author: Talcott, P. J.:

text:
    WILLIAM PIERSON, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Summoning of additional jwrors— irregularity in, may be waived by the prisoner — Information acquired by a physician while attending a patient — when he is not prevented from testifying in respect thereto — Motive to commit a crime — what evidence competent to establish it.

    Upon the trial of the plaintiff in error for mnrder, the court having ordered additional jurors to be summoned, the clerk brought into court the box containing the names of the trial jurors for the county, and the box containing the names of those for the town, but not the one containing the names of those who had already served. The jurors having been duly summoned, the prisoner’s counsel interposed a challenge to the array, on the ground that all the boxes were not brought into court as required by section 1059 of the Code of Civil Procedure. The court having sustained the challenge the prisoner’s counsel withdrew it.

      Held, that by withdrawing the challenge the prisoner waived any informality in the drawing of the jury, and was concluded from objecting thereto on appeal.

      Semble, that as it did not appear that the names in the county jurors box were exhausted, the failure of the clerk to bring into court the third box did not affect the validity of the drawing.
    The plaintiff in error was indicted, with one Rosetta Withey, for poisoning the husband of the latter. Upon the trial, a physician who had attended the husband, in his professional capacity after the poisoning, was questioned by the counsel for the People as to the symptoms of the deceased, and as to what he had learned concerning his condition while attending him. The counsel for the prisoner objected, on the ground that the witness could not testify as to information obtained by him while attending the deceased professionally.

      Held, that the objection was properly overruled.
    On a trial for a felony, evidence tending to prove the existence of a motive for its commission is not inadmissible because it may incidentally show the accused to have been guilty of a separate and distinct felony, or because such evidence relates to acts of the party accused, done subsequent to the felony.
    Writ of error to the court of Oyer and Terminer of Livingston county, to review the conviction of the plaintiff in error of murder in the first degree.

      James Wood for the plaintiff in error.

      D. W. Noyes, district attorney, for the defendants in error.
   Talcott, P. J.:

The return to the writ of error, in this case, brings up the record of the conviction of the plaintiff in error for the crime of murder in the first degree, by and before the court of Oyer and Terminer, of Livingston county, over which the Hon. Charles C. Dwight presided.

The murder was alleged to have been committed on the body of Leman Bradley Withey by the administration of arsenic. Rosetta Withey, the wife of the said Leman Bradley Withey, was jointly indicted with Pierson. Pierson demanded a separate trial- on the indictment, and he was separately tried. A bill of exceptions taken on- such trial, duly settled and signed, is returned as a part of the record, whereby, amongst other things, it appears that the counsel for the said Pierson interposed a challenge to the array of jurors who were summoned to try said cause. The substance of which said challenge is, that after the commencement of the said term of Oyer and Terminer, the court made an order requiring the clerk of the county to draw “ from the county box,” and sheriff to notify thirty-six in number, of trial jurors, to attend the said term on the 25th day of February, 1878. That, thereupon, the clerk brought into court, jxom the clerk’s office, the said county, box in which the names of the trial jurors for the county were deposited. That there was present in court, at the same time, the box in which was deposited duplicate ballots containing the names of all persons mentioned and returned as trial jurors, who resided in the town of Geneseo, in which town the said term of the court was being held. But the said county clerk did not bring in the third box, required by law to be kept by him, and to be presented at such drawing. That the said clerk, in the presence and by the direction of the court, drew from the said county box, brought in by him, the names of thirty-six in number of trial jurors, and made two lists thereof, one of which was filed in his office, and the other delivered to the sheriff, rvho notified the persons so draAvn to attend on the 23rd day of February. vThat, afterwards, on the 23rd day of February, the court made ano\ther order to draw fourteen in number of trial jurors, in addition'' to the said thirty-six first drawn, also from the said county box, aW the same form was gone through as in tlie original drawing tif the thirty-six additional jurors, and the fourteen were ordered to be drawn and summoned to attend on the 25th day of February, and the same were in like manner drawn and summoned.

The third box was not brought into court by the said county clerk at either of the said drawings, and the challenge avers that the said “ clerk did not have in his possession, or keep the third box required by law in which to deposit the names of jurors who had served at the various courts held in and for the comity of Livingston, at previous terms, in accordance with the provisions of the statute in such case made and provided.”

The district attorney answered to the said challenge that the said additional jurors were in all respects duly and legally drawn, and prayed that the array of the said panel might be allowed by the said court.

And, thereupon, it was proved on the part of the said Pierson, in substance, that there were only two boxes for jurors kept in the county clerk’s office; one containing the names of the trial jurors, made up from the list returned by the supervisors, town clerks and assessors of the several towns of Livingston county, and the other containing the names of trial jurors, selected from the town of Genesco ; and that there was no box in the county clerk’s office in which to place the names of the trial jurors who had served at previous terms; that only the two boxes first named wore produced in court at the time of the drawing of the said additional j urors ; that the list of names contained in the county box, from which the said additional jurors were directed to bo drawn, and which was brought into court, was made up in 18 7 5 ; and that a new drawing was to take place, according to law, in July, 1878 ; and that the names of jurors who had served at previous terms, since the lists were made out and certified in 1875, wore not presented in any box and could not be produced in any court. Thereupon, the said Court of Oyer and Terminer sustained the said challenge to the said array. And thereupon the prisoner's counsel withdrew the said challenge.

Chapter 16 of the Laws of 1871, providing for the drawing of additional jurors in any Circuit Court or Court of Oyer and Ter-miner, seems to have been repealed by section 1, subdivision 45 of chapter 417 of the Laws of 1877, known as the repealing act. The provisions of law, therefore, which governed the drawing of additional jurors, when the indictment in this case was tried, were sections 1050, 1058 and 1059 of the Code of Civil Procedure. ' By section 1059 it is prescribed that, in drawing additional jurors, the clerk shall bring into court all the boxes wherein ballots containing the names of trial jurors are deposited, and must, in the presence of the court, publicly draw from such box or boxes, as the court directs, the number of trial jurors specified in the order. The irregularity insisted on by the challenge was, that there was no box present containing the name of those trial jurors who had attended and served at previous terms.

It is only when the first box is exhausted, that the second box can be resorted to under section 1051. It does not appear in the case that the first box was exhausted, nor, but what the regular panel furnished a sufficient number of names, which composed the jury before which the indictment was tried ; and we apprehend that the challenge was sustained by the Oyer and Terminer from abundant caution, and not from any idea that any material irregularity in the drawing of the additional jurors had occurred, which could have resulted in any injury to the defendant.

It was held in Friery v. The People (54 Barb., 319) that the statutory regulations in respect to the drawing and summoning -of jurors were not made for the benefit of parties to trials by jury, and for the purpose of securing to such parties (in civil and criminal proceedings) an impartial array of jurors, but were made for I he purpose of securing an impartial distribution among citizens of the onerous duty of performing jury service, and that, hence, in the absence of fraud or misconduct, other than a failure to observe the regulations, the public only can complain that the regulations have been disregarded, and that “ a challenge to the array by a prisoner on trial will not lie for a disregard of the directions of the statute.”

This case was affirmed in 2 Keyes, 424, m which the Court of Appeals held that “ any irregularity attending the drawing of jurors, which does not change the persons who are to compose the jury, does not tend to affect the rights of the prisoner, and will not be a good cause of challenge to the array.”

The case of Friery was a conviction for murder.

In the case of The People v. Rawson (7 Wend., 417), it was held that the provisions of the statute are merely directory, and a neglect of its provisions is not, per se, sufficient for setting aside the verdict. In Ferris v. The People (35 N. Y., 125), the eame doctrine was reiterated in the case of a conviction for murder in the first degree, and also by the General Term of the third ¡lepartment in Gardiner v. The People (6 Parker’s Crim. Rep., 157).

But, if there were material irregularity in the drawing of the jury, we think it was waived by the withdrawal of the challenge after the ruling of the court by which it was sustained.

It is provided by statute (2 R. S. Pt., 4, chap. 2, title 4, art. 2, § 52) that “ no indictment shall be deemed invalid, nor shall the trial, judgment, or other proceedings thereon be affected * * * by reason of any other defect or imperfection in matters of form, which shall not tend to the prejudice of the defendant.”

The prisoner may waive any matter of form or substance, only such as may relate to the jurisdiction of the court.

He may waive triers on the question of the indifferency of a juror, and agree that the court may act as a trier. He may waive the plea of autre fois acquit. In fact he may plead guilty to the charge in the indictment. (Gardiner v. The People, 6 Parker Cr. R., 194; The People v. Mather, 4 Wend., 229; People v. Murray, 5 Hill, 468; Germond v. People, 1 id., 343; U. S. v. Rathbone, 2 Paine’s C. C. R., 578.)

In Cancemi v. The People (18 N. Y., 128, 137) the following language is used with respect to waivers and consents in criminal cases : “ Effect may justly and safely be given to such consent in many particulars, and the law does, in respect to various matters, regard and act upon it as valid. Objections to jurors may be waived. The court may be substituted for triers to dispose of challenges to jurors. Secondary, instead of primary evidence, may be received ; admissions of facts are allowed ; and, in similar particulars, as well as in relation to mere formal proceedings generally, consent will render valid what, without it, would be erroneous. A plea of guilty to any indictment, whatever may be the grade of the crime, will be received and acted upon, if it is made clearly to appear that the nature and effect of it was understood by the accused. * * * But when issue is joined upon an indictment, the trial must be by the tribunal, and in the mode which the constitution and laws provide, without any essential change.”

Ill the Cancemi Case the decision awarding a new trial was put clearly on jurisdictional grounds. The court had no power to pronounce sentence of death upon Cancemi, except upon his pica of guilty, or upon the verdict of a common law jury; and a jury of twelve men had not found him guilty.

So a challenge to the array may be waived by a challenge at the polls in a capital case. (People v. McKay, 18 Johns., 212.) We, therefore, think that by the withdrawal of the challenge to the array the prisoner waived all benefit thereof and expressed himself content with the jury as constituted, and cannot now raise any question as to the regularity of the drawing of the additional jurors, even if they had composed any portion of the panel by which ho was tried, which, however, does not appear.

During the progress of the trial William H. Coe, a physician, was sworn as a witness on the part of the People. It appeared that he was duly authorized to practice physic, and that he had been requested to, and did, attend the deceased in his professional capacity. On the witness being inquired of by the district attorney concerning the various symptoms exhibited by the deceased, and what the witness had learned concerning the condition of the patient during the time of his attendance upon the deceased as such physician, the counsel for the prisoner objected to the evidence, on the ground that the information which the witness obtained, was obtained as a physician. That he (the witness) had no right to disclose it, and that the evidence offered was prohibited by the statute. The objection intended to bo raised by the counsel for the prisoner is founded on section 834 of the Code of Civil Procedure, and is as follows: “A person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.”

In considering the question thus presented it will bo assumed that the information, sought by the examination of the witness, was information acquired while attending the patient in a professional capacity, and that it was necessary to enable the witness to act in that capacity.

By section 836 it is provided that the last preceding three sections, which provide against the disclosure by clergymen, physicians, and attorneys and counselors, shall apply to every examination of a person as a witness, “ unless the provisions thereof are expressly waived by the person confessing, the patient or the client.”

Section 834 of the Code is substantially a rc-enactment of a similar provision in the Revised Statutes, and which was by the enactment of the Revised Statutes for the first time made a part of the positive law of this State. The reason of this enactment was in order that the fullest confidence might exist between the patient and'his medical adviser. The revisers, in their note to this section in which this provision is contained, say : “ The ground on which communication to counsel are privileged, is the supposed necessity of a full knowledge of the facts to advise correctly, and to prepare for the proper defence or prosecution of a suit, but surely the necessity of consulting a medical adviser, when life itself may be in jeopardy, is still stronger, and unless such consultations are privileged men will be incidentally punished, by being obliged to suffer the consequences of injuries without relief from the medical aid, and without conviction of any offence. * * * It is believed that the proposition in the section is so guarded that it cannot be abused by applying it to cases not intended to be privileged.” (Revisers notes to part III, chapter 7, title 3, section 73 of the Revised Statutes.)

Section 836 of the Code of Civil Procedure enacts only that the privilege created by section 834 is to apply to every examination of a person as a witness, unless the provisions of section 834 are expressly waived by the patient, which is in accordance with the opinion of C. J. Savage, as expressed in the court of errors on the appeal from the decision of the chancellor in Johnson v. Johnson (14 Wend., 637).

The exceptions presented in this case shows how mistaken were the revisers of the statutes of 1830, in supposing that the section was so guarded that it could not be abused by applying it to cases not intended to be privileged. Hero is a privilege designed exclusively for the benefit and protection of the patient which it is insisted, not without some colorable foundation in the language of the section in question, may be invoked to shield the alleged murderer of the patient from a disclosure of facts which might have a tendency to establish the commission of the murder.

The statute which prohibits a physician from disclosing the information acquired by him, in attending a patient in his professional capacity, has received judicial construction with infrequency, compared with the corresponding privilege in the case of coun.selors and attorneys, which having been established under the common law has, of course, had a much longer existence.

In the case of Hewitt v. Prime (21 Wend., 79), where the defendant, in an action for seduction, had applied to a practicing physician for drugs to produce an abortion upon a pregnant female, BronsoN, J., said, in regard to the admissibility of the evidence of the physician in behalf of the plaintiff, “ the witness (the physician) I think was not privileged. It is very doubtful whether the communication, made to him by the defendant, 'can be considered as consulting him professionally within the meaning of the statute, and it is certain that the information given was not essential to enable him to prescribe for the patient, if the daughter of the plaintiff should be considered a patient, in respect to the transaction.” In Johnson v. Johnson (4 Paige, 460) the chancellor held, in an action for divorce, that the testimony of the physician of the husband, in regard to some material facts, information of which was obtained by the physician while attending the husband professionally, was illegal and improper, and ought not to have been read. The objection in this case was not made by the husband, but the physician himself declined to answer. The chancellor regarded the statute as not merely excusing, but as expressly prohibiting a physician from disclosing such information as having been obtained within the statute, and that such disclosure would be in direct violation of the statute.

The case of Johnson v. Johnson was appealed to the court of errors, where the decision of the chancellor was reversed (and not affirmed, as is erroneously supposed by the counsel for the prisoner). In the court of errors Chief Justice Savage, who delivered the only opinion which alludes to this subject, held that it was the privilege of the party and not of the witness, and like the privilege of an attorney in that respect might be waived by the party. The reversal of the decree of the chancellor can scarcely be held to have been on the ground that he had erroneously construed the statute, for Chief Justice Savage held that the evidence aliunde that of the physician was sufficient to establish the facts.

In the case of Allen v. The Public Adm’r, where the probate of a will was contested, on the ground of incapacity and undue influence, a physician who attended the alleged testator, about the time when the will was executed, was objected to, as being prohibited by the statute, and it was held by Bradford, surrogate, that where, from the death of the person professionally visited, there is no one to claim the privilege, its assertion is of necessity excluded, and that if, after the probate or administration, the personal representatives or devisees might claim the benefit of the privilege in controversies with third persons, growing out of the estate, yet, before any grant of administration in a proceeding, as it were, in rem, to ascertain what is the will of the deceased, and who are entitled to succeed to his estate, and to represent him, there is no one, in fact, competent to assort such privilege, even if it survived ; and that the admission of the testimony of the physician was not the case of an attempted use of confidential intercourse, adversely to the interest or rights of a party, or those who take under him, or who, representing him, might equitably be considered subrogated to his privilege. (See case reported in 1 Bradford’s Rep., 221), which case was affirmed sub nom. (Thayer v. Allen, Selden’s Notes, 57; April, 1853.) Wharton, in his work on the Law of Evidence, speaking of the privilege in respect to communications with an attorney, says at sedfon 591 : “The privilege, it should also be remembered, is meant to protect the living in their business relations, and cannot be invoked when the question arises as to the intention of a deceased person in respect to the disposition of his estate.”

As somewhat opposed to the proposition thus laid down by Mr. Wharton, may bo considered the case of Edington v. The Mutual Life Ins. Co. (67 N. Y., 185), which was an action brought by an assignee of sundry policies upon the life of William E. Diflendorf, which had been procured for his own benefit, and held by him up to the time of the assignment. In an action on the policies, it was proposed to contradict the statements made by tbe insured in his application for tho insurance, by calling as witnesses certain physicians who had attended him in his lifetime, which testimony was excluded as contrary to the statute. It was held that the exclusion was proper, and that the right to exclude such evidence survived to the assignee of the policies. The reasons for the inadmissibility of the testimony being that “it is a just and useful enactment introduced to give protection to those who were in charge of physicians, from the secrets disclosed, to enable them properly to pi’escribe for the diseases of the patient. To open the door to the disclosure of secrets, revealed on the sick bed, or when consulting a physician, would destroy confidence between the physician and the patient, and it is easy to see might tend very much to prevent the advantages and benefits which flow from this confidential relationship.” The opinion of tho court also contains the further remark, that “ the statute in question being remedial should receive a liberal interpretation, and not be restricted by any technical rule.”

A similar question arose in Dilleber v. The Home Life Ins. Co. (69 N. Y., 256), in which an action was brought by a wife who had effected a policy upon the life of her husband, in which the court held the evidence had been improperly admitted, and reversed the judgment upon the authority of the previous case of Edington.

• The reasons for the exclusion of evidence of this character are very fully stated by the court in the People v. Ira Stout (3 Parker’s Crim. R., 670), which also lays down the proposition that, “ in the case of such a statute, it is peculiarly the duty of the court to look for its spirit, and be guided thereby in its application.” It is one of the fundamental rules for the construction of statutes that it is tho duty of the courts to construe statutes according to the intentions of the Legislature, “ and whenever such intention can bo discovered it ought to bo followed with reason and discretion in the construction of the statute although such construction seem contrary to the letter of the statute ; * * * and a thing which is ivithin the letter of the statute is not within the statute, unless it be within the intention of the makers.” (People v. The Utica Ins. Co., 15 Johns., 358.)

“It is tho duty of the courts so to construe statutes as to meet the mischief, and to advance the remedy, and not to violate fundamental principles.” (Hunt v. Cleis, 8 Johns., 41.) Statutes must be expounded according to the meaning, and not according to the letter. (Pillow v. Bushnell, 5 Barb., 156.)

In the Bank of Utica v. Mersereau (3 Barb. Ch., 528, 598), the chancellor said: “The seal of professional confidence has never been held to cover a communication, made to an attorney to obtain professional advice or assistance as to the commission of a felony, or other crime which was malum in re, and Bronsokt, J., in Coveney v. Tannahil (1 Hill, 33) uttered a similar opinion, saying : “ The privileged relation of attorney and client can only exist for lawful and honest purposes.”

~Wc think, therefore, that the purpose for which the aid of this statute is invoked in this case, is so entirely foreign to the purposes and objects of the act, and so diametrically opposed to any intention which the Legislature can be supposed to have in the enactment, so contrary to, and inconsistent with its spirit, which most clearly intended to protect the patient and not shield one who is charged with his murder ; that in such a case the statute is not to be so construed as to be used as a weapon of defence to the party so charged, instead of a protection to his victim.

In this case, it does not appear that there is any party now living who can claim to represent the deceased in relation to the subject-matter, unless it bo the People as parens patriae, so that, if necessary, the decision might probably be rested on the case of Allen v. The Public Adm’r (supra). But, without assuming any narrower ground, we think that the decision that the statute does not apply to the case may well be placed upon the broad claim that the case presented is not within the spirit and intent of the statute, although within the letter. It is not unworthy of remark that the view we take of the effect of the statute excluding the evidence of physicians, as to information obtained by them in the course of their professional employment, is in harmony with what we suppose to be the general understanding of the object and effect of the statute, as shown by a constant practice in capital trials, especially such as involve an examination of a charge of poisoning, of receiving testimony of this description, without which, the ends of justice would be, in many instances, frustrated, and a statute, intended for a humane and benign purpose, be used as a protection and shield from the consequences of the deliberate perpetration of one of the highest crimes known to the law.

Another exception to the admission of testimony on the part of the People, and which is prominently pressed upon our attention, arose under the following circumstances. As it afterwards, and upon the cross-examination of Rosetta Withey, and the prisoner at the bar appeared, they both, soon after Withey’s death, left Avon, the place where the homocide was alleged to have been committed, where they had resided, and by consent met at the railroad depot at Rochester, whence they proceeded to a hotel in Rochester where they passed the night, and thence proceeded together, with occasional stoppages, to Jackson, in the State of Michigan, the prisoner paying the traveling expenses of both parties. On the trial, Isaac Butterfield was produced as a witness on the part of the People, who, having stated that he resided in Jackson and was a Baptist clergyman, and saw the prisoner at the bar and the said Rosetta together at Jackson, in Michigan, on the 26th day of February, in the year 1877, was told by the district attorney. “ You may state what took place between those parties and yourself at the time you met them in Michigan.” This was objected to, generally, by the counsel for the defendant. The objection was overruled and the defendant’s counsel excepted. The witness then proceeded to make a statement as follows : “ Answer. The parties came to my room and wished to be married. I administered the oath to Pierson, as he was a stranger to mo. The oath was, that he would correctly, according to his best knowledge and belief, answer the questions addressed to him relative to his eligibility to the matrimonial alliance he proposed. I then asked him if he knew any legal objection to his entering into this matrimonial alliance. He said he did not. I asked him his age, his residence, his birth place, his occupation, and the answers wore taken down as I asked the questions. Ho gave his name as William B. Pierson, present residence, New York, born in New York, age 32, occupation, a farmer. I asked the name of the lady and she gave it as Rosetta Withey, born in New York, present residence in New York, age 37. I then married the parties according to the laws of the State. In reply to the question whether he knew of any legal objection, he said, I do not. I performed the marriage ceremony according to the laws of the State of Michigan.”

It had theretofore appeared that Pierson was married and had a wife and five children living with him at Avon, in the neighborhood of the place where the said Rosetta and her husband had resided, and that the situation of the said Pierson, in respect to his being already married and having the said children, was probably well known to the said Rosetta. The defendant’s counsel objected to this evidence because, as he says, it “tended to prove that the defendant was guilty of perjury and bigamy.” There was no motion made to strike out any portion of the statement made by the witness Butterfield, and no objection made to the statement in answer to the request of the district attorney, except a general objection. Prima facie, the request of the district attorney was entirely proper. It called for a statement of what took place between the witness and the parties. It was undoubtedly understood that the district attorney sought to prove the form of a marriage between the parties, and it is stated in the points of the counsel for the defendant, that the district attorney claimed the right to give the evidence, on the ground that it tended to prove a motive for the perpetration of the murder charged in the indictment, and that the motive imputed was, that the defendant had become possessed of an unlawful passion for Mrs. Withey, and that the murder was perpetrated to facilitate the gratification of his desires by the possession of Mrs. Withcy’s person. Evidence of slight familiarities between the defendant and Mrs. Withey had been previously given, but not sufficient to establish, of themselves, the fact of any criminal intercourse. We have no doubt but that the evidence was proper to reflect light upon the motive, under pressure of which the crime charged in the indictment may be supposed to have been committed, and if the witness, in giving an account of the circumstances attending the form of marriage which he performed in Michigan, incidentally gave evidence tending to show that the defendant committed the two other crimes mentioned, especially in the absence of any more specific objection, and when the attention of the court was not called to such parts of the statement of the clergyman as may have been obnoxious to specific objection on the grounds stated, it was the misfortune of the defendant’s case that the simple narration of h;s acts necessitated the proving of, at least, one of the other offences.

It is true that, on a trial for a felony, separate and distinct felonies cannot, generally, bo proved for the purpose of establishing the fact directly that the prisoner committed the offence for which ho is on trial, or for the purpose of raising any direct inference in the affirmative as to the principal issue, but such evidence-is competent for the purpose of proving the existence of a motive to commit the crime in question, in case where there is some apparent connection or relation between the imputed motive and the felonies proposed to be proved. Therefore, on a trial for felony, it is not a valid objection to evidence otherwise competent, that it would tend to prove the prisoner guilty of a different felony. (The People v. Stout, 4 Parker’s Crim. Rep., 71.)

It does not lie with the prisoner to object, that the fact proposed as a circumstance is so heinous in its nature and so prejudicial to his character that it shall not be used as evidence against him if it bears on the fact in issue. (Id., 115.) There was no precise evidence of cohabitation between the defendant and Mrs. Withey given anywhere in the case, but the fact that the defendant went throúgh the form of a marriage ceremony with her was proper to be submitted to the jury, from which they might, judging by the ordinary conduct of human nature, have legitimately inferred a motive for the commission of the offence charged.

The counsel for the defendant requested the court to charge the jury, among other things, “that before the accused may be convicted, it must be proved that there was an adequate motive for the commission of this crime,” to which the presiding justice said: “ I cannot charge you that m terms, without explanation. What is an adequate motive ? There is no adequate motive, intelligently considered in the light of the moral law, of the Divine law, even of the human law, there is no adequate motive for such a crime. And yet there are motives which, though not adequate for the commission of such crimes, are yet sufficient to lead men to the commission of such crimes, and they do it every day. Was there such a motive, operating on the mind of the person to whom it was suggested, sufficient to move him to the commission of the crime? I am requested to charge you that there is no evidence of the existence of such a motive prior to the death of Withey, whose death constitutes the corpus delicti of this crime. I cannot charge you that; that is a question for your consideration, which 1 submit to you. His actions after that time may reflect light upon the question what motives existed in his mind before that time. ' If, after that time, you find him hastening to a realization of the unholy passion, which, it is suggested, constituted that motive, it will be a question for you to answer whether that fact establishes to your satisfaction the existence of the motive before that time, in connection with all the other circumstances of the case.”

Wo see nothing in the remarks of the presiding justice, in reply to these requests to charge, that can give any countenance to the objection of the defendant’s counsel, that by this charge the jury were instructed, or in any way authorized, to use the evidence of a subsequently existing motive, as evidence going to establish the fact that the alleged and antecedent crime was committed by the defendant, or that a motive only, brought into existence at a subsequent period, might bo held by the jury to bear upon the question of fact, whether the prisoner was guilty of the antecedent offence. On the contrary, we think the charge was properly guarded against any misconception of that character, and was in every •way proper and correct.

“ Motive,” said Judge Johnson, in People v. Wood (3 Parker’s Crim. R., 681) “is a minor or an auxiliary fact, from which, when established in connection with other necessary facts, the main or primaly fact of guilt may be inferred, and it may bo established by circumstantial evidence, the same as any other fact.” The charge was, in our opinion, entirely in accord with the principles thus laid down.

The remark made by the presiding justice in the course of the charge, by which he called the attention of the jury to the circumstance that Mrs. Withey, in giving to Dr. Nesbitt and to Calvert, in the presence of Withey, a statement of what Withey had eaten and drank just before he was taken with the symptoms exhibited by him, and which, according to the theory of the prosecution, were occasioned by arsenical poisoning, she had omitted to state that Withey had drank a quantity of cider, and that as the statement had been made “ in the presence of the deceased, and would undoubtedly have been corrected by him if a false statement had been made, was not, in our view, objectionable. It was merely calling attention to a fact which appeared by the evidence, and even if it can be considered as the expression of an opinion that the statement by Mrs. Withey, that the deceased had partaken freely of cider at about the same time that he ate mush and milk, was probably an afterthought, did not prejudice the prisoner, as the question of what credit should be given to the testimony of Mrs. Withey, on the subject, was expressly left to the jury. (Jackson v. Packard, 6 Wend., 415; Durkee v. Marshall, 7 id., 312; Althorf v. Wolfe, 22 N. Y., 355.)

There were sundry other requests by the defendant’s counsel that the court should charge the jury in certain language, which were declined, the court refusing to charge on the subject referred to in any manner different from what the judge had already charged. We think these requests were all properly disposed of. We have examined the entire charge carefully, and we think it was as full on the subjects involved in the case as was- called for, and free from any legal objection.

The case contained many elements calculated to strongly excite the prejudice of a jury and to interfere, to some extent, with that calm, deliberative and unimpassioned consideration of the evidence which is expected of a jury, to which the result of a capital case is committed, but we do not see that any legal error has been committed, and, therefore, feel bound to affirm the conviction.

Smith and HaediN, JJ., concurred.

The conviction and judgment of the Oyer and Terminer of Livingston county are affirmed, and the case and proceedings are remitted to that court, with directions to proceed and fix another day for the execution of the sentence,


source: Caselaw Access Project

author: Talcott, P. J. :

license: Public Domain

text:
    NORMAN H. TIMBY, Respondent, v. JAMES KINSEY AND STEPHEN P. WING, Administrators, etc., of WILLIAM H. WING, Appellants.
    , Contract for the sale of land — when substantial damages are recoverable for a breach of.

    Where a husband enters into a contract for the sale of land held by him and his wife jointly, and is unable to fulfill the same by reason of the refusal of his wife to join in the deed, the vendee may recover, as damages, the difference between the price named in the contract and the actual value of the land at the time of the breach of the contract.

      iPwmpelly v. Phelps (40 1ST. Y., 59), followed.
    Appeal from a judgment in favor of the plaintiff, entered Upon the verdict of a jury, and from an order at Special Term denying a motion for a new trial, made upon a case and exceptions.

      M. H. Peels, for the appellants.

      George Bowen, for the respondent.
   Talcott, P. J. :

This is an appeal from a judgment rendered on a verdict at the Genesee circuit, and from an order denying a new trial.

The action is one, brought at law, to recover damages for the failure and refusal of the defendant to perform an executory contract, for the sale by him and purchase by the plaintiff of a certain parcel of land for the sum of $1,200.

The action was originally brought by Norman II. Timby, the vendee, against William H. Wing, the vendor of the land,, but Wing died after the trial, and the present defendants were, by stipulation, substituted as the administrators of William H. Wing.

It appeared that at the time of entering into the contract the title to the land, which was the subject-matter of the sale, was vested in William H. Wing and his wife by a conveyance to them jointly, which circumstance was known to the parties to the contract, and that the wife wras cognizant of the contract and assented thereto, but nothing was said on the subject of the contract being executed by the wife, and the contract, which was in writing, purported to be in the name of Wing alone as the vendor, and he alone executed the same.

It further appeared that at the time fixed by the contract for the execution and delivery of the deed, the wife absolutely refused to execute the same. The defendant gave evidence tending to show that this refusal of the wife was the sole reason for his neglect and refusal to cany out the conti*act; and the plaintiff gave evidence tending to show that the defendant refused to convey lor the further reason, that the price named in the contrae'-was not a sufficient compensation for the value of the land con tractcd to be sold ; and evidence was given by both parties as to the value of the land described in the contract of sale.

The court charged the jury that the damages which the plaintiff was entitled to recover, if entitled to any recovery in the case, was the difference between the purchase-price named in the contract and the actual value of the land at the time of the breach of the contract. To which the defendant excepted, and claimed that, as nothing had been paid on account of the purchase-price, the plaintiff was only entitled to recover nominal damages, and this presents the only question raised in the case. We think the ruling at the circuit was correct, and is entirely in accordance with the decision of the Court of Appeals in the case of Pumpelly v. Phelps (40 N. Y., 59).

In that case the defendant was tne trastee of Mrs. Catharine Van Rensselaer, the wife of Cornelius C. Van Rensselaer. By the terms of the trust the defendant had no authority to convey the land without the written consent of Mrs. Van Rensselaer, but soon after the appointment of the defendant as trustee, Mrs. Van Rensselaer told him that he need not consult her about the sale of any of the lands belonging to the said trust estate, but to confer with her husband on the subject, and to what they shouldagreeupon she would give the required assent. The defendant Phelps, relying upon this assurance, acted upon it, and prior to making the contract in question had sold and conveyed many parcels of land, to the deeds for which Mrs. Van Rensselaer had given her written consent, not having in any case objected to what her husband and the defendant thought proper to be clone. And. in tho case of tho contract on which the action was brought, the defendant had entered into the agreement, in his own name, but with the concurrence of Cornelius G. Van Rensselaer, the husband, not suspecting any unwillingness on the part of Mrs. Van Iiensselacr, but fully believing she would assent to the same. The defendant had repeatedly requested Mrs. Van Rensselaer to assent to the conveyance provided for by the contract, which was refused, for the reason that she would assent to no deed to the plaintiff upon any terms whatever. The reasons for the refusal were personal to Mrs. Van Rensselaer, and the refusal was in no respect caused or instigated by tho defendant, and the defendant was not chargeable with any want of good faith, and it was made to appear that his conduct w;.s governed by a well-grounded belief that the contract he made would be assented to by Mrs. Van Rensselaer. Tho cause was twice tried, and is rcpoi'ted on the appeal from the ruling on tho first trial, on which the court had ruled, as tho counsel for the defendant claims in the case at bar, should hava been the ruling as to the measure of damages. That ruling was, however, reversed. (Brinckerhoff v. Phelps, 24 Barb., 100.) The case was afterward retried, and a ruling similar to that made in this case, on the question of damages, was laid down, which ruling was sustained in General Term (see 43 Barb., 469), and ultimately sustained by the Court of Appeals in the case of Pumpelly v. Phelps (supra).

In that case, the General Term of the Supreme Court held, that “ If one undertakes to sell land, knowing that he has no authority to convey, the quosnon of good faith cannot arise, and he cannot claim and is not entitled to any protection on that ground. If, under such circumstances, he assumes to sell without being in a, situation to convey, and without the power to confer any title,, he does it at his peril, * * * he violates his contract;, and must be held responsible for the damages occasioned by a breach of it.”

Tho rule is a salutary one, in a case like the one at bar, for the modes by which, and the manner in which, parties sustaining the relations which existed between the defendant who had contracted and his joint tenant may be influenced, are often obscura and impossible of proof or detection ; and it seems to be wise to remove from the- contracting parties any temptation of pecuniary gain, to be made by a breach of a contract to convey upon a consideration deemed adequate at the time of entering into the contract.

In the case of Margraf v. Muir (57 N. Y., 155), which is relied upon as establishing a different rule of damages from that stated in the case of Pumpelly v. Phelps (supra), a specific performance was refused, upon the ground that the contract was unconscionable, and had been obtained from the vendor by the practice of deception on the part of the vendee, and in the latter case the case of Pumpelly v. Phelps is referred to, but instead of being overruled the principle adopted is recognized as constituting one of the recognized exceptions to the general rule, in regard to the measure of damages, in an action on an executory contract to convey ; it being stated in the opinion as one of the recognized exceptions to that rule, where the vendor has covenanted to convey “ when he knew he had no authority to contract to convey. * ■* * In all such cases the vendor is liable to the vendee for the loss of the bargin, under rules analogous to those applied to the sale of personal property.”

We think,, therefore, that the ruling at the circuit was correct, and must be affirmed.

Smith and HardiN, JJ., concurred.

Judgment and order denying a new trial affirmed.


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    ANNE M. McLANAHAN AND ELLEN VANDERPOEL, Appellants, v. THE CITY OF SYRACUSE AND ROBERT HEWITT, TREASURER OF THE COUNTY OF ONONDAGA, Respondents, Impleaded with ALLEN MUNROE.

      Tax receiver — can recei-ve nothing for the taxes but money — receiving a check and giving a receipt for the tax does not discharge it.

    A tax receiver has no authority to receive anything- in payment of taxes but money, and an agreement by him to receive and hold the check of one against whose property taxes are assessed, until he shall be able to pay it, is void; and an entry upon his roll that the taxes are paid, and the delivery of a receipt therefor to such person, do not amount to a payment or satisfaction thereof.
    Appeal from a judgment entered upon tbe trial of this action by the court, without a jury.

      Oreen & OomstocJc, for the appellants.

      Martin A. Ifnapp, for the respondents.
   Talcott, P. J.:

This case, which was submitted without oral argument at the last term of this court, is a case in which the complaint is, ostensibly, for the purpose of having an accounting by and between Allen Munroe and the plaintiffs in regard to certain moneys received, and balances duo from said Munroe, as the agent of the plaintiffs, and incidentally to have certain city taxes levied on the property of the plaintiffs by the city authorities of Syracuse, in the year 1875, and also certain county and State taxes levied in the same year, by the supervisors of Onondaga county, declared to have been paid and satisfied, and to restrain the city and county authorities from taking any measures to collect the said taxes.

Without going into unnecessary details, the facts of the case may be summed up as follows : The plaintiffs are the owners of three stores on South Salina street, in the city of Syracuse. Allen Munroe was, in the year 1875, and for some time before then, had been the agent of the plaintiffs (who are married women residing in the city of New York), to collect the rents, see to the necessary repairs, and pay the taxes on the said three stores, and had been accustomed, before any fees for the collection of such taxes became due, to give his checks on certain banks in Syracuse for the amount of taxes levied on said premises, together with other premises, for which he was the agent, and premises in said city, of which he was himself the owner, in order to avoid paying the fees for collection which, by law, would become duo, from time to time, if payment was delayed.

In the year 1875 the sum of $890 was assessed on the said premises, as, and for city taxes for that year, and a further tax of $723.14, as, and for the State and county taxes. The said city tax became due and payable to the treasurer and tax receiver of the said city on or about the 16th day of October, 1875, and was payable to the treasurer and tax receiver of said city, and the State and county taxes became due and payable to the samo officer on or about the 5th day of January, 1876.

On the 16th day of October, 1875, Allen Munroe made and delivered to the said treasurer and tax receiver three certain checks on the Third National Bank of Syracuse, bearing date on that day, and drawn by said Munroe to the order of the said treasurer and tax receiver, two for the sum of $2,500 each, and one for tho sum of $3,752.26, being the full amount of city taxes for that year upon property, of which said Munroe was owner or agent, including the said premises belonging to the plaintiffs.

The said treasurer and tax receiver, upon receiving said checks, made entries upon the city tax-rolls, indicating that the city tax, upon the property of which Munroe was owner, or for which he was agent, including the plaintiffs’ three stores, were paid, and on the evening of the same day sent to Munroe, by mail, a receipt for the same.

At the time said checks were delivered to the said treasurer and tax receiver they were not good, there being then no funds in the bank wherewith to pay the same, and it was then agreed between said Munroe and said treasurer and receiver that' the same were not immediately to be presented for payment, and said Munroe, at the time, indicated by a pencil memorandum on-said checks the time when they were severally to be presented for payment, viz. : one chock for $2,500 on the tenth of November, the other on the tenth of December, and the larger check ou the 20th of December, 1875.

The said tax receiver thereupon retained the said checks, without presenting the same for payment, until the tenth of November, when Munroe requested him not to present the $2,500 check which, by the memorandum, was to have been presented on that day, as he, Munroe, was not yet prepared to meet the same, and Munroe promised to inform the said tax receiver when he would be prepared, to meet the same. The check for $2,500, which was by the memorandum to be presented on the tenth of December, was paid at some time during the month of December. Neither of the other checks were ever presented for payment, but were from time to time retained by the said tax receiver at the request of said Munroe, and upon his statement that the same were not then good, but that he would notify the said tax receiver when to present the same, but ho was never so notified.

On the 5th day of January, 1876, when the State and county tax became payable, Munroe made and delivered to the said treasurer and tax receiver his check, drawn to the order of said tax receiver on the same bank, for $6,802, that being the amount of the State and county taxes, payable on that day, for the year 1875, upon the property of which said Munroe was owner or agent, including the said premises belonging to the plaintiffs, and the said tax receiver then made an entry ou the tax-roll indicating that the said State and county taxes were paid, but no receipt was then or ever given to Munroe for the same. That when the last mentioned check was given it was understood that the same was not good for want of funds in the bank, but was to be held for the accommodation of Munroe until he could make the same good, when he would notify the tax receiver to present the same, but Munroe never gave such notice and said check was never presented.

On the 21st of February, 1876, said Allen Munroe failed, and made an assignment of all his property for the benefit of his creditors, and has ever since continued to be wholly insolvent.

Ou or about January 6, 1876, Munroe, still acting as the agent of the plaintiffs, transmitted to them by mail his account as their agent, in which account he credited himself with the payment of the said city, State and county taxes on the said real estate of the plaintiffs for the year 1875, and the plaintiffs settled with him on the said statement of account, believing the same to be true. But the receipt for city taxes, which had been sent to Munroe, was not exhibited to the plaintiffs, nor did they know of the same till after his assignment, or that the tax receiver had taken and held the checks of Munroe for the said taxes on their property.

There was no agreement that the said checks should, be received or accepted at the risk of the city of Syracuse, or its said tax receiver, or that the same should be received and accepted in payment or discharge of any of the taxes for which they were given. Munroe had given his checks in a similar manner in previous years, and they had been retained by the tax receiver until they were actually paid. None of the checks given for the taxes of 1875 have been paid, except the check for $2,500, due, according to the memorandum, on the 10th of December, 1875, which sum of $2,500 was, after his failure, by arrangement with Munroe and his assignees, and the tax receiver, distributed and applied pro rata on all the city taxes for which the checks had been given, the amount credited to the plaintiffs on said city taxes under this arrangement being the sum of $254.22.

It did not appear that the plaintiffs had ever, previous to the settlement of their said account with Munroe, been cognizant of the entries made by the tax receiver on the rolls, indicating that the said taxes for the year 1875 had been paid. None of said city, State or county taxes on the plaintiffs property have, in fact, been paid, except by the application of the said $254.28, part of the said $2,500 which has been applied in satisfaction of that amount of city taxes.

On the 23d of May, 1876, the said State and county taxes of the plaintiffs were returned to the defendant Robert Hewitt, treasurer of Onondaga county, as uncollected, and the said treasurer and tax receiver of the city of Syracuse was thereupon discharged from all liability on account thereof. The assessment of these taxes was originally made to Ann McLanahan, but on the trial it was admitted that it was within the time and in the manner required by law reassessed to the plaintiffs jointly.

Bobert Hewitt is made a party defendant in the suit as treasurer of the county of Onondaga, and it is alleged that he has advertised the said premises of the plaintiffs for sale for the payment of the county taxes for the year 1875, and the complaint asks for an injunction against such proceeding; and the said. county treasurer, among other things, sets up with suitable allegations of matters of fact, and by way of counter-claim, under certain statutes applicable to the case, the fact that the State and county taxes for the year 1875, assessed to the plaintiffs, are outstanding and unpaid, and demands a judgment in his behalf for the amount of said State and county taxes.

i Munroe made no answer to the complaint. On a trial at the Special Term of Onondaga, the complaint was dismissed as to the city of Syracuse, the injunction dissolved as to the treasurer of Onondaga county, and judgment ordered in his favor on the counter-claim, and authorizing the action to be continued, if the plaintiffs so desire, against Allen Munroe for an accounting.

1 In the briefs wdiich have been submitted on both sides it seems to be assumed that the treasurer and tax receiver was an agent of the city of Syracuse and of the county of Onondaga, so as to bind those municipalities by his acts and omissions in regard to his official duties, in the same manner as though he, had been the agent of a private person, and that his acceptance of the checks of Alien Munroe, the agent of the plaintiffs, added t© the circumstance that the plaintiffs had settled with him on the basis of his account, as stated, on the 6th day of January, 1876, on the assumption that he had, in fact, paid the taxes of the year 1875, amounts in legal effect to the payment and satisfaction of such taxes, and estops the city of Syracuse and the county of Onondaga from claiming the payment thereof from the plaintiffs.

We do not so understand the rule of law applicable to this subject.

It was held in Lorillard v. The Town of Munroe (12 Barb., 161) that “ there is nothing in the character of town officers, or in the duties and responsibilities which they impose, or in the relations which the persons selected to execute them bear to their towns respectively, or in the terras of the statutes relating to tbis subject, winch will warrant the conclusion that the Legislature intended to make such officers the agents of the towns, so as to render the towns liable to actions, in their corporate capacity, for the mistakes, or nonfeasance or misfeasance or malfeasance of such officers.”

They arc officers of the State and receive their instructions from the statute. True, the electors or other authorities of the town elect their assessors and, of course, have the authority to change them at the times provided by law, but it cannot be pretended that this constitutes the relation of principal and agent. They can neither b.nd them by instructions, nor revoke their powers during the continuance of their term of office. The case of Lorillard v. The Town of Munroe, went to the Court of Appeals, where the decision was affirmed and reported in 11 N. Y., 392, Dexio, J., delivering the opinion of the court, says at page 395 of the case : “ I am of opinion, therefore, that the assessors and collectors of taxes are independent public officers, whoso duties are prescribed by law, and that they are not, in any legal sense, the servants or agents of the towns; and that the towns, as corporations, arc not responsible for any default or malfeasance in the performance of their duties.” The same point was decided in The People v. The Supervisors of Chenango (11 N. Y., 563). This principle has so generally-been acquiesced in that few cases have been presented for judicial decision, in which it has been claimed that municipal bodies are liable for the acts or omissions of a collector of taxes, in regard to the taxes which ho is authorized to collect. It seems to be generally conceded that payment of taxes must be made in the manner authorized by law, and that any private arrangement between the officer authorized to collect the taxes and the taxpayer has no force, by way of operating to discharge the taxes. Any other rule would manifestly be attended with great public inconvenience. The payment of taxes must be made in money. (Sawyer v. Springfield, 40 Vt., 305; Richard v. Slogdale, 22 Inch, 74.) Consequently the tax receiver, in this caso, has no authority to receive the post payable checks of Munroe, the plaintiffs’ agent.

If a collector takes a town order in payment of taxes it must be regarded as a personal and not an official transaction. (Sawyer v. Springfield, supra.) So, payment of taxes in an illegal currency is a nullity, and, notwithstanding a collector has agreed to, and has received such funds in payment, he may proceed to collect the taxes as in other casos. (Richards v. Slogdale, supra.)

In Elliott v. Miller (8 Mich., 132), Arbórea tax eolk ctorhad agreed to receive in payment of taxes a draft of his creditors on himself, it was held not a valid payment, as taxes are due to the public, not to the collector individually, and claims against him are not a legal tender or off-set against the taxes. Similar is the duly of a sheriff, though only the agent for a private party, but still whose dutjes are enjoined by law. A sheriff cannot d.schargo an execution without payment, and' if he returns an execution satisfied, upon receiving the defendants note instead of money, it is no satisfaction of the judgment or execution. (Allen on Sheriffs, 144; Croaker on Sheriffs, § 420; Bank of Orange Co. v. Wakeman, 1 Cowen, 48; Mumford v. Armstrong, 4 id, 553.)

AVe are, thereto, e, of the opinion that the authorities relied upon by the plaintiffs to show that the reception of the checks of Munroe operated as a payment and satisfaction of the taxes, payable on the plaintiffs premises, are wholly inapplicable.

That the treasurer and tax receiver had no authority to receive anything but money in payment of the taxes, and that his agreement to receive anything else was void, and that ail the taxes charged against the plaintiffs said premises for the year 1875, except the sum of §254.22, which ivas actually received in money, and appropriated to the discharge of the city taxes, are still unsatisfied.

But we think that, as between Munroe and his assignee and the plaintiffs, the $2,500 collected on the check, which was paid on 1 he 10th of December, 1875, should be applied in satisfaction of such of the taxes as were due and unpaid upon the land of such parties as Munroe assumed to pay the taxes of 1815 upon, as the agent of other parties ; whereas, as we understand the ease, the said $2,500 was distributed amongst all the taxes which Munroe assumed to pay upon, whether as agent or otherwise pro rata, thus including the land owned by himself. But the case contains no elements from which wo can determine what the proportionate amount proper to be applied to the plaintiffs taxes would be, distributing them upon this principle. The judgment, therefore, so far as it is based on the idea that only $254.23 of the plaintiffs city taxes have been paid, is erroneous, and we therefore reverse the judgment, so far as the application of the $2,500, paid to the tax receiver, is concerned, and order a new trial for the purpose of readjusting the application of the payment’ in accordance with the principle, above stated, by dividing it pro rata amongst the lands for which Munroe acted as agent, excluding those owned by him.

The judgment should be reversed, a new trial ordered, with costs of the appeal to abide the final award of costs in the action.

Smith and Hardin, JJ., concurred.

Ordered accordingly.


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    SOLOMON DECK, Appellant, v. LEONIDAS WORKS, Respondent.

      Guaranty — when unconditional — what does not release a guarantor — when h« does not stand in the position of a surety.

    A promissory note made by Huber and Austin to the order of, and indorsed an* transferred by one Rutherford to the defendant, was sold by the latter to th» plaintiff for a valuable consideration, the defendant at the time of the sal» guaranteeing- the payment thereof. The note was not protested for non-payment, nor was any notice thereof given to the indorser. The makers of the note were insolvent, but the indorser was good.

      Meld, that the fact that the indorser was discharged, by the failure of the plaintiff to notify ■ him, did not relieve the defendant from his liability on his guaranty.
    The principle that the surrender by a creditor to the principal debtor of collateral security held by the former, releases a surety for the same debt, has no application to such a case.
    Appeal from a judgment dismissing the complaint herein, entered upon the trial of this action by the court, without a jury.

      J. F. Parkhurst, for the appellant.
    Guaranties are governed by the same rules of construction as other contracts. (Mason v. Pritch-
      aril, 15 East, 227; Mayer v. Isaac, 6 P. & W., 610; Drnmmnncl v. Prestman, 12 Wheat., 518; Fell on Guaranties [2d ed.], 180; Farmers and Mechanics1 Panic, v. Evans, 4 Barb., 488; Whitney v. Groot, 24 Wend., 82; WairaiA v. Thompson, 4 Hill, 200; Christ v. Burlingame, 62 Barb., 357; Winchellv. Doty, 15 Hun, 2.) No case can bo found where our courts have imposed any duty upon the holder of the guarantied obligation, which was not expressly stipulated for in the Avritten contract. (Wright v. Johnson, 8 Wend., 512; Hunt v. Smith, 17 id., 179; Dobbins v. Bradley, 17 id., 422; Walrath v. Thompson, 6 Hill, 240; 2 Comst., 185; Morris v. Wadsworth, 11 Wend., 100; S. Q., 17 id., 103; Comp-ston v. McWair, 1 id., 457; 3 Daniels on Neg. Inst., 648; Allen v. Bightmire, 20 Johns., 365; Diclcerson v. Diclcerson, 39 Ill., 575; Arantsv. Commonwealth, 18 Grat., 770; Craig v. Parkis, 40 N. Y.; 1 Hand, 188, and cases cited; Burt y. Horner, 5 Barb., 501; Weioell v. Fowler, 23 id., 632; Douglass v. Hmvland, 23 Wend., 35; Williams v. Granger, 5 Day, 444, S. P.; Somersal v. Bamerly, Cro-Jac., 287; Atkins and Wolfe’s Case, 1 Leon, 105; Pitman v. Biddlecome, 4 Mod. R., 230; Smith v. 11 id., 45; Brookbanlc v. Taylor, Cro-Jac., 605; Warrington v. Furbor, 8 East, 242; Brandt on Suretyship, etc., §§ 170, 171; Simmons v. State, 36 N. H., 73; EdAvards on Bills, 243; Breed v. Hillhouse, 7 Conn., 523; 6 Bar. & Cres., 373; Bead v. Curtis, 7 Greenl., 186.) The mere passive omission to charge the indorser was not the release of a security. The rule refers only to tho release, by the voluntary act of the creditor, of property held as security for the debt. {Glaziers. Douglass, 32 Conn., 393; Brandt on Suretyship, § 374; Wewcornb v. Baynor et al., 21 Wend., 108; Morgen v. Woodworth, 3 John., 89; Humphrey v. Hill, 6 Grat., 509; Lenox v. Prout, 3 Wheat., 520; Commomoealth v. Haas, 16 S. & R., 252; Farmers’ Bank v. Beynolds, 13 Ohio, 84; Mayhem v. Boyd, 5 Md., 102; 1 Parsons N. & B., 242; Board of Supervisors v. Otis et al., 62 N. Y., 88; overruling People Ar. Janson, 7 John., 332; Dye v. Dye, 20 Ohio, 86, and cases cited ; Wells v. Mann, 45 N. Y., 327; Sterling v. Marietta Co., 11 Sei’g. & RuavL, 179; Hubhell v. Carpenter et al., 5 Barb., 520; Freeman’s Bank v. Bcdlins, 13 Maine, 202; Powell v. Waters, 17 John., 176; Daniels on Neg. Inst., § 1326; Willson v. Tebbetts, 29 Ark., 579; Villctrs v. Palmer, 67 111., 204; Phiibrook v. McFwen, 16 Ind., 347; Ilayes v. Ward, 4 Johns. Ch., 132; King v. Baldwin, 2 id., 562; Pickens v. Finney, 20 Miss., 468; McGee v. Metcalf, 20 id., 535.) The rulo Unit a surety is discharged, if the creditor release a security upon property of the principal debtor, does not apply to a guarantor for value. (Pills v. Gongdon, 2 N. Y., 352; Wells v. Mann, 45 id., 330; Col grove v. Tollman, 67 id., 99; Hurd v. Little, 12 Mass., 503; Brown v. Curtis, 2 N. Y., 225; Leonard \T. Vredenburgh, 8 John., 38; Johnson v. Gilbert, 4 Hill, 178; Fowler Clearwater, 35 Barb., 143;-Cordell v. McNeill, 21 N. Y., 340; Mallory v. Gillett, 21 id., 418; Nelson v. Boynton, 3 Mete., 396.)
    TFm. Pumsey, for the respondent.
    The defendant was discharged from Lability upon his guaranty by reason of the failure of the plaint if to give the indorser notice of non-payment, and his consequent discharge from liability as indorser. ( Washington Bank v. Shurtleff, 4 Mete., 30, 32; Turnure v. Ilohenthal, 4 J. & 8., 79; 2 Parsons on N. & B., 117 [note], 134; Brandt on Guaranty, etc., § 1; Brown v. Curtiss, 2 N. Y., 225, 228; Ten Byck v. Brown, 3 Pinncy, 452, 454; ¿>. 01, 4 Chandler, 151; Mallory v. Lyman, 3 Pinncy, 443; 8. 01, 4 Chandler, 143; 2 Daniel on Negotiable Instruments, §§ 1752, 1753; UnLn Panic v. Coster, 1 Sandf. S. C., 563; 3 Kent, 123, 124; 2 Daniel on Negotiable Instruments, § 1753; Brewster v. Silence, 4 Seld., 207, 215.)
   Talcott, P. J.:

This is an appeal from a judgment rendered at the Steuben circu.t, in an action tried by the court, a jury having been waived.

The action Avas brought upon a guaranty of the payment of a note, winch was written by the defendant upon the back of a note made by Huber and Austin, and dated April 18. 1874, whereby they promised to pay to the order of Spencer Rutherford $150, “at my house in Troupsburgh,” for value received, with interest, payable sixteen months after date. Afterwards, and before the note matured, it was for value received, indorsed by Spencer Rutherford, and delivered to the defendant, who, on the 10th of July, 1875, executed the guaranty, wbicli was in tlie following words:

“For value received, I guaranty the payment of the within note.
“ Dated July 10, 1875.
“L. WORKS.”

And thereupon the said defendant, Works, sold and transferred the said note to the plaintiff for a valuable consideration at the time paid to the defendant by the plaintiff.

When the note became due, payment thereof was duly demanded of the makers, but it was not paid. No notice of protest or of the non-payment of the note was given to Spencer Rutherford, the indorser, or to the defendant, and the defendant was not informed of the non-payment of the note for'three months after its maturity. At the time of the maturity of the note the makers were, and still are, insolvent. Rutherford, the indorser, then was and still is solvent, but by reason of the failure to give him notice of the demand and refusal to pay the note, Rutherford claims that he has been discharged as indorsor. And the defendant, by reason of the omission to notify said Rutherford of the presentation and nonpayment of the note, has lost all remedy as against said Rutherford, and has been thereby damnified, and the court found, as a conclusion of law, that by the discharge of Rutherford and the consequent injury to the defendant, the defendant has been discharged from his liability as a guarantor of the payment of the said note, and ordered a judgment for the defendant.

So the question is presented in the case whether, under such circumstances, the omission by the holder of the guaranty of payment has lont his claim upon the guarantor, by the omission to give a prior indorser not.ee of the demand of payment on the makers and their refusal.

As singular as if may appear, we have been able to find no case amongst the reported eases in this State, and have, by the elaborate briefs of the respective counsel, been referred to none, in which the precise point raised m this case has been decided.

In Brown v. Curtiss (2 N. Y., 225), it was held that where one contracts in the form of a guaranty of payment upon the back of a promissory note, he cannot be made liable as indorser, nor can he set up in his defence the want of demand and notice, and that the mere neglect of the holder to sue the maker does not discharge the guarantor, although the maker becomes insolvent, intermediate the maturity of the note and the action against the guarantor.

Bronson, J., who delivered one of the opinions in that case, says: “The undertaking of the defendant was not conditional like that of an indorser, nor was it on any condition whatever. It was an absolute agreement that the note should be paid by the maker at maturity. When the maker failed to pay, the defendant’s contract was broken, and the plaintiff had a complete right of action against him. It was no part of the agreement that the plaintiff should give notice of the non-payment, nor that he should sue the maker or use any diligence to get the money from him. The cases in Massachusetts, Maine and Pennsylvania * * * are not law in this State. With us proceedings against the maker are only necessary where there is a guaranty of collection.”

In the same case, in the opinion of StroNG, J., it is said: “ The direct engagement of the indorser of a negotiable note and of a guarantor of the payment of the note, whether negotiable or not, is the same. Both undertake that the maker will pay the amount when it shall become due. If there is a failure in such payment both contracts are broken. Ordinarily, upon the breach of a contract, the party bound for its performance immediately becomes liable for the consequent damages. In the case of the indorser of a negotiable promissory note, however, the liability does not become absolute, unless due notice of non-payment is given to the party whom it is intended to charge. That is not because the in-dorser has thus stipulated in terms, but it is a condition annexed by the rules of the commercial law. In the case of a guarantor there is nothing to exempt him from the ordinary liability of parties who have broken their contracts, which is direct and not conditional. No condition requiring notice of non-payment is inserted in the contract, nor is any inferred by any rule of law. The guarantor is bound to ascertain for himself whether his contract has been performed, and can easily obtain the requisite information from the party for whose conduct he has assumed the responsibility.”

In the case of Brown v. Curtiss (supra) there -was no prior indorser, and BeoNSON, J., in allusion to this fact, says : “If there had been an indorser on the note prior to the guaranty, and the plaintiff had allowed him to be discharged by neglecting to demand payment and give Mm notice, it may be that the defendant would have had a good answer to the action. But it is not necessary to consider that question for there was no indorser.”

But it will be perceived that both BeoNSON and SteoNG, JJ. put the principle upon which it was held that no notice to the guarantor of presentment and non-payment is necessary, in order to maintain the action against him, upon the ground that the contract of guaranty of payment is entirely unconditional, and in no manner qualified by any engagement, express or implied, imposing upon the holder of the guaranty the duty of any diligence whatever, in regard to a presentment for payment or notice of the non-payment. This being the principle upon which the decision rests, we do not see how any condition rendering it necessary for the holder of the guaranty to demand payment of the maker, and in case of non-payment to notify the indorser, can be interpolated in the contract, in order to hold the guarantor liable on his guaranty. No such duty was imposed by the terms of the written contract, which must be held to constitute the agreement between the parties. It is a settled rule that guaranties are to be construed like other written instruments, 11 the language of the contract must be construed according to the plain and obvious import.” ( Whitney v. Groot, 24 Wend., 82; Walrath v. Thompson, 4 Hill, 200; Winchell v. Doty, 15 Hun, 2.)

If the very terms of the guaranty do not necessarily imply that the liability of the guarantor is dependent upon the failure to obtain payment after proceedings at law against the principal, the suit at law is not necessary to bind him. (Morris v. Wadsworth, 11 Wend., 100; S. C., 17 id., 103.)

Therefore, as no condition requiring presentment and notice of non-payment, or any diligence of whatever character, in order to save or protect the guarantor in any recourse against the indorser, in this case, is expressed, and no such condition is, as matter of law, implied, it would seem obvious that no such condition can be insisted upon to discharge the guarantor. In Douglass v. Howland (24 Wend., 35), it was held that “ the doctrine of notice of non-per-formanw, applicable to negotiable paper, does not govern in the case of guaranties, when the guarantor undertakes absolutely that 1ns principal shall perform. If it be intended that notice shall bo given it must be provided for in the contract, otherwise the guarantor must inquire of his principal.”

It may be considered that the guarantor of a note, on which there is a prior indorsement, undertakes for the performance of each contract which he has guaranteed, that of the maker and that of the indorser. If either fails to perform the contract which is guaranteed, a cause of aotiou arises to the holder of the guaranty for such default, and if the guarantee was conlined to the indorsement alone, it may be possible that in case of any neglect of the holder to see that the indorser ivas duly charged so as to make hin> liable by law, that the guarantor would be discharged thereby, but where the guaranty is as in this case, that the parties who are lia. ble by two separate contracts, one absolutely as maker, the olhci» conditionally, provided a due demand is made of the maker, and, if he refuses payment, notice to the indorser, then we see no reason why the holder of the guaranty may not maintain his action for a default in the performance of either contract guaranteed. This is not the case of a release of the liability of tbe indorser, in wliich case the guarantor might have reason to complain, but of a simple omission to charge the indorser by notice. If the holder release the first indorser, lie cannot recover of the second indorser. (Newcomb v. Raynor, 21 Wend., 108.) But the bolder may omit to charge the first indorser and yet recover against the second. Baker v. Morris, 25 Barb., 140; Spencer v. Ballou, 1'f N. Y., 327.) On the -whole, we think if the guarantor desired to have recourse to the indorser m this case, and desired that the holder of the guaranty should take the requisite stops to charge the indorser, he should have so provided in his contract, otherwise he must see to it himself that the indorser is duly notified of the non-payment of the note.

The case of Loveland v. Shepard (2 Hill, 139), upon the authority of which the justice at the circuit seems to ha re disposed of this case, was a guaranty of collection, in which case there was no breach of the guaranty, except upon a failure to col.set after the exhaustion of all legal remedies, as provided for bj tha very terms of the contract of guaranty, as such contracts have been construed by the courts.

In the case of Greene & Co. v. Thompson (33 Iowa, 293), the precise question in this case arose. It was there claimed that the defendant, a guarantor of payment, had suffered detriment because he was not notified of the non-payment of the note, the payment of which he had guaranteed, in time to enable him to give notice thereof to two indorsors, under whom he had acquired the note, who were thereby discharged from liability, and the following doctrine is laid down in that case. “ As there rests no obligation on the holder of the note, when he seeks to charge the guarantor only, to give such notice as will bind an indorser, the guarantor cannot be relieved if it is not done. Any detriment he may thereby sutler, the law presumes he assented to assume, by entering into a contract which provides no protection against it.”

There is another view of the case which may bo taken which leads to the result that the guarantor, in this case, is liable upon his guaranty, notwithstanding the neglect of the holder to charge the indorser. The ground on which the defendants case seems to have been put at the circuit, and upon which it is sought to be maintained here, is upon the rules applicable to the case of principal and surety. The general rule, as well-settled is, that where a creditor relinquishes to a principal debtor other direct or collateral securities -which he might have resorted to for the exhonoration of the surety, the surety is pro tanto discharged. (See case of Ingalls v. Morgan, 10 N. Y., 87.) If this principle had any application to the case of an absolute and unconditional undertaking, like a positive guaranty of payment at all events ; yet it will be remembered that in this case it is expressly found that the defendant received a valuable consideration for his guaranty, and for-this reason, if for no other, he was not in the condition of a surety-for the performance of the contract of the indorser.

In Pills v. Congdon (2 N. Y., 352), it was held that “ where-a creditor receives from his principal debtor collateral security of sufficient value to pay the debt, the surety is discharged if the security be surrendered without his consent. But where the holder of a promissory note indorses and transfers it for value, in the usual course of business, he is not a surety within the meaning of this rule, and, therefore, he will not be discharged although the indorsee takes security from the maker and afterwards surrenders it without his consent.”

In this case, therefore, the defendant cannot claim to have applied, the rule existing as between a creditor and a surety, for the reason that he transferred and guaranteed the note in question for a valuable consideration received by him from the plaintiff at the time, and as the consideration for the transfer and guarantee.

. In view of the whole case, therefore, we think that the judge at the circuit erred in his conclusion, that the omission on the part of the plaintiff to charge the indorser, or to give notice of nonpayment to the guarantor, in sufficient season to enable him to charge the indorsor, had the effect to discharge the defendant from liability on his guaranty of payment.

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

Shith and ITakdiN, JJ., concurred.

Judgment reversed and a new trial granted, costs to abide the event.


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    ROBERT L. DORR, Respondent, v. THE DANSVILLE GAS-LIGHT COMPANY, Appellant.

      Action to restrain a nuisance and to recover damages■ — triable by a jury.

    An action to restrain the continuance of a nuisance, and to recover the damages ■ occasioned by it, is triable by a jury, and cannot be tried by the court unless the pai'ties consent thereto; especially is this so where the court refuses to restrain the further continuance of the alleged nuisance and only maintains the action for the purpose of giving the plaintiff damages.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury.

      Charles I Bissell, for the appellant.

      Robert L. Dorr, for the respondent.
   Talcott, P. J.:

This is an appeal from a judgment ordered at a Special Term in Livingston county for $200 damages, in an action for a nuisance.

The plaintiff complains that the defendant has established on a street in Dansville, opposite to his dwelling-house, a place for the manufacture of illuminating gas, and pursues the business of manufacturing said gas at its factory, which emits an injurious, unwholesome and poisonous substance, contaminating the atmosphere at the plaintiff's said residence, and destroying the comfort of the plaintiff’ and his family, and injuring the value of his said property. And the plaintiff demands a judgment for $5,000 damages ; that the defendant may be perpetually enjoined from manufacturing gas at or near the place aforesaid, and that a decree may be entered in the action forever abating the nuisance in «question.

The defendants,, by answer, deny the nuisance.

The judge at the Special Term denied the perpetual injunction asked for by the plaintiff, and denied the relief of abating the nuisance ; but found that the plaintiff had sustained $200 damages by reason of the matters complained of as to the said gas factory.

’When the cause was reached on the calendar the defendants, by their counsel, objected to a trial by the court, and demanded that the issues in the action be tried by a jury, upon the ground that the case is one in which a trial by jury is guaranteed to the defendant by the constitution of the State. The objection was overruled, and the justice proceeded to try the cause without a jury, to which the defendant’s counsel excepted, and this is the only question presented on the appeal.

The case seems to be governed by the case of Hudson v. Caryl (44 N. Y., 553), which seems to have been a case, in principle, in all respects similar to the case at bar. In that case the action was commenced to recover damages for an alleged injury occasioned by raising the waters of Schenevus creek by a mill-dam so as to overflow the lands of the plaintiff, and to compel the removal of the dam. The prayer for judgment was “ that the defendant be compelled to take away or lower his dam so as to cease obstructing said stream to the injury of the plaintiff, as aforesaid, and not to rebuild the same ; and that he pay plaintiff all damages she shall have suffered from such obstruction, * * * or for such further or other judgment as shall be agreeable to equity.”

When the cause came on for trial the defendant, as in this case, claimed the right of trial by jury. Judgment was rendered in favor of the plaintiff for damages, and that the dam be “lowered so as not to set back the water on the plaintiff’s land.”

The General Term of the sixth district affirmed the judgment, and the defendant then appealed to the Court of Appeals. In delivering the opinion of the court Guay, Com., used the following language : “ Before, as well as since the writ of nuisance was by the Code abolished, the right existed to maintain an action for the removal of a nuisance which, when brought, was exclusively of equitable cognizance properly triable at Special Term, and not by jury, unless the court in its discretion should otherwise order. An action at common law might also have been maintained for the recovery of damages occasioned by the nuisance, which was exclusively of common law jurisdiction, and triable at circuit, and always by a jury, unless the parties should otherwise agree. The only change wrought by the Code was the substitution of an ordinary action for 1 both ’ — the removal of the nuisance and the recovery of the damages occasioned by it instead of the writ of nuisance.”

“ That is this case. This action is for-both, in which, as Blackstone has it, judgment is demanded against the defendant of two things : 1st. That the defendant take away or lower his dam, so as to cease obstructing the stream to the injury of the plaintiff; 2d. That the defendant pay to the plaintiff all the damages she has suffered from the obstruction. * * * But whatever may be said or decided in regard to the trial of other actions, in which two causes of action, one exclusively of legal and another exclusively of equitable cognizance arising out of the same transaction, are united, this action should, for an independent reason, have been tried by a jury, and that is, that the action when brought for the double object of removing the nuisance and recovering the damages occasioned by it was always tried by a jury, * * * a case is presented in which a trial by jury has been heretofore used ; and hence an error was committed in refusing the defendant’s demand and proceeding to judgment against him,” and, therefore, the judgment was reversed. (See Davies v. Morris, 36 N. Y., 569; Coleman v. Dixon, 50 id., 572; Sternberger v. McGovern, 56 id., 12; op., pp. 20, 21; Wheelock v. Lee, Court of Appeals MSS.)

In this case the Special Term denied all that relief which might be claimed to be exclusively of equitable cognizance, and only maintained the action for the recovery of damages which it found the plaintiff had sustained by reason of the alleged nuisance, which was clearly a cause of action cognizable only at law.

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

Smith and Hardest, JJ., concurred.

Judgment reversed and new trial granted, costs to abide event.