text:
    The People, Resp’ts, v. Theus Taylor, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    1. Criminal trial—Evidence—Foundation necessary for admission OF STATEMENTS OF WITNESS CONTRADICTORY TO THOSE MADE BY HIM UPON THE TRIAL.
    The attention of the witness must be called to the time, place and particular language of an oral declaration, before it can be proved to impeach, statements made by him contradictory thereto upon the trial, but as regards the introduction of written statements for that purpose, it is sufficient that the witness is shown the paper itself, and admitted that he signed it, and that he knew its contents.
    3. Same—Improper rejection of.
    In a criminal prosecution, which resulted in the conviction of the defendant of manslaughter in the second degree, a witness called by the people was asked if he did not, before the coroner’s jury, give an answer to a question contradictory to that given on the trial, and on replying that he did not, he was shown his examination before the coroner, and admitted that the signature thereto was his own. Held, that the examination, was improperly rejected as evidence.
    3. Same—New trial.
    On an appeal from the conviction, Held, that the deposition before the coroner, not being returned to the court, it could not be said that its rejection did not prejudice the respondent, and there should be a new trial.

      J. Fleming, for the people; A. M. Weller, for app’lt.
   Barnard, P. J.

The appellant was convicted of manslaughter in the second degree. It was proven upon the-part of the People that the deceased, one Gilmore, solicited the appellant to shoot at a tin tomato can placed upon his, Gilmore’s, head. Taylor did so and succeeded in perforating the can twice. He was urged by Gilmore to try the-' experiment once more and Gilmore was shot through the-head and killed.

It appeared further in evidence that there had been several instances of the use of the pistol on the same day involving-risk to Gilmore, if there had been any uncertain aim or unsteadiness of nerve, when there had been no evil result. Taylor was a celebrated shot and was so known to be by Gilmore. They were warm friends and on the day in question Gilmore seems to have been exhibiting Taylor’s accomplishments as an expert with the pistol. The people called one Abrams as a witness to the firing and consequent-death of Gilmore. On the last occasion he testified to the facts tending to show the death of Gilmore as the result of the shot made by Taylor. He was asked if Gilmore at the shot did not raise his head, and replied that he did not know. He was then asked if he did not so testify before the coroner’s jury and replied that he did not.

He was shown his examination before the coroner and he testified that the signature to it was his. The testimony of the witness before the coroner was then offered and refused on the ground that the attention of the witness must be first called to anything in it.

This was erroneous, “As to oral declarations the attention of the witness must be called to the time and place- and particular language used in order that he may recall the circumstances and make an intelligent answer, but as to written statements this is unnecessary when the witness is shown the paper itself and admits that he made or signed it and knew its contents.” Romertze v. East River National Bank, 49 N. Y., 577.

The deposition was not returned and the court held that it could not say that the appellant in that case might not have been prejudiced by its rejection.

It is not returned in this case and the rule ought to be held more strongly in a criminal case in favor of a possible prejudice to the respondent by the rejection of the paper. The deposition was again offered at the close of the case as an impeachment of the witness Abrams and rejected.

The error was not cured by the question put to the witness after the first rejection of the paper. Only a part of the question was answered and that was immaterial to the subject of the inquiry in respect to a variance between the statements of the witness. A part of the question supposed, to be taken from the examination did not tend to impeach the witness. There was an added inquiry as to the attention of the appellant to the deceased, and the sole reply was that when the deceased was shot the accused was the first, man to him.

The theory of the defense was that the act was not culpably negligent in firing the shot.

If the deceased at the instant of the shot, changed his position, the fact was a material one for the jury. The skill of the appellant may have been so infallible that it was not such act as would support a verdict of manslaughter, when the death was occasioned by the unexpected change of position of the deceased.

Until the discrepancy can be seen the error is an apparent' one, when the appearance and legal inference may not be justified on a new trial.

Under the rule, however, there should be a new trial.

Pratt and Dykman, JJ., concur.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    William H. Catlin, Resp’t, v. Pond, Sheriff, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Arrest—Illegal—Restitution no bar to action for damages.
    The restitution, by the sheriff of the money coerced from the plaintiff by an illegal arrest, is no bar to an action for damages.
   Pratt, J.

Whether the execution against the person was justified in the original action is not now the subject of discussion, for the reason that it is a pure question of law that has been passed upon by a court whose decisions are binding upon us. Further argument upon that matter should be addressed, not to us, but to the appellate court.

The restitution by the sheriff of the money coerced from the plaintiff by the illegal arrest is no bar to this action. That money was returned to this plaintiff because it was his and had never ceased to be his.

Transferring the possession to the sheriff while under duress did not change the title.- The re-transfer was in no sense “damages.”

There was no error in allowing Budd to testify to Gatlin’s indignation. Nor do we find any error in the charge. It was fairly left to the jury whether the plaintiff experienced a sense of insult and humiliation, and they were correctly instructed that if he did he should be compensated for it.

Whether the verdict should be set aside as excessive, is a matter of more doubt. We have more than once expressed our views upon the magnitude of the various verdicts rendered in this action. But the jury whose especial province it is to estimate damages have persistently disregarded our suggestions.

Whether we ought again to interfere upon this ground may be doubtful. Our conclusion, is that if the plaintiff stipulates within ten days after service of the order herein to remit $2,500 of the recovery, this verdict may stand; otherwise, new trial ordered on payment of costs by-defendant. _


author: Barnard, P. J.

text:
    Charles Staake, by Guardian, v. John C. Preble et al.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Practice — Exceptions ordered heard at general term—Code Civil Pro., § 1000.
    Unless the order sending the exceptions in a case to the general term to be heard in the first instance there be revoked they must be decided by the general term. If the party fails to appear at the general term the case may be decided against him by default as in other motions.
   Barnard, P. J.

The plaintiff was nonsuited upon the trial before Justice Bartlett and a jury, and an exception was taken by the plaintiff’s attorney to the decision of the. judge, dismissing the complaint. Upon the motion of the plaintiff’s attorney, the exception was directed to be heard in the first instance at the general term, and in the meantime the judgment was ordered to be suspended. By section 1000, Code, it is provided that the exception “must be heard upon a motion for a new trial, which must be decided by the general term.”

By the same section, it is provided that the motion for a. new trial is 1 ‘ deemed to have been made when the order was granted,” and either party may notice it for hearing at the general term upon the exception. There was then a motion for a new trial pending in the general term, which could be brought to a hearing by either party. The plaintiff was bound to prepare and serve the proper papers for the argument. This he has failed to do. The respondent has noticed the motion for the hearing deemed to be made at the circuit. He is entitled to a denial of the motion for a new trial, as well by default of the moving party as upen the argument. Unless the order sending the exception to the general term be revoked the same must be decided by the general term. If the party fails to appear at" the general term, the case may be decided against him by default, as in other motions.

Motion for a new trial denied and exception overruled, and judgment for defendant upon the decision at circuit, with costs.

Pratt and Dykman, JJ., concur.


text:
    Matter of Daniel J. McGrory, as Supervisor, Resp’t, v. James Henderson, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Public officer—Proceedings to enforce surrender of books to successor in office—R. S., Part 1, Title 6, Article 5, § 51—Affidavit TO QUASH PROCEEDINGS, § 52.
    Il is provided in regard to public officers by Revised Statutes, part 1, title 6, article 5, section 51, that: “If any person shall refuse or neglect to deliver over to his successors any hooks or papers as required by law, such successors may make complaint thereof to any justice of the supreme court upon oath and such other testimony as he shall deem proper that such books are withheld whereupon the justice shall grant the order directing the person so refusing to show cause before him why he should not be compelled to deliver up the same.” Section 53 among other things provides that. “ If the person charged with withholding such books or papers shall make affidavit before such officer that he lias truly delivered over to his successor all such books and papers in his custody or appertaining to his office within his knowledge, all further proceedings before such officer shall cease and the person complained against shall be discharged. Held, the plain requirement of the section (53), was that the person complained against should make oath before the justice, and that until he appeared before him he was not entitled to have the proceedings quashed.

      Martin J. Keough, for resp’t; H. C. Henderson, for app’lt.
   Pratt, J.

The statute upon which this proceeding was based, article 5 of title 6, part 1 of the Revised Statutes, provides a scheme for obtaining books and papers withheld from their successors by public officers. Section SI provides, 1 If any person shall refuse or neglect to deliver over to his successor any books or papers as required by law, • such successor may make complaint thereof to any justice of the supreme court upon oath, and such other testimony as he shall deem proper that such books are withheld, whereupon the justice shall grant an order directing the the person so refusing to show cause before him why he should not be compelled to deliver up the same.” Among other things, section 52 provides, “If the person charged with withholding such books or papers shall make affidavit before such officer that he has truly delivered over to his successor all such books and papers in his custody or appertaining to his office, within his knowledge, all further proceedings before such officer shall cease, and the person complained against shall be discharged.” The plain requirement of this section is that the person complained against shall make oath before such officer.

It was the duty of the justice, under the statute, to inquire into the circumstances, and the respondent was not entitled to have the proceeding quashed till he appeared before the justice and made oath before him as required by the statute. The object of the statute was to bring the person complained against into court so that some inquiry might be instituted by the officer taking the affidavit.

The affidavit of the respondent was made before a notary public, and is indefinite and evasive. In it he states that he had delivered ‘ ‘ each and every book and paper in his possession or under his control as supervisor within his knowledge in any way belonging to or pertaining to the office of supervisor of said town, and that he has not now, nor has he at any time since then had in his possession or under his control any such book or paper as is described in the moving papers herein, or any other book or paper per-taming to such office.” This statement does not meet the affidavit of the complainant as it does not deny that he had the special book called for by the complainant, he does not identify the books he gave to Briggs, and he does not swear that he delivered it to the complainant or that he filed it.

It is undoubtedly true that an affidavit made before the justice before whom the proceeding was had in the precise words of the statute would be sufficient. It is a general rule of pleading that whenever a statute gives a cause of action or defense, it is sufficient in declaring upon the pleading or statute to follow the words of the act. The objection, however, was fatal, that the affidavit was not made before the justice. It was an oath required by law to be taken before a particular officer, and hence, section 842 of the Code of Criminal Procedure did not validate the appellant’s affidavit.

The proceeding is still pending before the justice, and" the appellant is entitled to go before him and make the required affidavit. Until he does so, he is not in a position to claim that the proceeding shall be discharged.

The order adjourning the proceeding was therefore proper, and must be affirmed, with costs and disbursements.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    The People, Resp’ts, v. Charles F. Seaman, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Libel—Privileged communication—Malice a question for the jury.
    In a criminal prosecution for libel, the court having charged the jury that the communication complained of was privileged, submitted to them the question of express malice. Held, that it was a question for the jury to decide whether there existed any ill feeling between the defendant and the party against whom the communication was directed, and whether that feeling, assuming it to exist, was of such a nature as to fall within the meaning of the term malice, proper instructions as to that meaning having been given them.
   Pratt, J.

The defendant has been convicted and fined for publishing a libel upon one Edsall, who was a school district trustee of district No. 7, Spring Valley, Rockland county, in writing and sending to the superintendent of public instruction a letter relating to alleged school trouble in the district. It charges, first, that “the district is in great turmoil,” indicating that the president of the board of education (who was the said Edsall) had been attempting to interrupt the workings of the school by trying to annul a contract with one of the teachers who had been hired for a year, on the ground that the teacher had been out of the school for the greater part of one day without permission, and for three more half days when he was sick. The Utter then put the question: “Is this legal ground for the action referred to?” The letter then continued: “He (the trustee) is not through with the work in this direction yet; he thinks, and with good faith, that he can get one or more trustees to act with him, and he then can succeed. Said trustee, it has been discovered, is either a bigamist or else is living with a woman not his wife, by whom he has had five children. He was discharged from the police force of New York city for taking bribes, and graver charges were presented, but sufficient evidence was not forthcoming to sustain the charges. When he was elected the people did not know that these things were probable even. Can this not be sufficient ground for expelling him from the board by you ?” etc.

The court charged the jury that the communication was privileged, and submitted to them the question of express malice. It is conceded that the “teacher,” to whom this letter referred, was the defendant himself. Assuming that the letter was “a privileged communication,” the fact of malice would not have been properly inferred from the mere fact of sending it to the superintendent of public instruction. But the prosecutor did not rest there; he went into the circumstances and relations between Edsall and the defendant, and showed such conduct by the former against the latter as would naturally raise an inference of ill-feeling by the defendant against him (Edsall). Other circumstances appeared which may or may not have excited ill-feeling between them. It was for the jury to say whether or not they did excite such feeling. It was", therefore, a question of fact whether or not ill-feeling did exist on the part of the defendant and toward Edsall, and if that feeling, assuming its existence, was of such nature as to fall within the meaning of the term “malice,” which, for aught we can see, was fairly explained to the jury by the charge.

We are unable to detect .any error in this part of the case.

It is contended, however, that the statement of rules of law, otherwise correct, was presented to the jury in such a confused way as to mislead them in their deliberations. There was, perhaps, a little confusion; but, I think no more than generally results from the effort of astute counsel to secure such limitations and qualifications of a charge as may aid their cause. Insolated passages of the charge might, standing alone, be the subject of criticism, and of what charge may this not be said. A judge, as a rule, is not abler than counsel to state everything at once. On the whole, we think the court in this instance managed to stick quite closely to the principles of law which govern the case, taking the charge all together. The court did not adopt the propositions of the prosecutor to their full extent; on the contrary, the almost uniform qualifications which were annexed to its adoption of these propositions, must have tended strongly to impress the jury with the true and correct rules and principles with respect to which they had been instructed in the body of the charge.

We have examined the other exceptions, and find none of them in which we think the defendant was materially injured.

Upon the whole, we think the defendant was fairly tried, and that the evidence quite sustained the inference of actual malice. There is something in the general tone and flavor of the letter which, taken in connection with the other circumstances of the case, is so little suggestive of simple regal’d for the public good, and so strongly suggestive of enjoyment of the opportunity and method of putting the facts stated, that we are not atoll surprised that the jury found the defendant guilty.

The judgment should be affirmed.

Barnard, P. J., concurs; Dykman, J., dissents.


author: Dykman, J.

text:
    Albert V. B. Bennett, App’lt, v. Margaret A. Wardell, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Bill of particulars—When plaintiff will not be required to give.
    The complaint in an action for the partition of real property alleged the plaintiffs and some of the defendants to be tenants in common, but that certain others claimed an interest in the subject of the action, under an apparent devise, which was void. Held, that the plaintiff could not be required to serve a bill of particulars stating the particular grounds upon which he claimed the devise to be void.

      Lansing & Judge, for app’lt; Morris & Pearsall, for resp’t.
   Dykman, J.

This is an action for the partition of real property, and the complaint alleges the plaintiff and some of the defendants to be tenants in common, but that the defendants Wardell claim an interest in the premises under an apparent devise, which is void.

The defendants made a motion and obtained an order requiring the plaintiff to serve abill of particulars stating the particular grounds upon which it is claimed the devise stated in the complaint is void.

The plaintiff has appealed from the order and it cannot be sustained.

If the plaintiff made an effort to comply with the requirements of the order appealed from, he could only furnish his arguments and legal reasons and conclusions upon which he believes the devise to be void.

¡No bill of particulars of the claim of the plaintiff can be furnished, for he sets up no claim. He merely asserts that the defendants Wardell have no claim.

_ The case is, therefore, not a case' in which a bill of particulars should be required.

_ The order should be reversed, with ten dollars costs and disbursements.

Barnard, P. J., concurs; Pratt, J., not sitting.


text:
    Louise Zimmerman et al., App’lts, v. George Kunkel et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    1. Cause of action—What may be united—Code Civ. Pro., § 484, sued. 9.
    It is provided by Code of Civil Procedure, section 484, subdivision 9, that two or more causes of action upon claims arising out of the same taansaction or transactions, connected with the same subject of action, and not included with the antecedent subdivision, may be united in the same complaint.
    2. Bond—Cancellation of—Action for—Necessary parties.
    There were illegal acts done during the continuance of a partnership, and a bond was given by the executors of a deceased partner with one of the defendants, as security to the surviving partners not to make the wrong public; also, a sum of money was paid to that defendant by this plaintiff out of the estate of the decedent as his security that the executors would keep the bond a good cause of action against all the defendants: Held, that the defendant to whom the money had been paid could not be compelled to return it unless the bond were canceled, and that in such an action for that purpose the surviving partners must lie brought in.

      H. M. HitcMngs, for app’lt; A. Sims, Jr., for resp’t.
   Barnard, P. J.

This pleading is protected by section 484 of the Code, subdivision 9. The action does not fall within either of the first eight subdivisions of the section. The ninth subdivision provides for a complaint upon claims arising out of the same transaction or transactions connected with the same subject of action and not included within one of the foregoing subdivisions of this section.

The facts are brief and simple. There were four partners. One of them, the plaintiff’s testator, died. The other three, Dickendorf, Eafflaer and Eibschliecher, wrongfully exacted a bond from the plaintiffs as executors of the dead partner.

The bond has no consideration, and is generally averred to have been given for an illegal purpose. Whatever the purpose, it was not imputable to the plaintiffs. They signed the bond for their testator. The bond itself seems innocent. It only provides for keeping secret the business relations of the firm and its predecessors.

Assuming, therefore, illegal acts done in the life of the firm, and a bond given by the executors of one partner, with the defendant Kunkel as security, to the surviving partners not to make the wrong public, and assuming that the plaintiff took $5,000 out of this estate and delivered it to Kunkel as his security that the executors would keep the bond, a good cause of action as stated against all the defendants. The action grows out of the bond. Kunkel cannot be made to return the money unless the bond is canceled, and that requires the surviving partners to be brought in. The partners need not be affected equally. Ho part of the action is technically ex delicto. It is an action to cancel a bad bond. The executors could not bind their estate by an agreement to use the funds of the estate, even to screen the testator. They were trustees that had misused their trust -funds. Kunkel knew it.

The other defendants have a void bond which Kunkel attempts to use, so that he may keep the money of the deceased.

The case is one of clear equity, and the complaint should be upheld.

Judgment for defendant Kunkel on demurrer reversed and his demurrer overruled, with costs, with leave to Kunkel to answer over on such payment.

Dykman and Pratt, JJ., concur.


author: Barnard, P. J. Pratt, J.

text:
    Irving Wright, Resp’t, v. Harriet E. Roberts et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Mechanics’ lien—When right to, perfected.
    By the general lien law (Laws 1885, chap. 342), when an owner builds directly, or by a contractor, or when a structure is put upon premises by the consent of the owner thereof, a lien is given in favor of those furnishing labor or material thereon. It is not necessary that the contract be fully performed that there may arise a right to a lien for work or material furnished thereunder.

      Q. H. Phelps, for app’lt; J. L. Millard, for resp’t.
   Barnard, P. J.

Roberts agreed with one Lyons to sell him a lot of land on Highland avenue, Tarrytown. The price of the lot was to be $1,000, but before Roberts was to give a title a house was to be completed and paid for by installments by Roberts to the extent of $4,000. When done Roberts was to either take a mortgage for $5,000, of find a person to take the same, was to deduct $1,000 for the land and convey. Subsequently the parties made a new agreement involving an exchange of lands to be made at once. Lyons was to complete the house on the same terms as to payment, was to do other work on other houses and the entire payment was to be $14,000 to be made by Roberts to Lyons, from which was to be deducted the balance upon.the exchange of lands, which was in favor of Roberts, as the prices were fixed between the parties. By a still subsequent agreement Lyons gave up the right to purchase and was to complete the house on the original terms as to money payments. The present lienors did work and furnished materiáis on what is called the Paige house, being for and on account of work covered by the second agreement. Lyons went on under the three contracts until he and his partners failed. He did work upon the first and second contracts in excess of the difference between the exchange to the extent of $4,000, and $5,000 on the Paige house. The contract was not completed by Lyons, but the liens were filed in due time after they put these materials in his work. The appellant urges that the right to a hen did not exist when it was filed, because the contract was never finished. There have been many lien laws with more or less varying provisions. Many decisions were made under them, and all are now repealed, and chapter 342, Laws of 1885, is a state law for the whole state. -A lien is given when the owner builds directly or by a contract, and when the structure is put on with “the consent of the owner,” and upon the “lot, premises, parcel or farm ” upon which the building is to stand or does stand. The act contains this clause at the end of section 1. “ But in no case shall such owner be liable to pay by reason of all the liens filed pursuant to this act, a greater sum than tlie price stipulated and agreed to be paid on such contract and remaining unpaid at the time of filing such lien; or in case there is no contract, that the amount of the value of such labor and material then remaining unpaid except as hereinafter provided.” In Heckmann v. Pinkney (81 N. Y., 211), the words of the lien law were that the total amount of the lien 1 ‘ must not exceed the amount which the owner would be otherwise liable to pay at the time of the filing of the claim.” The court held that this clause was solely intended to Emit the liability of the owner in the aggregate to the amount which he had contracted to pay after deducting such payments as he had made before the filing of the lien. The present Hen law limits the Hability to the stipulated price of the contract and remaining unpaid at the filing of the lien.

The evidence, as has been observed, shows that a sum of money had been earned according to the agreed price for an excess of all payments to Lyons, and more than sufficient to pay the Honors.

There is no provision in the act which directly or inferentially requires the contract to be performed fuUy as against a lien for work and materials furnished by a contractor.

If the plaintiff and the other Henors have put their property into the Paige house, and if at the agreed price, deducting aU payments at the time_ of the Hen, there is enough to pay them, the act of 1885 gives the Hen.

The judgment should therefore, be affirmed, with costs.

Pratt, J.

The findings of fact are sustained by the evidence and justify the conclusions of law.

We find no errors that could affect the result, and are satisfied with the decision at special term, which, in our opinion, gives justice to all parties.

Judgment affirmed, with costs.

Dykman, J., not sitting.


text:
    Karl Oberlie, Resp’t, v. The Bushwick Avenue Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Verdict—Question of setting aside as.against the weight of evidence—Is addressed to the discretion of court.
    The question as to whether a verdict ought to be set aside as against the weight of evidence is one not governed by any well-defined rules, but depends in a great degree upon the peculiar circumstances of each case. It is addressed to the sound discretion of the court and involves the inquiry whether substantial justice has been done.
   Pratt, J.

The principal contention in this case is upon the question whether the verdict ought to be set aside as against the weight of evidence.. Such questions are not governed by any well defined rules, but depend in a great degree upon the peculiar circumstances of each case. They are addressed to the sound discretion of the court, and whether they should be granted or refused, involves the inquiry whether substantial justice has been done, the court having in view the attainment of that end.

The case was brought to recover damages for injuries alleged to have been sustained by the plaintiff by reason of an assault claimed to have been committed upon him by the conductor of the defendant, in violently and negligently throwing him from one of the defendants’ cars.

It is unnecessary to state the testimony which was given upon the trial. The plaintiff testified to enough to warrant a verdict in his favor. He was contradicted in part, by several witnesses, employees of the company, and one or more passengers.

Assuming that the conductor was justified in ejecting him from the car, the jury may have still found that he used more force than was necessary, thereby causing the injuries complained of. The instructions of the court were well calculated to call the attention of the jury clearly to the issues involved, and, so far as the record discloses, the case involved nothing calculated to warp the judgment of the jury. We are not bound to say, under all the circumstances, that the verdict is so manifestly against the weight of evidence as to require that it should be set aside.

Judgment affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., dissenting.


author: Rapallo, J.

text:
    Annie Cooke Lawlence, an infant, etc., Resp’t, v. Sara L. Cooke, App’lt.

      (Court of Appeals,

      Filed March 8, 1887.)

    Will—Construction of.
    The grandfather of plaintiff by his will devised and bequeathed his residuary estate as follows: “VI. The residue of my estate, both real and personal, of whatever name or kind, I give, devise and bequeath to my daughter Sara L. Cooke, to have and to hold the same unto her and her heirs and assigns forever.” “ VII. I commit my granddaughter Annie C. Lawrence, child of my daughter Annie, now deceased, to the charge and guardianship of my daughter Sara L. Cooke, in whose honesty, good will and integrity I repose the utmost confidence. I enjoin upon her to make such provision for said grandchild out of my residuary estate now in her hands, in such manner, at such times and in such amounts as she may judge to be expedient and conducive to the welfare of said grandchild, and her own sense of justice and Christian duty shall dictate.” Meld, that no trust was created by said clause and that the daughter took an absolute title to the residuary estate. That it was the will of the testator that the • defendant should be the sole judge of the manner in which provision for the plaintiff should be made, at what time it should be made and to what amount.
    Appeal from a judgment of the supreme court, general term, first department, reversing judgment entered upon the trial of the action by the court without a jury, dismissing plaintiff’s complaint.

      W. B. Darling, for app’lt; Henry W. Johnson, for resp’t.

       Reversing 33 Hun, 126.

   Rapallo, J.

The grandfather of the plaintiff, Chauncey L. Oooke, by the sixth and seventh clauses of his will, which took effect in December, 1878, devised and be- • queathed his residuary estate as follows: “ VI. The residue of my estate, both real and personal, of whatever name or kind, I give, devise and bequeath to my daughter, Sarah L. Cooke, to have and to hold the same unto her and her heirs and assigns forever.” “VII. I commit my granddaughter, Annie C. Lawrence, child of my daughter. Annie, now deceased, to the charge and guardianship of my daughter, Sarah L. Cooke, in whose honesty, good-will and integrity I repose the utmost confidence. I enjoin upon her to make such provision for-said grandchild out of my residuary estate now in her hands, in such manner, at such times, and in such amounts as she ■ may judge to be expedient and conducive to the welfare of said grandchild, and her own sense of justice and Christian duty shall dictate.”

The complaint alleged that in the month of March, 1880, and in the month of January, 1881, the plaintiff, through her general guardian, who was her father, requested the defendant to make, out of the estate so devised and bequeathed to her, provision for the plaintiff, but that" the defendant had neglected and refused so to do; and demanded judgment that by the terms of the will a trust was imposed upon the defendant in favor of the plaintiff; that the defendant render an account of the residuary estate and the income thereof, and that the court should determine and make such provision for the plaintiff out of said residuary estate as should be conducive to the welfare of the plaintiff, and that a receiver should be appointed of such residuary estate, etc.

The defendant, by her answer, denied that any trust was created by the will, but also denied that she had refused to make provision for the plaintiff. She admitted the full force of the moral considerations in favor of the plaintiff arising from the will, and averred that she intended, and had always intended, fully and in good faith to comply with the same.

The action was tried at special term before Lawrence, J., who held that no trust was created by the clause referred to, and that the defendant took, under the will of her father, an absolute title to his residuary estate, and he dismissed the complaint. His judgment was reversed at the general term, and a reference was ordered to ascertain the amount of the residuary estate, and report what provision should be made for the plaintiff out of such residuary estate. The referee reported the proofs taken before him, and that, in his opinion, the sum of $1,080 per annum would be a proper provision to be made for the plaintiff until she should attain the age of fourteen years. This report was confirmed by the court, and judgment was rendered that the defendant pay that sum to William H. Lawrence, the father and general guardian of the plaintiff, until the further order of the court. >

Full and exhaustive opinions were delivered, both at special and general terms, in which the authorities bearing upon the question are reviewed at length. Without going over the ground covered by those opinions, we deem it sufficient to say that we concur in that of Lawrence, J., at special term, which was to the effect that the defendant took an absolute title to the residuary estate, and that the provision to be made for the plaintiff was left wholly to the discretion of the defendant.

The opinions at general term were by Brady and Daniels, JJ., Davis, P. J., delivering a brief dissenting opinion. The prevailing opinions rest upon the word “enjoin,” used by the testator in clause 7. If the clause had been that the testator enjoined' upon the defendant to make suitable provision out of the residuary estate for the support of the plaintiff there would be force in the argument, not, indeed, that the defendant took the residuary estate in trust, but that she took it subject to a charge, the amount of which might be ascertained by a court of equity and satisfaction thereof decreed. But such is not the language of the will. It is: “I enjoin upon her to make such provision for said grandchild out of my residuary éstate, in such manner, at such times and in such amounts as she may judge to be expedient and conducive to the welfare of said grandchild.” She might, under the broad discretion thus conferred upon her, deem it best for the grandchild to wait until she should become of age, and then give her a portion of the estate, or otherwise provide for her. There was nothing in the will which required her to provide for the support of the grandchild during her minority. She was living with her father out of the state. No obligation was imposed upon the defendant by her father’s will to indemnify the father of the plaintiff for her support, or to furnish him with means therefor. The provision in the will was not intended for the benefit of the father of the plaintiff, nor to reheve him from his legal obligation to support his own child. All these matters were left wholly to the discretion of the defendant, uncontrolled by any consideration except to use the language of the testator, what “her own sense of justice and Christian duty shall dictate.”

It was the will of the testator that the defendant should be the sole judge of the manner in which provision for the plaintiff should be made, at what time it should be made, and to what amount. It was beyond the power of any court to substitute its discretion for hers, and no trust was created which a court of equity could execute contrary to her judgment.

The moral obligation imposed on the defendant is very strong. The plaintiff is the representative of the deceased sister of the defendant, and, if the testator had died intestate, the plaintiff would have been entitled to one-third of his estate. For reasons of his own, however, the testator preferred not to permit any part of his estate-to vest in this grandchild, but to leave entirely to the discretion of the defendant what portion she would take, in what manner, and at what time. He, therefore, vested the absolute title to his residuary estate in the defendant, enjoining upon her only the duty of exercising this discretion, and expressing his conviction that she would do so honestly and fairly. She recognizes this moral obligation, and avers her intentention of performing it. It is not for the courts • to repudiate the confidence which the testator chose to repose in the defendant, and to assume a power which was not intended to be exercised by them by determining in what manner, at what time, and to what amount the provision shall be made.

The orders of the general term and subsequent proceedings should be reversed, and the judgment of the special term dismissing the complaint affirmed with costs.

All concur.


author: Earl, J.

text:
    Claudius Shattuck et al., by guardian, Resp’ts, v. George Bascom, App’lt.

      (Court of Appeals,

      Filed March 8, 1887.)

    1. Title—Tax sale—Comptroller’s deed—When void for defect in assessor’s oath—Estoppel.
    Plaintiff claimed title under a deed executed by the comptroller of the state, pursuant to a sale in 1866, for arrears of taxes. In 1869 defendant gave a quit claim deed to C., which was recorded, but was really a mortgage, and C., in 1873, brought an action against plaintiff’s father, to set aside the comptroller’s deed as a cloud upon title, and was defeated. C. reconveyed to defendant, and in this action the trial judge held that defendant was bound by the former judgment; but the general term, in affirming the judgment, held that the tax title was valid, and that defendant was not estopped by the judgment. Held, error; that defendant took his title previous to the action, and was not bound by it, and that C. was merely a mortgagee, and that the tax title was invalid.
    3. Same—Assessor’s oath—Form of, must be followed.
    At the time of the tax sale in question, the law (chap. 176, Laws 1851), prescribed the form of oath which the assessors should take, as follows: “ We, the undersigned, do severally depose and swear that we have set down in the foregoing assessment-roll, all the real estate situated in * * * according to our best information, and that with the exception of those cases in which the value of the real estate has been changed by reason of proof produced before us, we have estimated,” etc. In this assessment-roll the words “of proof” were changed to “hereof.” Held, that the entire value of the oath was lost, and it answered no purpose whatever, so far as pertained to the assessment of real estate, and might as well have been entirely omitted.
    Appeal from a judgment of the supreme court, general term, fifth department, denying a new trial and affirming a, judgment in favor of plaintiff on verdict.

      E. D. Northrup, for app’lt; Cary & JRimsey, for resp’ts.

       Reversing 36 Hun, 638, mem.

   Earl, J.

The plaintiffs commenced this action to recover a quantity of hemlock bark, which the defendant had peeled and taken from the trees standing on lot No. 54, containing •one hundred and fifty acres of land, situated in the town of Portville, in the county of Cattaraugus. The defendant in his answer, denied the plaintiff’s „title to the land, and averred that he owned the land, and consequently the bark taken therefrom.

Upon the trial it appeared that the plaintiff claimed title under a deed executed by the comptroller of the state, pursuant to a sale of land in 1866, for arrears of taxes for the years 1856, 1858 and 1860. It is undisputed that the defendant had good title to the land, unless it has been defeated by the tax sale and the deed of the comptroller.

The defendant claims that there were certain defects in the imposition of the taxes and in the subsequent proceedings, which rendered the comptroller’s deed invalid. But the plaintiffs claim that he is estopped from assailing the comptroller’s deed by certain facts which will now be mentioned.

In 1869 the defendant executed a quit-claim deed of the-land, to one Coleman, which was duly recorded in the proper clerk’s office, and while he held that deed and the apparent title to the land in 1873, he commenced an action against the father of the plaintiff, under whom they claim, to set, aside the comptroller’s deed as a cloud upon his title, on the ground that the tax sale was void, and the deed given in pursuance thereof invalid. That action was tried and resulted in a judgment for the defendant therein, which was. finally affirmed in this court. Coleman v. Shattuck, 2 Hun, 497; aff’d 62 N. Y., 348. Subsequently to the entry of that judgment, and before the commencement of this action, Coleman reconveyed the land to this defendant, and upon the trial of this action it was undisputed that the deed by this defendant to Coleman was given as security, and was in fact a mortgage. The trial judge directed a verdict in favor of the plaintiffs, upon the ground that this defendant was bound and estopped by that judgment. Upon appeal by the defendant to the general term the judgment of the trial term was affirmed, as appears by the opinion' there pronounced, upon the ground that the plaintiffs’ tax-title was valid. But the court there further held that the defendant was not estopped by the judgment between his mortgagee and plaintiffs’ father.

Although the conveyance from defendant to Coleman was in form a deed, it was in fact a mortgage, and had all the incidents of a mortgage. Coleman could not, upon that deed, have maintained an action of ejectment against his grantor, or any other person. All he acquired by the deed was a lien upon the land for the security of his debt, and upon payment of the debt his interest in the land and his lien thereon would absolutely cease. Eeconveyance by him to this defendant was not necessary to reinvest him with the absolute title, and was necessary only to clear up the record title. Murray v. Walker, 31 N. Y., 399; Horn v. Keteltas, 46 id., 605; Carr v. Carr, 52 id., 251, Morris v. Budlong, 78 id.,. 543. Therefore the defendant did not, in any sense, take his title from Coleman, but his title was, anterior to any interest which Coleman had in the land; and the legal title was in him at the time of the pendency of the action of Coleman v. Shattuck. He was not a party to that action, and it was not carried on at his instance or for Ms benefit,. and, therefore, he is not bound or estopped by the judgment rendered therein. It would be quite a novel doctrine to hold that a mortgagor is bound and estopped by a judgment rendered in án action by the mortgagee against some other person to which he was not a party. It was, therefore, open to the defendant upon the trial of this action, to assail the title of the plaintiffs.

The act, chapter 209 of the Laws of 1860, made the comptroller’s deed presumptive evidence that "the sale and all proceedings prior thereto were regular, according to the provisions of law directing the same, or in any manner relating thereto. But as the act made the deed only presumptive evidence, a party against whom a tax title is asserted still has the right to show by any competent evidence that the proceedings for the assessment and collection of taxes were illegal and defective, and that the comptroller’s deed is in fact invalid.

Upon the trial of this action and upon the argument of the appeal in this court, the counsel for the defendant pointed out various defects and irregularities, on account of which he claimed that the comptroller’s deed is invalid. But we deem it important now to consider but one of the alleged defects, and that relates to the taxes of 1856. The law in force at that time—chapter 116, Laws of 1851—pre-scribed the form of oath which the assessors, or a majority of them, should take and attach to the assessment-roll, and that so far as pertains to real estate is as follows: “We, the undersigned, do severally depose and swear that we have set down in the foregoing assessment-roll all the real estate situated in the—town or ward as the case may be— according to our best information, and that with the exception of those cases in which the value of the said real estate has been changed by reason of proof produced before us, we have estimated the value of the said real estate at the sums which a majority of the assessors have decided to be the full and true value thereof, and at which, they would appraise the same in payment of a just debt due from a solvent debtor.” This oath is intended to secure a just valuation of property to be taxed, and is thus for the protection of tax payers, and no assessment can be valid unless it has_ the sanction of the oath. The legislature having prescribed the precise form of oath to be taken, that form must be followed, and an assessment will be invalid if there is any material departure therefrom; and so it has been held. Van Rensselaer v. Witbeck, 7 N. Y., 517; Parish v. Golden, 35 id., 462; Bellinger v. Gray, 51 id., 610; Westfall v. Preston, 49 id., 349; Merritt v. Port Chester, 71 id., 309.

In the oath upon the assessment-roll for 1856 a fatal defect appears. Instead of the language “ value of the said real estate has been changed by reason of proof produced before us,” the word “hereof” was inserted instead of the words “ of proof,” so that the language is, “with the exception of those cases in which the value of the said real estate has been changed by reason hereof produced before us, we have estimated the value of said real estate at the sums which a'majority of the assessors decided to be the full and true value thereof,” etc. The purport of that is simply that they had estimated the value of the real estate at the sums which a majority of assessors decided to be the full and true value thereof, except in those cases in which the value had been changed for some reason undisclosed. That oath could have been truthfully taken by the assessors, even if they had overestimated or underestimated real estate, and had thus made their assessment entirely unequal and unjust. Thus the entire value of the oath was lost, and it answered no purpose whatever so far as pertained to the assessment of real estate, and might as well have been entirely omitted. Its form was such that it could not have laid the foundation of an indictment for perjury, no matter how grossly the assessors had violated their duty. It must be presumed that the form of the oath prescribed by the statute was before the assessors at the time the oath was written,' and we may assume that the material departure from the words of the statute was probably intentional to accomplish some purpose not allowed by the letter of the law. We, therefore, entertain no doubt that this defect in the oath rendered the assessment of 1856 wholly void, and, as the tax sale was made for the aggregate taxes of 1856, 1858 and 1860, the entire sale was illegal and invalid, and the deed given in pursuance thereof void. Blackwell Tax Titles, 160; Riverside Co. v. Howell, 113 Ill., 250; Matter of Willis, 30 Hun, 13; People v. Hagadorn, 36 id., 610, recently affirmed in this court.

The invalidity of the comptroller’s deed on account of the defect in the oath of the assessors did not come under consideration in Coleman v. Shattuck. In that case there was no allegation of such a defect, and the record, by some inadvertence, showed that the oath was correctly transcribed from the statute.

Therefore, without considering other alleged defects in the tax proceedings' to which our attention has been called, we are of opinion that the judgment of the general and special terms should be reversed, and a new trial granted, costs to abide event.

All concur.


author: Ruger, Ch. J.

text:
    Davis Sewing Machine Company of Watertown, Resp’t, v. William J. Best, Receiver of the National Trust Company of New York, App’lt.

      (Court of Appeals,

      Filed March 15, 1887.)

    1. Bills and notes—Bona fide purchaser.
    Winslow, who was president of plaintiff, agreed to negotiate ten of its bonds, and it instructed its treasurer “ to ham signed, and negotiate $10,000 of bonds, etc., with N. Winslow * * * to home such bonds signed as may be necessary to make up the amount required.” The treasurer filled up the bonds and had them signed, except by Winslow as president and guarantor, and delivered them to him. Instead of selling them, Winslow, signing but three of the ten, hypothecated them with the National Trust Company with other notes of the plaintiff belonging to the Security Bank for a loan of $10,000 for the benefit of the latter. The Trust Company had negotiated similar obligations but always signed by the president. Subsequently the Security Bank repaid the Trust Company $5,000 and obtained its own notes. Plaintiff brought this action to recover the notes. Held, that the Trust company did not become a bona fide holder of the seven notes so as to hold them against the true owner.
    2. Same—Damages—Nominal, for detention of worthless notes.

      Held, that the trial judge erred in directing the jury to assess the value of the notes at the amount apparently due thereon.
    Appeal by defendant from judgment of general term, fourth department, affirming a judgment' entered upon a verdict directed by the court.

      Delos McCurdy, for app’lt; Francis Fernán, for resp’t.

       Reversing 35 Hun, 665, mem.

   Ruger, Ch. J.

The facts in this case were practically undisputed, and upon the trial a verdict was ordered by the court for the plaintiff for seven of the ten notes claimed by it. The general term affirmed the judgment, and the defendant appeals from such affirmance to this court.

The questions presented by the appeal are substantially embraced in two propositions, viz.: (1) Whether the notes in suit were negotiable paper entitling a bona fide purchaser thereof to hold them as against the true owner; and (2) whether, in case of a recovery by the plaintiff, the jury was authorized to assess their value at the amount appearing to be due upon their face, or at a nominal sum only.

The plaintiff sought to recover what purported to be nine promissory notes of the Davis Sewing Machine Company of Watertown, for $1,000 each, with collateral guaranty and interest coupons attached, payable November 1, 1876, and one similar note, payable February 1, 1880, each of which was made upon a printed blank of similar form. Three of these instruments appeared to be complete in form, with all the blanks properly filled, except the payee’s name, and were duly signed by the president and treasurer of the plaintiff company. The remaining seven notes were in the same form, except that they were not signed by the president, although a blank space, with a diagonally ruled line, with the title of his office printed thereunder, was apparently left at the foot of each instrument for such signature. The National Trust Company was a banking institution located in the city of New York, and had been previous to this transaction largely engaged in the business, of buying, selling and negotiating similar obligations for the plaintiff and its agents, and which had theretofore been uniformly signed by both the plaintiff’s treasurer and president.

In September, 1875, a contract was made between the plaintiff and one Winslow, whereby the latter agreed, if the plaintiff would make ten bonds of $1,000 each, payable in short time, with coupons for interest attached,- properly guaranteed, he would negotiate them in the market at par for the plaintiff at a compensation of one per cent, upon the amount received. Accordingly, the following resolution was adopted on September 14, 1875, by the plaintiff’s directors, and the notes in suit were issued thereunder: 11 Resolved, that the treasurer be instructed to have signed, and negotiate $10,000 of bonds, due November 1, 1876, at ninety-nine cents, with Mr. N. Winslow, * * * * have such bonds signed as may be necessary to make up the amount required.” According to the directions contained in 'the resolution, the treasurer filled up the notes above described, and procured them to be signed by all of the parties whose signatures were required to be affixed thereto, except that of Winslow as president and guarantor, and delivered them to Winslow to be signed and disposed of as agreed. Instead of selling the notes, Winslow placed them, with other notes of the plaintiff, amounting to $10,000, then bélonging to. the Security Bank of Watertown, and hypothecated them with the National Trust Company of New York for a loan of $10,000, for the benefit of the Security Bank. Subsequently the Security Bank repaid the trust company $5,000 of such loan, and required the notes belonging to it to be returned, leaving the notes in suit in the possession of the trust company as security for the unpaid balance of the loan. Upon the discovery of the conversion by Winslow of its notes, the plaintiff demanded them from the defendant, who had then been appointed receiver of the trust company, and had possession of all its assets, and upon his refusal to surrender them brought replevin for their recovery, demanding the usual relief.

It is not seriously questioned that the notes were unlawfully converted by Winslow, and that the plaintiff was entitled to recover their possession, unless the trust company became the bona fide holder thereof by virtue of their purchase from the Security Bank. Winslow could not, as against the plaintiff, have retained possession of the notes except for the purpose of executing the authority conferred upon him in accordance with its terms; neither could his transferee acquire any better title than he, except by a purchase for value, without notice of the facts invalidating the title or right to their possession. Decker v. Mathews, 12 N. Y., 313; Comstock v. Hier, 73 id., 273; Fairbanks v. Sargent, 104 id. —; 5 N. Y. State Reporter, 531.

It therefore becomes necessary to inquire whether the trust company received them charged with knowledge of their invalidity, or Winslow’s want of authority to pledge them for a loan of money. The burden of proving a purchase in good faith and for value devolved- upon the defendant after it was established that the notes had been surreptitiously put in circulation, and diverted from the purpose for which they had been delivered to Winslow. It then became incumbent upon the defendant to show that the notes had been executed in a form authorized by the plaintiff, and that the trust company had paid value for them upon their transfer to it.

It is claimed by the plaintiff that the seven notes for which it has obtained judgment were never properly executed, owing to the absence of Winslow’s signature, not only as president of the company but also as a guarantor, and that this defect was apparent upon the face of the paper and deprived the notes of the character of commercial paper. The case shows that the plaintiff had never adopted any general by-law prescribing a method for the execution of its pecuniary obligations, and there is no claim that it ever authorized the treasurer aloné to issue them by any special resolution of its board of directors. Resolutions had frequently been adopted by the board authorizing the treasurer and president together to execute notes for specified amounts, duly guaranteed by the twelve resident directors of the plaintiff’s company; and one or two resolutions were also adopted, providing for small amounts 6f paper, which did not prescribe any particular form of execution. But it had theretofore been the uniform practice of the plaintiff to cause all of its bonds and notes to be signed by both its president and treasurer, and guaranteed by its twelve resident directors, of whom Wins-low was one. Three of the notes in suit were so signed and guaranteed, and they belonged apparently to the same ° series as the seven not so signed. The trust company had theretofore dealt largely in the plaintiff’s paper, and, at the time of receiving the securities mentioned, was perfectly familiar with its mode of executing such obligations. It "was also obvious from the form of the notes that it was intended to have them signed by the president, since a blank was left for that purpose at the usual place for a maker’s signature. Not only did the seven notes in dispute show by mere inspection that they were imperfect and improperly executed, but they were never in fact authorized by the plaintiff to be issued in that form. There is nothing in the resolution of September, 1875, indicating an intention to authorize the treasurer to negotiate the notes with his signature alone, but it expressly required him not to sign them but “to have them signed.” What is the natural significance of this language? It was obviously to have them signed by the officers who had theretofore been accustomed to sign such instruments for the corporation. Certainly no inference could be drawn that any other persons were authorized to sign and issue them than those whose usual practice it had been to sign like instruments. Indeed, a portion of these very notes, issued under the same authority, indicated the mode of execution intended, and it is an irresistible inference therefrom either that they bore an unnecessary name or that the other seven lacked an essential signature.

It therefore appears not only that the plaintiff never in fact authorized the transfer of obligations bearing the treasurer’s signature alone, but there are no circumstances from which third parties had any right to infer such authority. On the contrary, universal experience justifies the inference, from the very appearance of an unfinished instrument, especially when incomplete as to the signatures for which provision seems to have been made, that the original intention which impelled the maker to undertake its execution was abandoned. Although Winslow was intrusted to sell these notes, and would have been authorized tb transfer them by affixing his signature as president and guarantor thereto, yet he had no authority to dispose of them without performing the implied condition imposed by the plaintiff upon such exercise of authority. Not only the paper itself, but the plaintiff’s uniform custom, bore evidence of the condition which attached to .Winslow’s right to transfer the paper. The performance of this condition materially affected the legal rights of the plaintiff and its guarantors, and could not be omitted without prejudice to their interests. It is quite clear, therefore, that these seven notes were never executed as the plaintiff intended they should be, and the question arises, not whether, for any reason, they were enforceable against the plaintiff, but whether the transferee of such notes, by paying value therefor, became clothed with the character of a bona fide purchaser. The authorities seem to be consistent and uniform to the effect that the defendant cannot be considered such a holder.

The suggestion that a party issuing negotiable paper with blank spaces therein, apparently intended to be filled up to make a complete contract, implied ly authorizes its holder to insert appropriate words in such blanks, may be dismissed as inapplicable to such a case as this.. It has sometimes been held that a party signing such paper, and delivering it to a third party unfilled, by implication confers such authority, but it can hardly be claimed that one drawing the form of a promissory note which is unsigned, and falls into the hands of another, thereby authorizes the holder to attach the maker’s signature, or to add anything which is incomplete in its execution.

The rule that a party buying commercial paper which remains in some essential particular incompleted and imperfect does not acquire the character of a bona fide holder rests upon sound reasons, and is well established in commercial law. No stronger evidence could be afforded that such paper had been prematurely put in circulation, contrary to the will and intention of its maker, than the fact that it had not been fully and completely prepared to perform the office for which it was designed. It is apparent that such paper must have been taken from the possession of its maker before an intention to part with it had been fully formed, and that he still designed to add some provision or formality to give it vitality and effect. It was said by the late Judge Folger, in Ledwich v. McKim (53 N. Y., 313), that “ a negotiable instrument must be a complete and perfect instrument when it is issued, or there must be authority reposed in some one afterwards to supply anything needed to make it perfect.” The rule is also laid down in Daniel, Neg. Inst., §§ 841, 842. We cannot, therefore, hold that the trust company became the bona fide holder of the seven notes.

The reasons^ which lead us to this conclusion would also seem to require us to hold that the trial judge erred in directing the jury to assess the value of the notes at the amount apparently due thereon. If the notes were not enforceable as pecuniary obligations of the plaintiff and its guarantors, it necessarily follows that they could not have had any other value than that which pertained to the material upon which they were written. It is therefore evident that the court erred in directing their value to be assessed upon the principles stated. That this was a material error is evident from the fact that the jury did not find any damages for the detention of the notes, and therefore the assessment of the value controls the question of costs in the case. We see no ground upon which such notes can be appraised at anything but a nominal value, and we think it was error in the trial court to refuse to so direct the jury.

The judgment should therefore be reversed, and a new trial ordered, with costs to abide the result.

All concur.


text:
    Henry J. Bookman, App’lt, v. Louis R. Stegman, Resp’t.

      (Court of Appeals,

      Filed March 22, 1887.)

    .Evidence—Conclusions by judicial officers upon ex parte affidavits NOT ADMISSIBLE IN ACTION BETWEEN THIRD PARTIES.
    In an action against a sheriff for unlawfully taking the property of plaintiff upon attachments against one Midas, on the ground of fraud, the sheriff was allowed to place in evidence fifteen or sixteen attachments from as many different parties, amounting to about $72,000, against the property of Midas, issued upon the ground of frauds, alleged to have been commit ted by him. Held, error; that a conclusion reached by a judicial officer upon ex parte affidavits, to the effect that they contained sufficient evidence to prove an indebtedness from one party to another, and the perpetration of fraud by the debtor in incurring it, is not competent evidence to establish either the fact of such cebt or of such frauds in an action between third parties. It is mere hearsay.
    Appeal from judgment of the supreme court, general "term, second department, affirming judgment and order denying new trial.

      William J. Qaynor, for app’lt; James Troy, for resp’t.

       Reversing 40 Hun, 636, mem.

   Ruger, Ch. J.

The plaintiff brought an action of claim and delivery to recover possession of a quantity of liquors, etc., of the value of $3,500, which he alleged the defendant had wrongfully taken from him and wrongfully detained. The answer justified the taking of the property, as sheriff of Kings county, by virtue of two several attachments ' issued out of the supreme court, respectively commenced by Thomas & Thomas against Midas & Larson, and Henriques against Midas, and claimed that the same was the property . of Midas and not of the plaintiff. The evidence upon the trial was uncontradicted, to the effect that the property in question, on or about December 18,. 1881, was taken by the defendant from premises on the corner of Atlantic and Georgia avenues in East New York, in which the plaintiff was carrying on the business of selling wines, liquors, etc., ■at wholesale and retail and consisted of his stock in trade.

It also appeared that the plaintiff was then in possession of said premises, and had been since October 1, 1881, under a lease standing in his own name and paying rent therefor, and that his name was conspicuously painted upon the outer wall of the building, and several smaller signs were displayed in different parts of the store, and he was apparently having ■exclusive control and management of the business.

It further appeared that about a year and a half previous to this time one Bernhard Midas, in connection with a much larger establishment situated in another part of the town, had conducted this store; but desiring to remove his business wholly to Brooklyn, he sold its good will and contents and assigned his lease to the plaintiff and delivered possession thereof, and about the first day of November thereafter established himself in the liquor selling business in Brooklyn.

It was further proved by the plaintiff that the purchase-price of said stock, etc., was $3,316.90, and that he paid therefor by $1,000 in cash; canceling a debt owing him by said Midas of $1,000, and delivering his own note for the balance, $1,316.90, indorsed by his father, a responsible man.

It also appeared that between the middle of October and the twelfth day of November thereafter, the plaintiff bought other liquors of Midas, for the use of his said business, to the amount of nearly $6,000, $2,500 of which was paid by the promissory note of third parties, and the balance.by the notes of the plaintiff on four months’ time. These notes were all subsequently paid at maturity at the banks where they were made payable, except a small note which had not become due on the day of trial.

The ground upon which the defense was conducted was the claim that each of the sales from Midas to the plaintiff was fictitious—made with intent to defraud the creditors of Midas—and that the liquors themselves continued to remain the property of Midas.

Assuming for the present that the defendant could, without confessing and avoiding the allegations of the complaint, give evidence of fraud which would avoid the transfers from Midas to plaintiff, we are of the opinion that the evidence given for that purpose was very weak and unsatisfactory. No direct proof was offered of any arrangement between Midas and plaintiff that Midas should retain an interest in. the property sold, and no circumstance transpired after the sale tending to show that he exercised any control over the-same or received any of the proceeds of the business.

Aside from the fact that plaintiff was an adopted child and nephew of Midas, generally living in his family, and superintended the store in question while he carried it on, and some slight discrepancies in the evidence of the plaintiff, not a fact appeared casting suspicion upon the transactions or tending to show that Midas was not perfectly solvent and able to respond to all of his engagements, not only at the time of making the sales, but also at the date of the attachment, except the fact that about the middle of December the sheriff received some fifteen or sixteen attachments from as many different parties, amounting to about $72,000, against the property of Midas, issued, upon the ground of frauds alleged to have been committed .by him, and commanding the sheriff to attach his property.

This evidence was testified to by the under-sheriff, claiming to hold the several attachments in his hands and speaking therefrom, and was objected to by the plaintiff. They were offered, and admitted, upon the ground that they bore upon the alleged fraud of Midas; and the plaintiff excepted to the ruling.

The defendant also offered the several affidavits upon which the respective attachments were founded, but, upon objection being made by the plaintiff, they were withdrawn. The attachments were, however, allowed to remain as evidence in the case, purporting to prove that they were each issued on account of alleged frauds of Midas, and apparently showing an indebtedness on his part of $72,000 to the several plaintiffs in such attachments. These attachments did not comprise the process under which the defendant justified the seizure of the property, but were claimed to be other process in his hands at the time thereof.

It cannot be doubted but that this evidence was very material upon the issue presented by the defendant, and if it was improperly admitted had a very injurious effect upon the result of the trial for the plaintiff.

We are clearly of the opinion that this evidence was incompetent for any purpose. A conclusion reached by a judicial officer upon ex parte affidavits, to the effect that they contained sufficient evidence to prove an indebtedness from one party to another and the perpetration of frauds by the debtor in incurring it, is not competent evidence to establish either the fact of such debt or of such frauds, in . an action between third parties.

Such proof derives no force from the judicial order, and is merely hearsay, having no greater effect, as proof of the facts stated therein, than ex parte affidavits made under any other circumstances.

No statute makes them evidence and no rule of .common-law evidence justifies their admission. People v. Walsh, 87 N. Y., 485.

The fact that a judge has awarded process thereon, constitutes no such adjudication as renders them evidence of the facts stated therein.

For this error the judgment should be reversed and a new trial ordered, with costs to abide event.

All concur.


text:
    John P. Kennedy, App’lt, v. Robert T. Hoy, Ex’r, et al., Resp’ts.

      (Court of Appeals,

      Filed March 22, 1887.)

    1. Will—Trusts created by—Some legal, others illegal—When connected, THE WILL VOID.
    Where in a will some trusts are legal and others illegal, if they are so connected together as to constitute an entire scheme, so mat the presumed wishes of the testator would he defeated if one portion were held legal and other portions illegal, or if manifest injustice would result to the beneficiaries under the will, or some of them by holding one trust legal and the other illegal, then all must be held illegal and must fall together.
    2. Same—When independent, legal trust sustained.
    But when several trusts are created and they are independent of each other, each trust complete in itself, and the legal can be separated from the illegal and upheld without doing injustice or defeating what the testator might in the emergency be presumed to wish, the illegal trust may be cut off and the legal permitted to stand.

      Thomas M. Wheeler, for app’lt; E. H. Grandin, for resp’t.

       Affirming 39 Hun, 657, mem.

   Earl, J.

The plaintiff, a judgment creditor of William. E. Hoy, seeks in this action to procure satisfaction of his judgment out of a certain fund placed in trust under the last will of his mother, Ella Nora Hoy, for the benefit of William and his children.

In her will the testatrix placed a share of her estate in the hands of her executors and directed them to apply the income thereof to the support and maintenance of William E. Hoy and his family during his life, and after his death to pay the income to his surviving children “until they reach the age of twenty-one years, when the principal is to be divided among them share and share alike,” and in case William should die without lawful issue surviving him, or in case all his children should die subsequently to his decease before reaching the age of twenty-one years and without leaving issue, then she directs the share to be divided equally among all her three surviving children and the children of any deceased child. William survived and had a wife and two children.

The claim on the part of the plaintiff is that the trusts created for the benefit of William and his children are void because they suspend the absolute ownership of personal property for a longer period than is authorized by the statute, and that, therefore, the whole or a portion of the trust property became vested in William, and that the plaintiff can reach that property for the satisfaction of his judgment.

We do not deem it important now to determine whether all the trusts for William R Hoy and his children are valid or not, because it is sufficient for the determination of this action that the trust for the life of William is legal and valid. That is a separate trust, created by a separate paragraph in the will, is complete in itself, and is not comiected with the trust intended to take effect after his death, and can be permitted to stand alone.

It has been decided in many cases that where in a will some trusts are legal and others' illegal, if they are so connected together as to constitute an entire scheme, so that the presumed wishes of the testator would be defeated if one portion were held legal and other portions illegal, or if manifest injustice would result to the beneficiaries under the will, or some of them, by holding one trust legal and the others illegal, then all must be held to be illegal and must fall together. But when several trusts are created and they are independent of each other, each trust complete in itself, and the legal can be separated from the illegal and withheld without doing injustice or defeating what the testator might in the emergency be presumed to wish, the illegal trust may be cut off and the legal permitted to stand, and thus the intention of the testator.be effectuated so far as the laws will permit. In this case, by upholding the trust for the benefit of William E. Hoy during his life, no injustice is done to any of the other beneficiaries under the will, and effect is given to the primary intention of the testatrix, so far as pertains to William and his family.

A precise authority for this conclusion is the case of Van Schuyver v. Mulford (59 N. Y., 426). In that case the will of M, by separate and independent, clauses, gave to his wife the rents income and profits of his estate, real and personal, during her life, to the extent necessary to her support; and in case they were unsufficient he directed his executor and trustee to take and pay to her from the body of the estate what should be necessary from time to time. In another clause he bequeathed the rents, income and profits after the death of his wife to his two daughters during life; and after the death of the wife and daughters he devised and bequeathed the estate to the issue of his said daughters; and it was held that the provision for the wife was valid and would be sustained although the devise was void. That case is so like this that no other authority need be referred to or cited.

Therefore, the trust for William E. Hoy being valid, there is nothing out of which to satisfy the plaintiff’s judgment, and there is no ground for the maintenance of this action.-

The judgment should be affirmed, with costs.

All concur.


text:
    The People of the State of New York, Resp’ts, v. Lipman Arensberg, App’lt.

      (Court of Appeals,

      Filed March 22, 1887.)

    1. Criminal law—Oleomargarine—Laws 1885, chap. 183, §7—Con-stitutional.
    Section 7, of chapter 183, of the Laws of 1885, prohibiting the manufacture out of any animal fat, or animal or vegetable oils, not produced from unadultered milk or cream from the same, or the mixing or selling of any product in imitation or semblance or designed to take the place of natural butter, etc., is constitutional. It does not prohibit the manufacture or sale of any compound designed to be used as a substitute for butter or cheese, as did section 6 chap. 302, Laws 1884, declared unconstitutional in People v. Man, (99 N. Y., 377), but forbids the manufacture or sale of an article designed as an imitation of dairy butter.
    2. Same—Coloring to imitate dairy butter.
    If oleomargarine is innocuous, those making and dealing in it should be protected in the enjoyment of liberty in those respects; but they may legally be required to sell it for and as what it actually is, and upon its own merits, and are not entitled to the benefit of any additional market value, which may be imparted to it by resorting to artificial means to make it resemble dairy butter in appearance.
    3. Same—Evidence.
    The trial judge charged that it was not necessary to show that the article sold was calculated to deceive the person who bought it, in this instance, but that it was in imitation and semblance of butter, and calculated to deceive any person who might buy it. Held, no error.
    Appeal By defendant from order and judgment of supreme court, general term, second department, affirming a conviction and judgment of Kings county sessions.

      Wheeler H. Peckham and Frederic B. Coudert, for app’lt; Edward B. Thomas and William P. Quinn, for resp’ts.

       See 40 Hun, 358; also, see 3 N. Y. State Rep., 621.

   Rapallo, J.

The offense for which the appellant was indicted, and of which he was convicted, was that at, etc., he “ did unlawfully, willfully and knowingly have in his possession for sale, keep for sale, offer for sale, and cause and procure to be sold, to certain persons,” etc., “ a number of pounds of a certain article and product, made and manufactured in semblance and imitation of natural butter, that is to say, butter made and produced from pure, unadulterated milk, and cream from the same,” etc., “the same not being then and there natural butter, as he (the said Lipman Arensberg) then and there well knew—against the form of the statute,” etc.

The statute which the defendant was accused of violating was section 7, of chapter. 183, of the Laws of 1885, entitled “an act to prevent deception in the sale of dairy products,” etc. That section prohibits (1) the manufacture out of any animal fat, or animal or vegetable oils, not produced from unadulterated milk, or cream from the same, of any product in imitation or semblance or designed to take the place of natural butter, produced from milk, etc.; (2) mixing, compounding with, or adding to milk, cream, or butter, any acids or other deleterious substances, or animal fats, etc., with design or intent to produce any article in imitation or semblance of natural butter; (3) selling or keeping, or offering for sale, any article manufactured in violation of the provisions of the section.

The indictment contained three counts, the first charging the defendant with manufacturing the prohibited article; the second, with mixing with milk, cream and butter, the prohibited substances, and the third, with selling the prohibited article. He was acquitted on the first and second counts, and convicted on the third.

The defendant contends that the provisions of the seventh section are in violation of the constitution of this state, and subversive of his constitutional rights of liberty, and the enjoyment of property, and he relies upon the decisions of this court in Re Jacobs (98 N. Y., 98), and People v. Marx (99 id., 377).

The Case of Jacobs arose under a different statute, and related to a different subject, viz., the manufacture of cigars in tenement houses. It has no bearing upon the present case, except in "so far as it declares general principles which are sought to be applied to the statute now in question. The case of People v. Marx, has a more direct application, as it arose under the act of which the one now under consideration is an amendment or supplement. The section under which the defendant in that case was indicted was section 6 of chapter 202, of the laws of 1884. That section provided as follows:

“ Section 6. No person shall manufacture, out of any oleaginous substance, or any compound of the same, other than that produced from unadulterated milk, or of cream from the same, any article designed to take the place of butter or cheese produced from pure, unadulterated milk, or cream of the same, or shall sell or offer to sell the same as an article of food.”

That section was held to be unconstitutional, for the reason that the prohibition was not confined to unwholesome or simulated substances, but absolutely prohibited the manufacture or sale of any compound designed to be used as a substitute for butter or cheese, however wholesome or valuable, or however openly and fairly the character of the substance might be avowed and published; that the act could not, therefore, be regarded as a health law, nor as intended to prevent deception by the sale of a simulated article as genuine; and stress was laid in the opinion upon the fact that the prohibition was not of the manufacture or sale of an article designed as an imitation of dairy butter, but of any article designed to take the place of dairy butter, however dissimilar in color or appearance the artificial product might be to ordinary dairy butter. Other statutory provisions, aimed at the imitation of dairy butter, were referred to without criticism, and without intimating any doubt of their validity. Among those were the provisions of chapter 215 of the Laws of 1882, which prohibit the introduction of any substance into imitation butter or cheese, for the purpose of imparting thereto a color resembling that of yellow butter or cheese.

Assuming, as is claimed, that butter made from animal fat or oil is as wholesome, nutritious and suitable for food as dairy butter; that it is composed of the same elements, and is substantially the same article, except as regards its origin; and that it is cheaper; and that it would be a violation of the constitutional rights and liberties of the people to prohibit them from manufacturing or dealing in it, for the mere purpose of protecting the producers of dairy butter against competition, yet it cannot be claimed that the producers of butter made from animal fats or oils have any constitutional right to resort to devices for the purpose of making their product resemble in appearance the more expensive article known as “dairy butter,” or that it is beyond the power of the legislature to enact such laws as they may deem necessary to prevent the simulated article being put upon the market in such a form and manner as to be calculated to deceive. If it possesses the merits which are claimed for it, and is innocuous, those making and dealing in it should be protected in the enjoyment of liberty in those respects; but they may legally be required to sell it for and as what it actually is, and upon its own merits, and are not entitled to the benefit of any additional market value which may be imparted to it by resorting to artificial means to make it resemble dairy butter in appearance. It may be butter, but it is not butter made from cream, and the difference in cost or market value, if no other, would make it a fraud to pass off one article for the other.

It is claimed on the part of the defense that the substance known as “oleomargarine” is composed of the same ingredients as dairy butter, with the exception only that the dairy butter naturally contains a small percentage (about five per cent or more) of butyrine, which is not to be found in the fats or oils used in the manufacture of oleomargarine, and has to be added by mingling some milk, cream or butter with the oils; and, when this is done, that oleomargarine and dairy butter are identical in substance, with the exception only that the former necessarily contains a smaller percentage of butyriné; that consequently oleomargarine must resemble butter, and, if the manufacture of any article made in imitation or semblance of butter is prohibited, the manufacture of oleomargarine is made unlawful.

We do not think that this result follows. The statutory prohibition is aimed at a designed and intentional imitation of dairy butter, in manufacturing the new product, and not at a resemblance in qualities, inherent in the articles themselves, and common to both. If, in their essential ingredients or elements, the two articles were so identical that they must necessarily present the same appearance, without resort to any artificial means to produce the resemblance, it is argued on the part of the prosecution that, in that case, it would be competent for the legislature to require that some means be resorted to by the manufacturers to distinguish the new article from the old; that the legislature his attempted to do this by requiring that the packages in which oleomargarine is sold be distinctly marked, and by other means; but that, if all these precautions fail, to prevent deception of consumers, then it is lawful to require that, in the manufacture of the substance itself, some measure should be adopted to make it distinguishable in appearance from the ordinary dairy butter—such as by giving to it a different color, or some other device. We do not deem it necessary now to pass upon this point, for_in the evidence in this case there was sufficient to authorize the jury to find that the oleomargarine sold by the defendant, and that which he had in his store exposed for sale, had, by artificial means—not essential or incident to the manufacture of the article, but resorted to for the mere purpose of imitation—been made to resemble dairy butter; that it was yellow in appearance and looked like butter. It was known to the defendant to be oleomargarine, and. was sold and offered for sale by him as such.

There was evidence to the effect that the natural color or dairy butter was yellow, except when made in winter, when the cows were not grazing; that then it would sometimes be white or pearly, but that was exceptional. The oleomargarine purchased of the defendant was analyzed by a chemist employed by the State Dairy Association, and he testified positively that it had a coloring substance in it, and that it was an added color; that a jar of it produced at the trial was delivered to him in June, 1885 (about eighteen months before the trial), and was then in the condition it was at the time he testified, except that it was then full of a yellow preparation, and sealed up; that the article was then a much deeper yellow than at the time of the trial; that it could have been made without that color; that it was a golden yellow color, which was the color of natural butter, and that the natural color of oleomargarine fat was pure white. Another witness for the prosecution, a chemist, who stated that he was familiar with butter and with oleomargarine, testified that the natural color of oleomargarine was a pearly white or creamy white, and that without any artificial coloring, it did not resemble butter. Prof. Chandler, called by the defense, testified that oleomargarine butter was produced by churning oleomargarine oil with milk, and that, if you desired to have a dark colored butter, a certain quantity of coloring matter was added, either carrot or annotto; that generally annotto was used; that it was the same coloring matter that was used for coloring cheese and butter in the dairies and on the farms. Being asked on cross-examination whether annotto and carrots were essential ingredients in the manufacture of oleomargarine butter, he testified that they could be left out or put in; that the only object of using them was to color the butter; also that they were not essential elements of dairy butter. He also stated that oleomargarine, without any color added, had about the same yellow as butter, white, or a little shade of yellow, practically white. But it is evident that he referred to winter butter, for afterwards he stated that he had observed hundreds of specimens of winter butter, and they were nearly all white; about as white as oleomargarine before any coloring is put into it. Prof. Morton, another witness called for the defense, disputed the efficacy of the tests by which the witness on the part of the prosecution claimed to have ascertained that the oleomargarine sold by the defendant was artificially colored. He testified that the constituent elements of oleomargarine were precisely the same as those found in dairy butter, the difference being only in the proportions of some of them; that dairy butter when exposed to the sun, would bleach white,. like chalk, and become tallow; that the color of oleomargarine oil was a rich cream color, and looked like melted butter; that annotto or carrot, or any of the coloring matters, used in oleomargarine butter, were not at all essential to the manufacture of that article, any more than in the making of butter from cream, and the object of using them in making oleomargarine was to give it a pleasing color, and make it an acceptable article, just as it was used in dairy butter, when essential to make it a pleasing color; that people liked to see yellow butter; that the natural deep yellow color of butter did not indicate the richness of the butter, but that the public accepted it as summer butter, as distinguished from winter butter; that summer butter was valued more, and brought a higher price, and when coloring matter was used in genuine butter the object was to make it resemble a rich flavored and more marketable butter, and the use of annotto and carrot in oleomargarine gave it a yellow color, and whatever value a yellow color gives ordinary butter. Another witness on the part of the defense testified, on cross-examination, that the color of butter was yellow, varying in shade, and that of oleomargarine yellowish; that the color imparted to it was not essential to the article itself, and the object of coloring it was to make it more palatable in appearance and marketable,—to give it the appearance of butter; and he did not think it would meet with a ready sale if it had no color, and that the same rule would apply to dairy butter.

The judge, in submitting the case to the jury on the third count, instructed them that they must be satisfied beyond a reasonable doubt that the defendant did sell the article called oleomargarine; that it was not made from pure unadulterated milk, or cream of the same; and they must further be satisfied beyond a reasonable doubt that the article so sold was in imitation and semblance of butter, and calculated to deceive; and that, if they found either of these facts in the negative, it was their duty to acquit. He further charged that it was not-necessary to show that the article sold was calculated to deceive the person who bought it in this instance, but that it was in imitation and semblance of butter, and calculated to deceive any person who might buy it. Exceptions were duly taken to the charge, raising the question of the constitutionality of the act under which the defendant was indicted; and also to refusals of the court to charge, raising the points made on the part of the defense that it was necessary that the purchaser from the defendant should have been deceived; that, if the article sold was substantially identical with butter, they must acquit; and that the words “imitation or semblance ” meant a fraudulent imitation or semblance, as to which the court charged that the words meant an imitation or semblance likely to deceive. The jury having found the defendant guilty, the court sentenced him to pay a fine of $100.

We think that the evidence justified the court in submitting to the jury the question whether the article sold was an imitation calculated to deceive. It was sufficient to authorize a finding that it had been artifically colored so as to imitate the most valuable kind of dairy butter; that such coloring was not essential or necessarily incident to its manufacture; and that its only object was to make it resemble dairy butter, and increase its market value. There may have been some conflict in the evidence on these points, but in the main they were established. At all events the evidence was sufficient to authorize the jury to find those facts, and we are of opinion that such artificial coloring of oleomargarine, for the mere purpose of making it resemble dairy butter, comes within the statutory prohibition against imitation; and that such prohibition is within the power of the legislature, and rests upon the same principle which would sustain a prohibition of coloring winter dairy butter for the purpose of enhancing its market price, by making it resemble summer dairy butter, should the legislature deem such a prohibition necessary or expedient. We have examined the various exceptions taken to the charge, and refusals to charge, and to rulings on questions of evidence on the trial, and find none which require a reversal of the judgment. An application of the general conclusions which we have reached will substantially answer them without going over them in detail.

The judgment of the general term should be affirmed.

All concur, except Peckham, J., taking no part.'


author: Per Curiam.

text:
    The People of the State of New York ex rel. Lucy Allen, Resp’t, v. William H. Allen, App’lt.

      (Court of Appeals,

      Filed March 25, 1887.)

    Appeal—Divorce—Custody of children.
    Where the court below upon a view of all the existing facts relating to the welfare and interest of infants, exercised their discretion on awarding to the mother the custody of the children, not giving to an Illinois decree awarding the custody to her, the force of an estoppel or judgment, but simply regarding it as a circumstance bearing upon discretion to be exercised, this court will not disturb its decision upon appeal.
    Appeal from an order and judgment of the supreme court, general term, fifth department, affirming an order of the Monroe special term, awarding the custody of Mary Allen, Thomas Allen and John Allen, infant children of Lucy Allen and William H. Allen to their mother Lucy Allen.
    For a full statement of facts, see 2 N. Y. State Rep., 199.

      Theo. Bacon, for app’lt; John M. Davy, for resp’t.
   Per Curiam.

We dismiss this appeal for the reason that the courts below, upon a view of all the existing facts relating to the welfare and interests of the infants, exercised their discretion in awarding to the mother the custody of the children; and in so doing gave to the Illinois decree not the force of an estoppel, or the conclusive effect sometimes due to a judgment, but simply regarded it as a fact or circumstance bearing upon the discretion to be exercised, without dictating or controlling it.

Appeal dismissed, with costs.

All concur.