author: Macomber, J.

text:
    In the Matter of the Petition of Benjamin Russak and ors., for the Removal of Louis Tobias and Morris Green from the Trusteeship under the Last Will and Testament of Henry Harris, deceased.

      (Supreme Court, General Term First Department,

      Filed May 13, 1887.)

    1. Testamentary trustees—Removal oe—Infant parties in interest MUST BE REPRESENTED.
    A petition having been made for the removal of certain persons, trustees under a last will and testament, from such trusteeship, and several of the parties interested in the disposition of the estate of the testator being infants and unrepresented in this proceeding: Held, that before an order of the gravity of that prayed for could be made, it would be necessary to bring the infants in as parties to the proceeding, and that it was incumbent upon the court to appoint as guardian ad litem, a disinterested person without interests hostile to them, to act for them.

      2. Same—Removal of—Power of court with regard to.
    This court is vested with power ample to remove trustees from a position of trust, and appoint others thereto, and the exercise of this power is not necessarily dependent upon proof of actual misconduct or malfeasance in office, prejudicial to the interests of the trust estate.
    8. Same—Removal oe—What will hot warbaht. q
    Where the presence of certain parties already appointed as trustees, seems _ necessary to the best management of the trust estate, the existence of acrimonious feeling between them and their associates does not furnish cause sufficient for their removal.
    Appeal by Louis Tobias and Morris Green from an order of the special term removing them from the trusteeship under the last will of Henry Harris, deceased.

      Edwin L. Kalish, for the app’lt, Tobias; Alfred Jaretzki, for the app’lt, Green; Cardoza & Newcombe, for the petitioners and resp’ts.
   Macomber, J.

The application to the court for the removal of Louis Tobias and Morris Green from the trusteeship of the last will of Henry Harris, purports to be made in behalf or with the consent of all parties interested in the estate. But it appears, by the affidavits of three of the petitioners, that certain persons, who were not parties to the proceedings by name, are infants whose assent to the removal of the trustees is given by their general guardians only. These are Henry S. Harris, Rosalie Harris, Latta B. Russak, Rita Hect, Sophia Hect and Jacob Henry Hect, who are under the ninth and tenth sections of the will, ultimately entitled to a large part of the principal of the trust, subject to the life interest of their parents, who are among the petitioners. The affidavit of the parent in each instance says that he is the general guardian of certain of the infants, naming them. I do not understand, however, from the appeal papers, that such an assertion in the affidavit means that any judge or court has appointed these persons such general guardians, but, on the contrary, that it is intended to allege nothing further than that such persons are by nature the guardians of their infant children. There were handed to the court on the argument documents from the proper clerk’s office which show that no appointment of a general guardian has been made and placed on file.

. Irrespective, however, of the letters of general guardianship, it was necessary to bring these infants as parties into this proceeding before an effective order could Ibe made of such gravity as the one from which this appeal has been taken. Being so deeply interested in the estate of their grandfather, "and the amount which should finally come to them being dependent largely upon the skill and ability with which the property is in the meantime managed, it became incumbent upon the court, before deciding so grave a matter to appoint for them a guardian ad litem, who, being a disinterested person with no interests hostile to them, could properly, and without passion, bring before the court proper considerations to determine whether or not two of the four trustees should thus summarily be deprived of the important trust which the testator has reposed in them mainly for the benefit of these and other grandchildren. Sherman v. Burnham, 6 Barb., 404; Bear v. Am. Rap Tel. Co , 36 Hun, 400.

This consideration would necessarily lead to a reversal of the order, with directions to bring in such infants as -parties, but a careful consideration of the merits of the motion renders it unnecessary to protract longer these proceedings.

There exists no doubt but that this court has ample power to remove one or more trustees from the management of a trust estate and appoint others in their place. Nor is the exercise of this power necessarily dependent upon proof of actual misconduct or malfeasance, which has prejudiced or impaired the trust estate. If the court can see inharmonious relations have grown up between the several trustees, engendered by the one complained of, and can see that such inharmonious and unfriendly relations will, to a greater or less extent, be detrimental to the estate, an order may be made which shall, if possible, restore harmony between the trustees and, if necessary, remove the cause of disagreement. Quackenboss v. Southwick, 41 N. Y., 117.

But this power ought not to be exercised except in well defined cases; for it is at best an interference with the choice of instruments made by the testator for carrying out his intentions as expressed in the will; and these intentions and purposes are generally better capable of being executed by the person selected by the testator than by those named by the court, being chosen, as will be seen conspicuously in this case, with a lively sense of fitness for the particular trust.

The facts of each case must point to the proper conclusion therein; for very little aid can be had from the adjudged cases beyond affording valuable illustrations of the general rule.

It appears that Henry Harris, who had been a member of the firm of Harris & Russak, died on the twelfth day of June, 1819, in the city of New York, leaving a last will and testament which was afterwards duly admitted to probate, by which his partner, Benjamin Russak, and Alfred Harris, two of the petitioners, and Morris Green and Louis Tobias, respondents in this proceeding, were appointed executors and trustees. From that time down to the 18th day of February, 1886, there had been no difference between these trustees in regard to the administration of the estate, nor in their personal relations to each other. The burden of the work had been borne by trustee, Russak, as he says, under the advice of his associate, Harris, but the two responding trustees, Green and Tobias, as is shown in the opposing papers, discharged all of the duties that were required of them, and were frequently consulted in regard to the transactions made necessary in the proper management of the estate.

On the 18th day of February, 1886, the trustees met for an accounting. Papers had been prepared for their signature by the attorneys selected by Mr. Russak, and the accounts were passed on that day, so far as they could be by agreement of the trustees. Among the papers signed was a release by the trustees of. commissions which were due them by law from the estate. On the next day Mr. Green, on consultation with his private counsel, was advised that such a settlement of the accounts was not proper, that it did not effect any useful purpose except as between the trustees themselves, and that the whole preceding was irregular, and advised him that there should be an accounting in the regular way before the surrogate.

The attorney was requested to look into the matter, and he found, among other things, that the commissions of the several trustees had been waived by them. Thereupon Messrs. Green and Tobias, claimed that their signatures; were placed upon the paper by inadvertence, and without fully understanding that it was a waiver of so great significance ; for the legal fees up to that time were not inconsiderable. That proceeding incensed the petitioners. Nevertheless, a proper accounting was had before the surrogate, and Mr McLean was appointed guardian ad litem of the infants who were interested in the estate, and the accounts were finally settled and allowed in the month of August following. As a part of the decree of the surrogate made under an agreement of the trustees for an adjustment of their commissions, was an award of one thou sand dollars to each of the three trustees, Louis Tobias,, Morris Green and Alfred Harris, while the sum of $10,-053.09 was awarded to trustee Russak, besides an allowance for costs. It was then adjudged by the surrogate “That the executors pay over said balance of the money and property of the said estate remaining in their hands to Louis Tobias, Benjamin Russak, Alfred Harris and Morris Green, to be held and retained by them as trustees, under and by virtue of the provisions of the last will and testament of said Henry Harris, deceased, for the -uses, and purposes,, and trusts imposed upon said Tobias, Benjamin Russak,. Alfred Harris and Morris Green, or the survivors or survivor of them, by the provisions of said last will and testament.”

In pursuance of the portion of the surrogate’s decree quoted above, Green and Tobias demanded of their associciates that the property should be placed in the names of the four trustees, and that the moneys should be deposited to the credit of all, and not to the credit, as theretofore, of two only of their number. As the case discloses the fact to be, the answer made to that proposition by the petitioners Eussak and Harris, was this summary application to the court for the removal from office of Green and Tobias.

An examination of the petition, answer, and affidavits, discloses no fact which would warrant the court thus summarily to interpose its power and authority. The fact is not to be lost sight of, that the appellants made no illegal claims for commissions.

It is difficult therefore, to see why proceedings should be-instituted against them, based solely upon acrimonious feelings of the two associates engendered by that act, and by the demand that the surrogate’s judgment be carried into effect.

Lest the position of the petitioners should be misapprehended, the following portion of their petition should'be considered, namely, “That the conduct of said Green and Tobias in neglecting to do anything in respect to the management of said estate for six years, and then claiming-commissions, has greatly incensed your petitioners against them, and has also created disagreements between said Green and Tobias, and the other executors Harris and Eussak, and will create great disturbance and annoyance in the administering of the estate of said Green and Tobias are permitted to act in the capacity of trustee.”

And again, in their affidavits replying to those used in opposition to their petition, they say: “That these affiants, are, and for several months past have been, greatly in-ceased and angered at the conduct of the said respondents and have refused, and still refuse to recognize said Green or Tobias, or to exchange a word with them, so great is the ill-feeling that has been engendered, and the affiants Benjamin Eussak and Alfred Harris say, on their own behalf, that so great is this ill-feeling that they refuse and decline to serve in this capacity as trustees if said Green and To-bias are to be continued in said office with them, for the-reason that they feel that from the conduct of said Green and Tobias and the desire to remain as trustees is simply in the hope of obtaining commissions without any regard to their duty as trustees.”

While hitherto the four trustees had acted harmoniously together for six years, the petitioners suddenly, and without any cause whatever, took offense at the assertion of two of their associates of a proper and legal demand. The reason for removal of the appellants is not because of any misconduct on their part, but because they ventured to discharge the duties of their trust in a reasonable manner. They were chosen by the testator because they were his intimate friends in whom he had great confidence, both for their business ability and moral character. Mr. Tobias and the testator had been acquainted in Germany and in this country for upwards of fifty years at the time of the latter’s death. The will, when it was executed, was placed by the testator in the hands of Mr. Tobias for safe keeping, and the testator afterwards pass over to the same custodian the several codicils to the will, and the yearly balance sheets of the firm of Harris and Eussak, as his will declared his intention to do. The testator was associated in a large mercantile business with the petitioner Eussak. It is apparent, that knowing that a large part of his property was invested in their joint business, he, with no want of confidence in Mr. Eussak, desired that persons other than those who were members of that firm should have, in part, the management of his estate, for in a technically legal sense, the relations of Eussak as survivor of the firm of Harris & Eussak, were hostile to the estate of the deceased co-partner. The petitioner, Alfred Harris, was at that time a minor. It appears further that the amount of money which was realized to the estate from the interest of the deceased in the firm of Harris & Eussak was the sum of $112,400.63.

After the settlement of the survivor of the copartnership with the estate of the deceased, the pecuniary interest of the petitioners, Eussak and Alfred Harris, was of such character in its relation to the ultimate rights of the remainder-men, as to show the importance of having disinterested trustees present and active in duty to prevent loss, not necessarily by fraud, but through accident or carelessness.

Moreover, it is shown that the sum or $40,000 of the trust funds has been loaned to the present firm of Harris & Eussak, personally through the act of Eussak alone if it be true, as he says, that he had the sole charge and management of the business for six years past. This is an additional reason why the court should be careful to retain in the trusteeship disinterested parties, not because it distrusts the character and business ability of the other trustees, but because it must insist that in the management of an estate where the rights of infants are paramount, all the safeguards shall be put out to prevent loss of the trust property. Indeed, it would be more in the line of prudence, if the petitioners, Russak & Harris, desire to retire from the management of the estate, to permit them to do so, rather than to make an order removing these two reputable and competent men from this important trust simply because they demanded and received lawful commissions, and because they asked that the four trustees carry out the just and proper decree made by the surrogate.

The gentleman who was appointed guardian ad litem to to take care of the rights of the infants in the surrogate’s court upon the accounting mentioned above makes an affidavit in these proceedings, in which he expresses the opinion that it would not be a judicious thing to remove trustees Tobias and Green from active participation in the trust. He further says that the examination which he gave to the affairs of the estate did not reveal any neglect or misconduct on the part of the executors, or show any instance of want of harmony or perfect accord among them.

The two persons named by the special term to take the place of Green and Tobias in the administration of the trust, while doubtless competent and proper to be trustees in the execution of trust estates generally, bear, as it is claimed, that relation to Russak & Harris, one of them being in the employment of the firm, and the other a relative of one of the parties, as to make them unsuitable in this particular instance.

The special term failed also to require of the new trustees a bond for the faithful discharge of their duties. The established rule of the court is to exact such bond, and it should not be departed from.

The order appealed from should be reversed, with ten dollars costs to each of the appellants, besides disbursements, and the motion denied.

Van Brunt, Oh. J, and Bartlett, J., concur.


source: Caselaw Access Project

author: Potter, J.

license: Public Domain

text:
    The People of the State of New York v. Jacob Sharp.

      (Supreme Court, Special Term, New York County,

      Filed August 25, 1887.)

    1. Criminal trial—Conviction nor bribery—Sentence—When stay ON EXECUTION OF JUDGMENT SHOULD BE GRANTED PENDING APPEAL— Code Criminal Procedure, § 537.
    Every person convicted of a felony or a misdemeanor has an absolute right to appeal. He needs no certificate or consent for that purpose but his appeal will not stay the execution of his sentence (except in case of a sentence of death) unless he obtains a certificate of a judge of the supreme court. Under section 537 of Code Criminal Procedure, a certificate that in his opinion, there is reasonable doubt whether the judgment should stand, is essential to a stay. This devolves the duty upon "the judge to whom the application for such certificate is made, to form an opinion whether the judgment should stand, and such judge cannot form such opinion without a careful examination of the whole case, involving the indictment, the evidence and the proceedings upon the trial and the charge of the trial court to the jury, who rendered the verdict that the defendant was guilty.
    2. Same—Evidence—Improper admission op.
    On the trial of defendant under an indictment charging him with the bribery of a certain alderman of the city of New York in connection with the granting to the Broadway Surface Railway the right to lay tracks and operate a street railway through Broadway in said city, the testimony of defendant taken before a railroad committee of the senate authorized and directed to investigate the means and methods used to obtain the consent of the local authorities to construct the same was admitted in evidence under objection and exception; Held, that, the trial court erred in the admission of such testimony.
    3. Same—Constitutional provision—A party cannot be compelled TO CRIMINATE HIMSELF.
    The rule at common law and before the adoption of the constitution of the United States or that of any of the states, was that a witness should not be obliged to give evidence which could be used against himself in any criminal trial. The same principiéis embodied in the constitution of the United States and in that of this state in these words: “ No person shall be compelled in any criminal case to be a witness against himself.” This protection applies to witnesses called to give testimony upon trials in civil as well as criminal actions.
    4. Same—-Penal Code, § 79.
    Section 79 of the Penal Code, which by its provisions gives protection to witnesses on the subject of bribery, includes witnesses giving testimony upon that subject before the legislature or a legislative committee. Under the construction of the earlier laws upon the subject of bribery, the witness could only be required to testify in relation to bribery before a magistrate, grand jury or court, and was only protected from its use against him in criminal proceedings. But under the existing law he can be compelled to give testimony before any court, hearing, proceeding or investigation of whatever kind or nature, and is guaranteed protection therefrom in all prosecutions or proceedings against him both civil and criminal.
    5. Same—Evidence of flight of co-defendant inadmissible.
    It was error in the trial court to admit proof of the fact of the absence of persons charged in the indictment with the defendant with the crime of bribery and their sojourn in Canada, as the excuse of their non-production as witnesses against the defendant by the prosecution.
    6. Same—Opinion of witness inadmissible—Rule.
    Miller, a witness called by the prosecution, was an alderman and voted at all times for the Broadway railroad, and was one of the railroad committee. He testified that he received $5,000 from De Lacy in bills of large denominations in a month or so after the Broadway resolution was passed bv the board of aldermen, and that De Lacy said when he gave him the bills, “ there is something to buy election tickets with; ” and that within a day or two afterwards he returned the identical money to De Lacy, and that there was no agreement or talk or understanding with De Lacy at any time that the money was given him on account of his vote for the resolution. The witness then, in answer to the question “tell us what did you think at the time he gave it to you for," was allowed to answer over objection and exception, “I supposed it was for the Broadway railroad.” Held* error; the rule is that, except in cases of value of property, of science and skill, etc., from experts, etc., the witness can only testify to facts, and not to his opinion, thoughts or suppositions.

      Randolph P. Marline, district attorney, with McKenzie Semple and Delaney Nicoll, for the people; John E. Parsons, W. BourJce Cochran, Albert Stickney & Mitchell, for def’t.
   Potter, J.

This is an application upon behalf of the defendant for a stay of execution of the judgment of the court of oyer and terminer, convicting the defendant of the crime of bribery, and the sentence of the court to imprisonment and the payment of a fine, pending the determination of his appeal therefrom to the general term of the court.

The application is made under section 527 of the Code of Criminal Procedure. That section is as follows: “An appeal to the supreme court, from a judgment of conviction, or other determination from which an appeal can be taken, stays the execution of the judgment or determination upon filing, with the notice of appeal, a certificate of the judge who presided at the trial, or of a judge of the supreme court, that in his opinion there is reasonable, doubt whether the judgment should stand, but not otherwise, except that when the judgment is of death, the appeal stays the execution of course until the determination of the appeal. And the appellate court may order a new trial if it be satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice requires a new" trial, whether any exception shall have been taken or not in the court below.”

Every person convicted of a felony or a misdemeanor has an absolute right to appeal. He needs no certificate or consent for that purpose but his appeal will not stay the execution of his sentence (except in the case of a sentence of death) unless he obtain a certificate of a judge of the supreme court.

Under this section, a certificate that, in his opinion, there is reasonable doubt whether the judgment should stand, is essential to a stay.

This devolves the duty upon the judge to whom the application for such certificáte is made, to form an opinion whether the judgment should stand and such judge cannot form such opinion without a careful examination of the whole case, involving the indictment, the evidence and the proceedings upon the trial and the charge of the trial court to the jury, who rendered the verdict that the defendant was guilty.

Under a liberal and just construction of the language of this section, a judge is called upon to review the entire evidence, the charge of the trial court and the law of the whole case, for he is required by it to form an opinion whether the judgment should stand and the appellate court is required to set aside the judgment and order a new trial, if it be satisfied that the verdict was against the weight of the evidence or against law, or that justice requires a new trial whether any exception shall have been taken in the court below.

Having become impressed with the clear conviction that the trial court fell into error in the admission of some of the evidence offered by the prosecution, and that for those errors the appellate court must grant the defendant a new trial, I have not, therefore, examined the evidence any further than it had some relation to the objections and exceptions to the evidence received upon the trial and the charge of the trial judge.

I have been called upon to examine the charge, and I am quite free to say that the charge is remarkably clear, fair and faultless, except in presenting for the consideration of the jury, those portions of the evidence which I think were erroneously received upon the trial. In my opinion, incompetent evidence was received upon the trial in these respects:

First. The testimony given by the defendant before the railroad committee of the senate, authorized and directed to investigate the means and methods used to obtain the consent of the local authorities to construct the Broadway 'Surface Railroad.

Second. The fact of the absence of persons charged in the indictment with the defendant with the crime of bribery and their sojourn in Canada, as the excuse of their non-production as witnesses against the defendant by the prosecution ; and

Third. The opinion or supposition of the witness Miller as to the motive or purpose of DeLaey when he handed Miller the five thousand dollars.

The testimony of the defendant was taken before the senate committee, under resolution passed by the senate, as follows:

Whereas, The constitution and the statutes provide that there shall be no street ralroad constructed or operated in or upon any street, without (among other requirements) the consent thereto first having been obtained of the local authorities having control over such streets, or the portion thereof upon which it is proposed to construct and operate such a railroad ; and,

Whereas, It has for some time been charged, and is now being continually charged by the New York papers, without regard to politics, and with an accord and earnestness almost unprecdented that the consent above referred to was obtained for the construction and operation of the railroad now in operation, in and upon Broadway, in said city, through fraud, and by and through corrupt influence and bribery of such authorities; and,

Whereas, The “local authority" having control over said Broadway, and which granted the right and gave the consent referred to in said alleged corrupt manner, was the aldermen of said city ; and,

Whereas, A strong and reputable sentiment in New York city demands at the hands of the senate an investigation of the methods in obtaining such consent; now, be it therefore

Resolved, That the railroad committee of the senate be, and hereby is authorized by the senate to fully investigate fully all matters relating to the methods of either the Broadway Surface Railroad Company, or of any other person or corporation, relating to or in obtaining such consent, and also to investigate fully the action of the board of aldermen of said city, which granted or gave the_ same in respect thereto; and said committee is hereby given full power and authority to prosecute its investigations in any and all directions, in its judgment necessary to a full and complete report to the senate, as to all matters relating to the granting of said consent, and the influences and inducements which lead thereto.

Resolved, That said committee report to the senate in relation to the matters with such recommendations as in its judgment the public interest may require, and particularly as to the policy of an amendment to the constitution vesting the power to grant such consent in some other authority than as present provided.

That said committee is hereby given given full power and authority to send for persons and papers, also to employ a stenographer and such counsel, accountants and experts as it may deem necessary to the accomplishment of its said work. It is further empowered to hold its sessions in the city of New York and conduct its investigation there; the committee shall conclude its investigation in time for report to the present senate on or before April 15, 1886. The sergeant-at-arms of the senate shall at afl times attend said committee and serve all subpoenas issued thereby, and perform any and all duties as sergeant-at-arms of said committee.”

The testimony given by the defendant in answer to questions put to him by the senate committee and its counsel, were received in evidence over objection and exception, upon the trial of the indictment of the defendant for bribery of one of the board of aldermen, in voting for the consent of the aldermen to construct the Broadway street railroad.

I am very decidedly of the opinion the court erred in the admission of such testimony.

The rule at common law and before the adoption of the constitution of the United States or that of any of the states, was that a witness should not be obliged to give evidence which could be used against himself in any criminal trial.

That principle is embodied in the constitution of the United States and in that of this state, in these words: “No person shall be compelled in any criminal case, to be a witness against himself. .

The same principle I apprehend is substantially contained in express terms in the bill of rights or constitution of every state of the union. In the declaration of Massachusetts the principle is expressed in this form: “No person shall be compelled to accuse or to furnish evidence against himself.” Emery’s Case, 107 Mass., 173; 9 Am. Rep., 22; Boyd v. United States, 116 U S. Rep., 616-630; State v Froiseth, 16 Minn., 296; People v. Hackley, 24 N. Y., 74; People v. Mather, 4 Wend. Rep., 229.

The Fmery Case arose before a committee of the legislature of Massachusetts, appointed to investigate suspected bribery of constables or policemen. In regard to the existence and extent of this constitutional immunity from self-crimination, the court says: “By the narrowest construction this prohibition extends to all investigations of an inquisitorial nature instituted for the purpose of discovering crime, or the perpetrators of crime, by putting suspected parties upon their examinatian in respect thereto, in any manner although not in the course of any pending prosecution.”

This protection applies to witnesses called to give testimony upon trials in civil as well as in criminal actions. Burns v. Kempshall, 24 Wend., 360; Close v. Olney, 1 Den., 319; Perrine v. Striker, 7 Paige, 601; Abbott’s Trial Evidence, 620.

This constitutional protection continues in all the plenitude its language imparts, until the legislature shall expressly remove the immunity afforded by the constitution from a witness and give him instead immunity by law. The legislature has the power to do this, provided, if it makes the protection by law as ample as the protection by the constitution, but not otherwise. See cases above, People v. Mather, People v. Kelly, Boyd v. United States, Emery Case, and others cited in that connection.

This protection by law is effected by providing that the testimony given by a witness upon a specified subject shall not be used against him. Under the constitutional immunity, the witness could prevent the use of his testimony against himself by refusing to give any testimony which might be so used. Under legal immunity the same result is attained by a provision of law that his testimony shall not be used against him.

While the result is the same, the practical operation of the principle varies according to its origin. If derived from the constitution, the witness must assert his privilege and decline to answer when the question is asked, or he waives his privilege. If derived from the law, he must answer the question and assert his privilege when his answer is offered in evidence against himself, or he waives his privilege. This evidence was objected to upon the trial of the defendant, but was received notwithstanding, and thus the defendant was deprived of his protection without his assent.

Where the answer to the question will not criminate the witness, he is bound to answer or be punished for contempt. In the same manner he may be punished for contempt if he refuses to answer when the answer cannot be used against him.

That brings me to the consideration of the question whether the defendant was compellable to give the evidence before the senate committee that the prosecution was permitted to introduce against the defendant upon his trial for bribery. The solution of this question depends upon two other questions and they are, was the senate committee authorized to require the defendant to make answer to its questions, and was the defendant bound to answer the questions put to him by the committee by reason of the protection afforded him by the law?

This committee was one of the standing committees of the senate of this state. As such there is no question that it was legally constituted. There is no question that the resolutions hereinbefore set forth were legally passed. Xor is there any question that the legislature had the power to institute the inquiry and make the investigation whether the consent of the board of aldermen to the construction of the Broadway Railroad was obtained through “fraud, corrupt influence and bribery of such authority,” and further, to investigate fully all matters relating to the methods of either the Broadway Surface road, or of any person or other corporation relating to or obtaining such consent, and also to investigate the action of the board of aldermen, or any member thereof, in giving such consent, etc., and that said committee report in relation thereto with such recommendations as the public interest may require, and particularly as to the policy of an amendment of the constitution vesting the power to grant such franchises in some other authority than as at present provided.

The power of obtaining information to enable it to perform its legislative functions, to recommend and provide-for a change of the constitution, etc., is undoubted. Such has been the uniform practice of all legislative bodies and their power to subpoena and examine witnesses within those limits and to punish witnesses who refuse to appear and to testify has been in numerous instances sanctioned by the courts. The People ex rel. McDonald v. Keeler, 99 N. Y., 463; The Emery (Mass.) Case, above cited.

The Penal Code recognizes and re-enacts the common law in this respect in sections 68-69, which provide that a person who, being present before either house of the legislature, or any committee thereof authorized to summon witnesses, willfully refuses to be sworn or affirmed, or to answer any material and proper question, is guilty of a misdemeanor.

So much as to the authority of the committee to ask material and proper questions and to compel answers thereto.

Were the questions asked by the committee of the defendant, material and proper?

The resolution of the senate was to the effect that this committee should investigate whether the consent to the construction of the Broadway Railroad was obtained through bribery of the board of aldermen and also as to the-methods of that railroad or person or any' other corporation in obtaining such consent. It is manifest from the terms of the resolution that the committee was required to investigate and report as to both the acceptors and givers of bribes.

But if that was not manifest from the import of the resolution it would follow by necessary implication; for there cannot be a bribed without a briber. The process requires at least two co-operative parties.

So'much is necessarily involved in any investigation into the making and performing of an agreement in relation to-any matter whether legitimate or otherwise.

The investigation was not alone to ascertain who were-bribed but also to ascertain who the bribers were.

The defendant was called before that committee asked in substance how much money had been raised, how it was-raised, into whose hands it and portions of it had come and what he at least had done with that which came into his-hands. Are not such material and proper questions and would not the answers to them, show or tend to show whether there was bribery or not, and who the parties to-the bribery were ? I cannot imagine questions more material and proper for such purpose.

The only remaining question is, whether the answers given by the defenant to those questions before the investigating committee were admissible against him upon Ms trial for bribery and that depends upon the question whether the statute giving, protection to witnesses upon the subject of bribery, includes witnesses giving testimony upon that subject before the legislature or a legislative commit tee ? That statute is the 79th section of the Penal Code, which is as follows: A person offending against any provision of any foregoing sections of this Code relating to bribery is a competent witness against another person so offending, and may be compelled to attend and testify upon any trial, hearing, proceeding or investigation, in the same manner as any other person But the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifyingOne of the foregoing sections defines the crime of bribing aldermen and another of them prescribes the punishment thereof. It is conceded that if the defendant had given this testimony upon a trial or judicial proceeding, hearing or investigation, he would be entitled to the protection guaranteed by this statute. The case of The People v Keeler (99 N Y , 476), holds that the legislature has judicial power and functions and that the taking of testimony for certain purposes is a proper exercise of such judicial power and function.

The language of this section is very general employing terms without any qualification whatever. There is no word qualifying one of these terms used to indicate the occasions for the examination of witnesses and taking their testimony. The words used viz- trial, hearing, proceeding and investigation, would seem to embrace every conceivable legally authorized or judicial occasion.

There is nothing to indicate or distinguish what kind of a trial, hearing, proceeding or investigation is intended The word investigation is and has been in use for an indefinite period of time to express the character and functions of legislative committees and has become the index word in the books containing the laws and proceedings of legislative bodies. The word has a history in connection with the laws which have been passed from time to time upon the subject of bribery.

Neither the provisions of the Revised Statutes in relation to bribery nor the act of 1853, amending the Revised Statutes, use the word investigate. They only com pel a witness to testify upon that subject before any magistrate, grand jury or any court.

By the act of 1869, chapter 742 (which was entitled an act for the more effectual suppression and punishment of bribery), provides no person shall be excused from testifying in regard to the subject of bribery on any examination or trial or any investigation by any committee of the legislature, or either house, etc., and also provides that the testimony by such witness on such trial or investigation shall not be used upon the trial of any action, either civil or criminal, against him.

The word investigation in connection with bribery occurs for the first time in this act of 1869. It occurs next in the act of 1881, the Penal Code, in the 79th section.

It is generally understood by the bench and the bar' that the authors of the Penal Code were, as a general rule, simply designed to codify the existing criminal law, of which the act of 1869 formed a part. It is reasonable to presume, therefore, that they retained and used the word “investigation” in the same-sense in which was used in the act of 1869. That presumption must prevail, or we are forced to the conclusion that the legislature of 1869 used that word in connection with bribery to express one meaning and the legislature of 1881 used the same word to express a different meaning in statutes relating to bribery.

The succeeding part of section 79 seems to confirm this view, for it affords a witness testifying in relation to bribery with which he was concerned, an unqualified exemption from the use and effect of his testimony in all prosecutions and proceedings, civil and criminal.

Under the construction of the earlier laws upon the subject of bribery, the witness could only be required to testify in relation to bribery before a magistrate, grand jury or court, and was only protected from its use against him in criminal proceedings But, under the existing law, he can be compelled to give testimony before any court, hearing, proceeding or investigation of whatever kind or nature, and is guaranteed protection in ah prosecution or proceed ings against him, both civil and criminal

In other words, the constitutional privilege, which was universal, is by law replaced by a universal exemption in respect of bribery. If there was a doubt in relation to the meaning of this statute of exemption, inasmuch as it is a substitute for a privilege guaranteed by the constitution, the courts would give the statute a liberal construction. People v Kelly 24 N. Y , 74; Henry v. The Bank of Selina, 5 Hill, 523, Perine v Striker, 7 Paige, 598.

Consider for a moment where the contention of the prosecution would lead. A witness may be compelled before the criminal courts to give evidence in relation to the crime of bribery with which he was connected, and the statutes protects him from its use against himself in all places and upon every occasion; and yet it is argued that the legislature intended and their laws provide that a citizen may be called before a legislative committee and there compelled to give the same testimony, and that testimony may used against himself when upon trial for such bribery. If that be so, the legislature has set a trap for the citizen and baited it with delusive words.

It seems to me very clear that the language of section 79 allows, if it does not require, that construction, and such construction will avoid a conflict with the constitution. Several cases already cited support these views.

The case of The People v. Keeler. This was a case, like the case under consideration, of an investigation before a standing committee of the senate into alleged fraud by the commissioner of public works of the city of New York. The relator was adjudged to be committed for refusing to appear and testify before the committee.

The Emery Case (107 Mass., 172), was a legislative investigating committee of Massachusetts, empowered and directed to investigate in relation to the-alleged bribery of constables. The relator was asked, have you ever paid any money to any state constable ? The legislature imprisoned him for contempt in refusing to answer the question The court discharged him from the imprisonment, not upon the ground of want of power in the legislature, or because the question and answer were not material and proper, but solely upon the ground that the legislature had not provided legal protection as ample as his constitutional privilege.

People v Nathan The defendant was indicted (sections 68 and 69) for refusing to testify before a senate investigating (the Roosevelt) committee upon the subject of bribery. He was tried and convicted of the misdemeanor specified in those sections in a court of oyer and terminer, held in the city of New York, and sentenced, the court holding that he was bound to testify before said committee upon the subject of a bribery, with which it was alleged he was connected.

It was said, upon the argument, that Justice Van Brunt held that this evidence was admissible, upon the motion to set aside the indictment against the defendant, on the ground of its admission before the grand jury that found the indictment.

I have carefully read the stenographer’s minutes upon the argument of that motion and the remarks of Justice Van Brunt, and I do not understand that he passed upon the subject of the legality of that evidence, but held, if it was illegal, its admission before the grand jury would not justify the setting aside the indictment under the decision of the court of appeals in the Peatra Case. Justice Van Brunt, however, did remark after intimating that simply because the grand jury received illegal evidence would not justify the setting aside of an indictment, “But when it comes to his (Sharp’s) trial, and evidence of that kind, around which the constitution throws its shield, is used against him, then the constitutional privilege becomes operative, and it does not become operative before that time, because it is upon the trial that the question of constitutional privilege applies.” The district attorney thereupon asked or suggested that Justice Van Brunt do not pass upon that subject, and the subject was dropped from that time.

It seems to me very plainly that Justice Van Brunt expressed unmistakably his opinion that such evidence could not be read upon the trial of defendant.

Judge Smyth expressed a decided opinion on" the trial of McQuade, convicted of receiving a bribe for his vote on the Broadway road, that the evidence given by McQuade before this same senate committee could not be used against Mc-Quade upon his trial, and the district attorney did not after this expression of opinion press the evidence, but withdrew it, and did not again offer it, although the court granted the opportunity.

The next ruling and exception I propose to examine relates to the failure of the prosecution to produce as witnesses upon the trial of the defendant several persons alleged in the indictment to be guilty of the bribery with the defendant and of their absence from the trial and their sojourn in Canada as the excuse for such non-production.

The authorities are clear to the effect that the flight of one co-defendant or co-conspirator, after the perpetration of the crime, is inadmissible upon the trial of the associate. People v. Stanley, 47 Cal., 113 (Am. R., 401); State v. Rand, 33 N H., 216; Greenl. Ev , § 3, 3; Phil., 396, n. 234; Whar. Crim Ev, 699.

Indeed it was conceded by the court and district attorney that the flight of a conspirator after the conspirator’s work has been accomplished, is inadmissible upon the trial of one of the conspirators to prove his guilt. But the court allowed the prosecution to prove their flight and sojourn in Canada, concededly improper evidence, to excuse the prosecution from performing their alleged duty to produce them as witnesses to support the prosecution in proving the guilt of the defendant, a co-conspirator.

Was there any such duty resting upon the prosecution ? The theory of the prosecution was, and the allegations in this indictment are, that these persons, Maloney and others (in Canada), were engaged in the alleged bribery transac • tionwith the defendant and stood indicted for such bribery

No authority was presented or referred to on the oral argument of the question of the admissibility of this evidence showing that it was the duty of the prosecution to produce these persons as witnesses, or in their absence the correlative duty of accounting for their non-production. Nor has any authority in support of such duty been presented upon the elaborate written argument of this motion. I am not aware of any such rule in a civil action, much less in a criminal trial.

Bleecker v. Johnston (69 N. Y., 309) was a civil action involving the issue whether or not a contract of employment was made between the plaintiff and tire defendants partners. The plaintiff testified it was made between him and defendants. One of defendants only was called, who contradicted the plaintiff as to the conversation. It appeared both defendants were present, yet one was not called, though in the city at the time of the trial. The court was asked to and did charge that it was the duty of every party to produce every witness who can convey any light to the jury, etc.

This was held by the court of appeals to be erroneous and that there was no such rule even in a civil case.

I am aware that a principle somewhat similar has been applied in the trial of criminal cases, but the application of the principle in those cases was against the defendant and not against the prosecution in this wise; that where the evidence of the prosecution presses hard upon the accused, and the accused knowing of witnesses who could contradict or explain the pressing evidence, and having it in his power to call them and omits to call them, the jury may draw unfavorable inferences against the accused from such facts. People v. McWhorter, 4 Barb., 438; Gordon v. People, 33 N. Y., 513.

But I can see no reason or propriety in holding that any such duty rests upon the prosecution. It is incumbent upon the people to overcome the presumption of innocence, and to establish the guilt of the accused beyond a reasonable doubt upon evidence.

That result cannot be aided or helped out by any presumption of what witnesses not produced may be supposed to know.

Hence as matter of law there was no such duty resting upon the prosecution, and it was not proper for it to excuse the weakness of the case it had made against the accused or to apologize for its weakness in any manner whatever. But suppose the law had imposed a duty of this nature upon the people, Under some circumstances, can it be reasonably held that such duty arises from the circumstances in this case. These witnesses (in Canada), were charged with complicity in the guilt of the defendant, and were themselves indicted for it. Assuming that they were guiltyr would they be likely to come and testify to it ? or testify to the guilt of this defendant ? If they had been sitting in the court room under a subpoena, they would have claimed their privilege and refused to testify, unless perhaps they might have consented to testify under the same circumstances, or upon the same terms that the witness Fulgraff testified against the defendant.

I think it is very rare, or never, except in case of necessity that the prosecution relies upon the testimony of an. accomplice or a co-defendant to prove its case. If the accomplice or co-defendant should waive his privilege and. give testimony, it would not probably be the truth or be reliable, or if by an understanding with the public prosecutor, the witness himself is not to be prosecuted, might be induced to tell the truth, the law as well as common sense requires that he should be corroborated before he should be credited. The prosecution is under no duty to call such witnesses.

But upon this trial such duty was assumed, and under such assumption evidence illegal and dangerous was ad mitted, and though the jury were told by the court not to regard it as tending to prove the guilt of the accused, yet every experienced criminal judge and lawyer knows from his own observation in such cases, the jury do not, or will not if they could, disregard it in making up their verdict. But the jury could, and if we had any assurance that they had disregarded the evidence in making up the verdict they rendered in this case, the assumption upon which that evidence was received is merely colorable, and the evidence so received is a nocuous element in this case, for it implied, or might lead the jury to an implication that it supplied the case with the necessary proof, or served to strengthen a weak case.

Where it is clear that the avowed object of, testimony is colorable merely, its admission is error whether it was considered by the jury or not, or whether it was calculated to mislead the jury as to the strength of proof required of the prosecution to make out its case. Coleman v. The People, 55 N. Y., 81.

I have moreover what appear to my mind as very reasonable doubts whether there was not error in receiving as evidence the opinion of the witness Miller, a witness called by the prosecution.

He was an alderman and voted at all times for the Broadway Railroad and was one of the railroad committee. He was not present at the early August meeting and did not sign the call for it. He testified that he received $5,000 from He Lacy in bills of a large denomination in a month or so after the Broadway resolution was passed by the board of aider-men, and that De Lacy said when he gave him the bills: “ There is something to buy election tickets with, ” and that, within a day or two afterwards he returned the identical money to De Lacy, and that there was no agreement or talk or understanding with De Lacy at any time that the money was given him on account of his vote for the resolution.

The witness then in answer to the question: “Tell us what did you think at the time he gave it to you for, ” was allowed to answer over objection and exception, “I supposed it was for the Broadway railroad.”

The rule is that except in cases of value of property, of science and skill, etc., from experts, etc., the witness can only testify to facts,' and not to his opinion, thoughts or suppositions.

It is the province of the jury to draw all proper and legitimate conclusions or inferences.

It was entirely proper in the discretion of the trial judge to allow the prosecution to ask and ply an unwilling witness with leading questions to obtain competent testimony, but the rule goes no further. The unwillingness or inability of a witness to testify to facts does not make his suppositions or thoughts competent evidence.

Entertaining these views in regard to the portions of the evidence reviewed, and the rulings of the trial court in respect to it, my duty is plain and imperative to grant the application for a stay of-the execution of the judgment convicting the defendant.


author: Vajst Brunt, P. J.

text:
    Robert P. Chandler, Resp’t, v. Ellis K. Powers, Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Usury—Bill of sale with agreement to buy back—When cover FOR.
    Where the defendant advanced money to the firm of Brown & Hawkins, and took a bill of sale of a certain number of barrels of lime, etc,, at 75 cents per barrel, together with the shed in which the lime, etc., was kept, and at the same time Brown & Hawkins gave to defendant an agreement to pay all the expenses of insurance, storage, rent, cartage, labor and other outlay in the keeping, storing, insuring and transfer or shipping of said lime, etc., and to sell the same at anytime said defendant might request at a price named by him, and that if sold for one dollar a barrel defendant was to receive the whole amount, and Brown & Hawkins to pay out of their own pockets the expenses above mentioned. * *" Brown & Hawkins further agreed that if the said lime, etc., were not sold at the request of defendant prior to the expiration of three months from the date of the agreement, then at the end of three months Brown &■ Hawkins agreed to give the defendant one dollar per barrel therefor and pay all expenses. Held, that the transaction was merely a cover for usury, and the bill of sale could be set aside in a judgment creditor’s suit. That there was no bona fide sale oí merchandise nor any bona fide contract of repurchase.
    2. Same—Assignment for benefit of creditors—When void.
    Brown & Hawkins subsequently made an assignment to the said defendant Powers, wherein they preferred the said Powers and another, who had made advances under like conditions. The language of the preferences was that the assignee “ shall pay and discharge in full the indebtedness now due and to grow due of the said ” Hawkins to the defendant and other party. Provided, always, however, that the demands respective of said (naming the parties) " for damages arising upon executory contracts of sale with said first parties, or upon which they may be liable, shall not be preferred hereby to exceed the sum of $6000 each pf said parties. Yield, that said contracts were not valid; that the preferences of these fictitious demands of defendant were a fraud upon the general creditors of Brown & Hawkins; that the assignment was therefore void. ■
    3. Same—Practice—Uniting causes of action.
    In one action judgment creditors may attack any and every conveyance of property which the judgment debtors may have made with the intent to hinder, delay and defraud their creditors, and if they succeed in proving the general assignment was void because of fraud, they may also in that action attack any other conveyance or instrument which may have been executed by the fraudulent debtors, in order to withdraw their property from the claims of their creditors.
    4. Practice—Evidence—Objection—When to be taken.
    Objection having been made on demurrer to a complaint, good on its face, that there were not sufficient averments in the complaint of the facts constituting the alleged fraud, it being extrinsic to the assignment: Held, that the proper time to insist upon the objection was when evidence was offered to prove the facts constituting the fraud which had not been properly alleged in the complaint; that not having taken the objection then, the evidence was properly admitted.
    6. Same—Evidence—What admissible.
    The testimony of certain of the defendants taken in proceedings subsequent to the assignment, was properly admitted in evidence as against them individually. It would not be admissible if offered generally or against the other defendants, whether they were purchasers for value or not.
    Appeal from decree entered on trial before the court without a jury.

      E. T. Bartlett, for app’lt, W. H. Schmohl; F. E. Randall, for app’lt. Murchie, Thomas V. Gator, for app’lt. Ellis K. Powers; Nelson Smith, for resp’t.
   Vajst Brunt, P. J.

In the disposition of the various appeals taken by the defendants from the judgment entered herein, it will only be necessary to discuss a very small portion of the voluminous record presented upon this appeal and to consider the questions raised upon the appeal only upon admitted facts. Various exceptions were taken to the admissibility of evidence and to the striking out or withdrawal of evidence, which it is not at all necessary to consider, as the evidence to which such exceptions relate in no way affects the facts upon which our conclusions are founded.

It appears from the evidence in the case that the defendant William. H. Brown commenced business at the foot of East 14th street, in the city of New York, about August, 1874, such business being the buying and selling of building materials. The defendant Brown had no experience or knowledge of the business and the same was managed by his son-in law. David E. Hawkins, until the fall of 1879, when Hawkins became a partner, and the business was subsequently carried on in the name of William H. Brown, although the name of Brown & Hawkins was sometimes used. Hawkins contributed no capital to the business. During all this time the defendant, William H. Schmohl, was a clerk first with Brown, and afterwards with Brown & Hawkins, and he remained such clerk until the making of the assignment hereinafter mentioned on the 16th of April, 1880. It further appears from the evidence that up to the fall of 1879 the business of William H. Brown had been fairly prosperous, but that immediately after the formation of the new firm Hawkins entered upon the scheme of cornering the building material market, and in furtherance thereof bought large amounts of building material such as lime, lath, cement, etc., of various parties and soon became pressed for money. Shortly prior to the 20th of January, 1880, Hawkins made application to Hollis L. Powers for money with which to carry them through, and proposed that if Powers would advance seventy-five cents a barrel on lime and cement, they would bill it to him and buy it back at the expiration of three months at a profit of twenty-five cents per barrel. Hollis L. Powers transferred this negotiation over to his brother Ellis E. Powers, and it was finally consummated in his name, and he advanced $2,250 and took a bill of sale about January 15th, 1880, of 3,084 barrels of lime and cement together with the shed in which the lime and cement were kept.

At the same time Hawkins gave to Powers an agreement to pay all the expenses of insurance, storage, rent, cartage, labor and other outlay or expense in the keeping, storing, insuring and transfer or shipping of said lime and cement; and to sell the said lime and cement at any time said Powers might request at a price by Powers named; and that if sold for one dollar a barrel Powers was to receive the whole amount and Brown & Hawkins to pay out of their own pockets the expenses above mentioned; and if sold for more than one dollar per barrel Brown & Hawkins were to have all over that amount, bearing the said expenses; but if sold for more than $1.25 per barrel Powers was to have one dollar and one-half of all over $1.25 per barrel, Brown & Hawkins paying all expenses. Brown & Hawkins further agreed that if the said lime and cement were not sold at the request of Powers prior to the expiration of three months from the date of the agreement, then, at the expiration of the three months, Brown <& Hawkins agreed to give said Powers one dollar per barrel therefor and pay all expenses.

Mr. EUis K. Powers swears that Hawkins told him that-he wanted to corner the market, but that he (Powers) did not know what it meant; that he had bought or sold stocks-but never had cornered any. It seems somewhat strange if Mr. Powers did not know what cornering the market meant, that he could be- sure that he had never cornered any stocks. •

Lime at the time of this transaction was worth from eighty-nine and one-half cents to one dollar a barrel in the market. On the 20th of January, 1880, Hollis L. Powers advanced $7,500 to Brown & Hawkins and received a bill of sale for 12,388 barrels of lime, and also an agreement similar to the one given to Elias K. Powers. Brown & Hawkins had this lime insured for $10,000 in Powers’ name. It was burned up and Powers received the insurance. On the 24th of February, 1880, Hawkins applied to Hollis L. Powers for an advance on lath, and gave him a bill of sale of 5,469,000 lath, and made an agreement to buy back the lath within sixty days at two dollars a thousand, Brown & Hawkins to pay all expenses of every kind and nature as in the foregoing agreement.' Powers advanced $3,000 at that time, and testified that he could not tell what price he was to pay for the lath, whether $1 or $1.25 a thousand. The laths were then worth two dollars a thousand at least. On the twenty-seventh of February.. Powers appears to have advanced $3,000 more, and on March first, $2,500 on account of above bill of sale of lath and another transaction. What this transaction was is not stated. On the eighteenth of March Powers gave a check for $700 more. On the twenty-fourth of March Powers received a bill of sale of 2,000 barrels of lime and also an agreement from Brown & Hawkins, dated the twenty-seventh, to buy back the same as before. On the twenty-sixth of March a bill of sale of 2,000,000 of lath was given to Powers, upon •which he is claimed to have advanced money, but how much he could not tell, nor could he tell the price which he was to pay for the same.

On the ninth of December, 1879, Brown & Hawkins sold to Schmohl 500,000 of brick at $7.25 a thousand, amounting-to $3,625. Schmohl paid $3,000 by check. The balance was represented by a note of Brown & Hawkins which Schmohl claims to have held. Hawkins gave Schmohl at the time of this transaction a note for $3,625, the amount of the purchase price of the brick. The exact purpose of this note it seems difficult to understand, unless it was to protect Schmohl from loss upon the brick. It appears that about. three months subsequently Schmohl sold the brick back to Brown & Hawkins for ten dollars a thousand, which amount however was not paid in. cash to Schmohl. This purchase was made in pursuance of an agreement made at the time that Schmohl purchased the brick, that Brown & Hawkins would take the brick back at the expiration of three months at an advanced price. On the sixteenth of February, 1880, Brown & Hawkins sold to Schmohl 1,000,000 of lath at two dollars a thousand, and received from him $2,000 and gave a note to pay back $3,000 in three months and take back the lath. On the 14th of April, 1880, William H. Brown gave to Schmohl a bill of sale dated April thirteenth, of all the personal property of Brown & Hawkins, at the foot of Fourteenth street, to secure an alleged debt of $8,000, made up of $5,000 due on purchase of brick and $3,000 note given on purchase of lath, and told him that he would also give him $3,000 in a few days, and that whatever the difference might be they would arrange it.

Ho arrangement whatever was made as to the price at which Schmohl was to take the materials mentioned in the bill of sale. Schmohl claims to have gone into possession under that bill of sale, and assumed control of all the property therein named, except the sheds and office building and stable which, however, will be subsequently shown was not true in fact. At the time of receiving this bill of sale, Schmohl returned the note for $3,625, and the note for $3,000. It appears that prior to this Hawkins had gotten in trouble with the defendants Murchie and Powers, and Hawkins swears that he told Schmohl about the trouble with Murchie, although Schmohl swears that he did not know anything about it, and a witness by the name of Friedleben says that Schmohl told that they (meaning Brown & Hawkins), owed him a lot of money, and when he got the bill of sale, he was not aware that he had got it until they actually gave it to him, and that he only got it because Brown & Hawkins expected some trouble with Murchie, and they wanted to put this beyond Murchie’s reach. It would appear, although Schmolrl alleges that he took possession of the property, that after this bill of sale the business was continued as before, and that goods continued to be sold in the name of Brown & Hawkins, and entries of such sales were made in their books, and that the employees of Brown & Hawkins knew nothing of the alleged sale until after the assignment, the only person to whom Schmohl ever stated that he owned the materials before the assignment was Murchie, when he claimed a part of the goods as having been assigned to him by Hawkins. The testimony of Schmohl as to this transaction, is suspicious to say the least. He testified that he did not know anything about the insolvency of Brown & Hawkins, or that they were in difficulties, although he held a bill of sale of all their stock in trade at their principal place of business, and that he made no inquiries whatever. He also testified that he continued as Brown & Hawkins’ clerk until the date of the assignment'at a salary of $30 a week, and that all of it was paid except the last week; and Brown & Hawkins seem to have considered him their clerk until their failure, because the preference to Schmohl is for services as clerk, and no indebtedness for such services existed except for the last week. At or about the time of the assignment Brown also gave to Schmohl an assignment of certain leases which he held of property on Seventh avenue.

On the 16th of April, 1880, Hawkins being pressed by Powers & Murchie, executed an assignment for the benefit of creditors to Hollis L. Powers.

In the execution of such assignment Hawkins signed the name of William H. Brown, per David B. Hawkins, attorney, and also signed his individual name thereto. At this time Hawkins held -no power of attorney from Brown, or authority to execute" the assignment, but a day or two subsequently Brown executed an instrument ratifying the execution of said assignment by Hawkins.

The assignment contained preferences to pay and discharge in full the indebtedness due, and to grow due from the copartnership of Brown & Hawkins to Murchie & Co , Hollis L. Powers and Bartlett & Wilson. It was also provided in the assignment that the demands of said Powers & Murchie & Co., for damages arising upon executory contracts of sale made by Brown & Hawkins, or upon which they might be hable, should not be preferred by the assignment to exceed the sum of $6,000 to each. The assignment also contained a provision for the payment of the indebtedness to Schmohl for services as clerk and for money loaned, amounting to an amount unliquidated.

The plaintiffs in this action having obtained judgment against Brown & Hawkins for goods sold and delivered, and execution upon such judgment having been returned unsatisfied, filed their bill asking to set aside the assignment to Powers, and the transfers to Schmohl as fraudulent and void. After a trial before the court in which the foregoing facts were established, judgment was entered adjudging the sale and assignment of lease to the defendant Schmohl, and the assignment to the defendant Powers fraudulent and void, that the plaintiffs should be paid the amount due upon their respective judgments, out of the property and effects of the judgment-debtors; that the plaintiff recover judgment against the defendant Schmohl for $8,000 and interest, the value of the property received under the bill of sale; that a receiver be appointed of Brown & Hawkins, and of the said leasehold premises; that Powers and Schmohl deliver to said receiver all property under their control; that a referee be appointed to take an account, and giving judgment for costs and allowances against Powers and Schmohl. From this judgment this appeal is taken.

It is claimed upon the part of the defendants that although the transactions between Powers and Brown & Hawkins and Schmohl and Brown & Hawkins may have been a cover for usury, yet that that formed no ground for setting-aside the assignment. The evidence of both Hawkins and Powers showed conclusively that the moneys advanced by Hawkins to Powers were advances upon materials, and that the contracts upon the part of Brown and Hawkins to-buy back such materials was only a device to cover the excessive rates of interest amountingto nearly 150 per cent per annum which Powers was charging for the use of the money. They were not intended as bona fide transactions for the sale and purchase of merchandise. Powers throughout his testimony talks about advances upon lime, upon lath, and upon cement; and in some of the transactions he admits that he does not know that any price was fixed at which he was to pay for the lath which was conveyed to him by the bills of sale.

Under such circumstances it is impossible to come to any other conclusion than that these transactions were not bona fide transactions of sales of goods; but Powers only intended to advance certain sums of money upon the faith of these goods, and then to resort to the expedient of a re-sale in order to cover up the excessive rates of interest which he was charging- Brown & Hawkins for the money. It is true that in other places Powers swore that these transactions were purchases and sales of merchandise; and it is urged on the part of the defendants that if this were not true there would have been no reason for Powers having made the inquiries in regard to the standing of Brown & Hawkins, which it appears he did and that it was only because of the favorable reports whiqh he heard as to their responsibility that he went into these transactions. It is to be noted that the only credit which he gave was for the excessive interest which he expected. to realize for the temporary use of his money because in every instance in which bills of sale were given to Powers where he made advances of money, the merchandise was pretended to be sold to him at prices much below that at which it ruled in the market. This view is enforced by the fact that although Powers purchased this merchandise in form, and although .he claims that it was sold, yet Brown & Hawkins were to pay all the expenses of insurance and of storage upon Powers’ merchandise and all the expenses of handling it out of their own pocket, if Powers chose to direct the merchandise to be sold. It is to be borne in mind also that by the written agreement in reference to this merchandise that Brown & Hawkins are to sell and not Powers. From all these circustances the inevitable conclusion follows that there was no real bona fide sale of merchandise by Brown & Hawkins to Powers, nor was there any bona fide contract of re-purchase by Brown & Hawkins from Powers. The whole scheme as has already been observed was a mere device to cover the excessive rates which which Powers hoped to realise from the money which he loaned to Brown & Hawkins. Powers also states that he had no idea that Brown & Hawkins were in difficulties except just prior to the assignment, and that he had no idea that they were in need of money although they were agreeing to pay him at the rate of 150 per cent per annum for the use of his money. Such being the fact that there were no contracts of a bona fide nature for the purchase and sale of merchandise between Brown & Hawkins and Powers, and that the whole transaction was simply a pledge of merchandise as security for money loaned, it becomes necessary to consider the terms of the assigment and the circumstances which led up to it. It appears from the evidence in the case that the defendants Murchie had stored a large quantity of lath with Brown & Hawkins, and Hawkins had given warehouse receipts therefor.

It also appears from the undisputed evidence in the case that Hawkins had disposed of a part of this merchandise, and that he had also disposed of a part of the merchandise which he had pledged to Powers, and when this was discovered he was made to understand that he had laid himself open to a criminal prosecution; and that it was this fact which led up to the assignment and was the immediate cause of its execution, and of its ratification by Brown, his father-in-law. The object of Hawkins in the making of the assignment primarily was to satisfy Murchie and. Powers, who had him in their power by reason of the facts above mentioned. He therefore makes an assignment preferring Murchie and Powers, in the following language: “ The said party of the second part (meaning Powers) shall pay and discharge in fufi the indebtedness now due and to grow due of the said parties of the first part (meaning Brown & Hawkins) as such copartnership to H. B. Murchie & Co., of 82 Wall street, in the city of New York, Hollis L. Powers, of 556 Fifth avenue, in the city of New York, and Bartlett & Wilson, of No. 48 Wall street, in the city of New York. Provided always however that the demands of said Powers and Murchie & Co for damages arising upon executory contracts of sale with said first parties or upon which they may be liable shall not be preferred hereby to exceed the sum of $6,000 to each of said parties. ” Prom this preference it is manifest that it was the intention of the parties that any loss which Powers might appear to sustain upon his pretended executory contracts with Brown & Hawkins should be paid to the extent of $6,000 This was entirely independent of any claim which he might have for borrowed money, or for the conversion of merchandise which had been pledged to him, and was intended to represent solely the supposed profits to arise from the contracts of sale which he claimed to have made with Brown & Hawkins, and which have heretofore been shown to have been fictitious, and not to have been genuine, valid contracts upon which Brown & Hawkins could be held. This being the fact, the assignment to Powers was a fraud upon the general creditors of Brown & Hawkins containing a. preference of a fictitious demand of Powers upon the firm of Brown & Hawkins. The learned court before whom this case was tried found that these contracts of sale were mere covers for the usurious agreements made between Powers and Brown & Hawkins, and therefore held the assignment to be void. This ruling would therefore seem to be correct.

It is now necessary to consider the transactions between Brown & Hawkins and Schmohl, Schmohl claims that Brown & Hawkins were indebted to him in the sum of $8,000 for the purchase of 500,000 brick at ten dollars a thousand and 100,000,000 of lath at three dollars a thousand. It appears that on the 9th of December, 1879, although Schwohl was a clerk to Brown & Hawkins, and had not, so far as the evidence shows, been dealing in these materials, he, at the solicitation of Hawkins, bought 500,000 "brick at $7.25 a thousand, amounting to $3,625. He paid $3,000 in cash and the balance by'a note of Brown & Hawkins, which he held, and several other small claims, and he states that at the time of this transaction it was agreed that in about three months Brown & Hawkins should buy back this brick at an advanced price. Brown & Hawkins also gave to Schmohl a note of $3,685 the amount which he paid for the brick.

The giving of this note would seem to indicate that me transaction was intended as a mere loan of money to be paid back to Schmohl, the interest to be represented by the advanced price which he was to be paid for the brick. Schmohl says that on the ninth of March, 1880, Brown & Hawkins bought back this brick at ten dollars a thousand, "but never paid the purchrse price. It appears that during these three months they had been treating this brick as their own, as they sold a large portion of it. On the 16th of February, 1880, Brown & Hawkins sold to Schmohl a million of lath at two dollars a thousand, which Schmohl paid them for, and they immediately agreed to take back the lath in three months at three dollars a thousand, this being interest at the rate of 200 per cent per annum.

It further appears that Hawkins, having got in trouble with Murchie by reason of the disposition of some property for which he had given warehouse receipts, and also with Powers because of the sale of some of the property pledged to him, caused to be given to Schmohl a bill of sale of all the property in Fourteenth street. At the same time Schmohl surrendered the note for $3,625 and the note for $3,000. It is apparent that this bill of sale was intended to be nothing more than a security to Schmohl, because no-price whatever was fixed at which he was to take the property, and the giving of the bill of sale was coupled with a promise to pay him $3,000 additional in a few days and an agreement to settle whatever difference there might be. In respect to Schmohl’s good faith, it is true that he says that he did not know anything about Brown & Hawkins being embarrassed or that any notes had gone to protest, or that there were any difficulties ahead.

But it is impossible to believe in such a statement, in view of the fact that he held a bill of sale of all the property which Brown & Hawkins owned at their principal place of business. That Hawkins did not understand this bill of •sale to be anything more than a cover, is evidenced by the fact that he subsequently assigned some of this very merchandise to Murchie; and that Schmohl so understood it as evidenced by the fact that up to the time of the assignment there was no open and notorious change of possession, the business went on precisely the same as before, goods were sold and delivered to the customers of Brown & Hawkins, and were charged in their books, and Schmohl remained as the clerk of Brown & Hawkins until the assignment, and stated that his salary was due for that week. The necessary inference from these conceded facts,. notwithstanding the entries made in the accounts of W. H. Schmohl & Co.,, and H. Sewell is that Schmohl was not conducting his own business, but that he was still engaged in the business of Brown & Hawkins until they made the assignment. There is no evidence that any of the employees of Brown & Hawkins knew anything in respect to this bill of sale to Schmohl until after the assignment, or that Schmohl made any claim or statement in respect to the ownership of this, property to any person whatever, except when Murchie. claimed some portion of it by reason of the assignment by Hawkins to him. This evidence amply sustains thefinding of the learned court below, that there was no delivery of the property embraced in the bill of sale made by Brown & Hawkins to Schmohl at any time before the execution of the general assignment in question ; that said bill of sale was contrived by said Brown & Hawkins, and accepted by said Schmohl with intent to hinder, delay and defraud the creditors of said Brown & Hawkins.

It may be true that at the time of the giving of this bill of sale, Hawkins did not contemplate the making of a general assignment, but it was part of a series of fraudulent acts which led to the making of the general assignment, and is, therefore, to be considered and construed in connection with the subsequent execution and delivery of that assignment.

It has been urged that in consequence of the existence of the assignment, the plaintiffs in this action could not attack the bill of sale given by Brown & Hawkins to Schmohl. That might be true if the assignment itself had not been set aside. But in one action the plaintiffs may attack any and every conveyance of property which the judgment debtors may have been with the intent to hinder, delay and defraud their creditors, and if they succeed in proving, as they have done in this case that the general assignment is void because of fraud, they may also in that action attack any other conveyance or instrument which may have been executed by the fraudulent debtors in order to withdraw their property from the claims of their creditors, and that is all that is sought to be done in this action in reference to the bill of sale to Schmohl. It having been ascertained that the bill of sale to Schmohl was given and accepted with the fraudulent intent of protecting the property of the judgment debtors from the claims of their creditors is absolutely void, although an indebtedness may exist in favor of Schmohl against the makers of the bill of sale.

This brings us to consider some of the exceptions which are pertinent to the evidence which has been considered in coming to the foregoing conclusions.

At the opening of the plaintiff’s case, the counsel for the defendants moved to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, in that it failed to allege the specific acts of fraud which the plaintiffs claimed constituted the ground for setting aside the assignment. This motion was denied and an exception taken.

It is claimed that where the fraud complained of is extrinsic to the instrument of assignment, the plaintiffs should aver fully and explicitly the facts constituting the alleged fraud. This rule may be entirely correct, but it does not militate against the decision of the court upon the motion to dismiss the complaint. The complaint was not 'demurrable upon its face, and that was all that the motion to dismiss brought up for the consideration of the court. The assignment was not in evidence and not before the court. As to whether it was void upon its face or not, the court had no knowledge and could not determine until the evidence was before it. If it was desired to insist upon this objection it should have been again taken when evidence was offered to prove facts constituting the fraud which has not been properly alleged in the complaint. It will be observed, hower, that although exceptions Were taken to the admission of the evidence in respect to the transaction with Powers, the only ground stated was that the- evidence was incompetent and immaterial and not within the issues. An examination of the record will show that the latter part of the exception referred to the fact that there was no allegation in the complaint by which the transactions between' Hollis L. Powers and Brown & Hawkins could be impeached, and that the objection was not intended to be upon the ground that such evidence could not be offered for the purpose of impeaching the general assignment. When this class of evidence was first being offered the objection was stated to be upon the ground that there is no allegation in the complaint of any fraudulent transfer to Powers, other than the property conveyed by the general assignment. In answer to this objection, the plaintiff’s counsel said: We offer this now as a part of the evidence of fraud of the assignors. Thereupon the objection was overruled, and an exception taken. That was the character of the objection which was presented to the court, and that was the only objection which was overruled, and the attention of the court was not called to the fact that because of the want of specific allegations of fraud in respect to the assignment, this evidence was not admissible.

Objection was also taken to the admission of the testimony of William H. Brown, taken in proceedings supplementary to execution, and also to the testimony of Schmohl, taken in another action. This evidence undoubtedly was not admissible as against the other defendants. It was admissible as against them individually, and it was offered only as against them, and there is no evidence that it was ever received or considered for any purpose beyond that for which it was offered. If it had been offered generally, the ruling would have been erroneous, because neither the declarations of Brown nor of Schmohl, made after the assignments would be any evidence against the other defendants, whether they were purchasers for value or not.

It is argued upon the part of the defendants Murchie, that the court erred in refusing them affirmative relief in respect to some portion of the goods held by Schmohl. It does not appear exactly how the controversy of Murchie and Schmohl, in respect to the title of those goods, could be disposed of in this action. It is true that the defendants Murchie were, upon their own request, madé parties to this action, but they were made parties because they were interested in the assignment as preferred creditors, and the court, at general term, in making them parties stated that as such preferred creditors they had a direct and specific lien upon the property forming the subject of the assignment and are, therefore, interested in maintaining it. And it was only because of that fact that they were made parties, and not for the purpose of enabling them to settle in this action any controversy they might have with Schmohl. Such a controversy was entirely foreign and distinct from the whole subject matter of the action itself and could not be lugged in by any claim which the defendants Murchie might make in respect thereto. There was, therefore, no error on the part of the court in refusing to give the defendants Murchie any relief against the defendant Schmohl in this action.

It would appear, therefore, that the court was justified upon the conceded facts of the case in holding the assignment from Brown & Hawkins to Powers to be fraudulent and void, and that the bill of sale to Schmohl was also fraudulent and void. But there does not seem to be any authority for the money judgment against Schmohl for the alleged value of the property covered by the bill of sale of the thirteenth of April. It is true that in this proceeding Schmohl could be made to account for all the property received under that bill of sale. But he was not liable in the first instance for the alleged value of this property until he had refused to turn it over to the receiver appointed in this action as part and parcel of the property of Brown & Hawkins. There does not either seem to have been any authority for the money judgment rendered against the defendant Hollis L. Powers, individually. No relief was granted in the judgment against him individually, nor could any such relief have been granted, because none was claimed in the complaint, and evidence tending to justify such relief was objected to at the trial, and consequently the pleadings could not be amended so as to include such relief.

The judgment must, therefore, be modified by striking therefrom the recovery against Schmohl for the property -mentioned in the bill of sale, and the judgment for costs and allowances against the defendant Powers, and as thus modified affirmed without costs of appeal to either party.

Brady and Daniels, JJ., concur.