text:
    CORNELIA PARK, Respondent, v. RICHARD H. PARK, Appellant.

      Divorce — Final alimony — when awarded without notice — right to, and ability to furnish it at what time to he determined.

    Where an. action for divorce is commenced by the service upon the defendant of a summons alone, and he neglects to appear therein, the judgment may award final alimony, if demanded in the complaint, without any notice being given to him of the application to be made therefor.
    The right of the wife to final alimony, and the ability of the husband to furnish it, are to be determined by the situation and condition of the parties at the time of the entry of final judgment, and is not to be modified by any subsequent change in the situation of either party.
    Appeal from an order of the Albany Special Term adjudging the defendant guilty of a contempt, and committing him to the 'county jail until the costs and expenses of the proceedings, the amount of which was imposed as a fine for his misconduct, ■should be paid, and he should give the security required by the order for the payment to the plaintiff of the alimony awarded td her by the final decree in action for divorce brought by her.

      Edward O. Ripley, for the appellant.

      Sam. Tro. Smith, for the respondent.
   LEARNED, P. J. :

The first point urged by the defendant is that the judgment should have contained no award of final alimony, because no notice of an application therefor had been served on him. -The defendant was sued by the service of a summons alone; and he neglected to appear. He was not entitled to any further notice. The only restriction is that the judgment cannot exceed that which is demanded in the complaint. (Old Code, sec. 27 5.) There is no evidence that this judgment did exceed the demands of the complaint. And there is no motion to vacate or modify it.

The judgment appears to have been granted upon a report of a referee upon proofs filed. It adjudges a dissolution of the marriage and awards the plaintiff final alimony of $300 per annum. It adjudges that the defendant give security to the clerk, to be approved by one of the justices, for the payment of this alimony. The court had authority to require such security. (2 R. S. 148 [m. p.], sec. 60; Forrest v. Forrest, 6 Duer, 104.)

This judgment was granted in 1868 ; though by some negligence the roll seems not to have been perfected until 1877. Thereupon, on affidavits, showing that no part of the alimony had been paid and that the defendant, in violation of the judgment, had assumed to contract another marriage, and that he was in receipt of large sums of money, an attachment was issued against the defendant. On the return of the attachment interrogatories were filed, to which the defendant put in his answers ; and there: upon it was referred to a referee to take proof of the ability of the defendant to give security for the payment of alimony. Proof was thereupon taken before the said referee and was reported to the court. On the hearing of the proof and of the answers to the interrogatories, and on the hearing of affidavits to vacate the attachment, the court denied the motion to vacate: held that the defendant was guilty of contempt; that he should pay a certain sum, adjusted for costs of the proceedings, and should give a bond in the penalty of $3,000 to secure the future alimony aforesaid ; and that he be committed until he pay these costs and give such bond. From this order the defendant appeals.

In the case of Kamp v. Kamp (59 N. Y., 212) the court decided that the final decree in an action for divorce determines conclusively the right of the parties in regard to alimony ; that the claim of the wife for support is to be determined by her situation and the ability of her husband at the time of making tbe decree, and is not to be subsequently modified by a change in the situation of either party. We must, therefore, hold that the defendant in this case was able, and is bound, to pay the alimony and to give the security required by the judgment. That was conclusively settled by the judgment.

The amount of that security was not mentioned in the judgment ; but it was to be “ approved by one of the justices of the court.” This must mean that the amount and form and sufficiency were to be so approved. On a hearing of both parties the learned justice approved the amount of $3,000.

In regard to the collection of final alimony it was decided in Lansing v. Lansing (4 Lans., 377) that it was to be collected by execution. It is not explained however in that case how a judgment for final alimony is to be docketed — whether or not, a new docket is to be made every time the annual or semi-annual alimony becomes payable. And as a judgment is made a lien only for ten years from the filing of the roll and docketing, it is not clear how, after ten years from the judgment, the amounts of alimony are to be docketed so as to be a lien on land. And docketing is necessary before the issue of execution. (Code, secs. 287, 282.) Besides, after the lapse of five years from the entry of judgment, execution is to issue only by leave of the court granted on notice. (Sections 283, 284.) How this provision is to apply to alimony is not explained in that decision.

At any rats it was wisely provided that the court might require the defendant to give security, so as to protect the injured wife against the improvidence of the guilty husband. And where the judgment requires the performance of any other act than the payment of money, or the delivery of real or personal property, a certified copy is to be served on the party. And if he refuse to obey he may bo punished by the court as for contempt. (Code, section 285.) This general provision of the new practice cannot be prevented from applying to this judgment by reason of the provisions for sequestration in 2 Revised Statutes (m. p.), 148, section 60.

It appears, then, by the defendant’s answer to the interrogatories that, on the 9th of November, 1877, he was served with a certified copy of the judgment; and that a written demand was made of him that he should give the security, and that he did not give the same. The defendant’s reason for not giving the security, as he states, is his inability to do so. In Kamp v. Kamp (ut supra) it was said that the husband could not claim exemption from payment on account of subsequent losses sustained. But where proceedings are taken to punish a person as for contempt, in not doing an act required by the court, the court may relieve the party from fine or imprisonment in case of inability to perform. (2 R. S. [m. p.], 538, sec. 20, as amended Laws of 1843, chap. 9.) And from this it would follow necessarily that if the party is unable to do the act required no fine or imprisonment should be imposed. It was in this view of the case that a reference was ordered and proofs taken. On these proofs the Special Term was satisfied of the defendant’s ability.

To examine the proofs briefly, in order to see if the defendant has excused himself, we find that he is a sculptor ; that since his divorce he has married again and has been living in Italy, having apartments at the rate of $120 per month and a studio at $200 per year; that he returned to this country in 1876 ; that he brought three pieces of statuary before the centennial exhibition ; and thirteen which were in that exhibition, and six since ; that he has made some six busts and medallions here. He sold one piece for $735, one for $350, one for $2,150, one for $800. The statuary which he had at the centennial was mortgaged for about $4,000 ; being for his material and labor. So that he had received payment for his labor thereon in advance. He has been boarding at the Park Avenue Hotel, in New York, with his .present wife, and hires a studio in New York at ten dollars per month and at Syracuse at sixteen dollars per month. He does not remember, as he says, how much the statuary sold for which he had at the exhibition, but it was sold. His expenses at the exhibition were about $1,500, and since then from twenty to twenty-five dollars per week. In Italy he had thirteen rooms and from one to five hands at work. Since returning to this country he has rented some of his rooms there and received the rent for the same. The defendant has supported a sister for some three years, and is supporting his present wife.

Now when we look at these facts, taken principally from the defendant’s own testimony, to see whether they furnish any excuse for bis failure to obey the judgment of the court and to give security as by said judgment required, we think them insufficient. He seems to have entirely disregarded the rights of the plaintiff; to have neglected the duty he owed to her ; to have assumed, in violation of the judgment of the court, other duties and to have been in the receipt of considerable amounts of money. A single piece of statuary which he made sold for two-thirds of the amount required for his bond. It is not easy to believe that he is unable to perform the judgment of the court.

The order should be affirmed, with costs.

Present— LearNed, P. J., BoardmaN and Follett, JJ.

Order affirmed, with ten dollars costs and printing disbursements.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    In the Matter of the Application of the ATTORNEY-GENERAL, Appellant, v. THE NORTH AMERICA LIFE INSURANCE COMPANY, Respondent.

      Registered, policy act — chapter 902 of 1869 —proceeds of securities to he paid to receiver.

    Where the securities deposited with the superintendent of the insurance department under the registered policy act, chapter 902 of 1869, have been sold, as provided in section eight thereof, it is the duty of the superintendent to immediately pay over the proceeds thereof to the receiver of the company.
    Appeal from an order made at Special Term, directing a peremptory mandamus to issue to Hon. John F. Smyth, superintendent of the insurance department, commanding him to pay over to Henry R. Pierson, as receiver of the North America Life Insurance Company, the sum of about one hundred thousand dollars ($100,000), held by the said superintendent under the laws of the State, as the proceeds of the sale or conversion of securities in the hands of the superintendent, under chapter 902 of the Laws of 1869, as security for the policyholders in said company, and also directing that any further sums that may be received by the superintendent be paid to said receiver in like manner.

      A. Schoonmalcer, Jr., for the appellant.

      It. W. Peclcham, for the respondent.
   Per Curiam:

We think that the court below properly construed the part of the statute which requires the superintendent to pay to the receiver the proceeds of the securities. It is not necessary to consider whether it may not be somewdiat discretionary with the superintendent, the treasurer and the receiver to determine when the securities should be sold. But when that has been determined and the securities have been sold, then the statute is explicit. The proceeds are to be paid to the receiver. There is nothing in the statute which intimates that the superintendent is to retain the proceeds for any time after the securities have been sold, and there is no reason why he should do so.

One clause of the order appealed from directs the receiver, out of these proceeds, to pay the costs and expenses of this proceeding. No argument was made on this clause. But it should be stricken out. The statute states specifically how the receiver is to use the proceeds. There is no reason why the superintendent’s costs shoidd be paid therefrom. And nothing is shown rendering it necessary to make any specific charge of the receiver’s costs and expenses. A general direction to pay the costs and expenses of this proceeding is too vague.

This clause should be stricken out. The order, as thus modified, is affirmed, with ten dollars costs, and printing disbursements to be paid by the appellant.

Present — Leakned, P. J., Bocees and BoabdhaN, JJ.

Order affirmed, except as to part giving costs out of the fund which is stricken out, with ten dollars costs and printing disbursements.


text:
    MARY ANN KELLEY, Appellant, v. SAMUEL H. CASE, Committee, etc., of KELSEY R. KELLEY, a Lunatic, Respondent.

      Note given, by husband, to wife — how far valid — inchoate right of dowei' — nature of — not incVuded in chapter 90 o/1860, or chapter 172 o/1862.
    This action was 'brought upon a promissory note for §3,000, made by one Kelley to the order of the plaintiff, his wife. It was given to induce her to relinquish her inchoate right of dower in a house and lot sold by him for §2,500, such inchoate right then being of the value of §390.92. Payments to the amount of about §1,400 had been made upon it.
    In this action by the wife against her husband, held, that the note was omy valid to the amount of the value of her inchoate right of dower, and that as the payments made exceeded that amount the action could not be maintained.
    A wife’s inchoate right of dower is not included in the kinds of property specified in section 1 of chapter 90 of 1860, nor is it within the provisions of section 7 of that act, as amended by chapter 172 of 1862.
    The rights of a husband and wife to contract with each other are only such as necessarily arise from the separate ownership of property by the wife
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    The action was brought to recover the balance due on a promissory note of $3,000, dated July 14, 1870, made by defendant, Kelsey R. Kelley, payable to the plaintiff, Mary Ann Kelley, his wife.
    There had been paid and indorsed on said note, for principal and interest, before the commencement of this action, about $1,400.
    The parties were husband and wife at the time of the giving of said note.
    The note was given in consideration of plaintiff’s releasing her inchoate right of dower in a certain house and lot in the village of Oneonta, N. Y., worth at the time, $2,500. Her inchoate dower right being then worth $390.92.
    The defendant sought to defeat a recovery on the note, on the ground that there was no good or valuable consideration for the giving of it; and also on the ground that the action could not be maintained as the parties were husband and wife.
    The referee found, that aside from and beyond the amount of plaintiff’s inchoate right of dower, the said promissory note was void, for want of any good or valuable consideration, and inasmuch as there had been paid on said noté more than the value of such inchoate right of dower, on the principle of life annuities, directed a judgment in favor of defendant, dismissing the complaint with costs.
    On the 22d of April, 1878, the defendant, Kelsey K. Kelley, was declared a lunatic, and Samuel H. Case was thereafter duly appointed the committee of his person and estate, and substituted as the defendant and authorized to defend the action.

      Geo. Scrarnling, for the appellant.
    This action can be maintained by plaintiff, notwithstanding she is the wife of defendant. (Wright v. Wright, 54 N. Y., 437 ; Power v. Lester, 23 id., 527 ; Dygert v. Iieimschnider, 32 id., 629; Whitney v. Whitney, 49 Barb., 319 ; Brace v. Gould, 1 Sup. C. B., 226.) The release by plaintiff of her inchoate right of dower in the house and lot was a good and valuable consideration and sufficient to uphold the entire note. {Brooks v. Weaver, 3 Alb. Law Jour., 283; Doty v. Baker, 11 Hun, 222; Smart v. Daring, 14 id., 276; Douglas v. Douglas, 11 id., 408, and cases there cited; 1 Hilliard on Beal Property, 117; Garlock v. Strong et at, 3 Paige, 440.) There being a good and valuable consideration for the giving of the note, it was error in the referee allowing defendant to attempt to show its inadequacy. {Earl v. Peck, Adm., etc., 64 N. Y., 596 ; Worth v. Case, 42 id., 362 ; Johnson v. Titus, 2 Hill, 606 ; Way dell v. Luer, 3 Denlo, 410 and 418; Oakley v. Boorman, 21 Wend., 588 ; Hodman v. Munson, 13 Barb., 188, 195 ; Gilsey v. Wild, 1 Hilt., 305 ; Fay v. Richards, 21 Wend., 625 ; Gillespie v. Tor-rence, 25 N. Y., 306 ; Hunt v. Johnson, 44 id., 27 ; 1 Wait L. and P., 87-88, and cases cited.) A consideration, though not a valuable one, is sufficient in equity to support transactions between husband and wife, when the claims of creditors do not intervene. {Van Amburgh v. Kramer, 16 Hun, 207 ; 4 Kent, 465 ; Isenhart v. Brown, 2 Edw. Chy. B., 341; Bucklin v. Bucklin, 1 Abb. App. Cas., 42 ; Hunt v. Johnson, 44 N. Y., 27 ; Kelly v. Campbell, 2 Abb. App. Decs., 492, 494, and cases cited; Mack v. Mack, 3 Hun, 323.)

      L. L. Bundy, for the respondent.
    This note cannot be enforced in an action at law. (Hunt v. Johnson, 44 N. Y., 27, 31, 32, 36, 41; Whitaker v. Whitaker, 52 id., 368; White v. Wager, 25 id., 329 ; Winans v. Peebles, 32 id., 423 ; Sheldon v. Olancy, 61 Barb., 475 ; Perkins v. Perkins, 62 id., 527 ; Van Order v. Van Order, 8 Hun, 315, 316-317 ; Meeker v. Wright, 11 id., 533.)
   Per Curiam:

Whatever an inchoate right of dower may be, it is not included in the kinds of property specified in section 1, chapter 90, Laws 1860. Nor can it come within the provisions of section 7 of that act as amended by chapter 172, Laws 1862. It is a right which a married woman has always had ; and there is nothing in these acts which has changed its character, or has made it any more her sole and separate property than it always was.

But her right was formerly protected in equity. (Garlick v. Strong, 3 Paige, 440.) And on equitable principles it will now be protected. If she has been induced to release this right on a promise of compensation, such compensation should be made. The wife should be protected, if she has parted with her inchoate right, to the extent thereof.

Of course it is true, as the plaintiff insists, that mere inadequacy of consideration is not a defence to a promissory note ; that is asv between parties fully competent to contract with each other. But husband and wife are not fully competent. Originally they could not contract with each other at all at law. Now their additional rights to contract with each other are only such as necessarily arise from the separate ownership of property by the wife. In regard to this inchoate right of dower, we think it remains on the former footing; by which the wife will be protected against loss by reason of her release, induced by the husband's promise.

We think, therefore, that the referee rightly held that there could be no recovery for the balance of this note.

The judgment should be affirmed, with costs. .

Present — LeakNjgd, P. J., BoakdMAN and Pqllett, JJ.

Judgment affirmed, with costs.


author: LuabNed, P. J.:

text:
    THE VILLAGE OF DEPOSIT, Respondent, v. WILLIAM T. PITTS AND CHARLES H. PITTS, Appellants.

      Village — -power of, to restrain sales at auction and, to impose a penalty of not less than one dollar nor more than ten dollars for a violation of its ordinance — What is an auction.

    Subdivision 18 of section 5 of chapter 330 of 1873, the charter of the village of
    . Deposit, authorized the board of trustees “to regulate, restrain or prohibit sales by auction, except sales by legal proceedings, and to grant licenses to auctioneers.” The board passed an ordinance providing that no person should “offer any goods or property for sale by public auction, except residents, unless having a license from the president of the village. The terms of such licenses shall be at the discretion of the president.”

      Held, that the ordinance, so far as it prohibited sales without a license, was authorized by the charter and was valid.

      Quwre, however as to the provisions leaving the terms of the licenses to the discretion of the president.
    The ordinance provided that any person offending against its provisions should be liable to a penalty of not less than one dollar, nor more than ten dollars, for each offence.

      Quwre, whether it imposed more than a penalty of one dollar for each offence.
    The defendant put up goods for sale, at a certain price, and if they were not taken at that price offered them again at a lower one, and so on until they were taken or withdrawn.

      Held, that this was a sale at auction within the meaning of the charter and ordinance.
    Appeal from a judgment of tbe Broome County Court, affirming a judgment of a justices’ court in favor of the plaintiff.
    The action was brought to recover a penalty given by section 21 of the ordinances of the village of Deposit, which provides that “no person shall offer any goods or property for sale by public auction, except residents, unless having a license from the president of the village. The terms of such license shall be at the discretion of the president; it shall not be less than one dollar, nor more than ten for each day. Any persons violating this provision shall be liable to a penalty of not less than one dollar, nor more than ten dollars for each offence, and shall be subject to arrest by the authorities of the village if they do not desist or refrain when requested or directed by any of the trustees.”
    Subdivision 18 of section 5 of chapter 330 of 1873, the charter of the village authorized the board of trustees, “To restrain and prevent hawking and peddling in the streets, to regulate, restrain, or prohibit sales by auction, except sales by legal proceedings, and to grant licenses to auctioneers.”
    The evidence shows that defendants put up goods for sale, offering them at one price, when, if they were not taken at that price, they offered them again at a lower price, and so continued until finally, if they were not taken before, they stated their lowest price, and sold the goods, or reserved them for another occasion. On this evidence the justice rendered a judgment in favor of .the plaintiff, and against the defendants, for six dollars damages and $2.35 costs.

      Penrie & Wales, for the appellants.
    The ordinance is invalid. {The Mayor of Hudson v. Thorne, 7 Paige, 261; Dillon on Mun. Corp., §§ 256, 630; Trustees of Oanajoharie v. Buel, 43 How., 155; Commonwealth v. Stodder, 2 Cush., 562; Could <& Co. v. Mayor of Atlanta, 55 Geor., 678; Mayor of Nashville v. Althrop 5 Cold. [Tenn.], 554; Cooley's Constitutional Limitations, 201; nay den v. Noyes, 5 Conn., 391; Dunham v. Trustees of Rochester, ■ 5 Cow., 462; Hayes v. City of Appleton, 24 Wis., 542; Mayor of New York v. Second Avenue R. B., 32 N. Y., 261; S. O., 21 How., 260; Dillon on Mun. Corp., § 609; Brown v. Maryland, 12 Wheat., 419; Cooley’s Const. Lim., 586; People v. Edmonds, 15 Barb., 534; Warder. Maryland, 12 Wall., 429; Freeholders of Fssex v. Barber, 2 Ilalst. [N. J.], 64; Cooley on Const. Lim., 88, 20; Exparte Burnett, 30 Ala., 461; Craig v. Burnett, 32 id., 728; Reed v. People, 1 Park [Cr. B,.], 493.) The defendants were not selling by auction. (Webs. Die.; Burrill L. Die., 162; Cruso v. Crisp, 3East, 337; Walkerv. Advocate General, 1 Dow., 112; Trust v. Delaplaine, 3 E. D. Smith, 219; Minium v. Main [3 Sold.], 7 N. Y., 220; Abb. New Digest, vol. 1, 404, § 24; Meeeh v. Bennett, Hill & D. Supt., 191; McCluslcey v. Cromwell, 11 N. Y. [1 Kern.], 593.) As it is a penal ordinance in favor of a corporation and is in derogation of common right, it should be strictly construed. (Bridgewater and Utica P. R. Co. v. Robbins, 22 Barb., 662; Cayuga Bridge Co. v. Magee, 2 Paige, 116; Beatty v. Lessee of Knowler, 4 Pot. [IT. S. S. C.], 152; Wright v. Briggs,
      2 Hill, 77; People v. Lamhier, 5 Denio, 9; Sprague v. Birdsall, 2 Cow., 419.)

      Alex. Gumming, for the respondent.
   LuabNed, P. J.:

It is not necessary to inquire whether, without special authority in the charter, the board of trustees could have passed the by-law in question. They are specially authorized to restrain or prohibit sales by auction. And they did prohibit such sales. They were authorized to grant licenses to auctioneers ; and of course such license, when granted, relieved the licensed parties from the prohibition.

If they had a power to grant licenses to auctioneers, this must have meant a license to sell at auction. The ordinance speaks of a license to sell at auction ; the charter of licenses to auctioneers. The expressions are the same in meaning. A license to sell at auction is a license to bo an auctioneer for the time.

The defendants urge that the board of trustees could not delegate the power of licensing to the president. Whether they could or not docs not seem to be material. The defendants arc sued for selling at auction without a license. Their answer is, that the president had no authority to license them, but that the authority was in the board of trustees. Then they should have obtained a license from the board. The board of trustees has not given them a license, nor has the president. If he had no power to give a license, it may possibly be that auctions are absolutely prohibited in the village. This is not a case where something is claimed against the defendants on the ground of the affirmative action of the president. It is, therefore, unlike Birdsall v. Clark (6 N. Y. Week. Dig., 428). In fact, by the charter itself, the president is to execute licenses. (Law 1873, chap. 330, tit. 5, sect. 2.)

There is no doubt that the sales conducted by the defendants were auctions. They oifered the property at a certain high price and then gradually lowered the price till some one accepted it as a purchaser.

A question of some difficulty is, whether an ordinance can impose a variable penalty, as for instance, a penally of not more than tea dollars, nor less than one dollar. It is at least doubtful •whether such an ordinance imposes anything more than a penalty of one dollar for each oifence. But the recovery was only for six dollars; and several offences were proved. It does not appear that the defendants insisted on this point at the trial. And we cannot say that anything more than one dollar was recovered for each offence. We think that the defendants, if they relied on this defence at the trial, should have stated it distinctly.

Some cases are cited by the defendants which are thought to show that the ordinance was void.

Dunham v. Trustees (5 Cow., 462), is a case where the act authorized the trustees to “ make such prudential by-laws,” etc., as they might deem proper, * * * “ relative to taverns, gin shops and huckster shops.” A by-law was passed imposing a penalty on every person keeping a huckster shop without license. The court held that the by-laws were to be “ prudential,” and that it was not shown how the huckster shops could bo au evil. The statute, in the present case, does not contain the word “prudential,” and expressly authorizes the trustee to prohibit auctions.

The Mayor v. Thorne (7 Paige, 261), decided that an injunction was not a proper remedy to enforce obedience to a by-law.

The Trustees v. Buel (43 How., 155), held that a resolution, that a certain individual should remove au awning under a penalty named, was not an ordinance under the meaning of the charter.

In the case of Commonwealth v. Stodder (2 Cush., 562), there was nothing in the statute authorizing the city to grant licenses ; the only authority being to adopt rules “ for the due regulation ” of omnibusses, etc. And it •was held that the requirement of the payment of money as a condition of receiving a license was not legal. It will be seen, therefore, that the city was by the statute neither authorized to prohibit the running of omnibusses nor to require a license therefor. While the statute, now in question, expressly authorizes the trustees to prohibit auctions, and also to grant licenses to auctioneers. And it would seem to follow that if the trustees can absolutely prohibit auctions, they can specify the terms on which they will grant licenses.

Thus it will be seen that the cases relied upon by the defendants differ from the present in this respect, that here the trustees were acting under authority conferred by the express language of the statute.

The judgment should be affirmed, with costs.

Present — Leagued, P. J., BoaedMAN and Follett, JJ.

Judgment affirmed, with costs.


text:
    AARON DICKINSON, Respondent, v. HENRY S. ONDERDONK, Appellant.

      Supplementary proceedings — power of the judge to direct the aébtor’s property to he delivered to the creditor' in satisfaction of his claim — The question as to property being exempt — how tried.

    In proceedings supplementary to execution the judge cannot direct property of the judgment debtor (a horse), to be delivered to the creditor on his giving the debtor a receipt for his claim. The property should be sold under an execution or by a receiver.

      Semble, that where, in supplementary proceedings, the debtor claims that property, which may by law be exempt from execution, is in fact so exempt, the question of exemption cannot be tried in such proceedings, but must be tried in an ordinary action.
    Appeal from an order, granted by the Schenectady county judge, requiring defendant to apply certain personal property (a horse), on the judgment obtained in this action. The judgment was obtained in a justices’ court, for thirty-eight dollars and fifty-six cents, a transcript filed and an execution issued and returned by the sheriff wholly unpaid and unsatisfied. Supplementary proceedings were thereupon instituted against defendant. The examination of defendant in the supplementary proceedings showed that he was the owner and in possession of a team of horses, of the value of about $150. The defendant, a married man, living with his wife, claimed that this property was by law exempt from execution. The county judge ordered the defendant to deliver one of the horses to the plaintiff, on his tendering him a satisfaction of the judgment and a receipt for twenty-six dollars, allowed as the costs of the proceeding.

      Hastings & Schoolcraft, for the respondent.

      J. II. Qlute, for the appellant.
   Per Curiam:

We tbink that the county judge was not authorized to make this order. The law applies the property of a debtor to the payment of a debt by selling and applying the avails. When the judge ordered the horse to be applied on the debt and the creditor to give a receipt, he practically established the value of the horse, and compelled the debtor to sell at that value. And though the value which he thus fixed may have been even more than the true value, we think that he erred. The plaintiff might have issued execution and levied; and that would have been the best way of protecting all rights. Or probably a receiver might have been appointed ; and the receiver, if he ever obtained title to the horse, could have sold it.

Whore another person than the debtor claims title to the property, as has often been decided, the title cannot be determined in this summary way. In analogy to that principle, when the property is such as may by law be exempt, and the debtor claims that it is actually exempt, it would seem very doubtful whether the question of exemption could be tried under these supplementary proceedings. Such a question involves the title to chattels personal, and is proper for a jury trial. If the creditor should levy by execution on the alleged exempt property, the debtor could then try his rights by an ordinary action at law. And we think he ought not to be deprived of the opportunity to do this by means of an order granted in supplementary proceedings.

The order appealed from must be reversed, with ten dollars costs and printing disbursements, the same to be set-off against the debt of the plaintiff.

Present — LeaeNE», P. J., Bockes and BoaedmaN, JJ.

Order reversed, with ten dollars costs and printing disbursements, to be off-set against plaintiff’s recovery.


author: Eollett, J.:

text:
    BETSEY H. THOMAS, Appellant, v. DAVID B. THOMAS, Respondent.

      Appeal from a justice's judgment — the costs and fees for Ms reSttm must It paid within twenty days.

    To render an appeal to the county court from a judgment of a justices’ court effectual, the respondent’s costs included therein must be paid, and the justice’s fees must be paid or relinquished by him within twenty days from the rendition of the judgment, and if they are not so paid the appeal will be dismissed.
    Appeal from an order of tbe County Court of Tioga county, denying a motion to dismiss an appeal from a judgment of a justices’ court.
    March 13, 1878, the plaintiff recovered a judgment against the defendant in a justices’ court for $100 damages, and four dollars costs. March 18, 1878, the defendant served a notice of appeal, but neglected to pay the costs included in the judgment, and the fees of the justice for making the return until April, 10, 1878.
    The justice made and filed his return April 28, 1878. The plaintiff moved that the appeal be dismissed, because the costs and fees were not paid within twenty days after the rendition of the judgment. This motion was denied by the county court and tho plaintiff appealed to this court.

      Bastón & Watkins, for the appellant.

      II Bostwiok, for the respondent.
   Eollett, J.:

To perfect an appeal from a justice’s judgment to the county court under the Code, until amended in 1851, an appellant was not required to pay the costs recovered against him in a judgment, or the justices’ fees for malting a return. Under the Code of 1848, the appeal was heard upon affidavits, but, if contradictory or defective, the court might order a return, for which service the justice was entitled to one dollar. (§§ 310-311-324, Code 1848.)

As amended in 1849 the justice was required to make a return without an order of the court, for which service he was entitled to one dollar. (§§ 359-360-370, Code of 1849.) The payment of this fee was not required to be made at the time of making the appeal, or within any specified time.

Under the Code of 1849 Van Heusen v. Kirkpatrick (5 How., 422) arose and was decided. But it has no application to the Code, as amended July 10, 1851. By the amendment of section 354 (Laws 1851, ch. 479, p. 901) the appellant was required to pay the costs recovered against him in the court below, and the justice’s fee for making the return at the time of the service of the notice of appeal. This provision has been continued and is a part of the present section 354. Sections 353 and 354 of the Code •provide that “ the notice of appeal must ” be served within twenty ■'days. Under these sections, it has been held that the service of a notice of appeal after twenty days is ineffectual, and that the county court acquires no jurisdiction. (Cowen’s Treatise [5th ed.], § 1651; Figaniere v. Jackson, 4 E. D. Smith, 484; People v. Eldridge, 7 How., 108; Young v. Whitcomb, 46 Barb., 615.) Neither does making and filing the return confer jurisdiction in such a case. (Cowen’s Treatise [5th ed.], § 1651; Figaniere v. Jackson, supra.) The court is without power to extend the time within which a party may appeal. (Wait v. Van Allen, 22 N. Y., 319 ; Humphrey v. Chamberlain, 11 id., 274.) The language ■ is equally imperative as to the payment of the costs included in the judgment and the justice’s fee for making the return— “the appellant must,” etc.

Undoubtedly, under section 360, the justice may waive payment of his fee for the return, for that sum belongs to him, and he may give it away if he chooses. But the costs included in the judgment belong to the respondent, and the justice cannot, by any 'act of his, waive or cut off the resüondents right to their payment as a condition to a valid appeal.

If the justice, by making and filing his return, can render an appeal valid when the costs have not been paid within the time limited, he may, with the same reason and by the same action, render an appeal effectual though the notice be served after the expiration of the time limited. Eldridge v. Underhill (17 Hun, 241) is decisive of the question. In this case, the defendant, six days after judgment recovered, served a notice of appeal, and two days thereafter gave the usual undertaking on appeal, but neglected to pay tbe costs included in the judgment or the fee for the return. The justice did not make a return. The plaintiff moved to dismiss the appeal. Before the motion was heard, the appellant paid the costs and justice’s lees. Notwithstanding, the appeal was dismissed upon the ground that the payment within the time limited was jurisdictional. (See also Southard v. Philips, 7 Hun, 18.)

Section 327 of the Code was repealed by chapter 417, Laws of 1877, and sections 1300 and 1303, Code of Civil Procedure, stand in its stead. Section 1303 is inapplicable to appeals from justice’s courts. Title 1 of chapter 12, in which the section is found, relates only to appeals provided for in that chapter, which does not embrace appeals from justices’ courts. (See title 3 of chap. 12, Code of Civil Procedure, Eldridge v. Underhill, supra.)

We think the service of a notice of appeal and payment of the costs within twenty days are necessary to render an appeal to the county court effectual. Such was the rule under the Eevised Statutes. (Ex parte La Farge, 6 Cow., 61; Ex parte Stephens, id., 69; People v. Saratoga Com. Pleas., 1 Wend., 282.) After trying the effect of the removal of these restrictions for a few years, the Legislature, by the amendment to the Code of 1851, in effect restored the requirements of the Eevised Statutes.

Eespondents ought not to be put to the trouble and expense of motions to test the sincerity of the appeal, and enforce the right given by statute to the payment of costs as a condition of appeal.

It has been the policy of the Legislature to restrict the spirit for excessive litigation in small causes, by requiring the costs incurred to be paid and the appeal perfected within a limited time, and the courts ought not to encourage frivolous appeals by explaining away the statutory requirements.

The order of the county court is reversed, with costs, and the appeal to the county court dismissed, with costs.

LeauNed, P. J. and BoaudmaN, J., concurred.

Order of county court reversed, and appeal from the justice’s court dismissed, with ten dollars costs and printing disbursements, and with ten dollars costs of motion below.


author: Boardman, J.:

text:
    ORRIN B. LORD, as Executor, etc., of FRANCIS EGGLESTON, Deceased, Appellant, v. ANN LINDSAY, Respondent, Impleaded with ORRIN LINDSAY.

      Matters not pleaded in answer, cannot be proved — Duress.
    In an action to foreclose a mortgage given by a husband and wife upon land of the wife, to secure a debt of her husband, the wife alleged in her answer “ that the notes and mortgage mentioned in the complaint were obtained from this defendant by the agent of the plaintiff (and others in collusion with him) by duress of this defendant.”

      Meld, that the defendant could not prove upon the trial that she was coerced to execute the mortgage by the duress and constraint of her husband of which the plaintiff had no knowledge.
    Appeal from a judgment in favor of tbe defendant Ann Lindsay, entered upon tbe trial of this action by tbe court at Special Term.

      Waters & Eggleston, for tbe appellant.

      Euell & Benedict, for tbe respondent.
   Boardman, J.:

This was an action brought to foreclose a mortgage given by husband and wife upon property owned by tbe wife, to secure tbe precedent debt of the husband and to stop proceedings to enforce the collection of the judgment held against tbe husband. The husband did not defend. The wife defended, and in her answer alleges “that the notes and mortgage mentioned in the complaint were obtained from this defendant by the agent of the plaintiff (and others in collusion with him) by duress of the defendant, in threatening to throw the defendant and her furniture out upon the street, and by making false representations to her; in consequence of which and in fear and apprehension thereof, this defendant executed and delivered said notes and mortgage.” Upon the trial the learned judge found and decided, that neither the plaintiff nor his agents made any representation or statement to Ann Lindsay that was not true, nor performed any act that was not proper; ” that the said Ami was coerced to make and execute the same, for the accommodation of her husband, by the duress and constraint of her husband, who requested her to make them to prevent proceedings against him on the judgment against him, but such coercion and duress of the husband over his wife was unknown to plaintiff or his agents until the commencement of this action. The court, thereupon, found said notes and mortgage void as to the wife, and ordered judgment in favor of the wife against the plaintiff, to that effect, with costs.

Upon this appeal it is argued that the court below erred, (1) in admitting evidence of duress by the husband when no such defence was interposed; and (2) in finding that there was any duress or coercion, on the part of the husband, which should invalidate the wife’s mortgage.

The answer does not set up the new matter claimed to constitute a defence, in ordinary and concise language, as it was proved on the trial. On the contrary, the defence pleaded was duress by the plaintiff and not by the husband. It must have been exercised, if at all, at a different time and place than that proved, It will not do, we think, to allow so great latitude between the pleadings and the proofs. This was an entire failure to prove the allegations of the pleadings. Nor w'as it an immaterial variance under section 540 of the Code of Civil Procedui'e, which could be disregarded. The plaintiff had a right to know the nature of the duress, and by whom exercised, to enable him to prepare for the trial. If this defence was properly admitted, then a general answer that defendant’s signature was obtained by duress and coercion, without sotting out the time and place when, or the person by whom, or the manner in which it was done, would be good and sufficient pleading. We think the learned judge erred in admitting evidence of coercion by the husband under the pleadings in this case.

Nor are we satisfied that there was any such evidence of duress or coercion by the husband as should avoid the wife’s act. Certainly she did not act under any fear of personal injury or grievous wrong. She had decided on the previous evening to secure her husband’s debt and thus stop the proceedings against him. Afterwards, during the night, the husband and wife had an excited and angry altercation upon the subject. He wanted her to secure the debt. She did not want to charge her own property for the payment. ' Finally, she suggested to wait until morning and see what plaintiff's attorney would do. In the morning, without any allusion to the scene of the previous night, the mode of security is agreed upon and the papers executed. She is glad it is settled, so as to give them time. Undoubtedly, the security was primarily given to oblige the husband and to stop the proceedings against him. It was also very likely in the interest of domestic harmony. Doubtless the possible consequences of continued legal proceedings on the judgment against the husband had their influence over the wife as well as the husband. But giving to these facts all the force possible, it will not come up to the point of legal coercion so as to avoid the wife’s deed. If the mortgage or a deed had been given to the husband by the wife, much slighter circumstances would invalidate it. 'Courts will watch carefully that the husband do not, by his marital control and influence, secure to himself his wife’s property. In such case undue influence alone may suffice to set aside the transfer. But in the present case duress and coercion must go to the extent of depriving the party of her free volition by reason of apprehension of personal injury or great wrong. Rexford v. Rexford (7 Lans., 6), decided in this department in 1872, is quite analogous to the present case, and seems decisive of it. The act of the wife in giving her notes and mortgage as collateral security for her husband’s debt was legal and valid in itself. The indebtedness of the husband was a sufficient consideration. (Union Dime Sav. Inst. v. Duryea, 67 N. Y., 84.)

For the reasons assigned this judgment must be reversed and a new trial granted, costs to abide the event.

LearNEd, P. J., and Follett, J., concurred.

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


author:
Follett, J. :
      LbabNEd, P. J.:

text:
    MYRON A. BUEL, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      UnintentionalTcilling while committing a felony — when mwrder in the first degree — 3 R. 8. (6th ed.), 928, sect. 5, sub. 3 — chap. 333 o/1876 — Instruction to the jury in capital cases — Motion for a new trial — chap. 295 o/1876.
    The plaintiff in error was indicted, tried and convicted of murder in the first degree in killing one Catharine M. Richards while attempting to ravish her. The evidence tended to establish that he drew a strap or rope around the neck of the girl, overcame her resistance and ravished her, and that death ensued from strangulation, caused by the rope or strap. The court charged that the prisoner might be found guilty of murder in the first degree under sub. 3 of sect. 5, tit. 1, chap. 1 of part 4 of the Revised Statutes as amended by chap. 333 of 1876, if the jury found that while ravishing or attempting to ravish the girl he lulled her, though without intending to effect her death. Held, that the charge was correct.
    If a person unintentionally lulls another, while committing a minor felony, whicl t is not an ingredient of the lulling, the two felonies being so distinct that they .cannot be included in the same indictment, they are not merged and he may be convicted of murder in the first degree under the said subdivisiou third.
    Offences are not identical, unless so in law as well as in fact, although arising ou * of the same facts.
    In capital cases the court, though requested so to do, is not required to read m> instruct the jury in regard to all the sections of the statute relating to homicide, but only as to those within which the case, under the evidence, may fall.
    The grounds upon which a motion for a new trial in a criminal case may bo made, considered.
    Weit oe Ereoe to tbe Otsego Oyer and Terminer, to review tbe conviction of tbe plaintiff in error of murder in tbe first degree.

      James A. Lynes, for tbe plaintiff in error.
    P. Benedict, district attorney, and L. L. Bundy, for Tb<¡ People.
   Follett, J. :

Tbe indictment charges, in appropriate counts, the prisonei with murder, under the first and third subdivisions of section 5, of chapter 1, title 1, part 4 of tbe Revised Statutes, as amended by chapter 333, Laws of 1876 ; these subdivisions, so far as pertinent to this case, read as follows :

“ (1.) When perpetrated from a deliberate and premeditated design to effect the death of the person killed, or of any human being. (3.) When perpetrated by a person engaged in the commission of any felony.”

The counts under the third subdivision charge that the prisoner killed Catharine M. Bichards while ravishing her, also while attempting to ravish her. The evidence tended to establish that the prisoner drew a strap or rope around the neck of the girl, overcame her resistance, ravished her, and death ensued from strangulation, produced by the rope or strap. The court charged that the prisoner might be found guilty (1) under the first subdivision, if the jury believed the prisoner killed the girl from a deliberate and premeditated design to effect her death. (2.) Under the third subdivision, if the jury found that the prisoner, while ravishing or attempting to ravish, killed the girl, though without intending to effect her death. To the charge under the third subdivision an exception ivas taken by the prisoner, which is the only one presented by the error book. The prisoner was found guilty of murder in the first degree. The prisoner insists that the charge, under the third subdivision was error, upon the ground that a felonious assault resulting in death is merged in the higher offence, and that this subdivision is only applicable when the felony committed or attempted, is collateral to and entirely distinct from the offence of killing. In support of this position the counsel for the prisoner cites People v. Rector (19 Wend., 569) ; People v. Butler (3 Parker, 377); Foster v. People (50 N. Y., 598). In Rector’s Gase the person killed was felled to the pavement by a blow upon the head, inflicted with a door-bar. By the blow or the fall his skull was fractured, from the effects of which death ensued. There was no evidence of the commission, or of an attempt to commit, any independent collateral offence, except such as might be inferred from striking the blow, and the circumstances under which struck. The counsel for the prisoner insisted upon the trial, that if the jury came to the conclusion that the prisoner inflicted the wound in an attempt to commit an offence which, of itself, was less than a felony, i. e., an assault and battery, be could not be convicted of murder; and that the case would fall within section 6 of article 1 of title 2 of chapter 1 of part 4 of the Revised Statutes, which provides that: “ Section 6. The killing of a human being, without a design to effect death by the act, procurement or culpable negligence of any other, while such other is engaged. (1.) In the perpetration of any crime or misdemeanor not amounting to felony; or (2.) In an attempt to perpetrate any such crime or misdemeanor. In cases where such killing would be murder at the common law, shall be deemed manslaughter in the first degree.”

The court refused to charge as requested, “ on the ground that such charge would be inapplicable to the case” (pp. 575-576), and the prisoner was found guilty of murder. The case was reviewed by the Supreme Court upon this question and others.

In discussing the question raised by this request, Cowing, J. (pp. 591-592), says that this refusal was error, upon the ground that the evidence was not so overwhelming that the jury might not have found that the immediate offence was but a misdemeanor; and that if the jury had found that the prisoner intended to stop with the commission of a misdemeanor, the offence was but manslaughter, though the blow was aimed at the person.

Nelson, Ch. J. (p. 615), seems to assume that the ciise might-have fallen within this section, but thinks the instructions previously given by the court in regard to murder and the degrees of manslaughter, were sufficient to fairly present that question to the jury.

Bronson, J., in a dissenting opinion, says that section six (above quoted) is inapplicable to the case, and sustains the charge upon the ground that the section is only applicable to cases where the accused kills a human being while committing or attempting to commit some other offence than that of intentional violence upon the person killed, (p. 605.)

Judge BRONSON’S views in this case were repudiated by Justice Parker in Darry v. The People (10 N. Y., 161), but were approved in The People v. Butler (3 Parker, 385). In Darry’s Case (10 N. Y., 120) the killing was charged by the indictment to have been done by the prisoner with malice aforethought, according to the common law form, and with a premeditated design to effect the death of the person killed, under the statute, by striking and beating the deceased person with a chair, and with his hands and foot. The jury were charged that the prisoner might be found guilty under the second subdivision of the statute, which was excepted to. The prisoner was convicted of murder and the case was reviewed in the Court of Appeals upon this •exception. Upon the first argument the judges were equally divided in opinion (2 Parker, 606), but upon the second hearing the conviction was reversed, upon the ground that when the violence was aimed at a particuliar person, the case did not fall within the second subdivision. Justice Parker, in his opinion, discusses the sixth section of title 2, defining manslaughter in the first degree, and says that unintentional killing, while intending and committing an assault and battery upon the person killed, falls within this section, and that unintentional killing while intending and committing a mayhem or other felony, upon the person lrilled, is murder, (pp. 160-161.) This question not being in the case, Judge Selden expressly refused to pass upon it (p. 149), and Judge Denio was silent upon the subject.

But the views of Justice Parker, who has given great attention to criminal law, are entitled to weight. If the views expressed by Justices Cowen and Nelson in Rector’s Case and by Justice Parker in Darry’s Case are sound, they are decisive of the case at bar. Subdivision 3 of the fifth section of title 1, and the sixth section of title 2, are identical so far as this question of construction is concerned. If killing by one who intends only a misdemeanor, which misdemeanor is an ingredient of the felony unintentionally perpetrated, falls within section sixth, by a parity of reasoning, killing by one intending and committing a felony, which felony is an ingredient of the killing, falls within subdivision 3 of section 5.

The Legislature did not intend to make unintentional killing by one engaged in the commission of a misdemeanor, though an ingredient of the killing, manslaughter in the first degree, and unintentional killing by one engaged in the commission of a felony, not an ingredient of the killing, a less rather than a higher offence. Such unintentional killing, while committing a felony, is not murder unless embraced within the third subdivision of section 5.

In Butler’s Case the indictment was for manslaughter in the first degree, iu the common law form, charging the prisoner with killing the decedent by wilfully and feloniously beating her with his hands and feet. The jury were charged that if death ensued from injuries inflicted by the prisoner, not excusably or justifiably, he was guilty of manslaughter in the first degree, which vras excepted to- The prisoner was convicted of manslaughter in the first degree. The case was reviewed in the Supreme Court upon this exception, and reversed upon the ground that to bring it within the sixth section it must be shown that the killing ivas done (1) under such circumstances as would constitute it murder at common law, in addition to being done while committing oi attempting a misdemeanor ; (2) while engaged in committing oí attempting a misdemeanor not an ingredient of the killing.

In discussing the second proposition it was said : “If the pris oner killed his wife by violent means (and he must have done so if at all), no doubt he was engaged in the perpetration of an assault and battery, which is a misdemeanor. But that was a part of the act itself, which constituted the principal charge. The statute evidently contemplated some other misdemeanor than that which is an ingredient in the imputed offence, otherwise that part of it relating to an attempt to perpetrate a misdemeanor would be Wholly nugatory. Where an act becomes criminal from the perpetration, or the attempt to perpetrate some other crime, it would seem that the lesser could not be a part of the greater offence. Derivative character must necessarily spring from a distinct although it may be a connected source. I agree with Judge BroNSON in thinking that, in order to bring a case within the definition of manslaughter in the first degree, it is necessary to show that the accused was committing or attempting- to commit some other offence than that of intentional violence upon the person killed.”

In Foster's Case, the person killed was struck with a car hook, and three days after died from the effects of the blow. The indictment charged the prisoner with murder in the first degree. At the time of the commission of the offence, unintentional killing, while perpetrating any felony, (except arson in the first degree) was murder in the second degree. The prisoner asked the court to instruct the jury.

(1.) That upon the indictment and evidence, he might be found guilty of murder in the second degree.

(2.) If the jury found he unintentionally killed the deceased person, while making an assault with a dangerous weapon, with intent to maim, that such killing was murder in the second degree.

An assault and battery with a dangerous weapon, with intent to maim, is a felony. (2 R. S., 665, § 36.)

The requests were refused, and exceptions were taken. The prisoner was convicted of murder in the first degree, and the case was reviewed in the Court of Appeals-and a new trial denied. In discussing the second proposition, it was said : “ It is claimed on the part of the People that the words 1 engaged in the commission of any felony' in the statute, do not include cases in which the killing resulted from intentional violence to the person killed; and where, although the intent was to commit a felonious assault, there was no intention to kill; or in other words, where the felony intended, although not the felony of homicide, was the very act of personal violence which caused the death, that this is not a felony within the meaning of the statute.” (p. 602.)

The court, in its opinion, neither approves nor disapproves of this proposition, and, being without judicial sanction, it is not binding, even though adverse to our views. But we think itis not.

Whether an unintentional killing while engaged in the commission of a misdemeanor, which misdemeanor is an ingredient of the killing, falls within section 6 of title 2 of part 4, or whether an unintentional killing while engaged in the commission oí a felony, which felony is an ingredient of the killing, falls within the third subdivision of the fifth section of the first title, are questions not in this case, and upon which we do not express an opinion.

The opinions in the cases above referred to are not harmonious, but none of them involving the precise question in the case at bar, it is unnecessary to attempt to reconcile them. In none of them was there evidence that an independent and collateral felony, not an ingredient of the ones charged in the indictments, had been attempted or committed. So in the case of The King v. Ladd (1 Leach Crown Cases, 96), the killing was by ravishing, instead of by independent means, while ravishing ; and it may be argued that in that case tbe ravishing was an ingredient of the offence of killing.

In the present case the evidence tended to show, and the jury found, if the conviction was placed under the third subdivision, that the prisoner was engaged in the commission of a rape. This is a felony which is not an ingredient of murder, but it is an independent offence for which the prisoner might have been indicted, and if acquitted upon that charge, the acquittal would not have been a bar to an indictment for murder. (Commonwealth v. Roby, 12 Pick., 496 ; People v. Smith, 57 Barb., 46 ; Vandercomb’s Case, 2 Leach, 708, 716.)

Offences, though arising out of the same facts, are not identical, unless so in law as well as in fact. (Commonwealth v. Roby, supra ; Commonwealth v. Evans, 101 Mass., 25 ; Burns v. People, 1 Parker, 182 ; People v. Saunders, 4 id., 196 ; The Queen v. Button, 11 Q. B., 945, 947.) If the acts committed constitute two felonies- — -a major and a minor — the minor is not merged in the greater. (Bank Prosecutions, 1 Russell & Ryan, 378.) It was said by Denman, C. J., in Queen v. Button (supra) : “ The same act may bo a part of several offences ; the same blow may be the subject of inquiry in consecutive charges of murder and robbery ; the acquittal on the first charge is no bar to a second inquiry, where both are charges of felony.”

Manslaughter is included within murder ; so is an assault within an assault and battery. Upon an indictment for murder, a conviction for manslaughter may be had; so upon an indictment for an assault and battery a conviction for an assault may be had. But upon an indictment for murder a conviction for rape cannot be had, though the rape might arise out of the same facts. The offences are essentially different ■— the crime of rape not being an ingredient of the crime of murder.

Two felonies arose out of the prisoner’s acts • — • neither being dependent on or an ingredient of the other ; and for either or both he might have been indicted. But an indictment embracing both felonies would have been bad. If a person unintentionally kills another, while committing a minor felony which is not an ingredient of the killing, the tivo felonies being so distinct that they cannot be included in the same indictment, they are not merged, and the accused may be convicted of murder under the third subdivision of section five.

The rule was the same at common law. (Russell on Crimes [5th ed.], book 3, chap. 1, § 9, vol. 1, pp. 759-767 ; Wharton on Homicide [2d ed.], §§ 55, 56-57.) Mr. Justice BlacrbueN, in his evidence before the homicide amendment committee, speaks of a case where a man threw a shawl over a girl's head and dragged her towards a wood with intent to ravish, but she died from fright before he accomplished his purpose. The assailant did not intend to kill; nevertheless, he was convicted of murder. (Wharton on Homicide [2d ed.], § 57, p. 42, note.)

After the verdict the prisoner moved for a new trial upon the exception to the charge (the validity of which we have considered), and upon the ground that the court erred in not calling the attention of the jury to all the sections of the statute relating to homicide. The motion was denied. The court was without power to grant the motion. (Quimbo Appo v. The People, 20 N. Y., 531; The People v. Montgomery, 13 Abb. [N. S.], 207.) By chapter 295, Laws of 1876, the presiding justice of any court of Oyer and Terminer may grant a new trial, on the exceptions taken on the trial, or on the ground of newly discovered evidence. This •question not being presented by an exception, does not fall within íither of the statutory grounds upon which a motion for a new -rial may be made, nor was the motion addressed to the presiding ; ustice. But the exception sought to be presented by this motion is not tenable. Xu capital cases the court, though requested, is not required to read or instruct the jury in regard to all the sections of the statute relating to homicide. Its duty is discharged by reading or instructing the jury in relation to the sections within which the case, under the evidence, may fall. (Foster v. The People, 50 N. Y., 598.)

No error having been committed on the trial, the judgment must be affirmed, and the record remitted to the court of Oyer and Terminer, with directions to fix a day for the execution of the sentence heretofore pronounced and now affirmed. (Sec. 2, chap. 462, Laws of 1859, p. 1074 ; Ferris’ Case, 35 N. Y., 262.)

LeauNed, P. J., and Boardman, J., concurred.

LbabNEd, P. J.:

While I concur in the foregoing opinion of my brother Follett, I wish to acid a few words. The argument of the prisoner’s counsel is that the third subdivision of section five, above cited, has no application where the death results directly from the personal violence used in making the assault, and where the felony is completely merged and lost in the higher crime. I think that, when carefully examined, the facts will be found not to present that point.

If. the prisoner had simply committed a rape on the girl, and death had resulted directly from such rape and from that alone, those facts would have presented the question which is argued by the prisoner’s counsel. But such are not the facts here. The death did not result from the rape, but from another act of violence, viz.: That of strangling the girl; which act was done while the prisoner was engaged in the commission of a felony, that is, the rape.

For instance, if one engaged in the commission of a burglary should lull another, even without design to effect death, the crime would undoubtedly come under this subdivision and would be murder in the first degree. So if the prisoner, while engaged in the commission of this rape, had strangled some person other than the girl in order to prevent that person’s interference, and had thus killed such person without design to effect death, the crime would have come within this same subdivision.

And thus too, in the present case, the felony of the rape did not itself cause the death ; and, therefore, the question whether it would be merged in the higher crime is not necessarily presented. The strangling of the girl was an act distinct from the rape, just as the killing by a burglar is distinct from the burglary. Although, in both cases, the act which caused the death may have been intended to facilitate the commission of the other crime.

Judgment and conviction affirmed and record remitted to the Court of Oyer and Terminer.


author: Follett, J. :

text:
    ELI W. BLAKE, Respondent, v. GEORGE M. WHEELER, CHESTER GRISWOLD AND JACOB W. HOYSRADT, Appellants, Impleaded, etc. SAMUEL BONNELL. Jr., Respondent, v. Same Appellants.

      Manufacturing corporation — report must comply with chapter 333 of 1853, as well as chapter 40 of 1848 — to what extent a trustee may terminate his incti victual liability by resigning.

    The report required to be filed by the trustees of corporations created under, chapter 40 of 1848 must contain not only the facts required thereby, but also the additional facts required by chapter 333 of 1853 ; and for a failure of the report to comply -with the requirements of both statutes, the trustees become liable for all debts of the company, as provided by section 12 of the act of 1848.
    A trustee of a corporation formed under chapter 40 of 1848 may resign and relieve himself from liability thereafter incurred by it, though the resignation be not acted upon by the board of trustees or entered in the books of the corporation.
    Appeals from judgments in favor of the plaintiffs in the above entitled actions, entered upon the trial of them by the court without a jury.
    August 12, 1869, the Iron Mountain Company, of Lake Champlain, was organized under chapter 40, Laws of 1848, and the several acts amending and extending the same, with a capital stock of $2,000,000, divided into 20,000 shares of $100 each. The business of the corporation was mining and selling ores, manufacturing ores mined, and selling the products.
    The trustees for the first year wore the defendants and four other persons, who were to hold office until the second Wednesday of August, 1870, when, and on each second Wednesday of August thereafter, an election for trustees was to bo held, but such an election never was held. The whole capital stock was issued to Richard Remington in payment for mineral lands conveyed to the company. August 24, 1869, 100 shares of the stock were transferred to each of the defendants, neither paying any consideration therefor. January 13, 1870, a report was signed by George M. Wheeler, president, J ohn A. Griswold, Chester Griswold and C. D. Sehubartt, trustees, stating that the capital stock, $2,000,000, had been paid up in full, and that the debts amounted to $375,000.
    This report did not state, what was the fact, that the stock had been issued for property, instead of money.
    March 12, 1870, the corporation, for value, gave two promissory notes to the Birmingham Iron Foundry, one for $3,318.52, due in four months, and one for $2,193.14, due in six months, which were transferred before due to Samuel Bonnell, jr., the plaintiff in the second above entitled action.
    April 17, 1870, Hoysradt surrendered his stock, and May 9, 1870, resigned as a trustee.
    June 28, 1870, the corporation became indebted to Eli W. Blake the plaintiff in the first above entitled action, in the sum of $1,247.40 for merchandise sold. November 25, 1870, the corporation was adjudicated a bankrupt, and November 21, 1874, it was dissolved by a judgment in an action brought in the name of the People by the attorney-general.
    January 20, 1871, a second report (under section 12 of the act of 1848) was made, and was filed January 23, 1871, which stated that the capital stock of the corporation had been paid in in full by mining property necessary for the company’s business, and that the debts of the corporation amounted to $437,093.68.
    This report was signed by the three defendants and J ohn A. Gris-wold (now deceased). The claims of the plaintiffs not being paid, these actions were brought April 12, 1873, to charge the defendants personally, upon the grounds : (1.) That the company failed to file and publish a report in January, 1870, as required by section 12 of the act, and section 2 of the act of 1853 (chap. 333). (2.) That the report filed in 1870 was false. (3.) That the defendants conspired with others to organize a fraudulent corporation with intent to deceive and defraud the public, and did deceive and defraud the plaintiff.
    The action was tried at Special Term, and the court found with the defendants on the second and third causes of action, but held the defendants liable, upon the ground that the report of 1870 did not comply with the statute.

      From this judgment the defendants appeal. The defendants answered separately.

      Won. O. Holbrook, for the appellants.

      Pond & French, for the respondents.
   Follett, J. :

Corporations formed under chapter 40, Laws of 1848, are required within twenty days from the first day of January of each year to make, file and publish a report stating the amount of its capital, the proportion thereof actually paid in, and the amount of its existing debts, which must be signed by the president and a majority of the trustees and verified by the oath of the president or secretary. If a report is not made, published and filed as required, all of the trustees are jointly and severably liable for all debts of the corporation then existing, and for all debts contracted before a report shall be made. (§ 12.) Under this act all the capital stock was required to be paid in money. (§§ 10, 14.)

By chapter 333 of the Laws of 1853 the trustees of corporations formed under the act of 1848 were authorized to purchase property necessary for the business of the corporation, and issue stock for its value in payment therefor, but all reports must show that stock had been so issued for property instead of money.

The defendants insist that they did not become liable under section 12 by failing to comply with the act of 1853 in regard to reports. This act does not abrogate the liability of trustees for neglecting to report, but in case stock has been issued for property, that additional fact must be stated in the report, and it must conform to both statutes. (Whitney Arms Co. v. Barlow, 63 N. Y., 66.)

We think the liability created by section 12 is incurred by failing to report as required by the act of 1853. This act is entitled 11 an act to amend ” chap. 40, Laws 1848, and it was said in Boynton v. Andrews (63 N. Y., 97), and in Boynton v. Hatch (47 id., 230), that the act of 1853 was an amendment of the act of 1848. But it is immaterial whether it is strictly an amendatory act or not, because these statutes are in pari materia and must be taken together. (Boynton v. Hatch, 47 N. Y., 228.)

In Duck v. Addington (4 D. & E., 447), several statutes passed at different times, regulating the conduct of hackney coachmen, were considered by Lord MaNSEield.

The last act did not give, in terms, power to magistrates to commit immediately, as did the former statutes ; it was held that these statutes being in pari materia and forming one general system of law upon the subject, that the penalties provided by the earlier acts were applicable to like violations of the later acts.

In Rogers v. Bradshaw (20 Johns., 735), it was held by the Court of Errors that a remedy provided by one statute will be extended to cases arising in the same matter under a subsequent statute, the two statutes being in pari materia ; the same doctrine was again held in Rexford v. Knight (15 Barb., 627), which was affirmed (11 N. Y., 308). This is in accordance with the decision of Pier v. George (14 Hun, 568).

“ If one statute prohibit the doing a thing, and another statute' be afterwards made whereby a forfeiture is inflicted upon the-person doing that thing, both are considered as one statute. When an action founded upon one statute, is given by a subsequent statute in a new case, everything annexed to the action by the first statute is likewise given. Indeed, the latter act may be considered as incorporated with the former.” (Potters Dwaris on Statutes, 189-190.)

The report of Januaiy, 1870, omitted to state that the capital stock of the corporation was issued for property instead of for money, which omission made the trustees liable for all debts then, existing, and all debts contracted during their trusteeship, and. before such a report as the statute requires should be filed. A. further report was not filed until January 20, 1871, and in the¡ meantime the debts of these plaintiffs were incurred, for which thei defendants became liable if they were trustees when incurred.. Wheeler and Griswold concede that they remained trustees during the years 1870 and 1871, but Hoysradt claims to have resigned before the plaintiffs debts were contracted.

A trustee of a corporation, formed under these acts, may resign and relieve himself from liabilities thereafter incurred, though the resignation be not acted upon by the board of trustees or entered in the books of the corporation. (Chandler v. Hoag, 2 Hun, 613 ; affirmed, 63 N. Y., 624). Hoysradt’s letter of November, 1869, to Remington, requesting that his resignation be presented, was not acted upon by Remington, and did not amount to a resignation. Nothing further was done in this connection until April 17, 1870, when Hoysradt surrendered his stock, and May 9, 1870, actually resigned, thus terminating all connection with the company as stockholder or trustee. The claim of Bonnell accrued in March, 1870, and the liability of Hoysradt for it had become fixed before he resigned his trusteeship or parted with his stock.

But the claim of Blake accrued in June, 1870, after Hoysradt’s connection with the corporation had been completely severed, and he cannot be charged with it unless he is estopped from denying his trusteeship by reason of signing the report of January 20, 1871.

There are none of the elements of an estoppel in the transaction. Blake did not credit the corporation upon this report, nor did he act, or omit action in any particular by reason of this report. Before the report of January 20, 1871, the corporation had been adjudged bankrupt by the United States District Court.

After Hoysradt had vacated his trusteeship, he could not again become a trustee without an election, which did not take place.

It follows that Hoysradt is not liablé for the claim of Blake.

The report of 1870 wholly fails to comply with the statute in not being legally verified by any person. There is no affirmation by any person that the statements contained in this report are true, nor does it appear which one of the persons verified it. Every essential feature of an affidavit is lacking except the jurat.

Entertaining these views in regard to the liability of the defendants, it is wholly unnecessary to consider the other objections urged by the plaintiff to this report; nor is it necessary to consider whether the trustees of a corporation organized and conducted in the manner disclosed by the evidence, are, or are not, liable for all debts contracted during their trusteeship, on the grounds that the corporation was a fraudulent enterprise unwarranted by the statute. The transfer of the notes to Bonnell carried the right of action given by the statute against the defendants. (Pier v. George, 14 Hun, 568.) The exception taken by the defendants to the admission and exclusion of eyidence on the trial were not argued before this court, and they'seem immaterial.

The judgment in the case of Bonnell against the defendants is affirmed, with costs

The judgment in the case of Blake against the defendants is affirmed, with costs as to the defendants Wheeler and Griswold, but as to the defendant Hoysraclt it is reversed, with costs.

LearNed, P. J„ and BoardmaN’ J., concurred. •

First case. Judgment affirmed, with costs as to Wheeler and Griswold, and reversed, with costs as to Hoysradt.

Second case. ■ Judgment affirmed, with costs.


author:
BoakdmaN J.:
      LeaeNed, P. J.

text:
    AMOS KLOCK, Appellant, v. NOAH W. BEEKMAN, JOHN G. BEEKMAN AND BENJAMIN BEEKMAN, Respondents.

      Statements of a deceased pcvrtner to third persons — admissibility of against the sw'mvor.

    In an action against the surviving member of a firm, to recover money lent to the deceased partner, where the defence is that the money was not borrowed or used for firm purposes, declarations of the deceased partner to third persons, made after the money was borrowed, to the effect that it was borrowed and used for firm purposes, are admissible as against the surviving partner. (Learned, P. J., dissenting.)
    Appeal from a judgment of the Montgomery County Court in favor of the defendants, and. from an order denying a motion for a new trial, made upon a case and exceptions. The action was brought to recover $100.63 the price of goods sold and delivered by the plaintiff to the defendants. The latter set up as a counter-claim the loan by them of $200 to the firm of Klock & Walrath, composed of the plaintiff and Harlow P. Walrath, who died in April, 1873, the loan having been made in September, 1872. The plaintiff, who had taken all the personal property of the firm and agreed to pay all its debts and liabilities, denied that the money was loaned to or used by the firm, and claimed that it was borrowed by Walrath individually.
    Upon the trial two witnesses named Ackerman were allowed, against the plaintiff’s objection and exception, to testify to statements made to them by Walrath, after the money was borrowed, showing that it was borrowed and used for the purposes of the firm. The admission of this evidence was the principal question raised by this appeal.

      J. D. & F. F. Wendell, for the appellant.

      Smith & Nellis, for the respondents.
   BoakdmaN J.:

By the verdict of the jury it is determined that the defendants lent Walrath, a deceased partner of plaintiff, the $200 set up by way of counter-claim, for the use of the partnership of plaintiff and Walrath. The evidence of such loan consists of the declarations and admissions of the deceased Walrath made to two persons by the name of Ackerman. If this evidence was competent it ivas sufficient to establish the fact of this loan, and the judgment and order appealed from must stand, unless some error occurred upon the trial or in the charge which should be found fatal.

During the existence of a partnership one partner may bind the firm by his admissions, representations and declarations made in relation to the partnership business in good faith. (Parsons on Part., 184, et seq., and 191, et seq.] 1 Greenl. Ev., §§ 112, 174, 177, 180; Whitaker v. Brown, 16 Wend., 505; Walden v. Sherburne, 15 Johns., 409; Gow on Part., 37, et seq.) This principle, which is believed to be unquestionable, disposes of the objections to' the testimony of the Ackermans, the exceptions to the charge and the refusal to direct a verdict. It is not necessary to show the application of the money to the uses of the firm. (Whitaker v. Brown, ante.)

It was of no consequence whether Klock knew of the borrowing of the money or not. The evidence that he was ignorant of the loan was not competent, and however strongly established would of itself have boon no protection • against his liability for Walrath’s acts. It was not proposed to connect it with other evidence. But a little later Klock testifies that he does not know whether Walrath did or did not borrow the money. So the question was, in fact, answered.

Klock had testified that about the time of the alleged borrowing the firm did not need the money, having a balance of cash on hand. In answer to this, and for the purpose of overcoming the presumption arising therefrom, it was proper to prove that Klock himself, in about a week from that time, wanted to borrow of defendants $150 for the use of Klock & Walrath.

We find no error in the case calling for a new trial.

The judgment and order appealed from are therefore affirmed, with costs.

Bocees, J., concurs; LearNED, P. J., dissents.

LeaeNed, P. J.

(dissenting) :

The defendants claim, by way of counter-claim, that they loaned the firm of Klock & Walratb $200.. Walratb is dead ; and tbo plaintiff is tbe survivor of the firm and has taken the property and agreed to pay tbe debts.

To prove that tbe defendants loaned their money to the firm, they called one Ackerman, who testified, under objection, that Walrath told him that he got the money from the defendants, and that ho wanted it for the firm of Klock & Walrath. Tbe question is whether this evidence is admissible against Klock.

These admissions are no part of the res gestae. Of course, whatever Walrath said to the defendants, when he borrowed the money, would be admissible. Because they would have been justified in relying upon statements made at the time. And, if the transaction wore one within what might be presumed to be the scope oí the partnership business, the statements of Walrath made to the other party to the transaction would have been evidence against the co-partner.

So, too, when the transaction has been shown to be a partnership affair by competent evidence, then it may be that the admissions of one partner in respect thereto are admissible against his co-partner. But the question here is very different. It is whether the unsworn admissions of one partner now deceased, not a part of the res gestae, are admissible against the other to prove that a certain transaction is not the private business of the one who transacted it, but is partnership business.

Now, it is plain that the unsworn admissions of A. that he is a partner of B. are no evidence of the partnership against B, If, then, an admission of the existence of a partnership is no evidence of the partnership as against another person, how can an admission that a particular transaction is partnership business bo evidence against such other person ?

The former is an admission that the two persons are partners in several matters ; the latter is an admission that they are partners in a single matter.

If A. and B. are partners, A. may transact private business. In regard to such private business his admissions are not evidence, against B., so as to make B. chargeable for A’s private business by mere unsworn admissions, which formed no part of thé res gestes. Tbe point in dispute is whether the transaction was, or was not, partnership business; not whether, if it be partnership business, the admissions of one partner would then be evidence as against the other.

Unsworn admissions are received on the general ground that they are against the interest of the party making them ; and hence, may be supposed to b„e true. But an unsworn admission by A. that a certain transaction, conducted by him and imposing a liability upon him, was really done in behalf of A. and B., and that B. is jointly liable with him, is not against A.’s interest, but rather in his favor. In the present case, Walrath alone did the act of borrowing. Klock is made liable because Walrath who' is now dead told somebody that he borrowed for Klock and himself. This is the merest «hearsay evidence, condemned by every sound principle of law.

Partners are general agents of the firm. (Chemung Canal Bank v. Bradner, 44 N. Y., 686 ; Coll. Part., sec. 195.) It is as such that their admissions bind other partners. But the admissions of agents are not admissible against their principals, unless they are made at the time when the agent is transacting the business of the principal,' and are connected with that business. (White v. Miller, 71 N. Y.. 118; Anderson v. Rome and O. R. R. Co., 54 id., 340.)

The cases cited by the plaintiff do not sustain his position.

Whitaker v. Brown (16 Wend., 505) was a case where the declarations admitted in evidence formed a part of the transaction.

Walden v. Sherburne (15 Johns., 409) was a case where original entries made in a book of account by the partner who conducted the business were admitted, after the other partner had produced an account current against him.

G-ueeNLeaf says : “ The act or declaration of each member in furtherance of the common object is the act of all.” (1 Greenl. Evid., § 112.) And again: “If the parties have a joint interest, an admission made by one is in general evidence against all.” (Section 174.) But the question in the present case is whether Klock & Walrath had a joint interest in the transaction in question.

I think this question has been decided adversely to the plaintiff by the Court of Appeals in Williams v. Manning (41 How., 454), although the facts are uot quite clear. An action was brought against the representative of a deceased partner for services alleged to have been rendered to the firm. On the trial letters of the surviving partners were admitted in evidence. The court held that this was error.

Again, in Van Keuren v. Parmelee (2 N. Y., 528), Judge BkoNSON says that an admission “ can only affect the, party who makes it, unless he has authority to speak for others as well as himself. A joint debtor has no such authority.” A partner has no .authority to speak for his co-partners in anything but partnership matters. It is reasoning in a circle to say that a partner, by his admission, can turn his private business into partnership business, and then can bind -his partner by his admission because the matter is partnership business.

Of course, where two partners are sued the admissions of one are, at least, evidence against him and cannot be excluded. The present question, therefore, can arise only where the claim is against a survivor, or in some similar case.

I think the judgment and order should be reversed.

Present — LeabNed, P. J., Bocees and BoabdmaN, JJ.

Judgment affirmed.