recover the salaries alleged to be due them, as aldermen of the city of New York for the year 1877. The claim is that they were elected to such offices pursuant to the act of the legislature, contained in chapter 137 of the Laws of 1870, as amended by chapter 574 of the Laws of 1871; which provided for the election, upon a general ticket from the city at large, of a board of fifteen aldermen. The defense of the city is those laws were repealed by chapter 335 of the Laws of 1873 and, further, that pursuant to the latter act, which contained a charter for the city, other persons were duly elected as aldermen, at the election at which the plaintiff and his associates claimed to have been elected; who entered upon and executed the duties pertaining to the office of an alderman of the city, and were paid the salaries claimed by the plaintiff.

When the action came on for trial no evidence was given. The whole case was agreed to be contained in the pleadings; it being expressly admitted by the plaintiff that the salaries claimed by the plaintiff in the complaint had been paid by the city to other persons, assuming to have been elected and who acted as a board of aldermen under the charter of 1873. The complaint was thereupon dismissed by the court, upon the motion of the defendant.

Section 4 of chapter 835 of the Laws of 1873 provided for a system of minority representation in the board of aldermen of the city of New York, by restraining the right of a voter to vote for all the aldermen to be elected. It is unimportant to more particularly refer to the provisions of the section, as the system was, not long thereafter, abolished. Chap. 403, Laws of 1882. The plaintiff’s propositions are that those provisions were unconstitm tional and void, for being in violation of that part-of the Constitution of the state,-which guarantees to every qualified voter the right to vote for all officers that may be elected by the people (art 2, sec. 1), and that the acts of 1870 and 1871 remained in force; under whose provisions he and his associates were elected and became the legally constituted board of aldermen and, as such, were entitled to their salaries. The determination of the question of constitutionality, however, is not necessary to the deerrnination of the case, and, as the ground upon which the decision of the general term of the supreme court has been placed is clearly presented in the case and is perfectly tenable, our judgment may and should rest upon it We should not pass upon the constitutionality of a statute, if the question is immaterial to the case. Frees v. Ford, 6 N. Y. 176. It is a salutary principle and founded upon the respect due to the legislative department of the government, that the constitutionality of its exercise of power should not be passed upon by the court, until a case arises in which a decision of such a question is unavoidable for the determination of the case itself.

This action is to recover the salaries of the plaintiff and his associates as aldermen of the city for the year mentioned and, if we should assume all they claim as to the unconstitutionality of the provisions of the fourth section of the charter of 1873 and the validity of their election and that they were de jure aldermanic officers, there is the answer that others assumed to have been elected, received their certificates of election, were inducted into and occupied the office, exercised its duties and, as officers de facto, were paid salaries. That is a complete answer and one. which has the sanction of the authorities. Their title cannot be questioned collaterally in such an action and, even were the action of such a nature as to permit the question, the payment already made to the de facto officers of the salary belonging to the office would be a good defense to the claim of the plaintiff. The case of Dolan v. The Mayor, 68 N. Y. 274, where this- principle was asserted, was rested upon the ground of public policy, which requires that fiscal officers, charged with the payment of salaries, should be deemed justified in paying them to persons clothed with the apparent title to an office, without inquiring whether others have the better right. The remedy, it was said, of the person wrongfully deprived of the office is to recover damages for the wrong against the usurper. In McVeany v. The Mayor, 80 N. Y. 185, and in Terhune v. The Mayor 88 id. 247, the doctrine was upheld that payment to a de facto officer, while he is holding the office and discharging its duties, is a defense to an action brought by the dejure officer to recover the same salary. It is unnecessary for us to reason, now, upon a doctrine which has so often been discussed in the cases. Offices are created for the benefit of the public and the title of their incumbents is not to be inquired into except in some way prescribed by law. Their acts will not be invalidated, nor official dealings with them be affected, by reason of some illegality in their election not judicially declared.

The appellant, however, undertakes to meet this phase of the matter by the suggestion that if section four of the~acts of 1873 was unconstitutional and void, no legal office of alderman was ' created by its provisions and, therefore, there could not be either a dejure or a de facto incumbent thereof. But that office as a part of the local government existed by law and was not created by the act of 1873. In the case of Norton v. Shelby County, 118 U. S. 441, relied upon by the appellant, it was held that as the act attempting to create the office never became a law, the office never came into existence. A board of commissioners Was provided for to take the place of the county court of Shelby county and commissioners were appointed to take the place of justices of the peace ■and because the constitution did not permit this to be done, it was .adjudged that the act was void; and it followed that the office never legally existed. That was not this case. Here the office of alderman always existed and the legislative intent, as evidenced in the act of 1873, was to introduce the experiment of minority representation in the municipal government. The provision of that act, in question, did not, as in the Shelby County case, attempt to create an office, where none before existed. Unless the office did exist by law, how could the plaintiff and his associates base their present claim to have been elected to it ? This very demaiid and suit are an ample concession that aldermanie offices existed to be filled. The plaintiff’s position is that the law of 1873 was void and that, although so expressed in terms, it was ineffectual to even accomplish the repeal of the previous acts of 1870 and 1871, under which they claimed to have been elected. But, if by existing provisions of law there were the offices of aldermen to be filled by election, then the fact is that they were assumed by other persons, claiming to have been elected, and though the provisions of law regulating the composition of the board and the mode of election thereto and under which they entered into office, might be unconstitutional, that would not affect the existence of the office. They would, though ursurpers, be de facto officers, exercising the particular governmental duties incident to the office usurped.

The judgment appealed from should be affirmed, with costs.

All concur.

Judgment affirmed.


author: O’Brien, J.

text:
    The People, Resp’t, v. Thomas Kerrigan, App’lt.

      (Court of Appeals,

      Filed October 8, 1895.)

    1. Appeals—Court op appeals. '
    The court of appeals has power, in a capital case, to review the facts and to grant a new trial when satisfied that the accused has not had a fair trial, or when injustice has been done, but it must observe the rules and principles which apply to all tribunals exercising appellate jurisdiction.
    2. Same.
    When the jury has once determined, upon evidence which is sufficient, even though capable of diverse or opposing inferences, the questions of fact, the court of appeals has no more right than the trial court to substitute its own judgment in the place of that of the jury or to usurp its legitimate functions.
    3. Murder—Precedent quarrel—Question for jury.
    Though the language and conduct of the deceased provoke the original qnarrel, yet, if after the difficulty has terminated, the defendant returns to renew it and, instead of avoiding further trouble, deliberately seeks out the deceased and shoots him, the law holds the defendant responsible for his act, so long as there were time and opportunity for reason to assume-its sway and the passions to cool ; and it is a question for the determination of the jury whether sufficient time had elapsed for the excited passions of the defendant to cool.
    Appeal from, judgment of the court of oyer and terminer of the county of New York, entered upon a verdict, convicting defendant of the crime of murder in the first degree.

      Andrew D. Parker, for app’lt; JohnD. Lindsay, for resp’t.
   O’Brien, J.

The defendant was convicted of the murder of one Aaron Alexander in a saloon in Rivington street in the city of New York on the night of April 3, 1894 That the deceased died from the effects of a pistol shot, fired by the defendant at the time and place above mentioned, is not disputed, the only question being whether the other -elements of intent, deliberation and premeditation necessary to constitute the crime were sufficiently established. It appears from the testimony that the deceased was a strong, powerful man, who was disposed to be quarrelsome, and who actually had some quarrel or dispute with thqdefendant about a week before the homicide. The particulars of this difficulty do not distinctly appear, and they are material only so far as they tend to show that on the night of the homicide the deceased.and the defendant met in the saloon under the influence of those feelings and passions which had been incited by a previous quarrel or serious disagreement. It appears that the deceased, the defendant and several other persons, who associated more or. less with them, were in the habit of meeting at this saloon in the evening for the purpose of drinking and card playing, and, on the evening of the homicide, were all together at an early hour. The immediate cause of the difficulty which preceded the shooting was what the deceased evidently took to be a slight offered him by the defendant It appears that the deceased, the defendant and five other persons were in the bar room of the saloon on the night m question, and the defendant asked the five other persons to drink beer with him, ignoring the deceased, who immediately took offense and called the defendant offensive and vulgar names, and finally struck him in the face and upon the nose, causing the blood to flow. There is some conflict in the testimony of the witnesses as to what actually took place and was said by both parties at this stage of the quarrel. They all agree, however, substantially, that the defendant received from the deceased one or more severe blows in the face with the fist or, as some of them say, with a beer glass which was held in the hand, and that after this occurred the defendant went into a closet adjoining the bar room, washed the blood from his face, and then passed through the barroom out into the street, through the door. After the lapse of a period of time which is variously described ' by the witnesses as from five to fifteen minutes, he returned, found the deceased still in the bar room, and pointing a pistol at him fired while the deceased was attempting to escape from him behind the bar. The bullet entered the body of the deceased near the right hip, passed through the pelvis and came out in front, inflicting a wound from which he died soon after.

One of the police officers, who had the defendant in charge after the shooting, testified in substance that the defendant confessed to him that after the qurrrel in the saloon and after the defendant had washed the blood from his face, he went directly to his house, which was about two blocks distant, and there procured the revolver and then returned to the saloon and fired the fatal shot at the deceased.

The defendant was the principal witness in his own behalf. He denied that he made any such admissions to the police, swore that he found the pistol in the street in the month of October previous, and that he carried it constantly from that time, and had it in his pocket when the alteration took place in the saloon, resulting in the blow from the deceased. That upon entering the saloon the second time he took it from his pocket intending only to frighten the deceased. That one of the bystanders, having seized him by the wrist, the pistol was accidentally discharged and in that way the wound was inflicted which produced the death of the deceased, without any intent to kill on the part of the defendant.

The case was submitted to the jury upon the evidence under a careful charge, and the verdict of conviction must be taken as conclusively establishing the facts against the defendant’s contention. The defendant’s version of the transaction, which, upon its face, was extremely improbable, was discredited and wholly rejected by the jury, and that given by the witnesses for the People has been adopted.

While this court has the power in a capital case to review the facts and to grant a new trial when satisfied that the accused has not had a fair trial, or when injustice has been done, it must observe the rules and principles which apply to all tribunals exercising appellate jurisdiction. It is the province of the jury to determine questions of fact, depending upon evidence in any degree conflicting, and to declare by their verdict what the truth is, and when once determined, upon evidence which is sufficient, even though capable of diverse or opposing inferences, this court has no more right than the trial court to substitute its own judgment in the place of that of the jury, or to usurp its legitimate functions.

The jury must be satisfied of the guilt of the accused beyond a reasonable doubt, and where a conviction has been had in a capital case upon conflicting evidence, this court may undoubtedly grant a new trial when convinced, upon a review of the whole evidence, that the conclusion of the jury was not reasonably possible, or that the proof does not come up to the required standard, or l’or any other reason injustice has been done. People v. Cignarale 110 N. Y. 23; 16 St. Rep. 155.

According to the settled rules adopted and followed by this court for the review of case of this character, nothing appears on the record that would justify us in interfering with the finding of the jury.

The learned counsel for the defendant does not rest the appeal upon the ground that the shooting was the result of accident. That was the theory of the defendant himself when on the witness-stand. It would be manifestly impossible for any appellate court to give any weight to a theory so improbable after it had been discredited by the verdict of the jury.

The argument now submitted for the defendant suggests that, the homicide was not committed with the deliberation and premeditation which is an essential element of the crime of murder in the first degree. It is quite possible that if the defendant had fired the fatal shot while resisting the assault upon him by the deceased,' or at the moment that he had received the blow in the face, that the degree of criminal responsibility would be changed. But the jury have found that, whoever was the aggressor originally, the quarrel had ended, the parties had separated, that the defendant had no cause to apprehend further danger, and that when he returned, after the lapse of sufficient time for the passions to-cool, and without any new provocation, fired at the deceased, there-existed in his mind a deliberate and premediated design to effect his death. If it be conceded that the original quarrel was provoked by the deceased, and that the defendant was abused and assaulted as claimed, still the shooting was wholly unjustifiable. There being no longer any reason for the defendant to apprehend any bodily injury, his act in killing the deceased in the manner described by the witnesses for the People was murder within all the cases, and it was cléarly a question of fact for the determination of the jury whether sufficient time had elapsed for the excited-passions of the defendant to cool. Shorter v. People, 2 N. Y. 193; People v. Sullivan, 7 id. 396; People v. Kelly, 113 id. 647; 22 St. Rep. 969; People v. Carlton, 115 N. Y. 618: 26 St. Rep. 434.

It may be true that the defendant left the saloon, procured, the pistol, returned and fired the fatal shot while smarting and angered by reason of the insults and blows of the deceased, but these facts constitute in law no excuse or justification for the killing. So long as there was time and opportunity for reason to-assume its sway and the passions to cool the law holds the defendant responsible for his acts. It may be that the language and conduct of the deceased provoked the original quarrel in the saloon, but after that difficulty had terminated the defendant returned to renew it, and, instead of avoiding further trouble, as was his duty, deliberately sought out the deceased and shot him, as the jury found from motives of revenge. It is not now within the province of the court to disturb the verdict of the jury on the ground that the deceased was the aggressor in the beginning. The courts, in the administration of criminal justice, are bound by settled legal rules. If the effort and operation should be mitigated in a particular case by reason of special facts or circumstances, that power rests with the executive department of the government and not with the judicial tribunals. There are some features of this case that deserve, and doubtless will receive, careful consideration in that department. People v. Fish, 125 N. Y. 186; 84 St. Rep. 840.

There are no other questions disclosed by the record that call for further discussion, or that would justify a new trial, and the judgment of conviction must, therefore, be afljrmed.

All concur.

Judgment affirmed.


author: Bartlett, J.

text:
    David McClure, as Temporary Receiver, etc., Resp’t, v. Louis P. Levy, App’lt.

      (Court of Appeals,

      Filed October 8, 1895.)

    Corporations—Officers—Appropriation of assets.
    Where the president purchases of the corporation its non-negotiable notes,- with knowledge that the consideration therefor is illegal and the corparation insolvent, and afterwards procures the adoption by the board of directors of a resolution authorizing the payment of such notes, and, upon obtaining a check therefor, resigns his office, he is liable for the amount so received, as having been obtained by fraud.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court, and also affirmed an order denying defendant’s motion for a new trial.

      Edward Browne, for app’lt; Frederick Geller and Bobert B. lurner, for resp’t.

       Affirming 60 St. Rep. 565.

   Bartlett, J.

This is an appeal from a judgment and order of the general term, first department, affirming judgment on a directed verdict for plaintiff and affirming order denying motion for a new trial.

The plaintiff, as receiver of the Life Union, an insolvent insurance company conducted on the assessment plan, sued to recover of defendant .the sum of $10,141.06 of the funds of the company alleged to have been embezzled and converted by him while its president.

At the close of the evidence each party asked for a directed verdict, so that the facts most favorable to the -laintiff must be taken as proved.

It appears that early in 1891 the affairs of the Life Union were in an unsatisfactory condition, the membership was falling off, and it was deemed essential that something should be done to enlarge and extend its business.

A special meeting of the directors was called for April 10, 1891, at which it was resolved, after reciting that an opportunity presented “of securing the Flour City Life Association of Rochester, N. Y., for the sum of $40,000,” that such purchase should be made, and to effect it the Life Union should execute its notes for $35,000, at six per cent, in amounts not less than $1,000 each, payable on or before twenty-four months after date, in form as follows:

New York,' April 13th, 1891.
“$1,000.00.
“On'or before twenty-four months afterdate the Life Union promises to pay to the order of One Thousand Dollars, at its office in the city of New York, from such portion •of the income of said the Life Union as may be properly applicable tlierto, with interest. Value received.”

Eleven of these notes were subscribed for by directors, the proceeds placed in the hands of J. T. Baldwin, then the president of the Life Union, as trustee for the noteholders, who paid same to one Charles F. Underhill, president of the Flour City Life Association, who surrendered to Baldwin a power of attorney and proxies from the members of his board of directors, which transaction was supposed, or pretended would, by reason of resignations of officers and directors and the election of others, give full control of the Flour City Life Association to the Life Union, and transfer to the latter the membership, property and business of the former.

Soon after this attempted transfer, which was neither consolidation nor re-insurance, the insurance department instituted judicial proceedings against the Flour City Life Association, which resulted in its dissolution.

The effect of this transaction by the directors of the Life Union can be best described by quoting from a circular issued by the executive committee of the Life Union, dated February 27, 1892, and read in evidence. The circular states : “ The $35,000 notes given by the Life Union were especially printed contract notes payable out of the expense funds derived from the transferred membership of the Flour City. No such transfer took place. 'Therefore, the consideration having failed, the notes are worthless. The directors have lost $11,000. The company has lost nothing."

It thus appears that there was a complete failure of consideration as to the notes in question, and that they were payable out of a fund to be derived from the transferred membership of the Fiour City Life Association, which transfer never took place.

The statement that the loss had fallen upon the directors and not the company proves to have been inaccurate.

This brings us to the consideration of defendants connection with the case.

Soon after the circular referred to was issued, and about May 1892, the defendant became the president of the Life Union.

William H. Law, who was defendant’s predecessor as president, was sworn at the trial, and his evidence stands uncontradicted by the defendant, who failed to take the stand in his own behalf.

Law swears that between February and April, 1892, the defendant received the eleven notes in question from him or his associate and paid for the same $12,000, being their face value and a compromise on the balance of interest which was not figured ; he was unable to give the month of the transfer, and could not tell what portion was paid in cash aud what amount in check, but thought the greater part was paid in bills. It may be remarked in passing as somewhat peculiar defendant should have paid considerably more interest than had accrued on the notes. Law calls this -transaction a compromise as to the interest.

When pressed on cross-examination Law would not admit in terms that it was agreed between him and defendant, who was not then president of the Life Union, that the payment of the $12,000 was in consideration not only-of the transfer of the notes but of his resignation as president and director in order to let defendant assume these positions.

He was then asked this question :

“ Did you not know the agreement provided for the payment of fourteen thousand dollars to Moody upon the resignation of certain directors, including yourself, and the turning over of the absolute control of the company to Levy ” (this defendant) ?

To this he made answer in part as follows, viz.:

“ I cannot say I did. I will not say I did not. * * * So far as I am aware Mr. Levy never would have paid for the notes if it had not been coupled with the resignation. He would not have got the resignation without paying for the notes. * * * I represented to him the status of those notes, and good money had been paid for them on behalf of the Life Union. I neither represented to him they were good or bad. I stated the circumstances of the issue to them, and it was for him to determine whether they were good or bad.”

The defendant is thus shown to have taken the notes with full knowledge of the circumstances surrounding their issue, and he is also placed in the peculiar position of buying the paper of a company manifesting signs of financial trouble and paying more than its face value, with interest, in order to gain control of its affairs.

After acquiring the notes the defendant was made president, of the company about May, 1892, as stated, and the next material event brings us to the 27th day of December, 1892, a few days before this unfortunate corporation passed into the hands of a receiver on January 12th, 1893.

A meeting of the board of directors was held after the hour of noon December 27th, 1892, at which the following resolution was passed, viz. :

“ Resolved, it being apparent from notes presented, that Mr. Louis P. Levy has taken up notes to the amount of eleven thousand ($11,000) dollars, drawn by the company, we hereby authorize our officers to draw upon our reserve fund to pay such notes, with interest.”

Between ten and twelve o’clock in the forenoon of the day when this resolution was passed, and before the directors’ meeting was held, the defendant, then being president of the company, directed the secretary to draw a check for the sum of $10,141.06 on the National Park Bank of New York, payable tó the order of cash, for all the reserve fund in that bank; the check was drawn, handed to defendant and duly certified that same day, and after-wards deposited, indorsed by defendant, and paid to him. The secretary swears he asked how to charge the matter in the cash book and was told by defendant he would tell him later, which he never did.

So that at the time the resolution was passed the defendant was in actual possession of the check.

The check was signed by defendant as president.

In view of the situation disclosed the question presents, whether the defendant was authorized to withdraw from the funds of the Life Union the amount represented by the check?

It is too clear for argument that the proposed scheme for the Life Union to “ purchase ” the Flour City Life Association was neither consolidated nor re-insurance, was illegal and ultra vires, and the notes given to carry out the arrangement by the officers of the Life Union were without the authority of law and absolutely void.

It also appears from the facts already commented upon, that the defendant is not a bona fide holder of these notes, but took the same with the full knowledge of all the circumstances surrounding their issue and stands in no better position than .the óriginal payee.

In addition to this, the defendant was given full notice by the face of the notes that they were not negotiable paper under the law merchant, being payable from such portion of the income of the Life Union as might be properly applicable thereto.

The circular in evidence, and already referred to, shows that the notes were payable out of a fund to be derived from the transferred membership of the Flour City Life Association, a transfer that was never consummated and a fund which never existed.

The resolution authorizing the payment of these notes directed the officers to draw upon the reserve fund.

It was a matter of dispute at the trial whether the funds in the National Park Bank were reserve funds or not. It does appear that a portion of the moneys in this bank were a part of the reserve fuud.

The question of the reserve fund, however, is not necessarily controlling; while we think the evidence warrants the conclusion that there was an unauthorized interference with the reserve fund, which the law provides shall be held for the benefit and protection of members (Laws 1892, ch. 690, sec. 205), we are also of opinion that payment of the check in question out of the general funds of the company was equally unauthorized under the circumstances.

It is impossible to escape the conviction that the defendant fraudulently obtained possession of this money on the eve of his resignation as president and with a full knowledge of the worthlessness of the notes and that the Life Union could no longer continue in business, being hopelessly insolvent.

The appellant’s counsel points out various ruliugs at the trial as constituting legal error, .but, after a careful examination, we think the learned trial justice made a proper disposition of the case.

The judgment and order appealed from should be affirmed,, with costs.

All concur.

Judgment and order affirmed.