author: Mayham, J.

text:
    John M. Batterman, App’lt, v. Peter S. Albright, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

      1. Mortgage—Foreclosure—One of several owners of a mortgage can foreclose—Remedy of mortgagor if too much claimed—Code Civ. Pro., §§ 498, 499.
    The power to foreclose and sell may be exercised by one owning only a part of the mortgage debt, and if he claim too much it does not render the sale void. If the plaintiff claimed more than was due him, the mortgagor being in court by virtue of the service of the summons upon him, could reduce the amount by a defense, or if the foreclosure be by statute the mortgagor could by action restrain the foreclosure for more than the amount actually due the paity seeking to foreclose.

      2. Same—Judgment of foreclosure cannot be attacked collaterally.
    The judgment of foreclosure not being void, it cannot he attacked in a collateral action.
    8. Same—Proper parties to foreclosure.
    A person could acquire no interest in land under the sale of a constable on a justice’s execution that would make him a proper party to an action of foreclosure.
    4. Same—Personal and real property—Tests by which to distinguish.
    The distinguishing tests which determine whether the particular article in controversy was real or personal property are: First, the manner of annexation to the land; second, the adaptability to the use of the freehold; and third, the intention of the parties at the time of making the annexation. Nevertheless, the intention of a mortgage • at the time of annexing the article in dispute to the freehold does not always control the character of the property.
    5. Same—Rights of mortgagors and mortgagees as to fixtures, etc.
    The rights of mortgagors and mortgagees stand upon the same footing as between grantors and grantees, and not upon the law as it exists between landlord and tenant.
    6. Same—Standing trees pass to purchaser on foreclosure sale.
    The standing trees upon the mortgaged premises at the time of the foreclosure do not remain the property of the mortgagor, or of any other person deriving title through or under him as against the mortgagee or a purchaser under a valid foreclosure of the mortgage. Following Lane v. King, 8 Wend., 584.
    7. Same—Trees growing in nursery—Emblement.
    As between mortg gar and mortgagee, trees growing in a nursery expressly for sale as merchandise are covered by the mortgage, and those standing on the land when it is sold under a foreclosure pass with the land to the purchaser. Following Hamilton v. Austin, 86 Hun, 141. The same is true as to emblements if growing on the land at the time of the foreclosure sale.
    This is an appeal from a judgment entered in this court' upon the report of a referee dismissing the plaintiff’s complaint with costs.
    The action was brought to recover three thousand dollars for nursery trees, alleged in the complaint to be the property of the plaintiff, which were in the possession of the defendant, and which had been demanded of the defendant by plaintiff, with which demand the defendant refused to comply. The action was tried before a referee, who reported in favor of the defendant, upon which report a judgment was entered in favor of defendant, dismissing the plaintiff’s complaint with costs.
    The evidence is not contained in the appeal book, and the questions presented upon this appeal arise upon the findings of the referee and his refusals to find, in his report. From the findings and report of the referee it appears that on the 18th day of April, 1860, Peter S. Markle was the owner of about thirty-three acres of land in the town of New Scotland, Albany county, and that on that day he executed and delivered to Peter Hendrix a mortgage on said land for $1,400, due three months after date, which was duly recorded in Albany county clerk’s office. That said mortgage was afterwards duly assigned by the administrator of the mortgagee to Isaac S. Albright by assignment in writing, dated April 1, 1865, and the assignment was also duly recorded in the Albany county clerk’s office on the 6th day of July, 1865.
    On the 9th day of November, 1868, the said Peter S. Maride executed a second mortgage on the same premises to Isaac S. Albright for $1,350, to secure a loan for that amount payable three years after date, with annual interest, which was on the same day recorded in the Albany county clerk’s office.
    In 1864 or 1865, Peter S. Markle, being the owner of said farm, set out thereon a nursery of apple, pear, peach and other fruit trees; also ornamental trees and grape and other vines; and, from time to time, planted, set out, budded and attached other nursery trees, which he cultivated and raised for sale as fruit and ornamental trees and vines. And the trees and vines, for which the plaintiff seeks to recover in this action, were such nursery trees growing on said premises in the usual manner, with the roots thereof in the ground, at the time of the foreclosure of said mortgage, and sale of said premises under the mortgage above referred to.
    The second mortgage on said premises was foreclosed by action in the supreme court, and judgment of foreclosure and sale perfected on the 31st day of August, 1878, in which action Isaac S. Albright was plaintiff and Peter S. Markle, Mary Markle, James Markle and others were defendants, and, under such foreclosure, the thirty-three acres, on which this nursery was growing, were sold to Isaac S. Albright and a deed executed to him on the 2d day of September, 1878, and said sale confirmed on the ,17th of September, 1878. And soon thereafter the purchaser took possession of said premises.
    On the 11th day of March, 1879, Isaac S. Albright and wife conveyed by warranty deed to Peter S. Albright, this defendant, which deed was recorded on the 15th day of March, 1879, in Albany county clerk’s office, and defendant took possession thereunder May 1, 1879. It appears that at or about the time of the commencement of the action to foreclose said mortgage notice of lis pendens was filed.
    On the 12th of May, 1877, this plaintiff duly recovered a judgment in justice’s court in Albany county before a justice of that county for $188.74 against Peter S. Markle, on which the justice the next day issued an execution and placed the same in the hands of a constable, who about the 5th day of October, 1877, levied upon or assumed to levy upon and sell to John M. Batterman for $130 all the right, title and interest of Peter Markle of, in and to the nursery referred to on said premises. Between the time of the sale by the constable and the spring of 1878 the plaintiff removed some of the trees out of the nursery, but it does not appear whether or not with the consent of the defendant.
    After the defendant took possession in May, 1879, the plaintiff demanded of the defendant the nursery trees, plants and vines then still growing in said nursery on said farm, and the defendant declined and refused to deliver the same.
    The referee also found that on the 30th day of April, 1869, Isaac S. Albright assigned to Mary M. Markle an interest to the extent of $350 in the last named mortgage, which assignment was duly recorded in the Albany county clerk’s office on the 13th day of June, 1878. And that the same was duly satisfied by her on the 8th day of June, 1879, and the satisfaction piece recorded in the Albany county clerk’s office on the 17th day of December, 1879.

      W. Frothingham, for app’lt; Martin D. Conway, for resp’t; N. C. Moah, of counsel.
   Mayham, J.

The appellant insists that the foreclosure of the mortgage was void for the reason that the plaintiff was not the sole owner of the mortgage at the time of the foreclosure.

We think Mis position cannot be maintained in this action. The court had jurisdiction of the subject matter of the action and acquired jurisdiction of the parties, the mortgagor and wife, by the service of process. If Mary M. Markle was a proper party, the objection should have been taken by demurrer or answer. Code Civil of Procedure, §§ 498, 499.

The power to foreclose and sell may be exercised by one owning only a part of the mortgage debt, and if he claim too much it does not render the sale void. Clock v. Cronkhite, 1 Hill, 107. If the plaintiff claimed more than was due him, the mortgagors being in court by virtue of the service of the summons upon them, could have reduced the amount by a defense; or if the foreclosure had been by statute, the mortgagor could by action have restrained the foreclosure for more than the amount actually due the party seeking to foreclose. Mowry v. Sanborn, 62 Barb., 223; Bunce v. Reed, 16 id., 347. The judgment of foreclosure not being void, it cannot be attacked in a collateral action.

Now was,the plaintiff in this action a necessary or proper party to the foreclosure. It does not appear that he had any interest appearing of record, either as grantor, mortgagor or judgment creditor, and the referee refuses to find that he was in the actual possession of the nursery trees. He could acquire no interest in land under the constable’s sale on a justice’s execution that would make him a necessary or proper party to an action of foreclosure. And by the express provision of the Code, if he had any interest in the mortgaged premises which was not of record at the time of filing of Us pendens, it would be barred. Code of Civ. Pro., § 1671.

We do not, therefore, see how the plaintiff in this action can question the validity of the foreclosure sale.

The more important question is, did these nursery trees pass to the purchaser under the foreclosure sale ?

It was early held in this state that a mortgagor or other person acquiring any interest through or under him subsequent to the execution of the mortgage, was not entitled as against the mortgagee or person acquiring title under the foreclosure sale to crops growing on the mortgaged premises at the time of the foreclosure and sale. Lane v. King, 8 Wend., 684. It is insisted on the part of the appellant that the rule laid down in this case has been modified by subsequent decisions in this state, and the court has been cited to several authorities in which it is claimed these modifications have occurred. But in all the cases referred to, the distinguishing tests which determine whether the particular article in controversy was real or personal property, as they were applied at common law, have been recognized and adhered to with greater or less vigor, viz:

First. The manner of annexation to the land.

Second,. The adaptability to the use of the freehold.

Third. The intention of the parties at the time of making the annexation.

In Voorhees v. McGinnis (48 N. Y., 278), the question arose between the mortgagee of the land and the mortgagee^ of boilers and engine used in a mill, the boilers in question, being claimed under a chattel mortgage given while they were in the process of construction, to be placed in the mill in the place of old ones which had been permanently affixed to the freehold without any special intent, either of making them a part of the freehold or removing them at. some future time, but which had been taken out and the new ones placed in their stead. It was held that the boilers, and engine became a part of the realty and passed with it to the purchaser under the foreclosure of the real estate mortgage. This case seemed to turn upon the character of the annexation and the want of evidence tending to show that the boiler and shafting was intended to be movable or personal property when placed in there, and that, too, although they had been mortgaged as chattels both before- and after they were placed in the mill.

Murdock v. Gifford (18 N. Y., 28), was an action for t-he-foreclosure of a mortgage on real estate, consisting of a woolen factory, in which were looms run by belts connected with the shafting of the mill, that the looms were easily removed without injury to the mill or the looms.

These looms had been sold on execution against the mortgagor, and purchased by the defendants, and by stipulation the payment of the price was made contingent upon the determination of the question, whether the looms were-real or personal property. In this case the court held that the looms were personal property, because they were in themselves movable and not a part of the freehold, and the court say, “Thequestion then is, were these looms realty as between the mortgagor and mortgagee ?”

- ‘ ‘ The effort of the court is always to ascertain the intent, of the parties and give it effect.”

1 ‘ But where no specific intention is collectible, or where-the conveyance is of lands by metes and bounds, and on the land stands a building in which is the thing in controversy, then it will pass or not according as the thing is or is not in law a part of the realty.”

In Sherman v. Willett (42 N. Y., 146), the mortgagor of a farm, who was in default, sowed on the farm a piece of rye. He died before the rye was harvested, and the mortgagee became his administrator, and as such sold the rye to plaintiff. Subsequently, and before the rye was harvested, the mortgagee foreclosed the mortgage and sold the farm, but reserved the rye. Held, that but for the reservation the rye would have passed to the purchaser under the foreclosure, but by the reservation made by the mortgagee in the presence of the purchaser, who took by privity of estate through the mortgagee, he was estopped from claiming the rye.

From the case last cited it is quite clear that the intention of the mortgagor at the time of annexing the article in dispute to the freehold does not always control the character of the property. It could not be contended that the mortgagor in sowing the rye did not intend to harvest and remove it from the premises. Yet the crop placed there was subject to the contingency of the foreclosure of the mortgage before it was removed.

The rule applicable to landlord and tenant does not apply to this cafe. That relation in no way existed between the parties. The relations existing between Maride and Al-bright were those of mortgagor and mortgagee, and the law relating to trade fixtures as the same exist between landlord and tenant does not apply, but the relation of the parties are like those of vendor and purchaser. Davidson v. Gas Light Co., 99 N. Y., 568.

The plaintiff in this action, if he acquired any title under the constable’s sale to the nursery or nursery stock, got no better or superior title or right than that which Markle, the mortgagor, possessed, and if the rights of the mortgagor were cut off by the foreclosure his rights would necessarily fall within them.

While it is true that the rule laid down in the case of Lane v. King has, to a certain extent, been modified in the subsequent cases, we have been referred to no case holding that as between mortgagor and mortgagee, or vendor and vendee, has the rule been so far changed that the standing trees upon the mortgaged premises at the time of the foreclosure remained the property of the mortgagor, or of any other person deriving title through or under him as against the mortgagee, or a purchaser under a valid foreclosure of the mortgage.

In the case of Rector, etc., of the Protestant Episcopal Church v. John Mack et al. (93 N. Y., 488), it is held that the effect of a foreclosure deed is to vest in the purchaser the entire estate of the mortgagor and mortgagee as of the date of the mortgage and unaffected by subsequent incumbrances and conveyances by the mortgagor. Rector v. Mack, 93 N. Y., 488.

In White v. Evans (47 Barb., 185), the court say: “The title, though consummated (by foreclosure), relates back to the period when the mortgage was executed in 1854, and takes effect from that time.”

The rule seems to be too universal to require further citation of authorities in this state, and the same has been held to be the rule in other states. Gamble v. Horr, 40 Mich., 561.

And even an easement subsequently granted or created is extinguishable by the mortgage. Murphy v. Welch, 128 Mass., 489.

In Sherman v. Willett (supra), Late, J., says: “The purchaser’s right under the foreclosure would have been superior to that of the plaintiff if the crop had not been expressly excepted, and that under the peculiar circumstances of the-case the exception prevented acquisition of the title.” Sherman v. Willett, 42 N. Y., 155.

In Gillett v. Balcom the question arose as to the title to crop of wheat between the assignee in bankruptcy of the mortgagor and the purchaser under a foreclosure of the mortgage, and the court held that not only the land, but the crops thereon while growing, and until they are severed therefrom, belong to the purchaser under the mortgage. Gillett v. Balcom, 6 Barb., 372.

In Hamilton v. Austin, 36 Hun, 138, the mortgagor who for years had been occupying the premises as a tenant and using it exclusively as a nursery for the culture of trees and shrubs for sale, purchased the demised premises, taking a deed for the same and giving back a mortgage for the purchase price, which mortgage contained no reservation of the nursery stock. The mortgage was subsequently assigned by the mortgagee, and on default of payment the assignee commenced foreclosure proceedings. After the assignment of the mortgage, and before the commencement of the action of foreclosure, the mortgagor sold one-half interest in the nursery stock, and subsequently and before the commencement of the foreclosure suit the mortgagor sold the other half interest to another party. Neither of the purchasers of the nursery stock knew that the assignee of the mortgage had been informed by the mortgagor that the mortgage covered the nursery stock, although such information had been given; but both knew of the real estate mortgage at the time of the purchase. The action was for waste in removing the trees before foreclosure.

Follett, J., in pronouncing the opinion of the court says: “As between mortgagor and mortgagee, trees growing in a nursery, expressly for sale as merchandise are covered by the mortgage, and those standing on the land when it is .Sold under a foreclosure pass with the land to the purchaser.” Hamilton v. Austin, 36 Hun, 141.

In this case is reaffirmed the doctrine that the rights of mortgagors and mortgagees stand upon the same footing, as between grantors and grantees, and not upon the law as it exists between landlord and tenant. The case also holds that nursery trees are not fixtures in any sense of that term, but are more nearly emblements, only differing from the latter in not being the product of annual labor. The rule upon principle -would seem to be much stronger for holding trees which are not the product of annual labor, as real estate, than those vegetables grown upon land, which are the product of annual planting and culture. And in the case last cited it is expressly held that “emblements reared by tenants entering subsequent to a mortgage, if growing at the time of the foreclosure sale pass to the purchasers.” But if the tenant in the usual course of husbandry gathers the emblements before sale on foreclosure, they belong to him and he is not hable in an action of waste. In the case at bar the trees for which the action was brought were not removed at the time of the foreclosure sale, but were growing in their natural position in the soil, and within the rules governing a case like this passed with the land to the purchaser on the sale.

The judgment must be affirmed, with costs.

Learned, P. J., and Landon, J., concur.


source: Caselaw Access Project

author: Learned, P. J. Bockes, J.

license: Public Domain

text:
    The People, Resp’ts, v. Egbert Palmer, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    1. Criminal law—Right to appearand defend—Secured to accused by New York constitution, art. 1, § 6, and Code Crim. Pro., § 8.
    The New York State Constitution, article 1, section 6, provides that in any trial in any court whatever, the party accused shall he allowed to appear and defend in person and with counsel as in civil actions. This right is again stated in Code Criminal Procedure, § 8. Learned, P. J., Boches, J.
    3. Same—Error to refuse accused the right to accompany the jury, WHERE THE PLACE OF THE ALLEGED OFFENSE IS VIEWED BY THEM.
    The accused has a right to be present when evidence is put in or laid before the jury touching his guilt or innocence. This is secured to him by law (New York Const., Art. 1, § 6;, Code Crim. Pro., § 8, subd. 3; § 356), and it is error for the court in a prosecution for assault to refuse to permit the accused with his counsel to accompany the jury when making view of the place where the alleged offense was committed. Learned, P. J., Bocees, J.
    3. Conviction of offense of different degrees—May be had in lower DEGREE WHEN HIGHER DEGREE IS CHARGED.
    It is provided by Code Criminal Procedure, § 444, that upon an indictment for a crime consisting of different degrees the jury may find the defendant not guilty of the degree charged in the indictment and guilty of any degree inferior thereto, or of an attempt to commit the crime. When an" indictment is brought against one for assault in the first degree, a verdict holding him guilty of that crime in a lower degree is in effect an acquittal of the offense charged in the higher degree. Bocees, J.
    4. Court of oyer and terminer—Assault in third degree—When court HAS JURISDICTION TO RENDER CONVICTION—CODE CRIM. PRO., § 56.
    Code Criminal Procedure, § 56, provides, that subject to the power of removal provided for in that chapter and with certain exceptions therein specified, the courts of special sessions have in the first instance exclusive jurisdiction to hear and determine charges of misdemeanor committed within their respective counties as fol.ows: * * * 2. Assault in the third degree. Held, that this limitation applied to cases where the complaint or charge was made to the court of special sessions in the first instance. 'That if the complaint be for a higher offense and it be sustained by indictment, then the oyer an;l court of sessions in case the indictment he found in the latter court or he sent there by the oyer would have jurisdiction and that Code Criminal Procedure, § 444, authorizes a conviction for an offense inferior in degree to that charged in the indictment would apply. Bocees, J.
    5. Assault in third degree—Punishment for—Penal Code, 8 15—Code Crim. Pro., § 717.
    Penal Code, § 15, provides that a person convicted of a crime declared to be a misdemeanor, for which no other punishment is specially prescribed by that Code or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment in a penitentiary, or county jail, for not more than one year, or by a fine of not more than $500, or by both, upon a conviction by the court of sessions of assault in the third degree, and sentence passed in accordance with the above section. Held, that Code Criminal Procedure, § 717, providing as punishment a fine not exceeding fifty dollars and imprisonment not exceeding six months was applicable to that case and the fact that that section had special application to courts of special sessions did not alter the fact that punishment for the offense was specially prescribed by a statutory provision in force at the time other than that declared in Penal Code, § 15. Bocees, J.
    6. Acquittal of higher crimes charged in indictment bars the trial of PRISONER FOR THOSE CRIMES IN A LESSER DEGREE.
    Where a defendant has been acquitted of the higher crimes charged in an indictment he cannot be tried for those crimes in any other degree. See Penal Code § 36. Bocees, J.
    7. New trial—Penal Code, § 36—Code Crim. Pro., § 544.
    Code Criminal Procedure, § 544, provides that where a new trial is or-, dered it shall proceed in all respects as if no trial had been had. Held," that that section applied to new trials granted by the court in which the former trial was had, and the application for such new trial must be made before judgment except in case of sentence of death. That Penal Code, § 36, was left in full vigor, and that the acquittal of the defendant of the higher offense charged in the indictment disposed of the case; that a reversal having been ordered left nothing on record against him for a re-trial. Bocees, J.
    8. Same—Penal Code, § 36.
    An indictment contained three counts charging the defendant with assault. A demurrer to the indictment having been overruled the defendant entered a plea of not guilty; upon the trial he was convicted of assault in a lower degree than that charged, whereupon he moved for a new trial on the minutes of the court, also in arrest of judgment. Upon a denial of these motions and sentence, an appeal was taken from the conviction and judgment. Held, that the defendant might be tried again for assault m the third degree. Learned, P. J., and Landon, J. Held by Bocees, J., that he was discharged by virtue of Penal Code, § 36.
   Learned, P. J.

The constitution says that “in any trial in any court whatever, the party accused shall be allowed to appear and defend in person and with counsel as in civil actions.” Const. Art.l, § 6.

This gives him a right to appear and defend in person and with counsel in every part of the trial. It forbids the hearing, by the jury, of any evidence in the absence of himself and his.counsel, without his consent.

This right is again stated in section 8, Code Criminal Procedure. And probably no one would doubt that to give evidence to a jury, in the absence of a prisoner and without his consent, would violate the constitution, and that a verdict so obtained could not stand.

Then the question is: was evidence given to the jury in this case, in the absence of the prisoner ?

One member of the court and two officers, sworn according to section 412 of that Code, went out from the court room. The two other members of the court and the prisoner and his counsel remained. The prisoner asked to accompany the jury, but this was refused. On returning the member of the court, who had gone with them, stated that the jury had been up to the place, store or saloon of the Hallenbeck brothers, and that all places mentioned by ■counsel had been examined by the jury; that the jury had not been allowed to communicate with' one another or hold .any conversation with any person outside.

The "view of the place was itself evidence. It might be very important for the jury to know the size of the room. For instance, the defendant might have testified that the room was not more than ten feet long and that the complainant, standing at one end, had struck with a stick the defendant standing at the other. The jury may have been shown a room twenty feet long. And the length of the room would tend to discredit defendant’s testimony and would be material evidence whether the affray arose as ■defendant claimed.

It is not an answer to this argument to say that there ■could be no doubt as to the size of the room by those who were allowed to see it. Because the principle is not that no false evidence shall be given in defendant’s absence, but it is that no evidence, true or false, shall be so given. Hence, if the size and appearance of the room tends in any way to bear upon the question of the defendant’s guilt or innocence it is evidence, and must not be given to the jury in his absence. Bullet holes and splashes of blood might he in the room and their position might bear strongly on the guilt or innocence of the prisoner. In this very case importance seems to have been attributed to the existence ■or non-existence of a bullet hole at a certain place in the room. If it would have been evidence to testify that there was such a bullet hole, then it was giving evidence to show to the jury the bullet hole itself.

But again, either by words, or by gestures, or by the mere fact that they were taken to a certain room by the officers and the member of the court, the jury were informed that that room was the place where the affray happened.

How, in the first place, this was unsworn evidence. Ho ■one stated to them under oath that that was the place of the affray. If on a trial, any articles are to be exhibited to the jury; as for instance the clothes of a murdered man,. the pistol of the murderer, and the like, before they can be given in evidence, proof must be given in respect to them. Some one must, on oath, identify them as being what they are alleged to be. But there was no identification of the room shown to the jury. Did any one testify before the jury, “ This is the saloon of Hallenbeck Brothers ?” If so, then that evidence was given in defendant’s absence. If not, then the room was shown without identification by sworn testimony.

But, in the next place, the defendant has had no opportunity of denying that the room shown was that saloon. What knowledge has he as to the place to which the jury were taken ? They may have been taken to another room distant from the place of the ■ affray. He has no means of knowing where they went.

Suppose it were in dispute whether the affray occurred in one room or in another of a house. Can it be permitted that the jury shall be shown by two officers and one member of the court, in the defendant’s absence, such room as ■they may think best to exhibit, and that the defendant shall thus be kept in ignorance what room was so exhibited? For unless the defendant is present he cannot know what room was exhibited. Could the alleged clothes of a murdered man or the alleged pistol of the murderer be exhibited to a jury at some place outside of the court room, and in the absence of the prisoner defendant? If the defendant had been present he might have denied that the room exhibited. was the place of the affray. He might have called witnesses to show this. But, as it is, he cannot, .because he does not know what room was exhibited. Then, the judge who accompanied them said, on his return, that they had been taken to the saloon of Hallenbeck Brothers. But how did the defendant know what place the judge and the two officers believed to be that saloon ?

The Code of Criminal Procedure, sec. 411, seems to intend that a judge of the court, or a person appointed for that purpose, should show the place. How it was supposed that a judge of the court would know the place where the crime is alleged to have been committed is not very clear. He might perhaps have a familiarity with the descriptions, given by witnesses, so that, to his own satisfaction, at least, he would be able to identify the place. But it will be-seen that he (or the person appointed) is to show the place-to the jury. Hence from this word it is evident, as was. above stated, that the judge must convey to the jury, probably by words, his conviction that the place actually" before them is that where the affray took place.

The next section, 412, probably is not to be construed to-prevent this communication with the jury. And thus we-have evidence given to them in the defendant’s absence, viz., that the place shown is that referred to by witnesses in describing'the affray.

Once more, whenever articles are exhibited to a jury the . inquiry is, or may be made, are they in the same condition as they were at the time of the alleged crime. How is the defendant, not permitted to see the place as it is shown to the jury—how is he to know whether the place, as exhibited, is just in the condition that it was at the time of the affray? He is shut out from the opportunity of giving evidence upon this point, because he is confined in the court room while some member of the court is showing the supposed place to the jury, and therefore does not know how the place now is.

Reference is made to the old system of “views” in England. 3 Blackstone’s Com., 358. But it is to be observed that these were granted in civil actions, and that they preceded the trial, as will more fully appear in 1 Burr, 252. And at page 256 of that same volume it will be seen that under the regulations of the court respecting them there was to be an appearance at the view of a person on the part of the plaintiff and another on the part of the defendant. So that nothing was done in the absence of the parties or their representatives.

We need not consider whether a proceeding of tins kind might not take place on a civil trial. Code Civ. Pro., § 1659. We have only to confine our attention to the present case.

Judgment reversed, new trial granted.

Bockes, J.

The defendant was indicted for an assault in the first degree committed on one Ira Gay. The indictment contained three counts, in each of which it was charged, with slight variations of language, that the defendant willfully and feloniously made an assault upon Gay and discharged a loaded pistol, being a deadly weapon, and likely to produce death, in the first and third counts, with intent to kill Gay, and in the second, with intent to committ a felony upon his person. A demurrer to the indictment having been overruled, the defendant entered a plea of not guilty.

On the trial in the court of sessions, to which the case was sent by the oyer, when the indictment was found, the defendant was convicted of assault in the third degree, whereupon he moved for a new trial on the minutes of the court, also in arrest of judgment. These motions were denied, and he was sentenced to imprisonment in the penitentiary for one year and to pay a fine of $250. From such conviction and judgment, the defendant appealed to this court.

No point of error is here made by the defendant’s counsel on the overruling of the demurrer, nor on the denial of the motion in arrest of judgment. The errors complained of are such as appear on exceptions taken and entered on the trial. These and these only will be here examined.

The facts of the case briefly stated are as follows: The defendant and Gay were gambling in a tavern bar-room, where a dispute arose between them and both clutched for the stake money. Gay got it; whereupon the defendant struck Gay in the face, immediately following which a glass tumbler was thrown at the defendant by Gay, and either just before or directly following this the defendant drew and discharged his pistol. The pistol was twice discharged. Gay claimed that he was hit slightly on the head by the first discharge; by the second discharge, the defendant was himself hit in the leg. This shot may have been accidental with no intent to shoot Gay. When the first discharge was made, Gay was approaching the defendant—rushing upon him, as his counsel puts it—the latter retreating backwards, with pistol in hand, warning Gay to keep away. Such are the leading facts, given quite in detail by the witnesses, with perhaps some variation one with another, not, however, greatly conflicting in their statements.

First. The verdict of the jury was, “Guilty of assault in the third degree.” This verdict in legal effect acquitted the defendant of assault in the first degree, to wit: of an assault with intent to kill Gay or to committ a felony upon his person. Guenther v. The People, 24 N. Y., 100; The People v. Dowling, 84 id., 478.

And such verdict was authorized under section 444 of the Code of Criminal Procedure, which provides that, “Upon an indictment for crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime.”

It is urged that to uphold a conviction for a lesser degree of crime than that charged in the indictment, it must be for the identical act alleged therein. The law is this, that the accused cannot be convicted of any other character of offense than that charged against him in the indictment (Dedieu v. The People, 22 N. Y., 178; Keefe v. The People, 40 N. Y., 348), but he may be convicted of an inferior grade of the same offense charged, growing out of the same transaction counted on accordingly as the case may be disclosed by the proof. As said in one of the cases cited, “ So far as the proof goes it conforms to the allegation. Simply the whole indictment is not found, but the principle applies that it is enough to prove so'much of the indictment as shows that the defendant has committed a substantial crime therein specified.” So here the defendant might be convicted of any degree of assault inferior to that charged in the indictment; the grade of offense to be determined by the proof. An assault was charged with aggravation. Tailing to prove the aggravation, left the charge of assault still remaining, but of lesser degree of offense. To uphold a conviction for the inferior degree the aggravating circumstances charged will be deemed surplusage. It was, therefore, competent for the jury under the indictment in this case to convict the defendant of assault in the third degree.

Second. It is in the next place urged that the court of oyer and terminer in which the indictment was found had no jurisdiction over the offense of which the defendant was convicted, and that the conviction for that offense in the court of sessions was also without authority and void. This objection is based on section 56 of the Code of Criminal Procedure which provides that, “Subject to the power of removal provided for in this chapter, courts of special sessions, except in the city and county of New York and the city of Albany, have, in the first instance, exclusive jurisdiction to hear and determine charges of misdemeanors committed within their respective counties as follows: * * * 2. Assault in the third degree.”

The limitation here declared applies to cases where the complaint or charge is made to the court of special sessions in the first instance; that is, when this minor offense is that which is sought to be redressed; and so, too, when the minor offense is sought to be redressed by indictment for it in the oyer or sessions (not having been certified there under section 57, Code Grim. Pro.), the subject would be by the grand jury, or by the court in giving direction to that body, turned over to the court of special sessions, which court has exclusive jurisdiction of it on such complaint in the first instance. But if the complaint be for a higher offense, and it be sustained by indictment, then the oyer and court of sessions, in case the indictment be found in the latter court, or be sent there by the oyer, would have jurisdiction, and section 444 of the Code of Criminal Procedure, which authorizes a conviction for an offense inferior in degree to that charged in the indictment, would apply. This construction harmonizes the two sections (56 and 444) above cited, and gives effect to each, and it must be accepted in preference to that construction which would render either nugatory in whole or part. It also recognizes as effective, section 445 of the Code of Criminal Procedure, which declares that “In all other cases (cases other than those specified in section 444) the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment;” and also section 35 of the Penal Code, which declares that “Upon the trial of an indictment the prisoner may be convicted of the crime charged therein, or of a lesser degree of the same crime;” nor in this connection should section 36 of the Penal Code be overlooked, which declares that “when the prisoner is acquitted or convicted upon an indictment for a crime .consisting of different degrees, he cannot thereafter be indicted or tried for the same crime in any other degree.” Thus, in this case, unless the defendant may be held to punishment on the verdict here rendered, he must go free and unpunished for the offense of which he is convicted.

Our conclusion, therefore, is, that the verdict rendered in this case is not without authority and void for want of jurisdiction in the court of sessions to receive it and make it the basis of punishment, if upheld as provided by law, as to which see hereafter.

Third. It appears that during the trial, the defendant asked that the jury be permitted to view the place where the crime was charged to have been committed, as provided for in sec. 411 of the Code of Criminal Procedure. No objection on the part of the people was made, and the court allowed the jury to make view as was requested. The defendant thereupon requested that he with his counsel be allowed to accompany the jury. This request was denied; the judge holding that he would allow only the two officers, himself, and the jury to go. Under such holding, the view was made by the jury, under the charge of two officers sworn for the purpose, accompanied by the county judge. The point of exception as made in the appeal book is this: That the defendant, with his counsel, was not permitted to accompany the judge and jury. It may be conceded that the proceeding to make view was not strictly a proceeding in court. This is, I think, fairly inferable from the language of the section itself permitting _ it, _ as also from the following section 412. (See all subdivision 2 of sec. 465.) But this conclusion does not reach and_ answer the objection urged. The proceeding was the obtaining of evidence in the case, and a presentation of it to the jury, during the trial, hence, in effect, was part of the trial. The view is referred to as “evidence” in the subdivision of the sec. 465 above cited, and it was put in as evidence for the consideration of the jury, and to influence their action in the determination of the case. So it must be deemed “evidence” in the nature of things. (See Eastwood v. The People, 3 Park Cr. Rep. on page 53; also West v. Kiersted, 15 N. Y. W. Dig., 549; on this point I differ from Shuler v. The State, 105 Indiana, 289, and the cases there cited in its support; and concur in those holding to the contrary, also there cited, to which latter cases attention is called. It must be held, as I think, that the making view by the jury was part of the trial, in so far as it involved the right of the defendant to be present when “evidence” is given, or is obtained for use in the case. So the defendant had the right to be present when evidence was put in or laid before the jury touching his guilt or innocence. This is secured to him by law. Code of Crim. Pro., § 356; also, subd. 3 of § 8. See, also, § 6 of article 1 of state constitution.

But irrespective of the provisions of the code and constitution above referred to, the right of the defendant to accompany the jury existed on general principles applicable to the trial of causes in the admission of evidence. The defendant might object to the introduction of a diagram as evidence, unless verified in its correctness and put before the jury in his presence, or in open court; and this for the reason that he should have opportunity to show by proof that it was incorrect, defective, or misleading. So here, he should be allowed to be present when the judge or person appointed for the purpose pointed out the place to the jury, to the end that he might, if needful, correct any error in that regard by proof to be submitted to the jury, showing the error, or perchance, changes and alterations made subsequent to the transaction under investigation. Thus according to the general rule of right, applicable to the admission of evidence, the defendant should be allowed to attend the jury when making view; not for the purpose of there and then raising objections or making any suggestions, but to the end that he might correct, by proof in court any misleading of fact, if any should exist, growing out of the view by the jury.

It follows that the court was in error in refusing to permit the defendant with his counsel to accompany the jury when making view of the. place where the alleged offense was committed, and for this error the conviction and judgment must be reversed.

Fourth. I am also of the opinion that there was error in the sentence. The sentence here pronounced was authorized by section 15 of the Penal Code, in case there was no other punishment for this offense (assault in the third degree) specially prescribed by any other statutory provision in force at the time of the conviction and sentence; but there was another punishment for this offense prescribed by a statutory provision then in force; to wit, that prescribed by section 717 of the Code of Criminal Procedure. By this section, the fine was limited to fifty dollars and the imprisonment to six months. That this section has special application to courts of special sessions does not alter the fact that punishment for this offense (assault in the third degree) is specially prescribed by a statutory provision in force at the time other than that declared in section 15; section 717 should be held to control the sentence; and this on a question of construction of statutes should be so held for the sake of uniformity and harmony in the administration of justice. To permit the punishment for the same offense to differ in severity accordingly as the conviction should be had in different courts is repugnant to one’s sense of propriety and right.

Perhaps this error might be corrected on appeal, under section 543 of the Code of Criminal Procedure. I think otherwise, however, as the extent of punishment rests with the trial court. But as there must be a reversal of the conviction for the reason above suggested, this point need not be here determined.

Fifth. But I am of the opinion that the defendant must be discharged.

The verdict in this case operated as an acquittal of the defendant of the higher offenses charged in the indictment. People v. Dowling, 84 N. Y., 478. And in case the judgment be reversed and a new trial be granted, the defendant could not, as the law was then declared, which was before the Criminal Codes went into effect, be again tried and convicted of those higher offenses. As to them, autrefois acquit would be a good defense. This is decided in the cases above cited; and the new trial could be only for the lesser offense—here, assault in the third degree. But it is now provided by section 36 of the Penal Code that “Where a prisoner is acquitted or convicted upon an indictment for a crime consisting of different degrees he cannot thereafter be indicted or tried for the same crime in any other degree, nor for an attempt to commit the crime so charged, or any degree thereof.” Now here, the defendant has been acquitted of the higher crime charged in the indictment, hence he cannot, according to this section, be tried for those crimes “in any o*ther degree.” Ita est scripta. In this connection section 544 of the Code of Criminal Procedure should be noticed; which provides that “When a new trial is ordered, it shall proceed in all respects as if no trial had been had. ” But here, according to section 36 of the Penal Code, above cited, a new trial should not be, indeed, cannot be legally ordered. Section 544 applies to those cases where a new trial may properly be ordered. In passing, it may be well to remark that section 464 of the Code of Criminal Procedure, which provides that “The granting of a new trial places the parties in the same position as i£ no trial had been had,” has no application to cases brought upon this court on appeal. That section applies to new trials granted by the court in which the former trial was had, and the application for such new trial must be made before judgment, except in a case of sentence of death. Code Crim. Pro., §§ 462-466. Thus it seems that section 36 of the Penal Code is left in full rigor, according to its text. It follows that the acquittal of the defendant of the higher offense charged in the indictment disposes of the case; a reversal being ordered, leaves nothing on the record against him for retrial.

In any event, the defendant could only be held to a retrial for assault in the third degree, even if section 36 of the Penal Code was out of the way, and effect should be claimed for section 544 of the Code of Criminal Procedure. It was so held in The People v. Gilmore (4 Cal., 376). The Criminal Code of the State of California provided, as does our section 544, above cited, that the granting of a new trial placed the parties in the same position as if no trial had been had. It was urged in the case cited that this provision—a new trial being granted—opened the entire charges in the indictment for retrial, as well as those to which there had been an acquittal as to those on which' there had been a conviction. The court held against this construction. It held that such provision went only to the needs of the defendant as against the conviction; that if it should be construed to be more extensive in its application and effect then it would be in conflict with the constitution, which protects one from being twice put in jeopardy for the same offence; and further, that an appeal or motion for a new trial would not operate, as a voluntary waiver, by the defendant of his constitutional protection as to those charges as to which he had been acquitted. To the same effect is the decision in The People v. Dowling (84 N. Y., 478-483-4). Judge Folger says, the waiver of constitutional protection, “unless it be expressly of the benefit of the verdict of acquittal, goes no further than the accused himself extends it. His application for a correction of the verdict is not to be taken as more extensive than his needs. He asks a correction of so much of the judgment as convicted him of guilt. He is not to be supposed to ask correction or reversal of so much of it as acquitted him of of-fence. He therefore waives his privilege as to one, and keeps it as to the other. * * * The waiver is construed to extend only to the precise thing concerning which the relief is sought.” In this case the defendant has expressly limited the relief sought by his notice of appeal, which goes only to the correction of assault in the third degree, leaving the acquittal of the higher offence uncomplained of and untouched. Thus, section 544 would be held to be unconstitutional and void, if by its terms it extended to the acquittal in this case. In no view of the case can the defendant be held to a retrial, save for an assault in the third degree.

I am, however, of the opinion that he • is entitled to be discharged by force of section 36 of the Penal Code, above cited.

As I conclude, the conviction and judgment should be reversed, and the defendant discharged.

Lardón, J., doubted as to there being any error in the way in which the view was made, added: My brethren, however, think that the judgment should be reversed.

In that case, I agree that the defendant stands acquitted of every charge, except that of assault in the third degree. People v. Dowling, 84 N. Y., 478.

I think a new trial can be granted for assault in the third degree. The defendant was not acquitted “upon the indictment, ” but of certain of the charges therein stated.

To avail himself of the provisions of section 36, Penal Code, he must have been fully acquitted upon the entire indictment.

Judgment reversed; new trial granted for assault in the third degree. _


author: Van Hoesen, J.

text:
    Frederick Hollender et al., Resp’ts, v. New York Central and Hudson River Railroad Company, App’lt.

      (New York Court of Common Pleas, General Term,

      Filed April 4, 1887)

    1. Negligence—Railroad—Should give signal when entering depot.
    The plaintiff’s horses, attached to a truck, were killed in defendant’s depot by defendant running its train in the dark, and v itliout notice by light, noise or voice, that it was entering the depot, which was dark, where men and teams were known to be. Held, that the defendant’s carelessness was the sole cause of the loss that the plaintiffs sustained.
    2. Same—Signal—Safeguards—Not for jury to say what shall be given—Charge.
    It is error to charge the jury that they may find the railroad company negligent if they believe that there are safeguards that could have averted the injury if they had been adopted. But it would not be error to merely leave it to the jury to say whether the train-men ought not to have done something more than they did actually do without leaving it to them to say what other signals ought to have been introduced. It is for the legislature and not for a jury to determine what signals a railroad should be required to give.
    3. Same—Management of vehicles—What care required.
    Whether the vehicle be large or small, likely or unlikely to do injury, slow in moving or rapid, its driver is bound to manage it with common prudence and care. As the likelihood of injury from its use increases the care with which it should be managed must be increased.
    4. Practice—Party bound by judge’s ruling in his favor.
    A party having established the law in a case by ruling made in his favor at his request, cannot be permitted to object that the court continued to apply it in every stage of the trial.

      Appeal from a judgment entered upon a verdict in favor of plaintiff.

      John E. Brodsky, for resp’ts; Frank Loomis, for app’lt.
   Van Hoesen, J.

There was ample proof that the plaintiff’s servant was free from negligence, and sufficient proof of the negligence of the defendant, to require the submission of the case to the jury. The evidence made it clear that the defendant, in the night time, was engaged in backing a long train of nine freight cars into the freight depot at St. John’s Park, where it was dark; that the dummy engine was at the end of the train, remote from the depot; that there was a curve near the entrance; that the movement of the train was nearly noiseless; that there was no light at the end of the train that was entering the depot, and no one to give notice of the approach of the train; that the train stole noiselessly upon the plaintiff’s servant, who was lawfully in the depot, and came upon him so suddenly that he was unable, either from fright or from want of time, to get his horses out of the way, and that the result was that the train ran over the horses and killed them.

If the defendant had gone to the expense of a lamp, in all probability it would not have been the defendant in an action for carelessly killing the horses. The jury, upon the evidence, was justified in finding that the defendant’s carelessness in running its tram in the dark, and without notice by light, noise or voice, that it was entering a dark depot, where men and teams were known to be, was the sole cause of the loss that the plaintiff sustained. 71 N. Y., 231.

The exception to the testimony of Charles Jacobs (fol. 102) is not tenable. The defendant asked its witness, Charles Manning, the very question that it objected to when it was propounded by the plaintiff to his witness, Jacobs.

It was for the purpose of meeting the opinion of the witness Manning with the opinion of the witness Jacobs that the plaintiff, on the rebuttal, asked the question to which the defendant objected. If opinion evidence were incompetent the defendant ought not to have set the example of introducing it. Scattergood v. Wood, 79 N. Y, 263.

Against the objection of the plaintiff the defendant succeeded in inducing the court to receive opinion evidence as to the practicability of so managing the team that they could have been saved. Having thus established the law of the case, the defendant cannot be permitted to object that the court continued to apply it in every stage of the trial.

There was no impropriety of which the defendant can complain in the allowance of the question, ‘ ‘ Could you have heard a whistle or a bell if there had been one t ” It was intended to ascertain whether there was anything to prevent the witness from hearing a signal. It was obnoxious to criticism as to its form, for it called for a conclusion upon a, hypothetical state of facts, but it was understood to be an inquiry as to whether there was anything to interfere with the sound reaching the ear of the witness. Renwick v. N. Y. C. R. R. Co., 36 N. Y., 132-3.

As I understand the charge of the judge, there is no merit in the exception to the instruction that, “ It is for the jury to say whether the defendants did what was necessary to protect the plaintiff from injury.”

In my opinion, that instruction was neither intended by the court, nor understood by the jury, as making it a question whether the defendant was not chargeable with negligence because it had not employed all the signals and safeguards that the jury might think conducive to the safety of the public. Of course if it had been left to the jury to say what signals not required by law might advantageously be-introduced, and if they had been told that they might find the defendant guilty of negligence if any of those safeguards were lacking, the instruction would have been erroneous.

It is settled by a number of decisions that it is a fatal error to instruct a jury that they are at liberty to determine-what signals ought to be adopted, and to regard the omission of them as an act of negligence. See Semel v. New Haven R. R. Co., 9 Daly, 321; Dyer v. Erie R. R. Co., 71 N. Y., 228; Houghkirk v. Railroad, 92 id., 219; Cummings v. Brooklyn City R. R. Co., 5 N. Y. State Rep., 737.

The common law imposes certain duties upon those who-conduct vehicles. The general duty is to manage the vehicle with the care that, a man of ordinary prudence-would employ. Whether the vehicle be large or small, likely or unlikely to do injury, slow in moving or rapid, its driver is bound to manage it with common prudence and care.

As the likelihood of injury from its use increased, the-care with which it should be managed must be increased. The common law prescribed no particular method • of exercising care, nor required any special safeguards for the protection of those not using the vehicles as travelers. When railroads were introduced, the legislature, deeming the common law requirements inadequate for the safety of persons who might wish to cross the track, saw fit to provide that a bell should be rung or a whistle sounded whenever a train approached a highway that traversed the railroad line. These signals are as well for the protection of the railroad company as for that of the public, for they warn travelers upon the highway not to endanger the lives-of passengers upon the trains as well as their own lives by attempting to cross the track until the train has passed. But it is for the legislature, and not for a jury, to determine what signals a railroad should be required to give.

If it were left to the jury the railroad managers could never know what they ought to do in conducting their business, for juries would differ in their notions, and what one jury would pronounce a sufficient and proper safeguard might be regarded as utterly worthless by another. The consequence would be that no prescience could protect the railroad managers. They would never know whether they were negligent or not until some jury had decided what safeguards they ought to have employed; and even after they had been mulcted in damages for negligence it would be impossible for them to ascertain exactly what signals the jury thought ought to have been used.

Hence, the courts have uniformly held that it is error to tell the jury that they may find the railroad company negligent if they believe that there are safeguards that could have averted the injury if they had been adopted.

In the Semel Case the judge said, If you think the defendant neglected any necessary precaution, whether in providing signals or men at the station for waving flags, you have a right to find that it was guilty of negligence; that is a matter within your discretion.” The law does not require the placing of men at the stations to wave flags. The charge was, therefore, erroneous on that ground, as well as for the reason that the judge afterwards said that the jury could find a verdict for the plaintiff if the defendant was guilty of negligence in anything the jury thought it was its duty to do.

In the Dyer Case, the judge fell into a similar error, and the court of appeals therefore reversed a judgment in favor of the plaintiff. But Judge Miller drew a distinction that I think ought not to be overlooked in this case. He said that the instruction would not have been erroneous if it had merely left it to the jury to say whether the trainmen ought not to have done something more than they did actually do, without leaving it to them to say what other signals ought to have been introduced.

It is perfectly proper, to allow the jury to decide whether the train was managed with common prudence and care, and whether the train-men did all that they ought to have done to give notice of the advent of the train.

In this case there is not a word in the charge that can be construed into a direction to the jury to find the company negligent if it did not use the safeguards that they might think necessary. The mind of the court was not engaged with anything not connected with the issue that was on trial. The main question, evidently, was one of contributory negligence. To that the greater part of the charge is devoted.

At the close the court said, that to warrant a verdict for the plaintiff, “You must find that this injury occurred through the fault of the defendant, or its servants.”

Then followed a request by the plaintiff’s counsel for the instruction that “It was for the jury to say whether the defendant had done all that was necessary to protect the plaintiff.” It is obvious that this referred to the management of the train that did the injury, and to nothing else.

So understood, the instruction was not erroneous. 71N. Y., 233; 9 East. Rep., 798.

The judgment should be affirmed, with costs.

Larremore, 0. J., and Daly, J., concur.


author: Landon, J.—The

text:
    Hannah Everson, App’lt, v. Andrew McMullen, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed January 24, 1887.)

    Dower—Subrogation.
    In an action by this plaintiff to secure the admeasurement of dower in premises of which her husband died seized, it appears that she had jot ed with him in the execution of a mortgage which, with interest, was unpaid at his death, whereby she released her claim for dower in favor of any person who should thereafter acquire title to the mortgaged premises. The premises, subsequent to the death of her husband, were released from the lien of the mortgage, and she has not in any other way released her claim of dower. The defendant, who holds title to the portion of the premises in question, under conveyances made subsequent to the death of the plaintiff’s husband, seeks to be subrogated to the rights of the original mortgagee, and that the plaintiff’s claim be limited to the equity of redemption. Held, that the mortgage having been discharged to free the defendant’s title to the premises from the lien thereof, he was never a surety for the payment of the mortgage and not entitled to subrogation.

      G. D. B. Hasbrouck, for app’lt; Preston & Chipp, for resp’t.
   Landon, J.—The

plaintiff’s husband died siezed in fee of the premises. She had joined with him in executing the $12,000 mortgage, which with interest was unpaid at his death. By joining in the mortgage she released her claim for dower in favor of any person who should thereafter acquire title to the premises under the mortgage. She did not unite in any of the conveyances made since the death of her husband, and under which the defendant holds title to the portion of the premises now in question. She has not in any way released her claim of dower except by joining in the $12,000 mortgage.

The premises in question have been, since the death of her husband, released from the lien of the mortgage. Her claim of dower is not opposed by any release executed by her, and none exists. It must, therefore, be allowed, unless the mortgage containing her lease can be revived and reinstated by the defendant as a bar to her claim of dower. Runyan v. Stewart, 12 Barb., 537; Hitchcock v. Harrington, 6 Johns., 290; Collins v. Torry, 7 Johns., 278; Coats v. Cheever, 1 Cow., 479; Bartlett v. Musliner, 28 Hun, 235.

If the $12,000 were still a subsisting hen upon the premises the widow would against the mortgagee, only be entitled "to dower in the equity of redemption of which the husband was seized, unless she or her husband’s personal estate contributed to the redemption of the land from the lien* of the mortgage.

The defendant here claims, that although the mortgage has been satisfied as to the premises conveyed to him, the mortgage debt has not been paid, except to the extent of $500; that other mortgages have been executed by the husband’s grantees in substitution for so much of the original mortgage as could fairly be apportioned to this portion of the whole premises, and this was done simply for the convenience of the new purchasers of the several parcels of the whole premises, and that equity ought to revive and reinstate that portion of the $12,000 mortgage thus released, and that, the defendant should be subrogated to the rights of the original mortgagee, and that the plaintiff’s claim of dower be limited to the equity of redemption. This view was adopted by the trial court.

We are cited to cases in which the purchaser of the husband’s equity of redemption has, instead of paying the mortgage upon the premises, taken an assignment of it, and been allowed to assert the mortgage against the widow’s claim of dower. Delisle v. Herbs, 25 Hun, 485; Russell v. Austin, 1 Paige Ch., 192. Also, where the mortgagee enters under the mortgage and the husband releases the equity of redemption to him. Van Dyne v. Thayre, 19 Wend., 162. And where the heir has been compelled to redeem tíre land, the widow who united in the mortgage, in order to obtain dower, has been obliged to contribute her ratable proportion of the moneys paid to redeem the mortgage. Swaine v. Perine, 5 Johns. Ch., 491. And where, having the power of sale as executrix of her husband, she sold the land, and her husband’s mortgagees took the purchaser’s mortgage in place of the one held by them against her husband for purchase money, the substituted mortgage was reckoned as "to the proceeds of the sale, the same as the original mortgage in estimating dower between herself and the heirs. Evertson v. Tappen, 5 Johns. Ch., 511.

The court said they were not called upon to decide whether she would have a claim of dower against the purchaser, but intimated that she was probably barred by her own deed.

In all these cases, the original mortgage was actually or equitably in life. Here the original mortgage no longer exists with respect to the premises held by the defendant. The husband’s equity of redemption was sold after his death by his executors for one dollar. The purchaser, no doubt, deducted the amount of mortgage from the actual consideration. This circumstance was regarded in Hitchcock v. Harrington (6 Johns., 294), as showing that the mortgage was redeemed for the benefit of the title acquired under the husband.

It was, of course, known that the sale by the executor did not bar the widow’s dower, and that the only way this could be done, without her consent, was to sell the premises under the mortgage. If the sale had also been of her claim for dower, possibly the premises would have brought more.

Of course, the mortgage could have been kept on foot by assignment, as in the cases cited, but this was not done. Perhaps the mortgagee was unwilling to assign a part interest in the mortgage. He could not have been compelled to do so. The,release of these premises from the lien of the mortgage declares that it was made “to the intent that the lands hereby conveyed may be discharged from the said mortgage.”

Regard being had to the nominal price paid for the equity of redemption, to the fact that the widow’s claim of dower was not released at that sale; to the intent expressed in the written release of the mortgage; to the favor extended by the law to the widow’s dower; to the absence of circumstances showing any mistake other than of law, we do not think that a case was made entitling the defendant to revive and reinstate against the plaintiff a mortgage in which the defendant never had any interest and under which he has derived no title.

He was purely a volunteer with respect to the original mortgage. He desired to buy the land in which the widow had a claim of dower, subject to diminution because of the, mortgage. Instead of buying it, subject to the mortgage, he had that mortgage discharged, so that his title would be originally free from it. He, therefore, never was surety for the payment of the original mortgage, and is not entitled to subrogation. Wilkes v. Harper, 1 N. Y., 586.

The interlocutory judgment should be modified so as to direct the referee to proceed in accordance with this opinion. Costs of this appeal allowed to the appellant. Code Civ. Pro., § 1224.

Learned, P. J., and Bookes, J., concur.


author: Landon, J.

text:
    Ambrose W. Adams, as constable, App’lt, v. John H. Tator, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed January 24, 1887.)

    1. Constable—What will test the office of, in a party.
    One, who was duly elected as a constable, took the oath of office and filed a bond as required by statute except for the omission of an agreement by the obligors to become liable to pay each and every person for any damages which he might sustain from or by any act or thing done by said constable by virtue of liis office. Held, that the bond was good to the extent of its provisions! and that the said party was not merely a de facto officer, but one de jure with a title defeasible only upon the action of the people in the nature of a quo roa/rranto, or upon the justices of the peace declaring the office vacant and appointing another to fill it.
    -8. Same—Filing of bond—1 R S., m. p. 346, § 24; 1 R S,, m. p. 388, § 36.
    It is provided by 1 R S., m. p. 346, § 24, that the neglect by a person chosen constable to give the prescribed bond within the time limited for that purpose shall be deemed a refusal to serve, and by 1 R. S., m. p. 388, § 36, that in case of the failure of such person to file the bond the justices f the peace are vested, with power to deem the neglect to file a bond a refusal to serve, and then proceed to fill the vacancy. Held, that the time prescribed in which one elected as constable should file his bond was merely-directory, and that if he filed it in good faith after such time and before the declaration of vacancy by the justices, he cured the defect in his title to the office.
    3. Same—Rule as to de facto officers.
    It is a general rule with respect to defacto officers that the office is so far void as to prevent the officer from asserting it to his own advantage at the expense or to the injury of another, but valid so far as to protect third parties from injury.
    Appeal from a judgment of non-suit.
    The plaintiff brought this action as constable of the town -of Fulton, Schoharie county, to recover the value of certain personal property which he had levied upon and advertised for sale at public auction, by virtue of two executions issued "by a justice of the peace upon two judgments against George G. King, but which property the defendant claiming under a chattel mortgage, given to him by King, but not filed until after the levy, took and carried away, after the levy and before the day of sale. At the close of the plaintiff’s testimony the defendant moved for a non-suit, upon the ground that at the time of making the levy the plaintiff was not a constable de jure, and therefore, had no right to bring this action as constable. The court granted the motion.
    The alleged defect in the plaintiff’s title to the office of constable, consisted in the fact that the bond filed by him in the town clerk’s office upon his election to the office in February, 1885, omitted the following provision prescribed by chapter 788, Laws of 1872: “And also jointly and severally agree, and become liable to pay each and every such person for any damages which he may sustain from or by any act or thing done by said constable by virtue of his office of constable.” This was an addition to the provisions of the Revised Statutes, vol. 1, m. p. 346, section 21, which required that the obligors should “jointly and severally agree to pay to each and every person who may be entitled thereto, all such sums of money as the said constable may become liable to pay on account of any execution which' shall be delivered to him for collection.” The bond given by the constable conformed to the provisions of the Revised Statutes before the amendment of 1872.
    On January 12, 1886, the day before the trial, the plaintiff executed and filed with the town clerk a new bond with the same sureties as in the first bond, in conformity wiuh the statute, as amended in 1872. The plaintiff apparently made a prima facie case in other respects, and the non suit was granted upon the ground stated by the trial court that the plaintiff “has not the right to maintain this action.”

      S. L. Mayham, for app’lt; W. C. Lamont, for resp’t.
   Landon, J.

The plaintiff was duly elected, took the oath of office, filed such a bond as the statute required before the amendment of 1872, but omitting the additional clause prescribed by that amendment, and, in good faith, entered upon the discharge of his duties. This bond was good to the extent of its provisions. People v. Lucas, 93 N. Y., 585.

The plaintiff, therefore, was not merely a defacto officer, but an officer de jure, with a title defeasible only upon the action of the people in the nature of a quo warranta. Foot v. Stiles. 57 N. Y., 399; People v. Crissey, 91 id., 635; or upon the justices of the peace declaring a vacancy, and appointing another to fill it. Horton v. Parsons, 37 Hun, 42.

The statute, 1 R. S. m. p. 346, § 24, says the neglect by a person chosen constable to give the prescribed bond within the time limited for that purpose (eight days after he shall be notified of his election), shall be deemed a refusal to serve. This is not a self-executing vacatur of the office. If no bond at all is filed, the justices of the peace, in whom the-power to fill a vacancy in this office is vested (1 R. S., m. p. 348, § 36), may, no doubt, exercise the function of deeming the neglect to file a bond the refusal to serve, and then proceed to fill the vacancy! But the time in which the-constable shall file the bond is merely directory, Dutton v.. Kelsey (2 Wend., 615), and if the constable file it in good faith after the time prescribed, and before the justices have declared the vacancy, it follows that he will make good his title. People v. McKinney, 52 N. Y., 374.

In this case the constable having filed a bond which contained some, but not all of the provisions of the statute, could not in fairness be deemed by the justices to have refused to serve, especially when they knew he was serving, without giving him an opportunity to file a perfect bond. But grant that they had the power to do it—and we must grant it—still they did not declare the office vacant, and hence the plaintiff was not ousted. He was not an usurper like an alien or a woman or a minor, who are declared ineligible, and who, therefore, may not assume to hold the office for lack of legal capacity to be able to fill it; he was eligible; he had been chosen; he simply followed the old form instead of the new in preparing his bond; he was the rightful officer with a flaw in his title which might or might not oust him, and which nobody except the people, by their justices of the peace or attorney general, had any authority to urge or act upon to his downfall.

On the day before the trial the plaintiff executed and filed a new bond with sureties in the form prescribed by the statute. We do not think it was necessary for him to do this in order to maintain this action, but if the foregoing views are correct, this new bond cured the defect in his title and a quo warranta could not then oust him. But the bond does not confer title, it only enables the officer to keep it. If the plaintiff acquired title by the election in February, 1885, and then took the oath of office and entered upon its duties, and when the trial took place his title was indefeasible, in the absence of any statute forbidding his levying an execution without first filing his bond, it is difficult to see upon what ground it could be held he had no title to the office in the meantime.

The general rule with respect to de facto officers is, that the office is so far void as to prevent the officer from asserting it to his own advantage at the expense or to the injury of another, but is valid so far as to protect third parties from injury; in other words, void as to himself, but valid as to strangers. People v. Hopson, 1 Den., 574; Weeks v. Ellis, 2 Barb., 320; Matter of Kendall, 85 N. Y., 302.

If the -plaintiff was merely a de facto officer, it may be doubted whether this rule should be so applied as to deprive Mickle, the judgment-creditor, of the lien which attached to the judgment-debtor’s property upon the delivery of the execution to the de facto constable. Code Civil Pro., § 1405. That hen could only be made available by means of levy and sale. The constable was the official agent through whom Mickle must realize upon his hen. People v. Lucas, 93 N. Y., 585. The defendant had a chattel mortgage upon the same property, but he did not file it until after the execution was delivered to the constable, and therefore his hen was subsequent to Mickle’s. Hathaway v. Howell, 54 N. Y., 97. The defendant when he seized and carried away the property did so without right. But if by interposing the defect in the constable’s title, he can compel an abandonment of the levy, he can thus displace the lien of the execution and obtain for his chattel mortgage priority of lien over, any subsequent execution or levy. Besides, the goods of the execution debtor having been taken from him upon the execution, he has the right to insist that they shall be applied in satisfaction of it. Peck v. Tiffany, 2 N. Y., 456.

The rule that the acts of a de facto officer are valid as to strangers, ought to be so applied as to prevent this loss to Mickle. It may be that he would have his action for his loss against the constable, but the difference between a right of action against the constable and the goods in the hands of the constable upon the execution may be the difference between losing his claim and collecting it. The action against the defendant is brought by the constable. His right of action is founded upon the special property acquired by virtue of the levy. Barker v. Binninger, 14 N. Y., 280. But as was said in Howland v. Willetts (9 N. Y., 174), “the sheriff acts for and in behalf of the plaintiff in the execution, and the plaintiff is the substantial party, the one immediately and directly interested in the levy and the property or money acquired by virtue thereof.” Root v. Wagner, 30 N. Y., 9.

The rule that the de facto officer’s acts are valid as to third parties, ought, it seems, to be so applied as to be valid against a third party’s wrong, when that wrong is employed to defeat the execution creditor’s substantial right of propel ty.

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

Learned, P. J., and Bockes, J., concur.


author: Learned, P. J.

text:
    Isabella Wright, Resp’t, v. John C. Grant, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    1. Witness—Right to question as to previous statements.
    A witness called by plaintiff, on the examination, disappointed her expectation, and took her by surprise. It was proper to allow her to probe the witness’ recollection by questions as to his former statements.
    3. Proof of fact in a civil action.
    In a civil action, the plaintiff is not bound to establish any fact so clearly that it should be free from doubt.
    8. Rape_Sufficiency of resistance for the jury to decide.
    Whether or not it was possible for the defendant, under the circumstances, to have assaulted the plaintiff and to have overcome her resistance and commit rape upon her, was a matter for the jury.

      Appeal from a judgment entered on a verdict in an action to recover for assaults, one resulting in the rape of plaintiff, and from an order denying a new trial.

      Cantwell, Badger & Cantwell, for resp’t; Gilbert & Pellas, for app’lt.
   Learned, P. J.

This is an action to recover damages for three alleged assaults, the last of which is alleged to have culminated in a rape. Both the parties were sworn as witnesses, and their testimony is in conflict. Other evidence was produced on both sides; in that there was a conflict of evidence. It was a case for a jury to decide, who had before them the witnesses.

The defendant urges that the matter was a carefully laid plot to extort money. But there is evidence to sustain the verdict, and the opinion of the jury on this question of fact is more likely to be correct than that of an appellate court.

The defendant objects to the questions put to the witness Longer. This witness had been called by plaintiff, and on examination he had evidently disappointed the plaintiff’s expectations and taken the plaintiff by surprise. Therefore, the plaintiff was allowed to probe the witness’ recollection by questions as to his former statements. We think the questions were permissible under Bullard v. Pearsall (53 N. Y., 230).

Defendant objected to testimony as to plaintiff’s condition for some days afterwards. But we see nothing objectionable in this.

Defendant objected to testimony of Wilson on the ground that he was an attorney and the communications were confidential. But it appears that the defendant was not consulting him professionally; the conversation was casual. Wilson was not, and was not to be, defendant’s attorney or counsel.

The defendant asked the court to charge that there must be such a preponderance of evidence as should exclude the hypothesis of innocence; that if the jury were in doubt they must find for the plaintiff. The court refused and charged that there must be a preponderance of evidence in favor of the plaintiff. The defendant claims that as the action, or a part of it, imputed the crime of rape to defendant, the rule applicable to criminal cases should be applied here. The request at any rate was too broad. There might have been a recovery on the first two alleged assaults where no rape was claimed to have been committed. In any view the defendant should have qualified his request by limiting it to the accusation of the assault culminating in a rape. But even as to that the rule is not applicable in civil cases. This is stated in the opinion in N. Y. Guardian & Indemnity Co. v. Gleason (78 N. Y., at page 513). There the cause of action rested upon a conspiracy to issue forged bonds, and on the obtaining money thereby from the plaintiff. And the court said that in a civil action the plaintiff was not bound to establish any fact so clearly that it should be free from doubt.

The rule in criminal cases is familiar. Mr. Stephens in his digest of evidence, sec. 94, says that if the commission of a crime is directly in issue in any proceeding, criminal or civil, it must be proved beyond reasonable doubt. But the note by the American Editor says that in this country the great weight of authority is otherwise in civil actions. So Greenleaf’s evidence 3, sec. 29; and Johnson v. Agricultural Insurance Co., 25 Hun, 251. We think the learned justice was right in his charge.

Evidence had been given by defendant on the cross-examination of the plaintiff that there was an unpaid mortgage. on her farm given by her to defendant. On her re-examination she was asked whether she had since borrowed the money and given directions for the payment of the mortgage. We do not see that this evidence was of any importance. It could do no harm to the defendant. As indeed the fact of the existence of the mortgage was also of no importance.

The defendant further urges that it was a physical impossibility for the defendant to have committed a rape upon plaintiff, and cites among other authorities, People v. Dohring (59 N. Y., 382). The court had charged that before the jury could find that a rape had been committed the plaintiff must have resisted to the utmost of her ability. So that the jury had that view plainly before them. They could better judge than we can what was the relative strength of the defendant in making, and the plaintiff in resisting such an alleged attack. And we must bear in mind that there were three alleged assaults in two of which it is not claimed that there was any rape. And whether or not it was possible for the defendant, under the circumstances, to have assaulted the plaintiff, and to have overcome her resistance as she testifies on the third occasion was, we think, a matter for the jury. The charge of the court on the question of fact was exceedingly fair. The evidence was presented by the court so as to leave the decision to the good sense of the jury. And we see nothing which would justify our interference.

Judgment and order affirmed with costs.

Landon and Mayham, J.J., concur.


author: Bockes, J.

text:
    Lizzie Payn et al., Resp’ts, v. The Mutual Relief Society of Rochester, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    1. Mutual relief society—Benefits—Forfeiture—Breach of conditions UPON WHICH FORFEITURE MAY BE PREDICATED.
    The by-laws of the defendant society provided in part as follows, by article 5, section 5, that the secretary shall notify the members of the society of all dues and assessments for the payment of death losses, etc.; by article 7, section 2, that the local secretary shall serve notices of assessments and dues upon the members of the local board personally or by mail; and by article 4, section 7, that if any member shall neglect to pay his annual dues or assessments within thirty days from the date of a notice to pay the same by the general secretary, ten days’ grace however being given, he shall forfeit all claims on the society. Meld, that a notice of dues and assessments to a member of the local board in due form and signed by the general secretary, served on him by the local secretary would satisfy these provisions as respects the matter of service, and would be sufficient to effect a forfeiture of the rights of the member under his certificate of membership if unheeded for the time requisite to produce that result as declared in the by-laws of the society.
    2. Same—Not favored by the law—Breach must be clearly established.
    The law does not favor forfeitures, and before a forfeiture will be permitted to become effectual, the fact or facts necessary to its support must be clearly established by the most satisfactory proof.
    3. Same—What amounts to waiver of breach.
    No proofs of the death of a party assured by this society were furnished it as required by its by-laws. Held, that the society having refused to furnish blanks for the making of such proofs when called upon thereff r and putting such refusal, and its refusal at all times to pay the claim upon the ground of a failure to pay an assessment made and consequent forfeiture, had waived the omission to furnish the proofs of the death of the assured.

      James C. Matthews, for resp’t; J. M. Dunning, for app’lt.
   Bockes, J.

We are unable to agree with the learned judge who directed judgment in this case in his conclusion that a notice of dues and assessments to a member of the local board, in due form and signed by the general secretary, served on him by the local secretary, would be insufficient to effect a forfeiture of his rights under his certificate of membership, if unheeded for the time requisite to produce that result as declared in the defendants by-laws.

Section 5 of article 5, provides that, the secretary shall notify the members of the society of all dues and assessments for the payment of death losses, etc. Section 2 of article?, provides that, the local secretary shall serve notices of assessments and dues upon the members of the local board personally, or by mail; and section 7 of article 4, provides that, if any member shall neglect to pay his annual dues or assessments within thirty days from the date of a notice to pay the same by the general secretary, ten days’ grace, however, being given; he shall forfeit all claims on the society. When read and construed together, these provisions are satisfied, as respects the matter of service, by a, notice in due form signed by the general secretary, served on the member by the local secretary personally or by mail. Such seems to be the plain import of these provisions. The notice is none the less “by the general secretary,” because served by the local secretary; that is, mailed or delivered personally by the latter; and indeed it is expressly provided, that the local secretary shall serve the notice. Service of notice so made would be notice by the general secretary, through or by the aid of the local secretary; and this would be in common understanding, and hi legal effect notice by the former, as it would answer all intendments and just requirements in that regard. As respects this point, we think, the conclusion of the learned judge was erroneous. He found, however, against the defendant, as to the fact of service of notice, by either the general or local secretary; found that it was not satisfactorily proved that any notice whatever, was given the assured of dues or assessments charged and unpaid against him; hence, that the alleged defense of forfeiture of his claim against the society failed. In this conclusion we are inclined to concur. Forfeitures are not favored in law. Before a forfeiture will be permitted to become effectual, the fact or facts necessary to its support must be clearly established by the most satisfactory proof.

Now it was claimed in this case that the assured was-duly notified by the local secretary, through the mail, of an assessment against him, July 1, 1881, which assessment-remained unpaid for such length of time as worked a forfeiture of his membership. In support of this defense, the local secretary testified that he gave the assured such notice through the mail July 1, 1881; and it was conceded that the assessment remained unpaid for thirty days and more thereafter. The point controverted on the trial was whether such notice was in fact so given. The local secretary alone testified in the affirmative on this point. He stated in direct and positive terms, and somewhat in detail,, that he mailed tire notice, directed to the assured at Albany, his residence and place of business, on July 1,1881, and there were some slight circumstances proved in corroboration of his statement, but so slight as to be of no great value as corroborative proof. But when pressed on cross-examination he-said: “I have no personal knowledge in regard to this card (the notice) more than the regular routine. By the court— Q. Have you a personal and distinct recollection of mailing-this particular card to Mr. Payn, or is it your inference that you did because it was your custom or habit to mail them all? A. I don’t remember the mechanical part of the. writing, but I feel sure I mailed the card. By the court— Q. Have you a memorandum of checking this one off? A. Ho, sir. By the court—Your evidence amounts to this, that you have no recollection of directing and mailing this particular card to Payn, but from your mode of doing business, which you have explained, you feel confident that there was a card addressed and mailed to him as you have stated? A. Yes, sir.' By the court—That is about it? A. Yes, sir; the board was so small, the only thing I am not positive of is the writing that address.”

Such was the purport of the testimony of the secretary as to his having served the notice. It will be observed that this testimony is far from direct and positive proof of the fact—such as is required to establish a forfeiture; and besides, there was some countervailing proof of an inferential character given on the part of the plaintiffs. To say the least of it, there was a fair question of fact on the proof for the trial court; and the evidence is not so conclusively against the finding that we can hold it to be erroneous; and especially should we not do this, the result of which would be to establish a forfeiture, unless the error in the finding be made very conclusively to appear. Such is not the case, as we think. The defense of forfeiture was not, as we think, satisfactorily and conclusively established.

■ It is further urged by the respondent’s counsel that the assured had, including the ten days grace given him, forty days after the service of the notice of assessment within which to make payment; and that payment was tendered within that time. A tender was proved, but the case fails to show that it was made within forty days after July 1. It does not appear that any point was made in this regard on the trial, and the case is indefinite as to when the tender was made. In view of our conclusion above stated we do not deem it necessary to consider this subject.

It was found that no proofs of the death of the assured were furnished the defendant as required by its by-laws, but that such refusal was waived inasmuch as it was made to appear that the defendant refused to furnish blanks for the making of such proofs when called upon therefor, putting such refusal, and its refusal at all times to pay the claim, upon the ground that the assured had not paid the assessment of July 1, and had consequently forfeited his •right of membership. These alleged grounds of waiver were proved on the trial, and they were, according to the decisions, sufficient to uphold a waiver. Grattan v. Met. Life Ins. Co., 80 N. Y., 281; Tayloe v. Merch. Fire Ins. Co., 9 How. U. S., 391; Post v. Ætna Fire Ins. Co., 43 Barb., 351; Noyes v. Wash. Co. Mut. Ins. Co., 30 Vt., 659. The defendant did not put its refusal to pay the claim on the ground of the omission to furnish to it proofs of the death of the assured, but on the ground that his certificate of membership was forfeited and void because of the nonpayment of the July assessment. On such assertion of non-liability the furnishing of such proofs would have been a futile act, and the putting of the refusal to pay solely on another and different ground of absolute non-liability operated as a waiver of the condition not urged or insisted on. We are of the opinion that the record discloses no error calling for a reversal of the judgment.

Judgment affirmed, with costs.

Learned, P. J., and Landón, J., concur.